IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 683 of 2011. Decided on: 28th February, 2011. Yadvinder Sharma …Petitioner. Vs. State of H.P. and others. …Respondents. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting? Yes. For the petitioner : Mr. Neel Kamal Sood, Advocate. For the Respondents : Mr. R.K. Bawa, Advocate General, with Mr. J.K. Verma, DAG. ------------------------------------------------------------------------------------------ Justice Kurian Joseph, C.J. (Oral) Is it open to the Labour Court/Industrial Tribunal to dismiss a Reference under Section 10 of the Industrial Disputes Act, 1947? This is the question that arises for consideration in this case. 2. Chapter III of the Industrial Disputes Act, 1947 provides for Reference of dispute to Labour Courts or Tribunals. Under Section 10, if an appropriate Government is of the opinion that any industrial dispute exists or is apprehended, it may refer the dispute to the Labour Court or to the Tribunal depending upon the subject matter for adjudication of dispute as provided under the Schedule. Under Section 15, “Where an industrial dispute has been 2 referred to a Labour Court, Tribunal or National Tribunal for adjudication, it shall hold its proceedings expeditiously and shall within the period specified in the order referring such industrial dispute or the further period extended under the second proviso to sub-section (2-A) of Section 10, submit its award to the appropriate Government.” 3. Section 16 provides that the Award of the Labour court or Tribunal shall be in writing. Under Section 17, the same has to be published and within 30 days of publication, the Award becomes enforceable, as provided under Section 17-A. Section 2(b) defines an Award as follows: “(b) ‘Award’ means an interim or a final determination of any industrial dispute or of any question relating thereto by any Labour Court, Industrial Tribunal or National Industrial Tribunal and includes an arbitration award made under section 10- A.” Section 2(k) defines Industrial dispute, which reads as follows: “(k) ‘industrial dispute’ means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person.” 4. Settlement of industrial dispute being the main object behind the Industrial Disputes Act, 1947, the provisions as extracted above would show that once an industrial dispute which could not be settled in conciliation, the same is 3 referred to the Labour Court or the Industrial Tribunal, as the case may be, for adjudication. The purpose of adjudication is determination of the industrial dispute and the same is expressed in the form of an Award. Therefore, once a Reference under Section 10 of the Industrial Disputes Act is made to the Labour court or the Industrial Tribunal, the said forum is to determine the dispute or question referred to it by appropriate adjudication. The Government along with the Reference also forwards the relevant materials also to the Court or the Tribunal. Thus, once a Reference is made, the Court or the Tribunal has to decide the same on the basis of the materials available on record. Whether any party to the dispute cooperates or not is immaterial. Hence, there arises no question of dismissal of the Reference for default. The Reference can be disposed of only by passing an Award whereby the question referred to it has been determined by the Labour Court or the Tribunal by passing an Award. The Presiding Officer, on the basis of the materials available on record should consider the matter on merits and enter the findings. 5. Under Section 18 of the Land Acquisition Act also, the Collector makes a Reference to the Civil Court in the matter of fixation of compensation. In that process also the available materials are made available to the Civil Court. The Reference Court is bound to consider the matter referred to it and take a decision as to the just and proper compensation. The Court cannot dismiss the same for default. This principle has been settled by the Supreme 4 Court in Khazan Singh (dead) by L.Rs vs. Union of India reported in AIR 2002 SC 726, wherein it has been held as follows: “The reference made by a Collector under S. 18 of the Land Acquisition Act, 1894 cannot be dismissed for default. The provisions of Ss. 18, 20, 26 make it clear that the Civil Court has to pass an award in answer to the reference made by the Collector under S. 18 of the Act. If any party to whom notice has been served by the Civil Court did not participate in the inquiry it would only be at his risk because an award would be passed perhaps to the detriment of the concerned party. But non-participation of any party would not confer jurisdiction on the Civil Court to dismiss the reference for default.” 6. A Division Bench of the Punjab and Haryana High Court had occasion to consider the question as to whether the Labour Court is free to dismiss a Reference for non- prosecution by the decision in K.K. Rattan vs. Presiding Officer, Labour Court and others, reported in High Court, Punjab and Haryana 378. It has been held that the Labour Court has no power to dismiss a Reference for non- prosecution. It is bound to adjudicate on merits even if the workman is absent. To quote: “When a dispute is referred to the Tribunal, it has to decide it on merits. There is no power conferred on it to dismiss a reference for non-prosecution. It is the duty of the Labour Court to consider the claim statement of the workman and the written statement of the management and any other record before it and answer the point referred to it on merits.” 5 7. Coming to the facts of the instant case, it is seen from the impugned Annexure P-2, Award that the Industrial Tribunal-cum-Labour Court, Shimla has dismissed the Reference for default. We may extract the proceedings dated 29.6.2005 as follows: “Case called repeatedly in the pre and post lunch session, but none has appeared on behalf of the petitioner despite valid service. It is already 3.00 p.m. Accordingly the reference is answered against the petitioner and dismissed in default for non-appearance of the petitioner.” 8. The issue referred for adjudication is as follows: “Whether the termination of services of Shri Yadvinder Sharma son of Shri Rama Nand Sharma, daily waged workman by the Executive Engineer, I&PH Division, Solan, H.P. w.e.f. 1.9.2000 without complying the provisions of the Industrial Disputes Act, 1947 is proper and justified. If not, what relief of service benefit and amount of compensation the above aggrieved workman is entitled to?” 9. In the light of the legal position explained above, Annexure P-2, Award is liable to be set aside and it is ordered accordingly. The Reference is remitted to the Labour Court, Shimla. The parties shall appear before the Labour Court on 25th April, 2011. The Labour Court shall answer the Reference on merits positively within another four months. 10. We make it clear that in the event of the Labour Court answering the reference in favour of the petitioner, while moulding the relief, the petitioner shall not be entitled to any 6 benefit during the period between 19.7.2004 and 2.1.2011 in view of the delay and laches attributable to the petitioner. 11. The Registry will communicate a copy of this judgment to the Industrial Tribunal-cum-Labour Court, Shimla. 12. The writ petition is disposed of, so also the pending applications, if any. (Justice Kurian Joseph), Chief Justice 28th February, 2011. (Justice Sanjay Karol), (tr) Judge.