# Drivers Mazdoor Sangh & Anr v. State

- **Citation:** (2009) 1 ILRA 264
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-10-03
- **Case number:** Civil Misc. Writ Petition No. 14225 of 2003
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/drivers-mazdoor-sangh-anr-v-state-41357
- **Pages:** 4

## Headnote

Industrial Dispute Act 1947-Section 10
(1)-petitioner
working
as
sales
representative in Pvt. Company after
termination approached before Labour
Commissioner-who refused to refer the
dispute as petitioner is not for work
man-held-it is for the court or Tribunal
and to conciliation officer who works as
representative of Govt.-who exceeded to
jurisdiction-order can not be sustained.
Held: Para 9 & 10

In a similar matter in TELCO Convoy
Drivers Mazdoor Sangh & Anr. Vs. State
of Bihar & Ors., 1989 (3) SCC 271, the
Supreme Court held that the dispute, as
to whether the persons raising the
dispute, are the workmen or not, the
same could not be decided by the
Government
in
exercise
of
its
administrative function under Section 10
(1) of the Industrial Disputes Act. The
said judgment is squarely applicable to
the present facts and circumstances of
the case.

The Court is of the opinion that the State
Government exceeded its jurisdiction
and has attempted to usurp the power of
the Tribunal by adjudicating a dispute
which power was not vested with the
government.
Case law discussed:
1985 (51) FLR 71, 2002 (4) SCC 490, 2005 (2)
UPLBEC 1181, 1970 (20) FLR 297, 1953 SCR
834, 1978 (36) FLR 195, 1989 (3) SCC 271

## Text

264 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
sheet in respect of the same incident.
Happening of the same incident is not
material for applicability of Section 210
Cr.P.C. for conducting a single trial. What
is important is that the offence alleged is
the same. Consequently rejection of
complaint by C.J.M., Allahabad by
passing the impugned order is wholly
illegal and cannot be sustained in law.
The charge which was leveled by the
applicant in his complaint were that of
causing murder of his son by repeatedly
crushing him under the vehicle. The said
charge of murder is an independent
charge of causing death but not by rash
and negligence act.

9. In view of what I have observed
above,
the
impugned
order
dated
3.10.2008 passed by C.J.M., Allahabad
cannot be sustained at all and is hereby set
aside. C.J.M., Allahabad cannot be
sustained at all and is hereby set aside.
C.J.M., Allahabad is directed to proceed
with the complaint case instituted by the
applicant in accordance with law as the
charge
sheet
submitted
against
the
accused persons by the police is in respect
of different offences all together.

With the aforesaid directions, this
application is allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.02.2009

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 14225 of 2003

Shahid Ahmad Khan

...Petitioner

Versus
Deputy
Labour
Commissioner,
Agra
Region, Agra and another ...Respondents

Counsel for the Petitioner:
Ms. Biushra Maryan
Sri K.P. Agarwal
Suman Sirohi
Sumati Rani Gupta

Counsel for the Respondents:
Sri Dhruva Narayan
S.C.

Industrial Dispute Act 1947-Section 10
(1)-petitioner
working
as
sales
representative in Pvt. Company after
termination approached before Labour
Commissioner-who refused to refer the
dispute as petitioner is not for work
man-held-it is for the court or Tribunal
and to conciliation officer who works as
representative of Govt.-who exceeded to
jurisdiction-order can not be sustained.
Held: Para 9 & 10

In a similar matter in TELCO Convoy
Drivers Mazdoor Sangh & Anr. Vs. State
of Bihar & Ors., 1989 (3) SCC 271, the
Supreme Court held that the dispute, as
to whether the persons raising the
dispute, are the workmen or not, the
same could not be decided by the
Government
in
exercise
of
its
administrative function under Section 10
(1) of the Industrial Disputes Act. The
said judgment is squarely applicable to
the present facts and circumstances of
the case.

The Court is of the opinion that the State
Government exceeded its jurisdiction
and has attempted to usurp the power of
the Tribunal by adjudicating a dispute
which power was not vested with the
government.
Case law discussed:
1985 (51) FLR 71, 2002 (4) SCC 490, 2005 (2)
UPLBEC 1181, 1970 (20) FLR 297, 1953 SCR
834, 1978 (36) FLR 195, 1989 (3) SCC 271

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

1. Heard Ms. Bushra Maryan, the
learned counsel for the petitioner and Shri
1 All] Shahid Ahmad Khan V. Dy. Labour Commissioner Agra Region, Agra and another
265
Dhruva Narayan, the learned Senior
Counsel appearing for respondent no. 2.

2. It is alleged that the petitioner was
working as a sales representative in the
industrial establishment of respondent no.
2, which is a pharmaceutical company
and
that,
the
provisions
of
Sales
Promotion
Employees
(Condition
of
Service) Act, 1976 was applicable to the
petitioner. It is alleged that the services of
the petitioner was terminated by an order
dated 26th of October, 2002 and the
petitioner, being aggrieved, raised a
conciliation
proceeding
under
the
Industrial Disputes Act. It is alleged that
there was a failure in the conciliation
proceedings and the Deputy Labour
Commissioner,
after
considering
the
matter, issued an order dated 13th March,
2003, declining to refer the dispute for
adjudication under Section 4-K of the
U.P. Industrial Disputes Act on the
ground that it was not expedient to refer
the dispute for adjudication. The reason
for declining to refer the dispute was that
the petitioner does not come under the
category of the definition of the word
"workman" as defined under the U.P.
Industrial Disputes Act. The petitioner,
being aggrieved by the order of the
Deputy Labour Commissioner, has filed
the present writ petition.

3. The learned counsel for the
petitioner submitted that the Deputy
Labour Commissioner, which is the
delegated
authority
of
the
State
Government, has committed a manifest
error in declining to refer the dispute, and
that the authority had no power or
jurisdiction to decide the question as to
whether the petitioner was a workman or
not under the U.P. Industrial Disputes Act
and that the power to decide this question
only remains with the Labour Court or the
Industrial Tribunal. The learned counsel
submitted that the State Government or its
delegated authority was vested with the
power only to a limited area, namely, as
to whether an industrial dispute existed or
was apprehended between the parties. The
question, whether the petitioner was a
workman or a sales promotion employee,
was not within the domain of the State
Government to consider or decide this
matter.

4. In support of her submission, the
learned counsel placed reliance upon a
decision of the Supreme Court in Ram
Avtar Sharma & Ors. Vs. State of
Haryana and Anr., 1985 (51) FLR 71
and in the case of Sharad Kumar Vs.
Government of NCT of Delhi, 2002 (4)
SCC 490. The learned counsel also placed
reliance upon a decision of this Court in
Radhey Shyam Mishra Vs. State of
U.P. & Ors., 2005 (2) UPLBEC 1181.

5. On the other hand, the learned
counsel for the respondent submitted that
the State Government was justified in
refusing to refer the dispute on the ground
that the petitioner was not a workman and
that the authority had satisfied itself
subjectively on the basis of the material
evidence, that was brought before it, to
come to a conclusion that it was not
expedient to refer the dispute for
adjudication.
The
learned
counsel
submitted that since the petitioner was not
a workman under the Industrial Disputes
Act, no reference could be made for
adjudication under Section 4-K of the
U.P. Industrial Disputes Act.

6. In Western India Match
Company Ltd. Vs Western India Match
Co. Workers Union & Ors., 1970 (20)
266 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
FLR 297, the Supreme Court, following
the ratio of the decision in State of
Madras Vs. C.P. Sarathy, 1953 SCR
834, held that the State Government only
issues an administrative order while
exercising its powers. The Supreme Court
held that the Government could not go
into the merits of the dispute and that its
functioning was only to refer a dispute for
adjudication
so
that
the
industrial
relations between the employer and its
employees may not continue to remain
disturbed, and that the dispute, if any, is
resolved through a judicial process as
speedily as possible. This decision was
considered by the Supreme Court again in
Shambu Nath Goyal Vs. Bank of
Baroda, Jullundur, 1978 (36) FLR 195,
in which it was held that a reference under
Section 10 of the Industrial Disputes Act
was
an
administrative
act
of
the
government, on the basis of an opinion
formed by the Government as to the
factual existence of an industrial dispute.

7. In Ram Avtar Sharma (Supra),
the Supreme Court again reiterated that
the
Government
only
performs
an
administrative act while making or
refusing to make a reference under
Section 10 of the Industrial Disputes Act,
and that it cannot delve into the merits of
the dispute or take upon itself the
determination of the lis between the
parties. The Supreme Court held that the
appropriate Government could only refer
when
a
dispute
existed
or
was
apprehended, and for that purpose, the
State Government was permitted to
determine, prima facie, whether an
industrial dispute existed or that the claim
was frivolous or bogus. Similar view was
again reiterated by the Supreme Court in
Sharad Kumar's case (Supra).

8. In the light of the aforesaid
decisions, it is necessary to examine the
reason given by the authority to ascertain
as to whether the reasons given was
germane to the issue or not. From a
perusal of the impugned order, it is clear
that the State Government has declined to
raise the dispute on the ground that the
petitioner was not a workman under the
Industrial Disputes Act. In my opinion,
the reasons given by the authority
tantamount to an adjudication, which is
impermissible.
Adjudication
is
the
function of the Tribunal or the Labour
Court, and the State Government or its
delegated authority cannot remit to itself
that function, which is exclusively vested
with the Industrial Tribunal or the Labour
Court.
Consequently,
the
State
Government was not competent to hold
that the petitioner was not a workman
within the meaning as defined under the
U.P. Industrial Disputes Act. Such a
matter could only be adjudicated or
decided by the Tribunal or the Labour
Court on the basis of the material placed
before it by the parties.

9. In a similar matter in TELCO
Convoy Drivers Mazdoor Sangh &
Anr. Vs. State of Bihar & Ors., 1989 (3)
SCC 271, the Supreme Court held that the
dispute, as to whether the persons raising
the dispute, are the workmen or not, the
same could not be decided by the
Government
in
exercise
of
its
administrative function under Section 10
(1) of the Industrial Disputes Act. The
said judgment is squarely applicable to
the present facts and circumstances of the
case.

10. The Court is of the opinion that
the State Government exceeded its
jurisdiction and has attempted to usurp the
1 All] Bhrigu Nath Pandey V. State of U.P. and others
267
power of the Tribunal by adjudicating a
dispute which power was not vested with
the government.

11. In view of the aforesaid, the
impugned order, passed by the Deputy
Labour Commissioner, declining to refer
the dispute cannot be sustained and is
quashed. The writ petition is allowed. The
matter is again remitted to the authority
concerned to exercise its powers and refer
the dispute for adjudication if the
industrial
dispute
exists
or
is
apprehended. The order shall be passed
by the authority within eight weeks from
the date of the production of a certified
copy of this order.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.02.2009

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 78117 of 2005

Bhrigu Nath Pandey

...Petitioner

Versus
State of Uttar Pradesh and others

 ...Respondents

Counsel for the Petitioner:
Sri Salil Kumar Rai

Counsel for the Respondents:
Sri S.B. Pandey
S.C.

Constitution
of
India-Art.
226cancellation of bid-for fisheries Rightson ground of inadequate amount-bid
accepted-petitioner
deposited
1⁄2
amount-before cancellation notice or
show cause not required.

Held: Para 8
In view of the aforesaid, the impugned
order cancelling the auction does not
suffer from any error of law. In fact, the
Supreme Court in the case of Ram and
Shyam Company (Supra) held that the
Government was entitled to reject the
highest bid if it found that the price
offered was inadequate. The Supreme
Court, further held, that after rejecting
the offer, it was obligatory upon the
Government to act fairly, and that at any
rate, it should not act arbitrarily.
Case law discussed:
(1985) 3 SCC 267, 2004 (97) RD 675

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

1. Heard Shri Salil Kumar Rai, the
learned counsel for the petitioner and the
learned Standing Counsel appearing for
the respondents.

2. An advertisement dated 5th of
September, 2005 was issued by the
Deputy District Magistrate, Sahjanwa,
District Gorakhpur, in which it was
notified that an auction would be held on
14th of September, 2005 for grant of
fisheries' rights in various villages, which
included Village Bikora, Post Bikora,
Tehsil Sahjanwa, District Gorakhpur
having an area of 0.713 hectares. It is
alleged that the petitioner participated in
the
said
auction
and
his
bid
of
Rs.12,500.00 was the highest, and, at the
fall of the hammer, deposited a sum of
Rs.3,125.00, being 1/4th of the bid
amount. Before the auction could be
finalised, the Deputy District Magistrate,
by an order dated 27th of September,
2005, cancelled the auction, on the ground
that the bid was inadequate, and directed
that a fresh auction should be held. The
petitioner, being aggrieved by the reauction and the rejection of his bid, has
filed the present writ petition.