Raj Kumari and Another vs State of Himachal Pradesh and Others

P.D. Desai, C.J.—The following facts are not disputed by the concerned respondents:

The first petitioner was employed as Clerk-cum-Typist on daily-rated basis in the Divisional Forest Office, Kunihar, in the month of January, 1982 and the second petitioner in the month of July, 1983. The said employment of the petitioners was discontinued on and with effect from May 7, 1988, since, according to the concerned respondents, two Clerks were appointed in the said Division on February 18,1986.

The Bhartiya Mazdoor Sangh, Himachal Pradesh, raised a dispute with respect to the discontinuance of the employment of the petitioners and a notice of demand was duly served on the competent authority. The Labour-cum-Conciliation Officer held conciliation proceedings with a view to bringing about a settlement of the dispute and he appears to have made a failure report to the Labour Commissioner, Himachal Pradesh, u/s 12 of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act") The State Government after taking into consideration the comments of the Labour Commissioner, issued two separate Memoranda on June 4 and 8, 1987, the material portions of which read as follows:

...it has been found that the dispute raised by her does not fall within the purview of the Industrial Disputes Act, 1947. She may file her petition regarding termination of her services before the Administrative Tribunal, Himachal Pradesh-2.

Hence the present writ petition.

This Court has time and again drawn the attention of the Labour Department of the State Government to the law governing the subject of the exercise of the powers u/s 10(1) read with Section 12(5) of the Act but it seems that the competent authority still goes on passing orders without due application of mind with the result that there is proliferation of litigation in this Court and avoidable delay in the adjudication of disputes in the competent forum. In P.C. Thapliyal v. Union of India and Anr. ILR 1985 HP 426 this Court has laid down the law in the following terms:

The perspective of the statutory power to make a reference is thus clearly defined by the pronouncements of the highest Court in the above-cited decisions. In arriving at a decision whether or not to refer an industrial dispute for adjudication u/s 10(1) read with Section 12(5) of the Act, the appropriate Government exercise a discretionary power of jurisdiction which operates in a very limited field. The appropriate Government may examine the merits of the dispute, prima facie, to ascertain whether the claim made is either perverse or frivolous or belated. If so satisfied, the appropriate Government may refuse to make a reference. When, however, the appropriate Government applies its mind to the materials on record for the purposes of a prima facie examination of the merits of the dispute to form an opinion whether or not the dispute calls for an adjudication, it has to be appreciated as a rule that: (a) if the dispute in question raises questions of law, the appropriate Government should not purport to reach a final decision on those questions and (b) similarly, on disputed questions of fact also, the appropriate Government cannot purport to reach final conclusions. These matters fall appropriately within the jurisdiction of the Industrial Tribunal and the appropriate Government should be very slow to attempt an examination of the demand from those angles and should not arrive at a final adjudication of the demand itself on that basis and decline a reference on that ground. Any attempt on the part of the appropriate Government in that direction would not only rob the employees of an opportunity to place evidence before the Industrial Tribunal and to substantiate the reasonableness of the demand but also amounts to the usurpation of the powers conferred upon the Industrial Tribunal for adjudication of valid disputes. The courts may be vigilant and should not permit the appropriate Government to do so, lest the provisions of Section 10 read with Section 12 of the Act are rendered nugatory.

To that similar effect is the decision in Ram Chand and Ors. v. Union of India and Ors. ILR 1985 HP 451

In the present case, the affidavit-in-reply dated May 26, 1988 filed by the Under Secretary (Labour) to the State Government makes it abundantly clear that the State Government declined to make a reference since it accepted the view expressed by the Labour Commissioner to the effect that the Forest Department being a Government Department was not covered by the definition of the word "industry" in Section 2(j) of the Act and that, therefore, the provisions of the Act relating to the adjudication of the dispute were not attracted and that the remedy, if any, of the petitioner was by way of the institution of an application before the Himachal Pradesh State Administrative Tribunal which has been constituted for hearing and deciding the service matters of Government employees.

Now, the question whether the Forest Department is "industry" or not is required to be decided on evidence in light of the definition of the word "industry" in Clause (j) of Section 2 of the Act. The principles of law governing the resolution of such a dispute are well settled (see: State of Bombay and Ors. v. The Hospital Mazdoor Sabha and Ors. 1960 I LLJ 25I , The Corporation of the City of Nagpur Vs. Its Employees, and Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and Others, It would be pertinent to point out that in Des Raj and Ors Vs. State of Punjab and Ors, the Irrigation Department of the State of Punjab has been held to be "industry" within the meaning of Section 2(j) of the Act. There is, therefore, no warrant for presuming and proclaiming that a Department of the State Government or certain activities therein carried on can never answer the definition of the word "industry". Besides, if there is a dispute on a question of law such as to whether a particular activity amounts to "industry" or not, it is not for the State Government to reach final decision on such a question while exercising powers u/s 10(1) read with Section 12(5) of the Act. Even if there is dispute on questions of fact bearing upon the determination of the question whether an activity is "industry", such dispute also cannot be finally resolved by the State Government while exercising those powers. Those matters fall appropriately within the jurisdiction of the Industrial Tribunal, Labour Court. It would not be out of place to mention that in Nagpur Corporation''s case (supra) the question whether the said Corporation was "industry" within the meaning of the C.P. and Berar Industrial Disputes Settlement Act, 1947, was determined by the Industrial Court after a reference was made to it and the dispute was finally resolved by the decision rendered by the Supreme Court in that case.

It is thus apparent that the State Government in the Labour Department has exceeded its jurisdiction in declining to make a reference on the ground stated and that its decision is wholly unsustainable; Under the circumstances, the Memoranda, Annexure R-1 and R-2, are quashed and set aside and the State Government is directed to refer the dispute relating to termination, u/s 10(1) read with Section 12(5) of the Act, to the competent Court/Tribunal, within a period of four weeks from today. 7. Before parting with the case, it requires to be stated that the petitioners have not made a specific prayer with respect to the quashing of the Memoranda and the making of a reference to the competent Court Tribunal, although the decision of the State Government in that regard has been challenged in the petition. Besides, the Bhartiya Mazdoor Sangh, who raised the dispute on behalf of the petitioners, is not a party to the present proceedings. However, since the dispute centers round the termination of employment of the petitioners and, as such, can be raised notwithstanding that the union is not a party to such dispute, the Court has issued the aforesaid directions so as to provide an efficacious alternative remedy to the petitioner subject, of course, to the determination of all connected and incidental questions in the course of the adjudication proceedings.

Rule Made absolute accordingly with no order as to costs.