# U.P. State Handloom Corp. Ltd v. U.P. Handloom Sanyukta Karmchari Sangh & anr

- **Citation:** (2008) 3 ILRA 768
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-04-29
- **Case number:** Civil Misc. Writ Petition No. 56102 of 2006
- **Bench:** Shishir Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-state-handloom-corp-ltd-v-u-p-handloom-sanyukta-karmchari-sangh-anr-41181
- **Pages:** 7

## Headnote

Sri Rajesh Tiwari
S.C.

U.P. State Handloom Corporation (Ltd) (
Officer
and
Staff)
Rules
1981-Rule
23(2)(1)
Promotion-criteria
for
promotion-performance of workman-16
persons junior to workman promoted on
two
different
stages-ignoring
the
claimant-even
denying
the
3 All] U.P. State Handloom Corp. Ltd. V. U.P. Handloom Sanyukta Karmchari Sangh & anr. 769
consideration-Tribunal rightly granted
promotion
with
all
consequential
benefits-where the action of employer
found
arbitrary,
illegal-writ
Court
declined to interfere mere on ground of
technical plea-petition dismissed.

Held: Para 15

In my view if the action of the petitioner
is arbitrary and has given promotion to
16 junior persons to the respondent
workman, in spite of the fact that his
service record is unblemished and the
petitioner
has
failed
to
prove
any
unsatisfactory working of the concerned
workman, in that case in my opinion, the
Labour Court was fully justified in
awarding the consequential benefit after
giving
promotion
to
the
concerned
workman.
Case law discussed:
(2004) 9 SCC 286, Writ Petition No. 21029 of
1996 decided on 7.11.2005, Writ Petition No.
21030 of 1996 decided on 26.10.2006, 2007
(2) ADJ 657 (D.B.), 2006 (108) F.L.R., 2005
SCC (Labour and Service) 327, 2005 S.C.C. (L
& S) 484, 2007 (7) A.DJ 745.

## Text

768 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
but he was rebuffed by them as SP Noida
was a relative of the present applicant.
Whether the version of PW 5 in respect of
post occurrence conduct is correct or not
has to be judged by the trial judge but if
his evidence is taken to be correct, there is
no gain saying that the applicant can be
held to be guilty of murder and at present
there is sufficient evidence to frame
charges against him. Whether PW 5 has
taken a U-turn is a matter to be
adjudicated by the trial Judge.

12. Without making any further
observations, as it may prejudice the case
of the applicant, at this stage I dont find
any reason to interfere with the impugned
order as in my view it does not suffer
from any infirmity of law or of fact. The
applicant will have full opportunity to
lead his defence and plead his case at the
stage of framing of charge under Sections
227 and 228 Cr.P.C. or later on in the trial
but so far as the impugned summoning
order of the applicant under Section 319
Cr.P.C. is concerned the said order does
not suffer from any infirmity of law.

13. The above three judgments
relied upon by the counsel for the
applicant does not farther of the case of
the applicant at all. All those judgments
reiterate the same law that the power
under Section 319 Cr.P.C. should be
exercised sparingly and that too in the
cases where the chances of conviction are
not remote. From the facts discussed
above, I have held that the evidence of
PW5 is sufficient to frame the charge
against the applicant and therefore, the
power exercised by the trial Judge cannot
be said to be de horse the law.

14. This application is merit less and
it is dismissed as such. Interim order
dated 29.4.2008 stands vacated. Since the
trial is very old and the attempt in this
case was to tamper with the evidence of
the earlier murder case, I direct the trial
Court to decide the case expeditiously in
accordance with law as provided under
Section 309 Cr.P.C. and make an
endeavour to conclude it preferably
within 6 months from the date production
of certified copy of this order.

15. So far as the bail prayer of the
applicant is concerned, I also consider it
appropriate to direct the trial Court to
dispose it on the same day if possible, as
the entire material against the applicant is
available with it.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.08.2008

BEFORE
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No. 56102 of 2006

U.P. State Handloom Corporation Ltd.

...Petitioner
Versus
U.P.
Handloom
Sanyukta
Karmchari
Sangh and another
 ...Respondents

Counsel for the Petitioner:
Sri. Shiv Nath Singh
Sri. Satyam Singh

Counsel for the Respondents:
Sri Rajesh Tiwari
S.C.

U.P. State Handloom Corporation (Ltd) (
Officer
and
Staff)
Rules
1981-Rule
23(2)(1)
Promotion-criteria
for
promotion-performance of workman-16
persons junior to workman promoted on
two
different
stages-ignoring
the
claimant-even
denying
the
3 All] U.P. State Handloom Corp. Ltd. V. U.P. Handloom Sanyukta Karmchari Sangh & anr. 769
consideration-Tribunal rightly granted
promotion
with
all
consequential
benefits-where the action of employer
found
arbitrary,
illegal-writ
Court
declined to interfere mere on ground of
technical plea-petition dismissed.

Held: Para 15

In my view if the action of the petitioner
is arbitrary and has given promotion to
16 junior persons to the respondent
workman, in spite of the fact that his
service record is unblemished and the
petitioner
has
failed
to
prove
any
unsatisfactory working of the concerned
workman, in that case in my opinion, the
Labour Court was fully justified in
awarding the consequential benefit after
giving
promotion
to
the
concerned
workman.
Case law discussed:
(2004) 9 SCC 286, Writ Petition No. 21029 of
1996 decided on 7.11.2005, Writ Petition No.
21030 of 1996 decided on 26.10.2006, 2007
(2) ADJ 657 (D.B.), 2006 (108) F.L.R., 2005
SCC (Labour and Service) 327, 2005 S.C.C. (L
& S) 484, 2007 (7) A.DJ 745.

(Delivered by Hon'ble Shishir Kumar, J.)

1. By means of the present writ
petition the petitioner has approached this
Court for issuing a writ of certiorari
quashing the award dated 19.4.2006
passed by Presiding Officer-I, U.P.
Kanpur in Adjudication Case No. 151 of
2002 which was published on 24.6.2006,
Annexure-1 to the writ petition.

2. The petitioner U.P. State
Handloom Corporation being employer
has approached this Court for setting
aside the aforesaid award by which the
Labour Court has directed the petitioner
that respondent-workman be treated on
the post of Senior Salesman from
1.4.1981 and from 1.1.1986 be treated as
Depot Manager Grade-II and accordingly
the salary be paid to the respondentworkman. The respondent-workman who
was an employee of the petitioner, as he
was denied promotion on the post of
Senior Salesman and subsequently on the
post of Depot Manager GradeII, raised a
dispute before the labour court on the
basis of the reference by the State
Government. For the ready reference, the
reference to the labour court is being
quoted below:-

"KYA
SEVAYOJKON
DWARA
APANE
KARMCHARI
SUSHIL
KUMAR
PUTRA
SRI
HARI,
D.
MASAND PAD SENIER SELSMAN,
KENDRIYA VASTRAGAR KO DI.
1.4.81 SE SENIER SELSMAN PAD
PAR VA DINANK 1.1.86 SE DIPO
MANAGER
GRADE-II
PAD
PAR
PRONNAT KI IANI CHAHIYE? YADI
HAN, TO KIS TITHI SE, TATHA KIS
ANYA VIVARAN SAHIT ? "

3. The labour court on the basis of
relevant record and on the basis of written
statement filed on behalf of petitioner has
considered the claim and has come to the
conclusion that respondent-workman is
entitled to be given promotion and further
promotion
in
accordance
with
the
reference.

4. Learned counsel for the petitioner
Sri S.N. Singh Yadav has submitted
before this Court that the labour court has
got no jurisdiction to direct the authority
to treat a person at a particular post. The
labour court has only power to direct the
authority concerned to consider the claim
of the respondent-workman. It has further
been submitted by the learned counsel for
the petitioner that according to U.P. State
Handloom Corporation Limited (Officer
and Staffs) Service Rules 1981 which
770 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
provides the provisions for promotion,
Sub Clauses (1) and (2) of Rule 23 of the
aforesaid
rules
mention
that
all
promotions form lower posts or grades to
the higher posts or grades shall be mainly
performance oriented. Promotion to the
post of Group 'A' and Group 'B' against
the vacancies reserved to be filled up by
the promotion from amongst the serving
employees, shall be strictly on merit. In
taking support of the aforesaid provisions,
learned counsel for the petitioner submits
that it is on the basis of merit to be
considered for promotion, therefore, the
labour court was not justified in directing
the petitioner to treat the respondentworkman on a particular post. If the
labour court was satisfied, he should have
directed the petitioner to consider the
claim of the respondent-workman. In
support of the aforesaid contention,
learned counsel for the petitioner has
placed reliance upon the judgment of the
Apex Court in the case of K. Samantaray
Vs National Insurance Co. Ltd. reported
in (2004) 9 SCC 286 and has placed
reliance
upon
paragraph-6
of
the
judgment which is quoted below:-

" In all services, whether public or
private there is invariably a hierarchy of
posts comprising of higher and lower
posts. Promotion, as understood under
the
service
law
jurisprudence,
is
advancement in rank, grade or both and
no employee has a right to be promoted,
but has a right to be considered for
promotion. The following observation in
Sant Ram Sharma v. State of Rajasthan
are significant:

"
The
question
of
a
proper
promotion policy depends on various
conflicting factors. It is obvious that the
only method in which absolute objectivity
can be ensured is for all promotions is to
be made entirely on grounds of seniority.
That means that if a post falls vacant it is
filled by the person who has served
longest in the post immediately below. But
the trouble with the seniority system is
that it is so objective that it fails to take
any account of personal merit. As a
system it is fair to every official except the
best ones; an official has nothing to win
or lose provided he does not actually
become so inefficient that disciplinary
action has to be taken against him. But,
though the system is fair to the officials
concerned it is a heavy burden on the
public and a great strain on efficient
handling of public business. The problem,
therefore is how to ensure reasonable
prospect of advancement to all officials
and at the same time to protect the public
interest in having posts filled by the most
able man? In other words, the question is
how to find a correct balance between
seniority and merit in a proper promotion
policy."

5. Further reliance has been placed
upon a Single Judge judgment of this
Court in Writ Petition No. 21029 of 1996,
U.P. State Road Transport Corporation
and Another V. Akhileshwar Prasad
Sinha and Others decided on 7.11.2005
and the learned counsel for the petitioner
submits that relying upon the judgement
of (2004) 9 SCC, 286 this Court has held
that no employee has a right to be
promoted, but only has a right to be
considered
for
promotion.
Further
reliance has been placed upon a judgment
of this Court in Writ Petition No. 21030
of 1996 U.P. State Road Transport
Corporation Vs. Bipin Behari Lal and
Others decided on 26.10.2006. In support
of the aforesaid judgment, learned counsel
for the petitioner submits that this Court
has taken a view that the labour court
3 All] U.P. State Handloom Corp. Ltd. V. U.P. Handloom Sanyukta Karmchari Sangh & anr. 771
cannot direct for promotion. In such
circumstances
the
labour
court has
exceeded its jurisdiction.

6. Another judgement relied upon by
the learned counsel for the petitioner is
2007 (2) ADJ 657 (D.B.), New Okhla
Industrial Development Authority Vs.
U.P. Public Service Tribunal, Lucknow
and Others and reliance has been placed
on paras 5 and 6 of the said judgment
which are quoted as below:-

"5.
Two
issues
arise
for
consideration in this petition. The first
issue is whether the Tribunal could have
passed an order granting promotion to
the post of Assistant project Engineers
instead
of
passing
an
order
for
consideration of their claim for promotion
to the post of Assistant Engineers. The
second
issue
that
arises
for
our
consideration is whether the applicants
could have been promoted without there
being any evidence before the Tribunal
that vacancies on the promotional posts
existed.

6. In our opinion, the directions issued by
the Tribunal for promotion of the
applicants to the post of Assistant Project
Engineers is against the well settled
principles enunciated by the Courts from
time to time as the Courts can at best
issue a direction to the authorities
concerned to consider the cases for
promotion but a direction promoting the
candidates to the higher post cannot be
issued as promotion to a particular post
depends upon a number of factors to be
taken
into
consideration
by
the
authorities. In this view of the matter, the
direction issued by the Tribunal for
promotion to the post of Assistant Project
Engineers cannot be sustained. "

7. In view of the aforesaid
submissions, learned counsel for the
petitioner submits that the award given by
the labour court is liable to be set aside
because the labour court has exceeded its
jurisdiction to direct the petitioner to
promote the respondent-workman on a
particular post.

8. On the other hand, Sri Rajesh
Tiwari, learned counsel for the respondent
submits that from the finding recorded by
the labour court, it is clear that admittedly
the respondent workman has been denied
promotion without any reason and he has
never
been
communicated
that
his
performance is not up to the mark. A
finding of fact has been recorded by the
labour court that admittedly the junior
persons to the respondents have been
given promotion. In the written statement
filed on behalf of the petitioner, various
pleas
have
been
taken
regarding
performance of the respondent-workman.
The same was not proved before the
labour court. The labour court has
recorded finding of fact. The employer
has failed to produce any document or
service record to this effect regarding
denial of promotion to respondentworkman. The labour court has also
recorded a finding to this effect that the
employer has also failed to disclose any
reason regarding denial of promotion to
the respondent workman. No document in
support
thereof
was
produced
and
impliedly the petitioner has admitted this
fact that junior persons to the respondentworkman have been promoted. In that
circumstance the labour court has passed
the award and directed the petitioner to
promote the respondent-workman. There
is no illegality in the award given by the
labour court. Reliance has been placed
upon a judgment upon this Court reported
772 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
in 2006 (108) F.L.R. U.P. State Sugar
and Kane Development Corporation
Ltd. Vs. Presiding Officer Labour
Court Gorakhpur and Others and has
referred to para-10 of the said judgment.
The same is reproduced below:-

"Having heard Counsel for the
parties, I am of the view that though
promotion normally is a management's
function but the Labour Court can
interfere in the order of promotion when
it finds that it is arbitrary, illegal,
malafide or for any other just and proper
cause. The Labour Court has given a
categorical finding that the workmen had
been working on the said posts not only
during the season but also during off
season i.e., they were working throughout
the years and were paid corresponding
wages of the posts held by them hence
declaring them permanent in the facts and
circumstances would not amount to
promotion. "

9. In support of the aforesaid
decision,
learned
counsel
for
the
respondent-workman submits that there is
no dispute to this effect that promotion is
normally a function of the management
but the labour court can interfere if it the
act of the employer as illegal, arbitrary
and mala fide. In that circumstances the
labour court can pass an order of
promotion.

10.

I
have
considered
the
submissions made on behalf of the.
Parties and perused the record. It is
admitted case of the parties that the
respondent-workman is an employee and
was working in the Corporation. It is also
admitted to the petitioner that various
junior persons have been promoted but
the respondent -workman has not been
given promotion as his performance was
not up to the mark. In the written
statement filed on behalf of the petitioner,
various
grounds
have
been
taken
regarding
non-giving
promotion
to
respondent- workman but the allegations
made in the written statement was to be
proved on the basis of the relevant record.
As regards denial of the promotion to the
workman concerned, the petitioner has
failed to file any document showing
therein that at any point of time chargesheet was ever given to the workman or
his performance was not satisfactory.
Even the petitioner has failed to prove by
cogent document that whether at any
point of time any warning was given to
the workman concerned.

11. As regards the contention of the
petitioner that promotion is oriented on
the basis of merit and performance, there
is no dispute to this effect that promotion
at a particular post cannot be claimed as a
matter of right but if some employee is
denied promotion, the reason to that effect
has to be disclosed. If the performance of
a workman is not satisfactory, then it has
to be disclosed as and when needed by the
employer. Admittedly, no document or
reason
has been disclosed by the
Corporation either before the labour court
or before this Court.

12. In such circumstances if the
labour court comes to the conclusion that
the action of the employer is arbitrary in
denying some benefit and privilege to a
workman, then in that circumstance the
labour court has full jurisdiction to grant
or to direct the employer to give
promotion
and
other
consequential
benefit.
3 All] U.P. State Handloom Corp. Ltd. V. U.P. Handloom Sanyukta Karmchari Sangh & anr. 773

13. It is well settled now that unless
and until it is proved that finding recorded
by labour court is perverse or against the
material on record, the Labour Court
being the last court of fact, finding
recorded by the labour court is a finding
of fact and there should not be any
interference
by
this
Court
while
exercising the jurisdiction under Article
226 of the Constitution of India. In 2005
SCC (Labour and Service) 327, in the
case
of
S.
Pushpa
Vs.
Sivachannaugavelu the Apex Court has
held that while exercising the jurisdiction
under Article 226 and 227 of the
Constitution of India there is a very
limited scope of interference of the award
of the Labour Court as the Labour Court
is a final Court of fact. The similar view
has been taken in 2005 S.C.C. (L & S)
484 in the case of Karnataka S.R.T.C.
Vs. S.G. Kotturappa.

14. As regards the decision relied
upon by the petitioner, there is no dispute
that in the service law if the Court comes
to the conclusion that a person has been
denied promotion without any rhyme or
reason, then this Court can only direct the
authority concerned to consider his case.
There is no dispute to this analogy raised
and submitted by the learned counsel for
the petitioner but as regards the present
case. admittedly the respondent-workman
in spite of approaching various time to the
employer, has been denied promotion of
not only one post but of two higher posts.
once as Senior Salesman from 1.4.1981
and on the post of Depot Manager GradeII from 1.1.1996. Cogent finding has been
recorded by the labour court that
employer has failed to submit any
document
regarding
unsatisfactory
working of the respondent-workman. If
the labour court was of the opinion that
the action of the employer was wholly
arbitrary and has come to the conclusion
that about 16 persons junior to the
respondent-workman have been given
promotion, in that circumstances, I am of
view that the labour court was justified in
directing the petitioner to give the
promotional
benefit
including
the
consequential benefit to the respondentworkman.

15. It has also been argued on behalf
of the petitioner that the labour court has
got no jurisdiction to award the back
wages or the financial benefits while
giving the promotion. Admittedly, the
respondent-workman has not worked
during this period on the promoted post.
In my view if the action of the petitioner
is arbitrary and has given promotion to 16
junior
persons
to
the
respondent
workman, in spite of the fact that his
service record is unblemished and the
petitioner has failed to prove any
unsatisfactory working of the concerned
workman, in that case in my opinion, the
Labour Court was fully justified in
awarding the consequential benefit after
giving promotion to the concerned
workman. In a Division Bench judgement
of this Court reported in 2007 (7) A.DJ
745, State of U.P. and others Vs.
Yadunath Singh and others in para 15
the Division Bench has observed relying
upon the High Court judgment that
principle of "No Work No Pay" would
have no application where the junior
persons have been promoted and the
employee concerned was neither under
suspension
nor
any
disciplinary
proceeding was pending against him and
on the contrary he was made to suffer on
account of the action of the respondentemployer
for
which
he
was
not
responsible. The Apex Court held that
774 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
there was no justification in denying him
arrears of emoluments from the date of
promotion. Para 15 of the judgment is
being quoted below:

"15. In Vasant Rao Roman Vs. Union
of India and others,1993 Suppl.(2) SCC
324 arrears of salary was denied to the
employees though it was held that denial
of promotion on the higher post on
account of wrong fixation of seniority was
illegal. The Apex Court held that the
principle of 'no work, no pay' would have
no application to the said case since the
employee was neither under suspension
nor any disciplinary proceeding was
pending against him and on the contrary
he was made to suffer on account of
administrative reason for which he was
not responsible. There was shortage of
literate Shunters at Gwalior during 1960
and the employee being literate was
deputed for table work and therefore for
administrative reason he could not
complete requisite number of firing
kilometers. The juniors were promoted as
Shunters and Drivers and his claim was
ignored on account of lack of requisite
number of firing kilometers. Thus on the
one hand the employee was utilized by the
department to benefit it self with the
qualification of the employee since the
literate Shunters to discharge table work
were not readily available and on the
other hand for the same qualification he
was denied promotion on the ground that
he has not completed requisite number of
firing kilometers. Hence, the Apex Court
held that there was no justification in
denying him arrears of emoluments from
the date he was allowed promotion to the
post of Shunter Grade 'B' and Driver
Grade 'C'. "

16. In view of the aforesaid fact, I
find no merit in the writ petition, The writ
petition is hereby dismissed.

No order is passed as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.08.2008

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 9636 of 2001

Dhruv Singh Yadav

...Petitioner
Versus
Director General, C.I.S.F. (Ministry of
Home Affairs) and others ...Respondents

Counsel for the Petitioner:
Sri. Ram Mohan
Sri. S.K. Srivastsva
Sri. Sheshadri Treivedi
Sri. A.K. Srivastsva

Counsel for the Respondents:
Sri A.N. Roy
S.S.C.

Protection
of
the
Persons
with
Disabilities
(Equal
Opportunities,
Protection
of
Rights
and
Full
Participation ) Act, 1995 -Section 47discharge from service on ground of
physical disability-petitioner working as
Constable in C.I.S.F. Suffering from
schizophrenia-confirmed
by
medical
Board-discharged
from
service
26.09.1995-the
Act
enforced
w.e.f.
07.02.1996-with
prospective
effectpetitioner approached the Court in the
year 2001-almost 51⁄2 years passed-not
entitled for any secondary job being
unfit for either armed or unarmed post.

Held: Para 12

In my opinion, the Disabilities Act could
not annul an order passed by an