# Vijay Shankar Tripathi v. State of U.P. & Ors

- **Citation:** (2021) 6 ILRA 601
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-02-13
- **Case number:** Writ-A No. 38695 of 2015
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijay-shankar-tripathi-v-state-of-u-p-ors-47135
- **Pages:** 20

## Headnote

A. Labour Law - Pension - Uttar Pradesh
Industrial Disputes Act, 1947 - Section 4F, 4-K, 6-N, 6-P - Statutory rules of
statutory bodies bind both the statutory
body and the members of the general
public, including their employees. But in
the present case, rights of the petitioner
flow from a concluded and final award of
the
Labour
Court
passed
in
an
adjudication case between the petitioner
and the predecessor of the Company. The
award required the petitioner to be reinstated
on the old terms and conditions of his service,
granting him the benefit of continuity in service.
He was also required to be paid back-wages,
albeit calculated on daily basis. (Para 40)
602 INDIAN LAW REPORTS ALLAHABAD SERIES
The petitioner's appointment by the Company is
no fresh appointment under them of any kind. It
is adjustment of the petitioner's rights in their
establishment as an employee of the erstwhile
KESA, that he has won on adjudication in an
industrial dispute. Therefore, the petitioner's
appointment in the Company's establishment is
no more than an adjustment made by dint of
the Labour Court award, based on the long
service rendered by the petitioner with the
KESA, found to be illegally terminated, as
modified by the settlement agreement dated
07.11.2001. (Para 45)

B. Petitioner has right to receive pension
and gratuity in terms of settlement
agreement/letter of absorption - A perusal
of the letter of appointment clearly traces the
petitioner's right to the award of the Labour
Court dated 18.01.1996, as subjected to
adjustment on compromise between parties, in
terms of the settlement agreement dated
07.11.2001.

The award of the Labour Court, giving rise to
the agreement passed against the predecessor
KESA,
or
still
more,
the
letter
of
absorption/adjustment issued to the petitioner
dated 08.11.2001, expressly preserve for the
petitioner the right to receive pension and
gratuity. All this is so because the petitioner is
to be regarded and ever to be so regarded as
an employee, who has come to the Company's
establishment from the establishment of their
predecessor KESA, where there was provision
for payment of both pension and gratuity, post
retirement
to
their
employees.
In
these
circumstances, it can hardly be gainsaid that the
Company, who on their establishment, do not
have provision for payment of pension or
gratuity to retired employees, are not bound by
the settlement agreement dated 07.11.2001.
(Para 47)

C. It is, not a case, where the petitioner is
pleading or asserting a contractual right
that conflicts with a statute, a statutory
rule
or
a
non-statutory
regulation,
governing post retiral benefits, admissible
to employees of the Company. He is
asserting his rights under a concluded
award of the Labour Court to the extent, it
has been modified and mutually adjusted
between parties through the terms of a
contract incorporated in th

## Text

_Characters 0–39,460 of 67,991. This is a partial read: ask again with offset=39460 for what follows._

6 All. Vijay Shankar Tripathi Vs. State of U.P. & Ors.
601
permitted to evade a law by 'shift or
contrivance'.

58. In view of the factual and legal
matrix of the issue, there is no specific Act,
Rule or statutory backing for passing the
provincialisation order as it could have
been issued in an exceptional circumstance
but following the norms. Further, the
Absorption Rules, 1992 are not applicable
in the case in hand, therefore, the
petitioners are not having any statutory or
legal right in their favour to get their
institutions provincialised and in absence of
any legal or statutory right, the petitioners
are not entitled to get any relief under
Article 226 of the Constitution of India.
Besides, in absence of the posts having
been sanctioned with necessary financial
approval from the Finance Department,
direction for payment of salary to the
petitioners may not be issued. Since the
required exercise, as has been considered
above, has not been carried out before
issuing the Government Order dated
23.12.2016, specific exigency in issuing
this Government Order has not been
demonstrated and the conditions mentioned
in the Government Order dated 23.12.2016
have also not been followed in its letter and
spirit so no direction for executing the
Government Order dated 23.12.2016 may
be issued in the ends of justice. It clearly
appears that the conscious decision has
been taken by the competent authority with
the
Cabinet
approval
withdrawing
Government Order dated 23.12.2016 by
issuing subsequent Government Order
dated 13.2.2018, therefore no interference
would be required in the impugned
Government Order dated 13.2.2018.

59. Accordingly, in view of the facts,
circumstances
and
reasons
considered
herein above, I do not find any infirmity or
illegality in the impugned order dated
13.02.2018
passed
by
the
State
Government,
which
is
contained
in
Annexure No.1 to the writ petitions.
Therefore, all the writ petitions are
dismissed being devoid of merit and
interim orders stand vacated. Consequences
to follow.

60. No order as to costs.
----------
(2021)06ILR A601
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.06.2021

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 38695 of 2015

Vijay Shankar Tripathi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Birendra Singh, Sri Rajnish Pandey, Sri
Virendra Singh, Sri Hareram Tripathi

Counsel for the Respondents:
C.S.C., Sri Ayank Mishra, Dr. S.K. Yadav, Sri
Pranjal Mehrotra, Sri Rajendra Kumar Mishra

A. Labour Law - Pension - Uttar Pradesh
Industrial Disputes Act, 1947 - Section 4F, 4-K, 6-N, 6-P - Statutory rules of
statutory bodies bind both the statutory
body and the members of the general
public, including their employees. But in
the present case, rights of the petitioner
flow from a concluded and final award of
the
Labour
Court
passed
in
an
adjudication case between the petitioner
and the predecessor of the Company. The
award required the petitioner to be reinstated
on the old terms and conditions of his service,
granting him the benefit of continuity in service.
He was also required to be paid back-wages,
albeit calculated on daily basis. (Para 40)
602 INDIAN LAW REPORTS ALLAHABAD SERIES
The petitioner's appointment by the Company is
no fresh appointment under them of any kind. It
is adjustment of the petitioner's rights in their
establishment as an employee of the erstwhile
KESA, that he has won on adjudication in an
industrial dispute. Therefore, the petitioner's
appointment in the Company's establishment is
no more than an adjustment made by dint of
the Labour Court award, based on the long
service rendered by the petitioner with the
KESA, found to be illegally terminated, as
modified by the settlement agreement dated
07.11.2001. (Para 45)

B. Petitioner has right to receive pension
and gratuity in terms of settlement
agreement/letter of absorption - A perusal
of the letter of appointment clearly traces the
petitioner's right to the award of the Labour
Court dated 18.01.1996, as subjected to
adjustment on compromise between parties, in
terms of the settlement agreement dated
07.11.2001.

The award of the Labour Court, giving rise to
the agreement passed against the predecessor
KESA,
or
still
more,
the
letter
of
absorption/adjustment issued to the petitioner
dated 08.11.2001, expressly preserve for the
petitioner the right to receive pension and
gratuity. All this is so because the petitioner is
to be regarded and ever to be so regarded as
an employee, who has come to the Company's
establishment from the establishment of their
predecessor KESA, where there was provision
for payment of both pension and gratuity, post
retirement
to
their
employees.
In
these
circumstances, it can hardly be gainsaid that the
Company, who on their establishment, do not
have provision for payment of pension or
gratuity to retired employees, are not bound by
the settlement agreement dated 07.11.2001.
(Para 47)

C. It is, not a case, where the petitioner is
pleading or asserting a contractual right
that conflicts with a statute, a statutory
rule
or
a
non-statutory
regulation,
governing post retiral benefits, admissible
to employees of the Company. He is
asserting his rights under a concluded
award of the Labour Court to the extent, it
has been modified and mutually adjusted
between parties through the terms of a
contract incorporated in the settlement
agreement. There is no statutory rule which
empowers the company to vary or change
conditions of service of employees of former
KESA upon the Company, stepping into the
shoes of the KESA. Therefore, the employees of
the erstwhile KESA, who were entitled to
pension and gratuity in their service, would
continue to be entitled upon absorption in the
Company's service.

It is for the said reason that the Company with
open eyes accepted for a term in the settlement
agreement that the petitioner would forego all
his monetary benefits relating to the period of
service with the KESA that he was entitled to
under the award, except his pension and
gratuity reckoned w.e.f. 1.5.1982. For the same
reason, the letter of absorption/adjustment
issued by the Company to the petitioner dated
8.11.2001, reserves the petitioner's right to
receive both pension and gratuity. (Para 48)

D. Constitution of India: Articles 14, 19,
21
-
Fundamental
rights
to
a
fair
treatment by the State - The respondents
are a State instrumentality and are
required to be fair in their dealings with
citizens in general, and their employees in
particular. The stand of the Company in
securing a complete discharge of the petitioner's
rights under the award passed by the Labour
Court, that has become final through a
settlement agreement recorded before the
Conciliation Officer, and then turning around to
deny one of the most valuable terms of that
settlement favouring the petitioner, by pleading
a rule regarding non-provision of pension and
gratuity in the Company's establishment, is
patently unfair and shockingly unconscionable;
it is almost dishonest and mala fide. In fact, this
stand of the Company, if upheld, would lead to
a defeat of the petitioner's fundamental rights to
a fair treatment by the State, guaranteed by
Articles 14, 19 and 21 of the Constitution. It
would be permitting the State to act very
unfairly vis-a-vis. their employee and a citizen.
(Para 49)

Writ petition allowed. (E-2)

Precedent distinguished:
6 All. Vijay Shankar Tripathi Vs. State of U.P. & Ors.
603
1. PEPSU RTC, Patiala Vs Mangal Singh & ors.,
(2011) 11 SCC 702 (Para 18, 38, 39)

Present
petition
assails
order
dated
19.04.2014,
which
refuses
grant
of
retirement pension, passed by Managing
Director, Kanpur Electric Supply Company
Limited, issued by Deputy Chief Accounts
Officer of Company.

(Delivered by Hon'ble J.J.Munir, J.)

1. This writ petition puts in issue a
decision of the Kanpur Electric Supply
Company
Limited
(for
short
"the
Company"),
respondent
no.2
and
communicated
vide
order
dated
19.04.2014, issued by the Deputy Chief
Accounts Officer of the Company, refusing
to
grant
retirement
pension
to
the
petitioner.

2. Heard Mr. Hareram Tripathi,
Advocate holding brief of Mr. Rajnish
Pandey, learned Counsel for the petitioner,
Mr. Rajendra Kumar Mishra, learned
Counsel appearing for respondent nos. 2, 3
and 4, and Dr. Amar Nath Singh, learned
Standing Counsel appearing on behalf of
the State.

3. In this writ petition, parties have
exchanged affidavits at the admission
stage, much before the petition was
formally
admitted
to
hearing
on
07.12.2020. It was, on that day, heard and
judgment
reserved.
However,
on
07.12.2020, Mr. Pranjal Mehrotra, learned
Counsel for the Company and its various
officers, was not present. It was, therefore,
considered expedient to post the matter for
further hearing. It came up again on
16.12.2020, when Mr. Rajendra Kumar
Mishra, learned Advocate appeared on
behalf of the Company and their various
officers, that is to say, respondent nos.2, 3
and 4. Learned Counsel appearing for all
parties were heard on that day and
judgment was reserved.

4. The dispute involved in this writ
petition is a sequel to an award dated
18.01.1996, passed
by
the
Presiding
Officer, Labour Court (IV), U.P., Kanpur
(published on 18.04.1996) in Adjudication
Case
no.3
of
1988
between
the
predecessors of the Company, that is to say,
M/s.
Kanpur
Electric
Supply
Administration, who were the employers
and the petitioner, their workman. The
award became final between parties, in
course of proceedings, the details whereof
would be mentioned later in this judgment.
The proceedings for execution of the award
of the Labour Court led to a settlement
agreement being recorded before the
Conciliation
Officer
(Deputy
Labour
Commissioner,
U.P.,
Kanpur
Region,
Kanpur) dated 07.11.2001, in terms of
which, the petitioner claims a right to
receive retirement pension. By the decision
impugned, the Company have denied the
petitioner's right aforesaid, founded on the
Labour Court's award and the ensuing
settlement agreement recorded before the
Conciliation Officer. It is the aforesaid
claim of the petitioner and its repudiation
by the Company, which has given rise to
this writ petition.

5. The petitioner was appointed as a
Clerk on daily-wages on 10.11.1980 with
the Kanpur Electric Supply Administration
(for short "KESA"), a part of the
establishment of the late U.P. State
Electricity Board. The erstwhile U.P. State
Electricity Board (for short "the Board")
was wound up and reconstituted into three
companies, one of these being the U.P.
Power Corporation Limited (for short
"UPPCL"). On 14.01.2000, the KESA,
604 INDIAN LAW REPORTS ALLAHABAD SERIES
upon dissolution of the Board and its part
reconstitution
into
the
UPPCL,
was
reconstituted as the Kanpur Electric Supply
Company Limited (already introduced
hereinbefore, for the sake of brevity, as "the
Company"). During the KESA days, the
petitioner was granted extension as a dailywage clerk from time to time. There are
two extension orders dated 01.01.1981 and
31.12.1981, annexed to the writ petition
collectively as Annexure no.2. But, all that
does not appear to be very material,
considering the fact that the petitioner's
tenure and terms of employment as well as
dispensation of services at a certain point of
time by the KESA has already been
through
the
process
of
industrial
adjudication, culminating in an award of
the Labour Court, details whereof would be
mentioned later. In substance, the petitioner
remained a daily-wage clerk for six years
with the KESA and his services were
terminated
by
an
oral
order
dated
31.12.1986, again by the KESA. The
petitioner dubbed this sudden termination
of his services by the KESA as illegal,
arbitrary, and amongst others, one made in
violation of the provisions of the Uttar
Pradesh Industrial Disputes Act, 1947 (for
short "the Act of 1947"). He raised an
industrial dispute against the KESA, which,
after reference under Section 4-K of the
Act of 1947, came to be registered on the
file of the Presiding Officer, Labour Court
(IV), U.P., Kanpur as Adjudication Case
no.3 of 1988. The reference made to the
Labour Court under Section 4-K of the Act
of 1947 on 06.01.1988, reads to the
following effect (translated into English
from Hindi vernacular):

"Whether
the
act
of
the
employers terminating the services of their
workman, Vijay Shankar Tripathi, a dailywage clerk w.e.f. 31.12.1986 is proper
and/or lawful? If not, to what benefit/relief
is the workman concerned entitled and in
what terms?

6. The industrial dispute was tried by
the Labour Court and by an award dated
09.04.1996 (published on 18.04.1996), it
was ordered that the workman (the
petitioner) be reinstated in service by the
employers (KESA, now represented by the
Company, their successor) on his old terms
and conditions of service, together with
continuity of service, without any break. It
was further awarded that for the period of
forced
unemployment,
the
employers
would be liable to pay the petitioner wages
worked out on a daily basis. Costs in the
sum of Rs.300/- were also ordered.

7. The award aforesaid of the Labour
Court was challenged by the Board through
Civil Misc. Writ Petition No. 19130 of
1996 before this Court. It was pending this
writ petition that there was complete
reorganization of the existing power
distribution bodies in the State. This was
brought about by the State Government by
means of the U.P. Electricity Reforms Act,
1999. The last mentioned Act dissolved the
Board and vested all its properties, rights,
interests and liabilities, as they existed, in
three different successor Corporations, to
wit, the Uttar Pradesh State Power
Generation Corporation Limited, the Uttar
Pradesh Hydro Electric Power Corporation
Limited and the Uttar Pradesh Power
Corporation Limited. Along with this
transfer of assets, rights and liabilities from
the
erstwhile
Board
to
the
three
Corporations, the services of the employees
of the Board were transferred to the three
successor Corporations on 'as is where is'
basis. It was further provided under the
scheme
for
transfer
of
services
of
employees of the Board to the successor
6 All. Vijay Shankar Tripathi Vs. State of U.P. & Ors.
605
Corporations that such employees, whose
seniority was not required to be determined
at the State level, would get absorbed in the
services of the Corporation, where they
were employed.

8. It appears that by a gazette
notification dated 15.01.2001, the State
Government notified the Company as a
subsidiary company of the UPPCL to
succeed the KESA. In substance, therefore,
upon dissolution of the erstwhile Board, its
rights and liabilities, insofar as the
petitioner was concerned, or so to speak,
the KESA was concerned, were vested in
the UPPCL. There was thus effected a
transfer of all the functions, rights and
liabilities of the former KESA to the
Company. While all this reorganization in
the set up of the Company or the employers
of the petitioner took place, the writ
petition preferred by the former KESA
from the award of the Labour Court dated
18.01.1996 came to be dismissed as
infructuous by this Court vide order dated
16.05.2000. It has been asserted for a fact
that the aforesaid order dismissing the
KESA's writ petition was never applied
recall of or the writ petition got restored by
the Company as the KESA's successor. As
such, the order of this Court dated
16.05.2000, dismissing Civil Misc. Writ
Petition 19130 of 1996 became final, and
with it, the award of the Labour Court
dated 18.01.1996.

9. The Company, faced with the
prospects of execution of the award dated
18.01.1996 passed against its predecessor
KESA, entered into a settlement agreement
dated 07.11.2001 before the Conciliation
Officer (Deputy Labour Commissioner,
Uttar Pradesh, Kanpur Region, Kanpur),
duly recorded under Section 4-F of the Act
of 1947 read with Rule 5 (1) of the
Industrial Disputes Rules, 1957. It is
pointed out by the learned Counsel for the
petitioner, Mr. Hareram Tripathi, that this
settlement agreement was arrived at by the
Company to ward off execution of the
award passed by the Labour Court,
regarding which, execution proceedings
had been instituted by the petitioner vide
Misc. Case No. 28 of 2001. It is
emphasized by Mr. Tripathi that Paragraph
No. 8 of the settlement agreement shows
that the liquidated sum of back-wages,
claimed in the execution case by the
petitioner, was a sum of Rs.9,28,473/-. The
terms
of
the
settlement
agreement,
according to the learned Counsel for the
petitioner, show that broadly speaking, the
petitioner agreed to be adjusted on the post
of a daily-wage clerk, that he formerly
held, but placed in the regular pay scale of
Rs.4200-100-6400/- w.e.f. 01.10.2001, in
lieu of forgoing voluntarily all his claims to
back-wages.

10. It is further pointed out by the
learned Counsel for the petitioner that vide
paragraph
no.
5
of
the
settlement
agreement, it was covenanted that the
petitioner would be entitled to continuity of
service w.e.f. 01.05.1982, for the purpose
of pension and gratuity alone, and that for
the aforesaid period of time, he would not
be entitled to any other benefit. To the
same
end,
learned
Counsel
for
the
petitioner has drawn attention of the Court
to paragraph no. 7 of the settlement
agreement, which covenants that all other
entitlements of the petitioner, attached to
the post of daily-wage clerk in the pay
scale of Rs.4200-100-6400 and other
admissible allowances thereon, would be
determinable w.e.f. 01.10.2001, but no
other benefit for the earlier period of his
employment in terms of the award would
be payable, except pension and gratuity. It
606 INDIAN LAW REPORTS ALLAHABAD SERIES
was also covenanted that the settlement
agreement would be regarded as full and
complete satisfaction of the award passed
in Adjudication Case No. 3 of 1988.

11. It is next submitted by the learned
Counsel for the petitioner that it was in
compliance with the award of the Labour
Court
dated
18.01.1996
passed
in
Adjudication Case No. 3 of 1988 and the
settlement agreement dated 07.11.2001,
entered into between parties in proceedings
arising from the award, that a letter of
appointment, described as adjustment on the
post of a daily-wage clerk in the pay scale of
Rs.4200-100-6400/-, was issued by the
Company in favour of the petitioner, subject
to three conditions, largely giving effect to
the settlement agreement. It is urged that the
first condition clearly indicates that all
entitlements of the petitioner attached to the
post of a daily-wage clerk in the pay scale of
Rs.4200-100-6400/- would be determinable
w.e.f. 01.10.2001, together with other
benefits payable, according to the award, but
except for pension and gratuity, no other
benefits would be payable for the former
period of employment. The submission of the
learned Counsel for the petitioner, therefore,
is that the conjoint effect of the award, the
settlement and the letter of appointment
issued to the petitioner, is that he is not
entitled to claim back-wages in terms of the
award in consideration of his adjustment now
made by the Company on the post of dailywage clerk in the pay scale of Rs.4200-1006400/-, except the petitioner's entitlement to
pension and gratuity, determinable from
01.05.1982, the former period of his
employment.

12. The petitioner retired from service
on attaining the age of superannuation on
12.07.2012. He was admittedly paid a sum of
Rs.2,29,478/- vide Cheque No. 50914 dated
31.10.2012 towards his General Provident
Fund. The petitioner was, however, neither
paid gratuity nor pension. He waited for a
period of about one year before he submitted
a representation dated 05.12.2012 to the
Company, represented by its Managing
Director, asking for payment of his pension
and gratuity. Attention of the Court has been
drawn
to
certain
intra-departmental
correspondence,
being
letters
dated
28.09.2012 and 29.08.2013, addressed by the
Chief Engineer to the Director (Personnel &
Administration) of the Company, requesting
the latter to seek legal opinion about the
tenability of the petitioner's claim to pension
and gratuity.

13. It appears that no decision was
taken by the Company regarding the
petitioner's claim to payment of gratuity and
pension for a considerable period of time.
The petitioner, therefore, approached this
Court, by means of Writ - A No.57607 of
2014, with a prayer that the respondents may
be directed to pay his gratuity and pension.
The aforesaid writ petition was disposed of in
terms of a judgment and order dated
30.10.2014. Learned Counsel has drawn this
Court's attention to a copy of the said order
passed by this Court, the operative portion
whereof reads :

"In view thereof, the writ petition is
being disposed of with a direction to the
Managing Director of Kanpur Electricity
Supply Limited to consider request of the
petitioner for grant of pensionary benefits and
compute the pension at the earliest and order
on release of pension of the petitioner shall be
passed expeditiously preferably, within one
month from the date of production of a
certified copy of this order before him."

14. A copy of the said judgment was
lodged with the Managing Director of the
6 All. Vijay Shankar Tripathi Vs. State of U.P. & Ors.
607
Company by the petitioner, along with a
covering letter dated 30.01.2015. It is in
purported compliance with the aforesaid
order passed by this Court in Writ - A
No.57607 of 2014 that the Managing
Director of the Company has taken a
decision to reject the petitioner's claim,
both regarding pension and gratuity, which
has been communicated by means of the
impugned order dated 19.12.2014.

15. The earliest return that was filed
on behalf of the Company is one dated
13.04.2018, though this Court ordered the
Company to file a counter affidavit pending
admission on 15.07.2015. The substance of
the stand, discernible from the counter
affidavit filed on behalf of the Company, is
that they do not disown the fact that the
petitioner
was
earlier
a
daily-wage
employee of the KESA; the fact that the
Company is a successor of the KESA; the
fact that an award was passed by the
Labour Court against the KESA in
Adjudication Case No. 3 of 1988; the fact
that the Company in place of the KESA
entered into a settlement agreement before
the Conciliation Officer with the petitioner,
in terms whereof the award of the Labour
Court stood satisfied; and also the fact that
the writ petition preferred by the KESA
against the award of the Labour Court was
dismissed as infructuous on 16.05.2000,
whereagainst no steps have been taken by
the Company. The petitioner's claim is,
however,
resisted
by
the
Company,
primarily on foot of the reasoning that the
petitioner was appointed afresh, in lieu of
his former services with the KESA, and to
adjust rights under the award vide letter of
appointment dated 01.10.2001, and further
that all rights of the petitioner are traceable
to 14.01.2000, that is to say, the date of
incorporation of the Company. It is urged
that none of the rights of the petitioner are
traceable or determinable with reference to
the period of his service rendered with the
KESA.

16. It is also the Company's stand that
an Office Memorandum No. 1915 dated
06.06.2003, issued by the UPPCL, of
which the Company is a subsidiary, does
not provide for a pension scheme. Instead,
it provides for a Contributory Provident
Fund Scheme. It is further the Company's
stand that it was open to the petitioner to
fill up the necessary form under the CPF
Scheme and secure allotment of a CPF
number, which he did not do. Instead, the
petitioner secured a General Provident
Fund
Account
number,
which
was
cancelled by the Senior Accounts Officer,
Uttar
Pradesh
State
Power
Sector
Employees Trust, Lucknow vide Letter No.
1804 dated 10.10.2012 w.e.f. the date of
allotment of the account number. These
averments find place in paragraph no. 17 of
the counter affidavit, where it is also said
that the petitioner deposited money under
the GPF Scheme, which, after cancellation
of that account, was refunded to him along
with interest by Cheque No. 50914 dated
31.10.2012, worth Rs.2,29,478/-.

17. The thrust of the Company's
submission is that the settlement agreement
entered into before the Conciliation Officer
on 07.11.2001, to ensure compliance of the
award passed by the Labour Court, cannot
be enforced for a term therein, which is
against the provisions of law. Dilating on
this stand, set out in paragraph no. 11 of the
counter affidavit, it is urged on behalf of
the Company by Mr. Mishra that the
petitioner has been retained afresh by the
Company w.e.f. 01.10.2001. The Company,
in terms of Office Memorandum No. 1915
dated 06.06.2003 issued by the UPPCL,
does not have a pension scheme in force. It
608 INDIAN LAW REPORTS ALLAHABAD SERIES
only has a Contributory Provident Fund
Scheme.
Therefore,
for
employees
appointed on or after 01.10.2001 to the
service of the Company, no pension can be
paid under the law. The terms, therefore,
carried in paragraph nos. 5 and 7 of the
settlement agreement dated 07.11.2001,
where the Company has covenanted to pay
pension and gratuity to the petitioner, in
lieu of his giving up his claim to backwages under the award, is a covenant that is
contrary to the law in force. Therefore, it
cannot be given effect to.

18. In support of his submission,
learned Counsel appearing on behalf of the
Company/respondent nos. 2, 3 and 4, has
relied upon a decision of the Supreme
Court in PEPSU RTC, Patiala v. Mangal
Singh and others1. Learned Counsel has
emphasized the holding in PEPSU RTC,
where it has been observed:

"29. It is well-settled law that the
regulations made under the statute laying
down the terms and conditions of service of
the employees, including the grant of
retirement benefits, have the force of law.
The regulations validly made under the
statutory powers are binding and effective
as
the
enactment
of
the
competent
legislature. The statutory bodies as well as
general public are bound to comply with
the terms and conditions laid down in the
regulations as a legal compulsion. Any
action or order in breach of the terms and
conditions of the regulations shall amount
to violation of the regulations which are in
the nature of statutory provisions and shall
render such action or order illegal and
invalid."

19. In the rejoinder affidavit, that has
been filed by the petitioner in answer to the
counter affidavit dated 03.04.2018, the
terms of the settlement agreement recorded
inter partes have been pleaded to, to show
that pension and gratuity are determinable
in terms of the award, calculating the
period of service rendered earlier under the
KESA, with continuity for the limited
purpose of entitlement to pension and
gratuity. The other benefits, particularly
back-wages, have been given up by the
petitioner
in
consideration
of
his
adjustment by the Company against the
same post that he was holding w.e.f.
01.10.2001. It is emphasized that the
petitioner's appointment is not a fresh
appointment under the Company, but a
reinstatement on account of the award
rendered by the Labour Court in his favour,
where an adjustment of rights has been
arrived at before the Conciliation Officer,
in terms of the settlement agreement dated
07.11.2001. Thus, the stand in the rejoinder
appears to be that the petitioner cannot be
deprived of his rights flowing from the
settlement agreement, which, in turn,
derives its force from the award of the
Labour Court, that together conclude the
rights of parties about everything, including
pension and gratuity.

20. It is also particularly pleaded in
the rejoinder affidavit that one Ramu
Bajpayee, a daily-wage clerk under the
KESA, whose services were terminated
like the petitioner's, had approached the
Labour Court, challenging the dispensation
of his services. The Labour Court had
passed an award in favour of Ramu
Bajpayee,
where
also,
a
settlement
agreement like the one in the petitioner's
case, was entered into between Ramu
Bajpayee and the Company. It has been
pleaded that in Bajpayee's case, a pension
payment order dated 29.06.2016 has been
issued, in compliance with the office order
dated
26.05.2016,
treating
Bajpayee's
6 All. Vijay Shankar Tripathi Vs. State of U.P. & Ors.
609
services to be those continuing from the
erstwhile KESA, for the limited purpose of
payment of pension and gratuity, and to
abide by the terms of the settlement
agreement
entered
into
between
the
Company and Bajpayee. It is urged on
behalf of the petitioner that Bajpayee being
similarly circumstanced as the petitioner,
denial of pension and gratuity to him is
discriminatory.

21. A further counter affidavit dated
06.08.2018 has been filed on behalf of the
Company, where the case of the petitioner
and Ramu Bajpayee has been attempted to
be
distinguished,
by
pleading
the
differences, shown in tabular form, in
paragraph no. 4 of the counter affidavit
under reference. The table there is extracted
below:

श्री चवजय शंकि चत्रपािी
श्री िामू िाजपेयी
कायाालय
ज्ञाप
सं0
एल0सी0-4
अचभ0/3/88/849
चद0
08.11.2001 द्वािा श्री
चवजय शंकि चत्रपािी
को
01.10.2001
से
दैचनक
श्रेणी
चलचपक
वेतनमान रू0 4200100-6400 के पद पि
चनम्न
सेवा
शतो
के
आर्ीन
समायोचजत
चकया गया था।
1. श्री चवजय शंकि
चत्रपािी पुत्र श्री भगवती
प्रसाद
चत्रपािी
को
चदनांक 01.10.2001 से
दैचनक श्रेणी चलचपक का
पद व वेतनमान रू0
4200-100-6400 व उस
पि
अनुमन्य
अन्य
चहतलाभ देय होंगे चकन्तु
एवािा के अनुसाि पेंशन
व ग्रेच्युटी को छोडकि
पूवा की अवचर् को अन्य
कायाालय ज्ञाप सं0 एल0सी03 (ए-173/93/ िब्लूपी/3639/
98) /552 चद0 26.04.2005
द्वािा श्री िामू िाजपेयी को
चदनांक 01.01.1979 से रू0
365-585, समय-समय पि
संशोचर्त एवं 01.01.1996 से
पुनािीचक्षत
वेतनमान
रू0
4200-6400 पि दैचनक श्रेणी
चलचपक के पद पि चनम्न सेवा
शतो के आर्ीन सेवा में
पुनास्थाचपत चकया गया था।
1. श्री िामू िाजपेयी को
चदनांक 01.01.1979 से सेवा
में ताितम्यता दी जायेगी।
2. श्री िामू िाजपेयी की सेवा
में पुनास्थापना के फलस्वरूप
चदनांक
01.01.1979
से
31.03.2005 तक का चकसी
भी प्रकाि का भुगतान देय
नहीं होगा औि न ही श्री
िाजपेयी
द्वािा
पूवा
में
वसूलयावी के माध्यम से
प्राप्त
भुगतान
का
ही
चकसी
प्रकाि
का
चहतलाभ अनुमन्य नहीं
होगा।
2 श्री चवजय शंकि
चत्रपािी को कम्प्यूटि
को ज्ञान अचजात किने
तथा
टंकन
पिीक्षा
उत्तीणा किने की चतचथ
से अनुमोचदत दैचनक
श्रेणी चलचपक पद के
चहतलाभ (जैसे वरिष्ठता/
पदोन्नचत
व
अन्य)
अनुमन्य होंगे व वाचषाक
वेतन वृखि, समयिि
वेतनमान
की
गणना
01.10.2001 की चतचथ
से अनुमन्य होगी
3. अचभचनणाय वाद सं03/88 के अन्तागत मा0
श्रम
न्यायालय-चद्वतीय,
उ0प्र0,
कानपुि
के
समक्ष रु0 9,20,473.00
की संगणना को जो
चवचवर् वाद श्री चत्रपािी
द्वािा दाखखल चकया गया
है वह समाप्त माना
जायेगा।
समायोजन चकया जायेगा।
3. श्री िामू िाजपेयी को
चदनांक 01.04.2005 से वेतन
एवं भत्तों को भुगतान चकया
जायेगा।

22.
A
supplementary
rejoinder
affidavit in answer to the counter affidavit
dated 06.08.2018 has been filed, being one
dated 28.08.2018. In answer thereto,
various terms of the settlement agreement
have further been pleaded in paragraph no.
5 of the supplementary rejoinder affidavit.
Paragraph nos. 11 and 12 of the award, that
have led to the settlement agreement, have
been pleaded to point out that the Labour
Court had determined that the services of
the petitioner under the erstwhile KESA
were not for a limited period of time, but
regular, looking to the period of his
retention in service. His termination from
service was held to be illegal, particularly,
as juniors had been retained. The award
had granted reinstatement on his old
610 INDIAN LAW REPORTS ALLAHABAD SERIES
service conditions with continuity and
back-wages for the entire period that he
was kept out of employment.

23. I have perused the record and
keenly considered the submissions made on
behalf of both parties.

24. It is common ground between
parties that the petitioner was a daily-wage
clerk with the erstwhile KESA, of which
the Company are successors. He was a
daily-wage clerk from 10.11.1980 until
31.12.1986. His services were terminated
on 13.12.1986 by
the
KESA.
This
termination was the subject matter of an
industrial dispute, that was raised at the
instance of the petitioner and referred to the
adjudication of the Labour Court. The
Labour Court passed an award dated
09.04.1996 (published on 18.04.1996),
whereby the petitioner was ordered to be
reinstated in service by the KESA on the
old terms and conditions of service, with
benefit of continuity. Back-wages for the
period that the petitioner remained out of
employment on account of termination of
his services were also ordered to be paid to
the petitioner, albeit worked out on a daily
basis. A perusal of the award rendered by
the Labour Court shows that the services of
the petitioner were not held to be temporary
or for a time bound basis, because he was
retained in service for a long number of
years and work remained available after his
termination. It was also held that the
petitioner's
services
were
illegally
terminated as juniors were permitted to
continue. Admittedly, this award of the
Labour Court had become final.

25. The findings returned by the
Labour Court in the award show that the
services rendered by the petitioner with the
Company's predecessors, that is to say, the
KESA, have not been held to be temporary
or for a limited period of time. A fortiori,
the services of the petitioner with the
KESA have been held to be regular and
permanent in character. It is on the foot of
those findings that the Labour Court held
the termination of his services illegal,
particularly, finding it to be a case where
Section 6-P of the Act of 1947 had been
violated. This Court must remark that in the
award made by the Labour Court, backwages have been awarded, worked out on a
daily basis, while the nature of the
petitioner's retention in service has been
found to be permanent and not for a limited
period of time.

26. The submission of the learned
Counsel for the Company that the Labour
Court had held the petitioner to be a dailywager and, therefore, ordered his backwages to be reckoned on a daily basis, is
not tenable. The reason is that the Labour
Court directed reckoning of wages on a
daily basis, because that is how the
petitioner was being remunerated, before
his services were unlawfully terminated.
But, this does not lead to the inference that
the Labour Court held him to be a dailywager or a workman engaged for some
period of time, to meet the exigencies of
work. The Labour Court, being a Court of
referred jurisdiction, could not grant the
petitioner the benefit of regular wages, as
that was not the reference made to it. The
reference made to the Labour Court was
whether the services of the petitioner were
unlawfully terminated, and the Labour
Court could not travel beyond the terms of
the order of reference and questions
incidental to it. Since the validity of the
KESA's action in terminating the services
of the petitioner was referred for a decision
to the Labour Court, it was within the
legitimate domain of the Labour Court to
6 All. Vijay Shankar Tripathi Vs. State of U.P. & Ors.
611
determine the nature of the petitioner's
employment and tenure with the KESA.

27. A perusal of the award also shows
that after considering all evidence on
record, it was held by the Labour Court that
despite there being a requirement of dailywage clerks, termination of the petitioner's
services was both improper and illegal. It
was also held that looking to the long
number of years of service, the petitioner's
tenure cannot be held to be temporary or
for a limited duration. It was in the context
of these findings that the Labour Court
reinstated the petitioner on the old
conditions of his service, with continuity.
Read as a whole from any angle, the award
held the petitioner to be a regular and
permanent workman of the KESA. Since
this award has become final between
parties,
it
cannot
now
be
assailed
collaterally by the Company, who are
KESA's successors in the present writ
petition.

28. It appears that faced with
proceedings for execution of the award
vide Misc. Case no.28 of 2001, where the
petitioner put forward a claim to backwages, liquidated in the sum of Rs.
9,28,473/-, the Company entered into a
settlement
agreement
before
the
Conciliation
Officer/
Deputy
Labour
Commissioner,
U.P.,
Kanpur
in
proceedings under Section 4-F of the Act of
1947. It is imperative to refer to the
settlement recorded before the Conciliation
Officer inter partes on 07.11.2001, for
every word of it. It reads thus:

"प्रपत्र - I

(र्ािा 4 एफ एवं रुल 5 (1))

समझौते का प्रारुप

पक्षों के नाम व पते :-

सेवायोजक पक्षिः - (1) मे0 कानपुि चवद्युत
आपूचता कम्पनी चल0,

14/71, चसचवल लाइन्स,

कानपुि।

श्रचमकिः - (2) श्री चवजय शंकि चत्रपािी,

पुत्र श्री भगवती प्रसाद चत्रपािी,

86/14, चिप्टी का पडाव,

कानपुि।

सेवायोजक की ओि सेिः - श्री ओ०पी०
चमश्रा, वरिष्ठ कचमाक अचर्कािी,

श्रचमक की ओि सेिः - श्री चवजय शंकि
चत्रपािी (स्वयं श्रचमक)

द्वािा: श्री िाम मनोिथ चत्रपािी - कायावाहक
अध्यक्ष कानपुि चवजली मजदूि सभा 96/10
महात्मा गांर्ी मागा, कानपुि।

-:: चववाद का संचक्षप्त चवविण ::-

श्री चवजय शंकि चत्रपािी पुत्र श्री भगवती
प्रसाद चत्रपािी के िेली िेटेि क्लका के पद से
चदनांक 31.12.86 से सेवायें समाप्त चकए जाने के
चवरुि माननीय पीिासीन अचर्कािी, श्रम
न्यायालय-4, उ0प्र0 कानपुि में उिउस गए
अचभचनणाय वाद सं0 03/88 में वादी के पक्ष में
पुिानी सेवा शतों व अखण्डता के साथ सेवा में
पुनास्थाचपत किने के हुए एवािा चदनांक
18.01.96 (इस अचभचनणाय वाद के चवरुि
माननीय उच्च न्यायालय, इलाहािाद में दाखखल
रिट याचिका संख्या - 19130/96 के परिप्रेक्ष में)
के चियान्वयन स्वरुप उभय पक्षों में सौहादापूणा
वाताविण में चनम्नचलखखत शतों पि आपसी
समझौता सम्पन्न हुआ !

-:: समझौते की शते :-

1. यह चक सेवायोजक वाद के दाखखल होने
के समय कानपुि चवद्युत सम्पूचता प्रशासन था जो
चक वतामान में कानपुि चवद्युत आपूचता कम्पनी
हो गई है।
612 INDIAN LAW REPORTS ALLAHABAD SERIES

2. यह चक वादी श्री चवजय शंकि चत्रपािी
पुत्र श्री भगवती प्रसाद चत्रपािी उक्त अचभचनणाय
वाद सं0 3/88 में हुए एवािा के परिप्रेक्ष्य में
01.10.2001 की चतचथ से दैचनक श्रेणी चलचपक,
वेतनमान रू0 4200-100-6400 का पद प्रदान
चकए जाने की खस्थचत में एवािा के अनुसाि देय
चपछला सभी प्रकाि का चहतलाभ स्वेच्छा से
छोडने को तैयाि है।

3. यह चक वादी श्री चवजय पांकि चत्रपािी
उक्त
अचभचनणाय
वाद
के
परिप्रेक्ष्य
में
01.10.2001 की चतचथ से दैचनक श्रेणी चलचपक
का पदनाम व वेतनमान प्रदान चकए जाने की
दशा में दैचनक श्रेणी चलचपक के पद के चलए
चनर्ाारित योग्यता जैिो - टंकण एवं कम्प्यूटि का
ज्ञान अचजात किने एवं चवभाग द्वािा आयोचजत
टंकण पिीक्षा उत्तीणा किने के पश्चात अनुमोचदत
दैचनक श्रेणी चलचपक के पद पि समायोचजत कि
चदनांक 01.10.2001 से वरिष्ठता एवं पदोन्नचत
चहतलाभ देय होंगे।

4. यह चक वादी इस िात के चलए स्वेच्छा से
तैयाि है चक वह पूवा में हुए अन्य चकसी भी िेली
िेटेि क्लका के समझौते/वाद का उदाहिण लेते
हुए भचवष्य में चकसी भी प्रकाि की मांग नहीं
उिायेगा।

5. यह चक वादी को चदनांक 01.05.82 से
केवल पेंशन एवं ग्रेच्युटी हेतु सेवा में चनिन्तिता
का लाभ अनुमन्य होगा औि इस अवचर् का
अन्य चकसी प्रकाि का दूसिा सेवा चहतलाभ
अनुमन्य नहीं होगा।

6. यह चक सेवायोजक श्री चवजय शंकि
चत्रपािी पुत्र श्री भगवती प्रसाद चत्रपािी को
01.10.2001 की चतचथ से दैचनक श्रेणी चलचपक के
पद एवं वेतनमान रू0 4200-100-6400 पि
समायोचजत किने को तैयाि है एवं चिन्दु सं0 1,
2, 3, 4 एवं 5 पि सहमत हैं।

7.