Himachal Pradesh High Court
Amin Chand vs State Of H.P. And Ors on 19 November, 2015
Bench: Chief Justice, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 4382 of 2015.
Decided on: 19.11.2015
_________________________________________________________
.
Amin Chand ...Petitioner.
Versus
State of H.P. and Ors. ...Respondents.
Coram:
of
The Hon'ble Mr.Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
rt
Whether approved for reporting?1 Yes.
_______________________________________________________
For the petitioner: Mr.Neel Kamal Sood, Advocate.
For the respondents: Mr.Romesh Verma and Mr.Anup
Rattan, Additional Advocate Generals
with Mr.J.K.Verma, Dy. A.G.
---------------------------------------------------
Sureshwar Thakur, Judge. (Oral):
1. The petitioner stands aggrieved by Annexure P-1 whereby the Joint Labour Commissioner, H.P. refused to refer for adjudication to the Labour Court-
cum-Industrial Tribunal (hereinafter referred to in short as 'the Tribunal') concerned the industrial dispute raised by the petitioner herein/workman qua the factum of his having stood illegally retrenched or disengaged from 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 19:22:08 :::HCHP 2service by his employer. The Industrial dispute as reared or engendered by the petitioner herein/workman qua his services standing illegally retrenched besides .
dispensed with by his employer stood nursed by him after an inordinately procrastinated delay of 16 years.
The Joint Labour Commissioner, H.P. in refusing under of annexure P-1 to make a reference for an adjudication by the Tribunal concerned upon the industrial dispute rt raised by the workman/petitioner herein qua his illegal disengagement/retrenchment from service by his employer had therein constituted the reason of its imprompt raising having sequelled its becoming stale.
His construing of the industrial dispute raised by the petitioner/workman qua the latter's purported illegal dispensing of services by his employer being stale hence unreferable for adjudication to the Tribunal concerned stood anvilled upon a decision of this Court rendered in CWP No. 398 of 2001 which stood reiterated by a Full Bench decision of this Court in CWP No. 1486 of 2007.
::: Downloaded on - 15/04/2017 19:22:08 :::HCHP 32. Given the impugned order rendered by the Joint Labour Commissioner, H.P. declining to make a reference to the Tribunal concerned for an adjudication .
thereupon by the latter upon the industrial dispute raised by the workman qua his illegal retrenchment from service by his employer standing bed rocked upon of decisions of this Court as stand recorded in annexure P-
1, it is imperative to at the outset extract the apposite rt issue whereon an answer was purveyed by this Court in its rendition recorded in Civil Writ Petition No. 1486 of 2007. The issue which stood formulated by this Court whereon an answer thereto stood purveyed by it stands extracted hereinafter.
"where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing, refer the ......."
3. On an incisive consideration of a catena of decisions of the Hon'ble Apex Court upon the afore extracted factum probandum this Court had culled therefrom the legal proposition of though their being no ::: Downloaded on - 15/04/2017 19:22:08 :::HCHP 4 statutorily engrafted rigid prescription of any inflexible period of limitation within which a workman is enjoined to raise an industrial dispute comprising his grievances .
against his employer nor as a corollary the authorized officer of the appropriate Government being empowered to decline to make a reference comprising the industrial of dispute raised by the workman to the Tribunal concerned for an adjudication thereupon by the latter rt unless the inordinately procrastinated delay on the part of the workman to raise it without any tangible or sound explanation emanating from or adduced by the workman before the competent officer of the appropriate Government (Joint Labour Commissioner) renders it hence to be inevitably construable to have faded, its being infected with the vice of staleness arising from its imprompt raising entailing its rejection by the competent authority. The authorized officer of the appropriate government when exercising powers to make or decline to make a reference to the Tribunal concerned of the industrial dispute reared by the ::: Downloaded on - 15/04/2017 19:22:08 :::HCHP 5 employee against his employer is jurisdictionally empowered to conclude from its unexplained inordinately procrastinated imprompt raising, of its .
hence acquiring the stain of staleness or its having faded necessarily it being no longer in existence on anvil whereof the competent authority was enjoined to of tenably refuse to make reference qua it to the Tribunal concerned. The competent authority of the appropriate rt Government given the non emanation from the workman of a tangible or sound explanation qua its imprompt raising before it having hence construed it to have faded, eclipsed or its no longer surviving hence obviously his recording an order qua its unreferability to the Tribunal concerned would hence not invite qua it the disability of transgression hence of the domain of law governing the exercise of a purely administrative function by him in making or declining to make a reference to the Tribunal concerned of the industrial dispute inexplicably impromptly raised by the workman.
While applying the ratio propounded by this Court in ::: Downloaded on - 15/04/2017 19:22:08 :::HCHP 6 CWP No. 1486 of 2007 it was obviously incumbent upon the workman to promptly raise the industrial dispute qua his purported illegal disengagement from service by his .
employer for it to be free from any vice of staleness preeminently when any palpable inexplicable procrastinated delay in its raising by the workman would of imbue it with the blur of its having stood eclipsed, faded or no longer alive with the concomitant legal effect of its rt being unreferable by the competent authority of the appropriate government to the Tribunal concerned for an adjudication thereupon by the latter. Even when this Court has ad nauseam expostulated in its verdict rendered in CWP No. 1486 of 2007 which verdict stands embedded on a piercing analysis by this Court of a catena of decisions of the Hon'ble Apex Court qua the signification borne by the apposite phrase 'any industrial dispute exists or is apprehended' as constituted in Section 10 of the Industrial Disputes Act (hereinafter referred to in short as 'the Act') inasmuch as of its not prescribing any rigid inflexible period of limitation for the ::: Downloaded on - 15/04/2017 19:22:08 :::HCHP 7 raising of an industrial dispute by a workman, for concomitant delay if any as occurring in its raising not debarring the authorized officer of the appropriate .
Government to make a reference qua it to the Tribunal for its adjudication thereupon by the latter yet even when this Court has imparted the aforesaid signification of carried by the phrase "an industrial dispute exists"
occurring in the apposite provisions of the Act, rt nonetheless when a further legal proposition is encapsulated therein qua an industrial dispute remaining surviving or in existence only on its prompt raising by the workman for hence ousting any inference of its being stale or no longer surviving for disempowering the authorized officer of the appropriate government to decline to make a reference qua it to the Tribunal concerned for an adjudication thereupon by the latter.
However, the afore-referred legal proposition constituted in the apposite rendition of this Court of the vice of staleness or obscurity engendered by the belated raising of an industrial dispute by a workman imbuing an ::: Downloaded on - 15/04/2017 19:22:08 :::HCHP 8 impromptly raised industrial dispute by a workman has also been therein enunciated to stand scored off besides standing benumbed in the event of a workman .
unfailingly substantiating by adducing cogent evidence before the authorized officer of the appropriate government, of delay on his part in his raising an of industrial dispute standing spurred by a tangible and sound explanation as also its manifesting qua his having rt by his overt acts concerted to redress his grievances against his employer hence his having kept it rejuvenated, alive besides surviving. The exception carved out in the rendition of this Court in CWP No. 1486 of 2007 qua the imprompt raising of the industrial dispute by the workman not acquiring the stain of it having stood eclipsed, as such, unreferable is of the workman relaxing its rigor by affording a sound explanation at the pre reference stage before the authorized officer of the appropriate government qua its imprompt raising. However, there is no material on record connotative of the workman having by adducing ::: Downloaded on - 15/04/2017 19:22:08 :::HCHP 9 any cogent evidence before the authorized officer of the appropriate government seized of a failure report transmitted to him by the Labour Officer-cum-
.
conciliation Officer concerned purveyed before him a tangible or sound explanation for the occurrence of a delay on his part in promptly raising it nor there is any of emphatic material on record magnifying the fact of the delay of 16 years as has occurred on the part of the rt workman in raising it standing effacement or condonation constituted by the workman concertedly by taking overt steps for keeping it alive had not sequelled its fading for hence its being unreferable for adjudication to the Tribunal concerned. Omission on the part of the workman to (a) adduce evidence before the authorized officer of the appropriate government portraying therein any sound and tangible explanation on his part in explication of the delay as stood occurred in the imprompt raising of the industrial dispute by him (b) adduce before the competent authority of the appropriate government material personificatory of his ::: Downloaded on - 15/04/2017 19:22:08 :::HCHP 10 having by taking overt steps for keeping it alive had not rendered it to eclipse necessarily constrains this Court to conclude qua hence the industrial dispute raised by the .
workman being construable to have faded or eclipsed by efflux of time. The sine qua non of the signification borne by the apposite parlance extracted hereinabove of constituted in Section 10 of the Act is of its enjoining upon the workman to raise it promptly. The omission of rt adduction by the workman of the aforesaid material before the authorized officer of the appropriate government in explication of the delay in its raising by him imperatively engenders a formidable conclusion of the belated raising of the industrial dispute by the workman being amenable to a natural inference of its being no longer in existence or of its having stood faded besides eclipsed hence unreferable for adjudication by the authorized officer of the appropriate government to the Tribunal concerned. Preeminently the services of the petitioner having stood disengaged 16 years prior to his raising an industrial dispute with a ventilation therein ::: Downloaded on - 15/04/2017 19:22:08 :::HCHP 11 of his services having stood illegally retrenched by his employer rendered the dispute to acquire the vice of staleness besides its being construable to be no longer .
surviving rather by efflux of time it having stood faded especially when no explanation is forthcoming from the workman qua its imprompt raising. The impugned of order of the Joint Labour Commissioner, in declining to formulate a reference qua it for its adjudication by the rt Tribunal concerned is in consonance with the verdict of this Court in CWP No. 1486 of 2007. Consequently, this Court does not notice any apparent legal infirmity with the order of the Joint Labour Commissioner comprised in Annexure P-1 especially when it is founded upon the aforesaid decision of this Court.
4. The learned counsel appearing for the petitioner has relied upon a judgment of the Hon'ble Apex Court rendered in Jasmer Singh vs. State of Haryana and another, (2015) 4 SCC 458 wherein with the Hon'ble Apex Court in the relevant Paragraph 9 extracted herein-after having held qua provisions of ::: Downloaded on - 15/04/2017 19:22:08 :::HCHP 12 Article 137 of the Schedule of Limitation Act being inapplicable to the apposite proceedings held by the Tribunal on its receiving an apposite reference from the .
competent authority constituted under the Act for an adjudication thereupon by it hence relief being affordable by the Tribunal concerned to an aggrieved of workman when the former stands seized of a reference comprising the industrial dispute raised by a workman rt made to it by the competent authority even when the employer contests the relief claimed by the workman before it on the score of its standing baulked by the legal embargo of limitation. Apart therefrom the hereinafter extracted relevant paragraph of the judgement enjoins a mandate upon the Tribunal to on receiving a reference from the competent authority comprising the industrial dispute generated by the workman, for rendition of an adjudication thereupon by it to while discarding delay it standing empowered to mould relief to the workman, by declining backwages to him.
::: Downloaded on - 15/04/2017 19:22:08 :::HCHP 13"9. On issue No. 3, after adverting to the case of State of Punjab v. Kalidass and Anr. in C.W.P. No. 1742 of 1996, wherein the High Court has observed that the workman cannot be allowed to approach .
the Labour Court after 3 years of termination of his services, upon which reliance placed by the respondent-employer with reference to the said plea the Labour Court has rightly placed reliance of upon the judgment of this Court in Ajaib Singh v. Sirhind Co-operative Marketing-cum-Processing rt Service Society Ltd. and Anr., 1999 6 SCC 82 in which it is observed by this Court that there is no period of limitation to the proceedings in the Act. Accordingly, Issue No. 3 is answered against the respondent-management. The relevant paragraph from Ajaib Singh's case are extracted herein below:
"10. It follows, therefore, that the provisions of Article 137 of the Schedule to Limitation Act, 1963 are not applicable to the proceedings under the act and that the relief under it cannot be denied to the workman merely on the ground of delay. The plea of delay if raised by the employer is required to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical defence. No reference to the labour court can be generally questioned on the ground of ::: Downloaded on - 15/04/2017 19:22:08 :::HCHP 14 delay alone. Even in a case where the delay in shown to be existing, the tribunal, labour court or board, dealing with the case can appropriately mould the relief by declining to .
grant back wages to the workman till the date he raised the demand regarding his illegal retrenchment/ termination or dismissal. The Court may also in appropriate cases direct the of payment of part of the back wages instead of full back wages....."
5. rt However, the aforesaid submission addressed before this Court cannot command any sway especially in the face of distinctivity intra se the judgment relied upon by him for anchoring his espousal vis-à-vis the renditions of this Court encapsulated in CWP No. 1486 of 2007 which stand embedded in Annexure P-1, inasmuch as the judgment relied upon by the learned counsel for the petitioner is rendered qua inapplicability of the apposite article of the Limitation Act to only proceedings pending before the Tribunal in pursuance to its receiving an apposite reference from the competent authority for its rendering an adjudication thereupon besides its ::: Downloaded on - 15/04/2017 19:22:08 :::HCHP 15 expostulating the legal proposition of delay not deterring the Tribunal when seized of a reference made to it by the appropriate Government, to afford relief to a .
workman merely on the anvil of the employer contesting the claim of the workman as stands constituted in the apposite reference as stands transmitted to it by the of appropriate government for an adjudication thereupon by it on the score of its being baulked by the legal rt embargo of limitation whereas in dire incongruity thereof in the instant case, the raising of an industrial dispute by the workman herein after an inordinate lapse of 16 years since his purported illegal disengagement from services by his employer has been hence construed to have faded besides stale hence unreferable for adjudication to the Tribunal concerned by the appropriate Government ( Joint Labour Commissioner) especially when its referability to the Tribunal concerned is beset with a handicap of an unexplained procrastinated delay of 16 years.
Necessarily when the industrial dispute raised by the ::: Downloaded on - 15/04/2017 19:22:08 :::HCHP 16 workman stands rejected as constituted in annexure P-1 at a pre reference stage on the ground of it being un- referable for a tenable reason as embodied therein in .
sequel the Tribunal concerned came to be never seized of an apposite reference made to it by the authorized officer of the appropriate government constituted in the of Act concomitantly when the verdict of the Hon'ble Apex Court relied upon by the learned counsel for the rt petitioner is applicable only to a post reference stage or to a stage when the Tribunal is seized of a reference encapsulating the industrial dispute reared by the workman obviously its applicability to a pre reference stage is unattractable. Moreso, for reiteration when the occurrence of the aforesaid delay is at a stage preceding the Tribunal concerned being seized of a reference qua it being made to it by the competent authority of the appropriate government, inasmuch as it stood occurred at a pre reference stage whereupon rather the para meters enshrined in the renditions of this Court in CWP No. 1486 of 2007 qua its referability or unreferability ::: Downloaded on - 15/04/2017 19:22:08 :::HCHP 17 arising from its prompt or non explicated imprompt raising rather stand attracted. Furthermore when the Joint Labour Commissioner when seized of the failure .
report transmitted to it by the Labour Officer -cum-
Conciliation Officer concerned was enjoined to on an application of mind to the material placed before him of make only an order making or refusing to make a reference qua the industrial dispute raised by a rt workman against his employer hence not performing any judicial function nor any quasi judicial function rather was performing purely administrative functions necessarily any order of the learned Joint Labour Commissioner, Himachal Pradesh, in the performance of his administrative duties/functions was amenable to a legal onslaught only within the permissible parameters enshrined in the judgement of this Court. Obviously when reverence has been paid by the Joint Labour Commissioner to the mandate of this Court besides with the reasons cast therein not suffering from any legal debility necessitates its being sustained. Predominantly, ::: Downloaded on - 15/04/2017 19:22:08 :::HCHP 18 when at the pre-reference stage given the stark distinctivity inter se the factual matrix in the judgement relied upon by the learned counsel for the petitioner is .
for the reasons aforestated invokable only at the post reference stage viz.a.viz the factual matrix in the judgement relied upon by the counsel for the of respondent squarely applicable to the pre-reference stage hence renders the verdict of the Hon'ble Apex rt Court to be unworkable qua the facts at hand. Apart therefrom with this Court having held qua the Joint Labour Commissioner while declining to make a reference of the industrial dispute belatedly raised by the workman against his employer especially for want of any tangible explanation qua its imprompt raising by the workman having remained unevinced by him before the Joint Labour Commissioner had performed a purely administrative function necessarily when the verdict of the Hon'ble Apex Court only dis-empowers an employer to contest before the Tribunal when seized of a reference made to it by an appropriate officer of the ::: Downloaded on - 15/04/2017 19:22:08 :::HCHP 19 appropriate government the claim of the employee on the ground of the bar of limitation thwarting it, upsurges an unfailing inference of the authorized official of the .
appropriate government while discharging a purely administrative duty or function in making or declining to make a reference of an industrial dispute to the Tribunal of concerned, was disempowered to while not performing judicial functions rt as a Tribunal concerned performs to at the pre reference stage hold any legal leverage to mould the relief affordable to the workman even when a contest qua its affordability to him arising from the unexplicated belated raising of an industrial dispute stood aroused before it by the employer engenders a concomitant deduction of the authorized officer of the appropriate government when not performing judicial or quasi judicial function rather performing merely an administrative function in declining or making a reference of the industrial dispute to the Tribunal for its adjudication thereupon by the latter was hence also not obliged to elicit the ::: Downloaded on - 15/04/2017 19:22:08 :::HCHP 20 participation of the employer at the pre reference for eliciting a contest from him qua the tenability of the claim embedded in the industrial dispute arising from its .
inordinately procrastinated raising by the workman rather was only enjoined to fathom from the material existing before him the factum of its being promptly of raised hence referable or even if it was impromptly raised a tangible explication for its imprompt raising rt having yet emanated before him on the part of the workman, which explanation in proof of its imprompt raising by the workman when remains un-adduced by the workman before it rendered the impugned annexure anchored upon the decision of this Court to acquire a legal solemnity. Dehors the above for reiteration with the legal expostulation cast in the aforesaid referred verdict of the Hon'ble Apex Court being obviously applicable with aplomb to a stage successive to the making of a reference embodying the apposite industrial dispute raised by the workman against his employer for rendition of an adjudication thereupon by the Tribunal ::: Downloaded on - 15/04/2017 19:22:08 :::HCHP 21 concerned moreso, especially when the subtle nuance of the verdict of the Hon'ble Apex Court is of its mandating ouster of contest by an employer to the claim .
espoused by an employee before the Tribunal when harboured upon delay rather delay if any empowering the Tribunal to mould relief by declining relief of back-
of wages to the workman has its implication in the competent authority when seized of an unexplained rt delay in raising of an industrial dispute by a workman enjoying the legal capacity to construe it to have stood eclipsed, faded or stale hence unreferable for adjudication besides with the exercise of jurisdiction by the competent authority of the appropriate Government not constituting it to be judicial forum nor a quasi judicial forum for its being equipped to pronounce upon the validity of the claim reared by the workman nor hence its obviously enjoying the jurisdiction to mould relief if found affordable to the workman by refusing relief of backwages to him whereas the Tribunal alone being the adjudicatory forum to pronounce upon the ::: Downloaded on - 15/04/2017 19:22:08 :::HCHP 22 validity of the claim of the workman comprised in the apposite reference made to it besides it being alone jurisdictionally competent to mould relief even when the .
claim of the workman comprised in the apposite reference is concerted to by his employer to be oustable on the score of delay, renders the verdict of the Hon'ble of Apex Court inapplicable for reverence by the competent authority when seized of an industrial dispute raised by rt the workman nor it estops the competent authority to at an pre reference stage construe the impact of the belated unexplained raising of an industrial dispute by the workman against his employer and its concomitantly acquiring the jurisdiction to construe it to have faded or non existent hence unreferable. Moreso when the refusal on the part of the Joint Labour Commissioner to refer for adjudication the industrial dispute raised by the workman against his employer for its adjudication by the Tribunal is covered by a rendition of this Court in CWP No. 1486 of 2007.
::: Downloaded on - 15/04/2017 19:22:08 :::HCHP 236. Dehors the above, with a marked gross delay of 16 years as has occurred in the rearing of an industrial dispute by the workman which latter delay .
obviously for want of a tangible explanation qua its imprompt raising has been construed by the Joint Labour Commissioner to render it to stand faded, of eclipsed besides annihilated, in sequel, annexure P-1 is hence a legally sound view and in harmony with the rt verdict of this Court germane to the bar of an unexplained delay standing attraction at a pre-reference stage.
7. In view of the above discussion, the writ petition stands dismissed being devoid of any merit.
The impugned Annexure P-1 is affirmed and maintained.
Pending application(s), if any, also stand dismissed. No costs.
(Rajiv Sharma) Judge.
19th November, 2015. (Sureshwar Thakur), (TM) Judge.
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