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2012 DIGILAW 758 (HP)

Amar Singh v. State of Himachal Pradesh

2012-10-30

SURINDER SINGH

body2012
Judgment Surinder Singh, J. 1. By means of the present writ petition under Article 226 of the Constitution of India, the petitioner prays to set-aside the order dated 7.12.2005 Annexure P-9 of the Labour Commissioner and direct the respondents to refer the dispute of the petitioner to the Labour Tribunal, for its determination, as recommended by the Conciliation Officer. 2. Heard and gone through the record. 3. Precisely, the case of the petitioner is that in the year 1970, he was appointed as Beldar on daily wages in H.P. Public Works Department in Sub-division Sunhi (B & R) Division Kangra District. His services were retrenched in the year 1985. According to him, he continuously worked for a period of 15 years and was drawing his salary of `.90/- per month. Since he was a “workman” within the meaning of Section 2(s) of the Industrial Disputes Act, 1947, in short “the Act”, he was wrongly retrenched from service. Despite personal meetings with the concerned authorities and on sending various representations to them, he was not taken back and finally he made a representation dated 17.11.97 (Annexure P-3) to the Superintending Engineer to re-engage him. Some communications Annexures P4, P5 and P7 were exchanged inter se the office of the Superintending Engineer and the Executive Engineer, Kangra Division and when nothing was heard, the petitioner had also sent letter Annexure P-8 to the first respondent. In between on raising the demand notice the matter was referred to the Conciliation Officer, who had recommended his case for its determination to the Labour Court, but it was declined by the 2nd respondent, as having become stale. The record of the Conciliation Officer was called for and perused. The observations of this Court find mentioned in zimini order dated 7.8.2012. The record shows that the petitioner’s demand notice was received on 25.11.2002 by his employer with a copy to the Conciliation Officer stating all the facts as referred above and demanded the reinstatement in service alongwith back wages and all consequential benefits. 4. The Conciliation Officer initiated the conciliation proceedings and took the matter on various dates i.e. on 17.3.2003, 25.3.2003 and 24.7.2003 in his office at Dharamshala. 4. The Conciliation Officer initiated the conciliation proceedings and took the matter on various dates i.e. on 17.3.2003, 25.3.2003 and 24.7.2003 in his office at Dharamshala. During such proceedings, the terms for final settlement were explained to the parties, but the employer had only attended the conciliation proceedings once i.e. on 25.3.2003 and was given time to file reply, but thereafter neither the employer put in appearance nor filed the reply. Then, on considering the whole matter, the Conciliation Officer approved the case for sending it to the Labour Court for determination on the point, whether the termination of the services of the petitioner during the year 1985 by the Executive Engineer PWD Division Kangra were legal and justified if not what seniority, past service benefits, back wages and compensation, the petitioner was entitled from his employer? 5. The 2nd respondent vide his letter dated 7.12.2005 (Annexure P-9) rejected the request of the Conciliation Officer on the ground that the dispute was raised after a lapse of 12 years without any proper justification of delay. There was no dispute for 12 years between him and his employer. The lapse of time had caused fading of dispute. When the dispute faded away, there was no justification of making any reference to the Labour Court. Accordingly, the petitioner was informed as per Section 12(5) of the Act that his dispute under reference in view of the above mentioned reasons was not being referred to the Labour Court for adjudication. Copy thereof was endorsed to the Executive Engineer as also to the Labour Officer/ District Employment Officer/ Labour Inspector-cum- Conciliation Officer with reference to his report dated 9.12.2003. 6. According to the petitioner, even thereafter he made representations to the respondents, but it turned deaf ears of the authorities, accordingly, the present petition was filed. 7. The respondents resisted and contested the petition precisely on the ground that there was no dispute for 12 years and no proper justification has been offered to condone the delay, the lapse of time had caused fading of dispute, thus reference to the Labour Court is not justified. 8. 7. The respondents resisted and contested the petition precisely on the ground that there was no dispute for 12 years and no proper justification has been offered to condone the delay, the lapse of time had caused fading of dispute, thus reference to the Labour Court is not justified. 8. The Full Bench of this Court whereof I was one of the Member, in CWP No.1486 of 2007 titled Liaq Ram vs. State of H.P. and others decided on 6th January, 2011, after examining various judgments of the apex Court, per majority view observed that in some cases the Apex Court itself has held that since there is delay in seeking the reference the dispute had faded away or had got eclipsed due to lapse of time. Even in those cases where the Apex Court held that the reference was proper and the dispute still existed, it went on to hold that in cases where lapse of time had caused fading or eclipsing of the dispute and nobody had kept the dispute alive, it would be reasonable to conclude that the dispute ceases to exist. Further the Government is authorized to form the opinion whether a dispute exists or not, which shows that the Government is not powerless and in case there is great delay and there is no explanation for the delay then the Government can refuse to make a reference on the ground that the claim is stale and therefore the industrial dispute no longer exists. An industrial dispute can fade away and cease to exist because of long delay where the workman has taken no steps to keep the dispute alive. However, if the workman or the Union has kept the dispute alive even if no action has been initiated it will not mean that the dispute ceases to exist. Whether, a dispute exists or not, or has faded or got eclipsed is a question of fact which has to be decided in the facts and circumstances of each case. 9. 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. 9. 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. 10. Further in order to promote industrial peace, harmony, fairness and transparency in the decision making process, the workman ordinarily be also heard. Though, 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. 11. Since the matter in question was not considered in light of the various judgments of the apex Court properly and also in view of the decision majority view rendered in Liaq Ram’s case supra, the case of the petitioner is required to be properly considered by 2nd respondent to form an “opinion”. 12. For the above reasons, the impugned order Annexure P-9 dated 7.12.2005 passed by the 2nd respondent is hereby quashed and set-aside with the direction that the writ petition alongwith its Annexures be considered as representation of the petitioner and the 2nd respondent shall form a subjective opinion by taking conscious decision, on or before 31st March, 2013, in conformity with the majority view of Liaq Ram’s case supra. 13. With these directions, the petition stands disposed of, so also the pending application(s), if any.