Civil Writ Petition No.7270 of 1994 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: 27.5.2011 Sh.Satvir Singh C/o Hind Mazdoor Sabha ....Petitioner Versus State of Haryana and others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Puneet Jindal, Advocates for the petitioner. Mr.Rajiv Prashad, D.A.G. Haryana for respondent Nos.1 & 2. Nemo for respondent No.3. Mr.Sandeep Vermani, Advocate for respondent No.4. M ehinder S ingh S ullar , J. (Oral) As is evident from the record, that petitioner-workman Satvir Singh (for brevity “the workman”) served a demand notice dated 22.3.1993 (Annexure P1) under section 2(a) of the Industrial Disputes Act, 1947 (hereinafter to be referred as “the Act”), inter-alia, pleading that he was appointed as a Supervisor by the management of M/s Eicher Tractors Limited-respondent No.3 (for short “the management”) on 27.11.1990 and his services were illegally terminated on 19.1.1993, without issuing any show cause notice, charge sheet and holding any inquiry and in violation of the provisions of the Act. In the wake of the demand notice (Annexure P1), the Labour-cum-Conciliation Officer sent the failure report dated 10.6.1993 (Annexure P2) to the Deputy Labour Commissioner (respondent No.2). 2. Instead of referring the dispute to the Industrial Tribunal-cum- Labour Court (for short “the LC”), the Joint Secretary, Haryana Government (respondent No.2) rejected the demand notice on the ground that the case was not fit enough to send to the Court for adjudication, as the period of contract of the Civil Writ Petition No.7270 of 1994 2 contractor had expired, by means of impugned order dated 6.9.1993 (Annexure P3). 3. The workman did not feel satisfied and preferred the present writ petition, challenging the impugned order (Annexure P3), invoking the provisions of Articles 226 and 227 of the Constitution of India. 4. Levelling a variety of allegations and narrating the sequence of events, in all, the workman claimed that although he served with the management, for more than 2 years and 1½ months, but since his retrenchment is illegal, without issuing any show cause notice, charge sheet and holding any inquiry, so, the impugned order (Annexure P3) is not only illegal, against the principle of natural justice and arbitrary, but against the statutory provisions of the Act as well. It was claimed that the appropriate Government ought to have referred the matter to the L.C. for adjudication, but it fell in error in this respect. On the basis of aforesaid allegations, the workman sought the quashment of the impugned order (Annexure P3) in the manner depicted hereinabove. 5. The respondents contested the claim of the workman. The respondent Nos.3 and 4 filed their separate written statements, inter-alia pleading certain preliminary objections of, maintainability of the writ petition, cause of action and locus standi of the workman. The case set up by the management, in brief in so far as relevant, was that since the contract of employment of workman for a period of one year had expired on 31.3.1993, so, his services were rightly disengaged. It was also claimed that the workman himself absented from his duties w.e.f. 19.1.1993 and did not report for duty thereafter. Some allegations of misconduct were also levelled against the workman. It will not be out of place to mention here that the contesting respondents have stoutly denied all other allegations contained in the writ petition and prayed for its dismissal. That is how I am seized of the matter. 6. After hearing the learned counsel for the parties, going through the record and relevant provisions of the Act with their valuable assistance and after Civil Writ Petition No.7270 of 1994 3 considering the entire matter deeply, to my mind, the instant writ petition deserves to be accepted in this context. 7. It is not a matter of dispute that the Joint Secretary did not refer the matter to the LC and declined the request of the workman, by way of non-speaking impugned order (Annexure P3), which reads as under:- “On the above mentioned subject you are informed that the Government does not think your case fit enough to be sent to the court for adjudication because after enquiry it has transpired that you were employed by the contractor and the contract of the contractor had expired.” 8. Such thus being the position on record, now the short and significant question, that arises for determination in the instant petition is, as to whether the Joint Secretary to Government of Haryana (respondent No.2) has any jurisdiction to come to the conclusion that the contract of the contractor had expired or not ? 9. Having regard to the rival contentions of the learned counsel for the parties, to me, the answer must obviously be in the negative and respondent No.2 did not have the jurisdiction to adjudicate upon in industrial dispute between the parties and has illegally assumed the power and jurisdiction of the L.C in this context. 10. What is not disputed here is that section 10 of the Act deals with the reference of dispute between the workman and Management, while sections 11 and 11-A postulate the procedure and powers to give appropriate relief by conciliation officers, Boards, Labour Courts, Tribunal and National Tribunals. 11. Sequelly, section 12(5) of the Act posits that “if, on a consideration of the report referred to in sub-section (4), the appropriate Government is satisfied that there is a case for reference to a Board, [Labour Court, Tribunal or National Tribunal], it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor. 12. A co-joint reading of these provisions, would leave no manner of Civil Writ Petition No.7270 of 1994 4 doubt, that the power of Government is only to refer and it cannot adjudicate upon the matter. There is a clear distinction in the demarcated functions of reference by the Government and the Court's adjudication. The power of reference of the Government under section 12(5) has to be read with section 10(1) of the Act. In dealing with an industrial dispute in respect of which a failure report has been submitted under S.12(4), the appropriate Government ultimately exercises its power under section 10(1) of the Act, subject to this that section 12(5) imposes an obligation on it to record reasons for not making the reference when the dispute has gone through conciliation and a failure report has been made under S.12(4). 13. Ex facie, the argument of the learned counsel for the workman that the Government has declined the reference, based on irrelevant and extraneous consideration, has considerable force. The appropriate Government should not purport to reach a final decision on the said questions of law, because that would normally lie within the jurisdiction of LC. Similarly, on disputed questions of fact, the appropriate Government cannot purport to reach final conclusions in this regard as it would again be the province of the LC. 14. As is clear, the main ground, which appears to have been weighed with the Joint Secretary in declining the reference was that the period of contract had expired and there is no justification for reference. Here, to my mind, the Joint Government has slipped into deep legal error in this relevant connection. The respondent No.2 has vaguely observed that period of contract had expired and wrongly declined the reference, even without indicating the period of his employment, without any inquiry and any cogent material on record, as well. That means, the Joint Secretary has illegally assumed the power and jurisdiction of the Industrial Tribunal and Labour Courts and decided the factual matrix and law point, which was in the domain of the Industrial Tribunal. Therefore, the impugned order (Annexure P3) cannot legally be sustained in this relevant direction. This matter is not res integra and is well settled. Civil Writ Petition No.7270 of 1994 5 15. An identical question came to be decided by the Hon'ble Apex Court in case Ram Avtar Sharma and others v. State of Haryana and another (1985) 3 Supreme Court Cases 189 and a Division Bench of this Court in case Lal Chand & Others v. State of Haryana & Others, 1998-III-LLJ (Supp.) 419. Having considered the relevant provisions, it was ruled that in such circumstances, the appropriate Government ought to have referred the dispute for adjudication to the LC. The same view was again reiterated by this Court in CWP No.18185 of 1991 titled as “Kartar Singh son of Khan Chand vs. Joint Secretary to Government of Haryana and others”, decided on 28.1.2011. 16. Therefore, it is held that the Joint Secretary to Government of Haryana (respondent No.2) did not have the power/jurisdiction to decide the industrial dispute between the parties and has illegally negatived the claim of the workman in this relevant connection. The law laid down in the aforesaid judgments “mutatis mutandis” is applicable to the facts of the present case and is the complete answer to the problem in hand. Thus, the contrary arguments of learned counsel for the contesting respondents “stricto sensu” liable to be and are hereby repelled and the impugned order (Annexure P3) deserves to be and is hereby set aside in the obtaining circumstances of the case. 17. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 18. In the light of the aforesaid reasons, the instant writ petition is accepted with costs and the impugned order (Annexure P3) is hereby quashed in this regard. Consequently, the respondent-State is directed to pass a necessary order referring the dispute to the competent Court for its adjudication within a period of three months from the date of receipt of a certified copy of this order in accordance with law. (Mehinder Singh Sullar) 27.5.2011 Judge AS Whether to be referred to reporter? Yes/No