# Purvanchal Vidyut Vitran Nigam Ltd. Thru' M.D. and another v. State of U.P. Thru' Min. of Labour and others

- **Citation:** (2011) 1 ILRA 221
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-02-17
- **Case number:** Civil Misc. Writ Petition No. 60573 of 2005
- **Bench:** Sibghat Ullah Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/purvanchal-vidyut-vitran-nigam-ltd-thru-m-d-and-another-v-state-of-u-p-thru-min-41845
- **Pages:** 5

## Headnote

U.P. Industrial Dispute Act 1997-Section
6
N-Termination
without
giving
retrenchment
compensation
even
workman success to prove the working
more than 240 days-there cannot be
reinstatement automatically-if there is
no
substantive
post-instate
of
reinstatement damage can be awarded -
pursuance of interim order working and
drawing salary-Rs.50,000/-towards back
wages-be treated compensation-without
refundable
of
salary-working
during
these period on basis of interim orderdirection of reinstatement not proper.

Held: Para 8

Moreover, it has been held by the
Supreme Court in several authorities
including the following that if the only
defect in the termination order of a
workman is non compliance of Section
25-F of Industrial Disputes Act (or 6-N of
U.P.I.D. Act), then it is not always
necessary to direct reinstatement and in
such situation award of consolidated
damages would be more appropriate
relief particularly when the employer is
222 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Government or Governmental agency
and
relevant
rules
have
not
been
followed
before
appointment
and
workman was daily wager or muster roll
employee.
Case law discussed:
AIR 2002 SC 1147; AIR 2006 SC 2113; AIR
2006 SC 2427; AIR 2008 SC 1955; AIR 2009
SC 3004; AIR 2010 SC 2140; 2010 (9) JT 262;
JT 2010 (1) SC 598; Krishan Singh Vs.
executive
Engineer,
Haryana,
State
Agricultural
Marketing
Board,
Rohtak
(Haryana), decided on 12.03.2010 in Civil
Appeal No.2335 of 2010; (2009) 8 SCC 556;
AIR 1950 SC 37; 2006 (4) SCC 1

## Text

1 All] Purvanchal Vidyut Vitran Nigam Ltd. and another V. State of U.P. and others
221

5. Having regard to the nature of
controversy in the present writ petition,
we are not inclined to exercise our
jurisdiction under Article 226 of the
Constitution
of
India
in
view
of
availability of alternative remedy to the
petitioner of filing appeal before the
Divisional Commissioner concerned.

6. We accordingly dismiss the writ
petition on the ground of availability of
alternative remedy of filing appeal before
the
Divisional
Commissioner
under
paragraph 9 of Uttar Pradesh High Speed
Diesel
Oil
and
Light
Diesel
Oil
(Maintenance
of
Supplies
and
Distribution) Order, 1981.

7. We may observe that in case the
petitioner files any such appeal within 30
days from today along with a certified
copy of this order, the appeal will be
entertained
by
the
Divisional
Commissioner concerned without raising
any
objection
on
the
ground
of
limitation.

8. In case such an appeal is filed
within
the
aforesaid
period,
the
Divisional Commissioner concerned will
proceed
to
decide
the
appeal
expeditiously, preferably within a period
of two months of the filing of such
appeal.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.02.2011

BEFORE
THE HON'BLE SIBGHAT ULLAH KHAN, J.

Civil Misc. Writ Petition No. 60573 of 2005

Purvanchal Vidyut Vitran Nigam Ltd.
Thru' M.D. and another. ...Petitioners
Versus
State of U.P. Thru' Min. of Labour and
others

 ...Respondents

Counsel for the Petitioners:
Sri Rajesh D. Khare

Counsel for the Respondent:
Sri M.K. Kushwaha
Sri Mahima Kushwaha
C.S.C.

U.P. Industrial Dispute Act 1997-Section
6
N-Termination
without
giving
retrenchment
compensation
even
workman success to prove the working
more than 240 days-there cannot be
reinstatement automatically-if there is
no
substantive
post-instate
of
reinstatement damage can be awarded -
pursuance of interim order working and
drawing salary-Rs.50,000/-towards back
wages-be treated compensation-without
refundable
of
salary-working
during
these period on basis of interim orderdirection of reinstatement not proper.

Held: Para 8

Moreover, it has been held by the
Supreme Court in several authorities
including the following that if the only
defect in the termination order of a
workman is non compliance of Section
25-F of Industrial Disputes Act (or 6-N of
U.P.I.D. Act), then it is not always
necessary to direct reinstatement and in
such situation award of consolidated
damages would be more appropriate
relief particularly when the employer is
222 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Government or Governmental agency
and
relevant
rules
have
not
been
followed
before
appointment
and
workman was daily wager or muster roll
employee.
Case law discussed:
AIR 2002 SC 1147; AIR 2006 SC 2113; AIR
2006 SC 2427; AIR 2008 SC 1955; AIR 2009
SC 3004; AIR 2010 SC 2140; 2010 (9) JT 262;
JT 2010 (1) SC 598; Krishan Singh Vs.
executive
Engineer,
Haryana,
State
Agricultural
Marketing
Board,
Rohtak
(Haryana), decided on 12.03.2010 in Civil
Appeal No.2335 of 2010; (2009) 8 SCC 556;
AIR 1950 SC 37; 2006 (4) SCC 1

(Delivered by Hon'ble S.U. Khan , J.)

1. Heard learned counsel for the
parties. Order dated 16.11.2010 on which
date arguments were heard and judgment
was reserved is quoted below:

"Heard learned counsel for the
parties.

Judgment reserved.

Learned counsel for the petitioner
has argued that under different orders
passed in this writ petition petitioner has
paid Rs. 50,000/- as back wages to the
workman
respondent
and
workman
respondent
has
been
reinstated
on
01.05.2008. These two facts are admitted
by the learned counsel of workman
respondent."

2. Order dated 01.05.2009 passed on
the application filed by the employer is
also quoted below:

"The case has been nominated to me
by order of Hon. Senior Judge through
order dated 24.04.2009.

Learned counsel for the applicant
states that there is some delay in
reinstatement of respondent no.2 in
pursuance of stay order dated 13.09.2005.
According to the learned counsel for the
petitioner petitioners have taken back
respondent no.2 in service on 01.05.2008.

Delay in reinstatement of respondent
no.2 in pursuance of interim order dated
13.09.2005 is condoned on the condition
that petitioner shall pay Rs. 50,000/- to
respondent no.2 within six weeks.

If ultimately while deciding this writ
petition finally it is held that respondent
no.2 is entitled to any wages prior to
01.05.2008 then this amount of Rs.
50,000/- will be adjusted in the said
wages.

Application is disposed of."

3. This writ petition is directed
against award dated 16.03.2005 given by
Presiding Officer, Industrial Tribunal (I)
U.P. Allahabad in Adjudication Case
No.14 of 1990. The matter which was
referred to the labour court as to whether
the action of the petitioner employer
terminating the services of its workman
respondent No.2, Nanhe Lal Yadav w.e.f.
01.03.1989 was just and valid or not.
Earlier the matter was decided against the
workman and it was held that he was not
entitled to any relief. The said award was
passed on 20.06.1991 against which
workman filed Writ Petition No.30231 of
1991. The said writ petition was allowed
on 12.04.2004 and mater was remanded to
the Industrial Tribunal. Copy of the said
judgment of the High Court is Annexure-I
to the writ petition. In the remand order, it
was observed that the Industrial Tribunal
shall specifically decide as to whether the
1 All] Purvanchal Vidyut Vitran Nigam Ltd. and another V. State of U.P. and others
223
workman had completed 240 days of
continuous service in any of the calendar
years continuously or not? After remand
the Industrial Tribunal decided the matter
in favour of the workman holding that he
had worked for more than 240 days in a
year, hence termination of his services
without
payment
of
retrenchment
compensation in accordance with Section
6-N of U.P. Industrial Disputes Act was
bad in law. In Para-14 of the award, it was
held that the workman had worked from
01.12.1987 to 31.07.1988 which comes to
243 days. This finding was recorded on
the basis of muster rolls filed by the
workman. Ultimately reinstatement with
full back wages was directed. Through
interim order passed in this writ petition
dated
18.09.2005
operation
of
the
impugned award was directed to be kept
in abeyance until next date of listing
provided that the petitioner reinstated the
respondent No.2.

4. In Para-3 of the earlier judgment
of this Court (Annexure-I to the writ
petition) it is mentioned that the workman
Nanhe Lal, respondent No.2 claimed that
he was appointed in the year 1980. Same
fact has been stated in Para-2 of the
impugned award. However, in the counter
affidavit filed by respondent No.2 himself
along with stay vacation application
sworn on 06.12.2009 his age is shown to
be 37 years meaning thereby that he was
born in the year 1972 and therefore in the
year 1980 he was only eight years old.
Even in December, 1987 he must have
been only 16 years of age and not entitled
to be appointed. In the year 1989 when
his
services
were
terminated
on
01.03.1989, he must be 17 years of age.
The Court wonders what to do in such
situation.

5. During pendency of the reference
before the Industrial Tribunal at the initial
stage workman had filed some application
for summoning some records. Against the
said application petitioner employer had
filed objections stating therein that
appointment of the workman was time
bound and he was appointed periodically
every year in Magh Mela (January &
February) and after closure of Magh Mela
his
services
were
terminated
automatically. The Industrial Tribunal
held that this aspect could not be taken
into consideration as no such thing was
stated in the written statement of the
employer
where
the
employer
had
categorically stated that the workman was
not its employee in any capacity. This
High Court in its remand order dated
12.04.2004
had
directed
that
the
document filed by the workman and
marked as Ex.W-14 should specifically be
considered by the Industrial Tribunal.
Ex.W-14 is a sort of certificate issued by
Sri J.P. Singh, an officer of the employer
that Nanhe Lal had worked from
02.12.1987 to 28.02.1989 under muster
roll as chaukidar mazdoor.

6. It is mentioned in Para-11 of the
impugned
award
that
when
the
proceedings were pending at the earlier
stage,
the
workman
had
filed
an
application for summoning muster roll,
pay register from January, 1988 to July,
1988, February, 1989 and December,
1987 in original and original copy of
letter dated 01.12.1987 written by store
keeper J.P. Singh, Magh Mela. (J.P. Singh
being Store Keeper Magh Mela could not
certify working period of any workman
beyond Magh Mela period which ends on
28/29 February very year.) It is strange
that muster roll for continuous period was
not sought to be summoned. It is further
224 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
mentioned in Para-11 of the impugned
award
that
through
order
dated
06.07.1990 employer was directed to file
the document on the next date, however
the said order was not complied with.
Thereafter, in Para-14, it is mentioned that
muster rolls filed by the workman were
perused by the Presiding Officer of the
Industrial Tribunal. It is not mentioned
that how the workman obtained the
muster rolls, which were taken on record
as secondary evidence. Labour court
further concluded that the muster rolls
proved
that
since
01.12.1987
till
31.07.1988, the workman had worked
continuously without a single break and
the period came to 243 days. Thereafter,
in Para-15, Ex.W-14 is mentioned which
states that petitioner had worked since
02.12.1987 to 28.02.1989.

7. In view of the above the labour
court held that the workman had worked
for more than 240 days and provisions of
Section 6-N of U.P.I.D. Act were not
complied with. The Supreme Court in
Range
Forest
Officer
Vs.
S.T.
Hadimani AIR 2002 SC 1147 has held
that the burden to prove that the workman
had worked for 240 days lies upon the
workman.

8. Moreover, it has been held by the
Supreme Court in several authorities
including the following that if the only
defect in the termination order of a
workman is non compliance of Section
25-F of Industrial Disputes Act (or 6-N of
U.P.I.D. Act), then it is not always
necessary to direct reinstatement and in
such situation award of consolidated
damages would be more appropriate relief
particularly
when
the
employer
is
Government or Governmental agency and
relevant rules have not been followed
before appointment and workman was
daily wager or muster roll employee.

"Nagar Mahapalika v. State of U.
P." AIR 2006 SC 2113

"Haryana State Electronics Devpt
Corpn v. Mamni" AIR 2006 SC 2427

"Sita Ram v. Moti Lal Nehru
Farmers Training Institute" AIR 2008
SC 1955

"Jagbir Singh Vs. Haryana State
Agriculture
Marketing
Board
and
another" AIR 2009 SC 3004

9. In Senior Superintendent,
Telegraph (Traffic) Bhopal Vs. Santosh
Kumar Seal and others, AIR 2010 SC
2140 it has been held that if daily wagers
had worked for 2 or 3 years and their
services were terminated without payment
of
retrenchment
compensation
then
consolidated damages should be awarded
to them. It has also been held that daily
wager does not hold a post and can not be
equated with permanent employee. This
view has been reiterated in Incharge
Officer Vs. Shankar Shetty 2010 (9) JT
262.

10. Learned counsel for the
workman
has
cited
the
following
authorities:

(i) Harjinder Singh Vs. Punjab
State Warehousing Corporation, JT
2010 (1) SC 598

(ii) Krishan Singh Vs. executive
Engineer, Haryana, State Agricultural
Marketing Board, Rohtak (Haryana),
decided on 12.03.2010 in Civil Appeal
No.
2335
of
2010
1 All] Beni Prasad V. State of U.P. and others
225

(iii)
Maharashtra
State
Road
Transport Corporation and another
VS.
Casteribe
Rajya
Parivahan
Karmchari Sanghatana, (2009) 8 SCC
556

(iv) Bhart Bank Ltd. Delhi Vs.
Employees of Bhard Bank Ltd. Delhi,
AIR 1950 SC 37

11. In the first two authorities, the
authorities mentioned above were not
brought to the notice of the Bench which
decided the said cases. In the third
authority, it was held that in spite of
Constitution Bench judgment of State of
Karnataka vs. Uma Devi 2006 (4) SCC
1, labour court can direct regularisation/
permanence. In the instant case no such
question is involved. In the last case it
was held that labour court/ industrial
tribunal even though technically not a
Court still it discharges judicial functions
and that labour court while deciding
industrial
disputes
has
to
override
contracts and can create rights, which are
opposed to contractual rights.

12. Accordingly, writ petition is
allowed. Impugned award is set aside.
The amount of Rs.50,000/- paid to the
workman respondent No.2 is treated to be
consolidated damages/ compensation. The
salary which the workman must have
received since 01.05.2008 till date shall
also not be refundable.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.02.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 63506 of 2008

Beni Prasad

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri J.P. Gupta
Sri Deepak Kr. Srivastava

Counsel for the Respondents:
Sri Vimal Chandra Mohan
C.S.C.

Constitution of India-Article 226-Post
retiral
benefits-petitioner
initially
appointed on 08.10.64 in Junior High
School-on
fixed
pay-on
28.02.1997
regular
pay
scale
given-retired
on
01.07.99-refusal on ground of lack of
minimum
qualifying
service-heldmisconceived-from
service
booksubstantial appointment is clear-salary
in different mode cannot be basis of
discrimination-direction issued to treat
the
initial
date
of
appointment
as
substantive one and taking into accountpetitioner possess qualifying period of
service
for
pension-direction
issued
accordingly.

Held: Para 12

Learned counsel for the respondents at
this stage attempted to argue that the
period
during
which
the
petitioner
received fixed pay was in fact part time
appointment and, therefore, this period
would not qualify for pension. This
averment is wholly beyond the pleadings
and no such a case has been taken in the
entire counter affidavit. The service book
placed on record, which is not disputed
by
respondents,
clearly
shows