# Om Prakash Kapoor v. M.D., U.P.S.R.T.C. and others

- **Citation:** (2009) 2 ILRA 659
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-09-30
- **Case number:** Civil Misc. Writ Petition No. 2222 of 2008
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-kapoor-v-m-d-u-p-s-r-t-c-and-others-41409
- **Pages:** 4

## Headnote

660 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

Constitution of India-Article-12: StateDugdh Parishad Dughashala Vikas not
discharging
public
-duty-not
within
meaning of State-petitioner a regular
employee as Dairy man-arrears of salary
not given-counter affidavit liability of
payment not disputed-reference under
Section 70 of cooperative Societies Act-
unwarranted-direction for payment of
entire amount with 5% Simple interest
issued within 3 month.

Held: Para 12

It is apparent that the service of the
petitioner had not been terminated at
any point of time and the relationship of
master and servant continued to exist
therefore, respondent are liable to pay
wages to him and non-payment of wages
on the ground that the unit is facing loss,
is in the nature of 'begar' and hit by
Article 23 of the Constitution of India
therefore, is not acceptable. Furthermore
since the amount of salary due to the
petitioner has been admitted by the
respondent, it would not be in the
interest of justice to refer the dispute to
arbitration under Section 70 of U.P.
Cooperative Societies Act, 1965 as there
is no dispute regarding payment of dues.
Case law discussed:
[2007(113)FLR 505]

## Text

2 All] Om Prakash Kapoor V. M.D., U.P.S.R.T.C. and others

659
circumstances of this case, the writ
petition
appears
to
have
become
infructuous as the petitioner continued in
service and there is no prayer in the writ
petition for payment of retiral benefits. He
urges that it was duty of the petitioner to
move an application for amending the
prayer in the writ petition seeking the
relief which he has sought in the
application alongwith the supplementary
affidavit.

8. Counsel for the petitioner does
not dispute this fact that amendment has
not been sought by him in the prayer
made the writ petition for a direction with
regard to payment of retiral benefits. He
submits that prayer is already there in the
shape
of
application
alongwith
supplementary affidavit which may be
considered by this Court under clause (4)
of the prayer in the writ petition which is
as under:

"(4) Issue any other writ, order or
direction which this Hon. Court may
deem
fit
and
proper
under
the
circumstances of the case."

9. After hearing counsel for the
parties and on perusal of the record, I am
of the opinion that petitioner has worked
since 1972 in the respondent corporation
as driver till he met with accident. It is not
in dispute that he was provided alternate
job by the corporation before they
terminated his services on the ground that
he was not medically fir. Considering this
aspect of the matter, the Court by order
dated 29.7.2002 stayed operation of the
termination order and alternate job was
provided to the petitioner thereafter. It is
also not disputed that petitioner continued
in service till he attained the age of
superannuation on 30.9.2008. Amount of
group insurance is also said to have been
paid to him after his retirement.

10. Counsel for the respondents may
be technically correct in his argument that
prayer for retiral benefits ought to have
been made in an application for amending
prayer of the writ petition. However since
this prayer already exists in the shape of
application
alongwith
supplementary
affidavit,
considering
facts
&
circumstances of the case, the Court in its
discretionary jurisdiction, to secure ends
of justice and equity, can always grant
any relief on a separate application with
affidavit or under aforesaid clause (4) of
the prayer. Therefore, without entering
going into petty technicalities as raised by
the counsel for respondent, this writ
petition is being finally disposed of with a
direction to the respondent to consider
payment of retiral benefits to the
petitioner expeditiously within a period of
three months from the date of receipt of a
certified copy of this order, in accordance
with law. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.07.2009

BEFORE
THE HON'BLE RAKESH TIWARI, J

Civil Misc. Writ Petition No. 2222 of 2008

Shaukat Ali

...Petitioner
Versus
Dugdh Utpadak Sahkari Sangh, Mirzapur
and others

 ...Respondents

Counsel for the Petitioner:
Sri K.P. Agrawal
Sri Sumati Rani Gupta

Counsel for the Respondent:
Sri G.D. Mishra, S.C.
660 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

Constitution of India-Article-12: StateDugdh Parishad Dughashala Vikas not
discharging
public
-duty-not
within
meaning of State-petitioner a regular
employee as Dairy man-arrears of salary
not given-counter affidavit liability of
payment not disputed-reference under
Section 70 of cooperative Societies Act-
unwarranted-direction for payment of
entire amount with 5% Simple interest
issued within 3 month.

Held: Para 12

It is apparent that the service of the
petitioner had not been terminated at
any point of time and the relationship of
master and servant continued to exist
therefore, respondent are liable to pay
wages to him and non-payment of wages
on the ground that the unit is facing loss,
is in the nature of 'begar' and hit by
Article 23 of the Constitution of India
therefore, is not acceptable. Furthermore
since the amount of salary due to the
petitioner has been admitted by the
respondent, it would not be in the
interest of justice to refer the dispute to
arbitration under Section 70 of U.P.
Cooperative Societies Act, 1965 as there
is no dispute regarding payment of dues.
Case law discussed:
[2007(113)FLR 505]

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard Sri K.P. Agrawal, learned
Senior
Counsel
appearing
for
the
petitioner, and Sri G.D. Mishra who has
accepted notice on behalf of respondents
no. 1 and perused the record.

2. The petitioner claims that he was
appointed as a permanent employee on
the post of Dairyman in the State Dugdh
Parishad dugdhshala Vikas, Mirrzapur
and since then he has been regularly
working. His wages at the time of
appointment was about 1200/- per month
and currently the wages are Rs.7735/- per
month and the under orders of the D.D.O.
Mirzapur and Vikas Adhikari the daily
activity of collecting and selling the milk
as stopped but the petitioner was
continued in employment having been
retained for looking after some essential
works.

3. It is stated that the activities
collection and distribution of milk in the
Dugdhshala Mirzapur started again and
duties of the Dairyman were again
assigned to the petitioner by order dated
20.6.2005. However, during the aforesaid
period he was paid some amount towards
part of wages for which he made
representations for payment of the back
wages as well as full wages on 10.9.2007,
30.10.2007, and 5.11.2007.

4. It is also stated that he has never
paid his full wages as sometimes he was
paid a thousand rupees or two thousand
rupees as advance.

5. It is further stated that due to nonpayment of his wages the petitioner
approached the Secretary of the Dugdh
Vikas Parishad and reply has been given
to him by State Backward commission
admitting that the payment of wages has
not been made to him. Though he has his
duty almost 12 hours everyday.

6. Sri K.P. Agrawal, learned Senior
Counsel appearing for the petitioner
submits that the petitioner is entitled to
full wages as there was no severance of
relationship of master and servant when
the activities of the respondent-Dugdh
Utpadak Sahkari Sangh were temporarily
stopped. According to him non-payment
of full salary is not only hit by Article 21
but is also hit by Article 23 of the
Constitution of India.
2 All] Shaukat Ali V. Dugdh Utpadak Sahkari Sangh, Mirzapur and others

661
7. It is urged by him that services of
the petitioner had not been terminated
during the period when some of the
activities the respondents unit at Mirzapur
remained
suspended.
The
petitioner
continued to be engaged in other works of
the Unit and that the manner in which the
respondents have not paid the wages to
the petitioner amounts to taking of
(Begar) which is hit by Article 23 of the
Constitution of India.

8. It is also urged that both the units
of Dugdha Parishad and Milk federation
or Cooperative Societies are State within
the meaning of Article 12 of the
Constitution of India as has been held by
Supreme Court in the case of Ram Sahan
Rai
Versus
Sachiv
Samanaya
Prabandhak and another, hence the
case of the petitioner is amenable to wrti
jurisdiction hence the petitioner can get
the constitutional obligations enforced by
approaching the High Court in its writ
jurisdiction under Article 226 of the
Constitution of India.

9. Sri G.D. Mishra, counsel for
respondents relying upon para 4 and 6 of
the counter affidavit has submitted that
the writ petition filed by the petitioner is
not maintainable as the State Government
does not have 100% share in Dugdh
Sangh, Mirzapur and further submitted
that out of due salary Rs. 4,41,221/- the
petitioner Rs. 2, 13, 590/- has already
been paid a sum of Rs. 2,13,590/-; Thus
only a sum of Rs. 2,27,631/- could not be
paid to him.

10. Learned counsel for respondents
further urged that the petitioner has a
remedy of arbitration proceeding in
respect of salary under Section 70 of U.P.
Cooperative Societies Act, 1965 which is
a complete code in itself. He has placed
reliance upon the judgment rendered in
the case of Madan Lal Gupta versus
State of U.P. and others and other
reported in [2007(113)FLR 505] wherein
the Court has held that 'Parag Dairy'
Aligarh Dugdh Utpadak Sahkari Sangh
Ltd. is not State with the meaning under
Article 12 of the Constitution, therefore,
writ petition under Article 226 of the
Constitution of India is not maintainable
for relief of post retiral benefits as the
dispute pertaining to service matters
between
an
employee
and
private
employer does not involve public function
or discharge of public duty.

11. After hearing counsel for the
parties and on perusal of records as well
as averments made in the counter affidavit
and rejoinder affidavits it is apparent that
the respondents have admitted that
petitioner has not been paid salary due to
'lack of funds.'

In Para 12 of the counter affidavit it
is further averred that

"For making of payment for rest of
the amount, a letter has been written to
the Milk Commissioner as well as
Additional
Milk
commissioner
demanding the financial assistance so
that rest of the money of the petitioner
may be paid."

12. It is apparent that the service of
the petitioner had not been terminated at
any point of time and the relationship of
master and servant continued to exist
therefore, respondent are liable to pay
wages to him and non-payment of wages
on the ground that the unit is facing loss,
is in the nature of 'begar' and hit by
Article 23 of the Constitution of India
662 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

therefore, is not acceptable. Furthermore
since the amount of salary due to the
petitioner has been admitted by the
respondent, it would not be in the interest
of justice to refer the dispute to arbitration
under Section 70 of U.P. Cooperative
Societies Act, 1965 as there is no dispute
regarding payment of dues.

13. For the reasons stated above and
in the aforesaid circumstances, writ
petition is allowed. The respondents are
directed to pay total admitted amount of
salary along with 5% simple interest to
the petitioner within three months from
the date of production of certified copy of
this order. Since the Unit is said to be
suffering loss, the respondent in the
alternative may pay one third of the
amount due with interest aforesaid each
month
for
three
months
in
equal
installments in addition to his regular
wages from the date of production of
certified copy of this order along with 5%
simple interest.

No order as to costs.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.07.2009

BEFORE
THE HON'BLE SHRI KANT TRIPATHI, J.

Criminal Misc. Application No. 1737 of
2005

Ram Chandra Balani & another...Applicants

Versus
State of U.P. and another ...Respondents

Counsel for the Applicants:
Sri P.N. Tripathi
Sri Rakesh Bhatt

Counsel for the Respondent:
Sri Rajesh Kumar Dubey

Code of Criminal Procedure-Section-482Quashing
of
Chargesheet
including
entire preceding-offence under Section
380 I.P.C.-on ground that sole informant
died- no useful purpose will be served in
Continuing proceeding- other witness
are there death of informant cannot be
ground for quashing the preceding-other
argument
of
absurd
and
inherently
improbable is concern-the Magistrate
after
considering
entire
material
collected during investigations found
sufficient ground to proceed can not be
said to be absurd-case law relied by
applicant also support the presentationno legal bar on taking opinion by
investigation
agency-application
rejected.

Held: Para 10

The learned counsel for the applicants
submitted that there was no reason for
the applicants to commit theft as stated
in the FIR specially when they are
respectable
persons
and
have
no
criminal history. The allegations are
highly improbable and absurd. In view of
illustration no. 5 of Bhajan Lal's case
(supra), the proceedings of the criminal
case pending against the applicants are
liable to be quashed. In my opinion, it is
true that if the allegations made in the
FIR or the complaint are so absurd and
inherently improbable on the basis of
which no prudent person can ever reach
a just conclusion that there is sufficient
ground
for
proceeding
against
the
accused
,
the
proceedings
can
be
quashed under section 482 Cr.P.C. But
these principles are of no help to the
applicants in view of the fact that the
satisfaction of the Magistrate, which is
based on perusal of the entire materials
collected during in investigation, can not
be said to be absurd or inherently
improbable.