# Prakesh Chand Agrawal v. Presiding Officer, Labour Court (II), Kanpur & another

- **Citation:** (2010) 2 ILRA 855
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010
- **Case number:** Civil Misc. Writ Petition No. 2074 of 1996
- **Bench:** Sanjay Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prakesh-chand-agrawal-v-presiding-officer-labour-court-ii-kanpur-another-41701
- **Pages:** 5

## Text

2 All] Prakesh Chand Agarwal V.Presiding Officer, Labour Court (II), Kanpur & another
855
promotion, crossing of efficiency-bar and
other service matters of the Government
Servant concerned."

13. This Court after considering the
issue in its entirety is of the view that an
employee cannot be made to suffer on
account of non-communication of entries on
the part of the authorities. The timely
recording of the annual entries and
maintenance
of
the
record
is
the
responsibility
of
the
administrative
department and it is incumbent upon the
administrative department to procure all the
informations and provide the same in the
prescribed proforma to the Departmental
Promotion
Committee.
The
State
Government has taken care of the situation
where such an entry of an employee is not
available then as per the Government Order
dated 20.08.1993 the said entries have to be
reported as blank and evaluation of the
employee is to be done on the basis of
available entries and the blank entries /
unavailable entries is to be assessed as
average of the available entries. In view of
this back ground there was no occasion for
the Departmental Promotion Committee to
defer the promotion of the petitioner on
account of non-availability of the annual
entries of a particular year. Even otherwise, if
there is non-communication of any adverse
entry in the prescribed time or the
representation of an employee is not
disposed of in the time scheduled prescribed
under Rule 4 of the Rules, 1995 the said
entries cannot be read adverse against an
employee for the purposes of promotion,
crossing of efficiency-bar and other service
matters.

14. In view of the aforesaid
discussions, this writ petition is disposed of
with the directions to the opposite parties to
convene
the
Departmental
Promotion
Committee within a period of one month
from the date of receipt of a certified copy of
this order and consider the candidature of the
petitioner for promotion on the post of Senior
Supply Inspector on the basis of available
record
and
if
her
candidature
is
recommended, she be given promotion from
the date of her other colleagues especially
juniors to her have been given promotion.
Further, it is open for the opposite parties to
collect the unavailable entries and if they are
not available then the opposite parties are
required to proceed with the matter in
accordance with the Government order dated
20.08.1993.

15. No order as to cost
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.08.2010

BEFORE
THE HON'BLE SANJAY MISRA, J.

Civil Misc. Writ Petition No. 2074 of 1996

Prakesh Chand Agrawal
 ...Petitioner
Versus
Presiding Officer, Labour Court (II), Kanpur
& another

 ...Respondent

Counsel for the Petitioner
Sri B.N. Singh

Counsel for the Respondent
C.S.C.,
Sri V.B. Singh

U.P. Industrial Dispute Act 1947-Section
6-N-Retrenchment
Compensationworkman employeed on fixed termworked more than an year-whether
entitled for retrenchment compensation
under the Act? Held 'No' considering
fixed
term
appointment-period
automatically comes to an end-finding
recorded
by
labour
court
regarding
856 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

incompetency of workman-cannot be
imposed upon employer-and payment of
compensation of 15 days wages-heldproper-No question of reinstatement

Held Para 9

In the present case the petitioner was
admittedly engaged for a fixed term. He
may have a right to the benefits provided
under Section 6 N of the U.P. Act and non
compliance
of
the
Section
by
the
employer can render his removal as a
violation thereof but for claiming reinstatement and full back wages it
cannot be made an absolute right. Where
he was not granted extension of his
engagement such engagement came to
an automatic end. The employer had
made an assessment of his performance
to judge his suitability for the job. They
found him unsuitable hence did not
extend his engagement. The Labour
Court therefore, took the view that it
would not be proper to impose an
unsuitable person on the employer.
Case Law Discussed:
JT 1998 (8) 585, (2002) 9 SCC 636

(Delivered by Hon'ble Sanjay Misra,J. )

1. Heard Sri B.N.Singh, learned
counsel for the petitioner. List of old
cases to be taken up at 2.00 p.m. has been
revised. None appears on behalf of the
respondent no.2, although counter and
rejoinder affidavits are available on
record.

2. The petitioner claims to have been
appointed by the respondent no.2 as clerk
and is aggrieved by the award dated
19.10.1994 (Annexure-5 to the writ
petition) passed in the Adjudication Case
No. 81/82 by the Presiding Officer,
Labour Court, No. II U.P. Kanpur.

3. Sri B.N.Singh has submitted that
a specific finding has been recorded by
the Labour Court that the petitioner is a
workman within the definition of Section
2(z) of the U.P. Industrial Dispute Act,
1947 (hereinafter referred to as ' the U.P.
Act') and further that the termination of
service of the petitioner was illegal and
invalid. He states that when such a finding
of fact has been recorded and it was not
challenged by the employer, the labour
court ought to have granted reinstatement
with full backwages to the petitioner and
having not so done, the impugned award
is illegal. According to him the labour
court has only awarded compensation of
3.33 years wages to the petitioner without
reinstating him.

4. He has referred to a decision of
Hon'ble the Supreme Court in the case of
Anoop Sharma Vs. Executive Engineer,
Public Health Division No.1, Panipat
(Haryana) reported in (2005) 5 SCC 497
and refers to paragraphs 22 and 23 of the
said judgement to submit that in case
there is any retrenchment by an oral order
or communication or he is simply asked
not to come for duty, the employer will be
required to lead tangible and substantive
evidence to prove compliance with
clauses (a) and (b) of Section 25-F of the
Act. While making his submission, he
submits that the provision of Section 6-N
of the U.P. Act are para materia with
Section 25 of the Industrial Disputes Act
and therefore, he states that having not
done so, the termination of the petitioner
was illegal.

5. In the counter affidavit, the
respondents have set up the case that the
petitioner was engaged for a fixed one
year term for training and when his work
and conduct was not satisfactory, the
period was extended from time to time in
order to enable the petitioner to improve
2 All] Prakesh Chand Agarwal V.Presiding Officer, Labour Court (II), Kanpur & another
857
himself. They say that even after such
opportunity,
the
petitioner
did
not
improve
himself
and
hence
his
engagement was not extended and it came
to an end automatically.

6. Having considered the submission
of learned counsel for the petitioner and
perused the record, the condition that the
petitioner has completed more than one
year as workman of the respondent no.2,
which is the first condition of Section 6 N
of the U.P. Act has been made out
inasmuch as a workman who has been in
continuous service for not less than one
year under an employer can be retrenched
only on compliance of the Sub-clause (a),
(b) and (c) of Section 6 N of the U.P. Act.
There is nothing on record to indicate that
the petitioner was given one month notice
or wages in lieu thereof nor he has been
given compensation which was to be
equivalent to 15 days average pay for
every year of service or part thereof.
Consequently the termination of the
petitioner was rightly held by the Labour
Court to be illegal.

7. Insofar as the submission that the
petitioner was required to be reinstated
the Labour Court has recorded a finding
that the work of the petitioner was found
unsatisfactory by the employer and inspite
of opportunities given, he did not improve
himself. Therefore, the Labour Court was
of the view that such an employee cannot
be imposed upon the employer and hence
reinstatement was not required to be
granted in the present case.

8. There is no error in the view taken
by the Labour Court more particularly in
view of the law laid down by the Supreme
Court in the case of Radhey Shyam
Gupta Vs. U.P. State Agro Industries
Corporation Ltd. & another reported in
JT 1998 (8) SC 585. Paragraphs 28 and
34 are quoted hereunder:-

"28. In other words, it will be a case
of motive if the master, after gathering
some prima facie facts, does not really
wish to go into their truth but decides
merely not to continue a dubious
employee. The master does not want to
decide or to direct a decision about the
truth of the allegations. But if he conducts
an inquiry only for purpose proving the
misconduct and the employee is not
heard, it is a case where the inquiry is the
foundation and the termination will be
bad.

34. It will be noticed from the above
decisions that the termination of the
services of a temporary servant or one on
probation, on the basis of adverse entries
or on the basis of an assessment that his
work is not satisfactory will not be
punitive inasmuch as the above facts are
merely the motive and not the foundation.
The reason why they are the motive is that
the assessment is not done with the object
of finding out any misconduct on the part
of the Officer, as stated by Shah, J. (as he
then was) in Ram Narayan Das's case. It
is done only with a view to decide
whether he is to be retained or continued
in service. The position is not different
even if a preliminary inquiry is held
because the purpose of a preliminary
inquiry is to find out if there is prima
facie evidence or material to initiate a
regular departmental inquiry. It has been
so decided in Champakalal's case. The
purpose of the preliminary inquiry is not
to find out misconduct on the part of the
Officer and if a termination follows
without giving an opportunity, it will not
be bad. Even in a case where a regular
858 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

departmental inquiry is started, a chargememo issued, reply obtained, and an
enquiry Officer is appointed- if at that
point of time, the inquiry is dropped and a
simple notice of termination is passed, the
same will not be punitive because the
enquiry Officer has not recorded evidence
nor given any findings on the charges.
That is what is held in Sukh Raj Bahadur's
case and in Benjamin's case. In the latter
case, the departmental inquiry was
stopped because the employer was not
sure of establishing the built of the
employee.
In
all
these
cases
the
allegations against the employee merely
raised a cloud on his conduct and as
pointed by Krishna Iyer, J. in Gujarat
Steel Tubes case, the employer was
entitled to say that he would not continue
an employee against whom allegations
were made the truth of which the
employer was not interested to ascertain.
In fact, the employer, by opting to pass a
simple order of termination as permitted
by the terms of appointment or as
permitted by the rules was conferring a
benefit on the employee by passing a
simple order of termination so that the
employee would not suffer from any
stigma which would attach to the rest of
his career if a dismissal or other punitive
order was passed. The above are all
examples were the allegations whose truth
has not been found, and were merely the
motive."

In State of Punjab & others Vs.
Bhagwan Singh reported in (2002) 9
SCC 636 it was held in paragraphs 4 and
5 as quoted below:-

"4. This aforesaid order to the extent
it stated that the officer was unlikely to
prove a good police officer, was in terms
of the relevant Rule 12.21 applicable to
the respondent. In our view, when a
probationer is discharged during the
period of probation and if for the purpose
of discharge, a particular assessment of
his work is to be made, and the
authorities referred to such an assessment
of his work, while passing the order of
discharge, that cannot be held to amount
to stigma.

5.
The other
sentence
in
the
impugned order is, that the performance
of the officer on the whole was "not
satisfactory". Even that does not amount
to any stigma."

9. In the present case the petitioner
was admittedly engaged for a fixed term.
He may have a right to the benefits
provided under Section 6 N of the U.P.
Act and non compliance of the Section by
the employer can render his removal as a
violation thereof but for claiming reinstatement and full back wages it cannot
be made an absolute right. Where he was
not granted extension of his engagement
such engagement came to an automatic
end.
The
employer
had
made
an
assessment of his performance to judge
his suitability for the job. They found him
unsuitable hence did not extend his
engagement. The Labour Court therefore,
took the view that it would not be proper
to impose an unsuitable person on the
employer.

10. Insofar as the award of wages of
3.33 years is concerned that would come
within the discretion of Labour Court
under Section 6 of the U.P. Act for the
purpose of awarding compensation to the
petitioner and therefore, even if there was
violation of Section 6 N of the U.P. Act,
the
Labour
Court
was
within
its
2 All] Dr. Deepak Bhatiya and others V.State of U.P. and others
859
jurisdiction to award compensation to the
petitioner which it has done.

11. For the aforementioned reasons
there is no error or illegality in the
impugned award.

12. The writ petition has no merit. It
is accordingly dismissed.

13. No order is passed as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.07.2010

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 2842 of 2010

Dr. Deepak Bhatiya and Others ...Petitioner
Versus
State Of U.P. & Others ...Respondent

Counsel for the Petitioner
Sri N.L. Pandey

Counsel for the Respondents
Sri Satish Chaturvedi (Addl. Advocate General.)
Sri A.K. Yadav
C.S.C.

Constitution
of
India-Art.226
appointment
on
post
of
principalcommission excluded those teachers
working
in
self
finance
institutionwithout verifying the fact regarding
mode of full time or part time workingheld-illegal-teachers working full time
basis even in un-aided institutions are
qualified for consideration for the post of
principal in aided intermediate college.

Held Para 7

This Court holds that the Commission
has not justified in excluding such
teachers who are working in self finance
institutions en masse. The Board must
scrutinise
the
application
of
the
candidates concerned working in such
self financed recognized institutions and
satisfy itself as to whether they are part
time teachers or full part time teachers.
All full time teachers appointed in
accordance with rules applicable to such
institution
are
within
the
zone
of
consideration and the Selection Board
shall
take
appropriate
action
accordingly.

(Delivered by Hon'ble Arun Tandon,J. )

1. Heard learned counsel for the
petitioner and learned counsel for the
State-respondents.

Petitioners had been working as full
time teacher in institutions which are
affiliated from the Central Board for
Secondary Education, New Delhi, is
recognised Intermediate Colleges which
have been granted recognition under selffinance. The petitioners have made
applications for being considered for the
post of Principal available in various High
School
and
Intermediate
Institutions
recognised by the Madhyamik Shiksha
Parishad in terms of the advertisement
published by U.P. Secondary Education
Services Selection Board established
under
U.P.
Act
No.
5/1982.
The
application of the petitioners have not
been considered by the Selection Board
because the petitioners have been working
in self financing institution and they were
not being giving salary from the State
exchequer.

2. Counsel for the petitioner has
placed reliance upon the judgement of the
Apex Court in the case of Mohd. Altaf &
Ors. vs. Public Service Commission &
Anr. in C.A. No. 961-962 of 1999 as also
upon the judgement of the Apex Court in