Himachal Pradesh High Court
Chain Singh S/O Sh. Kehru Ram vs State Of H.P. & Others ... on 3 September, 2015
Author: P. S. Rana
Bench: P. S. Rana
HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 2567/2009-E
Reserved on : 19th August 2015
.
Date of order: 3rd September 2015
Chain Singh s/o Sh. Kehru Ram .....Petitioner
Versus
State of H.P. & Others ...Non-petitioners
of
Coram:
The Hon'ble Mr. Justice P. S. Rana, Judge.
Whether approved for reporting? Yes1
rt
For the petitioner: Mr. Naresh Kaul, Advocate
For non-petitioners : Mr. M. L. Chauhan, Addl. A.G. with Mr. J.
S. Rana, Asstt. A.G.
P. S. Rana, J. (Oral)
ORDER Present petition is filed under Article 226 of Constitution of India against the order passed by learned Labour Commissioner Himachal Pradesh dated 13.10.2007 wherein case of petitioner was not sent to Labour Court-cum-Industrial Tribunal Himachal Pradesh for adjudication.
BRIEF FACTS OF THE CASE
2. It is pleaded that petitioner was engaged as complaint attendant on daily wages by I&PH Department Government of Himachal Pradesh in the month of January 1996. It is further pleaded that on dated 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes ::: Downloaded on - 15/04/2017 18:51:42 :::HCHP 2 30.11.2000 Department of Irrigation and Public Health terminated the services of petitioner. It is further pleaded that on dated 17.05.2001 petitioner challenged the termination order before H.P. State .
Administrative Tribunal but the case was withdrawn due to jurisdiction.
It is further pleaded that thereafter petitioner approached learned Labour-cum-Conciliation Officer through demand notice under Section 10 of Industrial Disputes Act 1947. It is further pleaded that non-
of petitioner No.2 namely Labour Commissioner Himachal Pradesh refused to refer the labour dispute of petitioner to learned Labour Court-cum-Industrial Tribunal Himachal Pradesh. It is further pleaded rt that in the year 2007 petitioner again represented to non-petitioner No.2 namely Labour Commissioner Himachal Pradesh to re-consider his case with further prayer to send the case to Labour Court-cum-
Industrial Tribunal Kangra at Dharamshala for disposal. It is further pleaded that w.e.f. 28.03.2008 to 16.06.2008 petitioner suffered due to Jaundice. It is further pleaded that non-petitioner No.2 namely Labour Commissioner Himachal Pradesh had referred the cases of the similarly situated workmen to Labour Court-cum-Industrial Tribunal Himachal Pradesh for adjudication under Industrial Disputes Act 1947.
Prayer for acceptance of civil writ petition sought.
3. Per contra response filed on behalf of non-petitioners No.1 & 2 pleaded therein that services of petitioner were dis-engaged in the year 2000 and petitioner raised the dispute in the year 2006 after a lapse of 4 years. It is further pleaded that writ petition be dismissed on the ground of delay and latches. It is further pleaded that petitioner was ::: Downloaded on - 15/04/2017 18:51:42 :::HCHP 3 paid all dues as provided under the provisions of Industrial Disputes Act 1947. It is further pleaded that petitioner had accepted the dues.
It is further pleaded that demand notice was served in the year 2006.
.
It is further pleaded that services of petitioner were dis-engaged due to short budget provisions and due to non-availability of work. It is further pleaded that services of petitioner were terminated after compliance of provisions of Section 25-F of Industrial Disputes Act of 1947 and strictly on the concept of 'last come first go'. It is further pleaded that compensation to the tune of Rs.4875/- was also paid to petitioner vide Cheque No.489936 dated 25.10.2000. Prayer for rt dismissal of civil writ petition sought.
4. Per contra separate response filed on behalf of non-petitioner No.3 pleaded therein that present civil writ petition is bad on account of delay and latches. It is further pleaded that the order was passed on dated 13.10.2007 by learned Labour Commissioner Himachal Pradesh and thereafter civil writ petition is filed on dated 14.07.2009 after two years and the same be dismissed on the ground of lapse. It is further pleaded that employment on the basis of daily wages cannot be claimed as a matter of right but it depends upon the availability of work as well as availability of funds. It is further pleaded that petitioner was not engaged as per R&P Rules. It is further pleaded that procedure was not followed. It is further pleaded that there was no regular vacancy against which petitioner was engaged. It is further pleaded that petitioner was engaged as complaint attendant on daily wages w.e.f. February 1996 and his services were dis-engaged w.e.f.
::: Downloaded on - 15/04/2017 18:51:42 :::HCHP 430.11.2000 alongwith 363 workers due to non-availability of work and non-availability of budgetary provision. It is further pleaded that services of petitioner were dis-engaged strictly as per provisions of .
Section 25-F of Industrial Disputes Act 1947 after giving proper compensation. Prayer for dismissal of civil writ petition sought.
5. Court heard learned Advocate appearing on behalf of petitioner and learned Additional Advocate General appearing on behalf of non-
of petitioners. Court also perused the entire records carefully.
6. Submission of learned Advocate appearing on behalf of petitioner that order of learned Labour Commissioner Himachal Pradesh dated rt 13.10.2007 (Annexure P-3) placed on record be quashed and non-
petitioner No.2 i.e. learned Labour Commissioner Himachal Pradesh be directed to refer the dispute to Labour Court-cum-Industrial Tribunal Dharamshala (H.P.) is accepted for the reasons hereinafter mentioned.
As per document Annexure R/3A placed on record issued by I&PH Department petitioner had worked (1) 240 days in the year 1996 (2) 357 days in the year 1997 (3) 322 days in the year 1998 (4) 363 days in the year 1999 (5) 244 days in the year 2000. Annexure R/3A placed on record remains un-rebutted. Document Annexure R/3A prepared by public servant in discharge of official duty and in relevant fact under Section 35 of Indian Evidence Act 1872. The observation of learned Labour Commissioner Himachal Pradesh that there is no dispute between the employee and employer and further observation of learned Labour Commissioner Himachal Pradesh that the alleged dispute is frivolous and vexatious and further observation of learned ::: Downloaded on - 15/04/2017 18:51:42 :::HCHP 5 Labour Commissioner Himachal Pradesh that services were terminated by the employer after giving proper notice and after payment of retrenchment compensation and on this ground there is no need to .
refer the dispute to Labour Court cannot be sustained. In the present case it is proved on record that petitioner had served in I&PH Department for 5 years w.e.f. 1996 to 2000 and it is also proved on record that in the year 1996 petitioner had worked for 240 days, in the of year 1997 petitioner had worked for 357 days, in the year 1998 petitioner had worked for 322 days, in the year 1999 petitioner had worked for 363 days and in the year 2000 petitioner had worked for rt 244 days. Court is of the opinion that present case is a fit case to be referred to Labour Court-cum-Industrial Tribunal Dharamshala (H.P.) for adjudication in the ends of justice. It is proved on record that learned Labour Commissioner Himachal Pradesh had referred the case of S/Sh. Santosh Kumar s/o Keshru Ram, Jeewan Singh s/o Duni Chand, Charan Singh s/o Raunki, Fozi s/o Narad and Karnail Singh s/o Duni Chand to Labour Court for adjudication who were similarly situated. Court is of the opinion that even on the concept of equality before law as mentioned under Article 14 of Constitution of India it is expedient in the ends of justice to refer the case of petitioner to Labour Court-cum-Industrial Tribunal Dharamshala (H.P.) for adjudication.
7. Submission of learned Additional Advocate General appearing on behalf of non-petitioners that present case be dismissed on the ground of delay and latches is rejected being devoid of any force for the ::: Downloaded on - 15/04/2017 18:51:42 :::HCHP 6 reasons hereinafter mentioned. It was held in case reported in (2014) 10 SCC 301 titled Raghubir Singh vs. General Manager Haryana Roadways Hissar that there is no limitation for reference to Labour .
Court under Section 10 of Industrial Disputes Act 1947. It was held that words 'at any time' mentioned in Section 10 of Industrial Disputes Act 1947 clearly mentioned that law of limitation would not be applicable qua proceedings of reference under Section 10 of Industrial of Disputes Act 1947. Also see (2015) 4 SCC 458 titled Jasmer Singh vs. State of Haryana and Another. Also see AIR 1987 Apex Court 1353 titled Collector Land Acquisition Anantnag and another vs. rt Mst. Katiji & Others.
8. Another submission of learned Additional Advocate General appearing on behalf of non-petitioners that services of petitioner were terminated after giving proper notice and after paying retrenchment compensation and on the ground civil writ petition be dismissed is also rejected being devoid of any force for the reasons hereinafter mentioned. Court is of the opinion that petitioner had worked in I&PH Department continuously for 5 years w.e.f. 1996 to 2000 and as per certificate issued by Executive Engineer Irrigation-cum-PH-Division Dalhousie petitioner had worked for 240 days in the years 1996, 1997, 1998, 1999 & 2000 continuously. It is held that it is expedient in the ends of justice that matter in dispute be referred to Labour Court for adjudication in accordance with law on the concept of justice, equity and good conscience.
::: Downloaded on - 15/04/2017 18:51:42 :::HCHP 79. In view of the above stated facts and the case law cited supra petition filed under Article 226 of Constitution of India is allowed and non-petitioner No.2 i.e. learned Labour Commissioner Himachal .
Pradesh is directed to refer the case of petitioner to Labour Court-
cum-Industrial Tribunal Dharamshala (H.P.) for adjudication as per Section 12(5) of Industrial Disputes Act 1947 within one month. No order as to costs. CWP No.2567/2009-E is disposed of. Pending of application(s) if any also disposed of September 3, 2015 (rana) rt (P. S. Rana), Judge.
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