# Bench of this Court in Rakesh Kumar v. U.P. State Public Service Tribunal and

- **Citation:** (2004) 1 ILRA 22
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-09-04
- **Case number:** Civil Misc. Writ Petition No. 39331 of 2003
- **Bench:** M. Katju, Umeshwar Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bench-of-this-court-in-rakesh-kumar-v-u-p-state-public-service-tribunal-and-40258
- **Pages:** 3

## Headnote

Constitution
of
India,
Article-227
Practice of procedure-considering the
validity of suspension order-court taken
suo moto notice-about the hardship in
availing the alternative namely-likewise
central
administrative
tribunaladditional Bench of state service tribunal
should be established at Allahabad alsostrong recommendation, given to govt.
for prompt and positive action in this
regard.

Held: Para 2

There are highly competent and learned
counsels at Allahabad who have good
knowledge
of
service
law
and
the
services
of
such
counsels
will
be
available to the litigants if a Bench of the
Tribunal
is
opened
at
Allahabad.
Allahabad has been a seat of legal
learning and this legal learning should be
available to the litigants of the State.
Case Law discussed:
W.P. No. 37315 of 03 decided on 27.08.2003
AIR 2002 S.C. 2225

## Text

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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
22
and prior to termination of service of the
workman that no notice or opportunity or
any retrenchment compensation has been
awarded and as such the termination order
is legal and accordingly is misconceived.

17. The establishment does not
employ organized labour and is rendering
service. The sale of Photostat machines is
done by the proprietor himself with the
help of a helper/assistant. There is no
evidence plurality of employee i.e. that
two or more persons are employed. A
small shop is not required under the
Industries Act, 1951is not required to
maintain the attendance register having
only an employee.

18. In the instant case, the employer
was
not
duty
bound
to
maintain
attendance register and other documents
in view of the provisions of the
Establishment
Act.
There
was
no
mandatory requirement to maintain all the
documents. From the entries made in the
documents submitted by the petitioner
such as day-book and the balance-sheet,
the labour court could have easily seen
whether
the
respondent-workman
abandoned employment after taking the
experience certificate or that he had been
working in petitioner's establishment, as
claimed by him. The very small shops and
commercial establishments are exempted
under
the
Shops
and
Commercial
Establishment Act. From the facts of the
case, it is evident that the work was done
by the proprietor himself with the helper.
There is no evidence on record that the
establishment of the petitioner is big and a
number of employees are employed in the
shop. The labour court has not looked into
the facts stated above and the adverse
inference drawn by him is misconceived.

19. In the end the counsel for the
respondents has relied upon a Division
Bench of this Court in Rakesh Kumar Vs.
U.P. State Public Service Tribunal and
others, 2002 Vol. 1 UPLBEC 319 and has
submitted that the plea that the petitioner
is not a industry, was not raised before the
Tribunal, it is not open to raise a new plea
for the first time in the writ petition.

20. The question whether the
establishment of the petitioner comes
within the definition of industry or not, is
a pure question of law and can be raised
in the writ petition as it goes to the very
root of jurisdiction of the labour court.

21. The findings of the labour court
that the petitioner is an industry and the
order of termination of respondent is
illegal and ordered for reinstatement with
back wages, is illegal and perverse and is
liable to be set aside, as such the relief of
reinstatement of the respondent-workman
could not have been granted.

22. For the reasons stated above, the
writ petition is allowed and the impugned
order dated 26.3.1999 is set aside. No
order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.09.2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE UMESHWAR PANDEY, J.

Civil Misc. Writ Petition No. 39331 of 2003

R.P.N. Tewari

...Petitioner
Versus
State of U.P. and others ...Respondents
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1 All] R.P.N. Tewari V. State of U.P. and others
23
Counsel for the Petitioner:
Sri Manoj Misra

Counsel for the Respondents:
S.C.

Constitution
of
India,
Article-227
Practice of procedure-considering the
validity of suspension order-court taken
suo moto notice-about the hardship in
availing the alternative namely-likewise
central
administrative
tribunaladditional Bench of state service tribunal
should be established at Allahabad alsostrong recommendation, given to govt.
for prompt and positive action in this
regard.

Held: Para 2

There are highly competent and learned
counsels at Allahabad who have good
knowledge
of
service
law
and
the
services
of
such
counsels
will
be
available to the litigants if a Bench of the
Tribunal
is
opened
at
Allahabad.
Allahabad has been a seat of legal
learning and this legal learning should be
available to the litigants of the State.
Case Law discussed:
W.P. No. 37315 of 03 decided on 27.08.2003
AIR 2002 S.C. 2225

(Delivered by Hon'ble M. Katju, J.)

1.

The
petitioner
is
U.P.
Government servant who is challenging a
suspension order. In view of our judgment
in Civil Misc. Writ Petition No. 37315 of
2003
U.P.E.S.I.
Medical
Services
Association vs. State of U.P. Decided on
27/08/2003 which has followed the
judgment of the Supreme Court in
Secretary, Minor Irrigation and Rural
Engineering Service, U.P. and others vs.
Sahngoo Ram Arya and another AIR 2002
SC 2225 (vide paragraph 12) this petition
is dismissed on the ground of alternative
remedy before the U.P. Public Service
Tribunal.

2. However, we are of the opinion
that a Bench of the U.P. Public Service
Tribunal should be created as soon as
possible at Allahabad also. At present
there is only one Bench which sits at
Lucknow and this is creating great
hardship to the litigants who have to come
to Lucknow from far places. There are
highly competent and learned counsels at
Allahabad who have good knowledge of
service law and the services of such
counsels will be available to the litigants
if a Bench of the Tribunal is opened at
Allahabad. Allahabad has been a seat of
legal learning and this legal learning
should be available to the litigants of the
State.

3. It may be mentioned that the
Central Administrative Tribunal has seats
both at Allahabad and Lucknow and
hence in our opinion the U.P. Public
Service Tribunal should also have seats
both at Lucknow and Allahabad and the
litigants of U.P. Should have the choice to
file their petitions either at Allahabad or
at Lucknow.

4. The Chairman of the Tribunal
should have also power to transfer the
petitions from Lucknow to Allahabad and
vice versa.

5.
We,
therefore,
strongly
recommend to the U.P. Government to set
up a Bench of the Tribunal at Allahabad
as soon as possible.

6. Let the Registrar General of this
Court send a copy of this judgment
forthwith to the Chief Secretary and
Principal Law Secretary U.P. and also to
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
24
the
Chairman,
U.P.
Public
Service
Tribunal
Hon'ble
Mr.
Justice
D.R.
Choudhary.

7. A copy of this order be given to
the learned Standing Counsel free of
charge within three days and he shall also
send a copy of this judgment to the above
authorities.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.10.2003

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No. 3296 of 2003

Ram Bihari Yadav

...Petitioner
Versus
Managing Director, U.P. State Handloom
Corp. Ltd. and another ...Respondents

Counsel for the Petitioner:
Sri Pradeep Chandra

Counsel for the Respondents:
Sri V.K. Birla

Constitution of India Article 226 Under
U.P. State Handloom Corporation Ltd.
(Officers & Staff) service Rules, Chapter
VIII,
Rule
63-A-Termination-on
purported ground of continuous absence
without leave good and acceptable cause
shown
by
employee-Rule
63-A
not
attracted.

Held: Para 9

Petitioner's services, as such, could not
have been dismissed on the purported
ground of his continuous absence. It is
not a case where the petitioner was not
responding to the show cause notice or
was not reporting without any cause.
Petitioner's services, as such, could not
be terminated without initiating and
concluding a disciplinary enquiry.
Case Law Discussed:
1990 (2) SCC 404

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

1. Heard Sri Pradeep Chandra for
petitioner and Sri Vivek Birla for
respondents.

Brief facts, giving rise to this writ
petition, are, that petitioner was appointed
an Attendant on daily wages in the office
of General Manager Cantt, U.P. State
Handloom Corporation Ltd. G.T. Road,
Kanpur
on
15thOctober,
1987.
His
services were extended from time to time.
On 12thJanuary, 1990, he was appointed
on probation for a period of one year and
was thereafter confirmed. Petitioner was
thereafter transferred to Bahraich on 29th
January, 1990. He also received the
benefit of Annual increments. The Joint
Director
of
U.P.
State
Handloom
Corporation, Kanpur issued a show cause
notice to petitioner on 13.08.2002 for
explaining his absence since 07.08.2002.
It has been explained in para 16 of the
writ petition that he submitted the joining
report on 17.08.2002 alongwith an
application
for
medical
leave.
On
07.09.2002, he was again asked to explain
his absence since 07.08.2002. Petitioner
submitted an explanation on 09.09.2002
stating that on account of his illness, he
was not been able to join. On 27.09.2002,
a notice was given to him by registered
post for explanation of his absence from
duties upto 27.09.2002. On 30.09.2002,
petitioner submitted his explanation to the
Director of Management, U.P. State
Handloom corporation, Kanpur in writing,
that he submitted his joining report on
11.09.2002, which was not accepted by
dealing official Shri Ram Kumar Shukla,