# U.P.S.R.T.C. & another v. Brij Nandan Lal & others

- **Citation:** (2012) 2 ILRA 602
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-05-02
- **Case number:** Civil Misc. Writ Petition No. 17313 of 1997
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-s-r-t-c-another-v-brij-nandan-lal-others-42226
- **Pages:** 7

## Headnote

Sri V.M. Sahai
Sri M.M.Sahai

Counsel for the Respondents
C.S.C.
Sri B.N.Singh

Constitution of India, Article 226-Labor
Court
award-granting
designation
of
store
clerk
with
all
consequential
benefits challenged-on ground workman
engaged on post of Mazdoor-discharge
work of clerk-can not give any right to
claim salary on basis of equal pay for
equal
work-unless
appointed
on
promoted post in accordance with Rulesvirtually Labor Court even recording the
findings about no vacancy-in garb of
reinstatement granted promotion-while
lump sum amount of compensation could
be given on want of vacancy-heldLabour Court exceeded its jurisdictionaward set a side-whatsoever amount
given-should not be recovered.

Held: Para 16 anda 17

The
mere
fact
that
a
person
is
discharging duties of a particular nature
would not entitle him to claim a right to
the post or else other benefits of that
post unless he is appointed on the post
in
accordance
with
the
procedure
prescribed in law.

From the award of Labour Court it also
does not appear that the whole sole
2 All] U.P.S.R.T.C. & another V. Brij Nandan Lal and others
603
duties, responsibilities and obligations of
Store Clerk were conferred upon the
workman.
Whatever
said
by
the
workman, even if is accepted, it only
shows that he was allowed to discharge
some duties of clerical in nature but that
by itself does not mean that he was
given full fledged responsibility of a
Class
III
post
with
all
attending
obligations, liabilities and consequences.
Case law discussed:
2011 ADJ (5) 348; AIR 1984 SC 1683; 1991
(62) FLR 583; 1997 (75) FLR 147; (2005) 1
UPLBEC 247; Civil Misc. Writ Petition No.27769
of 1995 (M/s Swadeshi Cotton Mills Vs. The
Presiding
Officer
&
Ors.)
decided
on
10.3.2003; 2011 (3) SCC 436;2009 LabIC
905=2008 JT (10) 578; 1966 (2) SCR 465;
Workmen Employed by Hindustan Lever Ltd.
(supra)

## Text

602 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

9. Prior to this, the record does not
reflect that the petitioner has ever been
guilty of any ground of indiscipline.

10. Insofar as the charge of
indiscipline levelled against the petitioner
in the case in hand, is concerned, I am of
the opinion that the so-called act of
indiscipline cannot be termed as an act of
indiscipline because it is the part of the
discipline of a driver to take vehicle out
on road only he ensures that the vehicle is
road worthy and fit to carry passengers
and it should not in any manner pose any
risk to human life.

11. In my opinion that the driver
while taking a stand with regard to the
broken suspension had acted prudently
and had done so in the best interest of all
involved and most of all passengers who
would have travelled on that bus. The
driver in my opinion had taken due
caution in the matter and had not indulged
in any dereliction of duty nor had caused
any harm or loss to the corporation by his
decision. Should any accident had taken
place then too, the blame would have
been fixed on the driver.

12. In the facts and circumstances of
the case, I am of the opinion that the
driver acted with due caution and
prudence. The punishment imposed by
way of the impugned order, is, therefore
excessive and too harsh, which is,
accordingly, set aside.

13. The writ petition is allowed as
above. No costs.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.05.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 17313 of 1997

U.P.S.R.T.C. & another
 ...Petitioner
Versus
Brij Nandan Lal & others ...Respondents

Counsel for the Petitioner:
Sri V.M. Sahai
Sri M.M.Sahai

Counsel for the Respondents
C.S.C.
Sri B.N.Singh

Constitution of India, Article 226-Labor
Court
award-granting
designation
of
store
clerk
with
all
consequential
benefits challenged-on ground workman
engaged on post of Mazdoor-discharge
work of clerk-can not give any right to
claim salary on basis of equal pay for
equal
work-unless
appointed
on
promoted post in accordance with Rulesvirtually Labor Court even recording the
findings about no vacancy-in garb of
reinstatement granted promotion-while
lump sum amount of compensation could
be given on want of vacancy-heldLabour Court exceeded its jurisdictionaward set a side-whatsoever amount
given-should not be recovered.

Held: Para 16 anda 17

The
mere
fact
that
a
person
is
discharging duties of a particular nature
would not entitle him to claim a right to
the post or else other benefits of that
post unless he is appointed on the post
in
accordance
with
the
procedure
prescribed in law.

From the award of Labour Court it also
does not appear that the whole sole
2 All] U.P.S.R.T.C. & another V. Brij Nandan Lal and others
603
duties, responsibilities and obligations of
Store Clerk were conferred upon the
workman.
Whatever
said
by
the
workman, even if is accepted, it only
shows that he was allowed to discharge
some duties of clerical in nature but that
by itself does not mean that he was
given full fledged responsibility of a
Class
III
post
with
all
attending
obligations, liabilities and consequences.
Case law discussed:
2011 ADJ (5) 348; AIR 1984 SC 1683; 1991
(62) FLR 583; 1997 (75) FLR 147; (2005) 1
UPLBEC 247; Civil Misc. Writ Petition No.27769
of 1995 (M/s Swadeshi Cotton Mills Vs. The
Presiding
Officer
&
Ors.)
decided
on
10.3.2003; 2011 (3) SCC 436;2009 LabIC
905=2008 JT (10) 578; 1966 (2) SCR 465;
Workmen Employed by Hindustan Lever Ltd.
(supra)

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Mayank, Advocate,
holding brief of Sri M.M.Sahai for the
petitioner and Sri B.N.Singh, learned
counsel appearing for respondent No.1.

2. This writ petition is directed against
the award dated 31st October, 1996 of
Labour
Court
(5),
U.P.
Kanpur
in
Adjudication Case No.64/1990 whereby it
has held that respondent workman Sri Brij
Nandan Lal is entitled for designation and
post of Store Clerk w.e.f. 6.12.1989 with all
consequential benefits.

3. The facts in brief given rise to the
present dispute are as under:

4. The workman Brij Nandan Lal
admittedly was engaged as Mazdoor on
1.6.1963 in Farrukhabad Depot of erstwhile
State
Transport
Department
of
U.P.
Government which subsequently became
Uttar
Pradesh
State
Road
Transport
Corporation (hereinafter referred to as
"UPSRTC") a statutory body under State
Road Transport Act. He claims that after
promotion of one Om Prakash Shakya,
Store Clerk as Assistant Store Keeper on
1.2.1979, post of Store Clerk fell vacant and
the authorities concerned deployed the
workman Braj Nandan Lal to perform
duties of Store Clerk. He has functioned and
discharged the aforesaid duties but has not
been
given
designation
and
other
consequential benefits of the said post. He
raised an industrial dispute in 1989. The
conciliation proceedings having been failed
on the recommendation of Conciliation
Officer, the State Government in exercise of
power under Section 4-K of the U.P.
Industrial Disputes Act, 1947 (hereinafter
referred to as "Act 1947") vide notification
dated 6.12.1989, made the following
reference for adjudication by Labour Court
respondent No.2:

^^D;k lsok;kstdksa }kjk vius deZpkjh c`tuUnu
yky iq= Jh I;kjs yky dks mlds dk;Z dh izd`fr ds
vuqlkj LVksj DydZ dk inuke o rn~uqlkj osrueku u
fn;k tkuk mfpr rFkk@vFkok oS/kkfud gS\ ;fn ugha]
rks lacaf/kr deZpkjh D;k fgrykHk @mi'ke ikus dk
vf/kdkjh gS] fdl frfFk ls rFkk fdl vU; fooj.k
lfgr\**

5. The workman filed a detailed
written statement and also adduced certain
documents to show that he had been
performing certain duties which are clerical
in nature. The documents also include his
own letter in which he has claimed to have
been discharging duties as Store Clerk since
1979
and
therefore
claimed
regular
appointment on the said post. A document
said to be letter dated 17.7.1986 sent by
Deputy
Manager,
Central
Zone
recommending for regular appointment of
the workman in stores was also filed before
the Labour Court.

6. The employer, on the contrary, took
the stand in the written statement that the
604 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
workman was a permanent Mazdoor i.e. a
Class IV employee and was never
appointed on the higher post of Store Clerk
by any competent authority in accordance
with procedure prescribed in the rules. In
fact the workman was employed to function
under the Store Keeper and discharge duties
of unskilled nature. He did not function as
Store Clerk at all. In any case it is submitted
that ministerial post of Class III i.e. Store
Clerk is a promotional post from a Class IV
employees and in the garb of designation,
promotion cannot be allowed.

7. The Labour court by means of the
impugned award, however, has answered
the reference in favour of the workman.

8. Sri Mayank, learned counsel
appearing on behalf of the petitioner
contended that by means of impugned
award the Labour Court in effect has
granted
promotion
to
the
workman
concerned ignoring statutory provisions
under which such promotion could be made
from the employees working as Class IV
and therefore, Labour Court acted wholly
illegally has also exceeded its jurisdiction.
He placed reliance on the decision of this
Court
in
U.P.S.R.T.C.
Kanpur
Vs.
Imtiyaz Ahmad 2011 ADJ (5) 348.

9. Sri B.N.Singh, however, appearing
on behalf of the workman submitted that it
is a simple case of granting designation and
status to the workman and not a promotion
and in fact, it is a case of 'fitment'. He
placed reliance on Apex Court's decision in
Workmen
Employed
by
Hindustan
Lever Ltd. Vs. Hindustan Lever Limited,
AIR 1984 SC 1683 and this Court's
decisions in National Textile Corporation
(U.P.) Ltd. Vs. The Presiding Officer,
Labour Court I, Kanpur & Ors.,
1991(62) FLR 583, Nagar Mahapalika,
Gorakhpur
Vs.
Labour
Court,
Gorakhpur & others 1997(75) FLR 147,
U.P. State Road Transport Corporation
Vs. Ramesh Kumar Yadav & Ors. (2005)
1 UPLBEC 247 and Civil Misc. Writ
Petition No.27769 of 1995 (M/s Swadeshi
Cotton Mills Vs. The Presiding Officer &
Ors.) decided on 10.3.2003.

10. I have heard learned counsel for
the parties and perused the record.

11. The question up for consideration
is, "whether here is a simple case of fitment
or in the garb of granting designation and
post, the Labour Court has granted
promotion to the workman".

12. From the impugned award as also
the pleadings it is evident that appointment
on a post of Clerk in UPSRTC is governed
by statutory rules framed by the petitioner-
Corporation as also the departmental
instructions issued in this regard. Learned
counsel for the petitioner pointed out that on
a clerical post there are two sources of
recruitment namely direct recruitment and
promotion of Class IV employees. It is not
disputed
that
the
workman
never
participated in a selection for a clerical post
as a direct recruit. He has also not been
promoted thereon by the Competent
Authority after following the procedure
prescribed for promotion. It is also evident
that the petitioner employer took a specific
stand that there was no post of Store Clerk
at the place where workman was posted and
this fact could not be contradicted by the
workman. The Labour Court itself has
observed that if the post was not available,
the workman ought to have been allowed
pay and salary admissible to a clerical staff
on the principle of 'equal pay for equal
work'. In my view the Tribunal has clearly
misdirected itself by ignoring that in order
2 All] U.P.S.R.T.C. & another V. Brij Nandan Lal and others
605
to apply principle of "equal pay for equal
work" existence of a post has to be shown.
Even otherwise, no principle of service
jurisprudence has been shown to exist that a
person if not recruited or employed in
accordance with the procedure prescribed,
yet, if worked or discharged duties of a
particular nature, he would have a lien and
right to claim a particular designation and
even if it does not exist.

13. The concept of "holding over" has
been held inapplicable in the matter of
employment by the Apex Court in State of
Orissa
and
another
Vs.
Mamata
Mohanty, 2011(3) SCC 436 and the Court
said:

"The concept of adverse possession of
lien on post or holding over are not
applicable
in
service
jurisprudence.
Therefore, continuation of a person wrongly
appointed on post does not create any right
in his favour."

14. Here is not a case where the
workman was appointed by the competent
authority following a procedure prescribed
in law on a particular post and thereafter a
dispute was raised in respect to the nature of
appointment or category of appointment or
classification
of
appointment
like
permanent, temporary, ad hoc etc. The
decision of Apex Court therefore in
Workmen
Employed
by
Hindustan
Lever Ltd. (supra) would not apply to the
facts of this case, inasmuch as, there it was a
case
where
workmen
were
already
promoted on the post of which they were
claiming benefit and it was only the
nature/classification on the said post wich
was disputed, as is evident from para 12 of
the judgment wherein the Apex Court has
observed:

"The Tribunal overlooked the fact that
the demand was in respect of workmen
already promoted i.e. in respect of whom
managerial function of selecting personnel
for promotion had been already performed.
The demand was in respect of already
promoted workmen, may be in an officiating
capacity, for their classification from acting
or
temporary
to
confirmed
that
is
permanent, in the higher grade to which
they were promoted, after a reasonable
period of service which according to the
Union must be three months of service. By
no cannon of construction, this demand
could be said to be one for promotion."

15. The dispute in the present case, in
my view, is akin and covered by the law
laid down by Apex Court in U.P. State
Sugar & Cane Vs. Chini Mill Mazdoor
Sangh 2009 LabIC 905=2008 JT (10) 578
wherein the workmen were employed as
seasonal workman but they claimed to have
worked throughout the year like permanent
workmen and hence claimed benefit of a
permanent workmen. The reference was
made "whether the workman can be
declared permanent". The Labour Court
answered the reference in favour of the
workmen. The Apex Court referring its
earlier Constitution Bench judgment in
Management of Brook Bond India (P)
Limited Vs. Workmen, 1966 (2) SCR
465;
and
Workmen
Employed
by
Hindustan Lever Ltd. (supra), held in
paras 21, 22, 23 and 24 as under:

21. That there are different categories
of workers employed in the sugar industries,
and, in particular, during the crushing
season, is not disputed by any of the parties.
It is not denied that apart from the
permanent workmen, the other categories of
workmen are employed during the crushing
season which begins in the month of
606 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
October in a given year and continues till
the month of April of the following year. It
is the period during which the sugarcane
crop
is
harvested,
and,
thereafter,
transported to different mills where they are
crushed
for
production
of
sugar.
Admittedly, as will appear from Standing
Order No. 2, a muster- roll of all
employees, who are not permanent, is
maintained by the different sugar mills and
at the beginning of the crushing season the
seasonal labour who had worked during the
previous crushing season are asked to join
their duties for the crushing season in their
old jobs. It is also not denied that the pay
scales of the different categories of
workmen are different.

22. It has been submitted on behalf of
the appellant that even when the seasonal
workmen are employed during the off
season they are paid the same wages as are
paid to them during the crushing season,
which is one of the basic distinctions
between them and permanent workmen who
are on the rolls of the sugar mills. It is also
an admitted position that, in terms of the
policy followed by the sugar mills,
promotions are given from one category to
the next higher category depending on the
number of vacancies as are available at a
given point of time. Even in the instant case,
of the 39 workmen referred to in the terms
of reference, 13 had been made permanent
by the appellant which supports the case of
the appellant that promotion is given from
one category to the higher categories as
and when vacancies are available and that
such function was clearly a managerial
function which could not have been
discharged by the Labour Court.

23. We are in agreement with the
views expressed by the Constitution Bench
of this Court in the Brooke Bond case
(supra) as also those of the three-Judge
Bench in the Hindustan Lever case (supra).
In our view, this is not a case of fitment
depending on the nature of the work
performed, but a case of promotion as and
when vacancies are available. Both the
Labour Court as well as the High Court do
not appear to have considered this aspect of
the matter with the attention it deserved and
proceeded on the basis that this was a case
where the respondent Nos. 2-15 had been
denied their right to be categorised as
permanent workmen on account of the
nature of the work performed by them
throughout the year. The High Court has, in
fact, merely relied on the findings of the
Labour
Court
without
independently
applying its mind to the said aspect of the
matter.

24.
We,
therefore,
accept
the
submissions advanced by Mr. Upadhyay
and allow the appeal. The Award of the
Labour Court and the Judgment of the High
Court impugned in this appeal, are set
aside.

16. Applying the criteria laid down by
the Apex Court, here also, from a Class IV
post a workman is promoted in cadre which
is a Class III, as and when the vacancy are
available, after following the procedure
prescribed in law therefore what was
claimed by the workman was promotion
and not a mere fitment. The mere fact that a
person is discharging duties of a particular
nature would not entitle him to claim a right
to the post or else other benefits of that post
unless he is appointed on the post in
accordance with the procedure prescribed in
law.

17. From the award of Labour Court it
also does not appear that the whole sole
duties, responsibilities and obligations of
2 All] U.P.S.R.T.C. & another V. Brij Nandan Lal and others
607
Store Clerk were conferred upon the
workman. Whatever said by the workman,
even if is accepted, it only shows that he
was allowed to discharge some duties of
clerical in nature but that by itself does not
mean that he was given full fledged
responsibility of a Class III post with all
attending
obligations,
liabilities
and
consequences.
This
aspect
has
been
considered by this Court in U.P.S.R.T.C.
Kanpur Vs. Imtiaz Ahmad (supra) and in
paras 7, 8 and 9 the Court held as under:

"7. Moreover, directing prospective
grant of designation and pay scale is
nothing but promotion ignoring the claim of
other similarly situate workmen. Labour
court did not even bother to verify as to
whether any post of mechanic was vacant
or not.

8. Merely, because a person possesses
minimum qualification, he can not be
granted
promotion.
Possessing
such
qualification is only one of the necessary
prerequisites. The others inter alia are
availability of the post in the next grade and
consideration of all other similarly situate
employees and their seniority in the feeder
cadre. Promotion in U.P.S.R.T.C. is
governed by Rules and Regulations. Labour
Court cannot by-pass the same. If such type
of approach is approved then any officer
may unduly favour any of his subordinates
by taking the work of higher grade from him
and thereafter that person obtains from the
labour court award for grant of pay scale
and designation of the said higher post.

9. A mechanic is required to perform
different types of jobs. Particular type of job
may require different types of operations.
Some stages of an operation may be quite
simple requiring to be performed even by
unskilled labour other stages may be
gradually complicated requiring to be
performed by more competent mechanics.
Merely because a mechanic of lower grade
is also involved in a particular job it does
not mean that he is entitled to be
automatically promoted to the higher grade
mechanic who is also involved in the same
type of job.

In my view, this judgment squarely
apply to the present case.

18. The question whether it is a case
of promotion or not has not been considered
by this Court in U.P.State Road Transport
Corporation Vs. Ramesh Kumar Yadav
& Ors. (supra) where the issue was raised
whether question of non promotion would
be an industrial dispute or not was
considered and decided which is not the
issue raised in this case. The aforesaid
jdugment,
therefore,
would
have
no
application to the case in hand.

19. Similarly in Nagar Mahapalika,
Gorakhpur (supra) also the issue whether
it is a case of promotion or not was not
considered hence the said decision does not
constitute a precedent binding on this Court
and has no applicable to the present dispute.

20. In National Textile Corporation
(U.P.) Ltd. (supra), the Court has held that
promotion is a managerial function but then
it has recorded its finding in short that in the
matter before the Court that was not a case
of promotion and therefore the Court did
not interfere with the award of the Labour
Court. The judgment is a short judgment
and does not apply to the facts of the case
where the appointment of the post is
governed by the statutory provision framed
namely
U.P.
State
Road
Transport
Corporation
Employees
(Other
than
Officers) Service Regulation, 1981.
608 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

21. In view of above discussion, in my
view, the impugned award of Labour Court
cannot sustain. The writ petition is allowed.
The award dated 31st October, 1996
(Annexure No.1 to the writ petition) passed
by Labour Court (5), U.P. Kanpur in
Adjudication Case No.64/1990 is hereby set
aside.

22. No order as to costs.

23. However, the benefit, if any, with
respect to the salary etc. if already given to
the workman concerned, the petitioner shall
not recover the same.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.04.2012

BEFORE
THE HON'BLE MANOJ MISRA, J.

Civil Misc. Writ Petition no. 19875 of 2004

C-24776 Prathvi Raj Sharma ...Petitioner
Versus
State of U.P. Thru' Secy. Min. of Home
Affairs U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Shyam Ji Gaur
Sri Shyam Narain
Sri Sudhanshu Narain
Sri Gopal Srivastava

Counsel for the Respondents:
C.S.C.

Constitution
of
India,
Article-226Dismissal order-challenged on ground of
disproportionate punishment-petitioner
found guilty for unauthorized absent
from duty-but also guilty for refusal of
duty
inspite
of
request
of
Guard
Commander-left the SLR Rifle with 50
bullets-in
disciplinary
force
such
conduct-not
tolerable-punishment
of
dismissal
neither
excessive
nor
shocking-warrants no interference.

Held: Para 21

Considering the facts and circumstances
of the case, I am of the view that the
punishment of dismissal awarded to the
petitioner was one of the possible
punishment that could be awarded to
him
considering
the
nature
of
his
conduct and the fact that he was a
member
of
a
uniformed
service,
accordingly, it is not permissible for me
to interfere with the same in exercise of
power of judicial review.
Case law discussed:
(2012) 3 SCC 178; [2003 (2) LBESR 947 (All)];
AIR 1994 SC 215; (2003) 3 SCC 309; (2010)
11 SCC 314

(Delivered by Hon'ble Manoj Misra, J.)

1. I have heard learned counsel for
the petitioner and the standing counsel for
the respondents and have perused the
record.
As
pleadings
have
been
exchanged, with the consent of the
counsel for the parties, the petition is
being finally disposed of at the admission
stage.

2. By this writ petition, the
petitioner, who was a Constable in the
Provincial
Armed
Constabulary,
has
challenged the dismissal order dated
21.07.2000, as also the appellate order of
affirmance dated 28.02.2001, passed by
the Commandant, 20th Battalion, P.A.C.,
Azamgarh and the Deputy Inspector
General,
P.A.C.,
Varanasi
Range,
Varanasi respectively.

3. The facts, in brief, are that while
the petitioner was posted as a Constable at
20th Battalion, P.A.C., Azamgarh in the
year 2000, he was served with a chargesheet dated 16.3.2000 wherein it was