# Anil Kumar Pandey & Ors v. State Of U.P. & Ors

- **Citation:** (2016) 5 ILRA 792
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-12
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-kumar-pandey-ors-v-state-of-u-p-ors-43940
- **Pages:** 21

## Headnote

whether a writ petition under Article 226 of the Constitution of India would be maintainable against a Cooperative Cane Development Society at the instance of its employee for alleged breach of U.P. Cane Co-
5 All. Anil Kumar Pandey & Ors. Vs State Of U.P. & Ors.

793
operative Service Regulations 1975; Larger Bench of three Hon'ble Judges presided over by the Chief Justice
held that the judgments in Shrinarayan Gupta and Ram Karan vs. State of U.P. (Writ Petition No. 27306 of
2014) do not lay down correct law and must be read consistent with the five-Judge bench judgment in Vijay
Bihari Srivastava vs. U.P. Postal Primary Co-operative Bank Ltd., 2003 (1) UPLBEC 1; Regulations of 1975
framed in exercise of power conferred by Section 122 of U.P. Co-operative Societies Act 1965 are statutory in
nature and not merely administrative instructions; question of maintainability to be resolved having due
regard to tests laid down in Vijay Bihari Srivastava's case; even if petition is maintainable, Court may, in the
facts of a particular case, decline to entertain it under Article 226 where disputed questions of fact arise or an
efficacious alternate remedy is available. (Paras 2-3)
Automatic Re-employment of Seasonal Employees - "Crushing Season" Means 1st October to
15th July - Denial of Automatic Re-employment from 1st October Held Illegal - Petitioners
(seasonal clerks and parchi distributors of Cane-growers' Co-operative Society) claimed automatic reemployment from 1st October 2015 under Regulation 26 of U.P. Cane Co-operative Service Regulations 1975;
"crushing season" as defined in Section 2(i) of U.P. Sugarcane (Regulation of Supply and Purchase) Act 1953
to mean the period from 1st October to 15th July next stands incorporated in Regulation 2(n) of Regulations
1975; amendment of Regulation 2(n) redefining "crushing season" as the period of actual crushing operations
in sugar factories, made vide notifications dated 17.5.1993 and 14.7.1993, was set aside by the Supreme
Court in JT 2008(5) SC 439 holding that change in service conditions required prior notice under Section 4-I of
U.P. Industrial Disputes Act 1947; subsequent amendment by order dated 13.4.2010 also quashed by Division
Bench in Special Appeal No. 943 of 2010; respondents had further given undertaking before the Apex Court
on 27.9.2013 that future employment of workmen shall be governed by Regulations 21 and 26; respondents
cannot resort to the definition already set aside; Held, "crushing season" for the purpose of Regulation 26
means 1st October to 15th July and automatic re-employment must commence from 1st October; action of
respondents in not calling petitioners at the start of crushing season i.e. 1st Octo

## Text

_Characters 0–39,906 of 65,249. This is a partial read: ask again with offset=39906 for what follows._

792 INDIAN LAW REPORTS ALLAHABAD SERIES
(Misc. Bench No. 1909 of 2014) decided on 07.03.2014, Major Travels through Proprietor Vs.
State of U.P. and others (Misc. Bench No. 3472 of 2014) decided on 25.04.2014 and
Uttaranchal Paper Converters and Publishers through Proprietor Vs. State of U.P. and
others (Misc. Bench No. 3898 of 2015) decided on 13.05.2014.

12. In view thereof, we are clearly of the view that mandamus sought by petitioner is
nothing but grant of a money decree in extraordinary equitable jurisdiction under Article 226 which
ought not to have been granted.

13. It may also be noted at this stage that on behalf of respondents 1, 2 and 3 a counter
affidavit has been filed wherein claim of petitioner has been seriously disputed and it has been
pleaded that petitioner violated agreement conditions and enhanced rate was not approved by
competent authority. The alleged work performed by petitioner has also not been approved by
competent authority and, therefore, payment has been held up. Thus it is a clear case where even
the right of petitioner for payment has been seriously disputed disputing seriously various
assertions made by petitioner and the same need not be examined in writ jurisdiction under Article
226 even otherwise.

14. The writ petition is wholly devoid of merits. Dismissed with cost of Rs. 25,000/-.

15. Interim order, if any, stands vacated.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.05.2016

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ A No.- 60557 Of 2015

Anil Kumar Pandey & Ors. ...Petitioners
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sanjai Kumar Pandey, Shrawan Kumar Tripathi

Counsel for the Respondents:
C.S.C., Ravindra Singh
.................................
Writ Petition Against Cane-growers' Co-operative Society Maintainable - U.P. Cane Co-operative
Service Regulations 1975 are Statutory in Nature - Reference made by Single Judge on the question
whether a writ petition under Article 226 of the Constitution of India would be maintainable against a Cooperative Cane Development Society at the instance of its employee for alleged breach of U.P. Cane Co-
5 All. Anil Kumar Pandey & Ors. Vs State Of U.P. & Ors.

793
operative Service Regulations 1975; Larger Bench of three Hon'ble Judges presided over by the Chief Justice
held that the judgments in Shrinarayan Gupta and Ram Karan vs. State of U.P. (Writ Petition No. 27306 of
2014) do not lay down correct law and must be read consistent with the five-Judge bench judgment in Vijay
Bihari Srivastava vs. U.P. Postal Primary Co-operative Bank Ltd., 2003 (1) UPLBEC 1; Regulations of 1975
framed in exercise of power conferred by Section 122 of U.P. Co-operative Societies Act 1965 are statutory in
nature and not merely administrative instructions; question of maintainability to be resolved having due
regard to tests laid down in Vijay Bihari Srivastava's case; even if petition is maintainable, Court may, in the
facts of a particular case, decline to entertain it under Article 226 where disputed questions of fact arise or an
efficacious alternate remedy is available. (Paras 2-3)
Automatic Re-employment of Seasonal Employees - "Crushing Season" Means 1st October to
15th July - Denial of Automatic Re-employment from 1st October Held Illegal - Petitioners
(seasonal clerks and parchi distributors of Cane-growers' Co-operative Society) claimed automatic reemployment from 1st October 2015 under Regulation 26 of U.P. Cane Co-operative Service Regulations 1975;
"crushing season" as defined in Section 2(i) of U.P. Sugarcane (Regulation of Supply and Purchase) Act 1953
to mean the period from 1st October to 15th July next stands incorporated in Regulation 2(n) of Regulations
1975; amendment of Regulation 2(n) redefining "crushing season" as the period of actual crushing operations
in sugar factories, made vide notifications dated 17.5.1993 and 14.7.1993, was set aside by the Supreme
Court in JT 2008(5) SC 439 holding that change in service conditions required prior notice under Section 4-I of
U.P. Industrial Disputes Act 1947; subsequent amendment by order dated 13.4.2010 also quashed by Division
Bench in Special Appeal No. 943 of 2010; respondents had further given undertaking before the Apex Court
on 27.9.2013 that future employment of workmen shall be governed by Regulations 21 and 26; respondents
cannot resort to the definition already set aside; Held, "crushing season" for the purpose of Regulation 26
means 1st October to 15th July and automatic re-employment must commence from 1st October; action of
respondents in not calling petitioners at the start of crushing season i.e. 1st October 2015 is illegal; petitioners
entitled to benefit of automatic re-employment from that date with salary from 1st October 2015 till date of
actual engagement. (Paras 15-34, 39)
Word "Shall" in Regulation 26 is Mandatory - Right to Automatic Re-employment is a Statutory
Right - If Power Given to Do a Thing in a Certain Way, It Must Be Done in That Way or Not at All
- Word "shall" occurring in Regulation 26 before contemplating automatic re-employment of category 'A'
seasonal staff at the start of next season is mandatory; right of a seasonal employee to automatic reemployment at the start of season is a statutory right which cannot be denied; if the manner of doing a
particular act is prescribed under any statute, the act must be done in that manner or not at all; principle
traced to Taylor vs. Taylor (1875) LR (1) CH-D 426, followed in Nazir Ahmad vs. King Emperor AIR 1936 PC
253 and applied in Mackinnon Mackenzie and Co. Ltd. vs. Mackinnon Employee Union (2015) 4 SCC 544; any
violation would also infringe Section 4-I of U.P. Industrial Disputes Act 1947. (Para 32)
Seasonal Employee Has No Absolute Right to Continue Till 15th July - Termination Permissible
Under Regulation 34 on One Week's Notice or Salary in Lieu Thereof - Though seasonal employees
placed in category 'A' have a statutory right to be automatically re-employed from 1st October, they have no
absolute right to continue till end of the season i.e. 15th July; Regulation 34 of Regulations 1975 permits the
recruiting or appointing authority to terminate services of a seasonal employee at any time on a week's notice
or by paying a week's salary in lieu thereof; Division Bench in Special Appeal No. 943 of 2010 held that there
cannot be any restraint upon terminating services of seasonal staff when there is no requirement; whether
work is available or not is essentially a question of fact to be determined by the employer; if employer
terminates engagement for lack of work and the decision is not shown to be discriminatory or arbitrary, no
exception can be taken to it; disputed factual questions regarding availability of work to be agitated before
authorities under Regulations 1975 or before Registrar under Section 70 of U.P. Co-operative Societies Act
1965; financial constraints alone cannot obliterate provisions of law; in case a week's notice is not given
before invoking Regulation 34, petitioners entitled to salary in lieu thereof. (Paras 35-41)

Writ Petition Partly Allowed
794 INDIAN LAW REPORTS ALLAHABAD SERIES
Case Law Discussed:
1. Vijay Bihari Srivastava vs. U.P. Postal Primary Co-operative Bank Ltd., 2003 (1) UPLBEC 1
2. Taylor vs. Taylor, (1875) LR (1) CH-D 426
3. Nazir Ahmad vs. King Emperor, AIR 1936 PC 253
4. Mackinnon Mackenzie and Co. Ltd. vs. Mackinnon Employee Union, (2015) 4 SCC 544
5. H.S. Vankani and others vs. State of Gujarat and others, (2010) 4 SCC 301
6. Virendra Pal Singh vs. District Assistant Registrar, Etah, (1980) 4 SCC 109

(Delivered by Hon'ble Ashwani Kumar Mishra, J.)

1. Petitioners, who are 18 in number, claim to be seasonal employees engaged in
respondent Cane-growers' Co-operative Society. They have filed present writ petition for a
direction upon the respondents to allow them to join as seasonal employees, at the start of new cane
Crushing Season i.e. 1st October, 2015, and permit them to continue till the end of crushing season
i.e. 15th July, 2016. By way of amendment, petitioners have also challenged order dated 10.3.2016,
discontinuing their engagement during the midst of crushing season, by paying them off.

2. A preliminary objection with regard to maintainability of the present writ petition was
raised, on behalf of the respondent cane society, relying upon a judgment delivered by this Court in
Ram Karan vs. State of U.P. and others being Writ Petition No.27306 of 2014, and in Special
Appeal No.779 of 2014, holding therein that a writ petition would not lie against co-operative cane
society. This objection was opposed by the petitioners, relying upon Full Bench judgment of this
Court in Vijay Bihari Srivastava vs. U.P. Postal Primary Co-operative Bank Ltd., 2003 (1)
UPLBEC 1. Finding substance in petitioners' contention, matter was referred to a Larger Bench, for
answering following questions:-

"1. Whether a writ petition under Article 226 of the Constitution of India would be
maintainable against a Co-operative Cane Development Society, at the instance of its employee, for
alleged breach of the provisions of the Uttar Pradesh Cane Co-operative Service Regulations, 1975,
which governs his service conditions?

2. Whether the law laid down in Ram Karan Vs. State of U.P. and others (supra)
and Srinarayan Gupta vs State of U.P (Supra) lay down the correct law, in view of the law laid
down by the Full Bench in Vijay Bihari Srivastava Vs. U.P. Postal Primary Co-operative Bank Ltd.
(2003) 1 UPLBEC 1?

3. Whether U.P. Cane Cooperative Service Regulations, 1975 is statuary in nature
having been issued under Section 122 of the Act, or is merely in the nature of administrative
instructions?"

3. A Bench of three Hon'ble Judges of this Court, presided over by Hon'ble the Chief
Justice, has been pleased to answer the questions referred in following words:-
5 All. Anil Kumar Pandey & Ors. Vs State Of U.P. & Ors.

795
"Having regard to this position, we would necessarily have to hold, as we do, that
the broad principle of law which has been formulated in the judgment of the Division Bench in
Shrinarayan Gupta (supra) would not be reflective of the correct position of law. Both the
judgments of the Division Bench in Shrinarayan Gupta and of the learned Single Judge in Ram
Karan would necessarily have to be read in a manner consistent with the view taken in the
judgment of the Bench of five learned learned Judges of this Court in Vijay Bihari Srivastava's
case.

The Regulations which have been framed in exercise of the power conferred by
Section 122 of the Act are traceable to a source of statutory power. These Regulations are framed
by the Cane Commissioner as an authority to whom the functions of doing so have been delegated
by the State Government under Section 122. Hence, the Regulations cannot be regarded merely as
administrative instructions. The Regulations have been made in pursuance of the statutory power
conferred by Section 122.

We accordingly answer Questions (2) and (3) referred by the learned Single Judge
in the aforesaid terms. Insofar as Question (1) is concerned, the issue would have to be resolved
having due regard to the tests which have been laid down in the judgment of five Judges of this
Court in Vijay Bihari Srivastava's case. Moreover, the issue of maintainability is distinct from
whether the discretion should be exercised under Article 226 in a given case. Even if a petition is
maintainable, the Court may, in the facts of a particular case, decline to entertain it under Article
226 as, for instance, where disputed questions of fact arise or an efficacious alternate remedy is
available.

Having regard to the fact that the writ petition is still pending, we leave it open to
the learned Single Judge to arrive at a decision on the basis of the law as laid down in the judgment
of the five Judges of this Court in Vijay Bihari Srivastava, as noted above.

The reference is accordingly answered. The petition shall now be placed before the
appropriate Bench according to roster for decision in light of this judgment."

4. The matter has accordingly been placed before this Court. I have heard Sri S.K. Tripathi,
learned counsel for the petitioner, learned Standing Counsel for the respondent State and Sri
Ravindra Singh, learned counsel for the respondent no.2 to 5, and have perused the records.

5. Before adverting to the contentions raised by the parties, it would be appropriate to take
note of the relevant statutory provisions, operating in the field. The State has enacted "The U.P.
Sugarcane (Regulation of Supply and Purchase) Act, 1953", (hereinafter referred to as "the Act of
1953") with the object of regulating supply and purchase of sugarcane required for use in sugar
[factories and Gur, Rab or Khandsari Sugar Manufacturing Units].

6. Section 2 of the Act of 1953 defines "Cane-grower", "Cane-growers' Co-operative
Society", and "Crushing season" in following words:-
796 INDIAN LAW REPORTS ALLAHABAD SERIES
"2(e). "Cane-grower" means a person who cultivates cane either by himself or by
members of his family or by hired labour and who is not a member of a "Cane-grower' Cooperative Society".

2(f). "Cane-growers' Co-operative Society" means a society registered under the
Co-operative Societies Act, 1912, one of the objects of which is to sell cane-grawn by its members
and includes the federation of such societies registered under Section 8 of the said Act.

2(i). "Crushing season" means the period beginning on the 1st October in any year
and ending on the 15th July next following."

7. Chapter III of the Act of 1953, which deals with 'Supply and Purchase of Cane' refers to
the Cane-growers' Co-operative Society under section 13(1), as under:-

"13. Register of Cane-growers and Cane-growers' Cooperative Society or Societies.-
(1) The occupier of a factory shall maintain in the prescribed form a register of all such canegrowers and Cane-growers' Co-operative Society or Societies, and shall sell cane to that factory."

8. Section 16 of the Act of 1953 contemplates regulation of purchase and supply of cane in
the reserved and assigned areas, which reads as under:-

"16. Regulation of purchase and supply of cane in the reserved and assigned areas.-
(1) The State Government may, for maintaining supplies, by order, regulate-

(a) the distribution, sale or purchase of any cane in any reserved or assigned area;
and

(b) purchase of cane in any area other than a reserved or assigned area.

(2) Without prejudice to the generality of the foregoing powers such order may
provide for-

(a) the quantity of cane to be supplied by each Cane-grower or Cane-growers' Cooperative Society in such area to the factory for which the area has so been reserved or assigned;

(b) the manner in which cane grown in the reserved area or the assigned area, shall
be purchased by the factory for which the area has been so reserved or assigned and the
circumstance in which the cane grown by a cane-grower shall not be purchased except through a
Cane-growers' Co-operative Society."

(c) the form and the terms and conditions of the agreement to be executed by the
occupier or manager of the factory for which an area is reserved or assigned for the purchase of
cane offered for sale;
5 All. Anil Kumar Pandey & Ors. Vs State Of U.P. & Ors.

797
(d) the circumstances under which permission may be granted-

(i) for the purchase of cane grown in reserved or assinged area by a [Gur, Rab or
Khandsari Manufacturing Unit or any person or factory] other than the factory for which area has
been reserved or assigned, and

(ii) for the sale of cane grown in a reserved or assigned area to a [Gur, Rab or
Khandsari Manufacturing Unit or any person or factory] other than the factory for which the area is
reserved or assigned;

(e) such incidental and consequential matters as may appear to be necessary or
desirable for this purpose."

9. Section 18 of the Act of 1953 provides for 'commission on purchase of cane'. It lays
down that where purchase is made through a Cane-growers' Co-operative Society, commission
shall be payable to the Cane-growers' Co-operative Society in the manner prescribed by the State
Government. Section 28 of the Act provides for 'power to make rules'.

10. In exercise of powers conferred under the Act of 1953, the Governor has been pleased
to make The U.P. Sugarcane (Regulation of Supply and Purchase) Rules, 1954, (hereinafter
referred to as the 'Rules of 1954'). Rule 2(h) defines 'society clerk' in the following words:-

""Society clerk" means any person appointed as such by a Cane-growers' Cooperative Society to do any work connected with the supply, purchase, payment and weighment of
cane at a purchasing centre.

11. Chapter XI of the Rules of 1954 deals with Cane-growers' Co-operative Society. Rule
52 to 63 of the rules are reproduced:-

"52. The terms and conditions of service including the qualifications, grades, and
scales of salaries of the permanent as well as temporary staff of the Cane-growers' Cooperative
Society shall be determined by the Federation subject to the approval of the Cane Commissioner.

53. The strength of staff to be maintained by a Cane-growers' Co-operative Society
shall be fixed by the Cane Commissioner or an officer authorized by him in that behalf, with due
regard to the working requirements and financial resources of the society.

54. The power to appoint, grant leave of absence to, punish, dismiss, transfer and
control Secretaries, Assistant Secretaries and Accountant of Cane-growers' Co-operative Societies,
whether permanent or temporary, shall be exercised by the Federation subject to the general,
control of the Cane-Commissioner who may rescind or modify any order of the Federation.
798 INDIAN LAW REPORTS ALLAHABAD SERIES
Provided that Cane Commissioner may himself exercise any such powers in case
of emergency.

55. Similar powers as stated in Rule 54 may be exercised by the society in respect
of the other staff, subject to the regulations made by the Federation and the general control of the
Cane-Commissioner.

56. 1[* * *]

57. All the arrangements in connection with the sowing, sale and supply of cane by
Cane-growers' Co-operative Societies shall be in accordance with such general or special
instructions as may be issued by the Cane-Commissioner from time to time.

58. Every Cane-growers Co-operative Society shall prepare a budget annually and
submit it for sanction to the Cane-Commissioner not later than thirty days before the
commencement of the budget year.

59. (1) Expenditure shall be incurred unless it has been provided for in the budget
as sanctioned.

(2) In an emerty or to meet an unforeseen contingency the Cane-Commissioner
may order expenditure on any specifided item from the funds of a Cane-growers' Co-operative
Society, provided that such expenditure is in the furtherance of the objects of the society.

60. If the Cane Commissioner finds that the management of a society or any
member thereof is misusing the resources of the society or is utilizing its funds against the
provisions of the Co-operative Societies Act and Rules or the bye-laws of the society or any
standing or specific instructions of the Cane Commissioner, he may prohibit the society or the
member concerned from incurring the expenditure or the liability, and the management of the
society or the member concerned, as the case may be, shall be bound to carry out such instructions.

61. 2[* * *]

62. 3[* * *]

63. An appeal against an order of the Cane Commissioner under the provisions of
this Chapter shall lie to the State Government within one month of the date of the communication
of the order to the society or the persons concerned."

12. In exercise of powers under section 16 of the Act of 1953, the Governor has been
pleased to make The U.P. Sugarcane (Regulation of Supply and Purchase) Order, 1954, which got
published in U.P. Gazette on 4.9.1954. Clause 5 of the Order of 1954 provides for general
provisions regarding purchase of cane, thereunder. It is only a cane-grower or Cane-growers' Co-
5 All. Anil Kumar Pandey & Ors. Vs State Of U.P. & Ors.

799
operative Society, which is entitled to sell cane to the occupier of a sugar factory. Since canegrowers of the area are invariably members of the Cane-growers' Co-operative Society, and only a
non-member of Cane-growers' Co-operative Society can be a cane-grower, in view of section of
2(e) of the Act of 1953, as such, it is only the Cane-growers' Co-operative Society, which is entitled
to supply cane to the occupier of a sugar factory under the statutory scheme.

13. Respondent no.5 is one such Cane-growers' Co-operative Society, registered under the
provisions of the U.P. Co-operative Societies Act, 1965, and is a juristic person (hereinafter
referred to as 'society'). It performs the work, exclusively assigned to it under the Act of 1953, as
well as Rules and Orders issued thereunder.

14. In normal parlance, cane crushing season is generally understood to mean the season
during which sugarcane crop is harvested in the State of U.P. In the Act of 1953, "crushing season",
however, is defined as a period beginning on the 1st October in any year and 15th July next
following.

15. To regulate the service conditions of the employees of Cane-growers' Co-operative
Society, U.P. Cane Co-operative Service Regulations, 1975, (hereinafter referred to as 'Regulations
of 1975') have been framed and notified on 18.10.1975. While answering the reference, the Larger
Bench has been pleased to hold that Regulations of 1975 have been made in pursuance of the
statutory powers conferred under section 122 of the U.P. Co-operative Societies Act, 1965, and are
therefore statutory in nature. The crushing season is defined in regulation 2(n) of the Regulation of
1975, as under:-

"Crushing season" means the period as defined in U.P. Sugar Cane (Regulation of
Supply and Purchase) Act, 1953."

The definition of "crushing season" as given in the Act of 1953 stands incorporated
in the Regulations of 1975.

16. Regulation 21, 26 and 34 of the Regulations of 1975, which are relevant for the
purposes of determining the controversy involved reads as under:-

"21. Categorisation. - At the end of each crushing season the Secretary of the
Cane Union shall classify the entire seasonal staff into ''A' and ''B' categories on the basis of their
work and worth during the season. Such persons unquestionable integrity and have discharged their
duties efficiently during the crushing season shall be placed in ''A' category and the rest in category
''B'. When seasonal employee is placed in category ''B' he will be informed of the same together
with the grounds for his categorisation and an opportunity shall be given to him to explain the
charges and deficiencies against him. These proceedings shall be of summary nature and shall be
conducted by the Secretary of the Union concerned.

...........
800 INDIAN LAW REPORTS ALLAHABAD SERIES
26. The staff placed in category shall be automatically re-employed in the next
season unless the strength of seasonal staff has been reduced in any particular year to such an
extent that it may not be possible to re-employ all such staff.

34. Termination of services.- The services of a seasonal employee may be
terminated by the recruiting or appointing authority at any time on a week's notice or with a week's
salary in lieu thereof. This provision shall not apply in case of termination as a result of disciplinary
proceedings or termination at the close of the crushing season."

17. It is asserted in the writ petition that petitioner nos.1 to 7 are working as seasonal
clerks, while petitioner nos.8 to 18 are seasonal parchi distributors, of respondent no.5 society.
Relying upon the definition of "crushing season", it is alleged, that petitioners are entitled to be
automatically called for work at the start of every cane crushing season, which in view of the
applicable provisions would mean 1st of October in a calender year and continue upto 15th of July
in the next year, as a seasonal employee. It is stated that upto the year 2010, petitioners were
engaged at the start of crushing season, and continued to work till the season got over on 15th of
July next.

18. Upto the year 1993, definition of crushing season under regulation 2(n) to mean as the
period defined under the Act of 1953 continued. However, amendment was made in regulation 2(n)
of the Regulations of 1975 by the Cane Commissioner, vide order dated 17th May, 1993 and 14th
July, 1993, amending Regulation 2(n) to the following effect: "Crushing season" means the period
commencing from the date when crushing of sugarcane in concerned sugar factory commences till
the date when crushing ends".

19. This amendment of 1993 was challenged in Writ Petition No.33014 of 1993, which got
dismissed on 26th April, 2005. The judgment of this Court was challenged by U.P. Cane Union
Employees Federation Limited before the Apex Court, and the appeal was allowed vide judgment
dated 10th April, 2008, reported in JT 2008(5) SC 439. Hon'ble Supreme Court held that in view of
Section 4-I of the U.P. Industrial Disputes Act, 1947, the change in the definition of "crushing
season" amounted to change in service conditions, which could not be changed without notice to
them. The notification dated 17th May, 1993 and 14th July, 1993, were accordingly set-aside and
the writ petition was allowed. Para 10 and 11 of the judgment is extracted below:-

"10. In view of our discussions made hereinabove, we, therefore, hold that the orders
dated 17th of May, 1993 and 14th of July, 1993 could not have been passed without giving any
notice in compliance with Section 4-I read with the Third Schedule of the U.P. Industrial Disputes
Act, 1956, as mentioned herein earlier. In view of our finding made hereinabove, it is, therefore,
not necessary to deal with Question No.2 regarding power of respondent No.1 to frame and amend
regulations under Section 122 of the U.P. Cooperative Societies Act, 1965.

11. For the reasons aforesaid, the impugned judgment of the High Court is set-aside.
The writ petition filed by the appellant is allowed to the extent indicated above. The appeal is thus
5 All. Anil Kumar Pandey & Ors. Vs State Of U.P. & Ors.

801
allowed without any order as to costs. However, it would be open to the respondent to amend the
definition of "Crushing Season" in accordance with law."

20. After the judgment by the Apex Court, Cane Commissioner, U.P., after hearing the
employees, again passed an order on 13th April, 2010, amending the definition, which got
published in the U.P. Gazette on 17th April, 2010. By this order, regulation 2(n) of the Regulations
of 1975 was again amended to the same effect, as it was vide notification dated 17.5.1993 and
14.7.1993. This amendment was again challenged in a writ petition, before this court, which was
dismissed. A Special Appeal No.943 of 2010 arising out of such order, however, was partly
allowed on 2.11.2011, in the following terms:-

"In result, all the special appeals as well as writ petitions giving rise to special
appeals, are partly allowed in following manner:-

(i)The judgment of learned Single Judge impugned in these appeals are set-aside.
The Special Appeal No. 1780 of 2010 although is against an order refusing to grant interim relief,
but since the issues raised in the writ petition giving rise to Appeal No. 1780 of 2010 are fully
covered by this judgment, the Writ Petition No. 61204 2010 as well as Special Appeal No. 1780 of
2010 are allowed to the extent as indicated below.

(ii)The order of the Cane Commissioner dated 13th April, 2010 as published on
17th April, 2010 is set-aside.

(iii) The order dated 24th April, 2010 is also quashed insofar it relieves the
appellants without giving one week's notice or with a week's salary in lieu thereof. However, the
appellants shall be entitled for only a week's salary as per Regulation 34 of the 1975 Regulations in
lieu of one week notice, as a result of quashing of the order dated 24th April, 2010.

Parties shall bear their own costs."

21. Some of the employees, to the extent they felt aggrieved by the judgment in special
appeal, approached the Apex Court in Special Leave to Appeal (Civil) Nos.19551-19553 of 2012.
An undertaking in the matter was given by the respondents on the basis of which the special leave
petitions were disposed off. Second paragraph of the order of the Apex Court dated 27.9.2013 is
reproduced:-

"In pursuance of the order which was passed on the last date, Dr. Dhawan has taken
instructions and he states that as far as the future employment of the workmen is concerned, they
will be governed under Regulation 21 and 26 of the relevant regulations. Mr. Chahar states that the
last sentence in the impugned order is uncalled for and as far as termination of service by one
week's notice is concerned that was not the issue before the High Court. If that is so it would be
open to the petitioners to approach the High Court for review of this part of the order. The special
leave petitions are disposed of with this order."
802 INDIAN LAW REPORTS ALLAHABAD SERIES
22. A review petition filed in Special Appeal by the workers was also rejected on
16.5.2014.

23. Petitioners claim that in the last cane crushing season they were placed in category 'A'
and were paid-off on 9.4.2015. It is stated that a Writ Petition No.25124 of 2015 had been filed, in
respect of their grievance relating to their discontinuance during the crushing season i.e. 15th July
next, but as the season has already come to end, the said petition has been rendered infructuous.

24. It is then contended that present crushing season commenced on 1st October, 2015, and
by virtue of regulation 26, petitioners were entitled to be automatically re-employed on 1st of
October, 2015, but they were not allowed to resume their duties. Consequently, present writ
petition is filed for the prayer already noticed above. While entertaining the writ petition, following
interim order was passed on 3.11.2015:-

"1. Learned Standing Counsel has accepted notice on behalf of respondent Nos.1 to
4, whereas notices on behalf of respondent No.5 have been accepted by Shri Ravindra Singh,
Advocate. All the respondents may file a counter affidavit within three weeks. Petitioner will have
two weeks thereafter to file rejoinder affidavit. List thereafter.

2. By a separate order passed today in the writ petition, matter has been referred for
constitution a Larger Bench to answer the questions framed therein.

3. For the reasons stated therein, as a interim measure it is provided that the
petitioners, who are seasonal employees of the respondent Cane Co-operative Society and are
placed in Category-A, would be entitled to automatic re-employment, at the start of the season, in
terms of Regulation 26 of the Uttar Pradesh Cane Co-operative Service Regulations, 1975."

25. It is not in dispute that petitioners have been engaged as seasonal staff by the cane
society, after passing of the interim order dated 1.11.2015 and were allowed to continue till 10th
March, 2016, when they were paid-off. The question, which arises for consideration in this petition,
thus, is; (i) whether petitioners are entitled to automatic re-employment at the start of season i.e. 1st
October, 2015, or their engagement is dependent upon start of cane crushing operations in the sugar
factories, operating in the area? and (ii) whether petitioners' seasonal engagement could be
discontinued during the currency of crushing season i.e. upto 15th July, 2016, in view of the
provisions contained under Regulations of 1975?

26. Sri S.K. Tripathi, learned counsel appearing for the petitioners submits that the
statutory service regulations provides for automatic re-employment to seasonal employees, placed
in category 'A' at the close of last season, by virtue of regulation 26, read with section 2(i) of the
Act of 1953. The definition of "crushing season" given in the Act of 1953 stands incorporated in
Regulations of 1975, by virtue of clause 2(n), and failure on part of the respondents to act as per it,
by denying automatic re-employment to seasonal employees, entitles them to grant of relief prayed
in this petition. It is also contended that the Cane-growers' Co-operative Societies perform public
5 All. Anil Kumar Pandey & Ors. Vs State Of U.P. & Ors.

803
duty, enjoined upon it as per law, which cannot be performed without employing petitioners. It is
contended that the definition of cane crashing season, which stands quashed by this Court in special
appeal, is being enforced by the employers, in teeth of their undertaking given before the Supreme
Court, which is impermissible. Learned counsel also contends that supply of sugarcane by the
society on behalf of its members is not restricted to sugar factories alone, but it also extends to
allied industries which are covered under the purview of 1953 Act, and as such, it is not otherwise
open to confine crushing season to the actual crushing operations by the sugar factories alone.
Attempt has also been made to question the plea that work was not available with the society, on
account of which petitioners have been paid-off on 10.3.2016.

27. Sri Ravindra Singh, learned counsel appearing for the cane society, with reference to
the observations made in para 27 of the judgment in Special Appeal No.943 of 2010, submits that
there cannot be any restrain on the employer to take work from its seasonal staff, during the period
when their services are not required, nor can there be any restrain upon terminating their services,
when there is no requirement. It is also contended that it is not necessary for the society to engage
seasonal employees from 1st October itself, as the crushing operations in the sugar factories
commences much thereafter, and the employees were being engaged by the society at the
commencement of crushing operations by the sugar factories. It is also contended in para 23 of the
counter affidavit that petitioners were paid-off, as there was no requirement of work, and they have
already been paid-off as per law. According to the respondents, the society is running in financial
losses and if the seasonal employees are directed to be retained in employment from 1st October to
15th July next, even in the absence of work, it would cause grave hardship to the society, which is
already in poor financial condition. It is submitted that petitioners have the remedy available to
them under the Regulations of 1975, as also under section 70 of the Act of 1965, and without
exhausting it, the writ petition is not liable to be entertained. It is also contended that issues raised
in this petition are already engaging attention of this Court in Contempt Petition, and also before
the Apex Court in Contempt Petition (Civil) No.560-562 of 2014, and hearing of this petition be
deferred awaiting disposal of the matter before the Apex Court. Reference has also been made to
the provisions of Standing Orders applicable upon the employees of sugar mills with reference to
the definition of "season" therein, to contend that "season" occurring in Regulations of 1975 is not
defined. Submissions are also advanced regarding maintainability of writ petition on the ground
that various factual issues would require determination, for which Article 226 would not be the
appropriate remedy.

28. In substance, respondents intends to urge that term "season" occurring in regulation 26,
which talks of automatic re-employment in the next season, refers to a period during which the
cane crushing activity is undertaken in the sugar factories, and therefore, the engagement of
seasonal staff placed in category 'A' cannot be from 1st October of the respective calender year.

29. This contention proceeds upon the assumption that term "season" occurring in
regulation 26 is distinct from "crushing season" as defined under regulation 2(n) of the Act of 1953.
804 INDIAN LAW REPORTS ALLAHABAD SERIES
30. Statutory applicable provisions, noticed above, leaves no room of doubt that the Canegrowers' Co-operative Society has been constituted for undertaking the functions assigned to it
under the Act of 1953. The object of the Act of 1953 is regulation of 'supply and purchase of
sugarcane' required for use in sugar factories, Gur, Rab or Khandsari sugar manufacturing units.
The definition of crushing season, as it exists on record, is categorical, inasmuch as it refers to a
period beginning from 1st October to 15th July next. The stand of respondents rests upon the
definition, which stands quashed by this Court, and as such, is not liable to be accepted. The
automatic employment of 'seasonal employees' under regulation 21 would, therefore, start with 1st
October and not from the start of crushing operations in a factory.

31. In case "crushing season" is confined to the actual cane crushing operations undertaken
by a sugar factory, then within the same geographical area different crushing seasons may exist,
depending upon the period of cane crushing activity in a particular factory. Judicial notice can be
taken of the fact that crushing operations in the factory often vary, depending upon the crushing
capacity, financial health of the unit, availability of cane to the factory and many other
circumstances. Some times areas reserved to one factory may be assigned to another factory, in
which case different crushing periods may result in the same area. This may lead to an arbitrary
scenario inasmuch as different period of working may be offered to members of same society or
different societies, operating in the same area.

32. It appears that as harvesting of sugarcane in the State is linked directly to a particular
season characterized by particular conditions of weather, temperature etc. in a given period of time,
as such, the legislature thought it proper to specify crushing season in the Act of 1953. The
interpretation suggested by the respondents is not only contrary to what is provided in the Act, but
seems to run contrary to the object underlying the statutory scheme also. It is otherwise settled
principle that if a statute requires a thing to be done in a particular manner, it has to be done in that
way alone. The principle enunciated in Taylor vs. Taylor: (1875) LR (1) CH-D-426, as followed in
Nazir Ahmad vs. King Emperor: AIR 1936 PC 253, has consistently been the law and requires no
reiteration. Regulation 26 uses the word "shall" before contemplating automatic re-employment of
seasonal staff placed in category 'A' at the start of next season, unless the strength of seasonal staff
is reduced in any particular year to such an extent that it may not be possible to re-employ all such
staff. Word "shall" has been considered by Hon'ble Supreme Court recently in Mackinnon
Mackenzie and Co. Ltd. vs. Mackinnon Employee Union: (2015) 4 SCC 544. Para 39 to 43 is
reproduced:-

"39. The relevant paragraphs from the decision of this Court in Babu Ram
Upadhya11 are extracted hereunder: (AIR pp. 764-65, paras 28-29)

"28. The question is whether Rule I of Para 486 is directory. The relevant Rule
says that the police officer shall be tried in the first place under Chapter XIV of the Criminal
Procedure Code.