# NOIDA v. State Public Service Tribunal, Locknow and another

- **Citation:** (2007) 2 ILRA 599
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-05-18
- **Case number:** Civil Misc. Writ Petition No. 43860 of 1998
- **Bench:** Anjani Kumar, Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/noida-v-state-public-service-tribunal-locknow-and-another-40966
- **Pages:** 11

## Headnote

U.P. Public Service Tribunal-Act 1976Section 4 (1)-maintainability of claim
petition-by
daily
wager-muster
roll
employee-having
no
contract
of
employment with NOIDA as workman
under the definition of U.P. Industrial
Tribunal Act-held-not maintainable.

Held: Para 24

The contesting respondents have clearly
said that they are only muster roll daily
wage
employees.
Being
daily
wage
employees on muster roll the contesting
respondents are admittedly workmen as
defined under 1947 Act. Therefore on the
pleadings of the contesting respondents
before the Tribunal, it is evident that the
said application was not maintainable
due to the absence of grounds on which
the application under Section 4 could
have been filed.
Case law discussed:
W.P. No. 9216 (SS) 93 decided on 10.11.93,
1981 LLT (Service) 101, 1981 AWC-481, 1985
U.P.S.C. 212, W.P. No. 4580/75 decided on
27.1.77, 1980 (2) LLJ-48, ALR 1986 (6) 91,
AIR 1955 SC-123, AIR 2001 SC-2699, 2006
SCC (2) 670, AIR 1960 SC-122, AIR 1960 sC122, AIR 1964 SC-1230(1244), AIR 1969 SC513, AIR 1975 SC-43, AIR 1991 SC-772, AIR
2002 SC-1351, AIR 1967 SC-997
600 INDIAN LAW REPORTS ALLAHABAD SERIES [2007

## Text

2 All] NOIDA V. State Public Service Tribunal, Locknow and another
599
Court. It is thus necessary for the
authority to come to the conclusion, in
case of such dispute, of the date from
which
the
elected
Committee
of
Management has taken charge or started
to function as such. In the present case
the dispute raised by the petitioners is
that even after the election on 7th July,
1985 on account of stay order of this
Court as aforesaid it could neither take
charge nor start functioning, thus the
period of three years could not be from
the date of election and thus the impugned
order holding its period having come to
an end is legally not justified."

In view of the aforesaid, this Court is
of the opinion, that the period of three
years has only begun from the date of the
declaration of the result on 18.4.2007.
Consequently, the term of the new
committee of management of respondent
no.6 has not as yet expired as it has only
begun on 18.4.2007.

In view of the aforesaid, the writ
petition fails and is dismissed summarily.
In the circumstances of the case, there
shall be no order as to cost.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.05.2007

BEFORE
THE HON'BLE ANJANI KUMAR, J.
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 43860 of 1998
With
Civil Misc. Writ Petition No. 43862 of 1998
Civil Misc. Writ Petition No. 43863 of 1998
Civil Misc. Writ Petition No. 43864 of 1998
Civil Misc. Writ Petition No. 43866 of 1998

New
Okhla
Industrial
Development
Authority (NOIDA) Sector-6, Ghaziabad
Gautam Budh Nagar

...Petitioner
Versus
State Public Service Tribunal, Lucknow
and another

...Respondents

Counsel for the Petitioner:
Sri S.G. Hasnain
Sri A.K. Mishra
Sri A.K. Roy
Sri Indra Raj Singh

Counsel for the Respondents:
Sri S.D. Kautilya
Sri Neeraj Agrawal
S.C.

U.P. Public Service Tribunal-Act 1976Section 4 (1)-maintainability of claim
petition-by
daily
wager-muster
roll
employee-having
no
contract
of
employment with NOIDA as workman
under the definition of U.P. Industrial
Tribunal Act-held-not maintainable.

Held: Para 24

The contesting respondents have clearly
said that they are only muster roll daily
wage
employees.
Being
daily
wage
employees on muster roll the contesting
respondents are admittedly workmen as
defined under 1947 Act. Therefore on the
pleadings of the contesting respondents
before the Tribunal, it is evident that the
said application was not maintainable
due to the absence of grounds on which
the application under Section 4 could
have been filed.
Case law discussed:
W.P. No. 9216 (SS) 93 decided on 10.11.93,
1981 LLT (Service) 101, 1981 AWC-481, 1985
U.P.S.C. 212, W.P. No. 4580/75 decided on
27.1.77, 1980 (2) LLJ-48, ALR 1986 (6) 91,
AIR 1955 SC-123, AIR 2001 SC-2699, 2006
SCC (2) 670, AIR 1960 SC-122, AIR 1960 sC122, AIR 1964 SC-1230(1244), AIR 1969 SC513, AIR 1975 SC-43, AIR 1991 SC-772, AIR
2002 SC-1351, AIR 1967 SC-997
600 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
(Delivered by Hon'ble Anjani Kumar, J.)

1. All these writ petitions arise out
of the common order dated 8.11.1998
passed by U.P. Public Service Tribunal
(hereinafter referred to as the "Tribunal")
involving common questions of law and
facts and therefore as agreed by learned
counsel for the parties have been heard
together and are being decided by this
common judgment.

2. For the purpose of giving facts in
brief and with the consent of the parties
the Writ Petition No. 43860 of 1998 has
been
taken
as
leading
case.
The
respondent no. 2 Mishri Lal filed Claim
Petition No. 338 of 1993 before the
Tribunal claiming Regularisation and
wages
as
admissible
to
regularly
employed
persons
of
New
Okhla
Industrial
Development
Authority
(hereinafter referred to as "NOIDA").
Similar claim petitions were filed by other
private
respondents.
The
NOIDA
authority putting appearance, raised a
preliminary objection that the claim
petitions have been filed by the persons
who are workmen under U.P. Industrial
Disputes Act, 1947 (hereinafter referred
to as "1947 Act") and also that they are
not the employees of NOIDA authority.
They have been engaged by private
contractors who are carrying out the work
undertaken
from
NOIDA
authorities
under various contracts and therefore
claim petition is not maintainable. The
Tribunal has allowed all the claim
petitions vide order impugned in these
writ petitions holding that since the
claimants are not enforcing any right
under the Industrial Disputes Act and
therefore
the
claim
petition
is
maintainable. Proceeding further it has
directed the petitioners to consider the
respondents/claimants for regularization
and also for payment of salary as is
payable to the other regular employees of
NOIDA.

3. Learned counsel for the petitioner
vehemently contended that in view of
sub-section 4 of Section 1 of the U.P.
Public
Service
Tribunal
Act,
1976
(hereinafter referred to as the "Act"),
claim petitions were not maintainable and
therefore the order impugned in the writ
petition passed by the Tribunal is wholly
without jurisdiction.

4. Sri I.R. Singh, learned counsel
appearing for the contesting respondents
however supported the order of the
Tribunal and contended that since the
contesting respondents are working for a
long period, even in equity, this Court
should not interfere with the order
impugned.

5. We have heard learned counsel
for the parties and perused the record.
Section 1 of the Act provides short title,
extent, commencement and application of
the Act and sub-section 4 thereof reads as
under:-

"(4) This section and Sections 2 and 6
shall apply in relation to all public
servants while the remaining provisions
shall not apply to the following classes of
public servants, namely-

(a) a member of a judicial service;
(b) an officer or servant of the High Court
or of a court subordinate to the High
Court;
(c) a member of the secretariat staff of
any House of the State Legislature;
(d) a member of the Staff of the State
Public Service Commission;
2 All] NOIDA V. State Public Service Tribunal, Locknow and another
601
(e) a workman as defined in the Industrial
Disputes Act, 1947 (Act XIV of 1947), or
the United Provinces Industrial Disputes
Act, 1947 (U.P. Act No. XXVIII of 1947).
(f) a member of the staff of the Lok
Ayukta.
(g)
the
Chairman,
Vice-Chairman,
Members, Officers or other employees of
the Tribunal."

Section 2 contains various "definitions"
and "public servant" is defined under
Section 2(b) which reads as under:-

"2. (b) "public servant" means every
person in the service or pay of-

(i) the State Government; or
(ii) a local authority not being a
Cantonment Board; or
(iii) any other corporation owned or
controlled by the State Government
(including any company as defined in
Section 3 of the Companies Act, 1956 in
which not less than fifty per cent of paid
up share capital is held by the State
Government) but doe not include-
(1) a person in the pay or service of any
other company; or
(2) a member of the All India Services or
other Central Services;"

Section 6 of the Act is in respect to bar of
suits and reads as under:-

"6. Bar of suits- (1) No suit shall lie
against the State Government or any local
authority or any statutory corporation or
company for any relief in respect of any
matter relating to employment at the
instance of any person who is or has been
a public servant, including a person
specified in clauses (a) to (g) of subsection (4) of Section 1.

(2) All suits for the like relief, and all
appeals, revisions, applications for review
and
other
incidental
or
ancillary
proceedings (including all proceedings
under Order XXXIX of the first schedule
to the Code of Civil Procedure, 1908)
(Act V of 1908), arising out of such suits,
and all applications for permission to sue
or appeal as pauper for the like relief,
pending before any court subordinate to
the High Court and all, revisions (arising
out of interlocutory orders) pending
before the High Court on the date
immediately proceeding the appointed
date shall abate, and their records shall
be transferred to the Tribunal and
thereupon the Tribunal shall decide the
cases in the same manner as if they were
claims referred to it under Section 4:

Provided that the Tribunal shall,
subject to the provision of Section 5,
recommence the proceedings from the
stage at which the case abated as
aforesaid and deal with any pleadings
presented or any oral or documentary
evidence produced in the court as if the
same where presented or produced before
the Tribunal.

(3) All appeals pending before the High
Court on the date immediately preceding
the appointed date arising out of such
suits shall continue to be heard and
disposed of by that court as heretofore as
if this Act has not come into force:

Provided that if the High Court
considers it necessary to remand or refer
back the case under Rules 23 of Rule 25
of Order XXL of the First Schedule to the
Code of Civil Procedure, 1908 (Act V of
1908), the order of remand or reference
shall be directed to the Tribunal instead of
to the subordinate court concerned and the
602 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Tribunal shall thereupon decide the case
or issue, subject to the directions of High
Court, in the same manner as if it were a
claim referred to it under Section 4."

6. From a perusal of sub-section (4)
of Section 1 read with Section 2(b) of the
Act it is evident that definition of "public
servant" is very wide which includes
every person in the service of State
Government or a local authority other
than cantonment board or any other
corporation owned or controlled by the
State
Government
including
any
Company as defined in Section 3 of the
Companies Act in which not less than
50% paid up share capital is held by the
State Government excluding a person in
the pay or service of any other Company
or a member of all India services or other
central services. However, a person even
if is a "public servant" under Section 2(b),
but, if he belongs to a category which is in
the exemption clauses of Section 1(4) of
the Act, Sections 3, 4, 5, 7 and 8 shall not
be applicable to such public servant. For
example a member of judicial service
though he is a public servant under
Section 2(b) of the Act but he cannot file
a claim petition under Section 4 of the Act
in view of Section 1(4) which makes
Section 4 inapplicable to such public
servant. Similar is the position in respect
to other "public servants" mentioned in
clauses (b) to (g) of Section 1 sub-section
4 of the Act. Therefore, a person who is
"workman" as defined under Industrial
Disputes Act 1947 or 1947 Act, even
though he is a public servant, he cannot
file a claim petition under Section 4 of the
Act for the reason that Section 4 has no
application at all to such person. It is not
disputed by learned counsel for the
contesting
respondents
that
all
the
contesting respondents are covered by the
definition of "workman" under 1947 Act.
In this view of the matter we have no
hesitation in holding that in the case in
hand the Tribunal had no jurisdiction to
entertain the claim petition.

7. The Tribunal in order to justify
the view taken by it that the Tribunal has
jurisdiction to entertain the claim petition
has placed reliance on a judgment of a
Single Judge of this Court in Writ
Petition No. 9216 (SS) of 1993 (Amar
Nath Gupta Vs. State Public Service
Tribunal
and
others)
decided
on
10.11.1993 wherein the learned Single
Judge has taken the view that the public
servant who is a workman, if is claiming
enforcement of certain rights which are
not based on the provisions of the
Industrial Dispute Act, in such cases the
Tribunal
shall
have
jurisdiction
to
entertain his claim petition under Section
4 of the Act. We have considered the
judgment
of
learned
Single
Judge.
However, with great respect, we are
unable to find ourselves in agreement
with the view taken by the learned Judge
in Amar Nath Gupta (Supra) and it is exfacie contrary to specific provision of the
Act. The Act does not make any
difference amongst workman who are
though public servants by permitting them
to apply Section 4, if they intent to
enforce their rights under rules and
regulations other than those arising out of
the provisions of the Industrial Disputes
Act. This is nothing but sheer addition of
so many words in the legislation which in
our view is neither warranted nor
permissible.

8. The learned Single Judge have
placed reliance on a Full Bench judgment
in Ram Krishna Yadav and others Vs.
U.P.S.R.T.C., and others, 1981 LLT
2 All] NOIDA V. State Public Service Tribunal, Locknow and another
603
(Services) 101=1981 AWC 481 and
another judgment of Hon'ble Single Judge
in Sri Ram Vs. U.P. Public Service
Tribunal and others, 1985 U.P.S.C., 212
in taking the aforesaid view. We propose
to consider the said judgments also. To
start with, we find that this issue came up
for consideration in Writ Petition No.
4580
of
1975
(Bhagwati
Prasad
Chaurasia Vs. U.P. Public Service
Tribunal
and
others)
decided
on
27.1.1977 wherein the Tribunal decline to
entertain claim petition on the ground that
U.P. State Road Transport Corporation is
an industry and therefore, the employees
transferred to it from the government
being workman, the Tribunal has no
jurisdiction
to
entertain
their
claim
petition in view of Section 1(4) of the
Act. The matter came up before Division
Bench of this Court and two separate
judgments were delivered. Hon'ble H.N.
Seth, J. (as his Lordship then was) held
that Sri Chaurasiya was conductor in the
roadways
department
of
the
U.P.
Government prior to establishment of
corporation and was workmen in the
corporation. However, Hon'ble Mufti, J.
did not agree with the said view and held
that since he was on deputation with the
corporation,
therefore,
retained
his
character of government servant and
could not be said to be a workman. The
matter was not referred to 3rd Judge since
the case was disposed of on a different
question over which there was no
difference of opinion. Thereafter, a
similar issue arising from the employees
of U.P. State Road Transport Corporation
in Jagdish Prasad Gupta and others Vs.
State of U.P. and others, 1980 (2) LLJ
48 and the Division Bench referred to
Bhagwati Prasad Chaurasia (Supra)
and expressed its agreement with the view
of Hon'ble Mufti, J. holding that the
employees
of
erstwhile
roadways
department of the State Government were
government employees when they were
on deputation with the corporation and
they did not loose their status as
government servant, therefore would not
fall within the category of workman under
Section 1(4) of the Act. Thus there was a
dispute regarding the status of the
employee of U.P. S.R.T.C. who were
transferred
from
erstwhile
roadways
department of the U.P. Government as to
whether during the period they were on
deputation with the corporation they
continue to be government servant or
answer the definition of workman having
become employees of the corporation. By
not doing that they continued to be
government servant, this Court thus
excluded Section 1(4) of the Act in those
cases. The same position continued in
A.K. Srivastava Vs. State of U.P. 1986
(6) ALR 91 and 253; U.P. State Road
Transport Corporation Vs. State of
U.P. and others, 1981 AWC 481.

9. Noticing divergence in the
opinion as to the status of such employees
and the authority competent to take action
against them in various judgments, a
Division Bench of this Court in Writ
Petition No. 150 of 1980, Ram Krishna
Yadav (Supra) referred this issue before
a Larger Bench which was decided by the
Full Bench in Ram Krishna Yadav
(Supra).
There
are
two
judgments
delivered by the Bench one by His
Lordship Hon'ble K.N. Goel, J. and
another by T.S. Misra, J. for himself and
Hon'ble Hari Swarup, J. The majority held
that the employees of the erstwhile
roadways department continue to be the
government servant while on deputation
to the corporation and therefore action
against them can be taken only by the
604 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
State Government or the officers of the
State Government who are also on
deputation and not by the corporation.
The majority judgment does not touch the
issue of Section 1 sub-section 4 as to
whether
the
claim
petitions
are
maintainable before the Tribunal or not.
However, His Lordship Hon'ble K.N.
Goel, J. in para 20 of the judgment
disagree with the view taken in J.P.
Gupta (Supra) that the employees who
are government servant are not workmen
and held that since certain departments of
the government can also be industry, there
may be a number of government servants
who answer the definition of workman.
Thereafter, it further proceeded to observe
that such employees, if they claim any
relief arising out of their status and rights
of government servant simplicitor, claim
petition under Section 4 of the Act would
be maintainable. Neither in J.P. Gupta
(Supra) nor in any earlier judgment the
question has been raised, argued and
decided that a public servant, who is a
workman in his case whether despite of
Section 1, sub-section 4 of the Act,
Section 4 would still be applicable and
whether such a person can file a claim
petition before the Tribunal based on the
nature of relief and grounds. The
application of the Act does not depend
upon the nature of the relief or status of
the opposite party or respondents but if
the claimant belongs to any of the
category which is exempted in Section 1
sub-section 4 of the Act, to such public
servant, Section 4 of the Act is
inapplicable and therefore, he cannot file
a claim petition before the Tribunal
irrespective of relief etc. The attention of
the Court was neither drawn to this aspect
nor this issue in so many words was
raised and therefore, the Court had no
occasion to deal with this matter.
10. It is true that in Ram Krishna
Yadav (Supra) the counsel for the
corporation raised this issue and Hon'ble
K.N. Goel, J. in para 20 of the judgment
held that if a government servant who is
also a workman claims any relief in his
status as government servant in that case
Section 4 will be applicable and not
otherwise. But this aspect has neither
been considered by the majority judgment
nor the correctness of the Division Bench
in J.P. Gupta (Supra) case has been
touched
by
the
majority
judgment.
Unfortunately His Lordship Hon'ble K.N.
Goel, J. subsequently in Sri Ram (Supra)
took a view that his view expressed in
para 20 of the judgment having not been
disagreed by the majority, is liable to be
treated as a view expressed on behalf of
the Full Bench. We are constrained to
observe that majority on the other hand
also has not expressed its agreement of
the other views of Hon'ble K.N. Goel, J. It
is also worthy to notice that against the
Full Bench judgment the matter was taken
up in the Apex Court in Jai Jai Ram and
others Vs. U.P. State Road Transport
Corporation, Lucknow and others, AIR
1996 SC 2289 and there in para 6 of the
judgment the Apex Court crystallized the
issue which was up for consideration
before the Full Bench of the High Court
as under:-

"Since the only question before the
Full Bench of the High Court was
whether the officers who had taken such
actions were competent to do so in view
of the protection afforded by Article 311
of the Constitution and as that is the only
question which we have to decide."

11. Thus, it is evident from the
above discussion that the Full Bench in
Ram Krishna Yadav (Supra) is not an
2 All] NOIDA V. State Public Service Tribunal, Locknow and another
605
authority as to whether a claim petition of
a public servant who is a workman would
be maintainable before the Tribunal or not
since this was not the issue referred to and
decided by the Full Bench. In order to
constitute a binding precedent it is well
settled that an issue must has been raised,
argued
and
decided
and
mere
observations here and there cannot make
it a binding precedent.

12. On the contrary, we find that this
issue
straightway
came
up
for
consideration subsequently in Surendra
Pal Singh Vs. State of U.P. and another,
1988 (56) FLR 463 where a Division
Bench of this Court held that in view of
the Constitution Bench judgment in
Bangalore Water Supply and Sewerage
Board Vs. Rajappa and others, 1978
(36) FLR 266 the Government Roadways
is an industry and therefore its employee,
even if they are government servant,
would come within the expression of
"workman" under the Industrial Disputes
Act, 1947. Since a "workman" is not
entitled to file a claim petition in view of
Section 1(4)(e) of the Act, the claim
petition
at
his
instance
is
not
maintainable. The Division Bench also
held that the view expressed by Hon'ble
K.N. Goel, J. in Ram Krishna Yadav
(Supra) was a minority judgment on this
issue and cannot be said to be a view of
the Full Bench. The Division Bench
clearly held as under:-

"The judgment of Hon'ble K.N.
Goel, J. was a minority judgment. In the
majority opinion delivered by Hon'ble
T.S. Misra, J. as he then was, the question
as to whether J.P. Gupta's (Supra) was
rightly decided or not was not considered.
In the circumstances, it cannot be said that
the Full Bench decision has overruled J.P.
Gupta's case. We agree with Hon'ble
Goel, J. to the extent that he has held that
the U.P. Government Roadways was also
an industry, but we do not agree with the
view that J.P. Gupta's case (Supra) was
wrongly decided. In fact, in the case of
J.P. Gupta (Supra), the Bench had not
gone into the question as to what would
be position in the case where an employee
seeks a claim only against the State
Government, who admittedly, is the
employer of an employee on deputation.
In the case J.P. Gupta (Supra), the claim
was against the Corporation and having
held that there was no relationship of
master
and
servant
between
the
Corporation
and
the
employee
on
deputation, it was held that such an
employee
cannot
come
within
the
definition of workman. In our opinion,
consequently, we agree with the view
taken in J.P. Gupta's case (Supra), but as
expressed above, we are further of the
opinion that in the case of an employee on
deputation, if he has a claim only against
the Government, then he would come
under the definition of ''workman' both
under the Central as well as the State
Industrial Disputes Act and as such, he is
entitled to seek an adjudication under
these Acts.

The
State
Government
in
the
impugned order dated 13th May, 1982 has
stated that the petitioner can file his claim
before the U.P. Public Service Tribunal.
This observation of the State Government,
in our view, is manifestly erroneous.
Since the petitioner is a ''workman' and he
is
seeking
a
claim
against
the
Government, then he would come clearly
under Section 1(4) (e) of the U.P. Public
Services Tribunal Act, 1976 and as such,
he cannot file a claim before the U.P.
Public Service Tribunal." (Para-18)
606 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
13. After the Division Bench
judgment
in
Surendra
Pal
Singh
(Supra), in our view it was not open to
the Hon'ble Single Judge in Amar Nath
Gupta (Supra) to take a contrary view by
referring to another judgment of the
Hon'ble Single Judge in Sri Ram
(Supra).

14. Moreover, if the logic of the
Hon'ble Single Judge in Amar Nath
Gupta (Supra) is extended and apply to
other
categories
of
public
servant
mentioned in Section 1 sub-section 4, we
fail to understand as to how the category
of the public servants enumerated in
clauses (a) to (d) can be excluded from
filing a claim petition before the Tribunal
since it cannot be said that the categories
of those employees are not government
servant and whenever they would file a
claim petition it would be in their capacity
as government servant and would relate to
a condition as government servant. Thus
the status and the nature of work is wholly
irrelevant. A plain reading of Section 1
sub-section 4 makes it clear that the
definition of "public servant" under
Section 2 (b) is very wide and the Act in
general covers a very wide category of the
employees defined as "public servant" but
all such "public servants" cannot file a
claim petition under Section 4 of the Act.
In respect to limited category of public
servant the entire Act has not been
applied as such and only Sections 1, 2 and
6 have been applied. In other words by
making Section 4 inapplicable to certain
category of public servant under Section
1(4), the legislature has denied them a
right to file a claim petition before the
Tribunal though bar under Section 6 of
the Act would apply to those public
servants and therefore, they will not be
entitled to file civil suit besides also
unable to file a claim petition before the
Tribunal. The remedy left to them is
either such as specified under any special
Act like 1947 Act and in the absence
thereof by approaching this Court under
Article 226 of the Constitution.

15. The Tribunal being a forum of
limited jurisdiction, there is no reason or
occasion to extend the scope of the Act
when a plain reading of Section 1 subsection 4 does not warrant any such
interpretation. It would be useful to
remind at this stage that where the
language
of
statute
is
clear
and
unambiguous there is no room for reading
or interpreting statute in a manner, which
may add a few words therein on the
assumption that the legislature has left a
vacuum, needs to be bridged by judicial
interpretation. It is not the function of the
Court to read something in the provision
of law, which is not there, or find out a
way of obviating the difficulties in
enforcing the law howsoever meritorious
the intention of the legislature might be. A
Constitution Bench in Behram Khurshed
Pesikaka Vs. State of Bombay, AIR
1955 SC 123 rejecting to interpret a law
on the supposed difficulty of prosecution
in improving the case, observed as under:-

"The difficulty in the way of the
prosecution proving its case need not
deflect the Court from arriving at a
correct conclusion. If these difficulties are
genuinely felt it would be for the
legislature to step in and amend the law. It
would not be the function of the Court to
read something in the provisions of the
law, which is not there, or to find out a
way of obviating the difficulties in
enforcing the law howsoever meritorious
the intentions of the Legislature might be.
(Para-17)
2 All] NOIDA V. State Public Service Tribunal, Locknow and another
607
16. It is settled principle of
interpretation, where the words used are
clear and unambiguous, the Court is
bound to construe them in their ordinary
sense and it is not the function of the
Court to add words or expression for
supposed assumption of what would have
been the intention of the legislature. The
Court is not entitled to go beyond, so as to
supply an omission, as if, to play the role
of a political reformer or counsel to the
legislature. A Constitution Bench in Dadi
Jagannadham Vs. Jammulu Ramulu
and others AIR 2001 SC 2699 in para 13
observed as under:-

"The
settled
principles
of
interpretation are that the Court must
proceed on the assumption that the
legislature did not make a mistake and
that it did what it intended to do. The
Court must, as far as possible, adopt a
construction which will carry out the
obvious intention of the legislature.
Undoubtedly if there is a defect or an
omission in the words used by the
legislature, the Court would not go to its
aid to correct or make up the deficiency.
The Court could not add words to a
statute or read words into it which are not
there, especially when the literal reading
produces an intelligible result. The Court
cannot aid the legislature's defective
phrasing of an Act, or add and mend, and,
by construction, make up deficiencies
which are there."

17.

The
Cardinal
rule
of
construction is to find out the intention of
the legislature in the words used by the
legislature itself. The Court, in order to
find out the intention of the statute
framing authority must look into the
statute itself without any assistance from
any other external factor unless there is
some
doubt
or
ambiguity
in
the
construction of the statute itself. It would
be appropriate to remind in the words of
Lord Brougham in Robert Wigram
Crawford Vs. Richard Spooner, 4 MIA
179 (187) (PC):-

"if the legislature did intend that
which it has not expressed clearly; much
more, if the Legislature intended some
thing very different; if the Legislature
intended pretty nearly the opposite of
what is said, it is not for judges to invent
something, which they do not meet within
the words of the text (aiding their
construction of the text always, of course,
by the context)".

18. The Apex Court in S.Gurmej
Singh Vs. Sardar Pratap Singh Kairon,
AIR 1960 SC 122 (at page 128) also held
that the Courts are not to busy themselves
with ''supposed intention' or with ''the
policy underlying the statue but must
construe the statute from plain meaning of
the words used therein. In Aron Soloman
Vs. A. Soloman & Co. Ltd. (1897) AC
22 (38) (HL) 5. Lord Watson observed:-

"In a court of law or equity, what the
Legislature intended to be done or not to
be
done
can
only
be
legitimately
ascertained from that which it has chosen
to enact, either in express words or by
reasonable and necessary implication."

19. The aforesaid passage has been
quoted with approval by the Apex Court
in R.L. Arora Vs. State of Uttar
Pradesh, AIR 1964 SC 1230 (1244);
Shahdara (Delhi) Saharanpur Light
Railway Co. Ltd. Vs. Workers Union,
AIR 1969 SC 513 (759);, Hansraj
Gordhandas Vs. H.H.Dave, AIR 1970
SC 755 (759); Sri Umed Vs. Raj Singh,
608 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
AIR 1975 SC 43 (63/64); Commissioner
of Sales Tax, U.P. Vs. Super Cotton
Bowl Refilling Works, AIR 1989 SC
922 (930); State of Madhya Pradesh Vs.
G.S. Ball and Flour Mills, AIR 1991 SC
772 (785) and Harbhajan Singh Vs.
Press Council of India, AIR 2002 SC
1351 (1356).

20. We are aware that the rules of
the interpretation are not rules of laws and
are not to be followed like rules enacted
by legislature in Interpretation Act as
observed by the Hon'ble Apex Court in
Superintendent and Remembrance of
Legal
Affairs,
West
Bengal
Vs.
Corporation of Calcutta, AIR 1967 SC
997. The principles of interpretation serve
only as a guide. A casus omissus cannot
be supplied by the Court. There is no
presumption that a casus omissus exists
and language permitting the Court should
avoid creating a casus Omissus where
there is none. It would be appropriate to
recollect the observations of Devlin, L.J.
in Gladstone Vs. Bower,(1960) 3 All ER
353 (CA):-

"The Court will always allow the
intention of a statute to override the
defects of working but the Court's ability
to do so is limited by recognized canons
of interpretation. The Court may, for
example,
prefer
an
alternative
construction, which is less well fitted to
the words but better fitted to the intention
of the Act. But here, there is no
alternative construction; it is simply a
case of something being overlooked. We
cannot legislate for casus omissus."

21. The Hon'ble Apex Court in
Bangalore Water Supply and Sewerage
Board Vs. A. Rajappa and others
(Supra)
quoted
with
approval
the
following observation of Lord Simonds in
the case of Magor & St. Mellons R.D.C.
Vs. Newport Corporation, (1951) 2 All
ER 839 (841):-

"The duty of the Court is to interpret
the words that the Legislature has used.
Those words may be ambiguous, but,
even if they are, the power and duty of the
Court to travel outside them on a voyage
of discovery are strictly limited."

22. It would be appropriate at this
stage to remind another principle that
though a Court cannot supply a real casus
omissus, it is equally evident that it
should not so interpret a statute as to
create casus omissus when there is really
none.
Recently
in
Vemareddy
Kumaraswamy Reddy and another Vs.
State of Andhra Pradesh 2006(2) SCC
670 the Court reiterated that while
interpreting a provision the Court only
interprets the law and cannot legislate. If a
provision of law is misused and subject to
the abuse of process of law, it is for the
legislature to amend, modify or repeal it if
deemed necessary. The legislative casus
omissus cannot be supplied by judicial
interpretative process.

23. We have no hesitation in holding
that judgment in Amar Nath Gupta
(Supra) does not lay down a correct law.

24. Now coming to the another
aspect of the matter we find that the
Tribunal has further held that since the
contesting respondents were not claiming
any benefit or right under the Industrial
Disputes Act and therefore claim petition
is maintainable. In our view even this
finding in order to usurp jurisdiction is
not correct for the reason that it is evident
from the copy of the claim petition filed
2 All] Harveer Singh and others V. State of U.P. and others
609
by the contesting respondents that they
did not substantiate their claim for
regularization or salary at par with regular
employees on the basis of any statutory
provision but set up their entire claim on
the basis of various legal principles
applies by the Apex Court in the cases of
"workmen" of different bodies. Section 4
of the Act also shows that a person can
file a claim petition before the Tribunal, if
he has been dealt with by the employer in
a manner which is not in conformity with
any contract or in the case of a servant of
a local authority or statutory corporation
with Article 16 of the Constitution or the
Rules and Regulations having force under
any Act or legislature constituting such
authority or corporation. The contesting
respondents neither claim that they have
any contract with the petitioners i.e.
NOIDA and have not been dealt with in
conformity with such contract nor have
contended any violation of Rules and
Regulations having force under any Act
of Legislature constituting such authority
or corporation. It is true that vaguely, for
the purpose of regularization, violation of
Article 14 and 16 has been pleaded but
the said pleading is absolutely vague and
has not been substantiated at all. The
contesting respondents have clearly said
that they are only muster roll daily wage
employees. Being daily wage employees
on muster roll the contesting respondents
are admittedly workmen as defined under
1947 Act. Therefore on the pleadings of
the contesting respondents before the
Tribunal, it is evident that the said
application was not maintainable due to
the absence of grounds on which the
application under Section 4 could have
been filed.

25. In view of the aforesaid
discussion, we hold that the claim
petitions filed by respondents under
Section
4
of
the
Act
were
not
maintainable before the Tribunal and
therefore the order impugned in the writ
petition is wholly without jurisdiction and
cannot be sustained. The writ petitions
therefore succeed and allowed. The order
of the Tribunal dated 8.11.1998 impugned
in the writ petitions are quashed and the
claim petitions consequently shall also
stand dismissed. No order as to costs.
Petition allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.07.2007

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No. 35702 of 1996

Harveer Singh and others ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Krishna Agarwal
Sri Satya Prakash

Counsel for the Respondents:
Sri K.R. Singh
S.C.

Constitution of India, Art. 226-Salaryafter selection as Sub Inspector of
Police-joined
training-stipend
given
Rs.1000/- per month during training
period-whether can salary be paid during
training period, prior to appointment?
held-'No' salary can be paid only after
joining the service and not prior to that.

Held: Para 7

Salary can be paid only to such person
who is appointed against some post,
which can be only after completing the
training. The payment of salary prior to