Sanjay Kumar vs State of H.P. and others

Justice Sanjay Karol, J.—The writ petition is filed with the following prayer:-

It is, therefore, respectfully prayed that this petition may kindly be allowed and a writ of certiorari for quashing of order 18th December 2007 passed by respondent No. 2 may kindly be issued and the same may accordingly be quashed and respondent No. 2 further by issuing writ of mandamus may kindly be directed to refer the matter to Labour Court for adjudication in accordance with law.

The impugned order (Annexure P-4) reads as under:-

No. 11-23/84(Lab)I.D./07-Mandi. Government of Himachal Pradesh Department of Labour and Employment

Dated, Shimla-171001 18 Dec, 2007

From

The Labour Commissioner, Himachal Pradesh

To Shri Sanjay Kumar S/o Shri Duni Chand, R/o Village Consal, P.O. Bassi, Tehsil Joginder Nagar, Distt. Mandi, H.P.

Subject:- Demand Notice and report u/s 12(4) of the Industrial Disputes Act, 1947.

Sir, This is with reference to your demand notice and report u/s 12(4) of the Industrial Disputes Act, 1947 received from Labour Officer-cum-Conciliation Officer, Mandi, District Mandi, H.P. in respect of your dispute with the Executive Engineer, H.P.S.E.B., Electrical Division, Joginder Nagar, District Mandi, H.P. After careful examination of the above report, it is found that you have not completed 240 days continuously in preceding 12 months prior to your termination which is mandatory u/s 25-B 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/s State of H.P. & ors 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.

Yours faithfully,

Sd/ Labour Commissioner, Himachal Pradesh.

Judgment dated 8.12.2006 relied upon by the Labour Commissioner in his order, in entirety, is reproduced as under:-

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.

While deciding the petitioner''s application, the Labour Commissioner, in view of the subsequent decision of this Court in Jhabe Ram versus State of H.P. and others, CWP No. 921 of 2006, decided on 16.4.2007 and in earlier decision in Shri Bhaga Ram and another versus Shri Bhaga Ram and Another Vs. H.P. State Electricity Board and Another, could not have gone into the question as to whether petitioner had completed 240 days continuously in the preceding twelve months prior to his alleged termination or not.

The fact of the matter is that Labour Commissioner has also not gone into the question of petitioner''s claim being stale or not, keeping in view the principles laid down by Full Bench of this Court in CWP No. 1486 of 2007, titled as Liaq Ram versus State, decided on 6.1.2011.

Consequently the impugned order dated 18.12.2007 is quashed with a direction to the Labour Commissioner, Himachal Pradesh to consider the petitioner''s request for referring the matter to the Labour Court in accordance with law and by taking into account the principles laid down by this Court in Liaq Ram''s case (supra). Necessary action shall positively be taken within a period of three months from the date of receipt of certified copy of the judgment. Needless to add, petitioner shall be afforded hearing before final order is passed. Liberty granted to the petitioner to place additional material, if required.

In view of my above observations, petition stands disposed of, so also the pending application(s), if any.