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2015 DIGILAW 103 (HP)

Raj Kumar v. State of H. P.

2015-02-25

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : Rajiv Sharma, J. Petitioner was engaged in the year 1994. He was retrenched in the year, 2003. He raised industrial dispute in the year 2009. The Labour Officer-cum-Conciliation Officer sent the failure report to the Labour Commissioner on 15.2.2011. The Labour Commissioner has declined to make the reference vide Annexure PC. Reference has been declined on the ground that the industrial dispute has faded away. 2. Petitioner belongs to a lower strata of the society. His precise case, as per demand notice, was that the principle of “last come first go” has not been followed. Sh. Sushil Kumar, similarly situate, had challenged his termination before the Civil Judge, Palampur vide Civil Suit No.172/2008. It was decided in his favour by the Civil Judge, Palampur on 1.12.2009. The appeal preferred against the judgment and decree dated 1.12.2009 passed by the Civil Judge, Palampur has been dismissed by the learned Additional District Judge (II), Kangra at Dharamshala on 28.2.2013. The Department has re-engaged Sushil Kumar with effect from 30.8.2013. This fact should have been taken into consideration by the Labour Commissioner. Thus, it cannot be held that there was inordinate delay in raising the industrial dispute. 4. It is settled law that the delay can also be taken into consideration at the time of granting relief to the workman. The Labour Commissioner only discharges the administrative functions and not judicial or quasi-judicial functions while deciding the issue whether the matter should be referred to the Labour Court-cum-Industrial Tribunal or not. 5. Their Lordships of the Hon’ble Supreme Court in Sarva Shramik Sangh versus Indian Oil Corporation Limited and others, (2009) 11 SCC 609 have culled out the following principles (para-37):- “Thus it can safely be concluded that a writ of mandamus would be issued to the appropriate government to reconsider the refusal to make a reference, where (i) the refusal is on irrelevant, irrational or extraneous grounds; (ii) the refusal is a result of the appropriate government examining the merits of the dispute and prejudging/adjudicating/determine the dispute; (iii) the refusal is mala fide or dishonest or actuated by malice; (iv) the refusal ignores the material available in the failure report of the Conciliation Officer or is not supported by any reason.” 6. Accordingly, the writ petition is allowed. Annexure PC is quashed and set aside. Accordingly, the writ petition is allowed. Annexure PC is quashed and set aside. The Labour Commissioner is directed to make reference to the Labour Court-cum- Industrial Tribunal within a period of four weeks from today and the Labour Court-cum-Industrial Tribunal shall decide the same within a period of six months after the receipt of reference. Pending application(s), if any, also stands disposed of. No costs.