# Badan Singh v. State of U.P

- **Citation:** (2005) 2 ILRA 483
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-06-08
- **Case number:** Civil Misc. Writ Petition No. 312 of 2003
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/badan-singh-v-state-of-u-p-40479
- **Pages:** 7

## Headnote

484 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
Sri Bal Mukund
Sri L.N. Singh
S.C.

(A)
Industrial
Dispute
Act-Ex-Parte
award-recall application filed after 30
days of the publication of award-court
can not take notice of pendency of such
recall
application-held-exparte
award
become final.

Held: Para 9

In view of the aforesaid pronouncement
of the Hon'ble Supreme Court and the
fact
that
petitioner
has
failed
to
establish that the application for recall
was
filed
within
30
days
of
the
publication of the award, the application
filed is legally not maintainable. In view
of the aforesaid this Court cannot take
notice of pendency of the application for
setting aside the ex parte award, which
has been filed after more than 30 days of
publication of the award nor pendency of
such
an
application
is
of
any
consequence. The issue is, therefore,
answered against the petitioner.
Case law discussed:
AIR 1991 SC 606
2001 SCC (L&S) 365
2004 (2) AJJ. 180
AIR 1981 SC-606

(B) Constitution of India Article 341-cast
certificate-appointment on the basis of
certificate
issued
by
Tehsildartermination order challenged before the
labour court-without considering the
basic
requirement-on
the
basis
of
certificate issued by Tehsildar. Labour
Court, nor the State Government nor its
officer can declare particular cast as
S.C./S.T. unless such caste inlisted as
notified under Article 341-ex parte
award quashed-matter remitted back to
decide
as
fresh
in
the
light
of
observation made by High Court.

Held: Para 12 & 13

In the opinion of the Court, inclusion of
the caste of the workman concerned in
the list notified under Article 341 of the
Constitution of India was a condition
precedent for the workman to claim
benefit as a schedule caste candidate
and it was obligatory upon the Industrial
Tribunal to have satisfied itself with
reference to such list.

In view of the aforesaid, the Labour
Court has failed to appreciate the basic
requirement of the law of the land while
conferring the benefit of continuance of
service upon the petitioner on the
ground of his being member of the
scheduled caste and as such the award
of the Labour Court cannot be permitted
to stand.
Case law discussed:
AIR 2004 SCW 6419

## Text

2 All] Badan Singh V. State of U.P.

 483
intention of any other person to commit,
any offence punishable under any of the
following sections of the Indian Penal
Code (45 of 1860), namely:........

(v) section 302, 303 and 304 (that is to
say, offences affecting life) ..........
Shall, in the absence of any reasonable
excuse, the burden of proving which
excuse shall lie upon the person so aware,
forthwith give information to the nearest
Magistrate or police officer of such
Commission or intention;

6. In view of the aforesaid specific
statutory mandate if the petitioner has
come
to
know
of
commission
of
cognizable offence he was bound to give
information of the same and thus to make
prayer before the competent Magistrate
for a direction of investigation under
Section 156 (3) Cr.P.C. In case, the
petitioner deliberately or without any
excuse
abstains
from
giving
such
information, as stipulated aforesaid under
Section 39 (1) Cr.P.C., he virtually
commits the offence punishable under
Section 176 I.P.C. With this legal position
at hand, the petitioner was actually duty
bound
under
the
statute
to
give
information to the Magistrate. Such
Magistrate, however, is not supposed to
reject that information simply on the
ground that the petitioner did not have
any locus in the matter. In this context,
the case law of Raja Ram Vs. State of
U.P. & others, 2004 (49) A.C.C. 847, is
quite relevant.

7. Whether or not the petitioner was
related to the deceased Girdhar or he has
one or the other connection with him, if
an information of commission of murder
of Girdhar has been given by the
petitioner to the court, the required
directions under Section 156 (3) Cr.P.C.
for investigation of the case should in all
reasonableness had to be given by the
court. The revisional court by rejecting
the revision of the petitioner on the
aforesaid ground of locus being not
available to him for moving the court with
a prayer under Section 156 (3) Cr.P.C.,
appears to be grossly erroneous. The
entire relevant legal framework in this
context should have been taken into
account by the courts below and they
should not have passed the orders so
cursorily in such a serious matter.

8. In result, the petition is allowed
and the impugned order dated 15.4.2005
passed by the Sessions Judge, Mathura, is
hereby set aside. It is however, directed
that the Sessions Judge concerned shall
take up the matter and reconsider it in the
light of the aforesaid observations within
ten days from the date of production of a
certified copy of this order and pass
suitable orders in accordance with law.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.06.2005

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 312 of 2003

Indian Oil Corporation Ltd. (Marketing
Division), New Delhi and others

 ...Petitioners
Versus
Assistant Labour Commissioner (Central),
Kanpur and others
 ...Respondents

Counsel for the Petitioners:
Sri Prakash Padia
Counsel for the Respondents:
Sri B.N. Singh, S.C.
484 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
Sri Bal Mukund
Sri L.N. Singh
S.C.

(A)
Industrial
Dispute
Act-Ex-Parte
award-recall application filed after 30
days of the publication of award-court
can not take notice of pendency of such
recall
application-held-exparte
award
become final.

Held: Para 9

In view of the aforesaid pronouncement
of the Hon'ble Supreme Court and the
fact
that
petitioner
has
failed
to
establish that the application for recall
was
filed
within
30
days
of
the
publication of the award, the application
filed is legally not maintainable. In view
of the aforesaid this Court cannot take
notice of pendency of the application for
setting aside the ex parte award, which
has been filed after more than 30 days of
publication of the award nor pendency of
such
an
application
is
of
any
consequence. The issue is, therefore,
answered against the petitioner.
Case law discussed:
AIR 1991 SC 606
2001 SCC (L&S) 365
2004 (2) AJJ. 180
AIR 1981 SC-606

(B) Constitution of India Article 341-cast
certificate-appointment on the basis of
certificate
issued
by
Tehsildartermination order challenged before the
labour court-without considering the
basic
requirement-on
the
basis
of
certificate issued by Tehsildar. Labour
Court, nor the State Government nor its
officer can declare particular cast as
S.C./S.T. unless such caste inlisted as
notified under Article 341-ex parte
award quashed-matter remitted back to
decide
as
fresh
in
the
light
of
observation made by High Court.

Held: Para 12 & 13

In the opinion of the Court, inclusion of
the caste of the workman concerned in
the list notified under Article 341 of the
Constitution of India was a condition
precedent for the workman to claim
benefit as a schedule caste candidate
and it was obligatory upon the Industrial
Tribunal to have satisfied itself with
reference to such list.

In view of the aforesaid, the Labour
Court has failed to appreciate the basic
requirement of the law of the land while
conferring the benefit of continuance of
service upon the petitioner on the
ground of his being member of the
scheduled caste and as such the award
of the Labour Court cannot be permitted
to stand.
Case law discussed:
AIR 2004 SCW 6419

(Delivered by Hon'ble Arun Tandon, J.)

1.

Heard
Sri
Prakash
Padia
Advocate on behalf of the petitioner Sri
B.N. Singh and L.N. Singh on behalf of
respondent no. 3, Sri Bal Mukund
Advocate on behalf of the Union of India.

2. Indian Oil Corporation, a
Government Company duly incorporated
under the Companies Act, has filed this
writ petition against the award of the
Labour Court dated 15th October, 2001
passed in Industrial Dispute Case No. 55
of 1999 as also against the order of the
Assistant Labour Commissioner, Kanpur
dated 16th December, 2002, whereby the
petitioner
has
been
directed
to
immediate/enforce the award or to show
case as to why action be not taken against
the Corporation under Section 29 of the
Industrial Disputes Act read with Section
47-A of the Act.
2 All] Indian Oil Corporation & others V. Asstt. Labour Commissioner (Central) & others 485

3. The fact relevant for the purposes
of disposal of the present writ petition are
as follows:

Respondent no. 3 Sri A.K. Mehra
was appointed as temporary Class-3
employee on 2nd April, 1974 in the
employment of the Corporation. On the
basis of caste certificate submitted by
respondent no. 3 to the effect that
respondent no. 3 belongs to scheduled
case, he was offered regular appointment
as clerk. Nearly after 20 years it was
brought
to
the
knowledge
of
the
Corporation that the caste certificate
produced by the respondent no. 3 was a
forged
document.
Accordingly,
the
respondent no. 3 was suspended on
21.9.1995 and an enquiry was initiated
against him. After service of charge sheet
and after holding enquiry, the respondent
no. 3 was dismissed from service vide
order dated 5.9.1996 on the charge that he
has secured appointment on the basis of
forged scheduled caste certificate. Feeling
aggrieved by the said action of the
employers, respondent no. 3 raised an
industrial dispute. The dispute was
referred for adjudication by the Central
Government vide notification dated 11th
March, 1999 to the Central Government
Industrial Tribunal cum Labour Court,
Kanpur. The dispute was registered as
Industrial Dispute No. 55 of 1999. the
Industrial Tribunal by means of the award
dated 15th October, 2001 has held that the
workman was deprived from defending
himself properly during the course of
enquiry by the management and the said
enquiry proceedings were in violation of
the principles of natural justice on the
ground that the copies of documents, on
which reliance was placed during the
enquiry, had not been furnished to the
workman. The Labour Court further held
that since the employers have not filed
written statement nor they have asked for
an opportunity to lead evidence before the
Tribunal for establishing the charge
against delinquent employee, no such
opportunity
is
being
afforded.
The
Tribunal proceeded to make an award
declaring the punishment order to be
illegal. The workman has been directed to
be reinstated with all consequential
benefits.

4.

The
petitioner
moved
an
application for recall of the aforesaid
exparte award on the ground that the
applicant Corporation is a big Public
Sector Corporation and the notice-issued
by the Tribunal, received in the operation
department of the Corporation, was
forwarded to the Industrial Relation
Department of the Corporation. The same
was mixed up with some other files and
could not be acted upon by the competent
authority. On the said application of the
Indian Oil Corporation various dates were
fixed, however, the application was not
decided by the Industrial Tribunal. Taking
the benefit of the pendency of the said
proceeding, respondent no. 3 approached
the Labour Authorities, as a result
whereof the letter dated 16the December,
2001 has been issued requiring the
petitioner to enforce the award failing
which the proceedings under Section 29
of the Industrial Dispute Act shall be
initiated. Hence the present writ petition.

5. On behalf of the petitioner it is
submitted that in view of the judgment of
the Hon'ble Supreme Court reported in
1991 SC 606, the Industrial Tribunal has
the jurisdiction to decide the application
for setting aside ex parte award and
therefore unless and until the recall
application is decided, the Deputy Labour
Commissioner
was
not
justified
in
486 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
directing the enforcement of ex parte
award. In alternative it is submitted that
even the ex parte award made by the
Tribunal cannot be legally sustained
inasmuch as the Industrial Tribunal has
failed to appreciate that the workman
could claim benefit of being member of a
scheduled caste only, if his caste is
included in the list published under
Article 341 of the Constitution of India
and therefore it was for the workman to
have established his right with reference
to such a list, failing which the action
taken b the management of Indian Oil
Corporation, to dismiss the workman
from the service on the ground that he had
secured regular appointment on the basis
of a false certificate obtained from
Tehsildar, could not have been interfered
with.

6. Counsel for the petitioner submits
that the Industrial Tribunal has committed
a manifest illegality while recording a
finding in the ex parte award to the effect
that the certificate issued by the Tehsildar
about status of respondent no. 3 being a
scheduled caste candidate was genuine
inasmuch as the Labour Court has failed
to appreciate that a person can be held to
be a member of scheduled caste only if he
belongs to a caste notified in a list
published under Article 341 of the
Constitution of India. The Labour Court
has not taken into consideration the
aforesaid legal aspect of the matter, and
therefore vitiates the entire approach of
the Labour Court. Lastly it is submitted
by the petitioner that in any case the
Labour Court has not recorded any
reasons for granting full back wages for
the period the workman was out of
employment and therefore the award to
that extent is contrary to the law as laid
down by the Hon'ble Supreme Court of
India, reported, reported in 2001 SCC
(L&S) 365, P.G.I. of Medical Education
& Research, Chandigarh Vs. Raj Kumar.

7. On behalf of the workman it is
submitted that once it is held that the
employer had illegally terminated the
services of the workman, the normal relief
of reinstatement with full back wages is to
be applied. The workman has placed
reliance upon the judgment of the Hon'ble
Supreme Court, reported in 2004 (2) ATJ
180, Union of India Vs. Madhusudan
Prasad and others. On behalf of the
respondent it is submitted that the recall
application as filed by the petitioner was
legally not maintainable as it was filed
after expiry of 30 days of the publication
of the award and therefore mere pendency
of the said recall application is of no
consequence. The award of the Labour
Court has to be enforced during the
pendency of the said misconceived
application. It is further submitted that the
award of the Labour Court holding that
the caste certificate issued in favour of the
workman to be genuine and valid is based
on the findings of fact which call for no
interference.

I have heard counsel for the parties
and have gone through the records of the
writ petition.

Issue No. 1

8. The petitioner has contended that
his recall application for setting aside the
ex parte award is pending before the
Industrial Tribunal. Various dates have
been fixed in the matter. The application
has not been decided and therefore, the
enforcement of ex parte award till the
disposal of the application for setting
aside the ex parte award is legally not
2 All] Indian Oil Corporation & others V. Asstt. Labour Commissioner (Central) & others 487
justified. The contention so raised on
behalf of the petitioner prima facie
appears to be attractive. However, no
scrutiny of fact, it is established from
record that the recall application has been
preferred subsequent to the expiry of 30
days, from the date of publication of the
award of the Industrial Tribunal. The
Hon'ble Supreme Court in the judgment,
reported in AIR 1981 SC 606; Grindlays
Bank Ltd. Vs. The Central Government
Industrial Tribunal and others, has
specifically held that the Tribunal became
functus officio after 30 days of the
publication of the award (Reference
paragraph 14).

9. In view of the aforesaid
pronouncement of the Hon'ble Supreme
Court and the fact that petitioner has
failed to establish that the application for
recall was filed within 30 days of the
publication of the award, the application
filed is legally not maintainable. In view
of the aforesaid this Court cannot take
notice of pendency of the application for
setting aside the ex parte award, which
has been filed after more than 30 days of
publication of the award nor pendency of
such
an
application
is
of
any
consequence. The issue is, therefore,
answered against the petitioner.

Issue No. 2

10. The right of a person to claim
benefits of being a member of scheduled
caste community is dependent upon the
caste, to which he belongs, being notified
under a list referable to Article 341 of the
Constitution of India. The legal position
in that regard has been settled by the
Hon'ble Supreme Court in successive
judgments
including
the
judgment
reported in 2004 AIR SCW 6419 (E.V.
chinnaiah Versus State of Andhra
Pradesh and others). Having regard to
the law laid down by the Hon'ble
Supreme Court, this Court has also held
that courts of law, the State Legislature or
the State Government or any of its
officers have no competence to add any
caste/sub caste/synonym to the said list as
notified under Article 314j of the
Constitution of India. The legal position
has been explained in judgment of this
Court in Writ Petition No. 42348 of 2004,
which has since been affirmed by the
Division Bench of this Court in the
Special Appeal No. 89 of 2005. In view of
the aforesaid legal position the respondent
no. 3, who has admittedly obtained
regular appointment on the basis of his
being a member of the scheduled caste,
could have claimed relief before the
Tribunal only on his satisfying the
Tribunal that workman was actually a
member of one of the castes included in
the such list as notified under Article 341
of the Constitution of India.

11. In the opinion of the Court, the
Industrial Tribunal was under legally
obligation to appreciate the issue in light
of the provisions of Article 341 of the
Constitution of India and to see for itself
as to whether the workman was able to
refer to any item of a list notified under
Article 341 of the Constitution of India
for the purposes of claiming relief before
the Tribunal for continuance in the
employment of the Corporation on the
ground that workman belongs to the
schedule caste. Neither in the written
statement filed on behalf of the workman
nor in the award of the Industrial Tribunal
there is any mention of the caste of the
petitioner being included in any list
notified with reference to Article 341 of
the Constitution of India.
488 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
12. In the opinion of the Court,
inclusion of the caste of the workman
concerned in the list notified under Article
341 of the Constitution of India was a
condition precedent for the workman to
claim
benefit
as
a
schedule
caste
candidate and it was obligatory upon the
Industrial Tribunal to have satisfied itself
with reference to such list before
declaring as follows in the impugned
award:

"From this point of view, the stand
taken by the concerned employee that the
certificate issued by the Tehsildar about
his status as scheduled caste candidate
was genuine, appears to be correct and it
has been wrongly ignored by the enquiry
committee as well as by disciplinary
authority."

13. In view of the aforesaid, the
Labour Court has failed to appreciate the
basic requirement of the law of the land
while
conferring
the
benefit
of
continuance of service upon the petitioner
on the ground of his being member of the
scheduled caste and as such the award of
the Labour Court cannot be permitted to
stand.

14. In view of the aforesaid
conclusion arrived at by this Court, the
issue as to whether Labour Court had
rightly proceeded to pass ex parte award
and the findings recorded with regards to
the disciplinary proceedings being in
violation of the principles of natural
justice, looses all significance. It is
needless to point out that all courts of law
including Tribunal have been constituted
for furtherance of the interest of justice
and substantial justice should not be
defeated
on
technicalities.
In
such
circumstances the award made by the
Industrial Tribunal dated 15th October,
2001 is liable to be set aside and the
matter is liable to be remanded to the
Industrial Tribunal for deciding the
dispute afresh in light of the observations
made by this Court hereinabove.

Issue No. 3

15. In view of the fact that the ex
parte award made by the Tribunal has
been set aside by this Court for the
reasons recorded hereinabove and the
matter has been remanded for fresh
adjudication in light of the observations
made, the direction with regards to the
payment of back wages to the petitioner
as such is rendered infructuous inasmuch
as the right of the parties shall now be
determined afresh by the Labour Court in
accordance with law, including the issue
of back wages.

16. For the reasons stated above, the
writ petition is allowed. The award of
Industrial Tribunal dated 15th October,
2001
is
hereby
quashed.
Industrial
Tribunal cum Labour Court, Kanpur is
directed
to
decide
the
dispute
in
accordance with law in the light of the
observations
made
hereinabove,
preferably within four months from the
date a certified copy of this order is filed
before the Tribunal.
Petition Allowed.
---------
2 All] Indian Oil Corporation & others V. Asstt. Labour Commissioner (Central) & others 489
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.05.2005

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No. 40829 of 2005

Mangal Dev and another ...Petitioners
Versus
The State Election Commission and
others

 ...Respondents

Counsel for the Petitioners:
Sri Radha Kant Ojha
Sri Satyanshu Ojha

Counsel for the Respondents:
Sri S.N. Singh
Sri P.N. Rai
Sri M.D. Singh 'Shekar'
Sri C.K. Rai
S.C.

U.P. Panchayat Raj Act 1947-Section 9-
(8)-Proviso 2-preperation of electoral
roll-name of petitioner alongwith his 3
children
was
already
on
previous
electoral roll-the authority deleted the
name without Notice-behind the back of
petitioner-held order dt. 27.4.05 deleting
the
name
of
petitioner
declared
unenforceable and un-executable-their
name
shall
be
treated
existing
on
provisional as well as final voter list.

Held: Para 21

In
view
of
the
decision
of
the
Constitution Bench judgment of the
Hon'ble Apex Court in Udit Narain Singh
Malpaharia
Vs.
Member,
Board
of
Revenue, Bihar, AIR 1963 SC 786, the
petitioner no.2 and three children of
petitioners have a right to ignore the
order passed by the Sub Divisional
Magistrate, Meja, as it was passed
behind their back. To that extent, the
order impugned dated 27.04.2005 is
declared to be unenforceable and inexecutable and we direct that their
names shall be treated to be existing in
the provisional as well as in the final
voter list.
Case law discussed:
AIR 1966 SC 1942
AIR 1967 SC 1910
AIR 1968 SC 49
AIR 1977 SC 757
AIR 1979 SC-1060
AIR 1984 SC-885
1987 SCC (3) 693
AIR 1990 SC-166
AIR 1991 SC-2288
AIR 1998 SC-2496
AIR 1961 SC-751
AIR 1981 SC 711
AIR 1988 SC-2255
1994 (1) SCC-269
2001 (4) SCC-309
2001 (5) SCC-581
2002 (4) SCC-380
2003 (5) SCC-413
2004 (2) SCC-297
2004 (3) SCC-48
2005 (2) SCC-720

(Delivered by Hon'ble Dr. B.S. Chauhan J.)

1. This writ petition has been filed
for quashing the order dated 27.04.2005
(Annex.8) passed by the respondent no.3
by which the names of the petitioners as
well as their two sons and one daughter
have been deleted from the provisional
voter list prepared for the purpose of
forthcoming Panchayat Raj elections.

2. The facts and circumstances
giving rise to this case are that petitioners
claim
to
be
resident
of
village
Bhanjanpur, Gram Panchayat Payagpur
Ramgarhwa, Block Manda, Tehsil Meja,
District Allahabad. There, they have a
house, immovable properties and their
family members reside therein. Earlier,
names of the petitioners as well as their