# Executive Engineer v. The Presiding Officer and another

- **Citation:** (2000) 3 ILRA 190
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1997-07-23
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/executive-engineer-v-the-presiding-officer-and-another-39443
- **Pages:** 6

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2000

190
4. I have heard Sri S.C. Kushwaha
for
the
petitioner,
learned
Standing
Counsel for respondent no. 1 and Sri A.K.
Goyal for respondent no. 2.

5.

Admittedly,
the
petitioner
receives
grant-in-aid
from
the
Government through respondent no. 1. It
is apparent that the transfer of respondent
no. 2 from one institution to the other by
the petitioner by order dated 11.12.196
was illegal and it was for this reason that
it came to be cancelled by respondent no.
1. She was permitted to join her duty
only on 23.7.1997. Her representation
made to respondent no. 1 earlier and
referred to the petitioner was rejected by
it (petitioner). Thus, the circumstances
were created by the petitioner, as a result
of which she could not work during the
period 15.12.196 to 22.7.1997. She
cannot be deprived of the salary for the
said period on the principle 'no work no
pay' because of such a situation illegally
created
by
the
petitioner
and
the
respondent no. 2 is not to be blamed
therefor. She had all through been
running from pillar to post and had even
filed the writ petition also to challenge the
illegal Act of the petitioner. It came to be
revealed by the parties during the course
of the arguments that by now she has
retired. Anyway, she is entitled to receive
her salary and allowance for the period
15.12.1996 to 22.7.1997. The attempt of
the petitioner to deprive her of the same
and filing of this writ petition to achieve
this purpose is malafide, untenable and
unfounded. In all fairness, the petitioner
should pay the salary of respondent no. 2
for the period 15.12.196 to 22..1997. The
petitioner shall be directed to make
payment of the salary of respondent no. 2
for the period 15.12.1996 to 22.7.1997
within one month from today.
6. In the result, the writ petition is
hereby dismissed. However, the petitioner
is directed to make payment of the salary
of the respondent no. 2 for the period
15.12.196 to 22.7.1997 within one month
from today. There would be no order as
to costs.

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3All] Executive Engineer V. The Presiding Officer and another 191

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By the Court

1. By means of this writ petition
under Article 226 of the Constitution of
India the petitioner has challenged the
award dated 24.2.1999 published on
2.8.1999, Annexure - 7 to the Petition
made in adjudication case no.200 of 1997
by respondent no. 1 and it is prayed that
the award in question be set aside and the
subsequent order dated 15.2.2000 ,
Annexure -12 to the petition passed by
respondent no. 1 in Misc. Case no. 155 of
2000 by also quashed.

2. Heard Sri Ranjit Saxena , learned
counsel for the petitioner as well as Sri
Shashi Nandan appearing on behalf of
respondent no. 2 at considerable length
Since both the parties have advanced the
arguments touching the whole gamut of
the case, it was agreed that the petition
be decided on merits at this stage .
Accordingly I proceed to dispose of this
writ petition on merits

3. The respondent no. 2 Surendra
Mishra was admittedly appointed as
Apprentice in the erstwhile establishment
of the petitioner on Ist July, 1977 His
services were terminated on 30.10.1978
He raised a dispute with regard to the
termination of his services By order
dated 19.1.1996 (Annexure - 5 to the
petition),
the
Deputy
Labour
Commissioner Gorakhpur in exercise of
the
powers
conferred
on
him
by
notification dated 29.8.1990referred the
dispute under the provisions of U.P.
Industrial Disputes Act to the Labour
Court, Gorakhpur for award Notices ware
issued to the parties the respondent
employer in spite of service failed to
submit the written statement Ultimately
on 24.2.1999, the respondent no I
declared the award which was published
on 2.8.1999. the respondent no . 2
moved an application for the enforcement
of the award on 16.8.1999 a copy of
which is Annexure - 8 to the writ petition
Thereafter
the
petitioner
sent
an
application
by
post
on
27.9.1999
mentioning therein that the fact of the
proceedings initiated before respondent
no. 1 and the award came to the
respondent no. 2 moved an application
for enforcement of the award This
application

was

registered
as
Miscellaneous Case no. 155 of 2000
After hearing the petitioner as well as
respondent no. 2 it was dismissed on
15.2.2000 (Annexure - 12) on the ground
that the petitioner has not satisfactorily
explained the delay of nine months on
moving the application for setting aside
the award It appears when the
respondent no. 2 insisted for payment of
the arrears of salary for the period
1.11.1978 to 29.2.2000, amounting to
Rs. 14,98,000/- the present petition has
been filed.

4. The learned counsel for the
petitioner
made
various
submissions
touching the merits of the case and
challenged
the
proceedings
which
culminated into an award in favour of the
respondent no. 2. It was urged that the
respondent no. 2 who was appointed only
INDIAN LAW REPORTS ALLAHABAD SERIES [2000

192
as an Apprentice had no right to hold
the post and therefore, he could not
have challenged the order of
termination dated 30.10.1978 and that
since the petitioner had not worked
even for 240 days in a calendar year
therefore his termination was not legally
wrong Sri Ranjit Saxena pointed out
that the reference to the Labour Court
was made after more than 17 years and
since dispute raised was highly belated
the respondent no I should have
dismissed the same out right It was
further urged that the exparte award
came into being without effecting
service on the petitioner - employer
and therefore it is bad in law Sri
Shashi Nandan learned counsel for the
respondent had been duly served and
had the full knowledge of the
adjudication case in which after
moving an application for time. It
deliberately avoided to appear It was
further urged that the award has become
final and therefore, respondent no. 2
cannot be deprived to reap the fruits
under the award .

5. To begin with it may be
mentioned that the merits of the case as
to whether the respondent no. 2 was
entitled to be reinstated in service in
consequence
of
his
alleged
illegal
termination cannot be gone into and
decided by this court on writ jurisdiction.
This controversy was the subject matter
of decision in the adjudication which
was dealt with by the respondent no. 1
Therefore reference to various decisions
to challenge the position that the
respondent no. 2 was merely an
apprentice and not a regular appointee
and therefore could not be remstated as
laid down in - (2000(84) FLR 311)-
Chairman, Kulchandra Gram Seva
Sahkari Samiti Ltd. Vs. Judge, Labour
Court, Bikaner and another, (1995) 2
SCC 1- U.P.State Road Transport
Corporation
and
another
Vs.
U.P.Parivahan
Nigam
Shishukhs
Berozgar Sangh and others (1972) 2
UPLBEC
12374)-
Manoj
Kumar
Mishra Vs State of U.P. and others,
(1999)2 UPLBEC 1357- Arvind Gautam
Vs. State of U.P. and others (FB) as well
as JT 2000(6) SC 227 - U.P. Rajya
Vidyut Parishad apprentice Welfare
Association and Anr. Vs State of Uttar
Pradesh and others is otiose.

6. The sheet anchor of the case of
the petitioner is that the reference was not
maintainable as it came to be made after a
lapse of more than 17 years and,
therefore, in view of the settled law the
determination of the dispute could not
have been made by the respondent no. 1.
In support of his contention learned
counsel for the petitioner placed reliance
on the decision of this Court dated
17.12.1998 in Civil Misc. Writ Petition
No.
33145
of
1998-
U.P.
State
Electricity Board and another Vs.
Presiding Officer, Labour Court U.P.
Haldwani Nainital and others 1993 (67)
FLR
70(SC)-
Ratan
Chandra
Sammanta and others Vs. The Union of
India and others, JT 2000(1) SC 388-
The Nadungadi Bank Ltd. Vs. K.P.
Madhavankutty and others; 2000 (84)
FLR 304 U.P. State Electricity Board
and another Vs. State of U.P. and
others and 1998 (1) UPLBEC-152 U.P.
Electricity Board, Kanpur and another
Vs. Presiding Officer, Labour court,
U.P. Kanpur and others. The gist of all
these decisions is that a person cannot be
allowed to raise a dispute after a very long
time and delay in the matter would be
fatal. The delay of 7 or 8 years in making
3All] Executive Engineer V. The Presiding Officer and another 193

reference has been held to be inordinate.
There can be no dispute about the
proposition of law laid down in the
aforesaid decisions.

7. Now the question is whether there
were any laches or delay on the part of
respondent no. 2 in raising the dispute.
The services of the respondent no.2 were
terminated in October 1978. He made a
number of representations to the officers
of the petitioner department but when he
remained unsuccessful in his attempts, he
approached the Conciliation Officer. C.P.
Case No. 40 of 1998 was registered
before him This case was not disposed of
by
the
conciliation
Officer
for
a
considerable long time with the result the
petitioner had approached this Court by
filing a writ petition No. 33281 of 1995.
The said petition was finally disposed of
by this Court on 22.11.1995 with the
direction to the Conciliation Officer to
dispose of the case within a period of two
months. Thereafter the case was disposed
of and reference to the Labour Court was
made on 19.1.1996 which gave rise to
Adjudication Case No.200 of 1997. Even
this case remained pending for about two
years. The respondent no. 2 again filed a
writ petition No. 7590 of 1999 in which a
direction was issued on 20.2.1999 to
respondent
no.
1
to
decide
the
adjudication case with all expedition
preferably within a period of three months
. In view of the above facts, it would be
apparent that respondent no. 2 has been
frantically striving to enforce his rights
and did not allow the matters to become
state. He has been diligently pursuing his
remedy but the proceedings remained
stuck up with the Conciliation Officer for
a long period. The blame for making the
reference after about 17 years of the
termination
of
the
services
of
the
respondent no. 2 cannot put at his door.
The delay in making the reference of the
dispute to the Labour Court though highly
inordinate stands satisfactorily explained.
Moreover, the petitioner failed to take this
plea before the respondent no. 1. The
proper course to be adopted by the
petitioner was to have entered into a
contest in the adjudication case and if it
was done its plea that the reference was
highly belated could be sifted by the
respondent no.1.

8. The well established facts of the
case tell an entirely different story .
While passing orders in Misc. Case no.
155 of 2000. The respondent no. 1 had
recorded the findings that the summons
of the adjudication case no. 200 of 1997
had been served on the Executive
Engineer concerned of the petitioner
department and that the summons
bearing the signature and seal of the
Executive Engineer concerned is
available on record of the adjudication
case the fact that the service on the
petitioner dated 29.1.1999 (Annexure -6
to the writ petition) moved by
Executive Engineer himself before
respondent no. 1 Through this
application time to file written statement
was sought on the ground that the
personnel Officer -D.L.W. Varanasi
who is required to file written statement
will take about one month `s time as
his functional area was quite large On
the application of the petitioner the
case was to be adjourned for hearing
to 24.2.1999. On that date none appeared
on behalf of the petitioner nor any
application for adjournment was filed
and consequently an ex parte award
was made. It is, therefore , not a case
in which service of summons was not
effected on the petitioner As a matter
INDIAN LAW REPORTS ALLAHABAD SERIES [2000

194
of fact, the assertion of the Executive
Engineer of the petitioner department
in the application dated 27.9.1999 that
he came to know of the adjudication
case and the award only through the
application of the respondent no. 2 on
16.8.1999 is nothing but an attempt to
cover up the negligence and remissness
on the part of erring officer who had
failed to contest the case and had adopted
a casual attitude by passing the case
and had adopted a casual attitude by
passing the buck on the personnel
Officer- D.L.W. Respondent no. 1 had
no option but to make an award as the
petitioner failed to appear and contest
the adjudication case no. 200 of 1997.

9. Under Rule 16 (1) of the U.P.
Industrial
Disputes
Rules,
1947
as
application for setting aside the ex-parte
award could be moved within a period of
10 days of the date of the order sought to
be set aside after showing sufficient cause
for the absence. In the instant case no
such application was moved . The law
with reference to Rule 16(1) had been
interpreted in the celebrated decision of
this Court reported in (1997) UPLBEC-2
Page 1274 State of U.P. and another Vs.
Bachai Lal and another. It has been laid
down
that
the
expression
"order"
appearing in Rule 16(1) also includes exparte "award" and the Labour Court has
power to set aside an ex-parte award
passed against a party in its absence if
within 10 days of such award , the party
apples in writing for setting aside such
award and shows sufficient cause for its
absence. In the instant case the award
aforesaid was made on 24.2.1999. The
application for setting aside the award
was received by Respondent no.1 on
29.11.1999 i.e. after expiry of a period of
nine
months.
The
application
was
hopelessly barred by time. The petitioner
has not been able to show sufficient cause
for its absence on the date fixed. On the
hand, as stated above Executive Engineer
on behalf of the petitioner had taken an
absolutely false case that it came to know
of the proceedings and the award only on
16.8.1999 from the contents of the
application moved by respondent no.2.
This assertion is clearly in conflict with
the earlier application moved on behalf of
the petitioner on 29.1.1999 during the
pendency of the adjudication case no.200
of 1997. The respondent no.1 was
justified in rejecting the application ,
which was registered as Miscellaneous
Case No.155 of 2000 for setting aside the
award dated 24.2.1999.

10. The award dated 24.2.99
published on 2.8.1999 has become final.
Its validity cannot be challenged on any
ground whatsoever. The respondent 1
cannot be said to have misdirected itself
any factor relevant to exercise of its
discretion in the matter in rejecting the
application for setting aside the award and
consequently the order dated 15.2.2000
refusing to set aside the ex-parte award
warrants no interference under Article
226 of the Constitution of India.

In the conspectus of all the above
facts, the petition turns out to be without
any
merit
and
substance
and
is
accordingly dismissed.

No order as to cost is made.
Petition Dismissed.
3All] Ajeet Singh alias Muraha V. State of U.P. and others 195

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By the Court

1. Heard Sri S.K. Shukla learned
counsel for the petitioner and learned
Government Advocate. The petitioner has
prayed for a writ of certiorari for quashing
the FIR dated 19.5.2000 (Annexure 1 to
the petition) registered as Case Crime No.
144 of 2000 under section 323, 504, 506
IPC read with Section 3 (1) (10) of SC/ST
Act, P.S. Khuthan, District Jaunpur.

2. Learned counsel for the petitioner
has relied on the decision of the Supreme
Court in Joginder Kumar vs. State of
U.P. AIR 1994 SC 1349. In the decision
the
Supreme
Court
observed
(in
paragraph 24)

"24. No arrest can be made because it is
lawful for the Police Officer to do so. The
existence of the power to arrest is one
thing. The justification for the exercise of
it is quite another. The Police Officer
must be able to justify the arrest apart
from his power to do so. Arrest and
detention in police lock-up of a person
can cause in calculable harm to the
reputation and self-esteem a person...No
arrest can be made in a routine manner on
a mere allegation of commission of an
offence made against a person. It would
be prudent for a Police Officer in the
interest of protection of the constitutional
rights of a citizen and perhaps in his own
interest that no arrest should be made
without a reasonable satisfaction reached
after
some
investigation
as
to
the
genuineness and bonafide of a complaint
and a reasonable belief both as to the
person's complicity and even so as to the
need to effect arrest. Denying a person of
his liberty is a serious matter. The
recommendations
of
the
Police
Commission
merely
reflect
the