# Dr. H.P. Adhikari v. Chancellor, S.S.University & others

- **Citation:** (1999) 2 ILRA 84
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1999
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-h-p-adhikari-v-chancellor-s-s-university-others-39346
- **Pages:** 7

## Text

THE INDIAN LAW REPORTS [1999
84
teaching jobs to Indian nationals. At present a large number of
Indians are teaching in American British and other foreign
Universities, and we should emulate the example of these foreign
countries which appoint the most meritorious persons whenever
available in the world.

8. In the Rigveda it is said let noble thoughts come to us from every
side. In our opinion we should adopt this non-parochial approach in
academic matters also, particularly in centres of higher learning.

9. In our opinion the circular of the Ministry of Human Resources
dated 19.5.94 is arbitrary and it si hereby quashed.

10. There is no provision in the U.P. State Universities Act which
states that only Indians can be appointed in the Universities, Section
31 of the Act does not state that only Indians can be appointed as
teachers. Ofcourse it can be verified whether the foreigner is a
security risk or not or is otherwise unfit, but if there if nothing
against him we see no reason why he should not be appointed in our
centres of higher learning if meritorious.

11. In the circumstances we quash the resolution of the Executive
Council dated 27.11.94 and also quash the order of the Ministry of
Human Resources dated 19.5.94. Petition is allowed.
Petition Allowed.

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1999
------
Dr. H.P.
Adhikari
 Vs.
Chancellor,
S.S.University
& others.
------
M.Katju, J.
Kamal
Kishore, J.
1999
------
January, 28
2 All.] ALLAHABAD SERIES
85

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By the Court

1. This writ petition was heard along with civil Misc. Writ Petition
Nos. 15485 of 1994 and 26104 of 1994.

2. Award dated 12.51993 (Annexure-1 to the writ petition) has been
challenged by the General Manager, Moradebad Dugdh Utpadak
Sangh Ltd. Dalpatpur, Mordabad. The respondent no.4 got a
reference made by the State Government to respondent no. 1 Labour
Court in respect of his claim of reinstatement and back wages on an
allegation that the said respondent no.1 4 had been in employment as
junior electrician under the present writ-petitioner who was made
opposite party no.3 before the Labour Court. The respondent no.2,
the present petitioner and respondent no.3 were made respondents
before the said Labour Court and they filed separate written
statements. After a contested hearing ultimately the Labour Court
passed the impugned award directing reinstatement of the respondent
no 4 and back wages for the period between June, 1991 and the date
of reinstatement.

3. Learned counsel for the petitioner argued four points in support of
the writ petition challenging the said award. The first contention of
the petitioner is that the respondent no. 4 workman approached the
state Government after a long delay and on the said ground the
impugned award could not stand and in support of such contention
reference was made to the case of U.P. State Electricity Board and
others V. P.O Labour Court, Kanpur and others, reported in 1998
(78) F.L.R. 511. The second point argued by the learned counsel for
the petitioner is that the workman concerned did not raise the dispute
before the employer at any stage and, therefore, the reference itself
was bad and the award is liable to be set aside.

4. With regard to the aforesaid two contentions, learned counsel for
the respondents workman contended that both the said questions are
on facts and the said objections had not been ever raised before the
Labour Court. It is further contended that had those points been
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 Vs.
P.O., Labour
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Chakrabarti,J.
THE INDIAN LAW REPORTS [1999
86
raised before the Labour Court the petitioner would have been
getting opportunity to dislodge the said objections proving necessary
facts.

5. Considering the aforesaid two contentions. I find that the learned
counsel for the petitioner could not show from records that such
objection had been raised at any earlier stage. Therefore, I am of the
argument of the respondents with regard to the said contentions of
the petitioner, has force and those being based on facts cannot be
permitted to be raised for the first time in writ Court.

6. Learned counsel for the petitioner made his third contention that
the workman himself is a daily-wager and, therefore, cannot
complain of his retrenchment and in this connection law decided in
the case of Himanshu Kumar Vidyarthi and others v. State of Bihar
and others, reported in 1997 (76) F.L.R.237 has been relied on.
Learned counsel for the respondent workman contended that the said
judgment is per incurrium as it did not take notice of settled law in
respect of the said aspect and the provisions of section 2(g) and
section 25-B of the Industrial Disputes Act.

7. A perusal of the judgment in the case of Himanshu Kumar
Vidyarthi (supra) Shows that in the said case appointments of the
employees there were admitted to have not been to the posts in
accordance with Rules and they were engaged on the basis of need of
the work and in the said admitted factual background their
disengagement from service was held not to be construed as
retrenchment under the Industrial Disputes Act.

8. In the present case in the impugned award finding is that the
workman was employed on the post of junior electrician and on facts
it was found that he completed 240 days' service within a span of
twelve months. Therefore, the judgment in the case of Himanshu
Kumar Vidyarthi (supra) does not apply in the facts of the present
case.

9. Learned counsel for the petitioner made his fourth contention that
the workman concerned here an employee of a cooperative society
could not avail of the remedy provided by the Industrial Dsiputes Act
as the said Act itself does not apply in the case of an employee of a
cooperative society. In support of this contention law has been
referred as decided in the case of Vikramaditya Pandey v. Industrial
Tribunal (2) Lucknow and another reported in 1997 (75)F.L.R.844
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 Vs.
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Court
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Chakrabarti,J.
2 All.] ALLAHABAD SERIES
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and arvind Kumar Agarwal V. State of U.P. and another reported in
1998 (78)F.L.R 440 as also District Co-operative Federation Ltd. V.
The Presiding Officer, Labour Court, Agra and another reported in
1998(78)F.L.R.444.With regard to this contention learned counsel
for the respondent workman contended that the said question was
also not urged before the Labour Court in any manner by the
employer and, therefore, such question cannot be raised for the first
time in writ petition.

10. Although in the oral argument only the aforesaid four points
were raised by the employer-petitioner but in the written argument
filed by the petitioner an additional question was raised as to under
which employer the workman is to get his relief. A perusal of the
records indicates that there is no necessity for any clarification as
reference related to dispute on termination on 30.11.1986 and
admittedly workman was in employment of Infant Milk Food
Factory, Dalpatpur, Moradabad on the date of termination.

11. With regard to contention relating to back wages I find that
nothing has been shown on behalf of the employer that such
contention was raise with sufficient disclosure of facts before the
Labour Court and, therefor, this question also cannot be raised in a
writ proceeding.

12. With regard to the post claimed by the workman a contention
has been raised by the employers as to whether he was holding the
post of plant-operator of junior electrician. At the time of hearing
nothing has been shown clearly relating to the said dispute and,
therefore, I do not find any ground for interference on the said
ground.

13. With regard to contention that forum under the Industrial
Dispute Act is not available for an employee of a co-operative
society, I find that for settlement of dispute forum has been provided
in the U.P. Co-operative Societies Act, 1965. But, in the said
provision though a non-obstante clause has been provided but the
dispute which can be referred for arbitration under the said provision
specially excludes a dispute regarding disciplinary action taken
against a paid servant of a society.

14. On behalf of employer it has been contended that though
notification had not been made in view of section 135 of the Act but
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G.M. M.D.U.S.
S. Ltd.
 Vs.
P.O., Labour
Court
Rampur,&ors
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Chakrabarti,J.
THE INDIAN LAW REPORTS [1999
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the intention of the Legislature is clear from the said section which is
as follows :
"135. Certain Act not to apply to co-operative
societies. The provisions contained in the Industrial
Disputes Act, 1947 (Act XIV of 1947), and the U.P
Industrial Disputes Act (U.P. Act XVIII of 1947),
shall not apply to Co-operative societies."

15. Decision has been arrived by learned single Judge in the case of
Vikramaditya Pandey Vs. Industrial Tribunal reported in 1997(75)
FLR 844 holding that in view of provision of section 135 (although
not notified making it enforced) and of Regulation 103 of U.P. Cooperative Societies Employees Service Regulations,1975 the said
labour laws are not applicable to co-operative employees. The law so
decided has been followed in the case of Arvind Kumar Agarwal vs.
State of Uttar Pradesh reported in the case of 1998(78)FLR 440.

16. The Aforesaid Regulation 103 of the Regulation of 1975 is as
follows:
"103.The provisions of these regulations to the extent
of their inconsistency with any of the provisions of the
Industrial Disputes Act, 1947,U.P. Dookan Aur
Vanmijya Adhishthan Adhiniyam, 1962, Workmen
Compensation Act, 1923 and other labour laws for the
time being in force, if applicable to any co-operative
society of class of co-operative societies, shall be
deemed to be inoperative."

17. The above Regulation has been interpreted in the case of
Vikramaditya Pandey (supra) holding that if there is any
inconsistency between the regulation and the Industrial Disputes
Act,1947 or any other labour law for the time being in force, the
present Regulation shall be applicable and the other laws shall be
deemed to be inoperative."

18. But the same Regulation 103 was considered earlier in the case
of Jai Kishun Vs. U.P. Co-operative Bank Limited reported in
1989(2)UP;BEC 144 wherein Division Bench of this court held that
the said Regulation provides that provision of these Regulations to
the extent of their inconsistency with any other provision of
aforesaid labour law shall be deemed to be inoperative. The Division
Bench also took into consideration that though U.P. Industrial
Disputes Act has not been specifically mentioned in the said
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G.M.M.D.U.S.
S. Ltd.
 Vs.
P.O., Labour
Court
Rampur,&ors
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Aloke
Chakrabarti,J.
2 All.] ALLAHABAD SERIES
89
Regulation 103 but as the said statute is undoubtedly a lobour law for
the time being in force, the Regulation will not be applicable. In
respect of statute relating to co-operative society prevailing in the
State concerned, applicability of provision of Industrial Disputes Act
was considered in the case of Gujarat State co- operative Land
Development Bank Ltd Vs. P.R. Mankad reported in AIR 1979 SC
1203 and the case of R.C.Tiwari Vs. M.P. State Co-operative
Marketing Federation reported in AIR 1997 SC 2652 which indicate
that in the facts of the present case, the labour law becomes
applicable and not the forum provided under the Co-operative
Societies law.

19. With regard to section 135 of U.P. Co-operative Societies Act it
is an admitted position that the said section has not been yet enforced
by a notification and effect thereof has been considered in various
cases decided by this court. Such findings holding that the said
section having not been enforced, there is no exclusion of
jurisdiction of the forum provided by the U.P. Industrial Disputes
Act, had been arrived at in the case of Mauranipur Kisan Sahakari
Sewa Samiti Vs. State of U.P. reported in 1993 UPLBEC 555 and
the case of Sadhan Sanjari Samiti Vs. Presiding Officer reported in
1993(67)FLR 87.

20. In this connection it may also be noticed that the co-operative
society had been held to be industry within the meaning of industrial
law by the seven member constitution Bench of apex court in the
case of Bangalore Water Supply Vs. R. Rajappa reported in
A.I.R.1978 SC 548.

21. In view of aforesaid position in law and in particular a decision
of Division Bench of this court interpreting Regulation 103 also and
being fully in respectful agreement with the said finding, I am of the
opinion that the judgements in support of the contentions of the
employer can not be applied and law which is required to be
followed is that decided by the Division Bench in the case of jai
Kishun (supra) holding that for an employee of a Co-operative
society not the forum provided by Regulation but the forum provided
by labour law prevailing is to be availed of.

22. In view of aforesaid findings, no interference can be made on the
present writ petition and the same is hereby dismissed.

Petition Dismissed.
1999
------
G.M. M.D.U.S.
S. Ltd.
 Vs.
P.O., Labour
Court
Rampur,&ors
------
Aloke
Chakrabarti,J.
THE INDIAN LAW REPORTS [1999
90
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By the Court

1. For quashing the award dated 22.9.1990 passedd by the Labour
Court, Ghaziabad, this writ petition was filed by the employer.

2. Heard Mr. Rakesh Tiwari, learned counsel for the petitioner and
Mr. Shyam Narain, learned counsel for the respondent workman..

3. Learned counsel for the petitioner raised two contentions over and
above raising an objection that the respondent no.3 employee herein
being employed by a Co-operative Society, no proceeding was
maintainable under the Industrial Disputes Act and therefore
reference itself was bad. The other two contentions raised on behalf
of the employer petiotioner were that the proceeding before labour
court was barred by the principle of resjudicata and that after
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