Himachal Pradesh High Court
Hem Chand vs The State Of Hp And Ors on 23 December, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 897 of 2011
Date of Decision: 23.12.2016
_______________________________________________________
.
[
Hem Chand ......Petitioner.
Versus
The State of HP and Ors. ....Respondents.
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes
of
For the petitioner: Mr. Sandeep Chauhan, Advocate vice counsel.
For the respondents: Mr. P.M. Negi, Additional Advocate General
with Mr. Ramesh Thakur, Deputy Advocate
rt General.
Sandeep Sharma, J. (Oral)
By way of present petition, petitioner has prayed for following main reliefs:-
"(i) That the letter dated 1.11.2010 (Annexure P-8) issued by the respondent No.2 may kindly be quashed and set aside in view of the recommendations made by the Labour Officer, Mandi, in Annexure P-8 and he may be directed to refer the industrial dispute to Hon'ble Labour Court, Dharamshala for necessary adjudication and oblige."
2. "Key facts" as emerged from the record are that the petitioner, who was engaged as a daily wager Beldar by respondent No.3 in November, 1987, continued to work as such till 20.1.1990, whereafter, he was promoted to the post of Assistant Driller on higher rate of wages. It also emerge from the record that the petitioner continued to work as Assistant Driller upto 9.2.1994 and thereafter, he Whether reporters of the Local papers are allowed to see the judgment? yes ::: Downloaded on - 15/04/2017 21:48:22 :::HCHP -2- was made to work at IPH Sub Division Mandi under the control of IPH Division Mandi up to 14.3.1996. Since respondent No. 3 refrained from .
issuing musteroll to the petitioner in the year, 1996-97, he approached the HP State Administrative Tribunal, by way of OA (M) No.170/1996.
The learned Tribunal vide order dated 25.7.1997 directed respondent No.3 to accept the joining report of the petitioner and deploy him in of the Sub Division. Sequel to aforesaid order having been passed by the learned Tribunal, the respondent was issued musteroll No. 668 in August, 1997. Thereafter, petitioner worked continuously in IPH work-
rt shop Baggi, upto 16.3.1990.
3. The petitioner being aggrieved with the non-issuance of musteroll w.e.f. 15.3.1996 to 30.7.1997 i.e. for 16 months raised a demand under section 10 of the Industrial Disputes Act (In short "the Act"). Pursuant to aforesaid demand notice, labour Officer, Mandi held conciliation proceedings and submitted its finding/reports under Section 12(4) of the Act, recommending that case of illegal cessation of work may be referred to labour Court for adjudication because it is not open for the govt. to go into the merits of the dispute concern as per conditions contained under Section 10 of the Act. However, fact remains that respondent No.2 i.e. The Labour Commissioner, vide communication dated 19.7.2010 (Annexure P-7) ignored the aforesaid recommendation having been made by Labour Officer, Mandi and ::: Downloaded on - 15/04/2017 21:48:22 :::HCHP -3- advised the present petitioner to raise his dispute through some workers Union of IPH department or through group of persons as .
required under Section 12 (4) of the Act. Vide aforesaid communication; the learned Commissioner further observed that dispute under reference cannot be referred to Labour Court of Himachal Pradesh for adjudication in terms of provisions contained in of the Act for adjudication. It would be profitable to reproduce herein below contents of letter dated 19.7.2010 ( AnnexureP-7) as under:-
rt "No.:11-23/84(Lab)ID/09/Mandi
Govt. of Himachal Pradesh.
Department of Labour & Employment.
Dated, Shimla-171001 the 19th July, 2010
From
The Labour Commissioner,
Himachal Pradesh.
To
Sh. Hem Chnad, S/o Sh. Sawnu Ram,
Village & Post Office Kummi,
Tehsil Sadar, Distt. Mandi, H.P.
Subject: Demand Notice and report under Section 12 (4) of
the Industrial Disputes Act, 1947.
Sir,
This is with reference to your demand notice and report under Section 12 (4) of the Industrial Disputes Act, 1947 received from Labour Officer-cum-Conciliation Officer, Mandi Distt. Mandi in respect of your dispute with The Executive Engineer, IPH Division Baggi, Distt. Mandi, H.P. After going through your demand notice and report of Labour Officer-cum-Conciliation Officer Mandi, it is found that you have raised the dispute regarding your regularization which is covered under section 2-K of ibid Act. Therefore, you are advised to raise your dispute through some workers union of your Department or through group of persons as required under section 2-K of Industrial Disputes Act, 1947.
Accordingly, you are informed as per the provisions of section 12(5) of the Industrial Disputes Act, 1947 that your dispute under reference in view of above mentioned reasons is not being referred to Hon'ble Labour Court of H.P. for adjudication.
Yours faithfully, Labour Commissioner Himachal Pradesh."
::: Downloaded on - 15/04/2017 21:48:22 :::HCHP -4-4. Close scrutiny of aforesaid communication issued by the Labour Commissioner clearly suggests that Labour Commissioner was .
convinced and satisfied that petitioner has raised dispute regarding regularization under Section 2-K of the Act after perusing the report of Labour Officer cum Conciliation Officer. However, despite aforesaid, prayer of the petitioner for referring the matter to Labour Court was of declined by the Labour Commissioner and petitioner was advised to raise his dispute through some workers union of department or through group of persons as required under Section 2-K of the Act.
rt
5. Shri. Sandeep Chauhan, learned vice counsel representing the petitioner vehemently argued that aforesaid finding/reason assigned by the Labour Commissioner while rejecting the prayer having been made by the petitioner, is not sustainable in the eye of law in terms of communication dated 13.9.2010 sent by the Labour Officer, Mandi because vide aforesaid communication, it was conveyed to Labour Commissioner by the Labour Officer, Mandi, that dispute is covered under Section 2-K of the Act and same has been raised through workers Union. In the aforesaid background, counsel representing the petitioner prayed that impugned order (Annexure P-
7), may be quashed and set-aside and respondents may be directed to refer the dispute as raised by the petitioner to the Labour Court for adjudication in light of report submitted by the Labour Officer, Mandi.
::: Downloaded on - 15/04/2017 21:48:22 :::HCHP -5-6. Shri Ramesh Thakur, learned Deputy Advocate General while inviting attention of this Court to order dated 19.7.2010 passed .
by the Labour Commissioner (Annexure P-7) contented that there is no illegality and infirmity in the same because, dispute was not raised through some workers union of the Department. Mr. Thakur further contended that appropriate Govt. examined the report so sent by the of Labour Officer cum Conciliation Officer, Mandi and accordingly, petitioner was advised to raise his dispute through some workers Union of IPH department or through group of persons as required under rt Section 2-K of the Act and as such, there is no scope of interference by this Court because there is no illegality and infirmity in the order having been passed by the Labour Commissioner.
7. It would be proper to reproduce following paras of reply having been filed by the respondents No. 1 and 2.
"1. That Shri Hem Chand S/o Sh. Sawnu Ram (petitioner) had raised demand notice dated-31.8.2008 before the Executive Engineer, I&PH Division, Baggi, Tehsil Sadar, Distt. Mandi, H.P. (Respondent No.-3) and copy of the same was endorsed to Labour-cum-Conciliation Officer, Mandi, wherein he had alleged that he was working on daily wage basis as beldar since 11/1987 up to 20.1.1990. Thereafter, he was promoted to the post of Assistant Driller w.e.f. 21.1.1990 and continuously worked up to 09.2.1994 in IPH workshop at Baggi and then we was sent on deputation to IPH Sub Division, Mandi and worked up to 16.6.1994. Then he was deployed at IPH Sub Division, Sarkaghat where he performed the duty on AIR Compressor up to 21.6.1995. Thereafter, he was again sent to IPH Sub Division, Mandi where he continuously worked up to 14.3.1996. Thereafter, in August, 1997 he was issued muster rolls by the Executive Engineer, IPH Division, Baggi and thereafter he continuously worked up to 16.3.1999. He has further stated in the demand notice that due to the non providing of work from 15.3.1996 to 30.7.1997 he could not be considered for regularization and against which he had approached Himachal Pradesh State Administrative Tribunal vide OA No. 539/2007 but the same was withdrawn to file the case in appropriate forum. He ::: Downloaded on - 15/04/2017 21:48:22 :::HCHP -6- had requested to regularize period of his daily wage service w.e.f. 15.3.1996 to 30.7.1997.
2. During the course of conciliation proceedings employer i.e. Respondent No.3 submitted written reply dated-22.10.2008 to the above mentioned Demand Notice of petitioner according to which petitioner had worked as beldar w.e.f. 09.11.1987 to 30.9.1990, and as .
Assistant Driller w.e.f. 01.10.1990 to 31.7.1991, again as beldar w.e.f.
01.8.1991 to 16.01.1993. That he was not sent on deputation basis by any competent authority but he left the job from IPH Division, Baggi during 1994 and worked in other divisions i.e. IPH Division, Sarkaghat & IPH Division Kamand, Distt. Mandi at his own will and worked for 365 days in the year, 1994, 361 days in 1995 and 74 days in the year 1996 in other divisions as per reply of respondent No.3. It is further submitted that applicant did not perform any duty from 14.3.1996 to 05.8.1996. He attended his duty in IPH Sub Division No.-II Baggi during 08/1997 in terms of the orders dated-25.7.1997 passed by the Hon'ble Himachal Pradesh State Administrative Tribunal in OA(M) 170/96.
of Employer i.e. Respondent No.3 further stated that applicant failed to report for duty from 14.3.1996 to 05.8.1997, therefore, he is not entitled for any seniority for the said period. The Labour-cum-Conciliation Officer, Mandi, conducted various conciliation meetings between the parties to settle the issues of dispute amicably, but dispute could not rt be settled by way of conciliation. Hence, Labour-cum-Conciliation Officer, Mandi had sent report under sub-Section (4) of Section 12 of the Industrial Disputes Act, 1947 to the Appropriate Government i.e. Labour Commissioner, H.P. (Respondent No.-2).
3.The Replying Respondent, being Appropriate Government examined the report so sent by the Labour-cum-Conciliation Officer, Mandi and the reply filed by the respondent Department during the course of conciliation and found that petitioner had raised the dispute regarding his regularization which is covered under section 3-K of the Industrial Disputes Act, 1947. Therefore, he was advised to raise his dispute through some workers union of his Department or through group of person as required under section 2-K of the Industrial Disputes Act, 1947 vide letter dated- 19.7.2010 (P-7) and accordingly the dispute of the Petitioner was declined as per section 12(5) of the Act ibid."
8. I have heard the learned counsel for the parties and carefully gone through the record.
9. Perusal of reply referred above, suggests that during the process of conciliation, petitioner was found to have dispute regarding regularization under Section 2-K of the Act and as such, he was advised to raise his dispute through some workers union of his department or through group of persons as envisaged under Section 2-K of the Act. Perusal of Annexure P-8 i.e. communication dated ::: Downloaded on - 15/04/2017 21:48:22 :::HCHP -7- 13.9.2010 reproduced herein above, clearly suggests that dispute in question qua the petitioner was raised by group of workmen and .
General Secretary of HP Jal KARAMCHARI SANGH IPH SUB DIVISION, BAGGI, wherein Union categorically requested/demanded that the period of cessation of work be counted towards the seniority of the petitioner and he be regularized after completion of ten years or eight of years from1.1.1998 along with consequential benefits.
10. This Court after carefully examining Annexure P-8 i.e. letter dated 13.9.2010, sent by Labour Officer Mandi, has no hesitation to rt conclude that order dated 19.7.2010 passed by Labour Commissioner rejecting the prayer of the petitioner to refer the matter to the Labour Court, is not based upon the report submitted by the Labour Officer Mandi, who in his/her communication dated 13.9.2010 has categorically stated that aggrieved workman (petitioner) has raised the dispute under Section 2-K of the aforesaid Act, through group of workmen and in this regard, he also annexed demand notice issued by the petitioner. Perusal of Annexure P-8 i.e. communication dated 13.9.2010, clearly suggests that detailed report was submitted by the Labour Officer, Mandi vide letter dated Lo.MZ/id Rep/-221/08-63 dated 8.4.2010, recommending therein that dispute raised by the petitioner may be referred to Labour Court for adjudication. Contents of the aforesaid letter further suggests that respondent failed to issue ::: Downloaded on - 15/04/2017 21:48:22 :::HCHP -8- musteroll in favour of the petitioner in the year, 1996-97, whereas he had actually worked for 74 days and143 days respectively but due to .
cessation of work, he could not complete 240 days during the abovementioned years. It also emerges from aforesaid communication that demand was raised through group of workmen and as such, impugned order dated 19.7.2010 (Annexure P-7) issued of by the Labour Commissioner does not appear to be based upon the report having been filed by the Labour Officer, Mandi, who in no uncertain terms recommended the case of the petitioner to be rt referred to the Labour Court for adjudication. Perusal of Annexure P-8, communication dated 13.9.2010, clearly proves on record that dispute in question qua the petitioner was raised by group of workmen and General Secretary of HP Jal Karamchari Sangh IPH Sub Division, Baggi, wherein prayer was made that the period of cessation of work be counted towards the seniority of the petitioner and he be regularized after completion of ten years or eight years from1.1.1998 along with consequential benefits
11. Consequently, this Court after carefully perusing the aforesaid communication having been sent by the Labour Officer Mandi (Annexure P-8), is of the view that order dated 19.7.2010, issued by Labour Commissioner Mandi, purportedly, on the basis of report of Labour Officer, Mandi, is not sustainable as same is not based upon ::: Downloaded on - 15/04/2017 21:48:22 :::HCHP -9- the report submitted by the Labour Officer. It also emerges from the record that pursuant to issuance of aforesaid letter Annexure P-8, by .
the Labour Officer, Mandi, petitioner approached Labour Commissioner, who vide communication dated October, 2010, rejected the prayer having been made by the petitioner reiterating that documents furnished by the Labour Officer, Mandi, have already of been considered while passing order dated 19.7.2010 and as such, his prayer for referring the matter to the Labour Court cannot be considered. rt
12. In the context of all that has been discussed herein above, this Court sees substantial force in the arguments having been made by the counsel representing the petitioner that learned commissioner could not have passed order dated 19.7.2010 (AnnexureP-7) in the wake of report submitted by Labour Officer, Mandi vide letter dated 8.4.2010 wherein he had specifically recommended for referring the dispute to the Labour Court for adjudication.
13. Accordingly, present petition is allowed and impugned order dated 19.7.2010, passed by the Learned Commissioner is quashed and set aside and Labour Commissioner HP is directed to consider the matter afresh for referring the dispute raised by the workman-petitioner to the labour Court in light of ::: Downloaded on - 15/04/2017 21:48:22 :::HCHP
- 10 -
recommendation/detailed report submitted by the Labour Officer Mandi vide communication dated 8.4.2010 as finds mention in .
communication dated 13.9.2010 sent by Labour Officer, Mandi (Annexure P-8). Labour Commissioner on the basis of report submitted by Labour Officer, Mandi, may refer the dispute to the Labour Court for adjudication forthwith.
of
23rd December, 2016 ( Sandeep Sharma ),
manjit Judge.
rt
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