RAJESH KUMAR Vs. STATE OF H P

JUDGEMENT

(1.) 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. dated 2nd

(2.) ANNEXURE-PC, order passed by the Government 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 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.) 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: