# M/S Tej Shoe Factory v. P.O., Industrial Tribunal-IV, Agra And Anr

- **Citation:** (2013) 1 ILRA 185
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-02-12
- **Case number:** Civil Misc. Writ Petition No. 2801 of 1998
- **Bench:** Sibghat Ullah Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-tej-shoe-factory-v-p-o-industrial-tribunal-iv-agra-and-anr-42489
- **Pages:** 5

## Headnote

Constitution of India, Article 226-Labor
Court award reinstatement with Full
Back Wages-on basis of 3 years workingwhile for the 26 years out of job-order of
reinstatement
modified
with
compensation
of
1,
50,000/-payable
within 2 month-on failure from the date
of award till actual payment 2 % interest
shall be paid.

Held: Para-10

Even though this principle of award of
consolidated damages/ compensation is
mainly resorted to in case of daily
wagers
engaged
by
government
or
governmental agencies however there is
no reason for not applying the same
186 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
principle to private employers and their
workmen in suitable cases like the
present one. Respondent No.2 worked
for only three years and for 26 years she
is not working with the petitioner. In
this regard reference may be made to
para-5 of AIR 2008 (Supp.) SC 1885
which arose out of a dispute between
private employer and its workman. Last
part of the para is quoted below:
Case Law discussed:
AIR 2010 SC 2140; (2009) 15 SCC 327; AIR
2008 (Supp.) SC 1885

## Text

1 All] M/S Tej Shoe Factory Vs. P.O., Industrial Tribunal-IV, Agra And Anr.
185
(2006) 6 scc 736 (Supra) has further held
that any effort to settle the dispute and
claim which do not involved any criminal
offence, by applying pressure through
criminal
prosecution,
should
be
deprecated and discouraged.

24. In criminal proceedings, the
complainant had filed the report of Hand
Writing and Finger Print expert which
was also produced in civil proceedings
but which has not been proved in the civil
proceedings
while
she
had
full
opportunity to prove the said report to
prove her case as well as to rebut the
handwriting and finger print expert report
submitted and proved by the revisionists.
In this way, the opposite party No. 2 has
relied upon such a document which she
was having opportunity to prove but has
failed to prove without any plausible
reason and thus also cancealed this fact
from
the
court
which
passed
the
impugned order. While on the other hand,
the civil court has found that power of
attorney and the agreement to sell have
been executed by the complainant. The
findings of civil court have been affirmed
by Division Bench of this Court in First
appeals, filed by both the parties.

25. For the aforesaid reasons, I am
of the opinion that the civil dispute
between the parties has been given a
criminal colour and in the complaint sent
to the Home Minister, Government of
India and this fact has been concealed that
civil suit regarding the said plot is also
pending in a competent court. The
pendency of the civil suit has also not
been brought into the notice of the court
which has passed the summoning order.

26. In the circumstances the revision
is allowed and the order dated 23.2.2010
passed by III Addl. Chief Judicial
Magistrate, Gautam Budh Nagar in
complaint
case
No.
423
of
2009
summoning the revisionists for the
offence punishable under sections 467,
468 and 471 I.P.C. is set aside.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.02.2013

BEFORE
THE HON'BLE SIBGHAT ULLAH KHAN,J

Civil Misc. Writ Petition No. 2801 of 1998

M/S Tej Shoe Factory

...Petitioner
Versus
P.O., Industrial Tribunal-Iv, Agra And
Anr

...Respondents

Counsel for the Petitioner:
Sri Ranjit Saxena
Sri Amit Kumar Mishra
Sri B.L. Verma

Counsel for the Respondents:
S.C.
Sri Jamal Khan
Sri Vinod Swaroop

Constitution of India, Article 226-Labor
Court award reinstatement with Full
Back Wages-on basis of 3 years workingwhile for the 26 years out of job-order of
reinstatement
modified
with
compensation
of
1,
50,000/-payable
within 2 month-on failure from the date
of award till actual payment 2 % interest
shall be paid.

Held: Para-10

Even though this principle of award of
consolidated damages/ compensation is
mainly resorted to in case of daily
wagers
engaged
by
government
or
governmental agencies however there is
no reason for not applying the same
186 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
principle to private employers and their
workmen in suitable cases like the
present one. Respondent No.2 worked
for only three years and for 26 years she
is not working with the petitioner. In
this regard reference may be made to
para-5 of AIR 2008 (Supp.) SC 1885
which arose out of a dispute between
private employer and its workman. Last
part of the para is quoted below:
Case Law discussed:
AIR 2010 SC 2140; (2009) 15 SCC 327; AIR
2008 (Supp.) SC 1885

(Delivered by Hon'ble Sibghat Ullah Khan,J.)

1. Heard learned counsel for the
parties.

2. This writ petition by the employer
is
directed
against
award
dated
19.02.1997
by
Presiding
Officer,
Industrial Tribunal (IV), U.P. Agra in
Adjucation Case No.15 of 1988. The
matter which was referred to the labour
court was as to whether action of
petitioner
employer
terminating
the
services of its workman respondent No.2,
Smt. Lila Devi w.e.f. 28.08.1986 was just
and valid or not. The workman contended
that she was continuously working from
01.05.1983 till 17.08.1986 and that since
18.08.1986 due to illness she was not
going on duty after recovery, she intended
to join on 25.08.1986 but she was orally
told that she was no more required to
work. The case of the employer petitioner
was that since 18.08.1986 respondent
No.2 was absent unauthorisedly and that
her behaviour was unruly, she abused and
threatened and levelled indecent charges
against the managed and even though she
was required to join the duties, however
she failed to do so and her services were
terminated on 29.09.1986.

3. Admittedly, no retrenchment
compensation was paid to respondent
No.2 and no inquiry was held. Regarding
inquiry the employer pleaded that holding
inquiry would have been detrimental as it
would have resulted in indecent charges
by the respondent No.2 against the
Manager. Labour Court held that the
employer
continuously
wrote
to
respondent No.2 to join but she did not
come on work. Ultimately, termination
was held illegal on the ground that no
retrenchment compensation as directed to
be paid by Section 6-N of U.P. Industrial
Disputes Act had been paid. Accordingly,
reinstatement with full back wages was
directed.

4. It is not clear that why matter
remained pending from 1988 to 1997. In
this writ petition through interim order
dated
29.01.1998
execution
of
the
impugned award was completely stayed.

5. Written statement filed by the
petitioner employer before the labour
court is Annexure-2 to the writ petition
stating that services were not terminated
on 25.08.1986 but on 29.09.1986. It was
admitted that respondent No.2 was
employed w.e.f. 01.05.1983 as helper. In
the written statement exchange of letters
between the petitioner and respondent
No.2 has been mentioned. It is also
mentioned that on 17.09.1986, respondent
No.2 quarrelled with Sri R.K. Sharma,
manager of petitioner and abused him. It
is also stated that she was not reporting on
duty but she was coming to the factory
and using filthy language. It is mentioned
that management had lost confidence in
her. It is also stated that retrenchment
compensation was sent through money
order, which was refused. Thereafter,
subsequent letters of respondent No.2 to
1 All] M/S Tej Shoe Factory Vs. P.O., Industrial Tribunal-IV, Agra And Anr.
187
City Magistrate and other authorities have
been mentioned.

6. Annexure-3 to the writ petition is
the written statement of respondent No.2.
In para-6 of the written statement,
respondent No.2 mentioned that she sent
notice on 29.09.1986 to the employer for
sitting on dharna w.e.f. 30.10.1986 and
another
letter
was
sent
to
the
administrative authority of the district on
06.10.1986 for permission to sit on dharna
on 15.10.1986, which was not granted to
her. In para-10 of the written statement
she admitted that she was sent a money
order of Rs.1473.25, however she refused
to accept the same as it was short by
Rs.82/- and this fact was admitted by the
employers themselves as afterwards on
30.09.1986 they informed her that due to
fault of the clerk, the amount which was
earlier sent was short by Rs.82/- which
was again being sent.

7. Admittedly no inquiry was held.
Some amount was sent as retrenchment
compensation. There is no finding by the
labour court that whether it was complete
as alleged by the employers or incomplete
as alleged by the respondent No.2 on the
ground of which she refused to accept the
same. Learned counsel for the petitioner
has argued that it was a case of loss of
confidence. However the said point is not
fully
established
and in
any
case
confidence may be lost on the ground of
some proven facts. Without inquiry it
cannot be said that anything was proved.

8. Respondent No.2 admits that
some amount was sent through money
order which she refused, however she has
asserted that she was justified in refusing
the same as it was short.

9. From the allegations made in the
written statements by both the parties
against each other, it is quite clear that it
was a case of distrust of each other
against each other. The relationship was
more than strained or irretrievably broken.
Accordingly, it was not congenial for any
of the parties to direct reinstatement. In
such situation, the best course would be to
award reasonable compensation/ damages
to the workman. Supreme Court in several
authorities has held that in case of
violation of Section 25-F of Industrial
Disputes Act (equivalent to Section 6-N
of U.P. I.D. Act), it is not always
necessary to direct reinstatement with full
back wages in some suitable cases award
of consolidated damages/ compensation
may be the most appropriate relief. In this
regard, reference may be made to
paragraphs 6, 7 & 8 of the Supreme Court
judgment reported in AIR 2010 SC 2140,
which are quoted below:

"6. In last few years it has been
consistently held by this Court that relief
by way of reinstatement with back wages
is not automatic even if termination of an
employee is found to be illegal or is in
contravention of the prescribed procedure
and that monetary compensation in lieu of
reinstatement and back wages in cases of
such nature may be appropriate, (See U.P.
State Brassware Corpn. Ltd. & Anr. v.
Uday Narain Pandey (2006) 1 SCC 479;
Uttaranchal Forest Development Corpn.
v. M.C. Joshi (2007) 9 SCC 353; State of
M.P. & Ors. v. Lalit Kumar Verma (2007)
1
SCC
575;
Madhya
Pradesh
Administration v. Tribhuban (2007) 9
SCC 748; Sita Ram & Ors. v. Moti Lal
Nehru Farmers Training Institute (2008) 5
SCC 75; Jaipur Development Authority v.
Ramsahai & Anr. (2006) 11 SCC 684;
Ghaziabad Development Authority &
188 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Anr. v. Ashok Kumar & Anr. (2008) 4
SCC 261 and Mahboob Deepak v. Nagar
Panchayat, Gajraula & Anr. (2008) 1 SCC
575).

7. In a recent judgment authored by
one of us (R.M. Lodha, J.) in the case of
Jagbir Singh v. Haryana State Agriculture
Marketing Board and Anr. (2009) 15 SCC
327, the aforesaid decisions were noticed
and it was stated:

"7. It is true that the earlier view of
this Court articulated in many decisions
reflected the legal position that if the
termination of an employee was found to
be illegal, the relief of reinstatement with
full back wages would ordinarily follow.
However, in recent past, there has been a
shift in the legal position and in a long
line of cases, this Court has consistently
taken the view that relief by way of
reinstatement with back wages is not
automatic
and
may
be
wholly
inappropriate in a given fact situation
even though the termination of an
employee is in contravention of the
prescribed
procedure.
Compensation
instead of reinstatement has been held to
meet the ends of justice. * * * * * * * * *
* 14. It would be, thus, seen that by a
catena of decisions in recent time, this
Court has clearly laid down that an order
of retrenchment passed in violation of
Section 25-F although may be set aside
but an award of reinstatement should not,
however, be automatically passed. The
award of reinstatement with full back
wages in a case where the workman has
completed days of work in a year
preceding
the
date
of
termination,
particularly, daily wagers has not been
found to be proper by this Court and
instead compensation has been awarded.
This Court has distinguished between a
daily wager who does not hold a post and
a permanent employee".

8.In view of the aforesaid legal
position and the fact that the workmen
were engaged as daily wagers about 25
years back and they worked hardly for 2
or 3 years, relief of reinstatement and
back wages to them cannot be said to be
justified
and
instead
monetary
compensation would subserve the ends of
justice. In our considered view, the
compensation of Rs. 40,000/- to each of
the workmen (respondent nos. 1 to 14)
shall meet the ends of justice. We order
accordingly. Such payment shall be made
within 6 weeks from today failing which
the same shall carry interest at the rate of
9 per cent per annum."

10. Even though this principle of
award
of
consolidated
damages/
compensation is mainly resorted to in case
of daily wagers engaged by government
or governmental agencies however there
is no reason for not applying the same
principle to private employers and their
workmen in suitable cases like the present
one. Respondent No.2 worked for only
three years and for 26 years she is not
working with the petitioner. In this regard
reference may be made to para-5 of AIR
2008 (Supp.) SC 1885 which arose out of
a dispute between private employer and
its workman. Last part of the para is
quoted below:

"We
are
of
the
opinion
that
consequent upon the bitter relations
between the parties and as even the High
Court has found the charges proved
though 'trivial' and the fact that the
respondent has not been on duty with the
appellant-management since the year
1981, it would be inappropriate to foist a
1 All] Manoj Kumar Vs. State of U.P. & Another
189
cantankerous and abrasive workman on
it. We accordingly dismiss the appeal but
direct that instead of reinstatement the
respondent would be entitled to the
payment
of
Rs.10,00,000/-
as
compensation as full and final settlement
with respect to his entire claim."

11. Accordingly, writ petition is
allowed. Impugned award is set aside and
substituted by a direction to the petitioner
to pay Rs.1,50,000/- to respondent No.2
as consolidated damages/ compensation
within two months from today by
depositing the same before the Deputy
Labour Commissioner for immediate
payment to the respondent No.2. In case
of failure 2% per month interest shall be
payable upon the said amount since after
two months till actual deposit/ recovery.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.01.2013

BEFORE
THE HON'BLE HET SINGH YADAV,J.

CRIMINAL REVISION No. - 3335 of 2010

Manoj Kumar

 ...Revisionist
Versus
State Of U.P. & Another ...Opposite Parties

Counsel for the Petitioner:
Sri Madan Singh

Counsel for the Respondents:
Govt. Advocate
Sri J.P.S.Chauhan

Criminal Procedure Code 1973-Criminal
Revision against the order passed under
Section
125
granting
interim
maintenance of Rs. 1500/-Revisionist a
graduate man doing private job-whereas
the wife is simply class XII standardcontention of husband about earning of
wife from tuition and tailoring not
proved
by
evidence-finding
of
fact
recorded by the Magistrate about the
wife to be unable to maintain herself
confirmed-monthly
allowance
of
Rs.
2500/-can not be said excessive-in view
of high inflation-proposal to maintain the
wife
if
she
join
the
company
of
revisionist-held-not
available-Revision
dismissed.

Held: Para-19

In this case as aforementioned, the
family background of the Revisionist is
sound enough studded with the fact that
the revision is educated and he has
completed his graduation. On the other
hand, his wife is a daughter of a teacher.
She
is
also
maintaining
the
minor
legitimate child of the Revisionist, who is
a school going boy. Therefore, the
monthly allowance of Rs. 2,500/- in all
as
maintenance
is
not
excessive
particularly in view of these days of high
inflation. Moreover, this is equally a
finding of fact and based on evidence
and material available on record before
the Magistrate and the same does not
suffer from any illegality as such, is not
liable to be interfered with in the
Revision.
Case Law discussed:
AIR 1926 Mad 346 (A); AIR 1955 Allahabad
320; 1963 Cr.L.J. 1153; 2005 Cr.L.J. 2141; AIR
1929 PC 128; 1971 AIR 234; [2006(63) ALR
543]; 1981 Cri.L.J. 1439; (1982) 2 Supreme
Court Cases 373

(Delivered by Hon'ble Het Singh Yadav,J.)

1. Challenge in this revision is to the
order dated 5.5.2008 rendered by the
Judicial Magistrate, (Court No. 3), Bijnor
on the application of the wife of the
Revisionist arrayed as Respondent No. 2
in the instant revision, purported to be
under Section 125 of the Criminal
Procedure Code, 1973 (In short the Code)
whereby the learned Magistrate has