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Himachal Pradesh High Court · body

2019 DIGILAW 1680 (HP)

Taru Ram v. State of H. P.

2019-11-08

JYOTSNA REWAL DUA

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JUDGMENT : Jyotsna Rewal Dua, J. Challenge in this petition is to order dated March 2012 (Annexure P-7), whereby, the Appropriate Government/Labour Commissioner, Himachal Pradesh, declined to refer the dispute to learned Labour Court-cum-Industrial Tribunal for adjudication. 2. Relevant facts may be noticed hereinafter:- 2(i) The petitioner was intermittently engaged as casual worker in Irrigation and Public Health Division, Mandi. The man days chart (Annexure R-1) appended along with reply filed by respondents No. 1 & 2, reflect that as a casual worker, he had worked for following period:- Sr.No. Year No. of days. 1 1987 81 days 2 1988 60 days. 3 1991 60 days. 4 1992 253 days. 5 1996 19 = days. 6 1997 137 days. 7 1998 73 days The above chart is a pointer to the fact that petitioner had not worked at all in the years 1989, 1990, 1993, 1994 & 1995. But for the year 1992, the petitioner never completed 240 days in the years during which he served with the respondent-Department. The breaks by no means are fictional breaks. There is no rebuttal on behalf of the petitioner to the man days chart. 2(ii) Petitioner apparently challenged his discontinuation from service by filing Original Application (M) No. 15/1999 in learned Erstwhile H.P. State Administrative Tribunal. This O.A. was dismissed on account of lack of jurisdiction on 26.02.2002 (Annexure R-III). 2(iii) Demand notice dated 21.12.2009 (Annexure P-4) was served by the petitioner on respondent No.2, alleging therein that:- he was engaged by respondent No.2 in 1987; illegal fictional breaks were given to him; he was terminated from service illegally on 01.08.1997 without following mandatory provisions of Industrial Disputes Act, 1947. The petitioner demanded his reinstatement along with consequential benefits. 2(iv) The Labour Commissioner, Himachal Pradesh while exercising the powers of Appropriate Government, examined the report sent by Labour -cum-Conciliation Officer, Mandi as well as reply filed to the demand notice by the respondent-Department and found that petitioner had raised the grievances after lapse of more than 11 years without justifying the delay. The Appropriate Government came to the conclusion that the dispute had not been kept alive by the petitioner and that it had faded away with efflux of time. Demand notice was thus found vexatious and devoid of merit. Accordingly, the Appropriate Government declined to refer the dispute to the Labour Court-cum-Industrial Tribunal for adjudication. The Appropriate Government came to the conclusion that the dispute had not been kept alive by the petitioner and that it had faded away with efflux of time. Demand notice was thus found vexatious and devoid of merit. Accordingly, the Appropriate Government declined to refer the dispute to the Labour Court-cum-Industrial Tribunal for adjudication. Aggrieved, instant petition has been preferred by the petitioner. 3. I have heard Mr. R.L. Chaudhary, learned counsel for the petitioner and Ms. Rameeta Rahi, learned Additional Advocate General for the respondents and with their assistance gone through the appended record. 4. Legal Position:- 4(i) Learned counsel for the petitioner at the very outset has referred and relied upon titled as Kuldeep Singh vs. General Manager, Instrument Design Development and Facilities Central & Anr., (2010) 14 SCC 176 , titled as Raghubir Singh vs. General Manager, Haryana Roadways, Hissar, (2010) 14 SCC 301 and judgment dated 04.09.2019, passed by a Division Bench of this Court in CWP No. 1382 of 2019, titled Jaswant Singh v. Himachal Pradesh State Electricity Board Ltd., to contend that:- respondent No.3 acted without jurisdiction in refusing to refer the dispute for adjudication to the learned Labour Court; The Government cannot take up the role of adjudicating authority while deciding the question as to whether a reference should be made or not; delay and laches by itself cannot be a ground for refusing to make a reference. Learned counsel thus argued that whenever an industrial dispute is raised, the Appropriate Government has no right to examine whether such dispute is stale, or whether it had become non-existent due to lapse of time and that dispute has to be mechanically referred to Labour Court for adjudication. 4(ii) Legal position settled in this regard by the Hon'ble Apex Court can be discerned from titled Prabhakar vs. Joint Director, Sericulture Department and another, (2015) 15 SCC 1 . In this case Hon'ble Apex Court after considering the law and precedents right from 1953 to titled as Raghubir Singh vs. General Manager, Haryana Roadways, Hissar, (2014) 10 SCC 301 deduced following:- "28. The aforesaid case law depicts the following: 28.1 The law of limitation does not apply to the proceedings under the Industrial Disputes Act, 1947. 28.2. The words, "at anytime" used in Section 10 would support that there is no period of limitation in making an order of reference. The aforesaid case law depicts the following: 28.1 The law of limitation does not apply to the proceedings under the Industrial Disputes Act, 1947. 28.2. The words, "at anytime" used in Section 10 would support that there is no period of limitation in making an order of reference. 28.3 At the same time, the appropriate Government has to keep in mind as to whether the dispute is still existing or live dispute and has not become a stale claim and if that is so, the reference can be refused. 28.4 Whether dispute is alive or it has become stale/non-existent at the time when the workman approaches the appropriate Government is an aspect which would depend upon the facts and circumstances of each case and there cannot be any hard-and-fast rule regarding the time for making the order of reference." A reference can be refused by the Appropriate Government in case it finds that there is no live dispute and that the claim has become stale. Whether at the time of approaching the Appropriate Government, the dispute had become stale or not has to be examined in the facts and circumstances of each case, therefore, to contend that the Appropriate Government has to mechanically refer every dispute to the Labour Court, will not be correct position. Appropriate Government has right to refuse to make reference in case the dispute has faded away with the efflux of time and has become stale. Hon'ble Apex Court summarized the entire position in para-42 of the judgment. Principle number 3 & 6 being relevant for the adjudication of present controversy are extracted hereinafter:- "42.3 Since there is no period of limitation, it gives right to the workman to raise the dispute even belatedly. However, if the dispute is raised after a long period, it has to be seen as to whether such a dispute still exist? Thus, notwithstanding the fact that law of limitation does not apply, it is to be shown by the workman that there is a dispute in praesenti. For this purpose, he has to demonstrate that even if considerable period has lapsed and there are laches and delays, such delay has not resulted into making the industrial dispute cease to exist. Thus, notwithstanding the fact that law of limitation does not apply, it is to be shown by the workman that there is a dispute in praesenti. For this purpose, he has to demonstrate that even if considerable period has lapsed and there are laches and delays, such delay has not resulted into making the industrial dispute cease to exist. Therefore, if the workman is able to give satisfactory explanation for these laches and delays and demonstrate that the circumstances disclose that issue is still alive, delay would not come in his way because of the reason that law of limitation has no application. On the other hand, if because of such delay dispute no longer remains alive and is to be treated as "dead', then it would not nonexistent dispute which cannot be referred. 42.6. In contrast, in those cases where there was no agitation by the workman against his termination and the dispute is raised belatedly and the delay or laches remain unexplained, it would be presumed that he had waived his right or acquiesced into the act of termination and, therefore, at the time when the dispute is raised it had become stale and was not an "existing dispute". In such circumstances, the appropriate Government can refuse to make reference. In the alternative, the Labour Court/ Industrial Court can also hold that there is no "industrial dispute" within the meaning of Section 2(k) of the Act and, therefore, no relief can be granted." Again in Para-44, it was held as under:- "44. To summarize, although there is no limitation prescribed under the Act for making a reference under Section 10(1) of the ID Act, yet it is for the "appropriate Government" to consider whether it is expedient or not to make the reference. The words "at any time" used in Section 10(1) do not admit of any limitation in making an order of reference and laws of limitation are not applicable to proceedings under the ID Act. The words "at any time" used in Section 10(1) do not admit of any limitation in making an order of reference and laws of limitation are not applicable to proceedings under the ID Act. However, the policy of industrial adjudication is that very stale claims should not be generally encouraged or allowed inasmuch as unless there is satisfactory explanation for delay as, apart from the obvious risk to industrial peace from the entertainment of claims after long lapse of time, it is necessary also to take into account the unsettling effect which is likely to have on the employers' financial arrangement and to avoid dislocation of an industry." This is also the ratio of a Full Bench decision of this Court in CWP No.1486/2007 titled Liaq Ram vs. State of H.P. 4(iii) In view of the binding judgment of Hon'ble Apex Court, the contention of learned counsel for the petitioner that Appropriate Government/ respondent No.3 had no jurisdiction or power to refuse to refer the dispute for adjudication to the learned Labour Court, is without any force. The judgment in CWP No. 1382/2019 is based upon discretion exercised by the Court in the facts of that case. 4(iv) In the light of the above law laid down by the Hon'ble Full Bench of this Court and by Hon'ble Apex Court, the refusal by the Appropriate Government to refer the dispute in the instant case to learned Labour Court may be examined. 4(iv)(a) As already observed, the man days chart showing intermittent working of the petitioner in 1987, 1988, 1991, 1992, 1996, 1997 and 1998 is not in dispute. But for the year 1992, the petitioner had not worked for 240 days, in any year, during which he worked. 4(iv)(b) No dispute whatsoever was raised by the petitioner after alleged termination of his service by respondent No.2. In his demand notice dated 21.12.2009, petitioner alleged illegal termination of his service w.e.f. 01.08.1997. There is nothing on record to suggest that the dispute, if any, was kept alive by the petitioner. The demand notice was sent by the petitioner on 21.12.2009, i.e. 11 years after termination of his service and 7 years after dismissal of his Original Application by the erstwhile H.P. State Administrative Tribunal. In the demand notice, self serving statement has been made that petitioner had completed 240 days in a calendar year before his illegal termination/retrenchment. The demand notice was sent by the petitioner on 21.12.2009, i.e. 11 years after termination of his service and 7 years after dismissal of his Original Application by the erstwhile H.P. State Administrative Tribunal. In the demand notice, self serving statement has been made that petitioner had completed 240 days in a calendar year before his illegal termination/retrenchment. The man days chart extracted earlier, point out an entirely different picture. But for the year 1992, petitioner never worked for 240 days in 1987, 1988, 1991, 1996, 1997 & 1998, i.e., years during which he worked. There is no rebuttal to this on part of petitioner. The breaks, by no means are fictional breaks. Petitioner had not completed 240 days in the preceding 12 calendar months from the date of termination of his services. The factual averments made in the reply more specifically in respect of man days chart of the petitioner extracted earlier have gone completely unrebutted. Relying upon Full Bench decision of this Court in Liaq Ram vs. State of H.P., refusal by learned Labour Commissioner to refer the dispute for adjudication to learned Labour Court has been upheld in judgment dated 30.04.2013, delivered in CWP No. 1705/2013 (Annexure R-II). 4(iv)(c) Another self-serving statement made in the demand notice is that the petitioner came to know in October, 2009 that his juniors had been engaged. Such self serving abstract grounds were considered by Hon'ble Apex Court in Nedungadi Bank Ltd. v. K.P. Madhavankutty, (2000) 2 SCC 455 holding thus:- "6. Law does not prescribe any time limit for the appropriate government to exercise its powers under Section 10 of the Act It is not that this power can be exercised at any point of time and to revive matters which had since been settled Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers in this case after lapse of about seven years of order dismissing the respondent from service. At the time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subject-matter of reference under Section 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. At the time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subject-matter of reference under Section 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made under Section 10 of the Act in the circumstances like the present one. In fact it could be said that there was no dispute pending at the time when the reference in question was made. The only ground advanced by the respondent was that two other employees who were dismissed from service were reinstated. Under what circumstances they were dismissed and subsequently reinstated is nowhere mentioned. Demand raised by the respondent for raising industrial dispute was ex facie bad and incompetent." 7. In the present appeal it is not the case of the respondent that the disciplinary proceedings, which resulted in his dismissal, were in any way illegal or there was even any irregularity. He availed his remedy of appeal under the rules governing his conditions of service. It could not said that in the circumstances an industrial dispute did arise or was even apprehended after a lapse of about seven years of the dismissal of the respondent. Whenever a workman raises some dispute it does not become an industrial dispute and the appropriate Government cannot in a mechanical fashion make the reference of the alleged dispute terming it as an industrial dispute The Central Government lacked power to make reference both on the ground of delay in invoking the power under Section 10 of the Act and there being no industrial dispute existing or even apprehended. The purpose of reference is to keep industrial peace in an establishment. The present reference is destructive to the industrial peace and defeats the very object and purpose of the Act. The Bank was justified in thus moving the High Court seeking an order to quash the reference in question." 4(iv)(d) Appropriate Government/Labour Commissioner, in the facts and circumstances of the case, thus, rightly held that the dispute raised by the petitioner was a non-alive issue and, therefore, did not refer the same to the learned Labour Court/Industrial Tribunal for adjudication. The Bank was justified in thus moving the High Court seeking an order to quash the reference in question." 4(iv)(d) Appropriate Government/Labour Commissioner, in the facts and circumstances of the case, thus, rightly held that the dispute raised by the petitioner was a non-alive issue and, therefore, did not refer the same to the learned Labour Court/Industrial Tribunal for adjudication. The Division Bench of this Court in CWP No. 441 of 2019, titled as Shri Raj Kumar vs. The Executive Engineer, HPPWD, decided on 09.04.2019, held as under:- "The Apex Court, in Prabhakar v. Sericulture. Deptt., (2015) 15 SCC 1 , while specifically dealing with the question of delay in raising the dispute by the workman under the Act ibid, has held that since there is no period of limitation prescribed under the Industrial Disputes Act, for raising dispute but if such a dispute is raised after a long period, it is to be seen whether such a dispute still exists. In the aforesaid background, Apex Court has held that notwithstanding the fact that the law of limitation does not apply, it is to be shown by the workman that there is a dispute in praesenti and, for that purpose, he has to demonstrate that even if considerable period has elapsed and there are laches and delays, such delay has not resulted into making such dispute seized to exist. Apex Court has further held that if because of such a delay, dispute no longer remains alive and is to be treated as 'dead', then it would be non-existent dispute, which cannot be referred. In the aforesaid judgment, Apex Court concluded that the words, "at any time", used in Section 10(1) do not admit of any limitation in making an order of reference and laws of limitation are not applicable to the proceedings under the Act ibid. However, the policy of industrial adjudication is that very stale claims should not be generally encouraged or allowed unless there is a satisfactory explanation for the delay." 5. In view of the above, I find no infirmity in the impugned order, hence, the petition is dismissed. Pending applications if any, shall also stand disposed of.