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

- **Citation:** (2023) 5 ILRA 1870
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-02
- **Case number:** Writ-C No. 25182 of 2016
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-presiding-officer-labour-court-u-p-bareilly-anr-50282
- **Pages:** 16

## Headnote

A. Civil Law - Labour Law- Award passed
in favour of respondent-workman under
challenge-
respondent
workman
challenged sudden termination of his
services- Section 6-N of the U.P. Industrial
Disputes Act, 1947 and Rule 42-violation.

B. Applicability of 1947 Act on irrigation
department-Irrigation Department falls
under the definition of Industry- Section
2(j) of the Act 1947-plea of the petitioner
rejected. (Paras 19, 20 and 21)

HELD:
I find substance in the arguments advanced by
the learned
counsel for the respondentworkman as in the case of Des Raj Vs St.of
Punjab (supra) the Apex Court had considered
the tests laid down in various earlier judgments
of the Apex Court itself, culminating in the
judgment in Bangalore Water Supply (supra)
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 St.of
Punjab and the material placed before the
Surpeme
Court
including
the
written
submissions filed on behalf of the concerned
petitioners that the irrigation department of the
St.of Maharashtra was discharging the same or
similar functions as the Irrigation Department of
the St.of Punjab, it was held that the projects of
the Irrigation Department or work connected
with that of the St.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. (Para 20)

In
view
of
above
discussions,
the
first
contention of the St.to the effect that Irrigation
Department does not fall within the definition of
"Industry" or that provisions of Act of 1947 are
5 All. State of U.P. Vs. Presiding Officer, Labour Court, U.P. Bareilly & Anr.
1871
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 the Labour Court in this regard.
(Para 21)

C. Plea of State-petitioner- respondentworkman was appointed on part time
basis-automatic cessation of his servicesSection 114 of Indian Evidence Act-Court
may draw favourable and unfavourable
inference-No evidence led by the Statepetitioner before Labour Court-hence, the
contention rejected. (Paras 22 to 24)
HELD:
In this regard, I find it appropriate to refer to
the provisions of section of 114 of Indian
Evidence Act, 1872. It is a provision wherein the
Court may draw inferences in any proceedings
which
include
inferences
fa

## Text

_Characters 0–39,796 of 53,678. This is a partial read: ask again with offset=39796 for what follows._

1870 INDIAN LAW REPORTS ALLAHABAD SERIES
Maghavendra Pratap Singh alias Pankaj
Singh Vs. State f Chhattisgarh, 2023
SCC OnLine SC 486.

57. Not investigating the materials
provided from the side of the accused and
only making the same as part of C.D Nos.
14 and 47 is a serious issue and it is not
excepted from the investigating officer,
who
is
in
the
rank
of
Deputy
Superintendent of Police. This Court may
observe that the investigating officer did
not meet the obligations, he was under.

58. In view of the above, the matter is
referred to the Director General of Police,
U.P. Lucknow to look into the matter in the
light of the observations of this Court as
mentioned in preceding paragraph Nos. 30,
45 to 50 and 55 to 57 relating to faulty
investigation and issue suitable guideline in
respect of fair investigation in all cases
within four weeks in order to maintain the
public faith in investigating agencies as
well as upon the courts.
----------
(2023) 5 ILRA 1870
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.05.2023

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Writ-C No. 25182 of 2016

State of U.P. ...Petitioner
Versus
Presiding
Officer,
Labour
Court,
U.P.
Bareilly & Anr. ...Respondents

Counsel for the Petitioner:
Sri S.M. Iqbal Hasan, Sti Dhananjay Singh
(S.C.)

Counsel for the Respondents:
Sri Bhupendra Nath Singh, Devendra Nath
Singh, Sri Dharmendra Kumar Srivastava,
Sri Hari Prakash Mishra

A. Civil Law - Labour Law- Award passed
in favour of respondent-workman under
challenge-
respondent
workman
challenged sudden termination of his
services- Section 6-N of the U.P. Industrial
Disputes Act, 1947 and Rule 42-violation.

B. Applicability of 1947 Act on irrigation
department-Irrigation Department falls
under the definition of Industry- Section
2(j) of the Act 1947-plea of the petitioner
rejected. (Paras 19, 20 and 21)

HELD:
I find substance in the arguments advanced by
the learned
counsel for the respondentworkman as in the case of Des Raj Vs St.of
Punjab (supra) the Apex Court had considered
the tests laid down in various earlier judgments
of the Apex Court itself, culminating in the
judgment in Bangalore Water Supply (supra)
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 St.of
Punjab and the material placed before the
Surpeme
Court
including
the
written
submissions filed on behalf of the concerned
petitioners that the irrigation department of the
St.of Maharashtra was discharging the same or
similar functions as the Irrigation Department of
the St.of Punjab, it was held that the projects of
the Irrigation Department or work connected
with that of the St.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. (Para 20)

In
view
of
above
discussions,
the
first
contention of the St.to the effect that Irrigation
Department does not fall within the definition of
"Industry" or that provisions of Act of 1947 are
5 All. State of U.P. Vs. Presiding Officer, Labour Court, U.P. Bareilly & Anr.
1871
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 the Labour Court in this regard.
(Para 21)

C. Plea of State-petitioner- respondentworkman was appointed on part time
basis-automatic cessation of his servicesSection 114 of Indian Evidence Act-Court
may draw favourable and unfavourable
inference-No evidence led by the Statepetitioner before Labour Court-hence, the
contention rejected. (Paras 22 to 24)
HELD:
In this regard, I find it appropriate to refer to
the provisions of section of 114 of Indian
Evidence Act, 1872. It is a provision wherein the
Court may draw inferences in any proceedings
which
include
inferences
favourable
or
unfavourable (adverse) to any party. (Para 23)

In the present case, reliance has been placed
upon Annexure R.A.-1 to the rejoinder affidavit,
so as to explain the nature of services of the
respondent-workman,
however
the
said
document did not form part of the record of the
proceedings before the Labour Court. In view of
provisions of section 114 of Indian Evidence Act,
1872,
as
quoted
herein-above,
the
said
document cannot confer any advantage upon
the State-petitioner in a writ of certiorari, by
which a challenge has been made to the award
of the Labour Court, which is based upon the
oral and documentary evidence produced by the
respective sides before it. Admittedly, annexure
R.A.-1 to the rejoinder affidavit, did not form
part
of
the
record
of
the
proceedings.
Therefore,
second
contention
of
the
St.regarding nature of service of the respondent
is hereby rejected. (Para 24)

D. Reference made after a huge delay of
16 years-respondent workman was not
gainfully employed-after termination of
his services-no reinstatement has been
awarded-hence, the contention regarding
delay
in
reference
also
rejected-the
impugned order does not suffer from any
illegality,
perversity-award
upheld-writ
petition dismissed. (Paras 43, 46, 47 and
49)

HELD:
Further,
The
Supreme
Court
in
several
authorities some of which are mentioned below
has held that if the only defect in the
termination
order
is
non-payment
of
retrenchment compensation as required by
Section 25 F of Industrial Dispute Act (or
Section 6 N of U.P.I.D. Act) then it is not always
necessary to direct reinstatement with full back
wages and that in such situation more often
than not proper relief may be to award
consolidated damages/compensation particularly
when
the
employer
is
Government
or
Governmental agency and relevant rules have
not been followed before appointment. (Para
43)

The Court cannot ignore one aspect of the
matter. The Labour Court, in the present case,
has not directed reinstatement of the workman
in his services. In case, the workman was
aggrieved by denying such relief, he could have
challenged the award but, admittedly, he has
not challenged the same nor has he claimed
relief of reinstatement. Even during the course
of
arguments,
learned
counsel
for
the
respondent-workman submitted that at this
stage he is just supporting the award whereby
only backwages from the date of reference till
the enforcement of the award have been awarded.
Therefore, this Court is conscious of the fact that
Labour Court did not award even backwages from
the year, 1990, when the services of the
respondent-workman were terminated, but the
same have been awarded from the date of
reference. Therefore, the delay of 15-16 years in
the present case, is not fatal to the claim of the
respondent-workman,
who,
though
claimed
reinstatement, but has been denied the same. I do
not think that award of the backwages from the
year 2005 onwards, would be defeated by the
delay, which may be a factor in those cases, where
the reinstatement with backwages has been
ordered, as there is no question of reinstatement
in the present case either under the award or in
the absence of challenge by the workman to the
award. (Para 46)

Even the Labour Court has recorded clear
finding just above the operative portion of the
1872 INDIAN LAW REPORTS ALLAHABAD SERIES
impugned award that the workman had stated
that he had not worked over a period of 15
years and that he had made an oral request
from the employer to take him on duty, but did
not submit any application in this regard.
Therefore, the labour Court has taken a view
that the workman was not entitled to get
backwages upto the date of making reference.
Since the said denial has not been challenged
by the workman by filing writ petition or
otherwise, I cannot examine the validity or
illegality of the said findings in totality of the
facts of the case. (Para 47)

Therefore, the third contention of the Statepetitioner based upon the delay in making
reference also does not have any force and is
liable to be discarded. (Para 48)

Insofar as other findings recorded in the award
impugned are concerned, I find that the view
taken by the Labour Court that termination of
services of respondent-workman was contrary
to the provisions of section 6-N of the U.P.
Industrial Disputes Act,1947 does not suffer
from any illegality or perversity in view of the
evidence on record produced before the Labour
Court. (Para 49)

Application allowed. (E-14)

List of Cases cited:

1. Executive Engineer (St.of Karn. Vs K
Somasetty & ors., reproted in 1997 (5) Surpeme
Court Cases 434

2. Des Raj etc. Vs St.of Pun. & ors., reported in
AIR 1988 Supreme Court 1182

3. Bangalore Water Supply and Sewerage Board
Vs A. Rajappa & ors., reported in 1978 (2)
Supreme Court Cases 213

4. St.of U.P. through Secretary Irrigation Vs
Mohd. Rais, reported in 2021 (169) FLR 520

5. The St.of U. P. & ors.Vs Uttam Singh,
reported in AIR 2021 Supreme Court 3909

6.Chairman, Town Area & anr.Vs St.of U.P. &
ors., reported in 2013 (11) ADJ 197

7. St.of Karnataka & anr.Vs Ravi Kumar reported
in 2009 (13) SCC 746

8. Haryana St.Cooperation Land Development
Bank Vs Neelam reported in 2005 (5) SCC 91

9. Bharat Sanchar Nigam Ltd. Vs Bhurumal
reported in 2014 (7) SCC 177

10. Assistant Engineer, Rajasthan St.Agriculture
Marketing Board, Sub Division, Kota Vs, Madan
Lal reported in (2013) 14 SCC 543

11. Nagar Mahapalika Vs St. of U.P. & ors..
reported in 2006,(5) SCC 127

12. Municipal Council, Sujanpur Vs Surinder
Kumar reported in 2006 (5) SCC 173

13. Haryana St.Electronics Development Corp.
Ltd. Vs Mamni reported in 2006 (9) SCC 434

14. Uttaranchal Forest Development Corp. Vs
M.C. Joshi reported in 2007 (9) SCC 353

15. Ghaziabad Development Authority & anr.Vs
Ashok Kumar & anr.reported in 2008 (4) SCC
261

16. Telecom District Manager Vs Keshab Deb,
reported in 2008 (8) SCC 402

17. Jagbir Singh Vs Haryana St.Agriculture
Marketing Board reported in 2009 (15) SCC
327

18. Uttar Pradesh St.Electricity Board Vs Laxmi
Kant Gupta reported in 2009 (16) SCC 562

19. Bharat Sanchar Nigam Ltd. Vs Man Singh
reported in 2012 (1) SCC 558

20. Senior Superintendent Telegraph (Traffic),
Bhopal Vs Santosh Kumar Seal & ors., reported
in 2010 (6) SCC 773

21. Assistant Engineer, Rajasthan Development
Corporation and Anr. Vs Gitam Singh reported in
2013 (5) SCC 136

22. St.of U.P. Vs Presiding Officer, Labour Court
& anr.reported in 2017 (7) ADJ 393
5 All. State of U.P. Vs. Presiding Officer, Labour Court, U.P. Bareilly & Anr.
1873
23. Nagar Mahapalika Vs St.of U.P., AIR 2006 SC
2113

24. Sita Ram Vs Moti Lal Nehru Farmers Training
Institute, AIR 2008 SC 1955

25. Senior Superintendent, Telegraph (Traffic)
Bhopal Vs Santosh Kumar Seal & ors., reported
in AIR 2010 SC 2140

26. Incharge Officer Vs Shankar Shetty reported
in JT 2010(9) SC 262

27. Divisional Engineer, Telecom, Jhansi Vs
Presiding Officer & anr.2011 (4) ADJ, 199

(Delivered by Hon'ble Kshitij Shailendra, J.)

1. This writ petition has been filed
challenging the award dated 01.04.2015
passed in Adjudication Case No. 77 of
2006 (Executive Engineer vs Krishna
Murari Sharma) published on 04.11.2015
by the Presiding Officer, Labour Court,
Bareilly (herein-after referred to as the
"Labour Court").

Facts of the Case

2. The facts of the case are that the
respondent-workman was appointed on the
post of Tubewell Operator on 27.02.1985
and was assigned duties at Tubewell No.
106 Adhkata, Bareilly. He was given the
charge of the said Tubewell under the order
dated 30.07.1985 issued by the Assistant
Engineer.

3. It is contended that the workman
performed duties till October, 1990, but all
of a sudden, his services were terminated in
November, 1990 without disclosing any
reason
and
without
paying
him
retrenchment compensation. The workman
agitated the issue and, ultimately, the
matter
was
referred
by
the
State
Government to the Labour Court, Bareilly,
where it was registered as Adjudication
Case No. 77 of 2006 (Executive Engineer
vs Krishna Murari Sharma) for adjudication
of the dispute as to whether termination of
services of the workman Krishna Murari
Sharma w.e.f. 23.11.1990 is legal and, if
not, as to what relief/benefit/compensation,
the workman is entitled to get?

4. Pursuant to the notices issued by
the Labour Court to the contesting parties,
the workman filed his reply stating that he
was appointed under the Office order No.
12/84/85
numbered
as
Letter
No.
944/1/u0l0o0/dated
27.02.1985
and,
initially he was sent for training and was
appointed on the Tubewill No. 106
Adhkata Bareilly. It was further stated that
the workman had been given complete
charge of the aforesaid Tubewell under the
Order No. 523, dated 30.07.1985 and
further letter No. 200, dated 30.07.1985
issued by the Assistant Engineer; his
services were full time in nature and that he
had worked with full sataisfaction of the
authorities. It was further contended that
violating the provisions of section 6-N of
the U.P. Industrial Disputes Act, 1947 and
Rule 42, the services of the workman were
suddenly terminated in the year 1990.
Accordingly, the workman made a prayer
that he be reinstated on his post with full
backwages and continuity in services. The
workman also filed written arguments.

5. On the other hand, the employer
(Executive Engineer) submitted his reply
before the Labour Court stating that the
workman was appointed on a monthly
honorarium
of
Rs.299/-
on
purely
temporary basis, which was mentioned in
the conditions of the service agreement
itself. The termination of services in April,
1990 was not disputed in the reply, and it
was contended that since the Government
1874 INDIAN LAW REPORTS ALLAHABAD SERIES
had declared cadre of part-time Tubewell
Operator as a dead cadre, the workman was
not entitled for any relief. It was futher
contended that the Department did not fall
within the definition of "Industry" and,
therefore, the matter was not covered by
the provisions of the U.P. Industrial
Disputes Act, 1947.

Evidence before Labour Court

6. The parties led evidence in support
of their respective cases. A cash book has
been annexed along with the writ petition,
which shows that the workman was
engaged by the Department and was paid
salary/honorarium. The workman appeared
as D.W.-1 and reiterated his stand in his
oral evidence also explaining the nature of
works and activities performed by him. He
also stated that since after termination of
his services, he was unemployed and
dependent upon other persons. He also
proved the documents on record, which
included the Salary Register etc.

7. One Sushil Sharma, the Assistant
Engineer was examined by the Department,
who stated that the services of the workman
according to the agreement were purely
part-time, which were extended upto
30.09.1989 and the said agreement was not
further
extended.
The
said
witness
expressed
his
ignorance
about
sending/service of notice to the workman
before termanation of his services. Written
arguments were also filed on behalf of the
Department, stating that the reference was
made after a long delay of 15 years in the
year 2005 after the termination of his
services; that the opposite party cannot be
treated as a workman and that the Irrigation
Department
did not
fall
within
the
definition of "Industry" and, therefore, the
provisions of U.P. Industrial Disputes Act,
1947
were
not
applicable
and,
consequently, the reference was liable to be
dismissed.

The Award

8.

The
Labour
Court,
after
considering the material on record and after
hearing the respective parties, passed the
impugned award dated 01.04.2015 holding
that termination of the services of the
workman w.e.f. 23.11.1990 was improper
and illegal and the workman was held
entitled to get the entire salary for the
period with effect from the date of
reference till the enforcement of the award.

The Basic Structure of the writ petition

9. The writ petition is founded
basically on the pleas that Irrigation
Department is not an "Industry" as per the
law laid down by the Supreme Court in the
case of Executive Engineer (State of
Karnataka vs K Somasetty and others,
reproted in 1997 (5) Surpeme Court Cases
434; the reference was made after a delay
of 16 years; and, therefore, the workman is
not entitled for any relief; the Labour Court
has not properly considered the evidence;
as per the decisions of the Supreme Court,
payment
of
compensation
is
not
a
necessary
consequence
in
case
of
reinstatement
of
the
workman,
and
therefore, the order of reinstatement is bad
in the eyes of law. (The plea qua
reinstatement is contrary to award as
reinstatement was not ordered under the
award).

Counter Affidavit

10. Counter affidavit has been filed
on behalf of the respondent-workman
stating that termination of his services was
5 All. State of U.P. Vs. Presiding Officer, Labour Court, U.P. Bareilly & Anr.
1875
contrary to the provisions of the U.P.
Industrial Disputes Act, 1947, specially
section 6-N thereof; that the workman had
worked for more than 240 days and,
therefore, is entitled for the reliefs claimed;
findings of fact have been recorded by the
Labour Court while passing the award
impugned,
which
do
not
call
for
interference. Insofar as the law relied upon
in the writ petition with regard to definition
of "Industry" in connection with Irrigation
Department is concerned, reliance has been
placed upon the judgments of Supreme
Court in the cases of Des Raj etc. Vs State
of Punjab and others, reported in AIR
1988 Supreme Court 1182 and Bangalore
Water Supply and Sewerage Board vs A.
Rajappa and others, reported in 1978 (2)
Supreme Court Cases 213.

Rejoinder Affidavit

11. A rejoinder affidavit has been
filed by the petitioner reiterating the stand
taken in the writ petition also annexing a
copy of the order dated 29.07.1985 as
Annexure No. R.A.-1 to the rejoinder
affidavit, wherein the conditions of services
of the respondent-workman are enlisted,
particularly
disclosing
that
after
30.09.1989, the services of the workman
shall automatically come to an end and that
extension was granted to the services w.e.f.
01.10.1988 to 30.09.1989 after he was
reappointed as part-time Tubewell Operator
since after the expiry of his services on
30.09.1988.

12. I have heard Shri Dhananjay
Singh, learned Standing Counsel for the
petitioner
State
of
U.P.
and
Shri
Dharmendra Kumar Srivastava, learned
Counsel for the respondent-workman.

Contention of the Petitioner

13. The contention of learned
Standing
Counsel
on behalf
of
the
petitioner is that since, the Irrigation
Department does not fall within the
definition of "Industry" as laid down by the
Supreme Court in the case of Executive
Engineer (State of Karnataka) (supra), not
only the reference, but also the impugned
award is illegal as the matter was not
covered by the provisions of U.P. Industrial
Disputes Act, 1947. Further submission is
that the services of the respondentworkman were purely part time in nature,
which ceased to operate after 1989 and,
therefore, the termination was an automatic
consequence as per conditions of the
services and, hence, there is no illegality in
terminating the services of the respondentworkman. Further submission is that
reference was made at a very belated stage,
i.e. after a period of 15-16 years and,
therefore, the workman is not entitled for
any relief.

Contention of Respondent-Workman

14. Per contra, Shri Dharmendra
Kumar Srivastava, learned counsel for
respondent-workman
has
elaborately
explained the ratio of the judgments of the
Supreme Court in the cases of Des Raj
etc. (supra) and Bangalore Water Supply
and Sewerage Board (supra) and by
placing reliance upon the decision of this
Court in the case of State of U.P.
through Secretary Irrigation vs Mohd.
Rais, reported in 2021 (169) FLR 520, he
has contended that the issue as to whether
the Department of Irrigation is or is not
an Industry so as to attract the provisions
of U.P. Industrial Disputes Act, 1947, has
already been settled in the aforesaid
authorities and, therefore, the contention
of
the
State
to
the
contrary
is
unacceptable.
1876 INDIAN LAW REPORTS ALLAHABAD SERIES
Analysis of Rival Contentions

15. Before proceeding further, it is
necessary to refer the law laid in various
authorities as to the applicability of the
provisions of the Act of 1947 on the
Irrigation Department.

16. This Court in the case of State of
U.P. through Secretary Irrigation Vs.
Mohd Rais reported in 2021 (169) FLR
520, in paragraphs 5, 7, 8, 9, 10 and11, has
held as under:

"5. Learned counsel appearing on
behalf of opposite party no.1 refuting the
submission advanced by learned counsel
for petitioner has in turn placed reliance
upon judgment rendered by Hon'ble the
Supreme Court in the case of Des Raj vs.
State of Punjab & Ors. reported in AIR
1988 Supreme Court 1182 to submit that a
Government Department such as the
Irrigation Department has already been
held to come within the purview of term
'Industry' but the subsequent judgment
rendered in the case of K. Soma Setty
(supra) has been passed without noticing
the aforesaid two judgments, which should
therefore prevail. Learned counsel has also
relied upon judgment rendered by Hon'ble
the Supreme Court in the case of Workmen
of American Express International Banking
Corporation vs. Management of American
Express International Banking Corporation
reported in AIR 1986 Supreme Court 458
to submit that for the purposes of
calculation of 240 days of service,
weekends and other gazetted holidays are
required to be taken into account. Learned
counsel has also relied upon a Full Bench
Decision of this Court rendered in Ganga
Saran vs. Civil Judge, Hapur reported in
AIR 1991 Allahabad 114 to submit that in
case of a conflict between judgments of
Hon'ble Supreme Court consisting of equal
authorities, the concerned High Court must
follow judgment which appears to lay down
the
law
elaborately
and
accurately
irrespective of time line. Learned counsel
also placed reliance on a Single Judge
judgment rendered by High Court of
Bombay in Executive Engineer, Yavantmal
Medium Project Division & Anrs. vs. Anant
S/o Yadao Murate & Another reported in
1997 ILLJ 91 wherein after considering the
contradictory
judgments
of
Hon'ble
Supreme
Court
regarding
Irrigation
Department
being
an
'Industry'
has
followed the judgment rendered in the case
of Des Raj (supra).

...........

7.
As
has
been
indicated
hereinabove, the Hon'ble Supreme Court in
the case of Des Raj (supra) has held that an
Irrigation
Department
of
particular
Government to be an Industry in terms of
the Act of 1947. The said judgment has
taken into account various other judgments
rendered by Hon'ble the Supreme Court
particularly a Constitution Bench judgment
rendered in Bangalore Water Supply and
Sewerage Board vs. A. Rajappa, reported
in (1978)2 SCC 213. On the contrary, the
subsequent judgment rendered by Hon'ble
Supreme Court in case of K. Soma Setty
(supra) has not adverted to the aforesaid
judgments
of
Des
Raj
(supra)
and
Bangalore Water Supply and Sewerage
Board (supra).

8. Upon perusal of Judgment
rendered in the case of Desh Raj (supra) as
compared to judgment rendered in the case
of K. Soma Setty (supra), it is apparent that
in the case of Desh Raj (supra) Irrigation
Department has been held to come within
the definition of Industry whereas judgment
5 All. State of U.P. Vs. Presiding Officer, Labour Court, U.P. Bareilly & Anr.
1877
of K. Soma Setty holds otherwise. As such,
there is clear conflict in the two judgments
which are of Coordinate Bench.

9.
The
proposition
of
law
required to be followed in conflicting
judgments
rendered
by
Hon'ble
the
Supreme Court by Benches of Coordinate
strength has been discussed in the Full
Bench of this Court in Ganga Saran
(supra). The Full Bench after considering
the relevant aspect has held as follows:

" 7. One line of decision is that if
there is a conflict in two Supreme Court
decisions, the decision which is later in
point of time would be binding on the High
Courts. The second line of decisions is that
in case there is a conflict between the
judgments of Supreme Court consisting of
equal authorities, incidence of time is not a
relevant factor and the High Court must
follow the judgment which appears it to lay
down law elaborately and accurately.

8. Similar situation arose before
a Full Bench of Punjab and Haryana High
Court in the case of M/s Indo Swiss Time
Limited, Dundahera, vs. Umrao, AIR 1981
Punj & Har 213. What the Full Bench in
the said case held is extracted below (at pp.
219-220 of AIR) :

Now the contention that the latest
judgment of a co-ordinate Bench is to be
mechanically followed and must have preeminence
irrespective
of
any
other
consideration does not commend itself to
me. When judgments of the superior Court
are of co-equal Benches and therefore, of
matching authority then their weight
inevitably must be considered by the
rationale and the logic thereof and not by
the mere fortutious circumstances of the
time and date on which they were rendered.
It is manifest that when two directly
conflicting judgments of the superior Court
and of equal authority are extant then both
of them cannot be binding on the courts
below. Inevitably a choice, though a
difficult one, has to be made in such a
situation. On principle it appears to me
that the High Court must follow the
judgment which appears to it to lay down
the law more elaborately and accurately.
The mere incidence of time whether the
judgments of coequal Benches of the
Superior Court are earlier later is a
consideration which appears to me as
hardly relevant."

This decision was followed by the
Bombay High Court in the case of Special
Land Acquisition Officer vs. Municipal
Corporation, AIR 1988 Bombay 9. The
majority of Judges in the Full Bench held
that if there was a conflict between the two
decisions of equal benches which cannot
possibly reconcile, the courts must follow the
judgment which appear to them to state the
law accurately and elaborately. We are in
respectful agreement with the view expressed
by the Full Bench of Punjab & Haryana High
Court in the case of M/s Indo Swiss Time
Limited v. Umrao, (AIR 1981 Punj & Har
213) (Supra) especially when the Supreme
Court while deciding Qamaruddin's case
(1990 All WC 308) (Supra) did not notice the
U.P. amendment to S.115, C.P.C. and earlier
decision of the Supreme Court."

10. The aforesaid aspect has also
been dealt with by a learned Single Judge
of the High Court of Bombay in which
judgment rendered by Hon'ble the Supreme
Court in the case of Des Raj (supra) has
been followed:

"13. On considering all the
concepts of industry and after reviewing
1878 INDIAN LAW REPORTS ALLAHABAD SERIES
the various tests which need not be
repeated, as the tests were laid down in
Bangalore Water Supply case (supra). The
concept of sovereign and regal function
was explained in Chief Conservator of
Forests (supra). The Apex Court in para 13
specifically rejected an argument that
welfare
activities
partake
sovereign
functions on the ground that if such a view
was taken it would be eroding the view
taken by it in Bangalore Water Supply's
case.
While
observing
that
welfare
activities partake sovereign functions the
Apex Court did not notice this in SubDivisional Inspector of Post, Vaikam and
Other (supra). Therefore, considering the
various precedents of the Apex Court itself
it is clear that the law declared by the Apex
Court is that welfare activities do not
necessarily partake sovereign functions. In
Executive Engineer, State of Karnataka the
reliance was placed on the judgment in the
case of Union of India v. Jai Narain Singh
(supra). In Union of India v. Jai Narain
Singh, the Apex Court has merely noted
that the Central Ground Water Board is not
an Industry. It is not possible to discern
from that judgment as to what were the
reasons for the Apex Court to so hold. The
other judgment relied on is that of State of
Himachal Pradesh v. Suresh Kumar Varma
& Anr. (supra). On a perusal of the fact
and the law laid down it does not seem that
the issue as to whether a particular
department was an industry or not was in
issue. What was in issue was whether the
work charged employees who perform duty
of transitory nature were appointed to
posts and their appointments were on daily
wage basis in an appointment to a post.
The Apex Court therein noted that such
appointments were not appointments to the
posts and, therefore, no directions could
have been given to re-engage them in any
work or appoint them against existing
vacancies. Thus the two judgments relied
upon by the Apex Court to arrive at the
conclusion
arrived
at
in
Executive
Engineer, State of Karnataka (supra),
nowhere have laid down the tests to hold as
to why Irrigation Department is to be
excluded from the definition of industry. As
pointed out earlier, even the case of Sub
Divisional Inspector of Post, Vaikam and
Others was considered by the Apex Court
in Physical Research Laboratory and
explained the same in paragraph 10 of the
judgment. After that, it proceeded to apply
the tests as laid down in Bangalore Water
Supply. In the case of Des Raj v. State of
Punjab (supra) the Apex Court had
considered the tests laid down in various
earlier judgments of the Apex Court itself,
culminating in the judgment in Bangalore
Water Supply (supra) 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. I am, therefore, of the
considered opinion that the view laid down
in Des Raj's case is the better in point of
law and hence it is the view in Des Raj's
case which will have to be followed. Once
it is so held and as I have already set out
earlier
the
work
of
the
Irrigation
Department of the State of Punjab and the
material placed before this Court including
the written submissions filed on behalf of
the petitioners show that the projects
undertaken by the irrigation department of
the State of Maharashtra is discharging the
same or similar functions as the Irrigation
Department of the State of Punjab. It,
therefore, follows 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."
5 All. State of U.P. Vs. Presiding Officer, Labour Court, U.P. Bareilly & Anr.
1879

11. Upon applicability of said
factors to the present case, it is clear that
the judgment rendered by Hon'ble the
Supreme Court in Des Raj (supra) has
elaborately dealt with the question as to
whether Irrigation Department of the
Government
would
come
within
the
definition
of
Industry
or
not.
After
considering
the
Constitution
Bench
Judgment of Hon'ble Supreme Court
rendered in Bangalore Water Supply and
Sewerage Board (supra), the Hon'ble
Supreme Court has reached a definite
conclusion that Irrigation Department of
the Government would come within the
definition of Industry."

17. The Supreme Court in the case of
The State of Uttar Pradesh and others Vs.
Uttam Singh, reported in AIR 2021
Supreme Court 3909, in paragraphs 10 and
11, has held as under:

"10. We have also taken note of
the fact that during his 13 long years of
employment and before that having battled
the appellants for the period of 6 years to get
his dues, the father of the respondent was
also transferred from one department to the
other, normally an aspect which would be
associated with a person who had a regular
employment. The most significant aspect is
that had the father of the respondent not been
considered a regular appointee, there would
be no occasion for the Department to
volunteer his services to the State Election
Commission to perform election duties, which
could have been done only by a Government
employee, as is specified under Section 159
of the Representation of the People Act, 1950
("Staff of certain authorities to be made
available for election work").

11. The present case is thus one
which is peculiar in its given factual
scenario which we have discussed above
and thus for all practical purposes, it is a
case of an appointment against a regular
vacancy. The respondent's father was
treated as a regular employee by the
aforesaid conduct of the appellants even
though he was labelled as a Part Time
tubewell operator."

18. This Court in the case of
Chairman, Town Area & another Vs.
State of U.P. and others, reported in 2013
(11) ADJ 197, in paragraph 14 held as
under:

"14. The submission of learned
counsel for the petitioner that in respect of
true meaning and import of the expression
'Industry' defined under Industrial Disputes
Act, the correctness of decision of Apex
Court rendered in Bangalore Water Supply
and Sewerage Board Vs. A. Rajappa &
others, AIR 1978 S.C. 548 has been
doubted by Apex Court in Coir Board,
Ernakulam, Cochin and Another Vs. Indira
Devi P.S. and others, (1998) 3 S.C.C. 259
and further in case of State of U.P. Vs. Jai
Bir Singh (2005) 5 S.C.C. Page 1 and
decision of the Apex Court rendered in
Bangalore Water Supply case has been
referred to the larger Bench, also does not
make any difference for the reason that the
learned counsel for the petitioner could not
point out the final decision rendered by
larger Constitution Bench of the Apex
Court
in
respect
of
the
aforesaid
references, therefore, I have no hesitation
to hold that earlier view taken by the Apex
Court is still good law and cannot be held
to be detracted by Apex Court itself by now.
Accordingly, no different opinion can be
given by this court in this regard."

19. The submission of the learned
counsel
for
the
respondent-workman,
1880 INDIAN LAW REPORTS ALLAHABAD SERIES
therefore, is that once the Supreme Court as
well as this Court have already held in the
aforesaid
authorities
that
Irrigation
Department and also the departments of the
like nature depending upon the services
rendered by the said departments, shall be
covered by definition of ''Industry' and,
further, once the respondent was treated as
an
employee
in
the
petitioner
establishment, no error can be pointed out
in adjudication of the dispute by the Labour
Court and the provisions of U.P. Industrial
Disputes Act, 1947 were fully applicable.

20. I find substance in the arguments
advanced by the learned counsel for the
respondent-workman as in the case of Des
Raj v. State of Punjab (supra) the Apex
Court had considered the tests laid down in
various earlier judgments of the Apex
Court itself, culminating in the judgment in
Bangalore Water Supply (supra) 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
Surpeme 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.

21. In view of above discussions,
the first 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 the Labour
Court in this regard.

22. Insofar as the second contention
of the State-petitioner that respondentworkman was appointed on part time
basis and there was automatic cessation
of his services, I have perused the award
impugned in the writ petition, and I find
that no document demonstrating the
conditions of services of the respondentworkman was filed by the petitionerDepartment
during
the
course
of
proceedings before the Labour Court. The
Labour Court has also observed that
despite the fact that the workman had
summoned the concerned documents
from the Department, the latter did not
produce the same. Therefore, relying
upon the oral testimony of the D.W-1, in
which
reference
of
appointment
letters/orders numbered as 523 dated
30.07.1985 and 200 dated 30.07.1985
was also made, the contention of the
petitioner-Department regarding nature of
services of the respondent-workman was
not accepted.

23. In this regard, I find it appropriate
to refer to the provisions of section of 114
of Indian Evidence Act, 1872. It is a
5 All. State of U.P. Vs. Presiding Officer, Labour Court, U.P. Bareilly & Anr.
1881
provision wherein the Court may draw
inferences in any proceedings which
include
inferences
favourable
or
unfavourable (adverse) to any party.
Section 114 alongwith relevant illustration
(g) is quoted hereinbelow:-

"114.
Court
may
presume
existence of certain facts. --The Court may
presume the existence of any fact which it
thinks likely to have happened, regard
being had to the common course of natural
events, human conduct and public and
private business, in their relation to the
facts of the particular case.

Illustrations

The Court may presume-

(a) to (f) .........

(g). That evidence which could
be and is not produced would, if produced,
be unfavourable to the person who
withholds it;"

24. In the present case, reliance has
been placed upon Annexure R.A.-1 to the
rejoinder affidavit, so as to explain the
nature of services of the respondentworkman, however the said document did
not form part of the record of the
proceedings before the Labour Court. In
view of provisions of section 114 of Indian
Evidence Act, 1872, as quoted hereinabove, the said document cannot confer any
advantage upon the State-petitioner in a
writ of certiorari, by which a challenge has
been made to the award of the Labour
Court, which is based upon the oral and
documentary evidence produced by the
respective sides before it. Admittedly,
annexure R.A.-1 to the rejoinder affidavit,
did not form part of the record of the
proceedings. Therefore, second contention
of the State regarding nature of service of
the respondent is hereby rejected.

25. The third contention of the
petitioner is to the effect that since
reference was made after a huge delay of
16 years and, therefore, reinstatement with
back wages was not proper, particularly,
when there is nothing on record to indicate
that the workman was not gainfully
employed anywhere.

26.