Love Kumar vs State of Haryana and Others

J.S. Narang, J.—The prayed in this petition filed under Articles 226/227 of the Constitution of India is for quashing of orders dated

4.4.2002 and 30.6.2003 (Annexure P-2 & P-3 respectively) passed by respondent No. 2. The appropriate Government vide impugned order

dated 4.4.2002 refused to refer the dispute to the Labour Court raised by the petitioner-workman, with regard to illegal termination of his service.

The appeal filed by the petitioner-workman for review of the order dated 4.4.2002 was also dismissed on, 30.6.2003.

There is no representation for and on behalf of the petitioner-workman.

A perusal of file shows that the petitioner-workman challenging his termination had served a demand notice, which was contested by the

management. Thereafter efforts for reconciliation were made but the same were failed. On receipt of failure report, the appropriate government

vide impugned order dated 4.4.2002 refused to refer the matter to the Labour Court by observing as under:

You are hereby informed that Govt. does not fit for reference your case to the Labour Court because you have completed only 199 days and you

were engaged on temporary basis. The management terminated your services on the ground No Longer required. Therefore, termination of your

services does not fall under the definition of retrenchment u/s 2(oo)(bb) of the I.D. Act, 1947.

The appeal filed by the petitioner-workman seeking review of the order dated 4.4.2002 also meted with the same fate and it was dismissed vide

the impugned order dated 30.6.2003, in the following manner: ""Your appeal was considered and there was no considerable point in this appeal

and the same is rejected and earlier decision of the Govt. will stand.

Dissatisfied with the same, the petitioner has filed the instant petition.

Upon notice of the petition, respondent No. 3 has filed the written statement taking the plea that the respondent-workman in his own showing

had not completed 240 days of service. They also resisted the pleas raised by the petitioner and justifying the stand of the appropriate Government

of not referring the dispute to the Labour Court. Further, any violation of provisions of the Industrial Disputes Act, 1947 (for brevity the Act) in

terminating the services of the petitioner-workman has been denied.

Thus, it is clear from a perusal of the impugned order dated 4.4.2002, reproduced above, that the appropriate Government while declining the

prayer of the petitioner for referring the dispute to the Labour Court has noticed two things viz. firstly that the workman has worked for 199 days

only and secondly that his termination does not fall within the definition of retrenchment u/s 2(oo)(bb) of the Act. On the other hand, the demand

notice (Annexure P-4) served by the petitioner-workman contains allegations of unfair labour practice on the part of the management. It is alleged

by the petitioner-workman therein that the management had not bothered for the seniority while terminating his service and they are taking the

work of his seat from a new worker. The respondent-workman in a way had also alleged the violation of Section 25-H of the Act. It was not

within the domain of the government to adjudicate upon the said questions. It is only within the ambit of the jurisdiction of the Industrial Tribunal or

the Labour Court constituted under the Act to determine his dispute. The Government cannot encroach upon the functions which have been

specifically entrusted to the Industrial Tribunal under the Act. It was held by the Hon''ble Supreme Court in M.P. Irrigation Karamchari Sangh Vs.

State of M.P. and Another, , that Section 10 of the Act permits appropriate Government to determine whether dispute ""exists or is apprehended''

and then refer it for adjudication on merits. The demarcated functions are (1) reference; (2) adjudication. Government should be very slow to

attempt as examination of the demand with a view to decline reference and Courts will always be vigilant whenever the Government attempts to

usurp the powers of the Tribunal for adjudication of valid disputes. To allow the Government to do so would be to render Sections 10 and 12(5)

of the Act Nugatory"". In this context further reliance can be placed on the judgments of Hon''ble the Apex Court in the cases of Ram Avtar

Sharma v. State of Haryana 1985 (2) S.L.R. 57 (S.C.) and Chemicals and Fibres of India Ltd. Vs. Union of India (UOI), .

Considering the law on this point, we find that the impugned orders passed by respondent No. 2 are wholly unsustainable.

For the foregoing reasons, the writ petition is allowed. The impugned orders dated 4.4.2002 and 30.6.2003 passed by the appropriate

government are set aside. The appropriate government shall pass orders afresh on the demand notice of the petitioner-workman, considering the

law laid down by Hon''ble the Apex Court as well as the discussion made by us in the proceeding para of this judgment. The parties are left to

bear their own costs.