Roop Kishore vs State of Himachal Pradesh and Others

Rajiv Sharma, J.—Petitioner was engaged in respondent No. 4-Company on 1.9.2006. He was retrenched on 26.9.2008. He raised demand notice on 23.10.2008. Petitioner was directed to join his duties vide order dated 23.12.2008. However, the fact of the matter is that the petitioner was not permitted to join his duties. He was ordered to appear before the Labour Officer-cum-Conciliation Officer on 16.1.2009. Since the matter could not be settled, the Labour Officer-cum-Conciliation Officer sent the failure report to respondent No. 2. Respondent No. 2 has refused to refer the matter to the Labour Officer-cum-Conciliation Officer vide order dated 31.3.2010. Respondent No. 2 instead of referring the matter to the Labour Officer-cum-Industrial Tribunal has himself decided the matter on merits. Whether the petitioner has been permitted to join the duties or not could only be adjudicated upon in the reference. The petitioner has placed sufficient material on record that though he was directed to join his duties but was not permitted to join the duties. Respondent No. 2 has also erred in law by concluding that the petitioner has remained absent from duties. The plea of abandonment is required to be proved like any other fact. This could only be proved in the reference. The Labour Commissioner only discharges the administrative functions and not judicial or quasi-judicial functions.

Their Lordships of the Hon''ble Supreme Court in Sarva Shramik Sangh Vs. Indian Oil Corporation Ltd. and Others, 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.

Accordingly, in view of the observations and discussions made hereinabove, the writ petition is allowed. Annexure P-12 dated 31.3.2010 is quashed and set aside. Respondent No. 2 is directed to refer the matter to the Labour Court-cum-Industrial Tribunal within a period of six weeks from today. Pending application(s), if any, also stands disposed of. No costs.