# Hridesh Kumar & Ors v. State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 1689
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-17
- **Case number:** Writ A No. 19367 of 2018
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hridesh-kumar-ors-v-state-of-u-p-ors-45213
- **Pages:** 9

## Headnote

Law
-
regularization
of
contract employees - Contract Labour
(Regulation and Abolition) Act, 1970 -
Section 10 - notification - Constitution of
India - Article 226 - Constitution Bench
judgment of the Apex Court in Steel
Authority of India Ltd. and others v.
National Union Waterfront Workers and
others - held - no right of absorption of
the contract labours - further enquiry
into question of fact cannot be made in
exercise of jurisdiction under Article 226
of Constitution of India - appropriate
forum
for regularization
of
contract
employees is the Industrial Adjudicator -
nature of enquiry warranted in the facts
of the present case falls within the
exclusive jurisdiction of the Industrial
Adjudicator
-
writ
petition
-
not
maintainable. (Para 16,17)

Petitioners' claim for regularization has been
rejected after returning a specific finding that
no
employer-employee
relationship
exists
between the petitioners and the authority and
1690 INDIAN LAW REPORTS ALLAHABAD SERIES
that no records are maintained in respect of
engagement of persons through contractor.
(Para 11)

Held :- Petitioners' be relegated to the remedy of
approaching Industrial Adjudicator in light of the law
laid down by the Apex Court in the case of Steel
Authority of India Ltd. - it would be appropriate to
direct the State Government to forthwith refer
petitioners' claim to the appropriate Industrial
Adjudicator for proceedings to be concluded at the
earliest. (Para-22)

Writ Petition dismissed. (E-7)

List of cases cited:-

## Text

2 All. Hridesh Kumar & Ors. Vs. State of U.P. & Ors.
1689
jurisdiction. No Administrative Authority
is possessed of jurisdiction to revive an
order that has been quashed or set aside by
a Court of competent jurisdiction, while
redetermining a matter on remand by the
Court. To pass the same order afresh or
reach
the
same
conclusions,
on
determining a matter after remand by a
Court setting aside the order of an
Administrative Authority is permissible.
But, that determination is to be expressed
in a fresh order to be made by the
Authority. Decidedly, an Administrative
Authority cannot revive an order earlier
made by it and quashed by a Court or
Judicial Authority.

13. The said issue apart, the first part
of the infirmity in the impugned order that
it is based upon proceedings where no
evidence on behalf of the establishment
has been recorded and the fact that the
establishment have not discharged their
burden on the charges, the entire edifice of
the impugned order is non existent.

14. In the result, this petition
succeeds and is allowed.

15. The impugned order dated
28.09.2018
passed
by
the
District
Panchayat Raj Officer, Shamli is hereby
quashed. The petitioner shall be reinstated
in service forthwith and shall be paid his
salary together with arrears. It will,
however, be open to the respondents to
proceed afresh from the stage the charge
sheet was issued to the petitioner in
accordance with law, if they so deem fit,
and pass fresh orders.

16. The personal presence of Arun
Atri, the then District Panchayat Raj
Officer, Shamli (now Additional District
Panchayat Raj Officer) is exempted.

17. The records produced by the
District Panchayat Raj Officer, Shamli are
ordered to be returned to him in original.
----------
(2020)02ILR A1689

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.12.2019

BEFORE
THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ A No. 19367 of 2018

Hridesh Kumar & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Abhishek Gupta, Sri Chandra Bhan
Gupta

Counsel for the Respondents:
C.S.C., Sri Ramendra Pratap Singh

A.
Service
Law
-
regularization
of
contract employees - Contract Labour
(Regulation and Abolition) Act, 1970 -
Section 10 - notification - Constitution of
India - Article 226 - Constitution Bench
judgment of the Apex Court in Steel
Authority of India Ltd. and others v.
National Union Waterfront Workers and
others - held - no right of absorption of
the contract labours - further enquiry
into question of fact cannot be made in
exercise of jurisdiction under Article 226
of Constitution of India - appropriate
forum
for regularization
of
contract
employees is the Industrial Adjudicator -
nature of enquiry warranted in the facts
of the present case falls within the
exclusive jurisdiction of the Industrial
Adjudicator
-
writ
petition
-
not
maintainable. (Para 16,17)

Petitioners' claim for regularization has been
rejected after returning a specific finding that
no
employer-employee
relationship
exists
between the petitioners and the authority and
1690 INDIAN LAW REPORTS ALLAHABAD SERIES
that no records are maintained in respect of
engagement of persons through contractor.
(Para 11)

Held :- Petitioners' be relegated to the remedy of
approaching Industrial Adjudicator in light of the law
laid down by the Apex Court in the case of Steel
Authority of India Ltd. - it would be appropriate to
direct the State Government to forthwith refer
petitioners' claim to the appropriate Industrial
Adjudicator for proceedings to be concluded at the
earliest. (Para-22)

Writ Petition dismissed. (E-7)

List of cases cited:-

1. Steel Authority of India Ltd. Vs. National Union
Waterfront Workers , 2001 (7) SCC 1, (Precedent
followed),(Para-18)

2. Secretary, Haryana State Electricity Board v.
Suresh , 1999 (3) SCC 601, (Precedent
overruled), (Para-18)

3. Air India Statutory Corporation v. United Labour
Union and Ors., AIR 1997 SC 645, (Precedent
overruled), (Para-18)

4. R. K. Panda and Ors. v. Steel Authority of India
and Ors. , 1994 (5) SCC 304, (Precedent
overruled), (Para-15)

5. Balwant Rai Saluja v. Air India Ltd. ,2014 ( 9)
SCC 407, ( Precedent distinguished), (Para21)

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. Petitioners have filed the present
writ petition challenging an order passed
by Chief Executive Officer, Greater Noida
Industrial
Development
Authority
(hereinafter referred to as ''the authority')
dated 16.10.2018, whereby their claim for
regularization has been rejected. This
order has been passed pursuant to a
direction issued by this Court in Writ
Petition No. 15985 of 2018, dated
27.07.2018,
which
is
reproduced
hereafter:-

"Heard learned counsel for the
petitioners and the learned counsel for the
respondents Shri Mayank Singh holding
brief of Shri B.B.Jauhari.

Shri B.B.Jauhari has filed memo
of appearance on behalf of Greater
NOIDA, which is taken on record.

Shri Mayank Singh has informed
this Court that the petitioners had earlier
filed a writ petition which was decided by
a detailed order on 10.07.2013. He has
raised preliminary objection regarding
maintainability of the writ petition.

Learned
counsel
for
the
petitioners however says that a fresh cause
of action has arisen after the Government
Order dated 24.02.2016 and the petitioners
may be allowed to make a representation
in
accordance
with
the
aforesaid
Government Order before the authority
concerned i.e. the Chief Executive Officer,
Greater NOIDA (respondent no. 3), which
may be directed to be decided in
accordance with law.

Accordingly, this writ petition is
disposed of without entering into the
controversy raised with a direction to the
petitioners to make a representation to the
respondent no. 3 within a period of two
weeks from today. The respondent no. 3
shall consider the grievance of the
petitioner and pass appropriate reasoned
and speaking order within a further period
of two months."

2. Petitioners have asserted in para 3
that they are working against different
posts like Technician, Telephone operator,
Electrician etc. and that some of them have
also been promoted to higher posts. In para
4 of the writ petition it is stated that
petitioners
are
continuously
working
2 All. Hridesh Kumar & Ors. Vs. State of U.P. & Ors.
1691
without any break, to the satisfaction of
the officers concerned, against permanent
posts and are qualified for appointment to
the posts in question. In para 7 of the writ
petition it is disclosed that petitioners had
earlier filed Writ Petition No. 36607 of
2013, which was dismissed on 10.07.2013,
but a Special Appeal preferred against it, is
pending. The order dated 10.07.2013,
dismissing Writ Petition No. 36607 of
2013, is reproduced hereinafter:-

"The petitioner claims to be an
association titled as Dainik Vetan Bhogi
Karamchari Sangh, U.P. Greater Noida
Audyogik
Vikas
Pradhikaran,
has
approached this Court with request to
direct the respondents to consider the case
of
the
members
of
the
petitioner
association for regularization on respective
posts and further prayer has been made to
extend all benefits to the members of the
petitioner association as other regular
employees are getting since the date of
joining of their service.

On the matter being taken up
today, Learned counsel appearing on
behalf of Greater Noida Development
Authority had made categorical statement
to the effect that till today no policy for
extending the benefit of regularization has
been framed who are working in the
establishment of the Authority. Once there
is no policy decision to extend the benefit
of regularization of service, the request
made by the petitioner cannot be accepted
as daily wagers even otherwise have no
right to claim reglarization, unless and
untill there is a scheme.

The law on the said subject has
been laid down by Apex Court in the Case
of Secretary State of Karnataka and Others
Vs. Umadevi and others [2006 (4) SCC 1]
that exercise of regularization shall not be
taken as a matter of right.

It has been further contended on
behalf of the petitioner Association that
Rajkiya
Vahan
Chalak
Mahasangh
representing the drivers working in the
respondent
authority
preferred
Writ
Petition No. 27557 of 2005 before this
Court and the same was disposed of with a
direction to the Authority to consider the
case of the members of the petitioner
therein for regularization on the post of
driver. Against the said order of this Court
the respondent Authority approached the
Apex Court by means of Special Leav
Petition. Apex Court in the said matter
directed the Authority to undertake the
exercise of recruitment for the posts of
Drivers strictly as per the procedure
prescribed in Greater Noida Industrial
Development
Authority
Service
Regulations, 1993 and that till the said
process is completed, the services of the
members of respondent therein shall not be
terminated. Even in the said order of Apex
Court, claim of regularisation has not been
accepted.

In the facts of the present case
when such is the accepted position that
there is no policy formulated for extending
the benefit of regularization, the request as
has been made by the members of the
petitioner association cannot be adhered
to.

Here in the present case, once no
process whatsoever for recruitment had
taken place and there is no policy for
extending the benefit of regularization,
therefore, aforementioned judgment of the
Apex Court will not come to the rescue
and respite of the petitioner.

The writ petition is accordingly
dismissed."

3. In para 9 of the writ petition it is
contended that petitioners are working
under the supervision and control of
1692 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent authority as also its officers
and wages are also being paid to them by
the authority. Paragraphs 10 and 11 of the
writ petition are relevant and are extracted
hereinafter:-

"10. That it is pertinent to
mention here that the appointment letter
has not been issued to the petitioners by
the respondent authority since they were
working on different post under the
supervision and control of respondent
authorities
and
their
works
are
in
permanent nature thus they are entitled to
be regularized/absorbed in the respondent
department.

11. That it is stated that now the
petitioners have come to know that the
respondent authorities have issued some
letter in respect of appointment of
contractor through e-tendering and now
respondents are interested to take work
from the petitioner through contractor."

4. In paragraph 12 of the writ petition
it is asserted that petitioners have worked
for more than twenty years with the hope
that they shall be regularized in the
employment of authority. In para 13 it is
alleged that work performed by petitioners
are permanent in nature and the authority
is not justified in undertaking work from
them
through
E-tender
(apparently
referring to contract system). In para 15
petitioners state as under:-

"15. That the respondents were
going to take work from the petitioners
through
contractor,
under
these
circumstances petitioners were compelled
to file Writ Petition No. 15985 of 2018."

5. Petitioners contend that a
Government Order dated 24.02.2016 has
now been issued which provides for
regularizing the services of daily wagers,
including
contractual
employees,
in
different departments and, therefore, a new
cause of action has arisen for the
petitioners
to
approach
this
court,
notwithstanding, the dismissal of their
earlier writ petition against which a
Special Appeal is pending. Submission is
that the Chief Executive Officer without
taking note of the Government Order dated
24.02.2016
has
proceeded
to
reject
petitioners' claim for regularization. In
para 22 it is stated that Chief Executive
Officer has not discussed evidence of
appointment of petitioners and the order
impugned is illegal. In para 23 petitioners
claim that they are working in Greater
Noida for the last 20 years. In para 25
petitioners assert as under: -

"25. That it is stated that in view
of the aforesaid fact the petitioners are to
be treated as contractual employee of the
Greater NOIDA and hence the order
impugned passed by respondent No.3 is
illegal."

6. In support of their claim
petitioners have relied upon a Division
Bench Judgment of this Court in Special
Appeal No. 790 of 2018, decided on
12.04.2018, which shall be referred to,
later.

7. Petitioners claim for regularization
is rejected by the authority on following
grounds:-

(i) A finding is returned that
none of petitioners have ever been
appointed directly by the authority, nor
there exits any contract of employment in
respect of petitioners. It is observed in the
order that depending upon the requirement
of the work the authority has been
2 All. Hridesh Kumar & Ors. Vs. State of U.P. & Ors.
1693
engaging
persons
through
registered
contractors, for a period of three months,
and the payment of wages to such
employees is also made by the contractors.

(ii) The authority only maintains
records with regard to engagement of
contractors, as also the number of persons
engaged and the wages paid to them. Since
petitioners have neither been appointed by
the authority, nor there exist any contract
of employment between the petitioners
and the authority as such the petitioners
are not liable to be treated as the
employees of authority.

(iii) Order impugned further
records that from time to time regular
recruitment has been undertaken by the
authority and it was open for persons such
as petitioners, who claim to have been
engaged through contractor, to have
applied against it but the petitioners have
not availed of such opportunity.

(iv) The order impugned further
records that authority being a public
authority any employment in it can only be
granted after due advertisement of vacancy
and persons engaged on contract basis,
otherwise cannot be regularized against
posts meant to be filled by direct
recruitment.

(v) As per the order impugned
the Government Order dated 24.02.2016,
providing for regularization of contract
employees is not found to be applicable
upon
the
petitioners
as
necessary
ingredients to invoke the provisions of the
government order do not exist. It has also
been observed that the provisions of newly
created Centralized Service Rules of 2018
also would not be applicable since the
appointing authority under the rules is the
Government and not the authority.

8. Sri Ramendra Pratap Singh, who
has appeared for the authority submits that
the nature of enquiry which would be
warranted in order to assail the findings
contained in the order impugned would
require leading of evidence for which the
writ petition is not the appropriate forum.
Learned counsel for the respondents places
reliance upon a judgment of the Apex
Court in case of Steel Authority of India
Ltd. Vs. National Union Waterfront
Workers, reported in 2001 (7) SCC 1, in
order to submit that nature of enquiry
warranted in the facts of the present case
falls within the exclusive jurisdiction of
the Industrial Adjudicator and a writ
petition would not lie.

9. I have heard Sri C. B. Gupta,
learned counsel for the petitioner; Sri
Ramendra Pratap Singh, learned counsel
for the respondent authority whereas
learned Standing counsel on behalf of the
State authorities and have perused the
materials on record.

10. The pleadings made in the writ
petition have already been noticed above.
Although it is asserted that petitioners
have been working for the last about 20
years but the averments made in that
regard are absolutely vague. There is no
date of appointment disclosed for any of
the petitioner. It is also not specified as to
which of the petitioner is working against
which post. The petitioners have not
specified as to who is the contractor
through whom they have been engaged for
performing work in the authority. The
pleadings made in the writ petition,
particularly in para 15 and 25 of the writ
petition, would clearly go to show that
petitioners admit that their engagement is
through a contractor for performing
different works in the authority. Petitioners
do
not
dispute
that
no
letters
of
appointment are issued to them by the
1694 INDIAN LAW REPORTS ALLAHABAD SERIES
authority, nor any contract of employment
exists between petitioner and the authority.

11.

Petitioners'
claim
for
regularization has been rejected after
returning a specific finding that no
employer-employee
relationship
exists
between the petitioners and the authority
and that no records are maintained in
respect of engagement of persons through
contractor.

12. Engagement of persons through
contractor is regulated by the provisions of
the Contract Labour (Regulation and
Abolition) Act, 1970 (hereinafter referred
to as the Act of 1970). Engagement of
worker through a contractor per se is not
illegal under the Act of 1970. The Act
merely regulates such engagement and it is
only where the appropriate Government
prohibits engagement of worker through
contractor, by way of a notification issued
under Section 10 of the Act of 1970, that
such
engagement
would
become
impermissible in law.

13. Whether or not necessary
safeguards contemplated in the Act of
1970 have been adhered to by the
authority, while engaging persons through
contractor, is also an aspect which would
require leading of evidence. Petitioners
contention that the contractor was merely a
ploy employed by the authority to absolve
itself of its responsibility in law also
remains a matter of evidence to be led by
the parties. It would be for the Industrial
Adjudicator to ascertain, on the basis of
evidence adduced before it, whether the
engagement of workers through contractor
is in accordance with the Act of 1970; that
the provisions of the Act of 1970 have
been complied with or that the engagement
is sham or farce.

14. Question as to whether any
contract of employment would come into
existence, directly, between the principal
employer and the contract worker can only
be answered by the Industrial Adjudicator
on the basis of evidence led by the parties
before it. Whether such issues can be
adjudicated directly in proceedings under
Article 226 of the Constitution of India has
been a subject matter of consideration in
different cases before the Supreme Court.
In some of the earlier decisions it was held
that a writ petition would lie for such
purposes (see:- Secretary, Haryana State
Electricity Board v. Suresh, 1999 (3) SCC
601).

15. However, in R. K. Panda and
Ors. v. Steel Authority of India and Ors.,
1994 (5) SCC 304, the Apex Court held
that the question whether the contract
employees have become the employees of
principal employer and the contractor is
merely a camouflage are questions of fact
which
cannot
be
decided
in
writ
jurisdiction. Paragraph 7 of the aforesaid
judgment is reproduced hereinafter:-

"7. It is true that with the passage
of time and purely with a view to
safeguard the interests of workers, many
principal employers while renewing the
contracts have been insisting that the
contractor or the new contractor retains the
old employees. In fact such a condition is
incorporated
in
the
contract
itself.
However, such a clause in the contract
which is benevolently inserted in the
contract to protect the continuance of the
source of livelihood of the contract labour
cannot by itself-give rise to a right to
regularisation in the employment of the
principal employer. Whether the contract
labourers have become the employees of
the principal employer in course of time
2 All. Hridesh Kumar & Ors. Vs. State of U.P. & Ors.
1695
and
whether
the
engagement
and
employment
of
labourers
through
a
contractor is a mere camouflage and a
smoke screen, as has been urged in this
case, is a question of fact and has to be
established by the contract labours on the
basis of the requisite material. It is not
possible for the High Court or this Court,
while exercising writ jurisdiction or
jurisdiction under Article 136 to decide
such questions, only on the basis of the
affidavits. It need not be pointed out that
in all such cases, the labourers are initially
employed and engaged by the contractors.
As such at what point of time a direct link
is
established
between
the
contract
labourers and the principal employer
eliminating the contractor from the scene,
is a matter which has to be established on
material produced before the Court.
Normally, the labour court and Industrial
Tribunal, under the Industrial Dispute Act
are the competent for a and to adjudicate
such dispute on the basis of the oral and
documentary evidence produced before
them."

16. The issue ultimately came up for
consideration before a Constitution Bench
judgment of the Apex Court in Steel
Authority of India Ltd. and others v.
National Union Waterfront Workers and
others (supra). The entire law relating to
right of contract employees, in the light of
the provisions of the Act of 1970,
including claim of absorption in the
employment of principal employer has
been examined. It has been held that the
Legislature never intended absorption of
contract employees upon issuance of
abolition notification under Section 10(1)
of the 1970 Act. The Apex Court further
held that neither Section 10 nor any other
provision in the Act provide for automatic
absorption of contract employees in the
employment of principal employer. It has
further been held that the provisions of the
Act of 1970 neither contemplate creation
of direct relationship of master and servant
between the principal employer and the
contract
employees
nor
can
such
relationship
be
implied
from
the
provisions of the Act. It would be worth
noticing paragraphs 105, 120, 125 (3) and
126 of the Constitution Bench Judgment in
Steel Authority of India (supra), which are
reproduced hereinafter:-

"105. The principle that a
beneficial legislation needs to be construed
liberally in favour of the class for whose
benefit it is intended, does not extend to
reading in the provisions of the Act what
the Legislature has not provided whether
expressly or by necessary implication, or
substituting remedy or benefits for that
provided by the Legislature. We have
already noticed above the intendment of
the C.L.R.A. Act that it regulates the
conditions of service of the contract labour
and authorises in Section 10(1) prohibition
of
contract
labour
system
by
the
appropriate Government on consideration
of factors enumerated in Sub-section (2) of
Section 10 of the Act among other relevant
factors. But, the presence of some or all
those factors, in our view, provides no
ground for absorption of contract labour
on issuing notification under Sub-section
(1) of Section 10. Admittedly, when the
concept
of
automatic
absorption
of
contract labour as a consequence of
issuing notification under Section 10(1) by
the appropriate Government, is not alluded
to either in Section 10 or at any other place
in the Act and the consequence of
violation of Sections 7 and 12 of the
C.L.R.A. Act is explicitly provided in
Sections 23 and 25 of the C.L.R.A. Act, it
is not for the High Courts or this Court to
1696 INDIAN LAW REPORTS ALLAHABAD SERIES
read in some unspecified remedy in
Section
10
or
substitute
for
penal
consequences specified in Sections 23 and
25 a different sequel, be it absorption of
contract labour in the establishment of
principal employer or a lessor or a harsher
punishment. Such an interpretation of the
provisions of the statute will be far beyond
the principle of ironing out the creases and
the scope of interpretative legislation and
as such, clearly impermissible. We have
already held above, on consideration of
various aspects, that it is difficult to accept
that Parliament intended absorption of
contract labour on issue of abolition
notification under Section 10(1) of the
C.L.R.A. Act."

"120. We have also perused all
the Rules and forms prescribed thereunder.
It is clear that at various stages there is
involvement of the principal employer. On
an
exhaustive
consideration
of
the
provisions of the C.L.R.A. Act we have
held above that neither they contemplate
creation of direct relationship of master
and
servant
between
the
principal
employer and the contract labour nor can
such relationship be implied from the
provisions
of
the
Act
on
issuing
notification under Section 10(1) of the
C.L.R.A. Act, a fortiori much less can
such a relationship be found to exit from
the rules and the forms made thereunder."

"125 (3). Neither Section 10 of
the C.L.R.A. Act nor any other provision
in the Act, whether expressly or by
necessary
implication,
provides
for
automatic absorption of contract labour on
issuing a notification by the appropriate
Government under Sub-section (1) of
Section 10, prohibiting employment of
contract labour, in any process, operation
or other work in any establishment.
Consequently
the
principal
employer
cannot be required to order absorption of
the contract labour working in the
establishment concerned.

126.
We
have
used
the
expression
"industrial
adjudicator
as
determination
of
the
questions
aforementioned
requires
enquiry
into
disputed questions of facts which cannot
conveniently be made by High Courts 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 juridical review."

17. The above judgment of the
Constitution Bench clearly lays down that
even where prohibition notification has
been issued under Section 10 of the Act,
1976, there is no right of absorption of the
contract labours and further enquiry into
question of fact cannot be made in
exercise of jurisdiction under Article 226
of
Constitution
of
India
and
the
appropriate forum to go into these issues is
the Industrial Adjudicator.

18.

The
Constitution
Bench
judgment in Steel Authority of India
(supra) has specifically overruled the
earlier judgment of the Apex Court in Air
India Statutory Corporation v. United
Labour Union and Ors. (supra) which had
taken a view similar to what is held in
Secretary, Haryana State Electricity Board
v. Suresh and Ors. (supra). As a matter of
fact the Apex Court in Secretary, Haryana
State Electricity Board vs. Suresh and
others (supra) had followed the view taken
in the Air India Statutory Corporation case
which stood specifically overruled in Steel
Authority of India Ltd. (supra).

19. The remedy for petitioners, in
light of the law settled by the Supreme
2 All. Smt. Renu Mishra Vs. State of U.P. & Ors.
1697
Court in Steel Authority of India (supra) would
be to approach the Industrial Adjudicator,
where all issues of facts can be examined by
the competent forum with reference to the
applicable provisions of law. The powers of
Industrial Adjudicator are otherwise extremely
wide by virtue of Section 11-A of the
Industrial Disputes Act, 1947.

20. Coming to the Division Bench
judgment of this Court in Special Appeal
No. 790 of 2018, it transpires that facts
had been adverted to by this Court in
Special
Appeal
and
the
plea
of
alternative remedy came to be rejected.
The respondents plea based upon a later
judgment of the Apex Court in the case
of Balwant Rai Saluja v. Air India Ltd.,
(2014) 9 SCC 407 was also rejected.

21. The judgment of the Apex
Court in Balwant Rai Saluja (supra) was
delivered by the Apex Court in a matter
relating to canteen employees upon
whom the provisions of Section 46 of the
Factories
Act
were
applicable.
Provisions of the Factories Act required
the management to set up a canteen. The
Apex Court distinguished the previous
judgment in the case of Steel Authority
of India (supra) as the employees of
statutory canteen were distinctly placed
in the statutory scheme. This judgment
apparently would have no applicability
in the facts of the present case since
petitioners are not the employees of
statutory
canteen.
The
Constitution
Bench Judgment in Steel Authority of
India (supra), however, was not placed
before the Division Bench in special
appeal no. 790 of 2018. In light of what
has been observed above, as also the
lack of specific pleading on the part of
the petitioners with regard to the nature
of their engagement and continuance
etc., I am not inclined to entertain
petitioners grievance directly in this writ
petition by passing the law laid down by
Constitution Bench in the case of Steel
Authority of India Ltd. (supra).

22. In the aforesaid factual
backdrop, this Court is of the considered
opinion that petitioners' be relegated to
the remedy of approaching Industrial
Adjudicator in light of the law laid down
by the Apex Court in the case of Steel
Authority
of
India
Ltd.
(supra).
However, in the facts of the present case
it would be appropriate to direct the
State Government to forthwith refer
petitioners' claim to the appropriate
Industrial Adjudicator for proceedings to
be concluded at the earliest.

23. Writ petition, accordingly, fails
and
is
dismissed.
It
is,
however,
provided
that
in
case
petitioners
approach the appropriate authority of the
State, their claim shall be referred to the
appropriate
Industrial
Adjudicator,
forthwith.
The
concerned
Industrial
Adjudicator shall make all endeavours to
conclude the proceedings, at the earliest
possible, without granting unnecessary
adjournment except on payment of costs,
by fixing early dates. In the facts of the
case parties shall bear their own costs.
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(2020)02ILR A1698

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.12.2019

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

Wrti A No. 19592 of 2019

Smt. Renu Mishra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents