# Umesh Chandra v. State of U.P. and Ors

- **Citation:** (2013) 2 ILRA 699
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-05-02
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/umesh-chandra-v-state-of-u-p-and-ors-42560
- **Pages:** 6

## Headnote

U.P. Industrial Dispute Act 1947-Section 6N- Termination of Tube Well Operatorchallenged before Writ Court pursuance of
stay
working-regularization
petitiondismissed as after expiry of 3 years-noextension-and during this the tube-well
failed-on this ground termination order
passed-which
remained
unchallengeconsequently
regularization
deniedpetitioner
raised
Industrial
disputedrejection on ground in absence of reference
order regarding provisions of Section 6-P
and 6 Q-adjudication not possible-held
illegal-working more than 240 days not
denied-consequent to failure of tub-well
other juniors allowed allowed to work and
regularized subsequently-petitioner entitled
for reinstatement-considering delay of 11
years-in perusing litigation before Writ
Court-relief for back wages denied-order
passed by Labour Court set a side.
700 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Held: Para-20
In view of the aforesaid, the Court is of
the opinion that since similarly situated
persons were reinstated in the service by
various orders of the writ Court for
different reasons, the petitioner is also
entitled to be reinstated in service. The
Court
has
held
that
the
order
of
termination was in violation of the
provision Section 6-N of the Act. The
Court, accordingly, holds that the award
of the labour court declining to grant
relief was wholly erroneous. The award
is accordingly quashed. The petitioner
would be reinstated in service.

Case Law discussed:
Suresh Chandra Tewari and others Vs. State of
U.P. and other; 2008 (26) LCD 280

## Text

2 All] Umesh Chandra Vs. State of U.P. and others
699

10. This Court in Yash Karan Singh
(supra) has considered the judgement of
Supreme
Court
in
Committee
of
Management, Arya Nagar Inter College,
Arya Nagar, Kanpur and another v. Sree
Kumar Tiwari and Another reported 1997 (2)
UPLBEC 1133 and Full Bench decision of
this Court in Smt. Pramila Misra v. Deputy
Director of Education, Jhansi Division,
Jhansi reported in 1997(2) ESC 1284; Raj
Kumar Verma and Another v. D.I.O.S.
Saharanpur and others, 1999 (3) ESC 1950
and Smt. Shashi Saxena and others v.
Deputy Director of Education and others
reported in 2000 (3) ESC 1990, this Court
issued direction to Selection Committee to
consider the cause of the teachers therein for
regularisation under section 33 B of Act No.
5 of 1982. In Yesh Karan Singh v. DIOS and
Another (supra) also teacher was working
on the strength of interim order for a quite
long time.

11. Relevant would it be, to mention
that similar orders in same set of facts have
been passed by different Division Benches
and by learned Single Hon'ble Judges.
Reference may be made to some of the
cases: Smt. Indu Gautam v. DIOS Aligarh
(Special Appeal No. 643 of 2012) ; Smt.
Sadhna Sharma v. State of U.P. (Special
Appeal No. 1591 of 2006; Writ Petition No.
2627 of 1990 Smt. Madhu Bala Gupta and
another v. State of U.P. ; Writ Petition No.
24383 of 1989 V .K.Sharma v. State of U.P.
and Writ Petition No. 11797 of 1994 Shashi
Prakash Dubey and Another v. DIOS and
others.

12. As a result, I am of the view that
end of justice would be met if a direction is
issued upon the Regional Committee headed
by the Joint Director of Education under
section 33 -C (2 a) of the Act, to consider the
cause of the petitioner for regularization of
the petitioner in accordance with law. The
said exercise shall be completed by the
Regional Committee as expeditiously as
possible preferably within three months from
the date of communication of this order.

13. The writ petition is disposed of.

14. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.05.2013

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 25619 Of 2011

Umesh Chandra ...Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri H.W. Khan, Sri J.H. Khan
Sri Abhitab Kumar Tiwari

Counsel for the Respondents:
C.S.C.

U.P. Industrial Dispute Act 1947-Section 6N- Termination of Tube Well Operatorchallenged before Writ Court pursuance of
stay
working-regularization
petitiondismissed as after expiry of 3 years-noextension-and during this the tube-well
failed-on this ground termination order
passed-which
remained
unchallengeconsequently
regularization
deniedpetitioner
raised
Industrial
disputedrejection on ground in absence of reference
order regarding provisions of Section 6-P
and 6 Q-adjudication not possible-held
illegal-working more than 240 days not
denied-consequent to failure of tub-well
other juniors allowed allowed to work and
regularized subsequently-petitioner entitled
for reinstatement-considering delay of 11
years-in perusing litigation before Writ
Court-relief for back wages denied-order
passed by Labour Court set a side.
700 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Held: Para-20
In view of the aforesaid, the Court is of
the opinion that since similarly situated
persons were reinstated in the service by
various orders of the writ Court for
different reasons, the petitioner is also
entitled to be reinstated in service. The
Court
has
held
that
the
order
of
termination was in violation of the
provision Section 6-N of the Act. The
Court, accordingly, holds that the award
of the labour court declining to grant
relief was wholly erroneous. The award
is accordingly quashed. The petitioner
would be reinstated in service.

Case Law discussed:
Suresh Chandra Tewari and others Vs. State of
U.P. and other; 2008 (26) LCD 280

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

1. Heard Sri W.H. Khan, the learned
Senior counsel assisted by Sri J.H. Khan,
the learned counsel for the petitioner and
the learned Standing counsel for the
respondents.

2. The admitted facts as culled out
from the pleadings before the labour court
is, that the petitioner, who is a workman
was appointed as a part time Tubewell
Operator by an order dated 11th March,
1987 for a period of three years to work on
Tubewell No. 1 NBG. The appointment
letter clearly indicated that his services
would come to an end on 14th March, 1990.
When the term was coming to an end, the
petitioner filed a writ petition no. 2725 of
1990 and obtained an interim order dated
21st March, 1990, whereby the Court
allowed the petitioner to continue to work
provided the Tubewells and the post were
available. It is not known as to whether, the
petitioner was permitted to work in terms of
the interim order as the Court does not find
any pleadings to that effect. On 20th March,
1992, the State Government issued a
Government Order indicating that the
nomenclature of the post of part time
Tubewell Operator would be changed to
Assistant Tubewell Operator and that these
Tubewell Operators would work for a
period of three hours in a day and that the
remaining time could be utilized by them
for other work. It was also indicated that, in
the event, the tubewell failed or there was
no requirement of work, the services of
these Assistant Tubewell Operators would
be dispensed with in terms of the State
Government Order.

3. The petitioner was given an
appointment letter on 14th May, 1992 for
a
period
of
three
years.
In
this
appointment
letter,
it
was
clearly
indicated that his services was limited to
three years as an Assistant Tubewell
Operator and that he would be allowed to
work only for three hours, and thereafter,
it was open to the petitioner to do
whatever kind of work. It was also
indicated that, in the event, the tubewell
failed or his services were no longer
required, in which case, his services
would be dispensed with.

4. It transpires that Tubewell No. 1,
where the petitioner was working, failed and
accordingly, the Executive Engineer issued a
notice dated 23rd March, 1995 indicating
that the services of the petitioner was no
longer required as the Tubewell had failed,
and therefore, his services would come to an
end after 31st March, 1995.

5. Curiously, the petitioner did not
challenge the order of termination, but chose
to file a writ petition before the Lucknow
Bench, being writ petition no. 3611 (ss) of
1995, for regularization of his services. This
petition was eventually dismissed by a
judgement dated 13th December, 2005 on
2 All] Umesh Chandra Vs. State of U.P. and others
701
the ground that the services of the petitioner
could not be regularized under Article 226 of
the Constitution of India, coupled with the
fact that his services had already been
terminated by a notice dated 23rd March,
1995, and even, if there was a violation of the
provision of 6-N of the U.P. Industrial
Disputes Act, the remedy against the order of
termination lay under the Industrial Disputes
Act. Pursuant to the dismissal of the writ
petition , the petitioner raised an industrial
dispute in the year 2006, which was
ultimately referred by the State Government
by an order dated 28th December, 2006.

6. Before the labour court, the
workman contended that he had been
working continuously in service since
1987 without any break and that he had
completed 240 days in a calender year
and that the termination of his services by
the notice dated 23rd March, 1995 was in
a gross violation of the provision of
Section 6-N of the U.P. Industrial
Disputes Act. It was also contended that
many Tubewell Operators were still
working, where the Tubewell had failed
and
that
the
petitioner
had
been
discriminated. It was also contended that
the juniors to the petitioner were allowed
to continue in violation of the provisions
of Section 6-P and Section 6-Q of the
Industrial Disputes Act. The workman,
subsequently, prayed that the order of
termination should be set aside and that
he should be reinstated with continuity of
service and with full backwages.

7. The employers contended that the
petitioner was appointed initially as a part
time Tubewell Operator for a fixed
period, and thereafter was issued a fresh
appointment letter again for a fixed period
of three years on certain terms and
conditions. The appointment letter clearly
indicated that, in the event, the tubewell
failed, his services would be dispensed
with. These terms and conditions were
duly accepted by the workman, and
therefore, it was no longer open to the
workman to contend that such conditions
imposed in the appointment letter was
onerous. The employers also contended
that the Irrigation Department was not an
industry as specified under Section 2-(k)
of the U.P. Industrial Disputes Act. It was
also contended that the services of the
workman was terminated on 31st March,
1995, whereas the dispute was raised in
the year 2006 after a gap of more than 10
years and on account of undue delay no
relief can be granted to the workman.

8.

The
Labour
Court
after,
considering the material evidence that
was brought on record, held that the
Irrigation Department is an industry and
that the petitioner is a workman as
defined under Section 2 (z) of the Act.
The labour court held that there has been
delay in raising the reference, but such
delay cannot defeat the claim of the
workman. The labour court further held
that the provision of Section 6-P and
Section 6-Q cannot be considered in the
present case as the same was not referred
by the State Government in the reference
order. The labour court further found that
the termination of the services of the
workman was based on the terms and
conditions on the appointment letter,
which was accepted by the petitioner
while taking up the job and that such
termination based on the terms and
conditions of the appointment letter did
not amount to the retrenchment as defined
under Section 2(s) of the U.P. Industrial
Disputes
Act.
The
labour
court,
accordingly, declined to grant any relief
to the workman and rejected his claim
application.
The
petitioner,
being
702 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
aggrieved by the said award, has filed the
present writ petition.

9. Before this Court, the workman
raised new pleas, namely, that by an order
of 16th June, 1994, the petitioner was
transferred to work in Tubewell No. 4
NBG. This fact has been stated in
paragraph 7 of the writ petition, which has
been
categorically
denied
by
the
respondent in their counter affidavit. Such
grounds which are not a part of the record
of the labour court cannot be taken into
consideration in a writ jurisdiction.

10. The learned counsel also relied
upon a decision of the Lucknow Bench in
the case of Suresh Chandra Tewari and
others Vs. State of U.P. And others,
decided on 18th May, 1994, in which the
Government Order dated 20th February,
1992 was quashed and part-time Tubewell
Operators were allow to continue. It was
contended that the case of the petitioner
stood
on
the
same
footing,
and
consequently, the petitioner should also
be given the same relief. The learned
counsel also relied upon a decision in the
case of Indra Kumar Singh. Vs. State of
U.P. And others 2008 (26) LCD 280, in
which, the order of termination, which
was based on the conditions given in the
Government Order dated 20th Feb, 1992
was quashed in a writ jurisdiction. The
learned counsel submitted that in view of
this decision, which was fully applicable,
the petitioner was entitled to be given the
same relief.

11. The learned senior counsel
contended
that
various
Tubewell
Operators filed various writ petitions,
where tubewells had failed, and all those
writ petitions were allowed and these
Tubewell Operators were reinstated in
service. It was contended that the
conditions mentioned in the appointment
letter was based on the conditions given
in the Government Order dated 20th
February, 1992 which has been quashed
in the case of Suresh Chandra (Supra),
and consequently, such conditions, being
onerous, could not be a factor for
dispensing the services of the workman. It
was
therefore,
contended
that
the
petitioner should also be granted the same
relief of reinstatement in service.

12. Having heard the learned counsel
for the petitioner, the Court is of the view
that the decision in the case of Suresh
Chandra and in the case of Indra Kumar
Singh are based on its own facts. No doubt,
the Government Order dated 20th February,
1992 was quashed in the case of Suresh
Chandra (Supra) on the ground that the
nomenclature of part time Tubewell Operator
cannot be changed to the Assistant part time
Tubewell
Operator.
The
conditions
mentioned in the impugned order was not
considered by the Court in Suresh Chandra's
case. In Indra Kumar Singh's case, the Court
found that the appointment of the petitioner
did not contained such conditions as
mentioned in the Government Order dated
20th February, 1992, and accordingly,
quashed the order of the termination, which
was based on the conditions mentioned in the
Government Order dated 20th February,
1992. This decision is distinguishable.

13. The terms and conditions in the
appointment letter, namely, that if the
tube-well failed and that the services are
no longer required, in which case, the
services of the Tubewell Operator would
be dispensed with has to be tested on the
anvil of reasonableness. In the opinion of
the Court, such conditions are neither
onerous nor discriminatory. tubewells
2 All] Umesh Chandra Vs. State of U.P. and others
703
have a limited period of life and when a
tubewell dries up, it becomes nonoperational and, at that stage, it is for the
authority to see as to whether the services
of a Tubewell Operator is required or not
? If their services are required, it would be
open to the authority to extend their
services, failing which, their services
would be dispensed with.

14. In the case of Suresh Chandra
(Supra), the evidence that was led proved
that part time Tubewell Operators were not
working for a limited period of time, but
were working beyond the stipulated period
and were working at odd hours of the day. It
came on record that on account of erratic
electric supply, the Tubewell operator was
required to operate Tubewell whenever the
electricity was available. On account of these
findings, the court was of the view that the
condition that the petitioners were working
for a limited period was incorrect. In the
instant case, no such evidence has been
brought by the petitioner before the labour
court to indicate that he was working full
time or beyond the stipulated hours of
working nor there is any such pleadings to
this effect.

15. In the light of the aforesaid, the
services of the workman was dispensed with
in accordance with the terms and conditions
of the appointment letter and would not
attract the provisions of Section 6-P and
Section 6-Q of the Industrial Disputes Act.
The labour court, however, committed an
error in holding that since the reference order
did not mention about Section 6-P and
Section 6-Q, the labour court could not deal
with such questions. In the opinion of the
Court, the labour court committed an error.
In order to test the validity and legality of the
order of the termination, it would always be
open to the labour court to deal with
incidental questions attached to the main
reference order and consider the violation of
Section 6-P and Section 6-Q, and the
consequential relief to be given, in the event,
the labour court found that the order of
termination was illegal. The Court finds that
the labour court committed an error in
holding that the provision of retrenchment as
embodied in Section 2(s) was not applicable
as the services of the workman was
terminated in terms of the appointment letter.

16. The Court is of the opinion that
the labour court committed an error. The
termination of the services of the
workman for any reason whatsoever
amounts to retrenchment unless the
termination falls in the exceptional clause.
Even if, the services of the workman has
been
terminated
in
terms
of
the
appointment letter, the same does not fall
in the exceptional clause. Admittedly, the
workman had worked for more than 240
days in a calender year and had more or
less completed three years of service. If
his services was no longer required on
account of the tubewell having failed, his
services could be dispensed with after
complying with the provisions of Section
6-N of the Act. This has not been do so.
Consequently, the order of termination of
the services of the workman was violative
of provision of Section 6-N of the
Industrial Disputes Act. The order of
termination cannot be sustained.

17. Similar notice was given to
Indra Kumar Singh, who challenged the
notice in a writ jurisdiction without going
through the process of the labour court.
His writ petition was allowed on a
different ground and he was reinstated in
service. Similarly, a large number of part
time Tubewell had filed writ petitions
who were also reinstated in service.
704 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

18. In the case of Suresh Chandra (Supra),
the Government Order of 1992 was quashed and
the services of the workman remained
untouched. Subsequently Regularization Rules
was introduced in 1998, and based on those
Rules, many of the services of the part time
Tubewell Operators have been regularized.

19. The petitioner in the instant case
had also filed a writ petition for
regularization of his services in the year
1995, but did not challenge the order of
termination on account of which, his writ
petition was dismissed. The petitioner,
thereafter, raised an industrial dispute.

20. In view of the aforesaid, the Court is
of the opinion that since similarly situated
persons were reinstated in the service by
various orders of the writ Court for different
reasons, the petitioner is also entitled to be
reinstated in service. The Court has held that
the order of termination was in violation of the
provision Section 6-N of the Act. The Court,
accordingly, holds that the award of the labour
court declining to grant relief was wholly
erroneous. The award is accordingly quashed.
The petitioner would be reinstated in service.

21. The reference was made in the year
2006 after a gap of almost 11 years on
account of the fact that the petitioner was
pursuing his remedy for regularization of his
services before a Writ Court. For this delay,
the liability of backwages cannot be fastened
upon the employers. The Court is, therefore,
of the opinion that in order to mould the
relief, the petitioner is only entitled for
reinstatement with continuity of service, but
will not be entitled for any backwages.

22. In view of the aforesaid, the award of
the labour court is quashed. The writ petition is
allowed to the extent stated aforesaid.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.05.2013

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Civil Misc. Writ Petition No. 25969 of 2013
M/S Agarwal Trading Agency...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare, Sri R.K. Tripathi

Counsel for the Respondents:
C.S.C.

U.P. Kerosene Oil control Order 1962- Rule
11
Proviso-II-
Suspension
of
licencepending
enquiry-before
passing
order
opportunity is must-moreover after expiry
of
2
weeks-suspension
automatically
ceased with operation-suspension order
lost its existence accordingly-given liberty
to pass final order.

Held: Para-11
A
perusal
of
the
aforesaid
provision
indicates that the 1st proviso of Rule 11 of
the Order, 1962 contemplates that the
licencee shall be given a reasonable
opportunity of submitting his explanation
before license is suspended except when
suspension is pending inquiry. With regard
to suspension pending inquiry an outer limit
of two weeks have been provided for. The
object of the said rule is that normally
suspension of kerosene oil licensee should
be ordered after giving due opportunity and
in case it is made suspension pending
inquiry it has outer limit of two weeks. A
perusal of the suspension order dated
30/4/2013,
clearly
indicates
that
suspension order was pending inquiry,
hence the said suspension shall come to an
end after expiry of two weeks. However,
the mere fact that suspension order which
was passed pending inquiry has come to an