# B.H.U., Varanasi & another v. Presiding Officer, Labour Court and another

- **Citation:** (2009) 1 ILRA 185
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-01-23
- **Case number:** Civil Misc. Writ Petition No. 30802 of 1999
- **Bench:** Sunil Ambwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/b-h-u-varanasi-another-v-presiding-officer-labour-court-and-another-41341
- **Pages:** 10

## Headnote

Constitution of India-Art. 226-Industrial
Dispute-reference
made
by
State
Government-workman the employees of
B.H.U.-fully
controlled
owned
and
financed by central Govt.-without least
concern of State Government-held-State
Government not empowered to refer the
dispute.

Held: Para 27

The
finding
of
the
Labour
Court
completely overlook the admitted facts
that the entire grant is received by the
University from the Central Government
and that the Executive Council which
control
with
the
finances
and
administrative under the supervision of
the Visitor of the University and the Vice
Chancellor is the full time salaried officer
of the University and executive head
appointed by the Visitor. The Banaras
Hindu University has not only a central
character but is a University which is
controlled and managed by the Central
Government. The State Government as
such did not have the authority to make
a reference nor any such authority was
delegated
to
it
by
the
Central
Government under Section 39 of the U.P.
Industrial Disputes Act. The reference
under
Section
4k
by
the
State
Government as such was not competent
and thus the proceedings in pursuance of
the reference are liable to be set aside.
Case law discussed:
(2007) 2 SCC 428, (2006) 6 SCC 516, 2008(7)
ADJ 122, (2006) 13 SCC 727, (1969) 1 SCC
769, (1975) 4 SCC 679, (1997) 9 SCC 377,
2002 (93) FLR 606, 1989 UPLBEC 149,
1995(70) FLR 20
186 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

## Text

1 All] B.H.U., Varanasi & another V. Presiding Officer, Labour Court and another

185
Petition No.35179 of 1998 cannot be
implemented.

16. In view of the above, the
respondents cannot be compelled to create
any supernumerory post. However, if,
according to the petitioner, the earlier
order passed by this Court on 10.4.2002
was not implemented deliberately without
any cogent reasons, then he could have
taken the contempt proceedings against
the authorities concerned in accordance
with law but instead of doing so, he
preferred to execute the earlier order
dated 10.4.2002 passed by this Court,
through the present writ petition.

17. The petitioner has also annexed
a few orders passed by this Court in
different writ petitions without pleading
the facts and circumstances of those cases
in the present writ petition as such, said
orders in the absence of any pleadings
cannot be taken into consideration.

18. In view of the discussion made
hereinabove,
this
writ
petition
is
accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.01.2009

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No. 30802 of 1999

Banaras Hindu University, Varanasi and
another

 ...Petitioners
Versus
Presiding Officer Labour Court, U.P.,
Varanasi and another
...Respondents

Counsel for the Petitioners:
Sri V.K.Upadhya
Sri Pankaj Naqvi
Sri Dinesh Kacker
Sri V.B. Singh

Counsel for the Respondents:
Sri Manish Goyal
Sri Rajarshi Gupta
Sri J.K. Chakraborty
Sri J.P. Pandey

Constitution of India-Art. 226-Industrial
Dispute-reference
made
by
State
Government-workman the employees of
B.H.U.-fully
controlled
owned
and
financed by central Govt.-without least
concern of State Government-held-State
Government not empowered to refer the
dispute.

Held: Para 27

The
finding
of
the
Labour
Court
completely overlook the admitted facts
that the entire grant is received by the
University from the Central Government
and that the Executive Council which
control
with
the
finances
and
administrative under the supervision of
the Visitor of the University and the Vice
Chancellor is the full time salaried officer
of the University and executive head
appointed by the Visitor. The Banaras
Hindu University has not only a central
character but is a University which is
controlled and managed by the Central
Government. The State Government as
such did not have the authority to make
a reference nor any such authority was
delegated
to
it
by
the
Central
Government under Section 39 of the U.P.
Industrial Disputes Act. The reference
under
Section
4k
by
the
State
Government as such was not competent
and thus the proceedings in pursuance of
the reference are liable to be set aside.
Case law discussed:
(2007) 2 SCC 428, (2006) 6 SCC 516, 2008(7)
ADJ 122, (2006) 13 SCC 727, (1969) 1 SCC
769, (1975) 4 SCC 679, (1997) 9 SCC 377,
2002 (93) FLR 606, 1989 UPLBEC 149,
1995(70) FLR 20
186 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

(Delivered by Hon'ble Sunil Ambwani, J.)

1. The Banaras Hindu University
has filed this writ petition against an
Award of the Labour Court, Varanasi
dated 10.7.1988 in Adjudication Case No.
31 of 1995, Banaras Hindu University vs.
B.N. Bhattachrya, reinstating Shri Brij
Nath Bhattacharya respondent no.2, with
continuity in service and back wages from
the date of reference. The Labour Court
further directed that in case the post of
Fuse-Man is still vacant, the respondent
no, 2 shall be appointed against the said
post, and if there is no vacancy, he may
be adjusted on an equivalent post.

2. By an interim order dated
28.7.1999, the operation of the award was
stayed, provided the petitioner goes on
paying respondent no. 2 month by month
an amount equivalent to the wages last
drawn by him. The writ Petition was
heard in the absence of parties, and was
dismissed on 17.7.2002 and the interim
order was vacated. The petitioner were
directed to reinstate respondent no, 2
forthwith, within one month and to pay
his arrears of salary and other benefits to
which he would have been made entitled
in terms of the award.

3. The Banaras Hindu University
challenged the order in Civil Appeal No,
10274 of 2003. The Civil Appeal was
allowed by the Supreme Court on
27.10.2005:-

"Heard parties.

In the impugned Judgement
itself, it has been set out that the list was
revised and that neither party appeared
before the Court. Instead of adjourning
the matter or dismissing for default, the
High Court proceeded to deliver a
detailed judgement even citing case laws
and then distinguishing those cases.
Before us both parties admit that the
list had been revised and therefore the
advocate could not remain present.
Under the circumstances, we set the
impugned judgement and remit the Writ
Petition back to the High Court for
decision on merits. The High Court shall
dispose
of
the
Writ
Petition
as
expeditiously as possible and in any event
within three months from today.
Interim order, if any, passed by the
High Court during the pendency of the
Writ Petition will continue to operate till
the disposal of the Writ Petition.
The Appeal stands disposed of
accordingly. There will be no order as to
costs.
Sd/-(S.N. Variava)
Sd/-(A.R.Lakshman)
Sd/-(S.H. Kapadia)"

4. The matter was thereafter
adjourned on several dates. The Banaras
Hindu University engaged Shri V.B.
Singh and thereafter Shri Dinesh Kakker
to argue the matter. The Court adjourned
the case on 14.08.2007 and then again on
23.08.2007 for a possible settlement. It
was thereafter nominated to some other
bench.
Finally
it
was
heard
on
08.12.2008.

5. Heard Shri Dinesh Kakker
appearing
for
the
Banaras
Hindu
University (in short the 'University') and
Shri Manish Goyal for the respondent no.
2 workman.

6. Briefly stated the facts, giving rise
to this writ petition, are that respondentworkman was working as Fuse-Man
under the Chief Engineer, Electricity and
Water
Supply
w.e.f.
1.4.1982.
His
1 All] B.H.U., Varanasi & another V. Presiding Officer, Labour Court and another

187
services
were
terminated
without
assigning any reason on 6.7.1991. The
respondent-workman alleged that he had
requested for the regular pay scale and
other service benefits, on which the
employee were annoyed with him. He
was
appointed
by
the
Selection
Committee after interviews on permanent
basis. He sent letters for reconsideration
of the decision to terminate his services.
The employee however did not give any
response.

7. The University stated in its
written statement that the Banaras Hindu
University is a Central University and is
run and managed from the funds received
from the Central Government. It is known
as a Central University. The reference
therefore could be made only by the
Central Government and not by the State
Government. The respondent-workman
was appointed as a Fuse-Man only for
three months i.e. 1.4.1982 to 30.06.1982.
His appointment was extended for six
months on each occasion and that his last
extension was given on 1.11.1990 to
30.04.1991.
The
respondent-workman
thereafter did not attend to work, nor his
service were extended. He absented
thereafter without any explanation. A
letter was sent to him on 11.6.1991 for
explaining his unauthorized absence from
1.2.1991 to 9.3.1991; 22 .3.1991 to
1.4.1991 and 3.4.1991 to 11.6.1991, but
he did not reply.

8. The parties filed their documents
in evidence. The workman examined
himself.
Shri
Ram
Singh,
Senior
Workshop Assistant was examined on
behalf of the employer. Shri K.S. Gupta,
Assistant Supervisor, Electricity and
Water Supply examined himself and Shri
Lal
Chandra,
Deputy
Registrar
(Administration-II) were also examined.
The Labour Court found that it was not
clear whether the post of Fuse-Man was
advertised. The respondent workman had
applied for appointment. An appointment
letter was issued on 22.7.1981, which
shows that the workman was appointed
for a period of three months from
1.4.1982 to 30.6.1982 on a vacancy
caused temporarily on the promotion of
Shri S.N. Srivastava. The workman was
qualified in the electrician trade and holds
a certificate from Industrial Training
Institute. His service were extended upto
31.12.1985. permanently, he should be
adjusted on the post. A notice was sent on
11.6.1991 to the workman on his office
address for explaining his absence from
1.2 .1991 to 9.3.1991; 23.3.1991 to
1.4.1991 and 3.4.1991 to 11.6.1991.

9. The documentary evidence for the
last extension of service for a period
between 1.5.1990 to 31.10.1990 bearing
the signatures of the workman was filed
by the employer.

10. The workman examined himself
to depose and prove the facts stated in his
written statement. Shri Ram Singh, Senior
Workshop Assistant appearing on behalf
of the employer stated that the workman
had worked upto 22.3.1991 and then
absented from duties. His name continued
in the register upto July 1991 and was
scored out in August, 1991. He stated that
he has no knowledge whether there is any
post of Fuse-man and did not produce the
attendance register. Shri K.S. Gupta,
Assistant Supervisor stated that there was
no suspension after 30.4.1991 and that the
workman had worked regularly from
1.4.1982.
Shri
Lal
Chand,
Deputy
Registrar (Administration) stated that the
188 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

Registrar has powers of appointment only
for a period of six month.

11. The Labour Court found that the
respondent-workman was asked to give
explanation for failing to attend duties on
30.4.199, which makes it clear that the
respondent workman was given the
extension of service even beyond that
period but that the suspension letter was
not produced by the employer. Even if a
person was engaged by the employer for
5-6 years, it was not just and proper to
remove him in the absence of any further
extension for his continuance. The
provisions of Section 25-F of Industrial
Dispute Act were attracted. And that the
removal of the workman's name from the
attendance register amounted to his
retrenchment. The University is an
autonomous body, which receives its
entire
grants
from
the
Central
Government and thus it will be treated to
be a Central Government Establishment.
A number of cases have been decided by
the Labour Court in respect of the
employees and the workmen. The Labour
Court found that the respondent workman
is entitled to reinstatement with continuity
in service. Since the workman did not
give his representation for wages, he will
be entitled to the wages from the date of
reference
i.e.
29.3.1995
and
the
appointment. If the post of the Fuse-man
has been filled up, the employer shall
adjust him on any other equivalent post.

12. Shri Dinesh Kakker, learned
counsel appearing for the University
would submit that the University was
established under the Banaras Hindu
University Act 1915 to establish and
incorporate a teaching and residential
Hindu
University
of
Banaras.
The
University is an autonomous body. The
President of India is the Visitor of the
University under Section 5(i) of the Act
with Executive council as the highest
executive body. The Chancellor elected
by the Court is the Head of the University
under Section 7-A. The Vice Chancellor
is a whole time salaried officer under
Section 7B of the Act. The condition of
service of officers and teachers is
provided under a written contract under
Section 16B. The Act provides for
Statutes under Section 17, and Ordinances
under Section 18 and the powers to make
regulation under Section 19. The Statutes,
Ordinances and Regulations do not
provide for service conditions of the
employees of the University. They are
appointed on contract and that their
services come to an end on the expiry or
termination of the contract.

13. Shri Kakker submits that the
University receives its entire funds from
the Central Government and thus the
appropriate government for making a
reference for any industrial dispute under
Section 2-A of the Industrial Dispute Act
is the Central Government, and not the
State Government and thus the reference
dated 27.3.1995 made by the State of
Uttar Pradesh was bad in law. He would
further submit that without prejudice his
first submission, the employment on
contract under proviso to section 2
(oo)(bb) of Industrial dispute Act, 1947,
the termination of service of the workman
as a result of non-renewal of the such
contract
being
terminated
under
a
stipulation in that behalf, is not included
within
the
meaning
of
the
term
'retrenchment'.
The
contract
of
the
respondent workman was not renewed
and thus the termination of his service
will not be treated as a retrenchment.
1 All] B.H.U., Varanasi & another V. Presiding Officer, Labour Court and another

189

14. Shri Kakker submits that the
question, as to whether the reference in
respect
of
Central
Government
establishment can be made by the Central
Government or the State Government in
whose jurisdiction the cause of action has
arisen, was considered and decided by a
Constitution Bench of the Supreme Court
in Steel Authority of India vs. National
Union Water Front Workers and
others, 2001, 7 SCC 1. The judgement
has been followed by the Supreme Court
in Hindustan Aeronautic Ltd. vs.
Hindustan Aero Canteen Sangh, Civil
Appeal No, 3559 of 2002 decided on
8.7.2002, holding that the Hindustan
Aeronautic Limited is an undertaking of
the Central Government and it is the
Central Government which exercise full
control over the same. The issuance of
licence by the State Government is no
criteria to come to a conclusion that the
State
Government
would
be
the
appropriate government. In National
Textile Corporation, U.P. Limited vs.
State of U.P., Writ Petition No, 45538
of 2003, decided on 14.9.2004, this court
held that the Central Government does
not have any financial and administrative
control
over
the
NTC
(UP)
Ltd.
Following the Steel Authority of India
(supra) this Court held that under Section
39 of the U.P. Industrial Disputes Act, the
State Government can exercise delegated
powers of the Central Government while
making a reference. In that case the State
Government, did not make reference
under Section 39 of the Industrial Dispute
Act,
1947,
rather
it
exercised
its
jurisdiction under 4-K of the U.P.
Industrial Disputes Act, 1947. Since the
appropriate government in that case was
the Central Government, the reference
itself was incompetent.

15. Shri Dinesh Kakker would
submit, relying upon the supplementary
rejoinder
affidavit
of
Shri
C.M.
Chakraborty, Senior Assistant, Legal
Cell, Banaras Hindu University, that the
University is run under the control of the
Central Government. The framing of the
Statutes and Ordinances are required to
have
the
approval
of
the
Central
Government. The decisions are subject to
the final orders of the Visitor. The
selection process also involves nominee
of the Government. The autonomous
character of the University does not imply
that it has any independence of control or
that it does not function under the
authority of the Central Government. The
funds
of
the
University
Grant
Commission are paid to it by the Central
Government
and
that
the
recommendations/directions
of
the
University Grants Commission are based
upon the policy and directions of the
Central Government. He would submit
that there is no delegation of powers
under Section 39 of the U.P. Industrial
Disputes Act, 1947, and that since the
University is a Central Government with
ultimate control of the financial and
administration
with
the
Central
Government, the reference could only be
made by the Central Government.

16. Shri Kakker has then relied upon
the
judgements
in
Punjab
State
Electricity Board vs. Sudesh Kumar
Puri, (2007) 2 SCC 428 to support his
submission
that
the
conditional
engagement for specific period as a
regular Meter Reader under a contract and
the non-renewal of the contract would not
amount to termination of his services to
be treated as retrenchment under Section
2(oo)(bb) of the Act. He has also relied
upon Municipal Council, Samarala vs.
190 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

Sukhwinder Kaur, (2006) 6 SCC 516
for the same proposition.

17. For reinstatement with back
wages, Shri Kakker has relied upon
judgements
in
Indian
Institute
of
Technology,
Kanpur
vs.
Presiding
Officer, Labour Court Ii, Kanpur
Nagar, 2008(7) ADJ 122 in which this
court held that by virtue of the operation
of Selection 13(3) of the Institute of
Technology Act, 1961, the employee,
whose probation was never extended,
would be deemed to have continued in
temporary employment, terminable on
one month's notice and that the reengagement with full back wages should
not have been allowed.

18. Shri Kakker submits, that the
Labour Court could not have directed
regulation on the post or any equivalent
post. He submits that in Regional
Manager, State Bank of India vs.
Mahatma Mishra, (2006) 13 SCC 727,
the Supreme Court held that the Labour
court could only award reinstatement with
back wages. It could not have directed
regularisation giving permanent status to
a casual workers and that orders cannot
be passed on sympathetic consideration.

19. Shri Manish Goyal, on the other
hand,
submits that the 'appropriate
government' under Section 2(a) of the
Industrial Dispute Act, 1947 in relation to
any industrial disputed under Section
2(a)(i) concerning any industry carried on
by or under the authority of the Central
Government is the Central Government
and in relation to any other industrial dis
pute under (ii) is the State Government.
The legal position on this regard has been
settled in Steel Authority of India
(supra) which has affirmed the Heavy
Engg. Mazdoor Union v. State of Bihar
(1969) 1 SCC 769 and Hindustan
Aeronautic Ltd. v. Workmen (1975) 4
SCC 679 and that the contrary view in
Air India Statutory Corporation v. United
Labour Union, (1997) 9 SCC 377 was
overruled. The Supreme Court held in
Steel Authority of India (supra):

"....the criteria to determine whether
the
Central
Government
is
the
appropriate
government
within
the
meaning of the CLRA Act, is that the
industry must be carried on by or under
the authority of the Central Government
and not that the company/undertaking is
an instrumentality or an agency of the
Central Government for purposes of Art.
12 of the Constitution; such an authority
may be conferred either by a statute or by
virtue of relationship of principal and
agent or delegation of power and this fact
has to be ascertained on the facts and in
the circumstances of each case. In view of
this conclusion, with due respect, we are
unable to agree with the view expressed
by the learned judges on interpretation of
the expression 'appropriate government'
in Air India's case. Point no. 1 is
answered accordingly."

20. Shri Goyal would submit that
there is no administrative, financial and
functional control exercised by the
Central Government under the Banaras
Hindu University Act, 1915. It is not run
under the authority of the Central
Government and is autonomous in its
operations. The University is not required
to
seek
approval
of
the
Central
Government for discharging its functions.

21. Shri Goyal would further submit
that the U.P. Legislature has deliberately
excluded, clause(bb) in the definition
1 All] B.H.U., Varanasi & another V. Presiding Officer, Labour Court and another

191
clause of the U.P. Industrial Dispute Act,
1947 to define the term 'retrenchment' as
it is contained in the Central Act and
therefore the provisions of Section
2(oo)(bb) of Central Act is not applicable
to the present case. He has relied upon the
judgement
in
U.P.
State
Sugar
Corporation Ltd. Vs. Om Prakash
Upadhyay 2002(93)FLR 606 to submit
that the decision in Jai Kushum vs. Uttar
Pradesh Co-operative Bank Ltd., 1989
UPLBEC 149 is to be preferred as
against the decision of the same High
Court in Smt. Pushpa Agrawal vs.
Regional Inspector of Girls School
Meerut, 1995(70)FLR 20, and that since
the Industrial Dispute Act, 1947 the Act is
not to override any State law, the
definition of retrenchment under Section
2(oo)(bb) of the Industrial Dispute Act
1947 will not be applicable in the matters
covered by the U.P. Industrial Dispute
Act, 1947.

22. On merits Shri Goyal submits
that E.W.I. Admitted that the respondent
workman had worked continuously from
1.4.1982 until he was given extension.
There was no break in his work. Shri Ram
Singh stated that he had no knowledge
about the extension and that Shri Lal
Chandra admitted that the Banaras Hindu
University has not filed any paper after
paper No. 62, which is incomplete. He
would
submit
that
the
respondent
workman was given extension from time
to time and that the fact, that he was given
a show cause notice as to why he is not
attending to work, would clearly show
and was correctly interpreted by the
Labour Court to mean that the workman
was given further extension but that his
service were illegally and arbitrarily
terminated before the last extension came
to an end.

23. The question, that calls for
consideration of the court, is whether the
reference in this case by the State
Government was competent. The Banaras
Hindu
University
is
a
University
established and incorporated by a Statute.
The Central Act dissolved the Hindu
University Society registered under the
Societies Regularisation Act, 1860 and
vested all the rights, which were vested in
the said society in the University. A
survey of the provisions of the Act would
show that President of India is the Visitor
of the University under Section 5 with
powers to cause an inspection to be made
by such person as he may direct. He may
address the Vice Chancellor under sub
section (4) and that the Executive Council
is authorized to communicate with the
Visitor through the Vice Chancellor under
sub section (5). The Chancellor is
appointed by the Court to hold office for
three years under Section-7 and is the
Head of the University under Section 7A.
The Vice Chancellor is appointed by the
Visitor on the recommendations of the
Selection Committee, constituted by the
Visitor under Section 7B to be a whole
time salaried officer of the University
under sub section (2). He is the principal
executive and academic officer of the
University under Section 7C and exofficio
Chairman
of
the
Executive
Council; the Academic Council and the
Finance Committee. The Court the
executive Council; the Academic Council;
the finance Committee; the faculties and
such other authorities as may be declared
by the Statutes to be the authorities of the
University are the authorities of the
University under Section 8A. The Court is
an advisory body under Section9. The
Executive revenue and property of the
University
under
Section
10.
The
University
is
required
to
maintain
192 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

permanent reserves to cover recurring
charges under Section 14 and the corpus
of Rs.45 lacs permanent endowment to
meet the recurring charges of the
University other than charges in respect of
scholarships, prizes and rewards provided
that, (1) any Government securities, as
defined by the Indian Securities Act 1920
which may be held by the University shall
be reckoned at their face value; and (2)
the sum of Forty-five lakhs shall be
reduced
by
such
sum
at
the
commencement of the Banaras Hindu
University(Amendment) Act 1966. The
Central Government shall, declare to be
the total capitalised value, for the
purposes of grants of money which have
been made to the University any Ruler of
an Indian State, and the total income
accruing from immovable property which
has been transferred to the University.
The university has to constitute Pension
or Provident fund or insurance scheme
under Section 16A for the benefit of its
officers, teachers and other employees.
The conditions of service of officers and
teachers shall be under a written contract
to be lodged with the University to t
Tribunal of Arbitration consisting of one
member appointed by the Executive
Council, one member nominated by the
officer or the teachers concern and an
umpire appointed by the Visitor. The
decision of the Tribunal or Arbitration
shall be final and shall not be questioned
in any court of law under sub section (3)
of Section 16B. The University functions
through the Statute and Ordinance made
under Section 17 and 18 of the Act to be
made by the Executive Council and
approved by the Visitor and regulation
with regard to the procedure to be
observed in the meetings of all other
matters which by the Act, the Statutes or
Ordinances are to be prescribed by the
Regulations.

24. It is submitted that the entire
grant is received by the University from
the Central Government on the allocation
by the University Grants Commission.
The Executive Council is to consist of the
Vice
Chancellor,
Ex-Officio
and
8
persons nominated by the Visitor under
Statute 14(1) and that the Executive
Council has a right to manage and
regulate
the
finances,
accounts,
investments, property business and other
administrative affairs of the University.
The University is for all practical
purposes an instrumentality of the State
for which the entire finances are provided
by the Central Government. The President
of India as the Visitor appoints the Vice
Chancellor on the recommendation of the
selection committee to be the whole time
salaried officer and that the Executive
Council is headed by Vice Chancellor and
8 persons to be nominated by the Visitor
to perform the entire financial and
administrative function of the University.
Every new statute or its amendment or
repeal under Section 17(iv) requires
previous approval of the Visitor and that
every Ordinance has to be submitted
under Section 18(6) to the Visitor who
may disallow any such Ordinance or remit
it to the Executive Council for further
consideration. The President of India as
an executive of the Union acting under
the aid and advice of the Cabinet
exercises full and complete control on the
University. The University as such is a
extended
hand
of
the
Central
Government. It has always been treated
so, and is also called as a Central
University.
1 All] B.H.U., Varanasi & another V. Presiding Officer, Labour Court and another

193

25. In Hindustan Aeronautics Ltd
(supra) the Supreme Court following the
Steal Authority of India's case (supra)
held:-
"The
question
that
arises
for
consideration in this case is, whether the
High Court is justification holding that
the State Government is the "Appropriate
Government" under the provisions of the
relevant Act. The Constitution Bench
recently has considered the relevant
provisions
of
the
Contract
Labour
regulation act in the case of Steel
Authority of India and others vs. National
Union
Waterfront
Workers
&
Ors.(2001)7 SCC 1 and has come to the
conclusion
that
the
Appropriate
Government" will be the Government
which exercises control and authority
over the concerned organization. It is
undisputed
that
the
Hindustan
Aeronautics Ltd. Is an undertaking of the
Central Government and it is the Central
Government which exercises full control
over the same. Issuance of license by the
State Government is no criteria to come
to a conclusion that the State Government
would be the "Appropriate Government".
The impugned judgement of the High
Court therefore is on the fact of it
erroneous in view of the Constitution
Bench decision of this Court referred to
earlier. We, therefore, set aside the
impugned judgement of the High Court
and hold that the Central Government is
the "Appropriate Government".

26. The Labour Court held that the
Banaras
Hindu
University
is
an
autonomous body and it is getting
financial
grants
from
the
Central
Government. It shall not be treated as part
of the Central Government and that a
number of cases of Banaras Hindu
University have been decided by the
Labour Court and no such issue has been
raised. The State Government was thus
competent to refer the matter.

27. The finding of the Labour Court
completely overlook the admitted facts
that the entire grant is received by the
University from the Central Government
and that the Executive Council which
control
with
the
finances
and
administrative under the supervision of
the Visitor of the University and the Vice
Chancellor is the full time salaried officer
of the University and executive head
appointed by the Visitor. The Banaras
Hindu University has not only a central
character but is a University which is
controlled and managed by the Central
Government. The State Government as
such did not have the authority to make a
reference nor any such authority was
delegated to it by the Central Government
under Section 39 of the U.P. Industrial
Disputes
Act.
The
reference
under
Section 4k by the State Government as
such was not competent and thus the
proceedings in pursuance of the reference
are liable to be set aside.

28. The Contract, on which the
respondent workman was appointed has
not been brought on record and thus the
argument that the matter could only be
refereed
to
Arbitrator
cannot
be
appreciated and accepted by the Court.

29. In view of the findings on the
first question, that the reference under
Section 4 K by the State Government was
not competent, it is not necessary for the
Court to decide the other issues.

30. The writ petition is allowed. The
award dated 10.7.1998 passed by the
Labour Court, Varanasi in Adjudication
194 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

Case No. 31 of 1995 Banaras Hindu
University and others vs. Brij Nath
Bhattacharya published on 15.3.1999 is
set aside. There shall be no order as to
costs.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.01.2009

BEFORE
THE HON'BLE VINOD PRASAD, J.

Criminal Misc. Application No. 19905 of
2008

Kalim Ahmad @ Anwar Miyan and others

...Applicants
Versus
State of U.P. & another ...Opposite Parties

Counsel for the Applicants:
Sri Sushil Shukla

Counsel for the Opposite Parties:
Sri Azhar Hussain
A.G.A.

Code of Criminal Procedure Section 482Quashing of Criminal proceeding Trail for
offence under Section 467, 468, 474 IPCparties entered into compromise do not
want
to
litigate
the
case-heldtechnicality will not come in their wayNo useful purpose served-in continuing
and passing the futile order.

Held: Para 7

After hearing both the sides, I am of the
view that since the matter has been
compromised and both the litigating
sides do not want to litigate any further
therefore technicality of law should not
come in their way to compromise the
matter and therefore, while exercising
my power under Section 482 Cr.P.C. I
quash the proceedings of the aforesaid
Complaint
Case
No.2257
of
2004,
Krishna Lal Vs. Kalim Ahmad @ Anwar
Miyan and others, under Sections 467,
468, 471 IPC, P.S. Kotwali, District
Bareilly, pending in the court of Ld. JM
Ist Bareilly.
Case law discussed:
(2008) 2 SCC (Crl) 464

(Delivered by Hon'ble Vinod Prasad, J.)

1. Kalim Ahmad @ Anwar Miyan,
Shahid Ahmad @ Shahid Miyan, Jaheer
Ahmad @ Jaheer Miyan and Sajid Ahmad
@ Guddu, four sibling brothers all sons of
Late Nawab Ali, resident of 153,
Shahbad, P.S. Prem Nagar, District
Bareilly have invoked the inherent
jurisdiction of this Court by filling of the
instant
Criminal
Miscellaneous
Application with the prayer to quash the
proceeding of Complaint Case No. 2257
of 2004 for offences under Sections 467,
468, 471 IPC, P.S. Kotwali, District
Bareilly, pending in the court of Ld. JM
Ist Bareilly.

2. I have heard Sri Sushil Shukla,
learned counsel for the applicants in
support of this application as well as Sri
Azhar Hussain, learned counsel for the
respondent
and
learned
AGA
in
opposition and perused the record of this
application.

3. In a bird eye view, the allegations
against the applicants, as is contained in
Annexure No.1 are that Sri Kishan Lal
Suri son of Sri Bhagwan Das Suri,
resident of 23-A Model Town, P.S.
Baradari, district Bareilly had purchased a
house from Smt. Shanti Devi wife of Kunj
Lal, who was holding power of attorney
of his wife namely Smt. Shanti Devi,
which
house
was
allotted
a
new
Municipal
Number
being
House
No.218/154. The said house was given
under the tenancy of Nawab Ali, father of