Kashmir Singh Vs State of Hp and Others

( 2026:HHC:10830 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

		CWP Nos.1972 to 1975/2024 Decided on: 08.04.2026
1. CWP No. 1972/2024
Kashmir Singh		…Petitioner
State of H.P. & Ors.	Versus	.…Respondents
2. CWP No. 1973/2024
Man Singh		…Petitioner
	Versus
State of H.P. & Ors.		.…Respondents
3. CWP No. 1974/2024
Suresh Kumar		…Petitioner
	Versus
State of H.P. & Ors.		.…Respondents
4. CWP No. 1975/2024
Uttam Chand		…Petitioner
State of H.P. & Ors.	Versus	.…Respondents

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Coram

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Ms. Justice Jyotsna Rewal Dua, Judge.

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Whether approved for reporting?¹ For the petitioners: Mr. Rahul Mahajan, Advocate, in all the petitions. For the respondents: Mr. Vishwadeep Sharma, Additional Advocate General and

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1 Whether reporters of the local papers may be allowed to see the judgment? yes

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Mr. Rajat Chaudhary, Assistant Advocate General, in all the petitions.

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Jyotsna Rewal Dua, J.

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All these matters involve common questions of law and have almost similar facts, hence, with the consent of learned counsel for the parties, have been taken up together for adjudication.

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For convenience, facts from CWP No. 1972/2024 are being referred to hereinafter.

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2. The case.

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2(i) Petitioner’s services were engaged in the respondent–

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Public Works Department in May, 2000. His services were regularized on 30.07.2015. Petitioner has placed on record the muster roll at Annexure P-1, showing that he worked 49 days in 2000, 55 days in 2001, 167 days in 2002, 174 days in 2003, 174 days in 2004, 174 days in 2005, 173 days in 2006, 224 days in 2007, 359 days in 2008, 365 days in 2009, 361 days in 2010, 363 days in 2011, 366 days in 2012, 363 days in 2013, 365 days in 2014 & 209 days in 2015.

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The above muster roll has not been disputed by the respondents-State.

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2(ii) Petitioner preferred Kashmir Singh Vs. State of H.P.

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& Ors.² before the erstwhile H.P. State Administrative Tribunal with the grievance that his muster roll does not depict the correct position for the years 2000–2007. The respondents had given him intermittent breaks during the period in question. Even though he had continued to serve, the breaks were given to deprive him of the benefits of continuous daily wage service. The petitioner also statedly brought on record an office letter dated 14.09.2007 issued by the Principal Secretary, Public Works Department, to the Government of Himachal Pradesh (Annexure P-2 in the instant petition), directing the concerned authorities to provide muster rolls to the labourers for the complete months without breaks instead of giving them intermittent breaks in the muster roll. Kashmir Singh² was dismissed as withdrawn on 22.06.2021 with liberty reserved to the petitioner to file appropriate proceedings in the appropriate Court of law.

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2(iii) Pursuant to above, petitioner raised a demand notice on 05.07.2021. The industrial dispute raised by him was for condoning alleged illegal time-to-time termination/fictional break period, with a prayer for grant of seniority, continuity in service, wages, and all consequential benefits.

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2 CWPOA No. 2234/2020 decided on 22.06.2021

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2(iv) The Deputy Labour Commissioner, Himachal Pradesh,

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vide order dated 18.01.2023, declined to refer the matter to the learned Labour Court-cum-Industrial Tribunal for adjudication.

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Feeling aggrieved, the petitioners have preferred these

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petitions assailing the order dated 18.01.2023 passed by the Deputy Labour Commissioner, Himachal Pradesh in all the petitions.

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3. I have heard learned counsel for the parties and considered the case file.

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4. Consideration

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4(i) The Deputy Labour Commissioner, Himachal Pradesh,

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has assigned two reasons for not referring the dispute to the learned Labour Court-cum-Industrial Tribunal: - (i) The dispute raised by the petitioner was stale & had faded away, and (ii) Petitioner, after his regularization on 30.07.2015, should have filed his claim before the appropriate forum under the Fundamental Rules, Supplementary Rules, and Central Civil Services Rules.

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4(ii) It would be appropriate at this stage to refer to the Full Bench decision of this Court in Jai Singh Vs. State of H.P. & Ors.³ wherein principles of law were summed up regarding the effect of delay in making reference of the industrial dispute to the Labour Court/Industrial Tribunal under Section 10(1) of the Act as under: -

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3 CWP No. 2190/2020 decided a/w connected matters on 30.03.2022

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“28. Following principles of law can, therefore be culled out from series of the precedents discussed above, as to the effect of delay in demanding /making reference of the industrial dispute to the Labour Court/Industrial Tribunal under Section 10(1) of the Act:-

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i) That the function of the appropriate Government while dealing with question of making reference of industrial dispute under Section 10(1) of the Act, is an administrative function and not a judicial or quasi judicial function.

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ii) That the Government before taking a decision on the question of making reference of the industrial dispute has to form a definite opinion whether or not such dispute exits or is apprehended.

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iii) That whether or not the industrial dispute exists or is apprehended in the meaning of Section 10(1) of the Act can be decided by the appropriate Government alone and not by any other authority including by this Court.

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iv) That the appropriate Government in discharging the administrative function of taking a decision to make or refuse to make, reference of the industrial dispute under Section 10(1) of the Act, has to apply its mind on relevant considerations and has not to act mechanically as a post office.

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v) That while forming an opinion as to whether the industrial dispute exists or is apprehended, the appropriate Government is not entitled to adjudicate the dispute itself on merits.

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vi) That the delay by itself does not denude the appropriate Government of its power to examine advisability of making reference of the industrial dispute but the delay would certainly be relevant for deciding the basic question whether or not the industrial dispute “exists” which also includes the decision to find out whether on account of delay the dispute has ceased to exist or has ceased to be alive or has become stale or has faded away.

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vii) That whether or not a dispute is alive or has become stale or non-existent, would always depend on the facts of

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each case and no rule of universal application can be laid down for the same.

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viii) That even if Section 10(1) of the Act empowers the appropriate Government to form an opinion “at any time” on the question whether any “industrial dispute” “exists or is apprehended”, and there is no time limit prescribed for taking such a decision, yet such power has to be exercised by the appropriate Government within a reasonable time.

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ix) That the period for making reference of industrial dispute is co-extensive with the existence of dispute because the factum of the “existence” or “apprehension of the dispute” is conditioned by the effect of the delay on the liveliness of the dispute. x) That the appropriate Government in arriving at the decision to make a reference of industrial dispute or otherwise, in the context of delay, may examine whether the workman or the Union has been agitating the matter before the appropriate fora so as to keep the dispute alive, which however, does not necessarily mean that in a case where such action has not been initiated, the dispute has ceased to exist.

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xi) That the appropriate Government can, as per Section 10(1) of the Act, take a decision on the question of making reference “at any time”, thus implying that there is no limitation in taking such decision and the provisions of Article 137 of the Schedule to Limitation Act, 1963 are not applicable to such proceedings.

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xii) That the appropriate Government while taking a decision on the question of making reference, need not provide an elaborate opportunity of hearing to the workman but it is under an obligation to consider his explanation for delay in making the demand.

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xiii) That in cases where the appropriate Government while examining the question of making a reference of industrial dispute arrives at a decision that the question that on account of delay the dispute has ceased to exist or alive, would require elaborate examination of the evidence, it may

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while making a reference of the industrial dispute, additionally formulate question on this aspect to be decided as preliminary issue while simultaneously also making a reference on the industrial dispute to be decided as secondary issue. xiv) That even in a case where reference has been made to the Industrial Court after prolonged delay, such Court would be entitled to mould the relief by declining whole or part of the back wages.

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xv) That even when a reference is made by appropriate Government in a case after huge and enormous unexplained delay, the industrial Court would be entitled to return the reference since such Court judiciously exercises its wide jurisdiction under Section 11-A of the Industrial Disputes Act and is under obligation to consider whether in such like situation any relief at all could be granted to the workman .”

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4(iii) In my considered view, both the reasons assigned by

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the Deputy Labour Commissioner for declining to refer petitioner’s dispute to the learned Labour Court-cum-Industrial Tribunal are not tenable in the given facts. Firstly, the dispute raised by the petitioner cannot be said to be stale at this stage. The muster roll placed on record by the petitioner at Annexure P-1 has not been disputed by the respondent-State. It is the case of the respondents that the services of the petitioner were regularized on 30.07.2015. In the instant case, prima-facie it appears that it is post his regularization that the cause of action accrued to the petitioner to seek regularization from an anterior date on the ground that illegal intermittent breaks were given to him in the muster roll for the

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( 2026:HHC:10830 )

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period 2000–2007. Within two years of regularization of his service, the petitioner had preferred O.A. No. 2817/2017. The original application was dismissed as withdrawn on 22.06.2021 (as CWPOA No. 2234/2020) with liberty to the petitioner to file appropriate proceedings before the appropriate Court of law. Within a month thereafter, the petitioner raised a demand notice on 25.07.2021. Therefore, in the given facts and circumstances, it cannot be outrightly said that the dispute raised by the petitioner did not exist, had become stale, or had faded away. This aspect in the given facts, can be better examined & adjudicated by the learned Labour Court in view of principles Nos. xiii) to xv) summed up in Jai Singh³ .

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On the second issue, no doubt petitioner’s services were regularized on 30.07.2015, but the dispute raised by the petitioner was an industrial dispute. It pertained to the respondents allegedly giving him fictional breaks during the period of his daily wage service with the respondents from 2000 to 2007. Looking to the muster roll produced by the petitioner, he would definitely be required to lead evidence to prove that he had been given fictitious breaks for the period in question. The petitioner, being a daily wage employee for the period in question, would not be covered under the Fundamental Rules, Supplementary Rules, and Central Civil Services Rules for seeking benefits for the period when he was not a regular employee. Even otherwise, this aspect can very well be

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examined and discussed by the competent authority while adjudicating the dispute.

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5. In view of the above discussion, the impugned order dated 18.01.2023 passed by the Deputy Labour Commissioner, Himachal Pradesh, in all the petitions is quashed and set aside. The Deputy Labour Commissioner, Himachal Pradesh, is directed to refer the industrial dispute raised by the petitioners in all the petitions after formulating appropriate references for adjudication to the appropriate Labour Court/Industrial Tribunal.

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The writ petitions are disposed of in above terms. Pending miscellaneous applications, if any, shall also stand disposed of.

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Jyotsna Rewal Dua Judge

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8^th April, 2026(rohit)

Kashmir Singh v. State of Hp and Others

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Kashmir Singh v. State of Hp and Others

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