State of Himachal Pradesh vs Hari Singh

Deepak Gupta, J.—The learned Single Judge while deciding this case came to the conclusion that the State Government has no jurisdiction to refuse to make a reference. As far as this issue is concerned, the finding of the learned Single Judge is not correct, in view of the law laid down a Full Bench of this Court in CWP No. 1484 of 2007 titled Laiq Ram Vs. State of H.P. wherein this question was answered in the following terms:- After carefully going through the various judgments of the Apex Court, it is apparent that in some cases the Apex Court itself has held that since there is delay in seeking the reference the dispute had faded away or had got eclipsed due to lapse of time. Even in those cases where the Apex Court held that the reference was proper and the dispute still existed, it went onto hold that incases were lapse of time had caused fading or eclipsing of the dispute and nobody had kept the dispute alive, it would be reasonable to conclude that the dispute ceases to exist. The Government is authorized to form the opinion whether a dispute exists or not. This clearly shows that the Government is not powerless and in case there is great delay and there is no explanation for the delay then the Government can refuse to make a reference on the ground that the claim is stale and therefore the industrial dispute no longer exists. An industrial dispute can fade away and cease to exist because of long delay where the workman has taken no steps to keep the dispute alive. However, if the workman or the Union has kept the dispute alive even if no action has been initiated it will not mean that the dispute ceases to exist. Whether, a dispute exists or not, or has faded or got eclipsed is a question of fact which has to be decided in the facts and circumstances of each case.

Therefore, the appropriate Government has to be subjectively satisfied while forming an "opinion" such power has to be exercised reasonably and in a rational manner, whether a dispute exists or not. In case the answer is in positive, it has to refer the matter to Court/Tribunal irrespective of time lapse, though, it would depend on the factual background of each case and no straight-jacket formula can be laid.

Therefore, each case will have to be examined and it will have to be seen whether the employee has kept the dispute alive or not. In this case, the services of the employee were orally terminated on 25.1.1990. The stand of the petitioner/ employee is that in the year 1996, he came to know that employment had been given by the Board to some employees. He therefore, asked for being reengaged and when the request was refused he filed writ petition No. 962 of 96 which was disposed of on 1.8.1996 and the petitioner/ employee was given a right to file representation to the Board. Thereafter, the representation was filed on 18.8.1996 and was rejected by the Board. Thereafter, the petitioner submitted demand notice in terms of the Industrial Dispute and reply to the demand notice was also filed by the Electricity Board before the Labour Court, Shimla. Labour Commissioner vide his order dated 8th January, 2002 rejected the application only on the ground that the dispute has been raised after a period of 10 years i.e on 8.4.2000. The Labour Commissioner did not take into consideration the fact that in between the petitioner had filed the writ petition and further more that this Court had directed him to first approach his employer and thereafter, could only file a demand notice The petitioner kept the dispute alive and in this case it can not be said that the dispute had become stale or had ceased to exist. Therefore, the order of the Commissioner in this case was rightly set-aside by the learned Single Judge. As such, Appeal is dismissed.