IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.: 474 of 2007. Decided on: 27.11.2008. Anita Devi. … … … Petitioner. Versus The Secretary, H.P.S.E.B. and Others. … … … Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the petitioner: Mr. Vikas Rathore, Advocate. For the Respondents: Mr. Baldev Singh, Advocate. Rajiv Sharma, Judge (Oral): This petition is directed against the award dated 23.3.2006 passed by the learned Presiding Judge, H.P. Industrial Tribunal-cum- Labour Court, Dharamshala in reference No.367/2K2 (RBT No.449/04). Briefs facts necessary for the adjudication of this petition are that the State Government has made the following reference to the Labour Court-cum-Industrial Tribunal, Dharamshala:- “Whether the termination of the services of Ms. Anita Devi (Daily Wages Meter Reader/ Bill Distributor) D/O Sh. Jagdish Chand w.e.f. 25.7.1986 by the Executive Engineer, H.P.S.E.B. Whether reporters of local papers may be allowed to see the judgment? No. - 2 - Division Joginder Nagar, Distt. Mandi without any notice, Charge Sheet and enquiry is proper and justified? If not, what relief of service benefits the above workman is entitled to?” In sequel to the reference made by the State Government, the petitioner (hereinafter referred to as “the workman” for convenience sake) filed claim petition before the Labour Court. She had primarily contended in her claim petition that she was engaged with effect from 25.8.1980, however, she was retrenched on 25.7.1986 without following the mandatory provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as the “Act” for convenience sake). The respondent/employer (hereinafter referred to as “the employer for convenience sake) had filed reply to the claim petition. The principal stand of the employer was that the application was barred by limitation and the same was not maintainable at the belated stage. On merits, it was contended that the workman had abandoned her job. The workman had filed rejoinder to the reply filed by the Management. The Labour Court answered the reference in negative on 23.3.2006 on the ground of delay and laches. Mr. Vikas Rathore has strenuously argued that the award dated 23.3.2006 is not sustainable in the eyes of law. He then contended that once the State Government has made the reference and has not rejected the same on the ground of delay and laches, the Labour Court was duty-bound to answer the reference made by the State. In other words, his submission is that the Labour Court cannot go beyond the reference made by the State Government. Mr. Baldev Singh had supported the award dated 23.3.2006. - 3 - I have heard the learned counsel for the parties and gone through the record carefully. The workman was engaged on 25.8.1980. She was retrenched with effect from 25.7.1986. There is some delay by the workman to take recourse under the provisions of the I.D. Act. However, the fact of the matter is that the State Government has made the reference to the Labour Court in the year 2002. The reference made by the State Government has already been quoted verbatim in the opening portion of the judgment. The Management/employer has not chosen to assail the reference made by the State Government in the year 2002. In other words, the employer has acquiesced to the delay and laches by not assailing the reference order. The Labour Court has rejected the claim petition only on the ground of delay and laches. The question of delay and laches was never referred to the Labour Court. In the present case neither the petitioner nor the employer has placed on record any material to show when the conciliation proceedings commenced and failed. The raising of demand notice, conciliation proceedings and failure report etc. consumes considerable time. The date of raising the dispute is not the date of the reference by the State Government. The dispute is raised when the workman protests against the action taken by the Management. In the present case, the workman has been retrenched on 25.7.1986. She has made representation Ex.P-4 in the year 1986. She made representations to the Executive Engineer in the year 1989 (Ex.P-3) and August, 1989 (Ex.P-2). The representations made by the workman were not heeded to. The workman has issued the demand notice on 9th June, 2001 (Ex.P-5). Thereafter considerable period has - 4 - been consumed during the conciliation proceedings. Consequently, it cannot be held that there is delay of 16 years in the present case. The Labour Court could not refuse to exercise the jurisdiction vested in it on the ground of delay and laches when the reference has already been made by the State Government in its own wisdom. Their Lordships of Hon’ble Supreme Court in Pottery Mazdoor Panchayat v. The Perfect Pottery Co. Ltd. and another, 1979 Lab. I.C. 827 have held that the Tribunal cannot go beyond the terms of reference. Their Lordships have held as under:- “Having heard a closely thought out argument made by Mr. Gupta on behalf of the appellant, we are of the opinion that the High Court is right in its view on the first question. The very terms of the references show that the point of dispute between the parties was not the fact of the closure of its business by the respondent but the propriety and justification of the respondent’s decision to close down the business. That is why the references were expressed to say whether the proposed closure of the business was proper and justified. In other words, by the references the Tribunals were not called upon by the Government to adjudicate upon the question as to whether there was in fact a closure of business or whether under the pretence of closing the business the workers were locked out by the management. The references being limited to the narrow question as to whether the closure was proper and justified, the Tribunals by the very terms of the references, had no jurisdiction to go behind the fact of closure and inquire into the question whether the business was in fact closed down by the management.” The Labour Court instead of dismissing the claim on the ground of delay could take this fact into consideration at the time of moulding of the - 5 - relief. Accordingly, the award dated 23.3.2006 passed by the Presiding Judge, Labour Court, Dharamshala is quashed and set aside. In view of the observations made hereinabove, the writ petition is disposed of. The parties are directed to appear before the Labour Court, Dharamshala on 10th December, 2008. The Presiding Judge, Labour Court-cum-Industrial Tribunal is directed to adjudicate upon the matter within a period of three months from the date of appearance of the parties before him. No costs. November 27, 2008. (Rajiv Sharma) (sck). Judge.