# Shanti Devi Tripathi v. State of U.P. & Ors

- **Citation:** WRIT-C No. 56388 of 2016
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-18
- **Case number:** WRIT-C No. 56388 of 2016
- **Bench:** Manoj Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shanti-devi-tripathi-v-state-of-u-p-ors-46247
- **Pages:** 7

## Headnote

1906 INDIAN LAW REPORTS ALLAHABAD SERIES
C.S.C., Sri Ratnesh Kumar Pandey, Sri
Ritvik Upadhya

A. Civil Law-Industrial Dispute Act, 1947 -
Section 4K - Reference - Limitation -
Although it is clear that there is no limitation
prescribed for seeking reference of a dispute to
Labour Court, but it is also a sine qua non for
referring any dispute to Labour Court that on
the date of reference, industrial dispute should
be in existence - The workman by maintaining
complete silence for 28 years had unequivocally
given up his alleged claim, if any. (Para 8)
B. Labour dispute - Proceedings before the
Conciliation Officer - Nature - The proceedings
before the Conciliation Officer are administrative
in nature and are not judicial proceedings - He
only has the power to facilitate reconciliation
between the parties. He does not possess
adjudicatory powers - The State Government is
not bound by the recommendation made by the
Conciliation Officer. It is competent to take its
own independent view as to whether on basis of
material brought before it, there exists any
dispute in praesenti, worthy of reference to the
Labour Court and if it comes to the conclusion
that there is no such material, it is fully
competent in declining to make reference, as in
the instant case. (Para 9)
Writ Petition dismissed (E-1)
Cases relied on :-

## Text

3-5 All. Shanti Devi Tripathi Vs. State of U.P. & Ors.
1905
law and also to challenge the findings
recorded by the Commissioner in the order
impugned regarding the nature of the land
in question being public utility land. We,
thus, make it clear that all issues are kept
open to be assailed by the petitioners before
the Commissioner who shall examine them
being the supervisory revisional authority
within the scope of Section 333 of the
U.P.Z.A & L.R Act. We also make it clear
that we are keeping intact the order
impugned in the present petition so far as
the petitioners herein are concerned and
only making it subject to the fresh order to
be passed by the Commissioner or the
concerned
revisional
authority.
We,
therefore, disposed of the present petition
with the directions as follows:-

(i) The petitioners shall file an
application in reply to the findings returned
by the Assistant Commissioner in the order
impugned alongwith the certified copy of
this order, before the Commissioner or the
competent revisional authority within a
period of four weeks from the date of this
order. The said reply shall be treated as a
reply to the notice to show cause had it
been earlier issued to the petitioner.

(ii) On presentation of such an
application,
the
competent
revisional
authority shall be under obligation to pass a
fresh reasoned and speaking order in
accordance with law by intimating the date
fixed before it to the petitioners, within a
further period of two months.

(iii) The petitioners herein shall
be under obligation to cooperate in the
above proceedings. In any case, no
unnecessary adjournment shall be granted
to any of the petitioners herein so that they
may not linger on the proceedings.

(iv) The status quo as to the
nature and possession of the land as on
date, shall be maintained in so far as the
petitioners herein are concerned till the
passing of the fresh order by the revisional
authority.

34. After taking fresh decision as
directed
above,
necessary
action
for
restoring the nature and possession of the
land in question shall be taken by the
competent authority which shall be brought
to its logical ends in accordance with law,
as expeditiously as possible. In other
words, all necessary actions to undo the
wrong done, if any, shall be taken and
proceedings in this regard be brought to
their logical ends.

35. In case of non compliance or
dereliction of the petitioners in cooperating
in the proceedings before the Revenue
authorities, the guilty person(s) would
expose
him/them
in
the
contempt
proceedings for deliberate violation of the
directions issued hereinabove.

36. Subject to the above, the present
petition is disposed of.
----------

(2020)03-05ILR A1905
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.01.2020

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.

WRIT-C No. 56388 of 2016

Shanti Devi Tripathi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shashi Bhushan Mishra

Counsel for the Respondents:
1906 INDIAN LAW REPORTS ALLAHABAD SERIES
C.S.C., Sri Ratnesh Kumar Pandey, Sri
Ritvik Upadhya

A. Civil Law-Industrial Dispute Act, 1947 -
Section 4K - Reference - Limitation -
Although it is clear that there is no limitation
prescribed for seeking reference of a dispute to
Labour Court, but it is also a sine qua non for
referring any dispute to Labour Court that on
the date of reference, industrial dispute should
be in existence - The workman by maintaining
complete silence for 28 years had unequivocally
given up his alleged claim, if any. (Para 8)
B. Labour dispute - Proceedings before the
Conciliation Officer - Nature - The proceedings
before the Conciliation Officer are administrative
in nature and are not judicial proceedings - He
only has the power to facilitate reconciliation
between the parties. He does not possess
adjudicatory powers - The State Government is
not bound by the recommendation made by the
Conciliation Officer. It is competent to take its
own independent view as to whether on basis of
material brought before it, there exists any
dispute in praesenti, worthy of reference to the
Labour Court and if it comes to the conclusion
that there is no such material, it is fully
competent in declining to make reference, as in
the instant case. (Para 9)
Writ Petition dismissed (E-1)
Cases relied on :-
1. Sapan Kumar Pandit vs. U.P. Electricity
Board, (2001) 6 SCC 222

2. Prabhakar vs. Joint Director, Sericulture
Department & anr., (2015) 15 SCC 1
(Delivered by Hon'ble Manoj Kumar
Gupta, J.)

1. The petitioner has called in
question an order dated 16.9.2009 in C.P.
Case No. 14 of 2004, and another dated
15.10.2016
contained
in
Letter
No.
4966/PiP-I.R./16
by
Deputy
Labour
Commissioner, Mirzapur Division, Pipri,
Sonebhadra. He has also prayed for a
mandamus
commanding
the
Deputy
Labour Commissioner to refer the dispute
between the parties for adjudication by
Labour Court.

2. The background facts leading to the
instant petition are that Ramjag Tripathi,
late husband of the petitioner (hereinafter
referred to as the 'workman'), was a Clerk
on probation in Primary Section of
Hindalco Primary School, Renukoot. The
said Institution is run by a separate
Management,
distinct
from
Hindalco
Industries Limited, which is a company
incorporated under the Indian Companies
Act. By order dated 15.9.1975, the
Management of the Institution informed
him that his services were no more required
since after 20th September, 1975. On
4.1.2003, after a gap of 28 years, the
workman made an application to the
President, Hindalco, alleging that he had
made repeated representations to the
authorities regarding illegal retrenchment
of his service, but no heed was paid. In the
meantime, he had attained the age of
superannuation,
i.e.
60
years
and
consequently, he should be deemed to have
retired. It was also claimed that since his
retrenchment was illegal, therefore, all his
dues be paid, treating him to have retired
on the date of superannuation. The
workman thereafter filed Writ Petition No.
2035 of 2003 before this Court, which was
dismissed by order dated 1.5.2003, holding
that
he
had
alternative
remedy
of
approaching
the
Labour
Court.
The
workman thereafter filed an application
dated
31.5.2003,
alleging
illegal
retrenchment
at
the
hand
of
the
Management. It was admitted in the
application that the retrenchment was made
on 15.9.1975 and there was delay of 27
years
18
days
in
approaching
the
authorities
under
the
U.P.
Industrial
3-5 All. Shanti Devi Tripathi Vs. State of U.P. & Ors.
1907
Disputes Act 1947 (hereinafter referred to
as the 'the Act'), but the said delay was
sought to be explained by alleging that in
the meantime he had been making repeated
written and oral representations to the
Employer to reinstate him in service and
they also kept assuring him of the same.
However, when he could not get any relief
from the Management, he had approached
the authorities. It seems that upon filing of
the said application, a case was registered
before the Conciliation Officer, bearing
C.P. Case No. 14 of 2004. The respondent
company filed objection contending that
the claim made by the workman in his
application was totally false, fabricated and
devoid of correct facts. He had approached
the authorities after 28 years of his alleged
retrenchment. After lapse of such long
time, the Management was not retaining
any record or evidence. The delay was fatal
and accordingly the matter be consigned to
record. In other words, the objection was
that there was no live dispute in existence
in the year 2003 about alleged illegal
retrenchment done in the year 1975.

3. On 3.7.2004, the Conciliation
Officer passed order to the effect that the
delay in approaching the authorities under
the Act is condoned and fixed 17.7.2004
for producing evidence by the parties. The
Company sought to challenge the said
order by filing an appeal before Labour
Commissioner, Kanpur, contending that the
order dated 3.7.2004 condoning delay was
wholly illegal, as there was no live dispute
in existence. It is noteworthy that the
appeal filed by the Management was more
in the shape of representation to higher
authority as under law, no appeal against
such order is contemplated. Thereafter, it
seems that the matter remained pending
before
the
Conciliation
Officer
and
ultimately on 16.9.2009 the Assistant
Labour
Commissioner
(Conciliation
Officer)
vide
letter
dated
16.9.2009
(impugned herein) held that there is no
evidence before him to explain such long
delay of 28 years and in his opinion, the
matter should be consigned to record. The
State
Government
accepted
the
recommendation made by the Conciliation
Officer and passed an order on 8th October
2009, declining to make reference of the
alleged dispute to the Labour Court. The
reason disclosed in the order is gross delay
of 27 years on the part of the workman in
raising the dispute. The petitioner, who is
widow of the deceased workman, filed an
application dated 23.9.2016, once again
making request for reference of the dispute
to the Labour Court. The Deputy Labour
Commissioner, Mirzapur Region, Pipri,
Sonebhadra vide impugned letter dated
15.10.2016 informed the petitioner that
C.P. Case No. 14 of 2004 had been
consigned to record and the request for
reference of dispute was declined long back
and the same was also duly communicated
vide letter dated 8.10.2019 through the
Deputy
Labour
Commissioner.
Consequently, it was not possible to accept
the request contained in the application
dated 23.9.2016.

4. Learned counsel for the petitioner
submitted that the stand taken by the
authorities in declining to make reference
to the Labour Court is not sustainable in
law, inasmuch as there is no limitation
prescribed under the Act for raising the
dispute. It is submitted that expression "at
any time" employed in Section 4K of the
Act is conclusive of the legislative intent.
In support of his submission, he has placed
reliance on a judgment of Supreme Court in
Sapan Kumar Pandit vs. Uttar Pradesh
Electricity Board, (2001) 6 SCC 222. He
further
submitted
that
initially
the
1908 INDIAN LAW REPORTS ALLAHABAD SERIES
Conciliation Officer passed a specific order
condoning the delay and therefore, after
holding the conciliation proceedings for
number of years, it was not open to the
Conciliation
Officer
to
make
recommendation against the workman. It is
also submitted that the State Government
erred in acting upon the recommendation
made by the Conciliation Officer in
declining to make reference.

5. On the other hand, learned counsel for
respondent no. 6 submitted that the Institution,
nor the Committee of Management of the
Institution was made party to the conciliation
proceedings, nor even before this Court and on
this ground alone, the claim now sought to be
agitated ought to be rejected. He further
submitted that there was gross delay on part of
the workman in approaching the authorities
under the Act. In between, there was never any
representation from the workman, nor any such
evidence was filed before the authorities. It is
submitted that the only written representation
received by the Management was dated
4.1.2003, which the workman made after hhe
attained the age of 60 years, praying for release
of his dues. It is further submitted that in the
aforesaid background, the Institution did not
retain record of a workman who was engaged
on probationary basis and whose service was
later dispensed with within a short period. This
is an additional ground for rightly not accepting
the claim of the workman for reference of
dispute to the Labour Court at such distance of
time. He has placed reliance on judgment of
Supreme Court in Prabhakar vs. Joint
Director,
Sericulture
Department
and
another, (2015) 15 SCC 1 and various
judgments of this Court.

6. The facts are not much in dispute. The
workman was working as a Clerk in Primary
Section of Hindalco Primary School, Renukoot.
He was informed by letter dated 15.9.1975 that
his services were no more required since after
20th September, 1975. Although it is the case of
the
workman
that
he
made
several
representations, as well as oral requests to the
Management for his reinstatement, but not a
single written representation, as allegedly made
by him, has been brought on record. The only
representation is dated 4.1.2003, which he made
to the President, Hindalco, alleging that he
was wrongly retrenched from service in the
year 1975 and now since he had attained
the age of superannuation, his dues be paid.
It was followed by filing of Writ Petition
No. 2035 of 2003, resulting in dismissal on
1.5.2003. The workman thereafter moved
application dated 31.5.2003 before the
Assistant Labour Commissioner, raising the
dispute, on basis of which C.P. Case No. 14
of 2004 was registered. It is evidently clear
that the matter was agitated by the
workman by approaching the Management
and then this Hon'ble Court by way of a
writ petition, followed by application
before
Deputy
Labour
Commissioner,
resulting in registration of C.P. Case No. 14
of 2004 for the first time in the year 2003.
During this long 28 years which passed in
between, there is no explanation worth
accepting so as to hold that the workman
had been continuously agitating against his
alleged retrenchment. Moreover, there is
also no evidence to show that during this
period, the Management ever gave any
assurance to him for his reinstatement in
service. Learned counsel for the respondent
rightly pointed out that the workman filed
application dated 4.1.2003 after he attained
60 years of age as he was only interested in
wages and not in working in the Institution.
It seems that for such reason, he maintained
complete silence until he attained the age of
superannuation and then started agitating
the matter. It is also nowhere asserted that
during this period he remained idle or was
not gainfully employed.
3-5 All. Shanti Devi Tripathi Vs. State of U.P. & Ors.
1909

7. In Prabhakar, the Supreme Court
after
considering
various
previous
decisions, summarized the legal position in
paragraph-42 of the Law Report as under: -

"42. On the basis of aforesaid
discussion, we summarise the legal position
as under:

42.1 An industrial dispute has to
be referred by the appropriate Government
for adjudication and the workman cannot
approach the Labour Court or Industrial
Tribunal directly, except in those cases
which are covered by Section 2A of the
Act. Reference is made Under Section 10
of the Act in those cases where the
appropriate Government forms an opinion
that 'any industrial dispute exists or is
apprehended'. The words 'industrial dispute
exists' are of paramount importance unless
there is an existence of an industrial dispute
(or the dispute is apprehended or it is
apprehended such a dispute may arise in
near future), no reference is to be made.
Thus, existence or apprehension of an
industrial dispute is asine qua nonfor
making the reference. No doubt, at the time
of taking a decision whether a reference is
to be made or not, the appropriate
Government is not to go into the merits of
the dispute. Making of reference is only an
administrative function. At the same time,
on the basis of material on record,
satisfaction
of
the
existence
of
the
industrial dispute or the apprehension of an
industrial dispute is necessary. Such
existence/apprehension
of
industrial
dispute,
thus,
becomes
a
condition
precedent, though it will be only subjective
satisfaction based on material on record.
Since, we are not concerned with the
satisfaction dealing with cases where there
is
apprehended
industrial
dispute,
discussion that follows would confine to
existence of an industrial dispute.

42.2 Dispute or difference arises
when one party make a demand and other
party rejects the same. It is held by this
Court in number of cases that before raising
the industrial dispute making of demand is
a necessary pre-condition. In such a
scenario, if the services of a workman are
terminated and he does not make the
demand and/or raise the issue alleging
wrongful
termination
immediately
thereafter or within reasonable time and
raises the same after considerable lapse of
period, whether it can be said that industrial
dispute still exist.

42.3 Since there is no period of
limitation, it gives right to the workman to
raise the dispute even belatedly. However,
if the dispute is raised after a long period, it
has to be seen as to whether such a dispute
still exists? Thus, notwithstanding the fact
that law of limitation does not apply, it is to
be shown by the workman that there is a
disputein praesenti. For this purpose, he has
to demonstrate that even if considerable
period has lapsed and there are laches and
delays, such delay has not resulted into
making the industrial dispute seized to
exist. Therefore, if the workman is able to
give satisfactory explanation for these
laches and delays and demonstrate that the
circumstances discloses that issue is still
alive, delay would not come in his way
because of the reason that law of limitation
has no application. On the other hand, if
because of such delay dispute no longer
remains alive and is to be treated as "dead",
then it would be non-existent dispute which
cannot be referred.

42.4 Take, for example, a case
where the workman issues notice after his
termination, questioning the termination
and demanding reinstatement. He is able to
show that there were discussions from time
to time and the parties were trying to sort
out the matter amicably. Or he is able to
1910 INDIAN LAW REPORTS ALLAHABAD SERIES
show that there were assurances by the
Management to the effect that he would be
taken back in service and because of these
reasons, he did not immediately raise the
dispute
by
approaching
the
labour
authorities seeking reference or did not
invoke the remedy Under Section 2A of the
Act. In such a scenario, it can be treated
that the dispute was live and existing as the
workman never abandoned his right.
However, in this very example, even if the
notice of demand was sent but it did not
evoke any positive response or there was
specific rejection by the Management of his
demand contained in the notice and
thereafter he sleeps over the matter for
number of years, it can be treated that he
accepted the factum of his termination and
rejection thereof by the Management and
acquiesced into the said rejection.

42.5 Take another example. A
workman approaches the Civil Court by
filing a suit against his termination which
was pending for number of years and was
ultimately dismissed on the ground that
Civil Court did not have jurisdiction to
enforce the contract of personal service and
does not grant any reinstatement. At that
stage, when the suit is dismissed or he
withdraws that suit and then involves the
machinery under the Act, it can lead to the
conclusion that dispute is still alive as the
workman had not accepted the termination
but was agitating the same; albeit in a
wrong forum.

42.6 In contrast, in those cases
where there was no agitation by the
workman against his termination and the
dispute is raised belatedly and the delay or
laches remain unexplained, it would be
presumed that he had waived his right or
acquiesced into the act of termination and,
therefore, at the time when the dispute is
raised it had become stale and was not an
'existing dispute'. In such circumstances,
the appropriate Government can refuse to
make reference. In the alternative, the
Labour Court/Industrial Court can also hold
that there is no "industrial dispute" within
the meaning of Section 2(k) of the Act and,
therefore, no relief can be granted."

8. Although it is clear that there is no
limitation prescribed for seeking reference
of a dispute to Labour Court, but it is also a
sine qua non for referring any dispute to
Labour Court that on the date of reference,
industrial dispute should be in existence.
The workman by maintaining complete
silence for 28 years had unequivocally
given up his alleged claim, if any. The
Management was also right in taking a
stand that serious prejudice would be
caused to it in case reference is made at this
distance of time, inasmuch as it had not
been in possession of any record of an
employee who remained in service on
probationary basis for a short period and
who
never
agitated
the
issue
after
dispensation of his services. Even before
this Court, as noted above, no material has
been placed to show that there was any
representation in writing by the workman
to the Management, complaining about his
alleged illegal retrenchment. The alleged
dispute therefore ceased to exist and the
claim sought to be raised by the workman
in the year 2003 was a dead claim, a stale
one, not worthy of reference to the Labour
Court and this Court finds no illegality in
the
stand
taken
by
the
respondent
authorities in declining to refer the matter
to the Labour Court.

9. The proceedings before the
Conciliation Officer are administrative in
nature and are not judicial proceedings. He
only
has
the
power
to
facilitate
reconciliation between the parties. He does
not possess adjudicatory powers. The initial
3-5 All. M/s Shipra Hotels Ltd. Vs. Ghaziabad Development Authority, Ghaziabad
1911
order passed by the Conciliation Officer on
the application of the workman that delay is
condoned and thereafter notice is issued,
calling upon the parties to file their
evidence, was not an order which could
operate as res judicata, so as to prevent the
Conciliation Officer, after the parties had
led evidence, to arrive at the conclusion
that the dispute is not a live one, worthy of
being referred to the Labour Court. Thus,
this Court finds no force in the submission
of learned counsel for the petitioner that
once the Conciliation Officer at initial stage
condoned the delay in approaching him, he
could
not
have
made
an
adverse
recommendation to the State Government
for not referring the dispute to Labour
Court on ground of delay. Even otherwise,
the State Government is not bound by the
recommendation made by the Conciliation
Officer. It is competent to take its own
independent view as to whether on basis of
material brought before it, there exists any
dispute in praesenti, worthy of reference to
the Labour Court and if it comes to the
conclusion that there is no such material, it
is fully competent in declining to make
reference,
as
in
the
instant
case.
Consequently,
this
Courts
finds
no
illegality in the impugned orders to warrant
interference in exercise of writ jurisdiction
under Article 226 of the Constitution.

10. The petition lacks merit and is
dismissed.
----------

(2020)03-05ILR A1911
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.12.2019

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE AJIT KUMAR, J.
WRIT-C No. 70208 of 2009

M/s Shipra Hotels Ltd. ...Petitioner
Versus
Ghaziabad
Development
Authority,
Ghaziabad ...Respondent

Counsel for the Petitioner:
Sri Anurag Khanna, Sri Abhishek Misra, Sri
H.R. Misra, Sri Tarun Agrawal

Counsel for the Respondent:
Sri V.B. Mishra, Sri Ashwani Kumar Mishra,
Sri M.N. Singh, S.C.

A. Civil Law-U.P. Urban Planning and
Development Act, 1973 - Proviso to SubSection (4) of Section 18 - Lease to develop
amusement park over the leased land -
Determination - Right to the lessor of re-entry -
Sufficient Reason - The import of the proviso is
putting a caveat to the main provision in favour
of a lease holder - Sub Section 4 of Section 18
shows that legislative intent of giving right to
the lessor of re-entry upon failure of the lessee
to
make
constructions
as
provided
and
contemplated under the lease agreement - But
that too is when found without sufficient reason,
meaning thereby for not undertaking any action
or performing as per land use under the lease
agreement, one must ensure that it was not for
any 'sufficient reason' to record. (Para 17)
Writ Petition allowed (E-1)
(Delivered by Hon'ble Ramesh Sinha, J.)
&
Hon'ble Ajit Kumar, J.)

1. Heard Sri Anurag Khanna, learned
Senior Advocate assisted by Sri Tarun
Agrawal, learned counsel for the petitioner
and Sri M.C. Chaturvedi, learned Senior
Advocate and Additional Advocate General
assisted by Sri M.N.Singh, learned counsel
for the respondent/ Development Authority.

2. By means of present writ petition
under Article 226 of the Constitution of