# U.P.S.B.Co. Ltd. & others v. U.P. Rajya Setu Nigam Sanyukta Karmchari Sangh

- **Citation:** (2002) 3 ILRA 728
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-09-27
- **Case number:** Special Appeal No. 498 of 1999
- **Bench:** S.K. Sen, C.J. R.K. Agrawal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-s-b-co-ltd-others-v-u-p-rajya-setu-nigam-sanyukta-karmchari-sangh-39943
- **Pages:** 8

## Headnote

Chapter VIII Rule 5 of High Court Rules-
U.P. State Briedge Corporation is a State
within the meaning of Article 12 of the
Constitution of India. It is supposed to
act reasonably and not arbitrarily. The
services
of
the
respondents
writ
petitioners
have
been
terminated
without even giving show cause notice
or opportunity of hearing before passing
the impunged orders of termination.
Thus, the impugned orders have been
passed in gross violation of Principles of
natural justice, fair play and equity and
have
rightly
been
quashed
by
the
learned Single Judge.

In view of the foregoing discussions, we
do not find any merit in these Special
Appeals and they are dismissed.
Case Law Referred:
1995(5) SCC 75
1993 L.I.C. 651
AIR 1995 S.C. 1163
2000 (1) E.S.C. (Alld.) 165
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729

## Text

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728 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
complaint was considered by the GOC
and rejected.

7. A rejoinder affidavit has been
filed. We have perused the same.

8. In Writ Petition No. 35296 of
1997 decided on 13.2.2002 (Major
Ranabir Singh versus Union of India and
others) this court observed that it is very
reluctant to interfere in army matters as
that would interfere with army discipline.
We are in agreement with the aforesaid
Division Bench decision. It is only in very
rare cases that his court will interfere in
army matters. Under the Army Act, Rules
and Regulations there is a detailed
procedure about giving adverse entry and
making representation/complaint against
it, and the petitioner can avail of the same.
It is not for this Court to consider whether
the drop in performance given to the
petitioner was justified or not as that is the
task of the appropriate army authority.
Moreover, there are disputed questions of
fact in this case, and hence writ is not the
appropriate remedy.

9. In para 4 of the counter affidavit
of respondent nos. 1,2 and 3 it is stated
that the petitioner' statutory complaint is
pending before respondent no. 1. We
direct respondent no. 1 to decide the said
complaint by a speaking order within two
months of production of certified copy of
this order.

10. With the aforesaid observation,
this writ petition disposed off.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.9.2002

BEFORE
THE HON'BLE S.K. SEN, C.J.
THE HON'BLE R.K. AGRAWAL, J.

Special Appeal No. 498 of 1999

U.P. State Bridge Corporation Ltd. and
others

...Appellant
Versus
U.P.
Rajya
Setu
Nigam
Sanyukta
Karmchari Sangh
 ...Respondents

Counsel for the Appellants:
Sri V.R. Agrawal
Sri A.K. Gupta
Sri P.N. Rai

Counsel for the Respondents:
Sri Arun Prakash

Chapter VIII Rule 5 of High Court Rules-
U.P. State Briedge Corporation is a State
within the meaning of Article 12 of the
Constitution of India. It is supposed to
act reasonably and not arbitrarily. The
services
of
the
respondents
writ
petitioners
have
been
terminated
without even giving show cause notice
or opportunity of hearing before passing
the impunged orders of termination.
Thus, the impugned orders have been
passed in gross violation of Principles of
natural justice, fair play and equity and
have
rightly
been
quashed
by
the
learned Single Judge.

In view of the foregoing discussions, we
do not find any merit in these Special
Appeals and they are dismissed.
Case Law Referred:
1995(5) SCC 75
1993 L.I.C. 651
AIR 1995 S.C. 1163
2000 (1) E.S.C. (Alld.) 165
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(Delivered by Hon'ble R.K. Agrawal, J.)

Both these Special Appeals have
been
filed
by
U.P.
State
Bridge
Corporation Limited (hereinafter referred
to as the Corporation) against the
judgment and order dated 18.5.1999
passed by the learned Single Judge, in
Civil Misc. Writ Petition No.4043 of 1996
and Civil Misc. Writ Petition No. 36071
of 1995, whereby the learned Single
Judge has allowed these writ petitions
filed by the respondents writ petitioners
and declared the order dated 9.1.1996
contained in annexure 9, order dated
30.10.1995 and 4.11.1995, contained in
annexures no. 6 and 6-A to the writ
petition, as void ab-initio, non-est, and
quashed the same. The learned Single
Judge also held that the respondents-writ
petitioners shall be deemed to be in
service and be treated as on continuous
service with all notional benefits except
however, that they would not be entitled
to any payment of arrears for the period
during which they did not work actually.
Except that each of them would be
entitled to a compensation for the whole
period assessed at Rs.5,000/- each.

Briefly stated facts giving rise to the
present Special Appeal are that in writ
petition no. 36071 of 1996, service of 168
workmen were terminated by an order
dated 30.10.1995, while in writ petition
no. 4043 of 1996 services of 66 workmen
were terminated by an order dated
9.1.1996 published in Hindi daily Dainik
Jagran on 12.1.1996. In both the cases,
the termination was effected by striking
off the names of the respective workmen
from the rolls in terms of clause L-2-12 of
the
standing
orders
for
workmen
employed in the Corporation.

According to the respondents-writ
petitioners, they were on strike for a
considerable period through sitting dharna
and various other modes in support of
their demands for bonus and other claims
whereas as per the appellants, no notice of
such dharna or strike was ever given to
the appellants by the Union, on the other
hand, the Union had been adopting illegal
means impermissible in law despite the
corporation's requests to the workers to
return to work. In these background, the
names of two groups of workmen
involved in the two writ petitions were
struck off from the rolls.

Before the learned Single Judge, the
following preliminary objections were
raised:

1.
The writ petition is not maintainable
since the writ petitioners are seeking to
enforce their alleged legal right arising
out of standing orders which has no
statutory force as has been held in the
case of Rajasthan State Road Transport
Corporation Vs. Krishna Kant (1995 (5)
SCC 75) and as such the action of the
respondents cannot be amenable to writ
jurisdiction;

2.
The dispute as to whether the names
can be struck off on account of
continuous absence of the workers is a
question of fact viz. whether they were on
strike of unauthorized absence could be
adequately dealt with before the Labour
Court or Industrial Tribunal when this
court is not capable of determining such
question of fact, the writ petition is not
maintainable on the ground of alternative
remedy;

3.
The petitioners had sought for leave
to amend the writ petition seeking to
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730 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
incorporate the prayer challenging the
vires of clause L-2-12 of the standing
order which was since granted on
18.9.1996, in writ petition no. 36071 of
1996 from which Special Appeal No. 212
of 1996 preferred by the respondents is
pending before the Division Bench while
this court had allowed the amendment on
17.7.1998 in writ petition no. 4043 of
1996 and had listed both the matters on
6.8.1998 and as such this writ petition
cannot be maintained to challenge the
vires of the said clause of the standing
order;

4. Since certified standing order has no
statuory force as has been held in the case
of
Rajasthan
State
Road
Transport
Corporation (Supra), the vires cannot be
challenged under Article 226 of the
Constitution and as such the writ petition
in relation thereto cannot be maintained;

5.
The individual workmen had not
come and the Union which is an
unregistered one could not maintain the
writ petition on behalf of the individual
workmen;

6.
The
same
very
order
dated
30.10.1995 was challenged by means of
writ petition no. 2317 of 1996 by one Shri
Anand Prakash one of the worker whose
case is also sponsored in this proceeding
and the said writ petition having been
dismissed on 9.5.1996, the writ petition
challenging the same order is barred by
the principles of res-judicata.

In
reply
to
the
preliminary
objections,
the
contentions
of
the
respondents-writ petitioners were that
even though the action taken under the
standing order cannot be challenged
through writ proceedings in the present
case, U.P. State Bridge Corporation being
the State within the meaning of Article 12
of the constitution, it is amenable to writ
jurisdiction. It was further stated that its
action can very well be challenged in writ
jurisdiction as it is a State within the
meaning of Article 12 of the Constitution.
According
to
the
respondents-writ
petitioners, the bar of alternative remedy
is not an absolute bar and where there is
no disputed question of fact and the
question raised is a question of law
apparent on the basis of facts disclosed,
the court should not refuse to exercise its
jurisdiction in entertaining the writ
petition simply on the ground of existing
of alternative remedy. More so, here the
question of law raised is as to whether the
clause L-2-12 of the standing order can be
resorted to when the workmen are on
strike may be illegal. It was further
contended
that
even
though
the
amendment in writ petition no. 36071 of
1995 was under challenge in Special
Appeal but no interim order has since
been granted nor further proceedings of
the said writ petition has been stayed by
the appellate court, therefore, it is open to
the Court to proceed with the writ
petition.

According to the writ petitioners,
though the standing orders have no
statutory force, if it affects the right of the
workmen and operate as an unfair labour
policy in that event vires of such
provision can very well be challenged in
writ proceedings. The decision of the
Lucknow Bench of this Court in writ
petition no. 2317 of 1996 could have
operated only against the individual
workmen Anand Prakash and not against
the rest. Neither against his union. As the
said decision having not been on the merit
of the case, the question raised in present
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writ petitions, having not been decided,
the holding of the writ petitions as not
maintainable simply on the ground of
alternative remedy would not attract the
principles of res-judicata.

According to the writ petitions, the
union has been registered under the Trade
Union Act, is competent to file writ
petition before this court espousing the
cause of its members.

On merit, the case of the writ
petitioners before the learned Single
Judge, was that the Corporation had
admitted the workmen to be on strike
though allegedly on illegal strike and,
therefore, the strike having emanated
from the means and process for collective
bargain
accepted
in
he
industrial
jurisprudence the workmen cannot be said
to be absent within the meaning of the
said standing order (L-2-12). It is not
abandonment of service but rather a step
to enforce their demand, which can never
be treated to be an absence within the
meaning of the standing order. If such an
interpretation is arrived at, it would be
counter
productive
to
the
accepted
principle and demolish one of the best
hammer in the hands of the workmen to
resort to collective bargaining for the
fulfilment of their demand, which is
otherwise week but becomes capable of
confronting when the employees are
collected together against the mighty
employer.

On behalf of the Corporation, it was
contended
that
the
respondents-writ
petitioners continuously absented for
more than 13 days and, therefore, it was
open to the Corporation to strike off their
names from the rolls under the aforesaid
standing order. It was further contended
that the strike being illegal in the absence
of compliance of the required procedure
prescribed by the Industrial Dispute Act,
the same is to be treated as continuous
absence within the meaning of the said
clause L-2-12 of the standing order and as
such their names could be very well
struck off and the respondents-writ
petitioners cannot take advantage of the
illegal strike to challenge an order passed
under the relevant standing order for
striking the names of the workmen off the
roll treating them to have abandoned their
services.

The learned Single Judge, by the
impugned judgment and order, has held
that the Corporation being State within
the meaning of Article 12 of the
Constitution of India, its action is to be
judge on the touch stone of Article 14 of
the Constitution of India and, therefore,
the writ petition is maintainable under
Article 226 of the Constitution of India.
He further held that the alternative
remedy is not an absolute bar because of
the reason that a State even when
discharging non-statutory duties by reason
of its being a State is amenable to writ
jurisdiction. He further held that where an
order is void and the petition does not
involve controversial questions of fact,
the High Court may not refuse to exercise
its jurisdiction and that too after the writ
petition
was
kept
pending
for
considerable period.

It may be mentioned that the writ
petitions giving rise to the present Special
Appeals, have been filed in the year 199596 and they were pending for about four
years and, in these circumstances, the
learned Single Judge, declined to relegate
the writ petitioners for alternative remedy
available to them under the provisions of
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732 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
U.P. Industrial Disputes Act, by raising an
industrial dispute.

So far as the effect of pendency of
the special Appeal No. 212 of 1996 filed
against the order allowing amendment in
writ petition no.36071 of 1995 is
concerned, the learned Single Judge has
held that as no interim order, either
staying the operation of the order or
staying further proceedings in the writ
petitions, was passed by the Division
Bench, there is no impediment in deciding
the writ petitions, more so, when in one
writ petition viz. writ petition no. 4043 of
1996 the order allowing amendment has
not been challenged. The learned Single
Judge was further of the view that it is not
necessary to go into the question of vires
of clause L-2-12 of the standing orders
and, therefore, the amendment would not
come in the way in proceeding with the
writ petitions.

So far as the objection regarding the
maintainability of the writ petitions by
unregistered union is concerned, the
learned Single Judge has held that even
without being registered and without
being recognized as a collective body of
workmen, the Union is authorized,
entitled and eligible to represent the cause
of individual workman in the form of
collective-bargain between the workmen
and the employer and if it is so, in that
event, there cannot be any justifiable
reason to deny them the same right when
it seeks to invoke writ jurisdiction for its
individual members through the Union.

Further, the plea of res-judicata
canvassed by the Corporation, was
negatived by the learned Single Judge on
the ground that the Lucknow Bench of
this Court had not determined and decided
the issue and decision in these cases
would have effect in the dispute before
the Industrial Labour Court where Anand
Prakash would be pursuing his remedy.

On the merit of the case, the learned
Single Judge, has held that the notice of
strike is necessary only when the
employees are employed in a public
utility service and no material has been
brought on record to show that the
industrial
establishment
of
the
Corporation comes within the purview of
any of clauses of Section 2 (n) of the
Industrial Disputes Act and 2-q of the
U.P. Industrial Dispute Act which define
the public utility services. He further held
that even if notice is required for going on
strike, still the provision of Industrial
Disputes Act, provides punishment of
illegal strike i.e. (i) making a person on
illegal strike liable to punishment of
imprisonment for a term extending to one
month or with fine extending to Rs.50/- or
with both and it had not mentioned in the
provision to the extent that the period of
illegal strike would be a period of
unauthorized
absence
inviting
consequence therefore. It has not provided
that because of such illegal strike the
relationship of employer and employee
would cease or the contract of service
would cease. In that event the provision
relating to clause L-2-12, of the standing
orders will not be applicable and the
workmen shall be deemed to be in service
and the contract of employment shall be
deemed to be subsisting. He also held that
calling the strike as legal or illegal, but it
would not be treated as absence. The
learned Single Judge, thus, has found that
the impugned orders of termination have
been passed in violation of the principle
of natural justice, equity undertaken by an
Instrumentality or agency of the State
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affecting the legal as well as fundamental
right with regard to the right to livelihood
which is recognized as a right to live
within the meaning of Article 21 and as
such
amenable
to
writ
jurisdiction.
Therefore, the writ petitions have been
allowed by the learned Single Judge and
the orders, which were under challenge in
the writ petitions, have been quashed.

We have heard Shri A.K. Gupta
learned counsel as well as Shri V.R.
Agrawal learned Senior Counsel assisted
by Shri P.N. Rai learned counsel for the
appellants and Shri Arun Prakash learned
counsel
for
the
respondents-writ
petitioners.

Shri A.K. Gupta reiterated before us
the same preliminary objections, which
were raised on behalf of the Corporation
before the learned Single Judge.

Shri
V.R.
Agrawal,
however,
submitted that the Corporation is engage
in
construction
business
and
the
provisions of Industrial Disputes Act both
Central and U.P. are not applicable in
case
of
closure
of
a
construction
undertaking,
while
also
raising
the
preliminary objections. He referred to the
proviso to Section 25-O of the Industrial
Disputes Act, as also the proviso to
Section 6-W of the U.P. Industrial
Disputes
Act,
which
excludes
the
procedure prescribed for closing down an
undertaking set up for the construction of
buildings, bridges, roads, canals, dams or
for other construction work. According to
him, no permission is required for closing
down the eonstruction project and each
construction project is treated to be the
independent work. Thus, the Corporation
was entitled to terminate the services of
its workmen engaged for particular
project
on
its
completion
without
following procedure laid down in Section
25-O of the Industrial Disputes Act or
Section 6-W of the U.P. Industrial
Disputes Act. He also submitted that as
the respondents- writ petitioners had
absented for more than 10 days and they
did not respond to the notice issued to
them calling upon them to resume their
duties, the provisions of clause L-2-12 of
the standing order stood attracted and,
therefore, the Corporation was fully
justified in terminating their services.
According to him, the provisions of
Section 6-N of the Industrial Disputes Act
or Section 25-F of the Industrial Disputes
Act were not attracted, as workmen had
not put in continuous service of not less
than one year. Thus, the question, as to
whether their termination is in violation of
the aforesaid provisions, can only be
adjudicated by the Labour Court in an
Industrial Dispute, where the corporation
would be at liberty to produce the
material and evidence to show that the
provisions of Section 6-N or Section 25-F
have not been violated. He relied upon the
decision of Madhya Pradesh High Court
in the case of Employers in relation to
M/s Anand Cinema of M/s Maheshwari
and Bernard Vs. Mohan Tiwari and
another reported in 1993 L.I.C. 651. He
further submitted that Hon. Supreme
Court in the case of Hindustan Steel
Works
Construction
Ltd.
Etc.
Vs.
Hindustan Steel Works Construction Ltd.
Employees' Union Hyderabad and another
reported in AIR 1995 S.C. 1163 has held
that "in the case of a construction
company which undertakes construction
works wherever awarded does not work
and winds up its establishment there and
particularly where a number of local
persons have to be and are appointed for
the purpose of a particular work, mere
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734 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
unity of ownership, management and
control are not of much significance.
The conclusion is inevitable that the
units
at
one
place
were
district
establishments. Once this is so, workmen
of the said unit had no right to demand
absorption
in
other
units
on
the
particular units completing their job. In
such
a
case
the
fact
that
the
management reserved to itself the liberty
of transferring the employees from one
place to another, did not mean that all
the units of the appellant constituted one
single establishment."

Thus,
he
submitted
that
the
respondents-writ
petitioners
are
not
entitled for any relief. The project, in
which they worked, has already come to
end. He referred to para 10 of the counter
affidavit
filed
on
behalf
of
the
Corporation
affirmed
by
Shri
K.B.
Srivastava on 7.1.1996 wherein it has
been averred that the workmen are
generally employed at the project site and
after completion of the project, the
services
of
such
employees
authomatically come to end on that
particular project.

Further, there cannot be any dispute
under the provision of Industrial Dispute
Act, as construction is treated to be
independent project and when it comes to
end the employees who are employed
specifically for that project cannot seek
adjustment as a matter of right in another
construction project undertaken by the
Industrial undertaking.

Shri
Arun
Prakash,
however,
submitted that the Corporation is State
within the meaning of Article 12 of the
Constitution of India and, therefore, the
writ petition is maintainable. In fact, he
adopted the reasoning given by the
learned single Judge in support of his
submissions. He also submitted that this
Court in the case of Pradeep Kumar Vs.
U.P. State Sugar Corporation and another
passed in Special Appeal No. 596 of
1998, on 6.10.2001, reported in 2002 (1)
E.S.C. (All.) 165 has considered in great
detail the question as to whether a writ
petition
is
maintainable
by
the
workmen/employees where the employer
is a State within the meaning of Article 12
of the Constitution of India and has held it
to be maintainable.

He
further
submitted
that
the
Corporation being the State by acting
arbitrarily in terminating the services of
the respondents-writ petitioners, in gross
violation of principle of natural justice,
equity, and fair play and, thus, the learned
single Judge, was justified in interfering
with the impugned orders.

Having heard the rival submissions,
we find that almost all the preliminary
objections, raised on behalf of the
Corporation, have been considered in
great detail by this court, in the case of
Pradeep Kumar Singh (supra) and, we are
in full agreement with the principles laid
down in the case of Pradeep Kumar Singh
(supra) and, we do not propose to deal
with the same separately again in this
case. In this view of the matter, the
preliminary objections raised by the
learned counsel for the Corporation that
the writ petitions were not maintainable,
cannot be accepted.

So far as the merit of the case, it is
not the case of the Corporation that the
orders terminating the services of the
respondents-writ petitioners were by way
of retrenchment. They had invoked the
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735
provisions of clause L-2-12 of the
Certified Standing Orders on the ground
that the respondents-writ petitioners had
abandoned their services and despite
notice they had not turned up for work.

It is not disputed that the Corporation
is a State within the meaning of Article 12
of the Constitution of India. It is supposed
to act reasonably and not arbitrarily. The
services
of
the
respondents-writ
petitioners have been terminated without
even giving show cause notice or
opportunity of hearing before passing the
impugned orders of termination. Thus, the
impugned orders have been passed in
gross violation of principle of natural
justice, fair play and equity and have
rightly been quashed by the learned
Single Judge.

There cannot be any dispute that
every construction project is treated to be
a separate work and the employees
engaged for and working in a particular
project
cannot
seek
adjustment
or
absorption as a matter of right in another
project on completion of that project in
which they were working.

So far as the question that the
respondents-writ petitioners had been
engaged for a particular project is
concerned, there is no specific pleading
by the corporation. General statement has
been made that the workmen are generally
employed at the project site and after
completion of the project; the services of
such employees automatically come to
end on that particular project. But neither
any details of project and employees
engaged therein with reference to the
respondents-writ petitioners have been
given nor their appointment letters have
been placed before the Court. Hence, such
contention cannot be accepted.

In view of the foregoing discussions,
we do not find any merit in these Special
Appeals and they are dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 4.10.2002.

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 30545 of 1990

Prem Niwas Mishra

 ...Petitioner
Verses
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri R.B.D. Mishra
Sri Somesh Khare

Counsel for the Respondents:
S.C.

Constitution of India, Article 311 Service
Law-Termination order passed on the
ground of lesser realisation of amount -
dispite of warning no progress made
letter dated 13.1.88 passed by the Board
of
Revenue
relied
on
-
the
fact
petitioner's
appointment
made
on
compassionate
ground
as
collection
Amin - even after being temporary basis
without show cause notice, without any
disciplinary procedure termination order
held illegal.

Held-Para 9 and 10.

It appears that the impugned order of
termination
is
not
a
termination
simplicior. The services of the petitioner
have been terminated without holding
disciplinary enquiry. Further more, the
provisions
of
U.P.
Temporary
Government Servant (Termination of
Service) Rules, 1975 do not apply in case