# State of U.P. Thru. Director, Printing And Stationary v. Gulrej Ahmad And Another

- **Citation:** (2013) 1 ILRA 208
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-02-05
- **Case number:** Civil Misc. Writ Petition No. 4537 of 2012
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-thru-director-printing-and-stationary-v-gulrej-ahmad-and-another-42498
- **Pages:** 5

## Headnote

Constitution of India, Article 226-award
directing reinstatement with 50 % back
wages-challenged by employer-on ground
no engagement by petitioner/employercertificate by Deputy Director Govt. Press
about working as Engraver-never issued
by
competent
authority-by
evidence
prayed that original record still with
employer-held-employer failed to prove
their stand of written statement-direction
for reinstatement with 50 % back wagesjustified.
1 All] State of U.P. Thru. Director, Printing And Stationary Vs. Gulrej Ahmad And Another
209
Held: Para-14

In the light of the aforesaid, the Court is
of
the
opinion
that
the
petitioner
miserably failed to prove their stand as
adopted in their written statement. On
the other hand, the labour court rightly
came
to
the
conclusion
that
the
respondent workman had worked as an
Engraver in the petitioners' Press from
1991 to 2003 and that he was arbitrarily
removed without complying with the
provision
of
6-N
of
U.P
Industrial
Disputes Act, 1947. The labour court in
the facts and circumstances of the case
was justified in reinstating the workman
with continuity of service and with 50
per cent back wages.

## Text

208 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
proceedings. Consequently, the Court is
of the opinion that the request for
engagement of a Lawyer was rightly
turned down.

31. The decisions cited by the
learned counsel for the petitioner are
distinguishable and are not applicable to
the present set and circumstances of the
case.

32. The Court further finds that the
petitioner did not submit any reply to the
chargesheet and kept on asking for
documents, which were duly supplied.
The Court finds that when the charges has
not been disputed or denied by the
workman, the Disciplinary Authority
could have concluded the matter there and
then but chose to hold an oral inquiry.
The Inquiry Officer proceeded with the
inquiry
and
examined
the
relevant
witnesses and documents after giving full
opportunity to the petitioner. The Court
finds from a perusal of the inquiry
proceedings, which has been annexed to
the counter affidavit that full opportunity
was given to the petitioner to defend
himself and that the principles of natural
justice, as embodied under Article 14 of
the Constitution of India, was fully
complied with. There was no violation of
the principles of audi alteram partem.

33. The Court, from a perusal of the
charge sheet, finds that the charges are not
complicated nor does it involve any
serious questions of law. No doubt the
charges were one of embezzlement and
fraud, which were serious in nature but
nonetheless
the
charges
were
not
complicated which required the assistance
of a Lawyer.

34. In the light of the aforesaid, the
Court is of the opinion that failure to
permit the petitioner to engage a Lawyer
was not violative of the principles of
natural justice in the instant case.

35. In the light of the aforesaid, the
Court does not find any error in the
impugned orders.

36. The writ petition fails and is
dismissed.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.02.2013

BEFORE
THE HON'BLE TARUN AGARWALA,J.

Civil Misc. Writ Petition No. 4537 of 2012

State Of U.P. Thru' Director, Printing and
Stationary

 ...Petitioner
Versus
Gulrej Ahmad And Another ...Respondents

Counsel for the Petitioner:
Arvind Kumar
Addl. C.S.C

Counsel for the Respondents:
Sri Satish Mandhyan
S.C.
Sri Sharad Mandhyan
Sri Manoj Kumar Sharma

Constitution of India, Article 226-award
directing reinstatement with 50 % back
wages-challenged by employer-on ground
no engagement by petitioner/employercertificate by Deputy Director Govt. Press
about working as Engraver-never issued
by
competent
authority-by
evidence
prayed that original record still with
employer-held-employer failed to prove
their stand of written statement-direction
for reinstatement with 50 % back wagesjustified.
1 All] State of U.P. Thru. Director, Printing And Stationary Vs. Gulrej Ahmad And Another
209
Held: Para-14

In the light of the aforesaid, the Court is
of
the
opinion
that
the
petitioner
miserably failed to prove their stand as
adopted in their written statement. On
the other hand, the labour court rightly
came
to
the
conclusion
that
the
respondent workman had worked as an
Engraver in the petitioners' Press from
1991 to 2003 and that he was arbitrarily
removed without complying with the
provision
of
6-N
of
U.P
Industrial
Disputes Act, 1947. The labour court in
the facts and circumstances of the case
was justified in reinstating the workman
with continuity of service and with 50
per cent back wages.

(Delivered by Hon'ble Tarun Agarwala,J.)

1. This is second round of litigation.
The petitioner has challenged the validity
and legality of the award passed by the
labour court directing reinstatement of the
petitioner with 50 percent back wages.

2. The facts leading to the filing of
the writ petition is, that the respondent
workman alleged that he was appointed as
an Engraver in the Government Press at
Allahabad on 10th December, 1991 and
continued to work till 1st of September,
2004. It was alleged that he worked for
almost 13 years without any break in
service and that he was arbitrarily
removed without complying with the
provisions of Section 6N of the U.P.
Industrial
Dispute
Act,
1947.
The
respondents, accordingly prayed that he
was liable to be reinstated with continuity
of service and with full back wages.

3. The petitioner in the written
statement has specifically taken a stand
that the post of Engraver became vacant
and was never filled up and that the
respondent workman in question was
never employed either as a regular
employee or on a muster roll or on daily
wage basis and that the respondent
workman
was
running
a
shop
of
engraving and was doing his private
business and that in exigency of work, the
petitioner gave him work orders, which he
executed it at his shop. However for
certain work, on account of security
reasons, he was allowed to do the said
work in the foundry located inside the
Government Press. The petitioners further
took a stand that the respondent workman
was paid for the work order and that he
was never paid wages as a regular
employee.

4. Initially, the labour court given an
award
holding
that
the
respondent
workman was not entitled to any relief.
The workman, being aggrieved, filed a
writ petition, which was allowed and the
matter was remitted again to the labour
court to decide the matter afresh.

5. The labour court after considering
the material evidence on record, has now
given a specific finding to the effect that
the respondent workman was actually
engaged
as
an
Engraver
by
the
Government Press and that he was
working in that capacity for almost 13
years before he was arbitrarily removed.
The labour court has also given a finding
that the workman had worked for more
than 240 days in a calender year and that
retrenchment
compensation
etc.
as
specified under Section 6N of the U.P.
Industrial Dispute Act, 1947 was not
given nor paid before the respondent
workman was discharged from the service
of the Government Press. The labour
court rejected the stand of the employer,
namely, that he was employed on a
contract basis. The labour court found that
210 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
the photocopies of the work orders, which
were issued to the respondent workman
could not be taken into consideration as it
was not admissible in evidence, since the
original copies were not produced. The
labour court further relied upon a
certificate dated 14th February, 2003
before the Deputy Director indicating that
the respondent workman had worked
from 1991 to 2003 in the foundry of the
Government Press. On these findings, the
labour court held that the order of
termination passed by the employer was
wholly illegal and accordingly directed
the reinstatement with 50 per cent back
wages. The petitioner, being aggrieved by
the said award, has filed the present writ
petition.

6. Heard the learned counsel for the
parties.

7. The learned counsel for the
petitioner has pressed upon the fact that
the evidence filed by the employers were
not considered by the labour court and
that the labour Court, in a very cursory
manner, has rejected the evidence on the
pretext that the original document were
not filed, when in fact, photocopies filed
by the employer was duly proved by a
witness. The learned counsel further
submitted that the Deputy Director had
issued another certificate on 11th January,
2005 denying the issuance of the earlier
certificate of 2003. The learned counsel
submitted that this certificate was never
considered by the labour court.

8. Having heard the learned counsel
for the parties at some length, this Court
finds that the petitioner is not entitled for
any relief. The Court is constrained to
observe
that
the
petitioners
have
completely
failed
in
proving
the
allegations made by them in their
statements
for
the
reasons
stated
hereunder.

9. In the first instance, the Court
finds that the petitioner has categorically
come out with the stand that the
respondent workman was never employed
by them and he was only employed on
work basis as per the work orders issued
to him from time to time. In support of
this stand, the petitioner's filed list 13- B
which included various work orders
issued to the workman. The Court finds
that only photocopies of the work orders
had been filed. A witness has deposed that
the originals are available with the
employer.

10. The law is very clear. Under
Evidence Act, photocopy of the original
document is permissible to be led as
secondary evidence provided the original
document is lost. In the instant case, the
witness has established that the original
document is still with the employers. This
Court fails to understand as to under what
compulsion, the employers were keeping
the original with them and not producing
the same before the labour court as
evidence. It is settled law that photocopies
of a document is not legally admissible in
evidence,
unless
it
is
specifically
contended that the originals are not
available or are lost. Consequently, the
labour court was justified in rejecting the
photocopies of the work orders as not
admissible in evidence.

11. The Court finds that no effort
was made by the employer to produce the
evidence to the extent that payments
pursuant to the work orders were given
and paid to the workman through various
vouchers for which an appropriate receipt
1 All] State of U.P. Thru. Director, Printing And Stationary Vs. Gulrej Ahmad And Another
211
was given by the workman. No effort was
made by the employers to prove the
signature of the workman in the so-called
pre-receipted vouchers or the work orders
given by him. The Court finds that the
employers miserably failed to prove their
stand,
namely,
that
the
workman
respondent was not employed by them
and that he was only given work orders,
which he executed on payment basis. On
the other hand, the Deputy Director in his
evidence has admitted that by various
work orders, the respondent workman was
allowed to work in the foundry. Evidence
has come to the fore that the respondent
workman continued to work over a
considerable period of time in the
foundry.

12. A Government Press is a secured
place, where outsider are not permitted to
enter for security reason except the
workers, who are employed by the
Government Press. The Government
Press admits that the respondent workman
was allowed to execute the work in
foundry raises a presumption that the
petitioner had engaged the respondent as a
workman. This view of the Court is
fortified by the certificate dated 14.2.2003
issued by the Deputy Director of the
Government Press indicating that the
respondent had worked as an Engraver
from 1991 to 2003 and that he was done
various kind of works in the foundry of
the Government Press.

13. The Court finds that no effort
was made by the petitioner to produce the
Deputy Directer before the labour court as
a witness to deny the execution of this
certificate. The Deputy Director did not
have the strength to appear before the
labour court and deny his signatures on
the said certificates. The learned counsel,
however, made a submission that the
Deputy Director had issued another
certificate of 2005 denying the execution
of any certificate issued by him in the
year 2003. The Court is constrained to
observe that this certificate has been
obtained by the petitioner to save their
neck. This certificate has been obtained or
rather procured, which can not be
considered at this stage for the reasons
that the Court finds that this certificate of
2005 was never filed before the labour
court and has been filed for the first time
before this Court in a writ jurisdiction
without seeking liberty to file this
evidence as an additional evidence. The
Court is of the opinion that only the
evidence which was filed before the
labour court could be considered in a writ
jurisdiction.

14. In the light of the aforesaid, the
Court is of the opinion that the petitioner
miserably failed to prove their stand as
adopted in their written statement. On the
other hand, the labour court rightly came
to the conclusion that the respondent
workman had worked as an Engraver in
the petitioners' Press from 1991 to 2003
and that he was arbitrarily removed
without complying with the provision of
6-N of U.P Industrial Disputes Act, 1947.
The labour court in the facts and
circumstances of the case was justified in
reinstating the workman with continuity
of service and with 50 per cent back
wages.

15. The Court does not find error in
the order. The writ petition fails and is
dismissed. The Court finds that pursuant
to an interim order, a sum of Rs. 3,00,000
(Three lacs) was deposited by the
petitioner towards 50 percent of the back
wages. Since the writ petition is being
212 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
dismissed, it would be open to the
respondents workman to withdraw this
amount upon an application being filed
before the Labour Court.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.02.2013

BEFORE
THE HON'BLE SUNIL AMBWANI,J.
THE HON'BLE BHARAT BHUSHAN,J.

Civil Misc. Writ Petition No. 5348 of 2013

Brij Mohan Mishra And Others ...Petitioner
Versus
The State Of U.P. Thru Secy. And Others

 ...Respondents

Counsel for the Petitioner:
Sri Radha Kant Ojha
Sri Ratnakar Upadhyay

Counsel for the Respondents:
C.S.C.
Sri P.C. Pathak

Constitution
of
India,
Article
226demolition
of
constructionencroachment
of
public
pond-after
survey
report-encroachment
established-order
of
demolition
following direction of Hinch Lal Tiwari
Case
passed-petition
on
ground
of
opportunity
or
taking
recourse
of
ejectment
under
section
122-B
of
U.P.Z.A.L.R. Act-held-not available-when
encroachment
established-demolition
and ejectment -proper

Held: Para-14

In this case on the admitted position
that the petitioner has encroached upon
the land recorded as pond, which were
verified on the spot inspection by the
ADM (F & R), Jaunpur on 8.2.2010, such
constructions must be demolished and
the pond restored to the villagers.
Case Law discussed:
AIR 2001 SC 3215; AIR 2011 SC 1123

(Delivered by Hon'ble Sunil Ambwani,J.)

1. We have heard Shri R.K. Ojha,
learned
counsel
appearing
for
the
petitioner. Learned Standing Counsel
appears for the State respondents. Shri
Navin Sinha, Sr. Advocate assisted by
Shri P.C. Pathak appears for respondent
no.5.

2. On a complaint made by Shri
Prem Shanker Mishra, the cousin brother
of the petitioners, proceedings were
initiated against the petitioner for having
illegally encroached on the village pond
situate in Plot No.611/0-348 hects. in
Village Dhania Mau. The Sub Divisional
Magistrate directed the complaint to be
enquired. After taking measurements and
receiving the report an order was passed
by
the
Sub
Divisional
Magistrate,
Badlapur, Jaunpur on 18th January, 2013
directing encroachments made by the
petitioner, on the land recorded as pond to
be removed giving rise to this writ
petition.

3. Learned counsel appearing for the
petitioner submits that the proceedings
have been taken exparte against the
petitioner. No notice was given, nor any
action was initiated under Section 122B
of the UPZA & LR Act, which prescribes
a procedure for eviction from the Gaon
Sabha land including pond. The orders
passed for demolition and eviction will
cause serious civil consequences. It is also
stated that the orders have been passed in
violation of the principles of natural
justice.

4. Shri Navin Sinha on the other
hand submits that the proceedings were