IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.W.P No. 1761 of 2007-H. Decided on: 23.12.2011. _____________________________________________________ Shri Anil Kumar, S/o Sh. Chet Ram, resident of Village Balh- Balhwana, P.O. Chandpur, Tehsil Sadar, District Bilaspur, H.P. …Petitioner. -Versus- 1. State of H.P. through Labour Commissioner, H.P., Shimla. 2. Executive Engineer, Electric Division No. 2, HP PWD, Shimla-171003. …Respondents. Civil Writ Petition under Article 226 and 227 of the Constitution of India. Coram: The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the petitioner : Mr. A.K. Gupta, Advocate. For the respondents : Mr. R.K. Sharma, Senior Additional Additional Advocate General with Mr. Rajender Dogra, Additional Advocate General. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge (Oral): Petitioner was engaged on daily wage basis in the month of March, 1999. He was retrenched in the month of March, 2001. He approached the learned erstwhile Himachal Pradesh Tribunal by way of Original Application No. 1731 of 2001. The main contention of the petitioner before the learned Tribunal was that the respondent-department has not complied with the mandatory provisions of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act” for convenience 1 Whether the reporters of the local papers may be allowed to see the judgment?. No. - 2 - sake). Learned Tribunal disposed of the writ petition on 2nd November, 2001 by holding that though the petitioner has completed 240 days in a block of twelve calendar months preceding his retrenchment, however, the provisions under Section 25-F of the Act have not been complied with. Learned Tribunal directed the respondents to re-engage the petitioner in the same capacity. Thereafter, the petitioner was re-engaged. He was served with a notice dated 20.12.2001, purportedly under Section 25-F of the Industrial Disputes Act, 1947. He submitted reply to the same on 05.01.2002. Petitioner raised a demand notice on 04.03.2005. However, the learned Labour Commissioner, Himachal Pradesh has refused to make a reference to the learned Labour Court on 28.12.2006. 2. We have heard the learned counsel for the parties and gone through the pleadings carefully. 3. Petitioner was re-engaged pursuant to the order passed by the learned Tribunal on 02.11.2001. He has been served with a notice under Section 25-F of the Act on 20.12.2001. He has filed reply to the same on 05.01.2002, as noticed above. Thereafter, the petitioner has raised a demand notice on 04.03.2005. The Labour Officer-Cum-Conciliation Officer, Rampur, District Shimla, H.P. sent a report under Section 12 (4) of the Industrial Disputes Act, 1947 to the Labour Commissioner, Himachal Pradesh. The Labour Commissioner has refused to make a reference to the learned Labour Court. He has, rather, embarked on adjudication of the dispute by holding that the petitioner has been served with a notice under Section 25-F of the Act. This was not permissible under the law. Learned Labour - 3 - Commissioner cannot go into the merits of the case. Learned Labour Commissioner discharges only administrative functions. At the time of making or refusing the reference, the Labour Commissioner has to decide the matter on relevant considerations. Whether there is due compliance of Section 25-F of the Industrial Disputes, Act 1947 or not could only be gone into by the Labour Court in accordance with law and not by the Labour Commissioner. Learned Labour Commissioner has misdirected himself by refusing to make the reference on irrelevant consideration. 4. Accordingly, in view of the observations and discussions made hereinabove, the writ petition is allowed. Annexure P-4, dated 28th December, 2006 is quashed and set aside. The respondent No. 1 is directed to make a reference to the learned Labour Court-Cum-Industrial Tribunal within a period of four weeks from the date of production of a certified copy of this judgment by the petitioner. The pending application(s), if any, also stands disposed of. (R.B. Misra) Judge (Rajiv Sharma) Judge December 23, 2011. (bhupender) - 4 - `