# Union of India and others v. G.P. Yadav and another

- **Citation:** (2003) 2 ILRA 497
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003
- **Case number:** Civil Misc. Writ Petition No.28394 of 2003
- **Bench:** Dr. B.S. Chauhan, D.P. Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/union-of-india-and-others-v-g-p-yadav-and-another-40149
- **Pages:** 4

## Headnote

Constitution of India Article 226- Factual
controversy raised questioning the order
passed by tribunal-can not be gon by
High Court- only remedy to file review
application before the same tribunal-
http:\\allahabadhighcourt.nic.in
INDIAN LAW REPORTS ALLAHABAD SERIES [2003
498
Held- Para 12

Thus in view of the aforesaid settled
legal proposition, emerges that the writ
court cannot conduct the enquiry as to
what issues had been agitated before the
Tribunal and if a party is aggrieved that
some of the issues agitated by it have
not been dealt by the Tribunal, the only
remedy available to it is to file an
application of Review before the Tribunal
as those issues cannot be dealt with by
the writ Court.
Case law discussed:
AIR 1982 SC 1249; AIR 1917 PC 30; AIR 1926
PC 36; AIR 1921 Cal. 584; AIR 1924 Cal. 257;
1995 (6) SCC 45; 1997 (4) SCC 662

## Text

2 All] Union of India and others V. G.P. Yadav and another
497
9. The petitioner's promotion order
is Annexure-2 to the writ petition and
which is authored by Sri P.L. Srivastava.
Counsel for the petitioner urged that the
promotion order has been signed by Sri
P.L. Srivastava as Managing Director.
Nomenclature is not determinative of the
power
legally
exercisable
by
an
individual. As it has already been noted
above, Sri P.L. Srivastava was neither
authorized by the Board of Directors to
make appointment nor was he ever
appointed as Managing Director by the
Government. So merely signing the order
as General Manager/ Managing Director
would not validate the promotion order.
Even this promotion order is purely
temporary and does not confer any right
to the petitioner.

10. Counsel for the petitioner went
on to urge that prior to the impugned
order, he was issued a show cause notice
listing several alleged charges against
him. The show cause notice is annexed as
Annexure-3 to the writ petition. The stand
taken in the counter-affidavit is that right
from the date of his alleged promotion to
the post of Manager, the petitioner had
been working in a manner detrimental to
the interest of the Nigam. In paragraph 14
it has been averred that several warning
letters were issued to the petitioner, the
warning
letter
dated
24.1.1986,
10.10.1986, 10.12.1986, 19.2.1987 and
27.10.1987, are annexed with the counteraffidavit. A perusal of the same would
show that he had always been warned to
improve his functioning but to no effect.
It appears that the letter dated 21.11.1987
was also in continuation of the earlier
warning letters and asking for his
explanation. Therefore, the contention of
the petitioner that the order is stigmatic
has no force. Even otherwise the very
promotion of the petitioner was totally
illegal and against the rules and fell into
the category of a void order. Such an
order that too a temporary promotion
order, will not clothe the petitioner with
any defensible right. An explanation was
called from the petitioner in this case
where the petitioner has no right to the
post, no full fledged enquiry was
necessary, especially in the background of
the facts noted above. Thus, the second
argument of the petitioner has no force.

11. In view of the discussions above
and after perusal of the record, I do not
find that it is a fit case for interference
under Article 226 of the Constitution of
India. The writ petition is hereby
dismissed with costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.07.2003

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE D.P. GUPTA, J.

Civil Misc. Writ Petition No.28394 of 2003

Union of India and others ...Petitioners
Versus
G.P. Yadav and another ...Respondents

Counsel for the Petitioners:
Sri B.N. Singh, S.S.C.

Counsel for the Respondents:
Sri S.N. Gupta
Sri Rakesh Verma
Sri J.P. Singh, Caveator
Sri B.N. Singh, S.C.C.

Constitution of India Article 226- Factual
controversy raised questioning the order
passed by tribunal-can not be gon by
High Court- only remedy to file review
application before the same tribunal-
http:\\allahabadhighcourt.nic.in
INDIAN LAW REPORTS ALLAHABAD SERIES [2003
498
Held- Para 12

Thus in view of the aforesaid settled
legal proposition, emerges that the writ
court cannot conduct the enquiry as to
what issues had been agitated before the
Tribunal and if a party is aggrieved that
some of the issues agitated by it have
not been dealt by the Tribunal, the only
remedy available to it is to file an
application of Review before the Tribunal
as those issues cannot be dealt with by
the writ Court.
Case law discussed:
AIR 1982 SC 1249; AIR 1917 PC 30; AIR 1926
PC 36; AIR 1921 Cal. 584; AIR 1924 Cal. 257;
1995 (6) SCC 45; 1997 (4) SCC 662

(Delivered by Hon'ble Dr. B.S.Chauhan, J.)

1. This writ petition has been filed
against the impugned judgment and order
dated 25.3.2003, by which the learned
Central
Administrative
Tribunal
has
allowed the application of the respondent
no. 1 and granted him the relief of
reinstatement with all back wages along
with confirmation of temporary status
w.e.f. 1.9.1993.

2. Facts and circumstances giving
rise to this case are that respondent no. 1
had been engaged as part-time Farras vide
order dated 27.3.1989. He had been
granted enhancement from time to time.
He made an application for giving him
job on daily wages which was accepted
and he was allowed to work on full time.
Acceptance of his request was proved
vide order dated 23.3.1991 and he was
being
paid
Rs.27.92
per
day.
Subsequently
Government
of
India
framed the Scheme on 10.9.1993 for
granting temporary status to daily wage
employees for their regularization. As the
case of the said respondent workman was
not considered, he filed objection on
17.5.1993 making it clear that he had
initially been engaged as a part-time
employee. His case was not considered.
Thus being aggrieved, he filed O.A. No.
1297 of 1994 which was disposed of by
the learned Tribunal vide order dated
11.4.2002
issuing
direction
to
the
authorities concerned to consider the case
of the petitioner in terms of the Scheme
dated 10.9.1993. In pursuance of the said
order his claim was considered and
rejected vide order dated 27.7.2002.
Being aggrieved, he again approached the
learned Tribunal by filing O.A. No. 905
of 2002 which has been allowed by the
impugned judgment and order. Hence this
petition.

3. A large number of issues had
been raised by Shri B.N. Singh and very
heavy reliance had been placed upon the
judgment of the Hon'ble Supreme Court
issuing certain directions regarding the
regularization under the Scheme of the
Government. However all the issues
which have been agitated before this
Court by Shri B.N. Singh do not find
reference place in the impugned judgment
and order. Thus, he was confronted as to
whether the factual issues could be raised
first time in the writ petition without
laying down in a factual foundation
before the learned Tribunal. In reply it has
been submitted by him that all the issues
including the application of the Scheme
etc. and the judgment of the Hon'ble
Supreme Court had specifically been
agitated before the learned Tribunal and
the Tribunal has erred in not taking into
consideration and deciding the same.

4. Shri J.P. Singh, learned counsel
appearing for the caveator-respondent
workman has disputed the factual position
submitting that issue raised before this
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2 All] Union of India and others V. G.P. Yadav and another
499
Court had not been agitated while making
submission before the learned Tribunal
and he contended that this Court cannot
go into those factual matrix and decide
the case afresh. If petitioner is aggrieved
by any means, he can maintain a review
application before the learned Tribunal.

5. We have considered the rival
submissions made by the learned counsel
for the parties on this aspect and perused
the record.

6. In State of Maharashtra Vs.
Ramdas Shrinivas Nayk, AIR 1982 SC
1249 the Hon'ble Supreme Court while
dealing with a similar case, held as
under:-

"We are afraid that we cannot launch
into an enquiry as to what transpired in
the High Court. It is simply not done.
Public Policy bars us. Judicial decorum
restrains us. Matters of judicial record are
unquestionable. They are not open to
doubt. Judges cannot be dragged into the
arena---if
a
party
thinks
that
the
happenings in Court have been wrongly
recorded in a judgment, it is incumbent
upon the party--- to call the attention of
the very Judges---"

7. While deciding the said case the
Hon'ble Apex Court placed reliance upon
the judgment of the Privy Council in
Madhusudan Vs. Chandrabati, AIR 1917
PC
30;
and
Somasundaran
Vs.
Subramanian, AIR 1926 PC 136. In the
latter case, it has been observed as under:-

"Judgment cannot be treated as mere
counters in the game of litigation."

8. A similar view had been taken by
the Calcutta High Court in Sarat Chandra
Vs. Bibhabati, AIR 1921 Cal 584,
observing that the record of the Judge is
conclusive and it is not permissible either
for the lawyer or litigant to contradict it
except by moving application before the
same Judge.

9. In King Emperor Vs. Barendra
Kumar Ghose, AIR 1924 Cal 257, the
Full Bench of Calcutta High Court
reiterated the same view observing that
the judgment of the Court "is not to be
criticized or circumvented; much less has
to be exposed to any animad version."

10. In Union of India & ors. Vs.
N.V. Phaneendran, 1995 (6) SCC 45, the
Apex Court has held that if a party has
taken various grounds before the court
below and not made submissions on all of
that, it is not even desirable to remit the
matter to the said Court. The Court held
that "no doubt, several contentions had
been raised on merit, the Tribunal dealt
with only one issue. The prayer of the
party that they may be given an
opportunity
to
agitate
those
issues/questions by remitting the matter to
the Tribunal, cannot be accepted as the
party itself had chosen to agitate a limited
number of issues and there can be no
justification to remit the matter."

11. The same view has been taken
by the Supreme Court in Kanwar Singh
Vs. State of Haryana & ors., (1997) 4
SCC 662.

12. Thus in view of the aforesaid
settled legal proposition, emerges that the
writ court cannot conduct the enquiry as
to what issues had been agitated before
the Tribunal and if a party is aggrieved
that some of the issues agitated by it have
not been dealt by the Tribunal, the only
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INDIAN LAW REPORTS ALLAHABAD SERIES [2003
500
remedy available to it is to file an
application of Review before the Tribunal
as those issues cannot be dealt with by the
writ Court.

As we are not inclined to entertain
the new questions of facts, petition stands
dismissed with liberty to the petitioner to
approach the learned Tribunal, on the said
grounds if so advised, by filing a Review
Application.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 8.7.2003

BEFORE
THE HON'BLE A.K. YOG, J.
THE HON'BLE UMESHWAR PANDEY, J.

Civil Misc. Writ Petition No. 48309 of 2000

Sri Omkar Nath Kushwaha and others

 ...Petitioners
Versus
Central
Administrative
Tribunal
Allahabad and others
 ...Respondents

Counsel for the Petitioners:
Sri Sekhar Kumar Yadav

Counsel for the Respondents:
Sri S.N. Srivastava, S.S.C.
Sri S.C. Srivastava
Sri Subodh Kumar

Constitution of India Service Law parity
in pay scales-Markers claiming salary
that of Painters and decorators-by pay
commission
and
Departmental
SubCommittee-court
not
required
to
evaluate job, nature of duty-only to
ensured that employees doing similar
and identical duty-principle of equal pay
for equal work-to be followed.

Held- Para 8

In view of this, the Court is not required
to
evaluate
job,
nature
of
duty
performed by Markers vis-à-vis Painters
and Decorators. The Court anxious only
to ensure that an employer, (covered
under Article 12 of the Constitution of
India) is treating its employees, who are
discharging similar and identical duty,
without discrimination on the principle
of 'Equal Pay for Equal Work.'

(Delivered by Hon'ble A.K. Yog, J.)

1. Heard learned counsels appearing
on both sides and perused the record.

Petitioners, namely, Sarvshri Omkar
Nath Kushwaha, D.C. Banerjee, Mahabir,
Prithwi Pal, Lallan Prasad, Talib Raza,
Baram Din, G.R. Singh, S.N. Nishad,
Mewa Lal, Ram Gopal, Nankoo Ram,
Moti Lal and K.N. Gupta, working as
'Markers' and being aggrieved by the
disparity in the pay-scale available to
them vis-à-vis the pay-scale which was
made
applicable
to
'Painters'
and
Decorators' trade have approached this
Court by means of the present writ
petition under Article 226, Constitution of
India seeking to challenge the judgment
and order dated 25-7-2000/Annexure-1 to
the
petition
passed
by
Central
Administrative Tribunal rejecting O.A.
No. 1275 of 1999.

2. It is not in dispute that three
Tradesmen-
'Markers',
'Painters'
and
'Decorators' were getting one and the
same pay-scale till 1981. After 1981,
'Painters' and 'Decorators' were treated in
the skilled category and given pay-scale
of Rs. 260-400, while 'Markers' remained
in the pay-scale of Rs.210-290.

Later 'Markers' were made entitled to
pay-scale of Rs. 800-1150, Painters and
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