Himachal Pradesh High Court
Dev Dei vs State Of Himachal Pradesh And Others on 21 November, 2015
Bench: Rajiv Sharma, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 4393/2015Decided on: 21.11.2015 .
___________________________________________________ Dev Dei. ...Petitioner.
Versus State of Himachal Pradesh and others. ...Respondents.
______________________________________________________________ Coram:
of Hon'ble Mr. Justice Rajiv Sharma, Judge. Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting? 1 rt For the Petitioner:
For the Respondents:
Mr. Rahul Mahajan, Advocate.
Mr. Romesh Verma and Mr. Anup Rattan, Addl. A.Gs.
_________________________________________________________ Per Justice Rajiv Sharma, Judge (oral).
Petitioner was engaged on daily wage basis in the year 1997. She was retrenched in the month of September, 2004. She raised industrial dispute by demand notice on 2.6.2012. Petitioner specifically averred in the demand notice that her retrenchment was in violation of provisions of sections 25 (B) (G) and (H) of the Industrial Disputes Act, 1947. She had also averred that similarly situate persons had raised the industrial 1 Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 15/04/2017 19:22:52 :::HCHP 2
dispute and the Labour Court has decided the references in their favour. She had completed 160 days in a block of 12 calendar months, as provided by the State .
Government for the tribal area. The Labour Officer-cum-
Conciliation Officer submitted failure report to the Labour Commissioner on 23.11.2013. The Labour Commissioner has refused to refer the matter vide order of 30.4.2014. The Labour Commissioner has touched the merits of the case by observing in the order that the rt petitioner has not led any evidence to support her claim of retrenchment. He has also made observation that no fresh cause of action has arisen for more than 7 years.
The other reason for not referring the matter is that there was inordinate delay in raising the industrial dispute by the workman. The Labour Court ought to have taken into consideration the provisions of section 25-H of the Industrial Disputes Act while considering the case of the petitioner. The Labour Commissioner is not supposed to go into the merits of the case.
2. Their lordships' of the Hon'ble Supreme Court in the case of Raghubir Singh vrs. General Manager, Haryana Roadways, Hissar, reported in JT 2014 (10) SC 168, have ::: Downloaded on - 15/04/2017 19:22:52 :::HCHP 3 held that the State Government can make the reference at any time. Their Lordships have held as under:
"13. In the case on hand, no doubt there is a delay in raising .
the dispute by the appellant; the Labour Court nevertheless has the power to mould the relief accordingly. At the time of adjudication, if the dispute referred to the Labour Court is not adjudicated by it, it does not mean that the dispute ceases to exist. The appropriate government in exercise of its statutory power under Section 10(1)(c) of the Act can refer the industrial dispute, between the parties, at any time, to either the of jurisdictional Labour Court/Industrial Tribunal as interpreted by this Court in the Avon Services case referred to supra. Therefore, the State Government has rightly exercised its power under Section 10(1)(c) of the Act and referred the points rt of dispute to the Labour Court as the same are in accordance with the law laid down by this Court in Avon Services & Sapan Kumar Pandit cases referred to supra.
14. Further, the workman cannot be denied to seek relief only on the ground of delay in raising the dispute as held in the case of S.M. Nilajkar & Ors. v. Telecom District Manager, Karnataka [JT 2003(3) SC 436: 2003(4) SCC 27] it was held by this Court as follows-
"17. It was submitted on behalf of the respondent that on account of delay in raising the dispute by the appellants the High Court was justified in denying relief to the appellants. We cannot agree...... In Ratan Chandra Sammanta and Ors. v. Union of India and Ors. (supra)[JT 1993(3) SC 418], it was held that a casual labourer retrenched by the employer deprives himself of remedy available in law by delay itself, lapse of time results in losing the remedy and the right as well. The delay would certainly be fatal if it has resulted in material evidence relevant to adjudication being lost and rendered not available. However, we do not think that the delay in the case at hand has been so culpable as to disentitle the appellants for any relief....."
(Emphasis laid by the Court) ::: Downloaded on - 15/04/2017 19:22:52 :::HCHP 4 14.1 In view of the legal principles laid down by this Court in the above judgment, the reference of the industrial dispute made in the case on hand by the State Government to the Labour Court to adjudicate the existing industrial dispute between the parties was made within a reasonable time, .
considering the circumstances in which the workman was placed, firstly, as there was a criminal case pending against him and secondly, the respondent had assured the workman that he would be reinstated after his acquittal from the criminal case. Moreover, it is reasonable to adjudicate the industrial dispute in spite of the delay in raising and referring the matter, since there is no mention of any loss or of unavailability of material evidence due to the delay. Thus, we do not consider the delay in raising the industrial dispute and referring the same to the Labour Court for adjudication as gravely erroneous and it does not debar the workman from rt claiming rightful relief from his employer.
42. It is an undisputed fact that the dispute was raised by the workman after he was acquitted in the criminal case which was initiated at the instance of the respondent. Raising the industrial dispute belatedly and getting the same referred from the State Government to the Labour Court is for justifiable reason and the same is supported by law laid down by this Court in Calcutta Dock Labour Board (supra). Even assuming for the sake of the argument that there was a certain delay and latches on the part of the workman in raising the industrial dispute and getting the same referenced for adjudication, the Labour Court is statutorily duty bound to answer the points of dispute referred to it by adjudicating the same on merits of the case and it ought to have moulded the relief appropriately in favour of the workman. That has not been done at all by the Labour Court. Both the learned single Judge as well as the Division Bench of the High Court in its Civil Writ Petition and the Letters Patent Appeal have failed to consider this important aspect of the matter. Therefore, we are of the view that the order of termination passed by the respondent, the award passed by the Labour Court and the judgment & order of the High Court are liable to be set aside.
::: Downloaded on - 15/04/2017 19:22:52 :::HCHP 5When we arrive at the aforesaid conclusion, the next aspect is whether the workman is entitled for reinstatement, back wages and consequential benefits. We are of the view that the workman must be reinstated. However, due to delay in raising the industrial dispute, and getting it referred to the Labour .
Court from the State Government, the workman will be entitled in law for back wages and other consequential benefits from the date of raising the industrial dispute i.e. from 02.03.2005 till reinstatement with all consequential benefits."
3. Moreover, the issue of delay can always be of considered by the Labour Court-cum-Industrial Tribunal at the time of answering the reference by moulding relief.
4. rt Accordingly, the writ petition is allowed.
Annexure PB dated 30.4.2014 is quashed and set aside.
The Labour Commissioner is directed to make a reference to the Labour Court-cum-Industrial Tribunal within a period of four weeks from today and the Labour Court-cum-Industrial Tribunal shall decide the same within a period of six months after the receipt of reference. Pending application(s), if any, also stands disposed of. No costs.
(Justice Rajiv Sharma), Judge.
(Justice Tarlok Singh Chauhan), Judge.
21.11.2015 *awasthi* ::: Downloaded on - 15/04/2017 19:22:52 :::HCHP