RAJ KUMARI Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) THE following facts are not disputed by the concerned respondents: The first petitioner was employed as Clerk-cum-Typist on daily-rated basis in the Divisional Forest Office, Kunihar, in the month of January, 1982 and the second petitioner in the month of July, 1983. The said employment of the petitioners was discontinued on and with effect from May 7, 1988, since, according to the concerned respondents, two Clerks were appointed in the said Division on February 18,1986.

(2.) THE Bhartiya Mazdoor Sangh, Himachal Pradesh, raised a dispute with respect to the discontinuance of the employment of the petitioners and a notice of demand was duly served on the competent authority. The Labour-cum-Conciliation Officer held conciliation proceedings with a view to bringing about a settlement of the dispute and he appears to have made a failure report to the Labour Commissioner, Himachal Pradesh, under Section 12 of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act") The State Government after taking into consideration the comments of the Labour Commissioner, issued two separate Memoranda on June 4 and 8, 1987, the material portions of which read as follows:. . . it has been found that the dispute raised by her does not fall within the purview of the Industrial Disputes Act, 1947. She may file her petition regarding termination of her services before the Administrative Tribunal, Himachal Pradesh-2. Hence the present writ petition.

(3.) THIS Court has time and again drawn the attention of the Labour Department of the State Government to the law governing the subject of the exercise of the powers under Section 10 (1) read with Section 12 (5) of the Act but it seems that the competent authority still goes on passing orders without due application of mind with the result that there is proliferation of litigation in this Court and avoidable delay in the adjudication of disputes in the competent forum. In P. C. Thapliyal v. Union of India and Anr. ILR 1985 HP 426 this Court has laid down the law in the following terms: The perspective of the statutory power to make a reference is thus clearly defined by the pronouncements of the highest Court in the above-cited decisions. In arriving at a decision whether or not to refer an industrial dispute for adjudication under Section 10 (1) read with Section 12 (5) of the Act, the appropriate Government exercise a discretionary power of jurisdiction which operates in a very limited field. The appropriate Government may examine the merits of the dispute, prima facie, to ascertain whether the claim made is either perverse or frivolous or belated. If so satisfied, the appropriate Government may refuse to make a reference. When, however, the appropriate Government applies its mind to the materials on record for the purposes of a prima facie examination of the merits of the dispute to form an opinion whether or not the dispute calls for an adjudication, it has to be appreciated as a rule that: (a) if the dispute in question raises questions of law, the appropriate Government should not purport to reach a final decision on those questions and (b) similarly, on disputed questions of fact also, the appropriate Government cannot purport to reach final conclusions. These matters fall appropriately within the jurisdiction of the Industrial Tribunal and the appropriate Government should be very slow to attempt an examination of the demand from those angles and should not arrive at a final adjudication of the demand itself on that basis and decline a reference on that ground. Any attempt on the part of the appropriate Government in that direction would not only rob the employees of an opportunity to place evidence before the Industrial Tribunal and to substantiate the reasonableness of the demand but also amounts to the usurpation of the powers conferred upon the Industrial Tribunal for adjudication of valid disputes. The courts may be vigilant and should not permit the appropriate Government to do so, lest the provisions of Section 10 read with Section 12 of the Act are rendered nugatory. To that similar effect is the decision in Ram Chand and Ors. v. Union of India and Ors. ILR 1985 HP 451