Allahabad High Court
Mohammad Aslam Ullah & 6 Others vs M/S Srawasti Kishan Sahkari Chini Mill ... on 2 January, 2014
Author: Vishnu Chandra Gupta
Bench: Vishnu Chandra Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved : on 9.12.2013 Delivered on : 02.01.2014 AFR Court No. 17 Writ Petition No. 9057 (S/S) of 1990 1. Mohammad Aslam Ullah 2. Mohammad Rafiq 3. Waziruddin 4. Sabbir Hasnain 5. Amrit Lal Vishwakarma 6. Radhey Shyam 7. Imam Ali ............Petitioners Vs. 1. Shravasti Sahkari Chini Mills Ltd, Nanpara Distt. Bahraich 2. Shri S.C.Chaturvedi, G.M. Shravasti Sahkari Chini Mills Ltd, Nanpara Distt. Bahraich 3. The Regional Conciliation Officer, Labour Office, Faizabad 4. Dy. Labour Commissioner, U.P.,Faizabad 5. State of U.P. through Sect. Labour and Welfare Deptt, Lucknow .............. Opposite Parties Counsel for Petitioners:- Manish Mathur Counsel for Opposite Parties:- Anuj Kumar Srivastava And Writ Petition No. 5293 (S/S) of 1994 Mohammad Aslam Ullah Khan S/O Sri Ahsan Ullah Khan R/O H.No.724, Mohalla Naka, Muzafara, City Faizabad. .........Petitioner Vs. 1. Sri Chottey Lal Shekhar, President/G.M. Shravasti Sahkari Chini Mills Ltd, Nanpara Distt. Bahraich. 2. Shravasti Sahkari Chini Mills Ltd, Nanpara Distt. Bahraich through G.M. 3. The Security Officer, Shravasti Sahkari Chini Mills Ltd, Nanpara Distt. Bahraich. ........Opposite Parties Counsel for Petitioner:- Manish Mathur Counsel for Opposite Parties:- Anuj Kumar Srivastava Hon'ble Vishnu Chandra Gupta J.
Judgement
1. Petitioners of writ petition No.9057 (S/S) of 1990 including the petitioner of writ petition No.5293 (S/S) of 1994 are the daily wagers working in Shravasti Sahkari Chini Mills Ltd. Nanpara, Baharich. This Mill is a Cooperative Society under U.P. Cooperative Societies Act with 100% shares of State Of Uttar Pradesh.
2. The services of petitioners are governed by Standing orders of the Mill and rules of Sugar Wages Board. The management of the Mill decided to regularize the services of daily wagers like petitioners, but did not regularize the services of the petitioners. Consequently, an industrial dispute arose on behalf of Petitioners having case No.44 of 1990. During the pendency of industrial dispute, the services of the petitioners were terminated on 23.07.1990. The order of termination was challenged in Writ Petition No. 9057 of 1990 (S/S), wherein an interim protection has been extended to the petitioners vide order dated 05.09.1990 allowing them to continue in service and to pay the wages. When wages as per Sugar Wages Board were not paid, the petitioners filed a claim case under section 15 of Payment of wages Act. In this case the petitioners were awarded amount. The petitioner No.1 also found entitled to the amount of Rs.42384/- The O.P. No.1 instead of filing the appeal under section 17 of payment of wages act filed a writ petition No.4490 of 1993 (S/S) and obtained the interim order staying the operation of order passed under section 15 of Payment of wages Act. In the meantime, industrial dispute reference case was referred by the State Government to Labour Tribunal and was pending on the date of presentation of Writ Petition No.5293 of 1994 (S/S). The Mill management issued a show cause notice on 20/21.07.1993 to the petitioner No.1 due to activities prejudicial to the interest of Mill management and ill mannered actions with other officers and employees of O.P. No.1. An FIR has also been lodged on 08.09.1994 by O.P. No.1, the Mill, against petitioner no.1 alleged to be arrested red handed while committing theft in the Mill premises. On 30.09.1994, the petitioner No.1 was dismissed from service as a daily wager. The industrial Dispute referred to Labour Court was decided against the petitioners vide order dated 15.10.1997 and the claim of regularization of petitioners was declined, the copy of which is annexed as Annexure No. 1 to the counter affidavit filed by O.P.s In writ petition No. 5293 of 1994 (S/S). From the perusal of this award, it appears that petitioner No.2,4,5,6 and 7 were absorbed in service on regular basis, so they withdrew from the proceedings. So far as petitioner No.3 Waziruddin is concerned, he did not contest the matter before labour court nor challenged the award. Consequently, the petitioner No.1 remains here to contest the proceedings.
3. The petitioner No.1 was also acquitted of the charges of theft on 04.01.2002 by Chief Judicial Magistrate, Bahraich in case No.4627 of 1995.
4. By means of Writ Petition No. 5293 of 1994 (S/S) Petitioner Mohammad Aslam Khan (the petitioner No.1 in Writ Petition No.9057 (S/S) of 1990) sought quashing of the aforesaid order dated 30.09.1994 (Annexure-7) terminating his services as a daily wager by issuing a writ order or direction in the nature of certiorari and by issuing a mandamus directing the opposite parties to treat the petitioner in continuous service with all consequential benefit including payment of salary and arrears of pay. It is pertinent to mention here that the petitioner did not challenge the award delivered by Labour Court wherein his claim for regularization has been declined.
5. Since both the petitions are now related to the claim of petitioner Mohammad Aslam Ullaha khan, they are being disposed of by this common judgement.
6. Pleadings were exchanged in both the petitions in between the parties.
7. Heard Sri Manish Mathur, learned Counsel for the petitioner and Sri Anuj Kumar Srivastava, learned counsel for the opposite parties.
8. The learned Counsel for the petitioners submits that the termination of petitioners is bad for two reasons. First; that the services of the petitioners could not be dispensed with during the pendency in the light of section 6-N of U.P. Industrial Disputes Act and secondly; no opportunity of being heard has been provided to the petitioners before termination of their services. It was further urged that similarly situated persons were regularised but the petitioners' services were not regularised rather in a biased manner the services of the petitioners were terminated.
9. Contrary to it, the learned counsel for the opposite parties has submitted that this writ petition is not legally maintainable because the Cooperative Sugar Mill is not the State or instrumentality or agency of the Government as held in General Manager, Kishan Sahkari Chini Mills Ltd, Sultanpur, U.P. Vs Satrughan Nishad and others, (2003) 8 SCC 639. The remedy lies within the provisions of U.P. Cooperative Societies Act 1965 and not before this Court under Article 226 of Constitution of India as held in Ghaziabad Zila Sahkari Bank Ltd. v. Addl. Labour Commissioner, (2007) 11 SCC 756, at page 778.
10. The award delivered by the Labour Court has not been challenged in the present writ petitions, wherein the claim of petitioners for regularization has been turned down.
In this petition, the order of dismissal of petitioners has been challenged on the ground that no opportunity of being heard has been provided to the petitioners.
11. It is not in dispute that a show cause notice has been issued to the petitioners before passing the order of dismissal. It is also not in dispute that the petitioners replied the show cause notice. It is also not in dispute that the petitioners were not the regular employee of Chini Mill but daily wagers. It is also not in dispute that their claim for regularisation has been turned down and no challenge has been made against the order passed by Labour Court. Therefore services of such an employee can be dispensed with at the will of employer without issuing or giving any prior notice. As per standing orders of Mill even a temporary workman who has been appointed temporarily against a permanent, seasonal of temporary post can be terminated without notice. Therefore, it could not be said that the principles of natural justice were violated.
12. It is true that the powers of High Court of judicial review has been discussed in several authorities. On some of them, the petitioner relied upon. I do not burden this judgement by citing and discussing those authorities for the reason that in view of the fact of this case the writ petition under article 226 could not be entertained. It is well settled that if this Court could not invoke its jurisdiction under Article 226 or 227 of Constitution of India, the question of judicial review of the order or action of authority does not arise as held by their Lordships of Constitutional Bench of Supreme Court of India in The State of Uttar Pradesh Vs. Mohammad Nooh, AIR 1958 SC 86.
13. In view of pronouncement of Hon'ble Supreme Court, the present writ petitions would not be maintainable as held General Manager, Kisan Sahkari Chini Mills Ltd., Sultanpur, U.P. v. Satrughan Nishad, (2003) 8 SCC 639, at page 644 :
"5. Shri Rakesh Dwivedi, learned Senior Advocate appearing in support of the appeals, submitted that the contesting respondents could not have been allowed to invoke the writ jurisdiction of the High Court as the Mill, which is a registered cooperative society, was not State within the meaning of Article 12 of the Constitution as it was neither an instrumentality nor an agency of the Government of Uttar Pradesh. On the other hand, Shri Sunil Gupta, learned Senior Advocate appearing on behalf of the contesting respondents, submitted that the Mill was an instrumentality of the Government, as such it was an authority within the meaning of Article 12 of the Constitution.
6. The point raised is no longer res integra as the same is concluded by decisions of this Court. In the case of Ajay Hasia v. Khalid Mujib Sehravard,(1981)1 SCC 722, a Constitution Bench of this Court, while approving the tests laid down in the case of Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489 as to when a corporation can be said to be an instrumentality or agency of the Government, observed at pp. 736-37 which runs thus: (SCC para 9) "9. The tests for determining as to when a corporation can be said to be an instrumentality or agency of Government may now be culled out from the judgement in the International Airport Authority case. These tests are not conclusive or clinching, but they are merely indicatives which have to be used with care and caution, because while stressing the necessity of a wide meaning to be placed on the expression ''other authorities', it must be realised that it should not be stretched so far as to bring in every autonomous body which has some nexus with the Government within the sweep of the expression. A wide enlargement of the meaning must be tempered by a wise limitation. We may summarise the relevant tests gathered from the decision in the International Airport Authority case as follows:
(1) One thing is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government. (SCC p. 507, para 14) (2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character. (SCC p. 508, para 15) (3) It may also be a relevant factor ... whether the corporation enjoys monopoly status which is State-conferred or State-protected. (SCC p. 508, para 15) (4) Existence of deep and pervasive State control may afford an that the corporation is a State agency or instrumentality. (SCC p.508, para 15) (5) If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government. (SCC p. 509, para 16) (6) ''Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference' of the corporation being an instrumentality or agency of Government. (SCC p. 510, para 18)"
In para 9 at page 467-648 the Apex Court concluded as follows:
"This being the position in that case, this Court held that the High Court has no jurisdiction to entertain an application under Article 226 of the Constitution. In the present case, the Mill is engaged in the manufacture and sale of sugar which, on the same analogy, would not involve any public function. Thus, we have no difficulty in holding that the jurisdiction of the High Court under Article 226 of the Constitution could not have been invoked."
14. In Ghaziabad Zila Sahkari Bank Ltd. v. Addl. Labour Commissioner, (2007) 11 SCC 756, at page 778, the Apex Court ruled as under :
"61. The general legal principle in interpretation of statutes is that "the general Act should lead to the special Act". Upon this general principle of law, the intention of the U.P. Legislature is clear, that the special enactment U.P. Cooperative Societies Act, 1965 alone should apply in the matter of employment by cooperative societies to the exclusion of all other labour laws. It is a complete code in itself as regards employment in cooperative societies and its machinery and provisions. The general Act, the U.P. Industrial Disputes Act, 1947as a whole has and can have no applicability and stands excluded after the enforcement of the U.P. Cooperative Societies Act. This is also clear from necessary implication that the legislature could not have intended head-on conflict and collision between authorities under different Acts."
15. The aforesaid pronouncement of Highest Court of India leaves no room to doubt that the remedy, if any lies for petitioners, the same would be within the four corners of U.P. Cooperative Societies Act and not in this Court.
16. In view of the aforesaid discussions made both the writ petitions deserve to be dismissed, hence accordingly dismissed but with no order as to costs.
Dated:02, January,2014/GSY (Hon'ble Vishnu Chandra Gupta J)