# State of U.P v. Presiding Officer Labour Court & Anr

- **Citation:** (2024) 8 ILRA 1095
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-20
- **Case number:** Writ - C No. 36298 of 2016
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-presiding-officer-labour-court-anr-52401
- **Pages:** 12

## Headnote

Bushra
Maryam,
Shekhar
Srivastav,
Shekhar Srivastava
A.
Labour
Law
-
Retrenchment/
Termination - U.P. Industrial Disputes Act,
1947 - Section 6-N - It is settled law that
the burden of proof of the existence of a
particular fact lies on the person who
makes a positive averments about its
existence. It is always easier to prove a
positive fact than to prove a negative fact.
Therefore, once the employee shows that
he was not employed, the onus lies on the
employer to specifically plead and prove
that the employee was gainfully employed
and was getting the same or substantially
similar emoluments. (Para 13)

Ordinarily, an employee or workman whose
services are terminated and who is desirous of
getting back wages is required to either plead or
at
least
make
a
statement
before
the
adjudicating authority or the Court of first
instance that he/she was not gainfully employed
or was employed on lesser wages. If the
employer wants to avoid payment of full back
wages, then it has to plead and also lead cogent
evidence to prove that the employee/workman
was gainfully employed and was getting wages
equal to the wages he/she was drawing prior to
the termination of service.

The perusal of finding of facts recorded by the
Labour
Court
on
all
the
issues
fully
demonstrates that respondent No.2/workman
was appointed in the petitioner-department and
worked
up
to
28.9.1998.
And
further
demonstrate that petitioner-department is
Industry
and
there
was
relation
of
employer and employee between the
petitioner and respondent No.2/workman
who has worked for more than 240 days in
the Calendar Year, as such, the services
cannot be terminated without compliance
of the provisions contained under U.P.
Industrial
Disputes
Act.
Respondent
No.2/workman was not in any gainful
employment
after
termination
of
his
service, as such, the Labour Court has rightly
reinstated the petitioner in service and awarded
50% of the backwages from the date of
termination till the date of reinstatement of
service. (Para 13)

Writ petition dismissed. Awarded arrears
of 50% of backwages. (E-4)
1096 INDIAN LAW REPORTS ALLAHABAD SERIES
Precedent followed:

## Text

_Characters 0–39,996 of 40,497. This is a partial read: ask again with offset=39996 for what follows._

8 All. State of U.P. Vs. Presiding Officer Labour Court & Anr.
1095
and ultimately respondent No. 1 has
expired on 3-09-2015, the writ petition is
dismissed with following direction:

(i). Petitioner shall release the
arrears of 50% of back wages of deceasedrespondent No. 1 in favour of respondent
No. 1/ 1 to 1/ 4 from the date of termination
(11-04-1991) to the date of passing of
interim order dated 26-07-2007 within
period of two months from today.

(ii). Petitioner shall release the
arrears
of
full
wages
of
deceasedrespondent No. 1 from the date of passing
of interim order dated 26-07-2007 till the
date of his death (3-09-2015) within period
of 3 months from today.

(iii). In case of non-payment of
arrears of wages in aforementioned period,
the petitioner shall pay interest to the
respondent Nos. 1/1 to1/4 at the rate of 6%
per annum on the aforementioned amount.

18. No order as to costs.
----------
(2024) 8 ILRA 1095
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.08.2024

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ - C No. 36298 of 2016

State of U.P. ...Appellant
Versus
Presiding Officer Labour Court & Anr.
 ...Respondents

Counsel for the Appellant:
C.S.C.

Counsel for the Respondents:
Bushra
Maryam,
Shekhar
Srivastav,
Shekhar Srivastava
A.
Labour
Law
-
Retrenchment/
Termination - U.P. Industrial Disputes Act,
1947 - Section 6-N - It is settled law that
the burden of proof of the existence of a
particular fact lies on the person who
makes a positive averments about its
existence. It is always easier to prove a
positive fact than to prove a negative fact.
Therefore, once the employee shows that
he was not employed, the onus lies on the
employer to specifically plead and prove
that the employee was gainfully employed
and was getting the same or substantially
similar emoluments. (Para 13)

Ordinarily, an employee or workman whose
services are terminated and who is desirous of
getting back wages is required to either plead or
at
least
make
a
statement
before
the
adjudicating authority or the Court of first
instance that he/she was not gainfully employed
or was employed on lesser wages. If the
employer wants to avoid payment of full back
wages, then it has to plead and also lead cogent
evidence to prove that the employee/workman
was gainfully employed and was getting wages
equal to the wages he/she was drawing prior to
the termination of service.

The perusal of finding of facts recorded by the
Labour
Court
on
all
the
issues
fully
demonstrates that respondent No.2/workman
was appointed in the petitioner-department and
worked
up
to
28.9.1998.
And
further
demonstrate that petitioner-department is
Industry
and
there
was
relation
of
employer and employee between the
petitioner and respondent No.2/workman
who has worked for more than 240 days in
the Calendar Year, as such, the services
cannot be terminated without compliance
of the provisions contained under U.P.
Industrial
Disputes
Act.
Respondent
No.2/workman was not in any gainful
employment
after
termination
of
his
service, as such, the Labour Court has rightly
reinstated the petitioner in service and awarded
50% of the backwages from the date of
termination till the date of reinstatement of
service. (Para 13)

Writ petition dismissed. Awarded arrears
of 50% of backwages. (E-4)
1096 INDIAN LAW REPORTS ALLAHABAD SERIES
Precedent followed:

1. Assistant Engineer Rajasthan Development
Corporation Vs Geetam Singh, 2013 STPL 84 SC
(Para 5)

2. Rajasthan State Ganga Nagar as Mills Ltd. Vs
State of Rajasthan & anr., 2004 (8) SCC 161
(Para 5)

3. Himanshu Kumar Vidhyarthi & ors. Vs State of
Bihar & ors., SLP (C) No. 7957 of 1996 (Para 5)

4. The Bangalore Water Supply & Sewerage
Board etc. Vs A. Rajappa & ors. etc. (Para 6)

5. Des Raj & ors. Vs St. of Pun. & ors., AIR 1988
SC (Para 6, 10)

6. St. of U.P., through Executive Engineer,
Nichali Ganga Nahar, Phoolpur, Kanpur Vs The
Labour Court (II), U.P. Kanpur & anr. (Para 6)

7. St. of U.P. Through Executive Engineer,
Tubewell Division-I, Bareilly Vs Presiding Officer,
Labour Court, U.P., Bareilly & anr. (Para 6)

8. St. of U.P. Through Principal Secretary,
Irrigation, Lucknow & ors. Vs Labour Court,
Gorakhpur, U.P. & anr. (Para 6)

9. Eng.-In-Chief Irrigation Dept., Lucknow &
ors. Vs Shiv Nath, 2024 (181) FLR 239 (Para 6)

10. R.M. Yellatti Vs The Assistant Executive
Engineer, (2006) 1 UPLBEC 213 (Para 6)

11. Hiralal & ors. Vs Badkulal & ors., AIR 1953
SC 225 (Vol. 40 C.N. 54) (Para 6)

12. Management of S.B.I. Vs V.M. Mahapurush
(Para 6)

13. Sant Ram Vs Rajinder Lal & ors., AIR 1978
Supreme Court 1601 (Para 6)

14. Sita Ram & ors. Vs Motilal Nehru Farmers
Training Institute, 2008 (117) FLR 1191 (Para 6)

15. Indian Overseas Bank Vs I.O.B. Staff
Canteen Worker's Union & anr., (2000) 4 SCC
245 (Para 6)
16. M/s. Hindustan Tin Works Pvt. Ltd., Vs The
Employees of M/s. Hindustan Tin Works Pvt.
Ltd. & ors., AIR 1979 SC 75 (Para 6)

17.
Harjinder
Singh
Vs
Punjab
State
Warehousing Corporation, 2010 (124) FLR 700
(Para 6)

18. Ddepali Gundu Surwase Vs Kranti Junior
Adhyapak & ors., 2013 (139) FLR 541 (Para 6)

19. Bhuvanesh Kumar Dwivedi Vs M/s. Hindalco
Industries Ltd., 2014 (142) FLR 20 (Para 6)

20. Mackinon Mackenzie & Comp. Ltd. Vs
Mackinnon Employees' Union, 2015 (145) FLR
184 (Para 6)

21. Jayantibhai Raojibhai Patel Vs Municipal
Council, Narkhed & ors., 2019 LawSuit (SC)
1506

22. Armed Forces Ex Officers Multi Services CoOperative Society Ltd. Vs Rashtriya Mazdoor
Sangh (Intuc), 2022 (175) FLR 544 (Para 6)

Present petition challenges award dated
30.10.2015,
published
on
05.4.2016,
passed by the Presiding Officer, Labour
Court, Meerut.

(Delivered by Hon'ble Chandra Kumar
Rai, J.)

1. Heard Mr. Prabhakar Tripathi,
learned Standing Counsel for the petitioner/
State and Ms. Bushra Maryam, learned
counsel assisted by Mr. Baquer Mehdi,
learned counsel for respondent no.2.

2. Brief facts of the case are that
respondent no.2 raised the industrial
dispute which was referred for adjudication
vide reference order dated 16.1.2006 with
respect to termination of service of
respondent no.2/ workman with effect from
29.9.1998. The aforementioned reference
was registered as adjudication case No.
205/ 2006. Respondent no.2/ workman
8 All. State of U.P. Vs. Presiding Officer Labour Court & Anr.
1097
filed his written statement (Paper No. 5-A)
stating that he was working on the post of
Chowkidar in department of petitioner
since 1986 and worked up to 28.9.1998. It
was also stated in the written statement that
with effect from 29.9.1998, the service of
the petitioner was orally terminated without
complying the provisions of Section 6-N of
the U.P. Industrial Disputes Act, 1947. It
was also mentioned in the written statement
that respondent no.2 had worked for more
than 240 days in a calendar year. Petitioner/
employer had also filed his written
statement (Paper No. 9-A) stating that
department is a Government department
and provisions of U.P. Industrial Disputes
Act are not applicable. It was also stated in
the written statement that respondent no.2/
workman had never been employed in the
department and there was no master and
servant relationship between them. It was
also stated that there was no question of
termination of service of respondent no.2
with effect from 29.9.1998 as he never
worked in the department. Respondent
no.2/ workman filed his reply to the written
statement of the petitioner/ employer.
Respondent no.1/ Labour Court considering
the evidence on record decided the dispute
vide award dated 30.10.2015 which was
published on 5.4.2016 by which respondent
no.2/ workman was reinstated in service
and 50% of the backwages was awarded
from the date of termination of service till
the date of reinstatement. Hence this writ
petition on behalf of the petitioner for the
following relief:-

"Issue a writ, order or direction
in the nature of Certiorari quashing the
impugned
award
dated
30.10.2015
published on 05.4.2016 (Annexure No.1 to
the writ petition) passed by the Presiding
Officer,
Labour
Court,
Meerut
(respondent No.1)"
3. This Court vide order dated
9.8.2016 entertained the matter and granted
interim protection to the effect that effect
and operation of the impugned award dated
30.10.2015 shall be kept in abeyance
provided
petitioner
reinstates
the
respondent no.2 within period of one month
from today and continues to pay current
wages as per law. On 4.10.2016, this Court
granted one month further time to learned
counsel for the respondents to file counter
affidavit and extended the interim order.

4. In pursuance of the aforementioned
order dated 9.8.2016 and 4.10.2016, the
parties have exchanged their affidavit.

5. Learned Standing Counsel for
the
State/
petitioner
submitted
that
respondent no.2 had never worked in the
petitioner- department therefore there was
no question for retrenchment/ termination
of service of respondent no.2. He further
submitted that there was no relation of
employer
and
employee
between
Department and respondent no.2, as such,
provisions of the U.P. Industrial Disputes
Act, 1947 are not applicable in the matter.
He further submitted that Madhya Ganga
Canal
Construction
Division
and
Development
is
department
of
State
Government and is not an industry, as such,
the impugned award is wholly illegal. He
further submitted that Labour Court has
placed reliance on the document which
were filed by workman although the same
were not proved by his evidence, as such,
the award is illegal. He further submitted
that impugned award has been passed in
violation of principle of natural justice. He
further submitted that Labour Court has
shifted the burden of proof upon the
petitioner to prove that respondent no.2/
workman is not an employee of the
petitioner. He further submitted that no
1098 INDIAN LAW REPORTS ALLAHABAD SERIES
adverse inference can be drawn against the
employer on his failure to produce the
documents in his possession. He submitted
that Labour Court relying on the question
of 240 days continousworking has passed
the impugned award recording finding that
there is violation of Section 6-N of the
Industrial Disputes Act which is not in
accordance with law. He further submitted
that in any case, the award for 50% of the
back wages to the respondent no.2/
workman is against the ratio of law laid
down by Hon'ble Apex Court in the case of
Assistant
Engineer
Rajasthan
Development Corporation Vs. Geetam
Singh 2013 STPL 84 SC. He further
submitted that petitioner- Department is a
Government
Department,
as
such,
the
reinstatement of the workman is not proper
rather in any case, compensation can be
awarded in favour of respondent no.2/
workman. He further placed reliance upon the
judgement of Hon'ble Apex Court reported in
2004 (8) SCC 161 Rajasthan State Ganga
Nagar as Mills Ltd. Vs. State of Rajasthan
and Another in support of his argument. He
further placed another judgement of Hon'ble
Apex Court dated 26.3.1997 passed in SLP
(C) No. 7957 of 1996 Himanshu Kumar
Vidhyarthi and Others Vs. State of Bihar and
Others in order to demonstrate that department
of the Government cannot be treated to be
industry when appointment are regulated by
the statutory rules. He finally submitted that
writ petition be allowed and impugned award
be set aside.

6. On the other hand, Ms. Bushra
Maryan assisted by Mr. Baquer Mehdi,
learned
counsel
for
respondent
no.2
submitted that respondent no.2/ workman
was working as chowkidar in the petitoner-
department since 1986 and worked up to
28.9.1998. She further submitted that Labour
Court has rightly decided the dispute
reinstating the petitioner in service with 50%
of the backwages. She further submitted that
petitioner/ Irrigation Department is an industry,
as such, there is no illegality in the impugned
award. She further submitted that respondent
no.2/ workman have filed an application before
the Labour Court for summoning certain
documents from the petitioner- Department but
the same were not produced by the petitioner-
Department accordingly Labour Court has
rightly drawn the adverse inference against the
petitioner- Department. She further submitted
that Labour Court has summoned the
attendance register and payment register from
the petitioner- Department which they failed to
produce. She submitted that order sheet before
the Labour Court was signed by respondent
no.2/ workman as well as employer, as such,
it cannot be argued that impugned award has
been passed in violation of principles of natural
justice. She further submitted that Labour Court
has no power to review the award passed on
merit hence the review application filed by
petitioner- Department was not maintainable, as
such, the same was rightly rejected by the
Labour Court. She submitted that issues framed
by Labour Court has rightly been decided in
favour of respondent no.2/ workman on the
basis of oral and documentary evidences
adduced by the respondent no.2/ workman. She
placed three compilation the judgement of
Hon'ble Apex Court as well as of this Court on
the point as to whether the Irrigation
Department is an industry or not, as to whether
the adverse inference will be withdrawn for
non-production of material documents as well
as on the point of awarding backwages which
are as under:-

i). Whether Irrigation department
is an industry or not ?

 1. The Bangalore Water Supply
& Sewerage Board etc. v/s A. Rajappa and
others etc.
8 All. State of U.P. Vs. Presiding Officer Labour Court & Anr.
1099

2. Des Raj and others v/s State of
Punjab and others

3.
State
of
U.P.,
through
Executive
Engineer,
Nichali
Ganga
Nahar, Phoolpur, Kanpur v/s The Labour
Court (II), U.P. Kanpur and another

4.
State
of
U.P.
Through
Executive Engineer, Tubewell Division-I,
Bareilly v/s Presiding Officer, Labour
Court, U.P., Bareilly and another

5.
State
of
U.P.
Through
Principal Secretary, Irrigation, Lucknow
and others v/s Labour Court, Gorakhpur,
U.P. and another

6.
Eng.-In-Chief
Irrigation
Dept., Lucknow and others v/s Shiv Nath"

ii). Whether adverse inference
will be withdrawn for non-production of
documents ?

"i). [(2006) 1 UPLBEC 213]
R.M. Yellatti v/s The Assistant Executive
Engineer
 ii). (AIR 1953 Sup. Court 225
(Vol. 40 C.N. 54) Hiralal and others v/s
Badkulal and others
iii) Management of State
Bank
of
India
v/s
V.M.
Mahapurush

iv). AIR 1978 Supreme Court
1601 ( Sant Ram v/s Rajinder Lal and
others

v). [2008 (117) FLR 1191] Sita
Ram and others v/s Motilal Nehru
Farmers Training Institute

vi). [(2000) 4 SCC 245] Indian
Overseas Bank v/s I.O.B. Staff Canteen
Worker?s Union and another"

iii) Grant of backwages in the
case of reinstatement of workman ?

1.AIR
1979
SC
75
(M/s.
Hindustan Tin Works Pvt. Ltd., v/s The
Employees of M/s. Hindustan Tin Works
Pvt. Ltd. And others )

2.
[2010
(124)
FLR
700]
Harjinder
Singh
v/s
Punjab
State
Warehousing Corporation

3. [2013 (139) FLR 541] Ddepali
Gundu
Surwase
v/s
Kranti
Junior
Adhyapak and others

4.
[2014
(142)
FLR
20]
Bhuvanesh Kumar Dwivedi v/s M/s.
Hindalco Industries Ltd.

5.
[2015
(145)
FLR
184]
Mackinon Mackenzie & Company Ltd. v/s
Mackinnon Employees? Union

6.[2019
LawSuit(SC)
1506]
Jayantibhai Raojibhai Patel v/s Municipal
Council, Narkhed & Ors.

7. [2022 (175) FLR 544] Armed
Forces Ex Officers Multi Services CoOperative Society Ltd. v/s Rashtriya
Mazdoor Sangh (Intuc)

7. I have considered the arguments
advanced by learned counsel for the parties
and perused the records.

8. There is no dispute about the
fact that industrial dispute raised by
respondent
No.2
was
referred
for
adjudication vide order dated 16.1.2006
with respect to termination of service of
respondent No.2 w.e.f. 29.9.1998. There is
also no dispute about the fact that Labour
Court
vide
impugned
award
dated
30.10.2015 as published on 5.4.2016
reinstated the respondent No.2 with 50% of
the backwages from the date of termination
till the date of reinstatement in service.

9. The point of determination
which are involved in the writ petition are
as follows :-

 i) Whether irrigation department
is Industry or not ?
1100 INDIAN LAW REPORTS ALLAHABAD SERIES

ii) Whether respondent No.2/
workman was appointed on the post of
Chowkidar in the petitioner department and
worked for more than 240 days in a
calendar year ?
 iii)
Whether
respondent
No.2/workman
was
in
employment
anywhere else during the period of
termination to the date of reinstatement ?

iv) To what relief respondent
No.2/Workman will be entitled ?

10. In order to decide the point of
determination No. i) as to whether the
irrigation department is industry or not, the
perusal of ratio of law laid down by the
Hon'ble Apex Court as well as by this
Court which has been cited by learned
counsel for respondent No.2 are relevant.

 The perusal of paragraph Nos.21,
22, 23, 24 & 25 of the judgment rendered
in
Engineer-in-Chief
Irrigation
Department, Lucknow and Others vs. Shiv
Nath; 2024 (181) FLR 239 will be relevant
which are as under :-

"21.
Further,
Hon'ble
the
Supreme Court in the case of Des Raj Etc.
Vs. State of Punjab and others reported in
MANU/SC/0124/1988MANU/SC/0124/19
88 : AIR 1988 SC had considered the tests
laid down in various earlier judgments of
the Apex Court itself, culminating in the
judgment in Bangalore Water Supply and
Sewerage Board Vs. A. Rajappa and
others,
reported
in
MANU/SC/0257/1978MANU/SC/0257/19
78 : 1978:INSC:41 : 1978(2) SCC 213 and
thereafter had arrived at a conclusion that
the Irrigation Department falls within the
definition of Industry within the meaning
of Section 2(j) of the I.D. Act. It was held
that the view taken down in Des Raj's case
was the better in point of law and hence it
is the view in Des Raj's case which was
directed to be followed. Once it was so
held and also that the work of the
Irrigation Department of the State of
Punjab and the material placed before the
Supreme Court including the written
submissions filed on behalf of the
concerned petitioners that the irrigation
department of the State of Maharashtra
was discharging the same or similar
functions as the Irrigation Department of
the State of Punjab, it was held that the
projects of the Irrigation Department or
work connected with that of the State of
Maharashtra, on the same tests as applied
by the Apex Court in Des Raj's case would
fall within the definition of an industry for
the purpose of Section 2(j) of the I.D. Act.

22. The Hon'ble Supreme Court
in the case of Executive Engineer, State of
Karnataka Vs. K. Somasetty had relied
upon the case of Union of India Vs. Jai
Narain
Singh,
MANU/SC/1530/1995MANU/SC/1530/19
95 : (1995) Supp 4 672, to hold that
Irrigation
Department
is
not
an
"Industry". No reasons were ascribed for
coming to the said conclusion, as has also
observed by the Bombay High Court in the
case of Special Land Acquisition Officer
Vs.
Municipal
Corporation,
MANU/
MH/0304/ 1988MANU/ MH/0304/1988 :
AIR 1988 Bom 9 and relied upon the case
of Des Raj. This Court is in agreement
with the said observations on this count
and hence hold that the Irrigation
Department is an "Industry" within the
meaning of Section 2(f) of the U.P.
Industrial Disputes Act, 1947.
 23.
It
is
noticed
that
undisputedly, the workmen has worked
along
with
petitioner
from
from
15.07.1986 to 31.12.1991 and according to
the muster roll produced by him before the
Industrial Tribunal, he had worked for
332 days in 1991. There is no denial of the
8 All. State of U.P. Vs. Presiding Officer Labour Court & Anr.
1101
fact that the provisions of Section 6(N) of
Industrial Disputes Act were not complied
with by the petitioner inasmuch as neither
notice was given to him nor salary in lieu
of notice and consequently there was
gross violation of provisions of Section
6(N).

24. In view of above discussions,
the contention of the State to the effect
that Irrigation Department does not fall
within the definition of "Industry" or that
provisions of Act of 1947 are not
applicable, does not have any force and is
hereby rejected. Even, the Labour Court,
in the impugned award has also given the
same interpretation after relying upon the
judgments in the case of Des Raj and etc.
(supra) and other authorities. I do not find
any error in the view taken by Tribunal
necessitating interference by this Court
under Article 227 of the Constitution of
India.
 25. The writ petition is bereft of
merits and is accordingly dismissed."

The Labour Court has also
decided this issue holding that Irrigation
Department is an industry.

Considering the aforementioned
facts and circumstances, the point of
determination No.1 is answered that
Irrigation Department is an industry.

11. In order to consider the point of
determination No. ii), the perusal of finding
of facts recorded by the Labour Court while
passing the impugned award will be
relevant which is as under :-

"समक्ष्‌ :्‌ पीठासीन्‌ अचधकारी, श्रम्‌ न्यायालय,
उत्तर्‌ प्रदेश, मेरठ।

उपण्स्र्थत

श्री्‌ विजेन्र्‌ पाल्‌ भसंह्‌ .्‌ पीठासीन्‌ अचधकारी
अभभननर्गय्‌ िाद्‌ संख्या:्‌ 205/2006

कमगकार्‌ की्‌ ओर्‌ से्‌ 2011 LLR 1079
(S.C.) Bhilwara Dugdh Utpadak Sahakari S.
Ltd. Vs Vinod Kumar Sharma Dead by LRs &
Ors. की्‌ व्यिस्र्था्‌ प्रस्तुत्‌ की्‌ ण्जसमें्‌ कहा्‌ र्या्‌
है्‌
कक्‌
श्रम्‌
न्यायालय्‌
से्‌
सम्बण्न्धत्‌
ननयम्‌
कमगकारों्‌ की्‌ सुरक्षा्‌ के्‌ भलए्‌ बनाये्‌ र्ये्‌ है्‌ तर्था्‌
कमगकार्‌ बारर्ेननंर््‌ करने्‌ की्‌ ण्स्र्थनत्‌ में्‌ नहीं्‌ है्‌
तर्था्‌ यह्‌ कहा्‌ र्या्‌ कक्‌ सेिायोजकों्‌ दिारा्‌ ऐसे्‌
बहुत्‌ तरीके्‌ अपनाये्‌ र्ये्‌ है्‌ ण्जससे्‌ की्‌ कमगकार्‌
को्‌ उनके्‌ अचधकारों्‌ से्‌ िंचित्‌ ककया्‌ जा्‌ सके्‌
और्‌ यह्‌ कहा्‌ जा्‌ सके्‌ कक्‌ सम्बण्न्धत्‌ श्रभमक्‌
उनके्‌ यहां्‌ कायगरत्‌ कमगकार्‌ नहीं्‌ है्‌ बण्मक्‌ यह्‌
ककसी्‌ अन्य्‌ का्‌ कमगिारी्‌ है्‌ तर्था्‌ दैननक्‌ िेतन्‌
भोर्ी्‌
अर्थिा्‌
छोटे्‌
समय्‌
के्‌
भलए्‌
कायगरत्‌
कैजुअल्‌
कमगकार्‌
है्‌
जबकक्‌
िह्‌
िास्ति्‌
में्‌
सेिायोजकों्‌ के्‌ यहां्‌ ननयभमत्‌ कमगिारी्‌ के्‌ रूप्‌
में्‌
काम्‌
कर्‌
रहा्‌
है्‌
और्‌
माननीय्‌
उछितम्‌
न्यायालय्‌ दिारा्‌ ऐसी्‌ व्यिस्र्था्‌ को्‌ रोकने्‌ का्‌
आदेश्‌ ददया्‌ ण्जससे्‌ कक्‌ उनका्‌ शौषर््‌ रोका्‌ जा्‌
सके्‌ तर्था्‌ यह्‌ व्यिस्र्था्‌ यहां्‌ पूर्ग्‌ रूप्‌ से्‌ लार्ू्‌
होती्‌ है्‌ क्योकक्‌ सेिायोजक्‌ यह्‌ कहकर्‌ आये्‌ है्‌
कक्‌
उनके्‌
यहां्‌
पी०के०्‌
एन्टर्‌
प्राईजेज्‌
के्‌
माध्यम्‌ से्‌ राजू्‌ नाम्‌ का्‌ व्यण्क्त्‌ कायगरत्‌ र्था्‌
परन्तु्‌ िह्‌ इस्‌ बात्‌ को्‌ भसदध्‌ नहीं्‌ कर्‌ पाये्‌
और्‌ पी०के०्‌ एन्टर्‌ प्राईजेज्‌ के्‌ नाम्‌ से्‌ कायगरत्‌
राजू्‌ का्‌ नाम्‌ भी्‌ उनकी्‌ भलस्ट्‌ में्‌ अंककत्‌ नहीं्‌
है्‌ और्‌ ऐसी्‌ दशा्‌ में्‌ यही्‌ माना्‌ जायेर्ा्‌ कक्‌
सेिायोजकों्‌ दिारा्‌ कमगकार्‌ को्‌ उनके्‌ विचधक्‌
अचधकारों्‌
से्‌
िंचित्‌
रखने्‌
के्‌
भलए्‌
विभभन्न्‌
तरीके्‌ अपनाये्‌ र्ये्‌ है्‌ तर्था्‌ यह्‌ ितगमान्‌ केस्‌ में्‌
भी्‌
कमगकार्‌
दिारा्‌
ररजरिेशन्‌
ण्स्लप्‌
िाजग्‌
भलस्ट, सामान्‌
मंर्ाने्‌
की्‌
भलस्ट्‌
आदद्‌
प्रपि्‌
दाखखल्‌
ककये्‌
र्ये्‌
है्‌
ण्जनपर्‌
श्री्‌
रमाकान्त्‌
1102 INDIAN LAW REPORTS ALLAHABAD SERIES
रस्तोर्ी्‌ के्‌ हस्ताक्षर्‌ बताये्‌ है्‌ और्‌ उन्‌ पेपरों्‌
को्‌ भसदध्‌ ककया्‌ र्या्‌ है्‌ तर्था्‌ श्री्‌ पी०के०्‌ भसंघल्‌
दिारा्‌
यह्‌
बात्‌
स्िीकार्‌
की्‌
र्ई्‌
है्‌
कक्‌
सम्बण्न्धत्‌ कमगकार्‌ उनके्‌ मकान्‌ में्‌ रहा्‌ लेककन्‌
यह्‌ अनाचधकृत्‌ रूप्‌ से्‌ मकान्‌ पर्‌ कात्रबज्‌ र्था्‌
लेककन्‌ यह्‌ स्िीकार्‌ ककया्‌ कक्‌ उन्होंने्‌ ननष्कासन्‌
का्‌ बाद्‌ दायर्‌ न्‌ ककया्‌ जबकक्‌ इस्‌ साक्षी्‌ का्‌
यह्‌
कर्थन्‌
है्‌
अनाचधकृत्‌
व्यण्क्त्‌
के्‌
विरूदध्‌
केस्‌ दजग्‌ कराते्‌ है्‌ और्‌ यह्‌ सब्‌ तथ्य्‌ है्‌ कक्‌
इस्‌ बात्‌ को्‌ प्रदगभशगत्‌ करते्‌ है्‌ कक्‌ सम्बण्न्धत्‌
कमगकार्‌ सेिायोजकों्‌ के्‌ यहां्‌ कायगरत्‌ र्था्‌ और्‌
विभार््‌ दिारा्‌ जानबूझ्‌ कर्‌ कार्ज्‌ दाखखल्‌ नहीं्‌
ककये्‌ तर्था्‌ िाजग्‌ भलस्ट्‌ अिर्‌ अभभयन्ता्‌ ि्‌ दूसरे्‌
िौकीदार्‌ रामकुमार्‌ के्‌ हस्ताक्षर्‌ िब्लू०िब्लू०-1्‌
श्री्‌ राजकुमार्‌ उफग्‌
राजू्‌ दिारा्‌ बताये्‌ र्ये्‌ है्‌
परन्तु्‌
इन्‌
दोनों्‌
साक्षीर्र्ों्‌
की्‌
सेिायोजकों्‌
दिारा्‌
परीक्षक्षत्‌
नहीं्‌
ककया्‌
और्‌
ऐसी्‌
पररण्स्र्थनतयों्‌ में्‌ यह्‌ ही्‌ माना्‌ जायेर्ा्‌ कक्‌ उन्‌
दोनों्‌ के्‌ हस्ताक्षर्‌ इन्‌ पेपरों्‌ पर्‌ मौजूद्‌ है्‌ केिल्‌
एिभमशन्‌ से्‌ बिने्‌ के्‌ भलए्‌ उन्हे्‌ सेिायोजकों्‌
दिारा्‌ उन्हें्‌ प्रस्तुत्‌ नहीं्‌ ककया्‌ र्या्‌ तर्था्‌ केस्‌
की्‌
पररण्स्र्थनतयों्‌
के्‌
दहसाब्‌
से्‌
यही्‌
ननष्कषग्‌
ननकलता्‌ है्‌ कक्‌ सेिायोजक्‌ ि्‌ राजकुमार्‌ उफग्‌
राजू्‌
के्‌
बीि्‌
माभलक्‌
ि्‌
नौकर्‌
का्‌
सम्बन्ध्‌
स्र्थावपत्‌ है्‌ और्‌ िाद्‌ त्रबन्दु्‌ तद्‌नुसार्‌ ननर्ीत्‌
ककया्‌ जाता्‌ है।
----------------------------------------------------
----------------------------------------------------
----------------

उक्त्‌ कार्जात्‌ सेिायोजकों्‌ पर्‌ र्थे्‌ जो्‌
उसने्‌
प्रस्तुत्‌
नहीं्‌
ककए्‌
तब्‌
उसके्‌
विरुदध्‌
ननष्कषग्‌ ननकाला्‌ जाएला।

इस्‌ प्रकार्‌ उपरोक्त्‌ साक्ष्य्‌ पररण्स्र्थनत्‌
ि्‌ विचध्‌ व्यिस्र्थाओं्‌ से्‌ स्पष्ट्‌ है्‌ कक्‌ कमगकार्‌ ने्‌
सेिायोजकों्‌ के्‌ यहां्‌ सेिा्‌ समाण्पत्‌ से्‌ से्‌ पूिग्‌
लर्भर््‌ 11-12 िषग्‌ कायग्‌ ककया्‌ और्‌ सेिायोजकों्‌
दिारा्‌
हाजरी्‌
ि्‌
भुर्तान्‌
रण्जस्टर्‌
होते्‌
हुए्‌
ररबटल्‌ में्‌ दाखखल्‌ नहीं्‌ ककया्‌ और्‌ इस्‌ प्रकार्‌
सेिायोजकों्‌ के्‌ विरुदध्‌ ननष्कषग्‌ ननकला्‌ जायेर्ा्‌
और्‌ यही्‌ माना्‌ जायेर्ा्‌ कक्‌ सम्बण्न्धत्‌ कमगकार्‌
सेिायोजकों्‌ के्‌ यहां्‌ 240 ददन्‌ से्‌ अचधक्‌ सेिा्‌
समानत्‌ से्‌ पूिग्‌ से्‌ कायग्‌ कर्‌ रहा्‌ और्‌ बाद्‌ त्रबन्दु्‌
तदनुसार्‌ ननर्ीत्‌ ककया्‌ जाता्‌ है।"

The perusal of finding of fact
recorded by Labour Court as to whether
respondent No.2/workman was appointed
in the petitioner department and worked for
more than 240 days in Calendar Year is
fully
proved.
Accordingly,
point
of
determination No. ii) is answered in favour
of respondent No.2 that he was appointed
in the petitioner - department and worked
for more than 240 days in a Calendar Year.

12. In order to consider the point of
determination No.iii), the perusal of finding
of fact recorded by the Labour Court will
be also relevant which is as under : -

िाद्‌ त्रबन्दु्‌ सं0 3

इस्‌
प्रकरर््‌
में्‌
सम्बण्न्धत्‌
कमगकार्‌
की्‌ ओर्‌ से्‌ यह्‌ तकग्‌
ददया्‌ र्या्‌ कक्‌ िह्‌ सेिा्‌
समाण्पत्‌ के्‌ बाद्‌ से्‌ आज्‌ तक्‌ बेरोजर्ार्‌ है्‌ और्‌
उसने्‌ अपने्‌ को्‌ सेिा्‌ में्‌ रखने्‌ के्‌ भलए्‌ काफी्‌
प्रयास्‌
ककये्‌
लेककन्‌
उसे्‌
नौकरी्‌
नहीं्‌
भमली्‌
सेिायोजकों्‌ की्‌ ओर्‌ से्‌ भलखखत्‌ कर्थन्‌ में्‌ इस्‌
तथ्य्‌ का्‌ प्रनतकार्‌ नहीं्‌ ककया्‌ र्या्‌ तर्था्‌ प्रकरर््‌
में्‌ सम्बण्न्धत्‌ कमगकार्‌ राजकुमार्‌ का्‌ बयान्‌ 23सी०्‌ अंककत्‌ ककया्‌ र्या्‌ तर्था्‌ उसने्‌ अपने्‌ बयान्‌
में्‌ कहा्‌ है्‌ कक्‌ मैं्‌ सेिा्‌ समाण्पत्‌ की्‌ नतचर्थ्‌ से्‌
आजतक्‌ बेरोजर्ार्‌ हूाँ्‌ और्‌ मेने्‌ नौकरी्‌ ढूंढने्‌ की्‌
कोभशश्‌ की्‌ लेककन्‌ मुझे्‌ नौकरी्‌ नहीं्‌ भमली्‌ तर्था्‌
8 All. State of U.P. Vs. Presiding Officer Labour Court & Anr.
1103
प्रनतपरीक्षर््‌ में्‌ यह्‌ कहा्‌ कक्‌ मेरे्‌ घर्‌ का्‌ खिग्‌
सभी्‌ भाई्‌ भमलकर्‌ िलाते्‌ है्‌ तर्था्‌ अन्य्‌ कोई्‌
बात्‌ सेिायोजकों्‌ की्‌ ओर्‌ से्‌ इस्‌ बारे्‌ में्‌ नहीं्‌
पूछी्‌
तर्था्‌
ऐसी्‌
पररस्र्थनतयों्‌
में्‌
सम्बण्न्धत्‌
कमगकार्‌ ने्‌ सेिा्‌ समाण्पत्‌ के्‌ बाद्‌ से्‌ बेरोजर्ार्‌
रहने्‌ और्‌ अन्य्‌ कोई्‌ कायग्‌ न्‌ भमल्‌ पाने्‌ के्‌ बारे्‌
में्‌ साक्ष्य्‌ ददया्‌ है्‌ और्‌ इस्‌ बारे्‌ में्‌ आिकयक्‌
तत्ि्‌
अभभििनों्‌
में्‌
भी्‌
ककये्‌
है।्‌
लेककन्‌
सेिायोजकों्‌ की्‌ ओर्‌ से्‌ इस्‌ बारे्‌ में्‌ कोई्‌ साक्ष्य्‌
नहीं्‌
ददया्‌
र्या्‌
तर्था्‌
यह्‌
सेिायोजकों्‌
की्‌
ण्जम्मेदारी्‌ र्थी्‌ कक्‌ उस्‌ समय्‌ जबकक्‌ कमगकार्‌ ने्‌
अपने्‌ कर्थन्‌ में्‌ यह्‌ तथ्य्‌ अंककत्‌ ककया्‌ है्‌ कक्‌
िह्‌ सेिा्‌ समाण्पत्‌ के्‌ बाद्‌ से्‌ बेरोजर्ार्‌ है्‌ तब्‌
यह्‌ सेिायोजकों्‌ की्‌ ण्जम्मेदारी्‌ र्थी्‌ कक्‌ िह्‌ इस्‌
बारे्‌
में्‌
साक्ष्य्‌
प्रस्तुत्‌
करे्‌
कक्‌
सम्बण्न्धत्‌
कमगकार्‌
सेिा्‌
समाण्पत्‌
के्‌
बाद्‌
से्‌
लाभप्रद्‌
ननयोजन्‌
है्‌
तर्था्‌
यह्‌
सेिायोजकों्‌
की्‌
ही्‌
ण्जम्मेदारी्‌
है्‌
कक्‌
इस्‌
बारे्‌
में्‌
अपना्‌
साक्ष्य्‌
प्रस्तुत्‌ करे्‌ कक्‌ कमगकार्‌ सेिा्‌ समाण्पत्‌ के्‌ बाद्‌
से्‌
लाभप्रद्‌
ननयोजन्‌ में्‌
है्‌
जैसाकक्‌ माननीय्‌
उछितम्‌
न्यायालय्‌
ने्‌
अपनी्‌
व्यिस्र्था्‌
Bhuvnesh Kumar Dwivedi Vs M/s Hindalco
Industries Ltd. 2014 L.I.C. 2643 की्‌ व्यिस्र्था्‌
में्‌ ददया्‌ है्‌ और्‌ सेिायोजक्‌ इस्‌ तथ्य्‌ को्‌ भसदध्‌
नहीं्‌
कर्‌
पाये्‌
और्‌
िाद्‌
त्रबन्दु्‌
तदनुसार्‌
अभभननर्ीत्‌
ककया्‌
जाता्‌
है्‌
और्‌
यही्‌
माना्‌
जायेर्ा्‌ कक्‌ कमगकार्‌ सेिा्‌ समाण्पत्‌ के्‌ बाद्‌ से्‌
लाभप्रद्‌ ननयोजन्‌ में्‌ नहीं्‌ है।"

The
perusal
of
the
finding
recorded by the Labour Court, as quoted
above, fully demonstrate that respondent
No.2/workman was not in any gainful
employment from the date of termination
till the date of reinstatement. Accordingly
the point of determination No.iii) is
answered that respondent No.2/workman
was not in any gainful employment during
the period of termination of service till the
reinstatement.

13. In order to consider the point
of determination No.iv), the perusal of
finding of facts recorded by the Labour
Court on all the issues fully demonstrates
that
respondent
No.2/workman
was
appointed in the petitioner-department and
worked up to 28.9.1998. The perusal of the
finding of fact further demonstrate that
petitioner-department is Industry and there
was relation of employer and employee
between the petitioner and respondent
No.2/workman who has worked for more
than 240 days in the Calendar Year, as
such, the services cannot be terminated
without compliance of the provisions
contained under U.P. Industrial Disputes
Act.
The
finding
of
fact
further
demonstrates
that
respondent
No.2/workman was not in any gainful
employment after termination of his
service, as such, the Labour Court has
rightly reinstated the petitioner in service
and awarded 50% of the backwages from
the date of termination till the date of
reinstatement of service.

On the point of awarding the
backwages, the ratio of law laid down by
Hon'ble Supreme Court in the case of
Deepali Gundu Surwase (Supra) as cited
by
learned
counsel
for
respondent
No.2/workman will be relevant for perusal
which is as under :-

"33. The propositions which can
be culled out from the aforementioned
judgments are:

i)
In
cases
of
wrongful
termination of service, reinstatement with
continuity of service and back wages is the
normal rule.
1104 INDIAN LAW REPORTS ALLAHABAD SERIES

ii) The aforesaid rule is subject
to the rider that while deciding the issue of
back wages, the adjudicating authority or
the Court may take into consideration the
length
of
service
of
the
employee/workman,
the
nature
of
misconduct, if any, found proved against
the employee/workman, the financial
condition of the employer and similar
other factors.
 iii) Ordinarily, an employee or
workman whose services are terminated
and who is desirous of getting back wages
is required to either plead or at least make
a statement before the adjudicating
authority or the Court of first instance
that he/she was not gainfully employed or
was employed on lesser wages. If the
employer wants to avoid payment of full
back wages, then it has to plead and also
lead cogent evidence to prove that the
employee/workman
was
gainfully
employed and was getting wages equal to
the wages he/she was drawing prior to the
termination of service. This is so because
it is settled law that the burden of proof of
the existence of a particular fact lies on
the
person
who
makes
a
positive
averments about its existence. It is always
easier to prove a positive fact than to
prove a negative fact. Therefore, once the
employee shows that he was not employed,
the onus lies on the employer to
specifically plead and prove that the
employee was gainfully employed and was
getting the same or substantially similar
emoluments.

iv) The cases in which the
Labour
Court/Industrial
Tribunal
exercises power under Section 11-A of the
Industrial Disputes Act, 1947 and finds
that even though the enquiry held against
the employee/workman is consistent with
the rules of natural justice and / or
certified standing orders, if any, but holds
that the punishment was disproportionate
to the misconduct found proved, then it
will have the discretion not to award full
back wages. However, if the Labour
Court/Industrial Tribunal finds that the
employee or workman is not at all guilty
of any misconduct or that the employer
had foisted a false charge, then there will
be ample justification for award of full
back wages.
 v) The cases in which the
competent Court or Tribunal finds that
the employer has acted in gross violation
of the statutory provisions and/or the
principles of natural justice or is guilty of
victimizing the employee or workman,
then the concerned Court or Tribunal will
be fully justified in directing payment of
full back wages. In such cases, the
superior Courts should not exercise power
under
Article
226
or
136
of
the
Constitution and interfere with the award
passed by the Labour Court, etc., merely
because there is a possibility of forming a
different opinion on the entitlement of the
employee/workman to get full back wages
or the employer's obligation to pay the
same. The Courts must always be kept in
view that in the cases of wrongful / illegal
termination of service, the wrongdoer is
the
employer
and
sufferer
is
the
employee/workman and
there
is
no
justification to give premium to the
employer of his wrongdoings by relieving
him of the burden to pay to the
employee/workman his dues in the form of
full back wages.

vi) In a number of cases, the
superior Courts have interfered with the
award
of
the
primary
adjudicatory
authority on the premise that finalization
of litigation has taken long time ignoring
that in majority of cases the parties are
not responsible for such delays. Lack of
infrastructure and manpower is the
8 All. State of U.P. Vs. Presiding Officer Labour Court & Anr.
1105
principal cause for delay in the disposal of
cases. For this the litigants cannot be
blamed or penalised. It would amount to
grave
injustice
to
an
employee
or
workman if he is denied back wages
simply because there is long lapse of time
between the termination of his service and
finality
given
to
the
order
of
reinstatement. The Courts should bear in
mind that in most of these cases, the
employer is in an advantageous position
vis-a-vis the employee or workman. He
can avail the services of best legal brain
for prolonging the agony of the sufferer,
i.e., the employee or workman, who can ill
afford the luxury of spending money on a
lawyer with certain amount of fame.
Therefore, in such cases it would be
prudent to adopt the course suggested in
Hindustan Tin Works Private Limited v.
Employees of Hindustan Tin Works
Private Limited (supra).

vii) The observation made in
J.K. Synthetics Ltd. v. K.P. Agrawal
(supra)
that
on
reinstatement
the
employee/workman
cannot
claim
continuity of service as of right is contrary
to the ratio of the judgments of three
Judge Benches referred to hereinabove
and cannot be treated as good law. This
part of the judgment is also against the
very concept of reinstatement of an
employee/workman.

The perusal of another judgment
of the Apex Court in the case of Allahabad
Bank (Supra) in which the earlier case of
the Apex Court in Deepali Gundu
Surwase (Supra) was also considered will
be relevant which is as under :-

"36. Therefore, even applying
the ratio laid down in various decisions,
we do not think that the employee could be
granted anything more than what the
High Court has awarded.

37. As we have pointed out at the
beginning, the total period of service
rendered by the Officer-employee before
his dismissal from service, was about 15
years, from 1974 to 1989 and he attained
the age of superannuation in February,
2013, meaning thereby that he was out of
employment for 24 years. The High Court
has taken this factor into consideration
for limiting the back wages only to 50%
and we find that the High Court has
actually struck a balance. We do not wish
to upset this balance. Therefore, the
Special Leave Petition of the Officeremployee is also liable to be dismissed.
 38. Accordingly, both the Special
Leave Petitions are dismissed, no costs."

The point of determination No.iv)
is answered accordingly that grant of 50%
of the backwages from the date of
termination of service till the date of
reinstatement is just and proper in the facts
and circumstances of the case.

14. Considering the entire facts and
circumstances of the case, no interference
is required against the impugned award
dated
30.10.2015,
as
published
on
5.4.2016, passed by respondent No.1. The
writ petition is dismissed and petitioner -
department is directed to release the arrears
of 50% of the backwages within period of
two months from today, otherwise, interest
@ 6% per annum will be charged against
the petitioner for delayed payment of
awarded
amount
to
respondent
No.2/workman. The payment which has
been made to the respondent no.2/
workman in compliance of interim order
dated 14.9.2017 passed in connected Writ
C No. 42879 of 2017 shall be adjusted by
the authorities while making payment to
respondent no.2 under this order.

15. No order as to costs.
1106 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2024) 8 ILRA 1106
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.08.2024

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ - C No. 1000448 of 2010

C/M Madarsa Ehle Sunnat Sirajul Uloom
Sultanpur ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
Dr. L.P. Misra, G.M. Kamil

Counsel for the Respondent:
C.S.C., Ausaf Ahmad Khan, M.B. Singh

A.
Societies
Law
-
U.P.
Societies
Registration
Act,
1860
-
Section
3(2)(Ka) and (kha) - 12-D sub Clause 2 -
The amendments made in the Act vide
Act No. 52/75 are prospective in nature.
Prior to the date of amendment Section
12-D (1) or section 12 of the Act do not
in any way confer a power upon the
Assistant
Registrar
to
cancel
the
registration, which has been granted to
a society in the same name prior to the
date of enforcement of S.3(2)(a) under
U.P. Act No. 52/75.

There was no restriction under the Societies
Registration
Act,
1860
prohibiting
the
registration of a new society, in the year
1973 with the same name vis-a-vis the
name of the society, which was earlier
registered in the year 1964, Therefore,
there was no occasion for the Assistant
Registrar to exercise the power u/s 12-D
(1) of the Act of 1860 for cancelling the
registration of the petitioner society on the
pretext that there was restriction for
registration of a society in the same name
and style as that of an earlier registered
society. (Para 18)
The amended statutory provisions of 3(2)(a)
have no application in the facts of the present
case and as a consequent thereto to the
orders passed by the Assistant Registrar
dated 12.3.1992 and that of passed by the
Commissioner dated 7.4.1993 cannot be
legally sustained. (Para 19)

B. Power to refuse the registration of
the society cannot be enlarged to the
extent so as to confer a power upon the
Registrar to cancel the registration of
the society with the same name. No
incidental power can be culled out from
the provisions of Section 3 as were
applicable in the year 1973, nor any
inherent power can be read from any
other
provisions
of
the
Societies
Registration Act, 1860. (Para 20)

Apart
from
certain
special
statutes
which entitle companies or persons to
the exclusive use of a name or a mark,
such as the Companies Act or the Trade
Marks Act, a man has no exclusive
proprietary rights in a fancy name or
title, and normally and principally, it is in
relation to the user of a name associated with
a certain businesses or trading concern or
some profession that the Court affords
protection
and
grants
an
injunction
restraining the adoption and use of such a
name by another when the Court is satisfied
that damage has been caused or there is
tangible risk or possibility of a damage
resulting from confusion caused in the public
mind or in other words by reason of the
public being deceived by the use of such
name.