Vijay Kumar Jhamb vs. Union Of India - (High Court of Delhi) (13 Apr 2023)

Government can refuse to make a reference only when the claim is found to be wholly frivolous

MANU/DE/2445/2023

Labour and Industrial

The present petition preferred by the workman under Article 226 of the Constitution of India, 1950 seeks quashing of the order passed by the Respondent under Section 12(5) of the Industrial Disputes Act (ID Act). Vide the impugned order, the Respondent, the appropriate Government acting through the Regional Labour Commissioner has declined to refer the dispute raised by the Petitioner for adjudication before the Industrial Tribunal.

Once the Respondent itself was not sure as to whether the Petitioner's claim was justified or not, it ought to have referred the case for adjudication to the Industrial Tribunal so as to enable the parties to lead evidence in support of their respective stands.

Even otherwise, it is well settled that even though under Section 10 of the I.D. Act, the Appropriate Government is required to consider whether a dispute exists or is apprehended, the same however, does not imply that the Government should take upon itself the task of adjudicating the dispute on merits. It is only when the claim is found to be wholly frivolous that the Government can refuse to make a reference. However, this refusal should be only in extraordinary cases and not in a case like the present where the Government itself was only of the prima facie opinion that no case was made out. Under Section 10 of the I.D. Act, the Appropriate Government is only required to form an opinion as to whether a dispute exists or not.

The Respondent had overstepped it's jurisdiction in opining that the Petitioner was not entitled to any pension under the Pension Rules of the bank. The Respondent has failed to appreciate that it was the Petitioner's specific case that, he had voluntarily resigned from service with effect from 1st May, 2004 but was thereafter malafidely removed from service on 24th November, 2004. Furthermore, despite his removal from service, he would still be entitled to pension having rendered more than 20 years in service. This stand of the Petitioner, could not have been simply rejected by the Respondent and that too without granting him any opportunity to lead evidence before the learned Tribunal.

The impugned order being wholly unsustainable is accordingly set aside. The matter is remanded back to the Respondent, who will forthwith make a reference of the disputes raised by the petitioner so that the same can be adjudicated by the competent Industrial Adjudicator without any further delay.

Tags : DISPUTE ADJUDICATION REFERENCE