IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.983 of 2022 Decided on: 05.08.2026 ------------------------------------------------------------------------------------- Bharat Bhushan …..Petitioner Versus Joint Labour Commissioner & Ors. .....Respondents ------------------------------------------------------------------------------------- Coram Ms. Justice Jyotsna Rewal Dua Whether approved for reporting?1 For the Petitioners: Mr. Amit Sharma, Advocate. For the Respondents: Mr. Anup Rattan, Advocate General, with Mr. L.N.Sharma, Additional Advocate General, for respondents No.1 and 2. Respondent No.3 ex-parte. ------------------------------------------------------------------------------------ Jyotsna Rewal Dua, Judge Petitioner feels aggrieved against the order dated 14.09.2021 passed by respondent No.1 declining to refer the dispute raised by the petitioner for adjudication to the concerned learned Labour Court/Industrial Tribunal on the ground that dispute having become stale had faded away with time. 1Whether reporters of print and electronic media may be allowed to see the order? Yes. 2 2. Heard learned counsel for the parties and considered the case file. 3. From the impugned order itself, it comes out that petitioner-workman, was employed with respondent No.3 w.e.f. 02.11.2009 to 14.03.2013. According to the petitioner, his services were terminated by respondent No.3 on 08.03.2013/15.03.2013. In terms of the impugned order, petitioner had raised a demand notice on 04.07.2020. The demand having been made after lapse of more than seven years of alleged disengagement, without there being any justification for the delay, respondent No.1 declined to refer the same for adjudication to the learned Labour Court/Industrial Tribunal. 3(i) Respondents No. 1 and 2 have also filed reply, taking the stand that petitioner had though sent a letter dated 09.04.2013 (Annexure P-4), which was received in the office of respondent No.2, but in the said letter, petitioner had mentioned only about some quarrel/scuffle with another person. The said letter was not treated as a proper demand notice as the petitioner had neither mentioned the provisions of Section 2(A)(1) of the Industrial Disputes Act, 1947 (the Act in short) in the aforesaid letter nor was it 3 addressed to the employer with a copy to Conciliation Officer for necessary action. It was accordingly treated as a mere complaint for enquiring into some quarrel, hence, no action was taken by respondent No.2 on the complaint. Reply further acknowledges receipt of another compliant dated 07.05.2018 (Annexure R-1) from the petitioner. As per reply, the aforesaid compliant was regarding non- payment of petitioner’s wages for a period of about one month. Conciliation proceedings were ordered on this complaint, but the dispute of outstanding wages could not be settled amicably. Respondent No.2 is stated to have apprised the petitioner to file his claim before the competent authority for recovery of outstanding wages under Section 15(1) of the Payment of Wages Act, 1936. According to the reply, respondents received yet another complaint from the petitioner dated 24.08.2018 (Annexure P-5) for enquiry into the matter of his termination. As per the respondents, the said compliant was not in the form of proper demand notice under Section 2(A)(1) of the Act, therefore, it was not looked into by the respondents. 3(iii) Respondents have submitted that the petitioner had raised a proper demand notice only on 04.07.2020 (Annexure P-6) wherein, specific provision of the Act i.e. 4 Section 2(A)(1) of the Act was mentioned, the complaint was addressed to the employer with copy endorsed to the concerned Labour Officer . Accordingly, the said complaint of the petitioner, quoting the provisions of the Act, was treated as demand notice. Conciliation proceedings were initiated. The dispute could not be resolved amicably. Accordingly, the conciliation failure report was sent under Section 12(4) of the Act to the appropriate Government. The appropriate Government i.e. respondent No.1 came to the conclusion that the dispute had been raised after a period of more than seven years of its inception, hence, being belated had faded away with the passage of time, therefore, vide impugned order, the same was declined to be referred to the learned Labour Court for adjudication. 4. Shambhu Nath Goyal Vs. Bank of Baroda2 interpreted the following definition of the Industrial Disputes given in Section 2(k) of the Act:- “2(k)"industrial dispute" means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person.” 2 (1978) 2 SCC 353 5 Hon’ble Apex Court held that where there is a dispute or difference between the parties, contemplated by the definition and the dispute or difference is connected with the employment or non-employment or the terms of employment or with the conditions of labour of any person, there comes into existence an industrial dispute. The Act nowhere contemplates that the dispute would come into existence in any particular, specific or prescribed manner. For coming into existence of an industrial dispute, a written demand is not a sine quo non unless in case of public utility service. To read into definition the requirement of written demand for bringing into existence an industrial dispute would tantamount to re-writing the section. Relevant paras form the decision are as under:- “5. A bare perusal of the definition would show that where there is a dispute or difference between the parties contemplated by the definition and the dispute or difference is connected with the employment or non- employment or the terms of employment or with the conditions of labour of any person there comes into existence an industrial dispute. The Act nowhere contemplates that the dispute would come into existence in any particular, specific or prescribed manner. For coming into existence of an industrial dispute a written demand is not a sine qua non, unless of course in the case of public utility service, because Section 22 forbids going on strike without giving a strike notice. The key words in the definition of industrial dispute are 'dispute 6 or difference. What is the connotation of these two words? In Beetham v. Trinidad Cement Ltd3 Lord Denning while examining the definition of expression "Trade dispute' in Section 2(1) of Trade Disputes (Arbitration and Inquiry) Ordinance of Trinidad observed: “By definition a 'trade dispute exists whenever a difference exists; and a difference can exist long before the parties became locked in a combat. It is not necessary that they should have come to blows. It is sufficient that they should be sparing for an opening.” 6. Thus the term 'industrial dispute' connotes a real and substantial difference having some element of persistency and continuity till resolved and likely if not adjusted to endanger the industrial peace of the undertaking or the community. When parties are at variance and the dispute or difference is connected with the employment, or non-employment or the terms of employment or with the conditions of labour there comes into existence an industrial dispute. To read into definition the requirement of written demand for bringing into existence an industrial dispute would tantamount to re-writing the section. 7. The reference in the case before us was made under Section 10(1) which provides inter alia that where the appropriate government is of opinion that any industrial dispute exists or is apprehended it may at any time by order in writing refer the matter for adjudication as therein mentioned. The power conferred by Section 10(1) on the Government to refer the dispute can be exercised not only where an industrial dispute exists but when it is also apprehended. From the material placed before the Government, Government reaches an administrative decision whether there exists an industrial dispute or 3 (1960)1 All ER 274, 279 : 1960 AC 132 7 an industrial dispute is apprehended and in either event it can exercise its power under Section 10(1). But in making a reference under Section 10(1) the Government is doing an administrative act and the fact that it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it any the less administrative in character. The Court cannot therefore, canvass the order of reference closely to see if there was any material before the Government to support its conclusion, as if it was a judicial or quasi-judicial determination. No doubt it will be open to a party seeking to impugn the resulting award to show that what was referred by the Government was not an industrial dispute within the meaning of the Act, and that, therefore, the Tribunal had no jurisdiction to make the award. But, if the dispute was an industrial dispute as defined in the Act, its factual existence and expediency of making a reference in the circumstances of a particular case are matters entirely for the Government to decide upon and it will not be competent for the Court to hold the reference bad and quash the proceedings for want of jurisdiction merely because in its opinion there was no material before the Government on which it could have come to an affirmative conclusion of those matters, (vide Madras State V. C. P. Sarthy4). The Tribunal, however, referred to the decision of this Court in Sindhu Resettlement Corporation Ltd. V. Industrial Tribunal5, in which this Court proceeded to ascertain whether there was in existence an industrial dispute at the date of reference, but the question whether in case of an apprehended dispute Government can make reference under Section 10(1) was not 4 AIR 1953 SC 53: 1953 SCR 334: (1953) 1 Lab LJ 174 5 (1968) 1 Lab LJ 834: AIR 1968 SC 529 : (1968) 1 SCR 515 8 examined. But that apart the question whether an industrial dispute exists at the date of reference is a question of fact to be determined on the material placed before the Tribunal with the cautions enunciated in C. P. Sarthy's case (supra). In the case before us, it can be shown from the record accepted by the Tribunal itself that there was in existence a dispute which was legitimately referred by the Government to the Industrial Tribunal for adjudication. Un-doubtedly, it is for the Government to be satisfied about existence of the dispute and the Government does appear to be satisfied. However, it would be open to the party impugning the reference (to contend) that there was no material before the Government, and ii would be open to the Tribunal to examine the question, but that does not mean that it can sit in appeal over the decision of the Government and come to a conclusion that there was no material before the Government.” In the instant case, the petitioner had alleged termination of his services by respondent No.3 on 08.03.2013/15.03.2013. Within a month thereof, he had submitted a written representation to respondent No.2-the Labour Inspector-cum-Conciliation Officer Kinnaur. In the said written representation, petitioner did indeed complain about having been removed from the service and prayed for reinstatement. Merely because petitioner did not mention the applicable provisions of the Industrial Disputes Act in the aforesaid representation would not take away the character of the dispute or the existence of the dispute 9 raised by him. Even if the aforesaid complaint had not been addressed to the employer-respondent No.3, the said fact alone cannot be construed to mean that the petitioner did not raise the dispute. The dispute existed and was brought to the notice of the concerned quarter though may not be on the requisite format. The procedural requirements, if any, of dispute to have been brought to the of the employer or any other officials of the respondents, was rectifiable and appropriate steps in that regard could have been taken by respondent No.2 by directing the petitioner to do the needful or by referring the aforesaid complaint to respondent No.3. What’s more, in the similar manner, petitioner had represented to respondent No.2 on 07.05.2018 (Annexure R-1), wherein, he complained regarding non-payment of wages. It is the admitted case of the respondents that in this representation conciliation proceedings were initiated. Petitioner had also represented to respondent No.2 on 24.08.2018 (Annexure P-5) complaining about him having been removed from service on 09.04.2013 and no action having been taken by the respondents on his such representation. Petitioner did not quote any provision of the Act under which the representation was made. 10 Petitioner represented next on 04.07.2020 (Annexure P-6) quoting ‘Section 2(A)(1)’ of the Act in the representation and addressed the representation to respondent No.3-his employer with copy to respondent No.2. This was treated as a proper demand notice by the respondents. On failure of conciliation proceedings that were initiated pursuant to the said demand notice dated 04.07.2020, the matter was referred to respondent No.1, who vide impugned order dated 14.09.2021, held that the dispute that originated in March 2013 was being raised in the year 2020 and, therefore, had become stale for lapse of more than seven years. The facts of the case as noticed above demonstrate that the dispute was kept alive by the petitioner all throughout. The petitioner had sought redressal of the dispute that arose between him and respondent No.3 in March 2013 from the respondents vide his representation dated 09.04.2013. Just because petitioner did not quote the provisions of the Industrial Dispute Act in the representation, would not take away the character of surviving dispute that arose between him and respondent No.3. It was incumbent upon respondent No.2 to have treated the said dispute as an industrial dispute 11 and to have proceeded further in accordance with law. At the costs of the brevity, it may again be mentioned that another complaint made by the petitioner in similar manner without quoting the provisions of the Industrial Disputes Act and without addressing the representation to the employer, was treated as a demand notice, whereupon conciliation proceedings were started. In the given facts and circumstances, the reasoning given by respondent No.1 in the impugned order that dispute had become stale, is not justiciable. The dispute was not stale. The dispute had not faded away. It was alive. Petitioner had been raising the demand from time to time for redressal of his industrial dispute. It was not responded to by the respondents. For the fault of the respondents for not giving due attention to the petitioner’s dispute for a period of seven years, merely because he did not refer the provisions of the Act or had not addressed the complaint/notice to his employer-respondent No.3, the dispute cannot be said to have become stale. Accordingly, this writ petition is allowed. Order dated 14.09.2021 (Annexure P-8) is quashed and set aside. Respondent No.1 is directed to re-consider the matter 12 afresh keeping in view the observations made hereinabove. This exercising be carried out within a period of four weeks from today. Pending miscellaneous application(s), if any, also to stand disposed of. Jyotsna Rewal Dua August 05, 2026 Judge R.Atal