Himachal Pradesh High Court
The State Of Himachal Pradesh vs General Manager on 20 August, 2021
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
Reportable
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
ON THE 20th DAY OF AUGUST, 2021
BEFORE
.
HON'BLE MR. JUSTICE SURESHWAR THAKUR
CIVIL WRIT PETITION No.4566 of 2013.
Between:-
1. THE STATE OF HIMACHAL PRADESH,
THROUGH SECRETARY (IPH) TO THE
GOVERNMENT OF H.P., SHIMLA-
171002.
2. THE EXECUTIVE ENGINEER, I&PH
DIVISION, DALHOUSIE, DISTRICT
CHAMBA (H.P.).
....PETITIONERS.
(BY MR. HEMANT VAID &
MR. ASHWANI SHARMA, ADDITIONAL
ADVOCATE GENERALS WITH
MR. VIKRANT CHANDEL AND
MR. GAURAV SHARMA,
DEPUTY ADVOCATE GENERALS. )
AND
SH. DEEP KUMAR SON OF
SHRI BABU RAM, R/O
VILLAGE SANADA, P.O.
GARNOTA, TEHSIL BHATTIYAT,
DISTRICT CHAMBA (H.P.).
....RESPONDENT.
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(BY MR. AVINASH JARYAL,
ADVOCATE)
RESERVED ON: 13TH AUGUST, 2021.
DELIVERED ON : 20TH AUGUST, 2021.
Court passed the following:-
r to
This petition coming on for final hearing this day, the
JUDGMENT
The hereinafter extracted reference became transmitted to the Presiding Judge, Labour Court-cum-Industrial Tribunal, Dharamshala, H.P (hereinafter called as "Labour Court":-
"Whether termination of services of Sh. Deep Kumar s/o Shri Babu Ram by the Executive Engineer, IPH Division Dalhousie, District Chamba, H.P. w.e.f. 01.07.1999 and retaining the junior workmen, as alleged by worker, is proper and justified? If not, what amount of back wages, seniority, past service benefits and compensation the aggrieved workman is entitled to?::: Downloaded on - 31/01/2022 22:55:22 :::CIS
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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 becoming forthwith re-engaged in service. Moreover, he was declared to be entitled to seniority and continuity in service from the date of his illegal termination i.e. 01.07.1999.
However, the relief of back wages became denied to him:-
"28. As a sequel of my findings on the various issues above, the instant claim petition succeeds in part and the same is partly allowed. The retrenchment of the petitioner is set aside and quashed. The respondent is directed to re-engage the petitioner forthwith. He shall be entitled to the seniority and continuity in service from the date of his illegal termination i.e. 01.07.1999 except back wages. Parties to bearing their own costs."
2. The State of H.P. become aggrieved therefrom, and, hence, through the extant petition has strived to seek annulment thereof.
3. The first and foremost submission, as becomes addressed before this Court, by the learned Additional Advocate ::: Downloaded on - 31/01/2022 22:55:22 :::CIS ...4...
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General, appertains to infirm findings becoming rendered by the learned Labour Court concerned, upon, the issue appertaining to the claim petition, as, instituted by the workman concerned, after receipt of reference by the Labour Court concerned, being a stale claim or it being barred by delay and laches.
4. 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, Haryana Roadways, Hissar, reported in 2014 AIR SCW 5515.
5. 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 the Labour Commissioner concerned, becoming bestowed with any valid empowerment to, on the ground of delay, and, latches, ::: Downloaded on - 31/01/2022 22:55:22 :::CIS ...5...
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hence decline to make reference, of, an industrial dispute, to, the Labour Court-cum-Industrial 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, vis-a-vis, the afore facet.
6. 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 Judes 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, verdict whereof become followed in a verdict pronounced in case titled as Nedungadi Bank Ltd. vs. K.P. Madhavankutty & Ors, reported in 2000(2) ::: Downloaded on - 31/01/2022 22:55:22 :::CIS ...6...
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 Court-cum-
Industrial Tribunal 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 Court-cum- Industrial Tribunal concerned.
7. The learned counsel appearing for the petitioner, 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 ::: Downloaded on - 31/01/2022 22:55:22 :::CIS ...7...
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afore verdict rendered in National Engineering's case (supra), remains intact, and, also acquires concomitant conclusive, and, binding effect.
8. 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 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 Engineering Industries Ltd. vs. State of Rajasthan & Ors, reported in 2000 (1) SCC 371, vis-a-vis, 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 ::: Downloaded on - 31/01/2022 22:55:22 :::CIS ...8...
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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, the appropriate government, for, making a valid reference of an industrial dispute, to, the Labour Court-
cum-Industrial 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 ::: Downloaded on - 31/01/2022 22:55:22 :::CIS ...9...
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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 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 ::: Downloaded on - 31/01/2022 22:55:22 :::CIS ...10...
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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), 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 workman becoming acquitted, by, the criminal court of competent jurisdiction, (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 ::: Downloaded on - 31/01/2022 22:55:22 :::CIS ...11...
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Labour Court-cum-Industrial Tribunal concerned, (b) thereupon, the latter not becoming validly enabled to, only, on an issue appertaining to delay, and, latches rather dismiss the reference, dehors its meteing any decision, on, the merits of the industrial dispute, as becomes transmitted to it, for adjudication, by, the appropriate government.
toIt appears that the making, of, the apposite reference by the appropriate government, vis-a-vis, the Labour Court-cum-Industrial 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, vis-a-vis, 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, vis-a-
vis, the workman, rather on vices, of, delay, and, latches, gripping the apposite reference, to hence, make a decision, ::: Downloaded on - 31/01/2022 22:55:22 :::CIS ...12...
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upon, the merits of the referred industrial dispute. The afore starkingly visible prevailing factual matrix, in, Raghubir Singh's case (supra), 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, vis-a-vis, 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. .
9. Be that as it may, even the deepest, and, circumspect reading of the 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 ::: Downloaded on - 31/01/2022 22:55:22 :::CIS ...13...
Labour Court for adjudication of the existing industrial .
dispute; it has erroneously held it to be barred by limitation.
This award was further 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 follos:
"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 ::: Downloaded on - 31/01/2022 22:55:22 :::CIS ...14...
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. 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 Section 10(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 quasi-judicial 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 ::: Downloaded on - 31/01/2022 22:55:22 :::CIS ...15...
after some time. But when the dispute remained alive though .
not galvanized by the workmen or 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, vis-a-vis, 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 ::: Downloaded on - 31/01/2022 22:55:22 :::CIS ...16...
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to render a decision on the reference supra. As a sequel, the afore submission of the learned Additional Advocate General, is rejected.
10. However, with the respondent/employer making denial on affidavit, as, became adduced before the learned Labour Court concerned, with respect to the afore retentions in service of workmen purportedly junior to the retrenched workman and also making denials qua re-engagements of purportedly junior workmen to the retrenched workman, does hold vigour, as no cogent evidence in rebuttal thereto became adduced by the workman.
11. Be that as it may, the employer's pleading with respect to the purported willful abandonment of job by the workman concerned, cannot be validated, as, upon his willful absence, if any, from his duties, he was to be provenly served with a notice, and, upon his thereafter not re-joining duties, he would be concluded to willfully abandon his job. Since, the afore evidence is amiss, thereupon, the workman is concluded ::: Downloaded on - 31/01/2022 22:55:22 :::CIS ...17...
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to not abandon his works, rather the dispensing of his services is illegal.
12. For the foregoing reasons, the extant writ petition is dismissed, and, the impugned award is affirmed, and, maintained. All pending applications also dismissed.
r to (Sureshwar Thakur)
Judge
20th August, 2021.
(jai)
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