Between vs Unknown
2022 Latest Caselaw 4050 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                     ON THE 2nd DAY OF JUNE, 2022




                                                         .

                               BEFORE

                 HON'BLE MS. JUSTICE SABINA,
                    ACTING CHIEF JUSTICE





                                  &
              HON'BLE MR. JUSTICE SATYEN VAIDYA

               CIVIL WRIT PETITION No.2161 of 2022




    1.
         Between:-

         SH. DHARAM CHAND,

         S/O SH. DHARU RAM, AGE 45 YEARS,

         R/O VILLAGE DURKUNU,
         POST OFFICE KANDA,
         TEHSIL KARSOG, DISTRICT MANDI,
         HIMACHAL PRADESH.


    2.   SH. KESAR SINGH,
         S/O SH. KARAM CHAND, AGE 47 YEARS,
         R/O VILLAGE KUMEHRI,
         POST OFFICE SOMAKOTHI,




         TEHSIL KARSOG, DISTRICT MANDI,
         HIMACHAL PRADESH.





    3.   SH. DUMA RAM,
         S/O SH. PARAS RAM, AGE 49 YEARS,
         R/O VILLAGE BUNNA,





         POST OFFICE SOMAKOTHI,
         TEHSIL KARSOG, DISTRICT MANDI,
         HIMACHAL PRADESH.
    4.   SH. AMAR SINGH,
         S/O SH. DHARMU, AGE 56 YEARS,
         R/O VILLAGE BEGO,
         POST OFFICE CHAURIDHAR,
         TEHSIL KARSOG, DISTRICT MANDI,
         HIMACHAL PRADESH.
    5.   SH. DIMA SINGH,
         S/O SH. NOKH RAM, AGE 44 YEARS,
         R/O VILLAGE KANDI,
         POST OFFICE BALINDI,




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                               -2-


         TEHSIL KARSOG, DISTRICT MANDI,
         HIMACHAL PRADESH.
    6.   SH. PARMAR SINGH,




                                                     .
         S/O SH. TULLA RAM, AGE 43 YEARS,





         R/O VILLAGE TIKKAR,
         POST OFFICE SHORSHAN,
         TEHSIL KARSOG, DISTRICT MANDI,
         HIMACHAL PRADESH.





    7.   SH. SURENDER KUMAR,
         S/O SH. MOTI RAM, AGE 51 YEARS,
         R/O VILLAGE SHAULTH,
         POST OFFICE SHORSHAN,
         TEHSIL KARSOG, DISTRICT MANDI,





         HIMACHAL PRADESH.
    8.   SH. HARI SINGH,
         S/O SH. KARAM DASS, AGE 42 YEARS,
         R/O VILLAGE BEGO,

         POST OFFICE CHAURIDHAR,
         TEHSIL KARSOG, DISTRICT MANDI,

         HIMACHAL PRADESH.
    9.   SH. NET RAM,
         S/O SH. RAM SARAN, AGE 34 YEARS,
         R/O VILLAGE KATACHH,


         POST OFFICE SHORSHAN,
         TEHSIL KARSOG, DISTRICT MANDI,
         HIMACHAL PRADESH.
                                                ......PETITIONERS




         (BY MR. C.N. SINGH, ADVOCATE)





         AND

    1.   THE DEPUTY LABOUR COMMISSIONER





         TO THE GOVERNMENT OF
         HIMACHAL PRADESH, SHIMLA.
    2.   THE DIVISIONAL MANAGER,
         FOREST CORORATION, FOREST
         WORKING DIVISION SUNDERNAGAR,
         DISTRICT MANDI, HIMACHAL PRADESH.
    3.   THE RANGE OFFICE FOREST
         CORPORATION, FOREST WORKING
         RANGE, PANGNA, DISTRICT
         MANDI, HIMACHAL PRADESH.
                                             ......RESPONDENTS




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                                      -3-


          (MR. ASHWANI SHARMA,
          ADDITIONAL ADVOCATE GENERAL,
          FOR R-1 AND, MR. RAJESH VERMA,




                                                              .
          ADVOCATE, FOR R-2 & R-3)





                This petition coming on for admission this day, Hon'ble





    Ms. Justice Sabina, passed the following:

                                  ORDER

Petitioners have filed the petition under Article 226 of

the Constitution of India, challenging orders dated 16.01.2021,

18.02.2021,19.02.2021 and 06.03.2021, whereby the demand

notices served by the petitioners were declined by the Deputy

Labour Commissioner for adjudication, on the ground of delay.

2. Learned counsel for the petitioners has submitted that

the petitioners were engaged as Resin Extractor with respondents

No.2 and 3. However, the services of the petitioners had been

terminated in the month of March, 2004 by respondent No.2, in

violation of the provisions of Sections 25-F and 25-G of the Industrial

Disputes Act, 1947. Petitioners had served demand notices and

respondent No.1 has declined to refer the dispute, raised by the

petitioners, to Labour Court for adjudication on the ground of delay.

The question of delay in raising the dispute could not have been

gone into by respondent No.1.

3. Learned Additional Advocate General, on the other

hand, has opposed the petition and has submitted that the Full

Bench of this Court in CWP No.2190 of 2020, titled Shri Jai Singh

.

versus State of Himachal Pradesh and others and connected

matters, decided on 30th March, 2022, has held that Government

was well within its right to decline to refer the matter to Labour

Court/Industrial Tribunal on the ground of delay and latches. It is

further submitted that in the present case, the petitioners had raised

the dispute after a lapse of 15 years.

4. Relevant para of the judgment of Full Bench of this

Court in Jai Singh's case (supra), reads as under:-

"28. Following principles of law can, therefore be culled out from series of the precedents discussed

above, as to the effect of delay in demanding/ making reference of the industrial dispute to the Labour Court/Industrial Tribunal under Section 10

(1) of the Act:-

i) That the function of the appropriate Government while dealing with question of making reference of

industrial dispute under Section 10(1) of the Act, is an administrative function and not a judicial or quasi judicial function.

ii) That the Government before taking a decision on the question of making reference of the industrial dispute has to form a definite opinion whether or not such dispute exits or is apprehended.

iii) That whether or not the industrial dispute exists or is apprehended in the meaning of Section 10(1)

.

of the Act can be decided by the appropriate

Government alone and not by any other authority including by this Court.

iv) That the appropriate Government in discharging the administrative function of taking a decision to make or refuse to make, reference of the industrial

dispute under Section 10(1) of the Act, has to apply its mind on relevant considerations and has not to act mechanically as a post office.

v) That while forming an opinion as to whether the

industrial dispute exists or is apprehended, the appropriate Government is not entitled to adjudicate the dispute itself on merits.

vi) That the delay by itself does not denude the appropriate Government of its power to examine

advisability of making reference of the industrial dispute but the delay would certainly be relevant for

deciding the basic question whether or not the industrial dispute "exists" which also includes the

decision to find out whether on account of delay the dispute has ceased to exist or has ceased to be alive or has become stale or has faded away.

vii) That whether or not a dispute is alive or has become stale or non-existent, would always depend on the facts of each case and no rule of universal application can be laid down for the same.

viii) That even if Section 10(1) of the Act empowers the appropriate Government to form an opinion "at

.

any time" on the question whether any "industrial

dispute" "exists or is apprehended", and there is no time limit prescribed for taking such a decision, yet

such power has to be exercised by the appropriate Government within a reasonable time.

ix) That the period for making reference of

industrial dispute is co-extensive with the existence of dispute because the factum of the "existence" or "apprehension of the dispute" is conditioned by the

effect of the delay on the liveliness of the dispute.

x) That the appropriate Government in arriving at the decision to make a reference of industrial dispute or otherwise, in the context of delay, may

examine whether the workman or the Union has been agitating the matter before the appropriate

fora so as to keep the dispute alive, which however, does not necessarily mean that in a case

where such action has not been initiated, the dispute has ceased to exist.

xi) That the appropriate Government can, as per Section 10(1) of the Act, take a decision on the question of making reference "at any time", thus implying that there is no limitation in taking such decision and the provisions of Article 137 of the Schedule to Limitation Act, 1963 are not applicable to such proceedings.

xii) That the appropriate Government while taking a decision on the question of making reference, need

.

not provide an elaborate opportunity of hearing to

the workman but it is under an obligation to consider his explanation for delay in making the

demand.

xiii) That in cases where the appropriate Government while examining the question of

making a reference of industrial dispute arrives at a decision that the question that on account of delay the dispute has ceased to exist or alive, would

require elaborate examination of the evidence, it

may while making a reference of the industrial dispute, additionally formulate question on this aspect to be decided as preliminary issue while

simultaneously also making a reference on the industrial dispute to be decided as secondary issue.

xiv) That even in a case where reference has been

made to the Industrial Court after prolonged delay, such Court would been titled to mould the relief by

declining whole or part of the back wages.

xv) That even when a reference is made by appropriate Government in a case after huge and enormous unexplained delay, the industrial Court would be entitled to return the reference since such Court judiciously exercises its wide jurisdiction under Section11-A of the Industrial Disputes Act and is under obligation to consider whether in such

like situation any relief at all could be granted to the workman."

.

5. In view of the facts and circumstances of the case and

the judgment of the Full Bench of this Court in Jai Singh's case

(supra), this petition is liable to be dismissed.

6. Accordingly, the petition is dismissed.

                         r            to                 ( Sabina )
                                                    Acting Chief Justice

                                                      ( Satyen Vaidya )
                                                            Judge
    June 02, 2022


         ( Himalvi)