IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA LPA No. 171 of 2007 Date of Decision: 12.12.2011 1. Labour Commissioner, Department of Labour and Employment, Himachal Pradesh, Shimla-1. 2. Labour and Conciliation Officer, Shimla Zone Shimla. H.P. … Appellants Versus. 1. Shri Het Ram S/o Shri Badri Dass, R/o village Chebri, P.O. Khera, Tehsil, Suni, Distt. Shimla. H.P. … Respondent. 2. Himachal Pradesh State Electricity Board, through its Secretary, Vidyut Bhawan, Kumar House, Shimla- 171004. 3. The Executive Engineer, HPSEB, Division Charli Village, Tehsil and Distt. Shimla. H.P. 4. The Executive Engineer, HPSEB, Division, Suni, Tehsil Suni, District Shimla. H.P. 5. Sub Divisional Officer, HPSEB, Sub Division Suni, Tehsil Suni, District Shimla. H.P. …Proforma Respondents. Letters Patent Appeal under Clause 10 of the Letter Patents of Hon’ble Court of Judicature at Lahore Applicable to the High Court of Himachal Pradesh against the order passed by the Hon’ble Single Judge Mr. Justice Rajeev Sharma on 21.5.2007 in CWP No. 1554 of 2002. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K.Ahuja, Judge. Whether approved for Reporting? No. For the appellants: Mr. Vivek Thakur, Addl. A.G. For the Respondent No.1: Mr. Neel Kamal Sood, Advocate. For the Respondents No.2 to 5: Mr. Trilok Jamwal, Advocate. 2 Per Deepak Gupta, J.(Oral) 1. The short question involved in this appeal is whether the State Government was justified in refusing to refer the Industrial dispute raised by the petitioner-workman. 2. The learned Single Judge held that the State has no power to refuse to make a reference. 3. This question was referred to a larger Bench, which gave its opinion in CWP No. 1486 of 2007 and connected matters. In the concluding portion of the opinion of one of us (Deepak Gupta, J) it was held 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 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 3 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.” 4. Justice Surinder Singh concurred with the aforesaid opinion and the concluding portion of his opinion reads as follows:- “Therefore, the appropriate Government has to be subjectively satisfied while forming an “opinion” such power has to be exercised reasonably and in a rational manner, whether a dispute exists or not. In case the answer is in positive, it has to refer the matter to Court/ Tribunal irrespective of time lapse, though, it would depend on the factual background of each case and no straight-jacket formula can be laid. Hence, I fully support the view taken by Brother Justice Deepak Gupta.” 5. Therefore, the only question which has to be seen in this case is whether the industrial dispute should be extinguished due to lapse of time or not. 6. The petitioner’s allegation is that he was first engaged as a daily waged Beldar on 1.8.1982 and his services were illegally terminated on 30.4.1983. Thereafter, he was again re-engaged in January 1986 but his services were again illegal terminated in May, 1986. Again after a period of 4 three years he was re-engaged in June 1989 and his services were again terminated on 26.11.1989. He made a demand notice on 1.2.2000 praying that the matter be referred to the Labour Court. The Labour Commissioner rejected the reference on two grounds firstly that the petitioner had not completed 240 days and secondly that the claim was highly belated. 7. As far as the first finding is concerned, the Commissioner could not have decided this question. However, even if the last termination dated 26.11.1989 is taken into consideration the petitioner raised the demand notice after 11 years. The petitioner has virtually given no explanation whatsoever as to why he kept silent for 11 years. The petitioner had to show that the dispute was kept alive and only if it was kept alive could the reference have been made after such a long time. In this case there is nothing on record to show that the dispute was kept alive and in fact the industrial dispute would be deemed to be extinguished due to lapse of time. 5 8. Therefore, we are of the considered view that the order of the learned Single Judge directing the State Government to make a reference is incorrect. The same is accordingly set-aside. As a result, the petition filed by the petitioner shall stand dismissed. No costs. ( Deepak Gupta ) Judge. 12th December, 2011 ( V.K.Ahuja ) ™ Judge.