# Vice Chancellor, Chandra Shekhar Azad Krishi Evam Prodyogiki Vishwavidayalaya, Kanpur v. Presiding Officer Industrial Tribunal (3) U.P. Kanpur and others

- **Citation:** (2006) 2 ILRA 727
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-03-07
- **Case number:** Civil Misc. Writ Petition No. 19512 of 1999
- **Bench:** Shishir Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vice-chancellor-chandra-shekhar-azad-krishi-evam-prodyogiki-vishwavidayalaya-40646
- **Pages:** 12

## Headnote

Constitution
of
India
Act
226Regularisation- Workman engaged on
01.07.80 as Lab Assistant/Attendantworking
continuously-Labour
Court
recorded specific finding juniors to the
workman have been already regularized-
denial of regularization amounts unfair
labour practice finding of facts recorded
by labour court can not be inter fund by
writ court- petition dismissed.

Held-Pra 13 and 15 to be printer

I have heard the learned counsel for the
petitioner and the 'Standing Counsel and
have also perused the record. From the
record it is clear that admittedly the
respondent workman was first time
engaged in the year 1980and is working
continuously. There is no denial by the
employer to this effect. A finding to this
effect has also been recorded by the
Labour
Courtthat
junior
persons
to
respondent
no.2
have
been
made
regular. The Labour Court has also
recorded a finding to this effect that
some daily wagers had approached the
High Court and the High Court has
directed to consider their claim and
various persons on the basis of the order
passed by the High Court have been
regularized. A finding to this effect has
also been recorded by the Labour Court
that from July 1980 to August 1983
respondent no.2 has worked on the post
of Lab. Assistant I Attendant and the
post of Lab Assistant is in the nature of
permanent and from the record it also
appears that there is not break in the
service of respondent no.2. The Court
has a perused the reference. From the
reference it is clear that the Labour
728 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Court has answered the reference, which
was referred to the Labour Court. It is
now well settled that in view of the
judgment of the Apex Court reported
in2005 SCC (L&S) 154, Mahendra Lal
Jain Vs. Indore DevelopmentAuthority
that the Labour Court can only decide
the dispute referred to it and the Labour
Court has got no jurisdiction to go
beyond it. In such a way the Labour
Court has decided the dispute according
to the reference made before him. The
Labour Court is bound to decide the said
issue.

After perusal of the judgment passed by
the Labour Court it is clear that the
Labour Court has considered each and
every aspect and has come to the
conclusion that in spite of the fact that
respondent workmen is working from
1980-and is being treated as daily
wager, this clearly amount to unfair
labour practice. The finding recorded by
the Labour Court is a finding of fact in
view of the judgment reported in 2005
(3)
SCC
193,
Management
of
Madurakattam' Cooperative Sugar Mills
ltd. Vs. S. Vishwanathan, the Apex Court
has clearly held that there is very little
scope of interference in the finding
recorded by the Labour Court. The
finding recorded by the Labour Court is a
finding of fact and unless and until it is
proved beyond doubt that the Labour
Court has exceeded its jurisdiction and
the finding recorded by the Labour Court
is against the evidence on record and is
perverse then the High Court while
exercising the jurisdiction under Article
226 of the Constitution of India has the
jurisdiction to Interfere otherwise there
is very little scope for interference.
Case Law discussed:
2003 (2) ESC-1007
1997(4) SEC-88
2005(1) SEC-639
AIR 1987 SC-117
1978 Lab 1 cases 437
1996 L82 IC 967
LLR 1993-45
2005 SEC (L & 5) 154
IT 2006(2) SC. I, 2005(3) SEC-193

## Text

2 All] V.C., C.S.Azad Krishi Vishvidhyalaya Kanpur V. Presiding Officer and others
727

6. This is not the ground of the
present application. The case of Radhey
Shyam and another Vs. State of U.P.
(Supra) relates about the power of the
Sessions Judge. This is also not the
ground for transfer of the present case. So
far as the case of Punjab Singh (Supra)
is concerned the evidence of six witnesses
was reported by Sri G.S. Chandel when
he ceased to have jurisdiction over that
court. The Sessions Judge rejected the
application on the ground of heavy
pendency. This can not be a ground for
rejecting the Transfer application ----as
evidence
in
the
case
has
already
concluded and there was nothing much to
be done.

7.

Consequently,
the
transfer
application is allowed and it is hereby
directed that the Session Trial No. 198/02,
State
Vs.
Azeem
under
Section
302/307/504 IPC and Section 7 of
Criminal Law Amendment Act, Police
Station Rosa, District Shahjahanpur, be
transferred to the court of Additional
Sessions Judge where Sri G.S. Chandel is
presiding who shall conclude the trial and
decide it according to law.
Application
Allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.03.2006

BEFORE
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No. 19512 of 1999
Vice Chancellor, Chandra Shekhar Azad
Krishi
Evam
Prodyogiki
Vishwavidayalaya, Kanpur
...Petitioner
Versus
Presiding Officer Industrial Tribunal (3)
U.P. Kanpur and others ...Respondent

Counsel for the Petitioner:
Sri Dr. R.G. Padia
Sri Prakash Padia

Counsel for the Respondents:
Sri Bhupendra Nath Singh
Sri Pradeep Chauhan
S.C.

Constitution
of
India
Act
226Regularisation- Workman engaged on
01.07.80 as Lab Assistant/Attendantworking
continuously-Labour
Court
recorded specific finding juniors to the
workman have been already regularized-
denial of regularization amounts unfair
labour practice finding of facts recorded
by labour court can not be inter fund by
writ court- petition dismissed.

Held-Pra 13 and 15 to be printer

I have heard the learned counsel for the
petitioner and the 'Standing Counsel and
have also perused the record. From the
record it is clear that admittedly the
respondent workman was first time
engaged in the year 1980and is working
continuously. There is no denial by the
employer to this effect. A finding to this
effect has also been recorded by the
Labour
Courtthat
junior
persons
to
respondent
no.2
have
been
made
regular. The Labour Court has also
recorded a finding to this effect that
some daily wagers had approached the
High Court and the High Court has
directed to consider their claim and
various persons on the basis of the order
passed by the High Court have been
regularized. A finding to this effect has
also been recorded by the Labour Court
that from July 1980 to August 1983
respondent no.2 has worked on the post
of Lab. Assistant I Attendant and the
post of Lab Assistant is in the nature of
permanent and from the record it also
appears that there is not break in the
service of respondent no.2. The Court
has a perused the reference. From the
reference it is clear that the Labour
728 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Court has answered the reference, which
was referred to the Labour Court. It is
now well settled that in view of the
judgment of the Apex Court reported
in2005 SCC (L&S) 154, Mahendra Lal
Jain Vs. Indore DevelopmentAuthority
that the Labour Court can only decide
the dispute referred to it and the Labour
Court has got no jurisdiction to go
beyond it. In such a way the Labour
Court has decided the dispute according
to the reference made before him. The
Labour Court is bound to decide the said
issue.

After perusal of the judgment passed by
the Labour Court it is clear that the
Labour Court has considered each and
every aspect and has come to the
conclusion that in spite of the fact that
respondent workmen is working from
1980-and is being treated as daily
wager, this clearly amount to unfair
labour practice. The finding recorded by
the Labour Court is a finding of fact in
view of the judgment reported in 2005
(3)
SCC
193,
Management
of
Madurakattam' Cooperative Sugar Mills
ltd. Vs. S. Vishwanathan, the Apex Court
has clearly held that there is very little
scope of interference in the finding
recorded by the Labour Court. The
finding recorded by the Labour Court is a
finding of fact and unless and until it is
proved beyond doubt that the Labour
Court has exceeded its jurisdiction and
the finding recorded by the Labour Court
is against the evidence on record and is
perverse then the High Court while
exercising the jurisdiction under Article
226 of the Constitution of India has the
jurisdiction to Interfere otherwise there
is very little scope for interference.
Case Law discussed:
2003 (2) ESC-1007
1997(4) SEC-88
2005(1) SEC-639
AIR 1987 SC-117
1978 Lab 1 cases 437
1996 L82 IC 967
LLR 1993-45
2005 SEC (L & 5) 154
IT 2006(2) SC. I, 2005(3) SEC-193
(Delivered by Hon'ble Shishir Kumar, J.)

1. This writ petition has been filed
for quashing the award-dated 30.5.1998
passed by respondent no. 1 published on
25.2.1999,
Annexure-6
to
the
writ
petition.

2. The facts arising out of the writ
petition is that the petitioner IS Chandra
Shekhar Azad University of Agriculture
and Technology, Kanpur (hereinafter
referred to as the University) is State
under Article 12 of the Constitution of
India. Its basic object is to undertake
various training and project for the
betterment of the agriculture. It employs
persons from time to time in respect of
particular project. It is further respectfully
submitted that the University is not an
industry as defined in U.P. Industrial
Disputes Act. Respondent no.2 was
appointed on daily wage basis by the
University on 1.7.1980 for a particular
period and was working even today on
daily wage basis. From 1.9.1980 to
6.8.1993 respondent no.2 worked as
Lab.Assistant/attendant on daily wage
basis which is a class-IV post. When the
services of respondent no.2 were not
regularized, he raised a dispute. The same
was referred by the State Government
before respondent no. 1, which was
registered as Claim Petition No.30 of
1994 for a relief to declare him as a
permanent and regular clerk of the
University. A written statement was filed
on behalf of the Administrative Officer of
the University and a reply to that effect
was also filed by respondent no.2 but the
Labour court has illegally given an award
dated 30.5.1998 with a direction that
respondent no.2 will be treated to be
regular from the date of award.
2 All] V.C., C.S.Azad Krishi Vishvidhyalaya Kanpur V. Presiding Officer and others
729
3. It has been submitted on behalf of
the petitioner that respondent no. 1 has no
power or jurisdiction to pass an award for
the purpose of regularization of services
of an employee. The Labour Court has
exceeded its jurisdiction in terms of the
reference. The Labour Court has wrongly
held that the juniors have been regularized
and the allegations to this effect made in
the impugned order are absolutely vague
as in the matter of regularization several
factors are to be considered, as Articles 14
and 16 cannot be said to be applicable. It
has clearly been stated in the written
statement filed on behalf of the petitioner
that there is no industrial dispute and the
reference has been made without applying
its mind and the reference is incompetent
and is not maintainable for want of
industrial dispute. It has also been stated
that the
employees
are temporarily
engaged on the basis of daily wage for
specific job of casual nature which cannot
be said to be regular work, as such
respondent no. 1 has got no jurisdiction to
direct the petitioner to pass an order of
regularization. The reliance has been
placed upon a judgment reported in 2003
(2) ESC 1007, State of V.P. Vs.
Presidin!!
Officer~
Labour
Court
Meerut and has placed reliance on para
25 of the said judgment which is
reproduced below:

"25. In view of the above, the law of
regularizations be summarized that the
appointment should he made at initial
stage in accordance with rules. Incumbent
must possess the requisite qualification
for the post on the date of appointment
and if appointment had been made on
temporary ad hoc basis, the workman
should be permitted to continue for long
rather the vacancies should be filled up
on permanent basis in accordance with
law. If the statutory provision or executive
instruction provides for regularization
after completing a particular period only
then regularization is permissible. In
special circumstances, Court may give
direction to consider the case for
regularization provided cOl1linuation on
ad hoc basis is so long that it amounts to
arbitrariness and provisions of Article J 4
are attracted. There must be sanctioned
post against which regularization is
sought. At the same time policy of the
state
enforcing
the
reservation
for
particular classes like S.C.,S. T., D.B.C.
etc. and further for women, handicapped
and ex-service men cannot be ignored. "

4. Further reliance has been placed
upon (1997) 4 SCC 88, State of V.P. and
others Vs. Aiay Kumar and has
submitted that the Apex Court has clearly
held t t High Court has no jurisdiction to
hold that a daily wager isentitled for
regularization. There must exist a post
and either administrative instructions or
statutory rules must he in operation to
appoint a person to that post. Daily wage
appointment will obviously be in relation
to contingent establishment in which there
cannot exist any post and it continues so
long as the work exists. Further reliance
has been placed by the counsel for the
petitioner on (2005) I see 639, Mahendra
Lal
Jain and others Vs. Indore
Development Authority and others and
has
placed
reliance
upon
paras
18,19,29,33,34
and
35
which
are
reproduced below:

"18. The posts 0 Sub-Engineers in
which the appellants were appointed, it is
nobody's case, were sanctioned ones.
Concededly the respondent Authority
before making any appointment neither
intimated the employment exchange about
730 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
the existing vacancies, if any, nor issued
any advertisement in relation thereto.
Indisputably, the conditions precedent for
appointment of the officers and servants
of the Authority. as contained in the
service Rules had not been complied with.
The appointments of the appellants were,
therefore, void ab initio being opposed to
public policy as. also violative of Articles
14 and 16 of the Constitution.

19. The question, therefore, which
arises for consideration is as to whether
they could lay a valid claim for
regularization of their services. The
answer thereto must he rendered in the
negative.
Regularization
cannot
be
claimed as a matter or right. An illegal
appointment cannot be legalized by taking
recourse to regularization. What can be
regularized is an irregularity and not an
illegality.
The
constitutional
scheme
which the country has adopted does not
contemplate any hack-door appointment.
A State he.fhre offering public service to a
person must copy with the constitutional
requirements of Articles 14 and 16 of the
Constitution. A II actions of the State must
conform
to
the
constitutional
requirements. A daily wager in the
absence of a statutory provision in this
behalf
would
not
be
entitled
to
regularization.(See State of U.P. v. Ajay
Kumar and Jawahar lal Nehru Krishi
Vishwa Vidyalaya V. Bal Kishan Soni).

 29. I may be true that the
appellants had been later on put on a
monthly salary but there is nothing on
record to how as to how the same was
done. They might have been subjected to
the provisions of the employees' provident
fund and might have been granted the
benefit
of
leave
or
given
some
employment code and their names might
have found place in the seniority list
amongst others, but thereby they cannot
be said to have been given a permanent
ticket. The so-called seniority list which is
contained inAnnexureP-27, whereupon
strong reliance has been placed by Dr.
Dhavan merely itself goes to show that it
was prepared in respect office muster
employees. The said seniority list was not
prepared in terms of the classification of
employees within the meaning of the 1961
Actand the Rules framed thereunder but
was based on the date of joining probably
for the purpose of maintenance of
records. The 1973 Actor the Rules framed
thereunder
do
not
provide
for
appointments on ad hoc basis or on daily
wages. The 1961 Act itself shows that the
employees are to be classified in six
categories, namely permanent, permanent
seasonal.
Probationers,
badlies,
apprentices
and
temporary.
The
recruitments of the appellants do not fall
in any of the said categories. With a view
to become eligible to be considered as a
permanent employee or a temporary
employee, one must be appointed in terms
thereof Permanent employee has been
divided in two categories (i) who had
been appointed against a clear vacancy in
one or. more posts as probationers and
otherwise; and (ii) whose name had been
registered at muster roll and who has
been
given
a
ticket
of
permanent
employee.
A
"ticket
of
permanent
employee" was, thus, required to be
issued in terms of Order 3 of the Standard
Standing Orders. Grant of such ticket was
imperative before permanency could be s
claimed.
The
appellants
have
not
produced any such ticket.

33. For the purpose of this mater,
we would proceed on the basis that the
1961 Act is a special statute vis-a-vis the
2 All] V.C., C.S.Azad Krishi Vishvidhyalaya Kanpur V. Presiding Officer and others
731
1973
Act
and
the
Rules
framed
thereunder. But in the absence of any
conflict in the provisions of the said Act,
the conditions of service including those
relating to recruitment as provided for in
the 1973 Act and 1987 Rules would apply.
If
by
reasons
of
the
latter,
the
appointment is invalid, the same cannot
be validated by taking recourse to
regularization.
For
the
purpose
of
regularization which would confer on the
employee concerned a permanent status,
there must exist a post. However, we may
hasten toad that regularization itself does
not imply permanency. We have use the
term keeping in view the provisions of the
1963 Rules.

34.
We
have
noticed
the
provisions of the Act and the Rules. No
case was made out by the appellants
herein in their statements of claims that
they became permanent employees in
terms thereof There is also nothing on
record to show that such a claim was put
forward even in the demand raising the
industrial
dispute.
Presumably,
the
appellants were aware of the statutory
limitations in this hehalf Furthermore, the
Labour
court
having
derived
its
jurisdiction from the reference made by
the State Government, it was found to act
within the four corners thereof It could
not enlarge the scope of the reference nor
could deviate therefrom. A demand which
was not raised at the time of raising the
dispute could not have been gone into by
the Labour court being not the subject
matter thereof.

35. The questions which have
been raised before us by Dr.Dhavan had
not been raised before the Lahour Court.
The Labour Court in the absence of any
pleadings or any proof as regards
application of the /96/ Act and the 1963
Rules had proceeded on the basis that
they would become permanent employees
in terms of Orders 2 (ii) and 2 (vi) of the
annexure
appended
thereto.
The
appellants did not adduce any evidence as
re15ard\' nature of their employment or
the classification under which they were
appointed. They have also not been able
to show that they had been issued any
permanent ticket. Dr. Dhavan is not
correct in his submission that a separate
ticket need /lot he issued and what was
necessary was merely to show that the
appellants had been recognized by the
State as its employees having been
provided with employment code. We have
seen that their names had been appearing
in the muster rolls maintained by the
respondent. The scheme of the employees'
provident fund or the leave rules would
not alter the nature and character of their
appointments.
The
nature
of
their
employment continues save and except a
case where a statute interdicts which in
turn would be subject to the constitution
imitations. For the purpose of obtaining a
permanent
status,
constitutional
and
statutory conditions precedent therefore
must be fulfilled.

5. In such a situation the counsel for
the petitioner submits that in view of the
aforesaid fact, the award of the Labour
Court as it relates to the directions issued
ill the award regarding regularization of
the services of the respondent no.2 is
liable to be set a side

6. Further it has been submitted on
behalf of the petitioner that the Labour
Court ought to have dismissed the case of
respondent no.2 on the ground of delay
and
has
placed
reliance
upon
the
judgment of the Apex Court reported in
732 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Judgment Today 2006 Vol. (1) SC Page
4].

7. On the other hand Sri B.N. Singh
who appears for the respondents has
submitted that admittedly respondent no.2
was appointed in the year 1980 and he is
being treated as daily wager though
various persons junior to the respondent
no.2 have been regularized as such the
Labour Court has passed an award
directing the petitioner to regularize the
services of the respondent workman from
the date of award. Further submission has
been made on behalf of the respondent
that from the perusal of the reference by
the State Government, it is clear that issue
involved in the present case was that
whether the action of the petitioner
regarding non-declaration of workman as
regular is an illegal and unreasonable and
if so, what relief he is entitled and from
what date he is entitled to be regularized.
The reference-dated 23.9.1994 is being
reproduced below:

"D;k lsok;kstdksa }kjk vius deZpkjh dY;k.k 'kju
iq= Lo0 f'konRr in fyfid dks LFkk;h Jfed ?kksf"kr u
fd;k tkuk vuqfpr ,oa voS/kkfud gS? ;fn gka rks
lEcfU/kr deZpkjh dk D;k ykHk@vuqrks"k 1⁄4fjfQy1⁄2 ikus dk
vf/kdkjh gS fdl frfFk ,oa vU; fdl fooj.k lfgr ? "

8. It has also been argued on behalf
of the respondent that in view of the
provisions of the Act, the action of the
petitioner amounts to unfair labour
practice.
In
such
a
situation
the
respondents submit that the writ petition
is liable to be dismissed. Reliance has
been placed upon a judgment reported in
AIR 1987 SC 117, Chandravalkar Vs.
Ashalata
P.S.
Gauram
and
has
submitted that the Apex: Court has clearly
held that if there is a finding of fact
recorded by the Court. there should not be
any interference by the Highcourt. Further
reliance has been placed upon 1978
Labour and Industrial Cases 437 M/S
Swadeshi Cotton Mills Ltd. Vs. Labour
Court and has placed reliance upon paras
11,15 and 16 of the said judgment which
are reproduced below:

"11.So far as the finding recorded
by the Labour Court that the work of
operating
comptometer
machine
in
petitioner's establishment is different from
that of a clerk and that a clerk cannot
fully operate such a machine unless he
undergoes training for it is concerned, it
is a finding of fact recorded on the basis
of evidence produced in the case. The
petitioners
cannot
question
the
correctness of this finding in a petition
under Article 226 of the Constitution. On
this finding, no exception can be taken to
the conclusion of the Labour Court that
the clerks who operate comptometer
machine
should
he
designated
as
camptometer operators-cum-clerks and
should be paid salary in a pay scale
higher than that is applicable to clerks.

15. Art. 226 of the Constitution as it
stands after amendment made by the
Constitution 42 Amendment Act 1976,
empowers the High Court to issue writs
for the following purposes only and for no
other purpose:

(a) For the enforcement of any of the
right conferred by the provisions of
part III; or
(b) For the redress of any injury of a
substantial nature by reason of the
contravention of any other provision
of the Constitution or any provision of
any enactment or ordinance or any
2 All] V.C., C.S.Azad Krishi Vishvidhyalaya Kanpur V. Presiding Officer and others
733
order, rule, regulation, bye-law or
other instrument made thereunder; or
(c) For the redress of any injury by
reason of any illegality in any
proceedings
by
or
before
any
authority
under
any
provision
referred to in sub-cl (b) where such
illegality has resulted in substantial
failure of justice. It is not the case of
the petitioner that the impugned
award has the effect of contravening
rights conferred by Part III of the
Constitution. He has also not been
able to show that while making the
award.
The
labour
court
has
contravened ay provision of the
Constitution or that of any enactment
or ordinance, order, rule, regulation,
bye-law or other instrument made
thereunder. The case therefore does
not fall either under cl. (a) or (b) of
Art. 226 mentioned above. If at al!,
the petitioner's grievance relates to
some illegality alleged to have been
committed by the Labour court· as
envisaged by cl. (c) mentioned above.
Redress for an injury as contemplated
by cl. (c) mentioned above, can be
granted in a petition under Art. 226 of
the Constitution only where the
illegality complained of has resulted
in substantial failure of justice. Even
assuming that as alleged by the
petitioner the Labour Court was not
justified in fixing the wages of the
workmen in the pay scale of Rs.130/-
to 352/- merely on the basis of the
award given by it in 1ndustrial
Dispute Case No. 72 of 1971, in as
much as the industry run by British
India Corporation in that case was
not comparable to the Textile Mill run
by the petitioner, and also because
that award has since been set aside by
the High court by its judgment D/- 2810-1977 in writ petition no. 6710 of
1972(AIl), it will not be possible for
this court to interfere with the
impugned award unless it comes to
the conclusion that there has been
substantial
failure
of
justice.
Accordingly, we proceed to examine
as to whether or not the award in this
case has resulted in a substantial
failure of justice.

16. A perusal of the impugned
award shows that the clerical staff, in
petitioner's establishment was drawing
salary in the pay scale of Rs. 105/- to
313.75. As already indicated the Tribunal
has found that the workman in question
who
were
required
to
operate
comptometer machines were to do work
which was different from clerical work
and that such workmen deserved a salary
higher than that of a clerk. This is a
finding of fact which cannot be interfered
with in a petition under Art.226 of the
constitution. Accordingly, the salary of
the concerned workmen had to be fixed in
a scale higher than the pay scale of Rs.1
05-313.75.
The
report
of
the
Commissioner clearly shows that in other
textile mills at Kanpur (it cannot he
denied that those textile mills were
engaged in an industry similar to that of
the petitioner) pay scales applicable to
similar workmen ranged between rs.6-/-
to Rupees 268 and Rupees /50/- to Rupees
400/-. Accordingly, the salary of the
workmen
working
on
comptometer
machines in petitioners establishment had
to be fixed somewhere between the pay
scale ranging between Rs.1 05/- to 31.
3.75, and Rs.150/- to Rupees 400/-
Considering
that
in
the
case
of
petitioner's establishment, the workmen in
question had to operate comptometer
machines for about six hours, out of total
734 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
of eight hours per day, it cannot be said
that in fixing the salary of the concerned
workmen in the pay scale of Rs.130/-to
352 which lies almost mid-way in the pay
scales of Rs.I05/- to Rs.313. 75 and
Rs.150/- to Rs.400/- has resulted in any
substantial failure of justice. It is
therefore, not necessary for us to go into
the question whether or not the tribunal
has committed any illegality in relying
upon the award given by the Labour
Court in Industrial Dispute A case No.72
of 1971 specially when it has since been
set aside,. In the view which we have
taken, the fact that the award made by the
Labour Court Kanpur in Industrial
Dispute case No. 72 of/971 has been set
aside by the High Court is not material
and the application for amendment filed
by the petitioner on 21.11.77 deserves to
be rejected.

9. Reliance has also been placed
upon the judgment or the Apex Court in
1996 Labor and Industrial Cases 967,
Chief
Conservator
of
Forest
Vs.
Jagannath Kondhare and has placed
reliance upon paras 16 to 19 of the said
judgment which are reproduced below:

"16 The aforesaid heing the crux
of the scheme to implement which some of
the respondents were employed, we are of
the view that the same cannot be regarded
as a part inalienable or inescapable
function of the state f(H the reason that
the scheme was intended even to fulfill the
recreational and educational aspirations
of the people. We are in no doubt that
such a work could well be undertaken by
an agency which is not required to be
even an instrumentality of the State.
17. This being the position, we hold
that the aforesaid scheme undertaken by
the
Forest
Department
cannot
be
regarded as a part of sovereign function
of the State, and so, it was open to the
respondents to invoke the provisions of
the state Act. We would say the same qua
the social foresting work undertaken in
Ahmednagar
district.
There
was,
therefore, no threshold bar in knocking
the door of the Industrial Courts by the
respondents making a grievance about
adoption of unfair labour practice by the
appellants.
18. This takes us to the second
main question as to whether on the facts
of the present case would it be held that
the appellants were guilty of adopting
unfair labour practice. As already pointed
out, the respondents alleged the aforesaid
act by relying on what has been stated
under item6 of Schedule IV of the State
Act which reads as below:

"To employ employee as "badlis
", casuals or temporaries and to continue
them as such for years, with the object of
depriving
them
of
the
status
and
privileges of permanent employees. "

I9.
The Industrial court has
found the appellants as having taken
recourse to unfair labour practice in the
present cases because the respondentsworkmen who had approached the Court
had admittedly been in the employment of
the State for 5 to 6 years and in each year
had worked for period ranging from 100
to 330 days. Ms. jaising draws our
attention in this context to the statement
filed by the appellants themselves before
the Industrial Court, a copy of which is at
pages 75 to 76 of CA. No. 4375/90. A
perusal of the same shows that some of
the respondents had worked for a few
days only in 1977 and 1978, though
subsequently they themselves had worked
for longer period, which in case of Gitaji
2 All] V.C., C.S.Azad Krishi Vishvidhyalaya Kanpur V. Presiding Officer and others
735
Baban Kadam, whose name is at serial
No.4 went up to 322 in 1982, though in
1978 he had worked for 4-1/2 days.
(Similar is the position qua some other
respondents.)

10. Further reliance has been placed
on a division bench judgment of Gujrat
High Court reported in LLR 1993 Page
45, Kalol Munisipalitv and another Vs.
Shantabem Kalidas and others and has
placed reliance upon paras 12 and 13 of
the
said
judgment.
The
same
are
reproduced below:

"12. It is contended that the
Tribunal ought not to have given
direction, implementation of' which would
require sanction of another authority,
namely, the State Government of Gujarat.
The argument is based on assumption that
the direction given by the Tribunal cannot
he implemented without the sanction of
the State Government. There is no
provision in the Municipal Act to which
our attention is drawn by the learned
Counsel for the petitioners that the award
passed by the Labour Court or Industrial
Tribunal cannot be implemented by the
Municipality without the sanction of the
State
Government.
However,
it
is
contended that if the Municipality wished
to change its permanent set up it would be
required to amend the rules framed under
Section 271 (d) of the Municipal Act.
Proviso (a) to Section 271 of the
Municipal Act inter alia provides that no
rule or alteration or rescission of a rule
made under this section shall have effect
unless and until it has been approved by
the State Government. Therefore, it is
contended that unless the rules are
altered and the same is approved by the
State
Government,
the
Municipality
cannot treat the respondent-workmen as
permanent employees.

13. As indicated hereinabove, the
direction that may be given by the Labour
Court or the Tribunal while deciding an
industrial
dispute
may
enable
the
Municipality to amend the rules framed
by it under Section 271 of the Municipal
Act. But if there is no provision in the
rules or that the permanent set up fixed by
the Municipality is already determined
and the same is limited it cannot be set up
as a defence by the Municipality that the
Labour Court or the Industrial Tribunal
cannot give direction which is not ill
conformity with the rules framed by it.
The rules framed by the Municipality are
unilaterally framed without involving the
workmen employed by it. Even the
procedure for framing the rules laid down
under, the Act, no where provides that the
employees or representatives of the
employees engaged by the Municipality
shall be consulted at any stage before the
rules are framed and got approved by the
State
Government.
Thus
unilateral
determination of the number of staff by
the Municipality cannot bind the workmen
engaged by it. Such unilateral decision
about the number of staff cannot truncate
the powers of the Labour Court or that of
the Industrial Tribunal to adjudicate the
dispute referred to it in accordance with
the provisions of the Act. In fact in many
cases the root of the dispute would be the
faulty determination of the number of
permanent staff of the Municipality. If the
argument is accepted it would amount to
saying that unless the Municipality alters
or amends its rules and increase the
number of permanent staff and gets the
approval of the State Government no
workmen can be ordered to be made
permanent or can be ordered to be given
736 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
permanency benefits by the Labour Court
or the Industrial Tribunal as the case may
be. If the argument is accepted if would
lead
to
unreasonable
and
absurd
consequences. It would amount to saying
that no dispute is raised by workmen
engaged by a Municipality in respect of
which there is no provision in the rules
framed by the Municipality. Moreover,
even if such dispute is raised the Labour
Court or Industrial Tribunal will have no
power to give any direction to a
Municipality which is not in conformity
with the provisions of the rules framed by
the Municipality. In short if 'would
amount to saying that the unilateral
decisions that may be taken by the
Municipality while framing its rules
would determine the scope of powers of
the Labour Courts or Industrial tribunals.

Obviously, such intention could never he
imputed to the legislature when it enacted
the
provisions
ojSection271
of
the
Municipal Act and the relevant provisions
of the J.D. act.

11. Reliance has also been placed
upon a judgment of this Court reported
in1997 (75) FLR Page 65 and has
submitted that this Court has held that as
the reference was made for deciding the
scale and question of creation of post also
impliedly referred, as such the same is
ancillary to the reference and the writ
petition filed by the employer was
dismissed.

12. In view of the aforesaid fact the
counsel for the respondents submitted that
the Labour Court has no option except to
decide the dispute in accordance with the
reference made before him and the
Labour Court has on the basis of the
aforesaid
reference
come
to
the
conclusion
that
the
workman
is
admittedly working in the petitioner's
organization continuously from 1.9.1990
to 6.8.1993 and he was also paid bonus
for the year 1993-94.
A finding of fact has also been recorded
that from the perusal of the muster roll it
is also clear that the workman has
completed above 240 days in one calendar
year. The finding to this effect has also
been recorded that junior to the workman
respondent no.2 namely, Bachchu Singh
and Anil Kumar Mishra have been
confirmed. The story set up by the
employer has also been disbelieved by the
Labour Court that various persons senior
to the respondent no.2 has not' been
regularized. A finding of tact has also
been recorded by the Labour Court that
the workman is entitled to get the salary
according to his work on the post on
which he is working and as such he is also
entitled for regularization.

13. I have heard the learned counsel
for the petitioner and the 'Standing
Counsel and have also perused the record.
From the record it is clear that admittedly
the respondent workman was first time
engaged in the year 1980and is working
continuously. There is no denial by the
employer to this effect. A finding to this
effect has also been recorded by the
Labour Courtthat junior persons to
respondent no.2 have been made regular.
The Labour Court has also recorded a
finding to this effect that some daily
wagers had approached the High Court
and th0igh Court has directed to consider
their claim and various persons on the
basis of the order passed by the High
Court have been regularized. A finding to
this effect has also been recorded by the
Labour Court that from July 1980 to
August 1983 respondent no.2 has worked
2 All] V.C., C.S.Azad Krishi Vishvidhyalaya Kanpur V. Presiding Officer and others
737
on the post of Lab. Assistant I Attendant
and the post of Lab Assistant is in the
nature of permanent and from the record
it also appears that there is not break in
the service of respondent no.2. The Court
has a perused the reference. From the
reference it is clear that the Labour Court
has answered the reference, which was
referred to the Labour Court. It is now
well settled that in view of the judgment
of the Apex Court reported in2005 SCC
(L&S) 154, Mahendra Lal Jain Vs.
Indore DevelopmentAuthority that the
Labour Court can only decide the dispute
referred to it and the Labour Court has got
no jurisdiction to go beyond it. In such a
way the Labour Court has decided the
dispute according to the reference made
before him. The Labour Court is bound to
decide the said issue.

14. In the case of The Workmen of
Bhurkunda Colliery of MIS Central
Coalfields Ltd. V. The Mana2ement of
Bhurkunda Collie" of MIS Central
Coalfields Ltd. reported in JT 2006 (2)
SC 1 the Apex Court has held that if the
Labour court has passed an ord34r on the
basis of evidence on record regarding
continuous service and has directed for
regularization, there is no necessity for
interference. In paragraphs 21 and 22 the
Apex Court has observed as under:

"21. The industrial jurisprudence,
likewise, seeks to evolve a rational
synthesis between the conflicting scheme
of the employers and employees. In
finding out solutions to industrial disputes
great care is always taken, as it ought to
be, to see that the settlement of industrial
disputes does not go against the interests
of the community as a whole. In the
decision of major industrial disputes,
three facts are thus involved. The interests
of the employees which have received
constitutional
guarantees
under
the
Directive Principles, the interests of the
employers
which
have
received
a
guarantee under Article /9 and other
Articles of Part III, and the interests of
the community at large which are so
important in a Welfare State. It is on these
lines that industrial jurisprudence has
developed during the last few decades in
our country.

22.When we modulate our thinking
process and attitude according to the
underlying philosophy of industrial and
labour jurisprudence and apply the laws
meant for industrial peace and harmony,
then the conclusion becomes irresistible
that the employees who have been
working since 1973-74 are required to be
regularized as expeditiously as possible. "

15. After perusal of the judgment
passed by the Labour Court it is clear that
the Labour Court has considered each and
every aspect and has come to the
conclusion that in spite of the fact that
respondent workmen is working from
1980-and is being treated as daily wager,
this clearly amount to unfair labour
practice. The finding recorded by the
Labour Court is a finding of fact in view
of the judgment reported in 2005 (3) SCC
193, Management of Madurakattam'
Cooperative Sugar Mills ltd. Vs. S.
Vishwanathan, the Apex Court has
clearly held that there is very little scope
of interference in the finding recorded by
the Labour Court. The finding recorded
by the Labour Court is a finding of fact
and unless and until it is proved beyond
doubt that the Labour Court has exceeded
its jurisdiction and the finding recorded
by the Labour Court is against the
evidence on record and is perverse then
738 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
the High Court while exercising the
jurisdiction ~ under Article 226 of the
Constitution of India has the jurisdiction
to Interfere otherwise there is very little
scope for interference.

In view of the aforesaid fact, I find
no merit in the writ petition and the writ
petition is hereby dismissed. There shall
be no order as to costs. Petition
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.07.2005

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Misc. Writ Petition No. 50577 of 2005

Chokhey Lal

...Petitioner
Versus
Board of Revenue, U.P. Allahabad and
others

...Respondents

Counsel for the Petitioner:
Sri Harish Chandra Singh

Counsel for the Respondents:
Sri V.K. Singh
S.C.

U.P.Z.A. & L.R. Act-Section 122-B(4-F)-
Petitioner being to Dhobi (Washer man)
by caste-seeking benefit of the provision
u/s 122-B (4-F) continuous possession
over the plot in questionr-none of the
courts below recorded findings regarding
agricultural labourer-remand order by
Board of Revenue-held-proper.

Held: Para 3

The order of remand was rightly passed
in
accordance
with
law.
Now
the
petitioner will get full opportunity to
establish that he is entitled to get
benefit of Section 122-B(4-F) of the
U.P.Z.A. & L.R. Act.
Case law discussed:
2003 (94) RD-538

(Delivered by Hon'ble S.N. Srivastava, J.)

1. Heard learned counsel for the
petitioner and learned Standing Counsel.

Petitioner claims benefit of Section
122-B (4-F) of the U.P.Z.A. & L.R. Act.

2. None of the authorities below
recorded finding whether petitioner is an
agricultural labourer. The Board of
Revenue after considering the entire
material on record remanded matter to the
Trial
court
to
determine
whether
petitioner is an agricultural labourer as
defined under Section 122-B(4-F) of the
U.P.Z.A. & L.R. Act.

3. The order of remand was rightly
passed in accordance with law. Now the
petitioner will get full opportunity to
establish that he is entitled to get benefit
of Section 122-B(4-F) of the U.P.Z.A. &
L.R. Act.

4. The case law cited by the learned
counsel for the petitioner reported in 2003
(94) R.D. 538 Manorey @ Manohar Vs.
Board of Revenue and others also
supports the order of the Board of
Revenue. This judgment also makes it
clear that the relief could only be granted
to a person, if it is established that he
belongs to Scheduled Caste and is an
agricultural labourer.

5. There was no finding of the
authorities below that petitioner is an
agricultural labourer. The report of the
Lekhpal too states that petitioner belongs
to Dhobi Caste, but this report does not