Ramesh Kumar Vs State of Hp and Others

For the Petitioner: Mr. Nishant Khidtta and Mr. Het Ram Thakur, Advocates. 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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Petitioner feels aggrieved against the order dated

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22.01.2026 passed by the Deputy Labour Commissioner, Himachal Pradesh, declining to refer the issue raised by the petitioner for adjudication to the learned Labour Courtcum-Industrial Tribunal.

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For declining to refer the matter raised by the petitioner, learned Deputy Labour Commissioner has held that the dispute raised by the petitioner had already been

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

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adjudicated by the learned Labour Court, Kangra at Dharamshala and thereafter by this Court. In the given circumstances, the Deputy Labour Commissioner, Himachal Pradesh did not feel it necessary to refer the matter again for adjudication to the concerned Labour Court.

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

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3. Facts:-

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3(i). The case file reflects that following dispute

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raised by the petitioner was referred by the Appropriate Government for adjudication to the learned Labour Courtcum-Industrial Tribunal, Kangra:-

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“Whether termination of the services of Shri Ramesh Kumar S/O Shri Brij Lal, R/O Village Bag, P.O. Rakol, Sub Tehsil Nihari, District Mandi, H.P. by the Divisional Forest Officer, Suket Forest Division, Sunder Nagar, District Mandi, H.P. during February, 2013 and changing his service conditions during his length of service as alleged by the worker, without complying the provisions of the Industrial Disputes Act, 1947 is legal and justified? If not, what amount of back wages, seniority, past service benefits and compensation the above worker is entitled to from the above employer?”

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The above reference was followed by a

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corrigendum dated 21.05.2018 as under:-

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“Whereas, a reference has been made to the Ld. Labour Court-cum-Industrial Tribunal, Dharamshala, District Kangra, H.P. vide notification of even no. dated

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11.02.2015 for legal adjudication. However, inadvertently the correct facts could not be mentioned about the date of time to time termination of the said notification. Therefore, the same may be read as “July, 2004 to February, 2013” instead of “February, 2013.”

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3(ii). Learned Labour Court-cum-Industrial Tribunal

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vide its award dated 06.05.2019 held the claim petition meritless, not maintainable and malafide. The same was dismissed with costs quantified at Rs.3000/-.

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3(iii). Civil Writ Petition No.2700 of 2019 instituted by

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the petitioner against the award was also dismissed by a Coordinate Bench of this Court on 14.03.2023, though cost imposed upon the petitioner was waived. Relevant portion from the judgment reads as under:-

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“6. On the basis of pleadings of respective parties, learned Tribunal below framed following issues:

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“1. Whether termination of the services of the petitioner during Feb., 2013 and changing his service conditions during his length of service by the respondent is illegal and unjustified as alleged? OPP

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2. If issue No.1 is proved in affirmative, to what service benefits the petitioner is entitled to? OPP

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3. Whether the claim petition/reference is not maintainable in the present form as alleged? OPR

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4. Whether the claim petition become infructuous as alleged. If so, its effect? OPR Relief:

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7. Subsequently, on the basis of evidence led on record by respective parties, learned Tribunal below dismissed claim petition of he petitioner with costs. In the aforesaid background, petitioner has approached this court in the instant proceedings, praying therein to set aside the award.

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8. Having heard learned counsel for the parties and perused material available on record, this court finds no illegality and infirmity in the award passed by learned Tribunal below as same appears to have been based on proper appreciation of facts and law. Though the petitioner claimed that he worked with the respondent till 2013 and thereafter his services were terminated by the respondent wrongly and illegally but the man days chart Exhibit. RW-1/B produced by respondent reveals that the petitioner had been working with the respondent till March, 2014. In march, 2014, petitioner worked for 08 days and after that worked for 23 days and 11 days in October and November, 2014 respectively. Man days chart further reveals that petitioner worked in February and March, 2015 with the respondent. Since the petitioner worked for a few months in 2014 and 2015, plea set up by him that he was terminated wrongly in February, 2013, falls to ground.

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9. Perusal of statement of PW-1 clearly reveals that even after 2013, the petitioner has been working with respondent He admitted that he was never disengaged in 2014. Since he admitted factum with regard to his having worked with the respondent in the year 2014, very plea that his services were terminated in February, 2013 in violation of various provisions of Industrial Disputes Act, falls to the ground. Services of petitioner were never terminated in 2013 as alleged, rather he abandoned job himself and thereafter again joined services intermittently as per requirement. Since he himself abandoned the job, there was no occasion for the respondent to comply with the provisions of 25F, 25G and 25H of the Act.

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10. Though petitioner claimed that the respondent violated S. 9 of the Act, as his service conditions were changed unilaterally but such plea never came to be proved in accordance with law by leading cogent and convincing evidence.

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11. Hence, this Court, after carefully examining the Award passed by the Tribunal below, sees no reason to interfere in the findings recorded by the Tribunal, which are otherwise based on correct appreciation of evidence led on record by the parties, as such, impugned award deserves to be upheld. It is well settled law that the Courts while examining correctness and genuineness of

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award passed by Tribunal have very limited powers to re-appreciate the evidence led before the Tribunal below, especially the findings of fact recorded by the Tribunal below. Apart from above, findings of fact recorded by learned Tribunal below on the basis of appreciation of evidence cannot be questioned in writ proceedings and writ court cannot act as an appellate court……………

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12. In view of above, this Court finds no illegality in the award passed by learned Tribunal below, which is upheld. However, the impugned award to the extent of imposition of costs of Rs.3,000/- is set aside. It is also made clear that the petitioner shall be at liberty to make himself available for seasonal work with the respondent.”

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3(iv). No further challenge was laid by the petitioner.

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Two days after the decision of the writ petition, petitioner preferred representations (Annexure P-4 Colly.) to different authorities seeking employment, inter alia , averring therein that he had not left the work himself; That the stand of the respondents projected before this Court in the writ petition about him having abandoned the work and thereafter joining intermittently as per requirement was incorrect. The petitioner did not receive any response to the representations.

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3(v). Petitioner thereafter served demand notice dated 16.09.2024 upon the respondent-Forest Department. His grievance in the demand notice was that the respondentDepartment had denied his legitimate claim, whereas services of similarly situated workmen, some of which were

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his juniors, had been regularized. Petitioner was working as daily wage worker on bill basis. Breaks in his service were not being considered by the respondents towards his continuous service, whereas breaks in the daily wage services of his juniors had been counted for the purpose of their regularization. The fictional breaks given to the petitioner were in violation of the provisions of the Industrial Disputes Act (in short ‘the Act’), more particularly, of the principle of ‘first come last go’ as also Section 25 of the Act. Relevant paras from the demand notice are as under:-

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“9. That it is to the shock of applicant that the department on the one hand denied the legitimate claim of the applicant, however, on the other hand regularized the services of the similarly situated workmen who had initially agitated their termination along with the applicant and some of them were juniors to the applicant. It is further shocking for the applicant when he came to know that the same conciliation was arrived at before Labour Inspector Sunder Nagar and persons whose names even were not present in the seniority list and were much junior to the applicant have been regularized by the department.

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12. That the applicant is still working as a daily wage workman on ‘Bill Basis’ whereas the breaks in daily wage services of the juniors has been counted for the purpose of the regularization.

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13. The fictional breaks given to the applicant therefore violates the provision of the Industrial Disputes Act, violation of principle of ‘First Come Last Go’ and also section 25 of Industrial Disputes Act.”

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4. In the background of previous litigation decided

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against the petitioner, the Deputy Labour Commissioner

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was justified in holding that there was no alive/surviving dispute between the parties. The dispute raised by the petitioner had already been adjudicated by the learned Labour Court and thereafter by this Court.

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Learned counsel for the petitioner submitted

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that it was not for the Deputy Labour Commissioner to have held so. He was only required to send the dispute to the learned Labour Court for adjudication. It was for the learned Labour Court to adjudicate as to whether the dispute raised by the petitioner was alive or not in existence. The submissions of learned counsel cannot be countenanced. In this regard, reference can be made to a Full Bench decision of this Court in Jai Singh Versus State of Himachal Pradesh and others² . Operative para of the judgment is reproduced hereinbelow:-

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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

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2 CWP No.2190 of 2020, decided alongwith connected matters on 30.03.2022

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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 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

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x) That the appropriate Government in arriving at the decision to make a reference of industrial dispute or

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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. 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 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.

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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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In terms of the conclusion drawn in Jai Singh² ,

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it is within the domain of the Appropriate Government

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before taking a decision on the question of making

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reference of the industrial dispute to form a definite opinion as to whether or not such dispute exists or not; Whether or not the industrial dispute exists within the meaning of Section 10(1) of the Act, can only be decided by the Appropriate Government and not by any other authority including the Court. The Appropriate Government in discharging the administrative function of taking a decision to make or refuse to make reference of an industrial dispute under Section 10(1) of the Act, has to apply its mind on relevant considerations and has not to act mechanically as post office.

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In view of above settled legal position, the Deputy Labour Commissioner, Himachal Pradesh/ Appropriate Government had acted within the four corners of jurisdiction vested in it under Section 10(1) of the Act in taking note of the previous litigations between the parties and fresh demand notice served by the petitioner, to hold that there was no alive/surviving dispute between the parties. The dispute raised by the petitioner had already been adjudicated.

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5. Hence, I do not find any good ground to interfere with the impugned order dated 22.01.2026 (Annexure P-6) passed by the Deputy Labour Commissioner, Himachal

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Pradesh. This writ petition, therefore, lacks merit and is accordingly dismissed. Pending miscellaneous

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application(s), if any, also stand disposed of.

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Jyotsna Rewal Dua June 18, 2026 Judge Mukesh

Ramesh Kumar v. State of Hp and Others

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Ramesh Kumar v. State of Hp and Others

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