Naresh Kumar vs State of Himachal Pradesh and Others

V.K. Ahuja, J.—The petitioner, by way of the present writ petition under Article 226 of the Constitution of India, has challenged the order, dated 30.10.2007, Annexure P-5, passed by Labour Commissioner, H.P. refusing to make a reference to the Labour Court. A notice of the petition was sent to the respondents.

I have heard the learned Counsel for the parties and have gone through the record of the case.

A perusal of the impugned order Annexure P-5 passed by the Labour Commissioner shows that he had refused to make a reference to the Labour Court in pursuance of the demand notice issued by the petitioner. The relevant portion of the impugned order reads as under:

...After careful examination of the above report, it is found that you have not completed 240 days continuously in proceeding 12 months and employer has also served one month notice prior to your termination which is mandatory u/s 25B of the Industrial Disputes Act, 1947. Therefore, in view of the judgment of Division Bench of Hon''ble High Court of H.P. in CWP No. 1086/2006-titled Mam Chand v. State of H.P. and others, there is no justification of making reference to Ld. Labour Court. As the alleged dispute is frivolous and vexatious.

Accordingly, you are informed as per provisions of Section 12(5) of the Industrial Disputes Act, 1947 that your dispute under reference in view of above mentioned reasons is not being referred to the Hon''ble Labour Court of Himachal Pradesh for adjudication."

the learned Labour Commissioner in refusing to make a reference has placed reliance upon the decision of this High Court passed in CWP No. 1086 of 2006, titled Mam Chand v. State of H.P. and others, and a copy of the said judgment has been placed on record by the learned Assistant Advocate General, in which the following order was passed by the Division Bench:

The claim of the petitioner decidedly was stale as well as suffered on account of the fact that the petitioner had not worked for 240 days in the preceding twelve months. The impugned order therefore, does not suffer from any illegality. The writ petition is dismissed.

The said decision, referred to above, has been relied upon by the learned Labour Commissioner, though it does not apply directly to the facts of the case. In the present case, the petitioner had filed a petition before the erstwhile Tribunal for making a reference seeking the relief and in view of the law laid down by the Apex Court that the Tribunal has no jurisdiction to hear the matter, the petition filed by the petitioner was withdrawn on 28.10.2005. Thereafter, the petitioner issued a demand notice, dated 18.5.2006, (Annexure P-4) to respondent No. 3 and, thereafter, the impugned order was passed by the Labour Commissioner. It is, therefore, clear that the petitioner had approached the erstwhile Tribunal seeking the relief and once the jurisdiction of the said Tribunal was not there, he issued a fresh demand notice within one year and as such the dispute was kept alive by the petitioner and it cannot be said to be a stale or old dispute, which was not kept alive.

The only question left for consideration is as to whether the Labour Commissioner himself could decide the question that the petitioner has not completed 240 days continuously in preceding 12 months and the employer had also issued one month''s notice prior to the termination, which is mandatory u/s 25H of the Industrial Disputes Act, My attention has been drawn to the decision of a Division Bench of this Court, dated 29.3.2012, passed in LPA No. 167 of 2007, titled Labour Commissioner and another versus Besar Lal and others, and the relevant portion of the said judgment reads as under:

In this case the Labour Commissioner refused to make a reference only on the ground that the employee had failed to show that he had completed 240 days of service in 12 months prior to his termination. This is not a question which the Labour Commissioner can go into as per the judgment of the Full Bench referred to above. The Labour Commissioner cannot go into the merits of the case and can only decide whether an industrial dispute exists or not. Therefore, the appeal of the State is dismissed.

It is, therefore, clear that according to the above judgment, this question has to be considered by the Labour Court and the Labour Commissioner cannot go into the question and decide as to whether industrial dispute exists or not. Therefore, the impugned order passed by the learned Labour Commissioner is set aside and he is required to make a reference to the Labour Court accordingly. The petition stands disposed of accordingly, so also the pending application(s), if any.