IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. 1257 of 2013 . Order Reserved on 15th May 2015 Date of Order 27th May, 2015 [ENTITY] wife of Sh. Rupia Ram Petitioner Versus [ENTITY] & others Respondents Coram The Hon'ble Mr. Justice [ENTITY], J.
Whether approved for reporting?1 Yes.
For the Petitioner: Mr. [ENTITY], Advocate.
For the Respondents: Mr. [ENTITY], Additional Advocate General.
[ENTITY], Judge Order It is pleaded that in the month of December 1998 petitioner was engaged by co-respondent No.3 on daily wages basis on muster roll as Beldar. It is pleaded that thereafter on dated 8.7.2005 the services of 1087 workmen were retrenched by co-respondent No.3 including the services of petitioner. It is pleaded that on dated 30.3.2009 the retrenchment order dated 8.7.2005 of 43 workmen was set aside and quashed by learned Whether Reporters of Local Papers may be allowed to see the judgment? Yes.
H.P. Industrial Tribunal-cum-Labour Court Dharamshala. It is further pleaded that on dated 16.9.2009 services of 43 workmen .
were reinstated by co-respondent No. 3 but petitioner was not given opportunity of reemployment being senior workman. It is also pleaded that on dated 9.11.2009 one Smt. [ENTITY] raised demand notice under [SECTION] of [ACT] against her illegal termination w.e.f. June 2004 after elapse of more than five years and five months. It is pleaded that on dated 12.11.2009 petitioner raised industrial dispute under [SECTION] of [ACT] against co-
respondent No. 3 to set aside the retrenchment order dated 8.7.2005 after about four years. It is pleaded that on dated 27.1.2010 one Shri [ENTITY] had also raised industrial dispute under [SECTION] of [ACT] against co-
respondent No. 3 to set aside the retrenchment order dated 8.7.2005 after more than five years. It is pleaded that on dated 6.8.2010 case of [ENTITY] was referred by co-respondent No. 3 to learned H.P. Industrial Tribunal-cum-Labour Court Dharamshala and said Shri [ENTITY] has raised the industrial dispute after lapse of more than seven years. It is also pleaded that on dated 30.11.2011 case of [ENTITY] was referred by co-
respondent No. 2 to Hon'ble H.P. Industrial Tribunal-cum-Labour Court Dharamshala for adjudication after lapse of more than five years. It is also pleaded that on dated 31.3.2012 the case of .
[ENTITY] was referred by co-respondent No. 2 to Hon'ble H.P. Industrial Tribunal-cum-Labour Court Dharamshala for adjudication after lapse of more than five years and five months.
It is also pleaded that on dated 30.5.2012 case of petitioner was rejected by co-respondent No. 2 and was not referred to Hon'ble Industrial H.P. Tribunal-cum-Labour Court Dharamshala for adjudication. It is pleaded that order dated 30.5.2012 passed by Labour Commissioner H.P. whereby Labour Commissioner has refused to refer the dispute of petitioner to H.P. Industrial Tribunal-cum-Labour Court Dharamshala be set aside and co-
respondent Nos. 1 and 2 be directed to refer the dispute of petitioner for adjudication to Hon'ble H.P. Industrial Tribunal-
cum-Labour Court Dharamshala. Prayer for acceptance of petition sought.
2. Per contra reply filed on behalf of co-respondent Nos.
1 and 2 pleaded therein that petitioner served demand notice on dated 12.11.2009 on co-respondent No.3 and same was submitted to Labour Officer-cum-Conciliation Officer [ENTITY]. It is pleaded that Labour Officer-cum-Conciliation Officer tried to settle the dispute amicably but dispute could not be settled by way of conciliation. It is pleaded that thereafter Labour Officer-
cum-Conciliation Officer [ENTITY] sent the report under Sub-section .
4 of Section 12 of [ACT] to the Labour Commissioner. It is pleaded that co-respondent No. 2 exercising the powers of appropriate government examined the report sent by Labour Officer-cum-Conciliation Officer [ENTITY] and also perused the reply filed by respondent No.1 and found that petitioner had raised dispute vide demand notice dated 12.11.2009 after a lapse of more than four years without giving any detailed reasons relating to delay. It is pleaded that dispute was not kept alive by petitioner for long period and learned Labour Commissioner came to the conclusion that dispute had faded away after a lapse of long time and demand notice raised by petitioner was found to be vexatious and devoid of any merits. It is pleaded that facts and circumstances of other cases always differ and could not be compared with each other. It is pleaded that Government of India has amended the [ACT] whereby direct access has been given to workman for raising any dispute upon termination and dismissal of services directly to the Labour Court-cum-Industrial Tribunal within a period of three years from the date of termination. It is pleaded that as per amended [SECTION] dismissal of services of an individual workman would be deemed to be an industrial dispute. It is pleaded that non-alive issue could not be referred to .
Labour Court-cum-Industrial Tribunal for adjudication. Prayer for dismissal of civil writ petition sought.
3. Court heard learned Advocate appearing on behalf of the petitioner and learned Additional Advocate General appearing on behalf of the respondents and Court also perused the entire record carefully.
4. Following points arise for determination in this civil writ petition:-
1. Whether order of learned Labour Commissioner (H.P.) No.11-23/84(Lab)ID/2012-[ENTITY] dated 30th May 2012 is liable to be set aside as mentioned in memorandum of grounds of civil writ petition?
2. Final Order.
Findings on point No.1
5. Submission of learned Advocate appearing for the petitioner that matter in dispute is service matter and learned Labour Commissioner Himachal Pradesh has illegally declined to refer the matter to learned Labour Court-cum-Industrial Tribunal for adjudication is accepted for the reasons hereinafter mentioned. Court has carefully perused the order passed by learned Labour Commissioner dated 30.5.2012. Learned Labour Commissioner has specifically mentioned in the order that petitioner did not agitate the matter for more than four years .
and present dispute faded away with passage of time. It was held in case reported in [PRECEDENT] that (1) Ordinarily a litigant does not stand to benefit by lodging matter late. (2) Refusing to condone delay can result meritorious matter thrown out at the very threshold and cause of justice defeated. It was held that if delay is condoned then highest that would happen would that case would be decided on merits after hearing the parties. (3) It was held that every day's delay must be explained does not mean that a pedantic approach should be made. It was further held that doctrine must be applied in a rational common sense. (4) It was held that when substantial justice and technical considerations are pitted against each other then cause of substantial justice deserves to be preferred. (5) It was held that there is no presumption that delay is occasioned deliberately or on account of culpable negligence or on account of mala fides. It was held that litigant does not stand to benefit by resorting to delay and in fact he runs a serious risk. (6) It was held that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. It was held in case reported in (2015)4 SCC 458 titled Jasmer Singh vs. State of .
Haryana and others that provisions of [SECTION] of [ACT] would not be applicable to [ACT] and it was held that relief would not be denied to workman merely on ground of delay. It was held that no reference to Labour Court should be questioned on the ground of delay. It was further held that even in case where delay was condoned by Labour Court then Labour Court could mode the relief by declining the back wages to workman till he raised the demand regarding his illegal retrenchment, dismissal or termination. It was held in case reported in [PRECEDENT] that there is no limitation on reference to Labour Court under [SECTION] of [ACT]. It was held that words "At any time" mentioned in [SECTION] of [ACT] clearly define that law of limitation would not be applicable qua proceedings of reference under [SECTION] of [ACT]. Operative part of [SECTION] of [ACT] is quoted in toto:-
"10.Reference of dispute to Boards, Courts or Tribunals-(1) Where the appropriate Government is of the opinion that any industrial dispute exists or is apprehended, it may at any time by order in writing-
(a) Refer the dispute to a Board for promoting a settlement thereof.
(b) Refer any matter appearing to be connected .
with or relevant to the dispute to a Court for inquiry.
(c) Refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication.
6. Submission of learned Additional Advocate General appearing on behalf of the respondents that petitioner did not agitate the matter for more than four years and on this ground civil writ petition filed by petitioner be dismissed is rejected being devoid of any force for the reasons hereinafter mentioned.
Petitioner is illiterate and she has marked her thumb impression in writ petition and petitioner is a rustic woman and it is not expedient in the ends of justice to decline the relief to the petitioner. In view of the above stated facts point No. 1 is answered in affirmative.
Point No.2 (Final Order)
7. In view of above stated facts petition filed by petitioner is allowed. Order No. 11-23/84(Lab)ID/2012-[ENTITY] dated 30.5.2012 passed by learned Labour Commissioner Himachal Pradesh is set aside and co-respondents Nos. 1 and 2 are directed to refer the dispute of petitioner for adjudication to H.P. Industrial Tribunal-cum-Labour Court Dharamshala under .
[SECTION] of [ACT] within one month from today. No order as to costs. Petition stands disposed of. All pending miscellaneous application(s) if any also stands disposed of.
May 27,2015 ms. r to ([ENTITY]) Judge