# Chandra Sunil Kumar and others v. State of U.P. and others. Learned counsel

- **Citation:** (2004) 2 ILRA 561
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-08-04
- **Case number:** Civil Misc. Writ Petition No.3844 of 1985
- **Bench:** Anjani Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandra-sunil-kumar-and-others-v-state-of-u-p-and-others-learned-counsel-40248
- **Pages:** 4

## Headnote

Constitution of India-Article 226-Labour
Law-Retrenchment Neither nature of
work for which workman was employed
was temporary nor appointment was due
to excess load of work for temporary
period-Labour Court on basis of admitted
fact held, that while terminating Services
of workman provisions of retrenchment
were not complied cessation of work of
workman
amounts
to
retrenchmentPrinciple of 'No Work No Pay"

Held: Para 5

The Labour Court rejected the case set
up by the employer-petitioner and have
found that neither the nature of work for
which the workman was appointed was
temporary or contingency nor it has been
shown that the appointment of the
workman was done because of the
excess load of work for a temporary
period. Therefore the Labour Court has
arrived at a conclusion, on the basis of
the admitted fact, that while terminating
the services of the workman concerned,
provisions of retrenchment have not
been complied with and held that
cessation of work of the workman
concerned by the employer amounts to
retrenchment.
Case law discussed:
(2002) 6 SCC

## Text

http://www.allahabadhighcourt.nic.in
2 All] M/s Neera Chemicles Pvt. Ltd. V. Union of India
561
276 DD, even if, the loans amounts were
taken by cash, prior to that date i.e.
1.4.1989.
This
decision
has
been
followed by a learned Single Judge of
this Court in Criminal Misc. Application
No.
7508
of
1990,
Messrs
Sudhir
Chandra Sunil Kumar and others vs.
State of U.P. and others. Learned counsel
for the Income Tax Department fairly
concedes that this is the correct legal
position. So far as the other charge
relating to Section 278 B is concerned,
that imposes liability on parties, who are
in charge of a company. However, that
liability would only arise, provided that
an offence has been committed in the
first
place.
If
there
has
been
no
commission of any offence, then there
can
be
no
question
of
making
a
complaint
against
the
Managing
Director.
Case law discussed:
AIR 2003 SC 3126

(Delivered by Hon'ble Amar Saran, J.)

1. Heard learned counsel for the
applicants Sri Raghuraj Kishore and Sri
Ashok
Kumar,
learned
counsel
for
Income Tax Department.

2. The allegations in this case were
that the applicants are said to have taken
three loans in cash and not by cheques or
bank drafts in the assessment year 198698 totaling Rs.21,000/-. In this manner
they are said to have violated the
provisions of Section 269 SS of the
Income Tax Act, 1961 punishable under
Section 276 DE of the Income Tax Act,
1961 read with Section 278 B. Now this
complaint was dated 24/25.5.1989. I find
that Section 276DD has been omitted with
effect from 1.4.1989. There is a decision
of Hon'ble Supreme Court in the case of
Messrs. General Finance Co. and another
v. Assistant Commissioner of Income
Tax, Punjab, AIR 2002 SC, 3126, wherein
it has been held that there can be no
prosecution for a breach of Section 269SS, if the prosecution has been launched
after deletion of Section 276 DD, even if,
the loans amounts were taken by cash,
prior to that date i.e. 1.4.1989. This
decision has been followed by a learned
Single Judge of this Court in Criminal
Misc. Application No. 7508 of 1990,
Messrs Sudhir Chandra Sunil Kumar and
others vs. State of U.P. and others.
Learned counsel for the Income Tax
Department fairly concedes that this is the
correct legal position. So far as the other
charge relating to Section 278 B is
concerned, that imposes liability on
parties, who are in charge of a company.
However, that liability would only arise,
provided that an offence has been
committed in the first place. If there has
been no commission of any offence, then
there can be no question of making a
complaint against the Managing Director.

3. In this view of the matter, the
application
succeeds
and
criminal
proceedings in case No. 265 of 1989
(Union of India vs. M/s Neera Chemicals
Private Limited and another) pending in
the Court of C.J.M., Kanpur and others
are quashed.
Proceeding quashed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.08.2004

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No.3844 of 1985

M/s U.P. State Sugar Corporation Ltd.

...Petitioner
Versus
The Labour Court, U. P. and another

 ...Respondents
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
562
Counsel for the Petitioner:
Sri Dilip Gupta
Sri R.K. Shukla
Sri R.D. Khare

Counsel for the Respondents:
Sri Shyam Narain
S.C.

Constitution of India-Article 226-Labour
Law-Retrenchment Neither nature of
work for which workman was employed
was temporary nor appointment was due
to excess load of work for temporary
period-Labour Court on basis of admitted
fact held, that while terminating Services
of workman provisions of retrenchment
were not complied cessation of work of
workman
amounts
to
retrenchmentPrinciple of 'No Work No Pay"

Held: Para 5

The Labour Court rejected the case set
up by the employer-petitioner and have
found that neither the nature of work for
which the workman was appointed was
temporary or contingency nor it has been
shown that the appointment of the
workman was done because of the
excess load of work for a temporary
period. Therefore the Labour Court has
arrived at a conclusion, on the basis of
the admitted fact, that while terminating
the services of the workman concerned,
provisions of retrenchment have not
been complied with and held that
cessation of work of the workman
concerned by the employer amounts to
retrenchment.
Case law discussed:
(2002) 6 SCC

(Delivered by Hon'ble Anjani Kumar, J.)

1.

The
petitioner-employer,
aggrieved by an award of the Labour
Court dated 24th September 1984 in
Adjudication Case No.1 of 1975, has
approached this Court by means of this
writ petition under Article 226 of the
Constitution of India.

2. The following dispute was
referred
to
the
Labour
Court
for
adjudication:-

"KYA SEWAYOJAKON DWARA
APNE KARMCHARI SHRI MUJIB
AHMAD
[PUTRA
SHRI
KHAN
MOHAMMAD] KO SEASON 1973-74
KE ARAMBH HONE KI TITHI 7-12-73
KO KARYA PAR NA LIYA JANA
UCHIT TATHA/ATHWA VAIDHANIK
HAI. YADI NAHIN TO SAMBANDHIT
KARMCHARI
KYA
LABH/KSHATIPURTI
PANE
KA
ADHIKARI HAI TATHA ANYA KIS
VIVRAN SAHIT."

3. The Labour Court, on receipt of
the aforesaid reference, issued notices to
the workman concerned as well as the
employer.
The
parties
exchanged
pleadings and adduced evidence. In short
the workman has set up his case that he
has been employed by the employer in
crushing season 1971-72 and has worked
the whole season of 1971-72 as sheetwriting clerk which is the job of seasonal
nature. The crushing of the season 197273 started on 28.11.1972 and ended on
15.3.1973. The workman worked in this
1972-73 season also. His work and
conduct
was
unblemished
and
no
complaint whatsoever was either raised or
communicated
to
the
workman
concerned. The workman has further set
up the case that when the bonus to all
other employees was paid for the season
1971-72 he was also paid the bonus but he
was not paid retaining allowance. The
workman has further cited the case of
other employees who were appointed with
the workman concerned, they were still
allowed to work. The cause of action for
raising dispute has arisen when all other
http://www.allahabadhighcourt.nic.in
2 All] M/s U.P. State Sugar Corporation Ltd. V. The Labour Court, U.P. and another
563
employees
similarly
situated
were
allowed to join 1972-73 season but the
workman concerned was denied. The
aforesaid deprivation of employment by
the employer to the workman concerned
is contrary to law and the workman
concerned is entitled to all rights and
consequential benefits of a seasonal
employee.

4. On the contrary the employers
have set up the case that the workman was
appointed purely on temporary basis
under the standing orders on 12.12.1972.
Initially his appointment was for a period
of two months and all the terms and
conditions were mentioned in the letter of
appointment. Since the employment of the
workman was of temporary nature his
services were terminated in terms of the
letter of appointment. He, therefore, as
stated by the employer, has no right for
reinstatement and any other right. It is
also stated by the employer that for the
year 1972-73 the workman has not
worked for whole of the season. The
employers have further stated that for the
crushing season 1972-73 which started on
27.11.1972. The workman concerned
worked with effect from 13.12.1972 to
7.3.1973 but he was paid the wages for
the whole season beyond which the
workman is not entitled for anything. In
their rejoinder the employers have stated
that the workman concerned was not
posted on one purchasing center. His
appointment was purely temporary for a
temporary job and the employers have
never terminated the services of the
workman concerned but his services came
to an automatic end with the end of the
job.

5. The Labour Court considered the
pleadings of the parties and evidence on
the record. The Labour Court rejected the
case set up by the employer-petitioner and
have found that neither the nature of work
for which the workman was appointed
was temporary or contingency nor it has
been shown that the appointment of the
workman was done because of the excess
load of work for a temporary period.
Therefore the Labour Court has arrived at
a conclusion, on the basis of the admitted
fact, that while terminating the services of
the workman concerned, provisions of
retrenchment have not been complied
with and held that cessation of work of
the workman concerned by the employer
amounts to retrenchment.

6. The Labour Court has also
recorded a finding that the contention of
the employer that on commencement of
crushing season 1973-74 the workman
has not presented himself for job and it is
incorrect to say that he was denied of the
job. In the pleadings this statement has
since not been controverted, the Labour
Court, in my opinion, arrived at a
conclusion against it on the basis of
findings recorded by the Labour Court,
which,
in
my
opinion,
cannot
be
interfered by this Court in exercise of
power
under
Article
226
of
the
Constitution of India as this Court will not
sit in appeal over the findings arrived at
by the Labour Court. This writ petition
has no force. It deserves to be dismissed
and is accordingly dismissed.

7. Lastly, it is submitted by learned
counsel for the employer that admittedly
the workman has not worked for all these
days during the pendency of this writ
petition since after the alleged termination
of service, therefore, on the principle of
'no work no pay' the order of the Labour
Court deserves to be modified as laid
down by the Apex Court in the case of
Hindustan Motors Ltd. Vs. Tapan
Kumar
Bhattacharya
and
another,
(2002) 6 SCC 41.
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
564

8. In this view of the matter the
award is modified to the extent that
subject to petitioner's permitting the
workman concerned to join his duties
with effect from the coming crushing
season, the workman shall be entitled for
half of the emolument from the date of
termination till the date of reinstatement
in the coming season.

There shall be no orders as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2004

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No.24623 of 2000

No.6920275-W Naik M.K. Moorthy

 ...Petitioner
Versus
The Chief of Army Staff and others
 ...Respondents

Counsel for the Petitioner:
Sri Colonel Ashok Kumar

Counsel for the Respondents:
Sri Subodh Kumar
S.C.

Constitution of India-Art. 226- Writ
order-Maintainability-
Order
of
punishment and served upon petitioner
in
Banglore-Statutory
representation
under Section 164 (2) of Army Act made
by petitioner from Bangalore-Same was
decided at new Delhi and Communicated
to petitioner at Tamilnadu-No cause of
action or part of it arose in State of U.P.-
Hence Allahabad High Court has no
Territorial jurisdiction to decide the
matter.

Held: Para 7 & 9

From the pleadings in the petition it is
clear that the order of punishment was
passed and served upon the petitioner in
Bangalore and that he made a statutory
representation under section 164 [2] of
the Army Act from Bangalore itself;
therefore, the cause of action arose only
at Bangalore. The representation under
section 164 [2] of the Act was decided at
New Delhi and communicated to the
petitioner in Bangalore. Therefore, no
cause of action or part of cause of action
arose in the State of U.P. and therefore,
this Court does not have any territorial
jurisdiction to decide the matter. The
mere fact that the petitioner was posted
at Allahabad does not give him any cause
of action to decide the petition at
Allahabad.

Words and Pharas-word-'may'-whether
directory or mandatory?
In my view, the word 'may' is only
directory and is not mandatory nor does
it give a right to the petitioner to sue the
Chief of the Army Staff anywhere in the
country according to his own choice,
whims or caprice. The chief of the Army
Staff can be sued anywhere in the
country, provided the cause of action or
a part of the cause of action arose in that
State.
Case law discussed:
2001 (2) UPLBEC 1275
AIR 1998 All 47
AIR 1988 All. 36
1997 (1) UPLBEC 236

(Delivered by Hon'ble Tarun Agarwala, J.)

1. The petitioner was enrolled in the
Indian Army in 1994. The petitioner was
posted at Bangalore and pursuant to an
incident
dated
30.7.1994,
he
was
chargesheeted for using criminal affairs
against
his
superior
officers.
The
Summary Court Martial proceedings were
held at Bangalore in July 1999 in which
an order dated 21.7.97 was passed
imposing minor punishment of reduction
in rank and three months rigorous
imprisonment. The petitioner thereafter