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2019 DIGILAW 137 (HP)

Deen Dayal Yogi v. State of H. P.

2019-01-10

CHANDER BHUSAN BAROWALIA, DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. Deen Dayal Yogi, the writ petitioner in CWP No. 2958 of 2012, is aggrieved by the judgment dated 8.10.2012, whereby learned Single Judge has dismissed the writ petition. He, therefore, has preferred the present appeal under Clause 10 of the Letters Patent of High Court of Judicature at Lahore, applicable to the High Court of Himachal Pradesh, with a prayer to quash and set aside the same. 2. The facts, which are not disputed, reveal that writ petitioner was engaged as clerk on daily wage basis in the defunct Agro Industrial Packaging India, an undertaking of respondent No.1-State on 22.7.1996. He allegedly continued till the year 1999 as such with 240 days in each calendar year. The respondent terminated his services orally without assigning any reason in gross violation of Section 25 (f)(g) and (h) of the Industrial Disputes Act. Against his illegal termination, he made the representations dated 16.7.2001, 24.6.2003 and 5.7.2004, Annexures P-3 to P-5 to the response. The postal receipts have also been annexed thereto. The respondents when failed to take any action on the representations he made, served them with the demand notice Annexure P-6, at such a stage when came to know that one Uma Kanwar, his junior and a similarly situated person was re-engaged and subsequently her services were also regularized. The Labour Officer tried conciliation, however, when the same failed, forwarded the matter to the Labour Commissioner, Himachal Pradesh for making a reference of the dispute to the Labour Court-cum-Industrial Tribunal. The Labour Commissioner-respondent No.3 herein has, however, rejected the demand notice being belated, allegedly made after lapse of about 11 to 13 years and there being nothing to suggest that during this period the dispute was kept alive by the writ petitioner. The impugned order is Annexure P-7. 3. In reply to the writ petition, the stand of respondents, however, was that the employment of the petitioner with respondent was contractual for a limited period i.e. 89 days. The provisions contained under Section 25(f) of the Act as such were not required to be complied with. The circulation of seniority list as on 31.8.1998 in which the name of the writ petitioner and other daily waged clerks 29 in numbers were reflected. There being reduction in the workload and respondent No.2 having taken a decision to retain only 15 clerks on 6.11.1998. The circulation of seniority list as on 31.8.1998 in which the name of the writ petitioner and other daily waged clerks 29 in numbers were reflected. There being reduction in the workload and respondent No.2 having taken a decision to retain only 15 clerks on 6.11.1998. After rationalization of staff, the services of the petitioner could not be renewed further. There being no violation of the provision under the Industrial Dispute Act, the contentions to the contrary have been denied being wrong. It is also denied that the respondent never received any representation allegedly made by the writ petitioner. The submissions to this effect are stated to be after thought made with a view to bring the case within limitation. It is denied that Uma Kanwar, a junior on daily wage basis was reengaged and her services were regularized. In this regard, it is submitted that she was regular in her job. The filing of demand notice though has been admitted, however, the same was sought to be rejected being time barred. 4. In rejoinder, the writ petitioner has denied the contention to the contrary in the reply to the writ petition being wrong and reiterated his entire case as set out in the writ petition. Learned Single Judge, has, however, dismissed the writ petition while taking a view of the matter that the dispute has faded away with the passage of time and was no more in existence. 5. The legality and validity of the impugned judgment has been questioned on the grounds inter alia that the same is contrary to the facts and circumstances of the case and also the material available on record. In view of the petitioner having made representation and also raised demands on coming to know that his junior Uma Kanwar was reengaged and appointed on regular basis, there was no occasion to learned Single Judge to have recorded the findings that the claim has faded away with the passage of time and that the same is no more in existence. It is pointed out that when the conciliation failed, the conciliation officer has referred the dispute to respondent No.3 for appropriate action. Had there been no dispute in existence at that time and the same rather allegedly faded away with the passage of time, the conciliation officer should have not referred the matter to respondent No.3. It is pointed out that when the conciliation failed, the conciliation officer has referred the dispute to respondent No.3 for appropriate action. Had there been no dispute in existence at that time and the same rather allegedly faded away with the passage of time, the conciliation officer should have not referred the matter to respondent No.3. This aspect has not been taken into consideration by learned Single Judge. The factum of he having come to know in the year 2010 that his junior Uma Kanwar was reengaged and it is thereafter he has served the respondent with the demand notice has also been erroneously ignored by learned Single Judge. Such approach, according to the writ petitioner, has resulted into serious miscarriage of justice to him. The impugned judgment as such has been sought to be quashed and set aside. 6. On hearing learned counsel appearing on behalf of the writ petitioner and learned Additional Advocate General as well as going through the record, we are not in agreement with the findings recorded by learned Single Judge while dismissing the writ petition vide judgment dated 8.10.2012, under challenge in the present appeal for the reason that the writ petitioner by placing on record the xeroxed copies of the representations Annexures P-3 to P-5, sent through currier services along with postal receipts has succeeded to establish prima facie that such representations were made by him against his termination from service allegedly illegally. Respondent No.2, however, failed to respond thereto. True it is that after 5.7.2004, the day when he made the representation Annexure P-5, the writ petitioner did not raise the dispute till 24.9.2010, when he served the respondent with demand notice Annexure P-6. He, however, has succeeded to explain satisfactorily this aspect of the matter while submitting that he issued the demand notice when he came to know about the re-engagement of Uma Kanwar, a similarly situated person and terminated in similar manner, in which his services were dispensed with, reengaged and later on appointed on regular basis. Though the response of the respondents to this part of the petitioner’s case is that Uma Kanwar was a regularly appointed employee, hence not similarly situated, however, without there being any supporting material on record to substantiate the same. Though the response of the respondents to this part of the petitioner’s case is that Uma Kanwar was a regularly appointed employee, hence not similarly situated, however, without there being any supporting material on record to substantiate the same. The denial of the respondent that they did not receive the representations made by the writ petitioner is again a disputed fact because he in respect of such claim has produced the receipts issued by the courier concerned through whom the representations he made to respondent No.2 were sent. These facts raised by the writ petitioner as such were required to be adjudicated upon and it could have only been done by referring the matter to Labour Court-cum-Industrial Tribunal concerned by the Labour Commissioner, respondent No.3 herein for the purpose. The present as such is a case where the writ petitioner has kept alive the dispute and never allowed he same to be faded away. Therefore, the reasons to the contrary recorded by respondent No.3 while dismissing the demand notice vide order Annexure P-7 are contrary to the legal as well as factual position. At the same time, learned Single Judge was also not justified in dismissing the writ petition while taking a view of the matter that with the passage of time, the dispute has faded away. As a matter of fact, the law relied upon by learned Single Judge is distinguishable in the given facts and circumstances of the case. 7. On the other hand, Hon’ble Apex Court in Jasmer Singh versus State of Haryana and another, (2015) 4 SCC, 458, while holding that no period of limitation is prescribed under the Act and also that Limitation Act has no application in a case of this nature has concluded that the reference made by the Labour Court cannot be quashed on the ground of delay. 8. Similar is the ratio of the judgment of the Hon’ble apex Court in Raghubir Singh versus General Manager Harababa Roadways, Hissar, (2014) 10 SCC 301 . It has been held in this judgment that as per Section 10(1) of the Industrial Disputes Act, the appropriate Government “at any time” may refer the industrial dispute for adjudication, if it is of the opinion that such industrial dispute exists or is apprehended. It has been held in this judgment that as per Section 10(1) of the Industrial Disputes Act, the appropriate Government “at any time” may refer the industrial dispute for adjudication, if it is of the opinion that such industrial dispute exists or is apprehended. In the case in hand, as noticed supra, the dispute raised by the writ petitioner not only exists, but in the given facts and circumstances being not faded away and rather the writ petitioner kept the same alive, should have been referred by respondent No.3 for adjudication to the Labour Court-cum-Industrial Tribunal concerned. 9. For all the reasons hereinabove, we quash and set aside the impugned judgment and direct respondent No.3 to make reference of the dispute to the Labour Court-cum-Industrial Tribunal concerned at the earliest, however, not beyond 31.3.2019. The appeal is accordingly allowed and stands disposed of.