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ANIL KUMAR versus STATE OF HARYANA & ANR

High Court of Punjab and Haryana, Chandigarh

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Anil Kumar v. State of Haryana & Anr - CWP-1882-2006 [2006] RD-P&H 5973 (25 August 2006)

C.W.P. No. 1882 of 2006 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

C.W.P. No. 1882 of 2006

DATE OF DECISION:8.8.2006

***

Anil Kumar

..PETITIONER

VS.

State of Haryana and another

..RESPONDENTS

CORAM: HON'BLE MR. JUSTICE J.S. NARANG.
HON'BLE MR. JUSTICE ARVIND KUMAR,

Present:- Mr. Ashish Aggarwal, Advocate

for the petitioner.

Mr. Ajay Chaudhary, DAG Haryana.

***

JUDGMENT:

The petitioner is up in arms before this Court seeking quashing of orders dated 12.8.2003 and 5.7.2004 (Annexures P-5 and P-6 respectively) passed by respondent No.1.

On 4.4.2003, the petitioner-workman raised an industrial dispute challenging termination of his services by respondent No.2 on account of non-compliance of the provisions of Sections 25-F, 25-G and 25- H of the Industrial Disputes Act, 1947 (for short the Act). The dispute was contested by respondent No.2. Efforts for re-conciliation were made but to no avail. On receipt of failure report, the appropriate Government passed the impugned order dated 12.8.2003, which reads as under:- "You are informed that the Government does not consider your case as fit to be sent for decision to the Labour Court because from enquiry it has come to light that you have not worked for 240 days in any calendar C.W.P. No. 1882 of 2006 2

year with the institution. Hence, your period of service in the institution was less than 240 days and moreover, you have also not produced any evidence from which it could be proved that you have been working for a period more than 240 days. In these circumstances your demand notice is rejected."

Thereafter, the application of the petitioner for review of the order dated 12.8.2003 was also dismissed by the appropriate Government vide the impugned order dated 5.7.2004:- "Your above application has been enquired into and since there are no such facts contained therein which need consideration, therefore, there is no need for change of the decision taken by the Government earlier." Dissatisfied with the same, instant petition under Articles 226/227 of the Constitution has been filed by the petitioner.

Upon notice of the petition, respondent No.2 has filed the written statement resisting the pleas raised by the petitioner.

We have heard learned counsel for the parties and have perused the paper book carefully.

A bare perusal of the impugned orders, reproduced above, shows that the appropriate Government while declining the prayer of the petitioner for referring the dispute to the Labour Court has usurp the powers of Labour Court by observing that the workman has not completed 240 days of service. Whether a workman has completed or not 240 days of service being a question of fact has to be decided by the Labour Court It was not within the domain of the government to adjudicate upon the said C.W.P. No. 1882 of 2006 3

question. It is only within the ambit of the jurisdiction of the Industrial Tribunal or the Labour Court constituted under the Act to determine this dispute. The appropriate government cannot act as a judge and deal with the merits of the case while dealing with the reference sought by the workman for determination of lis by the appropriate forum, be it Labour Court or the Industrial Tribunal. The decision on merit is always in the exclusive domain of the Industrial Tribunal or the Labour Court, as the case may be The Government cannot encroach upon the functions which have been specifically entrusted to the Industrial Tribunal under the Act. It was held by the Hon'ble Supreme Court in The M.P. Irrigation Karamchari Sangh vs.

State of M.P. And another AIR 1985 SC-860, that Section 10 of the Act permits appropriate Government to determine whether dispute "exists or is apprehended' and then refer it for adjudication on merits. The demarcated functions are (1) reference; (2) adjudication. Government should be very slow to attempt as examination of the demand with a view to decline reference and Courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudication of valid disputes. To allow the Government to do so would be to render Sections 10 and 12 (5) of the Act nugatory." In this context further reliance can be placed on the judgments of Hon'ble the Apex Court in the cases of Ram Avtar Sharma vs. State of Haryana, 1985 (2) SLR 57(SC) and Dhanbad Colliery Karamchari Sangh Vs. Union of India, 1991 Suppl (2) SCC 10.

Considering the law on this point, we find that the impugned order passed by respondent No.1 is wholly unsustainable.

For the foregoing reasons, the writ petition is allowed. The impugned orders dated 12.8.2003 and 5.7.2004 passed by the appropriate C.W.P. No. 1882 of 2006 4

government are set aside. The appropriate government shall pass orders afresh on the demand notice of the petitioner-workman, considering the law laid down by Hon'ble the Apex Court as well as the discussion made by us in the preceding para of this judgment. The parties are left to bear their own costs.

(ARVIND KUMAR)

JUDGE

August 8,2006 (J.S. NARANG)

Jiten JUDGE


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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