# U.P.S.R.T.C v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 318
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-08-13
- **Case number:** Writ C No. 6374 of 2021
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-s-r-t-c-v-state-of-u-p-ors-46530
- **Pages:** 9

## Headnote

A. Labour Law - Industrial Dispute Act, 1947 -
Sections 6(2) & 11-A - Termination from the post
of Conductor - Domestic enquiry - Charges of
absent from duty - Though impugned award
upheld the enquiry report, reinstatement with
50%
of
the
backwages
also
passed
-
Proportionality of the punishment - Held, the
labour court while deciding the proportionality of
punishment has to examine the relevant findings
of the domestic enquiry on their merits. In case
such findings are perverse or not tenable in law
the labour court will have to reverse those
findings and record reasons for the same -
Labour court has not examined some relevant
findings returned by the domestic enquiry, and
has not reversed the said findings - This
approach of the labour court does not satisfy the
mandate of Ss. 6(2) (a) and 11-A of the Act -
High Court set aside the award with conclusion
that the finding of labour court are vitiated. (Para
31, 33, 37 and 47)
B. Constitution of India - Article 12 - State -
Instrumentality - Definition - Held, UP State
Road
Transport
Corporation
is
an
instrumentality
of
the
State
within
the
meaning of Article 12 of the Constitution of
India. (Para 44)
Writ petition allowed. (E-1)
Cases relied on :-

## Text

318 INDIAN LAW REPORTS ALLAHABAD SERIES
date other than the date fixed for its hearing, are
some illustrative cases in which the power of
procedural review may be invoked. In such a
case the party seeking review or recall of the
order does not have to substantiate the ground
that the order passed suffers from an error
apparent on the face of the record or any other
ground which may justify a review. He has to
establish that the procedure followed by the
court or the quasi-judicial authority suffered
from such illegality that it vitiated the
proceeding and invalidated the order made
therein,
inasmuch
as the
opposite
party
concerned was not heard for no fault of his, or
that the matter was heard and decided on a date
other than the one fixed for hearing of the matter
which he could not attend for no fault of his. In
such cases, therefore, the matter has to be
reheard in accordance with law without going
into the merit of the order passed. The order
passed is liable to be recalled and reviewed not
because it is found to be erroneous, but because
it was passed in a proceeding which was itself
vitiated by an error of procedure or mistake
which went to the root of the matter and
invalidated the entire proceeding. In Grindlays
Bank Ltd. v. Central Govt. Industrial Tribunal it
was held that once it is established that the
respondents were prevented from appearing at
the hearing due to sufficient cause, it followed
that the matter must be reheard and decided
again.""

5. Learned Standing Counsel, however, in
reply submitted that review is a creation of a
statute and until it is provided in the statute,
review did not lie. Further, the learned Standing
Counsel submitted that the petitioner should
have filed an Appeal against the order dated
13.08.2018.

6. Having heard the learned counsel for
the petitioner and the learned Standing
Counsel, the Court is of the view that when
the
Appellate
Court
after
returning
a
categorical finding that the petitioner was not
heard before the order dated 27.06.2015 was
passed had restored the Review Application
then it was incumbent upon the District
Magistrate to have heard the Review Petition.
Further as it has been held by the Supreme
Court in 2018(11) SCC 470, every Tribunal
has the power of review if there is a
procedural defect. In the instant case when the
petitioner was not heard definitely a Review
was maintainable.

7. Further the Court is of the view that
when a pure question of law was involved it
was not necessary for the petitioner to have
approached the Appellate Court.

8. Under such circumstances, the order
dated 13.08.2018 is set-aside, the Review
Petition
stands
restored.
The
District
Magistrate shall after affording an opportunity
of hearing to the petitioner and also to the
State, pass appropriate orders on the Review
Petition within a period of two months from
the production of a copy of this order. Copy of
this order would be certified by the learned
counsel.

9. With these observations the writ
petition stands allowed.
----------
(2021)11ILR A318
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.08.2021

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ C No. 6374 of 2021

U.P.S.R.T.C. ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
11 All. U.P.S.R.T.C. Vs. State of U.P. & Ors.
319
Sri Jagram Singh, Sri Rahul Agarwal

Counsel for the Respondents:
C.S.C., Sri Gopal Narain Srivastava

A. Labour Law - Industrial Dispute Act, 1947 -
Sections 6(2) & 11-A - Termination from the post
of Conductor - Domestic enquiry - Charges of
absent from duty - Though impugned award
upheld the enquiry report, reinstatement with
50%
of
the
backwages
also
passed
-
Proportionality of the punishment - Held, the
labour court while deciding the proportionality of
punishment has to examine the relevant findings
of the domestic enquiry on their merits. In case
such findings are perverse or not tenable in law
the labour court will have to reverse those
findings and record reasons for the same -
Labour court has not examined some relevant
findings returned by the domestic enquiry, and
has not reversed the said findings - This
approach of the labour court does not satisfy the
mandate of Ss. 6(2) (a) and 11-A of the Act -
High Court set aside the award with conclusion
that the finding of labour court are vitiated. (Para
31, 33, 37 and 47)
B. Constitution of India - Article 12 - State -
Instrumentality - Definition - Held, UP State
Road
Transport
Corporation
is
an
instrumentality
of
the
State
within
the
meaning of Article 12 of the Constitution of
India. (Para 44)
Writ petition allowed. (E-1)
Cases relied on :-
1. Workmen Vs Fire Stone; (1973) 1 SCC 813
2. Mavji C. Lakum Vs Central Bank of India; (2008) 12
Supreme Court Cases 726
3. Scooter India Ltd. Lucknow Vs Labour Court; 1989
(suppl) SCC 31
4. Chairman cum Managing Director Vs Mukul Kumar
Chaudhuri; 2010 AIR SC 75
(Delivered by Hon'ble Ajay Bhanot, J.)

1. The petitioner has assailed the award
dated 30.01.2020 rendered by the labour court in
adjudication Case No. 16 of 2009 (Satish Kumar
Vs.
Regional
Manager
U.P.S.R.T.C,
Saharanpur) deciding the reference against the
employer and directing the respondent no. 3
workman to be reinstated in service with
continuity of service. The labour court in the
impugned award has held the workman entitled
to 50% of the backwages for the period of his
termination.

2. The reference before the labour court
was as to whether the termination of services of
the respondent No. 3 workman Satish Kumar on
07.05.2005 were valid and legal.

3. Shri Jagram Singh and Shri Rahul
Agarwal, learned counsels for the petitioner
pointing the fault lines in the award submit that the
labour court neglected to consider the findings
returned by the enquiry officer. The labour court
did not return findings on relevant issues upon an
independent enquiry while exercising powers
under Section 11-A of the Industrial Disputes Act
(Section 6(2) (a) of the U.P. Industrial Disputes
Act). The absence of the workman was wilful and
findings to the contrary in the impugned award are
perverse. The punishment was proportionate to the
nature of the misconduct and was not liable to be
reversed.

4. Sri Gopal Naraian Srivastava, learned
counsel for respondent No. 3 workman submits
that the labour court had exercised its power
under Section 6(2) (a) of the U.P. Industrial
Disputes Act as consistent with the statutory
mandate. The labour court was under an
obligation
of
law
to
enquire
into
the
proportionality of the punishment imposed upon
the petitioner. The employer had erred in law by
imposing a disproportionate punishment for the
misconduct the respondent No. 3 was charged
with.

5. Heard learned counsel for the parties.
320 INDIAN LAW REPORTS ALLAHABAD SERIES

6. The relevant and undisputed facts
essential for just adjudication of the controversy
can be prised out from the record of the writ
petition. No useful purpose will be served by
exchanging affidavits. With the consent of
parties the writ petition is being decided finally.

7. The respondent No. 3 workman was a
conductor in the U.P.S.R.T.C. Two charge
sheets were drawn up against the respondent
No.3 on 28.8.2003 and 27.04.2004 wherein
various charges of departmental misconduct
were laid out. In substance the charge against the
respondent No. 3 workman was that he wilfully
absented himself from duty for various periods.
The periods of wilful absence which became the
subject matter of the domestic enquiries are
extracted below:

(I) 28.03.2003 to 27.11.2003.

(II) 19.12.2003 to 24.12.2003.

(III) 29.12.2003 to 14.01.2004.

(IV) Continuous absence with effect
from 18.01.2004.

8. The domestic enquiries indicted the
workman of all charges laid out against him.
The disciplinary authority on the footing of
the findings of guilt made by the domestic
enquiry against the respondent No. 3 workman
passed the punishment of dismissal from
service.

9. The domestic enquiry reports into the
two
chargesheets
were
submitted
on
11.07.2004 and 13.09.2004.

10. The labour court in the impugned
award has found that the enquiries were
conducted in adherence to law. No fault or
illegality in the conduct of the enquiry could
be established before the labour court.
Accordingly the impugned award upheld the
enquiry reports.

11. The challenge to the proportionality
of the punishment for the misconduct the
respondent No. 3 was charged with became
the sole issue of consideration by the labour
court.

12. The domestic enquiry report dated
11.07.2004 enquired into period of absence of
the
respondent
No.
3
workman
from
28.03.2003 to 27.11.2003. Before the enquiry
officer the only defence tendered by the
respondent No. 3 workman was that his
absence for various period was not wilful and
the same was caused by the terminal ill-health
of his wife. The respondent No. 3 also claimed
that he had sent leave applications alongwith
medical certificates to the petitioner by U.P.C
postal mode. The enquiry officer found the
U.P.C receipts to be forged. The enquiry
officer also noticed that proper mode of
service of application which a reasonable
person would adopt would be to send the same
by registered post or submit the application
personally. There was no good cause shown
by the respondent No. 3 workman, to deviate
from the said modes. The defence of the
respondent No. 3 workman was hence
disbelieved. On the back of the such reasoning
and after appraisal of the aforesaid evidences
the enquiry officer concluded that the absence
of the workman was wilful and without
authority of law.

13. The second domestic enquiry report
dated 13.09.2004 enquired into the period of
absence of respondent No. 3 from 19.12.2003 to
24.12.2003 as well as 29.12.2003 to 14.01.2004
and the continuous absence from 18.01.2004.
The enquiry officer in the said enquiry report
has noticed the leave application submitted by
the respondent No. 3 workman wherein medical
11 All. U.P.S.R.T.C. Vs. State of U.P. & Ors.
321
leave was prayed for on account of the illness of
his wife. The enquiry officer found that medical
leave cannot be sanctioned to a workman on
account of illness of his wife. The workman was
entitled to medical leave had he himself suffered
from illness. He could have then made an
application for medical leave to be processed as
per law. Further the enquiry officer found that
the burden was upon the respondent No. 3
workman to establish the illness of his wife by
adducing credible medical evidence and he
ought to have applied before the competent
authority for leave. He failed to do so and
simply absented himself. The respondent No. 3
workman joined duties on 15.01.2004 and
produced medical certificates of his wife. The
respondent No. 3 workman had clearly flouted
the leave rules applicable to him. He failed to
submit timely application for leave and also did
not tender medical certificates in support
thereof. Post facto medical certificates were not
accepted. The absence from 29.12.2003 to
14.01.2004 was found to be unauthorized and
wilful.

14. The enquiry report dated 13.09.2004
concludes with the findings that the workman
did not tender any defence to the charge of
continuous absence with effect from 18.01.2004.
The charge of continuous absence from duty
w.e.f. 18.01.2004 was duly established against
the workman/respondent no. 3.

15. The labour court after holding that the
domestic enquiry was fair and lawful entered
into consideration of the proportionality of the
punishment for misconduct which stood proved
in the departmental enquiry.

16. The labour court upon perusal of the
material and evidences before it found that the
respondent No. 3 workman was absent from
duty without sanction of his leave on account of
his ill-health as well as the medical condition of
his wife.

17. The labour court in the impugned
award records that the enquiry officer in his
deposition had admitted to the effect that the
medical report submitted by the respondent No.
3 workman was part of personal documents of
the respondent No. 3. However the same was not
referenced in the enquiry report.

18. The judgment of the labour court
further records that the enquiry officer did not
send the medical certificates for examination.
But he returned a finding on the authenticity of
the said medical certificates after perusing the
same. On this footing the finding of the enquiry
officer was invalidated.

19. The impugned award of the labour
court found that the respondent No.3 workman
had defended his absence on ground of his illhealth and the medical condition of his wife. He
had submitted medical reports before the
competent authority. The medical certificates
submitted by the respondent No. 3 workman
were in the record. The said certificates were
never got examined for their authenticity by the
employer. On this footing the labour court found
that the absence of the respondent No. 3 for
various
periods,
namely,
28.03.2003
to
27.11.2003, 19.12.2003 to 24.12.2003 and
29.12.2003 to 14.01.2004 was occasioned by his
health condition and ill health of his wife. The
absence was not wilful. The punishment of
dismissal by order dated 07.05.2005 was held to
be disproportionate to the misconduct and was
accordingly reversed and substituted by a lesser
punishment.

20. It is noteworthy that no findings has
been made in the impugned award on the charge
of continuous absence of the workman from
duty with effect from 18.01.2004.

21. The narrative has the advantage of
authorities in point which were cited at the Bar.
The authorities extracted hereunder will form
322 INDIAN LAW REPORTS ALLAHABAD SERIES
the legal backdrop in which the impugned award
will be examined.

22. The power of the labour court to
enquire into the proportionality of punishment
imposed upon the workman flows from Section
6(2) (a) of the U.P. Industrial Disputes Act
which good authority has found to be in pari
materia with Section 11-A of the Industrial
Disputes Act. For ease of reference Section 11A of the Industrial Disputes Act is extracted
hereunder:

"[11-A. Powers of Labour Courts,
Tribunal and National Tribunals to give
appropriate relief in case of discharge or
dismissal of workmen- Where an industrial
dispute relating to the discharge or dismissal of a
workman has been referred to a Labour Curt,
Tribunal or National Tribnal or adjudication and,
in the course of the adjudication proceedings,
the Labour Court, Tribunal or National Tribunal,
as the case may be is satisfied that the order of
discharge or dismissal was not justified, it may,
by its award, set aside the order of discharge or
dismissal and direct reinstatement of the
workman on such terms and conditions, if any,
as it thinks fit, or give such other relief to the
workman including the award of any lesser
punishment in lieu of discharge or dismissal as
the circumstances of the case may require:

Provided that in any proceeding under
this section the Labour Court, Tribunal or
National Tribunal, as the case may be, shall rely
on the material on record and shall not take any
fresh evidence in relation to the matter]"

"[(2-A) An award in an industrial
dispute relating to the discharge or dismissal of a
workman may direct the setting aside of the
discharge or dismissal and re-instatement of the
workman on such terms and conditions if any, as
the authority making the award may think fit, or
granting such other relief to the workman,
including
the
substitution
of
any
lesser
punishment for discharge or dismissal, as the
circumstances of the case may require.]"

23. The breadth of powers of the labour
court under Section 11(a) of the Industrial
Disputes Act was expounded by the Supreme
Court in Workmen Vs. Fire Stone1. The
statement of law entered in para 36 of Firestone
(supra) is the locus classicus in point:

"We will first consider cases where an
employer has held a proper and valid domestic
enquiry before passing the order of punishment.
Previously the Tribunal had no power to
interfere with its finding of misconduct recorded
in the domestic enquiry unless one or other
infirmities pointed out by this Court in Indian
Iron & Steel Co. Ltd. Case (supra), existed. The
conduct of disciplinary proceedings and the
punishment to be imposed where all considered
to be a managerial function with which the
Tribunal had no power to interfere unless the
finding was perverse or the punishment was so
harsh as to lead to an inference of victimisation
or, unfair labour practice. This position, in our
view, has now been changed by Section 11-A.
The words "in the course of the adjudication
proceeding, the Tribunal is satisfied that the
order of discharge or dismissal was not justified"
clearly indicate that the Tribunal is now clothed
with the power to reappraise the evidence in the
domestic enquiry and satisfy itself whether the
said evidence relied on by an employer
establishes the misconduct alleged against a
workman. What was originally a plausible
conclusion that could be drawn by an employer
was originally a plausible conclusion that could
be drawn by an employer from the evidence, has
now given place to a sanctification being arrived
at by the Tribunal that the finding of misconduct
is correct. The limitations imposed on the
powers of the Tribunal by the decision in Indian
Iron & Steel Co. Ltd. Case (supra), can no
longer be invoked by an employer. The Tribunal
11 All. U.P.S.R.T.C. Vs. State of U.P. & Ors.
323
is now at liberty to consider not only whether the
finding of misconduct recorded by an employer
is correct; but also to differ from the said finding
if a proper case is made out. What was once
largely in the realm of the satisfaction of the
employer, has ceased to be so; and now it is the
satisfaction of the Tribunal that finally decides
the matter."

24. The need for the labour court to
exercise powers under Section 11-A of the U.P.
Industrial Disputes Act in a judicial manner was
emphasized in Mavji C. Lakum Vs. Central
Bank of India2 :

"23.There can be no dispute that power
under Section 11-A has to be exercised
judiciously and the interference is possible only
when the Tribunal is not satisfied with the
findings and further concludes that punishment
imposed
by
the
management
is
highly
disproportionate to the degree of guilt of the
workman concerned. Besides, the Tribunal has
to given reasons as to why it is not satisfied
either with the findings or with the quantum of
punishment and that such reason should not be
fanciful or whimsical but there should be good
reasons."

25.

Similarly
the
applicability
of
Wednesbury principles of reasonableness and
the doctrine of proportionality in an enquiry
under Section 11-A of the Industrial Disputes
Act was also affirmed in Mavji (supra):

"25. Though the learned Judge had
discussed all the principles regarding the
exercise of powers under Section 11-A of the
Industrial Disputes Act as also the doctrine of
proportionality and the Wednesbury principles,
we are afraid the learned Judge has not applied
all these principles properly to the present case.
The learned Judge has quoted extensively from
the celebrated decision of Workmen V. firestone
Tyre & Rubber Co. of India (P) Ltd. However,
the learned Judge seems to have ignored the
observations made in AIR para 32 of that
decision where it is observed that : (SCC p. 830
para 36)

"36.... The words ''in the course of the
adjudication proceeding, the Tribunal is satisfied
that the order of discharge or dismissal was not
justified' clearly indicate that the Tribunal is now
clothed with the power to reappraise the evidence
in the domestic enquiry and satisfy itself whether
the said evidence relied on by an employer
establishes the misconduct alleged against a
workman. What was originally a plausible
conclusion that could be drawn by an employer
from the evidence, has now given place to a
satisfaction being arrived at by the Tribunal that
the finding of misconduct is correct. ... The
Tribunal is now at liberty to consider not only
whether the finding of misconduct recorded by an
employer is correct but also to differ from the said
finding if a proper case is made out."

26. Section 6(2) (a) of the U.P. Industrial
Disputes Act was held to be analogous to Section
11-A of the Industrial Disputes Act in Scooter
India Ltd. Lucknow Vs. Labour Court 3.

27. The factors which will guide the
exercise of broad discretion of the labour court
while deciding the issue of proportionality of
punishment shall now be discussed.

28. The Industrial Disputes Act was
promulgated with a view to ameliorate the
conditions of workman, to protect them against
any unfair labour practices, and to ensure
industrial peace. The intendment of the Act was
to
ensure
better
employer
employee
relationships, to prevent and resolve industrial
disputes and thus maintain industrial peace.

29. While exercising powers under Section
11-A of the Industrial Disputes Act (or Section
6(2) (a) of the U.P. Industrial Disputes Act as in
324 INDIAN LAW REPORTS ALLAHABAD SERIES
this case) the labour court will have to co-relate
and balance the rights of the workman with the
imperatives of industrial peace and institutional
efficiency. Liberal labour practices does not give
licence for anarchic conduct. Good industrial
relations have to be fostered to ensure better
efficiency in the industry, a positive work
culture which will promote industrial peace.

30. The doctrine of proportionality as
propounded by various constitutional courts will
have an important bearing on the decision
making process to be followed by the labour
court.

31. The labour court while deciding the
proportionality of punishment has to examine
the relevant findings of the domestic enquiry on
their merits. In case such findings are perverse
or not tenable in law the labour court will have
to reverse those findings and record reasons for
the same. The matter will not be left there. The
labour court thereafter have to embark on an
independent investigation into the facts and after
receiving evidence if necessary shall return
specific findings thereon.

32. The labour court in the impugned
award has neglected to return a finding on the
third charge namely continuous absence from
duty with effect from 18.01.2004 onwards. This
absence was proved and found to be wilful in the
domestic enquiry proceedings. Since no contrary
finding has been recorded in the impugned
award, the domestic enquiry report in regard to
the same has to be given effect to.

33. Secondly, the labour court has not
examined some relevant findings returned by the
domestic enquiry, and has not reversed the said
findings. Domestic enquiries have a critical role
to play in industrial relations. Domestic
enquiries cannot be given a short shift or
completely ignored by the labour court as was
done in this case. This failure of the labour court
is sufficient to vitiate the impugned award.

34. The labour court has baldly recorded
that medical evidences attesting the illness of the
respondent No. 3 workman were in the record
and hence the absence was not wilful.

35. The labour court simply accepted the
medical reports on their face value without
examining their authenticity in an independent
manner.
This
failure
to
exercise
lawful
jurisdiction vitiates the award since the said
reports were categorically rejected by the
enquiry officer.

36. Section 11-A of the Industrial Disputes
Act/ Section 6 (2) (a) of the U.P. Industrial
Disputes Act mandate that the labour court
should make an independent consideration or
cause an enquiry into the veracity of the stands
of both parties and also the credibility of the
evidence adduced before the labour court.
Independent findings in that regard have to be
returned by the labour court. In the impugned
award the documentary and other evidences of
the workman were accepted on their face value,
and not tested for veracity by inviting evidence
and independent application of judicial mind.

37. This approach of the labour court does
not satisfy the mandate of Section 6(2) (a) of the
U.P. Industrial Disputes Act and Section 11-A of
Industrial Disputes Act.

38. The labour court placed exclusive
reliance on certain parts of the testimony of the
enquiry officer made before it. The aforesaid
consideration is perverse, inasmuch as the
testimony has to be considered as a composite
whole and the credibility of the witness has to be
examined accordingly. Parts of the deposition
cannot be considered in isolation. In the instant
case, the labour court has cherry picked parts of
11 All. U.P.S.R.T.C. Vs. State of U.P. & Ors.
325
the deposition to support the conclusions
reached by it.

39. At the expense of increasing the length
of this judgment, the testimony of the enquiry
officer before the labour court which is in the
record indicates that the enquiry officer had
testified that the statement of the workman that
he intimated the employer about his illness was
incorrect. The workman did not produce any
medical certificate before the enquiry officer.
The enquiry officer examined the personal
record of the workman during the enquiry which
did not contain any application for leave. The
enquiry officer had also noted that the workman
had only submitted one medical certificate at the
time of his joining.

40. It is equally noteworthy that before
the enquiry officer the sole defence of the
respondent No. 3 workman for his absence
from duty was the illness of his wife. However
post facto the workman improved his case
before the labour court by adding his own illhealth as the additional cause of absence from
duty. These aspects were integral to the
deposition of the enquiry officer. Whether the
respondent
workman
could
use
the
proceedings before the labour court to supply
defects in his defence before the domestic
enquiry also went to the root of the matter.
Failure to consider the same renders the
findings of the labour court perverse.

41. In the wake of preceding discussions
this Court concludes that the findings of the
labour court are vitiated and the award is
liable to be set aside and is set aside.

42. Before parting it would be apposite
in the interest of justice to examine the
doctrine of proportionality. The judgments
cited at the Bar on behalf of respondent No. 3
workman were rendered in the context of
absence from duty which was not wilful. (Ref:
Chairman cum Managing Director Vs.
Mukul Kumar Chaudhuri4)

43. The records and facts as stated in the
preceding part of the judgment support and
fortify
the
conclusion
of
the
employer/domestic enquiry that the absence of
the respondent No. 3 workman from duty was
wilful. Moreover, the findings of the domestic
enquiry that the respondent No. 3 workman
was continuously absent from 18.01.2004
onwards has not been considered or referenced
or reversed by the labour court. The said
findings was not successfully challenged and
has attained finality. The findings of the
enquiry
officer
are
based
upon
due
consideration of the material produced during
the
enquiry
and
the
conclusions
are
reasonable. The domestic enquiry officer
reached the applicable standards of evidence
while returning the said findings.

44. It would not be out of context to mention
that the petitioner No.1 is an instrumentality of the
State within the meaning of Article 12 of the
Constitution of India. It is engaged in the high
purpose of providing public transportation to the
common man at reasonable cost. The service
conditions are governed by regulations duly
framed by the competent authorities. There are no
oppressive conditions of work, at least nothing has
been brought out in the record. Instrumentalities in
public sector undertakings cannot have rights
surplus and duty deficit environment. The same
will be contrary to public interest.

45. In case absence from duty is found to
be wilful, the employer may pass orders for
dismissal from service in the facts of a case.
This is what has happened in the instant case.

46. Consequently, this Court concludes
that the punishment imposed upon the petitioner
by the employer for wilful absence from duty for
various periods is reasonable and just.
326 INDIAN LAW REPORTS ALLAHABAD SERIES

47. The impugned award dated 30.01.2020
is liable to be set aside and is set aside.

48. The writ petition is allowed.

49. The Court appreciates the assistance
rendered by Sri Jagram Singh, learned counsel
as well as Sri Rahul Agarwal, learned counsel
for the petitioner. Sri Gopal Narayan Srivastava,
learned counsel for respondent No. 3 has also
assisted the Court with great effort.
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(2021)11ILR A326
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.07.2021

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE MRS. SADHNA RANI (THAKUR), J.

Writ-C No. 14093 of 2021

Smt. Babita Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Gaurav Singh Chauhan, Sri R.P.S. Chauhan

Counsel for the Respondents:
C.S.C., Sri Tarun Agarwal

A. Election Law - UP Kshetra Panchayats and
Zila Panchayats (Election of Members) Rules,
1994 - Rules 50(e), 53, 54 & 55 - Counting of
votes - Votes of one polling booth were not
added in the result declared - Mistake rectified
after
issuance
of
Certificate
of
elected
candidate - Certificate cancelled and election
result changed by the Returning Officer (R.O.)
after issuing notice - Validity challenged -
Jurisdiction of R.O. questioned - Duty of R.O.
of removing mistake, explained - Held, till the
Returning Officer was In-charge of his office
under
the
order
of
the
State
Election
Commission and the election result was not
finalized by uploading the same on the portal
of
the
State
Election
Commission,
the
Returning Officer cannot be denuded of his
power to make correction of an error which
was only clerical or arithmetical in nature, to
put the record of his office straight - Returning
Officer is duty bound to ensure that the
declaration made by it of the election result is
true; and when he had made correction of
minor
or
formal
nature
for
removing
inadvertent error he cannot said to have
become functus officio nor can it be said that it
was outside the scope and jurisdiction of the
Returning Officer under the authority given by
the Election Commission. (Para 21)
B. Election Law - UP Kshetra Panchayats and
Zila Panchayats (Election of Members) Rules,
1994 - Rules 54 & 56 - Declaration of result,
when became final - Words 'to be elected' used
in Rule 54 - It's impact - Declaration under
Rule 56 - It's significance - Smt. Tara Devi's
case
followed
-
Held,
Rule
54
only
contemplates
for
the
declaration
of
the
candidate securing highest number of votes, 'to
be duly elected' - The issuance of the
certificate on the part of the authority was only
an additional act which cannot by itself gives
any independent cause of action to proceed -
In case, the issuance of the certificate in
contemplation of Rule 54 is held final, Rule 56
will be nugatory - Formal declaration of the
result under Rule 54 by the R.O. will be abide
by the Rule 56 of the Rules, 1994 - Suggestion
to amend suitable amendment in Rule 54 and
56 was made in Tara Devi's case, but it could
not be taken note by State Govt. - High Court
requested for suitable amendment in the Rules
1994 in order to avoid future litigation and to
bring stability in the Panchayat election
process in future. (Para 10, 27 and 30)
C. Constitution of India - Article 226 -
Equitable jurisdiction - Substantial Justice -
Writ, when cannot be issued - Held, while
exercising equitable discretionary jurisdiction
under Article 226 of the Constitution of India, it
must be keptp in mind that substantial justice
is done in the matter and the High Court would
not issue a writ which would revive any
illegality. (Para 23)
Writ petition dismissed. (E-1)