Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 1801 (HP)

Ram Saroop v. State Of Himachal Pradesh

2014-12-03

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT : Rajiv Sharma, J. The petitioners were appointed by the Forest Department on daily waged basis on muster roll w.e.f. 7.8.1993, 1.1.1995, 1.1.1995, July 1993, July 1993 and 1.7.1995, respectively. The petitioners were retrenched on 1.4.2006. They made several representations seeking reengagement. It is evident from Annexure P-A dated 1.1.2009, Annexure P-B dated 20.2.2009, Annexure P-C dated 3.12.2009, Annexure P-D dated 15.12.2009 and Annexure P-E dated 21.1.2010, that the matter remained under active consideration of the respondent-State for re-engagement of the petitioners. However, the fact of the matter is that when the petitioners were not re-engaged, they raised demand notices on 3.6.2011/4.6.2011. The Labour Officer-cum-Conciliation Officer submitted the failure reports to the Labour Commissioner. Thereafter the Labour Commissioner vide order dated 4.3.2013 has declined to make the reference. According to him, the dispute has faded away with the passage of time and was not in existence. The petitioners have worked for about 13 years. Their demands were under active consideration as per Annexures PA to PE, respectively. They have issued demand notices on 3.6.2011/4.6.2011. The dispute, under these circumstances, cannot be treated as stale. The purpose of Industrial Dispute Act, 1947 is to maintain industrial peace. It is not one of those cases where the workmen have slept over their rights. The petitioners had been seeking their re-engagement and necessary orders to this effect were made as per Annexures PA to PE. In the instant case, when the final decision has been taken not to re-engage the petitioners, immediately thereafter, they have raised the industrial dispute. 2. Their lordships' of the Hon'ble Supreme Court in the case of Raghubir Singh v. General Manager, Haryana Roadways, Hissar, reported in, JT 2014 (10) SC 168, have held that the State Government can make the reference at any time. Their Lordships have held as under: "13. In the case on hand, no doubt there is a delay in raising the dispute by the appellant; the Labour Court nevertheless has the power to mould the relief accordingly. At the time of adjudication, if the dispute referred to the Labour Court is not adjudicated by it, it does not mean that the dispute ceases to exist. In the case on hand, no doubt there is a delay in raising the dispute by the appellant; the Labour Court nevertheless has the power to mould the relief accordingly. At the time of adjudication, if the dispute referred to the Labour Court is not adjudicated by it, it does not mean that the dispute ceases to exist. The appropriate government in exercise of its statutory power under Section 10(1)(c) of the Act can refer the industrial dispute, between the parties, at any time, to either the jurisdictional Labour Court/Industrial Tribunal as interpreted by this Court in the Avon Services case referred to supra. Therefore, the State Government has rightly exercised its power under Section 10(1)(c) of the Act and referred the points of dispute to the Labour Court as the same are in accordance with the law laid down by this Court in Avon Services and Sapan Kumar Pandit cases referred to supra. 14. Further, the workman cannot be denied to seek relief only on the ground of delay in raising the dispute as held in the case of S.M. Nilajkar and others v. Telecom District Manager, Karnataka, [ 2003 (4) SCC 27 ], it was held by this Court as follows:-- "17. It was submitted on behalf of the respondent that on account of delay in raising the dispute by the appellants the High Court was justified in denying relief to the appellants. We cannot agree...... In Ratan Chandra Sammanta and others v. Union of India and others (supra) [JT 1993 (3) SC 418], it was held that a casual labourer retrenched by the employer deprives himself of remedy available in law by delay itself, lapse of time results in losing the remedy and the right as well. The delay would certainly be fatal if it has resulted in material evidence relevant to adjudication being lost and rendered not available. The delay would certainly be fatal if it has resulted in material evidence relevant to adjudication being lost and rendered not available. However, we do not think that the delay in the case at hand has been so culpable as to disentitle the appellants for any relief....." (Emphasis laid by the Court) 14.1 In view of the legal principles laid down by this Court in the above judgment, the reference of the industrial dispute made in the case on hand by the State Government to the Labour Court to adjudicate the existing industrial dispute between the parties was made within a reasonable time, considering the circumstances in which the workman was placed, firstly, as there was a criminal case pending against him and secondly, the respondent had assured the workman that he would be reinstated after his acquittal from the criminal case. Moreover, it is reasonable to adjudicate the industrial dispute in spite of the delay in raising and referring the matter, since there is no mention of any loss or unavailability of material evidence due to the delay. Thus, we do not consider the delay in raising the industrial dispute and referring the same to the Labour Court for adjudication as gravely erroneous and it does not debar the workman from claiming rightful relief from his employer. 42. It is an undisputed fact that the dispute was raised by the workman after he was acquitted in the criminal case which was initiated at the instance of the respondent. Raising the industrial dispute belatedly and getting the same referred from the State Government to the Labour Court is for justifiable reason and the same is supported by law laid down by this Court in Calcutta Dock Labour Board (supra). Even assuming for the sake of the argument that there was a certain delay and latches on the part of the workman in raising the industrial dispute and getting the same referenced for adjudication, the Labour Court is statutorily duty bound to answer the points of dispute referred to it by adjudicating the same on merits of the case and it ought to have moulded the relief appropriately in favour of the workman. That has not been done at all by the Labour Court. That has not been done at all by the Labour Court. Both the learned single Judge as well as the Division Bench of the High Court in its Civil Writ Petition and the Letters Patent Appeal have failed to consider this important aspect of the matter. Therefore, we are of the view that the order of termination passed by the respondent, the award passed by the Labour Court and the judgment and order of the High Court are liable to be set aside. When we arrive at the aforesaid conclusion, the next aspect is whether the workman is entitled for reinstatement, back wages and consequential benefits. We are of the view that the workman must be reinstated. However, due to delay in raising the industrial dispute, and getting it referred to the Labour Court from the State Government, the workman will be entitled in law for back wages and other consequential benefits from the date of raising the industrial dispute i.e. from 02.03.2005 till reinstatement with all consequential benefits." 3. In view of the definitive law laid down by the Hon'ble Supreme Court, the impugned order dated 4.3.2013, Annexure P-H (collectively), is quashed and set aside. The Labour Commissioner, Himachal Pradesh, is directed to refer the dispute to the Labour Court-cum-Industrial Tribunal, within a period of three weeks from today. The Labour Court-cum-Industrial Tribunal, shall decide the reference within a period of six months to mitigate the hardship of the petitioners. Pending application(s), if any, shall also stand disposed of.