# Kanpur Electricity Supply Co. Ltd. (KESCO), Kanpur v. State of U.P. & Ors

- **Citation:** (2020) 6 ILRA 308
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-05-12
- **Case number:** Writ-C No. 31723 of 2016
- **Bench:** Siddhartha Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kanpur-electricity-supply-co-ltd-kesco-kanpur-v-state-of-u-p-ors-45820
- **Pages:** 4

## Headnote

A. Labour Law - The U.P. Industrial
Disputes Act, 1947 - Section 6-N - No
Employer and employee relationship Labour
Court duty bound to give a definite finding with
regard to the fact - who appoints the workers -
who pays the salary/remuneration - who has the
authority to dismiss - who can take disciplinary
action - Whether there is continuity of service -
extent of control and supervision i.e. whether
there exists complete control and supervision
[(2019) 13 SCC 82 : Bharat Heavy Electricals
Ltd. Vs. Mahendra Prasad Jakhmola & Ors. ]
(Para - 11)

Award passed by labour court - statements of
the parties not considered in their right
perspective - no finding regarding relationship
of employer and employee between the
petitioner and respondent no.3 - labour court
not arrived at proper conclusion .(Para - 11)

HELD:- Award set-aside - directed labour court
to re-consider the matter and decide within a
period of two months in the light of the law laid
down in (2019) 13 SCC 82 : Bharat Heavy
Electricals Ltd. Vs. Mahendra Prasad Jakhmola &
Others.(Para-12)

Petition allowed.(E-7)

List of Case Cited:-

BHEL Vs. Mahendra Prasad Jakhmola & ors.
(2019) 13 SCC 82

## Text

308 INDIAN LAW REPORTS ALLAHABAD SERIES

5. सिस्त उप सम्भागीय तिपणन
अतधकारी, उ०प्र०।

आज्ञा से,

ह० अपठनीय

(नरेन्द्र कुिार चौधरी)

तिशेि सतचि "

29. A perusal of paragraph 7 of the
Government Order shows that, as far as
possible, in rural areas every gram
panchyat shall have at least one fair price
shop and if in the concerned Gram
Panchyat the number of units are more than
4000 then the opening of an additional shop
may be considered by the committee
constituted under the said government
order. Reading of the government order
makes it very clear that the criterion for
opening an additional shop is the number of
units in the Gram Panchyat i.e. if the units
exceed 4000 then such consideration may
be made.

30. The impugned order has been passed
specifically stating that the total number of card
holders in Gram Panchyat-Jaitpur is 3309 out of
which there are 250 Antodaya Card Holders
and 3059 Patragrasthi (eligible household card
holders). The total number of units under the
above schemes are 13990. There are already
five fair price shops in operation and
considering the number of units there is no
requirement of 6th additional fair price shop, as
for that purpose there should be more than
20000 units in the Gram Panchyats.

31. Petitioner's counsel has drawn
attention of this Court to paragraph 12 of the
counter affidavit in which it is stated that the
total units in the Gram Panchyat is 15858 and in
view thereof he has submitted that there is
difference in the number of units as mentioned
in the counter affidavit and in the impugned
order.

32. The Court finds that even if there is
some difference in the number of units as
mentioned in the counter affidavit and in the
impugned order, still the number of units is less
than 20000. There being already five fair price
shops, on the ground of such difference as
pointed out by the petitioner's counsel, there
would be no requirement of sixth shop as per
the Government Order.

33. This Court in the exercise of writ
jurisdiction will not pass an order directing the
respondents to make a roving inquiry for
making fresh determination of number of units
considering alleged increase of population for
opening of a fair price shop for the petitioner
who has no legal or fundamental right for
engagement as an agent.

34. Thus considered I do not find any
merit in the writ petition which is hereby
dismissed.
----------
(2020)06ILR A308
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.05.2020

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.

Writ-C No. 31723 of 2016

Kanpur
Electricity
Supply
Co.
Ltd.
(KESCO), Kanpur ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Pranjal Mehrotra, Sri Komal Mehrotra
6 All. Kanpur Electricity Supply Co. Ltd. (KESCO), Kanpur Vs. State of U.P. & Ors.
309
Counsel for the Respondents:
C.S.C., Sri Anil Kumar, Sri Ankush Tandon

A. Labour Law - The U.P. Industrial
Disputes Act, 1947 - Section 6-N - No
Employer and employee relationship Labour
Court duty bound to give a definite finding with
regard to the fact - who appoints the workers -
who pays the salary/remuneration - who has the
authority to dismiss - who can take disciplinary
action - Whether there is continuity of service -
extent of control and supervision i.e. whether
there exists complete control and supervision
[(2019) 13 SCC 82 : Bharat Heavy Electricals
Ltd. Vs. Mahendra Prasad Jakhmola & Ors. ]
(Para - 11)

Award passed by labour court - statements of
the parties not considered in their right
perspective - no finding regarding relationship
of employer and employee between the
petitioner and respondent no.3 - labour court
not arrived at proper conclusion .(Para - 11)

HELD:- Award set-aside - directed labour court
to re-consider the matter and decide within a
period of two months in the light of the law laid
down in (2019) 13 SCC 82 : Bharat Heavy
Electricals Ltd. Vs. Mahendra Prasad Jakhmola &
Others.(Para-12)

Petition allowed.(E-7)

List of Case Cited:-

BHEL Vs. Mahendra Prasad Jakhmola & ors.
(2019) 13 SCC 82

(Delivered by Hon'ble Siddhartha Varma, J.)

1. Upon an industrial dispute being
raised by the respondent no.3-Pramod
Kumar Mishra, a Reference was made by
the State Government to the respondent no2 on 11.6.2007. The Reference reads as
under :-

"D;k lsok;kstdksa }kjk vius Jfed Jh
izeksn dqekj feJk iq= Lo0 Hkxorh izlkn feJk
dh lsok;sa fn0 05-02-2007 ls lekIr fd;k tkuk
mfpr ,oa oS|kfud gS] ;fn ugha rks lacaf/kr
Jfed D;k fgrykHk@vuqrks"k ikus dk vf/kdkjh gS
rFkk vU; fdl fooj.k lfgrA"

2. However, when the respondent
no.2 i.e. the Industrial Tribunal (3), Uttar
Pradesh,
Sarvodaya
Nagar,
Kanpur
answered the Reference in favour of the
respondent no.3, the instant writ petition
was filed.

3. The case of the respondent no.3
had been that he was posted as a Security
Guard with the petitioner on 19.6.2003
through the respondent no.4-U.P. Poorva
Sainik Kalyan Nigam Limited. However,
when on 5.2.2007, the respondent no.3 was,
without any reason, removed from service
and that too orally without any notice etc.
as was contemplated under section 6-N of
the U.P. Industrial Disputes Act, 1947, the
cause of action arose. The further case of
the respondent no.3 was that upon his
removal another Guard namely Baij Nath
was engaged in his place. The case was
contested by the petitioner and it had taken
a stand that the respondent no.3 was in fact
an employee of respondent no.4 and was
only sent to the petitioner for performing
certain functions; there was no relationship
of employer and employee between the
petitioner and respondent no.3 and in fact
the respondent no.4 was the employer of
the respondent no.3. In fact it was pleaded
and argued by the petitioner before the
Labour Court that the petitioner never
made any payment to the respondent no.3.
It was also stated before the Labour Court
that the petitioner never terminated the
services of respondent no.3.

4. The respondent no.4 had also
contested the case before the Labour Court
and had taken a stand that the respondent
no.4 was not the employer and in fact it
310 INDIAN LAW REPORTS ALLAHABAD SERIES
was the petitioner who was the employer of
respondent no.3.

5. However, when the award was
passed in favour of the respondent no.3 by
the
respondent
no.2
by
which
the
respondent no.3 was reinstated in service
and was also granted back-wages from the
date of termination, the present writ
petition was filed.

6. The contention of learned counsel
for the petitioner is that if the replication
filed by the respondent no.3 to the Written
Statement filed by the petitioner, before the
Labour Court was perused then it could be
seen that there was a clear admission of the
respondent no.3 that he was sent for
performing security guard's duty in the
petitioner's establishment by the respondent
no.4 i.e. the U.P. Poorva Sainik Kalyan
Nigam Limited and that the respondent
no.4 had replaced the respondent no.3 by
sending in his place one Sri Baij Nath. Still
further, learned counsel for the petitioner
submitted that the workman i.e. the
respondent no.3 in his replication to the
Written Statement filed on 24.10.2007 had
stated in paragraph 2 that the petitioner's
establishment used to make bulk payment
to respondent no.4 who in its turn made
payments to workmen. Since the learned
counsel for the petitioner immensely relied
upon paragraph 2 of the replication of the
workman, the same is being reproduced
here as under :-

";g fd lsok;kstd izFke ds fyf[kr
dFku dk ifjPNsn&nks Hkzked gS vr% vLohdkj gSA
i{kdkj&2 dsoy fcpkSfy;k Fkk u fd ekfyd
D;ksafd muds }kjk dsLdks laLFkku esa deZpkjh oknh
dks dk;Z djus gsrq miyC/k djk;k x;k FkkA
lsok;kstd& izFke gh deZpkjh oknh ds osru dk
izfrekg
:0
6500@&
Hkqxrku
fcpkSfy;s
i{kdkj&2 dks djrs Fks tks dsoy :0 5650@&
izfrekg osru dk Hkqxrku deZpkjh oknh dks djrs
FksA"

7. Further learned counsel for the
petitioner
relied
upon
the
crossexamination of the respondent no.3 and
brought to the notice of the Court about the
functions that the respondent no.4 was
performing as an employer. Learned
counsel for the petitioner relying upon the
judgment of the Supreme Court reported in
(2019) 13 SCC 82 : Bharat Heavy
Electricals Ltd. Vs. Mahendra Prasad
Jakhmola & Ors. submitted that the
Labour Court had to, while seeing as to
whether there was an employer-employee
relationship, give definite findings with
regard to the following :-

"(i) who appoints the workers;

(ii)
who
pays
the
salary/remuneration;

(iii) who has the authority to dismiss;

(iv) who can take disciplinary action;

(v) Whether there is continuity of
service; and

(vi) extent of control and supervision
i.e. whether there exists complete control and
supervision."

8. Learned counsel appearing for
respondent no.3, however, submitted that the
award of the Industrial Tribunal required no
interference as the Labour Court had definitely
found that it was the petitioner who was the
employer.

9. The respondent no.4 had also appeared
and supported the stand taken by the respondent
no.3.

10. I have carefully considered the
submissions advanced by the learned counsel
for
the
parties.
6 All. Smt. Adarsh Vs. State of U.P. & Ors.
311

11. A perusal of the award shows that
the oral statements of the workmanrespondent no.3 have not been considered
in their right perspective. The Labour Court
was duty bound to have given a definite
finding with regard to the fact as to who
had appointed the respondent no.3; who
was paying the salary; who had the
authority to dismiss; who could take
disciplinary action; whether there was
continuity of service and also what exactly
was the extent of control and supervision of
the petitioner. A perusal of the award shows
that the statements of the parties were not
considered in their right perspective and the
finding as was required to be arrived at to
come to a proper conclusion as to whether
there was relationship of employer and
employee was not arrived at correctly.

12. Under such circumstances, the
writ petition is allowed. The award dated
28.8.2015 is set-aside. The matter shall
now be re-considered and decided by the
respondent no.2 within a period of two
months from the date of presentation of a
certified copy of this order, in the light of
the law laid down in the judgment of the
Supreme Court reported in (2019) 13 SCC
82 : Bharat Heavy Electricals Ltd. Vs.
Mahendra Prasad Jakhmola & Others.
----------
(2020)06ILR A311
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.05.2020

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.

Writ-C No. 33399 of 2019

Smt. Adarsh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sanjay Singh

Counsel for the Respondents:
C.S.C.

A. Civil Law - Essential Commodities Act,
1955 - Section 3/7 - Restoration of Fair
Price Shop licence - - mere filing of the First
Information Report under section 3/7 of the
Essential Commodities Act, 1955 could not be
made a ground for the cancellation of a
dealership of a Fair Price Shop(2011 (3) ADJ
638 : Smt. Raj Kumari vs. State of U.P. & Ors.) -
an allottee who had been allotted a shop during
the pendency of the litigation had no right to
challenge the restoration of the licence(Poonam
vs. State of U.P. & Ors. reported in (2016) 2
SCC 779).(Para -4, 8)

Petitioner - served with a show-cause notice -
accompanied by an order of suspension -
petitioner to submit detailed reply before the
District Supply Officer - District Supply Officer
cancelled the licence of the petitioner to run the
Fair Price Shop petitioner - Appeal before the
Commissioner dismissed - First Information
Report under section 3/7 of the Essential
Commodities
Act,
1955
-
preceded
the
suspension order - resulted in the submission of
a Final Report by the prosecution - Final Report
accepted by the Additional Chief Judicial
Magistrate - No protest petition filed.(Para - 2,3)

HELD:- The orders dated 28.3.2018, 4.12.2018
and 30.4.2019 by which the licence of the
petitioner was suspended, the licence was
cancelled and thereafter the appeal was
dismissed, respectively, are being set-aside -
The licence of the petitioner to run the Fair Price
Shop shall now be restored.(Para-9)

Petition allowed.(E-7)

List of cases cited:-

1. Poonam Vs St. of U.P. & ors. (2016) 2 SCC
779

2. Smt. Raj Kumari Vs St. of U.P. & ors. (2011)
3 ADJ 638