# State of U.P v. The P.O., Labour Court and another

- **Citation:** (2008) 3 ILRA 944
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-08-08
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-the-p-o-labour-court-and-another-41277
- **Pages:** 6

## Headnote

U.P. Industrial Dispute Act 1947 -Section
33-c-workman working on daily wages
basis-claim for regularisation denieddirection to pay the salary benefit like
regular employee-held-doctrine of equal
pay for equal work-not available-even
otherwise the labour Courts or Industrial
Tribunals are excluded with jurisdiction
in view of provisions 4k to 10 of the Act.

Held: Para 16

To my mind, this order would not have
been passed by the Labour Court as even
otherwise
no
appointment
can
be
directed to be made by the Labour Court
de-horse the rules for recruitment even
under Section 4K of the U.P. Industrial
Disputes Act,1947 to Section 10 of the
Industrial Disputes Act ( Central), 1947
as the jurisdiction of Labour Courts or
the Industrial Tribunal is excluded to
that extent in view of settled position of
law in this regard by the Apex Court in a
stream of decisions which are binding on
all courts including Labour Courts as it
has all the trapping of Courts, under
Article 141 of the Constitution.
Case law discussed:
1997(75) FLR 776; ( 2004) 1 SCC-34; (1998) 9
SCC-595; ( 2006) 9 SCC-321; (2006) 4 SCC-1.

## Text

944 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
case does not help the petitioner in the
present case.

17. With regard to the notice issued
by this Court on 17/3/2005, as to why the
punishment awarded to the petitioner be
not enhanced, learned counsel for the
petitioner contended that under the 1978
Regulations, the power is vested with the
appellate authority even to enhance the
punishment
after
notice,
hence
no
consideration of such issue is required in
this case.

18. In view of the foregoing
discussion, it is clear that the review
appeal of the petitioner was to be heard, if
at all, by the State Cadre Authority and
the RAC did net have any jurisdiction to
decide the appeal and the order of the
RAC dated 07/07/2004 was without
jurisdiction. The DAC has rightly took a
decision not to act on such decision.
However, in view of the fact that a view
has been taken that power to hear the
appeal only vested in the State Cadre
Authority, it will be open for the
petitioner to submit a copy of his review
appeal which was filed before the RAC at
the time when it had jurisdiction before
the State Cadre Authority as per (12th
Amendment) Rules, 2004, who may
consider the review appeal of the
petitioner
and
take
an
appropriate
decision in accordance with law.

19. As submitted by the learned
counsel for the petitioner, since the
appellate authority has also the power to
enhance the punishment, it is not
necessary to take any decision in
consequence to notice dated 17/3/2005,
and all matters be left open to the
appellate authority to take decision
accordingly.

20. In the result, the prayer of the
petitioner for quashing the order dated
10/2/2005 passed by the DAC is refused.
However, liberty is given to the petitioner
to file the copy of the review appeal along
with the copy of this order before the
State Cadre Authority which is now the
appellate authority who after receiving the
copy of the review appeal may consider
and take an appropriate decision in
accordance with law. In view of the fact
that the matter is pending for quite a long
period, the said appellate authority snail
expeditiously decide the review appeal
preferably within a period of six months
from the date of filing a certified copy of
the order before it

21. It is made clear that this Court is
not expressing any opinion on the merits
of the case and it is for the appellate
authority to look into the entire facts and
circumstances of the case and take a
decision in accordance with law.

Subject to above, the writ petition is
disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.08.2008

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 4226 Of 2002

State of U.P.

...Petitioner
Versus
The Presiding Officer, Labour Court and
another

 ...Respondents

Counsel for the Petitioner:
S.C.
3 All] State of U.P. V. The P.O., Labour Court and another
945
Counsel for the Respondents:
Sri. Siddarth
S.C.

U.P. Industrial Dispute Act 1947 -Section
33-c-workman working on daily wages
basis-claim for regularisation denieddirection to pay the salary benefit like
regular employee-held-doctrine of equal
pay for equal work-not available-even
otherwise the labour Courts or Industrial
Tribunals are excluded with jurisdiction
in view of provisions 4k to 10 of the Act.

Held: Para 16

To my mind, this order would not have
been passed by the Labour Court as even
otherwise
no
appointment
can
be
directed to be made by the Labour Court
de-horse the rules for recruitment even
under Section 4K of the U.P. Industrial
Disputes Act,1947 to Section 10 of the
Industrial Disputes Act ( Central), 1947
as the jurisdiction of Labour Courts or
the Industrial Tribunal is excluded to
that extent in view of settled position of
law in this regard by the Apex Court in a
stream of decisions which are binding on
all courts including Labour Courts as it
has all the trapping of Courts, under
Article 141 of the Constitution.
Case law discussed:
1997(75) FLR 776; ( 2004) 1 SCC-34; (1998) 9
SCC-595; ( 2006) 9 SCC-321; (2006) 4 SCC-1.

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard learned counsel for the
parties and perused the record.

2. This writ petition has been filed
against the order dated 16.8.2001 passed
in Misc. Case No. 353 of 1999 passed by
the labour Court, U.P. Kanpur Nagar.

3. Brief facts of the case are that an
Adjudication Case no. 19 of 1991 was
pending before the Labour Court. During
the pendency of the said reference the
workman was restrained from working,
hence an application under Section 6-E of
the U.P. Industrial Disputes Act, 1947
was moved by him before the Labour
Court
for
adjudication
of
deemed
reference under Section 6-F of the Act for
violation of it provisions. Section 6-F of
the U.P. Industrial Disputes Act, 1947
providing for adjudication in respect of
dispute as to whether condition of service
charged during the pendency of any
proceedings before the Labour Court is as
under:-

" 6-F. Special for adjudication as to
whether the conditions of service, etc.
changed
during
the
pendency
of
proceedings-
Where
an
employer
contravenes the provisions of Section 6-E
during the pendency of proceedings
before a Labour Court or Tribunal, any
workmen
aggrieved
by
such
contravention may make a complaint in
writing in the prescribed manner, to the
Labour Court or Tribunal as the case may
be, and on receipt of such complaint that
Labour Court or Tribunal as the case may
be, shall adjudicate upon the complaint as
if it were a dispute referred to or pending
before it, in accordance with this Act and
shall submit its award to the State
Government and the provisions of this
Act shall apply accordingly."

4. The case was registered as
Reference Case no. 188 of 1991 wherein
the respondent workman has stated that he
was working as a daily wager, Chaukidar,
Mali, Adeshpalak since October, 1988.

5. The Labour Court by its award
dated 30.9.1993 held that there as a
violation of Section 6-F of the Act as such
the workman was entitled to reinstatement
946 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
of service as daily wager from 10.6.
1991.The award dated 30.9.1993 became
final as the writ petition and Special
Leave Petition filed by the petitioner were
dismissed.

6. Adjudication case no. 19 of 1991
was in respect of regularization of
services of the workman as well as other
daily wagers working along with him was
also decided vide award dated 15.3.95. It
appears from the award dated 15.3.1995
that neither the services of respondent
nO.2 were regularized nor the services of
other daily wagers who were working
along with him were regularized and their
claim was rejected.

7. However, on the basis of the
award dated 30.9.93 in Reference Case
No. 188 of 1991, respondent no.2 filed an
application under Section 6-H(2) of the
Act before the Labour Court, U.P. Kanpur
claiming a sum of Rs.46,100/- as
permanent employee but the Labour
Court vide its order dated 8.4.1996 in
R.D. Case No. 96 of 1995 allowed only a
sum of Rs.39,800/- treating the workman
as daily wager.

8. It further appears that respondent
no.2 had also filed an application under
Section 33 (C) (2) of the U.P. Industrial
Disputes Act, 1947 claiming bonus which
was registered as Misc. Case No. 190 of
1996. The aforesaid application was
rejected vide order dated 6.4.1998 by the
Labour Court. Respondent no.2 also filed
an application under Section 33 (C) (2) of
the Act claiming his wages as Tube-well
operator on regular basis which was
registered as Misc. Case no. 353 of 1999.
The aforesaid application was allowed by
the Labour Court vide order dated
16.8.2001 and is under challenge in this
writ petition.

9. It is apparent from above that
earlier the claim of the workman for
regularization in service was rejected vide
order dated 15.3.95 in Adjudication Case
No. 19 of 1991 but in Misc. Case
No.1353 of 1999 under Section 33-C (2)
he was directed to be paid salary of
regular employee as there was no
permanent and vacant post available. The
claim of the workman has been rejected
twice. The Labour Court in Reference no.
188 of 1991 and in R.D. case no. 96 of
1995 as well as in Misc. Case No. 190/96
rejected the claim of the workman on the
ground that he was a daily wager. To my
mind, no order could have been passed by
the Labour Court under Section 33 (C) (2)
of the Act for payment of salary as is paid
to regular employee on basis of principles
of equal pay for equal work in the
aforesaid backdrop until and unless it is
proved by the workman concerned that he
shoulders the same responsibility as is
shoulder by a regular employee that he
was working on a permanent post. Even
as a daily wager he is discharging the
same duties as is discharged by a regular
employee.

10. Law in this regard has been
settled by the Apex Court in the case of
State of Haryana and others Versus
Jasmer Singh and others, 1997(75) FLR
776 in which it has been held for
application of principles of 'equal pay for
equal work' various dimensions of given a
job are required to be considered as such
dexterity that job may entail may differ
from job to job. It was also held by the
Apex Court that employees on daily
wages can not claim equal treatment with
employees in regular service and also can
3 All] State of U.P. V. The P.O., Labour Court and another
947
not get minimum of regular pay scales.
The regularization of service is a matter
of State policy. The observation made by
the Apex Court in this regard is as under:-

"The quality of work which is
produced may be different and even the
nature of work assigned may be different.
It is not just a comparison of physical
activity. The application of the principle
of 'equal pay for equal work' requires
consideration of various dimensions of a
given job. The accuracy required and the
dexterity that the job may entail may
differ from job to job. It must be left to be
evaluated and determined by an expert
body.

It is, therefore, clear that the quality
of work performed by different sets of
persons holding different jobs will have to
be evaluated. There may be differences in
educational or technical qualifications
which may have a bearing on the skills
which the holders bring to their job
although the designation of the job may
be the same."

11. To the same effect is the
judgment rendered by the Apex Court in
Government of West Bengal v. Taruk
K. Roy, ( 2004) 1 SCC-347 wherein in
paragraph 14 it has been held that
doctrine of equal pay for equal work
would be automatically applied.

12. The petitioner is a daily wager,
therefore, can be treated as a separate
class.
The
Labour
Court
without
discussing all various factors as stated
above in Adjudication Case it could not
have directed for payment of salary to the
workman at par with a regular employee.

13. Admittedly, the petitioner was
not appointed on any post and the labour
Court has granted him salary at par with a
regular employee on the ground that when
the said post is available he may be
appointed on the said post. This could not
have been done by the Labour Court
under Section 33 (c) 2 the Act or even in
Adjudication case for the reason that the
petitioner was not appointed on a
permanent post and thus the award passed
by the Labour Court appears to have been
passed on surmises and conjectures. The
principle of equal pay for equal work can
not be accepted even for the post of ledger
clerks as has been held in the case of
State of Punjab Vs. Devinder Singh,
(1998) 9 SCC-595 . It was held by the
Apex Court in the case of State of
Haryana and others Versus Charanjit
Singh and others, (2006) 9 SCC-321 that
the
Court
has
to
determine
the
applicability
of
said
principle
on
considering
all
relevant
facts
like
classification enumerated, being merit
experience.
jncentivisation,
mode
of
selection/recruitment,
qualifications,
quality, nature, reliability of work done,
responsibility
entailed,
regardless
of
nomenclature/job description or volume
of output.

14. Sri Siddarth, learned counsel for
the respondent workman has also relied
upon paragraphs 54 and 55 of the
judgment rendered in Secretary, State of
Karnataka and others Vs. Uma Devi (3)
and others, (2006) 4 SCC-1 in which it
has been held that-

"54. It is also clarified that those
decisions which run counter to the
principle settled in this decision, or in
which directions running counter to what
we have held herein, will stand denuded
of their status as precedents.
948 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
55. In cases relating to service in the
Commercial Taxes Department, the High
Court has directed that those engaged on
daily wages, be paid wages equal to the
salary and allowances that are being paid
to the regular employees of their cadre in
government service with effect from the
dates from which they were respectively
appointed. The objection taken was to the
direction for payment from the dates of
engagement. We find that the High Court
had clearly gone wrong in directing that
these employees be paid salary equal to
the salary and allowances that are being
paid to the regular employees of their
cadre in government service with effect
from the dates from which they were
respectively engaged or appointed. It was
not open to the High Court to impose such
an obligation on the State when the very
question before the High Court in the case
was whether these employees were
entitled to have equal pay for equal work
so called and were entitled to any other
benefit. They had also been engaged in
the teeth of directions not to do so. We
are, therefore, of the view that, at best, the
Division Bench of the High Court should
have directed that wages equal to the
salary that is being paid to regular
employees be paid to those daily-wage
employees with effect from the date of its
judgment. Hence, that part of the direction
of the Division Bench is modified that it
is directed that these daily wage earners
be paid wages equal to the salary at the
lowest grade of employees of their cadre
in the Commercial Taxes Department in
government service from the date of the
judgment of the Division Bench of the
High Court. Since. they are only daily
wage earners. there would be no
question of other allowances being paid
to them. In view of our conclusion. that
the Courts are not expected to issue"
directions for making such persons
permanent in service. we set aside that
part of the direction of the High Court
directing the Government to consider
their cases for regularization. We also
notice that the High Court has not
adverted to the aspect as to whether it
was regularization or it was giving
permanency that was being directed by
the High Court. In such a situation the
direction in that regard will stand
deleted and the appeals filed by the
State would stand allowed to that
extent. If sanctioned posts are vacant (
they are said to be vacant) the State will
take immediate steps for filling those
posts by a regular process of selection.
But
when
regular
recruitment
is
undertaken, the respondents in CAs Nos.
3595-612 and those in the Commercial
Taxes Department similarly situated, will
be allowed to compete, waiving the age
restriction imposed for the recruitment
and giving some weightage for their
having been engaged for the work in the
Department for a significant period of
time. That would be the extent of the
exercise of power by this Court under
Article 142 of the Constitution to do
justice to them."

15. As regards Uma Devi's case
(supra) the Apex Court has clearly held
that daily wagers cannot be paid other
allowances as are being paid wages to
regular employees and the Courts are not
expected to issue directions for making
such persons permanent in service and set
aside the judgment of the High Court
directing for considering the cases of such
daily wage employees for regularization.
If the High Court cannot issue a direction
to consider regularization of employee in
exercise of its extraordinary power under
Article 226, then can the Labour Court
3 All] Jhabboo and others V. State of U.P.
949
under Section 33-C(2) direct payment of
regular salary of a permanent employee to
a daily wager on the ground that there is
no vacant of sanctioned post.

16. To my mind, this order would
not have been passed by the Labour Court
as even otherwise no appointment can be
directed to be made by the Labour Court
de-horse the rules for recruitment even
under Section 4K of the U.P. Industrial
Disputes Act, 1947 to Section 10 of the
Industrial Disputes Act (Central), 1947 as
the jurisdiction of Labour Courts or the
Industrial Tribunal is excluded to that
extent in view of settled position of law in
this regard by the Apex Court in a stream
of decisions which are binding on all
courts including Labour Courts as it has
all the trapping of Courts, under Article
141 of the Constitution.

17. For the reasons stated above and
in view of the facts and circumstances of
the case as well as on consideration of law
particularly that the cases cited by the
petitioner are clearly distinguishable, the
writ petition is allowed and the impugned
order is hereby quashed. No order as to
costs.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.09.2008

BEFORE
THE HON'BLE SHIV SHANKER, J.

Criminal Appeal No. 486 of 1982

Jhabboo and others

...Appellants
Versus
State of U.P.

...Respondent

Counsel for the Appellants:
Sri. R.C. Kandpal
Sri. S.K. Tiwari
Counsel for the Respondent:
A.G.A.

Indian
Penal
Code-Section
395/397
I.P.C.-conviction of 10 years R.I.-all the
appellants resident of same village-FIR
lodged
after
13
hours
without
explanation-looted
property
not
recovered
from
the
custody
of
appellants-itself
shows
innocence
of
appellants-trial Court committed great
illegality by passing conviction orderhence set aside.

Held: Para 17

It is also worth while to mention here
that the accused-appellants were not
arrested on the spot at the time of
committing
dacoity
nor
any
looted
property was recovered or discovered
from
their
possession
or
on
their
pointing out. It is very surprising that all
the appellants are resident of same
village. They were named in the F.I.R.
After one day of the incident they were
arrested by the police but nothing was
recovered. This also shows the innocence
of the appellants. Therefore it appears
that the appellants have been falsely
implicated by P.W. 1 in lodging the FIR.
due to the enmity. However the trial
court has committed the error, illegality
in convicting the appellants for the
charges levelled against them.

(Delivered by Hon'ble Shiv Shanker, J.)

1. This criminal appeal, under
section 374 (2) Criminal Procedure Code,
has been filed against the impugned
judgment and order dated l6.2.1982
passed in Session Trial No. 376 of 1980
State Vs. Jhabboo and others convicting
the accused Jhabboo or the offence under
sections 395/397 of Indian Penal Code
and he was sentenced to under go
rigorous imprisonment for 10 years. Other
accused-appellant Sunder, Hansh and
Itwari were also found guilty for the