# Om Prakash / v. State of U.P. and others

- **Citation:** (2004) 2 ILRA 622
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-08-12
- **Case number:** Special Appeal No. 950 of 2004
- **Bench:** M. Katju, A.C.J. Umeshwar Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-v-state-of-u-p-and-others-40280
- **Pages:** 2

## Headnote

Constitution
of
India-Art.
226-Nonpayment of services dues by State
Government to its employees for years
together until decree is put in execution
and attachment orders are passed-State
Government expected to act fairly-Unfair
attitude of State Government entitles
petitioner for interested which was
rightly awarded by Writ court-However
rate of interest reduced from 12% to 9%
p.a. simple.

Held: Para 8 & 9

A retired Government employee is not
expected to litigate with the State
Government
for
payment
of
his
legitimate dues and even after litigation
and the decree having become final, it is
not expected of the State Government to

## Text

http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
622
order of termination as interim measure
in the pending writ petition. By such
interim order if an employee is allowed to
continue in service and then ultimately the
writ petition is dismissed, then it would
tantamount to usurpation of public office
without any right to the same."

7. The ratio of the aforesaid decision
squarely applies to the facts of the present
case.

8. Apart from the above we may
also mention that the parent department of
the writ petitioners was the U.P. State
Handloom Agency and the District Urban
Development agency. When their services
in the parent department was terminated
(whether by way retrenchment, dismissal
or otherwise) their services in the
deputationist department automatically
comes to an end. This is because a person
has his lien only in the parent department
and not in the deputationist department. If
his service in the parent department is
terminated then he loses his lien in the
parent department and since he has no
lien in the deputationist department
obviously he cannot continue in the latter
department.

9. Moreover, the writ petitioners had
an alternative remedy of challenging the
retrenchment
under
the
Industrial
Disputes Act/U.P. Industrial Disputes Act
and hence in our opinion the writ petition
itself should not have been entertained
vide U.P. State Bridge Corporation Ltd.
v. U.P. Rajya Setu Nigam Karmchari
Sangh, (2004) 4 SCC 268.

10. The definition of industry in the
Industrial Disputes Act has been very
widely interpreted by the Supreme Court
in the case of Banglore Water Supply
and Sewerage Board v. Rajappa, AIR
1978 SC 969 and in our opinion on the
U.P. State Handloom Corporation as well
as State Urban Development Agency and
District
Development
Agency
are
industries. Hence if the writ petitioners
wanted to challenge their retrenchment
they should have raised an industrial
dispute and requested the Government to
make
a
reference
to
the
Labour
Court/Industrial Tribunal. The High Court
should not ordinarily interfere when there
is an alternative remedy before the
Labaour Court/Tribunal.

11. For the reasons given above this
appeal is allowed. The impugned order is
set aside.

12. With the consent of both the
learned counsel for the parties in this
appeal we are also disposing off the writ
petition no. 26317 of 2004 in terms of the
above order.
Appeal Allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.08.2004

BEFORE
THE HON'BLE M. KATJU, A.C.J.
THE HON'BLE UMESHWAR PANDEY, J.

Special Appeal No. 950 of 2004

Om Prakash
 ...Petitioner/Appellant
Versus
State of U.P. and others ...Respondents

Counsel for the Appellant:
Sri A.M. Zaidi
Sri M.H. Khan

Counsel for the Respondents:
S.C.

Constitution
of
India-Art.
226-Writ
Petition-Alternative
remedyMaintainability- U.P. Public Service
http://www.allahabadhighcourt.nic.in
2 All] Om Prakash V. State of U.P. and others
623
Tribunal Act 1976 (as amended in 2002)-
Dismissal
of
Writ
on
ground
of
alternative remedy-As per amendment
there must be some order against which
petitioner can go to Tribunal-Hence
impugned judgment set aside.

Held: Para 2

It may be mentioned that the U.P. Public
Service Tribunal Act, 1976 was amended
in the year 2000. According to the
amendment there must be some order
against which the petitioner can go to
the Tribunal. If there is no order, party
cannot go to the Tribunal. This view was
also taken by the Supreme Court in
Public Service Tribunal Bar Association
Vs. State of U.P. & another (2003) 1
UPLBEC 780.
Case law discussed:
(2003) 1 UPLBEC 80

(Delivered by Hon'ble M. Katju, A.C.J.)

1. Heard Sri A.M. Zaidi, learned
counsel for the appellant and learned
Standing Counsel.

This Special Appeal has been filed
against the impugned order of learned
Single Judge dated 10.5.2004. By that
judgment, the learned Single Judge
dismissed the writ petition on the ground
of alternative remedy before the U.P.
Public Service Tribunal.

2. It may be mentioned that the U.P.
Public Service Tribunal Act, 1976 was
amended in the year 2000. According to
the amendment there must be some order
against which the petitioner can go to the
Tribunal. If there is no order, party cannot
go to the Tribunal. This view was also
taken by the Supreme Court in Public
Service Tribunal Bar Association Vs.
State of U.P. & another (2003) 1
UPLBEC 780.

3. Following the said decision, this
appeal is allowed and the impugned order
dated 10.5.2004 is set aside. We remand
the case to the learned Single Judge for
passing a fresh decision on merits in
accordance with law expeditiously.
Appeal Allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.8.2004

BEFORE
THE HON'BLE TARUN CHATTERJEE, C.J.
THE HON'BLE VINEET SARAN, J.

Special Appeal No. 61 of 2003

State of U.P. through Collector Allahabad
and others

...Appellants
Versus
Ram Badan Dubey
 ...Respondents

Counsel for the Appellants:
Sri R.V. Singh
S.C.

Counsel for the Respondent:
Sri Ram Badan Dubey (In Person)

Constitution
of
India-Art.
226-Nonpayment of services dues by State
Government to its employees for years
together until decree is put in execution
and attachment orders are passed-State
Government expected to act fairly-Unfair
attitude of State Government entitles
petitioner for interested which was
rightly awarded by Writ court-However
rate of interest reduced from 12% to 9%
p.a. simple.

Held: Para 8 & 9

A retired Government employee is not
expected to litigate with the State
Government
for
payment
of
his
legitimate dues and even after litigation
and the decree having become final, it is
not expected of the State Government to