# Rishi Kumar Katiyar v. Labour Court, Kanpur and another - **Citation:** (2007) 2 ILRA 433 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2007 - **Case number:** Civil Misc. Writ Petition No.43617 of 1999 - **Bench:** S.U. Khan - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rishi-kumar-katiyar-v-labour-court-kanpur-and-another-40935 - **Pages:** 4 ## Headnote Constitution of India Art. 226-Practice and Procedure-burden of proof-240 days 434 INDIAN LAW REPORTS ALLAHABAD SERIES [2007 working-despite of specific pleading of workman-not denied by employerburden shifts upon employer. Held: Para 7 Labour Court, however, held that petitioner could not prove that he worked continuously from 04.09.1987 to 07.11.1988 or 08.11.1988. It was also mentioned that employer had not produced the relevant records, hence workman was directed to prove the documents filed by him through secondary evidence, which he failed to do. The Supreme Court in AIR 2006 SC 355 "R. M. Yellattiv v. Assistant Executive Engineer" has held that if the workman has filed some, documents then the burden shifts upon the employer to dispute the version of the employee. Case law discussed: AIR 2006 SC-355 AIR 2006 SC-2113 AIR 2006 SC-2427 AIR 2006 SC-2614 AIR 2006 SC-2670 AIR 2006 SC-2682 ## Text 2 All] Rishi Kumar Katiyar V. Labour Court, Kanpur and another 433 the Constitution of India, it is incumbent upon every State, Tribunal, Courts and functionary of the State to comply with it in letters and spirit. 16. It is also contended on behalf of the State that the petitioner is not entitled to any back wages on the principle of "no work no pay" and the petitioner is also not entitled to any other consequential benefits for the duties that he has not discharged from the date of acquittal. The petitioner was acquitted with effect from 24.2.1994 and he made a representation to be reinstated on 7.12.1995. The authorities concerned has frustrated the attempt of the petitioner to get reinstated. Despite the fact that the Regulation 493 (c) clearly provides that once a person is acquitted on criminal charges, he is liable to get reinstated. 17. The Hon'ble Supreme Court in the case of Union of India versus K.V. Jankiraman, reported in AIR 1991 SC 2010, held that normal rule of "no work no pay" cannot be applied to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remained away from work for his own reasons. Other than the criminal proceedings, which were initiated against the petitioner from which he was judicially acquitted, there is not even censor note against him. In the present case the authority concerned failed to exercise the jurisdiction vested in him under Regulation 493 (c) by not passing an appropriate order of reinstatement. Therefore in view of the above discussion, I am of the opinion, the petitioner deserves to be reinstated with full consequential benefits. 18. Such being the case, the petitioner having been tried and judicially acquitted which was later on confirmed by the Hon'ble Apex Court by its order dated 23.9.2003, there could be no doubt that the he has been ''judicially acquitted' and therefore he is entitled for the benefit of Regulation 493 (c) of the U.P. Police Regulations. The order dated 30.10.2000, by which the distinction has been sought to be made, is clearly misconceived and deserves to be quashed. 19. I therefore command the respondents to reinstate the petitioner with all consequential benefits from the date of acquittal which is dated 24.2.1994. The impugned order dated 30.10.2000 as well as the order of dismissal dated 28.5.1990 is hereby set aside. The writ petition is allowed as above. There will be no costs. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 07.05.2007 BEFORE THE HON'BLE S.U. KHAN, J. Civil Misc. Writ Petition No.43617 of 1999 Rishi Kumar Katiyar ...Petitioner Versus Labour Court, Vth, U.P., Kanpur and another ...Opposite Parties Counsel for the Petitioner: Sri V.K. Barman Counsel for the Opposite Parties: Sri Prakash Padia S.C. Constitution of India Art. 226-Practice and Procedure-burden of proof-240 days 434 INDIAN LAW REPORTS ALLAHABAD SERIES [2007 working-despite of specific pleading of workman-not denied by employerburden shifts upon employer. Held: Para 7 Labour Court, however, held that petitioner could not prove that he worked continuously from 04.09.1987 to 07.11.1988 or 08.11.1988. It was also mentioned that employer had not produced the relevant records, hence workman was directed to prove the documents filed by him through secondary evidence, which he failed to do. The Supreme Court in AIR 2006 SC 355 "R. M. Yellattiv v. Assistant Executive Engineer" has held that if the workman has filed some, documents then the burden shifts upon the employer to dispute the version of the employee. Case law discussed: AIR 2006 SC-355 AIR 2006 SC-2113 AIR 2006 SC-2427 AIR 2006 SC-2614 AIR 2006 SC-2670 AIR 2006 SC-2682 (Delivered by Hon'ble S.U. Khan, J.) 1. Heard learned counsel for the parties. 2. This writ petition is directed against award dated 02.07.1998 given by Presiding Officer, Labour Court,(Vth), U.P. Kanpur in adjudication case No.55 of 1995. The matter, which was referred to the labour Court, was as to whether the action of the employer Vice-Chancellor, Chandrashekhar Azad Krishi and Prodyogiki, University, Kanpur, respondent No.2 terminating the services of its employee-petitioner w.e.f. 07.11.1988 was valid or not. The dispute itself was raised by the petitioner after four years (in the impugned order, year of C. P. case is mentioned as 829/1992). 3. The case of the workman was that he was working since 07.09.1987 as daily wager on Rs.12/- per day and he had worked continuously till 07.11.1988·however, without any reason, on 08.11.1988, the employer retrenched him. It was also stated that his appointment was to continue until 31.12.1988. The Labour Court held that workman-petitioner failed to prove that he had worked, for 240 days in a calendar year. Labour Court ultimately held that petitioner was not entitled to any relief. 4. Labour Court took an extremely technical view of the matter. It is mentioned in the award that workman himself stated that he had worked till 07.11.1988 and his services were terminated from 8.11.1988, while in the reference, it was mentioned that services were terminated on 07.11.1988. It is correct that jurisdiction of the Labour Court depends upon the terms of the reference. However, incidental things may very well be seen by the Labour Court. Reference cannot be refused to be decided merely on the ground that there is slight variation in the date of termination. 5. Labour Court, however, held that petitioner could not prove that he worked continuously from 04.09.1987 to 07.11.1988 or 08.11.1988. It was also mentioned that employer had not produced the relevant records, hence workman was directed to prove the documents filed by him through secondary evidence, which he failed to do. The Supreme Court in AIR 2006 SC 355 "R. M. Yellattiv v. Assistant Executive Engineer" has held that if the 2 All] Rishi Kumar Katiyar V. Labour Court, Kanpur and another 435 workman has filed some, documents then the burden shifts upon the employer to dispute the version of the employee. 6. Annexure-1 to the writ petition is written statement of the petitionerworkman filed before the Labour Court. In Paragraph-2 of the written statement, it was categorically stated that he worked from 07.09.1987 till 07.11.1988 continuously without any break. Annexure-2 to the writ petition is the written statement of the employer. In Paragraph-2 of the said written statement, it was stated that the petitioner was employed as daily wager and was paid as such. Thereafter, it was stated that petitioner himself stopped coming for work in the said written statement, the assertion of the workman that he continuously worked from 07.09.1987 till 07.11.1988 was not denied. In view of this, it was proved that the petitioner worked continuously from 07.09.1987 till 7 .11.1988 and in this manner he completed 240 days in a calendar year. Accordingly, impugned award is quite illegal and liable to be set aside. 7. However, it was not denied by the petitioner rather it was his own case that he was employed on daily wage basis. The Supreme. Court in the following authorities has held that provisions of Section 6-N of U.P. Industrial Disputes Act (equivalent to Section 25-F of Industrial disputes Act) are also applicable on daily wagers or workcharged employees. However, in the same authorities, It has further been held that in case of retrenchment of daily wagers or work-charged employee without complying with the provisions of Section 6-N of U.P.I.D. Act or 25-F of I.D. Act, it is not always necessary to direct reinstatement with fullback wages. In such scenario, award of consolidated damages/compensation is proper relief. (1) Nagar Mahapalika (now Municipal Corpn.) v. State of U.P. and Ors, AIR 2006 SC 2113. (2) "Haryana State Electronics Devpt Corpn v. Mamni" AIR 2006 SC 2427. 8. Moreover, in the instant case, the dispute was raised by the petitioner after four years. The Supreme Court in U.P.S.R.T.C. Ltd. v. Srada Prasad Misra, AIR 2006 SC 2466, Manager (now Regional Director), R.B.I. v. Gopinath Sharm, AIR 2006 SC 2614, Assistant Engineer, C.A.D., Kota v. Dhan Kunwar, AIR 2006 SC 2670 and Chief Engineer, Ranjit Sagar Dam v. Sham Lal, AIR 2006 SC 2682 has held that seven or more years delay in raising the industrial dispute is fatal. 9. Accordingly, I am of the opinion that even though the award of the Labour Court refusing to grant any relief to petitioner is illegal, however, petitioner is not entitled to reinstatement with full back wages. Accordingly, writ petition is allowed. Impugned award is set aside. 10. It is held that petitioner's termination was illegal for noncompliance of Section 6-N of U.P. I.D. Act. Petitioner is entitled to consolidated damages/compensation of Rs.15,000/-. Respondent No.2 is directed to pay the said amount to the petitioner within three months failing which 1% per month interest shall be payable upon the said amount since after three months till actual payment. --------- 436 INDIAN LAW REPORTS ALLAHABAD SERIES [2007 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 01.03.2007 BEFORE THE HON'BLE M.K. MITTAL, J. Criminal Misc. Writ Petition No. 770 of 2007 Surya Bhan ...Petitioner Versus State of U.P. and another ...Respondents Counsel for the Petitioner: Sri Satish Trivedi Sri Roshan Khan Sri Vinod Shanker Giri Counsel for the Respondents: Sri G.S. Chaturvedi Sri Udai Chandani A.G.A. Code of Criminal Procedure-Section 190 (1)(6)-Power of Magistrate-investigation officer submitted final report-the Magistrate can either accept the final report and drop the proceeding or direct for further investigation or treating the protest petitioner as complaint may proceed under Section 200 and 202 Cr.P.C.-but can not go beyond the material provided by I.O.-without specifying offences, the sectionsummoning the accused-held- in correctset-aside. Held: Para 17 In the instant case, the learned Magistrate has directed to summon the accused persons under Section 190(1)(b) of Cr.P.C. This in itself is an illegal order as the accused could not be summoned and tried under Section 190 of Cr.P.C. This section empowers the Magistrate to take cognizance of an offence which is constituted from the facts as disclosed in the police report. The accused is summoned for the offence that has been committed by him under the provisions of Indian Penal Code or any other law under which he could be tried and punished. The learned Magistrate Should have specified the offence and the section (s) under which he was summoning the accused after taking cognizance. Thus I come to the conclusion that the impugned order dated 10.10.2006 passed by the learned Magistrate is not correct and is liable to be set aside. The order in revision passed on 6.12.2006 by the learned Incharge Sessions Judge is also, therefore, liable to be set aside. Therefore, the writ petition is to be allowed. Case law discussed: 2001 (43) ACC-1096 1963 Supp. (1) SCR-953 2005 (7) SCC-467 (Delivered by Hon'ble M.K. Mittal. .J.) 1. This writ petition has been received in this Court by nomination. 2. The writ petition has been filed with the prayer to quash the impugned order dated 6th December, 2006 passed by the Incharge Sessions Judge, Allahabad in Criminal Revision No.876 of 2006 whereby the revision has been dismissed in limine and order dated 10th October 2006 passed by the Additional Chief Judicial Magistrate, Court No.2, Allahabad in Criminal Case No.99/XII of 2006 (Deepak Kumar Singh Vs. Dilip Agrahari and others) [Annexures- l and 2], whereby the final report No.36 of 2006 has been rejected and the protest petition dated 17.6.2006 filed by respondent no.2 has been accepted and the accused have been directed to be summoned under Section 190 (1)(b) of Cr.P.C.