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U.P. STATE ROAD TRANSPORT CORPORATION AND ORS versus PRESIDING OFFICER AND OTHERS

High Court of Judicature at Allahabad

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U.P. State Road Transport Corporation And Ors v. Presiding Officer And Others - WRIT - C No. 609 of 1999 [2005] RD-AH 5586 (10 November 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO. 26

CIVIL MISC. WRIT PETITION NO. 609 OF 1999

U.P. State Road Transport Corporation

versus

Presiding Officer, Industrial Tribunal (5) U.P. Meerut & another

HON. SHISHIR KUMAR, J.

The present writ petition has been filed for quashing the order-dated 26.6.1998 passed by the Labour Court, which was published on 11.8.1998.

The facts arising out of the present writ petition is that respondent no.2 who was working on a temporary post of Conductor, when he was on duty on 8.1.1983 on Bus No. UTG-8409, Khatauli, his bus was checked by the raiding party and it was found that a wrong entry was made on the waybill and certain passengers were traveling without ticket. Disciplinary proceedings were initiated against respondent no.2 and after full-fledged inquiry, his services were terminated. Respondent no.2 filed an appeal and that too was dismissed. In the mean time, the petitioner approached the Labour Court as well as this court by way of writ petition in 1987. The writ petition was disposed of finally in view of the judgment rendered in Civil Misc. Writ petition No.8363 of 1986, Bhopal Singh Vs. U.P.S.R.T.C. and others by order dated 28.1.1987. This Court taking into the analogy of the Bhopal Singh's case has set aside the order of removal and has directed for reinstatement and it has also been stated that respondent no.2 will be entitled for back wages. On the basis of the aforesaid order passed by this Court, the respondent no.2 was reinstated. When the matter was decided by the High Court an application by the petitioner was filed before the Labour Court that now in view of the judgment rendered in the writ petition filed on behalf of respondent no. 2, there is no dispute. The said application was filed on 24.2.1987. The Labour Court, Meerut has passed an order on 27.2.1987 in Adjudication Case No.235 of 1986 holding therein that as there was no dispute now therefore, no relief can be granted to respondent no.2.

In the mean time an Ordinance has been issued by the State of U.P. dated 29.7.1987 by which the Governor of U.P. has issued an Ordinance that the actions which have been taken by the U.P. Road transport Corporation earlier will be treated to be valid, meaning thereby that the officers who had initiated certain actions against the employees, though it has been held in Bhopal Singh's case that the orders were without jurisdiction, but by the U.P. Act No.15 of 1987 it has been provided that the actions which have been taken by the officers, were empowered and the powers have been conferred retrospectively. Clause 3 of the said Ordinance is reproduced below:

"Notwithstanding any judgment, decree or order or any Court, tribunal or other authority or any provisions of the Uttar Pradesh State Road Transport Corporation Employees (other than Officers, Service Regulations,1981, orders made, actions or proceedings taken or jurisdiction exercised on or after June 19,1981 by the officers authorized as appointing authorities by the Uttar Pradesh State Road Transport Corporation under clause (C) of sub-section (1) of Section 12 of the Road Transport Corporation Act, 1950 shall be deemed to be illegal or void or ever to have become illegal or void merely on the ground that such authorized officers were not the appointing authorities."

As stated above respondent no.2 was reinstated but as the services of respondent no.2 were terminated after following the proper procedure, therefore, an order was passed by the Competent Authority dated 25.6.1987, Annexures-2 to the counter affidavit by which it has clearly been stated that in view of the subsequent fact, the officers of the State Corporation have been empowered as appointing authority. As such the order of removal against respondent no.2 dated 30.8.1983 stands revived.

Aggrieved by the aforesaid order, a dispute was raised by respondent no.2 before the Labour Court and the Labour Court vide its order dated 14.1.1988 has quashed the order of termination dated 25.6.1987 and an order of reinstatement with full back wages and continuity in service has been passed.

Sri Sameer Sharma who appears for the petitoner has submitted that in view of the subsequent development and the Act No.15 of 1987, the retrospective powers have been conferred to the officers of the U.P. State Road Transport Corporation and the validity of the same was challenged and it has been upheld by the Court, therefore, in view of the aforesaid fact as provided the order of termination was revived, because the controversy in Bhopal Singh's case was only whether the authority who had passed the order  was having any jurisdiction to pass the order of termination/removal or dismissal. Now by virtue of Act No.15 of 1987, the various acts which had been done by the officers of the Corporation have been validated, therefore, the order reviving the removal order of the respondent no.2 cannot be held to be invalid. Further submission made on behalf of Sri Sameer Sharma is that the finding recorded by the Labour Court to the effect that there was a settlement and on the basis of the settlement the earlier award was adjudicated, is a finding, which is apparently illegal on the face of the record because in the earlier award nothing was decided. Information to this effect was given to the Labour Court that as the writ petition filed on behalf of respondent no.2 has been allowed on a technical ground, therefore, now there is no dispute. But now the Labour Court vide its award dated 14.8.1988 has taken only consideration that as there was a settlement earlier between the parties, therefore, the parties cannot go behind the settlement between the parties. The counsel for the petitoner further submits that nothing has been adjudicated by the Labour Court on merits. The Labour Court without entering into the merits of the case cannot pass an order of reinstatement with full back wages. The finding to this effect that the Act permits the Corporation empowers the appointing authority but it has no where stated that the orders passed earlier will become valid by conferring the power in view of the Act No.15 of 1987. Sri Sharma has placed reliance on clause 3 of the said Act.

It has further been submitted by Sri Sameer Sharma that in a similar type of controversy in which the order of removal of the employee was held to be invalid in view of the Bhopal Singh's case and he was reinstated but subsequently in view of Act No.15 of 1987, the order of removal was held to be valid and the same was revived. The employee concerned approached this Court by filing Writ Petitions No.12382 and 12298 of 1987, between Nagendra Prakash Sharma Vs. Regional Manager decided on 10.12.1987 reported in 1988 Vol. 56 F.L.R. Page 185. Reliance has been placed on the finding recorded by the Division Bench. The same is being reproduced as below:

"The submission that the Ordinance purports to overrule the decision of the Court is also without substance as it is firmly established that a legislature can remove the defects in the Act or rule from retrospective effect.  It is not legislative overruling but removal of defects thereby rendering the law valid Tirath Ram Rajendra Prasad, (24) M/s Hindustan  Gum and Chemicals Ltd. V. State of Haryana. (25)

Similarly the argument that Ordinance suffers from vice of Article14 appears to be without any merits.  Validation of provision with retrospective effect or enactment of a law to remove defects in existing law from back date cannot be prima facie held to be discriminatory.  Argument that Ordinance defines appointing authority from June 1981, and validates delegation has been given in 1986, and therefore, the action is arbitrary is mis-conceived.  Appointing Authority under the ordinance and even under the fresh exercise of powers being the same no plea of discrimination can be raised.  Delegation in 1986 was restored to because of the decisions given by this court.  Earlier resolution passed in 1974 had been superseded.  Till then ordinance had not been issued.  In any case the delegation of power under regulation framed in 1981 does not in any manner contravene the provisions of the ordinance.

In view of what has been stated above it is not necessary to narrate any fact, but fact of the case of Bhopal Singh and another (supra) may be mentioned to understand the circumstances and background in which controversy had arisen.  The petitioner was appointed as conductor on 1.1.1978 by Assistant Regional Manager, Varanasi.  He was charge-sheeted on 1st  July, 1985 and after explanation and show-cause notice was subsequently removed from service on 27th February, 1986.  Order of removal was quashed by this court on 10th September, 1986 as no valid delegation subsisted on the date the action was taken. The order was confirmed by the Hon'ble Supreme Court on 20th January, 1987.  On 20th December, 1986, Board of Directors delegated power to various officers by a resolution in exercise of powers under Section 12 (1) (c) of Act 64 of 1950.  On 17th May, 1987 ordinance was issued.  By virtue of ordinance of defence pointed out by this court stood removed, consequently law officer of the corporation issued circular on 6th June, 1987 to terminate services of Bhopal Singh  and on 16th June, 1987 Regional Manager terminated his services. Similar orders were passed in respect of various employees. Since ordinance has been held to be valid the defect in removal order passed in February, 1986 stands removed and Regional Manager did not commit any error of law in terminating petitioners service on 16th June, 1987."  

On the other hand, Sri Siddharth who appears for the respondents has submitted that in the application which was filed by the Corporation, the corporation themselves has stated this fact that there was no issue now after the orders passed by the High Court, therefore, reference decided accordingly is settled. As the officers of the corporation themselves have stated this fact that issue is settled and now they are stopped from changing the stand taken earlier. The judgment and order passed by the Labour Court; there was no occasion for the Labour Court to go beyond the settlement, which has already been arrived. The judgment and order passed by the Labour Court is valid and the writ petition is liable to be dismissed.

I have heard Sri Sameer Sharma counsel for the petitoner and Sri Siddharth counsel for the respondents and have perused the record. It is not in dispute that the Labour Court has passed an order only taking into consideration the order passed in the earlier award. It is also not in dispute that in Bhopal Singh's case the only question was involved that whether the officers of the Corporation who had taken the disciplinary action against their employee were having any jurisdiction to pass such order. This court in a Division Bench   Judgment has held that the order passed by the authorities is without jurisdiction. But subsequently, the Governor has issued Ordinance and subsequently, it has become an Act which is called Act No.15 of 1987 by which the power has been conferred retrospectively and the validity of the said Act has been upheld by the Apex Court and as there is a clear provision that the earlier orders will be treated to be valid, therefore, immediately the order of removal of respondent no.2 became valid and as such the authorities have passed the order. I have perused the Labour court award. The Labour Court has not considered the case on merits. Only it has given an award in favour of respondent no.2 on the basis that, as there was a settlement in the earlier award as such the subsequent order removing the petitoner on the basis of the earlier disciplinary proceeding cannot be passed. In my opinion the Labour Court has clearly misread the application filed on behalf of the Corporation and as this application was information to the Labour Court that as on the basis of the judgment passed by the High Court, respondent no.2 has been reinstated. Therefore, there is no adjudication left now. In my opinion there was no occasion for the Labour court to mention this fact in its order-dated 27.2.1987 stating as under:

^"eS ;g ,okMZ nsrk gwW fd lEcfU/kr Jfed vc bl zU;k;ky; ls bl ckn esa fdlh ykHk ;k vuqrkszzi ds ikus dk vf/kdkjh ugh gS"*

As there was nothing to be adjudicated, therefore, mentioning this fact that the award is being given, there was no occasion for the Labour Court to mention the said fact.

In the subsequent proceeding the Labour Court has only taken into consideration the earlier order dated 27.2.87 and has passed an award in favour of the respondent no.2. In my opinion, this view of the Labour court is apparently against the evidence on record and the Labour Court has clearly misread the earlier award dated 27.2.1982.

In view of the aforesaid fact in my opinion the order dated 14.1.1998 in Adjudication Case No.170 of 1991, Annexure-1 to the writ petition passed by the Labour court cannot be sustained and the same is hereby set aside. It is however open to respondent no.2 to make a reference application regarding his grievance. It is however, observed that if the State Government makes a reference to the Labour Court, the Labour Court may consider and decide the same on merits.

10.11.2005

V.Sri/-

COURT NO. 26

CIVIL MISC. WRIT PETITION NO. 609 OF 1999

U.P. State Road Transport Corporation

versus

Presiding Officer, Industrial Tribunal (5) U.P. Meerut & another

HON. SHISHIR KUMAR, J.

The present writ petition has been filed for quashing the order-dated 26.6.1998 passed by the Labour Court, which was published on 11.8.1998.

The facts arising out of the present writ petition is that respondent no.2 who was working on a temporary post of Conductor, when he was on duty on 8.1.1983 on Bus No. UTG-8409, Khatauli, his bus was checked by the raiding party and it was found that a wrong entry was made on the waybill and certain passengers were traveling without ticket. Disciplinary proceedings were initiated against respondent no.2 and after full-fledged inquiry, his services were terminated. Respondent no.2 filed an appeal and that too was dismissed. In the mean time, the petitioner approached the Labour Court as well as this court by way of writ petition in 1987. The writ petition was disposed of finally in view of the judgment rendered in Civil Misc. Writ petition No.8363 of 1986, Bhopal Singh Vs. U.P.S.R.T.C. and others by order dated 28.1.1987. This Court taking into the analogy of the Bhopal Singh's case has set aside the order of removal and has directed for reinstatement and it has also been stated that respondent no.2 will be entitled for back wages. On the basis of the aforesaid order passed by this Court, the respondent no.2 was reinstated. When the matter was decided by the High Court an application by the petitioner was filed before the Labour Court that now in view of the judgment rendered in the writ petition filed on behalf of respondent no. 2, there is no dispute. The said application was filed on 24.2.1987. The Labour Court, Meerut has passed an order on 27.2.1987 in Adjudication Case No.235 of 1986 holding therein that as there was no dispute now therefore, no relief can be granted to respondent no.2.

In the mean time an Ordinance has been issued by the State of U.P. dated 29.7.1987 by which the Governor of U.P. has issued an Ordinance that the actions which have been taken by the U.P. Road transport Corporation earlier will be treated to be valid, meaning thereby that the officers who had initiated certain actions against the employees, though it has been held in Bhopal Singh's case that the orders were without jurisdiction, but by the U.P. Act No.15 of 1987 it has been provided that the actions which have been taken by the officers, were empowered and the powers have been conferred retrospectively. Clause 3 of the said Ordinance is reproduced below:

"Notwithstanding any judgment, decree or order or any Court, tribunal or other authority or any provisions of the Uttar Pradesh State Road Transport Corporation Employees (other than Officers, Service Regulations,1981, orders made, actions or proceedings taken or jurisdiction exercised on or after June 19,1981 by the officers authorized as appointing authorities by the Uttar Pradesh State Road Transport Corporation under clause (C) of sub-section (1) of Section 12 of the Road Transport Corporation Act, 1950 shall be deemed to be illegal or void or ever to have become illegal or void merely on the ground that such authorized officers were not the appointing authorities."

As stated above respondent no.2 was reinstated but as the services of respondent no.2 were terminated after following the proper procedure, therefore, an order was passed by the Competent Authority dated 25.6.1987, Annexures-2 to the counter affidavit by which it has clearly been stated that in view of the subsequent fact, the officers of the State Corporation have been empowered as appointing authority. As such the order of removal against respondent no.2 dated 30.8.1983 stands revived.

Aggrieved by the aforesaid order, a dispute was raised by respondent no.2 before the Labour Court and the Labour Court vide its order dated 14.1.1988 has quashed the order of termination dated 25.6.1987 and an order of reinstatement with full back wages and continuity in service has been passed.

Sri Sameer Sharma who appears for the petitoner has submitted that in view of the subsequent development and the Act No.15 of 1987, the retrospective powers have been conferred to the officers of the U.P. State Road Transport Corporation and the validity of the same was challenged and it has been upheld by the Court, therefore, in view of the aforesaid fact as provided the order of termination was revived, because the controversy in Bhopal Singh's case was only whether the authority who had passed the order  was having any jurisdiction to pass the order of termination/removal or dismissal. Now by virtue of Act No.15 of 1987, the various acts which had been done by the officers of the Corporation have been validated, therefore, the order reviving the removal order of the respondent no.2 cannot be held to be invalid. Further submission made on behalf of Sri Sameer Sharma is that the finding recorded by the Labour Court to the effect that there was a settlement and on the basis of the settlement the earlier award was adjudicated, is a finding, which is apparently illegal on the face of the record because in the earlier award nothing was decided. Information to this effect was given to the Labour Court that as the writ petition filed on behalf of respondent no.2 has been allowed on a technical ground, therefore, now there is no dispute. But now the Labour Court vide its award dated 14.8.1988 has taken only consideration that as there was a settlement earlier between the parties, therefore, the parties cannot go behind the settlement between the parties. The counsel for the petitoner further submits that nothing has been adjudicated by the Labour Court on merits. The Labour Court without entering into the merits of the case cannot pass an order of reinstatement with full back wages. The finding to this effect that the Act permits the Corporation empowers the appointing authority but it has no where stated that the orders passed earlier will become valid by conferring the power in view of the Act No.15 of 1987. Sri Sharma has placed reliance on clause 3 of the said Act.

It has further been submitted by Sri Sameer Sharma that in a similar type of controversy in which the order of removal of the employee was held to be invalid in view of the Bhopal Singh's case and he was reinstated but subsequently in view of Act No.15 of 1987, the order of removal was held to be valid and the same was revived. The employee concerned approached this Court by filing Writ Petitions No.12382 and 12298 of 1987, between Nagendra Prakash Sharma Vs. Regional Manager decided on 10.12.1987 reported in 1988 Vol. 56 F.L.R. Page 185. Reliance has been placed on the finding recorded by the Division Bench. The same is being reproduced as below:

"The submission that the Ordinance purports to overrule the decision of the Court is also without substance as it is firmly established that a legislature can remove the defects in the Act or rule from retrospective effect.  It is not legislative overruling but removal of defects thereby rendering the law valid Tirath Ram Rajendra Prasad, (24) M/s Hindustan  Gum and Chemicals Ltd. V. State of Haryana. (25)

Similarly the argument that Ordinance suffers from vice of Article14 appears to be without any merits.  Validation of provision with retrospective effect or enactment of a law to remove defects in existing law from back date cannot be prima facie held to be discriminatory.  Argument that Ordinance defines appointing authority from June 1981, and validates delegation has been given in 1986, and therefore, the action is arbitrary is mis-conceived.  Appointing Authority under the ordinance and even under the fresh exercise of powers being the same no plea of discrimination can be raised.  Delegation in 1986 was restored to because of the decisions given by this court.  Earlier resolution passed in 1974 had been superseded.  Till then ordinance had not been issued.  In any case the delegation of power under regulation framed in 1981 does not in any manner contravene the provisions of the ordinance.

In view of what has been stated above it is not necessary to narrate any fact, but fact of the case of Bhopal Singh and another (supra) may be mentioned to understand the circumstances and background in which controversy had arisen.  The petitioner was appointed as conductor on 1.1.1978 by Assistant Regional Manager, Varanasi.  He was charge-sheeted on 1st  July, 1985 and after explanation and show-cause notice was subsequently removed from service on 27th February, 1986.  Order of removal was quashed by this court on 10th September, 1986 as no valid delegation subsisted on the date the action was taken. The order was confirmed by the Hon'ble Supreme Court on 20th January, 1987.  On 20th December, 1986, Board of Directors delegated power to various officers by a resolution in exercise of powers under Section 12 (1) (c) of Act 64 of 1950.  On 17th May, 1987 ordinance was issued.  By virtue of ordinance of defence pointed out by this court stood removed, consequently law officer of the corporation issued circular on 6th June, 1987 to terminate services of Bhopal Singh  and on 16th June, 1987 Regional Manager terminated his services. Similar orders were passed in respect of various employees. Since ordinance has been held to be valid the defect in removal order passed in February, 1986 stands removed and Regional Manager did not commit any error of law in terminating petitioners service on 16th June, 1987."  

On the other hand, Sri Siddharth who appears for the respondents has submitted that in the application which was filed by the Corporation, the corporation themselves has stated this fact that there was no issue now after the orders passed by the High Court, therefore, reference decided accordingly is settled. As the officers of the corporation themselves have stated this fact that issue is settled and now they are stopped from changing the stand taken earlier. The judgment and order passed by the Labour Court; there was no occasion for the Labour Court to go beyond the settlement, which has already been arrived. The judgment and order passed by the Labour Court is valid and the writ petition is liable to be dismissed.

I have heard Sri Sameer Sharma counsel for the petitoner and Sri Siddharth counsel for the respondents and have perused the record. It is not in dispute that the Labour Court has passed an order only taking into consideration the order passed in the earlier award. It is also not in dispute that in Bhopal Singh's case the only question was involved that whether the officers of the Corporation who had taken the disciplinary action against their employee were having any jurisdiction to pass such order. This court in a Division Bench   Judgment has held that the order passed by the authorities is without jurisdiction. But subsequently, the Governor has issued Ordinance and subsequently, it has become an Act which is called Act No.15 of 1987 by which the power has been conferred retrospectively and the validity of the said Act has been upheld by the Apex Court and as there is a clear provision that the earlier orders will be treated to be valid, therefore, immediately the order of removal of respondent no.2 became valid and as such the authorities have passed the order. I have perused the Labour court award. The Labour Court has not considered the case on merits. Only it has given an award in favour of respondent no.2 on the basis that, as there was a settlement in the earlier award as such the subsequent order removing the petitoner on the basis of the earlier disciplinary proceeding cannot be passed. In my opinion the Labour Court has clearly misread the application filed on behalf of the Corporation and as this application was information to the Labour Court that as on the basis of the judgment passed by the High Court, respondent no.2 has been reinstated. Therefore, there is no adjudication left now. In my opinion there was no occasion for the Labour court to mention this fact in its order-dated 27.2.1987 stating as under:

^"eS ;g ,okMZ nsrk gwW fd lEcfU/kr Jfed vc bl zU;k;ky; ls bl ckn esa fdlh ykHk ;k vuqrkszzi ds ikus dk vf/kdkjh ugh gS"*

As there was nothing to be adjudicated, therefore, mentioning this fact that the award is being given, there was no occasion for the Labour Court to mention the said fact.

In the subsequent proceeding the Labour Court has only taken into consideration the earlier order dated 27.2.87 and has passed an award in favour of the respondent no.2. In my opinion, this view of the Labour court is apparently against the evidence on record and the Labour Court has clearly misread the earlier award dated 27.2.1982.

In view of the aforesaid fact in my opinion the order dated 14.1.1998 in Adjudication Case No.170 of 1991, Annexure-1 to the writ petition passed by the Labour court cannot be sustained and the same is hereby set aside. It is however open to respondent no.2 to make a reference application regarding his grievance. It is however, observed that if the State Government makes a reference to the Labour Court, the Labour Court may consider and decide the same on merits.

10.11.2005

V.Sri/-

COURT NO. 26

CIVIL MISC. WRIT PETITION NO. 609 OF 1999

U.P. State Road Transport Corporation

versus

Presiding Officer, Industrial Tribunal (5) U.P. Meerut & another

HON. SHISHIR KUMAR, J.

The present writ petition has been filed for quashing the order-dated 26.6.1998 passed by the Labour Court, which was published on 11.8.1998.

The facts arising out of the present writ petition is that respondent no.2 who was working on a temporary post of Conductor, when he was on duty on 8.1.1983 on Bus No. UTG-8409, Khatauli, his bus was checked by the raiding party and it was found that a wrong entry was made on the waybill and certain passengers were traveling without ticket. Disciplinary proceedings were initiated against respondent no.2 and after full-fledged inquiry, his services were terminated. Respondent no.2 filed an appeal and that too was dismissed. In the mean time, the petitioner approached the Labour Court as well as this court by way of writ petition in 1987. The writ petition was disposed of finally in view of the judgment rendered in Civil Misc. Writ petition No.8363 of 1986, Bhopal Singh Vs. U.P.S.R.T.C. and others by order dated 28.1.1987. This Court taking into the analogy of the Bhopal Singh's case has set aside the order of removal and has directed for reinstatement and it has also been stated that respondent no.2 will be entitled for back wages. On the basis of the aforesaid order passed by this Court, the respondent no.2 was reinstated. When the matter was decided by the High Court an application by the petitioner was filed before the Labour Court that now in view of the judgment rendered in the writ petition filed on behalf of respondent no. 2, there is no dispute. The said application was filed on 24.2.1987. The Labour Court, Meerut has passed an order on 27.2.1987 in Adjudication Case No.235 of 1986 holding therein that as there was no dispute now therefore, no relief can be granted to respondent no.2.

In the mean time an Ordinance has been issued by the State of U.P. dated 29.7.1987 by which the Governor of U.P. has issued an Ordinance that the actions which have been taken by the U.P. Road transport Corporation earlier will be treated to be valid, meaning thereby that the officers who had initiated certain actions against the employees, though it has been held in Bhopal Singh's case that the orders were without jurisdiction, but by the U.P. Act No.15 of 1987 it has been provided that the actions which have been taken by the officers, were empowered and the powers have been conferred retrospectively. Clause 3 of the said Ordinance is reproduced below:

"Notwithstanding any judgment, decree or order or any Court, tribunal or other authority or any provisions of the Uttar Pradesh State Road Transport Corporation Employees (other than Officers, Service Regulations,1981, orders made, actions or proceedings taken or jurisdiction exercised on or after June 19,1981 by the officers authorized as appointing authorities by the Uttar Pradesh State Road Transport Corporation under clause (C) of sub-section (1) of Section 12 of the Road Transport Corporation Act, 1950 shall be deemed to be illegal or void or ever to have become illegal or void merely on the ground that such authorized officers were not the appointing authorities."

As stated above respondent no.2 was reinstated but as the services of respondent no.2 were terminated after following the proper procedure, therefore, an order was passed by the Competent Authority dated 25.6.1987, Annexures-2 to the counter affidavit by which it has clearly been stated that in view of the subsequent fact, the officers of the State Corporation have been empowered as appointing authority. As such the order of removal against respondent no.2 dated 30.8.1983 stands revived.

Aggrieved by the aforesaid order, a dispute was raised by respondent no.2 before the Labour Court and the Labour Court vide its order dated 14.1.1988 has quashed the order of termination dated 25.6.1987 and an order of reinstatement with full back wages and continuity in service has been passed.

Sri Sameer Sharma who appears for the petitoner has submitted that in view of the subsequent development and the Act No.15 of 1987, the retrospective powers have been conferred to the officers of the U.P. State Road Transport Corporation and the validity of the same was challenged and it has been upheld by the Court, therefore, in view of the aforesaid fact as provided the order of termination was revived, because the controversy in Bhopal Singh's case was only whether the authority who had passed the order  was having any jurisdiction to pass the order of termination/removal or dismissal. Now by virtue of Act No.15 of 1987, the various acts which had been done by the officers of the Corporation have been validated, therefore, the order reviving the removal order of the respondent no.2 cannot be held to be invalid. Further submission made on behalf of Sri Sameer Sharma is that the finding recorded by the Labour Court to the effect that there was a settlement and on the basis of the settlement the earlier award was adjudicated, is a finding, which is apparently illegal on the face of the record because in the earlier award nothing was decided. Information to this effect was given to the Labour Court that as the writ petition filed on behalf of respondent no.2 has been allowed on a technical ground, therefore, now there is no dispute. But now the Labour Court vide its award dated 14.8.1988 has taken only consideration that as there was a settlement earlier between the parties, therefore, the parties cannot go behind the settlement between the parties. The counsel for the petitoner further submits that nothing has been adjudicated by the Labour Court on merits. The Labour Court without entering into the merits of the case cannot pass an order of reinstatement with full back wages. The finding to this effect that the Act permits the Corporation empowers the appointing authority but it has no where stated that the orders passed earlier will become valid by conferring the power in view of the Act No.15 of 1987. Sri Sharma has placed reliance on clause 3 of the said Act.

It has further been submitted by Sri Sameer Sharma that in a similar type of controversy in which the order of removal of the employee was held to be invalid in view of the Bhopal Singh's case and he was reinstated but subsequently in view of Act No.15 of 1987, the order of removal was held to be valid and the same was revived. The employee concerned approached this Court by filing Writ Petitions No.12382 and 12298 of 1987, between Nagendra Prakash Sharma Vs. Regional Manager decided on 10.12.1987 reported in 1988 Vol. 56 F.L.R. Page 185. Reliance has been placed on the finding recorded by the Division Bench. The same is being reproduced as below:

"The submission that the Ordinance purports to overrule the decision of the Court is also without substance as it is firmly established that a legislature can remove the defects in the Act or rule from retrospective effect.  It is not legislative overruling but removal of defects thereby rendering the law valid Tirath Ram Rajendra Prasad, (24) M/s Hindustan  Gum and Chemicals Ltd. V. State of Haryana. (25)

Similarly the argument that Ordinance suffers from vice of Article14 appears to be without any merits.  Validation of provision with retrospective effect or enactment of a law to remove defects in existing law from back date cannot be prima facie held to be discriminatory.  Argument that Ordinance defines appointing authority from June 1981, and validates delegation has been given in 1986, and therefore, the action is arbitrary is mis-conceived.  Appointing Authority under the ordinance and even under the fresh exercise of powers being the same no plea of discrimination can be raised.  Delegation in 1986 was restored to because of the decisions given by this court.  Earlier resolution passed in 1974 had been superseded.  Till then ordinance had not been issued.  In any case the delegation of power under regulation framed in 1981 does not in any manner contravene the provisions of the ordinance.

In view of what has been stated above it is not necessary to narrate any fact, but fact of the case of Bhopal Singh and another (supra) may be mentioned to understand the circumstances and background in which controversy had arisen.  The petitioner was appointed as conductor on 1.1.1978 by Assistant Regional Manager, Varanasi.  He was charge-sheeted on 1st  July, 1985 and after explanation and show-cause notice was subsequently removed from service on 27th February, 1986.  Order of removal was quashed by this court on 10th September, 1986 as no valid delegation subsisted on the date the action was taken. The order was confirmed by the Hon'ble Supreme Court on 20th January, 1987.  On 20th December, 1986, Board of Directors delegated power to various officers by a resolution in exercise of powers under Section 12 (1) (c) of Act 64 of 1950.  On 17th May, 1987 ordinance was issued.  By virtue of ordinance of defence pointed out by this court stood removed, consequently law officer of the corporation issued circular on 6th June, 1987 to terminate services of Bhopal Singh  and on 16th June, 1987 Regional Manager terminated his services. Similar orders were passed in respect of various employees. Since ordinance has been held to be valid the defect in removal order passed in February, 1986 stands removed and Regional Manager did not commit any error of law in terminating petitioners service on 16th June, 1987."  

On the other hand, Sri Siddharth who appears for the respondents has submitted that in the application which was filed by the Corporation, the corporation themselves has stated this fact that there was no issue now after the orders passed by the High Court, therefore, reference decided accordingly is settled. As the officers of the corporation themselves have stated this fact that issue is settled and now they are stopped from changing the stand taken earlier. The judgment and order passed by the Labour Court; there was no occasion for the Labour Court to go beyond the settlement, which has already been arrived. The judgment and order passed by the Labour Court is valid and the writ petition is liable to be dismissed.

I have heard Sri Sameer Sharma counsel for the petitoner and Sri Siddharth counsel for the respondents and have perused the record. It is not in dispute that the Labour Court has passed an order only taking into consideration the order passed in the earlier award. It is also not in dispute that in Bhopal Singh's case the only question was involved that whether the officers of the Corporation who had taken the disciplinary action against their employee were having any jurisdiction to pass such order. This court in a Division Bench   Judgment has held that the order passed by the authorities is without jurisdiction. But subsequently, the Governor has issued Ordinance and subsequently, it has become an Act which is called Act No.15 of 1987 by which the power has been conferred retrospectively and the validity of the said Act has been upheld by the Apex Court and as there is a clear provision that the earlier orders will be treated to be valid, therefore, immediately the order of removal of respondent no.2 became valid and as such the authorities have passed the order. I have perused the Labour court award. The Labour Court has not considered the case on merits. Only it has given an award in favour of respondent no.2 on the basis that, as there was a settlement in the earlier award as such the subsequent order removing the petitoner on the basis of the earlier disciplinary proceeding cannot be passed. In my opinion the Labour Court has clearly misread the application filed on behalf of the Corporation and as this application was information to the Labour Court that as on the basis of the judgment passed by the High Court, respondent no.2 has been reinstated. Therefore, there is no adjudication left now. In my opinion there was no occasion for the Labour court to mention this fact in its order-dated 27.2.1987 stating as under:

^"eS ;g ,okMZ nsrk gwW fd lEcfU/kr Jfed vc bl zU;k;ky; ls bl ckn esa fdlh ykHk ;k vuqrkszzi ds ikus dk vf/kdkjh ugh gS"*

As there was nothing to be adjudicated, therefore, mentioning this fact that the award is being given, there was no occasion for the Labour Court to mention the said fact.

In the subsequent proceeding the Labour Court has only taken into consideration the earlier order dated 27.2.87 and has passed an award in favour of the respondent no.2. In my opinion, this view of the Labour court is apparently against the evidence on record and the Labour Court has clearly misread the earlier award dated 27.2.1982.

In view of the aforesaid fact in my opinion the order dated 14.1.1998 in Adjudication Case No.170 of 1991, Annexure-1 to the writ petition passed by the Labour court cannot be sustained and the same is hereby set aside. It is however open to respondent no.2 to make a reference application regarding his grievance. It is however, observed that if the State Government makes a reference to the Labour Court, the Labour Court may consider and decide the same on merits.

10.11.2005

V.Sri/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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