# Dinesh Pal Singh v. Presiding Officer, Industrial Tribunal, Agra & Ors

- **Citation:** (2023) 8 ILRA 1516
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-06
- **Case number:** Writ-C No. 30049 of 2016
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-pal-singh-v-presiding-officer-industrial-tribunal-agra-ors-50556
- **Pages:** 15

## Headnote

Civil Law - Industrial Disputes Act, 1947 -
Section 4-K & 2-A - Reference -Powers of
Labour
Authorities
-
Held,
as
per
Notification dated 29.08.1990, only the
Deputy
Labour
Commissioner,
Agra
Region was competent to make reference
- Reference made by Assistant Labour
Commissioner
held
to
be
without
jurisdiction - Tribunal rightly dismissed
reference on that ground.
Unfair
Labour
Practices
-
Claim
of
continuous
short-term
engagement
intended to avoid status of permanent
workman - Such plea beyond scope of
reference which was confined to legality
of termination - No material to show
employment
of
multiple
workmen in
identical fashion to attract Entry No.10 of
5th Schedule - Appointment letters clearly
stipulated
automatic
termination
on
specific date - Held, mere temporary
employment
or
artificial
breaks
not
sufficient to prove 'unfair labour practice'
unless collective intent and continuity
established. Precedents - Bombay High
Court
judgment
in
Shankar
Bhimrao
Kadam & ors. Vs Tata Motors Ltd. not
applicable - Distinguished on facts - Also
not binding as Supreme Court dismissed
SLP
keeping
question
of
law
open.
Conclusion - Reference made without
jurisdiction - Even on merits, claim of
unfair labour practices not established -
Petition dismissed.

Held : The reference made under Section 4-K of
the U.P. Industrial Disputes Act, 1947 by the
Assistant Labour Commissioner, who was not
the competent authority as per the Notification
dated
29.08.1990
(only
Deputy
Labour
Commissioner was authorized), was without
jurisdiction
-
Tribunal
rightly
refused
to
adjudicate the dispute. The claim that fixedterm employment was a camouflage to deny
permanent status falls outside the scope of the
reference, which was limited to the legality of
termination. The Labour Court/Tribunal cannot
travel beyond the reference. There was no
sufficient material to prove that unfair labour
8 All. Dinesh Pal Singh Vs. Presiding Officer, Industrial Tribunal, Agra & Ors.
1517
practices as defined in Item No. 10 of the Fifth
Schedule of the Industrial Disputes Act, 1947,
were adopted by the employer. Mere issuance
of fixed-term appointment letters does not
automatically establish unfair labour practices
unless supported by collective evidence and
continuity. The decision of the Bombay High
Court in Shankar Bhimrao Kadam was factually
distinguishable and not binding, especially since
the Supreme Court dismissed the SLP against it
keeping the question of law open.The Tribunal's
award dismissing the reference was found legal
and valid. The writ petition lacks merit and was
accordingly dismissed.

Important Cases Referred:

## Text

_Characters 0–39,627 of 47,277. This is a partial read: ask again with offset=39627 for what follows._

1516 INDIAN LAW REPORTS ALLAHABAD SERIES

31. In view of the above, the
impugned order dated 20.06.2023 passed
by Prescribed Authority is set aside.

32. However, it is directed that the
respondent
no.2,
i.e.
the
Prescribed
Authority may decide the election petition,
after hearing both the parties, in accordance
with the procedure as prescribed under the
relevant Act and Rules, within a period of
two months from the date of production of
certified copy of this order, without
granting unnecessary adjournment to either
of the party.

33. With the aforesaid observations/
directions, the present writ petition is,
accordingly, allowed.

34. Office is directed to give a copy
of this order to learned Chief Standing
Counsel, who shall communicate this order
forthwith to the respondent no.2, i.e.
Prescribed
Authority/
Sub-Divisional
Magistrate, Bilari for compliance.
----------
(2023) 8 ILRA 1516
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.07.2023

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Writ-C No. 30049 of 2016
With
Writ C No. 30052 of 2016

Dinesh Pal Singh ...Petitioner
Versus
Presiding Officer, Industrial Tribunal, Agra
& Ors. ...Respondents

Counsel for the Petitioner:
Sri Vijay Krishna Agnihotri, Sri Shikhar
Kaushal

Counsel for the Respondents:
C.S.C., Sri Piyush Bhargava

Civil Law - Industrial Disputes Act, 1947 -
Section 4-K & 2-A - Reference -Powers of
Labour
Authorities
-
Held,
as
per
Notification dated 29.08.1990, only the
Deputy
Labour
Commissioner,
Agra
Region was competent to make reference
- Reference made by Assistant Labour
Commissioner
held
to
be
without
jurisdiction - Tribunal rightly dismissed
reference on that ground.
Unfair
Labour
Practices
-
Claim
of
continuous
short-term
engagement
intended to avoid status of permanent
workman - Such plea beyond scope of
reference which was confined to legality
of termination - No material to show
employment
of
multiple
workmen in
identical fashion to attract Entry No.10 of
5th Schedule - Appointment letters clearly
stipulated
automatic
termination
on
specific date - Held, mere temporary
employment
or
artificial
breaks
not
sufficient to prove 'unfair labour practice'
unless collective intent and continuity
established. Precedents - Bombay High
Court
judgment
in
Shankar
Bhimrao
Kadam & ors. Vs Tata Motors Ltd. not
applicable - Distinguished on facts - Also
not binding as Supreme Court dismissed
SLP
keeping
question
of
law
open.
Conclusion - Reference made without
jurisdiction - Even on merits, claim of
unfair labour practices not established -
Petition dismissed.

Held : The reference made under Section 4-K of
the U.P. Industrial Disputes Act, 1947 by the
Assistant Labour Commissioner, who was not
the competent authority as per the Notification
dated
29.08.1990
(only
Deputy
Labour
Commissioner was authorized), was without
jurisdiction
-
Tribunal
rightly
refused
to
adjudicate the dispute. The claim that fixedterm employment was a camouflage to deny
permanent status falls outside the scope of the
reference, which was limited to the legality of
termination. The Labour Court/Tribunal cannot
travel beyond the reference. There was no
sufficient material to prove that unfair labour
8 All. Dinesh Pal Singh Vs. Presiding Officer, Industrial Tribunal, Agra & Ors.
1517
practices as defined in Item No. 10 of the Fifth
Schedule of the Industrial Disputes Act, 1947,
were adopted by the employer. Mere issuance
of fixed-term appointment letters does not
automatically establish unfair labour practices
unless supported by collective evidence and
continuity. The decision of the Bombay High
Court in Shankar Bhimrao Kadam was factually
distinguishable and not binding, especially since
the Supreme Court dismissed the SLP against it
keeping the question of law open.The Tribunal's
award dismissing the reference was found legal
and valid. The writ petition lacks merit and was
accordingly dismissed.

Important Cases Referred:

1. M/S Heinz India Pvt. Ltd. Vs Presiding Officer,
Industrial Tribunal & anr., Writ-C No. 52182 of
2011

2. Shankar Bhimrao Kadam Vs Tata Motors Ltd.,
W.P. No. 5588 of 2017 (Bom HC)

3. Bhuvnesh Kumar Dwivedi Vs Hindalco
Industries Ltd. (2014) 11 SCC 85

4. Mukund Ltd. Vs Mukund Staff and Officers'
Association, (2004) 10 SCC 46

5. Tata Iron and Steel Co. Ltd. Vs St. of
Jharkhand, (2014) 1 SCC 536

6. Hindustan Lever Ltd. Vs Industrial Tribunal
IV, New Agra, 2007 (115) FLR 76

7. Bajaj Auto Ltd. Vs R.P. Sawant, 2000 (84)
FLR 524

(Delivered by Hon'ble Kshitij Shailendra, J.)

1. Arguments in Writ-C No.30049 of
2016 were heard and judgment was
reserved on 16.05.2023, whereas arguments
in Writ-C No.30052 of 2016 were heard on
18.05.2023 and the judgment was reserved
on the same day noting the fact that the
controversy involved in the writ petition
heard later was identical to the writ petition
heard earlier.

2. Both the learned counsel jointly
agree that exactly identical questions are
involved in both the writ petitions and even
the notes and case law supplied by both the
learned counsel, according to them, would
cover controversy of both the cases.
Therefore, both the writ petitions are being
decided by a common judgment. For the
sake of convenience, Writ-C No.30049 of
2016 is being treated as the leading case.

3. This petition has been filed
challenging the impugned award dated
10.09.2015, published on the notice board
on 05.05.2016 passed by the Presiding
Officer, Industrial Tribunal (4), U.P., Agra
with a further prayer in the nature of
mandamus commanding the respondent
no.3 to reinstate the petitioner on the post
of Clerk Grade-III along with 50% backwages and pay him salary according to law
as and when due in future.

The Writ Petition

4. The facts of the case are that the
respondent no.3 (hereinafter referred to as
the Company) appointed the petitioner on
the post of temporary Clerk Grade-III on
01.06.1994 and, according to the petitioner,
he was permitted to work till 07.01.1995,
approximately for a period of 221 days,
whereafter his services were disengaged.
The petitioner was further engaged on
16.06.1995 on the same post and such
engagement ended on 07.01.1996 i.e. he
was allowed to work for a period of 206
days. Thereafter, the petitioner kept getting
rehired, relieved and again engaged on the
same pattern consecutively for four years
until 08.02.2000. The case of the petitioner
is that artificial breaks in service were
created so that he might not complete 240
days in continuous employment and the
intention of the Company was to deprive
1518 INDIAN LAW REPORTS ALLAHABAD SERIES
him of his statutory rights and benefits. The
petitioner
has
given
details
of
his
engagements in the following manner:

"01.06.1994 to 07.01.1995 (221
days)

16.06.1995 to 07.01.1996 ((206
days)

14.04.1997 to 22.11.1997 (223
days)

08.07.1998 to 07.02.1999 (215
days)

08.07.1999 to 07.02.2000 (215
days)"

5. The case of the petitioner is that the
Company was aware of the fact that in case
the petitioner would complete 240 days in a
calendar year, he would attain the deemed
status of a permanent employee and the
Company would be obliged to confirm him
in services as per the provisions of
Industrial Disputes Act, 1947 (hereinafter
referred to Act, 1947).

6. The entire case of the petitioner, as
per the writ petition and also as per the
detailed arguments advanced by the learned
counsel for the petitioner, is that the
Company adopted "unfair labour practices"
as defined under Section 2 (ra) which
means any of the practices specified in the
5th Schedule. Learned counsel argued and
in the present case Entry No.10, contained
in 5th Schedule, is attracted which reads as
follows:-

"10. To employ workmen as
"badlies", casuals or temporaries and to
continue them as such for years, with the
object of depriving them of the status and
privileges of permanent workmen."

7. The case of the petitioner is that his
services were terminated on 08.02.2000,
whereafter he represented to the authorities
but having failed in his attempt to seek reengagement/ re-employment, matter was
agitated before the authorities under the
U.P. Industrial Disputes Act, 1947 and,
ultimately, the matter was referred to the
Industrial Tribunal, 4th, Agra where it was
registered as Adjudication Case No.2 of
2006. After considering the case of the
parties, the Tribunal, by impugned award
dated
10.09.2015,
dismissed
the
adjudication case.

8. The petitioner contends that the
Tribunal has not given any benefit to the
petitioner
whereas
under
similar
circumstances, another employee, namely,
Prabhat Kumar covered by Adjudication
No.2 of 2000, was reinstated with backwages and arrears under the award dated
28.02.2011.

Defence in Counter Affidavit

9. A counter affidavit has been filed
on behalf of the respondent Company
taking a stand that the petitioner was
temporarily engaged for fixed terms and for
short durations due to exigencies of work
as and when his services were required by
the Company and, accordingly, timely
extensions were granted to the services.
Further defence is that the petitioner never
completed one year continuous service nor
240 days and hence he was not entitled for
any relief.

10. As regards the contention based
upon Prabhat Kumar's case, the defence of
the Company is that the award passed in
Adjudication Case No.2 of 2000 was
illegal, perverse and without jurisdiction
and has already been set aside by the High
Court by its judgment dated 23.01.2017
passed in Writ-C No.52182 of 2011 (M/S
8 All. Dinesh Pal Singh Vs. Presiding Officer, Industrial Tribunal, Agra & Ors.
1519
Heinz India Pvt. Ltd. Vs. Presiding Officer,
Industrial Tribunal and another) on the
ground that the reference made was
contrary
to
the
notification
dated
29.08.1990
whereunder
only
Deputy
Labour Commissioner, Agra Region, Agra
had the power and competence to make the
reference, whereas in the case of Prabhat
Kumar, as also in the present case,
reference
was
made
by
Assistant
Commissioner, Agra Region, Agra. Further
defence of the respondent is that this Court,
by the aforesaid order dated 23.01.2017,
remanded the matter to the Tribunal to
consider
such
objection
concerning
competence of the officer within stipulated
period of time and pursuant to the remand
order the Industrial Tribunal dismissed the
reference by order dated 13.04.2017
observing
that
the
Assistant
Labour
Commissioner, Agra Region, Agra had no
jurisdiction to refer the matter.

Rejoinder Affidavit

11. A rejoinder affidavit has been
filed by the petitioner annexing therewith
various letters of appointment as well as
extension letters governing the services of
the petitioner and stand taken is the same
that the Company had maliciously dealt
with the services of the petitioner in
continuously engaging and disengaging
him time and again so that he might be
deprived of benefits under the Act. As
regards the order of this Court in Writ-C
No.52182 of 2011, it has been pleaded that
the said order was passed solely on the
ground of jurisdictional error and the
concerned workman was permitted to
approach the High Court again after the
outcome of the dispute. Though not
pleaded, learned counsel for the petitioner
during the course of hearing, argued that
Prabhat Kumar has already challenged the
order dated 13.04.2017 before this Court
and the writ petition to this effect is
pending.

12. I have heard Sri Shikhar Kaushal,
learned counsel for the petitioner, learned
Standing Counsel for the State-respondent
Nos. 1 and 2 and Sri Piyush Bhargawa,
learned counsel representing respondent
Company.

Petitioner's case and contentions

13. In sum and substance, the
contention of Sri Kaushal is to the effect
that the Company's action clearly falls
under meaning and import of "unfair labour
practices", as defined under Section 2(ra)
of the Act of 1947, as temporary
engagement of the petitioner for short
periods of time was with the object of
depriving him of the status and privileges
of a permanent workman and the Tribunal
has not given consideration to this aspect
but has simply dismissed the adjudication
case on the ground that the petitioner was
temporarily engaged from time to time and
did not complete 240 days so as to attract
the provisions of Act of 1947.

14. Learned counsel for the petitioner
has placed very strong reliance upon a
judgment dated 26.02.2022 of Bombay
High Court in a bunch of writ petitions
connected with Writ Petition No.5588 of
2017 (Shankar Bhimrao Kadam and others
Vs. Tata Motors Limited) (hereinafter
referred to as Bombay High Court case)
and has argued that in the said case also,
short term engagements of the concerned
petitioners were treated to be "unfair labour
practice". Learned counsel argued that in
the Bombay High Court's case also,
identical appointment letters were issued to
the concerned workmen which reflected
1520 INDIAN LAW REPORTS ALLAHABAD SERIES
that they were employed for 225 days, 236
days, 237 days, 238 days etc. etc. and the
Tata Motors Ltd did not allow any
workman to complete 240 days and,
therefore, after extensive analysis of the
provisions of 1947 Act, the action of Tata
Motors Ltd. was denounced and the
concerned
petitioners
were
granted
compensation in lieu of their services.
Learned counsel has referred to paragraph
no.52 and 58 of the said judgment, which
are reproduced as below:-

"52.
I
have
independently
assessed the entire oral and documentary
evidence adduced before the Labour Court
in these cases and upon analysis of the
same, I have come to a firm conclusion that
in
hundreds
of
cases,
the
present
respondent has created a farcical picture
by posing that the work allotted to the
temporaries was limited only to the maximum
extent of 7 months. As discussed above, the
dedicated department for engagement of
temporary workers, apparently kept a close
watch on the duration of employment of these
petitioners and in a case like Balu Bapuji
Shelke, who had put in 232 days in his first
round and 238 days in his third round, his
service was abruptly intercepted and he was
disengaged. He had almost reached the
figure of 240 days and was thrown out, after
completing 238 days. This indicates that the
respondent-management has created an eyewash and paper-work with the intention of
creating evidence that no worker had
completed 240 days. Even in Sunil Pralhad
Khomane (supra), the learned judge of this
court, after analyzing the entire evidence
before him, concluded that the company has
apparently misused Section 2(oo)(bb). For
the reasons assigned by me and my esteemed
brother in Sunil (supra), I find that the said
conclusion was justified and in all these cases
in hands, Section 2(oo)(bb) will not be
applicable. To hold otherwise, would create a
mockery of Section 2(oo)(bb).

58. It cannot be ignored from the
various rounds of temporary employments of
these
temporaries
that
after
one
disengagement, they used to look forward for
the next appointment order. As expected, they
used to receive such appointment orders.
They used to perform their duties not only till
the tenure mentioned in the appointment
order was completed, but even upto reaching
any duration between 225 days to 238 days in
one single stint of temporary employment.
None of the temporaries in such cases, ever
received an appointment order that a
particular temporary would work for 238
days or 236 days, etc. The maximum tenure
was an appointment for 7 months. This was
not the pattern followed in Mahindra &
Mahindra Ltd., Nagpur (supra), inasmuch, as
it was noticed by this court in the said case
that the workers used to work in other
factories during their disengagement and had
actually approached the Industrial Court
after about 9 to 23 years."

15. I t has further been argued that the
aforesaid decision of Bombay High Court
has been upheld by the Supreme Court
while dismissing Special Leave Petitions
filed by Tata Motors Ltd by its order dated
11.11.2022. Further reliance has been
placed by the learned counsel for the
petitioner on a decision of the Supreme
Court in the case of Bhuvnesh Kumar
Dwivedi Vs. Hindalco Industries Ltd:
(2014) 11 SCC 85, with special reference
to paragraph 26.1, 28, 28.1 and 28.2 which
read as follows:-

"26.1 Firstly, in the light of the
legal principle laid down by this Court in
the case of U.P. State Sugar Corporation
Ltd. Vs. Om Prakash Upadhyay, (2002) 10
8 All. Dinesh Pal Singh Vs. Presiding Officer, Industrial Tribunal, Agra & Ors.
1521
SCC 89, the provisions of the U.P. I.D. Act
remain unaffected by the provision of the
I.D. Act because of the provision in s. 31 of
the Industrial Disputes (Amendment and
Miscellaneous
Provisions)
Act,
1956.
Hence, s. 2 (oo) (bb) is not attracted in the
present case.

28. The respondent, in order to
mitigate its conduct towards the appellant
has claimed that the appellant was
appointed solely on contract basis, and his
service has been terminated in the manner
permissible under Section 2 (oo) (bb) of the
I.D. Act. However, we shall not accept this
contention of the respondent for the
following reasons:-

28.1 Firstly, the respondent has
not produced any material evidence on
record before the Labour Court to prove
that it meets all the required criteria under
the Contract Labour (Regulation and
Abolition) Act, 1970, to be eligible to
employ employees on contractual basis
which includes license number etc.

28.2 Secondly, the respondent
could not produce any material evidence
on record before the Labour Court to show
that the appellant was employed for any
particular project(s) on the completion of
which his service has been terminated
through non-renewal of his contract of
employment."

16. Learned counsel, at the strength of
the aforesaid decision, has argued that the
defence taken by the Company that the
petitioner was engaged on the basis of
exigency of work was also taken in the
aforesaid cases, however, the same was
turned down by the Bombay High Court as
well as by the Supreme Court. He has
further argued that the allegation of the
Company to the effect that every year the
petitioner was re-hired, for his services
being temporary in nature and that it was a
fresh appointment, is fallacious inasmuch
as employee code, badge number etc of the
petitioner
was
never
changed
and,
therefore, it was not a case of fresh
appointment.

17. The learned counsel has also
argued that the reference made by the
Assistant Labour Commissioner was not
bad because that powers might have been
delegated upon him by the Deputy Labour
Commissioner, Agar Region, Agra.

Contentions of respondent-Company

18. Sir Piyush Bhargava, learned
counsel for the respondent Company has
vehemently opposed the writ petition and
has argued that the Tribunal has recorded
finding of fact that the petitioner never
completed 240 days of working and that the
appointment was for fixed period of time.
He has further argued that the engagement
was based upon exigency of work and that
the argument of "unfair labour practices" is
not only factually incorrect but also beyond
the scope of reference as the reference was
not made on the point of "unfair labour
practices" but the question to be decided by
the Industrial Tribunal was to the effect as
to whether termination of services of the
petitioner was according to law and, if not,
what relief/damages the petitioner was
entitled to. He has further argued that the
petitioner cannot claim any relief inasmuch
as reference itself was bad for want of
jurisdiction as already held by this Court in
the case of Prabhat Kumar in Writ-C No.
52182
of
2011
after
analysing
the
concerned notification and in the present
case also exactly the same position exists.
He has also argued that whatever period the
1522 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner
worked,
he
was
paid
remuneration and hence the Company has
not
committed
any
wrong.
Further
argument is that for "unfair labour
practices" as covered by Clause-10 of the
5th Schedule relied upon by the petitioner,
it has to be established that the concerned
workmen were employed as Badlies,
casuals or temporaries and continued as
such for years with the object of depriving
them of the status and privileges of
permanent workmen, however, in the
present case, no such circumstances exist as
would stand reflected from the letters of
appointment issued to the petitioner. He has
further argued that every appointment was
independent in nature and whenever the
services automatically ceased after the
expiry of terms fixed under the letter of
appointment, the petitioner never agitated
any alleged rights and never made any
claim either before the authorities or before
the court, although there was a gap of six
months and more in fresh engagements.

19. As regards the argument of the
petitioner on alleged delegated powers, Sri
Bhargava argued that the Deputy Labour
Commissioner, Agra Region, Agra was
himself exercising delegated powers by the
State Government and it is well settled that
a delegatee cannot further delegate the
power delegated upon him.

Analysis of Rival Contentions

20. There are various aspects of this
matter. One is the validity of reference
made
by
the
Assistant
Labour
Commissioner which aspect has already
been dealt with by this Court in its order
dated 23.01.2017 passed in Writ-C
No.52182 of 2011 in which following
notification
and
schedule
was
considered:-

"[263] English translation of
Shram
Anubhag-2,
Noti.No.2513
(III)
XXXVI-2-155 (SM)-90, dated August 29,
1990, published in the U.P. Gazette, Extra,
Part , Section (kha), dated 29th August,
1990, pp.2-3

In exercise of the powers under
Section 11-A of the U.P. Industrial
Disputes Act, 1947 (U.P. Act No.28 of
1947), the Governor is pleased to direct
that the powers exercisable by the State
Government under Section 4-K of the said
Act, in relation to disputes regarding
dismissal, retrenchment of termination of
services of an individual workman as
contemplated under Section 2-A of the said
Act shall be exercisable also by the officers
mentioned in column 2, within the area
mentioned against their names in column 3
of the schedule given below:

SCHEDULE
Sl. No. Name of the officer Area
of
jurisdiction
1.
Additional Labour
Commissioner,
at
Head Quarters
Whole State
2.
Additional/ Deputy
Labour
Commissioner,
Kanpur
Region,
Kanpur
Kanpur
(Nagar),
Kanpur
(Dehat),
Etawah,
Farrukhabad
and
Unnao
districts
3.
Deputy
Labour
Commissioner,
Agra Region, Agra
Agra,
Firozabad,
Aligarh, Etah,
Mainpuri and
Mathura
districts
4.
Deputy
Labour
Commissioner,
Allahabad,
Pratapgarh
8 All. Dinesh Pal Singh Vs. Presiding Officer, Industrial Tribunal, Agra & Ors.
1523
Allahabad Region,
Allahabad
and
Fatehpur
districts
5.
Deputy
Labour
Commissioner,
Kumaun
Region,
Haldwani
(Nainital)
Nainital,
Almora
and
Pithoragarh
districts
6.
Deputy
Labour
Commissioner,
Garhwal
Region,
Dehradun
Dehradun,
Chamoli,
Garhwal
(Pauri), Tehri
Garhwal
and
Uttar
Kashi
districts
7.
Additional/ Deputy
Labour
Commissioner,
Ghaziabad Region,
Ghaziabad
Bulandshahar
and Ghaziabad
districts
8.
Deputy
Labour
Commissioner,
Gorakhpur Region,
Gorakhpur
Gorakhpur,
Basti,
Siddharth
Nagar, Deoria,
Azamgarh,
Mau
and
Mahrajganj
districts
9.
Deputy
Labour
Commissioner,
Jhansi
Region,
Jhansi
Jhansi,
Lalitpur,
Banda,
Hamirpur and
Jaluan districts
10.
Deputy
Labour
Commissioner,
Bareilly
Region,
Bareilly
Bareilly,
Badaun,
Pilibhit
and
Shahjahanpur
districts
11.
Deputy
Labour
Commissioner,
Meerut
Region,
Meerut
Meerut,
Muzaffarnagar,
Saharanpur
and Haridwar
districts
12.
Deputy
Labour
Commissioner,
Moradabad Region,
Moradabad
Moradabad,
Rampur
and
Bijnor districts
13.
Deputy
Labour
Commissioner,
Mirzapur
Region,
Pipri
Mirzapur and
Sonbhadra
districts
14.
Deputy
Labour
Commissioner,
Faizabad
Region,
Faizabad
Faizabad,
Bahraich,
Barabanki,
Gonda
and
Sultanpur
districts
15.
Deputy
Labour
Commissioner,
Lucknow
Region,
Lucknow
Lucknow,
Hardoi, Kheri,
Rae Bareli and
Sitapur
districts
16.
Additional/ Deputy
Labour
Commissioner,
Varanasi
Region,
Varanasi
Varanasi,
Ghazipur,
Ballia
and
Jaunpur
districts.

21. Therefore, it is clear that it was
Deputy Labour Commissioner, Agra Region,
Agra only who was competent to make a
reference and, hence, reference made by the
Assistant Labour Commissioner was found to
be without jurisdiction and even if the matter
was remanded to the Industrial Tribunal for
dealing with the objection to the aforesaid
effect, the Industrial Tribunal, by its order
dated 13.04.2017 passed in the case of
Prabhat Kumar, held that the Assistant
Labour Commissioner had no jurisdiction to
make a reference.

22. Though, learned counsel for the
petitioner has argued that writ petition filed
1524 INDIAN LAW REPORTS ALLAHABAD SERIES
by Prabhat Kumar against the order dated
13.04.2017 is still pending, mere pendency
of the writ petition does not impress the
Court about validity of the reference made
by the Assistant Labour Commissioner and
I am not inclined to take a different view
what has been taken by this Court in its
judgment in the case of Prabhat Kumar or
by the Tribunal, after remand, as there is no
other material before the court to form an
opinion contrary to the aforesaid finding on
the reference being without jurisdiction.

23. I also find that the Company had
taken a specific plea in its written statement
dated 02.01.2008 filed before the Industrial
Tribunal that the reference made by Sri S.P.
Shukla as Assistant Labour Commissioner,
Aligarh was without jurisdiction and
without any authority and, therefore, the
Tribunal could not proceed with the case.
For a ready reference, paragraph no.24 of
the
said
written
statement
is
being
reproduced herein below:-

"24. That the reference has been
made by Sri S.P. Shukla as D.L.C., Aligarh in
exercise of powers under G.O. 2513 dated
29.08.1990 whereas the D.L.C., Aligarh is not
one of them and the said exercise is without
jurisdiction and without any authority and this
Tribunal cannot proceed with the case.

24. Learned counsel for the petitioner
has strongly opposed the submission of the
learned
counsel
for
the
respondentcompany with regard to jurisdictional
aspect in relation to the power to make
reference in the present case and he has
placed reliance upon following authorities
in this regard:-

(i) H.R. Sugar Factory Vs. State
of Uttar Pradesh, 1996 SCC Online All
793;

(ii)
Swadeshi
Polytex
Ltd.
Labour Court, U.P., 1992 SCC OnLine All
558;

(iii) Laxmibai Vs. Bhagwantbua,
(2013) 4 SCC 97;

(iv) Sardar Amarjit Singh Kalra,
Vs. Pramod Gupta, (2003) 3 SCC 272.

25. Placing reliance on the aforesaid
authorities, it has been argued that the
Industrial Dispute Act is meant to resolve
the disputes expeditiously and the practice
of dragging a workman from court to court
for adjudication of peripheral issues,
avoiding decision on issues more vital
would be a condemnable approach. It has
further been argued that taking preliminary
objections by the employer has become a
fashion and delaying decision on the real
disputes for years and sometimes for
decades would be contrary to the spirit of
the Act, 1947 and, hence, the submission of
the respondent-company regarding alleged
incompetence of reference should be turned
down.

26. I have considered the aforesaid
submissions of the learned counsel for the
petitioner, however, I am not inclined to
accept the same for the simple reason that
competence
of
Assistant
Labour
Commissioner, Agra to make a reference is
of significance in the present case,
particularly, when it has already been
agitated before this Court and dealt with in
its order dated 23.01.2017 passed in Writ-C
No.52182 of 2011 and, thereafter, by the
Tribunal itself in its order dated 13.04.2017
holding that the aforesaid officer had no
power to make a reference.

27. The judgment in this petition can
end on this point alone holding that the
8 All. Dinesh Pal Singh Vs. Presiding Officer, Industrial Tribunal, Agra & Ors.
1525
Assistant Labour Commissioner had no
jurisdiction to refer the dispute, however,
since arguments on merits have been heard
at length and the court feels it necessary to
deal with the same, I proceed to consider
the arguments advanced by both sides on
other aspects of the case also.

Scope of Reference

28. A perusal of reference shows that
it was made to the effect as to whether
termination of services of the petitioner
was according to law and if not, what
relief/damages the petitioner was entitled
to. No reference was made with respect to
"unfair labour practices" allegedly adopted
by the respondent-company.

29. In this regard, learned counsel for
the
respondent-company
has
placed
reliance upon the judgment of the Supreme
Court in the case of Mukund Ltd. Vs.
Mukund Staff and Officers' Association,
(2004) 10 SCC 46 in which the Apex Court
has held that the dispute referred to by the
order of Reference is only in respect of
workmen employed by the appellantCompany. It is, therefore, clear that the
Tribunal, being a creature of the Reference,
cannot adjudicate matters not within the
purview of the dispute actually referred to
it by the order of Reference. In the facts
and circumstance of the present case, the
Tribunal could not have adjudicated the
issues of the salaries of the employees who
are not workmen under the Act nor could it
have covered such employees by its award.

30. Further reliance has been placed
upon in the case of Telco Convoy Drivers
Mazdoor Sangh and another Vs. State of
Bihar and others, (1989) 3 SCC 271,
laying down the same ratio. Identical ratio
has been laid down in the case of M/s Tata
Iron and Steel Co. Ltd. Vs. State of
Jharkhand and others, (2014) 1 SCC 536.

31. Similar view has been taken by
the Delhi High Court while deciding Civil
Writ No.1109 of 1995, Eagle Fashions Vs.
Secretary (Labour) & others in which it
has been held that where the factum of
employment and termination itself were in
dispute, the reference could not have been
framed presuming employment and its
termination.

32. The aforesaid decisions have been
relied upon by this Court in its judgment
dated
14.03.2019
passed
in
Writ-C
No.14416 of 1998 (Malloys India Agra Vs.
Presiding Officer Labour Court Agra and
another).

33. Further reliance has been placed
upon the judgment of this Court in the case
of Rajendra Prasad Mishra Vs. Union of
India and another (Civil Misc. Writ
Petition No.5714 of 2009, decided on
03.02.2009) in which also it has been held
that the scope of reference was different
from the nature of plea raised and hence it
was irrelevant to the main controversy.

34.

Learned
counsel
for
the
respondent-company has also relied upon
the judgment of Madras High Court in the
case
of
K.
Manikam
Vs.
The
Management, Tamil Nadu Electricity
Board
and
another
(Writ
Petition
No.21278 to 21280 of 2018 decided on
14.10.2022): 2023 LLR 66 in which it has
been held that the scope of Section 2A of
the Act, 1947 is restricted to only see if
the dismissal, termination or retrenchment
is just and valid and the scope does not
cover
other
aspects
including
regularization and permanent absorption.
1526 INDIAN LAW REPORTS ALLAHABAD SERIES

35.

Learned
counsel
for
the
respondent has also relied upon a decision
of Apex Court in the case of Madhyamik
Shiksha Parishad, U.P. Vs. Anil Kumar
Mishra and others: (2005) 5 SCC 122 in
which it has been held that the completion
of 240 days' work does not, under that law
import the right to regularisation. It merely
imposes
certain
obligations
on
the
employer at the time of termination of the
service. It is not appropriate to import and
apply that analogy, in an extended or
enlarged form here.

36. Further reliance has been placed
upon a decision of this Court in the case of
B.K. Sharma Vs. State of U.P and others:
1976 Labour Industrial Tribunal 1092 in
which it has been held that under the
provisions of Section 2-A of the Central
Act even an individual dispute is deemed
to be an industrial dispute and the State
Government is empowered to refer even
an individual dispute for adjudication but
before an individual dispute can be
referred to be adjudicated upon the
Labour Court the condition precedent as
laid down in Section 2-A must be
fulfilled. Section 2-A contemplates a
dispute
arising
out
of
discharge,
dismissal, retrenchment or termination of
an individual workman and it further
includes
any
dispute
or
difference
between
the
workman
or
employer
connected with or arising out of such
discharge, dismissal retrenchment or
termination.
The
section
does
not
contemplate any dispute relating to other
service conditions in relation to an
individual
workman.
The
legislature
intended that any dispute arising out of
dismissal, discharge or termination or any
matters
connected
therewith
of
an
individual workman should be treated as
industrial dispute.

37. Further reliance has been placed
upon another decision of this Court in the
case of Baij Nath Bhattacharya Vs. The
Labour Court, Allahabad and another
(Civil Misc. Writ Petition No. 16454 of
1985, decided on 02.05.1994) in which it
has been held that before a workman can be
considered to have completed one year of
continuous service in an Industry it must be
established as a fact that he was employed
for a period not less than 12 calendar
months and, next that during those calendar
months had actually worked for not less
than 240 days. In the present case, as per
his own case, the petitioner has not all been
employed for a period of 12 months.

38. In so far as Entry 10 of Schedule5 is concerned, reliance has been placed by
respondent-employer upon judgment of this
Court in Hindustan Lever Limited Vs.
Industrial Tribunal IV, New Agra and
another: 2007 (115) FLR 76 in which it
has been held that before an action can be
termed as an unfair labour practice it would
be necessary for the Labour Court to come
to a conclusion that the badlis, casuals and
temporary workmen had been continued for
years as badlis, casuals or temporary
workmen, with the object of depriving
them of the status and privileges of
permanent workmen. To this has been
added the judicial gloss that artificial
breaks in the service of such workmen
would not allow the employer to avoid a
charge of unfair labour practice. However,
it is the continuity of service of workmen
over a period years which is frowned upon.
Besides, it needs to be emphasised that for
the practice to amount to unfair labour
practice it must be found that the workman
had been retained on a casual or temporary
basis with the object of depriving the
workman of the status and privileges of a
permanent workman.
8 All. Dinesh Pal Singh Vs. Presiding Officer, Industrial Tribunal, Agra & Ors.
1527

39. In view of the aforesaid law, I find
that "unfair labour practices" was not under
consideration before the Tribunal and it
was beyond the scope of reference. Even if
the action of the respondent-company is
analyzed from the angle of alleged "unfair
labour practices", learned counsel for the
respondent-company
has
referred
to
various appointment letters issued to the
petitioner all of which are identical in
nature. One such letter of appointment is
being referred to herein below:-

"Date 31.05.1994

D-0145

Mr. Dinesh Pal Singh

S/o Mr. Ram Singh

Dear Sir,

We are pleased to offer you
temporary employment as a Temporary
Clerk III with effect from. 01.06.1994 on
these terms and conditions :

1. You will be paid at the rate of
Rs.
105/-
p.m.
plus
Dearer
Living
Allowance at the applicable rate.

2. Your services shall stand
automatically terminated on 07.07.1994.
However your services are liable to
termination without notice or without
assigning any reason even before this
date.

3. You will observe the company's
Rules and Regulations for the time being in
force and as varied from time to time.

If these terms and conditions of
service are acceptable to you please signify
your
acceptance
of
this
temporary
appointment by signing and returning the
copy of this letter."

40. It is also necessary to refer to one
of the extension letters whereby services of
the petitioner were extended and it is
reproduced herein below:-

"Dated: 05/07/1994

Extension letter

Employee No.: D0145 (13390)

MR DINESH PAL SINGH

S/O MR RAM SINGH

Aligarh

Dear Sir,

With reference to our letter dated
31.05.1994 we take pleasure in advising
you that we are extending your temporary
services upto 07TH AUGUST, 1994 on
which date your services will stand
automatically terminated. Your services,
however, may be terminated without notice
even before this date."

41. A perusal of the appointment
letter shows that the company had offered
to the petitioner temporary employment
with effect from 01.06.1994 with a clear
stipulation that his services shall stand
automatically terminated on 07.7.1994. The
letter of appointment contained clear recital
to the following effect:-

"If these terms and conditions of
service are acceptable to you please signify
your
acceptance
of
this
temporary
appointment by signing and returning the
copy of this letter."

42. There is no dispute about the fact
that the petitioner accepted the terms and
conditions
of
appointment
and
also
extended services. Therefore, the question
arises as to whether issuance of such kind
of appointment letters, in itself, amounts to
1528 INDIAN LAW REPORTS ALLAHABAD SERIES
"unfair labour practices" as per Clause-10
of the 5th Schedule of the Act, 1947. In this
regard, learned counsel for the respondent
has relied upon judgment of the Bombay
High Court in the case of Bajaj Auto Ltd,
Akurdi, Pune Vs. R.P. Sawant and others:
2000 (84) FLR 524 in which it has been
held that every employment need not
necessarily be of permanent nature and it
can be casual, badli or temporary also.
None of such employments by itself is an
unfair labour practice. To attract the Item 6,
such employment should continue for years
with the object of depriving them of the
status
and
privileges
of
permanent
employees.

43. The Bombay High Court in the
case of Bajaj Auto Ltd (supra) has held
that the industrial law can never be
oblivious of these normal and usual
occurrences in the industries. None can
deny temporary seasonal increase in work
would require more temporary hands to
meet the situation. We also cannot be blind
to the fact that at least for a temporary
period unemployed people would get
employment and solve their problem of
bread if not butter. And furthermore, how
can we force the employer to continue
these temporary employees on permanent
basis after his needs are completed and if
there is no work available for them? Had it
been so, it would have adverse effect as no
employer would offer any temporary
employment and he might better not accept
increased orders and would remain satisfied
with what he has. A kind of stagnation in
the society would come to stay. Our
industrial wheels would be on slow motion.
Such a situation would have very serious
repercussions in the long run. Besides, the
legislature has not been unaware of the fact
that every industry has its own season for
increase or reduction in the demands
resulting in increase or reduction in the
requirement of the number of employees. It
is, therefore, not possible to hold that
temporary employment for every seasonal
increase in the industrial activities is also
an unfair labour practice.

44.