# Hindustan Aeronautics Ltd. Transport Aircraft Division Chakeri, Kanpur Nagar v. State of UP & Ors

- **Citation:** (2021) 1 ILRA 300
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-17
- **Case number:** Writ C No. 19538 of 2020
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hindustan-aeronautics-ltd-transport-aircraft-division-chakeri-kanpur-nagar-v-46005
- **Pages:** 6

## Headnote

(A) Labour Law - Industrial Disputes
Act, 1947 - Section 10(1)(c) - U.P.
Industrial
Disputes
Act,
1947
-
Section 4-K - reference - no principle
known to law which permits an
administrative
review
of
judicial
action - law envisages judicial review
of administrative action, and in some
cases, legislative action also - Judicial
orders can be undone by invoking the
1 All. Hindustan Aeronautics Ltd. Transport Aircraft Division Chakeri, Kanpur Nagar Vs. State of U.P. & Ors.
301
appellate, revisional or supervisory
procedures by approaching a higher
judicial forum - It cannot be done by
an executive or administrative action
- impugned order passed by the
Labour
Commissioner

and
consequential notice issued by the
Labour Court quashed. (Para - 18)

Reference was made by the State Government
under Section 10(1)(c) of the Industrial Disputes
Act, 1947 at the behest of respondent no. 4,
who are an employees' association of the
petitioners - dispute referred was one relating to
promotion of two employees of the petitioner -
dispute has been referred by the State
Government under Section 10(1)(c) of the
Central Act and the same requires to be
adjudicated by a Court constituted under the
Central Act - reference order has referred the
dispute to the Labour Court which was not a
Court constituted under the Central Act. (Para -
8)

HELD:- Labour Commissioner is not a Court.
He
exercises
the
powers
of
the
State
Government to make a reference that is not a
judicial power of any kind. All that he can
exercise is an administrative or executive power
conferred on the Government. Delegation of
powers under Section 39 of the Central Act
made by the Central Government is to exercise
the administrative power of making a reference
to the competent Court. It is in no way a judicial
authority of supervision over the Labour Court,
conferred on the Commissioner. Impugned
order
undoing
a
judicial
order
by
an
administrative determination is ultra vires and
without jurisdiction.(Para - 18)

Writ Petition allowed. (E-6)

List of Cases cited :-

## Text

300 INDIAN LAW REPORTS ALLAHABAD SERIES

26. In any event, even for restricting
the scope of Article 19 (1) (a) by means of
any law, it is clear that the operation of
such law by the State imposing reasonable
restrictions should be in the interest of the
sovereignty and integrity of India, the
security of the State, friendly relations with
the Foreign States, public order, decency or
morality or in relation to contempt of court,
defamation or incitement of an offence.

27. In view of the law as pronounced
by the Supreme Court, it is clear that the
CBSE Regulations relied upon by the
respondents cannot be considered to be a
''law' as required under Article 19(2)
through which reasonable restrictions can
be imposed on the freedom of expression
guaranteed under Article 19 (1) (a). Thus, I
have no hesitation in holding that the right
of freedom of expression guaranteed to the
petitioner under Article 19 (1) (a), in the
present case freedom of expression through
change of name, cannot be denied to the
petitioner and he is entitled to change his
name.

28. It is further to be considered that
different name in different records will lead
to undue hardship to both the petitioner and
the respondents, as such to reconcile the
issue and the hardships that may be faced
by the CBSE in changing the name, as the
certificate issued by the earlier name has
already been issued to the petitioner, taking
a cue from the judgment in the case of
Rayaan Chawla (Supra), I direct that the
CBSE shall record in their records the
name of the petitioner as "Kabir Jaiswal
alisa/nee Rishu Jaiswal" in the records of
the CBSE and shall issue a fresh certificate
recording the name as directed above in
respect
of
the
Secondary
School
Examination of the academic sessions
2011-2013 Class-X bearing Roll No.
5118987 and the Senior School Certificate
Examination of the year 2015 i.e. Class-XII
bearing Roll No. 5653747. The said
exercise shall be carried out by the
respondents within a period of two months
from the date a copy of the order is
produced before the respondent no. 2.

29. The writ petition is allowed in
terms of the said order.

30. Copy of the order downloaded
from the official website of this Court shall
be treated as certified copy of this order.
----------
(2021)01ILR A300
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.12.2020

BEFORE

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

Writ C No. 19538 of 2020

Hindustan
Aeronautics
Ltd.
Transport
Aircraft Division Chakeri, Kanpur Nagar
 ...Petitioner
Versus
State of UP & Ors. ...Respondents

Counsel for the Petitioner:
Sri Diptiman Singh

Counsel for the Respondents:
C.S.C.

(A) Labour Law - Industrial Disputes
Act, 1947 - Section 10(1)(c) - U.P.
Industrial
Disputes
Act,
1947
-
Section 4-K - reference - no principle
known to law which permits an
administrative
review
of
judicial
action - law envisages judicial review
of administrative action, and in some
cases, legislative action also - Judicial
orders can be undone by invoking the
1 All. Hindustan Aeronautics Ltd. Transport Aircraft Division Chakeri, Kanpur Nagar Vs. State of U.P. & Ors.
301
appellate, revisional or supervisory
procedures by approaching a higher
judicial forum - It cannot be done by
an executive or administrative action
- impugned order passed by the
Labour
Commissioner

and
consequential notice issued by the
Labour Court quashed. (Para - 18)

Reference was made by the State Government
under Section 10(1)(c) of the Industrial Disputes
Act, 1947 at the behest of respondent no. 4,
who are an employees' association of the
petitioners - dispute referred was one relating to
promotion of two employees of the petitioner -
dispute has been referred by the State
Government under Section 10(1)(c) of the
Central Act and the same requires to be
adjudicated by a Court constituted under the
Central Act - reference order has referred the
dispute to the Labour Court which was not a
Court constituted under the Central Act. (Para -
8)

HELD:- Labour Commissioner is not a Court.
He
exercises
the
powers
of
the
State
Government to make a reference that is not a
judicial power of any kind. All that he can
exercise is an administrative or executive power
conferred on the Government. Delegation of
powers under Section 39 of the Central Act
made by the Central Government is to exercise
the administrative power of making a reference
to the competent Court. It is in no way a judicial
authority of supervision over the Labour Court,
conferred on the Commissioner. Impugned
order
undoing
a
judicial
order
by
an
administrative determination is ultra vires and
without jurisdiction.(Para - 18)

Writ Petition allowed. (E-6)

List of Cases cited :-

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

1. This writ petition has been filed,
challenging an order passed by the Labour
commissioner,
U.P.
Kanpur
dated
05.05.2020 and a notice dated 03.07.2020
issued by the Presiding Officer, Labour
Court (3) U.P., Kanpur, in Adjudication
Case No. 115 of 2020.

2. In compliance with the order dated
07.12.2020, a better affidavit has been filed
by Mr. Mahadeo N. Bobde, presently a
Member (Judicial), Board of Revenue at
Lucknow
and
formerly,
the
Labour
Commissioner, U.P., Kanpur Nagar. By an
earlier order dated 26.11.2020, the named
officer was required to file a personal
affidavit for the reasons indicated therein.
He filed a personal affidavit on 07.12.2020.
It was not found satisfactory. He was
granted an opportunity to file a better
affidavit. The affidavit dated 16.12.2020
has been filed, in compliance with the order
dated 07.12.2020, as already indicated.

3. The explanation offered by Mr.
Mahadeo N. Bobde is accepted.

4. Notice was issued to respondent no.
4, in compliance with this Court's order, by
speed post, bearing Consignment No.
EU296438326IN, which has been delivered
to the fourth respondent on 01.12.2020. It
is so indicated in the Office Report dated
05.12.2020. The Office report also shows
that their conclusion about delivery by
speed post is based on a post office report
dated 05.12.2020, along with a track of the
consignment that is attached. An affidavit
of service dated 05.12.2020 has also been
filed by Mr. Diptiman Singh, learned
counsel for the petitioner, which encloses
with it a copy of the dasti notice handed
over to the petitioner by the office on
27.11.2020. A perusal of the second copy
of the notice form shows that service has
been effected dasti also upon respondent
no. 4 on 01.12.2020. Accordingly, service
upon the fourth respondent is held good.
No one appears his behalf.
302 INDIAN LAW REPORTS ALLAHABAD SERIES

5. Heard Mr. Diptiman Singh, learned
counsel for the petitioner and Mr. Vinod
Kant, learned Additional Advocate General
assisted by Mr. Shriprakash Singh, learned
Standing Counsel appearing on behalf of
respondent nos. 1, 2 and 3.

6. Hindustan Aeronautics Limited is a
Central
Government
undertaking
that
functions under the Ministry of Defence,
Government of India. It is a company
incorporated under the provisions of Indian
Companies Act, with its Registered Office
at 15/1, Cubbon Road, Bengaluru. The
Company is engaged in the manufacture,
repair and overhauling of aircraft and other
defence equipment. They provide services
and cater to the requirements of the defence
services in India. The petitioner has several
units across the country.

7. This writ petition relates to the
Transport Aircraft Division, HAL, Kanpur.
The Transport Aircraft Division, Kanpur
deals with the manufacture, maintenance,
overhauling and repair of transport aircraft
used by the Defence Forces of the Nation.
It is represented on behalf of the petitioner
that the President of India, being the Head
of the Executive and Supreme Commander
of the Armed Forces under Article 53 of
the Constitution, commands 100% shares
holding of the company : some directly, the
others vicariously. The President of India
holds six shares out of eleven and all the
other five directors are high ranking
officers of the Ministry of Defence,
Government of India, who function under
the direct control of the President of India
as the Supreme Commander of the Armed
Forces. It is thus made out that the
appropriate
Government
vis-a-vis
the
petitioner under the Industrial Disputes
Act, 1947 are the Central Government.

8. It figures that on 26.07.2007, a
reference
was
made
by
the
State
Government under Section 10(1)(c) of the
Industrial Disputes Act, 1947 (for short,
''the Central Act') at the behest of
respondent no. 4, who are an employees'
association of the petitioners. The dispute
referred was one relating to promotion of
two employees of the petitioner w.e.f.
01.07.2005. It is pleaded on behalf of the
petitioner that the reference order clearly
shows that the dispute has been referred by
the State Government under Section
10(1)(c) of the Central Act and the same
requires to be adjudicated by a Court
constituted
under
the
Central
Act.
However,
the
reference
order
dated
26.07.2007 has referred the dispute to the
Labour Court (5), Kanpur which was not a
Court constituted under the Central Act.

9. The aforesaid case was registered
as Adjudication Case No. 137 of 2008 on
the file of the Labour Court (5), Kanpur.
On January the 13th, 2009, the petitioners
filed their written statement in the cause. A
preliminary objection was raised with
regard to the competence of the Labour
Court inasmuch as the Labour Court was
not constituted under the Central Act. It
was urged that a Labour Court constituted
under the Central Act alone could have
jurisdiction relating to a dispute between
the petitioner and its workman.

10. During the course of proceedings,
two issues were framed on 9th September,
2009. Issue no. 1 was regarding the
competence
of
the
authorized
representative appointed to represent the
employer-petitioners.
That
is
not
of
relevance here. The second issue framed as
Issue No. 2 reads thus (translated into
English from Hindi vernacular):
1 All. Hindustan Aeronautics Ltd. Transport Aircraft Division Chakeri, Kanpur Nagar Vs. State of U.P. & Ors.
303

"Whether
the
Labour
Court
constituted by the Government of U.P. has
jurisdiction to hear the reference or it is
cognizable by the Labour Court constituted
by the Central Government?"

11. There is no reason to disbelieve
the petitioners' unrebutted case to the effect
that after a detailed hearing, the Labour
Court (3), Kanpur vide its order dated
17.07.2019, held that the Labour Court (3)
is not competent to hear the matter, as it is
not constituted under the Central Act. It
was held that the reference was made under
the Central Act and the Court constituted
under the U.P. Industrial Disputes Act,
1947 had no jurisdiction to hear and
determine it. The order of reference dated
26.06.2007 was held to be bad in law and
one conferring no jurisdiction.

12. It is averred in paragraph 20 of the
writ
petition
that
the
order
dated
17.07.2019 passed by the Labour Court has
not been challenged by respondent no. 4
before any higher judicial forum/Court.
Thus, the order dated 17.07.2019 has
attained finality. It is also asserted that the
order dated 17.07.2019 was made after
hearing both parties at length and proper
opportunity was provided by the Labour
Court to the fourth respondent. It figures
that on 14.11.2019 and 18.12.2019, the
fourth respondent made applications to the
Labour Commissioner, Kanpur seeking a
review of the order dated 17.07.2019
passed by the Labour Court (3). Those
applications are on record, compendiously
annexed as Annexure-9 to the writ petition.

13.

The
Labour
Commissioner,
curiously enough, sought opinion of the
District
Government
Counsel
(Civil),
Kanpur. The District Government Counsel
vide his opinion dated 17.03.2020, advised
the
Labour
Commissioner
that
the
adjudication case could be heard by a Court
constituted under the U.P. Industrial Disputes
Act, 1947. That opinion of the District
Government Counsel dated 17th March, 2020
is also on record. The Labour Commissioner
sent a memo dated 05.05.2020 to the Labour
Court (3), with a request that the order dated
17.07.2019 may be reviewed and the
adjudication case may be heard by that
Labour Court. This communication from the
Labour Commissioner to the Labour Court
(3), Kanpur says after extracting the opinion
that the Labour Commissioner had received
from the District Government Counsel that
bearing in mind the DGC's opinion the
Government have decided (the Labour
Commissioner exercising delegated powers
of the State Government) to send back the
matter to the Labour Court for a review of its
judgment.

14. The memo dated 05.05.2020,
which, in substance, is an order passed by the
Labour Commissioner, also returns along
with it the original order dated 17.07.2019
passed in Adjudication Case No. 115 of 2010
to the Labour Court (3), Kanpur, enclosing
with it a photostat copy of the District
Government counsel's opinion. This memo
dated 05.05.2020 issued by the Labour
Commissioner, U.P., Kanpur and addressed
to the Presiding Officer, Labour Court (3)
Kanpur is hereinafter called ''the impugned
order'.

15. Acting on the impugned order, the
Labour Court (3), Kanpur issued notice
afresh to the petitioner, taking cognizance
of the Adjudication Case No. 115 of 2010
which had already been decided by the
Labour Court, in terms of which the award
dated 17.07.2019, upholding the petitioner's
objections on ground of lack of jurisdiction,
was passed.
304 INDIAN LAW REPORTS ALLAHABAD SERIES

16.

Looking
to
the
peculiar
circumstances attending the impugned
order and the prima facie gross usurpation
of
jurisdiction
by
the
Labour
Commissioner, U.P., Kanpur who virtually
set aside a judicial order of the Labour
Court by means of the impugned order, this
Court required the then incumbent Labour
Commissioner, U.P. to file his personal
affidavit explaining circumstances in which
he acted in the manner that he did. A
personal affidavit dated 07.12.2020 was
filed by Mr. S.M. Bobde, the then Labour
Commissioner, U.P. and presently Member
(Judicial), Board of Revenue, Lucknow. He
did not at all show in that affidavit as to
how he got jurisdiction to undo a judicial
determination of the Labour Court, in the
exercise of his administrative powers on
behalf of the State Government to make a
reference. The explanation being prima
facie
not
found
satisfactory,
further
opportunity was granted to Mr. Bobde to
file a better affidavit. He came up with a
better affidavit dated 16th December, 2020
(sworn on 10.12.2020) filed in Court on
17.12.2020, where he accepted that he had
passed
the
impugned
order
dated
05.05.2020
inadvertently,
under
some
misconception and wrong advice. He said
that, now that he has been transferred to the
Board
of
Revenue,
he
cannot
recall/withdraw the impugned order.

17. This Court has considered the
matter in substantial detail, though without
the assistance of respondent no. 4, who
have chosen not to appear. The issue here is
whether the Labour Commissioner, who
exercises delegated powers of the State
Government to refer a dispute under
Section 4-K of the U.P. Industrial Disputes
Act, or, in the present case, under Section
10(1)(c) of the Central Act, could undo a
judicial determination of the Labour Court,
holding that the reference made to it by the
State Government was incompetent. This
Court does not think so.

18. A perusal of the impugned order
shows that the Labour Commissioner, U.P.,
Kanpur has held a judicial order of the
Labour Court to be flawed. He has sent
back the matter to the Labour Court to
decide the reference on merits. The Labour
Commissioner
has
decided
that
the
reference is competent. He has done so on
the basis of an opinion of the District
Government Counsel, Kanpur Nagar. The
Labour Commissioner is not a Court. He
exercises
the
powers
of
the
State
Government to make a reference that is not
a judicial power of any kind. All that he
can exercise is an administrative or
executive
power
conferred
on
the
Government. Now, if there were a
delegation in his favour under Section 39,
assuming that he had the necessary
delegation, the delegation of powers under
Section 39 of the Central Act made by the
Central Government is to exercise the
administrative power of making a reference
to the competent Court. It is in no way a
judicial authority of supervision over the
Labour
Court,
conferred
on
the
Commissioner. In case, any party was
aggrieved by the order dated 17.09.2019
passed by the Presiding Officer, Labour
Court (3), U.P., Kanpur in Adjudication
Case No. 115 of 2010, it was open to that
party to approach this Court under Article
226 or 227 of the Constitution, for those are
the only remedies that are open, apart from
Article
136
of
the
Constitution,
to
challenge a judicial determination of the
Labour Court, be it an order or an award.
There is no principle known to law which
permits an administrative review of judicial
action. The law envisages judicial review
of administrative action, and in some cases,
1 All. The C/M, Maharshi Kapil Muni Shiksha Samiti, District Mainpuri & Anr. Vs. State of
 U.P. & Anr.
305
legislative action also. But there is no
concept known to law that permits an
administrative review. Judicial orders can
be undone by invoking the appellate,
revisional or supervisory procedures by
approaching a higher judicial forum. It
cannot be done by an executive or
administrative action. The impugned order
is also bad, for another reason. It has
proceeded substantially, if not entirely, on
the opinion of the District Government
Counsel. Even if an opinion were sought by
the
Labour
Commissioner,
who
is
presumably a layman (as opposed to a
legally trained mind) ought not have
referred to the legal opinion received by
him. In fact, he should not have acted on
any legal opinion at all. This is so because
an order founded on legal opinion is not
one where the Authority making the order,
has done an independent application of
mind. Rather, he has gone by the opinion of
another, may be a legal expert. This in
itself would vitiate the impugned order. In
any view of the matter, this Court is of
clear opinion that the impugned order
undoing
a
judicial
order
by
an
administrative determination is ultra vires
and without jurisdiction. Though, Mr.
Diptiman Singh sought to justify the order
dated 17.07.2019 passed by the Presiding
Officer, Labour Court (3), U.P., Kanpur in
Adjudication Case No. 115 of 2010, this
Court is not minded to examine that
question in the absence of a challenge to
the order dated 17.07.2019 by a party who
is aggrieved. It is also made clear that if
any party, including the fourth respondent,
is aggrieved by the order dated 17.07.2019,
it would be open to them to challenge the
said order through competent proceedings,
as advised.

19. In the result, this writ petition
succeeds and is allowed. The impugned
order dated 05.05.2020, passed by the
Labour
Commissioner,
U.P.,
Kanpur
insofar as it relates to Adjudication Case
No. 115 of 2010, is hereby quashed. The
consequential notice issued by the Labour
Court (3) U.P., Kanpur dated 03.07.2020 in
Adjudication Case No. 115 of 2010 is also
quashed.

20. There shall, however, be no order
as to costs.
----------
(2021)01ILR A305
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.12.2020

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ C No. 19885 of 2020

The C/M, Maharshi Kapil Muni Shiksha
Samiti, District Mainpuri & Anr.
 ...Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Sri Ved Prakash Shukla

Counsel for the Respondents:
C.S.C.

(A) Civil Law - voluntary dissolution -
Societies Registration Act, 1960 -
Section 13 - Provision for dissolution
of societies and adjustment of their
affairs - Section 13A - Power of
Registrar to apply for dissolution ,
Section 13B - Dissolution by court -
voluntary dissolution under Section
13 - simply requires the passing of a
resolution by the members of the
society no being less than threefourth of the total members of the
society - Once the said condition is