Himachal Pradesh High Court
The State Of Himachal Pradesh vs General Manager on 27 August, 2021
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
Reserved on 23.8.2021
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
ON THE 27th DAY OF AUGUST 2021
BEFORE
HON'BLE MR. JUSTICE SURESHWAR THAKUR
CIVIL WRIT PETITION No. 1726 of 2016
Between:
1. THE STATE OF HIMACHAL PRADESH,
THROUGH THE ADDITIONAL CHIEF
SECRETARY (PWD) TO THE GOVERNMENT,
OF HIMACHAL PRADESH, SHIMLA.
2. THE SUPERINTENDING ENGINEER,
5TH CIRCLE PWD, PALAMPUR.
3. THE EXECUTIVE ENGINEER,
KANGRA DIVISION,
HPPWD KANGRA, (HP).
....PETITIONERS
(BY SH. ASHWANI SHARMA ADDL. A.G. WITH MR. GAURAV
SHARMA, DY. A.G.)
AND
SHRI MEGH RAJ SON OF SH. BIHARI LAL,
RESIDENT OF VILLAGE AND POST OFFICE BHANALA, TEHSIL
SHAHPUR, DISTRICT KANGRA, (HP).
....RESPONDENT
(BY SH. RAHUL MAHAJAN, ADVOCATE)
This petition coming on for final hearing this day,
the Court passed the following:
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-2-
JUDGMENT
The hereinafter extracted reference became transmitted to the learned Presiding Judge, Labour .
CourtcumIndustrial Tribunal, Dharamshala, H.P (hereinafter called as "Labour Court": "Whether termination of the services of Sh. Megh Raj son of Sh. Bihari Lal, resident of village and post office Bhanala, Tehsil Shahpur, District Kangra, (HP). During June 1997 by the Executive Engineer, Kangra Division H.P.P. W. D. Kangra, District Kangra, H.P., without complying with the provisions of the Industrial Disputes Act, 1947, is legal and justified? If not, what amount of back wages, seniority, past service benefits and compensation the above worker is entitled to from the above employer(s)?
The learned Labour Court concerned, in the operative portion of its award, the relevant portion whereof, stands extracted hereinafter, proceeded to quash and set aside the retrenchment in service of the workman, by the employer, and, also directed for his forthwith re engagment in service. Moreover, he was declared to be entitled to seniority and continuity in service, from the ::: Downloaded on - 31/01/2022 22:58:17 :::CIS -3- date of his illegal termination i.e. 1997. However, the relief of back wages became denied to him: "28. As sequel to my findings on foregoing issues, the .
termination order dated June, 1997 of respondent qua petitioner's is quashed and set aside and the respondent is hereby directed to reinstate the petitioner forthwith who shall be entitled to seniority and continuity in service from the date of his illegal termination except back wages. Accordingly, claim petition is hereby allowed in part and reference is accordingly answered in favour of petitioner. However, it is made clear that aspect of regularization of the services of claimant/petitioner in view of the verdict of Mool Raj Upadhaya's case shall be considered by competent authority and petitioner shall be considered for regularization by respondent at the time when his juniors have been regularized. The parties however, shall bear their own costs."
The workman, however, has not challenged the afore award, in so far as, it pertains to denial of back wages to him, hence the afore portion of the award becomes final and conclusive.
2. The State of H.P., however, becomes aggrieved by the afore extracted operative part of the award, as, ::: Downloaded on - 31/01/2022 22:58:17 :::CIS -4- made by the learned Tribunal, and, hence, through the extant petition has strived to seek annulment thereof.
3. The learned Additional Advocate General has .
contended with much vigor before this Court, that the findings against the employer, as became returned by the learned Tribunal, on the hereinafter extracted issue, are required to be annulled. However, the afore made contention is straightway rejected: "Whether the claim petition is bad on account of delay and laches on the part of the petitioner as alleged?
OPR
4. In support of his submission (supra) he contended that after receipt of reference by the Labour Court concerned, it yet contained a stale claim or it contained a time barred claim hence the apposite reference, rather was amenable for dismissal.
5. Though, the learned counsel appearing for the respondent workman concerned, has resisted with much vigour the afore submission, by his placing reliance, upon, a verdict of the Hon'ble Apex Court rendered in a case titled, as, Raghubir Singh vs. General Manager, ::: Downloaded on - 31/01/2022 22:58:17 :::CIS -5- Haryana Roadways, Hissar, reported in 2014 AIR SCW 5515.
6. Consequently, the legal conundrum, as, beset .
before this Court, is anchored, upon, (i) whether the verdict rendered by the Full Bench of this Court in Liaq Ram vs State of H.P., decided, on, 6.1.2011, hence, encapsulating the guiding principles or the apt ratio decidendi, hence appertaining to Commissioner concerned, becoming bestowed with any r the Labour valid empowerment to, on the ground of delay, and, latches, hence decline to make reference, of, an industrial dispute, to, the Labour CourtcumIndustrial Tribunal concerned, (ii) or whether the verdict of the Hon'ble Apex Court rendered in case titled, as, Raghuvir Singh vs. General Manager, Haryana Roadways, Hissar, reported in 2014, AIR SCW 5515, rather over turning the afore verdict, qua it becoming subsequently pronounced, or in other words, it comprising the apposite ratio decidendi, visavis, the afore facet.
::: Downloaded on - 31/01/2022 22:58:17 :::CIS -6-7. For meteing an adjudication thereon, it is imperative, to, bear in mind, also the verdict rendered by this Court in case titled as Municipal Council Paonta .
Sahib vs. State of H.P. & Ors., reported in 2002(2) Cur.
L. J. (H.P.) 242, (i) wherein this Court had relied, upon, a decision rendered by a three Hon'ble Judges of the Hon'ble Apex Court, in, case titled as National Engineering Industries Ltd. vs. State of Rajasthan & Ors, reported in 2000 (1) SCC 371, r verdict whereof become followed in a verdict pronounced in case titled as Nedungadi Bank Ltd. vs. K.P. Madhavankutty & Ors, reported in 2000(2) SCC 455. The verdict rendered by the three Hon'ble Judges, of, Hon'ble Apex Court in National Engineering Industries Ltd., case (supra) (a) makes visible communication qua, upon, fading(s) or eclipsing(s) of an industrial dispute or in other words, its lack of existence, at the relevant time, rather not clothing the appropriate government hence with any empowerment to qua therewith, make any valid reference, to, the Labour CourtcumIndustrial Tribunal ::: Downloaded on - 31/01/2022 22:58:17 :::CIS -7- concerned. Tritely the Hon'ble Apex has emphasised, upon, the existence of an industrial dispute, imperatively, at the relevant stage, for hence, the .
appropriate government, therethrough(s) becoming empowered to refer it, to the Labour Courtcum Industrial Tribunal concerned.
8. The learned Additional Advocate General appearing for the petitioners, has not placed before this Court any citation or any ruling, hence, rendered by the Hon'ble Apex Court, and, carrying therein any mandate or ruling rather contra to the verdict rendered, by, the three Hon'ble Judges, of, the Hon'ble Apex Court, in National Engineering Industries Ltd., case (supra), reiteratedly, hence, the afore verdict rendered in National Engineering's case (supra), remains intact, and, also acquires concomitant conclusive, and, binding effect.
9. Nowat, the verdict of the Hon'ble Apex Court, rendered in case titled, as, Raghubir Singh vs. General Manager, Haryana Roadways, Hissar, reported in 2014 ::: Downloaded on - 31/01/2022 22:58:17 :::CIS -8- AIR SCW 5515, has to be juxtaposed, with the verdict rendered by the Hon'ble Three Judges of the Hon'ble Apex Court, in case titled National Engineering .
Industries Ltd. vs. State of Rajasthan & Ors, reported in 2000 (1) SCC 371. At the outset, given the inter se higher or larger numerical strength or composition, of, the Hon'ble Judges, of, the Hon'ble Apex Court, hence, pronouncing a verdict in National Industries Ltd. vs. State of Rajasthan & Ors, reported in r Engineering 2000 (1) SCC 371, visavis, the composition of the Hon'ble Two Judges' Bench, pronouncing a verdict, in, Raghubir Singh's case (supra), reported in 2014 AIR SCW 5515, (I) per se thereupon, an inference becomes fostered qua the verdict rendered by the Hon'ble Three Judges of the Hon'ble Apex Court, in National Engineering Industries Ltd.'s case (supra), rather encapsulating therein the afore apposite ratio decidendi.
As a corollary thereof, the existence of an industrial dispute rather at the relevant time, is, the apt parameter, hence, for bestowing an empowerment, in, ::: Downloaded on - 31/01/2022 22:58:17 :::CIS -9- the appropriate government, for, making a valid reference of an industrial dispute, to, the Labour Court cumIndustrial Tribunal concerned. However, even if .
there are departures, in Raghubir Singh's case (supra), reported in 2014 AIR SCW 5515 hence by the afore subsequent Bench of the Hon'ble Apex Court, rather holding a lesser bench strength, of, the Hon'ble Judges of the Hon'ble Apex Court, than, the one pronouncing, a, verdict in National Engineering Industries' case (supra),
(ii) yet, the afore departures, from, the earlier thereto verdict pronounced, by Hon'ble Three Judges' Bench of the Hon'ble Apex Court, in, National Engineering Industries's case (supra), reported in 2000(1) SCC 371, may not carry the apt vigour, (iii) unless they become vindicated by a larger Bench of the Hon'ble Apex Court, than, the one hence rendering a verdict, in, National Engineering Industries's case (supra), nor they comprise the apt reckonable ratio decidendi, for, the apposite purpose, (iv) emphasisingly the verdict rendered by the Hon'ble Apex Court in National Engineering Industries's ::: Downloaded on - 31/01/2022 22:58:17 :::CIS -10- case (supra), reported in 2000(1) SCC 371, became minimally distinguished, in, the latter verdict hence rendered in Raghubir Singh's case (supra), reported in .
2014 AIR SCW 5515, (v) AND, the apt distinguishing para meter as set forth therein, and, as pointedly prevalent thereat, rather visibly is not in existence hereat. Thereupon, viewing from the afore angle, hence, appertaining to the verdict rendered by the Hon'ble Apex Court in Raghubir's case (supra), reported in 2014 AIR SCW 5515, rather making departure(s), from, the earlier verdict rendered, by the Hon'ble three Judges, of, the Hon'ble Apex Court, in, case titled as National Engineering Industries ltd. vs. State of Rajasthan & Ors, reported in 2000(1) SCC 371, (vi) pointedly only upon, the prevalent therein apposite factual matrix, rather hence distinguishable, from, the prevailing factual scenario, in, the earlier thereto verdict (supra). (vii) Thereupon, it is also imperative to state that in Raghubir Singh's case (supra), hence, the Hon'ble Apex Court had proceeded to reverse the verdict, of, the High Court(s), ::: Downloaded on - 31/01/2022 22:58:17 :::CIS -11- hence, affirming the declinings, of, makings, of, a reference, of, the Industrial dispute, by the Appropriate Government, to the Industrial Tribunal concerned, .
reiteratedly, and, pointedly upon the uncontroverted stark fact, as, borne therein, and, appertaining to their existing, an assurance meted by the employer, to the workman concerned, qua the former, upon, the competent jurisdiction, r to workman becoming acquitted, by, the criminal court of
(viii) thereupon, his being reinstated, in, service. Secondarily, the stark distinguishable factual matrix borne in Raghubir Singh's case (supra), hence from the earlier thereto verdict (supra) and, singularly appertaining or existing therewithin, (a) is encapsulated in the trite factum, that once the appropriate government proceeds, to, make exercise(s) of power, to, make a reference, of, an industrial dispute, to the Labour CourtcumIndustrial Tribunal concerned, (b) thereupon, the latter not becoming validly enabled to, only, on an issue appertaining to delay, and, latches rather dismiss the ::: Downloaded on - 31/01/2022 22:58:17 :::CIS -12- reference, dehors its meteing any decision, on, the merits of the industrial dispute, as becomes transmitted to it, for adjudication, by, the appropriate government.
.
It appears that the making, of, the apposite reference by the appropriate government, visavis, the Labour Court cumIndustrial Tribunal concerned, even if, it is (a) purportedly time barred reference, and, even if, the provisions, of, the Limitation Act, omit to, prescribe any period, of, limitation, visavis, the making, of, apposite references by the Appropriate government, to, the Industrial Tribunal concerned, thereupon(s), rather subsuming all the vices, of, the purported delay(s), and, latch(es), hence, gripping the referred thereto hence industrial dispute, (b) and, also hence enjoining the Labour Court, to, rather than render a decision adversarial, visavis, the workman, rather on vices, of, delay, and, latches, gripping the apposite reference, to hence, make a decision, upon, the merits of the referred industrial dispute. The afore starkingly visible prevailing factual matrix, in, Raghubir Singh's case (supra), ::: Downloaded on - 31/01/2022 22:58:17 :::CIS -13- reported in 2014 AIR SCW 5515, hence, postulates or portrays, a, post reference stage/scenario, and, obviously, does not contemplate, a pre reference .
stage/scenario. (c) Therefore, the afore verdict is straightway distinguishable, from, factual matrix prevailing herein, besides it does not carry the apposite ratio decidendi, visavis, the exercisings, of, jurisdiction(s) by the Appropriate Government, at the, pre reference stage, nor does bar the Appropriate Government, to, mete deference, to, the verdicts supra rendered in National Engineerings case (supra), and, in Nedungadi Bank Ltd.'s case supra.
10. Be that as it may, even the deepest, and, circumspect reading of paragraph No.11, as, borne in Raghubir Singh vs. General Manager, Haryana Roadways, Hissar, reported in 2014 AIR SCW 5515, paragraph whereof stands extracted hereinafter: "11. In our view of the facts and circumstances of the case on hand, the reference was made by the State Government to the Labour Court for adjudication of the existing industrial dispute; it has erroneously held it to be barred by limitation. This award was further ::: Downloaded on - 31/01/2022 22:58:17 :::CIS -14- erroneously affirmed by the High Court, which is bad in law and therefore the same is liable to be set aside. According to Section 10(1) of the Act, the appropriate government 'at any time' may refer an industrial dispute .
for adjudication, if it is of the opinion that such an industrial dispute between the workman & the employer exists or is apprehended. Section 10(1) reads as follows:
"10(1)[Where the appropriate government is of opinion that any industrial dispute exists or is apprehended, it may at any time], by order in writing
(a) refer the dispute to a Board for promoting a settlement thereof; or
(b) refer any matter appearing to be connected with or relevant to the dispute to a court for inquiry; or
(c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or
(d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute , whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication."
Thus, it is necessary for us to carefully observe the phrase 'at any time' used in this section. Therefore, there arises an issue whether the question of limitation is applicable to the reference of the existing industrial dispute that would be made by the State Government either to the Labour Court or Industrial Tribunal for adjudication at the instance of the appellant. This Court in Avon Services Production Agencies (Pvt.) Ltd. v.
::: Downloaded on - 31/01/2022 22:58:17 :::CIS -15-Industrial Tribunal, Haryana & Ors.[2], after interpreting the phrases 'at any time' rendered in Section 10(1) of the Act, held thus: "7.......Section 10(1) enables the appropriate Government to make reference of an .
industrial dispute which exists or is apprehended at any time to one of the authorities mentioned in the section. How and in what manner or through what machinery the Government is apprised of the dispute is hardly relevant.......The only requirement for taking action under Section10(1) is that there must be some material before the Government which will enable the appropriate Government to form an opinion that an industrial dispute exists or is apprehended. This is an administrative function of the Government as the expression is understood in contradistinction to judicial or quasijudicial function..." Therefore, it is implicit from the above case that in case of delay in raising the industrial dispute, the appropriate government under Section 10(1) of the Act has the power, to make reference to either Labour Court or Industrial Tribunal, if it is of the opinion that any industrial dispute exists or is apprehended at any time, between the workman and the employer. Further, in Sapan Kumar Pandit v. U.P. State Electricity Board & Ors.[3], it is held by this Court as under: "15.There are cases in which lapse of time had caused fading or even eclipse of the dispute. If nobody had kept the dispute alive during the long interval it is reasonably possible to conclude in a particular case that the dispute ceased to exist after some time. But when the dispute remained alive though not galvanized by the workmen or ::: Downloaded on - 31/01/2022 22:58:17 :::CIS -16- the Union on account of other justified reasons it does not cause the dispute to wane into total eclipse. In this case when the Government have chosen to refer the dispute for adjudication under Section4K of the U.P. Act .
the High Court should not have quashed the reference merely on the ground of delay. Of course, the long delay for making the adjudication could be considered by the adjudicating authorities while moulding its reliefs. That is a different matter altogether. The High Court has obviously gone wrong in axing down the order of reference made by the Government for adjudication. Let the adjudicatory process reach its legal culmination." (Emphasis laid by the court) does make candid underlining, visavis, the Hon'ble Two Judges' Bench, hence rendering a decision in Raghubir Singh's case (supra), rather accepting, the, earlier thereto verdict pronounced by the Hon'ble Apex Court, and, appertaining, to, the necessity of existence of an industrial dispute inter se the employer, and, the workman, hence, at the relevant time, or at the pre reference stage. In aftermath, since the appropriate government made a reference to the learned tribunal concerned, therefore, the learned tribunal was dehors the afore factum of delay being raised in the pleadings drawn by the employer, became enjoined to render a ::: Downloaded on - 31/01/2022 22:58:17 :::CIS -17- decision on the reference supra. As a sequel, the afore submission of the learned Additional Advocate General, is rejected.
.
11. The rejection of the afore made contention before this Court by the learned Additional Advocate General, does however, necessitates an adjudication being meted, visavis, the legality of the inquiry report, as, becomes carried in Ext. RW1/E. The afore inquiry, as becomes carried in Ext. RW1/E, is completely vitiated, as a thorough scrutiny of the relevant records rather sustains the contention of the respondent workman, that it breached the principle(s) of natural justice, as no show cause notice was prior thereto either served upon the petitioner nor he participated in the afore proceedings.
12. Be that as it may, the inquiry report as becomes embodied in Ext. RW1/E, appertains to the truck owned by the employer. The relevant truck met with an accident, and, had suffered immense damage, on account of it being negligently driven at the relevant ::: Downloaded on - 31/01/2022 22:58:17 :::CIS -18- time by the driver (the workman herein). In the inquiry report (supra), the workman was held responsible for the entire episode, inasmuch as, his driving the apposite .
truck in a rash and negligent manner. Since as afore stated, the afore inquiry report breaches the principles of natural justice, and immense fortification to the afore conclusion becomes derived, from the factum that, in a charge drawn against the workman, and, appertaining to the afore factum rather a verdict of acquittal becomes made by the learned Sessions Judge concerned, whereupons also Ext. RW1/E, does completely loose its tenacity. Therefore, since the fullest opportunity became afforded to both the prosecution, and, to the respondent workman, rather in the afore drawn proceedings, whereas, there was evident breach of the principle(s) of audialtermpartem in the proceedings, which culminated in the inquiry report, borne in Ext. RW1/E. Consequently, hence this Court firmly concludes that the conclusive mandate of acquittal, as made, visavis, the workman by the learned Sessions Judge concerned, ::: Downloaded on - 31/01/2022 22:58:17 :::CIS -19- does conspicuously robs the efficacy and effect of Ext.
RW1/E.
13. The learned Additional Advocate General, has .
also proceeded to make a contention before this Court, that dehors the afore, the petitioner workman absented from duty w.e.f. 3.3.1993, hence after the occurrence of the afore accident involving the official Tipper. However, the afore made contention, for retrenchment from service, cannot be sustained, as r validating his there is no evidence on record, that after the workman purportedly abandoned his duties, he became served with a notice to rejoin his duties, and, yet, his not meteing compliance therewith. The effect of lack of the afore evidence, is that, it, completely belies the stand of the learned Additional Advocate General, that the petitioner workman had abandoned his duties. Since the aforestated inquiry report as embodied in RW1/E, is completely vitiated for noncompliances (supra), inasmuch as, the proceedings drawn, visavis, the purported misconduct, of the workman, rather not ::: Downloaded on - 31/01/2022 22:58:17 :::CIS -20- manifestive, visavis, that either the participation thereins of the workman became elicited nor obviously when he participated therein. Therefore, on the afore .
stand point also, it becomes concluded that the afore ground of the workman hence purportedly abandoning his duties, is merely a pretextually raised ground by the employer.
14. For the foregoing reasons, the extant writ petition is dismissed, and, the impugned award is affirmed, and, maintained. All pending applications also dismissed.
(Sureshwar Thakur) 27 August, 2021 th Judge (kck) ::: Downloaded on - 31/01/2022 22:58:17 :::CIS