# Shri Nirbhay Mehrotra v. State of U.P. and others

- **Citation:** (2006) 3 ILRA 1147
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-09-06
- **Bench:** Vineet Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shri-nirbhay-mehrotra-v-state-of-u-p-and-others-40760
- **Pages:** 4

## Headnote

Sri S.M.A. Kazmi
Sri V.R. Agrawal
Sri Piyush Bhargava
S.C.

U.P.
Industrial
dispute
1947-Section
2(z)-workman-working on the post of
Deputy Director(finance)-entrusted with
the duty of administration supervising
and
Controlling
all
employees
of
Accounts Department-being member of
Hospital coordination Committee-cannot
be treated a workman.

Held-Para 8

In his evidence, the petitioner failed to
discharge the burden cast upon him to
prove that he comes under the definition
of the workman given under Section 2(z)
of the Act, as no evidence was led by, the
petitioner regarding the nature of duties
performed by him. He has not stated
anywhere
as
to
what
manual,
supervisory, technical or clerical work
was being performed by him so as to
bring him within the ambit of the
definition of workman. In his evidence,
he has throughout stated in the negative
that he did not perform administrative,
1148 INDIAN LAW REPORT ALLAHABAD SERIES [2006
managerial or supervisory duties. No
positive
evidence
of
the
duties
performed by, him has been given by the
petitioner. On the contrary, since the
respondent-Hospital had proved before
the Tribunal that the duties performed
by the petitioner were of allocation of
jobs,
assignment
of
work,
recommendation
leave,
carrying
out
confidential appraisal etc., it is not
understood as to how the petitioner
would
thus
be
covered
under
the
definition of the workman given under
the Act.

## Text

3All] Shivendra Gupta V. The State of U.P. and others 1147
examiner is found at fault, it may take
appropriate action against him including
action of debarring him from being
enlisted in the panel of examiners in the
next sessions and even thereafter. It is
indeed a serious matter and it is expected
that the Board will not show any
unmerited leniency in such matters when
the future and career of a student is at
stake.

6. Since the Court is concerned with
what is happening involving future and
career of a student, it cannot remain a
passive
pronouncer
of
judgment
unconcerned with the end result. In this
view of the matter, it is directed that
enquiry report as may be ordered be taken
to some completion within a specified
period and this Court be apprised to the
result of enquiry. The case be listed for
the limited purpose after three months.

7. In the meantime, ad interim
mandamus
is
issued
commanding
Opposite Parties to issue corrected marksheet to the petitioner within two weeks
from the date of presentation of a certified
copy of this order.

8. List the case on 13.11.2006

Certified copy of this order be issued
to learned counsel for the parties within 5
days on payment of usual charges.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.09.2006

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No. 38515 Of
2002

Shri Nirbhay Mehrotra
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri V.N. Dhavalikar
Sri Shyam Narain
Sri Sudhanshu Narain

Counsel for the Respondents:
Sri S.M.A. Kazmi
Sri V.R. Agrawal
Sri Piyush Bhargava
S.C.

U.P.
Industrial
dispute
1947-Section
2(z)-workman-working on the post of
Deputy Director(finance)-entrusted with
the duty of administration supervising
and
Controlling
all
employees
of
Accounts Department-being member of
Hospital coordination Committee-cannot
be treated a workman.

Held-Para 8

In his evidence, the petitioner failed to
discharge the burden cast upon him to
prove that he comes under the definition
of the workman given under Section 2(z)
of the Act, as no evidence was led by, the
petitioner regarding the nature of duties
performed by him. He has not stated
anywhere
as
to
what
manual,
supervisory, technical or clerical work
was being performed by him so as to
bring him within the ambit of the
definition of workman. In his evidence,
he has throughout stated in the negative
that he did not perform administrative,
1148 INDIAN LAW REPORT ALLAHABAD SERIES [2006
managerial or supervisory duties. No
positive
evidence
of
the
duties
performed by, him has been given by the
petitioner. On the contrary, since the
respondent-Hospital had proved before
the Tribunal that the duties performed
by the petitioner were of allocation of
jobs,
assignment
of
work,
recommendation
leave,
carrying
out
confidential appraisal etc., it is not
understood as to how the petitioner
would
thus
be
covered
under
the
definition of the workman given under
the Act.

(Delivered by Hon'ble Vineet Saran, J.)

1. The petitioner, who was working
as Deputy Director (Finance) in the
establishment of the respondent no. 2,
Kamla Nehru Memorial Hospital, was
dismissed from service vide order dated
9.12.1994. Challenging the said order of
dismissal, the petitioner filed a Civil Suit
no. 7 of 1995 before the Civil Judge,
Allahabad,
which
was
subsequently
dismissed as withdrawn. Thereafter the
petitioner raised an industrial dispute.
Since the matter could not be reconciled,
a reference was made by the State
Government under Section 4 of the U.P.
Industrial Disputes Act, 1947 (for short
"the Act") to the Tribunal, which was
registered as Adjudication Case No. 3 of
1999. The reference was as to whether the
dismissal of the Workman Sri Nirbhay
Mehrotra was proper and legal and, if not,
what relief would he be entitled to? The
Tribunal, thereafter, vide award dated
18.7.2000, held that since Si Mehrotra
could not be termed as a workman under
the definition provided in the Act, hence
there was no valid industrial dispute and
the order of reference made by the State
Government under the Act was without
jurisdiction, and thus not maintainable.
Aggrieved by the said award, the
petitioner has filed this writ petition.

2. I have heard Sri Shyam Narain,
learned
counsel
appearing
for
the
petitioner as well as Sri V.R. Agrawal,
learned Senior Counsel, assisted by Sri
Piyush Bhargava, learned counsel on
behalf of the respondents no. 2 and 3
hospital. Pleadings have been exchanged
and with the consent of the learned
counsel for the parties, this writ is being
disposed of at this stage.

3. Brief facts are that the petitioner
was appointed on 11.3.1985 as Officer on
Special Duty. Thereafter he was promoted
as Accounts Officer and confirmed on
such post. His designation was then
changed to Finance Officer. He was later
promoted as Deputy Director (Finance) in
the Delhi office of the respondentHospital.

4. While the petitioner was working
a Deputy Director (Finance), he was
served with a charge sheet on 22.1.1994.
An enquiry was conducted by, the enquiry
officer, who submitted his report on
29.9.1994. Then, after issuing show cause
notice to the petitioner and considering
his reply, the dismissal order dated
9.12.1994 was passed by the respondentHospital authorities.

For the purpose of deciding the
reference made to it, the Tribunal framed
four issues, namely,

(i) Whether the workman claiming
to be the workman is workman as defined
in the U.P. Industrial Disputes Act? If so,
its effect;
(ii) Whether, kamla Nehru Memorial
Hospital, Allahabad is an industry as
3All] Shri Nirbhay Mehrotra V. State of U.P. and others 1149
defined in the U.P. Industrial Disputes
Act? If so, its effect;
(iii) Whether the domestic enquiry
conducted by the employers was in
accordance with law and fair complying
the rules of natural justice? Its effect; and
(iv) Whether the jurisdiction of the
Industrial Tribunal is barred in view of
the fact that the workman had taken
recourse and had filed civil suit which
was latter withdrawn with permission
from the Civil Court itself.

5. While the Tribunal answered the
second issue in favour of the petitioner
and held that the respondent-Hospital was
an industry as defined under the Act, but
the issue no. 1 and 4, which relate to
whether the petitioner was a workman as
defined under the Act or not, and as to
whether the jurisdiction of the Tribunal
would be barred in view of the earlier
civil suit filed by the petitioner or not,
were both decided against the petitioner.
Since it was held that the petitioner was
not a workman and the Tribunal did not
have jurisdiction, the Tribunal did not
decide the third issue relating to fairness
of the enquiry.

6. Having heard the learned counsel
for the parties and considering the facts
and circumstances of this case, I do not
find any good ground for interference
with the impugned award.

7. The finding on the Issue no. 1 is
justified as it is fully supported by the
evidence on record. From the record, it is
clear that the petitioner was entrusted with
the administrative managerial duties,
which included the submission of annual
confidential reports of employees working
under
him
for
the
purposes
of
confirmation, promotion and crossing of
efficiency bar etc. and extract of some
confidential reports have also been quoted
in the award of the Tribunal. Besides this,
all the employees of the Accounts
Department of the Hospital were under
the petitioner and reporting to him. It has
further been found that the petitioner was
a member of the Hospital coordination
committee, which was the highest body of
the Hospital for managing its affairs. Such
position has, not been denied by the
petitioner also. The Tribunal also held
that Service Rules of the Hospital show
that the Accounts Officer/finance Officer
was to be entrusted with administrative
duties. The petitioner was admittedly
drawing the salary of Rs.6800/- per month
and was even empowered to sanction
purchases up to certain limit.

8. In his evidence, the petitioner
failed to discharge the burden cast upon
him to prove that he comes under the
definition of the workman given under
Section 2(z) of the Act, as no evidence
was led by, the petitioner regarding the
nature of duties performed by him. He has
not stated anywhere as to what manual,
supervisory, technical or clerical work
was being performed by him so as to
bring him within the ambit of the
definition of workman. In his evidence, he
has throughout stated in the negative that
he
did
not
perform
administrative,
managerial or supervisory duties. No
positive evidence of the duties performed
by, him has been given by the petitioner.
On the contrary, since the respondentHospital had proved before the Tribunal
that the duties performed by the petitioner
were of allocation of jobs, assignment of
work, recommendation leave, carrying out
confidential appraisal etc., it is not
understood as to how the petitioner would
1150 INDIAN LAW REPORT ALLAHABAD SERIES [2006
thus be covered under the definition of the
workman given under the Act.

9. Even otherwise, in the plaint filed
by the petitioner in Suit No. 7 of 1995,
which was subsequently withdrawn by
him, it had been admitted by the petitioner
that he was working in the management
cadre. Sri Shyam narain has, however,
submitted that such assertion in the plaint
would not amount to admission on the
part of the petitioner as the suit filed by
him had been withdrawn. Since on the
basis of evidence adduced by the parties,
it has already been proved beyond doubt
that the petitioner was not a workman, I
am thus not inclined to go into the said
question as to whether an admission in the
suit (which was subsequently withdrawn)
would be binding on the petitioner in
proceedings under the Industrial disputes
Act. From the findings recorded by the
Tribunal, it is clear that the petitioner was
performing managerial duties and could
not be treated as a workman for the
purposes of the Act and as such, there was
no valid industrial dispute and the order
of
reference
made
by
the
State
Government under the Act was without
jurisdiction.

10. Accordingly, the award passed
by the Tribunal is confirmed and this writ
petition is dismissed. However, there shall
be no order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.07.2006.

BEFORE
THE HON'BLE R.K. AGARWAL, J
THE HON'BLE BHARATI SAPRU, J

Criminal Misc. Writ Petition no. 15109 of
2002

Chaudhary Shankar Singh
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri O.P. Khare

Counsel for the Respondents:
Sri Saitsh Chaturvedi
Sri A.K. Singh
Sri R.A. Yadav
S.C.

Constitution of India-226-Fixation of
Pension- Petitioner retired as Additional
District Magistrate (J)-on 13.10.63-G.O.
dated 13.04.2000-providing 50% Basic
Pay of revise Pay scale of Rs.10,00015,200-held-entitled
Rs.5000/-
per
month
toward
pension-fixation
of
Rs.4167/- wholly illegal-contrary to the
provision of G.O.-direction issued to pay
interest at the rate of 12% per annum
from September 2000 to till the date of
actual payment-difference of amount so
calculated w.e.f. 01.01.1996 be paid with
10% interest per annum.

Held: Para 7 and 8

Having given our anxious consideration
to the various plea raised by the learned
counsel for the parties, we find that the
Government Order dated 13th April, 2000
specifically provides for payment of at
least 50% of the minimum of the revised
pay scale as on 1st January, 1996 to the
pensioners.
There
is
no
dispute
regarding revised pay scale of Rs.10000-