Himachal Pradesh High Court: A Division Bench of Tarlok Singh Chauhan and Jyotsna Rewal Dua JJ., while deciding the present matter challenging order of the State Government, referred several precedents to opine that the issue requires adjudication by a larger bench.
In the present bunch of writ petitions, the Appropriate Government declined to refer the dispute to the Labour Court/Industrial Tribunal for adjudication on ground of delay (claim brought after twenty-six years of illegal termination). The order declining to refer the dispute has been assailed in the petitions.
Whether the State Government, before referring a matter to the Labour and Industrial Tribunal, can evaluate the validity/righteousness of the claims raised, that is to say, can the State Government apply its own mind while exercising powers under Section 10(1) of the Industrial Disputes Act, 1947 or it is under a statutory obligation of directing the same to the Tribunal without any say?
While reflecting upon the aforementioned issue, Court reproduced Section 10 of the Industrial Dispute Act, 1947 and referred the following cases;
Laiq Ram v. State of Himachal Pradesh, 2011 SCC OnLine HP 149, where a Division Bench of the present High Court referred a similar question to a larger bench for adjudication. R.B. Misra J., answered the question in reference stating that, “The words are plain, unambiguous and are clear in Section 10(1) of the Act so far as formation of the opinion by the appropriate Government regarding existence or apprehension of the industrial dispute. The intention of the legislature is to be gathered from the words used, therefore, liberty is not open to the appropriate Government to travel beyond the intention of legislature and it could not be presumed that the legislature has committed mistake in not providing limitation and while interpreting the statutory provision like Section 10(1) of the Act. It is not permissible to add words in the statute or in Section and read words into it which are not specifically provided therein when literal reading produces an intelligible result. It is also not permissible for the appropriate Government or the Court to add or subtract any word in the name of ‘stalement’ in any Section or statute while interpreting the same, as, such aspect would amount legislation which is not permissible even for the Court. Therefore, in view of the observations made above, it would not be open to the State Government, while exercising powers under Section 10(1) of the Act, to decide the question whether the claim by the workmen is stale or not, as such, the question, referred by the Division Bench of this Court, is dealt with accordingly.”
The Court further referred the opinion of Deepak Gupta J., in the words, “Government is authorized to form the opinion whether a dispute exists or not. Government is not powerless and in case an industrial dispute is raised after a great delay without any explanation, then the Government can refuse to make a reference on ground of claim being stale and the industrial dispute ceased to exist having faded with efflux of time.”
With respect to the practice and procedure to be followed once a reference is made to the Tribunal, the Court said, “If the employer makes a grievance that the workman has made a stale claim then the employer should challenge an order of reference by way of writ petition and here he can contend that since the claim is stale and highly belated no industrial dispute is existed or apprehended. The Labour Court may mould the relief but it cannot invalidate or strike down the reference.”
In another case, Megh Nath v. State of Himachal Pradesh, CWP No. 6687 of 2014, the present Court referring Raghubir Singh v. GM, Haryana Roadways, 2014 (10) SCC 301, quashed the order of the State Government declining to refer the matter to the Industrial Tribunal.
In Prabhakar v. JD, Sericulture Department, (2015) 15 SCC 1, the Supreme Court held, “To summarise, although there is no limitation prescribed under the Act for making a reference Under Section 10(1) of the Act, yet it is for the ‘appropriate Government’ to consider whether it is expedient or not to make the reference. The words ‘at any time’ used in Section 10(1) do not admit of any limitation in making an order of reference and laws of limitation are not applicable to proceedings under the Act. However, the policy of industrial adjudication is that very stale claims should not be generally encouraged or allowed inasmuch as unless there is satisfactory explanation for delay as, apart from the obvious risk to industrial peace from the entertainment of claims after long lapse of time, it is necessary also to take into account the unsettling effect which it is likely to have on the employers’ financial arrangement and to avoid dislocation of an industry.”
In Nek Ram v. Executive Engineer, HPPWD, CWP No. 581 of 2019, the Court relying on the case of Prabhakar, reiterated; vigilantibus non domientibus jura subveniunt
Further, in Bhupinder Singh v. State of Himachal Pradesh, CWP No. 610 of 2019, the bench held, “(…) delay and laches by itself cannot be a ground for refusing to make a reference. In case a person is guilty of delay and laches, it may be a ground for the Labour Court either to refuse to grant relief or refuse to grant relief of back wages but the Government cannot take up the role of adjudicating authority while deciding the question as to whether a reference should be made or not. The Court directed the Government to make a reference of the dispute to the Labour Court, which it had declined on ground of delay and laches.”
While making the said observations, Court directed the registry to place the matter before Chief Justice for constituting a larger bench.[Sri Jai Singh v. State of Himachal Pradesh, CWP No. 2190 & 2020, decided on 19-11-2020]
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