# The Handicraft And Handlooms Exports Corp. Of India & Anr v. State Of U.P. & Ors

- **Citation:** (2016) 8 ILRA 1322
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-22
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-handicraft-and-handlooms-exports-corp-of-india-anr-v-state-of-u-p-ors-44196
- **Pages:** 8

## Headnote

to be "State" under Article 12 - Held, appropriate Government for reference of industrial dispute is Central
Government and not State Government - Reference made by State Government under U.P. Industrial
Disputes Act incompetent - Labour Court lacked jurisdiction.
Industrial Disputes - Reference - Jurisdictional issue - Plea raised at later stage - Though plea
of jurisdiction not specifically taken in written statement, same can be raised at any stage as it goes to root of
matter - Court can examine jurisdictional issue in writ proceedings to avoid multiplicity of litigation.
Industrial Disputes - Burden of proof - Employer-employee relationship - Continuous service
- Onus lies on workmen to establish appointment and continuous working (240 days) - Labour Court failed
to record findings on date of appointment, nature of engagement and completion of 240 days - Award
suffers from lack of evidence and proper adjudication.
Contract Labour - Sham contract - Determination - Finding that contract system was sham recorded
without proper analysis of evidence and statutory provisions - Mere existence of contract document of later
period insufficient to infer absence of valid contract system.
Writ Jurisdiction - Interference with award - Remand and liberty - Award vitiated both on merits
and jurisdiction - Instead of remand to State Labour Court, liberty granted to workmen to approach
appropriate Government (Central Government) for fresh reference - Direction issued for expeditious
adjudication.
In Result: Writ petition allowed; impugned award set aside; liberty granted to workmen to seek reference
before appropriate Government; directions issued for expeditious adjudication.

Cases cited:
Steel Authority of India vs. National Union Waterfront Workers and others(2001) 7 SCC 1
Range Forest Officer vs. S.T. Hadimani(2002) 3 SCC 25
National Textile Corporation Limited vs. Naresh Kumar Badrikumar Jagad and other(2011) 12 SCC 695
National Textile Corporation U.P. Limited vs. State of U.P.2004 (2) LBESR 984
8 All. The Handicraft And Handlooms Exports Corp. Of India & Anr. Vs State Of U.P. & Ors. 1323

## Text

1322 INDIAN LAW REPORTS ALLAHABAD SERIES

(2016) 8 ILRA 1322
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.08.2016

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ C No.- 28105 Of 2011

The Handicraft And Handlooms Exports Corp. Of India & Anr. ...Petitioners
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Gautam Baghel, Vinay Saran

Counsel for the Respondents:
C.S.C., Dinesh Pratap Singh, Sohan Lal Yadav, Vishwa Ratna Dwivedi

Industrial Disputes - Appropriate Government - Determination - Jurisdiction of Labour Court
- Petitioner, a Government company with 100% shareholding and deep control of Central Government, held
to be "State" under Article 12 - Held, appropriate Government for reference of industrial dispute is Central
Government and not State Government - Reference made by State Government under U.P. Industrial
Disputes Act incompetent - Labour Court lacked jurisdiction.
Industrial Disputes - Reference - Jurisdictional issue - Plea raised at later stage - Though plea
of jurisdiction not specifically taken in written statement, same can be raised at any stage as it goes to root of
matter - Court can examine jurisdictional issue in writ proceedings to avoid multiplicity of litigation.
Industrial Disputes - Burden of proof - Employer-employee relationship - Continuous service
- Onus lies on workmen to establish appointment and continuous working (240 days) - Labour Court failed
to record findings on date of appointment, nature of engagement and completion of 240 days - Award
suffers from lack of evidence and proper adjudication.
Contract Labour - Sham contract - Determination - Finding that contract system was sham recorded
without proper analysis of evidence and statutory provisions - Mere existence of contract document of later
period insufficient to infer absence of valid contract system.
Writ Jurisdiction - Interference with award - Remand and liberty - Award vitiated both on merits
and jurisdiction - Instead of remand to State Labour Court, liberty granted to workmen to approach
appropriate Government (Central Government) for fresh reference - Direction issued for expeditious
adjudication.
In Result: Writ petition allowed; impugned award set aside; liberty granted to workmen to seek reference
before appropriate Government; directions issued for expeditious adjudication.

Cases cited:
Steel Authority of India vs. National Union Waterfront Workers and others(2001) 7 SCC 1
Range Forest Officer vs. S.T. Hadimani(2002) 3 SCC 25
National Textile Corporation Limited vs. Naresh Kumar Badrikumar Jagad and other(2011) 12 SCC 695
National Textile Corporation U.P. Limited vs. State of U.P.2004 (2) LBESR 984
8 All. The Handicraft And Handlooms Exports Corp. Of India & Anr. Vs State Of U.P. & Ors. 1323
(Delivered by Hon'ble Ashwani Kumar Mishra, J.)

1. Petitioner is a government company registered under the provisions of section 617 of the
Indian Companies Act, 1956. It is engaged in the business of handicrafts and handlooms and also
imports bullion. It is asserted that Central Government owns 100% shares and otherwise exercises
deep and pervasive control over its affairs, and consequently, it qualifies to be a 'State' within the
meaning of Article 12 of the Constitution of India. Challenge is laid in this petition to an award
passed by Labour Court, Noida, District Gautam Budh Nagar in Adjudication Case No.2488 of
2008, dated 16.8.2010, whereby reference has been answered in favour of the respondent workmen.

2. Briefly stated facts are that a reference was made to Labour Court, constituted under U.P.
Industrial Disputes Act, 1947, by the State Government under section 4-K, on 25.10.2007, on the
question as to whether action of employer in not engaging 31 workmen as per schedule from
1.1.1991 is justified or not and to what relief are they entitled to?. The schedule contains names of
31 workmen, who are stated to be drawing wages of Rs.1,500/- per month and are stated to be
working from 1977 to 1990. A written statement was filed by workmen stating that an industrial
dispute has arisen on account of the fact that workmen, who have been permanently working since
long, raised demand of regularization whereafter employer started describing such workmen to be
employees of respondent no.9 and stopped taking work from them from 1.1.1991, without passing
any order. Prayer consequently was made to declare 31 workmen to be employees of petitioner and
to regularize them, apart from declaring petitioner's action of not taking work from them w.e.f.
1.1.1991 as illegal and unjustified and to reinstate them alongwith back wages. Other service
benefits were also claimed. A written statement was filed by the petitioner denying the averments
made by the workmen. It was stated that none of the 31 workmen were employed by petitioner and
in fact they were employees of respondent no.9. Existence of employee-employer relationship has
been denied. It was also stated that being contractor's workmen they do not become employees of
petitioner and no industrial dispute exists. Various other submissions were also made. An affidavit
was also filed by the petitioner stating that petitioner is an establishment of Government of India.
Written and oral evidence was led by the parties, which shall be dealt with later.

3. Labour Court has returned a finding that the workmen are not the employees of
respondent no.9 and they were engaged on different dates from 1977 to 1990. Further finding has
been returned that workmen were illegally terminated from 1.1.1991. The argument raised on
behalf of petitioner that reference itself was incompetent, as the employer herein is an
establishment of Government of India, has not been entertained since no specific plea in this regard
was taken by the petitioner in the written statement. Relief of reinstatement alongwith back wages
and other service benefits has thus been granted. Cost of Rs.10,000/- has also been awarded to the
workmen.

4. Sri Vinay Saran, learned counsel appearing for the petitioner submits that the entire
proceedings culminating in passing of award are wholly without jurisdiction inasmuch as petitioner
being a concern of Government of India, the appropriate government for making of reference was
the Government of India and neither the State of Uttar Pradesh had any jurisdiction to refer the
1324 INDIAN LAW REPORTS ALLAHABAD SERIES

dispute nor the Labour Court, Noida, Gautam Budh Nagar, U.P. had any authority to decide the
matter. The award is also impeached on merits on the ground that in the absence of any details of
appointment, which varies from 1977 to 1990, the appointment itself was not established. It is also
argued that there is no finding that any of these workmen have worked for 240 days in a calender
year, nor reasons have been specified, on account of which their disengagement is held to be illegal.
Various other submissions have also been advanced.

5. Sri Siddharath Singh, learned counsel appearing for the workmen states that the plea of
jurisdiction, in making of reference or entertainment of dispute before Labour Court, was not raised
in the written statement, and in the absence of any pleading or evidence in that regard, has rightly
not been considered by the Labour Court. Learned counsel further contends that these workmen had
continued for very long and disengagement without payment of retrenchment compensation is bad
in law. Learned counsel further submits that the finding that workmen were not employees of
respondent no.9 is based upon correct interpretation of the provisions of Contract Labour
(Regulation and Abolition) Act, 1970.

6. The submission raised by the learned counsel for the petitioner on the legality of
reference and jurisdiction of Labour Court is taken as first. Perusal of award goes to show that such
a plea was raised before the Labour Court, but has been repelled on the ground that it was not raised
in the written statement. This Court has perused the written statement of the employer to find that
no such plea was actually raised. It is only in the writ petition filed before this Court that a specific
plea in that regard has been taken in para 2 and 3. An affidavit although was filed before the Labour
Court stating that petitioner is an establishment of Government of India, but validity of reference
was not questioned. In the oral statement also, employer's witnesses claimed that petitioner is an
establishment of Government of India. Learned counsel for the petitioner has laid emphasis upon
the statement of workers' witness Sri Mohd. Munsi recorded on 9.5.1997. This witness in his cross
examination has admitted that petitioner is an establishment of Government of India. According to
petitioner, such statement clearly amounts to an admission on part of the workmen that petitioner is
an establishment of Government of India, and therefore, not only reference by State Government
was incompetent but the Labour Court also had no jurisdiction. Learned counsel also contends that
specific plea, taken in para 2 and 3 of the writ petition that petitioner corporation is an
establishment of Government of India and all its share holding is held by Government of India, has
not been denied.

7. The submission aforesaid is countered by learned counsel appearing for the workmen
relying upon Constitution Bench judgment of Apex Court in Steel Authority of India vs. National
Union Waterfront Workers and others, (2001) 7 SCC 1 to contend that the issue as to whether
establishment is a unit of Central Government or not is essentially a question of fact to be decided
by the Industrial Adjudicator, and in the absence of any plea having been setup in the written
statement did not merit its examination by the Labour Court. It is also contended that the plea based
upon ascertainment of fact need not be entertained for the first time in writ proceedings. Learned
counsel for the workmen submits that the dispute has remained pending since 1992 and after expiry
of more than 24 years, it would not be appropriate for this Court to entertain a factual issue, which
8 All. The Handicraft And Handlooms Exports Corp. Of India & Anr. Vs State Of U.P. & Ors. 1325
has not been specifically setup as a defence in proceedings before the Labour Court. Argument
advanced on behalf of respondents prima facie appears to have force. Having found substance in
the contention advanced on behalf of the workmen that no specific plea was raised on behalf of
employer before the Labour Court in the written statement regarding incompetence of reference and
consequential lack of jurisdiction with the Labour Court, Noida, U.P. as well as the fact that a
period of 24 years have expired, the Court has proceeded to examine the award on merits and the
issue of jurisdiction was deferred for being examined later, depending upon the outcome of
challenge made to the award on merits.

8. The reference itself has been made at the instance of 31 workmen, who claim themselves
to have been appointed from 1977 to 1990. There is no specific plea in the written statement as to
when exactly these workmen were appointed. It is admitted to them that no appointment letter was
ever issued. According to employer, none of these workmen were ever appointed and they were
employees of respondent no.9 Contractor. Labour Court in para 12 to 15 of the award has dealt with
the case on merits, in following words:-

12- i=koyh ds voyksdu ls eSa blh fu"d"kZ ij igqWprk gwW fd izfroknh lsok;kstd ds bl rdZ esa cy
izrhr ugha gksrk fd Jfedx.k eSllZ DykFk pSuy uks,Mk ds deZpkjh FksA D;ksafd tks vfHkys[k DyksFk pSuy Bsdsnkj dk
izfroknh la[;k&1 dh vksj ls nkf[ky fd;k x;k gS og 26-2-90 dk gS tks izfroknh lsok;kstd la[;k&1 }kjk izn'kZ bZ&2 ds
:i esa fl) fd;k x;k gSA tcfd Jfedx.k izfroknh izfr"Bku esa o"kZ 1777 ls lu~ 1990 rd fofHkUu&fofHkUu frfFk;ksa esa
fu;ksftr gq, Fks bl ckr dk dksbZ Li"V [k.Mu izfroknh lsok;kstd dh vksj ls ugha fd;k x;k gSA izfroknh la[;k&1 }kjk
lacaf/kr Jfedksa }kjk Hksts x;s ekax i= izn'kZ MCyw&1 dk Hkh dksbZ Li"V [k.Mu ugha fd;k gSA izfroknh lsok;kstd ua0&2 dh
vksj ls ,d izkFkZuk i= 26-10-07 dk nkf[ky fd;k x;k ftlesa dgk x;k gS fd lacaf/kr Jfedx.k izfroknh lsok;kstd
ua0&1 ds ;gkW fu;ksftr Fks vkSj izfroknh la[;k&02 ds fo:) dksbZ fookn ugha gSA

13- vr% eS blh fu"d"kZ ij igqWprk gwW fd leLr Jfedx.k izfroknh la[;k&01 ds deZpkjh Fks vkSj
mUgksaus Jfedksa }kjk fof/k lEer lqfo/kkvksa dh ekax fd;s x;s tkus ij 1-1-91 ls leLr Jfedksa dh lsok;s vuqfpr ,oa
voS/kkfud kSrk gks x;k gSA tcfd Jfedx.k bl vokMZ ds iSjk&8 ds ist 4 esa Jfed dh fu;qfDr n'kkZ;h x;h gS lu~ 77 ls
ysdj fofHkUu&fofHkUu frfFk;ksa dk;Zjr FksA Bsdsnkj us Lo;a dgk gS fd eq[; fu;kstu ds deZpkjh Fks vkSj mUgksaus dke
djok;k gS blfy, esjk ;g ekuuk gS fd Bsdsnkj dks fn;k x;k Bsdk dkuwuh Bsdk ugha gS] dkuwuh O;oLFkk ugha gS og lse
Bsdk gSA blfy, esjk ekuuk gS fd Jfedx.k izfroknh la[;k&1 ds deZpkjh FksA Jfedx.k }kjk Jefof/k lqfo/kkvksa dh ekax
djus ds dkj.k izfroknh la[;k&1 }kjk fcuk fof/k lEer iznku fd;s Jfedx.k dh lsok;sa lekIr dj nhA

14- izfroknh la[;k&1 }kjk ;g Hkh rdZ fn;k x;k fd izfroknh la[;k&1 Hkkjr ljdkj dk ,d midze
gS blfy, bl U;k;ky; dks lquus dk vf/kdkj ugha gSA izfroknh la[;k&1 }kjk vius IyhfMXl esa dgha ugha dgk x;k gS fd
;g izfr"Bku Hkkjr ljdkj dk midze gSA vr% izfroknh la[;k&1 ds bl rdZ esa dksbZ cy ugha gSA blfy, lsok;kstd
ua0&1 dk rdZ ekuus ;ksX; ugha gSA

15- vr% izfroknh lsok;kstd eSllZ fn gS.Mhdzk¶V gS.MywEl ,DliksVZ dkjiks0 vkQ bf.M;k fy0]
,&2]3]4 o 5 lsDVj&2 uks,Mk dks vknsf'kr fd;k tkrk gS fd bl vokMZ ds lkFk layXu lwph esa vafdr 31 Jfedksa dks
iqjkuh ukSdjh ds dze esa iwoZ iw.kZ osru o vU; leLr fgr ykHkksa lfgr lsok esa cgky djsA okn O;; ds :i esa :i;s nl
gtkj dk Hkh Hkqxrku djsaA

9. Labour Court has disbelieved petitioner's plea of engagement of workmen by Contractor,
essentially on the ground that contract executed in favour of contractor, filed as Exhibit E-2 was
1326 INDIAN LAW REPORTS ALLAHABAD SERIES

w.e.f. 26.2.1990, whereas engagement of workmen was from 1977 to 1990 and had not been
specifically denied. This observation of labour court is clearly contrary to record inasmuch as
engagement of workmen from 1977 to 1990 by the employer has been specifically denied in the
written statement. Employer's witnesses have disputed it in their oral testimony also. Admittedly,
neither any letter of appointment was brought on record nor any finding has been returned by the
Labour Court as to which of the workmen has been appointed since when. Workmen had claimed
their appointment to have been made from 1977 to 1990, but only 3 out of them had claimed their
appointment from prior to 1980. Most of the workers were engaged in 1988, 1989, 1990 whereas
their termination is w.e.f. 1.1.1991. Labour Court has also not recorded any finding that these 31
workmen had completed 240 days of working in a calender year so as to render their termination
bad for non compliance of section 6-N of the U.P.I.D. Act. In the absence of any specific pleading
with regard to date of engagement of workmen and lack of evidence to substantiate it, Labour Court
had clearly erred in holding that workmen were engaged from 1977 onwards. Law is otherwise
settled that onus to establish appointment and working of the workmen was upon them. (See Range
Forest Officer vs. S.T. Hadimani, (2002) 3 SCC 25). The labour court has not examined as to
whether a valid contract system was enforce nor material aspect with reference to the provisions of
Contract Labour (Regulation and Abolition) Act has been examined and dealt with. The finding
that there was no valid contract system and that contract was sham, is also based on irrelevant
consideration inasmuch as merely for the reasons that the contract filed before it was from
February, 1990 would not lead to such an inference. The labour court was required to have returned
a finding with regard to appointment and working of workmen for more than 240 days in a calender
year to justify its conclusion that termination was bad in law, which is non existent. There is further
no finding of violation of any statutory provision to hold that termination of workmen is bad in law.
Upon all relevant aspects, relating to existence or otherwise of contract and continuous working for
more than 240 days, appropriate consideration and finding is lacking. In the absence of discussion
and finding on relevant aspects, noticed above, the award holding termination to be bad cannot be
sustained.

10. For the reasons noticed above, the award of labour court dated 16.8.2010 is found to be
vitiated in law and cannot be sustained and is hereby set aside.

11. At this stage, the issue crops up as to whether the matter be remitted back for a fresh
consideration by the Labour Court, Noida, Guatam Budh Nagar, U.P. or the issue of validity of
reference and jurisdiction of the Labour Court under the Act of 1947 be examined by this Court
exercising its jurisdiction under Article 226 of the Constitution of India?

12. Learned counsel for the petitioner has placed reliance upon a judgment of Apex Court
in National Textile Corporation Litmited vs. Naresh Kumar Badrikumar Jagad and other, (2011)
12 SCC 695 in order to contend that a pure legal issue relating to jurisdiction can be raised at any
stage of the proceedings. Reliance has also been placed upon judgment of this Court in National
Textile Corporation U.P. Limited vs. State of U.P., 2004 (2) LBESR 984. Para 15 of the judgment is
reproduced:-
8 All. The Handicraft And Handlooms Exports Corp. Of India & Anr. Vs State Of U.P. & Ors. 1327
"15. Reliance has been placed on notification dated 3rd July, 1998 of which
notification following extract was quoted by the Presiding Officer in the order dated 17th July
2000, "In exercise of the powers conferred by Section 39 of the Industrial Disputes Act, 1947 (14 of
the 1947) Central Government hereby directs that all the powers exercisable by it under that Act
and the Rules made thereunder shall...be exercisable also by the State Government". The Presiding
Officer held that since in the present case reference was made after the notification dated 3rd July,
1998, the State Government was competent to refer the matter. After the order dated 17th July
2000, a review application was immediately filed by the employer in which notification dated 3rd
July, 1998 was not denied, rather it was stated that the State Government can exercise delegated
power only with regard to references which could have been made by the Central Government
under the Industrial Disputes Act, 1947. It was stated in paragraph 5 that reference could have been
made to the industrial Tribunal constituted under the Industrial Disputes Act, 1947 by the State
Government. In paragraph 6 of the application, it was specifically stated that the State Government
has referred the dispute to the industrial Tribunal constituted by the State Government under the
U.P. Industrial Disputes Act, 1947. From the materials on the record, it is clear that the reference
was made by the State Government vide its order dated 12th November, 1998 exercising
jurisdiction under Section 4K of the U.P. Industrial Disputes Act, 1947. Delegated power under
Section 39 of Industrial Disputes Act, 1947, the Central Government, which is the appropriate
Government for the purposes of present case, could have made a reference to a Court constituted in
accordance with Section 17A of the Industrial Disputes Act, 1947. The industrial Tribunal to which
the reference was made was a industrial Tribunal constituted for Uttar Pradesh under the U.P.
Industrial Disputes Act, 1947. The State Government in the referring order itself referred to its
power under Section 4K of U.P. Industrial Disputes Act, 1947. Thus, the stand taken by the
Respondents that under Section 39, the State Government can exercise delegated power of the
Central Government while making reference cannot be accepted. In the present case, the State
Government did not make reference exercising delegated power of the Central Government under
Section 39 of the Industrial Disputes Act, 1947, rather it exercised its jurisdiction under Section 4K
of U.P. Industrial Disputes Act, 1947. The appropriate Government in the present case being the
Central Government, as observed above, the reference could have been made only by the Central
Government. The plea of the Respondents that State Government exercised the delegated power
under Section 39 of Industrial Disputes Act, 1947 which found favour with the Presiding Officer,
Industrial Tribunal, is unsustainable. The reference made to the industrial Tribunal itself being
incompetent, the award falls on the ground due to the said reason. It having been found that the
reference itself was incompetent, it is not necessary, for this case, to consider and decide other
submissions raised by the counsel for the Petitioners. This writ petition deserves to be allowed on
the decision taken on the first submission of counsel for the Petitioners."

13. No doubt it is true that no specific plea had been raised in the written statement by the
petitioner to the effect that petitioner corporation is an establishment of Government of India but
the factual aspect that emerges on record is clear. The workmen in the oral statement had admitted
that the petitioner is an establishment of Government of India. Statement of Sri Mohd. Munsi, who
appeared as workers' witness, is categorical in stating that petitioner is an establishment of
Government of India. Specific pleading made in para 2 to 3 of the writ petition that petitioner is a
1328 INDIAN LAW REPORTS ALLAHABAD SERIES

company under section 617 of the Companies Act, of which 100% share are held by the
Government of India. Para 2 to 3 of the writ petition are reproduced:-

"2. That the Handicrafts & Handlooms Exports Corporation of India Ltd. 'Noida
Complex' A-2, Sector-2, Udyog Marg, Noida-201301, Gautam Budh Nagar (U.P.), the petitioner
No.1 herein, is a Government of India undertaking under the Ministry of Textiles and it is a
Government Company within the meaning of section 617 of the Companies Act, 1956 as the
Government of India has 100% shares. The petitioner No.1 carries on business of exports of
handicrafts & handlooms. It also imports bullion.

3. That the petitioner No.1 is an instrumentality of the Central Government and as
such it is 'State' within the meaning of Article 12 of the Constitution of India. The Central
Government has deep and pervasive control over the affairs of the petitioner No.1. The Central
Government provides 100% finance to the petitioner No.1 to run its affairs and the Central
Government sends two nominees on the Board of Directors of the petitioner No.1."

Para 3 of the counter affidavit is also reproduced:-

"3. That the contents of paragraph no.1, 2, 3, 4 and 5 of the writ petition need no
comment."

14. In view of such admitted position, this Court has no hesitation to hold that petitioner
corporation is an establishment of Government of India, and Government of India alone was the
appropriate government for referring the dispute, and therefore, it would be the tribunal constituted
under the provisions of Industrial Disputes Act, 1947, which alone had jurisdiction to adjudicate the
dispute. This aspect is being examined by this Court only with the object of avoiding any future
litigation which may arise between the parties on the aspect of jurisdiction at a later date.

15. It would, therefore, be appropriate to dispose of the writ petition with the direction that
in case respondent nos.3 and 4, who were the authorized representative of 31 workmen in question,
approach the appropriate Government, i.e. Government of India, in respect of their grievance
relating to alleged termination of their services, alongwith certified copy of this order, within a
period of three weeks from today, the appropriate Government shall refer the dispute to the
appropriate Industrial Adjudicator within a further period of two months thereafter. Considering the
fact that a period of almost 26 years have expired, it is observed that Industrial Adjudicator would
proceed with all expedition and make all endeavours to answer the reference, preferably within a
period of one year thereafter.

16. Writ petition is accordingly allowed.
-----------
8 All. Indian Instt. Of Mangement & Engineering Society & Anr. Vs State Of U.P. & Ors.
1329
(2016) 8 ILRA 1329
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.08.2016

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Writ C No.- 32744 Of 2016

Indian Instt. Of Mangement & Engineering Society & Anr. ...Petitioners
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Yash Tandon,Anurag Khanna

Counsel for the Respondents:
C.S.C., Neeraj Tiwari

Education Law - Private Technical Institutions - Fee fixation - Statutory obligation of
Committee - Fee Fixation Committee failed to determine fee for session 2016-17 and directed institutions to
continue with fee fixed for 2013 citing paucity of time - Held, Committee is under statutory obligation under
U.P. Act, 2006 and Regulations, 2015 to determine fee periodically - Failure to exercise such jurisdiction
arbitrary and unsustainable.

Education Law - Fee regulation - Scope - Freedom of institutions - Private unaided institutions
have autonomy to propose fee structure subject to regulation against profiteering and capitation fee -
Committee's role is regulatory and not to impose outdated fee structure affecting quality of education -
Fixation must consider infrastructure, expenditure and reasonable surplus.

Education Law - Standard Fee - Concept - Validity - Attempt to apply previously determined fee
uniformly as "Standard Fee" without fresh determination - Held, concept misconceived and contrary to
statutory scheme and Supreme Court precedents - Fee must be institution-specific.

Administrative Law - Non-application of mind - Arbitrariness - Committee failed to consider
proposal and material submitted by institution - Decision taken without proper evaluation of relevant factors
- Action arbitrary and violative of statutory mandate.

Writ Jurisdiction - Mandamus - Enforcement of statutory duty - Where authority fails to discharge
statutory function, High Court justified in issuing mandamus directing performance of duty - Alternative
remedy not a bar where no determination made.

In Result: Writ petition allowed; impugned order quashed; Committee directed to determine fee for session
2016-17 within stipulated time; fee charged to remain provisional subject to final determination.

Cases cited: