# Mohammad Aslam Ullah & Ors v. Shravasti Sahkari Chini Mills Ltd. & Ors

- **Citation:** (2014) 1 ILRA 191
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-01-02
- **Case number:** Writ Petition No.9057 (S/S) of 1990
- **Bench:** Vishnu Chandra Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohammad-aslam-ullah-ors-v-shravasti-sahkari-chini-mills-ltd-ors-42757
- **Pages:** 5

## Headnote

Constitution of India, Art.-226-Scope of
judicial review-termination of daily wagergoverned by cooperative societies-can not
be interfered by Writ Court-by exercising
power either under Art. 226 or 227-petition
dismissed.

Held: Para-12
It is true that the powers of High Court of
judicial review has been discussed in several
authorities. On some of them, the petitioner
relied upon. I do not burden this judgement
by citing and discussing those authorities for
the reason that in view of the fact of this
case the writ petition under article 226 could
not be entertained. It is well settled that if
this Court could not invoke its jurisdiction
under Article 226 or 227 of Constitution of
India, the question of judicial review of the
order or action of authority does not arise as
held by their Lordships of Constitutional
Bench of Supreme Court of India in The
State of Uttar Pradesh Vs. Mohammad Nooh,
AIR 1958 SC 86.

Case Law discussed:
(2003)8 SCC 639; (2007) 11 SCC 756; AIR
1958 SC 86; (2003)8 SCC 639; (1981)1 SCC
722; (1979)3 SCC 489; (2007) 11 SCC 756.

## Text

1 All] Mohammad Aslam Ullah & Ors. Vs. Shravasti Sahkari Chini Mills Ltd & Ors.
191

(33) Chief Judicial Magistrates have
not been given powers of discharge in cases
triable by Sessions Court, as it is the trial
court i.e. Sessions Court, who has to hear
accused before framing of the charge. All the
magistrate can do is to commit the case to
Session's Court after following procedure
under Section 207 of Code of Criminal
Procedure. In view of this legal position,
such direction will be against law and cannot
be issued to Chief Judicial Magistrate.

(34) So far as the direction to consider
the bail application in the light of Amrawati
(supra) and Lal Kamlendra's case (supra) is
concerned, this court has held in Amrawati's
case (supra) that this Court cannot direct
Sessions Judge considering the provision of
first proviso to Section 439(1) of Code of
Criminal Procedure.

(35) So far as direction to Magistrate
is concerned, such direction cannot be given
to
Magistrate
considering
relevant
amendment and addition of fourth proviso
of Section 437(1)of Code of Criminal
Procedure, which was added by legislature
after the decision of Amarawati's Case.

(36) From the above discussion, the
instant petition is liable to be dismissed
and is hereby dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.01.2014

BEFORE
THE HON'BLE VISHNU CHANDRA GUPTA, J.

Writ Petition No.9057 (S/S) of 1990
alongwith W.P. No. 5293(S/S) of 1994

Mohammad Aslam Ullah & Ors.. ..Petitioners
Versus
Shravasti Sahkari Chini Mills Ltd. & Ors.
 Opp. Parties
Counsel for the Petitioners:
Sri Manish Mathur

Counsel for the Opp. Parties:
Sri Anuj Kumar Srivastava

Constitution of India, Art.-226-Scope of
judicial review-termination of daily wagergoverned by cooperative societies-can not
be interfered by Writ Court-by exercising
power either under Art. 226 or 227-petition
dismissed.

Held: Para-12
It is true that the powers of High Court of
judicial review has been discussed in several
authorities. On some of them, the petitioner
relied upon. I do not burden this judgement
by citing and discussing those authorities for
the reason that in view of the fact of this
case the writ petition under article 226 could
not be entertained. It is well settled that if
this Court could not invoke its jurisdiction
under Article 226 or 227 of Constitution of
India, the question of judicial review of the
order or action of authority does not arise as
held by their Lordships of Constitutional
Bench of Supreme Court of India in The
State of Uttar Pradesh Vs. Mohammad Nooh,
AIR 1958 SC 86.

Case Law discussed:
(2003)8 SCC 639; (2007) 11 SCC 756; AIR
1958 SC 86; (2003)8 SCC 639; (1981)1 SCC
722; (1979)3 SCC 489; (2007) 11 SCC 756.

(Delivered by Hon'ble Vishnu Chandra
Gupta, J.)

1. Petitioners of writ petition No.9057
(S/S) of 1990 including the petitioner of writ
petition No.5293 (S/S) of 1994 are the daily
wagers working in Shravasti Sahkari Chini
Mills Ltd. Nanpara, Baharich. This Mill is a
Cooperative Society under U.P. Cooperative
Societies Act with 100% shares of State Of
Uttar Pradesh.

2. The services of petitioners are
governed by Standing orders of the Mill
192 INDIAN LAW REPORTS ALLAHABAD SERIES
and rules of Sugar Wages Board. The
management of the Mill decided to
regularize the services of daily wagers
like petitioners, but did not regularize the
services of the petitioners. Consequently,
an industrial dispute arose on behalf of
Petitioners having case No.44 of 1990.
During the pendency of industrial dispute,
the services of the petitioners were
terminated on 23.07.1990. The order of
termination was challenged in Writ
Petition No. 9057 of 1990 (S/S), wherein
an interim protection has been extended to
the
petitioners
vide
order
dated
05.09.1990 allowing them to continue in
service and to pay the wages. When
wages as per Sugar Wages Board were
not paid, the petitioners filed a claim case
under section 15 of Payment of wages
Act. In this case the petitioners were
awarded amount. The petitioner No.1 also
found
entitled
to
the
amount
of
Rs.42384/- The O.P. No.1 instead of
filing the appeal under section 17 of
payment of wages act filed a writ petition
No.4490 of 1993 (S/S) and obtained the
interim order staying the operation of
order passed under section 15 of Payment
of wages Act. In the meantime, industrial
dispute reference case was referred by the
State Government to Labour Tribunal and
was pending on the date of presentation of
Writ Petition No.5293 of 1994 (S/S). The
Mill management issued a show cause
notice on 20/21.07.1993 to the petitioner
No.1 due to activities prejudicial to the
interest of Mill management and ill
mannered actions with other officers and
employees of O.P. No.1. An FIR has also
been lodged on 08.09.1994 by O.P. No.1,
the Mill, against petitioner no.1 alleged to
be arrested red handed while committing
theft in the Mill premises. On 30.09.1994,
the petitioner No.1 was dismissed from
service as a daily wager. The industrial
Dispute referred to Labour Court was
decided against the petitioners vide order
dated 15.10.1997 and the claim of
regularization of petitioners was declined,
the copy of which is annexed as Annexure
No. 1 to the counter affidavit filed by
O.P.s In writ petition No. 5293 of 1994
(S/S). From the perusal of this award, it
appears that petitioner No.2,4,5,6 and 7
were absorbed in service on regular basis,
so they withdrew from the proceedings.
So far as petitioner No.3 Waziruddin is
concerned, he did not contest the matter
before labour court nor challenged the
award. Consequently, the petitioner No.1
remains here to contest the proceedings.

3. The petitioner No.1 was also
acquitted of the charges of theft on
04.01.2002 by Chief Judicial Magistrate,
Bahraich in case No.4627 of 1995.

4. By means of Writ Petition No.
5293 of 1994 (S/S) Petitioner Mohammad
Aslam Khan (the petitioner No.1 in Writ
Petition No.9057 (S/S) of 1990) sought
quashing of the aforesaid order dated
30.09.1994 (Annexure-7) terminating his
services as a daily wager by issuing a writ
order or direction in the nature of
certiorari and by issuing a mandamus
directing the opposite parties to treat the
petitioner in continuous service with all
consequential benefit including payment
of salary and arrears of pay. It is pertinent
to mention here that the petitioner did not
challenge the award delivered by Labour
Court wherein his claim for regularization
has been declined.

5. Since both the petitions are now
related
to
the
claim
of
petitioner
Mohammad Aslam Ullaha khan, they are
being disposed of by this common
judgement.
1 All] Mohammad Aslam Ullah & Ors. Vs. Shravasti Sahkari Chini Mills Ltd & Ors.
193

6. Pleadings were exchanged in both
the petitions in between the parties.

7. Heard Sri Manish Mathur, learned
Counsel for the petitioner and Sri Anuj
Kumar Srivastava, learned counsel for the
opposite parties.

8. The learned Counsel for the
petitioners submits that the termination of
petitioners is bad for two reasons. First;
that the services of the petitioners could
not be dispensed with during the
pendency in the light of section 6-N of
U.P.
Industrial
Disputes
Act
and
secondly; no opportunity of being heard
has been provided to the petitioners
before termination of their services. It was
further urged that similarly situated
persons
were
regularised
but
the
petitioners' services were not regularised
rather in a biased manner the services of
the petitioners were terminated.

9. Contrary to it, the learned counsel
for the opposite parties has submitted that
this
writ
petition
is
not
legally
maintainable because the Cooperative
Sugar
Mill
is
not
the
State
or
instrumentality
or
agency
of
the
Government as held in General Manager,
Kishan
Sahkari
Chini
Mills
Ltd,
Sultanpur, U.P. Vs Satrughan Nishad and
others, (2003) 8 SCC 639. The remedy
lies within the provisions of U.P.
Cooperative Societies Act 1965 and not
before this Court under Article 226 of
Constitution of India as held in Ghaziabad
Zila Sahkari Bank Ltd. v. Addl. Labour
Commissioner, (2007) 11 SCC 756, at
page 778.

10. The award delivered by the
Labour Court has not been challenged in
the present writ petitions, wherein the
claim of petitioners for regularization has
been turned down.

In this petition, the order of dismissal
of petitioners has been challenged on the
ground that no opportunity of being heard
has been provided to the petitioners.

11. It is not in dispute that a show
cause notice has been issued to the
petitioners before passing the order of
dismissal. It is also not in dispute that the
petitioners replied the show cause notice.
It is also not in dispute that the petitioners
were not the regular employee of Chini
Mill but daily wagers. It is also not in
dispute that their claim for regularisation
has been turned down and no challenge
has been made against the order passed by
Labour Court. Therefore services of such
an employee can be dispensed with at the
will of employer without issuing or giving
any prior notice. As per standing orders of
Mill even a temporary workman who has
been appointed temporarily against a
permanent, seasonal of temporary post
can
be
terminated
without
notice.
Therefore, it could not be said that the
principles of natural justice were violated.

12. It is true that the powers of High
Court of judicial review has been
discussed in several authorities. On some
of them, the petitioner relied upon. I do
not burden this judgement by citing and
discussing those authorities for the reason
that in view of the fact of this case the
writ petition under article 226 could not
be entertained. It is well settled that if this
Court could not invoke its jurisdiction
under Article 226 or 227 of Constitution
of India, the question of judicial review of
the order or action of authority does not
arise as held by their Lordships of
Constitutional Bench of Supreme Court of
194 INDIAN LAW REPORTS ALLAHABAD SERIES
India in The State of Uttar Pradesh Vs.
Mohammad Nooh, AIR 1958 SC 86.

13. In view of pronouncement of
Hon'ble Supreme Court, the present writ
petitions would not be maintainable as held
General Manager, Kisan Sahkari Chini Mills
Ltd., Sultanpur, U.P. v. Satrughan Nishad,
(2003) 8 SCC 639, at page 644 :

"5. Shri Rakesh Dwivedi, learned
Senior Advocate appearing in support of
the appeals, submitted that the contesting
respondents could not have been allowed
to invoke the writ jurisdiction of the High
Court as the Mill, which is a registered
cooperative society, was not State within
the meaning of Article 12 of the
Constitution
as
it
was
neither
an
instrumentality nor an agency of the
Government of Uttar Pradesh. On the
other hand, Shri Sunil Gupta, learned
Senior Advocate appearing on behalf of
the contesting respondents, submitted that
the Mill was an instrumentality of the
Government, as such it was an authority
within the meaning of Article 12 of the
Constitution.

6. The point raised is no longer res
integra as the same is concluded by decisions
of this Court. In the case of Ajay Hasia v.
Khalid Mujib Sehravard,(1981)1 SCC 722, a
Constitution Bench of this Court, while
approving the tests laid down in the case of
Ramana Dayaram Shetty v. International
Airport Authority of India, (1979) 3 SCC
489 as to when a corporation can be said to
be an instrumentality or agency of the
Government, observed at pp. 736-37 which
runs thus: (SCC para 9)

"9. The tests for determining as to
when a corporation can be said to be an
instrumentality or agency of Government
may now be culled out from the
judgement in the International Airport
Authority case. These tests are not
conclusive or clinching, but they are
merely indicatives which have to be used
with care and caution, because while
stressing the necessity of a wide meaning
to be placed on the expression ''other
authorities', it must be realised that it
should not be stretched so far as to bring
in every autonomous body which has
some nexus with the Government within
the sweep of the expression. A wide
enlargement of the meaning must be
tempered by a wise limitation. We may
summarise the relevant tests gathered
from the decision in the International
Airport Authority case as follows:

(1) One thing is clear that if the entire
share capital of the corporation is held by
Government, it would go a long way
towards indicating that the corporation is an
instrumentality or agency of Government.
(SCC p. 507, para 14)

(2) Where the financial assistance of
the State is so much as to meet almost entire
expenditure of the corporation, it would
afford some indication of the corporation
being impregnated with governmental
character. (SCC p. 508, para 15)

(3) It may also be a relevant factor ...
whether the corporation enjoys monopoly
status which is State-conferred or Stateprotected. (SCC p. 508, para 15)

(4) Existence of deep and pervasive
State control may afford an that the
corporation
is
a
State
agency
or
instrumentality. (SCC p.508, para 15)

(5) If the functions of the corporation
are of public importance and closely
1 All] Mahipal Verma Vs. Rent Control and Eviction Officer & Ors.
195
related to governmental functions, it would
be a relevant factor in classifying the
corporation as an instrumentality or agency
of Government. (SCC p. 509, para 16)

(6) ''Specifically, if a department of
Government
is
transferred
to
a
corporation, it would be a strong factor
supportive of this inference' of the
corporation being an instrumentality or
agency of Government. (SCC p. 510, para
18)"

In para 9 at page 467-648 the Apex
Court concluded as follows:

"This being the position in that case,
this Court held that the High Court has no
jurisdiction to entertain an application
under Article 226 of the Constitution. In
the present case, the Mill is engaged in
the manufacture and sale of sugar which,
on the same analogy, would not involve
any public function. Thus, we have no
difficulty in holding that the jurisdiction
of the High Court under Article 226 of the
Constitution
could
not
have
been
invoked."

14. In Ghaziabad Zila Sahkari Bank
Ltd. v. Addl. Labour Commissioner,
(2007) 11 SCC 756, at page 778, the
Apex Court ruled as under :

"61. The general legal principle in
interpretation of statutes is that "the
general Act should lead to the special
Act". Upon this general principle of law,
the intention of the U.P. Legislature is
clear, that the special enactment U.P.
Cooperative Societies Act, 1965 alone
should apply in the matter of employment
by cooperative societies to the exclusion
of all other labour laws. It is a complete
code in itself as regards employment in
cooperative societies and its machinery
and provisions. The general Act, the U.P.
Industrial Disputes Act, 1947as a whole
has and can have no applicability and
stands excluded after the enforcement of
the U.P. Cooperative Societies Act. This
is also clear from necessary implication
that the legislature could not have
intended head-on conflict and collision
between authorities under different Acts."

15. The aforesaid pronouncement of
Highest Court of India leaves no room to
doubt that the remedy, if any lies for
petitioners, the same would be within the
four corners of U.P. Cooperative Societies
Act and not in this Court.

16. In view of the aforesaid
discussions made both the writ petitions
deserve
to
be
dismissed,
hence
accordingly dismissed but with no order
as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.01.2014

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 12162 of 2013

Mahipal Verma.... Petitioner
Versus
Rent Control and Eviction Officer & Ors...
 Respondents

Counsel for the Petitioner:
Sri Sharad Kumar Pandey

Counsel for the Respondents:
--

Constitution of India, Art.-226-Allotment
of shop-RCEO rejected on ground shop
being new construction under section