# M/S Swadeshi Cotton Mills v. Labour Court,(II) U.P. Kanpur & Others

- **Citation:** (2012) 3 ILRA 1158
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-08-23
- **Case number:** Civil Misc. Writ Petition No. 19063 of 1999
- **Bench:** B. Amit Sthalekar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-swadeshi-cotton-mills-v-labour-court-ii-u-p-kanpur-others-42359
- **Pages:** 7

## Headnote

U.P. Industrial Dispute Act, 1947-Labor
Court Award-challenged on grounds-no
back wages could be given in absence of
specific pleading regarding no gainfully
worked
elsewhere,
Secondly-non
applicability of the provisions of Section
17-B of Central Industrial Dispute Act-
3 All] M/S Swadeshi Cotton Mills V. Labour Court (II) U.P. Kanpur and others
1159
held-in view of law laid down by Apex
Court in U.P.S.R.T.C. Vs. Surendra Singhaward regarding payment of wages even
after retirement, coupled with the fact of
non consideration of gainful working
neither
award
nor
interim
order
sustainable-accordingly with necessary
modifications-order impugned quashed.

Held: Para 10 and 11

It may be noted that the provisions of
Section
17-B
are
contained
in
the
Industrial Disputes Act, 1947 (Central
Act) and no such provisions exist in the
the U.P. Industrial Disputes Act, 1947 and
there is no other provision under the U.P.
Industrial Disputes Act, 1947 which is
equivalent to the provisions of Section
17-B of the Industrial Disputes Act, 1947
(Central
Act).
Moreover,
as
regards
applicability
or
non-applicability
of
Section 17-B of the Industrial Disputes
Act, 1947 (Central Act) to the case under
the U.P. Industrial Disputes Act, 1947, the
Supreme Court in Civil Appeal No. 359 of
2007 arising out of SLP (C) No. 882 of
2007 U.P.S.R.T.C. Versus Surendra Singh
has held that the provisions of Section 17B of the Industrial Disputes Act, 1947
(Central Act) do not exist in the U.P.
Industrial Disputes Act, 1947.

Thus, in view of the above settled
proposition of law, I am of the view that
the labour court could not have been
awarded back wages to the respondent
no. 2, workman in absence of any
pleading on the part of the workman that
he was not gainfully employed anywhere
after the termination of his service on
31.07.1991. Moreover, the provisions of
Section 17-B of the Industrial Disputes
Act, 1947 (Central Act) do not find place
in the U.P. Industrial Disputes Act, 1947
and therefore, applying the law laid down
by the Supreme Court in the case of
U.P.S.R.T.C.
Versus
Surendra
Singh
(supra), direction no. 3 in the interim
order also could not have been given.
Case law discussed:
(2005) 5 SCC 591; (2006) 1 SCC 479; (2006) 7
SCC 180; (2008) 8 SCC 664

## Text

1158 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
reinstatement
of
the
employee
with
consequential benefits unless the case falls
within any exceptional category and the
Court finds that the reinstatement of
delinquent employee would be prejudicial
to the larger interest of the establishment."

23. In Banaras Hindu University,
Varanasi and Ors. v. J.N. Tripathi (supra)
it was held that " an order for payment of
full back wages is not to be passed as a
matter of course in every case in which the
order of dismissal is set aside or quashed by
the High Court."

24. Same is the view taken in writ
petition No. 44002 of 2005, Shiv Shanker
Saxena v. State of U.P. and Ors. decided on
3.3.2006. Thus, we are also of the view that
the Hon'ble Single Judge instead of directing
for reinstatement of the petitioner with
entitlement of entire arrears of salary, ought
to have directed that during the course of
disciplinary inquiry the petitioner/employee
shall be treated under suspension and paid
his subsistence allowance. Further for the
period, he had been wrongly dismissed and
remained out of job for that period also he
should be paid subsistence allowance. The
entitlement of the petitioner for full wages
shall depend on the outcome of the inquiry
whereafter disciplinary authority shall pass
appropriate orders in terms of the relevant
Standing Orders and law."

19. In the result, the writ petition is
allowed. The impugned order of dismissal
dated 26.4.1988 (Annexure 11 to the writ
petition) is set aside. The respondents are at
liberty to proceed afresh after the stage of
receiving reply of charge sheet from the
petitioner and after holding an enquiry
under Regulation 85 and shall pass a fresh
order within six months from the date of
production of a certified copy of this order.

20. In case the above procedure is
followed, petitioner's entitlement for arrears
of salary and other consequential benefits
would follow the final order passed by
respondents-competent authority. In case
the respondents failed to follow the
procedure, as directed above, and do not
pass a final order within time prescribed
above, the petitioner shall be entitled for all
consequential benefits, as are permissible in
law, under relevant rules and regulations
etc.

21. The petitioner shall also entitled to
cost, which I quantify to Rs.10,000/-
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.08.2012

BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.

Civil Misc. Writ Petition No. 19063 of 1999

M/S Swadeshi Cotton Mills ...Petitioner
Versus
Labour Court,(II) U.P. Kanpur & Others

 ...Respondents

Counsel for the Petitioner:
Sri Devendra Pratap
Sri Siddharth.Singh

Counsel for the Respondents:
C.S.C.
Sri N.P. Singh
Sri J.P. Gupta

U.P. Industrial Dispute Act, 1947-Labor
Court Award-challenged on grounds-no
back wages could be given in absence of
specific pleading regarding no gainfully
worked
elsewhere,
Secondly-non
applicability of the provisions of Section
17-B of Central Industrial Dispute Act-
3 All] M/S Swadeshi Cotton Mills V. Labour Court (II) U.P. Kanpur and others
1159
held-in view of law laid down by Apex
Court in U.P.S.R.T.C. Vs. Surendra Singhaward regarding payment of wages even
after retirement, coupled with the fact of
non consideration of gainful working
neither
award
nor
interim
order
sustainable-accordingly with necessary
modifications-order impugned quashed.

Held: Para 10 and 11

It may be noted that the provisions of
Section
17-B
are
contained
in
the
Industrial Disputes Act, 1947 (Central
Act) and no such provisions exist in the
the U.P. Industrial Disputes Act, 1947 and
there is no other provision under the U.P.
Industrial Disputes Act, 1947 which is
equivalent to the provisions of Section
17-B of the Industrial Disputes Act, 1947
(Central
Act).
Moreover,
as
regards
applicability
or
non-applicability
of
Section 17-B of the Industrial Disputes
Act, 1947 (Central Act) to the case under
the U.P. Industrial Disputes Act, 1947, the
Supreme Court in Civil Appeal No. 359 of
2007 arising out of SLP (C) No. 882 of
2007 U.P.S.R.T.C. Versus Surendra Singh
has held that the provisions of Section 17B of the Industrial Disputes Act, 1947
(Central Act) do not exist in the U.P.
Industrial Disputes Act, 1947.

Thus, in view of the above settled
proposition of law, I am of the view that
the labour court could not have been
awarded back wages to the respondent
no. 2, workman in absence of any
pleading on the part of the workman that
he was not gainfully employed anywhere
after the termination of his service on
31.07.1991. Moreover, the provisions of
Section 17-B of the Industrial Disputes
Act, 1947 (Central Act) do not find place
in the U.P. Industrial Disputes Act, 1947
and therefore, applying the law laid down
by the Supreme Court in the case of
U.P.S.R.T.C.
Versus
Surendra
Singh
(supra), direction no. 3 in the interim
order also could not have been given.
Case law discussed:
(2005) 5 SCC 591; (2006) 1 SCC 479; (2006) 7
SCC 180; (2008) 8 SCC 664
(Delivered by Hon'ble B. Amit Sthalekar, J.)

1. This writ petition has been filed
by the petitioner challenging the order
dated 27.03.1997 as published in the
official Gazette on 04.10.1997 passed by
Labour
Court
(II)
U.P.,
Kanpur,
respondent no. 1.

2. The facts of the case, in brief, are
that, the respondent no. 2, Prem Narain
was working as Weaver in the petitioner
establishment. He was transferred from
one loom to another. He failed to carry
out the order of transfer. He was issued a
chargesheet on 09.08.1991 to which he
submitted his reply on 13.08.1991.
Departmental proceedings were initiated
against the respondent no. 2/workman and
thereafter by an order dated 31.10.1991,
petitioner's services were terminated.

3. Aggrieved by the order dated
31.10.1991, the petitioner raised an
industrial dispute which was registered as
Adjudication Case No. 46 of 1993. As a
preliminary issue, on the question as to
whether termination of service of the
petitioner was according to the principles
of natural justice or not, the labour court
vide its award dated 15.05.1996 held that
the services of the respondent no.
2/workman were terminated illegally and
in the departmental proceedings the
principles of natural justice had not been
complied with. This order was never
challenged by the petitioner/Mills and the
said order became final.

4.

The
labour
court
further
proceeded to hear the matter and
thereafter, by the impugned award dated
27.03.1997 published on 04.10.1997
directed
that
the
respondent
no.
2/workman
would
be
entitled
for
1160 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
reinstatement in service and he will also
be entitled for entire salary and back
wages for the period from the date when
his services were terminated.

5. I have heard Sri Siddharth Singh,
learned
counsel
for
the
petitioner
company and Sri J. P. Gupta, holding
brief of Sri N.P. Singh, learned counsel
for the respondent no. 2, workman.

6. No doubt the order of termination
dated 31.10.1991 passed by the petitioner
Mills terminating the services of the
respondent no. 2 workman was set aside
by the labour court vide its order dated
15.05.1996 and that order was never
challenged by the petitioner Mills and
therefore, became final but it is also not
disputed between the parties that the
respondent no. 2 workman in the ordinary
course superannuated on 01.07.1997 and
therefore, on the date when the award was
published on 04.10.1997, the respondent
no. 2, workman could not have been
reinstated in service. Therefore, the only
question
which
now
remains
for
consideration is as to whether the order of
the labour court for awarding the back
wages to the respondent no. 2 workman
from the date of termination of his service
i.e. on 31.10.1991 till date of his
reinstatement would be a valid order and
whether such an order could be made at
all and whether at this stage such an order
could be given effect considering the fact
that the workman had retired from service
on 01.07.1997.

7. From a perusal of the impugned
award, it can be seen that there is no
discussion of any pleadings by the
workman that after the termination of his
services, he was not gainfully employed
anywhere inasmuch as it is only in these
circumstances that the award for back
wages could have been made by the
labour court. A perusal of the impugned
award does not reveal that any such
pleading was made by the respondent no.
2, workman or any such issue was ever
raised before the labour court. Therefore,
before awarding back wages, it was
incumbent upon the labour court to have
considered this aspect of the matter as to
whether the respondent no. 2, workman
had been gainfully employed after his
services were terminated. In the absence
of any positive finding of the labour court
and in the absence of pleadings by the
respondent no. 2, workman, as back
wages could not have been awarded
automatically. The consistent view of this
Court as well as the Supreme Court is that
no back wages can be awarded to the
workman automatically in the absence of
any pleading by him that during the
period he was out of service on account of
termination or otherwise, he was not
gainfully employed:-

The Supreme Court in (2005) 5 SCC
591,
General
Manager,
Haryana
Roadways vs. Rudhan Singh has held as
follows:-

"8. There is no rule of thumb that in
every case where the Industrial Tribunal
gives a finding that the termination of
service was in violation of Section 25-F of
the Act, entire back wages should be
awarded. A host of factors like the
manner and method of selection and
appointment i.e. whether after proper
advertisement of the vacancy or inviting
applications
from
the
employment
exchange, nature of appointment, namely,
whether ad hoc, short term, daily wage,
temporary or permanent in character, any
special qualification required for the job
3 All] M/S Swadeshi Cotton Mills V. Labour Court (II) U.P. Kanpur and others
1161
and the like should be weighed and
balanced in taking a decision regarding
award of back wages. One of the
important factors, which has to be taken
into consideration, is the length of
service, which the workman had rendered
with the employer. If the workman has
rendered a considerable period of service
and
his
services
are
wrongfully
terminated, he may be awarded full or
partial back wages keeping in view the
fact that at his age and the qualification
possessed by him he may not be in a
position to get another employment.
However, where the total length of service
rendered by a workman is very small, the
award of back wages for the complete
period i.e. from the date of termination till
the date of the award, which our
experience shows is often quite large,
would be wholly inappropriate. Another
important factor, which requires to be
taken into consideration is the nature of
employment.
A
regular
service
of
permanent character cannot be compared
to short or intermittent daily-wage
employment though it may be for 240
days in a calender year."

In (2006) 1 SCC 479, U.P. State
Brassware Corpn. Ltd. and another vs.
Uday Narain Pandey the Supreme Court
has held as follows :-

"22. No precise formula can be laid
down as to under what circumstances
payment of entire back wages should be
allowed. Indisputably, it depends upon the
facts and circumstances of each case. It
would, however, not be correct to contend
that it is automatic. It should not be
granted mechanically only because on
technical grounds or otherwise an order
of termination is found to be in
contravention of the provisions of Section
6-N of the U.P. Industrial Disputes Act."

42. A person is not entitled to get
something only because it would be lawful
to do so. If that principle is applied, the
functions of an Industrial Court shall lose
much of their significance.

61.It is not in dispute that the
respondent did not raise any plea in his
written statement that he was not
gainfully employed during the said
period. It is now well settled by various
decisions of this Court that although
earlier this Court insisted that it was for
the employer to raise the aforementioned
plea but having regard to the provisions
of Section 106 of the Evidence Act or the
provisions analogous thereto, such a plea
should be raised by the workman"

Therefore, the Court has held as
follows:-

45. The Court, therefore, emphasised
that while granting relief application of
mind on the part of the Industrial Court is
imperative. Payment of full back wages,
therefore,
cannot
be
the
natural
consequence.

In (2006) 7 SCC 180, U.P.S.R.T.C.
vs. Mitthu Singh the Supreme Court has
held as follows:-

"12. Since limited notice was issued
with regard to payment of back wages, we
do not enter into the larger question
whether the action of terminating the
services of the respondent was legal,
proper and in consonance with law. But
we are fully satisfied that in the facts and
circumstances of the case, back wages
should not have been awarded to the
1162 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
respondent workman. In several cases,
this Court has held that payment of back
wages is a discretionary power which has
to be exercised by a court/tribunal
keeping in view the facts in their entirety
and neither straitjacket formula can be
evolved
nor
a
rule
of
universal
application can be laid down in such
cases.

16. Thus, entitlement of a workman
to get reinstatement does not necessarily
result in payment of back wages which
would be independent of reinstatement.
While dealing with the prayer of back
wages, factual scenario and the principles
of justice, equity and good conscience
have to be kept in view by an appropriate
court/tribunal."

In (2008) 8 SCC 664, State of
Maharashtra and others vs. Reshma
Ramesh Meher and another the Supreme
Court has held as follows:-

"24. It is true that once the order of
termination of service of an employee is
set
aside,
ordinarily
the
relief
of
reinstatement
is
available
to
him.
However, the entitlement of an employee
to get reinstated does not necessarily
result in payment of full or partial back
wages,
which
is
independent
of
reinstatement. While dealing with the
prayer of back wages, factual scenario,
equity and good conscience, a number of
other factors, like the manner of selection,
nature of appointment, the period for
which the employee has worked with the
employer etc., have to be kept in view. All
these factors and circumstances are
illustrative and no precise or abstract
formula can be laid down as to under
what circumstances full or partial back
wages should be awarded. It depends
upon the facts and circumstances of each
case."

8. At the time of admission of this
writ petition on 10.05.1999, this Court
had been pleased to pass the following
order:-

Heard Sri Devendra Pratap, learned
counsel for the petitioner.

Issue notice to respondent no. 2, who
may file counter affidavit within six
weeks. List thereafter.

In the meantime the impugned award
dated 27.03.1997, annexure-12 to the writ
petition, shall remain stayed provided:

(1) the back wages to the extent of 50
per cent payable under the award are
deposited with the concerned Labour
Court within two months from today.

(2) a sum equal to wages payable to
the workman from the date of the award
till the last preceding month is paid to the
respondent workman within two months
from today; and,

(3) wages at the rate admissible
under Section 17-B of the Industrial
Disputes Act, 1947 for the succeeding
months shall be paid to the respondentworkman, month by month basis, till
further orders of this Court (see Dena
Bank Vs. Kirti Kumar T. Patel AIR 1998
SC-511).

The back wages so deposited, in
terms of this order, shall be invested in
some Nationalized Bank by the concerned
Labour court under an interest earning
term deposit scheme initially for a period
of one year, subject to further renewal.
3 All] M/S Swadeshi Cotton Mills V. Labour Court (II) U.P. Kanpur and others
1163
This deposit shall be subject to the
ultimate decision of this petition.

In the event of default in complying
with
any
of
the
aforementioned
conditions, the present stay order shall
automatically come to an end and award
in question shall become enforceable and
recovery proceedings, if any, shall revive.

9. With regard to the condition no. 2
in the interim order, it may be noted that
if the petitioner had superannuated w.e.f.
01.07.1997 no such direction to pay
wages to the workman from the date of
the award till the last preceding month
could have been directed. Therefore,
directions no. 2 in the interim order could
not have been given.

10. Besides, so far as the direction
no. 3 in the interim order is concerned, the
petitioner
department
had
filed
an
application
dated
21.07.1999
for
modification of the said direction on the
ground that it was not possible to comply
with the direction in the interim order to
pay back wages to the respondent no. 2
workman at the rate admissible under
Section 17-B of the Industrial Disputes
Act, 1947 as the workman had already
superannuated on 01.07.1997. It may be
noted that the provisions of Section 17-B
are contained in the Industrial Disputes
Act, 1947 (Central Act) and no such
provisions exist in the the U.P. Industrial
Disputes Act, 1947 and there is no other
provision under the U.P. Industrial
Disputes Act, 1947 which is equivalent to
the provisions of Section 17-B of the
Industrial Disputes Act, 1947 (Central
Act). Moreover, as regards applicability
or non-applicability of Section 17-B of
the Industrial Disputes Act, 1947 (Central
Act) to the case under the U.P. Industrial
Disputes Act, 1947, the Supreme Court in
Civil Appeal No. 359 of 2007 arising out
of SLP (C) No. 882 of 2007 U.P.S.R.T.C.
Versus Surendra Singh has held that the
provisions of Section 17-B of the
Industrial Disputes Act, 1947 (Central
Act) do not exist in the U.P. Industrial
Disputes Act, 1947. The judgment is short
and is reproduced in its entirety as
follows:-

"Leave granted.

This appeal has been filed by the
U.P. State Road Transport Corporation
against an interim order passed by the
High Court of Allahabad by which the
High Court has modified the interim
order granted by it staying the operation
of the award to the extent that the
appellant shall comply with the provisions
of Section 17-B of the Industrial Disputes
Act, 1947.

It is not in dispute that the provisions
of Section 17-B of the Industrial Disputes
Act do not exit in the U.P. Industrial
Disputes Act. In this view of the matter,
question of compliance of the said
provision
does
not
arise
at
all.
Accordingly, the impugned order is set
aside. This, however, shall not preclude
the
respondent
from
making
fresh
application for grant of interim relief in
his favour in accordance with law. Since
the appeal is pending, we direct the High
Court to dispose of the appeal preferred
by the appellant within a period of six
months from this date positively without
granting any unnecessary adjournments
to either of the parties.

Accordingly, the appeal is allowed to
the extent indicated above. There shall be
no order as to costs."
1164 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

11. Thus, in view of the above
settled proposition of law, I am of the
view that the labour court could not have
been
awarded
back
wages
to
the
respondent no. 2, workman in absence of
any pleading on the part of the workman
that he was not gainfully employed
anywhere after the termination of his
service on 31.07.1991. Moreover, the
provisions of Section 17-B of the
Industrial Disputes Act, 1947 (Central
Act) do not find place in the U.P.
Industrial
Disputes
Act,
1947
and
therefore, applying the law laid down by
the Supreme Court in the case of
U.P.S.R.T.C. Versus Surendra Singh
(supra), direction no. 3 in the interim
order also could not have been given.

12. Since, the provisions of Section
17-B of the Industrial Disputes Act, 1947
(Central Act) do not find any place or
mention in the U.P. Industrial Disputes
Act, 1947 and no such direction no. 3 for
paying wages under Section 17-B of the
Industrial Disputes Act, 1947 could have
been given, therefore, the modification
application stands allowed in terms of the
observations made herein above.

13. In view of the above stated
position, this writ petition is, therefore,
allowed. The impugned award dated
27.03.1997 as published on 04.10.1997 is
quashed.

14. No order as to costs.
---------

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.09.2012

BEFORE
THE HON'BLE VIJAY PRAKASH PATHAK, J.

Criminal Misc. Application No. 24958 of
2007

Arjun Singh Bhadoriya and others

...Applicants
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri R.N.Sharma
Sri A.K.Sharma

Counsel for the Respondents:
Govt. Advocate
Sri Alkesh Singh Chauhan
Sri Suneel Kr. Dubey

Cr.P.C.-Section-482-quashing of Criminal
Proceeding-offense under Section 498-A
I.P.C.-readwith 3⁄4 D.P. Act-on ground as
per version of FIR-incident took place at
Jaipur-where
F.I.R.
was
lodged
by
daughter
of
complainant-during
investigation
all
allegation
found
baseless-present
FIR
by
father
of
complainant
for
same
incident
at
Mainpuri-allegation of demand of Dowry
and "MARPIT' took place at Jaipur-non of
alleged misdeed committed at MainpuriCourt at Mainpuri has no jurisdictionentire proceeding quashed-being abuse
of process.

Held: Para 20

In view of the aforesaid consideration, in
my opinion, the Court at Mainpuri has no
jurisdiction to enquire into or try the
offences which are alleged to have
committed at Jaipur. Moreover, the FIR
had already been lodged by Smt. Alka
Bhadoriya at Jaipur regarding torture, illtreatment and demand of dowry against
the applicants, in which final report has