# Mahabir Prasad Pathak v. The Labour Court, Allahabad and another

- **Citation:** (2002) 3 ILRA 659
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002
- **Case number:** Civil Misc. Writ Petition No. 1397 of 1986
- **Bench:** Vineet Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahabir-prasad-pathak-v-the-labour-court-allahabad-and-another-39929
- **Pages:** 4

## Headnote

Constitution
of
India-
Article
226-
petitioner was absent for more than a
year without any sanctioned leave and
when asked, he did not present himself
for
examination
by
the
company's
Medical Officer. Coupled with this was
the fact which has come on record; that
the petitioner continued to work as a
field
officer
of
Peerless
Insurance
Company Limited and earned higher
Commission than usual during the period
of
absence.
The
Labour
Court
has
considered the case of the petitioner in
details and has also examined the
evidence adduced by the parties before
arriving at its findings.

(Held in para 7)

The petitioner could not be permitted to
work at two places and by working with
another establishment during the period
when he absented himself, allegedly on a
medical ground, he has cheated his
employer. Accordingly I do not find any
reason to interfere with the award given
by the Labour Court.
Case Law Referred:
(I)
1998 (79) F.L.R. 233
(II) 1993 (67) F.L.R. 111

## Text

http://www.allahabadhighcourt.nic.in
3 All] Mahabir Prasad Pathak V. The Labour Court, Allahabad and another
659
(b) the land is vested in the Gaon Sabha
under section 117,. Or
(c) the land has come into the possession
of land Management Committee under
section 194 or under any other provision
of this Act.

10. The land in dispute is not
covered by any one of the aforesaid
clauses of Section 195. Therefore, the
same could not be subject matter of
allotment under any provision of the Act.
The allotment of the land in dispute in
favour of the contesting respondents was,
thus, made wholly without jurisdiction
and on the basis of the same the
contesting respondents can not get any
right in the land in dispute. Further,
according to the findings recorded by the
Additional Collector, the provisions of
Rules 173 and 174 of the Rules framed
under the Act were not followed and the
provisions of Section 28 of the UP
Panchayat Raj Act were violated. Neither
there was announcement of beat of drum
in the circle of the Gaon Sabha in which
the land is situate at least seven days
before the date of meeting of the Land
Management Committee for admission of
the land regarding number of plots, their
areas,
the
date
of
which
admission/allotment was to be made nor
the list of landless persons was prepared
nor other provisions contained under
Rules 174, 175 and 176 were followed
and allotment was made in violation of
the provisions of section 28 of the UP
Panchayat Raj Act, as stated above. Thus,
the allotment was totally illegal and
without jurisdiction. It may also be noted
that the respondent no. 2 made a reference
to the respondent no. 1 to accept the
reference and to remand the case. The
respondent no. 1 could either accept or
reject the reference but it had no
jurisdiction to decide the case himself and
allow the revision finally. The orders
passed by the respondents no. 1 and 2 are
illegal and without jurisdiction, therefore,
they are liable to be set aside. Normally,
after setting aside the two orders,. I
should have remanded the case to the trial
court but in view of the above noted
discussion and in view of the fact that the
land in dispute is admittedly evacuee
property, which was acquired by the
Ministry
of
Rehabilitation
vide
notification
dated
26.11.1957
and
thereafter sold to the petitioner, no useful
purpose will be served by remanding the
case to the Court below as the court below
can not go against the orders passed by
the authorities constituted under the 1954
Act and under the Administration of
Evacuee Property Act. It is, however,
observed that it will be open to the
contesting respondents to approach the
competent authority under the 1954 Act
for ventilation of their grievance, if any, if
they are so advised and if it is legally
permissible within one month from today.

11. Subject to what has been stated
above, this petition succeeds and is
allowed with costs. The orders dated
6.6.1984 (Annexure-IV) and 26.2.1976
(Annexure-111) are hereby quashed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.7.2002

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No. 1397 of 1986

Mahabir Prasad Pathak
...Petitioner
Versus
The Labour Court, Allahabad and another

 ...Respondents
http://www.allahabadhighcourt.nic.in
660 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
Counsel for the Petitioner:
Mr. K.P. Agarwal
Ms. Mahima Maurya

Counsel for the Respondents:
Sri V.R. Agarwal
S.C.

Constitution
of
India-
Article
226-
petitioner was absent for more than a
year without any sanctioned leave and
when asked, he did not present himself
for
examination
by
the
company's
Medical Officer. Coupled with this was
the fact which has come on record; that
the petitioner continued to work as a
field
officer
of
Peerless
Insurance
Company Limited and earned higher
Commission than usual during the period
of
absence.
The
Labour
Court
has
considered the case of the petitioner in
details and has also examined the
evidence adduced by the parties before
arriving at its findings.

(Held in para 7)

The petitioner could not be permitted to
work at two places and by working with
another establishment during the period
when he absented himself, allegedly on a
medical ground, he has cheated his
employer. Accordingly I do not find any
reason to interfere with the award given
by the Labour Court.
Case Law Referred:
(I)
1998 (79) F.L.R. 233
(II) 1993 (67) F.L.R. 111

(Delivered by Hon'ble Vineet Saran, J.)

1. By means of this writ petition, the
petitioner is challenging the award dated
31st July, 1985 passed by the Labour
Court, Allahabad.

2. Briefly, the admitted facts of this
case are that the petitioner was appointed
on 3.10.1967 as a fitter in the respondentcompany,
G.E.C.
India
Limited.
Thereafter on 17.10.1968 the service of
the petitioner was confirmed as fitter and
on 3.9.1970 the petitioner was promoted
to the post of Junior Inspector. While
working as Junior Inspector, the petitioner
absented himself from 1.10.1982 to
26.11.1983. According to the petitioner he
had absented himself from duty because
of illness but his absence for more than a
year was admittedly without any leave
application. Thus on 26.11.1983, the
service of the petitioner was terminated
and in compliance with the provisions of
section 6-N of the U.P. Industrial
Disputes Act, 1947, the employer gave
him one month's salary in lieu of notice.
The said payment was made by the
respondent no. 2 by cheque which was
accepted by the petitioner.

3. Subsequently, the petitioner
raised an industrial dispute under section
4-K of the U.P. Industrial Disputes Act,
1947 which was referred to Labour Court,
Allahabad. The terms of reference were as
follows:

"KYA
SEWAYOJAKON
DWARA
APNE SHARAMIK MAHABIR PRASAD
PATHAK,
JUNIOR
INSPECTOR
KI
SEWAYEN
DINANK
26.11.1983
SE
SAMAPT
KIYA
JANA
UCHIT
TATHA/ATHWA WAIDHANIK HAI YADI
NAHIN TO SAMBANDHIT SHRAMIK
KYA LABH/ANUTOSH (RECEIVE A
PANE KA ADHIKARI HAI, TATHA
ANYA KIS VIVRAN SHIT."

4. After exchange of pleadings and
appraisal of evidence, the Labour Court
gave a finding that the petitioner absented
himself from duty w.e.f. 1.10.1982 to
26.11.1983 without any sanctioned leave.
It was submitted by the petitioner that
during this period he was unwell and
http://www.allahabadhighcourt.nic.in
3 All] Mahabir Prasad Pathak V. The Labour Court, Allahabad and another
661
hence could not attend his duties. When
the workman petitioner submitted medical
leave application, the employer directed
him to present himself for examination
before the company's Medical Officer but
the petitioner did not respond nor did he
present himself for examination. Further it
is not disputed by the petitioner that he
was serving as field officer with the
Peerless Insurance Company since 1978.
This fact came to light during the
proceedings before the Labour Court. It
was also not disputed by the petitioner
that during the period 1982-83 i.e. when
he was absent from duties, he earned a
commission of about rupees forty to fortyfive thousand from Peerless Insurance
Company. It is also admitted by the
petitioner that even after the termination
of service in the year 1983, he continued
to work as field officer of the Peerless
Insurance Company and was earning his
commission there. At the time when the
service of the petitioner was terminated in
the year 1983 he was getting the salary of
Rs.700/-
to
800/-.
Admittedly,
the
commission income which he was getting
during the period of absence in the year
1982-83 was much more than his salary.
On the excuse of medical leave the
petitioner absented himself from work at
the office of the respondent company but
continued to work with Peerless Company
and earned higher commission.

5. I have heard Ms. Mahima Maurya
holding the brief of Mr. K.P. Agarwal,
learned senior counsel for the petitioner
and Sri V.R. Agarwal for the contesting
respondent no. 2. The findings of fact as
stated above have not been disputed by
the learned counsel for the petitioner.
However, it has been submitted by her
that since there was no provision in the
Standing Order that the workman cannot
do any part time work after working
hours, the service of the petitioner cannot
be terminated on this ground. It was also
contended by her that the services of the
petitioner
cannot
be
automatically
terminated without giving any opportunity
of hearing or conducting any domestic
enquiry by the employer. In support of her
argument she has placed reliance on two
decisions of the Supreme Court reported
in 1998 (79) F.L.R. 233- (Uptron India
Limited v. Shamim Khan); and 1993 (67)
F.L.R. 111- (D.K. Yadav v. J.M.A.
Industry Limited).

6. I have considered the said
decisions of the Supreme Court and am of
the view that the same do not apply to the
facts of this case. In this case it is not
disputed by the petitioner that he was
absent for more than a year without any
sanctioned leave and when asked, he did
not present himself for examination by the
company's Medical Officer. Coupled with
this was the fact which has come on
record, that the petitioner continued to
work as a field officer of Peerless
Insurance Company Limited and earned
higher commission than usual during the
period of absence. The Labour Court has
considered the case of the petitioner in
details and has also examined the
evidence adduced by the parties before
arriving at its findings.

7. In the light of the circumstances
enumerated above, I agree with the
finding arrived at by the Labour Court
that the petitioner could not be permitted
to work at two places and by working
with another establishment during the
period
when
he
absented
himself,
allegedly on medical ground, he has
cheated his employer. Accordingly I do
http://www.allahabadhighcourt.nic.in
662 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
not find any reason to interfere with the
award given by the Labour Court.

8. In the result, the petition fails and
is dismissed. There shall be no orders as
to costs.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.8.2002

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No. 2022 of 1996

State of U.P.

...Petitioner
Versus
The Labour Court, U.P., Allahabad and
another

 ...Respondents

Counsel for the Petitioner:
Sri Prabodh Gaur
S.C.

Counsel for the Respondents:
Sri Pankaj Srivastava
Sri A.C. Srivastava
Sri R.B. Singhal

Industrial Disputes Act, 1947, Section 6
(N)-
Retrenchment
Cessation
of
employment of work man amounts to
retrenchment u/s 6-N of the Act- Petr
end to wages.

Held- Para 4 and 5

That cessation of an employment for
whatsoever
reason
amounts
to
retrenchment and the least that is
required from the employer is to comply
with the provisions of section 6-N of the
Act (See. 1982) 1 Supreme Court Cases
645 L. Robert D' Souza vs. Executive
Engineer,
Southern
Railway
and
another).

The wages to the respondent no. 2
workman amounts to retrenchment.
(Delivered by Hon'ble Anjani Kumar, J.)

1. By means of this petition the State
of U.P. has challenged the Award of the
Labour Court, U.P., Allahabad, dated
27.4.1995 in Adjudication case no. 108 of
1990. The fact is that several adjudication
cases were made by different workmen
before the Labour Court but the facts of
the above Adjudication case are picked up
in the present writ petition.

2. It is an admitted case that the
concerned workman, respondent No. 2,
had worked with the petitioner from 1982
to 1989. Thereafter his services were
terminated. It is also admitted and not
disputed by the petitioner that before
terminating the services of the workman
concerned neither any notice had been
given on him nor the provisions of section
6-N of the Industrial Disputes Act have
been complied with.

3. The case of the petitioner is that
the Barage system, where the workman
was employed, has since been shifted
from Allahabad to Mirzapur, no work
remained at Allahabad. Therefore, all the
workmen, including the respondent No. 2,
were transferred to Mirzapur and asked to
report there. Since they have not reported
at
Mirzapur
their
services
were
terminated. In this view of the matter the
learned
Standing
Counsel
for
the
petitioner has submitted that his is not a
case
covered by the definition of
expression 'retrenchment' in Section 6-N
and, therefore, it was not obligatory on
the part of the employer to comply with
the provisions of section 6-N of the Act.
In fact, the employer has not terminated
their services, as alleged, but these
workman are not reporting for duty at