IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 3323 of 2010 . Decided on: May 4, 2011. Rajesh Kumar. Vrs. State of H.P. & ors. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice V.K.Ahuja, Judge. Whether approved for reporting? Yes. For the petitioner: Mr. Rahul Mahajan, Advocate. For the Respondents: Mr. R.K.Bawa, AG, with Mr. J.K. Verma, Dy. AG for respondents No. 1 & 2. Mr. Trilok Jamwal, Advocate, for respondents No. 3 to 5. ---------------------------------------------------------------------------------------------- Justice Kurian Joseph, C.J. (Oral) Whether the appropriate Government while exercising the power under Section 10(1) of the Industrial Disputes Act, 1947, in the matter of reference of disputes to Labour Courts or Industrial Tribunals can go into the merits of the case and decide the dispute either way is the question raised in this Writ Petition. 2. Annexure-PC, order passed by the Government dated 2nd February, 2010 is under challenge. As per the said order, the Government declined to refer the claim of the petitioner for adjudication before the Labour Court/Industrial Tribunal. According to the petitioner he had completed 240 days continuously for a period of one year and hence the termination should have been only in accordance with law and the procedure prescribed under the Industrial Disputes Act, 1947. The Labour Commissioner, rendered a finding of fact stating that: “you have not completed 240 days continuously in preceding 12 months prior to termination” and hence declined the reference. It is the contention of the petitioner that such inference has been drawn behind the back of the petitioner and without reference to the claim made by the petitioner on the basis of the man days chart. True, the respondent Board had taken a contention before the Government that the engagement was for a specific project and on completion of the project that the workman had no other work and that in any case he had not 2 completed 240 days. It is the contention of the petitioner, however, that going by the period of engagement of the petitioner between 1990 and 2000, the petitioner had completed 240 days. In any case it is a matter to be adjudicated before the Tribunal. The same cannot be done on the basis of the statements before the Labour Commissioner when the workman has raised a dispute in that regard. The Labour Commissioner is not expected to adjudicate the lis. When the facts are not admitted by the workman, the same has to be enquired into. That enquiry is not an inquisitorial process whereby the Government, (the Commissioner in this case) is empowered to look into the materials before him and take a decision. It is adversarial/accusatorial in nature, wherein the parties to the dispute get an opportunity to participate in the process of adjudication by leading evidence, rebutting the evidence, advancing arguments etc. In inquisitorial jurisdiction the Judge or authority is himself the prosecutor whereas in adversarial or accusatorial the Judge is a neutral person. He has to decide the dispute based only on the evidence available on record and in accordance with the settled legal principles, particularly in industrial jurisprudence. 3. It is purely a judicial function; whereas the exercise of power by the appropriate Government under Section 10(1) is only an administrative function of the Government. The Government in such an administrative function need and should only form an opinion as to whether there exists industrial dispute or whether the same is apprehended. In such situations, the Government is not expected under law to go into the merits of the case by deciding the issue either way. Of course, in the process of forming an opinion, the Government is entitled to see whether there is a dispute and not whether there is merit in the dispute. 4. The Supreme Court had an occasion to consider the issue in (1989) 3 SCC 271, Telco Convoy Drivers Mazdoor Sangh & anr. Vrs. State of Bihar and others, wherein it is held as follows: “ Though in considering the question of making a reference under Section 10(1), the government is entitled to form an opinion as to whether an industrial dispute “exists or is apprehended”, but it is not entitled to adjudicate the dispute itself on merits. While 3 exercising power under Section 10(1) of the Act, the function of the appropriate government is an administrative function and not a judicial or quasi-judicial function. In performing this administrative function the government cannot delve into the merits of the dispute and take upon itself the determination of the lis, which would certainly be in excess of the power conferred on it by Section 10 of the Act. However, there may be exceptional cases in which the State Government may, on a proper examination of the demand, come to a conclusion that the demands are either perverse or frivolous and do not merit a reference. But the government should be very slow to attempt an examination of the demand with a view to declining reference and courts will always be vigilant whenever the government attempts to usurp the powers of the Tribunal for adjudication of valid disputes, and to allow the government to do so would be to render Section 10 and Section 12(5) of the Act nugatory.” 5. In the above circumstances, we set-aside Annexure-PC with a direction to the second respondent to refer the dispute to the Labour Court/Industrial Tribunal for adjudication. The needful, as above shall be done within a period of three months from the date of production of copy of this judgment. 6. The writ petition is disposed of, so also the pending application(s), if any. (Justice Kurian Joseph), Chief Justice. May 4, 2011. ( Justice V.K.Ahuja), (karan/vs) Judge.