# Up Ganna Aayukta & another v. Up Shram Aayukta, U.P. Saharanpur Kshetra, Saharanpur and others

- **Citation:** (2007) 3 ILRA 768
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-09-20
- **Case number:** Civil Misc. Writ Petition No. 30051 of 2004
- **Bench:** Krishna Murari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/up-ganna-aayukta-another-v-up-shram-aayukta-u-p-saharanpur-kshetra-saharanpur-41165
- **Pages:** 5

## Headnote

U.P. Industrial Dispute Act 1947-Section33-C (2)-arrears of wages-period of
working between 58-60 years-based on
interim order passed in writ petition-still
pending question of entitlement and
working still to be decided-application
under section 33-C(2) not maintainable.

Held: Para 12 & 13

There being no pre-existing right vested
in respondent no. 3 or the corresponding
obligation upon the petitioners to make
payment of wages for the disputed
period, the application under Section 33
C (2) filed by respondent no. 3 was not
at all maintainable.

Obviously,
the
Presiding
Officer/
respondent no. 2 fell in error in directing
the petitioners to pay emoluments to the
respondent no. 3 in proceedings under
Section 33-C (2) of the Act for the period
he had not worked without any predetermination
of
the
question
that
respondent
no.
3
was
entitled
to
continue in service and had a right to be
paid salary.
Case law discussed:
1978 FLR-383
1988 (3) SCC-457
1982 LAB IC-284
AIR 1974 SC-1604

## Text

768 INDIAN LAW REPORTS ALLAHABAD SERIES [2007

9. The application under Section 482
Cr.P.C. is hereby allowed and the
impugned order dated 6.9.2007 is hereby
set aside. The order passed by learned
Magistrate on 13th April; 2007 is restored
as above.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.09.2007

BEFORE
THE HON'BLE KRISHNA MURARI, J.

Civil Misc. Writ Petition No. 30051 of 2004

Up Ganna Aayukta & another ...Petitioner
Versus
Up Shram Aayukta, U.P. Saharanpur Kshetra,
Saharanpur and others ...Respondents

Counsel for the Petitioners:
Sri I.N. Singh
Sri Ajay Yadav

Counsel for the Respondents:
Sri Shiv Avtar Sharma
Sri Virendra Kumar
S.C.

U.P. Industrial Dispute Act 1947-Section33-C (2)-arrears of wages-period of
working between 58-60 years-based on
interim order passed in writ petition-still
pending question of entitlement and
working still to be decided-application
under section 33-C(2) not maintainable.

Held: Para 12 & 13

There being no pre-existing right vested
in respondent no. 3 or the corresponding
obligation upon the petitioners to make
payment of wages for the disputed
period, the application under Section 33
C (2) filed by respondent no. 3 was not
at all maintainable.

Obviously,
the
Presiding
Officer/
respondent no. 2 fell in error in directing
the petitioners to pay emoluments to the
respondent no. 3 in proceedings under
Section 33-C (2) of the Act for the period
he had not worked without any predetermination
of
the
question
that
respondent
no.
3
was
entitled
to
continue in service and had a right to be
paid salary.
Case law discussed:
1978 FLR-383
1988 (3) SCC-457
1982 LAB IC-284
AIR 1974 SC-1604

(Delivered by Hon'ble Krishna'Murari, J.)

1. Heard Sri 1. N. Singh, learned
counsel
for
the
petitioners, learned
standing counsel for State-respondents
and Sri Shiv Avtar Sharma appearing for
respondent no.3.

2. By means of this writ petition
filed under Article 226 of the Constitution
of India, the petitioners have challenged
the award dated 22.05.2004 passed by
Presiding Officer, Labour Court U.P.
Saharanpur under Section 33-C(2) of
Uttar Pradesh Industrial Disputes Act (for
short the 'Act') directing the petitioners to
pay a sum of Rs.48,875/- as wages for the
period 1.2.1994 to 11.7.1995 and the
consequential
order
dated
22.7.2004
passed by Deputy Labour Commissioner,
U.P. Saharanpur Kshetra, Saharanpur
under Section 33-C (1) of the Act for
recovery of the said amount.

3. Facts giving rise to the dispute are
as under;

Respondent no. 3 was appointed as
Kamdar vide order dated 8.10.1954 in the
year 1965. The post of Kamdar was re:
designated as Ganna Gram Sewak and
later on as Cane Supervisor (Ganna
Paryavekshak) vide order dated 5.7.1989/
3 All] Up Ganna Aayukta and another V. Up Shram Aayukta and others
769
4.8.1989. The said post was upgraded to
the post of Rajkeey Ganna Paryavekshak.
The post held by respondent no. 3 is
Group 'C' post. A notice dated 12.4.1993
was issued to respondent no. 3 informing
him that he would retire from service on
31.3.1994 on attaining the age of 58
years. The validity of the said notice was
challenged by respondent no. 3 before this
Court by filing Civil Misc. Writ Petition
No. 46131 of 1993 on the ground that he
is entitled to continue in service till he
attains the age of 60 years. Initially,
counter affidavit was called for. When no
counter affidavit was filed on 4.5.1995
following order was passed;

''Issue notice.
No counter affidavit has been filed
till today. In spite of earlier direction no
instruction has been obtained. Thus, upon
prima facie satisfaction there will be an
interim order staying the operation of
impugned order dated 12.4.1993 at
Annexure No. 2 to the writ petition until
further orders.
Sd/-A. Chakrabarti, J.

4. In pursuance to the aforesaid
interim order of this Court, respondent no.
3 joined his post on 12.7.1995 and
worked till 31.1.1996, when his services
came to an end on attaining the age of 60
years. He was paid salary for the period
12.7.1995 to 31.1.1996, however he was
not paid salary for the period 1.2.1994 to
11.7.1995. Respondent no. 3 moved an
application under Section 33-C (2) of the
Act claiming salary for the period
1.2.1994 to 11.7.1995. Respondent no. 2
Presiding Officer, Labour Court U.P,
Saharanpur vide order dated 22.5.2004
allowed the said application and awarded
wages amounting to Rs.48875/- for the
said period and Rs.l000/- as cost.
Subsequently, on an application moved by
respondent no. 3 under Section 33-C (1)
of the Act, Deputy Labour Commissioner,
U.P
Saharanpur
Region,
Saharanpur
issued notices to the petitioners for
recovery of the awarded amount as arrears
of land revenue.

5. It has been urged by learned
counsel for the petitioners that in exercise
of powers conferred by Section 33-C (2)
of the Act, there must be a existing right
of the workman and since the dispute
whether age of superannuation of the
respondent no. 3 is 60 years or 58 years is
still sub judice and there is no final
adjudication in that regard, the application
filed by respondent no. 3 claiming wages
for the said period I was not at all
maintainable
and
has
wrongly
and
illegally been allowed. In support of the
contention,
learned counsel
for
the
petitioners
has
placed
reliance
on
judgements of Hon'ble Apex Court in the
case of M/s. Punjab Beverages Pvt. Ltd.
Chandigarh vs. Shri Suresh Chand and
another 1978 FLR 383 and P.K. Singh
and others vs. Presiding Officer & others
(1988) 3 SCC 457. Reference has also
been made to a decision of learned single
Judge of this Court in the case of U.P.
State Electricity Board and another vs.
Jhagreshwar Prasad & another 1982
LAB. I.C. 284.

6. In reply, it has been contended on
behalf of respondent no. 3/ workman that
since the Interim order was passed in his
favour in writ petition no. 46131 of 1993
filed by him as such he was entitled to be
reinstated back in service till he attained
the age of 60 years and he was also
entitled for payment of wages for the said
period and in this view of the matter
770 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
application filed by him under Section 33C (2) of the Act has rightly been allowed.

7. I have considered the arguments
advanced on behalf of learned counsel for
the parties and perused the record.

8. It is undisputed that as per notice
dated 12.4.1993, respondent no. 3 was to
superannuate on 31.3.1994 on attaining
the age of 58 years. Said notice was put to
challenge before this Court wherein an
interim order was passed on 4.5.1995 in
pursuance whereof he joined back the
post on 12.7.1995 and continued to work
till 31.1.1996. Equally undisputed is the
fact that he has been paid salary for the
period 12.7.1995 to 31.1.1996 during
which he has worked.

9. The scope and ambit of the
provisions of Section 33-C (2) of the Act
stands well settled by pronouncement of
Hon'ble Supreme Court relied upon by the
learned counsel for the petitioners and
various other pronouncements. Reference
may
be
made
to
the
following
observations made by Hon'ble Apex
Court in paragraph 12 of the judgement in
the case of Central Inland Water
Transport Corporation Ltd. Vs. The
Workmen A1R 1974:S.C 1604;

"It is now well settled that a
proceeding under S. 33-C (2) is a
proceeding, generally, in the nature of an
execution proceeding wherein the Labour
Court calculates the amount of money due
to a workman from his employer, or if the
workman is entitled to any benefit which
is capable of being computed in terms of
money, the Labour Court proceeds to
compute the benefit in terms of money.
This calculation or computation follows
upon an existing right to the money or the
benefit, in view of its being previously
adjudged, or, otherwise, duly provided
for. In Chief Mining Engineer, East India
Coal Co. Ltd. v. Rameshwar AIR 1968 5
C 218, it was reiterated that proceedings
under S. 33 C (2) are analogous to
execution proceedings and the Labour
Court called upon to compute in terms of
money the benefit claimed by workmen is
in such cases in the position of an
executing court. It was also reiterated that
the right to the benefit which is sought to
be computed must be an existing one, that
is to say, already adjudicated upon or
provided for and must arise in the course
of and in relation to the relationship
between an industrial workman and his
employer."

In M/s. Punjab Beverages Pvt. Ltd.
Chandigarh (supra), it has been observed
as under;

".............It is now well settled as a
result of several decisions of this Court
that a proceeding under S. 33C(2) is a
proceeding in the nature of execution
proceeding in which the Labur Court
calculates the amount of money due to a
workman from his employer or if the
workman is entitled to any benefit which
is capable of being computed in terms of
money, proceeds to compute the benefit
in terms of money. But the right to the
money which is sought to be computed
must be an existing one that is to say,
already adjudicated upon or provided for
and must arise in the course of and in
relation to the relationship between the
Industrial
Workman,
and
his
employer............It is not competent to the
Labour
Court
exercising
jurisdiction
under S. 33C(2) to arrogate to itself the
functions of an industrial tribunal and
entertain a claim which is not based on an
3 All] Up Ganna Aayukta and another V. Up Shram Aayukta and others
771
existing
right
but
which
may
appropriately be made the subject matter
of an industrial dispute in a reference
under S. 10 of the Act............."

10. Thus, it is clear that under
Section 33-C (2), the Labour Court is
called upon to compute in terms of money
a benefit to which a workman is entitled
on the basis of a pre-existing right which
is either already adjudicated upon or
provided for and arises in the course of or
in relation to the relationship between the
workman and his employer. Incidental
matters can be inquired into by the
Labour Court for such computation. But it
is not entitled to investigate that the
workman had a right to the relief claimed
or that the employer had corresponding
obligation. In other words, where it has to
be determined whether the workman had
a right to the relief claimed by him, then
such determination cannot be made as a
matter incidental to the computation of
the benefit claimed by him. Such
determination is left to be made by the
adjudicatory process.

11. In the present case, there was a
dispute as to whether respondent no. 3
was entitled to continue in service till 58
years or 60 years. Obviously, it was not. a
case where relief could have been granted
to
the
respondent
no.
3
without
determining that he had a right to
continue in employment and to be paid
wages on account thereof till he attained
the age of 60 years. Before respondent no.
3 could claim computation of wages for
the said period it had to be found in his
favour in the first instance that he had a
right to continue in service till he attained
the age of 60 years. This could only be
determined in appropriate adjudication
proceedings and could not be assumed by
the labour court in exercise of jurisdiction
confirmed by Section 33-C(2) of the Act.

12. Admittedly, the dispute was
pending adjudication before this Court in
writ petition no. 46131 of 1993 filed by
respondent no. 3. Under the interim order
dated 4.5.1995, respondent no. 3 was
reinstated back in service and was
allowed to be continued till he attained
the age of 60 years on 31.1.1996. For the
period he was worked he was entitled to
payment of wages and admittedly the
same has been paid to him by the
petitioners. Dispute before the labour
court/ respondent: no. 2 was in respect of
payment of wages for the period 1.2.1994
to 11.7.1995 during which respondent no.
3 has not actually worked. Whether he
would be entitled for payment of wages of
the said period would depend upon the
adjudication, yet, to be made by this
Court in writ petition no. 46131 of 1993
as to whether he was entitled to continue
in service till he attained the age of 60
years or was liable to superannuated at the
age of 58 years. There being no preexisting right vested in respondent no. 3
or the corresponding obligation upon the
petitioners to make payment of wages for
the disputed period, the application under
Section 33 C (2) filed by respondent no. 3
was not at all maintainable.

13.

Obviously,
the
Presiding
Officer/ respondent no. 2 fell in error in
directing
the
petitioners
to
pay
emoluments to the respondent no. 3 in
proceedings under Section 33-C (2) of the
Act for the period he had not worked
without any pre-determination of the
question that respondent no. 3 was
entitled to continue in service and had a
right to be paid salary.
772 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
14. In view of the above, the
impugned order passed by Labour Court
and consequential notice issued under
Section 33-C (1) are not liable to be
sustained in law and deserves to [be set
aside.

15. As a consequence, the writ
petition
succeeds
and
is
allowed.
Impugned 22.05.2004 passed by Presiding
Officer, Labour Court U.P. Saharanpur
(Annexure -6) and consequential order
dated 22.7.2004 passed by Deputy Labour
Commissioner, U.P. Saharanpur Kshetra,
Saharanpur (Annexure-7) are hereby
quashed.

16. Respondent, no. 3 has already
been paid wages for the period he has
worked under the interim order of this
Court. However payment of wages for
the period 1.2.1994 to 11.7.1995 shall
depend upon, the adjudication to be
made by this Court in Writ Petition No.
46131 of 1993 with regard to the
question as to whether respondent no. 3
was entitled to be superannuated at the
age of 58 years or 60 years and the
consequential order which may be
passed in that regard. Petition allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.08.2007

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 37617 of 2007

Mujahid

...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri Vivek Prakash Mishra
Counsel for the Respondents:
Sri Shahbuddin
S.C.

U.P. Punchayat Raj Act-1947-Section 95
(1)-Power of District Magistrate-removal
of gram Pradhan-petitioner contested
Pradhan election as OBC candidateadmittedly belongs to 'Turk by cast-a
general cast-cast certificate issued by
Tehsildar having no power-fraud vitiate
every
thing-even
if
the
District
Magistrate
has
no
power-order
impugned-not interfered by writ Court.

Held: Para 11

In view of the aforesaid settled legal
position even if it is presumed that the
District
Magistrate
could
not
have
exercised powers under Section 95 (1)
(g) in the facts of the present case, this
Court is not willing to exercise its
jurisdiction under Article 226 of the
Constitution of India inasmuch as setting
aside of the order impugned in the
present writ petition could only result in
perpetuating illegal continuance of the
petitioner as Pradhan against the seat
reserved for Other Backward Classes
although petitioner does not belong to
the said caste.
Case law discussed:
J.T. 2000 (3) 151, 2003 (6) J.T. SC-20

(Delivered by Hon'ble Arun Tandon, J.)

1. The petitioner Mujahid contested
the elections of Pradhan of Gram
Panchayat Hareta Vikas Khand Said
Nagar, District Rampur. It is admitted on
record that the seat of Pradhan of the
village was reserved for Backward Class.
The petitioner who belongs to Turk by
Caste and as such is a member of General
Category produced a caste certificate
from the Tehsildar Sadar, Rampur dated
06.9.1995
which
recorded
that
the
petitioner is to Jhojha by caste and,