# State of U.P v. Vijay Prakash & Anr

- **Citation:** (2015) 2 ILRA 581
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-04-29
- **Bench:** Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-vijay-prakash-anr-43162
- **Pages:** 6

## Headnote

Constitution of India, 'Back Wages'-Time
bound
appointment-automatically
service
come to an end-refer after 17 years-award
regarding reinstatement with back wageswithout discussion of retrenchment notice and
gainfully employment during retrenchment
period-held-award not sustainable-direction
for fresh consideration given.
Held: Para-13
No finding has been recorded in the
impugned award either with respect to
notice of retrenchment as admitted by the
respondent-workmen themselves or on the
point of completion of continuous service of
240 days by them in any calender year.
582
 INDIAN LAW REPORTS ALLAHABAD SERIES
Case Law discussed:
(2005) 3 SCC 193; (1969) 3 SCC 513; AIR
1959 SC 1238; 1967 (66) ITR 462; JT 2010 (2)
SC 566; 2011 (269) E.L.T. 433(S.C.)(para 8).

## Text

2 All] State of U.P. Vs. Vijay Prakash & Anr.
581
Authority as well as the Nagar Nigam to
convert an open space which is used for
recreation including by morning walkers
into a multi level car parking facility,
cannot be countenanced. These areas are
the lungs of the urban areas. The counter
affidavit filed by the Nagar Nigam seems
to take a casual view of the urbanisation
of the city of Meerut. What the
Commissioner of the Nagar Nigam has
clearly ignored, is the duty of the Nagar
Nigam to ensure that the right to life of
the citizens of the city, which is protected
by Article 21 of the Constitution, is not
violated by depriving the citizens of the
use of open spaces. Constructing a multi
level car parking facility and expecting
citizens to use the terrace of a concrete
structure as a play ground and as a park
would be travesty of urban planning. A
citizen has every right to utilise a park in
its conventional form. As regards open
spaces, the right of a citizen to use them,
cannot be abrogated by expecting all
citizens, irrespective of age or disabilities
to utilise the top floor or terrace of a
constructed building, as recreation. This
simply cannot be acceptable. Walking on
the terrace of a multi storeyed building is
no substitute for being rooted to the earth.
We express the deep concern of the Court
about the manner in which public
authorities are eying the few remaining
open
spaces
in
urban
areas
for
commercial development. The need of
citizens to a holistic pattern of life in the
urban areas cannot be sacrificed at the
altar of human avarice and greed.
Rapacious urban sprawls will destroy the
remaining green areas, if unchecked.
7. In the circumstances, we hold and
declare that the proposal for the redevelopment of the area of Town Hall and
its appurtenant park into a multi level car
parking facility is against the intent of the
statutory
provisions
and
cannot
be
approved.
The
Meerut
Development
Authority shall in terms of the statement
made in the affidavit, be at liberty to
pursue any alternative proposal for
constructing a multi level car parking
facility. The authorities are directed to
maintain the area of the park as a park.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.04.2015
BEFORE
THE HON'BLE SURYA PRAKASH
KESARWANI, J.
C.M.W.P. No. 15739 of 2012 alongwith
W.P. No. 15740 of 2012; W.P. No. 15741
of 2012
State of U.P.
 ...Petitioner
Versus
Vijay Prakash & Anr.
...Respondents
Counsel for the Petitioner:
Sri Shekhar Kumar, Dr. Madhu Tandon,
S.C.
Counsel for the Respondents:
Sri Jamal Khan
Constitution of India, 'Back Wages'-Time
bound
appointment-automatically
service
come to an end-refer after 17 years-award
regarding reinstatement with back wageswithout discussion of retrenchment notice and
gainfully employment during retrenchment
period-held-award not sustainable-direction
for fresh consideration given.
Held: Para-13
No finding has been recorded in the
impugned award either with respect to
notice of retrenchment as admitted by the
respondent-workmen themselves or on the
point of completion of continuous service of
240 days by them in any calender year.
582
 INDIAN LAW REPORTS ALLAHABAD SERIES
Case Law discussed:
(2005) 3 SCC 193; (1969) 3 SCC 513; AIR
1959 SC 1238; 1967 (66) ITR 462; JT 2010 (2)
SC 566; 2011 (269) E.L.T. 433(S.C.)(para 8).
(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)
1. Heard Dr. Madhu Tandon,
learned counsel for the petitioner and Sri
Jamal Khan, learned counsel for the
respondent no. 1.
2. Subject matter of all the above
three noted writ petitions is the impugned
common award and as such these writ
petitions are being heard together.
3. After the start of arguments a
counter affidavit dated 15.4.2014 has
been filed today after about a year of its
swearing and without disclosing that why
the counter affidavit is being filed so
belatedly.
4.
The respondent-workmen raised
industrial dispute after about 17 years of their
alleged disengagement, before the respondent
no. 2 who passed the impugned award dated
26.4.2011 in Adjudication Case No. 8 of
2009, Adjudication Case No.9 of 2009 and
Adjudication Case No. 10 of 2009 as under : -
^^8- EkSus mHk;i{kksa ds fo}ku vf/kd`r
izfrfuf/k;ksa dh cgl foLrkj iwoZd lquh vkSj i=koyh
dk lEiw.kZ voyksdu fd;kA
9- eS bl fu"d"kZ ij igWqapk gWw fd oknh Jfedksa
dh lsok;sa fnukad 25-5-1992 ls lekIr fd;k tkuk
vuqfpr ,oa voS/kkfud gSA Jfedksa dh lsok lekfIr
ds fnukad 25-5-1992 ls LFkk;h :i ls lsok esa cgky
fd;k tkrk gS vkSj cSBdh vof/k dk lEiw.kZ osru
ikus dk vf/kdkjh gSA ;gh esjk fu.kZ; gSA
Jfedksa dks lsok;kstdksa }kjk okn O;; ds :i
esa izR;sd Jfed dks :0 500 vnk djsaA
;g vfHkfu.kZ; fookn rn~kuqlkj fuLrkfjr
fd;k tkrk gSA**
5. Before the respondent no. 2 the
petitioners have clearly stated that the
respondent no.1 was engaged temporarily
for a fixed period between 26th January,
1991 to 25th May, 1992 and after expiry
of the said period the engagement of the
respondent-workmen automatically came
to an end. The industrial dispute was
raised
after
about
17
years.
The
respondent-workmen stated before the
Labour Court that they were retrenched
after giving notice. By the oral evidence
also the petitioner tried to establish that
the respondent-workmen were engaged on
daily wage basis to get done the
miscellaneous work in the event of need.
However, Presiding Officer, Labour Court
passed the impugned award abruptly
recording conclusion as aforequoted that
the retrenchment of the respondentworkmen on 25.5.1992 is illegal and ,
therefore, they are reinstated in service
with full back wages. Thus, the impugned
award being without reasons for the
conclusions reached, can not be sustained.
Consequently order for payment of back
wages can also not be sustained.
6. Apart from above, the respondentworkmen have not stated that what are the
size of their family, how they sustained
their family and themselves for such long
period of about 20 years without any
employment and what were the means of
their
livelihood.
The
respondentworkmen have not even stated or led any
evidence that they were not engaged in
any gainful employment during the long
period of about 20 years. These are the
relevant
factors
which
should
be
considered for determination of quantum
of back wages to a daily wager in case of
2 All] State of U.P. Vs. Vijay Prakash & Anr.
583
his retrenchment in breach of the
provisions of Section 6N of the U.P.
Industrial Act Dispute, 1947, if he is
found to be entitled for back wages.
Presiding Officer, Labour Court granted
full back wages without recording any
finding or discussion on the relevant
factors in the impugned award. Under the
circumstances, the grant of back wages by
the impugned award is wholly arbitrary
and illegal.
7. There can be no quarrel with the
argument of learned counsel for the
respondent no.1 that the scope of
interference under Article 226 of the
Constitution of India against an award is
limited and the Court cannot go into the
questions of fact decided by the labour
court or the Tribunal, which is the final
fact finding authority / court. Interference
can be made only if a finding of fact is
perverse or if the same is not based on
legal
evidence.
In
the
case
of
Management
of
Madurantakam
Cooperative
Sugar
Mills
Vs.
S.
Vishwanathan,
(2005) 3
SCC
193,
Hon'ble Supreme Court held in para 12 as
under :
"12. Normally, the Labour Court or
the Industrial Tribunal, as the case may
be, is the final court of facts in these type
of disputes, but if a finding of fact is
perverse or if the same is not based on
legal evidence the High Court exercising
a power either under Article 226 or under
Article 227 of the Constitution of India
can go into the question of fact decided by
the Labour Court or the Tribunal. But
before going into such an exercise it is
necessary that the writ court must record
reasons why it intends reconsidering a
finding of fact. In the absence of any such
defect in the order of the Labour Court the
writ court will not enter into the realm of
factual
disputes
and
finding
given
thereon. A consideration of the impugned
order of the learned Single Judge shows
that nowhere he has come to the
conclusion that the finding of the Labour
Court is either perverse or based on no
evidence or based on evidence which is
not legally acceptable. Learned Single
Judge proceeded as if he was sitting in a
court of appeal on facts and item after
item of evidence recorded in the domestic
enquiry as well as before the Labour
Court was reconsidered and findings
given by the Labour Court were reversed.
We find no justification for such an
approach by the learned Single Judge
which only amounts to substitution of his
subjective satisfaction in the place of such
satisfaction of the Labour Court."
8. In the case of M/s. Hindustan
Steels Ltd. Rourkela Vs. A.K. Roy and
others, (1969) 3 SCC 513, Hon'ble
Supreme Court held in para 16 as under :-
"12. On a consideration of all the
circumstances, the present case, in our
view, was one such case. The Tribunal
exercised its discretion mechanically
without weighing the circumstances of the
case. That was no exercise of discretion -
at all. There is ample authority to the
effect that if a statutory tribunal exercises
its discretion on the basis of irrelevant
considerations or without regard to
relevant considerations, certiorari may
properly issue to quash its order. [See
S.A. de Smith, Judicial Review of
Administrative Action, (2nd ed.) 324325]. One such relevant consideration, the
disregard of which would render its order
amenable to interference, would be the
well- settled principles laid down in
decisions binding on the tribunal to whom
584
 INDIAN LAW REPORTS ALLAHABAD SERIES
the discretion is entrusted. The refusal by
the High Court to interfere was equally
mechanical and amounted to refusal to
exercise,
its
jurisdiction.
Its
order,
therefore, becomes liable to interference."
(Emphasis supplied by me)
9. In the case of Omar Salay Mohd.
Sait Vs. Commissioner of Income Tax,
Madras, AIR 1959 SC 1238, Hon'ble
Supreme Court held in para 42 as under :-
"42. We are aware that the Incometax Appellate Tribunal is a fact finding
Tribunal and if it arrives at its own
conclusions of fact after due consideration
of the evidence before it this court will
not interfere. It is necessary, however,
that every fact for and against the assessee
must have been considered with due care
and the Tribunal must have given its
finding in a manner which would clearly
indicate what were the questions which
arose for determination, what was the
evidence pro and contra in regard to each
one of them and what were was the
reached on the evidence on record before
it. The conclusions reached by the
Tribunal should not be coloured by any
irrelevant considerations or matters of
prejudice
and
if
there
are
any
circumstances which required to be
explained by the assessee, the assessee
should be given an opportunity of doing
so. On no account whatever should the
Tribunal base its findings on suspicions,
conjectures or surmises nor should it act
on no evidence at all or on improper
rejection
of
material
and
relevant
evidence or partly on evidence and partly
on suspicions, conjectures or surmises and
if it does anything of the sort, its findings,
even though on questions of fact, will be
liable to be set aside by this court."
10. In the case of Udhav Das Kewat
Ram Vs. CIT 1967 (66) ITR 462, Hon'ble
Supreme Court held that Tribunal must
consider with due care all material facts
and record its findings on all contentions
raised before it and the relevant law.
11. An order without valid reasons
cannot be sustained. To give reasons is
the rule of natural justice. Highlighting
this rule, Hon'ble Supreme Court held in
the case of The Secretary & Curator,
Victoria Memorial v. Howrah Ganatantrik
Nagrik Samity and ors., JT 2010(2)SC
566 para 31 to 33 as under :
"31. It is a settled legal proposition
that not only administrative but also
judicial order must be supported by
reasons, recorded in it. Thus, while
deciding an issue, the Court is bound to
give reasons for its conclusion. It is the
duty and obligation on the part of the
Court to record reasons while disposing of
the case. The hallmark of an order and
exercise of judicial power by a judicial
forum is to disclose its reasons by itself
and giving of reasons has always been
insisted upon as one of the fundamentals of
sound administration justice - delivery
system, to make known that there had been
proper and due application of mind to the
issue before the Court and also as an
essential requisite of principles of natural
justice. The giving of reasons for a
decision is an essential attribute of judicial
and judicious disposal of a matter before
Courts, and which is the only indication to
know about the manner and quality of
exercise undertaken, as also the fact that
the Court concerned had really applied its
mind. " [Vide State of Orissa Vs.
Dhaniram Luhar (JT 2004(2) SC 172 and
State of Rajasthan Vs. Sohan Lal & Ors.
JT 2004 (5) SCC 338:2004 (5) SCC 573].
2 All] State of U.P. Vs. Vijay Prakash & Anr.
585
32. Reason is the heartbeat of every
conclusion. It introduces clarity in an order
and without the same, it becomes lifeless.
Reasons
substitute
subjectivity
by
objectivity. Absence of reasons renders the
order indefensible/unsustainable particularly
when the order is subject to further challenge
before a higher forum. [Vide Raj Kishore Jha
Vs. State of Bihar & Ors. AIR 2003 SC
4664; Vishnu Dev Sharma Vs. State of Uttar
Pradesh & Ors. (2008) 3 SCC 172; Steel
Authority of India Ltd. Vs. Sales Tax
Officer, Rourkela I Circle & Ors. (2008) 9
SCC 407; State of Uttaranchal & Anr. Vs.
Sunil Kumar Singh Negi AIR 2008 SC
2026; U.P.S.R.T.C. Vs. Jagdish Prasad
Gupta AIR 2009 SC 2328; Ram Phal Vs.
State of Haryana & Ors. (2009) 3 SCC 258;
Mohammed Yusuf Vs. Faij Mohammad &
Ors. (2009) 3 SCC 513; and State of
Himachal Pradesh Vs. Sada Ram & Anr.
(2009) 4 SCC 422].
33. Thus, it is evident that the
recording of reasons is principle of natural
justice and every judicial order must be
supported by reasons recorded in writing.
It ensures transparency and fairness in
decision making. The person 23 who is
adversely affected may know, as why his
application has been rejected.
(Emphasis supplied by me)
12
Non recording of reasons, non
consideration of admissible evidence or
consideration
of
inadmissible
evidence
renders the order to be unsustainable. Hon'ble
Supreme Court in the case of Chandana
Impex Pvt. Ltd. Vs. Commissioner of
Customs, New Delhi , 2011(269)E.L.T. 433
(S.C.)(para 8) held as under :
"8. Having bestowed our anxious
consideration on the facts at hand, we are
of the opinion that there is some merit in
the submission of learned counsel for the
appellant that while dealing with an
appeal under Section 130 of the Act, the
High Court should have examined each
question formulated in the appeal with
reference to the material taken into
consideration by the Tribunal in support
of its finding thereon and given its
reasons for holding that question is not a
substantial question of law. It needs to be
emphasised that every litigant, who
approaches the court for relief is entitled
to know the reason for acceptance or
rejection of his prayer, particularly when
either of the parties to the lis has a right of
further appeal. Unless the litigant is made
aware of the reasons which weighed with
the court in denying him the relief prayed
for, the remedy of appeal will not be
meaningful. It is that reasoning, which
can be subjected to examination at the
higher forums. In State of Orissa Vs.
Dhaniram Luhar2 this Court, while
reiterating that reason is the heart beat of
every conclusion and without the same, it
becomes lifeless, observed thus :
"8.......Right
to
reason
is
an
indispensable part of a sound judicial
system; reasons at least sufficient to
indicate an application of mind to the
matter before court. Another rationale is
that the affected party can know why the
decision has gone against him. One of the
salutary requirements of natural justice is
spelling out reasons for the order
made;......."
(Emphasis supplied by me)
13. No finding has been recorded in
the impugned award either with respect to
notice of retrenchment as admitted by the
respondent-workmen themselves or on the
586
 INDIAN LAW REPORTS ALLAHABAD SERIES
point of completion of continuous service
of 240 days by them in any calender year.
14. In view of the above discussions,
the impugned award cannot be sustained
and is, therefore, set aside.
15.
In result, writ petitions succeed
and are hereby allowed. The impugned
award dated 26.4.2011 passed by the
Presiding Officer, Labour Court, U.P.
Firozabad in Adjudication Case No. 08 of
2009, Adjudication Case No. 09 of 2009
and Adjudication Case No. 10 of 2009 are
hereby set aside. The matter is remitted
back to the concerned Labour Court for
decision afresh in accordance with law, as
expeditiously as possible, preferably within
a period of three months from the date of
production of a certified copy of this order.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.04.2015
BEFORE
THE HON'BLE SUNEET KUMAR, J.
C.M.W.P. No. 18049 of 2015
Braham Singh
...Petitioner
Versus
A.D.J. Moradabad & Ors.
...Respondents
Counsel for the Petitioner:
Sri Susheel Kumar Tewari, Sri Shah O.P.
Agarwal
Counsel for the Respondents:
Sri Pawan Kumar Shukla
Constitution
of
India,
Art.-227Superintendent power of High Courtscope of interference-explained-no error
of law nor jurisdiction error-finding of
facts recorded by Court below regarding
default in paying rent-petition under Art.
226-not maintainable in view of 'Radhy
Shyam' case-not can be interfered by
exercising supervisory power also.
Held: Para-13
In the facts and circumstances of the case
in hand, I am of the opinion that the
Courts below have not erred in law or
committed any jurisdictional error in
holding that the petitioner defaulted in
payment of rent and had failed to pay the
arrears, accordingly, the petitioner is not
entitled to avoid decree of eviction on the
ground of default in payment of rent under
Section 20(4) of the Act, as admittedly the
petitioner had acquired another house in
the city itself. There is no flaw in decreeing
the suit on the ground of default.
Case Law discussed:
Civil Appeal No. 2548 of 2009; (2010) 8 SCC
329.
(Delivered by Hon'ble Suneet Kumar, J.)
1. Petitioner is a tenant in a portion of
the
building
situated
at
Mohalla
Kanoongoyan,
Near
Hathiwala
Mandir
Mandir, Moradabad. The respondent/landlord
after determination of tenancy by notice dated
13.12.2007 instituted a suit being Suit No. 2 of
2009 before the Small Causes Court at
Moradabad for eviction and on having
defaulted in payment of rent since 2005. The
parties contested the suit. The petitioner did
not dispute that he is the tenant of the
premises in question of which the respondent
is the landlord.
2. The petitioner contended that the
rent for the period 1 March 2005 to 31
July 2013 has been deposited in the Court
unconditionally, accordingly, petitioner
was entitled to the protection under subclause (4) of Section 20 of the U.P. Act
No. 13 of 1972, therefore, is not liable for
eviction on the ground of default. The
Court of first instance decreed the suit on
21 October 2014 holding the petitioner to