Himachal Pradesh High Court
Bhag Singh vs State Of H.P. And Ors on 19 August, 2020
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 2205 of 2018.
Reserved on : 14th August, 2020.
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Decided on : 19th August, 2020.
Bhag Singh ...Petitioner.
Versus
State of H.P. and Ors. ....Respondents.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Petitioner: Mr. V.D. Khidtta, Advocate.
For Respondents No.1 & 2: Mr. Narender Guleria, Addl. A.G. For Respondent No.3 & 4: Mr. T. S. Chauhan, Advocate.
Per Sureshwar Thakur, Judge .
Through, the, extant writ petition, the writ petitioner seeks quashing of Annexure P-7, Annexure whereof, is, an order rendered by respondent No.2, wherethrough, he refused to make a reference, of, the apposite industrial dispute, vis-a-vis, the Labour Court-cum-Industrial Tribunal concerned.
1Whether reporters of the local papers may be allowed to see the judgment?
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2. The learned counsel appearing for the petitioner, in making an espousal before this Court, vis-a-vis, the afore impugned annexure, being stained with the vice(s) of illegality, has, depended, upon, a verdict rendered by this Court, upon, CWP No. 259 of 2010, titled as Hem Raj vs. State of H.P. & Ors along with connected therewith matters, wherein, this Court while being beset, with an order, of, the Labour Commissioner hence declining, to, make a reference, of, the apposite industrial dispute, to, the Industrial Tribunal concerned, rather had upheld the afore declinings, pointedly, upon, the afore declinings being covered by a decision, of, a Full Bench of this Court, rendered in Liaq Ram Ram vs. State of H.P., decided on 6.1.2011 .
Nonetheless, it had clarified that the afore verdict, would not, stand in the way of the petitioners, in theirs, canvassing qua juniors to them becoming retained by their employer. In addition, the learned counsel appearing for the petitioner has depended, upon, a verdict rendered by this Court in CWP No.6238 of 2014, titled as Ghanshyam Singh & Ors vs. H.P. ::: Downloaded on - 20/08/2020 20:21:33 :::HCHP ...3...
State Electricity Board Ltd and others, decided on 11.04.2016, .
wherein, this Court had granted permission, to, the writ petitioners to withdraw the writ petitions, with liberty reserved to avail the appropriate remedy, especially in view of the ratio set-forth, by the Hon'ble Apex Court, in, Raghubir Singh vs. 2014 AIR SCW 5515.
r to General Manager, Haryana Roadways, Hissar, reported in
3. The verdict relied, upon, by the learned counsel appearing for the petitioner, and, as embodied in Annexure P-2 does neitherforthrightly nor with aplomb hence sustain, the espousal made before this Court, by him, qua therein, an inflexible mandate becoming pronounced, vis-a-vis, the vice(s) of delay, and, latches rather not comprising any justifiable parameter(s), vis-a-vis, the Labour Commissioner concerned, in his, refusing to thereons, make apposite reference(s), to, the Labour Court-cum-Industrial Tribunal concerned.
4. However, the learned counsel appearing for the petitioner, has, with utmost vehemence hence made a fervest ::: Downloaded on - 20/08/2020 20:21:33 :::HCHP ...4...
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address before this Court, that, the permission granted by this Court to the petitioner, in the verdict embodied, in, Annexure P-
5, does facilitate his afore address, as, the verdict of the Hon'ble Apex Court, as becomes encapsulated, therein, rather completely barring the Labour Commissioner, to, on the ground of delay and latches, to, hence decline, to, make a reference, of, any industrial dispute, to the Labour Court-cum-Industrial Tribunal concerned, for the latter hence meteing an adjudication thereon(s).
5. Consequently, the legal conundrum, as, beset before this Court, is anchored, upon, (i) whether the verdict rendered by the Full Bench of this Court in Liaq Ram vs State of H.P., decided, on, 6.1.2011, hence, encapsulating the guiding principles or the apt ratio decidendi, hence appertaining to the Labour Commissioner concerned, becoming bestowed with any valid empowerment to, on the ground of delay, and, latches, hence decline to make reference, of, an industrial dispute, to, the Labour Court-cum-Industrial Tribunal concerned, (ii) or ::: Downloaded on - 20/08/2020 20:21:33 :::HCHP ...5...
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whether the verdict of the Hon'ble Apex Court rendered in case titled, as, Raghuvir Singh vs. General Manager, Haryana Roadways, Hissar, reported in 2014, AIR SCW 5515 , over turning the afore verdict, it becoming subsequently pronounced, or in other words, it comprising the apposite ratio decidendi, vis-
a-vis, the afore facet.
6. to For meteing an adjudication thereon, it is imperative, to, bear in mind, also the verdict rendered by this Court in case titled as Municipal Council Paonta Sahib vs. State of H.P. & Ors., reported in 2002(2) Cur. L. J. (H.P.) 242 , (i) wherein this Court had relied, upon, a decision rendered by a three Hon'ble Judes of the Hon'ble Apex Court, in, case titled as National Engineering Industries Ltd. vs. State of Rajasthan & Ors, reported in 2000 (1) SCC 371, verdict whereof become followed in a verdict pronounced in case titled as Nedungadi Bank Ltd. vs. K.P. Madhavankutty & Ors, reported in 2000(2) SCC 455. The verdict rendered by the three Hon'ble Judges, of, the Hon'ble Apex Court in National Engineering Industries Ltd., ::: Downloaded on - 20/08/2020 20:21:33 :::HCHP ...6...
case (supra) (a) makes visible communication qua, upon, .
fading(s) or eclipsing(s) of an industrial dispute or in other words, its lack of existence, at the relevant time, rather not clothing the appropriate government hence with any empowerment to qua therewith, make any valid reference, to, the Labour Court-cum-Industrial Tribunal concerned. Tritely the Hon'ble Apex has emphasised, upon, the existence of an industrial dispute, imperatively, at the relevant stage, for hence, the appropriate government, therethrough(s) becoming empowered to refer it, to the Labour Court-cum- Industrial Tribunal concerned.
7. The learned counsel appearing for the petitioner, has not placed before this Court any citation or any ruling, hence, rendered by the Hon'ble Apex Court, and, carrying therein any mandate or ruling rather contra to the verdict rendered, by, the three Hon'ble Judges, of, the Hon'ble Apex Court, in National Engineering Industries Ltd., case (supra), reiteratedly, hence, the afore verdict rendered in National Engineering's case (supra), ::: Downloaded on - 20/08/2020 20:21:33 :::HCHP ...7...
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remains intact, and, also acquires concomitant conclusive, and, binding effect.
8. Nowat, the verdict of the Hon'ble Apex Court, rendered in case titled, as, Raghubir Singh vs. General Manager, Haryana Roadways, Hissar, reported in 2014 AIR SCW 5515, has to be juxtaposed, with the verdict rendered by the Hon'ble Three Judges of the Hon'ble Apex Court, in case titled National Engineering Industries Ltd. vs. State of Rajasthan & Ors, reported in 2000 (1) SCC 371. At the outset, given the inter se higher or larger numerical strength or composition, of, the Hon'ble Judges, of, the Hon'ble Apex Court, hence, pronouncing a verdict in National Engineering Industries Ltd. vs. State of Rajasthan & Ors, reported in 2000 (1) SCC 371, vis-a-vis, the composition of the Hon'ble Two Judges' Bench, pronouncing a verdict, in, Raghubir Singh's case (supra), reported in 2014 AIR SCW 5515, (I) per se thereupon, an inference becomes fostered qua the verdict rendered by the Hon'ble Three Judges of the Hon'ble Apex Court, in National ::: Downloaded on - 20/08/2020 20:21:33 :::HCHP ...8...
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Engineering Industries Ltd.'s case (supra), rather encapsulating therein the afore apposite ratio decidendi. As a corollary thereof, the existence of an industrial dispute rather at the relevant time, is, the apt parameter, hence, for bestowing an empowerment, in, the appropriate government, for, making a valid reference of an industrial dispute, to, the Labour Court-
cum-Industrial Tribunal concerned. However, even if there are departures, in Raghubir Singh's case (supra), reported in 2014 AIR SCW 5515 hence by the afore subsequent Bench of the Hon'ble Apex Court, rather holding a lesser bench strength, of, the Hon'ble Judges of the Hon'ble Apex Court, than, the one pronouncing, a, verdict in National Engineering Industries' case (supra), (ii) yet, the afore departures, from, the earlier thereto verdict pronounced, by Hon'ble Three Judges' Bench of the Hon'ble Apex Court, in, National Engineering Industries's case (supra), reported in 2000(1) SCC 371, may not carry the apt vigour, (iii) unless they become vindicated by a larger Bench of the Hon'ble Apex Court, than, the one hence rendering a verdict, ::: Downloaded on - 20/08/2020 20:21:33 :::HCHP ...9...
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in, National Engineering Industries's case (supra), nor they comprise the apt reckonable ratio decidendi, for, the apposite purpose, (iv) emphasisingly the verdict rendered by the Hon'ble Apex Court in National Engineering Industries's case (supra), reported in 2000(1) SCC 371, became minimally distinguished, in, the latter verdict hence rendered in Raghubir Singh's case (supra), reported in 2014 AIR SCW 5515, (v) AND, the apt distinguishing para meter as set forth therein, and, as pointedly prevalent thereat, rather visibly is not in existence hereat.
Thereupon, viewing from the afore angle, hence, appertaining to the verdict rendered by the Hon'ble Apex Court in Raghubir's case (supra), reported in 2014 AIR SCW 5515, rather making departure(s), from, the earlier verdict rendered, by the Hon'ble three Judges, of, the Hon'ble Apex Court, in, case titled as National Engineering Industries ltd. vs. State of Rajasthan & Ors, reported in 2000(1) SCC 371, (vi) pointedly only upon, the prevalent therein apposite factual matrix, rather hence distinguishable, from, the prevailing factual scenario, in, the ::: Downloaded on - 20/08/2020 20:21:33 :::HCHP ...10...
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earlier thereto verdict (supra), (vii) thereupon, it is also imperative to state that in Raghubir Singh's case (supra), hence, the Hon'ble Apex Court had proceeded to reverse the verdict, of, the High Court(s), hence, affirming the declinings, of, makings, of, a reference, of, the Industrial dispute, by the Appropriate Government, to the Industrial Tribunal concerned, reiteratedly pointedly upon the uncontroverted stark fact, as, borne therein, and, appertaining to their existing, an assurance meted by the employer, to the workman concerned, qua the former, upon, the workman becoming acquitted, by, the criminal court of competent jurisdiction, (viii) thereupon, his being reinstated, in, service. Secondarily, the stark distinguishable factual matrix borne in Raghubir Singh's case (supra), hence from the earlier thereto verdict (supra) and, singularly appertaining or existing therewithin, (a) is encapsulated in the trite factum, that once the appropriate government proceeds, to, make exercise(s) of power, to, make a reference, of, an industrial dispute, to the Labour Court-cum-Industrial Tribunal concerned, (b) thereupon, ::: Downloaded on - 20/08/2020 20:21:33 :::HCHP ...11...
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the latter not becoming validly enabled to, only, on an issue appertaining to delay, and, latches rather dismiss the reference, dehors its meteing any decision, on, the merits of the industrial dispute, as becomes transmitted to it, for adjudication, by, the appropriate government. It appears that the making, of, the apposite reference by the appropriate government, vis-a-vis, the Labour Court-cum-Industrial Tribunal concerned, even if, it is (a) purportedly time barred reference, and, even if, the provisions, of, the Limitation Act, omit to, prescribe any period, of, limitation, vis-a-vis, the making, of, apposite references by the Appropriate government, to, the Industrial Tribunal concerned, thereupon(s), rather subsuming all the vices, of, the purported delay(s), and, latch(es), hence, gripping the referred thereto hence industrial dispute, (b) and, also hence enjoining the Labour Court, to, rather than render a decision adversarial, vis-a-
vis, the workman, rather on vices, of, delay, and, latches, gripping the apposite reference, to hence, make a decision, upon, the merits of the referred industrial dispute. The afore ::: Downloaded on - 20/08/2020 20:21:33 :::HCHP ...12...
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starkingly visible prevailing factual matrix, in, Raghubir Singh's case (supra), reported in 2014 AIR SCW 5515, hence, postulates or portrays, a, post reference stage/scenario, and, obviously, does not contemplate, a pre reference stage/scenario, as does prevail hereat, (c) thereupon, the afore verdict is straightway distinguishable, from, factual matrix prevailing herein, besides it does not carry the apposite ratio decidendi, vis-a-vis, the exercisings, of, jurisdiction(s) by the Appropriate Government, at the, pre reference stage, nor does bar the Appropriate Government, to, mete deference, to, the verdicts supra rendered in National Engineerings case (supra), and, in Nedungadi Bank Ltd.'s case supra. .
9. Be that as it may, even the deepest, and, circumspect reading of the paragraph No.11, as, borne in Raghubir Singh vs. General Manager, Haryana Roadways, Hissar, reported in 2014 AIR SCW 5515, paragraph whereof stands extracted hereinafter:-
11. In our view of the facts and circumstances of the case on hand, the reference was made by the State Government to the Labour Court for adjudication of the existing industrial dispute; it has erroneously held it to be barred by limitation.::: Downloaded on - 20/08/2020 20:21:33 :::HCHP
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This award was further erroneously affirmed by the High .
Court, which is bad in law and therefore the same is liable to be set aside. According to Section 10(1) of the Act, the appropriate government 'at any time' may refer an industrial dispute for adjudication, if it is of the opinion that such an industrial dispute between the workman & the employer exists or is apprehended. Section 10(1) reads as follos:
"10(1)[Where the appropriate government is of opinion that any industrial dispute exists or is apprehended, it may at any time], by order in writing-
(a) refer the dispute to a Board for promoting a settlement thereof; or
(b) refer any matter appearing to be connected with or relevant to the dispute to a court for inquiry; or
(c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or
(d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute , whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication." Thus, it is necessary for us to carefully observe the phrase 'at any time' used in this section. Therefore, there arises an issue whether the question of limitation is applicable to the reference of the existing industrial dispute that would be made by the State Government either to the Labour Court or Industrial Tribunal for adjudication at the instance of the appellant. This Court in ::: Downloaded on - 20/08/2020 20:21:33 :::HCHP ...14...
Avon Services Production Agencies (Pvt.) Ltd. v. Industrial .
Tribunal, Haryana & Ors.[2], after interpreting the phrases 'at any time' rendered in Section 10(1) of the Act, held thus:-
"7.......Section 10(1) enables the appropriate Government to make reference of an industrial dispute which exists or is apprehended at any time to one of the authorities mentioned in the section. How and in what manner or through what machinery the Government is apprised of the dispute is hardly relevant.......The only requirement for taking action under Section 10(1) is that there must be some material before the Government which will enable the appropriate Government to form an opinion that an industrial dispute exists or is apprehended. This is an administrative function of the Government as the expression is understood in contradistinction to judicial or quasi-judicial function..."
Therefore, it is implicit from the above case that in case of delay in raising the industrial dispute, the appropriate government under Section 10(1) of the Act has the power, to make reference to either Labour Court or Industrial Tribunal, if it is of the opinion that any industrial dispute exists or is apprehended at any time, between the workman and the employer. Further, in Sapan Kumar Pandit v. U.P. State Electricity Board & Ors.[3], it is held by this Court as under:-
"15.There are cases in which lapse of time had caused fading or even eclipse of the dispute. If nobody had kept the dispute alive during the long interval it is reasonably possible to conclude in a particular case that the dispute ceased to exist after some time. But when the dispute remained alive though not galvanized by the workmen or the Union on account of ::: Downloaded on - 20/08/2020 20:21:33 :::HCHP ...15...
other justified reasons it does not cause the dispute to wane .
into total eclipse. In this case when the Government have chosen to refer the dispute for adjudication under Section4K of the U.P. Act the High Court should not have quashed the reference merely on the ground of delay. Of course, the long delay for making the adjudication could be considered by the adjudicating authorities while moulding its reliefs. That is a different matter altogether. The High Court has obviously gone wrong in axing down the order of reference made by the Government for adjudication. Let the adjudicatory process reach its legal culmination." (Emphasis laid by the court) does make candid underlining, vis-a-vis, the Hon'ble Two Judges' Bench, hence rendering a decision in Raghubir Singh's case (supra), rather accepting, the, earlier thereto verdict pronounced by the Hon'ble Apex Court, and, appertaining, to, the necessity of existence of an industrial dispute inter se the employer, and, the workman, hence, at the relevant time, or at the pre reference stage. In aftermath, the afore emphatic underlinings, as, squarely appertain to the afore hereat legal conundrum, and, also appertain, vis-a-vis, the hereat legal necessity, of, existence(s) of an industrial dispute, at, the pre reference stage, scenario/stage, rather is, the one prevailing hereat, (a) ::: Downloaded on - 20/08/2020 20:21:33 :::HCHP ...16...
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thereupons, concomitantly, delays, and, latches, in the making, of, claims for relief significantly, at, the pre-reference stage, hence would become denuded, vis-a-vis, their vigour, only upon, evidence surging forth qua the employer assuring the employee to reinstate him, in, employment, (b) and, upon, the employee/workman bringingforth tangible exemplificatory qua workmen junior to him still serving, or that r material retrenched junior workmen being re-employed, hence, subsequent to the apposite retrenchment occurring or happening, (c) whereupon, the, principle of an industrial dispute being alive or in existence would become satisfied, and, also would not attract the bars, of delays, and, latches at the pre reference stage, raised thereagainst, and, as, become expostulated in National Engineering Industries Ltd.'s case (supra) and in Nedungadi Bank Ltd.'s case (supra). Imperatively hence, all, the, afore facilitative parameters, to the, petitioner, are unavailable qua him nor are proven by him.
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10. The upshot of the above discussion, is, that the reliance as placed by the learned counsel appearing for the petitioner, upon, a verdict of the Hon'ble Apex Court, rendered in Raghubir Singh vs. General Manager, Haryana Roadways, Hissar, reported in 2014 AIR SCW 5515, pales into insignificance or it becomes eclipsed, and, further sequel thereof, is that there is no merit in the extant petition. Consequently, the impugned order is affirmed, and, the extant petition is dismissed. All pending applications also stand disposed of.
(Sureshwar Thakur) Judge 19th August, 2020.
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