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2012 DIGILAW 277 (HP)

Jagdish Chand v. State Of Himachal Pradesh

2012-05-14

RAJIV SHARMA

body2012
JUDGMENT : Rajiv Sharma, J. Petitioner was engaged daily wage Beldar in the respondent-Board on 25.11.1997. He was retrenched on 25.4.1998. He had assailed his retrenchment by way of O.A.(M) No. 449/2001 before the erstwhile Himachal Pradesh Himachal Pradesh Administrative Tribunal. The same was disposed of by the learned Tribunal on 17.4.2002. Thereafter, petitioner issued demand notice to the employer on 15.2.2006. The conciliation proceedings took place. Failure report was submitted by the Labour Officer-cum-Conciliation Officer to the Labour Commissioner. The Labour Commissioner has refused to refer the matter to the Labour Court-cum-Industrial Tribunal on the ground that the petitioner has not completed 240 days before his retrenchment vide Annexure P-4 and also on the ground of delay. 2. Mr. Vinod Thakur has vehemently argued that the Labour Commissioner could not adjudicate the issue whether the petitioner has completed 240 days preceding his retrenchment on 25.4.1998. He then argued that there is no inordinate delay in raising the demand notice on 15.2.2006 after disposing of the original application preferred by the petitioner on 17.4.2002. 3. Mr. Vikas Rathore has supported the order dated 4.4.2008. 4. I have heard the learned counsel for the parties and have perused the pleadings meticulously. 5. Petitioner belonged to lower strata of the society. He was engaged on 25.11.1997 and retrenched on 25.4.1998. He had filed O.A. (M) No.449/2001 assailing his retrenchment. The same was disposed of by the Tribunal on 17.4.2002. Thereafter, petitioner has raised demand notice on 15.2.2006. The Labour Officer-cum-Conciliation Officer had held conciliation meeting and on the basis of the failure report submitted by him, the Labour Commissioner has declined to refer the matter to the Labour Court-cum-Industrial Tribunal on 4.4.2008. The Labour Commissioner has no jurisdiction to decide whether the workman has completed 240 days preceding his retrenchment. Completion of 240 days preceding retrenchment is only relevant for the purpose of compliance of section 25-F of the Industrial Disputes Act, 1947 and as far as plea under sections 25-G and H is concerned, the petitioner need not complete 240 days preceding his retrenchment. Petitioner was also called upon by the Labour Officer-cum-Conciliation Officer to explain the delay. He has explained the same by submitting an application before him on 26.3.2006. He has given specific reference to the orders of the Tribunal in O.A. (M) No.449/2001. Petitioner was also called upon by the Labour Officer-cum-Conciliation Officer to explain the delay. He has explained the same by submitting an application before him on 26.3.2006. He has given specific reference to the orders of the Tribunal in O.A. (M) No.449/2001. It is, thus, evident that the petitioner was vigilant for the enforcement of his rights and had approached the competent court of law as well as the machinery provided under the Industrial Disputes Act, 1947. It is true that the industrial dispute has to be raised within a reasonable time, but at the same time, the circumstances the petitioner was beset coupled with the fact that he belonged to a lower strata of the society, delay of 4 years cannot be termed as inordinate delay on the basis of which reference could be refused by the Labour Commissioner. It is settled law that the delay can also be taken into consideration at the time of granting relief to the workman. The Labour Commissioner only discharges the administrative functions and not judicial or quasi-judicial functions. 6. Their Lordships of the Honble Supreme Court in Sarva Shramik Sangh v. Indian Oil Corporation Limited and others, (2009) 11 SCC 609 : (2005) 3 SCC 594 have culled out the following principles (para-37):- "Thus it can safely be concluded that a writ of mandamus would be issued to the appropriate government to reconsider the refusal to make a reference, where (i) the refusal is on irrelevant, irrational or extraneous grounds; (ii) the refusal is a result of the appropriate government examining the merits of the dispute and prejudging/adjudicating/determine the dispute; (iii) the refusal is mala fide or dishonest or actuated by malice; (iv) the refusal ignores the material available in the failure report of the Conciliation Officer or is not supported by any reason." 7. Accordingly, in view of the observations and analysis made herein above, the petition is allowed. Annexure P-4 dated 4.4.2008 is quashed and set aside. Respondent No.2 is directed to refer the matter to the Labour Court-cum-Industrial Tribunal, within a period of four weeks from today. Pending applications, if any, also stands disposed of. There shall, however, be no order as to costs.