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Himachal Pradesh High Court · body

2011 DIGILAW 286 (HP)

Laiq Ram v. State of H. P.

2011-01-06

SURINDER SINGH

body2011
JUDGEMENT SURINDER SINGH, J. - 1. I have the privilege to go through the views of both my learned Brother Judges. Each of them has explored the law on the subject extensively. I agree with the view taken by Brother justice Deepak Gupta. However I would like to add that the Parliament, recently brought about radical amendments in the Industrial Disputes vide Act No. 24 of 2010; which inter alia provided a direct access, to Labour Court or Tribunal in case of dispute arising, out of Section 2-A of the Act by amending it, by putting a time cap to seek redressal, by a workman of his "industrial dispute" which reads as under:" Amendment of Section 2-A: Section 2-A of the principal Act shall be numbered as sub-section (1) thereof and after subsection (1) as so numbered, the following sub-sections shall be inserted, namely: "(2) Notwithstanding anything contained in section 10, any such workman as is specified in sub-section (1) may, make an application direct to the Labour Court or Tribunal for adjudication of the dispute referred to therein after the expiry of forty-five days from the date he has made the application to the Conciliation Officer of the appropriate Government for conciliation of the dispute, and in receipt of such application the Labour Court or Tribunal shall have powers and jurisdiction to adjudicate upon the dispute, as if it were a dispute referred to it by the appropriate Government in accordance with the provisions of this Act and all the provisions of this Act shall apply in relation to such adjudication as they apply in relation to an industrial dispute referred to it by the appropriate Government. . (3) The application referred to in sub-section (2) shall be made to the Labour Court or Tribunal before the expiry of three years from the date of discharge, dismissal, retrenchment or otherwise termination of service as specified in sub-section (1).” 2. The above amendment received the assent of the President on 16th August, 2010 and published in the Gazette of India, Extra, Part II Section 1 dated 16th August, 2010, which provided another independent direct channel to the workman which is also independent of Section 10 of the Act, but putting a time cap limiting the period to seek relief so claimed. 3. 3. Earlier the Workman, whose services were discharged, dismissed, retrenched or otherwise terminated under Section 2-A of the Act, had no access and were unable to approach the Labour Court or Tribunal in the absence of a reference of "industrial dispute" by the appropriate Government, which caused delay and miseries to him. 4. Though the Industrial Disputes Act, 1947 provides the machinery and procedure for the investigation of industrial disputes but with the passage of time and experience gained, judicial verdicts' and industrial relations policy of the Government the above change was necessitated by limiting the period within which a workman can directly approach the Industrial Tribunal/court. However, Chapter-III of the Act deals with reference of disputes to Boards, Courts or Tribunals and Section 10, particularly deals with reference of such disputes to it which does not prescribe any time limit, for making a reference of an "industrial dispute" but the appropriate Government has to form an "opinion" that any "industrial dispute" exists or apprehended, it may "at any time", by order in writing refer to it for its determination as provided in that Section. The words "opinion" and "at any time" occurring in this section are quite important to answer the reference in question. 5. The Supreme Court and the various High Courts in catena of its judgments have interpreted and supplied the meaning to these words with reference to a particular fact situation, which have been cited above gainfully by my esteemed Brothers. In my opinion, the literal rule of construction requires the words of the Act be construed according to its literal and grammatical meaning whatever the result may be. The nature of the process of formation of the "opinion" under Section 10 (1) in referring the dispute, in this sense, is based upon facts though administrative, but is subjective and not open to judicial scrutiny. Thus the question whether an "industrial dispute” existed on the date of reference, is certainly a question of .fact to be determined by the Tribunal on the material placed before it; for that the workman has to offer a semblance of explanation of delay. However, in order to promote industrial peace, harmony, fairness and transparency in the decision making process, the workman ordinarily be also heard. Though, I hasten to add that no elaborate hearing is required except the explanation by the workman to project his case and explain the delay. However, in order to promote industrial peace, harmony, fairness and transparency in the decision making process, the workman ordinarily be also heard. Though, I hasten to add that no elaborate hearing is required except the explanation by the workman to project his case and explain the delay. The reply/representation would be taken into consideration by the appropriate Government to form an "opinion". This process would shun the act of arbitrariness and unreasonableness, which would be reasonable and exercise of such power in a reasonable manner. 6. Therefore, the appropriate Government has to be subjectively satisfied while forming an "opinion" such power has to be exercised reasonably and in a rational manner, whether a dispute exists or not. In case the answer is in positive, it has to refer the matter to Court/ Tribunal irrespective of time lapse, though, it would depend on the factual background of each case and no straight-jacket formula can be laid. Hence, I fully support the view taken by Brother Justice Deepak Gupta.