# U.P.S.R.T.C v. Kashi Nath and others

- **Citation:** (2007) 2 ILRA 471
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-02-20
- **Case number:** Civil Misc. Writ Petition No.48466 of 2004
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-s-r-t-c-v-kashi-nath-and-others-40945
- **Pages:** 5

## Headnote

Constitution
of
India,
Art.
226Termination
order
passed
by
the
management on the ground workman
produced
forged
and
false
caste
472 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
certificate
of
Scheduled
Cast
while
belongs to Backward cast-labour court
set-aside the termination order-for non
compliance of provisions of section 6 N
of the Industrial dispute Act, being
passed in violation of principle of Natural
justice-held-fraud vitiate every thingprinciple of "Juri Ex. Injuria Non Ortur"
squarely applies.

Held: Para 12 & 13

Consequently, by playing a fraud, it was
no longer open to the workman to plead
that he was entitled to a right of hearing.
In my opinion, the workman cannot
claim any right arising out of his wrong
doing. The principles of "Juri Ex Injuria
Non Oritur" is squarely applicable.

In view of the fraud played by the
workman, the question of complying
with the requisite requirement of Section
6-N does not arise in the fact of the
circumstances of this case. Apart from
the aforesaid, the provisions of Section
6-N of the U.P. Industrial Disputes Act
comes into play provided the workman
proves that he had worked for 240 days
in a calendar year. In the present case
there is no material on the record to
prove that the workman had actually
worked for more than 240 days in a year.
Consequently, the provisions of Section
6-N of the Act is not applicable in the
present case.
Case law discussed:
2005 (7) SCC-690
2005 (4) ESC-2720
1990 (3) SCC-655

## Text

2 All] U.P.S.R.T.C. V. Kashi Nath and others
471
In case we uphold the order of Director
then it would result in re-advertisement of
the vacancy and unnecessary expenses
would be involved in making the
advertisement which would further delay
the appointment of a regular principal.
Further, since Regulation 14(6) clearly
states that the select list will contain the
recommendation more than the number of
vacancy, the intention of the Regulation
making authority appears to be that there
should be panel of names. If the intention
was that only one name for the post of
principal should be recommended then it
would have been clearly provided in
Regulation 14(6). The Regulation has to
be interpreted in such a manner that it
advances the purpose for which it had
been framed. Therefore, we hold that
panel of at least two names for the post of
principal is required to be sent by the
selection committee so that if the
candidate at serial no.1 is found ineligible
or he does not join then the second
candidate could be offered appointment.

6. From the perusal of records as
well as the counter affidavit, we do not
find that any finding has been recorded by
the Director that the selection made by the
selection committee in recommending the
panel of names any illegality or malpractice was committed by the selection
committee. We are of the opinion that the
Director was not justified in setting aside
the entire selection process initiated by
respondent no.4 and directing for fresh
advertisement for appointment on the post
of principal. The Director is required to
consider the claim of the petitioner who
was at serial no.2 in the panel for
appointment on the post of principal,
Chandauli Polytechnic, Chandauli as the
candidate at serial no.1 in the panel had
been found over age and ineligible for
appointment.

7. In the result, this writ petition
succeeds and is allowed. The order dated
5.3.2005 passed by respondent no.2
cancelling the selection process and
directing
for
fresh
advertisement,
Annexure-6 to the writ petition, is
quashed. A writ of mandamus is issued to
the Director, Technical Education, U.P.,
Kanpur to consider the name of the
petitioner for appointment on the post of
Principal,
Chandauli
Polytechnic,
Chandauli within a period of one month
from the date a certified copy of this order
is produced before Respondent No.2.

8. The parties shall bar their own
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.02.2007

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No.48466 of 2004

U.P. State Road Transport Corporation
and others

...Petitioner
Versus
Kashi Nath and others ...Respondents

Counsel for the Petitioner:
Sri Samir Sharma
Sri Sheshadri Trivedi

Counsel for the Respondents:
Sri K.S. Rathor
S.C.

Constitution
of
India,
Art.
226Termination
order
passed
by
the
management on the ground workman
produced
forged
and
false
caste
472 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
certificate
of
Scheduled
Cast
while
belongs to Backward cast-labour court
set-aside the termination order-for non
compliance of provisions of section 6 N
of the Industrial dispute Act, being
passed in violation of principle of Natural
justice-held-fraud vitiate every thingprinciple of "Juri Ex. Injuria Non Ortur"
squarely applies.

Held: Para 12 & 13

Consequently, by playing a fraud, it was
no longer open to the workman to plead
that he was entitled to a right of hearing.
In my opinion, the workman cannot
claim any right arising out of his wrong
doing. The principles of "Juri Ex Injuria
Non Oritur" is squarely applicable.

In view of the fraud played by the
workman, the question of complying
with the requisite requirement of Section
6-N does not arise in the fact of the
circumstances of this case. Apart from
the aforesaid, the provisions of Section
6-N of the U.P. Industrial Disputes Act
comes into play provided the workman
proves that he had worked for 240 days
in a calendar year. In the present case
there is no material on the record to
prove that the workman had actually
worked for more than 240 days in a year.
Consequently, the provisions of Section
6-N of the Act is not applicable in the
present case.
Case law discussed:
2005 (7) SCC-690
2005 (4) ESC-2720
1990 (3) SCC-655

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard Sri Sheshadri Trivedi, the
learned counsel for the petitioner and Sri
K.S. Rathore, the learned counsel for the
workman, respondent No.1.

2. By means of this writ petition, the
petitioner has challenged the validity and
legality of the award passed by the
Labour Court in Adjudication Case No.36
of 1999. The reference made under
Section 4-K of the U.P. Industrial
Disputes Act is whether the employers
were justified in terminating the services
of the workman w.e.f. 5.5.1994 and, if so,
to what relief was the workman entitled
to. It is relevant to state here that the order
of termination was passed in the year
1994. The reference was made by the
State Government by an order dated
17.1.1999.

3. The facts leading to the impugned
award is, that an advertisement was issued
by the petitioner Corporation in a
newspaper on 3.3.1993 for filling up 50
posts of drivers. The advertisement
indicated that the posts would be filled up
from
the
candidates
belonging
to
Scheduled Castes and Scheduled Tribes.
Pursuant to the aforesaid advertisement,
the workman, respondent No.1, applied
and filed a certificate issued from the
Tehsildar indicating that he belonged to a
scheduled caste category. The petitioner
was selected and an appointment letter
dated 26.4.1993 was issued to him as a
driver
on
a
daily
rated
basis.
Subsequently, on an inquiry, it was found
that the respondent No.1 was not a
Scheduled Caste candidate. Based on the
investigation made by the petitioner, a
show cause notice dated 28.4.1994 was
issued to the workman, to show cause, as
to why his services should not be
dispensed with, for furnishing a false
caste certificate. The workman was
directed to submit a reply by 30.4.1994.
Since no reply was received by the
employers till 4.5.1994, the management,
taking the averments made in the show
cause notice to be correct, passed the
impugned order of termination dated
5.5.1994.
2 All] U.P.S.R.T.C. V. Kashi Nath and others
473
4. It transpires that the workman
filed a Writ Petition No.21009 of 1994
before the High Court challenging the
order of termination dated 5.5.1994,
which was dismissed as withdrawn in the
year 1999. It seems that the workman
thereafter raised an industrial dispute
under the U.P. Industrial Disputes Act and
upon the failure of the conciliation
proceedings, the State Government, by an
order dated 17.2.1999, referred the
dispute, for adjudication before the
Labour Court.

5. Before the Labour Court, the
workman
filed
a
written
statement
alleging that he had worked for more than
240 days in a calander year and that his
services
were
terminated
arbitrarily
without applying the principles of audi
alteram partem and without complying
with the provisions of Section 6-N of the
U.P.
Industrial
Disputes
Act.
The
petitioner
in
its
written
statement
submitted that the appointment of the
respondent No.1 was made pursuant to an
advertisement inviting applications from
the Scheduled Caste/Scheduled Tribe
candidates for appointment on the post of
a Driver, and in the inquiry, it was found,
that the workman was not a Scheduled
Caste and that he was a Backward Class.
The employer further stated that a show
cause notice was issued to the workman
and since he failed to file a reply, it was
presumed that he had nothing further to
say in the matter and accordingly, the
impugned order of termination was
passed by the employers. It was also
submitted that there was no requirement
to hold an oral inquiry or to give any
further opportunity to the workman or to
comply with the provisions of Section 6N of the U.P. Industrial Disputes Act.

6. The Labour Court in its award
held that the workman was entitled for an
opportunity of hearing pursuant to the
preliminary inquiry conducted by the
employers. Since no opportunity of
hearing was given to the workman, the
order of termination was in violation of
the principles of natural justice. The
Labour Court further found, that no fraud
was committed by the workman and that
the error in the issuance of the caste
certificate was done by the Tehsildar in
which the workman had no role to play.
The Labour Court further held that the
provisions of Section 6-N of the Act was
not complied by the employers. In view of
the aforesaid findings, the Labour Court
directed the reinstatement of the workman
with 25% of back wages.

7. In my view, the award of the
Labour Court is manifestly erroneous in
law and cannot be sustained. Admittedly,
the Labour Court has given a categorical
finding that an advertisement was issued
for filling up 50 vacancies on the post of
driver and that these vacancies were
required to be filled up from the
candidates belonging to the Scheduled
Caste or Scheduled Tribe. The Labour
Court has also given a clear finding that
the petitioner was not a Scheduled Caste
or a Schedule Tribe and that he belonged
to a Backward Class. Consequently, it is
clear that the workman could not be
appointed for the post of a driver pursuant
to the aforesaid advertisement. The
finding of the Labour Court that the error
was committed by the Tehsildar in the
issuance of the caste certificate and that
the workman did not play a fraud is
patently erroneous. It is expected that an
individual knows his own caste. In any
case, the workman himself applied for a
Scheduled Caste certificate which was
474 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
granted by the Tehsildar. It is only upon
an investigation that it was found that the
workman did not belong to a Scheduled
Caste category and that he belonged to a
backward class. Consequently, filing of a
wrong certificate by the workman was a
fraud played by him upon the employers.
The workman played a fraud in seeking
an appointment showing himself to be a
Scheduled Caste when, in fact, he was a
Backward Class.

8. Fraud vitiates all appointments
and, in such a scenario, it is not necessary
for the employer to give a show cause
notice or an opportunity of hearing to the
workman. It is also not necessary for the
employer to hold an oral inquiry and
thereafter take action, if any, on the
delinquent workman. If it is found that a
fraud was committed by a workman, in
seeking an employment, the Management
is not required to comply with the
principles of natural justice. In any case,
in the present case, the petitioner had
issued a show cause notice dated
28.4.1994 to the workman, to show cause,
why
his
services
should
not
be
terminated, on account of obtaining an
appointment on the basis of a false
certificate. The workman was required to
file a reply and till the date of the issuance
of the order of termination, the workman
did not file any reply. In the absence of
not filing a reply to the show cause notice,
the
management,
having
taken
the
contents of the show cause notice to be
correct, had no option but to pass the
order of termination. The management
was not required to hold an oral inquiry.
An oral inquiry is required to be
conducted only when the charge is denied
by the workman. In the present case, the
charge levelled against the workman in
the show cause notice was not denied by
the
workman.
Consequently,
the
management was justified in issuing the
order of termination.

9. The contention of the workman
that he had submitted a reply is incorrect.
The reply which the workman had
submitted is dated 2.5.1994, which is after
the deadline as stipulated in the show
cause notice. In any case, there is nothing
on record to suggest that the reply was
received by the management before the
issuance of the order of termination. No
explanation has been given as to whether
the reply could not be filed on or before
the dead line.

10. The contention of the workman
that the principles of natural justice was
violated is patently misconceived. As
stated above, a show cause notice was
issued to the workman which he did not
avail. The management was therefore
justified
in
passing
the
order
of
termination and it was not necessary for
the management to give an opportunity of
hearing thereafter to the workman nor the
management was obliged to hold an oral
inquiry or give an opportunity to the
workman to defend himself.

11. In Bank of India and another
vs. Avinash D. Mandivikar an others,
(2005)7 SCC 690, the Apex Court held-

".......When fraud is perpetrated the
parameters of consideration will be
different. Fraud and collusion vitiate even
the most solemn proceedings in any
civilised system of jurisprudence."

Similarly in Sheo Govind Singh vs.
Inspector General of Police, CS CRPF,
Lucknow and another, 2005(4)ESC
2720, a Division Bench of this Court after
2 All] Uma Kant Yadav. V. State of U.P. and others
475
considering various judgments of the
Supreme Court held that where the
applicant
obtained
an
order
by
misrepresentation or by playing a fraud
upon the competent authority, such an
order could not be sustained in the eyes of
law .

In District Collector and Chairman
Vizianagram
Social
Welfare
Residential School Society vs. M.
Tripura Sundari Devi, 1990 (3) SCC
655, the Supreme Court held:-
"If
by
committing
fraud
any
employment is obtained, the same cannot
be permitted to be countenanced by a
Court of Law as the employment secured
by fraud renders it voidable at the option
of the employer."

12. Consequently, by playing a
fraud, it was no longer open to the
workman to plead that he was entitled to a
right of hearing. In my opinion, the
workman cannot claim any right arising
out of his wrong doing. The principles of
"Juri Ex Injuria Non Oritur" is squarely
applicable.

13. In view of the fraud played by
the workman, the question of complying
with the requisite requirement of Section
6-N does not arise in the fact of the
circumstances of this case. Apart from the
aforesaid, the provisions of Section 6-N
of the U.P. Industrial Disputes Act comes
into play provided the workman proves
that he had worked for 240 days in a
calendar year. In the present case there is
no material on the record to prove that the
workman had actually worked for more
than 240 days in a year. Consequently, the
provisions of Section 6-N of the Act is not
applicable in the present case.

14. In view of the aforesaid, this
Court is of the opinion that the award of
the Labour Court cannot be sustained and
is therefore quashed. The writ petition is
allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.03.2007

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 14434 of 2007

Uma Kant Yadav

...Petitioner
Versus
State of U.P. Through Chief Secretary,
Govt. of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri R.K. Yadav
Sri Rakesh Pandey
Sri B.P. Singh
Sri S.C. Pandey
Sri R.C. Yadav
Sri M.S. Yadav

Counsel for the Respondents:
Sri J.K. Khanna
Sri B.N. Mishra
Sri Waseem Alam
S.C.

Constitution of India Art. 226-read with
Arms Act Section 21-General direction to
deposit fire Arm without taking recourse
of law-contained in Arms Act-basis of
impugned
order-G.O.
dated
11.2.07
considering
election-petitioners
are
Advocate, M.P. or M.L.A. or Doctors or
Security Guard-direction contained in
para 10 of impugned order passed by
D.M.-empowering
S.H.O.-held-
wholly
illegal
and
unwarranted-can
not
sustained-guide line issued.

Held: Para 17