# Yogesh Kumar v. State Of U.P. & Ors

- **Citation:** (2016) 8 ILRA 926
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-10
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yogesh-kumar-v-state-of-u-p-ors-44287
- **Pages:** 10

## Text

926 INDIAN LAW REPORTS ALLAHABAD SERIES

(2016) 8 ILRA 926
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.08.2016

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ C No.- 18121 Of 2016

Yogesh Kumar ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for Petitioner:
Umesh Chandra Yadav

Counsel for Respondents:
C.S.C., Ashish Gupta, J.K. Tiwari, R.S. Gupta, S.K. Rai

U.P. Co-operative Societies Act, 1965 - U.P. Co-operative Societies Rules, 1968 - Rules 244 to
246 - Arbitration - Alleged Award - Genuineness Disputed -- Petitioner asserted that arbitration
disputes stood already decided by awards dated 23.03.2015 delivered by earlier arbitrator, and that
subsequent notices issued by newly appointed arbitrator calling upon petitioner to appear were wholly without
jurisdiction -- Respondents disputed genuineness of alleged awards, asserting them to be fabricated
documents not part of official record -- Held: Original record produced before Court contains no endorsement
of any date fixed for pronouncement of award nor of delivery of any award on 23.03.2015 -- Copy of award
not part of official record. (Para 1)
Statutory Requirements for Valid Award - Non-Compliance -- Rule 244 requires award to contain
reasons and order as to costs -- Rule 245 requires certified and sealed copy to be given to each party -- Rule
246 requires award, with all papers and proceedings, to be sent to Registrar within 15 days of making --
Held: None of these statutory requirements shown to have been complied with -- Unless award delivered in
manner contemplated by law, its delivery cannot be recognised in law. (Para 2)
Conduct of Petitioner - Subsequent Letter Inconsistent with Plea of Prior Award -- Petitioner's
own letter dated 05.10.2015 sought transfer of same arbitration proceedings without any reference to alleged
awards of 23.03.2015, referring instead to subsequent hearing date of 18.06.2015 -- Held: Conduct of
petitioner inconsistent with plea that disputes already stood decided -- Inference drawn that petitioner was
not aware of any award having been made till long thereafter, and that awards annexed with writ petition
were prepared in collusion with former arbitrator at later stage to make out a case before the Court. (Para 3)
Allegation of Mala Fide - Person Not Impleaded -- Held: Allegations of mala fide levelled against an
authority cannot be examined by Court in absence of the person concerned being impleaded as a party to the
proceedings. (Para 4)
Writ Petition Dismissed -- Held, no award delivered in the eyes of law on 23.03.2015, and copies of awards
annexed with writ petition are no award in the eyes of law -- Arbitration proceedings before newly appointed
arbitrator held not liable to be interfered with -- Costs of Rs. 1,000/- imposed upon petitioner, proceedings
before Court found to be an abuse of process of law.
Case Law Discussed
1. P.K. Jha vs. State of Jharkhand, 2006 (9) SCC 458
2. R.K. Agrawal vs. State of U.P., 2015 (1) SCC 642
8 All. Yogesh Kumar Vs State Of U.P. & Ors.
927
(Delivered by Hon'ble Ashwani Kumar Mishra, J.)

1. This writ petition has been filed with the following prayer:-

"(i) a writ, order or direction in the nature of certiorari to quash the illegal
proceedings initiated after conclusion of proceedings by passing the final order/judgment and
direct the respondents to restraint from proceeding further in Case Nos.74/2014-15, 76/2014-15
and 77/2014-15, vide order dated 2.4.2016."

2. Petitioner Yogesh Kumar has approached this Court with the assertion that proceedings
of arbitration got initiated in respect of a dispute between the members and 509 Army Base
Workshop Workers Cooperative Society, in which Sri Subhash Chandra, Joint Commissioner-cumJoint Registrar Co-operative was appointed the arbitrator. It is stated that the proceedings continued
before the arbitrator, and judgment was reserved in the matter on 19th March, 2015. According to
the petitioner on 23rd March, 2015, awards were delivered in Case Nos.74 of 2014-15, 76 of 201415 and 77 of 2014-15. These awards have been brought on record of the writ petition as Annexure2. It is stated in the writ petition that the awards have attained finality, and have not been
challenged any further. Petitioner asserts that thereafter notices have been issued by the arbitrator
calling upon petitioner to appear in proceedings of Arbitration Case Nos.74 of 2014-15, 76 of 201415 and 77 of 2014-15, vide notice dated 2nd April, 2016. Date has been fixed for appearance in the
matter on 27th April, 2016. It is at this stage that petitioner felt aggrieved, and has filed this
petition.

3. The writ petition was entertained, and following orders were passed in the matter on 3rd
May, 2016:-

"The challenge in this petition is to the proceedings in respect of Misc. Case No.74
of 2014-15, 76 of 2014-15 and 77 of 2014-15 before the Dy. Commissioner/Dy. Registrar Cooperative Societies, Meerut Division, Meerut.

Sri Sujeet Kumar Rai, has put in appearance on behalf of respondent No.4.

He submits that for the same cause of action the petitioner has filed another writ
petition which is pending before the Division Bench and is likely to come up on 9th May, 2016. He
has produced the copy of the aforesaid writ petition.

I have perused the same and find in the said writ petition the cause of action arises
out of Misc. Case No.73 of 2014-15, 75 of 2014-15 and 78 of 2014-15.

In view of above, the aforesaid petition is in respect of different proceedings and
not those in relation to Case No.74 of 2014-15, 76 of 2014-15 and 77 of 2014-15.
928 INDIAN LAW REPORTS ALLAHABAD SERIES

The argument of learned counsel for the petitioner is that all the above three cases have
already been decided by the award dated 23.03.2015 passed by the Joint Commissioner/Joint Registrar,
Co-operative Societies, Meerut.

Therefore, the issuance of notices dated 2nd April, 2016 requiring the petitioner to
appear and the participate in the said proceedings is wholly without jurisdiction.

Sri R.S. Gupta, learned counsel appearing for respondent No.5 submits that the awards
dated 23.03.2015 which have been annexed with the petition are totally fake documents and are not part of
the record of the proceedings and as such it is misconceived to allege that the above referred matters have
decided.

Learned Standing Counsel appearing for respondents No.1 and 2 is directed to obtain
the record of the above proceedings from the office of the Joint Commissioner/Joint Registrar, Cooperative Societies, Meerut and to produce the same before the court in a sealed cover on 10th May, 2016.

Put up on 10th May, 2016."

4. It further transpires that original records, pursuant to the directions issued on the previous
occasion, were produced before the Court, and following orders were passed in the matter on 10th May,
2016:-

"In pursuance of the order dated 3.5.2016 the learned standing counsel has produced the
original record of the three cases.

The order sheets reveals that the matter was heard by the Arbitrator on 19.3.2015 on
merit and the order was reserved. Thereafter, on 29.4.2015 in presence of the representative of the society,
on his application the case was adjourned. There is no order of 25.3.2015 on the order sheet, not even an
order that the award had been pronounced. The copy of the award is also not part of the record.

Sri Umesh Chandra Yadav, learned counsel for the petitioner submits that the award was
pronounced on 23.3.2015 in the presence of the parties and a copy thereof bearing the signatures of the
Arbitrator was supplied to the petitioner, a photocopy of which has been enclosed with the writ petition.
He undertakes to produce the original copy supplied to him on the next date.

In view of the facts and circumstances of the case as referred to above and disclosed in
the order dated 3.5.2016, it has to be ascertained, if any award, was pronounced by Mr. Subhash Kumar
as Arbitrator on 23.3.2015 in the above three cases and if so, why it is not reflected in the order sheet and
is not available on record.

Even though Mr. Subhash Kumar, who was Arbitrator, is retired from the post of the
Joint Commissioner-cum-Joint Registrar, Co-operative Societies, U.P. Lucknow he is directed to appear
before the court to explain his conduct in this regard.
8 All. Yogesh Kumar Vs State Of U.P. & Ors.
929
The learned standing counsel is directed to inform Mr. Subhash Kumar about this order
and to remain present before the court on the next date.

List on 26.5.2016, on which date he shall remain present.

The original record is returned to the learned standing counsel for keeping it in safe
custody and to retain it till the next date of listing."

5. It may be noticed that the awards are stated to have been delivered by one Sri Subhash
Chandra, in his capacity as an arbitrator, who has not been impleaded as a party to the writ petition.
Respondent no.4 is the present arbitrator in the proceedings, which are under challenge. Pursuant to the
directions issued by this Court, Mr. Subhash Chandra, who was the arbitrator, appeared before this Court,
and is also present today. An affidavit has been filed in the matter by him through his counsel Sri J.K.
Tiwari, Advocate. The arbitrator, who is stated to have delivered the awards, has stated that proceedings
were pending before him, after he was named as an arbitrator by the Additional Registrar on 17.11.2014
for deciding the three cases in question. The arbitrator has following to state in support of the petitioner's
contention that awards in fact had been delivered. Paragraphs 6 to 10 of the affidavit of compliance filed
by Sri Subhash Chandra are reproduced:-

"6. That vide orders dated 17.11.2014 issued by Addl. Commissioner Evam Addl.
Registrar (Law) Cooperatives, U.P., Lucknow, deponent above named was appointed as an Arbitrator for
deciding Arbitration Cases concerned i.e. Arbitration Cases Nos.74/2014-15, 76/2014-15 and 77/2014-15
and deponent was further directed to give his award by 15.02.2015, which may be verified from the record
of the department.

7. That the awards dated 23.03.2015 (Annexure No.2 of the Writ Petition) was delivered
by the deponent on 23.03.2015 at about 5:45 P.M. and copy of which were received by respondents
concerned who were present before the deponent on 23.03.2015.

8. That at the initial stage of preparation of order sheet pertaining to aforesaid awards in
question suddenly deponent felt uneasiness and unwell due to increase of high blood pressure and he left
the office immediately on 23.03.2015 at about 6:00 P.M. with intention to get order sheet prepared on
24.03.2015 after recovery from sudden illness.

9. That vide order dated 24.03.2015 issued by Addl. Commissioner Evam Addl. Registrar
(Law) Cooperatives, U.P., Lucknow the matter pertaining to aforesaid Arbitration Cases No.74/2014-15,
76/2014-15 and 77/2014-15 were withdrawn from the deponent and for disposal of same Sri S.K. Dixit,
Joint Commissioner Evam Joint Registrar Cooperative, Lucknow was appointed Arbitrator and he was
directed to give award by 20.06.2015, which may be verified from the record of the department.

10. That in view of the issuance of the aforesaid order dated 24.03.2015 (Annexure No.A2) issued by the Addl. Commissioner Evam Addl. Registrar (Law) Cooperatives, U.P., Lucknow the
930 INDIAN LAW REPORTS ALLAHABAD SERIES

deponent above named could not completed preparation of order-sheet pertaining to award in question as
he had become functus officio."

6. A counter affidavit has been filed in the matter on behalf of respondent no.5. So far as the
making of the awards by the arbitrator, as alleged in the writ petition, is concerned, it is stated by the said
respondent that in fact proceedings in arbitration were concluded on 19th March, 2015. However, no date
was fixed in the matter, and the respondents were not informed at any stage that any award has been made.
Delivery of awards on 23rd March, 2015 and serving its copies upon respondent no.5 is denied. It is also
brought on record before this Court that serious allegations were levelled against the then arbitrator Sri
Subhash Chandra and prayer was made to change the arbitrator. It is stated that pursuant to such request
made, an order dated 24th March, 2015 was passed, noticing the apprehension expressed by the parties that
they are not likely to get justice at the hands of the then arbitrator, and consequently, the proceedings have
been transferred. The proceedings from Sri Subhash Chandra were withdrawn and transferred to Sri S.K.
Dixit, Joint Commissioner-cum-Joint Registrar. This order withdrawing the proceedings from Sri Subhash
Chandra bears the date of 24th March, 2015. Similar orders have been passed in respect of all three case. It
is stated by the respondents that no award till then had surfaced. It is also stated that the parties remained
under the belief that proceedings of arbitration are pending, and that is why subsequent letters for change
of arbitrator were made by other parties. Reliance has been placed upon a letter sent by Mrs. Asha Yadav
dated 14.7.2015, in which request has been made to change the arbitrator. It is stated that Smt. Asha Yadav
is one of the defendants in arbitration proceedings. Respondents have further brought on record a letter
dated 5th October, 2015, which is signed by 05 persons, including present petitioner, which refers to the
proceedings of the arbitration being continued before one Sri Rajeev Yadav. The letter of petitioner, which
has been enclosed as Annexure-13 to the counter affidavit at page-65, reads as under:-

"सेवा में,

आयुक्त एवं तनबन्धक, सहकारी सतमततयों उ०प्र०

लखनऊ

तवषय मध्यस्थ वाद संख्या-72. 72. 74. 75. 76. 77 एवं 78 की सुनवाई की राजीव यादव संयुक्त आयुक्त एवं संयुक्त
तनबन्धक / एम०डी० पैक िैड अथवा मुख्यालय के तकसी अन्य अतधकारी के यहां स्थानान्तररत तकए जाने हेतु।

महोदय.

कृपया अपने कायाषलय पत्रांक संख्या-211-15, 206-10. 200-05, 195-99, 189-94. 183-88, 177-82/तवतध-3ए/आबी
वाद तदनांक 29 अप्रैल 2015 का सन्दभष ग्रहण करने की कृपा करें जो तक उपरोक्त मध्यस्थ वादों में मध्यस्थ तनयुखक्त तवषयक है।

आपके उपरोक्त सन्दतमषत पत्रांको द्वारा उक्त मध्यस्थ वादों की सुनवाई हेतु श्रीमान संयुक्त आयुक्त एवं संयुक्त
तनबन्धक सहकाररता मेरठ मण्डल, मेरठ श्री राजीव यादव जी को मध्यस्थ तनयुक्त तकया गया था। उनके द्वारा उक्त मध्यस्थ वादों की सुनवाई
लगभग पूणष हो चुकी थी। सुनवाई में वादी प्रतततनतध एवं प्रततवादीगण उपखस्थत हुए तथा वादोत्तर भी प्रस्तुत तकया गया। वादी के गवाहानों को
उपखस्थत होने हेतु अखन्तम तततथ तदनांक 18.06.2015 तनयत की गयी थी परन्तु मध्यस्थ महोदय का स्थानान्तरण हो जाने के कारण उपरोक्त
मध्यस्थ वादों की सुनवाई स्थतगत हो गयी है। इसके अततररक्त यहां यह भी उिेखनीय है तक सहकाररता तवभाग मेरठ मण्डल, मेरठ में अब
संयुक्त आयुक्त एवं संयुक्त तनबन्धक सहाकाररता के पद स्तर का कोई अतधकारी नहीं है। तथा न ही आगरा मण्डल का क्षेत्रातधकार मेरठ
मण्डल में आता है।
8 All. Yogesh Kumar Vs State Of U.P. & Ors.
931
अतएवं ऐसी खस्थतत में उक्त मध्यस्थ वादों की सहकाररता तवभाग मेरठ में सुनवाई तकया जाना उतचत नहीं है तथा पूवष
मध्यस्थ महोदय द्वारा वादों की सुनवाई भी लगभग पूणष की जा चुकी थी।

उपरोक्त के कम में आपसे तनवेदन है तक उपरोक्त सन्दतमषत मध्यस्थ वादों को सुनवाई हेतु श्री राजीव यादव, संयुक्त
आयुक्त एवं संयुक्त तनबन्धक सहकाररता / मैनेतजंग डायरेक्टर पैकिेड अथवा मुख्यालय लखनऊ के तकसी अन्य अतधकारी के यहां
स्थानान्तररत करने की कृपा करें।

आपके इस सहयोग के तलए प्राथीगण सदैव आमारी रहेंगे।

तदनांक 05.10.2015

प्राथीगण-

ह० अपठनीय

ह० अपठनीय
(अतनल प्रकाि दुबे)

 (योगेि कुमार) 154, तसलवर टाउन आगरा।

ह० अपठनीय

ह० अपठनीय
(भोलाराम)

(सत्येन्द्र तसंह) 14/1, िखक्तनगर, आगरा।

ह० अपठनीय
(लेकपाल तसंह)"

7. The respondents have contended that in fact no award was made and the alleged awards, which
have been relied upon by the petitioner, are manufactured documents, which have been brought to their
notice much after the proceedings stood withdrawn from the arbitrator Sri Subhash Chandra, who is
subsequently stated to have retired on 30th April, 2015. Reliance has also been placed upon the provisions
contained under Section 71 of the U.P. Co-operative Societies Act, 1965, as well as Rules 244 to 246
framed under the U.P. Co-operative Societies Rules, 1968, which provide for the conduct of arbitration
proceedings. Rules 244 to 246 of the U.P. Co-operative Societies Rules, 1968, which are relevant for the
present purposes, reads as under:-

"244. The award shall contain the reasons on which the decision is based and shall also
contain an order as to costs, if any, and interest including future interest, if any, and shall also mention the
number of the reference, the names and description of the parties and particulars of the dispute.
245. A copy of the award shall be given to each party, certified and sealed, in such
manner as the Registrar may direct by general or special order.

246. (a) Any award made by an arbitrator or board of arbitrators shall be sent by him or
by the president of the board of arbitrators, as the case may be, with all the papers and proceedings of the
dispute to the Registrar (who appointed the arbitrator or the president of the board of arbitrators in the
case), within 15 days from the date on which the award is made.

(b) Any document or record tendered by a party may, on application, be returned to the
party after-

(i) the disposal of appeal, if any, or
932 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) the period of filing appeal has expired and no appeal has been filed."

8. The counter affidavit filed by the respondent no.5 has not been responded to by filing any
rejoinder affidavit. Instead petitioner has filed a supplementary affidavit today, entertainment whereof has
been seriously objected to by the respondents. In the supplementary affidavit filed by the petitioner,
various allegations have been made against respondent no.5, and various mala fides have been alleged
against him in the matter of conduct of affairs of the society. It has also been stated that proceedings have
been drawn against respondent no.5, who was acting contrary to the interest of the society. Learned
counsel for the petitioner, during the course of submissions, has contended that the proceedings were
sought to be influenced at the instance of the Chief Secretary, and a letter dated 16th June, 2015 has been
brought on record at page-49 of the supplementary affidavit. It is suggested by the counsel for the
petitioner that it was on account of interest exercised by the Chief Secretary that proceedings were being
manipulated.

9. I have heard Sri Colonel Sanjay Sitanshu, learned counsel for the petitioner, learned Standing
Counsel for the respondent nos.1 & 2, Sri R.S. Gupta and Sri Ashish Gupta for the respondent no.5, Sri
J.K. Tiwari has appeared for the arbitrator, who is stated to have passed the awards although he is not a
party to the proceedings, and Sri Sujeet Kumar Rai, learned counsel appearing for the respondent no.4.

10. Issue that requires consideration in the present writ petition is as to whether proceedings of
arbitration in Case Nos.74 of 2014-15, 76 of 2014-15 and 77 of 2014-15 stood concluded with delivery of
awards by the then arbitrator or not on 23.3.2015, and in case it is found that awards have been delivered
then how arbitration proceedings are being continued?

11. Pursuant to the directions issued by this Court, the records of arbitration proceedings have
been produced before this Court. The original records have been scanned by the Court, and the
observations, which have been made after noticing and examining the records, vide order dated 10th May,
2016, are extracted above. It is undisputed between the parties that on 19th March, 2015, proceedings of
arbitration were concluded. It is further admitted between the parties that on that date, no date was fixed for
delivery of award. The original records of the arbitration proceedings, which have been produced before
the Court, also contain no stipulation about fixation of any date on 23rd March, 2015 for delivery of award.
The original records, which have been produced before this Court also does not contain any award of the
arbitrator. The copies of the award, however, have been enclosed alongwith the writ petition, genuineness
whereof has been disputed by the respondents. The arbitrator in his affidavit has stated that he had
delivered the awards on 23rd March, 2015 at 5.45 p.m., and it was received by the respondents concerned,
who were present before the Court on 23rd March, 2015. Petitioner states that he was present on 23rd
March, 2015, as the arbitrator had indicated in the open court on 19th March, 2015 that awards will be
delivered on 23rd March, 2015. This stand of the petitioner as well as of the arbitrator appears to be
contrary to the materials, which exists on record. The proceedings admittedly concluded on 19th March,
2015, and in the order-sheet, there is no endorsement of any date being fixed for delivery of the award. The
arbitrator herein was conducting quasi-judicial proceedings and proceedings were required to have been
duly reflected in the records. The stand taken by the arbitrator before this Court that awards were delivered
8 All. Yogesh Kumar Vs State Of U.P. & Ors.
933
on 23rd March, 2015, does not find support from the proceedings of the arbitration, which have been
produced in original before this Court.

12. In order to further examine the stand of the arbitrator and the petitioner, it would be relevant to
take note of the statutory scheme, which regulates the conduct of arbitration proceedings itself. Rule 244
states that the award shall contain the reasons on which the decision is based and shall also contain an
order as to costs. Rule 245 thereafter provides that a copy of the award shall be given to each party,
certified and sealed, in such manner as the Registrar may direct by general or special order. Rule 246
provides that any award made by an arbitrator or board of arbitrators shall be sent by him or by the
president of the board of arbitrators, as the case may be, with all the papers and proceedings of the dispute
to the Registrar (who appointed the arbitrator or the president of the board of arbitrators in the case), within
15 days from the date on which the award is made. The statutory scheme makes it clear that as soon as an
award is made by the arbitrator, he is enjoined in law to send the award alongwith all papers and
proceedings of the dispute to the Registrar within 15 days. Copy of the award has to be given to each party,
certified and sealed, in such manner as the Registrar may direct by general or special order. In the facts of
the present case, it is to be noticed that in fact the awards delivered by the arbitrator have not even been
claimed to have been sent to the Registrar in the manner contemplated alongwith the proceedings. No
certified copy has been issued either to the petitioner or to the respondents. Unless the award is delivered in
the manner contemplated in law, its delivery cannot be conceived in law.

13. In the facts of the present case, this Court finds that awards as well as proceedings have neither
been sent to the Registrar nor its certified copies have been issued to the parties. This is a material aspect,
which has to be borne in mind. The arbitrator in his affidavit has stated that after he delivered the awards,
he felt uneasiness and he left his office at about 6.00 p.m. with intention to get the order-sheet prepared on
24th March, 2015. It is also stated by him that the proceedings were thereafter withdrawn from his office
on 24th March, 2015 itself, and were transferred to another arbitrator, on account of which he could not
make any endorsement regarding delivery of awards in the order-sheet.

14. This Court, on the basis of materials adduced, finds that not only the records of arbitration
proceedings do not speak about delivery of any award but even the parties including the petitioner were
under a belief that arbitration proceedings are still pending. Reference has been made by the respondents to
a letter sent by one of the persons, who is stated to be a party to the arbitration seeking transfer of the
proceedings, vide letter dated 29th April, 2015. It is further to be noticed that petitioner himself has sent a
letter on 5th October, 2015 objecting to the transfer of proceedings, on the ground that the arbitrator had
fixed a date on 18th June, 2015, and proceedings had to be concluded on that date. Petitioner does not refer
to making of any award by the arbitrator on 23rd March, 2015 in his letter. Contents of the letter signed by
petitioner dated 5.10.2015 have already been extracted above. From the perusal of the letter sent by the
petitioner himself, it is clear that petitioner was not aware about making of any award by the arbitrator, and
he continued to appear in arbitration proceedings thereafter on subsequent dates, and reference has been
made to the last proceedings on 18th June, 2015.

15. A counter affidavit has been filed and served upon the petitioner, but neither any reply has
been filed, nor the letter annexed by the petitioner dated 5.10.2015 has been explained. The petitioner has
934 INDIAN LAW REPORTS ALLAHABAD SERIES

filed subsequent affidavits including a supplementary affidavit, but his act of not filing a rejoinder affidavit
clearly indicates that petitioner has nothing to state in opposition to the materials, which have been brought
on record of the counter affidavit, particularly when the letter stated to have been sent by him on 5th
October, 2015. This Court, therefore, is inclined to draw an inference that petitioner was not aware about
making of any award by the arbitrator till 5th October, 2015. It seems that proceedings of arbitration have
subsequently been transferred to respondent no.4, and at such subsequent stage, the petitioner in collusion
with the then arbitrator has prepared awards, which have been annexed alongwith the writ petition to make
out a case, as is being pleaded before this Court. The facts, which have been noticed, clearly go to show
that neither the original records of the proceedings contain reference of awards, nor the awards have been
sent to the Registrar, as was required under the Rules, and even certified copies have not been issued to the
parties. The plea taken by the then arbitrator that he fell suddenly ill, does not merit any consideration,
inasmuch as no supporting material has been brought on record to substantiate such plea of illness. Even
otherwise, once the arbitrator was conducting the proceedings, and the awards were delivered on 23rd
March, 2015, it was his duty to have maintained the proceedings accordingly, and his stand of delivery of
awards having not been noticed in the order-sheet, due to his illness, lacks bona fide and is, therefore, not
liable to be accepted.

16. In the facts and circumstances, as have been noticed above, this Court is inclined to hold that
the alleged awards have not been delivered in the manner as is contemplated in law, and therefore, cannot
be treated to be awards in the eyes of law. In the absence of proceedings being concluded with delivery of
awards, the proceedings before the arbitrator are liable to be continued.

17. At this stage, it may also be noticed that though learned counsel for the petitioner has tried to
make allegations of mala fide against the Chief Secretary, but such allegation need to be examined by this
Court in absence of the person concerned having been impleaded as a party to the proceedings. Law in this
regard has been settled by the Apex Court in P.K. Jha Vs. State of Jharkhand 2006(9) SCC 458 and in
R.K. Agrawal Vs. State of U.P. 2015 (1) SCC 642, and unless a person is made a party, allegation of mala
fide cannot be looked into. Although the conduct of the then arbitrator warrants making of observations
against him in the matter, but as he has already retired, I refrain from making any further comment.

18. In view of the discussions made, it is held that no award in the eyes of law has been delivered
on 23rd March, 2015, and the copy of the awards, which have been enclosed alongwith the writ petition as
Annexure-2 are no award in the eyes of law. In the absence of there being any award delivered by the
arbitrator, the proceedings before the arbitrator cannot be objected to. Writ petition, consequently, fails and
is dismissed.

19. Since the proceedings before this Court are found to be an abuse of the process of law, the
costs are reduced to Rs.1,000/- upon the prayer made by the counsel for the petitioner, though with a heavy
heart. The original records shall be returned to the office concerned.
-----------
8 All. Nagar Palika Parishad Vs Presiding Officer, Labour Court & Anr.
935
(2016) 8 ILRA 935
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.08.2016

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ C No.- 25467 Of 2013
&
Connected With Other Cases

Nagar Palika Parishad ...Petitioner
Versus
Presiding Officer, Labour Court & Anr. ...Respondents

Counsel for Petitioner:
Sahab Tiwari, Saurabh Tiwari

Counsel for Respondent:
A.K. Dixit, Jamal Khan, S.C., Sunil Kumar Tripathi

U.P. Industrial Disputes Act, 1947 - Section 6-N - Illegal Termination - Daily Wage Employee -
Non-Existent Post -- Workman engaged as Tax Collector on daily wages, terminated without payment of
retrenchment compensation -- Labour Court held termination violative of Section 6-N and awarded
reinstatement with continuity of service and 50% back wages -- Employer, a local authority and 'State' under
Article 12, specifically pleaded before Labour Court that engagement was never against any sanctioned or
vacant post and that constitutionally mandated recruitment procedure was never followed -- Held: Where
employer is 'State' or instrumentality of State, existence of sanctioned post, manner of recruitment and
compliance with Articles 14 and 16 remain relevant considerations even in industrial adjudication. (Para 1)
Relief of Reinstatement - Not Automatic - Compensation in Lieu Thereof -- Held: Reinstatement
with full back wages consequent upon finding of violation of Section 6-N/Section 25-F is not an automatic
relief, particularly where workman engaged on daily wages for short duration -- Monetary compensation in
lieu of reinstatement better subserves ends of justice in such cases, subject to exceptions such as unfair
labour practice or mala fide termination, none of which established here. (Para 2)
Reinstatement Against Non-Existent Post - Violative of Articles 14 and 16 -- Held: Since no
evidence led by workman to show engagement was against any sanctioned vacant post following due
procedure, and specific plea of employer in this regard remaining unrebutted, direction of reinstatement
against non-existent post, or conferring status of permanency through back-door engagement, would itself
offend Articles 14 and 16 of the Constitution. (Para 3)
Quantification of Compensation - Amount Already Realised in Execution -- Held: Considering
workman had worked little over two years more than a decade ago, monetary compensation of Rs. 2,00,000/-
held appropriate in lieu of reinstatement -- Since amount exceeding this sum already realised by workman in
execution proceedings, no further amount held payable and no recovery directed from workman, amount
already paid treated as full and final settlement of claim under Section 6-N. (Para 4)
Connected Proceedings Under Section 33-C(2) - Consequential Setting Aside -- Held: Order passed
under Section 33-C(2) of the Industrial Disputes Act granting regular pay-scale to workman, being founded on
same erroneous premise of subsisting post and valid recruitment, cannot be sustained and is liable to be set