Himachal Pradesh High Court
Sh. Karvir vs State Of Himachal Pradesh And Others on 24 December, 2019
Bench: L. Narayana Swamy, Jyotsna Rewal Dua
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWP No.1091 of 2019
Decided on: 24.12.2019
.
Sh. Karvir ........Petitioner
Versus
State of Himachal Pradesh and others ........Respondents
_______________________________________________________________
Coram:
Hon'ble Mr. Justice L. Narayana Swamy, Chief Justice.
Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1
For the petitioner
r : Mr. Guna Nand Verma, Advocate.
For the respondents Mr. :
Ashok Sharma, Advocate
General with Mr. Adarsh K. Sharma
and Ms. Ritta Goswami, Additional
Advocates General.
_______________________________________________________________
Jyotsna Rewal Dua, Judge (Oral)
Labour Commissioner has declined to refer the dispute for adjudication to the learned Labour Court, hence, the instant writ petition has been preferred.
2. Facts:-
2(i). As per the petitioner, he was appointed on daily wage basis in the respondent-Public Works Department in January, 1995 and continuously worked for 240 days in each 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.::: Downloaded on - 27/12/2019 20:25:39 :::HCHP 2
calendar year till 2009, when his services were retrenched by the Department.
2(ii). In September, 2017, petitioner raised a demand .
notice before the Labour-cum-Conciliation Officer, Shimla.
Conciliation failed. The matter was, therefore, sent to the Labour Commissioner. Vide order dated 27.06.2018 (Annexure P-3), the Labour Commissioner refused to refer the matter to the learned Labour Court-cum-Industrial Tribunal for adjudication on the ground that the demand notice was raised by the petitioner after about nine years of his alleged illegal termination of the services.
2(iii). Petitioner thereafter preferred CWP No.1872 of 2018 before this Court, which was disposed of on 14.08.2018, permitting the petitioner to prefer a fresh representation, which was to be decided by the Labour Commissioner afresh after giving opportunity of hearing to the parties.
2(iv). In compliance to the judgment dated 14.08.2018, the Labour Commissioner after providing opportunity of hearing to both the parties, passed the order on 17.12.2018 (Annexure P-1), declining to refer the dispute ::: Downloaded on - 27/12/2019 20:25:39 :::HCHP 3 for adjudication to the learned Labour Court. It is against this order, the instant writ petition has been preferred.
3. We have heard learned counsel for the parties .
and gone through the record.
4. It is the case of the petitioner that he was engaged on daily wage basis in 1995 and he worked as such till 2009. According to the respondents, the petitioner had wilfully abandoned the job in 2006 and never reported for duties thereafter, whereas according to the petitioner, he was retrenched by the respondents in contravention to provisions of Industrial Disputes Act. Be that as it may, the fact remains that demand notice was raised by the petitioner on 12.01.2015, i.e. after about nine years of his alleged illegal termination of services. There is nothing on record to suggest that the dispute was kept alive by the petitioner over the long period of time. Learned counsel for the petitioner has made a reference to letter dated 06.02.2016, allegedly written by officials of the respondent-
Public Works Department to the petitioner, requiring his presence for incorporating some particulars in some eligibility certificate. It was for the petitioner to produce this document before the Labour Commissioner. In any case, this ::: Downloaded on - 27/12/2019 20:25:39 :::HCHP 4 document will not advance the case of the petitioner in respect of delay and laches in raising the demand notice in 2015.
.
5(i). The legal position in respect of referring the disputes by the Appropriate Government to the learned Labour Court for adjudication, has been settled by the Hon'ble Apex Court in (2015) 15 SCC 1, titled Prabhakar vs. Joint Director, Sericulture Department and another. In this case Hon'ble Apex Court after considering the law and precedents right from 1953 to 2014 (10) SCC 301, titled as Raghubir Singh vs. General Manager, Haryana Roadways, Hissar, 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.
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/nonexistent 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."::: Downloaded on - 27/12/2019 20:25:39 :::HCHP 5
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 the 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 numbers 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. 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 ::: Downloaded on - 27/12/2019 20:25:39 :::HCHP 6 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 non-existent 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. However, the policy of industrial adjudication is that very stale claims should not be generally encouraged or allowed inasmuch as unless thee 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."
5(ii) In fact, a Full Bench of this Court in CWP No. 1486 of 2007, titled as Liaq Ram vs. State of H.P., has ::: Downloaded on - 27/12/2019 20:25:39 :::HCHP 7 observed that the Appropriate Government is authorized to form the opinion whether a dispute exists or not.
Appropriate Government is not powerless and in case there .
is huge delay with no satisfactory explanation, then the Appropriate Government can refuse to make a reference on the ground that the claim is stale and the industrial dispute no longer exists. An industrial dispute can fade away and cease to exist because of long delay where the workman has taken no steps to keep the dispute alive. However, if the workman or the Union has kept the dispute alive even then if no action has been initiated, it will not mean that the dispute ceased to exist. Whether a dispute exists or not or has faded or got eclipsed is a question of fact which has to be decided in the facts and circumstances of each case. The Court further observed that the appropriate Government has to be subjectively satisfied while forming an opinion "as to whether a dispute exists or not". Such power has to be exercised reasonably and in a rational manner.
5(iii) In the instant case, as per the petitioner, his services were disengaged in the year 2009, though according to respondents, petitioner did not work after 2006 and abandoned the job at his own sweet will. However, the ::: Downloaded on - 27/12/2019 20:25:39 :::HCHP 8 demand notice was raised by him only on 12.01.2015. There is no justification or explanation given for this delay.
Petitioner did not challenge this action before any authority .
till demand notice dated 12.01.2015. There is no rebuttal to these aspects by the petitioner. Labour Commissioner was justified in not referring the dispute to the Learned Labour Court as the dispute, if any, had faded with the efflux of time. There was no live dispute to be referred to the learned Labour Court for adjudication. Decision in Daler Khan & Ors. vs. State of Himachal Pradesh & Ors. was in the facts of that case based upon the discretion exercised by the Hon'ble Court therein.
In view of the above, we find no infirmity in the impugned order. No interference is called for, hence, the writ petition is dismissed. Pending application(s), if any, shall also stand disposed of.
(L. Narayana Swamy)
Chief Justice
(Jyotsna Rewal Dua)
December 24, 2019 Judge
(Mukesh)
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To
The Registrar General,
.
High Court of HP,
Shimla-1.
Subject: Application for one day casual leave.
Sir,
With due respect, it is submitted that I intend some urgent chores.
r to to visit Solan on 30th December, 2019 in connection with It is, therefore, requested that one day's casual leave for 30th December, 2019 may kindly be sanctioned in my favour with permission to leave the station w.e.f. 29th December, 2019 (being Gazetted Holiday) till 31st December, 2019 (before office hours) and oblige.
Yours faithfully, (Mukesh Kumar) Judgment Writer H.P. High Court, Shimla-1, 27Th December, 2019.
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