# Administrative Committee v. Labour

- **Citation:** (2008) 2 ILRA 416
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-03-18
- **Case number:** Civil Misc. Writ Petition No. 36355 of 2007
- **Bench:** D.P. Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/administrative-committee-v-labour-41223
- **Pages:** 4

## Headnote

U.P. Industrial Dispute Act 1947-Section
4 K-Dismissal of Secretary of primary
cooperative
Societies-appeal
also
dismissed-state government referred the
dispute-held-cooperative society itself a
complete code-society is not within the
meaning of industry-reference as well as
the award held-without jurisdiction.

Held: Para 11

Thus, from the above, it is apparent that
there is no conflict between the two
decisions and in fact the ratio of
Ghaziabad
Zila
Sahakari
Bank
Ltd
(supra) and RC. Tiwari's case (supra) is
fully applicable to the facts of the
present case. A learned Single Judge of
this Court in the case of U.P. Cooperative
Spinning
Mills
(supra)
considering the ratio of Ghaziabad Zila
Sahakari Bank (supra) and Himanshu
Kumar's case (AIR 1973 SC 3657) has
went
on
to
hold
that
the
State
Government had committed a manifest
error in referring a dispute under Section
4-K of the U.P. Industrial Disputes Act in
the case of an employee of a cooperative
society. This view has also been followed
by another learned Single Judge of this
Court
in
the
case
of
District
Administrative Committee vs. Labour
Court, Kanpur (Writ Petition no. 45448
of 1993 decided on 7.12.2007).
Case law discussed:
(2007 (Vol II) ADJ 25 SC), (2007 (Vol. X) ADJ
4), (AIR 1978 SC 548), (1986 SC 806), (AIR
1985 SC 1293), (1997 SCC (L&S) page 1128,
(2003 (99) FLR 1175)

## Text

416 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
12. In view of the above, the law
stands
crystallized
that
where
an
employee is transferred on his request to
another unit or department and losses his
seniority as per the rules applicable
therein, he cannot be deprived of other
benefits except seniority. Thus in a case
where the promotion is based on a
particular length of service or experience
and not based on seniority alone,
employee is entitled to take benefit of his
past services.

13. In the instant case, admittedly,
the
petitioner
sought
his
transfer
voluntarily with a clear understanding that
he would join in Bijnore Division at zero
seniority and he never challenged the said
transfer order or loss of past seniority.
Promotion to the higher post is to be made
only on the basis of seniority subject to
being unfit and not on the basis of length
of service and experience. No fault can be
found with the impugned judgment and
order of the learned Tribunal.

Petition is devoid of merit and is
accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.03.2008

BEFORE
THE HON'BLE D.P. SINGH, J.

Civil Misc. Writ Petition No. 36355 of 2007
Connected with
Civil Misc. Writ Petition No. 12015 of 2008

District Administrative Committee and
another

...Petitioners
Versus
Presiding Officer, Labour Court, Bareilly
and another

...Respondents

Counsel for the Petitioners:
Sri Sujeet Kumar Rai

Counsel for the Respondents:
Sri A.R. Dube
S.C.

U.P. Industrial Dispute Act 1947-Section
4 K-Dismissal of Secretary of primary
cooperative
Societies-appeal
also
dismissed-state government referred the
dispute-held-cooperative society itself a
complete code-society is not within the
meaning of industry-reference as well as
the award held-without jurisdiction.

Held: Para 11

Thus, from the above, it is apparent that
there is no conflict between the two
decisions and in fact the ratio of
Ghaziabad
Zila
Sahakari
Bank
Ltd
(supra) and RC. Tiwari's case (supra) is
fully applicable to the facts of the
present case. A learned Single Judge of
this Court in the case of U.P. Cooperative
Spinning
Mills
(supra)
considering the ratio of Ghaziabad Zila
Sahakari Bank (supra) and Himanshu
Kumar's case (AIR 1973 SC 3657) has
went
on
to
hold
that
the
State
Government had committed a manifest
error in referring a dispute under Section
4-K of the U.P. Industrial Disputes Act in
the case of an employee of a cooperative
society. This view has also been followed
by another learned Single Judge of this
Court
in
the
case
of
District
Administrative Committee vs. Labour
Court, Kanpur (Writ Petition no. 45448
of 1993 decided on 7.12.2007).
Case law discussed:
(2007 (Vol II) ADJ 25 SC), (2007 (Vol. X) ADJ
4), (AIR 1978 SC 548), (1986 SC 806), (AIR
1985 SC 1293), (1997 SCC (L&S) page 1128,
(2003 (99) FLR 1175)

(Delivered by Hon'ble D.P. Singh. J.)

1. Heard Sri S.K. Rai, learned
counsel
for
the
petitioner,
learned
2 All] District Administrative Committee and another V. Presiding Officer and another
417
Standing Counsel for the respondent no.1
and Sri A.R. Dube, learned counsel
appearing for the respondent workman.

2. The leading petition no. 36355 of
2007 is against an award dated 29.3.2007
rendered by the labour court and the
connected petition is against an order
dated 24.1.2008 passed for execution of
the aforesaid award. With the consent of
the parties, both the petitions are being
disposed of and the- necessary facts of the
leading petition are being considered.

3. The respondent workman was
appointed a Cadre Secretary and the Chief
Executive of the Co-operative Society in
1976. He was placed under suspension on
11.3.1992 whereafter a charge sheet
levelling several charges, including for
financial misdemeanour was served on
him on 23.3.1993 and after holding a
domestic
enquiry,
the
District
Administrative
Committee,
after
examining the record, the report of the
enquiry officer etc., passed a resolution on
23.4.1994 for his dismissal whereafter by
order dated 31.5.1994 he was dismissed.

4. The respondent preferred a
statutory appeal before the Regional
Administrative Committee which was
dismissed vide order dated 28.3.1998. He,
thereafter, caused an industrial dispute to
be referred to the labour court under
Section 4-K of the U.P. Industrial
Disputes Act, 1947 (here- in-after referred
to as "the Disputes Act"), as to whether
his termination dated 31.5.1994 was
justified. The Labour Court, Bareilly
registered the dispute as Adjudication
Case no. 19 of 1999 and after the parties
had entered their defence, had accepted
the reference holding that the dismissal
was not justified and reinstated him with
continuity of service but with 20% back
wages vide its award dated 29th March
2007 and published on 4.7.2007 which is
impugned in this petition.

5. The learned counsel for the
petitioner has urged that the U.P. Cooperative Societies Act, 1965 (here-inafter referred to as "the Societies Act") is
special enactment and a complete Code
under which the dispute even with regard
to the termination of an employee can be
decided and in fact has been decided and
the statutory appeal has been· rejected and
therefore the entire proceedings under the
Disputes Act stood vitiated and therefore
the award has to be quashed. In support of
his contention he has relied upon a
decision rendered by the Apex Court in
the case of Ghaziabad Zila Sahakari
Bank
Ltd.
vs.
Addl.
Labour
Commissioner & others (2007 (Vol II)
ADJ 25 SC), which has also been
followed by learned Single Judges of this
Court in several cases including in the
case of U.P. Co-operative Spinning
Mills vs. Ram Magan & Another (2007
(Vol. X) ADJ 4).

6. Learned counsel for the workman,
however, has contended that the judgment
in Ghaziabad Zila Sahakari Bank Ltd.
(Supra) was rendered by the two learned
Judges of the Apex Court without
considering the effect of a Constitution
Bench judgment rendered in Bangalore
Water Supply and Sewerage Board vs.
A. Rajappa & others (AIR 1978 SC 548)
and therefore the judgment has to be
ignored and this court has to follow the
decision rendered by the Constitution
Bench.

7. No doubt if there are conflicting
decisions of the Apex Court, then the
418 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
High Court is obliged to follow the ratio
laid down by the Larger Bench as held in
Union of India vs. Godfrey Philips
(1986 SC 806) and State of Orissa vs.
Titagarh Paper Mills (AIR 1985 SC
1293). However, the Court firstly has to
examine the ratio laid down by the Apex
Court in the two respective cases and find
out the point of conflict between the two
ratios, if any.

8. In Ghaziabad Zila Sahakari Bank
case (supra) the workman had approached
the Labour Court for payment of ex-gratia
under Section 6H of the Disputes Act and
the Labour Court had accepted the claim
which was upheld by this court. It was
urged on behalf of the Bank before the
Apex Court that under the Societies Act
read with the regulations, a full fledged
remedy had been provided to the
employees of the Co-operative Society to
agitate their grievances and it being a
special enactment, would prevail over the
U.P. Industrial Disputes Act and therefore
its provision would not apply. The Apex
Court, even taking notice of Section 135,
held that the Societies Act was a special
Act and therefore would override the
provisions of the Disputes Act. It also
relied upon its earlier decision rendered in
the case of R.C. Tewari vs. M.P. State
Cooperative Marketing Federation Ltd.
& another (1997 SCC (L&S) page 1128.

9. In Banglore Water Supply case
(supra) the Apex Court was considering
the definition of the word "industry" as
defined under the Disputes Act and it
considered its import and laid down
parameters which are to be considered to
find out whether a establishment is an
industry for the purposes of the Disputes
Act.

10. The issue before the Apex Court
in the Ghazibad Zila Sahakari Bank Ltd.'s
case (supra) was whether with regard to
the service conditions of the employees of
the bank, the Societies Act was special
Act or the Disputes Act would govern it.
In Ghaziabad Bank's case the Apex Court
proceeded on the basis that the bank is an
industry and it did not advert itself to the
issue settled in Banglore Water Supply's
case.

11. Thus, from the above, it is
apparent that there is no conflict between
the two decisions and in fact the ratio of
Ghaziabad Zila Sahakari Bank Ltd (supra)
and RC. Tiwari's case (supra) is fully
applicable to the facts of the present case.
A learned Single Judge of this Court in
the case of U.P. Co-operative Spinning
Mills (supra) considering the ratio of
Ghaziabad Zila Sahakari Bank (supra)
and Himanshu Kumar's case (AIR 1973
SC 3657) has went on to hold that the
State Government had committed a
manifest error in referring a dispute under
Section 4-K of the U.P. Industrial
Disputes Act in the case of an employee
of a cooperative society. This view has
also been followed by another learned
Single Judge of this Court in the case of
District Administrative Committee vs.
Labour Court, Kanpur (Writ Petition no.
45448 of 1993 decided on 7.12.2007).

12. There is yet another facet to the
issue. Admittedly the workman had
availed the statutory remedy of appeal
which has been decided against him. This
decision would act as res judicata and
therefore, the Labour Court could not
have proceeded with the reference. The
Apex Court in the case of Pondicherry
Khadi and Village Industries Board vs.
P. Kulothangan & another (2003 (99)
2 All] Smt. Shikha and another V. State of U.P. and others
419
FLR 1175) has held that where the issue
was substantially the same in earlier
proceedings and has been decided by the
competent authority, even though the
entire Civil Procedure Code is not
applicable to industrial adjudication, the
principles of Section 11 C.P.C. including
the principles of constructive res judicata
will apply.

13. Thus, in the opinion of the court,
the
reference
itself
was
beyond
jurisdiction
and
therefore
the
writ
petitions succeed and are allowed and the
award
dated
29.03.2007
is
hereby
quashed. The consequential order in the
connected petition is also quashed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.03.2008

BEFORE
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No. 40611 of 2006

Smt. Shikha and another ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri V.B. Khare
Sri A.K. Shukla

Counsel for the Respondents:
S.C.

U.P. Direct Recruitment to Group D Post
(Inclusion of member nominated by
District
Magistrate
in
Selection
Committee)
Rules
2006
readwith
Constitution
of
India
306-U.P.
Intermediate
Education
Act
1921Chapter
III
Regulation
100-107appointment of Class 4th employee-in
Intermediate
College-run
by
Management-D.I.O.S.
disapproved
on
the ground in selection committee not
properly constituted-as nominee of D.M.
not participated-held-wholly erroneousmisconceived can not sustain.

Held: Para 9

In view of these facts and circumstances
of the case, impugned order passed by
District Inspector of Schools recalling
earlier permission-granted by D.I.O.S.
dated
4.5.2006,
in
my
considered
opinion,
is
wholly
erroneous,
misconceived and cannot be sustained,
therefore, the same is hereby quashed.

(Delivered by Hon'ble Sabhajeet Yadav, J.)

1. A short question arises for
consideration before this court is that as to
whether U.P. Direct Recruitment to
Group 'D" Posts (inclusion of a Member
Nominated by District Magistrate in
Selection
Committee)
Rules
2006
promulgated by Governor of State of U.P.
under the proviso to Article 309 of the
Constitution of India shall apply in
selection of Group 'D' posts of Higher
Secondary Schools and Intermediate
Colleges
recognized
under
U.P.
Intermediate Education Act 1921 run and
managed by the private managements?
.
2. The brief facts leading to the case
are that two posts of Class-IV employees
were fell vacant in the institution, one
post on account of retirement of Smt.
Chando Devi on 30.6.2005 and another on
account of retirement of Smt. Raj Kumari
on 31.3.2006. On 29.3.2006 the Principal
of the institution sought permission from
the
District
Inspector
of
Schools,
Allahabad
for
filling
the
aforesaid
vacancies. In pursuance thereof, the
District
Inspector
of
Schools-II,
Allahabad granted permission to the
Principal of the institution to fill up the