# M/S Agarwal Trading Agency v. The State of U.P. & Ors

- **Citation:** (2013) 2 ILRA 704
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-05-14
- **Case number:** Civil Misc. Writ Petition No. 25969 of 2013
- **Bench:** Ashok Bhushan, Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-agarwal-trading-agency-v-the-state-of-u-p-ors-42562
- **Pages:** 3

## Headnote

U.P. Kerosene Oil control Order 1962- Rule
11
Proviso-II-
Suspension
of
licencepending
enquiry-before
passing
order
opportunity is must-moreover after expiry
of
2
weeks-suspension
automatically
ceased with operation-suspension order
lost its existence accordingly-given liberty
to pass final order.

Held: Para-11
A
perusal
of
the
aforesaid
provision
indicates that the 1st proviso of Rule 11 of
the Order, 1962 contemplates that the
licencee shall be given a reasonable
opportunity of submitting his explanation
before license is suspended except when
suspension is pending inquiry. With regard
to suspension pending inquiry an outer limit
of two weeks have been provided for. The
object of the said rule is that normally
suspension of kerosene oil licensee should
be ordered after giving due opportunity and
in case it is made suspension pending
inquiry it has outer limit of two weeks. A
perusal of the suspension order dated
30/4/2013,
clearly
indicates
that
suspension order was pending inquiry,
hence the said suspension shall come to an
end after expiry of two weeks. However,
the mere fact that suspension order which
was passed pending inquiry has come to an
2 All] M/S Agarwal Trading Agency Vs. The State ofU.P. & Ors.
705
end after two weeks does not preclude the
authorities from passing a final order under
the 1st proviso of Rule 11 of the Order,

## Text

704 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

18. In the case of Suresh Chandra (Supra),
the Government Order of 1992 was quashed and
the services of the workman remained
untouched. Subsequently Regularization Rules
was introduced in 1998, and based on those
Rules, many of the services of the part time
Tubewell Operators have been regularized.

19. The petitioner in the instant case
had also filed a writ petition for
regularization of his services in the year
1995, but did not challenge the order of
termination on account of which, his writ
petition was dismissed. The petitioner,
thereafter, raised an industrial dispute.

20. In view of the aforesaid, the Court is
of the opinion that since similarly situated
persons were reinstated in the service by
various orders of the writ Court for different
reasons, the petitioner is also entitled to be
reinstated in service. The Court has held that
the order of termination was in violation of the
provision Section 6-N of the Act. The Court,
accordingly, holds that the award of the labour
court declining to grant relief was wholly
erroneous. The award is accordingly quashed.
The petitioner would be reinstated in service.

21. The reference was made in the year
2006 after a gap of almost 11 years on
account of the fact that the petitioner was
pursuing his remedy for regularization of his
services before a Writ Court. For this delay,
the liability of backwages cannot be fastened
upon the employers. The Court is, therefore,
of the opinion that in order to mould the
relief, the petitioner is only entitled for
reinstatement with continuity of service, but
will not be entitled for any backwages.

22. In view of the aforesaid, the award of
the labour court is quashed. The writ petition is
allowed to the extent stated aforesaid.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.05.2013

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Civil Misc. Writ Petition No. 25969 of 2013
M/S Agarwal Trading Agency...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare, Sri R.K. Tripathi

Counsel for the Respondents:
C.S.C.

U.P. Kerosene Oil control Order 1962- Rule
11
Proviso-II-
Suspension
of
licencepending
enquiry-before
passing
order
opportunity is must-moreover after expiry
of
2
weeks-suspension
automatically
ceased with operation-suspension order
lost its existence accordingly-given liberty
to pass final order.

Held: Para-11
A
perusal
of
the
aforesaid
provision
indicates that the 1st proviso of Rule 11 of
the Order, 1962 contemplates that the
licencee shall be given a reasonable
opportunity of submitting his explanation
before license is suspended except when
suspension is pending inquiry. With regard
to suspension pending inquiry an outer limit
of two weeks have been provided for. The
object of the said rule is that normally
suspension of kerosene oil licensee should
be ordered after giving due opportunity and
in case it is made suspension pending
inquiry it has outer limit of two weeks. A
perusal of the suspension order dated
30/4/2013,
clearly
indicates
that
suspension order was pending inquiry,
hence the said suspension shall come to an
end after expiry of two weeks. However,
the mere fact that suspension order which
was passed pending inquiry has come to an
2 All] M/S Agarwal Trading Agency Vs. The State ofU.P. & Ors.
705
end after two weeks does not preclude the
authorities from passing a final order under
the 1st proviso of Rule 11 of the Order,
1962.

(Delivered by Hon'ble , Ashok Bhushan, J.)

1. Supplementary affidavit filed
today is taken on record.

2. Heard Shri Ashok Khare, learned
Senior Advocate assisted by Shri R.K
Tripathi, for the petitioner and the learned
Standing Counsel.

3. By this petition, the petitioner has
prayed for quashing the order dated
30/4/2013 passed by the District Supply
Officer suspending the license of the
petitioner's Kerosene Oil. By the said
order the District Supply Officer also
directed the petitioner to submit his reply
along with evidence within one week.

4. Learned counsel for the petitioner
submitted that the suspension of the
petitioner's license of kerosene oil was
suspension pending inquiry and in accordance
with 2nd proviso of Clause 11 of the U.P.
Kerosene Control Order, 1962 (hereinafter
called the "Order 1962") the said suspension
order has come to an end. He further submits
that according to first proviso to Rule 11 of
the Order 1962, before suspending the license,
an opportunity of submitting an explanation is
required and it is by an exception that
suspension can be ordered pending inquiry.
He submits that since the petitioner's
suspension of kerosene oil was ordered
pending inquiry hence the same has come to
an end after expiry of two weeks.

5. Learned Standing Counsel
appearing for the respondents submits that
the petitioner did not submit any reply
and further it was on account of the
petitioner's non submission of his reply
that the order could not be passed.

6.

We
have
considered
the
submission of the learned counsel for the
parties and have perused the record.

Clause 11 of the Order, 1962 is as
follows:

"[11.
Forfeiture
of
security,
suspension and cancellation of and
refusal to renew licence.- The Licensing
Authority may, for reasons to be recorded
in writing, forfeit the security either in
whole or in part, suspend or cancel any
licence or refuse to renew a licence if it is
satisfied that the licensee has contravened
any provisions of this Order or the
conditions of the licence or any direction
issued thereunder:

8. Provided that the licensee shall be
given a reasonable opportunity of submitting
his explanation before forfeiture of security
either in whole or in part or before a licence
is cancelled or its renewal is refused or its
suspended otherwise than by way of
suspension pending inquiry:

9. Provided further that no order of
suspension pending inquiry shall extend
beyond a period of two weeks:

10. Provided also that it shall not be
necessary to give an opportunity in
respect of an alleged contravention which
has led to the conviction of the licensee.]"

11. A perusal of the aforesaid provision
indicates that the 1st proviso of Rule 11 of the
Order, 1962 contemplates that the licencee
shall be given a reasonable opportunity of
submitting his explanation before license is
suspended except when suspension is pending
inquiry. With regard to suspension pending
706 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
inquiry an outer limit of two weeks have been
provided for. The object of the said rule is that
normally suspension of kerosene oil licensee
should be ordered after giving due opportunity
and in case it is made suspension pending
inquiry it has outer limit of two weeks. A
perusal of the suspension order dated
30/4/2013, clearly indicates that suspension
order was pending inquiry, hence the said
suspension shall come to an end after expiry
of two weeks. However, the mere fact that
suspension order which was passed pending
inquiry has come to an end after two weeks
does not preclude the authorities from passing
a final order under the 1st proviso of Rule 11
of the Order, 1962.

12. In view of the facts of the
present case, no useful purpose will be
served in keeping the writ petition
pending and calling for a counter
affidavit. We are of the view that the
suspension order dated 30/4/2013, which
was pending inquiry shall cease to operate
after two weeks. However, it shall be
open for the authorities to pass a final
order under the first proviso of Rule 11 of
the Order, 1962 in accordance with law.

13. With the aforesaid observation,
writ petition is disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.05.2013

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No.26118 Of 2011
along with
 No. 18968 / 2010
with
No. 19004 / 2010
with
 No.19007 / 2010
with
 No. 19009 / 2010
with
 No. 19011 / 2010
with
 No. 19013 / 2010
with
 No. 19015 / 2010

U.P. Power Transmission Corporation
Ltd.
 ...Petitioner
Versus
Jagdish Narain Rawat and Ors Respondents

Counsel for the Petitioner:
Sri Arvind Kumar

Counsel for the Respondents:
Ms. Bushra Maryam

U.P. Retirement Benifits Rules 1961
readwith
New
Family
Pension
Scheme1965- whether the employees of
U.P.E.B. who opted pension Rule 1961
can be debarred from benefit of gratuity
Act?-held-'No'

Held: Para-14 and 15
14.In the light of the aforesaid, the
option exercised by the workers was an
exercise in futility and it did not bind
them for not receiving better benefits
payable under the Act.

15.Nothing stopped the workman from
receiving
the
benefits
under
the
Payment of Gratuity Act, 1972 in view of
sub-clause (5) of Section 4 of the Act,
which clearly indicates that the right of
the employee to receive better terms of
gratuity under any award or agreement
would not be affected by Section 4 of the
Act to receive payment under the said
Act.

Case Law discussed:
1999 (81) FLR 867; 2010 (124) FLR 192; 2001
(90) FLR 770

(Delivered by Hon'ble Tarun Agarwala,J.)