Tula Ram vs State Of H.P. & Ors

Jyotsna Rewal Dua, J

Challenge in this petition is to an order dated 17.04.2012, whereby learned Labour Commissioner, Himachal Pradesh, declined to refer the grievances of the petitioner (industrial dispute) to the learned Labour Court/Industrial Tribunal.

In terms of the impugned order, learned Labour Commissioner took the view that the petitioner had worked with his employer i.e. Himachal Pradesh Public Works Department w.e.f. 01.01.1999 to 07.07.2005. He did not raise any dispute from 07.07.2005 to 06.03.2010. After remaining quite for more than four years, petitioner presented demand notice on 06.03.2010. According to learned Labour Commissioner, the dispute had faded with the passage of time and ceased to be in existence. Accordingly, prayer of the petitioner for referring the matter to the concerned Labour Court/Industrial Tribunal was declined.

This petition was instituted in the year 2017. Despite grant of umpteenth number of opportunities, respondents have not filed the reply. On 08.11.2019, following order was passed in the matter:-

“Petitioner is aggrieved by order dated 17.04.2012 (Annexure P4), vide which pursuant to an industrial dispute having been raised by him, Labour Commissioner, Himachal Pradesh has refused to refer the matter to the learned Labour Court-cum-Industrial Tribunal, for adjudication. Refusal by the Labour Commissioner is on the ground of delay and latches.

As per learned counsel for the petitioner, the impugned order is not sustainable in the eyes of law as the delay on the part of workman in raising industrial dispute was not sustainable in the eyes of law as there was only about four years delay on the part of workman in raising industrial dispute and said delay could not be said to be so inordinate so as to deny reference of the industrial dispute for adjudication to the learned Labour Court. He has relied upon certain judgments of this Court to substantiate his contention that ordinarily three to four years delay on the part of a workman in raising industrial dispute is not being considered to be an inordinate delay.

At this stage, learned Additional Advocate General submits that apart from initial delay of four years in raising industrial dispute, after the impugned order was passed by the Authority in April, 2012, it took almost five years for the petitioner to agitate said order by way of filing of a writ petition. Accordingly, he submits that even if the initial delay is to be ignored, there is no explanation as to why the petitioner did not challenge the order which was passed by the Authority in April, 2012, within some reasonable period.

Learned counsel for the petitioner submits that delay in assailing the said order was for the reason that the impugned order was never communicated to petitioner by the Authority concerned and it was in the year 2015 when he sought information under Right to Information Act, with regard to status of his industrial dispute that he was able to procure the order.

Be that as it may, as the delay in assailing order 17.04.2012 has not been satisfactorily explained in the writ petition, learned counsel for the petitioner is directed to file a supplementary affidavit to substantiate his version that the copy of the order which was passed by the Authority in April, 2012, was not communicated to him and he procured the same only by initiating the process under Right to Information Act.

Let the needful be done within three weeks. List on 11.12.2019.”

In compliance to the above order, the petitioner has filed the supplementary affidavit, explaining therein that the impugned order was supplied to him by the concerned authority only in the year 2015, when he procured the same under Right to Information Act. Alongwith the supplementary affidavit, petitioner has also placed on record the documents in support of the factual averments made in the affidavit. Despite grant of opportunities, the respondents have not controverted the contents of the supplementary affidavit.

I am of the considered view that the petitioner has cogently explained the time taken by him in instituting this writ petition in the year 2017. Even though, the order impugned herein was passed on 17.04.2012.

The effect of delay in demanding/making reference of the industrial dispute to the Labour Court/Industrial Tribunal under Section 10(1) of the Industrial Disputes Act, came up for consideration before a larger Bench of this Court in CWP No. 2190 of 2020 (Jai Singh Vs. State of HP and others and the connected matters). The petitions were decided on 30.03.2022, following principles were culled out from series of precedents governing the field: -

“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 be entitled 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 Section 11-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.”

In the light of law laid down in Jai Singh’s case supra, the impugned order dated 17.04.2012 (Annexure P-4) is set aside. The learned Labour Commissioner Himachal Pradesh, is directed to decide the matter concerning referring the dispute raised by the petitioner to the concerned learned Labour Court/Industrial Tribunal afresh keeping in view the law laid down in Jai Singh’s case supra. The order in this regard be passed within a period of six weeks from today. Office of learned Advocate General to communicate passing of this order to learned Labour Commissioner.

The petition stands disposed of in the above terms, so also the pending miscellaneous application(s), if any.