The State Of Himachal Pradesh vs General Manager
2021 Latest Caselaw 4209 HP

                               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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                            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

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,

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,

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.

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

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

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,

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

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),

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

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),

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

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.

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

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

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

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,

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

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)