# has been observed in Shakuntala Sawhney v. Kaushalaya Sawhney

- **Citation:** (2005) 3 ILRA 998
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-10-18
- **Case number:** Civil Misc. Writ Petition No. 52316 of 2005
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/has-been-observed-in-shakuntala-sawhney-v-kaushalaya-sawhney-40532
- **Pages:** 9

## Headnote

Contract Labour and Abolition Act-S-10regularisation-petitioner
working
as
driver
with
Noida
Development
Authority-Principal
employee
of
the
petitioner is the licensed contractorchallenge made to advertisement of
fresh vacancy-and the regularization on
preferential
basis-held
absence
of
vacancy claim for regularization held
wholly fallacious-before regularization
they hare to first establish their statesbeing selected on merit alongwith otherand their performance is equal but not
3 All] Ramesh Chandra Nagar and others V. State of U.P. and others
999
otherwise-regularization can be decided
only by Labour Court.

Held-Para 23 and 27

It is apparent from the order and
judgment dated 18.2.2005 that the
petitioners were yet to establish first
their status of workers of respondentAuthority in order to claim preference,
which can only be decided by a Lalbour
Court after adjudication the matter on
facts and evidence and the Court had in
no circumstance observed that selection
would proceed subject to adjudication in
favors of the petitioner.

The petitioners have given service to
NOIDA
Authority
through
licensed
contractors
and
have
received
remuneration from the contractors for
their
services.
The
question
of
preference may arise only after the
petitioners are selected on merits along
with other candidates for the post who
have not worked with NOIDA Authority
and their performance is equal but not
otherwise.
Case law discussed
2001(7) SCC-I
1998(9) SCC-709

## Text

998 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
Vs. State of U.P. (1982) 3 SCC 388. The
offence under Section 324, I.P.C. is
compoundable with the permission of the
Court. Considering the facts mentioned
in para 2 of this judgment and the
affidavit of the complainant to the effect
that the parties have amicably settled the
matter the permission to compound the
offence is granted. It would be in the
mutual interest of the complainant and
the appellants and also in the interest of
the society that key should forget the past
and live peacefully as good and lawabiding citizens. That would remove the
bitterness and rancor between them. It
has
been
observed
in
Shakuntala
Sawhney
vs.
Kaushalaya
Sawhney
(1980) 1 SCC 63, that finest hour of the
justice is the hour of compromise when
parties after burying the hatchet reunited
by a reasonable and just compromise.
The complainant and the accused are
granted permission to compromise the
offence. It is expressed that they have
compounded the offence."

5. Section 320 Cr.P.C. is relevant
provision,
which
permits
the
compounding of the offences. However,
Hon'ble Supreme Court had granted
permission to compound the offences
which are non-compoundable under the
Code vide Devender V. State of M.P.
1994 SCC (Cri.0 145, Union Carbide
Vs. Union of India (1991) 4 SCC 584:
Mahesh Chand Vs. State of Rajasthan
AIR 1988 SC 2111.

6. In view of various decisions, I
find that especially in the facts of the
present case, injuries are not such which
could constitute offences under Section
307 I.P.C. In the circumstances, if the
prosecution version is accepted, the
conviction would end only one under
Section
324
I.P.C.,
which
is
compoundable with the permission of the
court.
In
view
of
the
facts
and
circumstances of the present case, I
dispose of this application with a direction
to the concerned court to grant permission
and accept the compromise in Sessions
Trial No. 1105 of 1999 State vs. Rajpal
and another (supra), and pass a fresh order
in confirmation of the guidelines given
above.

 Application Allowed.
---------
ORIGINAL JURISDICATION
CIVIL SIDE
DATED: ALLAHABAD 18.10.2005.

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 52316 of 2005

Ramesh Chandra Nagar and others

 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri A.P. Singh
Sri Gautam Awasthi

Counsel for the Respondents:
Sri Anurag Khanna
Sri U.S. Awashthi
S.C.

Contract Labour and Abolition Act-S-10regularisation-petitioner
working
as
driver
with
Noida
Development
Authority-Principal
employee
of
the
petitioner is the licensed contractorchallenge made to advertisement of
fresh vacancy-and the regularization on
preferential
basis-held
absence
of
vacancy claim for regularization held
wholly fallacious-before regularization
they hare to first establish their statesbeing selected on merit alongwith otherand their performance is equal but not
3 All] Ramesh Chandra Nagar and others V. State of U.P. and others
999
otherwise-regularization can be decided
only by Labour Court.

Held-Para 23 and 27

It is apparent from the order and
judgment dated 18.2.2005 that the
petitioners were yet to establish first
their status of workers of respondentAuthority in order to claim preference,
which can only be decided by a Lalbour
Court after adjudication the matter on
facts and evidence and the Court had in
no circumstance observed that selection
would proceed subject to adjudication in
favors of the petitioner.

The petitioners have given service to
NOIDA
Authority
through
licensed
contractors
and
have
received
remuneration from the contractors for
their
services.
The
question
of
preference may arise only after the
petitioners are selected on merits along
with other candidates for the post who
have not worked with NOIDA Authority
and their performance is equal but not
otherwise.
Case law discussed
2001(7) SCC-I
1998(9) SCC-709

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard learned counsel for the
parties and perused the record.

In there two writ petitions, common
questions of law and facts are involved, as
such they are being decided by this
common judgment.

2. In Writ Petition NO. 52316 of
2005 the petitioners claim to be appointed
as Drivers in the New Okhla industrial
Development
Authority
(hereinafter
referred to as the NOIDA), Gautam Budh
Nagar. They also claim to be working
continuously from the year shown against
their names as under.
S
No
Name
Year
of
appointment
1.
Shri
Ramesh
Chandra Nagar
1989
2.
Shri
Yogender
Singh
1985
3.
Shri Ram Prasad
1995
4.
Shri Upender Singh
1996
5.
Shri Suresh Chand
1990

3. The petitioner in this petition has
prayed for quashing of the advertisement
dated 30.6.2005 (Annexure 7) issued by
the NOIDA Authority and further to fill
up the vacancies for drivers only from
amongst the petitioners and similarly
situated persons.

4. The case of the petitioners is that
they have worked for a considerable
period in the service of NOIDA @
Rs.100/= per month as daily wagers and
have
become
over
age
for
other
Government job that they are eligible for
the post of Driver and are entitled to be
appointed as such on permanent basis in
the pay scale of Rs.3050-4590.

An advertisement dated 30.6.2005
was published for filling up one post in
the pay scale of Rs.3050 -4590.

5. Subsequently NOIDA Authority
vide resolution dated 5.7.1999 sent a
proposal subject to approval of the State
Government, for creation of 64 additional
posts of drivers under covering letter
dated 4.8.1999 of the Chief Executive
Officer, NOIDA.

6. The petitioners also made
representations to the Chief Executive
Officer, NOIDA for requesting the State
1000 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
Government to take action in the matter
and in these circumstances when the
matter remained unactioned the petitioner
filed Writ Petition No. 44838 of 2001 for
the following main reliefs:

(a) Issue a writ, order or direction in the
nature of mandamus commanding the
respondent no. 2 to take decision on the
proposal sent by the respondent no. 3 vide
letter dated 4.8.1999 for creation of 64
more posts of drivers in the NOIDA.
(b) Issue a writ, order of direction in the
nature of mandamus commanding the
respondents to regularize the services of
the petitioner drivers in the New Okhla
Industrial Development Authority.
(c) Issue a writ, order of direction in the
nature of mandamus commanding the
respondents to pay the same salary to the
petitioners as is permissible under the law
to the drivers employed on sanctioned
posts.
(d) Issue a writ, order or direction in the
nature of mandamus commanding the
respondent no. 3 not to terminate the
services of the petitioners."

7. The Project Engineer also made a
recommendation that the services of the
drivers working on contract basis be
regularized only after taking sanction
from the state Government.

8. It also appears from the record
that the matter was kept pending and the
State Government did not sanction 64
posts
of
drivers,
rather
issued
advertisement dated 17.10.2004 inviting
fresh applications for appointment on 8
posts of drivers.

9. The writ petition was disposed of
on
17.9.2002
with
the
following
directions:
"In view of the aforesaid, so far
the relief as prayed in this petition
regarding
regularization
of
the
services and direction for payment of
regular
salary,
required
no
examination at this stage. So far as
the prayer as made for a direction to
the respondent no. 2 for taking the
decision on the proposal sent by the
respondent no. 1 dated 4.8.1999,
copy of which has been appended as
Annexure Nos. 11 to 13 to the writ
petition, suffice it to say that in the
event the matter is still pending
decision before respondent no.2 it
will be appropriate for that authority
to take appropriate decision by
means of a reasoned order in that
respect within a reasonable time
which this court feels, period of three
months will be sufficient.
In view of the aforesaid, this
Court without going into the merits
of the case/Claim of the petitioners
which has been placed before this
Court either way, this petition is
being disposed of in terms of the
directions as contained aforesaid.
In the light of the aforesaid, writ
petition stands disposes of.
SD / - S.K. Singh, J.
17.9.2002"

SUBMISSIONS

10. The counsel for the petitioners
submits that the petitioners have a legal
right in view of law declared by the
Hon'ble Supreme Court in the case of
Steel Authority of India Ltd. Vs
National Union Waterfront Workers
and
Others,
(2001)
7
S.C.C.
1.
According to him the apex court in the
aforesaid decision has held that the
contract workman shall have preferential
3 All] Ramesh Chandra Nagar and others V. State of U.P. and others
1001
right of appointment on the pasts which
are sought to be filled up by regular
appointment
and
as
such
the
advertisement for filling up the posts (s)
of driver (s) without considering the rights
of the petitioner (s) is illegal, arbitrary and
is liable to be quashed.

11. It is urged that the similarly
situated drivers along with petitioner
no.1
challenged
the
advertisement
aforesaid in Civil Misc. Writ Petition No.
48390 of 2004 before this Court which
was
decided
vide
judgment
dated
18.2.2005 whereby respondents 3 and 4
were restrained to made appointments in
pursuance of the advertisement dated
17.10.2004. It is further urged that after
hearing the learned counsel for the parties
in Writ Petition No. 48390 of 2004 the
Court passed the following order:

"After
having
examined
the
contention of the parties and perused the
records as well as the order passed by this
Court referred to herein above, it is
evident that the respondent authority
ought to have considered the claim of the
petitioners
in
the
light
of
the
representations made by them. As per the
advertisement which is impugned in the
present writ petition, it is clear that the
appointing
authority
is
the
Chief
Executive Officer, NOIDA, Gautam Budh
Nagar, i.e., the respondent no. 3. The
question as to whether there is an
employee-employer relationship, ought
to have been at least attended to, qua
the petitioners keeping in view their
length of services rendered as drivers to
the respondent NOIDA authority. In
absence of any such consideration, this
Court is of the opinion that the respondent
no. 3 shall consider the claims of the
petitioners in the light of the decisions of
the Apex Court referred to in this
judgment and in particular keeping in
view paras 71 to 77, 88, 97, 101, 107 and
125 of the judgment of the Apex Court
rendered in Steel Authority of India
(supra). The respondent authority will
also consider the judgment relied upon by
the respondents as well and take a
decision in the matter accordingly. It is
expected that the respondent no3 shall
endeavor to take a decision preferably
within a period of 3 months from the date
of presentation of the certified copy of
this order. In case the petitioners are not
satisfies with such decision, the remedy
available to then is to approach the
industrial / labour court in accordance
with the Industrial Disputes Act as held
by the Apex Curt and as directed by this
Court in its judgment dated 17.09.2002.
In view of the aforesaid facts and
circumstances and in view of the fact
that the petitioners are yet to establish
their
status
in
order
to
claim
preference, it would not be appropriate
for this Court to interfere with the
selection process undertaken by the
respondent at this stage. It is however,
observed that the selections pursuant to
the impugned advertisements and the
appointments which the respondents
no. 3 and 4 would proceed to make,
shall be subject to any adjudication
made in favour of the petitioners.

With the aforesaid observation, the
writ petition is disposed of.
SD / - A.P. Sahi, J.
18.2.2005"
12.

The
petitioner-
workmen
aggrieved
by
the
judgment
dated
18.2.2005 aforesaid filed Special Leave
Petition C.C. No. 3924 of 2005 which was
later on dismissed as withdraw. The
Hon'ble Supreme Court vide order dated
1002 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
11.4.2005 while dismissing the writ
petition granted liberty to the appellants to
approach
appropriate
court.
The
petitioners have now come up in this writ
petition for the following relies:

"(a) quash the advertisement published on
30.6.2005 (Annexure P-7 ) by the NOIDA
to the extent it relates to the posts of
driver, declaring the same to be violative
of Articles 14 & 16 and also in
contravention of the direction given by
the Hon'ble supreme Court in Para 125
(6) of the Steel Authority of India case
(2001) 7 S.C.C.
(b) direct the NOIDA to till the vacancy
of the driver only from amongst the
petitioners
and
similarly
situated
employees.
(c) pass such other or further direction or
appropriate writ of order as this Hon'ble
Court may deem fit and proper."

FACTS OF WRIT PETITION NO. 54320 OF
2005

13. In Writ Petition No.54320 of
2005, the petitioners have claimed that
they are regularly working as Junior
Engineers in NOIDA and have become
over age for ay other job; that they
possess requisite qualifications for the
posts of Junior Engineers but are paid less
salary though they perform the same
functions which a regularly appointed
Junior Engineer performs on permanent
post. It is also their case that though they
are employees of NOIDA but are being
shown to have been engaged through the
contractor which is nothing but a mere
camouflage. It is further claimed that an
incorrect statement has been made by
NOIDA that they have no record of the
petitioners which is established from
Annexure P3 toP7. It is urged that from
these documents it is established that the
petitioners are transferred from one place
to another by the NOIDA Authority
without any reference to the alleged
contract and various inspection reports are
signed by the petitioners as officers of the
Authority. It is also the case of the
petitioners in the writ petition that they
have been given as assurance that
whenever vacancies would be available
the petitioners would be regularized, but
this has proved to be a false assurance.

SUBMISSIONS

14. The learned counsel for the
petitioners on the legal aspect of the
matter has submitted that in terms of
paragraph 125 of the judgment rendered
in Steel Authority of India (supra) in the
case of genuine contract of the principal
employer in the event of filling the posts
by regular appointments shall have to give
preferential appointment to the erstwhile
contractual employees it is submitted that
the reasoning for the judgment is very just
and fair in the sense that the contract
employment on the post which are meant
to perform regular and perennial work
should not be rule and such post should be
filled by regular recruitments but if
contractual employees have been made to
work on those post for substantive period
prior to filling up of the post by regular
recruitment then in that event erstwhile
contractual employees should be given
preferential appointment it is further
submitted that as there is no disputed
question of facts to be determined writ is
maintainable The petitioners are seeking
enforcement of their legal right of
preferential appointment in accordance
with the law enunciated by the Hon'ble
Supreme scours in Steel Authority's case
(supra) and the High Court can issue a
3 All] Ramesh Chandra Nagar and others V. State of U.P. and others
1003
writ of mandamus directing the Authority
to give the preferential appointment to the
petitioners under Article 226 of the
Constitution
in
given
facts
and
circumstances of a case.

15. Sri U.S Awasthi learned counsel
for
the
respondents,
has
raised
a
preliminary
objection
that
the
writ
petition is not maintainable as it pertains
to contract labours working working
through a licensed contractor. He submits
that the petitioners are not employees of
NOIDA Authority at all; that it is wellsettled law that the remedy for contract
labours
is
before
the
industrial
Tribunal/Labour Court: that they are only
hired labours supplied by the licensed
contractor on day-to-day need basis. It is
further submitted that the petitioners have
no direct link with NOIDA and they have
failed to establish any relationship of
employees with he respondent by any
adjudications observed by the Court in he
judgment dated 18.2.2005 in Writ petition
No.48390 of 2004 (Ram Kumar & others
Vs
State
of
U.P&
Others)
while
dismissing the writ petition. He also
submits that after the Special Leave
Petition was dismissed by the Hon'ble
Supreme court with liberty to approach
the appropriate court the petitioners filed
Special
Appeal
No.247
of
2005
(defective) which is pending disposal
before these court. He has vehemently
urged that the petitioners and the like
contract workers are not paid wages by
NOIDA Authority directly but are paid by
the licensed contractor who is their
employer. It is further urged by him that
mo decision has been taken by the State
government on the proposal for creation
of posts sent by NOIDA Authority, as
such the petitioners cannot be treated as
regular
employees
as
there
is
no
sanctioned post; that the so called
representations
dated
7.11.2002
and
8.1.2004 said to be submitted by the
petitioners is false and have not been
received by the NOIDA.

16. It is lastly submitted by Sri
Awasthi that the relationship of employer
and employees itself is a disputed
question
of
fact,
which
requires
adjudication of facts on the basis of
evidence, it can only be decided by an
adjudication authority.

17. The learned counsel for the
petitioners in rebuttal submits that it is an
admitted position have been working
since long as contract workmen and hence
in terms of the Constitution Bench
judgment delivered by the Hon'ble
Supreme Court in Steel Authority of India
case they have a preferential right to
appointment in the event the same posts
are
being
filled
up
by
regular
appointment.

18.

Having
considered
the
arguments advanced by the learned
counsel for the parties in support of their
case at length an after going through the
record, the undisputed facts which emerge
are that the petitioners had come in Writ
Petition No. 44838 of 2001 for direction
to the State Government to take decision
on the proposal sent by the respondent -
NOIDA for creation of posts and further
to regularize the petitioners on the said
posts. It is also undisputed that the
Hon'ble supreme Court in the case of
Steel Authority of India Ltd. (Supra) has
held that in order to ascertain the status of
a person claiming regularization or
absorption the appropriate authority is the
Industrial Tribunal or Labour court which
can go into such issues and adjudicate
1004 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
upon the matter. In this case the
petitioners have also placed reliance on
the judgment rendered in Steel Authority
of India (Supra) in Writ Petition No.
44838 of 2001, wherein the Hon'ble
Supreme Court in paragraph 125 (5) held:
*/"If the contract is found to be not
genuine but a mere camouflage, the so -
called contract labour will have to be
treated as employees of the principal
employer who shall be directed to
regularize the services of the contract
labour in the establishment concerned
subject to the conditions as may be
specified by it for that purpose in the light
of Para 6 hereunder."

19. There after the apex court in the
very next paragraph, i.e. paragraph 126
has made it clear that:-

"We have used the expression
"Industrial adjudicator" by design as
determination
of
the
questions
aforementioned requires enquiry into
disputed questions of facts which cannot
conveniently be made by High Court in
exercise of jurisdiction under Article 226
of the Constitution. Therefore, in such
cases the appropriate authority to go into
those issues will be the Industrial
Tribunal/Court whose determination will
be amenable to judicial review."

20.

Admittedly,
the
State
Government sanctioned only 1 post and
not 64 posts for which advertisement
dated 30.6.2005 has been issued. Five of
the petitioners have claimed the relief of
preferential appointment and whose claim
is better cannot be adjudicated upon by
this court as this has to be adjudicated by
an ' Industrial adjudication'. In view of
the fact that the petitioners are working as
drivers having been appointed through a
licensed contractor, they do not have a
legal right to claim regularization in
HOIDA Authority which is not their
employer. Regularization ca only be
claimed against sanctioned vacant post
against which an employee is appointed
or is working in the organization of the
employer and not in the organization
where he is sent to work by his employer.
Thus it has to be seen as to who is the
employer before deciding regularization
of
an
employee.
Even
otherwise
regularization cannot be ordered by the
High Court in view of State of Punjab Vs
Sardara Singh (1998) 9 S.C.C. 709,
wherein it has been held:
"We
find
merit
in
the
said
contention. The High Court could not
direct of regularization of the respondent
but could only direct the appellants to
frame a scheme for the said regularization
and since the scheme has already been
framed, the regularization can only be
made in accordance with the said
scheme."

21. The parties also do not dispute
that contractual appointments have snot
been abolished in HOIDA under Section
10 of the Contract Labour and Abolition
Act and as such they can approach the
appropriate court in this regard. This
admission of the fact by the petitioners
that they are contract workers is also
corroborated from Annexure 6 to the writ
petition which is their representation
wherein it has been sated by them that
they are working in the NOKDA as
drivers on "contract basis" for the last
several years.

22. The posts of drivers are not in
existence, as the State Government has
not sanctioned the same; hence it is
wholly fallacious to claim regularization
3 All] Ramesh Chandra Nagar and others V. State of U.P. and others
1005
by the petitioners against the not-existing
posts.

23. It is apparent from the order and
judgment
dated
18.2.2005
that
the
petitioners were yet to establish first their
status of workers of respondent-Authority
in order to claim preference, which can
only be decided by a Lalbour Court after
adjudication the matter on facts and
evidence and the Court had in no
circumstance observed
that
selection
would proceed subject to adjudication in
favors of the petitioner.

24. The petitioners have neither
placed their appointment letters issued
either by the contractors or by the NOIDA
Authority ( as they claim to be employees
of NOIDA). The contract between the
licensed contractor and NOIDA Authority
has also not been placed. In fact the
petitioners in reply to the counter affidavit
in Writ Petition No. 48390 of 2004 have
not denied the averment that they are
contract workers and do not dispute the
genuineness of the contract.

25. Admittedly, in Writ Petition No.
48390 of 2004 also the petitioners had
placed reliance upon paragraph 125 of the
judgment rendered in Steel Authority of
India (supra) like the present wherein also
the petitioners are basing their claim upon
the observations given in paragraph 125,
which has been disposed of with finding
that the petitioner has to approach
industrial adjudicator, hence this petition
is barred by principles of res judicator.

26. The petitioners admittedly also
has withdrawn the special Leave Petition
C.C. No.3924 of 2005 fled before the
Hon'ble supreme Court against the
judgment and order dated 178.2.2005 and
the Special Appeal filed against the
judgment and order dated 18.2.2005
passed in Writ Petition No. 48390 of 2004
is pending as a defective Special Appeal.
It appears that the Special appeal has been
deliberately filed as defective with the
sole motive to keep the matter alive so
that a stand may be taken that the Special
appeal
is
pending
decision.
The
petitioners are filing successive writ
petition after another on the same gourds
which can safely be said to be abuse of
process of law on same law point which
had earlier been considered and decided
by the Court between the parties. Special
Appeal is not the proper forum as it is in
continuation of the writ petition itself, In
the writ petition the Court has directed the
petitioner to raise the matter before
Industrial
Court/
Tribunal
and
the
Hon'ble
supreme
Court
has
also
dismissed the Special Leave Petition of
the
petitioner
as
withdrawn
with
observation to approach the proper form
i.e. Industrial Adjudicator which has not
been done by the petitioner and not only
he filed Special Appeal No. 247 of 2005
(defective) but also the present writ
petition again on same grounds.

27. In so far as the question of
preferential rights is concerned, the case
of the petitioners is not like that of
Apprentices
appointed
under
the
Apprenticeship Act, 1961 where the
employer spends considerable amount of
time, money and energy in imparting
training to the apprentices in various
trader. The petitioners have given service
to NOIDA Authority through licensed
contractors
and
have
received
remuneration from the contractors for
their services. The question of preference
may arise only after the petitioners are
selected on merits along with other
1006 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
candidates for the post who have not
worked with NOIDA Authority and their
performance is equal but not otherwise.

28. The learned counsel for the
petitioners has tired to point out minor
mistakes in the photo copies of the
documents filed in Writ petition No.
54320 of 2005 to establish a case against
the respondents, such as that copy of
Annexure P 4 at page 31 is not endorsed
to any contractor; the name of Sri Shyam
shown along with other employees
working as contract labour is not junior
Engineer but a Computer Operator.
Similar mistakes have been pointed out in
Annexure P 5 wherein it is claimed that
the inspection report sis signed by the
petitioners as the signatures of NOIDA
Officer. Annexure P 7 is said to have been
signed by one of the employees as In
charge showing loading and unloading of
vehicles. These discrepancies emphasized
by
the
petitioners
are
irrelevant.
Relationship of
master and
servant
between the petitioners which may have
typographical or clerical errors. Such
mistakes will not crate the relationship.
The burden of proof has to be discharged
before the adjudicating authority. The
documents have to be proved as has
rightly been held by the courts by oral
evidence as it is pure question of fact
which cannot be decided in writ petition
merely on the basis of photocopies of
some documents filed or the first time
before the High Court. The NOIDA
Authority has not denied the engagement
of the petitioners through contract labour,
hence even if the petitioners have signed
the inspection report etc. the same does
not support their case. What really matters
is the nature of their appointment and who
has appointed them

29. I have already dealt with other
legal contention of the learned counsel for
the petitioners in this judgment which are
common in both the petitions and need
not be repeated.

30. For the reasons stated above
these petitions are dismissed. No order as
o costs.
Petition dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.08.2005

BEFORE
THE HON'BLE MRS. POONAM SRIVASTAVA, J.

Criminal Misc. Application No. 8650 of
2005

Rashim

...Applicant
Versus
State of U.P. & another ...Opposite Parties

Counsel for the Applicant:
Sri P.K. Bhardwaj

Counsel for the Opposite Parties:
A.G.A.

Code
of
Criminal
Procedure-S-482Quashing
of
Criminal
Proceeding-
offence under 498-A, 323 IPC-Trail of
other co-accused ended in acquittal-all
the
prosecution
witnesses
became
hostile-if
trail
allowed
against
the
applicant-amounts to wart age of timeheld-principle
of
"stare
decise"
applicable-proceeding quashed.

Held- Para 2 & 3

The witnesses were declared hostile and
finally the trial has ended in acquittal. In
the circumstances, the claim of the
applicant is that there is no prospect of
the case ending in conviction if allowed
to continue against the applicant. It will