C.W.P.No.2352 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.2352 of 2008 Date of Decision:- 04.02.2009 Vijay ....Petitioner(s) vs. Joint Secretary and another ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Naveen Daryal, Advocate for the petitioner. Mr.D.S.Nalwa, Additional Advocate General, Haryana. Mr.Sanjay S.Chauhan, Advocate for respondent No.2. *** AUGUSTINE GEORGE MASIH, J. (Oral) In the present writ petition, challenge is to order dated 1.6.2007 (Annexure P-4) passed by the Appropriate Government exercising its powers under Section 10 of the Industrial Disputes Act, 1947 thereby rejecting the reference on the ground that the Government does not find the case fit for being sent to the Labour Court because on investigation, it has been found that the services of the petitioner were terminated on December, 1991 whereas he had raised the dispute on 7.4.2006 and, thus, there was a delay of 14 years in raising the dispute. For this, the reliance was placed upon a judgment of the Hon'ble Supreme Court in Nedungadi Bank Ltd. vs. K.P. Madhavankutty and others, (2000) 2 Supreme Court Cases 455 wherein the reference had also been declined. Counsel for the petitioner contends that there is total non C.W.P.No.2352 of 2008 -2- application of mind by the Appropriate Government. He contends that in his demand notice under Section 2-A of the Act, the petitioner had specifically alleged that initially he had been appointed as Sweeper in the year 1988 with the Municipal committee, Panipat with a starting salary of Rs.600/- which was later raised to Rs.900/- whereafter his services were terminated. Thereafter, on a request being made by the petitioner to the Chairman of the Municipal Council, he was again taken back in service. He continued as such when his services were finally terminated on 3.1.2006. Petitioner then raised a demand alleging that the termination order was not in compliance with the Act as neither any compensation was paid nor any enquiry was held nor any show cause notice was issued. In reply to the said demand notice, the Municipal Committee filed a reply wherein they admitted that the petitioner-workman had worked with them for 90 days in the year 1996. These facts have not been taken into consideration by the Appropriate Government as is apparent from the order dated 1.6.2007 as there the Government has only, in a stereo-type manner, tried to show that the claim of the petitioner is delayed one. What has been said in the order is that his termination was in the year 1991 and the dispute has been raised on 7.4.2006. Counsel for the respondent-State has contended that even if it is assumed that this factual position is correct as per the demand notice and reply thereto and the date of termination is taken as 1996, then also, it would be a stale claim as again there would be a long delay of 10 years in raising the dispute. He contends that on the basis of the material which has been placed on record, the Government has to form C.W.P.No.2352 of 2008 -3- an opinion as to whether there existed a dispute or not and in case a decision is taken on that basis, the same cannot be faulted with as has been taken in the present case. Such an order has been held by the Hon'ble Supreme Court to be an administrative order and therefore, order dated 1.6.2007 is in consonance with the provisions of the Act. I have gone through the records of the case with the assistance of the counsel for the parties and have given my thoughtful consideration to the submissions put-forth by them. As is apparent from the above, the Government was required to take into consideration the demand notice and the response thereto received from the Municipal Committee. The order does not reflect the taking into consideration of the factual aspect which has come on record as per admission of the Municipal Committee itself. It simply refers to the termination of 1991 and thereafter, the demand notice of 2006. It does not take into consideration the assertion of the employee that he was taken back in service and he continued as such till the year 2006 when his services were terminated. I am of the considered view that the Government has not taken into consideration the true factual position before coming to a conclusion as to whether there exists a dispute or not and as to whether the matter is required to be referred for adjudication on that basis taking into consideration the termination of the petitioner in the year 2006 as alleged. In view of the above, the writ petition is allowed and the impugned order dated 1.6.2007 (Annexure P-4) passed by the Government of Haryana is hereby set aside. A direction is hereby issued to respondent C.W.P.No.2352 of 2008 -4- No.1 to reconsider the matter and pass appropriate orders in accordance with law within a period of two months from the date of receipt of copy of this order. February 04, 2009 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE Whether referred to Reporters ________ Yes/No