Jaisi Ram Alias Jai Singh Vs State of Hp and Others

For the Petitioner: Mr. Ashok K Verma, Advocate. For the Respondents: Mr. Anup Rattan, Advocate General with Ms.Seema Sharma, Deputy Advocate General.

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-----------------------------------------------------------------------------------Jyotsna Rewal Dua, Judge

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Challenge herein is to the order dated 15.06.2018 passed by the Deputy Labour Commissioner, Himachal Pradesh, refusing to send the dispute raised by the petitioner for adjudication to the learned Labour Courtcum-Industrial Tribunal.

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2. Heard learned counsel for the parties and considered the case file.

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3. Petitioner raised an industrial dispute. The

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1 Whether reporters of print and electronic media may be allowed to see the order? Yes.

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dispute could not be settled during conciliation proceedings. Report, as such, was submitted under Section 12(4) of the Industrial Disputes Act, 1947 (the Act in short) by the Labour Inspector-cum-Conciliation Officer, Jogindernagar, District Mandi. The matter reached the Deputy Labour Commissioner, Himachal Pradesh. The said Authority in exercise of powers vested in it under Section 12(5) of the Act, examined the report furnished by the Labour Inspector-cum-Conciliation Officer and concluded that petitioner had been authorized to run a depot under the Public Distribution System of fair price shop at Village Sherpur; the petitioner being the authorized deport holder, does not fall within the definition of word ‘workman’ Section 2(s) of the Act. Having formed this opinion, the dispute was declined to be referred to the learned Labour Court-cumIndustrial Tribunal for the adjudication.

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4. Telco Convoy Drivers Mazdoor Sangh and

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Another Vs. State of Bihar and Others² , inter-alia, holds that in considering the question of making a reference under Section 10(1) of the Act, the Government is entitled to form an opinion as to whether an industrial dispute

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2 (1989) 3 SCC 271

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exists or not. The appropriate Government cannot delve into the merits of the dispute and take upon itself the determination of the lis, as such an exercise would be in excess of the power conferred on it by Section 10 of the Act. This is an issue to be adjudicated by the concerned Labour Court-cum-Industrial Tribunal. Relevant paras from the decision read as under: -

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“ 11. It is true that in considering the question of making a reference under Section 10(1), the government is entitled to form an opinion as to whether an industrial dispute "exists or is apprehended" , as urged by Mr Shanti Bhushan. The formation of opinion as to whether an industrial dispute "exists or is apprehended" is not the same thing as to adjudicate the dispute itself on its merits. In the instant case, as already stated, the dispute is as to whether the convoy drivers are employees or workmen of TELCO, that is to say, whether there is relationship of employer and employees between TELCO and the convoy drivers. In considering the question whether a reference should be made or not, the Deputy Labour Commissioner and/or the government have held that the convoy drivers are not workmen and, accord-ingly, no reference can be made. Thus, the dispute has been decided by the government which is, undoubtedly, not permissible.

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12. It is, however, submitted on behalf of TELCO that unless there is relationship of employer and employees or, in other words, unless those who are raising the disputes are workmen, there cannot be any existence of industrial dispute within the meaning of the term as

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defined in Section 2(k) of the Act. It is urged that in order to form an opinion as to whether an industrial dispute exists or is apprehended, one of the factors that has to be considered by the government is whether the persons who are raising the disputes are workmen or not within the meaning of the definition as contained in Section 2(k) of the Act.

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13.

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Attractive though the contention is, we regret, we are unable to accept the same. It is now well settled that, while exercising power under Section 10(1) of the Act, the function of the appropriate government is an administrative function and not a judicial or quasijudicial function, and that in performing this administrative function the government cannot delve into the merits of the dispute and take upon itself the determination of the lis, which would certainly be in excess of the power conferred on it by Section I0 of the Act.

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14. Applying the principle laid down by this Court in the above decisions, there can be no doubt that the government was not justified in deciding the dispute. Where, as in the instant case, the dispute is whether the persons raising the dispute are workmen or not, the same cannot be decided by the government in exercise of its administrative function under Section 10(1) of the Act. As has been held in M. P. Irrigation Karamchari Sangh case, there may be exceptional cases in which the State Government may, on a proper examination of the demand, come to a conclusion that the demands are either perverse or frivolous and do not merit a reference. Further, the government should be very slow to attempt an examination of the demand with a view to declining reference and courts will always be vigilant whenever the government attempts to usurp the powers of the Tribunal for adjudication of

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valid disputes, and that to allow the government to do so would be to render Section 10 and Section 12(5) of the Act nugatory.

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15. We are, therefore, of the view that the State Government, which is the appropriate government, was not justified in adjudicating the dispute, namely, whether the convoy drivers are workmen or employees of TELCO or not and, accordingly, the impugned orders of the Deputy Labour Commissioner acting on behalf of the government and that of the government itself cannot be sustained.”

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5. The ratio of the above decision applies to the

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given situation. It was not for the Deputy Labour Commissioner, Himachal Pradesh to adjudicate as to whether the petitioner was workman or not. The order passed by the Deputy Labour Commissioner, Himachal Pradesh holding the petitioner to be not a workman was beyond the jurisdiction vested in him under Section 10(1) of the Act. The determination of this issue was within the domain of the concerned learned Labour Court-cumIndustrial Tribunal. Hence, the impugned order dated 15.06.2018 (Annexure P-7), passed by the Deputy Labour Commissioner, Himachal Pradesh, is quashed and set aside. The Authority is directed to refer the dispute raised by the petitioner for adjudication to the concerned Court of learned Labour Court-cum-Industrial Tribunal. The present writ petition to stand disposed of accordingly.

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Pending miscellaneous application(s), if any,

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also to stand disposed of.

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Jyotsna Rewal Dua July 15, 2026 Judge R.Atal

Jaisi Ram Alias Jai Singh v. State of Hp and Others

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Jaisi Ram Alias Jai Singh v. State of Hp and Others

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