# Moti Lal Nehru Inter College, Bareily v. Peethaseen Adhikari Labour Court & Anr

- **Citation:** (2014) 2 ILRA 853
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-01-28
- **Case number:** Civil Misc. Writ Petition No. 42027 of 2005
- **Bench:** Mrs. Sunita Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/moti-lal-nehru-inter-college-bareily-v-peethaseen-adhikari-labour-court-anr-42994
- **Pages:** 7

## Headnote

Constitution of India, Art.-226-Service Lawdismissal from service-on conviction in
criminal case-honorably acquittal-entitled
for reinstatement without back wages.

Held: Para-21
This apart, it is trite law that once the order
of conviction passed by the trial court is set
aside by the higher court , there does not
exist any conviction in the eye of law at all.
Punitive
action
taken
against
the
respondents-employees was based solely
on the order of conviction and the removal
of the order of conviction has the result of
removing the entire basis of the order of
termination.

Case Law discussed:
1961 (2) FLR 241; (2006) 5 SCC 446; (2009) 6
SCC 791; 2010 (2) SCC 252.
854 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

2 All]. Moti Lal Nehru Inter College, Bareily Vs. Peethaseen Adhikari Labour Court & Anr. 853
dealer in the area where the petitioner was
operating as fair price shop dealer.

Learned counsel for the petitioner
seeks to place reliance on order dated
23.11.2007 passed by Hon'ble Single
Judge of this Court in Writ Petition No.
57682 of 2007 wherein an order was
passed restraining the authorities from
doing any fresh allotment of the fair price
shop till the appeal is decided.

In our view, the aforesaid order would
have no application in the present case.
Firstly, in the earlier writ petition filed by the
petitioner which has been disposed of this
Court on 07.03.2008 directing the appellate
authority to decide his appeal within three
months, no such order has been passed
restraining the respondents from allotting
shop in question to any one and for the said
purpose only no fresh petition would lie.
Secondly, we are of the view that so long as
the licence of a person continued to be
cancelled he has no right either in law or
otherwise to create any obstruction in the
way of respondent-authorities in making
arrangement for distribution of essential
commodities to the public at large in such
manner as they found expedient and in the
interest of public at large. If the authorities
found it appropriate that the people would be
better serve if the fair price shop is allotted to
a third person, we do not find any illegality
or irregularity in such exercise of power
unless it can be shown that it is mala fide or
without jurisdiction or is inconsistent to any
provision or executive order having force of
law. No such provision has been placed
before us." (emphasis added)

8. The exposition of law laid down
in aforesaid Division Bench judgment,
where the issue has been raised, argued
and
decided,
constitute
a
binding
precedent on this Court, with which I find
myself bound.

9. In view thereof, the writ petition
lacks merit. Dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.01.2014

BEFORE
THE HON'BLE MRS. SUNITA AGARWAL, J.

Civil Misc. Writ Petition No. 42027 of 2005
alongwith W.P. No. 42028 of 2005.

Moti Lal Nehru Inter College, Bareily
 ...Petitioner
Versus
Peethaseen Adhikari Labour Court & Anr.
 ...Respondents

Counsel for the Petitioner:
Sri Dinesh Chandra Mishra, Sri M.C. Mishra

Counsel for the Respondents:
Sri S.S. Nigam, S.C., Sri Shivendra Kumar
Gupta, Sri T.S. Dabas, Sri Abhay Raj Singh,
Sri Harish Chandra Dwivedi

Constitution of India, Art.-226-Service Lawdismissal from service-on conviction in
criminal case-honorably acquittal-entitled
for reinstatement without back wages.

Held: Para-21
This apart, it is trite law that once the order
of conviction passed by the trial court is set
aside by the higher court , there does not
exist any conviction in the eye of law at all.
Punitive
action
taken
against
the
respondents-employees was based solely
on the order of conviction and the removal
of the order of conviction has the result of
removing the entire basis of the order of
termination.

Case Law discussed:
1961 (2) FLR 241; (2006) 5 SCC 446; (2009) 6
SCC 791; 2010 (2) SCC 252.
854 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Mrs. Sunita Agarwal, J.)

1. The writ petition no. 42027 of
2005 has been filed challenging the award
of the Labour Court, Bareilly dated
4.11.2004 in adjudication case no. 31 of
1999.
The
dispute
referred
vide
Government Order dated 26.2.1999 was
as to whether the termination of services
of the respondent no.2 namely Bheem Sen
son of Hori Lal, class IV employee with
effect from 23.1.1980 was legal or not.

2. In the connected writ petition no.
42028 of 2005, the award dated 2.11.2004
passed by the Labour Court, Bareilly is
under challenge. In the said case also the
dispute referred vide Government Order
dated 26.2.1999 was as to whether the
termination of services of respondent no.2
Sita Ram son of Shri Ram Dayal from the
post of peon with effect from 23.1.1980
was legal or not.

3. Both the employees, namely,
Bheem Sen and Sita Ram respondent no.2
in the connected writ petitions were class
IV employees in the petitioner institution.
They were terminated by a common order
dated 29.1.1980 on the ground that they
were convicted and sentenced for life
imprisonment in Sessions trial no. 143 of
1979 for the offence under Sections 302
and 304 I.P.C. by judgment and order
dated 22.1.1980 passed by the IV
Additional District and Sessions Judge,
Bareilly.
Both
the
respondent
no.2,namely, Bheem Sen and Sita Ram
filed
criminal
appeal
no.
316
of
1980(Bheem Sen and another Vs. State of
U.P.) before this Court challenging the
order of conviction dated 22.1.1980
passed by the Sessions Court. The appeal
was allowed by the judgement and order
dated
15.7.1998
and
they
were
honourably acquitted by the appellate
court. After acquittal they had approached
the petitioner for their reinstatement. They
were denied the same and as such they
had raised industrial dispute which was
referred by two separate referral order of
the same date i.e. 26.2.1999.

4. The Labour Court, Bareilly
passed two separate awards in favour of
both the employees which are under
challenge, in the two connected writ
petition.

5. As the controversy involved in
both the writ petitions, in substance, is
same and hence both the writ petitions are
being decided by this common judgement.

6. In so far as the writ petition no.
42027
of
2005
is
concerned,
the
respondent no. 2 was appointed as class
IV employee on the post of Daftari in the
year 1963-64 in the petitioner institution.
The petitioner institution was recognized
up to High School at the time of
appointment of the respondent no.2.

7. In so far as the respondent no.2 in
writ petition no. 42028 of 2005 is
concerned, he was appointed as class IV
employee as Chaukidar in the year 197677.

8. It may be mentioned that as in the
connected writ petitions both Bheem Sen
and Sita Ram are arrayed as the
respondent no.2 and hence they will
jointly
be
referred
as
respondents
hereinafter.

9. The facts in brief relevant for
deciding the controversy are that against
respondents Bheem Sen and Sita Ram, a
First Information Report was lodged
2 All]. Moti Lal Nehru Inter College, Bareily Vs. Peethaseen Adhikari Labour Court & Anr. 855
under Sections 302 and 364 I.P.C. and
registered as case crime no. 9 of 1979 in
the police station Deorania, District
Bareilly. They were implicated in the
charges of kidnapping and murder. They
were arrested in the aforesaid crime and
therefore they were suspended by the
Principal by two separate orders of the
same date i.e. 27.1.1979.

10. The respondents Bheem Sen and
Sita Ram were convicted for life
imprisonment in the Sessions Trial No.
143 of 1979 by judgment and order dated
22.1.1980 passed by the IV Additional
District and Sessions Judge, Bareilly. On
account of said conviction, the Principal
of the college by a common order dated
29.1.1980 terminated the services of
respondents Bheem Sen and Sita Ram
with
effect
from
23.1.1980.
The
termination order is on record as
"Annexure-6" to the writ petition.

11. A perusal of the termination
order indicates that the services of the two
employees were terminated only on the
ground of their conviction for life
imprisonment in Sessions Trial No. 143
of 1979 by judgement and order dated
22.1.1980.

12. In the writ petition, it has been
brought
on
record
that
after
the
termination of the services of respondents
namely Bheem Sen and Sita Ram; two
class IV employees were appointed on the
vacant post namely, Harish Babu and
Mehar Singh after seeking approval of the
District Inspector of Schools. Harish Babu
was appointed on 16.3.1980 and Mehar
Singh was appointed on 26.3.1979. The
permission
for
appointment
of
the
incumbents as class IV employee was
sought by letter dated 12.2.1979 sent to
the District Inspector of Schools, who had
granted
approval
for
temporary
arrangement to be made on account of
suspension of the respondents Bheem Sen
and Sita Ram. The record further
indicates that Harish Babu was appointed
on the vacant post of Daftari with effect
from 17.3.1980 on temporary basis
whereas Mehar Singh was appointed on
temporary
basis
with
effect
from
25.3.1979 on the post of Chaukidar. The
information regarding appointment of
Harish Babu and Mehar Singh was sent to
the District Inspector of Schools by the
Principal vide letters dated 16.3.1980 and
26.3.1979; respectively. The District
Inspector of Schools vide letter addressed
to the Principal dated 1.5.1980 had
acknowledged the documents sent for
appointment of Harish Babu as Daftari.

13. For their reinstatement on the
post of Daftari and peon, both the
respondents namely Beem Sen and Sita
Ram filed C.P. Case No. 61(B) of 1998
and 62(B) 1998; respectively, and matter
was referred to the Labour Court by the
State Government by two separate referral
orders of the same date i.e. 26.2.1999 as
indicated above. It was stated in the
written statements filed by both the
respondents-employees that after their
acquittal
they
had
submitted
representations to the management of the
college but no reply was received by
them. Copy of the judgement of acquittal
in criminal appeal no. 316 of 1980 was
also sent to the institution. As no reply
was received till 22.9.1988, they were
constrained to raise the present dispute.

14. The Principal of the institution in
reply to the written statement filed by the
respondents-employees before the Labour
Court took the stand that after removal of
856 INDIAN LAW REPORTS ALLAHABAD SERIES
the respondent-employees from service,
two people have already been engaged in
the college as against the vacant post and
now there was no vacancy in the college.
Though
respondents-employees
have
been discharged of the offence and
acquitted yet a considerable time had been
elapsed between the period of their
removal and acquittal and further rights of
two
other
incumbents
who
were
appointed on the said post had accrued.
As those two incumbents were appointed
in the institution from the year 1979-80,
as such, there was no question of
reinstatement
of
the
respondentsemployees. It was also contended that
when the respondents-employees were
removed from service they never made
representation for their reinstatement nor
filed any appeal before the higher
authority against their termination order.
Thus, they did not challenge the order of
their removal from service. In view
thereof, their claim had suffered from a
considerable delay and no relief could be
granted to them. The Labour Court after
consideration of respective submissions of
both the parties and perusal of the record,
recorded
a
finding
in
both
the
Adjudication case No. 30 of 1999 ( in the
case of Sita Ram) and No. 31 of 1999 ( in
the case of Bheem Sen) that admittedly no
disciplinary
inquiry
was
conducted
against these employees. Their services
were terminated only on the ground that
they were convicted by the Sessions Court
for the offence under Sections 302 and
364 I.P.C. However, conviction was set
aside by the appellate court and they were
honourably acquitted.

15. In view of the said scenario, the
termination of the services of the
respondents-employees would fall within
the meaning of retrenchment and as the
provisions of Section 6-N of U.P.
Industrial Dispute Act have not been
complied with, the termination order
dated 23.1.1980 was clearly illegal. The
respondents-employees were directed to
be reinstated with effect from the date of
termination i.e. 23.1.1980 along with
backwages, continuity of service and all
other consequential benefits.

16. Learned counsel for the
petitioner assailing the award submits that
the finding of the Labour Court for
reinstatement of respondent no.2 is illegal
as it was beyond the scope of Labour
Court. He further submits that the labour
court had no jurisdiction to entertain the
dispute with regard to the educational
institution.
Moreover,
difficulty
in
reinstatement of the employees concerned
was clearly narrated before the Labour
Court, but it did not consider the same. He
further submits that the two incumbents
who joined after termination of the
services of the respondents-employees
were neither party before the Labour
Court nor in the present writ petition.In
case the termination of respondentsemployees were held illegal, the two
incumbents Harish Babu and Mehar
Singh had to go who had a right to the
posts in question on account of their
working in the institution for a long time.

17. Learned counsel for the
respondent no.2 Shri Shivendra Kumar
Gupta
submits
that
admittedly
the
dismissal
of
the
two
respondentsemployees was in consequence to the
order of conviction passed by the Sessions
Court. There is no dispute that no
independent departmental inquiry was
ever
held
against
these
delinquent
employees. Once the order of conviction
was set aside by the higher court in
2 All]. Moti Lal Nehru Inter College, Bareily Vs. Peethaseen Adhikari Labour Court & Anr. 857
appeal, the natural consequence would be
that the respondent-employees ought to
have
been
reinstated
in
service,
immediately. Once the order of conviction
failed, the very foundation on which the
order of dismissal was based disappeared.
Consequently, the order of dismissal must
fall with the acquittal of the respondentsappellants.

18.

Having
heard
the
rival
submissions of the learned counsel for the
parties and perused the record, this court
finds that the only controversy in the
present writ petition is as to whether after
the acquittal of respondents -employees
by the appellate court they were entitled
for reinstatement in the service or not.

19. Admittedly these two employees
were
permanent
employees
in
the
petitioner
institution.
They
were
suspended
and
terminated
only
on
account
of
their
implication
and
conviction (later on) in the criminal case.
Both the respondents were honourably
acquitted by the judgement and order of
this court dated 15.7.1998. As no
independent departmental inquiry was
conducted against them, the natural
corollary would be that the request of the
employees was required to be redressed
by the petitioner. Since this was not done,
they had to approach the labour court for
redressal of their grievances.

20. A very important aspect of the
matter which is apparent from the record
is that the two incumbents namely Harish
Babu and Mehar Singh were appointed on
temporary basis on the approval granted
by the District Inspector of Schools in
order to meet the exigencies shown by the
then Principal of the institution. Mehar
Singh was appointed in place of Sita Ram
on 25.3.1979 by the order of the Principal
of the institution dated 26.3.1979 and the
same was approved by the District
Inspector of Schools on 13.4.1979. The
letter of the Principal addressed to the
District Inspector of Schools dated
26.3.1979 is on record "as annexure-9" to
the writ petition. Thus it is apparent that
Mehar Singh was appointed during the
period of suspension of Sita Ram meaning
thereby prior to his termination with
effect from 23.1.1980. There is nothing
on record to indicate that the interim
arrangement made during the termination
of
the
respondents-
employees
by
temporary appointment of Harish Babu
and Mehar Singh was ever converted into
permanent arrangement.

21. This apart, it is trite law that
once the order of conviction passed by the
trial court is set aside by the higher court ,
there does not exist any conviction in the
eye of law at all. Punitive action taken
against the respondents-employees was
based solely on the order of conviction
and the removal of the order of conviction
has the result of removing the entire basis
of the order of termination.

22. This Court in 1961(2)FLR, 241
Divisional
Superintendent
N.
Rly.
Allahabad Vs. Ram Saran Das has
observed that with the setting aside of the
order of conviction, the very foundation
on which the order of dismissal,removal
or reduction in the rank must fall. In the
case of G.M. Tank Vs. State of Gujarat
and others reported in (2006) 5 SCC 446
the Apex Court has considered the
sustainability
of
the
departmental
proceedings based on the identical and
similar set of facts as in the criminal case
and it was held that as there was no
evidence against the employee to hold
858 INDIAN LAW REPORTS ALLAHABAD SERIES
him guilty and he had been honourably
acquitted in criminal trial during the
pendency of the proceedings,challenging
his dismissal, the same required to be
taken note of and the appeal deserves to
be
allowed.
However,
payment
of
backwages was denied. In (2009)6 SCC
791 Basanti Prasad Vs. Chairman, Bihar
School Examination Board and others, it
was held that the punishment was
imposed on the basis of an order of
conviction having been set aside and no
independent departmental inquiry was
held against the delinquent employee,
grievances raised by the employee's wife
for monetary and service benefits payable
to her late husband (who died during the
pendency of litigation) could not have
been
rejected,
resorting
to
a
hypertechnical approach by the the high
court. However, placing reliance on G.M.
Tank (Supra) it was held that the
appellant was not entitled to backwages.
In the case of State of Uttar Pradesh and
another Vs. Mahindra Nath Tiwari
reported in 2010 (2) SCC 252 it was held
that only question remains of back-wages
as employee dismissed from the service
on conviction was not reinstated on
acquittal in appeal. There was delay of 22
years in filing the writ petition against the
order of termination of the services of the
employee. The appeal was disposed of by
the Apex Court with the clarification that
the employee respondent would not be
entitled to back-wages.

23. In view of the law laid down by
the Apex Court now the question remains
to be decided by this court is as to what
relief can be granted to the respondentsemployees at this stage.

24. In so far as the employee Bheem
Sen in writ petition no. 42027 of 2005 is
concerned, it has been brought on record
by
way
of
supplementary
counter
affidavit filed by him that he was
superannuated
from
the
service
on
31.3.2005 and he was never reinstated.

25. The interim order passed in writ
petition no. 42027 of 2005 is that
execution of the award shall remain
stayed till the next date of listing. The
order sheet indicates that the interim order
was extended from time to time. As the
respondent-employee
could
not
be
reinstated in service after termination
order passed in the year 1980, this court is
of the view that he is not entitled to backwages. However it is apparent from the
record that the respondent employee
namely Bheem Sen son of Hori Lal had
suffered on account of illegal approach of
the petitioner institution.Though he was
entitled for reinstatement as early as in the
year 1978 when he was acquitted,yet the
benefit was illegally denied to him. In
view thereof in order to meet the ends of
justice the court directs that in (writ
petition no. 42027 of 2005) Bheem Sen
son of Hori Lal be awarded a lump sum
compensation of Rs. 50,000/- for the
hardships and sufferance on account of
illegal act of the petitioner institution.

26. it is,therefore, directed that, in
case, the respondent no.2 Bheem Sen is
entitled for any other benefit for the
period of services rendered by him in the
institution, the same shall also be
calculated and paid to him within a period
of two months from the date of
production of certified copy of this order.

27. In so far as the case of Sita Ram
(in writ petition no. 42028 of 2005) is
concerned , it may be noted that in the
said
case the interim order
dated
2 All]. Smt. Saroj Sharma Vs. State of U.P. & Ors.
859
24.5.2005 passed by this court is as
follows:-

"In the meantime, if the petitioner
reinstates the respondent-workman within
one month from today and ensures
payment of wages regularly, the operation
of the award impugned in the present writ
petition dated 2nd November, 2004 shall
remain stayed.

In case of default, the petitioner shall
not be entitled to the benefits of this order."

28. It has been brought on record that
pursuant to the interim order dated 24.5.2005
passed by this court, the petitioner institution
allowed him to join the duties under
compelled circumstances. An application
dated 7.3.2011 bringing on record the said
fact has been filed before this court.

29. Shri Dinesh Chandra Mishra,
learned counsel for the petitioner also
stated at bar that in pursuance of the order
dated 19.4.2010 passed by the District
Inspector of Schools, Mehar Singh was
adjusted against the vacant post of another
class IV employee with effect from
1.2.2010. The respondent Sita Ram had
already joined the services on 21.6.2005
under the interim order passed by this
court.

30. In view of the facts discussed
above, this court directs that the salary of
Sita Ram be paid with effect from the date
of
his
reinstatement
ie.
21.6.2005
pursuant to the interim order, if not
already paid, as he has been held entitled
to reinstatement after acquittal in criminal
case in the year 1998. However he shall
not be entitled to back-wages. It is further
directed that the arrears of salary of Sita
Ram along with all other consequential
benefits, if any, shall be calculated and
paid to him within a period of four
months from the date of production of
certified copy of this order, in the
petitioner institution.

31. Consequently, both the writ
petitions
are
allowed
with
the
observations made above.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.07.2014

BEFORE
THE HON'BLE RAJAN ROY, J.

Civil Misc. Writ Petition No. 44673 of 2008

Smt. Saroj Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri K.P. Verma

Counsel for the Respondents:
C.S.C., Sri Rajeev Ojha

Limitation Act, Section-5-condonation of
delay 118 days-reason disclosed after death
of claimant-under depression could not file
within
time-held-proper-can
not
be
rejected.

Held: Para-16
So far as the other reason given by the
learned
Tribunal
for
rejecting
the
applications, i.e. the delay/ limitation in
filing the same is concerned, this court is of
the view that in view of averments made in
the application for condonation of delay,
there was sufficient cause for condoning
such delay and the Tribunal erred in taking
a very narrow and strict view of the matter
whereas in fact it should have taken a
liberal view. Reference may be made in this
regard to the Supreme Court judgment
reported in Collector, Land Acquisition,
Anantnag Vs. Katiji, AIR 1987 SC 1353. The