UJAGAR SINGH Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) Petitioner was engaged as Beldar on daily wage basis with effect from September, 1995. His services were retrenched on 31st December, 1996. He approached the erstwhile learned Himachal Pradesh Administrative Tribunal by way of O.A. No. 975 of 1997. The learned Tribunal on 23rd August, 2005 permitted the petitioner to approach the appropriate Forum. He also approached the Industrial Tribunal-cum-Labour Court, Dharamshala, but he has withdrawn the proceedings on 22nd September, 2006. Thereafter, a demand was raised to the Conciliation Officer-cum- Labour Inspector, Una on 28th September, 2006. The Conciliation Officer-cum-Labour Inspector submitted his report to the Labour Commissioner. The Labour Commissioner refused to refer the dispute to the Labour Court-cum-Industrial Tribunal, merely on the ground that the petitioner has not completed 240 days' continuous service preceding 12 calendar months of his retrenchment as per requirement under Section 25-B of the Industrial Disputes Act, 1947. The Labour Commissioner has mis-directed himself on facts as well as law. It was not open to the Labour Commissioner to touch the merits of the case. The question whether the petitioner has completed 240 days or not preceding his retrenchment, could only be adjudicated upon by the Labour Court after permitted the parties to lead their respective evidence. The Labour Commissioner only discharges the administrative functions and not judicial or quasi-judicial functions. Their Lordships of the Hon'ble Supreme Court in Sarva Shramik Sangh versus Indian Oil Corporation Limited and others, 2009 11 SCC 609 have culled out the following principles (para-37):-

(2.) Accordingly, in view of the observations and discussions made hereinabove and the definitive law laid down by their Lordships of Hon'ble Supreme Court in the judgment cited supra, the petition is allowed. Annexure P-5, dated 12th November, 2007 is quashed and set aside. The Labour Commissioner is directed to make reference to the Labour Court-cum-Industrial Tribunal, Kangra at Dharamshala, within a period of four weeks from today. Thereafter, the Presiding Judge, Labour Court-cum-Industrial Tribunal, Kangra at Dharamshala will answer the reference within a period of six months, since the petitioner was retrenched on 31st December, 1996. The pending application (s), if any, also stands disposed of. No costs.