# U.P.S.R.T.C., Azamgarh & Anr v. Labour Court, U.P. & Anr

- **Citation:** (2022) 10 ILRA 154
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-22
- **Case number:** Writ-C No. 50437 of 2011
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-s-r-t-c-azamgarh-anr-v-labour-court-u-p-anr-47699
- **Pages:** 8

## Headnote

A. UP Industrial Disputes Act, 1947 -
Section 6(2-A) - Termination of workmen
- Domestic enquiry - Claimed to be illegal
and unfair - Burden of proof, on whom lie
- Held, the domestic inquiry is one that is
held in violation of principles of natural
justice or the conclusions are not bona
fide or the inquiry is unfair, lies on the
workman, not on the employers - Labour
Court committed a manifest and patent
error of law in proceeding to hold the
inquiry unfair by requiring the employers
to establish that it was fair, just and bona
fide. (Para 17 and 19)
Writ petition allowed. (E-1)
List of Cases cited:-

## Text

154 INDIAN LAW REPORTS ALLAHABAD SERIES
application of mind in respect of the selection
made by the petitioner. The respondents have
proceeded to pass the order on the analogy
that prior approval for the selection was not
taken which stand is contrary to the
judgments of this Court as referred above.
The other ground that the action of the
petitioner was contrary to the order of this
court passed on 19.11.2020 also merits
rejection, inasmuch as, this Court while
passing the order dated 19.11.2020 had
simply directed the respondents to take a
decision in terms of the request made by the
petitioner within six weeks, which the
respondents did not do. The other reasoning
mentioned in the impugned orders that in
terms of the Government Order, there was a
bar for making appointment in respect of the
26 colleges also does not find favour of this
court in view of the fact that the petitioner
Institution is not named in the list of the 26
colleges as referred to in the Government
Order, thus for all the reasons recorded above
and in the light of the judgments of this Court
rendered in the case of Jagdish Singh (Supra)
followed in the cases of Preet Kumar
Srivastava (Supra) and Abhishek Tripathi
(Supra),
the
orders
impugned
dated
07.07.2021 and 07.10.2021 are set aside.

15. The matter is relegated to the
Director, Secondary Education for passing a
fresh order after considering the observations
made hereinabove and the law laid down by
this Court in the case of Jagdish Singh
(Supra) followed in the cases of Preet Kumar
Srivastava (Supra) and Abhishek Tripathi
(Supra).

16. The Director, Secondary Education
shall take decision with all expeditions
preferably within a period of two months
from the date of production of certified copy
of this order.

17. The Director shall take decision in
terms of regulations and shall pass orders on
the request of the petitioner to grant of
approval for selection on the Class-III posts.

18. It is made clear that the question of
the petitioner not taking prior approval before
the selection process shall not be a ground for
passing the orders as directed above.

19. So far as the prayer of the petitioner
for granting approval with all consequential
benefits cannot be accepted in terms of the
orders passed by this Court, inasmuch as, the
law is well settled that before issuance of
appointment letter and permitting a person to
join, prior approval is necessary. The
entitlement of salary to the selected candidate
shall be subject to the outcome of the fresh
order to be passed by the Director as directed
hereinabove.

20. For the reasons recorded above, the
writ petition is disposed off.
----------
(2022) 10 ILRA 154
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.09.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-C No. 50437 of 2011

U.P.S.R.T.C., Azamgarh & Anr.
 ...Petitioners
Versus
Labour Court, U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Sri Ajit Kumar Singh, Sri S.M. Mishra, Sri
Sunil Kumar Misra

Counsel for the Respondents:
10 All. U.P.S.R.T.C., Azamgarh & Anr. Vs. Labour Court, U.P. & Anr.
155
C.S.C., Sri J.P. Singh, Sri Samir Sharma, Sri
Sandeep Kumar Rai

A. UP Industrial Disputes Act, 1947 -
Section 6(2-A) - Termination of workmen
- Domestic enquiry - Claimed to be illegal
and unfair - Burden of proof, on whom lie
- Held, the domestic inquiry is one that is
held in violation of principles of natural
justice or the conclusions are not bona
fide or the inquiry is unfair, lies on the
workman, not on the employers - Labour
Court committed a manifest and patent
error of law in proceeding to hold the
inquiry unfair by requiring the employers
to establish that it was fair, just and bona
fide. (Para 17 and 19)
Writ petition allowed. (E-1)
List of Cases cited:-
1. Management of Regional Chief Engineer,
Public Health and Engineering Department,
Ranchi Vs Their Workmen represented by
District Secretary, (2019) 18 SCC 814
2. Uco Bank Vs The Presiding Officer & anr.,
1999 SCC OnLine Del 657
3. Cooper Engineering Limited Vs Shri P.P.
Mundhe, (1975) 2 SCC 661
4. Karnataka St. Road Transport Corporation Vs
Lakshmidevamma (Smt.) & anr., (2001) 5 SCC
433
(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition is directed
against the judgment and award passed by
the Presiding Officer, Labour Court, U.P.,
Lucknow in Adjudication Case No. 170 of
2007 dated 18th March, 2010, published on
3rd March, 2011.

2. Ganga Rai, respondent no.2 to this
petition, was employed as a driver with the
Uttar
Pradesh
State
Road
Transport
Corporation in the year 1979. Ganga Rai
shall hereinafter be referred to as 'the
workman'. The two petitioners here, who
are substantially one and the same, that is
to say, the Uttar Pradesh State Road
Transport Corporation, represented by their
General
Manager
for
the
Azamgarh
Region, Azamgarh, shall hereinafter be
called 'the employers'.

3. Shorn of unnecessary details, the
workman was placed under suspension
pending inquiry by the employers on
09.12.1987. Two charge-sheets, carrying
distinct charges, were issued to the
workman by the employers, one dated
20.11.1987 and the other dated 01.01.1988.
He was required to file his reply to the
charge-sheets within the time specified. An
Inquiry Officer was appointed to inquire
into the charges and submit a report. It is
common ground between parties that the
workman participated in the ensuing
inquiry. The workman was exonerated of
the charges carried in the charge-sheet
dated 20.11.1987. However, of the three
charges carried in the charge-sheet dated
01.01.1988, the workman was exonerated
in regard to Charge No. 1, but held guilty
on Charges Nos. 2 and 3.

4. The Assistant Regional Manager of
the employers issued a show cause notice
to the workman on 04.12.1989, to which
the workman submitted his reply. The
Assistant Regional Manager vide his order
dated 31.03.1990 ordered the workman's
removal from service and forfeiture of the
balance of all emoluments for the period of
suspension. A departmental appeal was
preferred from the said order, which was
rejected by the departmental appellate
authority vide order dated 26.10.1990. This
order was communicated to the workman
on 22.01.1991.

5. The workman invoked the
provisions of the Uttar Pradesh Industrial
156 INDIAN LAW REPORTS ALLAHABAD SERIES
Disputes Act, 1947 (for the short, 'the Act
of 1947') claiming the termination of his
services by the employers to be unlawful.
The following reference was made by the
Deputy Labour Commissioner, Gorakhpur
vide order dated 08.04.1991 (translated into
English from Hindi):

Whether termination of services of the
workman, Sri Ganga Rai (Driver) son of
Sri Suryabali Rai, by the employers on
31.03.1990 is just and/ or lawful? If not, to
what relief is the concerned workman
entitled and with what other benefits?

6. On the aforesaid reference,
Adjudication Case No. 209 of 1991 was
registered on the file of the Labour Court,
Gorakhpur. Later on, by a Government
Order dated 31.07.2007, the industrial
dispute was transferred to the Labour
Court, Lucknow. After registration of the
case before the Labour Court at Lucknow,
notice was issued to both parties, directing
them to appear. The workman appeared and
put in his written statement, where after
detailing the course of proceedings, already
extracted
hereinabove,
the
workman
pleaded that termination of his services was
unlawful and unjust. It was also the
workman's case that the Inquiry Officer
was not apponted by the competent officer,
empowered in this behalf. The workman
was not afforded any opportunity to defend
himself or produce evidence in his defence.
The entire disciplinary proceedings were
held in utter disregard of the principles of
natural justice. It was pleaded on behalf of
the workman that he had not done any such
act, on account of which the employers
would have sustained injury. It was pleaded
that he was falsely implicated by and at the
behest
of
some
persons,
harbouring
personall ill-will and malice against him,
who conspired to implicate him.

7. The employers in their written
statement pleaded that the workman was
suspended and charge-sheeted on various
charges, which include refusing to operate the
Delux Bus on its route on 23.11.1987,
misbehaving with Pramod Kumar Mishra,
Senior Clerk on 08.12.1987 and on the same
day
threatening
the
Assistant
General
Manager, R.N. Tiwari with death. It was in
consequence of these charges that the
workman was suspended from service on
09.12.1987, regarding which he was served
with a charge-sheet dated 01.01.1988. On the
workman's reply not being found satisfactory
by the employers, an Inquiry Officer was
appointed on 30.12.1988. The Inquiry Officer
held inquiry after summoning both parties.
The workman was given due opportunity to
defend himself by the Inquiry Officer, who
submitted his inquiry report on 16.05.1989.
The rest of the averments are about the
course of proceedings, leading to the order of
removal, most of which have already been
recounted. It was particularly pleaded in
Paragraph No. 9 of the written statement filed
on behalf of the employers that if the Labour
Court is of opinion that there has been any
flaw in holding the inquiry or that no inquiry
has been held at all, the employers have the
right to prove the charges against the
workman before the Labour Court by leading
necessary evidence. There is a prayer carried
in the written statement that in case the
Labour Court reaches conclusion about any
flaw in the inquiry, the employers may be
given opportunity to prove the charges before
the Labour Court. There is pleading to the
effect, albeit in words more ceremonial than
substantial, that the order of reference is bad
and that the Labour Court had no jurisdiction
to decide any dispute beyond the terms of
reference.

8. The Labour Court, after hearing
parties on 25.08.1993, framed an issue
10 All. U.P.S.R.T.C., Azamgarh & Anr. Vs. Labour Court, U.P. & Anr.
157
about the validity of the domestic inquiry to
the effect whether the said inquiry was fair,
lawful and bona fide. The Labour Court, by
an order dated 08.04.1999, held that despite
opportunity
being
afforded
to
the
employers on the issue about the fairness of
the domestic inquiry, they chose not lead
any evidence or to prove any documents. It
was held that the domestic inquiry was not
fair and proper. The employers were,
therefore, granted opportunity to lead
evidence on 02.08.1999 in support of the
charges before the Labour Court.

9.

The
Labour
Court,
after
consideration of the evidence led by the
employers, passed the impugned award
holding the charges not proved by the
evidence on record. The reference was
answered in terms that the termination of
services of the workman by the employers
on 31.03.1990 was not lawful and proper. It
was further directed that the workman was
entitled to be reinstated in service with
continuity. The workman was awarded
20% back-wages for the period of his
disengagement. The Labour Court has also
invoked its powers under Section 6(2-A) of
the Act of 1947 in making the impugned
award.

10. Heard Mr. S.M. Mishra, learned
Counsel for the employers and Mr.
Sandeep Kumar Rai, learned Counsel
appearing for the workman.

11. It is argued by Mr. S.M. Mishra,
learned Counsel for the employers that the
Labour Court has concluded in manifest
error that Pramod Kumar Mishra, who was
a Senior Clerk, could not prove the charge
of misbehaviour with him against the
workman by his evidence adduced before
the
Labour
Court.
Likewise
is
the
submission regarding the conclusions on
the charge relating to misbehaviour with
the Assistant Regional Manager. It is
argued by Mr. Mishra that these two
witnesses, no doubt the complainants,
could not be disbelieved by the Labour
Court for the reason alone that they were
complainants with regard to the relative
charges. It is also argued that the Labour
Court committed a manifest illegality in
relying upon the workman's testimony to
disbelieve the employers' witnesses. The
entitlement of the workman to receive
back-wages has been scathingly criticized
by Mr. Mishra with the submission that
back-wages cannot be claimed as a matter
of right, when the order of removal is set
aside by the Labour Court. In this
connection, he has drawn the attention of
the Court to the decision of the Supreme
Court in Management of Regional Chief
Engineer, Public Health and Engineering
Department, Ranchi vs. Their Workmen
represented by District Secretary, (2019)
18 SCC 814. In Management of Regional
Chief Engineer, PHED (supra), it was
held:

10. In our considered opinion,
the courts below completely failed to see
that the back wages could not be awarded
by the Court as of right to the workman
consequent upon setting aside of his
dismissal/termination
order.
In
other
words, a workman has no right to claim
back wages from his employer as of right
only because the Court has set aside his
dismissal order in his favour and directed
his reinstatement in service.

11. It is necessary for the
workman in such cases to plead and prove
with the aid of evidence that after his
dismissal from the service, he was not
gainfully employed anywhere and had no
earning to maintain himself or/and his
family. The employer is also entitled to
158 INDIAN LAW REPORTS ALLAHABAD SERIES
prove it otherwise against the employee,
namely, that the employee was gainfully
employed during the relevant period and
hence not entitled to claim any back wages.
Initial burden is, however, on the employee.

12. It is argued that it was a duty of
the workman to prove that he was not
gainfully employed during the period he
was out of employment, which he has not
done. It is submitted that this burden not
being discharged by the workman, the
award of 20% back-wages is bad in law.

13. Mr. Sandeep Kumar Rai, learned
Counsel for the workman, on the other
hand, submits that the workman had urged
that he was not given opportunity by the
Inquiry Officer and the inquiry was not
fair. On the pleadings of parties, an issue
was farmed, whereon it was held against
the employers by the Labour Court on
08.04.1999. The employers were granted
opportunity to lead evidence, which they
did. It is submitted that the employers
produced the two complainants alone as
witnesses, whereas regarding the incident
relative to the two charges, there were a
number of named witnesses, such as Shiv
Nath Singh, Shiv Badan Singh, Shri
Prakash Mishra and Radhey Shyam Singh,
none of whom were produced by the
employers. The witnesses by their own
evidence utterly failed to prove the charges,
as held by the Labour Court.

14. It is further submitted that the
Labour Court has considered the entire
evidence
and
reached
a
plausible
conclusion that the charges were not
established by the testimony of the two
witnesses produced on behalf of the
employers. It is also argued that the
employers acquiesced to the order of the
Labour Court dated 08.04.1991, discarding
the domestic inquiry as unfair and vitiated.
The employers have led evidence before
the Labour Court to prove the charges,
which strengthens the case of acquiescence
to the said order. At this stage, the
employers cannot question the said order
and can only say what they may in
criticism of the Labour Court's award on
merits relating to the charges, which the
employers attempted to establish.

15.

This
Court
has
carefully
considered the submissions advanced on
behalf of both parties and perused the
record.

16. This Court must remark that the
order dated 08.04.1991, whereby the
fairness of the inquiry has been held
vitiated by the Labour Court, with a
direction to the employers to produce
evidence, is one that cannot stand scrutiny
about
its
validity.
The
order
dated
08.04.1999 reads (translated into English
from Hindi):

"The employers have been given
many opportunities to produce evidence,
but they have not produce any evidence nor
have they proved any document. I order
that the domestic inquiry is not proper and
fair and the employers are granted
opportunity to adduce evidence in support
of the charges on 02.08.1999."

17. The burden to prove that the
domestic inquiry is one that is held in
violation of principles of natural justice or
the conclusions are not bona fide or the
inquiry is unfair, lies on the workman; not
the employers. The order passed by the
Labour Court on 08.04.1999 to hold the
inquiry vitiated places the burden on the
wrong shoulder. By application of no
principle or yardstick, could the employers
10 All. U.P.S.R.T.C., Azamgarh & Anr. Vs. Labour Court, U.P. & Anr.
159
be required to prove by evidence that the
inquiry held was fair, just and bona fide. It
is presumed to be so unless the workman
proves to the contrary.

18. The aforesaid principle is well
elucidated by the following remarks of the
Delhi High Court in Uco Bank vs. The
Presiding Officer and another, 1999 SCC
OnLine Del 657:

17. In the present case petitioner
Bank has held the enquiry conducted
against workman on the basis of which
workman has been dismissed from service.
It is the workman who has raised dispute
against his dismissal. He has filed
statement of claim contending that enquiry
conducted against him is not proper and
that there is violation of principles of
natural justice. Therefore, normally it is for
him to prove as to how enquiry conducted
against him is illegal or invalid.

18. As stated above, this issue is
to be treated as preliminary issue. Only if
this preliminary issue is decided against
the employer and it is held that the enquiry
conducted is not valid, then the burden
would shift and squarely lie upon the
employer to show by adducing evidence on
merits that the action taken against the
workman was justified and for this Bank
will have to lead evidence to establish that
the charges levelled against the workman
were proved. Insofar as question of validity
of the enquiry is concerned, initial burden
lies upon the workman to prove that the
enquiry conducted against him was not fair
or proper.

19. In the opinion of this Court,
therefore, the Labour Court committed a
manifest and patent error law in proceeding
to hold the inquiry unfair by requiring the
employers to establish that it was fair, just
and bona fide. The consequential action of
the Labour Court to require the employers
to produce evidence and establish the
charges would, therefore, be vitiated.

20. The next question, that arises, is
whether the employers are entitled to
question the order of the Labour Court
dated 08.04.1999, holding the inquiry
vitiated on ground that it is unfair and
defective, while challenging the Labour
Court's award passed after the adjudication
case has reached conclusion. This issue is
raised by the learned Counsel for the
workman, relying on the principle of
acquiescence to submit that once the order
of the Labour Court, holding the inquiry
unfair, has not been challenged when made,
and to the contrary accepted by the
employers by leading evidence in support
of the charges before the Labour Court,
they cannot turn around and question the
validity of the order dated 08.04.1999, on
the foot of which proceedings in the
adjudication case have taken their course
and reached a terminus in terms of the
award. This submission, though attractive
at the first blush, crumbles down in the face
of authority to the contrary in Cooper
Engineering
Limited
v.
Shri
P.P.
Mundhe, (1975) 2 SCC 661, where it was
held:

22. We are, therefore, clearly of
opinion that when a case of dismissal or
discharge of an employee is referred for
industrial adjudication the Labour Court
should first decide as a preliminary issue
whether the domestic enquiry has violated
the principles of natural justice. When
there is no domestic enquiry or defective
enquiry is admitted by the employer, there
will be no difficulty. But when the matter is
in controversy between the parties that
question must be decided as a preliminary
160 INDIAN LAW REPORTS ALLAHABAD SERIES
issue. On that decision being pronounced it
will be for the management to decide
whether it will adduce any evidence before
the labour court. If it chooses not to adduce
any evidence, it will not be thereafter
permissible in any proceeding to raise the
issue. We should also make it clear that
there will be no justification for any party
to stall the final adjudication of the dispute
by the Labour Court by questioning its
decision with regard to the preliminary
issue when the matter, if worthy, can be
agitated even after the final award. It will
be also legitimate for the High Court to
refuse to intervene at this stage. We are
making these observations in our anxiety
that there is no undue delay in industrial
adjudication.

21. In view of the holding in
Cooper Engineering Limited (supra),
there is no force in the submission of the
learned Counsel for the workman that the
employers are not entitled to question the
validity of the order dated 08.04.1999
passed by the Labour Court at the early
stages of proceedings, holding the inquiry
to be unfair, later on while challenging
the
award.
Once
the
order
dated
08.04.1999, holding the inquiry to be
unfair, is held to be vitiated, the
subsequent
proceedings
before
the
Labour Court on the foot of the said
order, are also bad. The first question,
that the Labour Court has to determine, is
whether the inquiry that has been
questioned as unfair by the workman, is
indeed unfair and defective. This has to
be done by requiring the workman to
affirmatively prove that it is so.

22. If the workman succeeds in
establishing the inquiry to be unfair or
the result of a fundamentally flawed
procedure, it could be the end of the
matter, subject to the employers' right to
lead evidence before the Labour Court on
the merits of the charges against the
workman. Should the contingency arise
before the Labour Court that the inquiry
is found vitiated on the ground of it being
unfair or defective, it would then have to
be seen whether the employers have, at
the appropriate stage, elected to exercise
their right to lead evidence as aforesaid.
How and at what stage the employers
could exercise that right, has been the
subject matter of consideration by the
Constitution Bench of the Supreme Court
in Karnataka State Road Transport
Corporation
v.
Lakshmidevamma
(Smt.) and another, (2001) 5 SCC 433.
The guidance on the issue is clear and by
high authority, which need not be
recapitulated.

23. In the result, this petition
succeeds and is allowed in part. The
impugned
award
dated
18.03.2010,
published
on
03.03.2011
passed
in
Adjudication Case No. 170 of 2007 by
the Presiding Officer, Labour Court, U.P.,
Lucknow,
is
hereby
quashed.
The
adjudication case is restored to the file of
the Labour Court with a direction to rehear the matter in accordance with the
guidance in this judgment and pass an
award afresh answering the reference.
The Labour Court shall decide the
reference within a period of six months
of the date of receipt of a copy of this
order. There shall be no order as to costs.

24. Let a copy of this order be
communicated to the Presiding Officer,
Labour
Court,
U.P.,
Lucknow,
or
whichever be the Court now exercising
that
jurisdiction,
by
the
Registrar
(Compliance).
----------
10 All. Saroj Kumar & Ors. Vs. State of U.P. & Ors.
161
(2022) 10 ILRA 161
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.10.2022

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE SANJAY KUMAR PACHORI, J.

Criminal Misc. Writ Petition No. 7559 of 2022

Saroj Kumar & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Arvind Kumar

Counsel for the Respondents:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 2(h), 173(2), 204, 313
& 482 - Indian Penal Code, 1860 -
Sections 201 & 302 - Indian Evidence
Act, 1872 - Section - 3: - Criminal Writ
Petition - mandamus for commanding the
investigating authority for conduction the
'Narco Analysis Test' or 'Lie Detector Test' so
as to investigation may be lead to its right
direction - court finds that, since, the
materials collected through these test cannot
be used as corroborative piece of evidence
and Narco Analysis Test or Polygraph Test is
not admissible in the Law - thus, no such
mandamus can be issued - relief of the
petitioner is rejected - However, if the
investigating officer on his own decides to get
the said tests he can do so subject to consent
of the accused. (Para - 9, 10)

Writ Petition Disposed of. (E-11)

List of Cases cited:

1. Madhuri Devi Vs St. of U.P. & ors., Writ Petition
No.7590 (MB) of 2015, judgment dated 15.11.2019

2. Ram Prasad Vs St. of U.P. & ors.; Writ Petition
No.31348 (MB) of 2019
3. Louis Vs St. of Kerala & ors., Crl. MC No.4007
of 2021

4. Union of India & anr. Vs W.N. Chadha; 1993
Cr.L.J. 859

5. St. of Bihar v. J.A.C. Saldanha, 1967 (3) SCR
668

6.
Ram
Lal
Narang
versus
St.
(Delhi
Administration), (1979)2 SCC 322

(Delivered by Hon'ble Rajan Roy, J.
&
Hon'ble Sanjay Kumar Pachori, J.)

1. Heard Mr. Arvind Kumar, learned
counsel for the petitioners and Mr. Badrul
Hasan, learned Additional Government
Advocate appearing on behalf of the State.

2. By means of the present petition
the petitioners have sought the following
reliefs:

"(I) issue a writ order or
direction in the nature of Mandamus
commanding the opposite parties to take
immediate
positive
decision
on
representation dated 12.09.2022 contained
as Annexure no.1 to this writ petition by
which petitioners are seeking utilization of
modern scientific technique of ?brain
mapping test? like ?NARCO? or ?lie
detector test? upon the petitioners as well
as complainant to lead the investigation in
right direction and contract out the truth of
case pertaining to F.I.R. no.86/2022 dated
04.03.2022, U/S 302, 201 I.P.C. Police
Station-Mohd.
Pur
Khala,
District
Barabanki.

(II) issue a writ order or direction
in the nature of mandamus commanding
opposite party no.-4 to obtain viscera
analysis report from Forensic Scientfic
Laboratory Lucknow pertaining case/ F.I.R.