# 478 INDIAN LAW REPORTS ALLAHABAD SERIES State of U.P. & Anr v. Rajesh Kumar Awasthi & Anr

- **Citation:** (2020) 2 ILRA 477
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-13
- **Case number:** Writ C No. 39723 of 2017
- **Bench:** Manoj Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/478-indian-law-reports-allahabad-series-state-of-u-p-anr-v-rajesh-kumar-awasthi-45600
- **Pages:** 6

## Headnote

A. Civil Law-U.P. Industrial Dispute Act,
1947 - Section 4-K and 6-N - Labour
Dispute - Reference regarding termination -
Delay - Principle of moulding relief - Reference
made after about 20 years from termination
was a stale one and made at a point of time
when practically no dispute fit for adjudication
could be said to be in existence - The
inordinate delay and latches, in the instant
case, had rendered the claim 'dead' - It was
not a case where the claim remained alive but
was raised with delay - The principle of
moulding
relief,
where
the
Tribunal
is
approached with delay, but in respect a 'live
claim' would not apply to the facts of the
instant case - The reference held invalid. (Para
12 and 14)
Held -

## Text

2 All. Puneet Kumar Singh Vs. BPCL, Distt. Chandauli & Anr.
477

71. In view of the above we are of
the view that the lease deed if it has come
to be rejected by the Corporation for not
creating sufficient right in favour of the
petitioner so as to accept offer of land, a
subject matter of the lease agreement for
the purpose of allotment of retail outlet
dealership, nothing wrong has been
committed and therefore the question-A
stands answered in negative against the
petitioner.

72. So far as the other question
regarding
the
discretion
of
the
Corporation, we are of the view that the
Corporation is in the best position to
decide which land suits to its business
prospects and the discretion exercised in
that regard has to be seen only from the
view that the corporation would be
interested in providing its investment only
in
safe
and
secured
land.
If
the
Corporation has found that the document
pertaining to the land are not absolutely
clean in the sense that there exists chances
of litigation in future qua the land in which
investment is to be made, the Corporation
is in best position to understand to take
decision as to whether the investment
should be made or not over such land. So
the suitability of the land lies within the
domain
and
the
discretion
of
the
Corporation.

73. The Indian Oil Corporation being
a public sector corporation and huge
public money being involved in the matter
any investment of the public money in a
property that may turn out to be disputed
in future would be against the public
policy also and, therefore, we are of the
opinion that for the purpose of suitability
of land the discretion exercised by the
Corporation in the normal circumstances
be not interfered with unless it is found to
be an act absolutely arbitrary hit by Article
14 of the Constitution or for mala fides in
exercise
of
the
discretion
by
the
Corporation.

74. An exercise of evaluation and
decision making is subject to judicial
review in the event an action is vitiated for
bias, mala fides and in violation of
principles
of
natural
justice.
Even
evaluation of credentials if vitiated for
utter ignorance of laws or by whimsical
action, would invite interference but where
a
document
becomes
a
matter
of
contentious
issue
and
involves
complicated question of facts qua title and
needed adjudication by a civil court for its
valid declaration as involving valuable
rights of parties, Corporation, a third party
would be justified in keeping its hand off.
Case in hand has the element to invite long
drawn civil litigation in future and so if
corporation decides to term such land as
not suitable, we do not find any fault with
the Corporation.

75. From the discussions that we
have made above, we do not find that the
discretion exercised by the Corporation
is in any manner arbitrary or capricious
one so as to warrant interference by this
Court
under
Article
226
of
the
Constitution.
Consequently
the
writ
petition fails and is dismissed with no
order as to cost.
----------
(2020)02ILR A477

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.01.2020

BEFORE
THE HON'BLE MANOJ KUMAR GUPTA, J.

Writ C No. 39723 of 2017
478 INDIAN LAW REPORTS ALLAHABAD SERIES
State of U.P. & Anr. ...Petitioners
Versus
Rajesh Kumar Awasthi & Anr.
 ...Respondents

Counsel for the Petitioners:
Sri Sanjay Kumar Singh, S.C., Sri Shri
Prakash Singh (S.C.)

Counsel for the Respondents:
C.S.C., Sri Kamal Nayan Shukla

A. Civil Law-U.P. Industrial Dispute Act,
1947 - Section 4-K and 6-N - Labour
Dispute - Reference regarding termination -
Delay - Principle of moulding relief - Reference
made after about 20 years from termination
was a stale one and made at a point of time
when practically no dispute fit for adjudication
could be said to be in existence - The
inordinate delay and latches, in the instant
case, had rendered the claim 'dead' - It was
not a case where the claim remained alive but
was raised with delay - The principle of
moulding
relief,
where
the
Tribunal
is
approached with delay, but in respect a 'live
claim' would not apply to the facts of the
instant case - The reference held invalid. (Para
12 and 14)
Held -

15. Moreover, in the impugned award, there is
no clear cut finding that respondent No. 1 had
worked for 240 days in twelve calendar months
preceding the termination of his service. The
Tribunal had merely observed that there is
evidence to show that respondent No.1 had
worked as daily wager continuously between
November 1985 to 31.5.1990. The Tribunal
thereafter referred to Section 6-N and then
jumped to the conclusion that there is violation
of the said provision. On this ground also the
impugned award cannot be sustained in law.

Writ Petition allowed. (E-1)
List of cases cited :-
1. Chief Engineer, Ranjit Sagar Dam and others
vs. Sham Lal, AIR 2006 SC 2682
2. Prabhakar vs. Joint Director Sericulture
Department and another, AIR 2016 SC 2984

3. State of U.P. vs. Presiding Officer Labour
Court and another (Writ-C No.50174 of 2016)
decided on 14.11.2019

4.
Nedungadi
Bank
Ltd.
vs.
K.P.
Madhavankutty,(2006) I LLJ 561 SC

5. Ratan Chandra Sammanta and others vs.
Union of India and others, 1993 (II) LLJ 676 SC

(Delivered by Hon'ble Manoj Kumar
Gupta, J.)

1. Case called out in revised list.
Learned Standing Counsel Sri Shree
Prakash Singh is present on behalf of the
petitioners. No one is present on behalf of
the respondents.

2. The petitioners have challenged
the award dated 21.9.2016 passed by
Industrial Tribunal (respondent No.2) in
Adjudication Case No.7 of 2011 in a
reference made under Section 4-K of the
U.P.
Industrial
Disputes
Act,
1947
(hereinafter referred to as 'the Act'). The
Reference was to the following effect :-

Whether
the
termination
of
service of Rajesh Kumar Awasthi son of
Virendra Kumar Awasthi on 1.6.1990 by
the employer was proper and valid. If not,
to what relief the workman is entitled to
and with what description?

3. The case of respondent No.1 was
that he was appointed on the post of
Assistant Pairokar in the department on
1.11.1985. He continuously worked since
then. Abruptly, his service was terminated
on 1.6.1990 without complying with the
requirements of Section 6-N of the Act.
The
petitioners
filed
their
written
statement and categorically pleaded that
2 All. State of U.P. & Anr. Vs. Rajesh Kumar Awasthi & Anr.
479
 there was no post of Assistant Pairokar in
the department. Respondent No.1 was
engaged as daily wager for doing pairvi of
court cases. On direction of the then
Director, the department stopped taking
work from him since 1.6.1990. As he was
engaged as daily wager having regard to
exigency of work, therefore there is
neither
termination
of
service
of
respondent No.1 nor any question of non
compliance of Section 6-N of the Act. The
reference made to the Tribunal is bad in
law and liable to be dismissed.

4. The record reveals that respondent
No.1 had filed two writ petitions before
this Court. The first writ petition bearing
No.17783 of 1990 was filed by petitioner
challenging the order dated 1.6.1990, by
which the respondents stopped taking
work from the petitioner. The writ petition
was dismissed by order dated 21.4.1992 on
the ground that the petitioner was only a
daily wager. However the representation
made by him dated 25.6.1990 was directed
to be disposed of within a month. It seems
that in compliance of the said direction,
the representation of the petitioner was
decided by the department on 26.4.1993
and the same was rejected. The request
made for re-employment was turned down.
The petitioner again approached this Court
by way of Writ Petition No.16680 of 1988.
It was dismissed on 14.2.2006 on the
ground that it was a second writ petition
for
the
same
relief
and
thus
not
maintainable. The petitioner moved an
application on 29.9.2009 seeking reference
of dispute under the Act. The dispute
raised by the petitioner was referred for
adjudication
to
the
Tribunal
on
24.12.2010.

5. The Tribunal after considering
respective case of the parties accepted the
case of the petitioners that there was no
post
of
Assistant
Pairokar
in
the
department
and
that
engagement
of
respondent No.1 was only as a daily
wager. It was further held that though
respondent No.1 worked as a daily wager,
but he was paid salary on monthly basis.
He worked continuously from 1985 to
31.5.1990. However, without examining
whether respondent No.1 had actually
worked for 240 days in twelve calender
month preceding termination of service, it
was held that there was violation of
Section 6-N of the Act. Thereafter, the
Tribunal proceeded to consider the issue as
to the relief to which respondent No.1 was
entitled to. The Tribunal held that the
dispute was raised in the year 2010,
although service was terminated on
1.6.1990. After such long interval, it
would not be proper to direct his
reinstatement
or
grant
back
wages.
Instead,
it
awarded
a
lumpsum
compensation of Rs.1,50,000/-.

6. Learned counsel for the petitioners
submitted that since the service of
respondent No.1 was allegedly terminated
on 1.6.1990 and the reference was sought
in the year 2009, it was apparently a stale
claim and ought not to have been
entertained. In support of his case, he has
placed reliance on judgements of the
Supreme Court in Chief Engineer, Ranjit
Sagar Dam and others vs. Sham Lal,
AIR 2006 SC 2682, and Prabhakar vs.
Joint Director Sericulture Department
and another, AIR 2016 SC 2984 and
judgement of this Court in State of U.P.
vs. Presiding Officer Labour Court and
another (Writ-C No.50174 of 2016)
decided
on
14.11.2019.
He
further
submitted that there is no clear cut finding
that
respondent
No.1
had
worked
continuously for more than 240 days in
480 INDIAN LAW REPORTS ALLAHABAD SERIES
twelve calender months preceding his
termination from service. Consequently,
the findings rendered by the Tribunal that
there is violation of Section 6-N of the Act
is not sustainable in law.

7. It is not in dispute that alleged
termination of service was on 1.6.1990.
The application seeking reference was
filed on 29.9.2009. The reference order is
dated 24.12.2010. Undoubtedly, there was
delay of 19 years in seeking reference and
20 years if the period is reckoned from the
date reference was made. During this
period, respondent No.1 had filed two writ
petitions before this Court as narrated
above, but both of which were dismissed.
The first writ petition was dismissed on
21.4.1992 followed by order of the
department dated 26.9.1993 rejecting the
representation of respondent No.1. The
petitioner filed second writ petition in the
year 1998 i.e., after more than five years.
The said writ petition was also dismissed
being for the same relief. Respondent No.1
again kept quite for three years and once
again re-agitated the issue in the year 2009
followed by reference in the year 2010.
Evidently, there was inordinate delay on
part of respondent no.1 in seeking the
reference.

8. In Chief Engineer, Ranjit Sagar
Dam (supra), the Supreme Court placed
reliance on Para 6 of its earlier judgement
in Nedungadi Bank Ltd. vs. K.P.
Madhavankutty,(2006) I LLJ 561 SC
and others, which is as follows :-

""6. Law does not prescribe any
time-limit for the appropriate Government
to exercise its powers under Section 10 of
the Act. It is not that this power can be
exercised at any point of time and to revive
matters which had since been settled.
Power is to be exercised reasonably and in
a rational manner. There appears to us to
be no rational basis on which the Central
Government has exercised powers in this
case after a lapse of about seven years of
the order dismissing the respondent from
service. At the time reference was made no
industrial dispute existed or could be even
said to have been apprehended. A dispute
which is stale could not be the subjectmatter of reference under Section 10 of the
Act. As to when a dispute can be said to be
stale would depend on the facts and
circumstances of each case. When the
matter has become final, it appears to us
to be rather incongruous that the reference
be made under Section 10 of the Act in the
circumstances like the present one. In fact
it could be said that there was no dispute
pending at the time when the reference in
question was made. The only ground
advanced by the respondent was that two
other employees who were dismissed from
service were reinstated. Under what
circumstances they were dismissed and
subsequently
reinstated
is
nowhere
mentioned.
Demand
raised
by
the
respondent for raising an industrial
dispute
was
ex-facie
bad
and
incompetent."
(emphasis supplied)

9. In the said judgement, the
Supreme Court has also referred to
another judgement in Ratan Chandra
Sammanta and others vs. Union of
India and others, 1993 (II) LLJ 676
SC wherein it was held that a casual
labourer retrenched by the employer
deprives himself of remedy available in
law by delay itself.

10. In Prabhakar (supra), the
Supreme Court, after considering various
aspects resulting from delay in seeking
2 All. State of U.P. & Anr. Vs. Rajesh Kumar Awasthi & Anr.
481
reference, summarised the legal position
thus :-

"42. To summarise, although
there is no limitation prescribed under the
Act for making a reference under Section
10(1) of the Act, yet it is for the
'appropriate Government' to consider
whether it is expedient or not to make the
reference. The words 'at any time' used in
Section 10(1) do not admit of any
limitation in making an order of reference
and laws of limitation are not applicable
to proceedings under the Act. However,
the policy of industrial adjudication is that
very stale claims should not be generally
encouraged or allowed inasmuch as unless
there is satisfactory explanation for delay
as, apart from the obvious risk to
industrial peace from the entertainment of
claims after long lapse of time, it is
necessary also to take into account the
unsettling effect which it is likely to have
on the employer's financial arrangement
and to avoid dislocation of an industry."
(emphasis supplied)

11. The decision of this Court in
State of U.P. vs. Presiding Officer
(supra) cited by learned standing counsel
holds that in case the termination was
made in the year 1991 and reference in the
year 2014, it cannot be said to be in
respect of any live dispute.

12. Having regard to the legal
principles enunciated by the Supreme
Court in various decisions discussed
above, the inescapable conclusion is that
the reference made in the year 2010 with
regard
to
alleged
termination
of
respondent No.1 on 1.6.1990 was a stale
one and made at a point of time when
practically no dispute fit for adjudication
could be said to be in existence. The
consistent stand of the petitioners, since
they stopped taking work from the
respondent, had been that he could not be
reengaged as there is no post of Assistant
Pairokar nor his service was required
otherwise. It was not a case where at any
stage any assurance was extended to him
even for re-consideration of his case for
re-engagement. In such situation, even
filing of two writ petitions before this
Court, last of which stood dismissed on the
ground that it was a second petition for the
same cause of action, is not sufficient to
infer that the respondent had been
bonafidely pursuing the remedies. As
noted
above,
the
second
writ
was
dismissed in 2006 itself, but again the
respondent did not immediately sought
reference but again waited for three years
and filed the application in the year 2009.

13. It would be worthwhile to allude
to an example cited by Supreme Court in
Prabhakar (supra) to explain the concept
as to when delay would be fatal, rendering
the claim 'dead' and when not. To wit :-

"Take, for example, a case where
the workman issues notice after his
termination, questioning the termination
and demanding reinstatement. He is able
to show that there were discussions from
time to time and the parties were trying to
sort out the matter amicably. Or he is able
to show that there were assurances by the
Management to the effect that he would be
taken back in service and because of these
reasons, he did not immediately raise the
dispute
by
approaching
the
labour
authorities seeking reference or did not
invoke the remedy under Section 2A of the
Act. In such a scenario, it can be treated
that the dispute was live and existing as
the workman never abandoned his right.
However, in this very example, even if the
482 INDIAN LAW REPORTS ALLAHABAD SERIES
notice of demand was sent but it did not
evoke any positive response or there was
specific rejection by the Management of
this demand contained in the notice and
thereafter he sleeps over the matter for
number of years, it can be treated that he
accepted the factum of his termination and
rejection thereof by the management and
acquiesced into the said rejection."

14. The inordinate delay and latches,
in the instant case, had rendered the claim
'dead'. It was not a case where the claim
remained alive but was raised with delay.
Therefore, the principle of moulding relief,
where the Tribunal is approached with
delay, but in respect a 'live claim' would
not apply to the facts of the instant case.
The reference itself was invalid.

15. Moreover, in the impugned
award, there is no clear cut finding that
respondent No.1 had worked for 240
days
in
twelve
calendar
months
preceding the termination of his service.
The Tribunal had merely observed that
there is evidence to show that respondent
No.1 had worked as daily wager
continuously between November 1985 to
31.5.1990.
The
Tribunal
thereafter
referred to Section 6-N and then jumped
to the conclusion that there is violation
of the said provision. On this ground
also the impugned award cannot be
sustained in law.

16. In consequence and as a result
of
discussion
made
above,
the
impugned award dated 21.9.2016 is
quashed. The petition is allowed.
However, in case any payment has
already been made to respondent No.1
in pursuance of interim order of this
Court, it shall not be recovered.
----------
(2020)02ILR A482

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.12.2019

BEFORE

THE HON'BLE PANKAJ MITHAL, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ C No. 39738 of 2019

Ravindra Ahlawat ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Anoop Trivedi, Sri Abhinav Gaur,
Siddharth Baghel

Counsel for the Respondents:
C.S.C.

A. U.P. Sugarcane (Regulation of Supply
and
Purchase)
Act,
1953
and
U.P.
Sugarcane (Regulation of Supply and
Purchase) Rules, 1954-Rule 29-Petitioner-
Chairman
of
Cane Development
Councilgranted authorisation u/R 29 -to watch and
check the weightments at cane purchase
centres within concerned zone-authorisation
order withdrawn-Power under Rule 29-to grant
authorisation-discretionary-not an individual's
rights-no rights of Petitioner is infringed-W.P.
dismissed.

(Delivered by Hon'ble Yogendra Kumar
Srivastava, J.)

1. Heard Sri Anoop Trivedi, learned
Senior Counsel assisted by Sri Siddhartha
Baghel, learned counsel for the petitioner
and Sri Mata Prasad, learned Standing
Counsel
appearing
for
the
Staterespondents. Sri Ravindra Singh and Sri
Diptiman Singh, learned counsel for the
parties who claim to be necessary parties