IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.M.No.1661 of 2010 in C.W.P.No.3842 of 2004 Date of Decision:- 26.02.2010 Kanhiya Lal ....Petitioner(s) vs. Union of India and others ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASI *** Present:- Mr.Rohit Ahuja, Advocate, for the petitioner. Mr.Vipin Mahajan, Advocate, for respondent No.1. Mr.S.K.Sharma, Addl.Central Govt. Standing Counsel. *** AUGUSTINE GEORGE MASIH, J. (Oral) Prayer in the present application is for fixing an early actual date in the writ petition. Notice of this application was issued to the respondents. Counsel for the respondents state that they do not have any objection if the main writ petition is heard and decided today itself. In view of the statement made by the counsel for the parties, the present application is allowed and the main case is taken up for hearing. Application stands disposed of. Main Case. Prayer in the present writ petition is for quashing of the order dated 12.8.2002 (Annexure P-5) vide which respondent No.2 has refused to C.W.P.No.3842 of 2004 -2- refer the dispute for adjudication to the Labour Court on the ground that the petitioner-workman has not completed 240 days in service in a calendar year and, therefore, the provisions of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) are not violated and the dispute is not maintainable. Counsel for the petitioner contends that the observations of respondent No.1 while not referring the dispute to the competent Court for adjudication is not sustainable as the competent Authority under the Act is not the Appropriate Government which can consider and decide the fact as to whether or not the petitioner had completed more than 240 days in service in a calendar year. That would fall within the domain of the Labour Court which is the adjudicatory Authority. Respondent No.1 has usurped the powers of the Court while giving a finding to refuse to refer the case for adjudication of the dispute to the Labour Court. In support of this contention, counsel for the petitioner relies upon the Division Bench judgment of this Court in the case of Sikander Singh vs. State of Haryana and another, (C.W.P.No.9465 of 2008) decided on 11.12.2008. He contends that the aforesaid order was passed by the Division Bench relying upon the judgment of the Hon'ble Supreme Court rendered in Telco Convoy Drivers Mazdoor Sangh and another vs. State of Bihar and others, reported as (1989) 3 SCC 271. He, on the basis of the said judgment, contends that the impugned order passed by respondent No.1 deserves to be set aside and a direction be issued to respondent No.1 to make reference to the Labour Court for adjudication of the dispute. On the other hand, counsel for the respondents have submitted C.W.P.No.3842 of 2004 -3- that on the basis of the demand notice and the reply filed by respondents No.4 and 5, respondent No.1 has come to a conclusion that the workman has not completed more than 240 days in service in a calendar year and, therefore, has rightly refused to refer the case for adjudication as there is no right conferred upon the petitioner in the light of the fact that there is no violation of Section 25-F of the Act. I have heard counsel for the parties and have gone through the records of the case. Adjudication of the disputes is primarily the function of the Courts or the Authorities, who have been conferred the said right by the Statute. It is correct that the Appropriate Government can, in a given case, come to a conclusion that there is no dispute which requires adjudication but with regard to the claim and counter-claim made by the parties, which is factually disputed and needs evidence in support of their respective contentions, the Appropriate Government does not have the powers to look into the same and return a finding and denying the reference of the matter to the Appropriate Forum for adjudication. As per the claim of the workman, he has specifically stated that he has worked with the Management for more than 240 days in service in a calendar year which fact has been denied by respondents No.4 and 5. This itself shows that there is a dispute between the parties which requires adjudication. The Central Government has thus, usurped the powers of the Court itself which has never been conferred upon it by the Statute. The Division Bench of this Court in Sikander Singh's case (supra), which is based on the judgment of the Hon'ble Supreme Court in Telco Convoy Drivers Mazdoor Sangh and another's case (supra), C.W.P.No.3842 of 2004 -4- covers the case of the petitioner on all fours. In view of the above, the present writ petition is allowed. A direction is issued to respondent No.1 to re-consider the claim of the petitioner in the light of the observations made by this Court and pass appropriate orders in accordance with law. Needful shall be done within a period of two months from the date of receipt of certified copy of this order. February 26, 2010 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE