# Kiran Devi Smt. and another v. M/s. Kesarwani Zarda Bhandar and others

- **Citation:** (2005) 3 ILRA 898
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-07-08
- **Case number:** Special Appeal No. 1100 of 2005
- **Bench:** Ajoy Nath Ray, C.J. Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kiran-devi-smt-and-another-v-m-s-kesarwani-zarda-bhandar-and-others-40511
- **Pages:** 7

## Headnote

U.P. Industrial Dispute Act-1947-Section
6-C-readwith
Industrial
Dispute
Act
1947-Section 19 (3)-Period of operation
of
in
an
Award-No
inconsistency
between the central Act and the U.P. Actwhether the lapse of the period of one
year kill the award? Held-'No' it remain
binding as contract between employer
and employee-period of one year-as
mentioned in Section 6-C-practically has
no importance.

Held: Para 19, 20

We need not consider here whether subsection (6) of Section 19 of the Central
Act is also applicable in Uttar Pradesh,
there being, as argued, no inconsistency
between it and the provisions of the U.P.
Act of 1947. We now merely observe
here that the lapse of one year does not
kill the award even though it might not
remain ' in operation' after that period.
The case of South Indian Bank Ltd.
Versus R. Chacko reported at A.I.R. 1964
Supreme Court 1522 and the case of
L.I.C. Versus D.J. Bahadur reported in
(1981) 1 S.C.C. 315 make it amply clear
that even after the operational period of
3 All] Smt. Kiran Devi and another V. M/s Kesharwani Zarda Bhandar and others
899
one year the award remains binding
between the parties.

There are clear indications in these cases
that even after the period of one year the
award would remain as binding as a
contract between the employer and the
employees. We may respectfully opine
that such award after the operational
period of one year would remain binding
as a contract with the seal of the labour
authority imprinted upon it. On the basis
of such imprinting the award can be
enforced even outside the period of its
operation
even
though
the
State
Government has not yet extended such
period of operation.

(B)
Constitution
of
India-Art.
226Practice of Procedure-the question not
raised nor argued-can not be discussed
as a sort of Surprise to the parties.
Held: Para 22
On this simple basis we are of clear but
respectful opinion that the Hon'ble Judge
has erred on the second point also in
allowing the writ petition. We have to
put it on record that the point of lapse of
one year was not taken in the writ
petition nor was it argued in the court
below; it was found in the judgment only
and it came as a sort of surprise to the
parties but the respondent has not given
up this point and made submissions in
support
of
this
also;
but
those
submissions we have no hesitation in
turning down. As such the appeal is
allowed and the impugned order is set
aside. The writ petition is dismissed.
Case law discussed:
1979 Lab. I.C. 477
AIR 1965 SC-1488
1995 L.J. 2757=1965 (51) FLR
1990 (2) UPLBEC-879
AIR 1964 SC-1522
1981 SCC (1) 315

## Text

898 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
Sessions Judge has erred in finding a
contradiction on that basis also. Similarly
if the learned Magistrate did not ask the
house number of the complainant, the
prosecution case cannot be thrown out on
this ground. Again the contradiction as
referred
in
the
statement
of
the
complainant and the two witnesses is also
not material at this stage. Therefore there
was no ground to interfere in the
impugned order and learned Sessions
Judge has erred in remanding the case.

9. Learned counsel for the applicant
has also raised the point that in the case of
Adalat Prasad Vs. Roop Lal Zindal and
others 2004 (1) SCC 338, the Hon'ble
Supreme Court has held that if a person is
aggrieved by the summoning order, the
only remedy he has, is to file an
application under Section 482 Cr.P.C. and
therefore learned Sessions Judge had no
jurisdiction to hear the revision against
that order as such. This contention has
also force.

10. Thus, I come to the conclusion
that learned Sessions Judge has erred in
setting aside the summoning order as
passed
by
learned
Magistrate
in
remanding the case and the application is
to be allowed and the impugned order is
to be set aside.

11. Application under Section 482
Cr.P.C. is allowed. The impugned order
dated 8.7.2005 is set aside and the
summoning order dated 20.4.2005 passed
by learned Judicial Magistrate Court no.
24, Saharanpur is restored.
Application Allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.10.2005

BEFORE
THE HON'BLE AJOY NATH RAY, C.J.
THE HON'BLE ASHOK BHUSHAN, J.

Special Appeal No. 1100 of 2005

Kiran Devi Smt. and another ...Appellants
Versus
M/s. Kesarwani Zarda Bhandar and
others

 ...Respondents

Counsel for the Appellants:
Sri Anand Kumar Sinha

Counsel for the Opposite Parties:
Sri U.C. Kesarwani
S.C.

U.P. Industrial Dispute Act-1947-Section
6-C-readwith
Industrial
Dispute
Act
1947-Section 19 (3)-Period of operation
of
in
an
Award-No
inconsistency
between the central Act and the U.P. Actwhether the lapse of the period of one
year kill the award? Held-'No' it remain
binding as contract between employer
and employee-period of one year-as
mentioned in Section 6-C-practically has
no importance.

Held: Para 19, 20

We need not consider here whether subsection (6) of Section 19 of the Central
Act is also applicable in Uttar Pradesh,
there being, as argued, no inconsistency
between it and the provisions of the U.P.
Act of 1947. We now merely observe
here that the lapse of one year does not
kill the award even though it might not
remain ' in operation' after that period.
The case of South Indian Bank Ltd.
Versus R. Chacko reported at A.I.R. 1964
Supreme Court 1522 and the case of
L.I.C. Versus D.J. Bahadur reported in
(1981) 1 S.C.C. 315 make it amply clear
that even after the operational period of
3 All] Smt. Kiran Devi and another V. M/s Kesharwani Zarda Bhandar and others
899
one year the award remains binding
between the parties.

There are clear indications in these cases
that even after the period of one year the
award would remain as binding as a
contract between the employer and the
employees. We may respectfully opine
that such award after the operational
period of one year would remain binding
as a contract with the seal of the labour
authority imprinted upon it. On the basis
of such imprinting the award can be
enforced even outside the period of its
operation
even
though
the
State
Government has not yet extended such
period of operation.

(B)
Constitution
of
India-Art.
226Practice of Procedure-the question not
raised nor argued-can not be discussed
as a sort of Surprise to the parties.
Held: Para 22
On this simple basis we are of clear but
respectful opinion that the Hon'ble Judge
has erred on the second point also in
allowing the writ petition. We have to
put it on record that the point of lapse of
one year was not taken in the writ
petition nor was it argued in the court
below; it was found in the judgment only
and it came as a sort of surprise to the
parties but the respondent has not given
up this point and made submissions in
support
of
this
also;
but
those
submissions we have no hesitation in
turning down. As such the appeal is
allowed and the impugned order is set
aside. The writ petition is dismissed.
Case law discussed:
1979 Lab. I.C. 477
AIR 1965 SC-1488
1995 L.J. 2757=1965 (51) FLR
1990 (2) UPLBEC-879
AIR 1964 SC-1522
1981 SCC (1) 315

(Delivered by Hon'ble Ajoy Nath Ray, C.J.)

1. This is an appeal preferred by the
workmen who were respondents to the
writ petition which succeeded in the court
below. The writ petition was filed by the
employer Company.

2. The facts are short and simple.
The appellants were terminated by the
employer in 1995 and an industrial
dispute being raised, the appellants
succeeded in obtaining an industrial
award
in
their
favour
dated
29th
September, 1999 published on 31st
October, 2000 to the effect that they
would be reinstated in service and until
such reinstatement they would be paid
arrears of wages as per the Minimum
Wages Act.

3. Reinstatement did not follow
forthwith, as such an application was
made under Section 6-H (1) of the U.P.
Industrial Disputes Act, 1947 for payment
of arrears of wages as per award. A
recovery certificate was issued on 24th of
November,
2001
and
substantial
payments were received by the workmen
in
December,
2002.
It
should
be
mentioned that the writ petition had been
filed by the employer challenging the
award published on 31st October, 2000
but the same was dismissed on the 5th of
March, 2002.

4. Although some payments of
arrears of wages were received in
December, 2002, the appellants still not
being reinstated, they filed a second
application under the said Section 6-H
(1), this time claiming arrears of wages
for the period from January 2001 to July
2002.
The
workmen
were
again
successful in the sense that a recovery
certificate dated 26.2.2004 was again
issued in their favour as well as a
favourable order dated 30th April, 2004
passed
by
the
Additional
Labour
Commissioner.
900 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
5. These two instruments were
challenged in the writ petition and by an
order dated the 8th of August, 2005 the
Hon'ble Single Judge disposing of the writ
petition, has set aside and quashed these
two instruments standing in favour of the
appellants.

6. On 12th January, 2003 the
appellants have been reinstated in service
and therefore, the question of payment of
arrears of wages will probably come to an
end with this litigation. In the impugned
order the Hon'ble Single Judge has found
in favour of the employer on the
following two grounds:-

(i)
His Lordship has opined that the
award having been implemented
and recovery in pursuance thereof
having once been satisfied as is
admitted by the parties under
Section 6-H (1) of the U.P.
Industrial
Disputes
Act,
no
subsequent application could lie for
execution of the award again under
Section 6-H (1) for disputed claims;
and
(ii)
That
under
the
provisions
of
Section 6-C of the U.P. Industrial
Disputes Act, 1947, the period of
operation of the award came to an
end on expiry of one year from the
date when it became enforceable
and as such an application for
enforcement made after such period
of one year, could not in any event
succeed.

7. So far as the first point is
concerned, we have no hesitation in our
mind that the successive applications
under Section 6-H (1) of the U.P. Act will
lie provided the award permits such
applications to be made from time to time.
The provisions of Section 6-H (1) and 6H (2) of the U.P. Industrial Disputes Act,
1947 are set out below:-

"6-H. Recovery of money due from
an employer,___ (1) Where any money is
due to a workman from an employer
under the provisions of Sections 6J to 6R
or under a settlement or award, or under
an award given by an adjudicator or the
State Industrial Tribunal appointed or
constituted under this Act, before the
commencement of the Uttar Pradesh
Industrial Disputes (Amendment and
Miscellaneous Provisions ) Act, 1956, the
workman may, without prejudice to any
other mode of recovery, make an
application to the State Government for
the recovery of the money due to him, and
if the State Government is satisfied that
any money is so due, it shall issue a
certificate
for
that
amount
to
the
Collector who shall proceed to recover
the same as if it were an arrear of land
revenue.

(2) Where any workman is entitled to
receive from the employer any benefit
which is capable of being computed in
terms of money, the amount at which such
benefit should be computed may, subject
to any rules that may be made under this
Act, be determined by such Labour Court
as may be specified in this behalf by the
State Government, and the amount so
determined may be recovered as provided
for in sub-section (1)."

8. Before the Additional Labour
Commissioner the parties had raised the
disputed fact as to whether it was the
employer who was in default in not
offering employment and back wages to
the employees or whether it was the
employees who did not join the service in
3 All] Smt. Kiran Devi and another V. M/s Kesharwani Zarda Bhandar and others
901
spite of the employer being willing to take
them in service pursuant to the award.
The dispute before the labour authority
has gone in favour of the appellantsemployees. It was opined that no
intimation had been duly sent to the
employees and thus they could not join
the service. On these disputed facts, the
writ court cannot enter once again and sit
in appeal; as such, after such findings of
fact as between the parties, the second
award for arrears of wages could not be
set aside because there were disputed
facts. These were not disputed facts
before the writ court but these were
disputed facts on which a decision had
already once been given after both the
parties had been duly heard.

9. It was also urged very straneously
before us that the second application for
arrears of wages could not be maintained
under Section 6-H (1) but that, if at all,
such application could not be maintained
under Section 6-H (2). An Allahabad case
of
M/s
Hindustan
Aluminium
Corporation Limited, Mirzapur Versus
Murari Singh and others reported in
1979 Lab. I. C. 477 was relied upon. In
that case the award did not grant arrears
of
wages
at
all.
Under
these
circumstances a sum of Rs.19560.48 was
computed as the same payable for the
period during which the employee was
"unjustifiably kept out of employment"
(see end of the paragraph 3 of the
judgment). Under these facts it was found
that the application under Section 6-H (2)
was a proper application.

10. Reliance was also placed on the
case of Kays Construction Co. (P.) Ltd.
Versus State of Uttar Pradesh a five
Judge decision of the Supreme Court
reported at 1965 Labour Judgement 2757
=A.I.R. 1965 S.C. 1488 alternatively
reported at 1965 (11) F.L.R.328.

It
was
explained
by
Justice
Hidayatullah as his Lordship then was, in
that case, that sub-section (2) of Section
6-H referred to cases where some benefit
had to be computed in terms of money
and that computation had not already
come in the award itself. His Lordship
gave an instance of the award giving
entitlement of free quarters to the workers
which the employer did not abide by. In
such a case the benefits which had not
been extended, would have to put in terms
of money and this may require an exercise
which
is
different
from
a
mere
arithmetical calculation.

11. If these principles are applied to
our case, we find that the second
application was correctly made under
section 6-H (1) because the payment of
wages was to be made on the basis of
Minimum Wages Act and such payment
would have to be made until the effect of
reinstatement
actually
occurred.
For
finding out the amount of money due one
would require information only on two
counts, namely, the minimum wages
prescribed under the Minimum Wages
Act and the number of months for which
the to be reinstated employee had not
been paid such minimum wages. With
these two simple bits of the information
the recovery could be ordered under
Section 6-H (1) on a mere arithmetical
computation. Any question of assessment,
any question of turning into money value
what was not itself already computed in
figures, never arose. It was all along, so to
speak, like a liquidated claim in the civil
court, and it was, never, so to speak, like a
situation
of
assessing
unliquidated
damages by a civil court.
902 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
12. The appellants gave to us the
case of Executive Engineer, Electricity
Distribution
Division-1,
U.P.
State
Electricity Board, Mathura Versus
Kailash Chandra Gautam and others
reported in (1990)(2) UPLBEC 879. That
was also a claim for arrears of wages and
Section 6-H (1) was found to be
applicable.

13. On these bases we are of the
respectful opinion that the first point on
which the learned Single Judge allowed
the writ petition is not sustainable.
Regarding the application of the workmen
being made after the period of one year,
the industrial law in this regard, although
well settled, needs to be stated by us in
brief so that in future these simple matters
might be dealt with simply.

14. Under Section 6-C of the U.P.
Industrial Disputes Act an award is stated
to remain in operation in the first instance
for a period of one year. The said Section
6-C is set out below:-

"6-C. Award of Labour Court or
Tribunal
or
arbitration
and
its
operation,____ An award shall in the first
instance remain in operation for a period
of one year or such shorter period as may
be specified therein:

Provided that the State Government
may extend the period of operation of an
award from time to time, if it thinks fit:

Provided further that where the State
Government whether of its own motion or
on the application of any party bound by
the award, considers that since the award
was made there has been a material
change in the circumstances on which it
was based, the State Government may,
after such enquiry as it may think fit,
shorten the period of operation of the
award."

15. Under Section 6-A of the said
Act it is provided that an award shall
become enforceable on the expiry of
thirty
days
from
the
date
of
its
publication.

16. We have this position before us,
therefore,
that
an
industrial
award
becomes enforceable on the expiry of
thirty days after its publication but it
remains in operation for a period of one
year only.

17. It is a serious and than an
elementary mistake to conclude from this
that after a period of one year the
enforceability of the award lapses and that
it cannot be enforced any more under
Section 6-H (1) of 6-H (2) unless the State
Government
extends
the
period
of
operation of the award under Section 6-C.

18. The period of operation of an
award is mentioned in the Industrial
Disputes Act, 1947 i.e. the Central Act in
Section 19. The said section is not set out
in full but Section 19 (3) and Section
19(6) are set out below:-

" 19. Period of operation of settlements
and awards,____

(1) ..................................................
(2) ..................................................
(3) An award shall, subject to the
provisions of this section, remain in
operation for a period of one year (from
the date on which the award becomes
enforceable under Section 17-A).
(4)....................................................
(5).....................................................
3 All] Smt. Kiran Devi and another V. M/s Kesharwani Zarda Bhandar and others
903
(6) Notwithstanding the expiry of
the period of operation under sub-section
(3), the award shall continue to be binding
on the parties until a period of two months
has elapsed from the date on which notice
is given by any party bound by the award
to the other party or parties intimating its
intention to terminate the award."

19. It has been held in numerous
cases that even after lapse of one year and
even after the service of notice by the
employer seeking to treat an award as at
an end, the award does not really came to
an end. We need not consider here
whether sub-section (6) of Section 19 of
the Central Act is also applicable in Uttar
Pradesh, there being, as argued, no
inconsistency
between
it
and
the
provisions of the U.P. Act of 1947. We
now merely observe here that the lapse of
one year does not kill the award even
though it might not remain ' in operation'
after that period. The case of South
Indian Bank Ltd. Versus R. Chacko
reported at A.I.R. 1964 Supreme Court
1522 and the case of L.I.C. Versus D.J.
Bahadur reported in (1981) 1 S.C.C.
315 make it amply clear that even after
the operational period of one year the
award remains binding between the
parties.

20. There are clear indications in
these cases that even after the period of
one year the award would remain as
binding as a contract between the
employer and the employees. We may
respectfully opine that such award after
the operational period of one year would
remain binding as a contract with the seal
of the labour authority imprinted upon it.
On the basis of such imprinting the award
can be enforced even outside the period of
its operation even though the State
Government has not yet extended such
period of operation. No doubt in every
case, the award itself must be looked into
and it has to be seen whether it is in its
forms executible on the date it is sought to
be executed. All that we lay down is that
the period of one year mentioned in
Section 6-C above, is a matter of
practically no importance when the
question of enforceability of the award is
raised. One should always bear in mind
that whether the award is in operation or
not is a question totally different from
whether the award is still enforceable or
not. If one makes a reference to Section
23 (c) of the Central Act, 1947 or to
Section 6S.(1) (f) and 6S (2) (f) of the
U.P. Act 1947 one will see immediately
that during the operational period of an
award industrial actions are ruled out on
the very same points which are covered
by the award. This is the region where the
operational nature of the award is of an
importance.

21. When enforceability of an award
becomes an issue in an application under
Section 6-H of the U.P. Act, 1947 one has
no concern with the operational nature of
the award. Then quasi judicial functions
are performed, and recovery certificates
are issued and orders passed in same
manner as those are passed by the
executing courts in ordinary civil courts
of law. These are different aspects than
the aspects of industrial action like strike
or lock out. It would be a complete
confusion to treat the operational nature
or period of an award as having any
bearing
on
its
enforceability
or
executability.

22. On this simple basis we are of
clear but respectful opinion that the
Hon'ble Judge has erred on the second
904 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
point also in allowing the writ petition.
We have to put it on record that the point
of lapse of one year was not taken in the
writ petition nor was it argued in the court
below; it was found in the judgment only
and it came as a sort of surprise to the
parties but the respondent has not given
up this point and made submissions in
support of this also; but those submissions
we have no hesitation in turning down. As
such the appeal is allowed and the
impugned order is set aside. The writ
petition is dismissed.
Appeal Allowed.
---------
ORIGINAL JURISDICATION
CIVIL SIDE
DATED: ALLAHABAD 30.8.2005

BEFORE
THE HON'BLE YATINDRA SINGH, J.
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE DP SINGH, J.

Civil Misc. Writ Petition No. 28103 of 2000

M.K Gandhi and others ...Petitioners
Versus
Director of Education (Secondary) U.P.
Lucknow and others
 ...Respondents

Counsel for the Petitioners:
Sri Ashok Khare
Sri Rama Nand Panday

Counsel for the Respondents:
Sri K.C. Singh, S.S.C.
Sri A.D. Singh, ADDl. S.C.
Sri S.C. Budhwas
Sri V.B. Singh
Sri Ajit Kumar Singh
Sri H.N. Panday
Sri U.P. Singh S.C.

Constitution of India, Art-12 -statewhether the Delhi Public School is within
if meaning of the state? Held-'No'-Board
initiated
by
the
resolution
Central
Government-controlled by the secretary,
Ministry
of
Human
Resources
Department-entrusted
with
the
educational standard not only national
but out side the country-almost all the
members are either government servant
or the representative of the bodies heldD.P.S. is within the meaning of state.

Held-Para 76 (a),(b) and (c)

(a) The DPS School is not the State
within the meaning of Article 12 of the
Constitution.
(b) The Central Board of Secondary
Education, (The Board) is the State
within the meaning of Article 12 of the
Constitution.
(c) In case service conditions have not
been framed, then Chapter VII of the
affiliation bye-law relating to service
condition shall be deemed to have been
adopted by the School.

Constitution of India Art-226-Bye laws
framed by board have statutory forcebut the affiliated school-if acts contrary
to conditions contained in bye lawbreech of contract-party may fill Civil
Suit-writ held not maintainable.

Held-Para 31,35 and 76(d)

There is nothing in the constitution of
the Board to suggest that the affiliation
bye-laws
have
statutory
force.
The
service conditions are in the bye laws.
They are adopted between the parties
through the agreement and are binding
as a contract. Neither the bye-laws nor
the agreement are statutory. If there is
ay breach of the service conditions then
it is the breach of the contract and the
parties may file suit or the Board may
impose penalty prescribed under the
bye-laws but this does not mean that the
bye
laws
or
the
agreement
have
statutory force.

The DPS School is merely affiliated to the
Board and the terms of the bye laws are
merely a contract between the school ad