Research › Search › Judgment

Himachal Pradesh High Court · body

2019 DIGILAW 1216 (HP)

Gurdev Kumar v. State of H. P.

2019-08-26

SANDEEP SHARMA

body2019
JUDGMENT : Sandeep Sharma, J. Being aggrieved and dissatisfied with order dated 19.7.2013, passed by Labour Commissioner, Himachal Pradesh, whereby he refused to refer the matter for adjudication to Labour Court-cum-Industrial Tribunal, petitioners have approached this court in the instant proceedings filed under Art.226 of the Constitution of India with a prayer to set aside the impugned order and refer the dispute to Labour Court-cum-Industrial Tribunal for adjudication. 2. Succinctly, the facts as emerge from the record are that the petitioners came to be employed as daily wagers with respondent No.2 i.e. Himachal Pradesh Tourism Development Corporation (hereinafter, 'Corporation') between the year 1993-1997, where after, their services were regularized in the respective Class IV categories i.e. Malis, Helpers, Beldars, Painters and Sweepers, in the year 20005 and they were put in the pay scale of Rs.2520-4140. On 12.9.2003, respondent No.2 issued an office order, whereby petitioners and other categories in the respondent-Corporation were granted different pay scales. In September, 2011, petitioners served a demand notice upon respondents for grant of same pay scale i.e. Rs.2720-4260 as granted to the category of Utility Workers, because both the categories i.e. petitioners and Utility Workers were covered in same pay scale/Class IV, category of workman, however, the fact remains that such claim of the petitioners came to be denied, as a consequence of which, dispute arose inter se petitioners and employee. 3. Careful perusal of Annexure P-6 suggests that the petitioners served demand notice upon respondent No.1 alleging therein that at the first instance they were employed on daily wages and later on, after good number of years, their services were regularized in the pay scale of Rs.2520-4140 (with initial start of Rs.2620). They further averred that similarly the Utility Workers in the Corporation were granted equivalent /similar pay scale at par with them, till 25.8.2003, because all were unskilled categories of workmen. On 25.8.2003, pay scale of Utility Workers was revised from 2520-4140 to 2720-4260, however, said revision was not made in the case of the petitioners. It is further averred by the petitioners that during pay revision of the year 2006, Utility Workers were granted pay scale of Rs.6700-7500 as such, petitioners are also entitled to pay scale of Rs.6700-7500 as granted to Utility Workers. 4. It is further averred by the petitioners that during pay revision of the year 2006, Utility Workers were granted pay scale of Rs.6700-7500 as such, petitioners are also entitled to pay scale of Rs.6700-7500 as granted to Utility Workers. 4. Record reveals that the Labour Officer-cum-Conciliation Officer, Solan, tried to settle the dispute amicably interse parties but since conciliation proceedings failed, he submitted a report under Sub-section (4) of S. 12 of the Act to the 'appropriate Government' i.e. respondent No.1. Respondent No.1, while exercising power of 'appropriate Government' examined the report submitted by Labour Officer-cum-Conciliation Officer, Solan, District Solan, Himachal Pradesh and thereafter, arrived at a conclusion that since petitioners are regular employees of the Corporation, they ought to have raised dispute before appropriate Forum, under FR SR & CCS Rules. In the aforesaid background, petitioners have approached this Court in the instant proceedings, seeking quashment of impugned order dated 19.7.2013, Annexure P8. 5. Having heard learned counsel for the parties and perused the material available on record, this Court finds force in the arguments of Mr. Anuj Gupta, learned counsel for the petitioners that the 'appropriate Government', while considering report of Labour Officer-cum-Conciliation Officer, under Sub-section (4) of S.12 of the Act, could not have gone into the merits of the dispute. 6. At this stage, S.12 of the Act is reproduced hereunder: "12. Duties of conciliation officers. (1) Where any industrial dispute exists or is apprehended, the conciliation officer may, or where the dispute relates to a public utility service and a notice under section 22 has been given, shall hold conciliation proceedings in the prescribed manner. (2) The conciliation officer shall, for the purpose of bringing about a settlement of the dispute, without delay, investigate the dispute and all matters affecting the merits and the right settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute. (3) If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings the conciliation officer shall send a report thereof to the appropriate Government 6 [or an officer authorised in this behalf by the appropriate Government] together with a memorandum of the settlement signed by the parties to the dispute. (4) If no such settlement is arrived at, the conciliation officer shall, as soon as practicable after the close of the investigation, send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, together with a full statement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at. (5) If, on a consideration of the report referred to in sub-section (4), the appropriate Government is satisfied that there is a case for reference to a Board, 7 [Labour Court, Tribunal or National Tribunal], it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons there for. (6) A report under this section shall be submitted within fourteen days of the commencement of the conciliation proceedings or within such shorter period as may be fixed by the appropriate Government: 1 [Provided that, 2 [subject to the approval of the conciliation officer,] the time for the submission of the report may be extended by such period as may be agreed upon in writing by all the parties to the dispute.]" 7. The Act ibid is a complete code in itself, wherein a mechanism has been provided for identification and adjudication of the industrial dispute. Expression, "industrial dispute" defined in S.2(k) envisages existence of a dispute or difference between the parties in connection with employment or non-employment or terms of employment or conditions of labour of any person. S.10 of the Act lays down that where appropriate Government is of the opinion that an industrial dispute exists or is apprehended, it may refer the dispute at any time by issuing an order in writing. Such reference may be made to a Board for settlement thereof 8. Object underlying the procedure set out in S.12 of the Act is for the purpose of bringing about a settlement of the dispute, without delay, whereby authorities under the Act ibid are required to investigate the dispute and all matters affecting the merits and the right settlement thereof and may do all such things as they think fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute. If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings, the conciliation officer is required to send a report thereof to the appropriate Government together with a memorandum of the settlement signed by the parties to the dispute. If no such settlement is arrived at, the conciliation officer is required to send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, together with a full statement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at. If, on a consideration of the report referred to in sub-section (4), the appropriate Government is satisfied that there is a case for reference, it may make such reference to Labour Court cum-Industrial Tribunal. In case, the appropriate Government does not make such a reference, it shall record and communicate its reasons to the parties concerned. 9. In the case at hand, respondent No.1, while exercising power of appropriate Government, examined the report submitted by Labour Officer-cum-Conciliation Officer, Solan Zone, District Solan, Himachal Pradesh and arrived at a conclusion that the petitioners are regular employees of the Corporation, as such, they should raise their dispute before appropriate Forum under FRSR and CCS Rules. Such a finding returned by respondent No. 1, in exercise of power of appropriate Government, is on merits of the dispute and as such refusal of respondent No.1 may be said to be result of appropriate Government examining merits of the dispute and prejudging/adjudicating/determining the dispute, which could not be done by respondent No.1, while exercising power Sub-section (5) of S.12 of the Act. Moreover, sub-section (5) of the Act provides that, if on consideration of report under Sub-section (4), appropriate Government is satisfied that there is a case for referring the dispute to Labour Court, Tribunal or National Tribunal, it may make such reference but, where the appropriate Government does not make such a reference, it shall record and communicate to the parties concerned its reasons there for. 10. 10. In the case at hand, reason assigned by respondent No.1, while refusing to refer the dispute to Labour Court-cum-Industrial Tribunal for adjudication, is highly untenable because, admittedly, question, whether the petitioners being regular employees of the Corporation are entitled to the pay scale of 2720- 4260 (pre revised) (now revised to Rs.6700-7500) with effect from 1.12.2009, equivalent to their counterparts i.e. Utility Workers in the Corporation, can only be gone into by the authority possessing adjudicatory powers, which definitely are vested in the Labour Court-cum-Industrial Tribunal, as has been noticed herein above. 11. Since respondent No. 1 is not an adjudicator, he has no right to enter into arena of adjudication on merits of dispute, reliance is placed upon judgment rendered by Hon'ble Apex Court in Sarva Shramik Sangh vs. Indian Oil Corporation Limited and others, (2009) 11 SCC 609 , wherein it has been held by Hon'ble Apex Court as under: "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." 12. Reliance is also placed upon judgment rendered in R.K. Madan and Anr. v. Govt. of NCT and Ors, (2005) 118 DLT 542 , wherein complaint having been made by workmen to the Assistant Labour Commissioner under Ss.25T and 25U read with Schedule V(1) of the Act, came to be dismissed on the ground that complainants were not workmen as per definition of 'workman' under the Act. High Court of Delhi held that such an order amounts to adjudicating the dispute on merits and same was not justified since Labour Commissioner had no power to adjudicate the matter on merits. 13. Consequently, the writ petition is allowed. Order dated 19.7.2013 (Annexure P-8) is quashed and set aside. Respondent No. 1 is directed to refer the dispute to the Labour Court-cum-Industrial Tribunal, after framing terms of reference, expeditiously, preferably within a period of four weeks. Pending applications, if any, also stand disposed of.