IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.5022 of 2009 Date of decision: 17.5.2011 _____________________________________________ Harish Kumar …. Petitioner Versus State of H.P & ors. ` ….. Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting ? No For the petitioner: Mr.M.L.Sharma, Advocate. For the respondents: Mr.Vivek Singh Thakur, AAG for respondents No.1 to 3. Mr.Adarsh Sharma, counsel for respondents No.4 and 5. ___________________________________________ Deepak Gupta, J. (Oral) By means of this petition, the petitioner has challenged the order dated 19.11.2009 whereby his prayer for making reference of the dispute to the Labour Court was declined on the grounds that the petitioner had not completed 240 days in the 12 months prior to the termination and secondly that the termination was made in 2 the year 2001 and the demand notice was issued in the year 2008 more than six years after the dis-engagement, meaning thereby that no dispute existed during this period. This matter is squarely covered by a judgment of the Full Bench of this Court in CWP No.1486 of 2007 and other connected matters titled Laiq Ram Vs. State of H.P & ors. Relevant portion of the majority judgment reads as follows:- “After carefully going through the various judgments of the Apex Court, it is apparent that in some cases the Apex Court itself has held that since there is delay in seeking the reference the dispute had faded away or had got eclipsed due to lapse of time. Even in those cases where the Apex Court held that the reference was proper and the dispute still existed, it went on to hold that in cases where lapse of time had caused fading or eclipsing of the dispute and nobody had kept the dispute alive, it would be reasonable to conclude that the dispute ceases to exist. The Government is authorized to form the opinion whether a dispute exists or not. This clearly shows that the Government is not powerless and in case there is great delay and there is 3 no explanation for the delay then the Government can refuse to make a reference on the ground that the claim is stale and therefore the industrial dispute no longer exists. An industrial dispute can fade away and cease to exist because of long delay where the workman has taken no steps to keep the dispute alive. However, if the workman or the Union has kept the dispute alive even if no action has been initiated it will not mean that the dispute ceases to exist. Whether, a dispute exists or not, or has faded or got eclipsed is a question of fact which has to be decided in the facts and circumstances of each case.” As far as the first aspect of the matter is concerned, the Labour Commissioner had no business to go into the question whether the petitioner had completed 240 days or not. To that extent, the order is bad. As far as the second aspect of the matter is concerned, the petitioner had to show that he had kept the dispute alive. From the record, it is apparent that after the services of the petitioner were terminated in 4 the year 2001, he filed O.A No.1416 of 2001 before the erstwhile H.P State Administrative Tribunal. This petition was rejected on 5.4.2002 basically on the ground that the Tribunal had no jurisdiction to entertain the matter. Liberty was given to the petitioner for filing the petition before the competent forum. Thereafter, the petitioner kept silent and did not utter a word till the demand notice was issued on 27.5.2008, i.e., after six years and one month. In the demand notice, there is not a single explanation as to why the petitioner did not raise this demand during the six years nor there is any explanation for the delay. At this stage, at the time of filing of the writ petition, an explanation has sought to be given in para 4 that after the Tribunal dismissed the matter, learned counsel for the petitioner sent a letter to the petitioner informing him about this fact but the petitioner was unaware about this. Relevant averments in this behalf read as follows:- 5 “That after the decision of the Ld.Tribunal though the intimation was sent by the counsel of the petitioner to the petitioner by sending letter from his office but the letter was not met to the petitioner, therefore, this fact was not came to the knowledge of the petitioner that his case has been decided by the Ld.Tribunal with the observation to file the same before the appropriate forum. When he approach his counsel about the fate of his case only then this fact came to the knowledge of the petitioner that his case has already been decided by the Ld.Tribunal. He immediately sent the demand notice under the provisions of Industrial Disputes Act, 1947 with the prayer to re-instate his services. The copy of the Demand Notice dated 27.5.2008 is being annexed herewith and marked as Annexure P-4 for the kind perusal or this Hon’ble Court.” The averments to say the least are totally vague. Neither the letter of the counsel of the petitioner has been placed on record nor it has been stated as to when the petitioner came to Shimla to contact his counsel. There is no explanation why the petitioner did not contact his counsel from the year 2002 to 2008. If the story, as is now being 6 told, was true, what prevented the petitioner or his counsel from stating these facts in the demand notice itself. Once these facts were not stated in the demand notice, they cannot be looked at the time of filing of the petition. It is obvious that this story has been concocted only to get out of the delay which is more than six years. From the above discussion, it is apparent that the petitioner did not keep the dispute alive and the dispute had become stale and does not survive. The petition is accordingly rejected. No order as to costs. May 17, 2011 ( Deepak Gupta ) (m) Judge