# Triveni Engineering & Industries Ltd v. State of U.P. & Ors

- **Citation:** (2020) 7 ILRA 383
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-05-20
- **Case number:** Writ C No. 2229 of 2020
- **Bench:** Siddharth Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/triveni-engineering-industries-ltd-v-state-of-u-p-ors-45900
- **Pages:** 7

## Headnote

Civil Law-Service of Respondent no.3
terminated-industrial dispute arose-High
Court directed labour Court-to decide
whether appellant is workman or notbefore deciding case on merit-several
dates
fixed-Petitioners
were
given
impression -that arguments would take
place only w.r.t. the direction of the High
Court-no issues framed-therefore no leave
was sought to lead evidence-The labour
court answered the reference and framed
the
issues
simultaneoulsy-no
proper
opportunity given to the parties to lead
evidence.

Held, a perusal of the award of the Labour
Court definitely shows that after hearing was
concluded on 17.9.2019, the Labour Court had
384 INDIAN LAW REPORTS ALLAHABAD SERIES
answered the Reference on merits and in the
award itself, issues were also framed. The
proper course for the Labour Court ought to
have been that it should have earlier framed
issues and thereafter it should have directed the
parties to make their submissions. (Para 9)

o far as the question with regard to mentioning
about an opportunity in the Written Statement is
concerned, suffice it to say that no adjudication
in that regard was essential at this point of time.
Before finding that the domestic enquiry was
erroneous the Court ought to have heard the
parties on that issue and, thereafter, if the
enquiry was found defective the question of
leading evidence on the charges would have
arisen (Para 10)

Writ Petition partly allowed. (E-9)

List of Cases cited:-

## Text

7 All. Triveni Engineering & Industries Ltd. Vs. State of U.P. & Ors.
383
the form of certain percentage to deduct the
amount from the demand raised. So both in
case of computation as per tarrif order and
rebate on the basis of tarrif order to make
the demand an actual demand have inbuilt
mechanism for calculation on the basis of
same tarrif order, to wit:fixed rate of
electricity supplied and rate of electricity
per unit consumed. Rebate thus is a
concession not on the tarrif chargeable but
on the bill generated to make it finally a
demand to be raised and to be paid by the
consumer. It, therefore, cannot be equated
to a case where higher tarrif is charged than
the prescribed one in a bill to make a
consumer entitled to refund with interest as
per Sub Section (6) of Section 62 of the
Act, 2003.

20. In the facts and circumstances of
this case where there is a clear admission on
the part of the petitioner, we find merit in the
submission of learned counsel for the
respondent that the petitioner has not denied
fact averred in relevant paragraphs of counter
affidavit that petitioner himself demanded
supply from the rural feeder while he was
being supplied from the urban feeder. This
sudden change would have delayed the rebate
process and therefore, no malice in law
detected in the matter at the end of the
respondent authorities. The claim of interest
is a kind of penalty in law for unjust
enrichment either by denying a person the
money to which he was entitled or,
something more has been extracted beyond
the lawful authority. The rebate, therefore,
cannot be equated to excessive tariff charged
so as to bring it within the ambit of SubSection 6 of Section 62 of the Electricity Act,
2003. The rebate itself is a part of the tariff
order, of which percentage has been changed
from time to time and once the petitioner has
been given the due rebate, we do not think
that the petitioner is entitled for any further
interest, over and above, the amount adjusted
against the electricity dues.

21. The writ petition lacks merit and is,
accordingly, dismissed.

22. Interim order, if any, stands
discharged.
----------
(2020)07ILR A383
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.05.2020

BEFORE

THE HON'BLE SIDDHARTH VARMA, J.

Writ C No. 2229 of 2020

Triveni Engineering & Industries Ltd.
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Diptiman Singh

Counsel for the Respondents:
C.S.C., Sri Bhupendra Nath Singh, Sri
Parmendra Nath Singh

Civil Law-Service of Respondent no.3
terminated-industrial dispute arose-High
Court directed labour Court-to decide
whether appellant is workman or notbefore deciding case on merit-several
dates
fixed-Petitioners
were
given
impression -that arguments would take
place only w.r.t. the direction of the High
Court-no issues framed-therefore no leave
was sought to lead evidence-The labour
court answered the reference and framed
the
issues
simultaneoulsy-no
proper
opportunity given to the parties to lead
evidence.

Held, a perusal of the award of the Labour
Court definitely shows that after hearing was
concluded on 17.9.2019, the Labour Court had
384 INDIAN LAW REPORTS ALLAHABAD SERIES
answered the Reference on merits and in the
award itself, issues were also framed. The
proper course for the Labour Court ought to
have been that it should have earlier framed
issues and thereafter it should have directed the
parties to make their submissions. (Para 9)

o far as the question with regard to mentioning
about an opportunity in the Written Statement is
concerned, suffice it to say that no adjudication
in that regard was essential at this point of time.
Before finding that the domestic enquiry was
erroneous the Court ought to have heard the
parties on that issue and, thereafter, if the
enquiry was found defective the question of
leading evidence on the charges would have
arisen (Para 10)

Writ Petition partly allowed. (E-9)

List of Cases cited:-

1. Karnataka State Road Transport Corporation
Vs Laxmidevamma & anr.,(2001) 5 SCC 433

2.Divyash Pandit Vs Management NCCBM,
(2005) 2 SCC 684

3.M.L. Singla Vs P.N.B. & anr. (2018) 18 SCC 21

4. Hindustan Tin Works Vs Its employees , 1978
Labour & Industrial Cases 1667

(Delivered by Hon'ble Siddharth Varma, J.)

1. This writ petition has been filed against
the award dated 4.10.2019. When the services
of
respondent
no.3-Jagdish
Singh
were
terminated on 17.5.2005, then an industrial
dispute was raised and the appropriate State
Government,
on
31.12.2005,
made
the
following Reference :

^^D;k lsok;kstdksa }kjk vius deZpkjh Jh
txnh'k flag iq= Jh jru flag] ofj"B xUuk vf/kdkjh
dh lsok;sa fnukad 17-5-2005 ls lekIr fd;k tkuk
mfpr ,oa voS|kfud gSA ;fn ugha rks lacaf/kr deZpkjh
D;k fgrykHk@vuqrks"k ikus dk vf/kdkjh gS ,oa vU;
fdl fooj.k lfgr\

2. The petitioner at the stage of
conciliation filed detailed objections on
12.7.2005 stating that the respondent no.3 was
not a workman and, therefore, the Reference, as
was made, itself was not maintainable. Against
the Reference dated 31.12.2005, the petitioner
filed a writ petition being Writ Petition
No.17456 of 2006. The writ petition was
entertained and an interim order was also
passed by which the Reference order dated
31.12.2005 was stayed and on 1.12.2011 this
Court allowed the writ petition. The operative
portion of the order dated 1.12.2011 was as
follows:-

"The
writ
petition
accordingly
succeeds and is allowed. The impugned order
of reference dated 31.12.2005 passed by
Deputy Labour Commissioner, Saharanpur is
hereby quashed.

The matter is remitted back to the
Deputy Labour Commissioner, Saharanpurrespondent no.2 with a direction him to pass a
fresh order in the matter in accordance with law
and in the light of the observations made
hereinabove within a period of one month from
the date of production of certified copy of this
order before him."

3. The judgment and order dated
1.12.2011 was challenged by means of a
Special Appeal being Special Appeal
No.66 of 2012 wherein on 16.1.2012 it
was decided by a Division Bench of this
Court that the matter might not go back to
the Deputy Labour Commissioner as per
the High Court's order dated 1.12.2011
but the Labour Court itself could, before
deciding the matter on merits, decide the
question as to whether the appellant was
a workman. The order passed in the
Special Appeal is being reproduced here
as under :-
7 All. Triveni Engineering & Industries Ltd. Vs. State of U.P. & Ors.
385

"The order of the single Judge is
set aside. The parties may appear before the
Labour Court on 12.3.2012 and thereafter
the Labour Court may decide the case. It is
made clear that the Labour Court,
before deciding the case on merit, will
decide
the
question
whether
the
appellant is workman or not. Needless to
say that the Labour Court may decide the
case expeditiously."

4. In pursuance of the order dated
16.1.2012, again pleadings were exchanged
between the parties, documents etc. as were
required to be filed, were filed. However,
when thereafter the impugned award dated
4.10.2019 was passed the instant writ
petition was filed.

5. Learned counsel for the petitioner
has made the following submissions :-

(i) After the order in the Special
Appeal No.66 of 2012 was passed on
16.1.2012, it was incumbent upon the
Labour Court to have first arrived at a
conclusion as to whether the respondent
no.3 was a workman. Thereafter, it has
been submitted by the learned counsel for
the petitioner, separate issues ought to have
been framed and parties should have been
allowed to lead their evidence.

(ii)
Learned
counsel
has
submitted that the respondent no.3 himself
on 3.4.2019 had filed an application which
was numbered as Paper No.29-D by which
it had been prayed that as per the order of
the High Court, the initial issue with regard
to the fact as to whether the respondent
no.3 was a workman or not had to be
initially decided. On 3.4.2019, learned
counsel for the petitioner pointed out from
the order-sheet of the Case as had been
filed with the writ petition that the
Presiding Officer had passed the following
order :-

^iqdkj ij i{kdkj mifLFkr vk,A
Jfed dk izkFkZuki= 29&Mh vk;kA ekuuh; mPp
U;k;ky; ds vkns'k fnukad 16-01-2012 ds
vuqikyu esa loZizFke ;g ns[kuk gS fd oknh
Jfed dh Js.kh esa vkrk gS fd ughaA vkns'k gsrq
okn fnukad 7-5-2019 dks is'k gksA^

6. It was, therefore, submitted that the
petitioner was all the time under the
impression that a decision would initially
be arrived at by the Labour Court with
regard to the Application No.29-D as had
been
filed
by
respondent
no.3
and
thereafter the case would proceed. After
3.4.2019, dates were fixed on 7.5.2019,
14.5.2019, 17.5.2019, 27.5.2019, 9.7.2019,
6.8.2019 and 17.9.2019 and on all dates the
petitioner was always given the impression
that arguments would take place only with
regard to the direction as had been given by
the High Court on 16.1.2012 with regard to
the fact as to whether the respondent no.3
was a workman at all.

(iii) Learned counsel for the
petitioner submitted that as per Rule 12 of
the U.P. Industrial Disputes Rules, 1957,
the Labour Court or Tribunal, as the case
was, would ordinarily fix a date for the first
hearing of the dispute which was referred
to it within six weeks of its reference and
thereafter the Court (or the Tribunal) would
for reasons to be recorded in writing fix a
later date for disposal of the dispute.
Learned counsel, therefore, submitted that
when the first date was fixed as per Rule
12, the Tribunal ought to have culled out
the issues which it had to decide viz-a-viz
the contesting parties and thereafter the
award should have been passed. Learned
counsel further submitted that before the
award was passed, the parties ought to have
386 INDIAN LAW REPORTS ALLAHABAD SERIES
been afforded an opportunity to lead
evidence on the merits of the case. Learned
counsel, therefore, submitted that when the
award itself was giving out the issues for
the first time, then the issues, it could be
said, were only a guidance for the Labour
Court to pass the award and not an
intimation to the parties to lead evidence or
to place their arguments.

(iv) Learned counsel for the
petitioner submitted that the award, after
having held that the respondent no.3 was a
workman, had also as per the issue no.2
which was for the first time struck in the
award itself, decided that against the
respondent
no.3
no
proper
domestic
enquiry was held which had resulted in the
order of termination dated 17.5.2005 and,
therefore, the learned counsel submitted
that the award itself had to be set-aside.
Learned counsel for the petitioner relying
upon (2001) 5 SCC 433 : Karnataka State
Road
Transport
Corporation
vs.
Laxmidevamma & Anr. submitted that
had the proceedings before the Labour
Court proceeded after a proper intimation
to the employer that hearing would take
place viz-a-viz. issue no.2, then the
petitioner would have led evidence with
regard to the fact that the respondent no.3
was granted various opportunities to face
the charges at the time of the domestic
enquiry. Learned counsel submitted that
since there was an order of the Labour
Court itself dated 3.4.2019 that initially it
had to be seen as to whether the respondent
no.3 was a workman or not and since no
issue had been framed, the petitioner had
not sought leave of the Court/Tribunal to
lead additional evidence to support its
domestic
enquiry.
Learned
counsel
submitted
that
even
if
the
petitioner/employer had not sought leave in
the written statement to lead additional
evidence to support its action in the event
the enquiry was held to be bad then there
were no fetters on the powers of the
Tribunal to allow the petitioner to lead
additional evidence after holding as to
whether the respondent no.3 was a
workman. In any view of the matter before
holding that the enquiry was erroneous an
opportunity to the petitioner was a must.
Learned counsel for the petitioner relied
upon paragraph 45 of the judgment of the
Supreme Court reported in (2001) 5 SCC
433 and, therefore, the same is being
reproduced here as under :-

"It is consistently held and
accepted that strict rules of evidence are not
applicable to the proceedings before the
Labour Court/Tribunal but essentially the
rules of natural justice are to be observed in
such proceedings. Labour Courts/Tribunals
have the power to call for any evidence at
any stage of the proceedings if the facts and
circumstances of the case demand the same
to meet the ends of justice in a given
situation. We reiterate that in order to avoid
unnecessary delay and multiplicity of
proceedings, the management has to seek
leave of the court/tribunal in the written
statement itself to lead additional evidence
to support its action in the alternative and
without
prejudice
to
its
rights
and
contentions. But this should not be
understood as placing fetters on the powers
of the court/tribunal requiring or directing
parties
to
lead
additional
evidence
including production of documents at any
stage of the proceedings before they are
concluded if on facts and circumstances of
the case it is deemed just and necessary in
the interest of justice."

(v) Learned counsel for the
petitioner submitted that the Supreme Court
in (2005) 2 SCC 684 : Divyash Pandit vs.
7 All. Triveni Engineering & Industries Ltd. Vs. State of U.P. & Ors.
387
Management NCCBM had held that the
petitioner should have been allowed the
opportunity to lead evidence to support its
domestic enquiry after holding whether the
respondent no.3 was a workman. Still
further, learned counsel for the petitioner
relied upon (2018) 18 SCC 21 : M.L.
Singla vs. Punjab National Bank & Anr.
and submitted that in the interest of justice
at any point of time, both the employer and
the employee could raise any question
which went to the root of the matter. He
submitted that before the case was
concluded, parties could always adduce
such evidence which could have bearing on
the decision of the case. In the instant case,
therefore, learned counsel for the petitioner
submitted that, when after the Labour Court
had decided as to whether the respondent
no.3 was a workman, it ought to have
allowed the parties to lead further evidence
as to whether the domestic enquiry was
properly conducted or not and, therefore,
he submits that since there was no
opportunity granted to the petitioner to lead
evidence as to whether the domestic
enquiry was properly conducted, the award
deserves to be set-aside.

7. Learned counsel appearing for
respondent no.3 has submitted his Written
Arguments
and
made
the
following
submissions :-

(i) Learned counsel for the
respondent no.3 submitted that it was open
for the Labour Court to have given its
decision on merits after having found that
the respondent no.3 was a workman.
Learned counsel relying upon Rules 18, 19,
25, 30 and 32 of "The Industrial Tribunal
and Labour Courts Rules of Procedure,
1967" submitted that Rules 18 and 19 had
provided the stage when the issues could be
framed and when documents could be filed.
He, however, submitted that the framing of
issues was not essential for the Labour
Court and only as per the law laid down in
1978 Labour & Industrial Cases 1667 :
Hindustan Tin Works vs. Its employees
additional issues could be framed. Since,
learned counsel for respondent no.3 had
heavily relied upon Rules 18, 19, 25, 30
and 32 of the 1967 Rules, the same are
being reproduced here as under :-

"18. Issues.--After the written
statements and rejoinders (if any), of both
the parties are filed and after examination
of parties (if any), the Industrial Tribunal or
Labour Court may frame such other issues,
if any, as may arise from the pleadings.

19. Documentary evidence.--
Parties
and/or
their
authorised
representatives shall produce at the time of
filing rejoinder and/or on the date of the
issues of the documentary evidence in their
possession on which they intend to rely and
which had not already been filed earlier,
and such other documents as ordered by the
Industrial Tribunal or Labour Court or the
Arbitrator.
The
documents
shall
be
accompanied by an accurate list thereof.
Except with the special leave of the
Industrial Tribunal or the Labour Court, as
the case may be, no document shall be
allowed to be filed afterwards.

25. Hearing..--Where on any
date to which the hearing has been
adjourned the parties or any of them fail to
appear (irrespective of the fact as to on
whose motion the last hearing was
adjourned) the Tribunal or the Labour
Court may proceed to dispose of the
dispute on merits.

30. Recording of oral evidence.-
-Oral evidence shall be recorded in a
388 INDIAN LAW REPORTS ALLAHABAD SERIES
narrative form but the Industrial Tribunal
or Labour Court may order any portion of
the evidence to be recorded in the form of
question and answer.

32. Rights to argue.--After the
close of evidence normally the party who
led evidence shall first argue the opposite
party may reply and thereafter the former
party may further reply."

(ii) Learned counsel appearing for
respondent
no.3
thereafter
drew
the
attention of the Court to the various
pleadings which were exchanged between
the parties and submitted that at no point of
time the petitioner/employer had made any
application for an opportunity to lead
evidence or to prove the charges against the
respondent no.3. Learned counsel also
submitted that the Special Appellate Court
which had passed the order dated 16.1.2012
had at no point of time forbidden the
Tribunal to decide the Reference along
with the decision of the issue with regard to
the fact as to whether the respondent no.3
was a workman. Still further, learned
counsel for respondent no.3 submitted that
the Labour Court, in the fitness of things,
had framed issues while passing the award
which definitely guided it to come to a
proper conclusion.

(iii) In the end, learned counsel
for respondent no.3 submitted that the
petitioner/employer at no point of time had
prayed that it be allowed to lead evidence
to prove the charges against the respondent
no.3.

8. Having heard learned counsel for
the petitioner and the learned counsel for
the respondent no.3, the Court finds that
admittedly the Special Appellate Court had
passed an order by which it had directed
the Labour Court to first ascertain as to
whether the respondent no.3 was a
workman. Still further, the Court finds that
on 3.4.2019, the Labour Court had framed
an issue by which it had concluded that
initially before answering the Reference, it
had to be seen as to whether respondent
no.3 was a workman. Thereafter the Court
finds that on various dates when the case
was fixed i.e. on 7.5.2019, 14.5.2019,
17.5.2019, 27.5.2019, 9.7.2019, 6.8.2019
and 17.9.2019 nowhere did the Labour
Court insist on the parties to make
submissions with regard to the merits of the
case. The Court finds that only on the last
date i.e. on 17.9.2019, the Labour Court
had observed that in the presence of the
parties, arguments were heard. It is not
clear as to whether arguments were heard
on the preliminary issue with regard to the
fact as to whether the respondent no.3 was
a workman or whether arguments were
heard on the merits of the Reference also.
The order-sheet as has been annexed in the
writ petition also does not show that issues
were framed by the Labour Court before
the award was passed and it is definitely
not clear that the parties were made aware
as to which of the issues would have to be
addressed by the parties. When a matter is
referred to a Labour Court by means of a
Reference, the parties are aware as to what
has to be adjudicated upon in the case.
However, when only the issue with regard
to the determination of the fact as to
whether respondent no.3 was a workman
was being decided, it cannot be gleaned
from the proceedings that the parties were
ever made aware of the fact as to whether
they were to address the Labour Court on
merits
also.
Had
the
Court
after
ascertaining as to whether the respondent
no.3 was a workman directed the parties to
make their submissions on merits, then no
fault could have been found. However, in
7 All. Jugal Kishore Pandey Vs. State of U.P. & Ors.
389
the instant case, the Court found that on
3.4.2019, the issue with regard to the fact
as to whether the respondent no.3 was a
workman was framed and parties were
required to make their submissions with
regard to it alone. Thereafter various dates
were fixed and it was expected that the
parties would make submissions on the
issue framed on 3.4.2019 first. Still further,
the Court finds that nowhere in the ordersheet the issues as had been enumerated in
the award were framed and, therefore, it
cannot be concluded that the parties had
sufficient notice as to in what regard they
had to address the Labour Court.

9. A perusal of the award of the Labour
Court definitely shows that after hearing was
concluded on 17.9.2019, the Labour Court had
answered the Reference on merits and in the
award itself, issues were also framed. The
proper course for the Labour Court ought to
have been that it should have earlier framed
issues and thereafter it should have directed the
parties to make their submissions.

10. So far as the question with regard to
mentioning about an opportunity in the Written
Statement is concerned, suffice it to say that no
adjudication in that regard was essential at this
point of time. Before finding that the domestic
enquiry was erroneous the Court ought to have
heard the parties on that issue and, thereafter, if
the enquiry was found defective the question of
leading evidence on the charges would have
arisen.

11. Under such circumstances, the award
dated 4.10.2019, so far as it decides the
Reference, cannot be sustained in the eyes of
law and it is, accordingly, set aside. The finding
with regard to the fact that the respondent no.3
was a workman, however, as was arrived at
after a full-fledged argument and has not also
been assailed by the petitioner, would remain.

12. The Labour Court would now hear
the petitioner and the respondent no.3 on merits
viz-a-viz. issue nos.2 and 3 as can be found in
the award. The Labour Court shall permit the
parties to lead evidence, documentary as also
oral and thereafter answer the Reference. This
exercise shall be concluded within two months
from the date of presentation of a certified copy
of this order.

13. The writ petition is, accordingly,
partly allowed.
----------
(2020)07ILR A389
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.03.2020

BEFORE
THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE RAVI NATH TILHARI, J.

Writ C No. 3175 of 2020

Jugal Kishore Pandey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rohan Gupta

Counsel for the Respondents:
C.S.C.

Civil
Law-The
Uttar
Oradesh
excise
Settlement of Licenses for Retail Sale of
Foreign
Liquor
(Excluding
Beer)
(Sixteenth Amendment) Rules, 2019-Rule
8 (d) (iii) -Pendency of a Criminal Casesufficient to deny issue of a character
certificate.

Held, a person against whom a criminal case is
pending, cannot be said to be a person having
no criminal background. If the character
certificate is issued despite pendency of a
criminal
case,
because
there
is
yet
no
conviction, and on the basis thereof the
petitioner applies for the grant of license of