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2017 DIGILAW 942 (HP)

Sansar Chand v. State of Himachal Pradesh

2017-08-17

AJAY MOHAN GOEL

body2017
JUDGMENT : Ajay Mohan Goel, J. By way of this writ petition, the petitioner/workman has assailed the award passed by the learned Labour Court-cum-Industrial Tribunal, Dharamshala in Reference No. 421/2009, dated 02.06.2012, vide which, learned Labour Court has dismissed the Reference Petition/Claim Petition as not maintainable, on the ground that the petitioner was not retrenched from service in the year 2005, as claimed by him. 2. Feeling aggrieved, petitioner/workman has challenged the award so passed by the learned Labour Court-cum-Industrial Tribunal, inter alia, on the ground that the learned Labour Court could not have had dismissed the Reference by holding that the same was not maintainable and the learned Labour Court was duty bound to have had answered the Reference. 3. I have heard the learned counsel for the parties and also gone through the records of the case. 4. Learned Labour Court dismissed the Reference/Claim Petition inter alia by holding as under: “16. The assertion of the respondent that the petitioner abandoned the job way back in the year 2004 pales into insignificance in view of the foregoing reasons. The reference/claim petition is not maintainable as the petitioner was not retrenched from service in the year 2005 (as claimed).” 5. Sections 14 and 15 of the Industrial Disputes Act, 1947 provide as under: “14. Duties of Courts.- A Court shall inquire into the matters referred to it and report thereon to the appropriate Government ordinarily within a period of six months from the commencement of its inquiry. 15. Duties of Labour Courts, Tribunals and National Tribunals. - Where an industrial dispute has been referred to a Labour Court, Tribunal or National Tribunal for adjudication, it shall hold its proceedings expeditiously and shall, 6 [within the period specified in the order referring such industrial dispute or the further period extended under the second proviso to sub-section (2A) of section 10], submit its award to the appropriate Government.” 6. A perusal of the above mentioned statutory provisions demonstrate that once a Court receives a Reference, then the said Court which also includes the Labour Court, has to submit its award upon the reference to the appropriate Government. In other words, it will not be within the domain of the learned Labour Court to reject a Reference by holding that it is not maintainable, as has been done in the present case by the learned Labour Court. In other words, it will not be within the domain of the learned Labour Court to reject a Reference by holding that it is not maintainable, as has been done in the present case by the learned Labour Court. Once a reference has been received by the learned Labour Court, then on the basis of the evidence which is so adduced before it by the respective parties, an award is to be passed by the learned Labour Court and, in my considered view, the award cannot be to the effect that the Reference Petition is not maintainable, especially when it was not in dispute that claimant was a workman, who had served the department as such from 1995 to 2004 and dispute as raised was an industrial dispute. 7. Besides this, even otherwise, the award so passed by the learned Labour Court in the present case is not sustainable in law, as the learned Labour Court has totally mis-directed itself by rejecting the Reference Petition by holding that the same is not maintainable. Now, the reason which has been assigned by the learned Labour Court by holding that the Reference Petition was not maintainable, is that the petitioner claimed to have been retrenched from service in the year 2005, whereas records demonstrated that the petitioner was not retrenched from service in the year 2005 and, therefore, the Reference Petition was not maintainable. While doing so, in my considered view, learned Labour Court has adopted a highly hypertechnical approach. Learned Labour Court has not appreciated that the claim as was put forth by the claimant in the Statement of Claim was that he was engaged on daily wages in IPH Department under Executive Engineer, Pangi at Killar from the year 1995 to 2004 and he worked as such under the control of the said Executive Engineer till the year 2004 and thereafter in the year 2005, his services were illegally terminated. 8. Be it year 2004 or 2005, the allegation of the workman was that his services were illegally terminated by the Executive Engineer ignoring the fact that there was no break or interruption in his services since his engagement in the year 1995. 8. Be it year 2004 or 2005, the allegation of the workman was that his services were illegally terminated by the Executive Engineer ignoring the fact that there was no break or interruption in his services since his engagement in the year 1995. This contention so raised by the workman in his Claim Petition had to be answered by the learned Labour Court by deciding as to whether the claim of the workman was sustainable or the same was not borne out from the records. However, rather than doing this, learned Labour Court by harping upon the fact that the petitioner had mentioned that he was retrenched from service in the year 2005, went on to dismiss the Reference Petition by holding the same as not maintainable on the ground that the petitioner was not retrenched in the year 2005. 9. Therefore, in my considered view, the decision so rendered by the learned Labour Court, which stands impugned by way of this writ petition, is not sustainable in the eyes of law and accordingly, Award dated 02.06.2012, passed by the learned Labour Court in Reference No. 421/2009 is quashed and set aside and the matter is remanded back to the learned Labour Court with the direction to answer the Reference in accordance with law, after taking into consideration the respective submissions and evidence placed on record by the parties. 10. Parties are directed to appear before the learned Labour Court through their respective counsel on 18th September, 2017. Keeping in view the fact that the Reference Petition is of the year 2009, this Court hopes and expects that the learned Labour Court shall dispose of the Reference Petition as expeditiously as possible. Registry is directed to forthwith return back the records of the case to the learned Labour Court. Petition stands disposed of.