# M/S. Gangeshwar Limited v. Presiding Officer, Labour Court, Dehradun and another

- **Citation:** (2003) 3 ILRA 682
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-07-02
- **Case number:** Civil Misc. Writ Petition No. 1256 of 1997
- **Bench:** Anjani Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-gangeshwar-limited-v-presiding-officer-labour-court-dehradun-and-another-40160
- **Pages:** 4

## Headnote

U.P. Industrial Disputes Act, 1947-S. 4K-Notification
dated
18.7.1982Termination
of
Service-without
payments of gratuity-validity-Tribunal
held retiring workman shall be deemed
to be in service and entitled to full wages
and all benefits as long as employer does
not tender due amount of gratuity to
him-Termination order-held illegal-

Held- Para 5

From the reference, it is clear that the
services of the workman concerned were
terminated by the petitioner-employer
with effect from 1st November, 1986. It
is not disputed either before this Court,
or before the labour Court that while
terminating the services of the workman
concerned, the gratuity, which is found
due upon the employer, has not been
paid to the workman. In this view of the
matter, the labour Court found that in
terms of the aforesaid Notification "the
retiring workman shall be deemed to be
in service and shall be entitled to full
wages and all fringe benefits as long as
the employer does not tender the due
amount of gratuity to him" and held that
the
termination
of
services
of
the
workman concerned with effect from 1st
November, 1986 is illegal and that the
workman is entitled for gratuity/arrears
of gratuity, wages and all fringe benefits,
as if the workman is still in employment.
Cases referred:
AIR 1960 SC 610

## Text

682 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
be in force for the purposes of selection,
appointment, promotion etc of a teacher.
Regulation 6 of chapter 2 having been
virtually replaced by rule 9 of 1983 Rules
framed under the commission Act ceased
to be in force and it was rule 9 of 1983
Rules (as it stood at the relevant time),
which
covered
the
situation.
Consequently writ petition filed by B.P.
Singh is also liable to be dismissed.

6. Learned counsel for the petitioner
B.P. Singh has cited the following
authorities:-

(1) 1989(2) U.P. L.B.E.C.98,
(2) 2002(4) E.S.C. 412,
(3) 1998(3) U.P.L.B.E.C. 1722,
(4) 2000(3) E.S.C. 1670,
(5) 2000(3) E.S.C. 1990.
(6) 1999(2) U.P.L.B.E.C. 1420,
(7) 1992(2) U.P.L.B.E.C. 1483.
(8) 2002(1) S.A.C. 791 and
(9) 1999(3) U.P.L.B.E.C. 1734

7. The first authority deals with
promotion
under
first
removal
of
Difficulties order. In the instant case
promotion of Ram Raj Singh was under
Chapter II Regulation 5 and 6 and rule 9
of 1983 Rules, hence the said authority is
not applicable to the facts of the case. The
second authority also deals with ad-hoc
promotion over and above the 40 %
quota. The 3rd, 4th, 5th, 6th, 8th and 9th
authorities deal with the appointment on
short terms vacancies, which are not
applicable to the facts of the case. Sri
Ram Raj Singh was promoted on
permanent basis in 1988, giving rise to a
substantive vacancy. Until acceptance/
approval of promotion of Ram Raj Singh
under 40% quota by the Commission, no
vacancy either substantive or short term
came into existence, hence alleged
appointment of B.P. Singh in 1986 was
against no vacancy.

8. As far as 7th authority, reported in
1992(2) UPLBEC 1483 is concerned, it is
also not applicable to the facts of the case
as in that authority the matter pertained to
the valid appointment of teacher in CT
Grade before 20.6.1989. In the said
authority the only question considered
was that of applicability of circular dated
20.6.1989.

9. The Director in his order dated
22.4.1998 has rightly directed committee
of
management,
D.I.O.S.,
Regional
Deputy Director of Education, Joint
Director of Education to take immediate
steps to make the appointment against the
post in dispute. The said directions must
be complied with by the concerned
authorities forthwith.

Competent authority/body must be
passed within six months from the
production of certified copy of this order.

Accordingly writ petition is allowed
as aforesaid.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.07.2003

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No. 1256 of 1997

M/S. Gangeshwar Limited ...Petitioner
Versus
Presiding
Officer,
Labour
Court,
Dehradun and another ...Respondents

Counsel for the Petitioner:
Sri Vinod Sinha
Sri S.P. Singh
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3 All] M/s Gangeshwar Ltd. V. P.O., Labour Court and another
683
Counsel for the Respondents:
Sri B.N. Singh
S.C.

U.P. Industrial Disputes Act, 1947-S. 4K-Notification
dated
18.7.1982Termination
of
Service-without
payments of gratuity-validity-Tribunal
held retiring workman shall be deemed
to be in service and entitled to full wages
and all benefits as long as employer does
not tender due amount of gratuity to
him-Termination order-held illegal-

Held- Para 5

From the reference, it is clear that the
services of the workman concerned were
terminated by the petitioner-employer
with effect from 1st November, 1986. It
is not disputed either before this Court,
or before the labour Court that while
terminating the services of the workman
concerned, the gratuity, which is found
due upon the employer, has not been
paid to the workman. In this view of the
matter, the labour Court found that in
terms of the aforesaid Notification "the
retiring workman shall be deemed to be
in service and shall be entitled to full
wages and all fringe benefits as long as
the employer does not tender the due
amount of gratuity to him" and held that
the
termination
of
services
of
the
workman concerned with effect from 1st
November, 1986 is illegal and that the
workman is entitled for gratuity/arrears
of gratuity, wages and all fringe benefits,
as if the workman is still in employment.
Cases referred:
AIR 1960 SC 610

(Delivered by Hon'ble Anjani Kumar, J.)

1. This writ petition was heard and
dismissed by me vide Order dated
02.07.2003 for the reasons to be recorded
later on. Now, here are the reasons for
dismissing the aforesaid writ petition.

2. This writ petition is listed under
the heading 'Order', as there is a stay
vacate application filed on behalf of the
contesting Respondent. Leaned counsel
appearing on behalf of the petitioner
stated that since the writ petition is listed
only for orders, this Court should not
decide the matter on merits. I find that
interest of justice demands that it is in the
interest of the petitioner as well as the
contesting Respondent that the matter
may be finally decided, therefore, I have
heard learned counsel for the parties on
merits.

3. The petitioner, by means of
present writ petition under Article 226 of
the Constitution of India, has challenged
the award of the labour Court, U.P.,
Dehradun dated 23rd May, 1996, passed in
adjudication case no. 139 of 1990, copy
whereof is annexed as Annexure-'2' to
the writ petition. The following dispute
was referred to by the State Government
in exercise of power under Section 4-K of
the U.P. Industrial Disputes Act, 1947
{hereinafter referred to as the 'Act'} vide
its order dated 24th August, 1990, before
the labour Court for adjudication.

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4. After receipt of the reference, the
labour Court issued notices to the parties
and the parties concerned have exchanged
their affidavits and adduced evidence.
The labour Court has relied upon a
Notification dated 15th July, 1982, copy
whereof is annexed along with the counter
affidavit, which is a statement registered
under the provisions of U.P. Industrial
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684 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
Disputes Act, 1947, which provides as
under :

"

ORDER

1. The
management shall pay the
amount of gratuity to a retiring
workmen as may be found due to him
by the management on receipt of a
clearance slip from the workmen in
respect of articles of stores, advance
etc.
The
workman
shall
simultaneously vacate his quarter and
hand over its possession to the
management.

2. The
retiring
workman
shall
be
deemed to be in service and shall be
entitled to full wages and all fringe
benefits as long as the employer does
not tender the due amount of gratuity
to him.

3. Receipt of payment of the amount of
gratuity found due by the employer
shall not prejudice the right of the
workman to raise a dispute about it, if
he considers the amount disputable
even on vacation of the quarter and
exit from the service.

4. This order shall apply to all workman
covered by the Wage Board for the
Sugar Industry and shall remain
inforce till December 31, 1983."

5. From the reference, it is clear that
the services of the workman concerned
were
terminated
by
the
petitioneremployer with effect from 1st November,
1986. It is not disputed either before this
Court, or before the labour Court that
while terminating the services of the
workman concerned, the gratuity, which
is found due upon the employer, has not
been paid to the workman. In this view of
the matter, the labour Court found that in
terms of the aforesaid Notification "the
retiring workman shall be deemed to be in
service and shall be entitled to full wages
and all fringe benefits as long as the
employer does not tender the due amount
of gratuity to him" and held that the
termination of services of the workman
concerned with effect from 1st November,
1986 is illegal and that the workman is
entitled for gratuity/arrears of gratuity,
wages and all fringe benefits, as if the
workman is still in employment. Learned
counsel for the petitioner-employer has
relied upon a phraseology used in the
aforesaid
Government
Notification,
referred to above, that at least in the year
1993 the employer has tendered the
amount of gratuity and therefore the view
taken by the labour Court in awarding the
wages till the date of the award is wholly
erroneous. If the language used in
paragraph 1 of the aforesaid Notification
compared with the language of Section
25-F and Section 6-N of the Industrial
Disputes Act, 1947, which has been
interpreted by the apex Court in the case
of The State of Bombay and others
Versus The Hospital Mazdoor Sabha
and others, reported in A.I.R. 1960
Supreme Court, 610, it reveals that apex
Court while interpreting the provision of
Section 25-F, which is para materia to the
language used in paragraph 1 of the
aforesaid Notification, has held that the
termination of services of the workman
concerned
without
payment
of
retrenchment
compensation
will
be
illegal. I do not find that the view taken
by the labour Court in interpreting the
aforesaid provision of the Notification,
referred to above, suffers from any error,
much less error of law. In this view of the
matter, the argument advanced on behalf
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3 All] Bijendra Singh V. State of U.P. and others
685
of the petitioner-employer deserves to be
rejected and is hereby rejected. No other
argument was advanced on behalf of
learned counsel for the petitioner.

6. In view of what has been stated
above, this writ petition has no force and
is accordingly dismissed. The interim
order, if any, stands vacated. However,
the parties shall bear their own costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 8.7.2003

BEFORE
THE HON'BLE A.K. YOG, J.
THE HON'BLE UMESHWAR PANDEY, J.

Civil Misc. Writ Petition No. 24488 of 2001

Bijendra Singh

...Petitioner
Versus
State of U.P. through Chief Secretary and
others

 ...Respondents

Counsel for the Petitioner:
Sri Pankaj Mithal

Counsel for the Respondents:
S.C.

Constitution of India Article 226-ServicePromotion-On post of Chief Engineerdenied without plausible justificationwhile juniors considered- no specific
denial about merit of petitioner-direction
to
consider
his
case
for
notional
promotion-with
all
benefits
and
privilege.

Held- Para 18 and 19

In view of unrebutted pleadings in the
Writ Petition, referred to above, we find
that name of the petitioner has been
ignored without plausible justification.
Impugned order contains no indication
of the material which has been relied
against the petitioner.

If the petitioner is found fit for being
promoted on the date on which his
juniors were promoted, the petitioner
shall be entitled to all benefits and
privileges treating notionally promoted
w.e.f. the date his juniors have been
given promotion and place him just
above the next person junior to him in
the cadre of Superintending Engineer.
Case law discussed:
1998 (6) SCC 720
1976 (2) SCC

(Delivered by Hon'ble A.K. Yog, J.)

1. Heard learned counsel for the
petitioner and learned Standing Counsel
on behalf of the respondents at length.

The petitioner joined as Assistant
Engineer in the Department of Irrigation,
State of U.P., in December 1966 on adhoc
basis. Thereafter he appeared in the
competitive Combined State Engineering
Services Examination conducted by U.P.
Public Service Commission and declared
successful in the year 1968 and joined on
regular basis. His ad-hoc tenure was
added with the tenure on regular basis.

2. Petitioner was promoted on the
post of Executive Engineer on 31.1.1988.
While working as Executive Engineer he
was communicated with certain remarks
in his service record. Petitioner submitted
a representation. Petitioner was, thereafter
considered for next promotion to the post
of
Superintending
Engineer
by
the
Departmental Promotion Committee and
promoted on 29.10.1999 to the post of
Superintending Engineer w.e.f. 12.3.1998.
The petitioner, however, got aggrieved
when matter of promotion to the post of
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