# Executive Engineer, Electricity Distribution Division, Farrukhabad v. Presiding Officer, Kanpur & Anr

- **Citation:** (2020) 2 ILRA 247
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-04-16
- **Case number:** Writ C No. 9616 of 1991
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/executive-engineer-electricity-distribution-division-farrukhabad-v-presiding-45583
- **Pages:** 11

## Headnote

C.S.C., Sri J.S. Audichya, Sri A.K. Gupta,
Sri A.K. Misra, Sri H.D. Singh, Sri Indra
Sen Singh Vatsa, Sri J.N. Mishra, Sri
Pankaj
Mishra,
Sri
Prakash
Chandra
Shakya, S.C., Sri U.K. Misra

A. Adjudication Case - Industrial Dispute
between Workman and Employer - Benefit of
the Workman - Claim for Designation as
Routine Grade Clerk and grant of the pay scale
- Labour Court passed Impugned award in
favour of workman - Parole Evidence entirely
based on the workman certificate only without
any corroboration by evidence aliunde of the
employer - Decision remaining ex parte and
perverse.

Held, it is quite reflective while writing the
impugned
award
the
Labour
Court
has
completely ignored from consideration which
was raised as a plea before it on behalf of the
Employers. This part of theLabour Court's
finding is manifestly illegal inasmuch as the
Employersbeing ex parte, they certainly had no
avenue to lead evidence that theLabour Court
closed for them; and that too, in error, in the
consideredopinion of this Court. The workman
and the petition are defended by his legal heirs
and there is no issue about reinstatement. The
workman, however, was reinstated in service
pendingthis petition. While he was in service,
he hadreceived emoluments as a Routine
Grade Clerk by dint of the interimorder passed
by this Court.The workman has rendered
services to the employer, under whatever
circumstances, and that fact is not in dispute.

In
view
of
the
said
circumstances,
notwithstanding the fact that the an impugned
award cannot be sustained, there is no basis to
order recovery from the workman's heirs or so
to speak, from the estate of the workman in
the hands of his heirs (para 18 and 24) In
the result, this petition succeeds and is
allowed.

Cases Cited:

## Text

2 All. Executive Engineer, Electricity Distribution Division, Farrukhabad Vs. Presiding Officer, Kanpur. & Ors.
247
impugned in the present writ petition. All
that is referred to is the report of the
District Magistrate dated 16.8.2018. The
fact
finding
enquiry
report
of
the
committee constituted by the District
Magistrate
under
the
order
dated
16.4.2018 and the contents as have come
up in his re-commendatory report dated
16.8.2018 are the same. The District
Magistrate, it is proved beyond doubt,
virtually did not hold himself any enquiry,
instead, submitted a report of the sub
committee as his report incorporating the
same in his re-commendatory enquiry
report dated 16.8.2018.

26. Rule 5 of the enquiry rules
provide for 'opinion of the Government'.
An opinion would naturally be formed
upon the report submitted under Rule 4. So
when two reports are submitted to the
State Government and one was in
compliance of the initial letter issued by
the State Government as preliminary
enquiry report which was to be submitted
within three weeks, there is no justification
as to why the Secretary would not refer to
that report and would not consider the said
report submitted well within time.

27. As the records reveal, the District
Magistrate proceeded to hold an enquiry
second time on the basis of some
complaint made by certain members, but
such enquiry would not come within the
scope of his authority as prescribed for
under Rule 4. Second enquiry report,
therefore, not being as contemplated under
the enquiry rules but got ordered by the
District Magistrate without any sanction/
request from the State, the order was void,
and so the report would also be void and
non est and deserves rejection. The
procedure which has been laid down under
Rule 4 as we have discussed above in this
judgment it is very clear that Additional
District Magistrate and District Magistrate
are the only officers or the officers of their
rank who can hold enquiry.

28. Under the circumstances, the
report which should have been relied upon
by the Secretary and yet if he has passed
the order for formal enquiry ignoring that
report, earlier submitted by the competent
authority within time as contemplated
under Rule 4, such an opinion formed by
the authority can only be termed to be
biased one. The two reports were available
and there are no justifiable reasons for not
considering the first report while passing
order impugned. Thus the order impugned
directing for formal enquiry, therefore,
deserves to be quashed and is accordingly
hereby quashed.

29. The writ petition succeeds and is
allowed in above terms with cost.
----------
(2020)02ILR A247

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.01.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ C No. 9616 of 1991

Executive
Engineer,
Electricity
Distribution Division, Farrukhabad
 ...Petitioner
Versus
Presiding Officer, Kanpur & Anr.
 ...Respondents

Counsel for the Petitioner:
Sri B. Dayal, Sri A.K. Mehrotra, Sri P.N.
Rai, Sri Sandeep Kumar Srivastava, Ms.
Usha Kiran
248 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
C.S.C., Sri J.S. Audichya, Sri A.K. Gupta,
Sri A.K. Misra, Sri H.D. Singh, Sri Indra
Sen Singh Vatsa, Sri J.N. Mishra, Sri
Pankaj
Mishra,
Sri
Prakash
Chandra
Shakya, S.C., Sri U.K. Misra

A. Adjudication Case - Industrial Dispute
between Workman and Employer - Benefit of
the Workman - Claim for Designation as
Routine Grade Clerk and grant of the pay scale
- Labour Court passed Impugned award in
favour of workman - Parole Evidence entirely
based on the workman certificate only without
any corroboration by evidence aliunde of the
employer - Decision remaining ex parte and
perverse.

Held, it is quite reflective while writing the
impugned
award
the
Labour
Court
has
completely ignored from consideration which
was raised as a plea before it on behalf of the
Employers. This part of theLabour Court's
finding is manifestly illegal inasmuch as the
Employersbeing ex parte, they certainly had no
avenue to lead evidence that theLabour Court
closed for them; and that too, in error, in the
consideredopinion of this Court. The workman
and the petition are defended by his legal heirs
and there is no issue about reinstatement. The
workman, however, was reinstated in service
pendingthis petition. While he was in service,
he hadreceived emoluments as a Routine
Grade Clerk by dint of the interimorder passed
by this Court.The workman has rendered
services to the employer, under whatever
circumstances, and that fact is not in dispute.

In
view
of
the
said
circumstances,
notwithstanding the fact that the an impugned
award cannot be sustained, there is no basis to
order recovery from the workman's heirs or so
to speak, from the estate of the workman in
the hands of his heirs (para 18 and 24) In
the result, this petition succeeds and is
allowed.

Cases Cited:

1. Nedungadi Bank Ltd vs. K.P. Madhavankutty
and others, 2002(2) 2 SCC 455
2. Secretary, the State of Karnataka vs.
Umadevi (3), 2006 (4) SCC 1

3. A. Umarani vs. Registrar, Coop. Societies,
2004 (7) SCC 112

4. The State of U.P. vs. Neeraj Awasthi, 2006
(1) SCC 667

5. Union Public Service Commission vs. Girish
Jayanti Lal Vaghela, 2006 (2) SCC 482

6. Kesavananda Bharti vs. the State of Kerala,
1973 (4) SCC 255

7. Indian Drugs & Pharmaceuticals Ltd. vs.
Workmen, 2007 (1) SCC 408

8. BSNL vs. Bhurumal, 2014(7) SCC 177

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition has been
instituted by the Executive Engineer, U.P.
State
Electricity
Board,
Division-1,
Farrukhabad and the U.P. State Electricity
Board, Lucknow through its Chairman,
challenging an award of the Presiding
Officer, Labour Court, 2nd, Kanpur dated
23.08.1990 (published on 20.11.1990),
made in Adjudication Case No. 56 of 1988
between the two petitioners and their
workman, Data Ram, respondent no. 2,
now represented by his heirs and legal
representatives, respondent Nos. 2/1, 2/2,
2/3.

2. It is common ground between the
parties that the U.P. State Electricity
Board, Lucknow which was a body
corporate during the relevant period of
time has since been dissolved and
reorganized
by
virtue
of
the
U.P.
Electricity Reforms Act, 1999. Now, the
former U.P. State Electricity Board is
replaced and renamed as the U.P. Power
Corporation Limited and all its officers are
now
officers
of
the
U.P.
Power
2 All. Executive Engineer, Electricity Distribution Division, Farrukhabad Vs. Presiding Officer, Kanpur. & Ors.
249
Corporation Limited. Accordingly, on an
impleadment application made on behalf
of the U.P. Power Corporation, the
description of the petitioners has been
permitted to be made in the manner that
petitioner no. 1 has been rearrayed as the
Executive
Engineer,
U.P.
Power
Corporation Limited, Electricity Division,
Farrukhabad and petitioner no. 2 as the
U.P.
Power
Corporation
Limited,
Lucknow through its Chairman.

3. The two petitioners together are
hereinafter referred to as ''the Employers
whereas respondent Nos. 2/1, 2/2 and 2/3
shall be called 'the workman'. It appears
that for the benefit of the workman the
Workers' Union, to wit, the Hydro Electric
Employees Union, 7 Sarojni Nagar,
Lucknow raised an industrial dispute
which in due course was referred by the
State Government under Section 4K of the
U.P. Industrial Disputes Act (for short, 'the
Act') to the adjudication of Presiding
Officer, Labour Court, 2nd, U.P., Kanpur
vide a reference order dated 13.09.1988 in
the
following
terms
(translated
into
English from Hindi vernacular) :

"Whether the Employers are
obliged to designate their workman
Dataram s/o Sri Jalim Prasad as Routine
Grade Clerk with effect from 01.01.1988?
If yes, with what particulars?"

4. On the basis of the aforesaid
reference, Adjudication Case No. 56 of
1988 was registered on the file of the
Labour Court, 2nd, U.P. Kanpur on
01.10.1988 and summonses were issued to
the Employers and the workman requiring
them to enter appearance and file their
written
statements,
together
with
documents on 08.11.1988. Both parties
appeared before the Labour Court on
28.11.1988 to which the proceedings were
adjourned on 08.11.1988, as on the latter
date the Presiding Officer was on leave. A
written statement dated 03.12.1988 was
filed on behalf of the Employers whereas
the workman filed his written statement,
which is a document dated 15.12.1988.
The workman filed a rejoinder statement
dated 01.02.1989.

5. The case of the workman pleaded
in his written statement, in substance, is to
the effect that he is working with the
Employers on daily wage basis as a
Routine Grade Clerk, but against a
sanctioned post since the year 1977. He
has been assigned all kinds of duties which
a Routine Grade Clerk may discharge. The
workman has done his Masters (M.A.) and
is the member of a Scheduled Caste. It is
pleaded that the Employers had decided
that workmen on daily wages, who have
been working on the post of a Routine
Grade Clerk, would not be retrenched. It is
also a plea in the written statement that
between
the
Employers
and
the
Government decisions have been taken
from time to time that workmen employed
on the muster roll and workmen already in
harness of the Employers, ought be
accorded
priority
in
the
matter
of
appointment.

6. In this connection, a reference is
made to the report of a certain Tandon
Committee and further decisions taken by
the Employers, and the Government, in
consequence of which with effect from
01.01.1988, several hundred workmen
have been regularized. It is also pleaded
that the Employers had issued an order
that reservation quota for the Scheduled
Castes may not be filled up by recruitment
of outsiders. Instead, the workmen already
on muster roll, or those working on an
250 INDIAN LAW REPORTS ALLAHABAD SERIES
adhoc basis or part time, including those
engaged in leave vacancies, may be
considered for recruitment under the said
quota. It is also asserted by the workman
that the Employers have vacancy in their
establishment and on that account too, the
workman ought to be designated as a
Routine Grade Clerk and paid his salary in
the regular scale.

7. The further case of the workman is
that he has turned overage and ineligible
for employment elsewhere. The workman
has rendered regular service for the past
many years, putting in more than 240 days
in each year. The workman has pleaded
that under orders of the Employers a
workman who has completed 240 days of
services, is entitled to regularization. It is
also pleaded that a large number of
workmen junior to the workman, and also
of comparatively feeble merit, have been
appointed Routine Grade Clerks. On the
basis of a case to the above effect, the
workman has asked to be designated as a
Routine Grade Clerk and placed in the
regular pay-scale.

8. It must be remarked here that, in
substance, the workman has asked for a
relief of regularization in service as a
Routine Grade Clerk that has been cast in
an unfamiliar mould, to say that the
workman may be designated as a Routine
Grade Clerk, and given that pay-scale.
Thus, the industrial dispute that the
workman has raised, is, in substance, a
claim for regularization.

9. The Employers in the written
statement have pleaded that the workman
never worked for them after 20.07.1979,
and on that basis taken an objection that
the industrial dispute is one raised after a
long delay of nine years. It is a stale claim
and on that ground deserves to be rejected.
It is pleaded that the Employers are a State
corporate establishment under Section 5 of
the Electricity (Supply) Act, 1948. Under
Section 79 (c) of the Act, last mentioned,
the Employers are empowered to frame
service conditions for their employees.
The workman was hired from time to time,
according to requirement and availability
of work by the Electricity Commercial
Division, Farrukhabad as a workman
borne on the muster roll - engaged against
leave
vacancies.
The
contingent
requirement of work came to an end on
20.07.1979, whereafter the workman was
not engaged. It was also disputed that the
workman ever completed 240 days service
on the post of a Routine Grade Clerk. It is
asserted that appointment on the post of a
Routine Grade Clerk is made through a
process of selection by the Electricity
Services
Commission,
after
due
advertisement of vacancies in newspapers.
In paragraph no. 8 of the written statement
there is a specific plea taken that no
employee under the administrative control
of the Superintending Engineer, Electricity
Distribution Division, Farrukhabad borne
on the muster roll has been absorbed in the
regular
establishment.
As
such,
the
workman has no right to ask for
designation as a Routine Grade Clerk, with
effect from 01.01.1988, which in any case,
would not be in accordance with law.

10. In his rejoinder of the statement,
the workman has pleaded to the objection
regarding the claim being belated, where
he has refuted the objection. He has
asserted that there is no limitation
prescribed for the purpose of raising an
industrial dispute under the law. Also, the
dispute
has
been
raised
after
the
Employers decided to regularize other
workman. It is asserted that the contents of
2 All. Executive Engineer, Electricity Distribution Division, Farrukhabad Vs. Presiding Officer, Kanpur. & Ors.
251
paragraph no. 3 of the written statement of
the Employers are denied and that the
workman had all along been functioning
against a permanent post. In every year,
the workman is claimed to have worked
more than 240 days and more. It is also
pleaded that the workman claims on the
basis of his rights under the Act, where
selection by the Electricity Services
Commission has no relevance.

11. Again, assertions in paragraph
no. 7 of the Employer's written statement
have been denied and it is pleaded that it is
not a case of direct appointment for the
workman, but one of regularization. It
must be remarked here that by this
pleading in paragraph no. 7 of the
rejoinder of the statement, the rather
unconservative
description
of
the
workman's claim, described as designation
for the workman as a Routine Grade Clerk
and grant of pay-scale, stands demystified
to transparently show by the workman's
pleading that it is afterall, a claim for
regularization.

12. The workman has filed some 19
documents. Most of these documents are
Board Orders, one is a Government Order,
still another a Report, one is an Office
Memorandum of the Board carrying the
report of the Tandon Committee dated 2nd
September, 1976. These documents do
provide about rights of regularization in
service to workmen borne on the muster roll,
including Routine Grade Clerks, subject to
the
Clerks
passing
the
prescribed
examinations and typing tests etc. But, most
of these do not relate to the workman's
record of engagement with the Employers,
except for a few of these documents which
are relevant. It must also be noticed here that
of the documents that are relevant directly to
the workman's rights, there is on record a
certificate from the Executive Engineer,
Electricity
Commercial
Division,
Farrukhabad dated 31.08.1982, indicating
the period of the workman's engagement as a
Routine Grade Clerk and as a Class IV
employee, put together, between 30.09.1977
to 28.02.1979. This document alone has
been exhibited by the Labour Court and
taken
into
consideration.
About
this
evidence and its impact on the rights of
parties, more would be said later.

13. The workman also examined
himself in support of his case and has been
cross examined by the Employers. The
Employers, on the other hand, have filed four
documents through a list bearing Paper No.
17D but they could not lead any evidence as
the proceedings were set down ex parte on
21.05.1990 and adjourned to 25.06.1990 for
address of arguments. On 25.06.1990, an effort
was made through an application to set aside
the order dated 21.05.1990, ordering the
proceedings to go ex parte but that application,
bearing Paper No. 24D, was rejected by an
order of that day. Arguments were heard on
25.06.1990 on behalf of the workman and
judgment reserved, permitting the Employers
to address the Court within a week, if they so
desired.

14. Again, it has to be remarked here
that permitting address of arguments to the
Employers
after
reserving
judgment
formally on the ordersheets, is not only
something odd but unlawful by all
standards. Still, this Court thinks that in
the domain of industrial adjudication
which
is
far
more
informal
than
proceedings in Court, the aforesaid matter
would remain an oddity that would not
vitiate the award.

15. The Labour Court by means of
the impugned award has answered the
252 INDIAN LAW REPORTS ALLAHABAD SERIES
reference in favour of the workman, and
has awarded, that the workman shall be
entitled to be designated as a Routine
Grade Clerk with effect from 01.01.1988
and the employers shall, accordingly,
designate him. It has further been awarded
that the workman would be entitled to his
salary from the said date. Costs in the sum
of Rs. 100/- have also been awarded. This
Court, while entertaining this writ petition
vide order dated 01.04.1991, issued notice
pending admission and by an interim order
of the said date, directed that the operation
of the impugned award shall remain
stayed, subject to the workman being
reinstated by the Employers within one
month of the order and payment of future
wages, regularly. The writ petition was,
lateron, admitted to hearing vide order
dated 20.04.1992.

16. This Court has carefully perused
the impugned award and also the records
of the adjudication case, that were
summoned from the Labour Court.

17. A perusal of the findings of the
Labour Court shows that the Labour Court
has concluded from the document filed as
Exhibit W-1 that between the years 197778 and 1978-79, the workman did not put
in 240 days of service in a year, but
worked for 367 days, in all. This finding is
based on a document issued by the
Employers, and cannot, therefore, be
possibly disputed by them. But, the other
part of the workman's case that after those
367 days of work that he rendered with the
Employers,
he
has
been
in
their
engagement as a Routine Grade Clerk, is
based entirely on parole evidence of the
workman, speaking for himself, without
any corroboration by evidence aliunde.
The Labour Court has concluded from the
document which is a certificate by the
Employer, marked as Exhibit W-1 and his
oral evidence, to the effect that after July,
1979 he is working with the Electricity
Distribution Division-1, Fatehgarh and
that the workman is in regular employment
as a Routine Grade Clerk. This conclusion
from the evidence has been drawn by the
Labour Court in the face of the Employers
being set ex parte, where their right to lead
evidence was closed, not for a very
convincing reason and an application to
recall the order, setting down proceedings
ex parte, too was rejected. Though, the
Employers appear to have supplied a
number of documents that the workman
has filed, on his application to summon
those documents, still the Labour Court
has held that the Employers have not
supplied the required documents that the
workman sought, to establish the time
period and nature of his engagement. It is
not at all clear as to what those documents
are, that the Employers have not supplied.

18. The Labour Court has also
observed much in error that it was the duty
of the Employers to have established their
case by producing documents in evidence,
which they have not discharged. This part
of the Labour Court's finding is manifestly
illegal inasmuch as the Employers being
ex parte, they certainly had no avenue to
lead evidence that the Labour Court closed
for them; and that too, in error, in the
considered
opinion
of
this
Court.
Moreover, the document that the workman
has filed as Exhibit W-1, clearly depicts
the Employers' case that the workman has
served in broken spells, as a dailywager on
muster
roll,
from
30.07.1977
to
28.02.1979. During all this period of time,
the workman has been engaged as a
muster roll employee, both as a Routine
Grade Clerk and a Class-IV employee
(peon). Most of these engagement have
2 All. Executive Engineer, Electricity Distribution Division, Farrukhabad Vs. Presiding Officer, Kanpur. & Ors.
253
been in leave vacancies, and some to meet
other
contingencies.
There
is
no
independent evidence led by the workman
to lend support to his case that until time
when reference was made, or even
thereafter, he was still retained by the
Employers as a Routine Grade Clerk,
working at Fatehgarh. A mere self serving
testimony in the witness box with no
corroborative
independent
evidence,
cannot be held to prove the workman's
case which the Labour Court has accepted,
even with the Employer remaining ex
parte. The conclusions drawn by the
Labour Court from the evidence on record
are perverse.

19. Now, once the workman has been
out of employment since 28.02.1979, an
industrial dispute raised in the year 1988,
nine years after workman's exit from the
Employer's establishment, is certainly a
stale claim where it cannot be said that
there was an industrial dispute still
surviving at that distance of time. To raise
this
kind
of
a
dispute
under
the
circumstances, after nine years, leads to an
inference that either the workman, and
more likely the sponsoring union have
contrived to create a ghost dispute to
champertous ends, or it is all utterly illadvised.

20. An authoritative statement of the
law in regard to stale claims under the
Industrial Disputes Act is to be found in
the guidance of their Lordships of the
Supreme Court in Nedungadi Bank Ltd
vs. K.P. Madhavankutty and others,
(2002) 2 SCC 455, where it has been held:

6. Law does not prescribe any
time-limit for the appropriate Government
to exercise its powers under Section 10 of
the Act. It is not that this power can be
exercised at any point of time and to
revive matters which had since been
settled.
Power
is
to
be
exercised
reasonably and in a rational manner. There
appears to us to be no rational basis on
which
the
Central
Government
has
exercised powers in this case after a lapse
of about seven years of the order
dismissing the respondent from service. At
the time reference was made no industrial
dispute existed or could be even said to
have been apprehended. A dispute which
is stale could not be the subject-matter of
reference under Section 10 of the Act. As
to when a dispute can be said to be stale
would
depend
on
the
facts
and
circumstances of each case. When the
matter has become final, it appears to us to
be rather incongruous that the reference be
made under Section 10 of the Act in the
circumstances like the present one. In fact
it could be said that there was no dispute
pending at the time when the reference in
question was made. The only ground
advanced by the respondent was that two
other employees who were dismissed from
service were reinstated. Under what
circumstances they were dismissed and
subsequently
reinstated
is
nowhere
mentioned.
Demand
raised
by
the
respondent for raising an industrial dispute
was ex facie bad and incompetent.

19. Even otherwise, the post of a
Routine Grade Clerk was required to be
filled up in accordance with Regulation
5(d) of the U.P. State Electricity Board
Ministerial Establishment (Offices of the
Chief Engineer and Other Subordinate
Offices)
Regulations,
1970
which
mandates direct recruitment to be made on
the basis of a competitive examination,
conducted by the Electricity Services
Commission. There is thus no other
channel envisaged for the recruitment of
254 INDIAN LAW REPORTS ALLAHABAD SERIES
Routine Grade Clerks in the service of the
U.P. State Electricity Board. There is no
way
the
statute
would
permit
regularization of a casual hand on a post
that is to be strictly filled up in accordance
with statutory rules through a competitive
examination.

20. In matters of the appointment
under the State, after the decision of the
Constitution Bench of their Lordships of
the Supreme Court in Secretary, State of
Karnataka vs. Umadevi (3), (2006) 4 SCC
1, there is absolutely no space, consistent
with the requirements of Articles 14 and
16 of the Constitution to secure through
the
mechanism
of
regularization,
appointment as the one here, to a post
under the State, borne on the public
exchequer. It has been held in Umadevi
(supra) thus:

"34. In A. Umarani v. Registrar,
Coop. Societies [(2004) 7 SCC 112 : 2004
SCC (L&S) 918] a three-Judge Bench
made a survey of the authorities and held
that when appointments were made in
contravention of mandatory provisions of
the Act and statutory rules framed
thereunder and by ignoring essential
qualifications, the appointments would be
illegal and cannot be regularised by the
State. The State could not invoke its power
under Article 162 of the Constitution to
regularise such appointments. This Court
also held that regularisation is not and
cannot be a mode of recruitment by any
State within the meaning of Article 12 of
the Constitution or any body or authority
governed by a statutory Act or the rules
framed
thereunder.
Regularisation
furthermore cannot give permanence to an
employee whose services are ad hoc in
nature. It was also held that the fact that
some persons had been working for a long
time would not mean that they had
acquired a right for regularisation.

37. It is not necessary to
multiply authorities on this aspect. It is
only necessary to refer to one or two of the
recent decisions in this context. In State of
U.P. v. Neeraj Awasthi [(2006) 1 SCC 667
: 2006 SCC (L&S) 190] this Court after
referring to a number of prior decisions
held that there was no power in the State
under Article 162 of the Constitution to
make appointments and even if there was
any such power, no appointment could be
made in contravention of statutory rules.
This Court also held that past alleged
regularisation or appointment does not
connote
entitlement
to
further
regularisation or appointment. It was
further held that the High Court has no
jurisdiction to frame a scheme by itself or
direct the framing of a scheme for
regularisation. This view was reiterated in
State of Karnataka v. KGSD Canteen
Employees' Welfare Assn. [(2006) 1 SCC
567 : 2006 SCC (L&S) 158 : JT (2006) 1
SC 84]

38. In Union Public Service
Commission v. Girish Jayanti Lal Vaghela
[(2006) 2 SCC 482 : 2006 SCC (L&S) 339
: (2006) 2 Scale 115] this Court answered
the question, who was a government
servant and stated: (SCC p. 490, para 12)

"12. Article 16 which finds place
in Part III of the Constitution relating to
fundamental rights provides that there
shall be equality of opportunity for all
citizens in matters relating to employment
or appointment to any office under the
State. The main object of Article 16 is to
create a constitutional right to equality of
opportunity and employment in public
offices. The words ''employment' or
''appointment' cover not merely the initial
appointment but also other attributes of
service like promotion and age of
2 All. Executive Engineer, Electricity Distribution Division, Farrukhabad Vs. Presiding Officer, Kanpur. & Ors.
255
superannuation, etc. The appointment to
any post under the State can only be made
after a proper advertisement has been
made inviting applications from eligible
candidates and holding of selection by a
body of experts or a specially constituted
committee whose members are fair and
impartial through a written examination or
interview or some other rational criteria
for judging the inter se merit of candidates
who have applied in response to the
advertisement
made.
A
regular
appointment to a post under the State or
Union cannot be made without issuing
advertisement in the prescribed manner
which may in some cases include inviting
applications
from
the
employment
exchange where eligible candidates get
their names
registered. Any regular
appointment made on a post under the
State
or
Union
without
issuing
advertisement inviting applications from
eligible candidates and without holding a
proper
selection
where
all
eligible
candidates get a fair chance to compete
would violate the guarantee enshrined
under Article 16 of the Constitution (see
B.S. Minhas v. Indian Statistical Institute
[(1983) 4 SCC 582 : 1984 SCC (L&S) 26 :
AIR 1984 SC 363])."

40. At this stage, it is relevant to
notice two aspects. In Kesavananda
Bharati v. State of Kerala [(1973) 4 SCC
225 : 1973 Supp SCR 1] this Court held
that Article 14, and Article 16, which was
described as a facet of Article 14, is part of
the basic structure of the Constitution. The
position emerging from Kesavananda
Bharati [(1973) 4 SCC 225 : 1973 Supp
SCR 1] was summed up by Jagannadha
Rao, J. speaking for a Bench of three
Judges in Indra Sawhney v. Union of India
[(2000) 1 SCC 168 : 2000 SCC (L&S) 1 :
1999 Supp (5) SCR 229] . That decision
also reiterated how neither Parliament nor
the legislature could transgress the basic
feature of the Constitution, namely, the
principle of equality enshrined in Article
14 of which Article 16(1) is a facet. This
Court stated: (Indra Sawhney case [(2000)
1 SCC 168 : 2000 SCC (L&S) 1 : 1999
Supp (5) SCR 229], SCC p. 202, paras 6465)

"64.
The
preamble
to
the
Constitution of India emphasises the
principle of equality as basic to our
Constitution. In Kesavananda Bharati v.
State of Kerala [(1973) 4 SCC 225 : 1973
Supp SCR 1] it was ruled that even
constitutional amendments which offended
the basic structure of the Constitution
would be ultra vires the basic structure.
Sikri, C.J. laid stress on the basic features
enumerated in the preamble to the
Constitution and said that there were other
basic features too which could be gathered
from the constitutional scheme (para 506A of SCC). Equality was one of the basic
features referred to in the preamble to our
Constitution. Shelat and Grover, JJ. also
referred to the basic rights referred to in
the preamble. They specifically referred to
equality (paras 520 and 535-A of SCC).
Hegde & Shelat, JJ. also referred to the
preamble (paras 648, 652). Ray, J. (as he
then was) also did so (para 886).
Jaganmohan Reddy, J. too referred to the
preamble and the equality doctrine (para
1159). Khanna, J. accepted this position
(para 1471). Mathew, J. referred to
equality as a basic feature (para 1621).
Dwivedi, J. (paras 1882, 1883) and
Chandrachud, J. (as he then was) (see para
2086) accepted this position.

65. What we mean to say is that
Parliament and the legislature in this
country cannot transgress the basic feature
of the Constitution, namely, the principle
of equality enshrined in Article 14 of
which Article 16(1) is a facet."
256 INDIAN LAW REPORTS ALLAHABAD SERIES

21. The Supreme Court in Indian
Drugs & Pharmaceuticals Ltd. vs.
Workmen, (2007) 1 SCC 408 again
dealing with the regularization of services
of daily rated ad hoc or casual employees,
on posts under the State or one of its
instrumentalities have spoken for judicial
restraint in such matter matters and held:

"40. The courts must, therefore,
exercise
judicial
restraint,
and
not
encroach into the executive or legislative
domain. Orders for creation of posts,
appointment on these posts, regularisation,
fixing pay scales, continuation in service,
promotions, etc. are all executive or
legislative functions, and it is highly
improper for Judges to step into this
sphere, except in a rare and exceptional
case.
The
relevant
case-law
and
philosophy of judicial restraint has been
laid down by the Madras High Court in
great detail in Rama Muthuramalingam v.
Dy. Supdt. of Police [AIR 2005 Mad 1]
and we fully agree with the views
expressed therein.

47. We are of the opinion that if
the court/tribunal directs that a daily-rated
or ad hoc or casual employee should be
continued in service till the date of
superannuation, it is impliedly regularising
such an employee, which cannot be done
as held by this Court in Secy., State of
Karnataka v. Umadevi (3) [(2006) 4 SCC
1 : 2006 SCC (L&S) 753] and other
decisions of this Court.

48. In view of the above
discussion, we are of the opinion that the
orders of the Labour Court as well as the
High Court were wholly unjustified and
cannot be sustained for the reasons already
mentioned above. The appeal is, therefore,
allowed. The impugned judgments of the
High Court and the Labour Court are set
aside and the reference made to the Labour
Court is answered in the negative. There
shall be no order as to costs."

22. Again in a consistent vain, in a
matter arising under the Labour Law, it
has been held by the Supreme Court in
BSNL v. Bhurumal, (2014) 7 SCC 177:

"34. The reasons for denying the
relief of reinstatement in such cases are
obvious. It is trite law that when the
termination is found to be illegal because
of
non-payment
of
retrenchment
compensation
and
notice
pay
as
mandatorily required under Section 25-F
of the Industrial Disputes Act, even after
reinstatement, it is always open to the
management to terminate the services of
that
employee
by
paying
him
the
retrenchment compensation. Since such a
workman was working on daily-wage
basis and even after he is reinstated, he has
no right to seek regularisation [see State of
Karnataka v. Umadevi (3) [(2006) 4 SCC
1 : 2006 SCC (L&S) 753] ]. Thus when he
cannot claim regularisation and he has no
right to continue even as a daily-wage
worker, no useful purpose is going to be
served in reinstating such a workman and
he can be given monetary compensation
by the Court itself inasmuch as if he is
terminated again after reinstatement, he
would receive monetary compensation
only
in
the
form
of
retrenchment
compensation and notice pay. In such a
situation,
giving
the
relief
of
reinstatement, that too after a long gap,
would not serve any purpose.

23. To the same effect are other
decisions of their Lordships of the
Supreme Court in Chandra Shekhar
Azad
Krishi
Evam
Prodyogiki
Vishwavidyalaya vs. United Trades
Congress, (2008) 2 SCC 552 and Deputy
2 All. Surajmal Vs. State of U.P. & Ors.
257
 Executive
Engineer
vs.
Kuberbhai
Kanjibhai, (2019) 4 SCC 307.

24. The Labour Court, while writing
the impugned award has completely
ignored from consideration this very
pertinent aspect of the matter, though it
was raised as a plea before it on behalf of
the Employers. Now, the workman is no
more and this petition, directed as it is
against the impugned award is defended
by his legal heirs. There is no issue about
reinstatement. The workman, however,
was reinstated in service pending this
petition, in consequence of the conditional
stay order passed by this Court on
01.04.1991. He served in the respondent's
establishment from 29.10.1991 until his
death on 26.04.2010. While he was in
service, he had received emoluments as a
Routine Grade Clerk by dint of the interim
order passed by this Court. The workman
has rendered services to the Employer,
under whatever circumstances, and that
fact is not in dispute. In view of the said
circumstances, notwithstanding the fact
that the impugned award cannot be
sustained, there is no basis to order
recovery from the workman's heirs, or so
to speak, from the estate of the workman
in the hands of his heirs.

25. It goes without saying also that
recovery proceedings initiated by the
workman through an application made on
28.01.2010 under Section 6H of the Act
(incorrectly described as Section 33 (C) in
the record of proceedings) before the
Presiding Officer, Labour Court-II, U.P.
Kanpur, would fall with the impugned
award.

26. In the result, this petition
succeeds and is allowed. The impugned
award dated 23.08.1990 passed by the
Presiding Officer-II, U.P. Kanpur in
Adjudication Case No. 56 of 1988,
published
on
20.11.1990,
is
hereby
quashed. Costs shall go easy.

27. The Office is directed to return
the Labour Court records forthwith to the
Presiding Officer, Labour Court-II, U.P.,
Kanpur Nagar.

28. Let a copy of this order shall also
be certified to the Presiding Officer,
Labour Court-II, U.P., Kanpur forthwith.
----------
(2020)02ILR A257

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.01.2020

BEFORE
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ C No. 18035 of 2007

Surajmal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri O.P. Rai

Counsel for the Respondents:
C.S.C.

A. Constitution of India - Preamble - Part IV
- Schedule IX - Land reform - In a primarily
agrarian economy where land continues to be the
pivotal to both income and employment around
which socio-economic privileges and deprivations
revolve land reforms are seen as one of the principal
instruments for creation of an egalitarian rural
society in tune with the socialistic spirit, as provided
in the Preamble and under Part IV of the
Constitution.

B. Civil Law-U.P. Zamindari Abolition and
Land Reforms Act, 1950 - Object - It was