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

- **Citation:** (2023) 4 ILRA 931
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-15
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-the-presiding-officer-labour-court-allahabad-anr-50054
- **Pages:** 4

## Headnote

A. Labour Law - Industrial Disputes Act,
1947 - Sections 2(Z), 6 & 33 (C) (2) -
Workman - Definition - Junior Engineer,
whether
come
within
definition
of
workman
-
Held,
the
irrigation
department is an industry, therefore, the
employees of the irrigation department
are covered under the definition of
"Workman", therefore it is concluded that
a junior engineer is the workman u/s 6
and 2 (Z). (Para 13)
B. Labour Law - Industrial Disputes Act,
1947 - Section 33 (C) (2) - Absent from
service for which 'Leave without pay' was
granted - Labour court passed the award
holding
that
employer
was
also
responsible for payment of arrears of
salary - Validity challenged by the St. -
Held, the impugned order appears to be
non-speaking, sketchy and ex-parte - The
labour court has not considered the facts
that the 'workman' was granted 'leave
932 INDIAN LAW REPORTS ALLAHABAD SERIES
without pay' for the period for which he
cannot get salary until it is converted into
the 'paid leave'. (Para 8 and 15)
Writ petition allowed. (E-1)
List of Cases cited:

## Text

4 All. State of U.P. Vs. The Presiding Officer, Labour Court, Allahabad & Anr.
931
20.07.1996 as null and void after framing
the issue of jurisdiction and the same has
also been affirmed by the Appellate Court
vide order dated 8.4.2021. Therefore order
of Civil Court dated 10.4.2015 and order of
Appellate Court dated 8.4.2021 cannot be
said to be void ab initio without its reversal
from the Higher Court and the same cannot
be ignored by the Revenue Authorities.

19. So far as fourth judgment of Patna
High Court in the matter of Shiva Poojan
Dubey(Supra), relied upon by the learned
counsel for the petitioner is concerned, that
also says that during the pendency of
execution proceeding, Section 47 of C.P.C. bars
for filing any civil suit, therefore suit No. 319 of
2010 is not maintainable. This judgment is also
not applicable to the case of the petitioner for the
very same reason that during the pendency of
execution proceeding, a fresh suit has not been
filed for the same cause of action, but order of
Sub Divisional Magistrate dated 20.07.1996 has
been challenged before the Civil Court and the
Civil Court vide order dated 10.04.2015 has
declared the order dated 20.07.1996 as null and
void. Therefore this judgment is also of no use.

20. Further, Section 9 of the C.P.C.
provides for filing of suit unless barred expressly
or impliedly and Section 47 of C.P.C. shall not
be applicable in the suits covered under the
provision of Section 242 of Act of 1939.

21. Once it is undisputed that the order of
Revenue Court dated 20.07.1996 has been
declared null and void by the Civil Court vide
order dated 10.04.2015, which has been affirmed
by the Appellate Court vide order dated
8.4.2021, no relief can be granted to petitioner.

22. In views of the facts and
circumstances of the case, no mandamus
can be issued for grant of possession to
petitioner as prayed.

23. The petition lacks merit and is
accordingly dismissed.

24. No order as to costs.
----------
(2023) 4 ILRA 931
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.03.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Writ-C No .34252 of 2000

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

Counsel for the Petitioner:
S.C.

Counsel for the Respondents:
C.S.C.

A. Labour Law - Industrial Disputes Act,
1947 - Sections 2(Z), 6 & 33 (C) (2) -
Workman - Definition - Junior Engineer,
whether
come
within
definition
of
workman
-
Held,
the
irrigation
department is an industry, therefore, the
employees of the irrigation department
are covered under the definition of
"Workman", therefore it is concluded that
a junior engineer is the workman u/s 6
and 2 (Z). (Para 13)
B. Labour Law - Industrial Disputes Act,
1947 - Section 33 (C) (2) - Absent from
service for which 'Leave without pay' was
granted - Labour court passed the award
holding
that
employer
was
also
responsible for payment of arrears of
salary - Validity challenged by the St. -
Held, the impugned order appears to be
non-speaking, sketchy and ex-parte - The
labour court has not considered the facts
that the 'workman' was granted 'leave
932 INDIAN LAW REPORTS ALLAHABAD SERIES
without pay' for the period for which he
cannot get salary until it is converted into
the 'paid leave'. (Para 8 and 15)
Writ petition allowed. (E-1)
List of Cases cited:
1. W.P. (M/S) No. 1129 of 2012; St. of U.P. &
anr. Vs Pawan Kumar & anr. decided on
01.12.2016 by Uttrakhand High Court.
2. Des Raj & ors. Vs St. of Pun. & ors.; 1988 (2)
SCC 537
3. Banglore Waster Supply Sewerage Board Vs
A. Rajappa; A.I.R 1978 S.C 548.

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Shri Arvind Kumar Mishra,
learned Standing Counsel for the petitionerState and perused the record.

2. Service of summons was presumed
to be sufficient upon opposite party no. 2
on 26.09.2022 as the same had not returned
back.

3. None appeared for opposite party
no. 2. Hence the petition is decided on
merit.

4. By this writ petition the State has
challenged the order passed by opposite
party no. 1 (the Presiding Officer, Labour
Court, Allahabad), in favour of respondent
no. 2 (Dinesh Chandra Rai), by which the
labour court allowed the application of
respondent no. 2 moved under Section 33
(C) (2) of the Industrial Disputes Act, 1947,
for payment of his salary for the months of
March and April, 1990 and of 01st and
02nd May, 1990.

5. In brief, the facts of the case are
that respondent no. 2 - Dinesh Chandra Rai,
Junior Engineer, Irrigation Department-II,
1, Rampriya Road, Allahabad, moved an
application that he was appointed as Junior
Engineer on 28.03.198. On 03.05.1990, he
was transferred to Irrigation Division,
(Construction Division-Ist) District Lalitpur
and thereafter he was transferred under the
control of Executive Engineer, Irrigation
Department-II, Allahabad - defendant no.
2, Allahabad on 06.06.1992. He has not
been provided his salary for the months of
March and April, 1990 and for the dates
01st and 02nd May, 1990, he had been
provided salary amounting to Rs.,2800/- for
the month of Fab. 1990.

6. According to him, the said
department is liable to pay Rs.5,788 with
interest.

7. A notice was issued to the
employer on 20.05.1998, which was served
upon him on 27.05.1998 and thereafter
several applications were moved in this
regard and lastly the Superintendent
Engineer,
Irrigation
Department-II,
Allahabad objected that he was not the
proper party. Since he joined in Allahabad,
no salary is in arrear and the applicant does
not
come
under
the
definition
of
''workman'. Since, the employer has not
filed any written statement, therefore they
were deprived of filing the same. Later on
they filed the written statement on
16.10.1998, which was not accepted and
the proceeding was concluded ex-parte.
The learned trial court was of the view that
it is an undisputed fact that a Junior
Engineer is covered under the definition of
''workmen'. The trial court concluded that
the arguments of employer that the arrears
relates
/
pertains
to
the
Irrigation
Department 01st Lalitpur, therefore, he is
not responsible for the payment of the
salary for the period when the applicant
4 All. State of U.P. Vs. The Presiding Officer, Labour Court, Allahabad & Anr.
933
was serving in Lalitpur is not the correct
law.

8. Learned labour court concluded
that since the workers has joined under him
on transfer, therefore employer-opposite
party no. 2 was also responsible for the
payment of the arrears of salary of the
workmen. The learned labour court allowed
the application and directed to pay
Rs.5,788/- with an amount of Rs.1,000/- as
damages within a month. In case of noncompliance of the order, it was also
directed to pay the aforesaid amount with
twelve per cent annual interest to the
workman after the expiry of one month.

9. Being aggrieved the State has
challenged the judgment and order by this
writ petition.

10. In brief, in the writ petition, the State
has taken plea that the department does not
come under the purview of an ''industry', hence,
the labour court had no jurisdiction to decide
the claim of the respondent no. 2 and also that
he was absented from his duty. For the
concerned period he was granted leave without
pay. The post of junior engineer false under the
purview of Utter Pradesh Public Services
Commission and it does not fall under the
purview of ''workman'. The proceedings under
Section 33 (C) (2) of the Industrial Disputes
Act, 1947 read with Section 6 and X (2) of the
Act are the proceedings of execution in nature
and without any order or award of any court,
the labour court has no jurisdiction to pass such
order. The claim of respondent no. 2 was
already considered and decided by the
competent authority and he has also been paid
his entire wages for which he was entitled and
he has also received the said money through
voucher form no. 28 by his signature. The
respondent no. 2 was working in the office of
Executive
Engineer
Evam
Niyozan
Jal
Sansthan Department, Civil Lines, Jhansi on
01st March, 1990 and 02nd March, 1990, and
he was absent on the said dates and the order
has been passed for ''leave without pay' by the
competent authority and his entire claim has
been settled even then by concealing these facts
the respondent no. 2 has filed the application
under Section 33 (C) and (2). The respondent
no. 1 has placed reliance on the averments of
the application and the impugned order. The
case set up by the petitioner was not considered
at all and the respondent no. 1 by misconstruing
and misreading the document and facts has
passed the impugned order, therefore the writ
petition be allowed and the impugned order be
quashed.

11. During the course of arguments
learned counsel for the opposite party no. 2 did
not appear in-spite of service of notices, hence
heard Sri Jitendra Narain Rai, Additional C.S.C,
for the petitioner and the order is passed on
merit.

12. So far as the question regarding the
inclusion of post of junior engineer as
''workman' under the definition of the
Industrial Dispute Act, 1957 is concerned, in
following the judicial precedents:-

(1). State of U.P. & Anr. Vs.
Pawan Kumar & Anr. W.P. (M/S) No. 1129
of 2012 dated 01.12.2016, Uttrakhand High
Court.

(2) Des Raj & Ors. Vs. State of
Punjab & Ors. 1988 (2) SCC 537,

(3) Banglore Waster Supply
Sewerage Board Vs. A. Rajappa A.I.R
1978 S.C 548.

13. It has been held that the irrigation
department is an industry, therefore, the
employees of the irrigation department are
934 INDIAN LAW REPORTS ALLAHABAD SERIES
covered
under
the
definition
of
"Workman", therefore on the basis of
above citation, it is concluded that a junior
engineer is the workman under Sections 6
and 2 (Z) of the Industrial Disputes Act,
1947.

14. So far as the arrears of salary for
the month of March and April, 1990 and
for the days of 01st and 02nd May, 1990 is
concerned, in this regard the petitioner had
barely pleaded that its written statement
was not accepted by the labour court. After
transfer, no salary is in arrears and this fact
has not been mentioned. This fact has also
not been mentioned that the plaintiff -
opposite party no. 2 was granted ''leave
without pay' for the aforesaid period,
though in this writ petition, the petitioner
has annexed a copy of an order dated 08th
March, 1991 as Annexure No. 4 that since
05th March, to 30th April, 1990 the
opposite party no. 2 was absent from his
service and he was treated to be absent and
for that period ''leave without pay' was
granted by the Executive Engineer. This
fact was not brought into the knowledge of
the labour court and this fact has also not
been considered by the labour court.
Further, the petitioner has filed the paper
(Annexure No. 5) to this writ petition,
which
discloses
that
an
amount
of
Rs.1,615.10/- was paid to opposite party
no. 2 for the period of March, 1990 to
April, 1990. This fact was also not brought
in the knowledge of the labour court. This
fact and evidence has also not been
considered by the labour court.

15. On the basis of above this Court,
is of the view that until the order regarding
the sanction of ''leave without pay' is
converted into earned leave or any other
leave an employee cannot get his salary for
the period for which he was granted ''leave
without pay'. The impugned order appears
to be non-speaking, sketchy and ex-parte.
The labour court has not considered the
facts that the ''workman' was granted
''leave without pay' for the period for
which he cannot get salary until it is
converted into the ''paid leave'.

16. Inspite of service upon him, the
respondent no. 2 has not filed counter
affidavit to controvert the allegations and
the questions raised from the side of the
petitioner, hence the petition is liable to be
allowed.

O R D E R.

17. This writ petition is allowed and
the impugned order dated 03.05.2000
passed by the Labour Court, Allahabad in
Misc. Case No. 24 of 1997 - Deepak
Chandra Rai Vs. The Executive Engineer
and another is hereby quashed.

18. The labour court is directed to
permit the petitioner to file the written
statement
alongwith
the
aforesaid
documents. After affording an opportunity
of hearing and production of documents
and the evidence to the petitioner, the
learned labour court shall decide the matter
within a period of six months.
----------
(2023) 4 ILRA 934
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.05.2014

BEFORE

THE HON'BLE PRAKASH PADIA, J.

Writ-C No .39791 of 2014

Rakesh Kumar Goel ...Petitioner
Versus
Commissioner, Moradabad & Ors.