# Anand Kumar Singh v. U.P.S.R.T.C. and others - **Citation:** (2007) 3 ILRA 891 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2007-09-11 - **Case number:** Civil Misc. Writ Petition No. 43286 of 2007 - **Bench:** Rakesh Tiwari - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anand-kumar-singh-v-u-p-s-r-t-c-and-others-41140 - **Pages:** 3 ## Headnote Constitution of India Act 226-Alternative remedy-petitioner a skilled mechanic having I.T.I. certificate-denied the promotion-but promoted unskilled person-disputed of facts-requires adjudication by summoning the record as well as the witnesses-not feasible for writ court to examine the witness and record oral and documentary evidencedismissed on alternative remedy. Held: Para 12 In my opinion, the question whether the petitioner was unfit or not for promotion and whether respondent nos. 4,5 and 6 were qualified for being promoted or not, are disputed questions of fact which require adjudication on the basis of oral and documentary evidence by the Labour Court as it is not feasible for this Court to record oral and documentary evidence under Article 226 of the Constitution and give findings of facts thereafter. ## Text 3 All] Anand Kumar Singh V. U.P.S.R.T.C. and others 891 other overt act on the part of the grandfather to show his concern with the welfare of the minor. 7. While judging the welfare of the minor the court below was very much influenced by the fact that the sole respondent has larger agricultural holding than that of the appellant No 2. This fact itself is not such a weighty circumstance which may entitle the respondent to have the custody of the minor. 8. At this juncture it was rightly pointed out by the appellant's counsel that not a single shell was ever shed by the respondent towards the maintenance of the minor. The facts as they stood today there is no justification to grant the relief claimed by the respondent to have the custody of minor Ashu. The welfare of minor is with the appellant no. 2 presently wherein he is happily passing off his childhood and getting proper education, fooding and-lodging with no complaint. 9. Viewed as above, the judgment and order of the court below cannot be sustained and the court below was not right in reaching to the conclusion that the welfare of the minor is with the respondent. 10. In the result, the appeal succeeds and is allowed. The order under appeal is set aside and the application filed by the respondent in Misc. Case No.49 of 2000 stands rejected. No order as to cost. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 11.09.2007 BEFORE THE HON'BLE RAKESH TIWARI, J. Civil Misc. Writ Petition No. 43286 of 2007 Anand Kumar Singh ...Petitioner Versus State of U.P. and others ...Respondents Counsel for the Petitioner: Miss. Anuradha Sundaram Miss. Rashmi Tripathi Counsel for the Respondents: Sri Vivek Saran Constitution of India Act 226-Alternative remedy-petitioner a skilled mechanic having I.T.I. certificate-denied the promotion-but promoted unskilled person-disputed of facts-requires adjudication by summoning the record as well as the witnesses-not feasible for writ court to examine the witness and record oral and documentary evidencedismissed on alternative remedy. Held: Para 12 In my opinion, the question whether the petitioner was unfit or not for promotion and whether respondent nos. 4,5 and 6 were qualified for being promoted or not, are disputed questions of fact which require adjudication on the basis of oral and documentary evidence by the Labour Court as it is not feasible for this Court to record oral and documentary evidence under Article 226 of the Constitution and give findings of facts thereafter. (Delivered by Hon'ble Rakesh Tiwari, J.) 1. Heard learned counsel for the petitioner, the Standing counsel for the respondents and perused the record. 892 INDIAN LAW REPORTS ALLAHABAD SERIES [2007 2. The petitioner possesses I.T.I. diploma in Mechanical Diesel from State Institute of Training Board, Madhya Pradesh in 1986. He was appointed as cleaner in the UPSRTC in 1989 and was thereafter promoted to the post of Fitter in 1994 and since then he is continuously working on the said post at Regional Work-shop, Jhunsi. 3. It is alleged that a Trade test and Interview was held by the respondents Corporation for promotion on the various posts. The petitioner also appeared in the Trade test and interview held in the months of July/August, 2007. 4. After the result was declared by the order dated 4.8.2007 respondent nos.4,5 and 6 were declared successful whereas the petitioner was not declared successful. Aggrieved the petitioner has come up in this writ petition. 5. The counsel for the petitioner submits that the respondents authorities have adopted pick and choose policy in promoting the concerned employees of their choice as respondent nos. 4,5 and 6 have been declared successful even though they are not I.T.I. qualified in any trade of automobile. 6. It is urged that the petitioner has been wrongly declared unsuccessful though he is a skilled mechanic of automobile having qualification of I.T.I. Mechanic Diesel whereas respondent nos. 4,5 and 6 who have been declared successful and promoted are unskilled Body Mechanic and they are not having any Technical Training Certificate; that as per Service Regulation 1981 of the Uttar Pradesh Road Transport Corporation Employees (Other than Officers) promotion is to be made on the basis of rejection of Rule of unfit. 7. Sri Vivek Saran, counsel for the respondents submits that the petitioner has been awarded punishment vide order dated 13th March 2007 and that appeal preferred by him against the aforesaid order was rejected vide order dated 18th July, 2007 by the Appellate authority, hence the petitioner was not promoted having been found unfit for being promoted to next higher post. 8. Sri Vivek Saran, counsel for the respondents further submits that the petitioner has an efficacious and alternative remedy under the U.P. Industrial Dispute Act, 1947 in view of Chandrama Singh Vs. Managing Director, U.P. Co-operative Union Lucknow and others, (1991) UPLBEC (2)-898. In rebuttal the counsel for the petitioner submit that in a similar matter i.e. Civil Misc. Writ Petition No. 9585 of 2006 Mangal Singh versus managing Director UPRSTC, Lucknow and others which was dismissed by this court vide order dated 16.2.2006 on the ground of availability of alternative remedy before the Labour Court. The aforesaid order dated 16.2.2006 was challenged in special Appeal no. 293 of 2006 before the Division Bench. The order dated 16.2.2006 was set aside vide order dated 30.3.2006 and the matter was remanded for a fresh consideration on merits. The order dated 30.3.2006 is as under:- "None for the respondents. The impugned order dated 16.2.2006 passed by Hon'ble Single Judge is set aside. 3 All] Mohd. Yusuf and others V. State of U.P. and another 893 Since the writ petitioner was not approaching the Court in regard to deemed industrial Dispute under Section 2-A of the U.P. Industrial Dispute Act, 1947, sending him before the Labour Authorities was not an adequate alternative remedy. The complaint of the writ petitioner was against withholding of promotion. As such, the matter is remanded for a consideration on merits." 9. It appears that the Division Bench was mislead by the fact that the matter falls under Section 2-A of the U.P. Industrial Disputes Act, 1947 which pertains to which pertains to dismissal etc. of an individual workman to be deemed to be an Industrial dispute. Section 2-A of the Act is as under:- . "2-A Dismissal etc, of an individual workman to be deemed to be an industrial dispute- Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman any dispute or difference between that workman and his employer connected with or arising out of such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial notwithstanding that no other workman nor any union of workman is a party to the dispute." 10. The matter in that case was not of dismissal from service falling under Section 2-A of the Act but was a case of promotion. That matter could be referred under Section 4-K of the Act. 11. It is clear from perusal of item 6 of the First Schedule and item no.7 of the Second Schedule appended to the U.P. Industrial Disputes Act, 1947 that U.P. Industrial Disputes Act, 1947 not only govern the dispute relating to dismissal, discharge or termination but also covers adjudication of dispute mentioned therein including promotion, classification of grade or promotion or payment of higher pay. 12. In my opinion, the question whether the petitioner was unfit or not for promotion and whether respondent nos. 4,5 and 6 were qualified for being promoted or not, are disputed questions of fact which require adjudication on the basis of oral and documentary evidence by the Labour Court as it is not feasible for this Court to record oral and documentary evidence under Article 226 of the Constitution and give findings of facts thereafter. 13. For the reasons stated above, the writ petition dismissed on the ground of availability of alternative remedy. No order as to cost. --------- REVISIONAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 07.08.2007 BEFORE THE HON'BLE (MRS.) SAROJ BALA, J. Criminal Revision No. 1105 of 2001 Mohammed Yusuf & others ...Applicants Versus State of U.P. & another ..Opposite Parties Counsel for the Applicants: Sri Akhtar Husain Sri Rizwan Ali Akhtar Counsel for the Opposite Parties: Sri V.M. Zaidi Sri A.M. Zaidi A.G.A.