Pradeep Kumar vs State of H.P.

Surinder Singh, J.—The petitioner preferred the present petition under Article 226 of the Constitution of India, mainly seeking the following reliefs:- (a) To issue a writ of certiorari or direction in nature thereof, quashing the impugned order dated 28.12.2006 being Annexure P-3 of the writ petition, as unconstitutional and illegal and contrary to the law; and

(b) To issue a writ of mandamus, appropriate writ, order or direction in nature thereof, directing the respondents No. 2 to refer the dispute of the petitioner on all accounts to the Industrial Tribunal for proper adjudication.

The petitioner was engaged on daily wages on 26.2.1988 by the respondent-Board and continued as such till 25.5.1988, thereafter reengaged on 5.5.1990 till 18.11.1991, again on 11.2.1992 to 25.2.1994. Thereafter his services were dispensed with, with an assurance to reengage him on priority in case of need, as indicated in Annexure P-1 dated 7.6.1994. The petitioner raised industrial dispute when he was not reengaged vide Annexure P-2 in the year 2004, which was rejected vide Annexure P-3 dated 28th December, 2006 as having raised after the lapse of 10 years, without any justification for such a delay. 2. Vide Annexure P-4, petitioner sought the information under the Right to Information Act, 2005 with respect to the office notes which were supplied to him showing that the matter with respect to the representation made by the petitioner was dealt with at various levels at different times. The respondent-Board got the matter examined from their legal cell. They admitted and highlighted the illegality having been committed while disengaging him without complying with the provisions of Section 14 of the Industrial Disputes Act, 1947 and in the light of the judicial pronouncements i.e. Surendra Kumar Verma and Others Vs. Central Government Industrial Tribunal-Cum-Labour Court, New Delhi and Another, and Apex Court judgment The State Bank of India Vs. Shri N. Sundara Money, . Even he had also made representation to the then Chief Minister. The legal cell of the Board on examination opined:-

Matter has been examined. In context, it is stated that Board is with in its powers to rectify any of the mistakes committed by it while running the administration. In this matter as well, the Board can rectify the mistake committed by it. However in this case the question of providing employment by ordering reengagement is concerned, which may be termed as violation of interim direction passed by the Regulator as the said direction permits Board to give employment to only those persons who are around with Court verdicts.

Thus, the matter was placed before the Competent Authority. On hard persuasion of the petitioner, the respondent-Board processed the matter further, pursuant to the demand notice, on receiving the report u/s 12(4) of the Industrial Disputes Act, 1947 from the Labour Officer-cum-Conciliation Officer, Shimla, in respect of his dispute with the Additional Superintending Engineer, HPSEB, rejected the same on the ground of delay as aforesaid.

The respondent-Board in their reply contended that the petitioner never worked continuously for 240 days in a year. The 3rd respondent already ensured him on priority when required, but however, pursuant to this, as a policy matter, the respondent-Board had taken a decision not to reengage any dailywagers, thus, his case was not considered.

Respondents No. 1 and 2 submitted that the 2nd respondent being an appropriate Government examined the report so sent by the Labour Officer-cum-Conciliation Officer and reply filed by the respondent-Board during the course of conciliation found that he had worked w.e.f. 26.2.1988 to 18.11.1991 in Electrical Division, Shimla, thereafter left job at his own will. Afterwards, he was engaged for specific work of repairing L.T. Line w.e.f. 11.2.1994 to 25.2.1994. The petitioner has raised a service dispute on 28.6.2011 after lapse of 10 years without giving any details and fact of delay. Prior to the demand notice, he did not do anything, which could mean that the issue was alive and demand notice was an afterthought.

After considering the entire matter in the above factual background, the question arises whether the claim of the petitioner had become stale and therefore, no longer exists. The Full Bench of this Court in CWP No. 1486 of 2007 titled Liak Ram v. State of H.P. and others, considered this aspect of the matter in extenso, in view of the various judgments of the Supreme Court. It observed that so far delay in seeking the reference is concerned, no formula of universal application can be laid, however, it depends upon the facts of each individual case. On careful scrutiny of the various judgment of the Apex Court, per majority judgment, it was held whether the dispute exists or not or has faded or has eclipsed is a question of fact which can only be decided in view of the facts and circumstances of each case.

Against the aforesaid background, in my considered opinion, the fault is also admitted by the respondent-Board in clear and unambiguous words, as indicated above in disengaging the petitioner without following the procedure. No fault can be attributed to the petitioner as he was assured for being reengaged, if need be, but when he kept on waiting for the response of department all along these years, he certainly raised the ''Industrial Dispute''. Thus, since the petitioner has offered a semblance of explanation of delay, therefore, Annexure P-3 dated 28.12.2006 be and is hereby quashed set-aside. Thus a mandamus is issued to the 2nd respondent directing him to refer the dispute of the petitioner on all accounts of the ''Industrial Dispute'' for its adjudication to the Industrial Tribunal/ Labour Court concerned. The petition stands disposed, so also the pending applications, if any.