# Dr. Bal Krishna Agrawal v. State of U.P

- **Citation:** (2002) 3 ILRA 937
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-11-15
- **Case number:** Special Appeal No. 743 of 1996
- **Bench:** S.K. Sen, C.J. R.K. Agrawal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-bal-krishna-agrawal-v-state-of-u-p-40039
- **Pages:** 6

## Headnote

Constitution
of
India-
Article
226-
Alternative
Remedy-
Writ
Petition
pending for last 9 to 15 years- counterRejoinder
affidavits
have
been
exchanged-
arbitrary
action
of
the
authorities under challenged- can not be
dismissed on alternative ground.

Held- Para 8

Learned counsel for the parties we find
that the appellant U.P. State Spinning
Company Ltd. is a State Government
undertaking and is fully controlled by the
State of U.P. It thus falls within the term
'State' within the meaning of Article 12
of the Constitution of India. Thus any of
its
action
which
is
arbitrary
and
unreasonable can be challenged by an
aggrieved person by invoking jurisdiction
under Article 226 of the Constitution of
India. In the present case the writ
petition was filed in the year 1987 and
remained pending for 9 long years.
Counter
affidavits
and
rejoinder
affidavits had been exchanged between
the parties. Therefore, after such a long
gap
relegating
respondent
writ
petitioners to raise an industrial dispute
and dismissing the writ petition on the
ground of alternative remedy would not
be just and proper. In this connection
reference may be made to the two
decisions of the Hon'ble Supreme Court
namely Lala Hridaya Narayan Vs. Income
Tax Officer AIR 1971 S.C. page 33 and
Dr. Bal Krishna Agrawal Vs. State of U.P.
and others 1995 A.L.J. 454 which have
been followed by us in the case of
Pradeep Kumar Singh (supra). So far as
the question that the respondent writ
petitioner workmen and can raise an
industrial dispute under the Industrial
Disputes
Act
is
concerned,
all
the
decisions relied upon by Shri V.B. Singh
have been considered by us in the case
of Pradeep Kumar Singh (supra) and it
has been held that alternative remedy is
not a bar where a writ petition has been
filed alleging violation of principle of
natural justice.
Case law discussed:
AIR 1975 SC-2238
AIR 1996 SC-469
J.T. 1998 (8) Sc-204
2002 (92) FLR 1159
1991 (2) UPLBEC- 898 (FB)
1998 (80) FLR-189
1997 (76) FLR-372
1969 (1) LLJ-734
2001 (3) UPLBEC-2571

## Text

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3 All] U.P. State Spinning Co. Ltd. V. R.S. Pandey and another 937
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.11.2002

BEFORE
THE HON'BLE S.K. SEN, C.J.
THE HON'BLE R.K. AGRAWAL, J.

Special Appeal No. 743 of 1996

U.P. State Spinning Company Ltd.

 ...Appellant
Versus
Shri R.S. Pandey and another

 ...Respondents

Counsel for the Appellant:
Sri V.B. Singh
Sri Vijay Sinha

Counsel for the Respondents:
Sri R.N. Singh
Sri G.K. Singh
Sri V.K. Singh

Constitution
of
India-
Article
226-
Alternative
Remedy-
Writ
Petition
pending for last 9 to 15 years- counterRejoinder
affidavits
have
been
exchanged-
arbitrary
action
of
the
authorities under challenged- can not be
dismissed on alternative ground.

Held- Para 8

Learned counsel for the parties we find
that the appellant U.P. State Spinning
Company Ltd. is a State Government
undertaking and is fully controlled by the
State of U.P. It thus falls within the term
'State' within the meaning of Article 12
of the Constitution of India. Thus any of
its
action
which
is
arbitrary
and
unreasonable can be challenged by an
aggrieved person by invoking jurisdiction
under Article 226 of the Constitution of
India. In the present case the writ
petition was filed in the year 1987 and
remained pending for 9 long years.
Counter
affidavits
and
rejoinder
affidavits had been exchanged between
the parties. Therefore, after such a long
gap
relegating
respondent
writ
petitioners to raise an industrial dispute
and dismissing the writ petition on the
ground of alternative remedy would not
be just and proper. In this connection
reference may be made to the two
decisions of the Hon'ble Supreme Court
namely Lala Hridaya Narayan Vs. Income
Tax Officer AIR 1971 S.C. page 33 and
Dr. Bal Krishna Agrawal Vs. State of U.P.
and others 1995 A.L.J. 454 which have
been followed by us in the case of
Pradeep Kumar Singh (supra). So far as
the question that the respondent writ
petitioner workmen and can raise an
industrial dispute under the Industrial
Disputes
Act
is
concerned,
all
the
decisions relied upon by Shri V.B. Singh
have been considered by us in the case
of Pradeep Kumar Singh (supra) and it
has been held that alternative remedy is
not a bar where a writ petition has been
filed alleging violation of principle of
natural justice.
Case law discussed:
AIR 1975 SC-2238
AIR 1996 SC-469
J.T. 1998 (8) Sc-204
2002 (92) FLR 1159
1991 (2) UPLBEC- 898 (FB)
1998 (80) FLR-189
1997 (76) FLR-372
1969 (1) LLJ-734
2001 (3) UPLBEC-2571

(Delivered by Hon'ble R.K. Agrawal, J.)

1. The present Special Appeal has
been filed by U.P. State Spinning
Company Ltd., against the judgment and
order dated 27.8.1996 passed by the
learned Single Judge in C.M. Writ
Petition No. 15027 of 1987 whereby the
learned Single Judge had allowed the writ
petition and had quashed the order of
termination
dated
1.12.1987
passed
against the respondent writ petitioner no.
1 and 4.1.1988 passed against the
respondent writ petitioner no. 2.
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938 INDIAN LAW REPORTS ALLAHABAD SERIES [2002

Briefly stated the facts giving rise to
the present special appeal are as follows:-

2. The two respondents writ
petitioners while working in the U.P.
State Spinning Company Ltd., Maunath
Bhanjan District Azamgarh, made a claim
of 15% of the basic pay as interim relief
as was being paid to the officer and
clerical staff of the Head quarter as there
was no reason for refusing the said relief
to the staff of Maunath Bhanjan Unit of
the appellant Mills. They also submitted a
memorandum representing the clerical
staff of the Mills. It appears that
respondent writ petitioner no.2 met the
Chief Executive Officer of the Azamgarh
Unit regarding the said demand, who,
however, it is alleged threatened him with
serious consequences including transfer,
termination and other harms unless he
withdrew
the
said
demand.
Being
apprehensive
the
respondent
writ
petitioners approached this Court by filing
C.M.Writ Petition No.15027 of 1987 with
the following reliefs:
(a) to issue a writ, order or direction
restraining
the
respondents
from
transferring, terminating the services of
the petitioners and harassing and causing
an harm to the petitioners;
(b) issue a writ, order or direction
directing the respondents to pay 15% of
the basic pay as interim relief and fixed
D.A. of Rs.100/- to the clerical staff of the
Maunath Bhanjan Unit Mills;
(c) issue any other suitable writ, order or
direction which this Hon'ble Court may
deem fit and proper in the circumstances
of the case; and
(d) to award cost of this writ petition to
the petitioners against the contesting
respondents.

While the writ petition was pending
several applications were filed by the
respondent
writ
petitioners
for
amendment
of
the
writ
petition
incorporating the various facts and reliefs.
Altogether 5 applications for amendment
were filed Considering the contents of the
writ petition including its prayer, the
learned
Single
Judge
allowed
the
amendment applications which related to
dismissal
of
the
respondent
writ
petitioners. The learned Single Judge
found that the notice to show cause was
alleged to have been refused by the
respondent writ petitioner no. 1 when sent
by
the
appellant
on
21.11.1987,
whereafter the same show cause notice
was sent on 23.11.1987 by registered post
which was received by the respondent
writ petitioner no. 1 on 26.11.1987. The
respondent writ petitioner no. 1 sent his
reply to the show cause notice on
26.11.1987 i.e. immediately the next day
by registered post which was received by
the appellant on 2.12.1987. However a
final order was passed on 1.12.87
dismissing the respondent writ petitioner
no. 1 from service. The learned Single
Judge held that sending of reply by the
respondent writ petitioner no. 1 to the
appellant by registered post was not in
any way irregular. In the back ground of
threat extended by the appellant and time
to
time
again
threat
of
transfer,
suspension and disciplinary proceedings
fully justify the sending of reply by
registered post. The delay in receiving of
such reply was not for the fault of the
respondent
writ
petitioner
no.1
as
admittedly he sent the reply on the very
next day of receiving show cause notice.
Further the delay of 5, 6 days by postal
authority to reach the reply to the
appellant cannot be treated as a gross
delay justifying them to complete the
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3 All] U.P. State Spinning Co. Ltd. V. R.S. Pandey and another 939
proceedings on 1.12.1987 when the
termination order was being passed and
no reason or urgency have been shown in
not waiting for a few days for receiving
reply to the show cause notice and the
whole proceedings appears to have been
completed within a very short span of
about 10 days. The learned Single Judge
held that the appellant have failed to
produce any material on record to justify
such a hurry and thus for no fault of the
respondent writ petitioner no.1 and there
being no delay at all on his part, his reply
to the show cause notice could not even
be considered by the appellant. In the
circumstances the order of termination
was quashed. So far as the respondent
writ petitioner no. 2 is concerned, the
learned Single Judge however has held
that his services were terminated vide
order dated 4.1.1988 for the sole reason
that he did not join the transferred place at
Akbarpur. The order of termination was
published in the news paper dated
4.1.1988. The learned Single Judge held
that the appellants have not disclosed any
material showing that any show cause
notice in respect of the allegations of not
joining the transferred post was ever
served upon the respondent writ petitioner
no. 2. In these circumstances the order of
termination dated 4.1.1988 was also
quashed.

3. We have heard Shri V.B. Singh
learned Senior Counsel assisted by Shri
Vijay Sinha Advocate on behalf of the
appellant and Shri R.N. Singh, learned
Senior counsel assisted by Shri G.K.
Singh on behalf of the respondent writ
petitioners.

4. Shri V.B. Singh, learned Senior
counsel submitted that the respondent writ
petitioners had filed the writ petition
before
this
Court
when
order
of
termination was not in existence, as the
order of termination came to be passed
subsequently which could not have been
challenged
by
way
of
amendment
application in the writ petition and instead
if at all could have been challenged by a
separate
writ
petition.
He
further
submitted that against the order of
termination
the
respondents
writ
petitioner
no.
1
had
an
adequate
alternative remedy of raising an Industrial
dispute under the provisions of Industrial
Disputes Act, and thus the writ petition
itself was not maintainable. He further
submitted that the charge sheet was issued
in the month of August, 1987 and the
enquiry was concluded on 2.11.1987 and
the second show cause notice was not at
all required in a domestic enquiry.
However the show cause notice was
published on 25.11.1987 in the news
paper instead of sending a reply by hand
as the respondent writ petitioner no. 1
resided in the staff quarter in the Mill
premises. The respondent writ petitioner
no.1 chose to send the reply by registered
post and the reply did not reach the
appellant within the stipulated time and
therefore the appellant was justified in
passing the order of termination. He
further submitted that that under the
Industrial law if the Labour Court comes
to the conclusion that the domestic
enquiry is vitiated, the Employer have a
right to lead evidence to show that the
order of termination is justified on the
materials which may be placed on record.
He thus submitted that the appellants have
been denied the right to prove the charges
leveled against the respondent writ
petitioners which they could have done
before the Labour Court, even if the
enquiry was held to be improper or
vitiated. He further submitted that the
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940 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
order of termination passed against the
workmen cannot be set aside under
Article 226 of the Constitution of India on
the ground that proper enquiry was not
held and principle of natural justice has
not
been
complied
with
and
the
respondent writ petitioners have not
suffered any prejudice. He relied upon the
following decisions for the proposition
that proper remedy is to raise an Industrial
Dispute and recourse to Article 226 of the
Constitution of India is not proper.

1. The Premium Automobile Ltd. Vs.
Kamlakar Shanta Ram Wadke and
others A.I.R. 1975 S.C.2238.

2. Rajasthan
Road
Transport
Corporation
and
another
Vs.
Krishna Kant and others A.I.R.
1996 S.C.469.

3. Scooters India Ltd. and others Vs.
Vijay E.V. Eldred JT 1998 (8) S.C.
page 204.

4. Chandrakant Tukaram Nikam and
others Vs. Municipal Corporation
of Ahmedabad and another 2002
(92) F.L.R. 1159.

5. Chandrama Singh Vs. Managing
Director U.P. Cooperative Union
Lucknow and others 1991 (2)
UPLBEC 898 FB.

6. Dharam Veer Singh and others Vs.
State of U.P. 1998 (80) F.L.R. page
189.

5. He further submitted that there is
no requirement to supply the enquiry
report before terminating the service. In
support thereof he relied upon a decision
of this Court in the case of M/s J.K.
Cotton Spinning and Weaving Mills Co.
Ltd. Kanpur Vs. State of U.P. and others
1998 (76) FLR page 372. So far as giving
of second show cause notice he relied
upon a decision of Supreme Court in the
case of Shahdara (Delhi)- Saharanpur
Light
Railway
Company
Ltd.
Vs.
Shahdara Saharanpur Railway Workers'
Union 1969 (1) LLJ 734. He also relied
upon a decision of the Hon'ble Supreme
Court in the case of United Planters
Association of Southern India Vs. K.G.
Sangameshwaran and another 1997 (4)
S.C.C. 741 and submitted that even if
there is omission to afford opportunity of
hearing during domestic enquiry it can be
cured by adducing evidence before the
appellate authority in support of the
charges which culminated in dismissal of
the person concerned.

6. Shri R.N. Singh, learned Senior
counsel however submitted that the writ
petition was filed on 3.8.1987 when the
order of termination was not in existence.
The order of termination was passed
subsequently on 1.12.87 and 4.1.88 in
respect of the two respondent writ
petitioners which was challenged by way
of
an
amendment
application.
He
submitted
that
U.P.
State
Spinning
Company Ltd. is a State Government
undertaking and is fully controlled by the
State Government, thus it comes within
the definition of the word 'State' within
the meaning of Article 12 of the
Constitution of India and any arbitrary
action of the appellant U.P. State
Spinning Mills Company Ltd. can be
challenged before this Court under Article
226 of the Constitution of India. He
further submitted that the appellant had
acted arbitrarily in terminating the service
of the respondents writ petitioners without
even considering their reply. It is not in
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3 All] U.P. State Spinning Co. Ltd. V. R.S. Pandey and another 941
dispute that the show cause notice was
served upon the respondent writ petitioner
no. 1 on 25.11.1987. The show cause
notice was issued on 21.11.87 which is
alleged to have been refused by the
respondent writ petitioners and was again
sent on 23.11.87 by registered post. The
respondent writ petitioner no. 1 had given
his reply by registered post on 26.11.1987
which was received by the appellant on
2.12.1987 i.e. within 5 days instead of
waiting for a reasonable period the
appellant for the reason best known to
them hastily passed an order terminating
the services on 1.12.87 which itself
speaks
of
the
arbitrary
and
high
handedness action.

7. The writ petition remained
pending for about 9 years and about 15
years have lapsed now and if this Court
relegates the respondent writ petitioners
to raise Industrial disputes, it will be
causing huge irreparable injury. He thus
submitted that this Court should decide
the controversy on merits. In support of
his plea he relied upon a decision of a
Division Bench of this Court in the case
of Pradeep Kumar Singh Vs. U.P. State
Sugar Corporation and another reported in
2001 (3) UPLBEC 2571 wherein this
Court had held that where an order has
been passed in gross violation of principle
of natural justice and the Employer falls
within ambit of 'State' within the meaning
of Article 12 and the writ petition was
pending for 5 years it should not have
been
dismissed
on
the
ground
of
alternative remedy of raising a dispute
before the Labour Court. He further
submitted that appellant being a State is
expected to act in a reasonable manner
and not arbitrarily and if the action of the
State is unreasonable or arbitrary, it is
violative of Article 14 of the Constitution
of India and therefore the aggrieved
person in the present case the respondent
writ petitioners are well within their right
to invoke the jurisdiction of this Court
under Article 226 of the Constitution of
India.

8. Having heard the learned counsel
for the parties we find that the appellant
U.P. State Spinning Company Ltd. is a
State Government undertaking and is
fully controlled by the State of U.P. It
thus falls within the term 'State' within the
meaning of Article 12 of the Constitution
of India. Thus any of its action which is
arbitrary
and
unreasonable
can
be
challenged by an aggrieved person by
invoking jurisdiction under Article 226 of
the Constitution of India. In the present
case the writ petition was filed in the year
1987 and remained pending for 9 long
years. Counter affidavits and rejoinder
affidavits had been exchanged between
the parties. Therefore, after such a long
gap relegating respondent writ petitioners
to
raise
an
industrial
dispute
and
dismissing the writ petition on the ground
of alternative remedy would not be just
and proper. In this connection reference
may be made to the two decisions of the
Hon'ble Supreme Court namely Lala
Hridaya Narayan Vs. Income Tax Officer
AIR 1971 S.C. page 33 and Dr. Bal
Krishna Agrawal Vs. State of U.P. and
others 1995 A.L.J. 454 which have been
followed by us in the case of Pradeep
Kumar Singh (supra). So far as the
question
that
the
respondent
writ
petitioner are workmen and can raise an
industrial dispute under the Industrial
Disputes Act is concerned, all the
decisions relied upon by Shri V.B. Singh
have been considered by us in the case of
Pradeep Kumar Singh (supra) and it has
been held that alternative remedy is not a
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942 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
bar where a writ petition has been filed
alleging violation of principle of natural
justice. It is not necessary to refer and to
discuss the various decisions relied upon
by Shri V.B. Singh, learned Senior
Counsel in regard to raising the plea of
alternative remedy. Thus the preliminary
objection raised by Shri V.B. Singh,
learned
Senior
Counsel
cannot
be
sustained.

9. So far as the question that a
second show cause notice is not required
or the copy of the enquiry report is not to
be given or before the Labour Court the
Employer has a right to adduce evidence
to prove the charges where the domestic
enquiry is held to be improper is
concerned, suffice is to mention here that
the learned Single Judge has simply set
aside the order of termination on the
ground that the same have been passed in
a hasty manner without even considering
the reply which was sent by the
respondent writ petitioners no.1 by
registered post on 26.11.87 immediately
the next day of receiving the show cause
notice. The Court has not prohibited the
Employer from considering the reply and
passing an order afresh in accordance
with law. So far as the respondent writ
petitioners no.2 is concerned we find that
there is no material on record to show that
he was given any opportunity or any show
cause notice, but straight away the order
of termination has been passed and
published in the news paper. The entire
action in passing the order of termination
was taken in a haste and in an arbitrary
manner. The appellant being a State is
expected to act in a just and reasonable
manner. Since we have held that the
impugned order of termination has been
passed in gross violation of the principles
of natural justice and in a hasty manner
and the writ petition was maintainable, it
is not necessary to refer to the various
decisions cited by Sri V.B. Singh
regarding the necessity of giving second
show cause notice and the right of the
employer to adduce evidence before the
Labour Court to justify the punishment.

In view of the foregoing discussions,
we do not find any merit in this Special
Appeal and it is hereby dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD NOVEMBER 23, 2002

BEFORE
THE HON'BLE S.K. SEN, C.J.
THE HON'BLE R.K. AGARWAL, J.

Special Appeal No. 404 of 2002

State of U.P. and others
...Applicants
Versus
Anant Kumar Tiwari and others

 ...Respondents

Counsel for the Appellants:
Sri R.N.Singh
Sri A.P. Shahi
Sri P.S. Baghel
Sri M.D. Singh Shekhar
Sri K.R. Singh
Sri Ashok Mehta
Sri U.N. Pandey

Counsel for the Respondent:
Sri Shailendra

Constitution
of
India,
Article
226-
Appointment of Special B.T.C. Teacher-
candidate
being
B.
Ed./LT
applied-
persuent to advertisement providing
preparation
of
list
on
state
leval-
subsequently during election process- by
amended
G.O.
prescribed
mode
of
preparation of selected list - on District
wise- after declaration of result validity