# The Nagar Panchayat, Sirauli, Bareilly & Ors v. The State of U.P. and Ors

- **Citation:** (2013) 3 ILRA 1476
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-10-04
- **Case number:** Civil Misc. Writ Petition No. 8511 of 2007
- **Bench:** Manoj Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-nagar-panchayat-sirauli-bareilly-ors-v-the-state-of-u-p-and-ors-42729
- **Pages:** 5

## Headnote

Constitution of India, Art.-226-Award of
Labor Court-reinstatement with 50% back
wages-challenge made on ground of delay
in reference before labor court no objection
filed by employer-held-delay in referenceimmaterial-reinstatement-direction
based
upon admission of employer regarding
working of workman from 2000 to 2006direction of reinstatement proper-50%
back wages-in absence of finding about no
gainfully employed during terminationorder not sustainable-direction for fresh
consideration given-petition partly allowed.

Held: Para-14
In view of the above, the Court is of the
view that although the Labour Court was
justified in denying back wages for the
period up to the date of reference, on
account of the delay, but for the period
commencing from the date of reference up
to the date of reinstatement, before
awarding the back wages, the labour court
ought to have address itself to the issue as
to whether the respondent-workman was
gainfully employed or not during the
intervening period and then it ought to
have taken a decision, dependent on the
facts and circumstances, whether to award
or not to award the back wages and if so, to
what extent. As there is a serious lis
between the parties on this issue, which
would require assessment of evidence, the
Court is of the view that the said issue will
have to be remitted to the labour court for
determination.

Case Law discussed:
(2000) 2 SCC 45; (2013) 2 UPLBEC 1255;
(1996) 6 SCC 82; (2001) 6 SCC 222; (2005) 2
SCC 363; (2001) 2 SCC 54.

## Text

1476 INDIAN LAW REPORTS ALLAHABAD SERIES

10. Accordingly, without entering
into the merit of the case, writ petition is
to be dismissed as infructuous only on the
ground that the person for whose need
release application was filed and rejected
died during pendnecy of the writ petition.
Any of the legal representatives of
Shankar Lal or any other landlord(s) may
file fresh release application for his/ their
need. If such an application is filed, it
shall be decided on the basis of evidence
brought on record and in accordance with
law. Any finding recorded in the
impugned orders challenged through this
writ petition whether of fact or law shall
not be either treated as binding or even
taken into consideration while deciding
the release application, which may be
filed by any of the present landlords.

11. I have held in Khursheeda
Versus A.D.J, 2004 (2) ARC 64 and
H.M.Kichlu Vs. A.D.J 2004(2) ARC 652
that while granting relief to the tenant
against eviction or maintaining the said
relief already granted by the court below
in respect of building covered by Rent
Control Act, writ court is empowered to
enhance the rent to a reasonable extent.
Under somewhat similar circumstances
the Supreme Court in the authority
reported in A.K Bhatt Vs. R.M Shah AIR
1997 SC 2510 enhanced the rent from Rs.
101/- per month to Rs. 3500/- per month
with effect from the date of the judgment
of the Supreme Court. For the period
during which appeal remained pending
before the Supreme Court rent was
enhanced to Rs. 2000/- per month for
some of the period and Rs. 2500/- per
month for rest of the period. In the said
authority release application of the
landlord had been allowed by the courts
below. The Supreme Court held that the
landlord who had sought release of the
building when he was about 54 years of
age had become 87 years of age when the
matter was decided by the Supreme Court
hence he was not in a position to do any
business. This fact of old age of the
landlord was taken into consideration as
relevant subsequent event by the Supreme
Court.

12. Property in dispute is a shop
situate
in
the
main
market
near
Dharmshala Barabanki as stated in para-1
of the release application.

13. Accordingly, it is directed that
w.e.f. December, 2013 onward tenants
respondents shall pay rent to the landlords
petitioners at the rate of Rs.1000/- per
month. (Existing rent is Rs.60/- per month
as stated in para-9 of the release
application, which is virtually as well as
actually no rent for a shop.) This
enhancement of rent is irrespective of the
claim of enhanced rent made in S.C.C.
Suit No.1/13, Harish Chandra Gupta Vs.
Rajendra Kumar, stated to be pending
before J.S.C.C./ Civil Judge (S.D.), Court
No.20, Barabanki. The matter subjudice
in the said suit shall be decided in
accordance with evidence brought on
record therein and the legal position.

14. Writ Petition is accordingly
dismissed as infructuous with the above
observations and directions.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.10.2013

BEFORE
THE HON'BLE MANOJ MISRA, J.
Civil Misc. Writ Petition No. 8511 of 2007

The Nagar Panchayat, Sirauli, Bareilly &
Ors. ...Petitioners
3 All] The Nagar Panchayat Sirauli, Bareily & Ors. Vs. The State of U.P. and Ors.
1477
Versus
The State of U.P. and Ors. ...Respondents

Counsel for the Petitioners:
Sri Anil Bhushan, Miss Rashmi Tripathi
Sri Adarsh Bhushan

Counsel for the Respondents:
C.S.C., Sri S.S. Nigam, Sri Alok Kumar
Srivastava

Constitution of India, Art.-226-Award of
Labor Court-reinstatement with 50% back
wages-challenge made on ground of delay
in reference before labor court no objection
filed by employer-held-delay in referenceimmaterial-reinstatement-direction
based
upon admission of employer regarding
working of workman from 2000 to 2006direction of reinstatement proper-50%
back wages-in absence of finding about no
gainfully employed during terminationorder not sustainable-direction for fresh
consideration given-petition partly allowed.

Held: Para-14
In view of the above, the Court is of the
view that although the Labour Court was
justified in denying back wages for the
period up to the date of reference, on
account of the delay, but for the period
commencing from the date of reference up
to the date of reinstatement, before
awarding the back wages, the labour court
ought to have address itself to the issue as
to whether the respondent-workman was
gainfully employed or not during the
intervening period and then it ought to
have taken a decision, dependent on the
facts and circumstances, whether to award
or not to award the back wages and if so, to
what extent. As there is a serious lis
between the parties on this issue, which
would require assessment of evidence, the
Court is of the view that the said issue will
have to be remitted to the labour court for
determination.

Case Law discussed:
(2000) 2 SCC 45; (2013) 2 UPLBEC 1255;
(1996) 6 SCC 82; (2001) 6 SCC 222; (2005) 2
SCC 363; (2001) 2 SCC 54.
(Delivered by Hon'ble Manoj Misra, J.)

1. Heard Sri Adarsh Bhushan,
holding brief of Sri Anil Bhushan, learned
counsel for the petitioners and Sri Alok
Kumar Srivastava, holding brief of Sri
S.S.
Nigam,
learned
counsel
for
respondent-workman.

2. As parties have exchanged their
affidavits, with the consent of learned
counsel for the parties, the petition is
being decided finally at the admission
stage itself.

3. By this petition, the petitioners have
challenged the award dated 14th July, 2006,
passed by the Presiding Officer, Labour
Court, Bareilly in adjudication case no.14 of
1999, which was published on 28th
September, 2006, whereby termination of
service of the respondent-workman on 1st
March, 1989 has been held to be illegal and it
has been ordered that the respondentworkman would be reinstated in service.
However, with regard to back wages, it was
provided that from the date of termination of
service up to the date of reference i.e.
17.02.1999, the respondent-workman would
not be entitled for any back wages whereas
from the date of reference up to the date of
reinstatement he would be entitled to 50% of
the wages, which he was getting immediately
prior to the date of his termination.

4. Learned counsel for the petitioners
has assailed the award of the Labour Court
on three grounds: (a) that reference was
made on 17.02.1999 that is after 9 years and
6 months from the date of termination of the
workman and on ground of delay alone, the
respondent-workman was not entitled to any
relief; (b) that even if the termination
amounted to retrenchment and was in
violation of provisions of Section 6-N of the
1478 INDIAN LAW REPORTS ALLAHABAD SERIES
U.P. Industrial Dispute Act, 1947, there was
no
justification
to
grant
relief
of
reinstatement in service as award of
compensation would have been sufficient;
and (c) that there was no justification to
award 50% of back wages from the date of
the reference up to the date of reinstatement,
inasmuch as, no finding has been recorded
that during this period the respondentworkman was not gainfully employed
elsewhere.

5. In support of his submission that
because of the delay reference itself was bad,
the learned counsel for the petitioners cited
judgment of the apex court in the case of
Nedungadi
Bank
Ltd.
Vs.
K.P.
Madhavankutty and others, reported in (2000)
2 SCC 45. Whereas to support his plea that
there should not be automatic reinstatement,
and instead compensation can be awarded, in
the event of there being violation of the
procedure provided under section 6-N, the
learned counsel for the petitioners cited a
single judge decision of this court in the case
of Nagar Palika Parishad, Mughalsarai Vs.
State of U.P. and others reported in (2013) 2
UPLBEC,
1255.
Further,
relying
on
averments made in paragraph no.15 of the
writ petition, the learned counsel for the
petitioners submitted that the respondentworkman had worked with the petitioners
from the year 2000 up to the year 2006 and
has also been paid wages, which fact was
concealed
by
the
respondent-workman,
therefore, in any case, he was not entitled to
the back wages as has been awarded by the
labour court. It has been submitted that the
aforesaid plea could not be placed before the
labour court inasmuch as the officers of the
petitioners' establishment were in collusion
with the respondent workman.

6. The learned counsel for the
respondent-workman sought to justify the
award. He also cited apex court's decision
in the case of Ajaib Singh V. Sirhind
Cooperative Marketing Cum-Processing
Service Society Ltd & Another: (1996) 6
SCC 82, so as to contend that there is no
limitation for making a reference and that
employer's plea of delay in seeking
reference, unless coupled with proof of
real prejudice to him, is not sufficient to
deny relief to the workman. In addition
thereto, the decision of the apex court in
the case of Sapan Kumar Pandit v. U.P.
State Electricity Board & others: (2001) 6
SCC 222 was relied so as to contend that
the opinion as to the existence of the
dispute has to be formed by the
Government alone and none else. It was
submitted that in the said case the validity
of a reference made after 15 long years of
termination was upheld.

7. Having considered the rival
submissions,
the
submission
of
the
petitioners' counsel that as the reference was
highly belated, therefore, no relief ought to
have been granted, cannot be accepted,
inasmuch as, in paragraph 7 of the award it
has been specifically observed that no
objection with regards to delay was taken by
the employers before the labour court. The
labour court has also noticed certain
authorities, wherein it has been provided that
there is no limitation for making a reference
of an industrial dispute to which, there can be
no objection. In view of the above, as also
for the reason that no prejudice has been
shown to have been caused to the petitioners
on account of the delay, this Court is of the
view that the award of the labour court
cannot be set aside on the ground of delay.

8. Further, in paragraph 3 of the
award, it has been noted that the
employers admitted that the respondentworkman was employed as Peon with
3 All] The Nagar Panchayat Sirauli, Bareily & Ors. Vs. The State of U.P. and Ors.
1479
them from 1st May, 1985 up to 28th
February, 1989 and that due to their
mistake,
the
name
of
respondentworkman could not be sent to the
Government for regularization and when
the same was sent subsequently, the
Government had refused sanction for
regularization. The correctness of the
aforesaid observations have not been
assailed as being without any basis. Thus,
in view of the admitted position, it is not a
case where delay would have caused
serious prejudice to the employers.

9. A careful perusal of the award further
reveals that there is no dispute that the
respondent-workman had worked for a period
of 3 years, 9 months and 27 days and that he
had completed 240 days in each calendar
year, before termination of his service. There
is also no dispute that the retrenchment
procedure, as is required by section 6-N of the
U.P. I.D. Act, was not followed.

10. In view of the above, I do not
find any reason to disagree with the
finding recorded by the labour court that
the
termination
of
service
of
the
respondent-workman, on 01.03.1989, was
neither justified nor legally valid.

11. So far as the plea of the petitioners'
counsel that instead of reinstatement only
compensation ought to have been awarded,
suffice it to say that the same does not lie in
the mouth of the petitioners as they have
themselves admitted in paragraph no.15 of
the writ petition that the respondentworkman had been working in their
establishment and had been drawing salary
right from the year 2000 up to the year 2006.
Thus, there is no reason why reinstatement
should not be provided. More so, when the
petitioners have admitted before the labour
court that the name of the respondentworkman was not sent for regularization due
to their mistake and that when it was sent
later, the sanction was not received. Taking a
conspectus of the facts and circumstances,
the Court is of the view that it would not be
proper to deprive the respondent-workman of
the benefit of reinstatement.

12. As far as the payment of back
wages is concerned, there is no discussion
by the labour court, in its award, as to
whether the respondent- workman was
gainfully employed or not during the
intervening period. The submission of the
learned counsel for the petitioner is that
the respondent-workman was gainfully
employed from the year 2000 up to the
year
2006,
in
the
petitioners'
establishment itself, therefore, the award
of back wages is not justified. Few
documentary evidences have also been
filed through supplementary affidavit to
support the contention. The respondentworkman has not entirely disputed the
aforesaid fact, but has submitted that he
had worked, intermittently, from the year
2000 up to the year 2006, as a contract
labour, the details of which have been
given in paragraph 5 of the supplementary
counter affidavit dated 29.07.2013.

13. The apex court in the case of
Kendriya Vidyalaya Sangathan & another v.
S.C. Sharma: (2005) 2 SCC 363, vide
paragraph 16 of the report, observed as
follows: "when the question of determining
the entitlement of a person to back wages is
concerned, the employee has to show that he
was not gainfully employed. The initial
burden is on him. After, and if, he places
materials in that regard, the employer can
bring on record materials to rebut the claim."
Further, in P.G.I. of Medical Education and
Research v. Raj Kumar: (2001) 2 SCC 54 in
para 12, it was observed that "payment of
1480 INDIAN LAW REPORTS ALLAHABAD SERIES
back wages having a discretionary element
involved in it has to be dealt with, in the facts
and circumstances of each case and no straitjacket formula can be evolved, though,
however, there is statutory sanction to direct
payment of back wages in its entirety." In
para 9 thereof, it was observed that "it is not
for the High Court to go into the factual
aspects of the matter and there is an existing
limitation on the High Court to that effect."

14. In view of the above, the Court is of
the view that although the Labour Court was
justified in denying back wages for the period
up to the date of reference, on account of the
delay, but for the period commencing from
the date of reference up to the date of
reinstatement, before awarding the back
wages, the labour court ought to have address
itself to the issue as to whether the respondentworkman was gainfully employed or not
during the intervening period and then it ought
to have taken a decision, dependent on the
facts and circumstances, whether to award or
not to award the back wages and if so, to what
extent. As there is a serious lis between the
parties on this issue, which would require
assessment of evidence, the Court is of the
view that the said issue will have to be
remitted to the labour court for determination.

15. For the reasons aforesaid, the
award dated 14th July, 2006, which was
published
on
28th
September,
2006
(Annexure-'7' to the writ petition), is set aside
only to the extent of award of back wages.
The declaration in the award that the
termination of service of the respondentworkman on 01.03.1989 was illegal and
unjustified as well as the direction given in
the award to reinstate the respondentworkman, is affirmed. The issue with regards
to entitlement of the respondent-workman
for back wages, with effect from the date of
the reference up to the date of reinstatement,
is remitted back to the labour court, which
shall decide the same, in accordance with the
law, preferably, within a period of three
months from the date of production of
certified copy of this order, by either side.
Upon deciding the said issue, the labour
court would pass an award in respect thereto,
which will be treated as part of the earlier
award dated 14th July, 2006. It is made clear
that it will be open to the parties to lead their
respective evidence with regards to gainful
employment or otherwise of the respondentworkman, during the period between the date
of reference up to the date of reinstatement,
for the purpose of deciding the issue, which
is being remitted to the labour court.

16. The writ petition is partly
allowed to the extent indicated above.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.10.2013

BEFORE
THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Civil Misc. Writ Petition No. 10967 of 2001

Shri Sudhir Kumar ...Petitioner
Versus
The Union of India and Ors..Respondents

Counsel for the Petitioner:
Sri Irshad Ali, Sri K.M. Asthana
Sri U.P. Singh, Sri Sanjay Misra

Counsel for the Respondents:
C.S.C., Sri K.C. Sinha, Sri K.M. Asthana, Sri
R.N. Mishra, Sri Rajesh Khare, Sri N.C. Nishad

Constitution
of
India,
Art.-226Compassionate Appointment-denied on
ground of undue delay in disposed of
claim-and
elder
son
of
deceased
employee was already in service-apart
from family pension by widow-held-in