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U.P.POWER CORPORATION LTD. versus LOKENDER KUMAR & ANOTHER

High Court of Judicature at Allahabad

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U.P.Power Corporation Ltd. v. Lokender Kumar & Another - WRIT - C No. 21092 of 2001 [2005] RD-AH 1684 (18 July 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

                                                             Judgment reserved on       27.5.2005

                                                                          Judgment ready on              3.6.2005

                                                                  Judgment delivered on      18.7 2005  

Civil Misc. Review Application No.23558 of 2004

ON BEHALF OF

Lokendra Kumar son of Ramesh Chandra  ....           Respondent- Applicant

In

Civil Misc.Writ No. 21092 of 2001

U.P. Power Corporation Ltd. through

Dy. General Manager (Superintending

Engineer) Urban Electricity Distribution

Circle, Jamuna Bank Power Station, Agra         ....                Petitioner

Vs.

Lokendra Kumar son of Ramesh Chandra,

and another        ....    Respondents.

Connected with

Civil Misc. Review Application No. 23558 of 2004

ON BEHALF OF

Yogendra Kumar son of Ramesh Chandra  ....            Respondent-Applicant

IN

Civil Misc. Writ No. 21088 of 2001

U.P. Power Corporation Ltd. through

Dy. General Manager (Superintending

Engineer) Urban Electricity Distribution

Circle, Jamuna Bank Power Station, Agra         ....                Petitioner

Vs.

Yogendra Kumar son of Ramesh Chandra

and another        ....     Respondents

Counsel for the Petitioner                      :   Sri Ranjit Saxena, Advocate

Counsel for the Respondent-Applicants;  Sri B.D.Mandhyan, Senior Advocate ,  

                                                                      S/Sri Shyam Narain, Satish Mandhyan                                                                                                                    

                                                                      and  Sudhanshu Narain,  Advocates

                                                                 

                                                                                                                     

Hon'ble Rakesh Tiwari, J.

1.  Review applications dated 5.2.2004 have been filed by Sri B.D. Mandhyan, Advocate ( now Senior Advocate) on behalf of respondent workman Lokendra Kumar and Yogendra Kumar for review of common judgment dated 19.12.2003 passed by this court in the aforesaid connected Civil Misc. Writ Petitions. Since the review applications raise same questions of facts and law in both the connected writ petitions are same they are also being decided by this common judgment.

2.     The respondents have filed amendment application through Sri Satish Mandhyan, Advocate taking additional grounds in the review application. Thereafter a  Supplementary Affidavit has been filed on behalf of the respondents by Sri Shyam Narain, and Sri Sudhanshu Narain, Advocates engaged subsequently. The petitioner has filed a miscellaneous application dated 8.4.2005 bringing on record copy of judgment in Review petition No. 11184 of 2004 in Civil Misc. Writ Petition No. 21092 of 2000, the copy of the Special Leave Petition filed by Sri Nagendra Kumar Kaushik, before the Hon'ble Supreme Court by the third brother of the respondents and the judgement of the Apex Court dated 2.8.2004 thereon.  

3.    From the review grounds have again been application, amendment application, supplementary affidavit, miscellaneous applications, counter and rejoinder affidavits filed in the aforesaid applications, affidavits original records summoned from Labour Court and the argument of the parties, one thing is evident that questions of facts, and record have been pleaded and countered raising multifaceted questions of law.  It is with this aspect that pleadings of the parties in the peculiar facts and circumstances of this case are being referred to in detail for appreciation of the contentions of the parties.

4.       The original record of the Labor Court were summoned by the Court vide order dated 20.12.2004 as questions of fraud, collusion manipulation and fabrication of documents as well as evidence is said not to have been given by Sri S.S.L. Bhatnagar but by some imposter.

BACKGROUND

5.   The hub of the controversy centers upon three real brothers- S/Sri Lokendra Kumar, Yogendra Kumar (respondents in Civil Misc. Writ Petition nos. 21092 and 21088 of 2001) and Sri Nagendra Kumar Kaushik.

          6.  The respondent-applicants Lokendra Kumar and Yogendra Kumar claim to have been engaged in the Corporation as muster roll daily wage coolie on 24.3.1977. They alleged to have disengaged on 6.2.1979 and raised an industrial dispute in the year 1997 i.e. after 18 years by means of C.P. Application Nos. 76 and 77 of 1979 respectively. The reference order of S/Sri Lokendra Kumar and Yogendra Kumar were registered in the Labour Court as Adjudication Case Nos. 119 and 120 of 1997 respectively.

7.     Sri Nagendra Kumar Kaushik, the third brother was working in the U.P. State Electricity Board, Agra as Assistant. At the relevant time, he was looking after the work of pairvi in all court cases and was also representing the employers in cases before the Labour authorities including the adjudication case nos. 119 of 120 of 1997, the cases of his two brothers- Lokendra Kumar and Yogendra Kumar pending before the Labour Court.

    8. From the record, it appears that parties are at varience over the issue whether Sri Nagendra Kumar Kaushik had informed the employers before 13.6.2001 that S/Sri Lokendra Kumar and Yogendra Kumar were his real brothers and had been doing pairvi in their cases surreuptitiously or not.

9.   The Labour Court after noting the case of the workman in paragraph 3 of the award that he claimed to have been appointed by the petitioner-Corporation on 24.3.1977 and worked up to 31.12.1979 continuously having worked for 240 days in each of the calendar years during this period when his services were terminated without any charge sheet, payment of retrenchment compensation etc., stated the case of the employers in paragraph 4 of the award wherein it is averred that the workman was neither appointed nor has worked in their establishment and there is no relationship of employer and employee between them as such there is no question of any industrial dispute or his continuous working of 240 days in the establishment.

10.   After cursorily referring to the evidence of the parties in paragraph nos. 6 to 10 of the award, the Labour Court without considering the question of delay and the effect on the stale disputed referred, held that the termination of services of the concerned workman w.e.f. 31.12.1979 is not legal and justified and he is reinstated in service from the aforesaid date. It further held that as the matter is very old one and as the dispute has been raised and got referred by the workman after much delay as such the employers will deem the workman to be their regular employee from the date of reference i.e. 02.09.1997. The Labour Court accordingly directed that the workman shall be paid salary at par with regular employee from the aforesaid date of reference and also awarded a sum of Rs.5000/- as damages to him from the date of termination of service up to 02.09.1997. The Labour Court further directed that for the purpose of other benefits of service such as seniority, gratuity, annual increment in salary, time scale, amended/revised pay scale promotions and pension, the services of the workman in his cadre would be continuous and without break.

11.   The awards were challenged in the aforesaid two connected writ petitions by the petitioner- Corporation. An amendment application dated 23.10.2003 was filed by the petitioner challenging the award on additional grounds of mala fide, collusion and fraud against the respondents during the proceedings in the aforesaid Adjudication cases before the Labour Court, U.P.

12.   The amendment application was allowed by order dated 6.11.2003. The two petitions were thereafter decided vide common judgment dated 19.12.2003.  

  13.      The Court in the operative portion also noted the conduct of Sri Nagendra Kumar Kaushik who had not disclosed his relationship with his brothers who were the workmen concerned in the case before the Labour Court in which he admittedly had done pairvi on behalf of the employers.

14.     Allowing the petition, the Court rejected the contentions of the respondents vide judgment dated 19.12.2003 and held that in view of the facts and because of the element of fraud as well as non application of mind by the Labour Court to the relevant circumstances the award was liable to be set aside.  It was also held in the judgment aforesaid that the relief granted by the Labour Court by not considering the relevant documents and basing its findings on doubtful documents, the award was beyond the scope of matter of reference, outside pleadings and against settled principles of law and cannot be sustained.  The relevant portion of the judgment is quoted below: -

      " In view of the facts and law the contention raised by the learned counsel for the respondents are not acceptable. For the element of fraud and non-application of mind to the relevant circumstances by the Labour court, this award is vitiated.

          In my opinion the contentions raised by the petitioner regarding fraud and forgery have force and they cannot be lightly brushed aside.  The conduct of Sri Nagendra Kumar in not disclosing his relationship to the Company with his brothers, the two workmen concerned, makes the case put up by respondents workmen as highly doubtful and unreliable and collusive.  Taking these circumstances in totality the award given by the Labour Court cannot be sustained and is liable to be set aside.

           The Labour Court has failed to apply its mind to the admitted facts. It has not considered relevant documents and recording findings on the basis of doubtful documents and granted relief beyond the scope of matter of reference, outside pleadings and against settled legal principles.

 

            The petition is allowed. Interim order is vacated. The award is unsustainable and is set aside. No order as to costs.  This judgment will apply to the connected Writ Petition No. 21092 of 2001- U.P. Power Corporation Ltd. V. Lokendra Kumar and another.

Dated 19.12.2003                                      Sd/- Illegible"

15.  After delivery of the judgment, two applications, i.e. review application no. 11187 of 2004 and an amendment application no. 11190 of 2004 attached therewith along with an affidavit were filed by the third brother Sri Nagendra Kumar Kaushik for recall of order in so far as observations against him were made regarding fraud and collusion etc.  It was averred by Sri Nagendra Kumar in the affidavit that he was not a party in the writ petition and observations made in the judgment about his conduct with regard fraud and collusion in the judgment dated 9.12.2003 may be deleted; that the observations of the Court are ex parte without giving him any opportunity of hearing and as the observations in the judgment regarding his conduct are likely to affect his service career in the Corporation as such, under the circumstances it was prayed that the Court be pleased to recall/review the judgment to the limited extent of ex parte adverse/disparaging remarks/observations about the applicant- Sri Nagendra Kumar Kaushik and further permit the applicant-respondent to file his Counter Affidavit to the allegations of mala fides/collusion/fraud leveled against him in the body of the writ petition/supplementary affidavit so that the correct facts and circumstances relating to the case are brought on record for consideration of the Court.

16.   The court vide order dated 19.12.2003 on the review application clarified the judgment and rejected the application for impleadment holding that: -

"... The impleadment application filed by Sri Nagendra Kumar Kaushik is rejected as the petition has been filed by the U.P. Power Corporation Ltd. against the award passed by the Labour Court.  He is not a party in the writ petition though he was conducting the case on behalf of the employers as their authorized representative against the two workmen who are his real brothers.

       It is submitted that since the applicant was not a party in the writ petition the observations made in the judgment in respect of Sri Nagendra Kumar may be read against him in the enquiry proposed to be held by the employers in respect of his conduct in conducting the case before the Labour Court and that his version must also come on record.

        This Court had made an observation in the order and judgment dated 19.12.2003 that: -

"In my opinion the contention raised by the petitioner regarding fraud and forgery have force and they cannot be lightly brushed aside. The conduct of Sri Nagendra Kumar in not disclosing his relationship to the Company with his brothers, the two workmen concerned, makes the case put up by respondents workmen as highly doubtful and unreliable and collusive."

           It has been informed by the learned counsel that an enquiry is contemplated against Sri Nagendra Kumar on the basis of the aforesaid observations of this Court made in its order and judgment dated 19.12.2003. Since Sri Nagendra Kumar was not a party either before the Labour Court or in the writ petition, there is no necessity of hearing him and the purpose can be served by clarification of the order and judgment dated 19.12.2003.  It is clarified that the enquiry proceedings proposed against him will be held independently without being influenced by the aforesaid observations of the Court in the order and judgment dated 19.12.2003.

           The application for impleadment is misconceived as it has been filed after judgment in the case. It is accordingly rejected.

Dated 23.3.2004                             sd/- Illegible"

  17.   Thereafter Sri Nagendra Kumar the third brother of the writ petitioners filed petition(s) for Special Leave Appeal (Civil) CC 61286 before the Apex Court for permission for Special Leave Petition challenging the judgment of this court dated 19.12.2002 as well as order dated 23.3.2004 clarifying the judgment dated 19.12.2003. When the application was about to be dismissed it was prayed that the application may be dismissed as withdrawn.  The order of the Hon'ble Apex Court is as under: -

"SUPREME COURT OF INDIA

RECORD OF PROCEEDINGS

I.A. No. 1 in &

Petition(s) for Special   Leave Appeal (Civil CC 6128-6/(31)/2004)/

    (From the judgment and final order dated 23.3.2004 and 19.12.2003 in C.M.W.P.Nos. 21008 and 21092/2001 dated 23.3.2004 and 19.12.2003 in CWP 21088 and 21092 of 2001 and CMRA No. 11184/2004 in CWP No. 21092 of 2001 and 11187/2004 in CWP 21082 of 2001 of The HIGH COURT OF JUDICATURE AT ALLAHABAD.

NAGENDER KUMAR KAUSHIK    PETITIONER(S)

                                      VERSUS

                   U.P.POWER CORPORATION LTD.

&  ANR                                               RESPONDENT(S)

( FOR PERMISSION To file SLP and with prayer for interim relief and office report)

Date : 02.08.2004 These petitions were called on for hearing today.

CORAM:

        Hon'ble Mr. Justice S.N. VARIAVA

        Hon'ble Mr. Justice A.K. MATHUR

UPON  hearing counsel the Court made the following

O R D E R

             After arguments when the Court was about to dismiss these petitions, learned senior counsel for the petitioner applies for withdrawal of these petitions. The Special Leave Petitions are dismissed as withdrawn.

                                            Sd/-Illegible"              

  18.  In the meantime, i.e., before dismissal of the application for interim relief filed by their brother Sri Nagendra Kumar Kaushik before the Hon'ble Supreme Court,  Sri Lokendra Kumar and Sri Yogendra Kumar filed  review applications along with affidavits on 7.7.2004 in writ petition nos. 21092 of 2001 and 21088 of 2001 for review of judgment dated 19.12.2003.

19.  Thereafter, amendment application no. 90600 of 2004 was filed on 17.5.1994 in the review application filed by Sri Satish Mandhyan, Advocate inter alia that certain important grounds were inadvertently not taken in the review application as such, in the interest of justice and for proper adjudication of the matter ground nos. 12 to 24 of the amendment application be permitted to be added as part of the review application. The Vakalatnama by S/Sri Shyam Narain and Sudhanshu Narain, Advocates as well as Sri Satish Mandhyan were also filed by them dated 20.5.3004 in the review application. The grounds in the amendment application are mostly repetitions of grounds taken in the review application though couched differently.  Supplementary Affidavits dated 6.7.2004 along with application no. 106996 of 2004 were then filed by S/Sri Shyam Narain and Sudhanshu Narain, Advocates who were subsequently engaged by the respondents, praying for taking the Supplementary Affidavit on record as part of the review application.

PRELIMINARY OBJECTION

20.     The counsel for the petitioner has at the outset raised the preliminary objections. The first preliminary objection is that has been raised and vehemently argued by Sri Ranjit Saxena, counsel for the petitioner is that S/Sri Shyam Narain, Satish Mandhyan and Sudhanshu Narain, Advocates and cannot argue the review application filed by Sri B.D. Mandhyan (now senior Advocate), nor can file amendment in review application and the supplementary affidavit in review as they have been engaged subsequent to the judgment dated 19.12.2003 in the writ petitions, hence the amendment application as well as supplementary affidavit are liable to be ignored.  

21.   The second preliminary objection by the counsel for the petitioner is that scope of review cannot be enlarged by the respondents in review application as Special Leave Petition filed by their brother Sri Nagendra Kumar Kaushik before Hon'ble the Supreme Court challenging the judgment dated 19.12.2003 as well as order dated 23.3.2004 has been dismissed, the review application by his brothers in the writ petitions challenging the judgment dated 19.12.2003 is, therefore, also liable to be dismissed as not maintainable.

22.     The last preliminary objection is that the judgement of the Hon'ble Supreme Court on the application for permission to file Special Leave Petition filed by Sri Nagendra Kumar Kaushik would operate as res judicata and if the review application is decided on merits it would be subversive of judicial discipline.  In support of his contention, the counsel for the petitioner has referred to the judgements of the Apex Court in (i) Surendra Kumar Vakil V. Chief Executive Officer, M.P. -(2004)16 A.I.C-56 (S.C); (ii) B.H.Prabhakar and others V. M.D. Karnataka State Cooperative Bank Ltd. (iii) B.H.Prabhakar and others V. M.D. Karnataka State Cooperative Bank Ltd.(iv) Abbai Maligai Partnershp Firm and another V. K. Santha Kumarah and others- A.I.R. 1999 S.C-1486 (v)  Union of India V. Tarit Ranjan Das -J.T. (2003) 8 S.C-352, and (vi) The Sree Narayana Dharma Sangam V. Swami Prakasananda and others- 1997(2) U.J. (S.C-32)

23. The counsel for the petitioner submits that from the perusal of review application, amendment in review application and the supplementary affidavit, it is evident that the respondent-workmen wants a rehearing of the case again, on merits in the garb of review, on the questions of law and facts which have already been considered and decided by this Court in the judgment dated 19.12.2003. He contends that the review application is not  maintainable as there is no error apparent on the face of record and that a decision on merits of the review application would not only be subversive of judicial discipline but would also permit the respondents to be successful in their attempt to reagitate the matter again on merits.  He further submits that it is evident from a  reading of the judgment of Hon'ble the Apex court wherein their Lordships were dismissing application for the Special Leave of Sri Nagendra Kumar Kaushik, on merits it was at that stage that it was withdrawn by him. It is then submitted by Sri Ranjit Saxena that the contention of Sri Nagendra Kumar was for limited extend for recall/review of the observations of the Court about him of the judgement dated 19.12.2003 regarding fraud and collusion with his brothers and that as he was not a party before the Labour court or in the writ petition  he may be given opportunity to bring the correct facts to the notice of the Court.  It is further submitte that after the Court had redressed the cause of Sri  Nagendra Kumar vide order dated 23.3.2004, he did not have any cause of action to file application before the Apex Court for challenging the judgment dated 19.12.2003 and order dated 23.3.2004 but he did so for obvious reasons, i.e., he wanted to help his brothers who did not want to take a chance to challenge the validity and correctness of the judgment dated 19.12.2003 before Hon'ble the Supreme Court as such, the judgment was got challenged by the two respondents through their brother Sri Nagendra Kumar who, as stated earlier, had no grievance left against the judgment dated 19.12.2003 and order dated 23.3.2004 and rhe respondents in these circumstances filed this review application on 11.4.2004 after a lapse of about four months of the judgment dated 19.12.2003 which not only suffers from laches but is also barred by principles of res judicata.

24.    On the other hand, Sri Shyam Narain appearing for the respondents has placed implicit reliance on paragraph 40 of the decision in Kunhayammed V. State of Kerala (2000) 6 S.C.C-359 wherein the Apex Court has held as under: -

"40..... Mere rejection of a special leave petition does not take away the jurisdiction of the court, Tribunal or forum whose order forms the subject matter of petition for special leave to review its own order if grounds for exercise of review jurisdiction are shown to exist.  Where the order rejecting an SLP is a speaking order, that is, where reasons have been assigned by this court for rejecting the petition for special leave and are stated in the order still the order remains the one rejecting the prayer for the grant of leave to appeal. The petitioner has been turned away at the threshold without having been allowed to enter in the appellate jurisdiction of this Court. Here also the doctrine of merger would not apply.  But the law stated or declared by this Court in its order shall attract applicability of Art. 141 of the Constitution.  Reasons assigned by this Court in its order expressing its adjudication (expressly or by necessary implication) on point of fact or law shall take away the jurisdiction of any other Court, tribunal or authority to express any opinion in conflict with or in departure from the view taken by this court because permitting to do so would be subversive of judicial discipline and affront to the order of this court.  However, this would be so not by reference to the doctrine of merger."

(emphasis supplied)

25. Counsel for the respondents drawing support from the aforesaid judgement contended that the rejection of the Special Leave Petition may be for any of the manifold reasons as given in the aforesaid judgment but mere rejection of the application for permission to file Special Leave Petition, which is rejected by the Hon'ble Supreme Court in limine at the threshold does not decide the judgement of the Court, Tribunal or forum whose order forms the subject matter of petition for special leave to review on merits.  In such cases, the order of the Hon'ble Supreme Court remains and order rejecting the prayer for grant of leave to appeal as such doctrine of merger would not apply and thus Court would have jurisdiction to entertain and decide the review on merits of its own order if grounds for exercise of review jurisdiction are shown to exist. Sri Shyam Narain counsel for the applicant then drew the attention of the Court to the decision in Baitarani GramiyaBank V. Pallab Kumar and others- 2003(99) F.L.R.-514 wherein it has been held that where Special Leave Petition is dismissed by a non-speaking order by the Apex Court without containing reasons for dismissal, it does not amount to acceptance of correctness of decision appealed from.

26.   From preliminary objection on scope of review, the following questions arise from the contention of the parties: -

I. What is the scope of review?

II. Whether the review application filed by the respondent-workmen, real brothers of Sri Nagendra Kumar can be said to be barred by principle of res judicata after the dismissal of the Special Leave Petition of Sri Nagendra Kumar who had challenged the judgment dated 23.3.2004 in the impleadment application even though he was not a party in the writ petition arising out of award?

III. What would be the effect of dismissal of the Special Leave Petition on the maintainability of the review application otherwise? and

IV. Whether decision on review application in the facts and circumstances would be subversive to judicial discipline.

SCOPE OF REVIEW AND RELATED QUESTIONS CONSIDERED

27 Law is well settled that res judicata operates between same parties.  The application for Special Leave Petition was not filed by the two reaponsents before the Hon'ble Supreme Court by Sri Nagendra Kumar Kaushik who was neither party to the dispute before the Labouur Court or in the writ petition before this Court. Therefore, principles of res judicata are not applicable.  The cases cited by the counsel for the petitioner are, therefore, not applicable as they relate to final decision of dispute between the same parties and are clearly distinguishable on facts of the instant case. The applicability of decision in given case of different party does not involve judicial discipline.  What was decided by the Hon'ble Supreme Court was only application for permission to file Special Leave Petition and not Special Leave Petition, the dismissal of which does not amount to confirmation of the judgement dated 19.12.2003 of this Court.  The review applications filed by the workmen are being decided, on merits.  

  28. Regarding the first preliminary objection taken by Sri Ranjit Saxena that S/Sri Satish Mandhyan, Shyam Narain  and Sudhanshu Narain, Advocates cannot argue the review application filed by Sri B.D. Mandhyan in the facts and circumstances given hereiunder appears to be without merits. The reason is that application for review was filed by Sri B.D. Mandhyan, Advocate on 6.2.2004, he was notified as Senior Advocate on 4.5.2004.  It appears that the respondent-workmen thereafter engaged Sri Satish Mandhyan, Adocate, who filed the amendment application on 17.5.2004. The name of Sri B.D. Mandhyan is also typed in this application but application has not been signed by him for the obvious reason that he had been appointed as Senior Advocate and could not have singed any dealings after he was designated Senior Advocate.  The power (vakalatnama) was filed by S/Sri Shyam Narain, Satish Mandhyan and Sudhanshu Narain on 20.5.2004.  The defect in filing the amendment application by Sri Satish Mandhyan without vakalatnama was curable and stands rectified on filing of the vakalatnama dated 20.5.2004. It appears that subsequently Supplementary Affidavit was filed by S/Sri Shyam Narain and Sudhanshu Narain, Advocates.  It is also not in dispute that the review application had been filed by Sri B.D. Mandhyan, Advocate before being designated Senior Advocate. In the circumstances, the counsel engaged subsequently in the case can argue the petition, regard may be had to the fact that the review application was not filed by any of the counsel who had been subsequently engaged after Sri B.D. Mandhyan was declared as Senior Advocate but by Sri B.D. Mandhyan himself who had argued the writ petitions.  The contention of Sri Ranjit Saxena, therefore, has no force and is accordingly rejected.

(I) GROUND IN REVIEW APPLICATION

29. In ground nos. 3,4,7,8 and 10 of the review application along with affidavit it is averred that no period of limitation has been laid down in the Industrial Disputes Act, 1947 for raising an industrial dispute and issue of inordinate delay was raised for the first time in the writ petition;  that reliance by the High Court on Himanshu KumarVersus State of Bihar 1997(4) SCC 391 (ii) Surendra Kumar Sharma Vs Vikas Adhikari, 2003 (5) S.C.C. 12 and other judgments of the Hon'ble Supreme Court referred to in the aforesaid judgments is misplaced , as they do not lay down law of binding precedence and are confined to facts of those cases only; and whether dispute has become stale  or not depends upon the facts of a particular case.   It is further averred in the aforesaid grounds in the review application /affidavit that this Court has also misplaced reliance upon the list of daily wage workers as the employers witness Sri S.S.Chauhan in his evidence has stated that he had neither prepared nor compared the documents submitted before the Labour Court with the original attendance register of the department and lastly that the court failed to appreciate the evidence on record while disbelieving the bona fide of the character certificate issued by Sri S.S.L. Bhatnagar in favour of the workman who though was a daily wager has right to claim regularization.  

30.         In Ground nos. 2, 5 and 9 of the review application it is averred that any subsequent event to the award cannot be taken as a ground to challenge the award. Questions of fraud and collusion raised in the writ petition can only be decided by evidence before the adjudicating authority after affording opportunity to the workman to controvert the allegations against him as such the Court has misplaced reliance on such documents which were not produced before the Labour Court and were produced for the first time in the writ petition.

31.     In ground no. 13 and ground no. 18 of the amendment application in review, it has been averred that period of working of the workman has been incorrenctly mentioned in the judgment as 24.2.77 to 31.12.79 whereas in the alleged certificate said to have been issued by Sri S.S.L Bhatnagar the period is 24.3.77 to 6.2.79.  It is further averred that a wrong observation has been made in the judgment that there was cutting and overwriting in the list filed by the workman. The names of Yogendra Kumar and Lokendra Kumar were added by hand at the end, as Annexure no. 32 to the amended writ petition itself contains their names; that this Court overlooked  Ex-W-4 (E.S.I card) filed by the workman before the Labour Court and that as the employer had filed the documents the burden of proof was on them  to prove the documents ; that this Court has wrongly  observed that the Labour Court has awarded full back wages whereas  it had merely awarded only Rs. 5000/  as compensation to the workman from the date of termination to the date of reference.  It is further averred that the Court has wrongly arrived at the finding of granting promotion to the workman concerned by Labour Court and that findings of collusion and fraud are not borne out from the record .

36. It is also averred in these grounds that the ratio laid down in the case of Himanshu Kumar Vidhyarthi Vs.State of Bihar 1997(4) SCC 391 was not applicable treating the case of the workman as not of regularization that of termination of service.

37.    In ground no. 6 of the review application and ground no. 12 of the amendment application in review application, it is averred that the workman having been reinstated the award stood partly implemented and thereafter the employers had no complaint against the work and conduct of the workman, as such, the judgment dated 19.12.2003 will adversely affect the workman if it is allowed to stand as it is.                                         38.   It is then averred that court failed to consider the legal aspect of the matter of non-framing of standing orders by the petitioner- Corporation and if Standing Orders are not framed Model Standing Orders are applicable in such circumstances. The judgment of Apex Court in Shankar Jain Versus U.P. State Electricity Board -FLR 1978 (37) page-280 has been referred to by the counsel for the respondents in this regard.  

(II) AMENDMENT APPLICATION; ADDITIONAL GROUNDS TAKEN IN REVIEW APPLICATIONS

39.    Grounds nos. 13 to 17 of the amendment in the review application are also basically repetition of grounds taken in the review application.  In brief the grounds are that this Court has misread the character certificate issued by Sri S.S.L. Bhatnagar,and misinterpreted it as an official letter which ought to have been dispatch number etc. and  that the Court has given much weightage  to the clarification given by Sri Bhatnagar in Annexure no.34 to the writ petition. It is then averred that the court has placed implicit reliance on letter dated 17.1.80 issued by Sri G.P. Nayyar, the then Executive Engineer which does not contain any list nor is addressed to the Government whereas the name of respondent workman figures in letter no. 1214 contained in Annexure no. 34 to the amended writ petition. Lastly that Shalimar Works Ltd. Vs. Their Workmen on which the Court had placed reliance has been overruled by the Apex Court in Sapan Kumar Pandit Vs. UPSEB 2001 LIC 2814.

 

CONTENTIONS OF COUNSEL FOR THE RESPONDENTS

ON REVIEW APPLICATION:

40.      It is urged by Sri Shyam Narain that Sri Nagendra Kumar Kaushik neither represented nor did any pairvi in the adjudication cases of his brothers, Lokendra Kumar and Yogendra Kumar, before the Labour Court or the High Court.  Original file of the Labour Court summoned by the Court has been placed to show that he has also not signed either the order sheet or filed any paper or document under his signatures and that it is clear from the award itself that the authorized representative of the petitioner was Sri A.K.Sharma and not Sri Nagendra Kaushik.  He submits that the petitioner has brought documents and events subsequent to award on record, which cannot be relied upon as they are false and fabricated documents and  were not part of record before the Labour Court He then submits that besides the statement and certificate issued by Sri S.S.L.Bhatnagar, there were other additional evidences on record before the Labor Court from which it is established that the respondent-workman had worked continuously for more than 240 days and as such was entitled to be regularized. It is further submitted that Sri Bhatnagar has not made any specific denial that he had not issued the aforesaid certificate showing that the respondent-workman had not worked for the period 24.3.1977 to 6.2.1979 as shown in the certificate issued by him. It is also submitted that as the petitioner neither appeared nor filed any objection before the Deputy Labour Commissioner which is evident from the order dated 8.8.2002 appended as Annexure 22,  has rightly been passed.  

41.     It is averred that allegations have been made against Sri Nagendra Kumar Kaushik who is not a party in the writ petition, as such, the allegations made in para 48,49 and 50 of the amendment application are liable to be ignored. It is averred therein that the averments made in paragraph Nos.48 to 59  of the  amendment application relate to a list of 1980 which has been produced for the first time in the writ petition and cannot be relied upon by the Court. It is lastly submitted that Sri Nagendra Kumar Kaushik is being made escape goat by the officers of the Corporation just to save their skin as no such allegations had been made before the Labour court.

CONTENTIONS OF COUNSEL FOR THE PETITIONER

42.   Learned counsel for the petitioner has placed reliance in paragraph nos. 4,7, 9 to 12 and 17 to 24 of the Supplementary Counter Affidavit in Civil Misc. Writ No. 21092 of 2001 wherein it is averred therein that it is a case of fraud by Sri Nagendra Kumar Kaushik who is real brother of the workman concerned and some officials who were involved. Sri Nagendra Kumar Kaushik was also doing pairvi of the case surreptitiously helping them by manufacturing documents being in position in the Corporation as Assistant dealing in Court cases. It is submitted by the counsel for the petitioner that the respondent-workmen were never employees of the Power Corporation and their names were entered in the muster roll by Sri Nagendra Kumar Kaushik which was bound to be proved on record as they were fabricated and created by him, as such, there is no question of their reinstatement or regularization in the facts and circumstances of the case because the award has been obtained by the workmen in collusion with their brother/official by fraudulent means.

43.      It is further submitted by the counsel for the petitioner that it is a case where the fraud was played by Sri Nagendra Kumar Kaushik from very beginning who is directly involved in the manipulation of papers including muster rolls and fabrication of certificate of Sri S.S.L. Bhatnagar etc., it is for this reason that the award is being said to be manipulated and obtained by collusion by the workmen with their brother Sri Nagendra Kumar Kaushik and in fact the respondent- workmen have no right at all to claim employment after 18 years of admitted inaction during which they went in hibernation.

44.       It is also stated that so far as delay is concerned, its condonation by the Dy. Labour Commission is wholly illegal for the same reasons and in so far as Labor Court is concerned he did not at all advert to the question of delay and mechanically passed award of reinstatement with continuity of service and consequential benefits, compensation and pension etc.

45.     it is then submitted by Sri Ranjit Saxena learned counsel for the petitioner that Sri Nagendra Kumar Kaushik for the first time by letter dated 13.6.2001 informed the Dy. General Manager, U.P. Power corporation Ltd., Urban Electricity Distribution Circle informing him that he had earlier also orally informed that the workmen concerned in the writ petition nos. 21088 of 2001 and 21092 of 2001 arising out of Adjudication Case Nos. 119 and 120 of 1997 are his relations, therefore, the Corporation may not ask him to do pairvi in the aforesaid petitions and depute some other officer for this purpose.  The letter was sent by him only after the award had been passed and writ petition had been filed before this Hon'ble Court. It is evident from the language of letter that he had not informed that the respondents were his lelatives, but the relationship that they were his real brothers was not disclosed.  There is also absolutely no record that ht had earlier ''orally iinformed the Corporation about the factum of his relationship with the workmen concerned to the Corporation. Relying upon Sypplementary Affidavit on behalf of the U.P. Power Corporation the counsel for the peitioner submiited that Sri Nagendra Kumar Kaushik had submitted a note to the Executive Engineer that the case is very week and, therefore, the Corporation must enter into the agreement with the workmen.  The counsel for the petitioner submits that in the note also he did not show that both the workmen are his real brothers and recommended for a compromise with them:

" ifj"kn fgr esa thruk lEHko ugha gS A lEcfU/kr deZpkjh ds nLrkost Hkh bl dk;kZy; esa miyC/k ugha gSaA"

  46.         It is submitted that Sri Nagendra Kumar Kaushik also submitted two letters on 22.8.97 and 14.2.2001 in which he mentioned about the pairvi of the case in Allahabad High Court. In the notes he again emphasized that a compromise must be entered between U.P. Power Corporation Ltd., and workmen but did not reveal that Sri Lokendra Kumar and Yogendra Kumar were his real brothers.   He submits that Sri Nagendra Kumar Kaushik also made a recommendation to the Corporation that no writ petition should be filed in the High court and again on 22.4.1997 he made a recommendation to the petitioner for compromise in the cases. It is submitted by the counsel for the petitioner that not only Sri Nagendra Kumar Kaushik brother of the workmen concerned had drawn money for fee and expenses for filing writ petition but had also given incomplete instructions to the Advocate to advance the cause of his brothers, which adversely affected the interest of the Corporation.

47.       It is vehemently urged by the counsel for the petitioner that the award has been obtained by is fraud as the name of the workman was subsequently got added by them with the help of  their brother. The interpolation/fabrication is evident in the list of 19.12.1979 filed as Annexure no. 31 to the amendment application.  It is submitted by him that the fact that list of workmen who had worked in the Corporation is manufactured document is also proved from the letter annexed with the list, which shows that the name of respondent-workman was included by fraud as it is evident from the letter that the number of persons whose names were in the list dated 19.12.1979 is only 26 but in the said list there are names of 28 persons as the names of the two respondent-workmen in the said writ petitions were added subsequently in the list of 19.12.1979 at the bottom. It is stated that full-fledged enquiry is going against those officers of the company who are involved in the conspiracy with the local officers.  It is further submitted that enquiry is also going on against Sri Nagendra Kaushik for his deliberate attempt to keep the U.P. Power Corporation Ltd. in dark about his relationship with the workman concerned while doing pairvi in their cases before the Labour Court on behalf of the Corporation.

48.   In so far as evidence and certificate issued by Sri S.S.L. Bhatnagar is concerned he had submitted his clarification before the Head Office as well as addressed to the Dy. General Manager of the U.P.D.D., U.P. Power Corporation Ltd.,  Yamuna Bank Power House, Agra by letter dated 27.1.2003 to the effect that he never went to Labour Court,Agra to give any evidence in support of the workman concerned in Adjudication Case Nos.119 and 120 of 1997. The copy of the letter of Sri S.S.L. Bhatnagar is already on record as Annexure No. 21 in the amendment application. It is then urged by the counsel for the petitioner that in fact, entire proceedings of reference were deep rooted conspiracy and as Sri S.S.L. Bhatnagar had not gone to Agra before the Labour Court to give any statement and it could have been only the authorized representative of U.P. Power Corporation Ltd. who could have properly identified Sri S.S.L. Bhatnagar who is said to have given the alleged certificate to his brothers, the workmen concerned. Thus, no body actually took any steps to disprove the fact about the veracity of Sri S.S.L. Bhatnagar, hence, the alleged statement of Sri S.S.L. Bhatnagar before the Labor Court is by an imposter.  It is also wrong to say in the circumstances that only Sri A.K.Sharma  only was doing pairvi of the case on behalf of U.P. Power Corporation Ltd.  

FACET-I - GROUND OF REVIEW IN CONTEXT OF LAW ON LIMITATION- CONSIDERED

49. Before adverting to the question of limitation in State of U.P. taken in the review application, it may be stated that Section 4(K) was inserted in the U.P. Industrial Disputes Act, 1947 vide U.P. Act No. 1 of  1957 by order No. 738(ST) XXXVI-A-112 (ST)-1957 dated Lucknow December 31,1957 published in U.P. Gazette dated December 31,1957(as amended from time to time) vide proviso to clause 2 of the order it is provided that "no application for settlement of industrial dispute shall ordinarily be entertained by the Conciliation Officer, if it is in respect of a dispute arising more than six months previous to the date of the application..."

50.       It is true that limitation is not specifically provided under Section 4(K) of the U.P. Industrial Disputes Act, 1947 or Section 10(1) of the Industrial Disputes Act, 1947 (Central) for raising an industrial dispute hence reference of industrial dispute to Labour Court has been held is not subject to limitation under Article 137 of Limitation Act. Industrial disputes are referred for adjudication to Labour Court or Tribunal under the aforesaid Acts.  The language used in Section 4(K) by the legislature for reference of a dispute under the aforesaid provision is "where the State Government is of the opinion that any industrial dispute exists or is apprehended, it may, at any time by order in writing refer the dispute or any matter appearing to be connected with or relevant to the dispute before a Labour Court....."  From the expression used in the aforesaid Section, quoted above, it is evident that before making a reference the appropriate Government has to consider and form an opinion as to whether delay in raising the dispute in particular facts and circumstances of the case was fatal and the dispute remained alive during the intervening period.

51.   The first impression gathered from the words ''at any time' used in Section 4(K) of the U.P. Industrial Disputes Act, 1947 it appears that there is no time for raising an industrial dispute but it has been interpreted by the Courts in the context in which it appears in the Section.  In certain cases of urgent nature of lightening strike, arbitrary lock out, lay off, non-payment of wages, immediate closure without notice are some instances when the employers and the employees may not be in a conciliatory mood to settle the dispute by negotiations across the table conciliation proceedings may be dispensed with. The appropriate Government in such cases need not wait for concilation procedure to be initiated or even completed and can ''at any time' form opinion that dispute exists or is apprehended and decide to refer the dispute for adjudication. It is in this context that the expression ''at any time' has been used in the Section.  The expression, therefore, applies to cases where the Government decides to refer the case without waiting for conciliation proceedings to begin or to be completed. Thus, where dispute does not exist or can be reasonably apprehended as it has become stale and inexpedient for reference. Such stale, dead and inexpedient disputes should not be referred merely because a party chooses to raise the dispute after long lapse of time. The State Government in such cases has to apply its mind seriously to the long period already elapsed which has brought material changes in the establishment. It follows that it is not on the sweet will of an employee to raise a dead or stale dispute ''at any time' and it has to be raised within a reasonable period of time when it accrued. I am supported in my view by the judgments of the Hon'ble Supreme Court in (i) Western India Match Co., Ltd., V. Western India Match Co. Union (A.I.R. 1970 S.C-1205) and (ii) Atherton Mills Kanpur V. State of U.P. (1976) 73 F.L.R -1682.

52.    The Hon'ble Supreme Court though as far back as in 1959 pointed out in Shalimar Works Vs. its Workmen-1959 (II LLJ 26/31 that though there is no limitation prescribed in making a reference of disputes to Industrial Tribunal under Section 10(1) of the Industrial Disputes Act, 1947, held that "even so it is only reasonable that dispute should be referred as soon as possible after they have arisen." Some thoughts are echoed in paragraph 15 of the judgement of the Apex Court in Western India Match Co. Vs. Western India Match Co. Workers Union- (Supra) wherein it has been observed that: -

" 15. There are case in which lapse of time had caused fading or even eclipse of the dispute. If no body had kept the dispute alive during the long interval it is reasonably possible to conclude in a particular case that the dispute ceased to exist after some time.  But when the dispute remained alive though not galvanized by the workman or the union on account of the other justified reasons it does not cause the dispute to wane into total eclipse.  ....  Of course, the long delay for making the adjudication could be considered by the adjudicating authorities while moulding its reliefs.  That is a different matter altogether."

EFFECT OF DELAY ON LEGAL RIGHT, RELIEF AND EQUITY

  53.      It is finally settled by later decisions that even though no limitation has been prescribed under the Act for reference of dispute, it does not mean that a dispute can be raised at any time particularly after unexplained inordinate delay and laches which are legitimate grounds on which the Court can hold that dispute is stale and there does not exist an industrial dispute. Regard may be had to the decision in Alherton Mills Kanpur V. State of U.P.-(supra), it has been held by the Hon'ble Supreme Court as under: -

" It was not a case of mere lapse of time, but it is a case of long lapse of time (16 years) after which a party cannot be expected to retain the evidence when admittedly the Management changed more than once. The State Government in these peculiar facts and circumstances, in my opinion, ought to have applied its mind seriously to the period already lapsed which brought about material changes.  An industrial dispute is not expected to remain alive for such a long time."

54.  The golden words by the Hon'ble Apex Court on the right of a person to have legal remedy in law who comes to the Courts for relief after long lapse of time, have been enunciated in Ratan Chandra Samanta V. Union of India -F.L.R. (1993) 67 page 70, are reminder of the effect of delay wherein the Apex Court cautioned: -

"Delay itself, deprives a person of his remedy available in law. In absence of any fresh cause of action or any legislation a person who has lost his remedy by lapse of time loses his right as well."

55.        The aspect of equity in delay has been consideresd by the Madhya Pradesh High Court in H.N. Shukla V. State of Madhya Pradesh (1999) 81 F.L.R-605; the Court considered the effect of dlay on equity in referring stale disputes. It was held that it would be unequitable and unjust to refer a dispute after 14 years even if there was official inaction, what to say of employees' inaction in not raising the dispute immediately within a reasonable period of time after cause of action arose: -

"It would be wholly unequitable and unjust to allow an employee to cash on any official inaction and to pave way for his returning to service after 14 years of absence more so when there is no clue about his state of affairs during this whole period. After all an employee cannot be allowed the licence to go out and return to the service at his sweet will."

ON REASONABLE PERIOD

55.    What would be reasonable period for raising an industrial dispute and relief to be granted has been considered in writ petition no. 26294 of 1994- U.P. S.E.B. V. Presiding Officer Labour Court, Meerut, it has been held by Allahabad High Court that: -

"Where the industrial dispute is raised after expiry of period of limitation for a civil suit in respect of the cause of action to be adjudicated before the Labour Court, the Labour Court should decline to grant any relief to the workman."

                    56.       Again in the case of U.P.S.E.B. V. State of U.P.-(2000) 84 F.L.R-304 where the workman had kept silent for more than 15 years, sufficient cause for sitting idle during intervening period 17.7.75 to 9.9.91 was not shown the employee did not raise any grievances whatsoever, nor did he write any letter. No complaint whatsoever was made by the employee with regard to his termination.  There was no material to show as to when and by whom the assurance was given.  No document or copy thereof was there to show that the employee had ever approached the petitioner that he shall be taken back in service in the circumstance this Court held that: -

"However, in case there is undue and inordinate as well as unexplained delay, a presumption may arise on the facts and circumstances of a particular case that no dispute exists in present and in such cases the references made by the Government may be quashed"

DOCTRINE OF SUB SILENTIO

57.   Recently, Hon'ble the Supreme Court in Haryana Stat4e Co-operative Land Development Bank V. Neelam-2005 AIR SCW-1439 considered the law of limitation and explained the doctrine of "acceptance sub silentio" in reference to belated claim as well as the decision in Ajaib Singh v. Sirhind Co-operative Marketing-cum-Processing Service Society Ltd.-1999(6) SCC-82 and held that: -

"..... There is no proposition of law that once an order of termination is held to be bad in law, irrespective of any other consideration the Labour Court would be bound to grant relief to the workman. The Industrial Disputes Act does not contain any provision which mandates the Industrial Court to grant relief in every case to the workman. The extent to which a relief can be moulded will inevitably depend upon the facts and circumstances obtaining in each case.  In absence of any express provision contained in the statute in this behalf, it is not for the court to lay down a law which will have a universal application."

58. The Apex Court further held that: -

"..... Although the Court cannot import a period of limitation when the statute does not prescribe the same, as was observed in Ajaib Singh (supra), but it does not mean that irrespective of facts and circumstances of each case, a stale case must be entertained by the appropriate Government while making a reference or in a case where such a reference is made the workman would be entitled to the relief at the hands of the Labour Court."

59.  Hon'ble the Supreme Court further held that the decision in Ajaib Singh (supra) cannot be held to have been rendered in the fact-situation obtaining therein and no ratio of universal application can be culled out therefrom.  The court also considered Nedungadi Bank Ltd.                                                                                              

(supra) in arriving at the conclusion that: -

" It is trite that the courts and tribunals having plenary jurisdiction have discretionary power to grant an appropriate relief to the parties.  The aim and object of the Industrial Disputes Act may be to impart social justice to the workman but the same by itself would not mean that irrespective of his conduct a workman would automatically be entitled to relief. The procedural laws like estoppel, waiver and acquiescence are equally applicable to the industrial proceedings.  A person in certain situation may even be held to be bound by the doctrine of Acceptance sub silentio. The respondent, herein did not raise any industrial dispute questioning the termination of her services within a reasonable time..."

THE CONCENTRATE OF THE DECISIONS

FACET II- GROUNDS/ARGUMENTS VIEWED FROM PLEADINGS AND EVIDENCE:  

  60.        Since it has also been argued by the counsel for the respondents that question of inordinate delay was not pleaded by the petitioner before the Labour Court and has been subsequently raised for the first time in the writ petition, the matter may be examined from the pleadings, evidence and documents filed before the Labour Court to test the veracity of this argument of the counsel for the respondent-workmen.

 61.         In the written statement before the Labour Court, the employers categorically stated as under: -

"2&;g fad bl okn ls lacaf/kr Jfed Jh yksdsUnz daqekj iq= Jh jes'k pUnz dh fu;qfDr dHkh Hkh foi{kh@ lsok;kstdksa ds v/khu ugha gaqbZ vksj Jfed usa dHkh Hkh lsok;kstdksa ds v/khu ifj"kn esa dk;Z ugha fd;kA

3& ;g fd lsok;kstd rFkk Jfed dk dHkh Hkh dksbZ laca/k ekLVj rFkk losZaV dk ugha jgk A  

5& ;g fd mDr okn Jfed usa lkft'kiw.kZ rjhdsa ls diViwoZd ifj"kn esa ukSdjh izkIr djusa ds mnns'; ls nk;j fd;k gS A

7& ;g fd Jfed usa m0iz0 vkS?kksfxd fookn vf/kfu;e 1947 dh /kkjk 2&th ds 'krksZa ds v/khu ,d o"kZ esa 240 fnu dh lsok,a iwjh ugha dh gS A

8& ;g fd Jfed dk fookn vkS/kksfxd fookn dh ifjf/k esa ugha vkrk gS A

11&     ;g fd fnukad 31&12&79 dks vFkok mlds Ik'pkr dksbZ Hkh okn dkj.k Jfed rFkk lsok ;kstdksa ds e/; mRiUu ugha gaqvk A

12& ;g fd mDr lanHkZ vkns'k dky ckf/kr gS

13& ;g fd 'kklu ds ikl dksbZ Hkh okLrqfu"B lkexzh bl lanHkZ vkns'k dks fuxZr djusa dh ugha FkhA"

 62.        The English translation of the aforesaid version of the written statement is as under :-

(a) That the workman in the case Sri Lokendra Kumar son of Sri Ramesh Chandra was never appointed in the employer/opposite parties and the workman has never worked under the Board as its employee. appointment of the workman concerned with the instant case= Sri Lokendra Kumar son of Sri Ramesh Chandra was never made under the opposite party/employers and the workman had never worked under the U.P. State Electricity Board.

(b) That there was never any relationship of ''master and servant' between the U.P. State Electricity Board and the workman.

(c) That the workman has raised the alleged dispute under a conspiracy with an object to get employment in the Board by in a guileful manner.

(d) That the industrial dispute raised by the workman does not come within the ambit of Industrial Disputes Act, 1947 and that he has not continuously worked for 240 days in 12 calendar months as defined in Section 2(g) of the Act.

(e) That no cause of action arose on 31.12.1979 or thereafter and the reference order suffers from delay and laches and is barred by limitation.

(f) That no relevant material was available with the State Government to refer the instant dispute.

63. It is clear from the aforesaid extract of written statement filed by the employers before the Labour Court that the petitioner had pleaded that a frivolous dispute has been raised under a conspiracy in a guileful manner to survive in the U.P. State Electricity Board. Apart from the question of delay/limitation, it was also pleaded that there was material before the Government to come to a conclusion that no industrial dispute existing or apprehended. It may also be noted that the workman in his written statement has neither given any explanation nor reason for delay in raising the dispute nor prayed for condonation of delay.  The written statement of the workman is happily silent about it.

64.    In reply to the written statement of the workman, the petitioner- U.P. Power Corporation Limited in their rejoinder statement while reiterated the averments made in their written statement, emphatically denied the assertions of the workman made in the written statement with regard to his working in the Corporation and the relationships of employer and employee between them. The relevant portion of the rejoinder statement of employers before the Labor Court, for ready reference, is quoted below: -

"1& ;g fd Jfed ds fyf[kr dFku dk iSjk ua0 1 ekU; ugha gS   bl laLFkku esa dksbZ Hkh fjdkMZ vkxjk bysfDV~d lIykbZ vUMjVsfdax (mRiknu) bdkbZ dk miyC/k ugha gs A ftlls ;g lqfuf'pr fd;k tk lds fd Jfed uas 24&3&77 ls nSfud osru Hkksxh Jfed ds in ij dk;Z fd;k gS A pwWfd ;g fjdkMZ cgqr iqjkuk gs blfy;s miyC/k ugha gS A  

2& ;g fd Jfed ds fyf[kr dFku dk iSjk ua0 2 Lohdkj ugha gS A D;ksafd gekjs laLFkku esa 240 fnu iwjk djus okys nSfud Hkksxh Jfed dh lwph esa Jfed dk uke ugha gS A

4& ;g fd Jfed ds fyf[kr dFku dk isjk ua0 4 o 5 vLohdk;Z gS A  pwWfd Jfed usa dHkh Hkh lsok ;kstdks ds v/khu dk;Z ugha fd;k vkSj u mldh lsok,a lekIr dh xbZ A vr% m0 iz0 vkS/kksfxd fookn vf/kfu;e dh /kkjk 6&,u rFkk vU; /kkjkvksa ds mYya/ku djusa dk iz'u gha iSnk ugha gksrk gSA"

65.    What has been said above, substantially translated in English, is that as the matter is very old, there are no records of Agra Electric Supply Undertaking (Generation) Unit available from which it could be ascertained that the workman had worked as daily wage employee in the establishment and that his name is also not in the list of daily wage employees of the Corporation who have worked for 240 days or more in the establishment.  Since the workman has never worked under the employers and his services have not been terminated by them, there is no question of violation of provisions of Section 6-N and  other Sections of the U.P. Industrial Disputes Act, 1947.

66. In his oral evidence before the Labour Court the workman stated that he was appointed under the Executive Engineer (Generation), Agra Electric Supply Undertaking and muster rolls of daily wage employee on 24.3.1977 and worked without break till 31.12.1979. He further stated in evidence that before his appointment on 24.3.1977 he had earlier worked w.e.f. 5.5.1974 from time to time.  He was given work some time and sometimes not at all and that during that period i.e., from 5.5.76 to 24.3.1977, he was given E.S.I. card issued by the Employees' State Insurance under the Employees' State Insurance Act.  It is also stated by him in his evidence that he has worked for 300-305 days in each 12 colander months, he was not given any wage slip and attendance card by the department; that he had moved application for summoning documents from the Executive Engineer which is Exhibit W-3 and that when his services had been terminated, 80-85 employees, junior to him, were working.  

67.           In his cross-examination, he admitted that there has been delay in filing the case. He also admitted that he had not filed any document in support of his case. He has stated in his cross examination that he has not got his name registered in the Employment Exchange even though he is unemployed and that he gets work from time to time.  He lastly stated that some of the documents summoned from the employers, have been filed by them as Exhibit E to E-3.  Relevant extract of his oral evidence is quoted below for ready reference: -

      "EkSusa 24&3&77 ls igys 5&5&76 ls dke fd;k Fkk ml nkSjku dHkh dHkh dke ij j[k ysrs Fks vkSj dHkh gVk nsrs Fks A ml le; esjk deZpkjh jkT; chek fuxe ls dkMZ cuk Fkk ftldh QksVksdkih izzLrqr dh gS ! ewy esajs lkeus gS bl ij izn'kZ M0&4 Mkyk x;k A

      EkSus a24&3&77ls yxkrkj vkSj fu;fer #Ik ls dke fd;k Fkk] eq>ls vf/k'kk"kh vfHk;Urk ds nQrj esa dke fy;k tkrk Fkk A og vf/k'kk"kh vfHk;Urk tujs'ku esaUVhusa'k ls lacaf/kr Fks A eSusa 24&3&77 ls 31&12 &79 rd ds nkSjku izR;sd 12 ekl esa yxHkx 300 ls 305 fnu dke fd;k gS foHkkx ls dksbZ gkftjh dkMZ vFkok osru iphZ ugha nh tkrh Fkh A 240 fnu dke djusa ds laaca/k esa eSausa rRdkyhu vf/k'kk"kh vfHk;Urk dk Ik=  ryc djk;k Fkk tks izn'kZ M&3 gS ftl le; eq>s gVk;k ml le; eq>ls twqfu;j yxHkx 80 ls 85 deZpkjh dk;Zjr Fks !

      lsok;kstd Onkjk izLraqr flfu;fjVh fyLV iw.kZr% xyr vkSj lafnX/k gS ! eq>s gVkus ds ckn dkQh u;s deZpkjh j[ks x;s ysfdu eqz>s ugha cqyk;k x;k A

X X X X X X

     ftjg Jh ,0 ds0 'kekZ Pnkjk eSaus Jh ts0 ih0 uS;j vf/k'kk"kh vfHk;Urk ds lkFk dk;Z fd;k Fkk A eSusa 33 eghusa ls mij dke fd;k gS esjs lkFk loZJh gjhvkse] ';keckcw] fd'kuyky vkSj lR; izdk'k dke djrs Fks A eSa csjkstxkj gwW vkSj dHkh dHkh eq>s dke fey tkrk gS A  eSaus tks uke fy[kk;s gSa muesa ls dqN dks ukSdjh esa ys fy;k x;k gS A eq>s irk ugha pyk Fkk fd dqN yksxksa dks dke ij ys fy;k x;k gS blfy, eSa okn ysV yxk;k gSA  eSaus lgk;d vfHk;Urk Jh ,l-,l-,y- HkVukxj ds lkFk gh dk;Z fd;k gS A eSaus dksbZ dkxt nkf[ky ugha fd;k cfYd eSaus foHkkx ls dkxt ryc fd;s Fks muesa ls dqN dkxt vk x;s gSa tks bZ&1 ls ysdj bZ&3 rd gSa A eSaus lsok;kstu dk;kZy; uke ugha fy[kk;k gS A

( ftjg lekIr )

Ik<zk lgh ik;k Ik<zdj rLnhd fd;k A"

68.      From the statement of the workman it is crystal clear that he has no evidence regarding his appointment in the establishment or actual number of working days.  It is not case of any parties that the workman concerned was ever appointed according to rules and recruitment procedure.  The case of the workman is confined to his engagement as daily wager and legal rights, if any, accruing therefrom. In so far as summoning of documents from the employers is concerned, the employers had denied his appointment in the establishment and also stated that the records of such old period pertaining to daily wage workers are not available. Since the very engagement of the respondents is denied and records in so far as respondents are concerned could not be produced for this reason, no person can be expected to give a negative evidence and produce documents not in existence hence no adverse inference could be drawn in such cases.

69.        Much emphasis has been laid by the counsel for the respondents on evidences of S/Sri S.S. Chauhan, as well as alleged evidence of Sri S.S.L. Bhatnagar as well as the undated certificate said to have been issued by him showing that the respondents had worked during the period 24.3.77 to 31.12.79 under him as daily wagers.  Reliance has also been placed by the respondents on letter dated 17.1.1980 issued by Sri G.P. Nayyar the then Executive Engineer and the clarification of Sri S.S.L. Bhatnagar (Annexure 21 to the writ petition).  Reliance has also been placed on Ex. W-4 the E.S.I. card filed by the workman before the Labour Court, effect of which is said to have been ignored by this Court.

70.          The question of bona fide of the character certificate said to have been issued by Sri S.S.L. Bhatnagar (Annexure 21 to the writ petition) has also been dealt with in detail in the judgment dated 19.12.2003. The alleged statement of Sri S.S.L. Bhatnagar before the Labour Court is under cloud in the facts and circumstances of the case and the only option before the Court was to rely upon his clarification appended with affidavit submitted before this Court. Perusal of the said certificate appended as Annexure C.A 1 also shows that it is undated. Thus neither the said certificate nor the statement said to have been given by the alleged Sri S.S.L. Bhatnagar before the Labour Court lend support to the case of the respondents.

71.        From the certificate, on record, it appears that it was issued for a period 24.3.77 to 6.2.79.  It has already come on record that Sri S.S.L. Bhatnagar had already been relieved prior to 6.2.79 and he has denied having issued the alleged certificate filed by the workman.  Moreover, even if the averments of the respondent-workmen are accepted that it was a certificate issued by him, it was given in his private capacity and not in official capacity as is evident from paragraph no.15 in amendment application dated 17.5.2004 to the review application which are quoted below: -

"15. Because, the Court has misinterpreted the character certificate as an official letter which ought to have bear any dispatch number, as official letters used to.  In this regard it is stated that the character certificate is neither letter nor requires dispatch.  This is purely an individual certificate issued in personal capacity for certifying the work and conduct of the employee under the issuing authorities."

72.       In so far as question of evidence of Sri S.S.Chauhan is concerned, it is also clear from his evidence of Sri Chauhan that though he had not prepared the list of daily wage workers or verified from the attendance register but from the records, he can state that they are different from the original. His statement is as under: -

"&&& deZpkfj;ksa usa D;k nkok fd;k gS mldh tkudkjh gS] foHkkx dh vksj ls D;k tckc fn;k x;k gS tkudkjh ugha gS ns[kdj crk ldrk gwW A ;g lgh gS fd izn'kZ bZ&1 dh ewy o QksVks izfr ij dfVax o vksoj jkbZfVax gS] bl ij fdlds gLrk{kj gSa muds uke o inuke ugha crk ldrk A"  

  73. It is undisputed that Sri Chauhan had appeared before the Labur Court with the originals and had made the aforesaid statement after tallying Ex.E-1 filed by the employers that there was cutting and overwriting bothonthe originals as well as its photocopy Ex-E 4. It was a manipulated document.

74. The employers have disputed that Sri S.S.L. Bhatnagar had given any evidence in the aforesaid two adjudication cases of the workmen concerned- S/Sri Lokendra Kumar and Yogendra Kumar and that the said evidence has been given by some imposter.  In reply to charges levelled against him vide letter no. 5474 dated 21.11.2002, Sri S.S.L. Bhatnagar clarified vide his explanation dated 27.1.2003 (Annexure 21) that to his knowledge no person by name of Lokendra Kumar and Yogendra Kumar had worked under him as Coolie during his posting at Agra w.e.f. 18.12.1973 to 5.2.1979 when he was posted there in the Generation Division. He also stated that the alleged certificates of working said to have been issued by him are fabricated and manufactured documents as his alleged signatures on the said certificates are different from his signatures and that his stamp is also different on the said certificates.  It is also stated in the clarification that since he had been relieved on 5.2.1979 he could not have issued the said certificate, certifying the working of the workman concerned under him up to 6.2.1979 and the certificates must have been prepared probably because they must have thought it to be safe as he was no longer working in the division at Agra.  Relevant paragraph nos. 2 to 6 of his clarification are quoted below for ready reference. :-

"2& esjh tkudkjh ds vuqlkj Jh yks yksdsUnz dqekj ,oa Jh ;ksxsUnz dqekj uke ds dksbZ Hkh O;fDr tujs'ku fMohtu esa esjh dk;Zkof/k esa eLVj jksy ij dqyh ds in ij dk;Zjr ugha jgs Fks A vr% esjs Onkjk mDr O;fDr;ksa dks dk;Z djus dk izek.k Ik= nsusa dk iz'u gha ugha mBrk A

3&  vkkids mijksDr lanafHkZr Ik= ds lkFk layXu iz'uxr izek.k Ik= dh Nk;k izfr ns'kdj eSa vk'p;Zpfdr gwW] D;ksafd mDr izek.k Ik= ij vafdr esjs gLrk{kj okLro esa esjs ugha gS A mDr O;fDr;ksa ds iz'uxr izek.k Ik= dk ijh{k.k djusa ij dbZ egRoiw.kZ rF; n`f"Vxkspj gksrs gSa] ftlls mDr izek.k Ik= ds QthZ o dwVjfpr gksus dh iqf"V gksrh gS A blesa eq[; rF; ;g gS fd muds izek.k Ik= ij esajs tks rFkkdfFkr gLrk{kj gSa muesa fHkUurk gS A blds vfrfjDr mDr izek.k Ik=ksa dh VkbZfiax djk;s x;s gSa A  mDr izek.k Ik= ij esajs rFkkdfFkr gLrk{kj ds uhps tks eksgj yxh gS mlds v{kjksa ds lkbZt esa Hkh fHkUurk gS A vksoj jkbZfVax / vksoj VkbZfiax esajs rFkkdfFkr gLrk{kj ds uhps n`f"Vxkspj gksrh gSa A  

4&  mYys[kuh; gS fd izek.k Ik= esa mDr O;fDr;ksa dh dk;kZof/k fnuakd 24&3&77 ls 6&2&79 vafdr gS tcfd eSa fnukad 5&2&79 dks LfkkukaUrj.k ds QyLo#Ik vkxjk bysfDVzd lIykbZ vUMjVsfdax ls dk;ZeqDr gks x;k Fkk A  

5&   ,slk izrhr gksrk gS fd mijksDr of.kZr O;fDr;ksa us ukSdjh ikus ds mnns'; ls vius fudV lacaf/k;ksa tks vkxjk bysfDVzd lIykbZ vUMjVsfdax esa ml le; dk;Zjr Fks ds lkFk fey dj tkylkth dh gs A  ,oa dk;Zky; ls esajs LFkkukUrj.k ds ckn ,d QthZ izek.k Ik= rS;kj dj fy;k A pwWfd eSa ogkW ls fnukad 5&2&79 dks dslk] dkuiqj esa dk;ZHkkj xzg.k djus gsrq dk;ZeqDr gksdj pyk vk;k Fkk A vr% mUgsa esjk QthZ gLrk{kj cukuk dnkfpr vf/kd mi;qZDr ,oa lqjf{kr yxk gksxk A eSa foHkkxh; vuqefr izkIr dj bl izdkj tkylkth djus okys mijksDr O;fDr;ksa ds fo#() U;k;ksfpr dk;Zokgh djus dk viuk vf/kdkj lqjf{kr j[krk gwW A

6&   ;gkW ;g Hkh mYys[kuh; gS fd ;fn iz'uxr oknksa ds fdlh Hkh Lrj ij mijksDr dfFkr nksuksa izek.k Ik=ksa tks brus egRoiw.kZ vfHkys[k Fks ftuds vk?kkj ij foHkkx nksuksa okn gkj x;k] dh oS/krk iz'ufpfUgr Fkh rks ml Lrj ij eq>ls mijksDr nksuksa dfFkr izek.k Ik=ksa dh lR;rk dh iqf"V lacaf/kr bdkbZ Onkjk eq>ls djk;k tkuk visf{kr Fkk A eSa fuf'fpr #Ik ls dfFkr QthZ rS;kj fd;s x;s izek.k Ik=ksa dh ckcr viuh lk{; nsrk vkSj vius lgh uewusa ds gLrk{kj vkidks miyC/k djkrk vkSj bl izdkj foHkkx fuf'pr #Ik ls mijksDr dfFkr izek.k Ik=ksa dks U;k;ky; esa >wBk] QthZ ,oa cukoVh rFkk dwVjfpr gksuk lkfcr dj ldrk Fkk rFkk foHkkx dks dfFkr vkfFkZd gkfu ugha mBkuh iMrh A"

75.     In so far as alleged evidence of Sri S.S.L. Bhatnagar before the Labour Court is concerned, it has come in evidence that he had seen the records in respect of the concerned respondents and proved Ex. 8-B(1)- a photocopy of the list of workers with the original who had worked for 240 days or more.  He stated in his examination-in-chief that the names of the concerned workmen are NOT in the list and as such, he stated that they had not worked in the department. In his cross- examination, he has unequivocally stated that it is true that Ex.E-1, which is an original document, does not tally with its photocopy which has been filed before the Labour Court as the entries have been made in different ink and there are cuttings and over writings in the same.

76.           In so far as ground no. 12 is concerned, it is regarding period of working wrongly mentioned up to 31.12.77.  Suffice is to say that the workman in his written statement has stated  that he has worked up to  31.12.1977.  In his evidence before the Labour Court he has again reiterated that he had worked in the Corporation up to 31.12.1977, hence it is incorrect to say that the Court has incorrectly mentioned the period of his working in the judgement from 24.3.1977 to 31.12.1977. It is, in fact, a typographical error in the judgment.

77.      In Sapan Kumar Pandit (supra), Hon'ble the Supreme Court in paragraph 15 of the decision, after considering the cases of Shalimar Work Limited (supra),  Nedungadi Bank Ltd. (supra) and M/s. Western India Watch Co. Ltd. Vs. Western India Watch Co. Workers Union (A.I.R. 1970 S.C.-1205) (supra).  The Apex Court has held that whether the delay is fatal or not will depend upon the facts and circumstances of each case and it is not straight jacket formula which can be applied to each and every case.  Furthermore, in Sapan Kumar Pandit (supra), Hon'ble the Supreme Court has held that delay has to be examined in the context of each case.  In the said case, the aforesaid cases including of  Shalimar Work Limited (supra) were explained but not overruled.  In that case, the Government had chosen to refer the dispute for adjudication and it appears that the employers had challenged the same before High Court which quashed the reference merely on the ground of delay and allowing the appeal of the workman, directed that the adjudicatory process should reach its legal culmination.  In the instant case, the facts are different.  The dispute has been raised and has been decided by the Labour court.  Thereafter, it has been challenged in the High Court.  Hence the context of Sapan Kumar Pandit (supra) in which the aforesaid two judgments have been explained, does not apply to the facts of the present case.

  78. The next contention of the counsel for the respondent-applicants on the point of delay that the case of  Shalimar Work Limited (supra) has been overruled by the Hon'ble Supreme Court in the case of Sapan Kumar Pandit (supra) is incorrect.  

SUBSEQUENT EVENTS:

. 79.    After the award and filing of the writ petitions, the petitioner- Corporation was informed that Sri Nagendra Kumar who was doing pairvi of the cases of the Corporation was real brother of the respondenr-workmen Lokendra Kumar and Yogendra Kumar. These facts were brought by the petitioner on record along with an affidavit. Counsel for the respondents was afforded opportunity to rebut the allegations of the petitioner after exchange of affidavits. The court noted that he did not appear before the Deputy Labour Commissioner on any date for doing pairvi in the case as a result, the applications of his real brother for implementation of the award were allowed and recovery certificate for a sum of about Rs.6.5 lacs in each of the cases was issued against the petitioner.

 80.   In this category, ground nos. 2 and 5 of the review application and ground no. 24 of the amendment application fall.  The question as to whether High court under Article 226 can look into subsequent events for doing substantial justice between the parties has been considered by the Apex court in a catena of decisions.

 81.    In ABL International Ltd. Vs. Export Credit Guarantor Ltd.- 2004(3) SCC-53, the Apex Court observed that a writ petition involving serious disputed questions of fact, which require consideration of evidence, which is not on record, will normally be no entertained by a Court in the exercise of its jurisdiction under Article 226 of the Constitution of India. The Court, relying upon the decision in Gunwant Singh Kaur V. Municipal committee, Bhatinda- 1969(3) SCC-769 held that even where disputed questions of fact are involved in an appropriate case writ court has jurisdiction to entertain writ petition involving disputed questions of fact and there is no absolute bar in regard thereto. Hon'ble the Supreme Court quoted with approval the decision in Gurwant Singh Kaur (supra) to the effect that in a writ petition if the facts require, even oral evidence can be taken by the writ court, as such, in appropriate cases, Court can very well go into the disputed questions of fact and law. In paragraph 19 of the decision, the Apex Court held as under :-

" Therefore, it is clear from the above enunciation of law that merely because one of the parties to the litigation raises a dispute with regard to the facts of the case, the Court entertaining such petition under Article 226 of the Constitution of India is not always bound to relegate the parties to a suit.  In the above case of Gunwant Kaur this court even went to the extent of holding that in a writ petition, if the facts require, even oral evidence can be taken. This clearly shows that in appropriate case, the writ Court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of contractual obligation and/or involves some disputed questions of fact."

82. In view of the decisions of the Apex Court in  ABL International Ltd. Vs. Export Credit (supra) and  Guarantor Gurwant Singh Kaur (supra) High Court has wide powers under Article 226 of the Constitution to consider question of fraud and collusion in the writ petition even though raised subsequently and it is not bound to relegate the parties to lower Court.  If the Court feels that it is appropriate case, it can also go to take evidence under Art. 226.  It is, therefore, incorrect that High Court has no jurisdiction to entertain the subsequent events.

GENERAL GROUNDS

83. In so far as grounds which are general in nature are concerned, residual ground nos. 6 and 11 taken in the review application and ground nos.        in the amendment application fall in this category. Suffice it to say that in case a petition is filed under Articles 226 and 227 of the Constitution, Court is duty bound to decide the same on merits except when it is withdrawn with the leave of the Court.  Argument that the judgment would affect the right of the workmen who have been reinstated in service and after reinstatement the employers have no complaint against them is irrelevant.  In every case when the judgment is rendered one of the other party is bound to be adversely affected.  If due to the procedure or owing to reason attributable to the parties, an interim order is not passed in the case, it is no ground not to decide the writ petition on merits.  Hence general grounds have no force.

84.   The court relying upon the cases of Shalimar Work Limited V. Their workmen- A.I.R. 1959 S.C-1217;  Nedungadi Bank Ltd. Vs. K.P. Madhav Kutti - A.I.R. 200 S.C-839 and Assistant Executive Engineer V. Shidinga-2002 Vol. I L.L.J-457 held that cause of action, if any, arose in 1979 the dispute was raised in the year 1997 after inordinate delay and latches of 18 years which remained unexplained and were fatal to the case of the respondents.  It was further held that the dispute regarding non-employment during these 18 years had become stale and the witnesses cannot be expected to remember actual days of employment etc., after such a long time without aid of record. The Court also considered the effect of the undated character certificate said to have been issued by Sri S.S.L. Bhatnagar, which had been relied by the Labour Court in the impugned award in light of the clarification given by Sri Bhatnagar. This court found that the relevant evidence of the employers was not considered and the findings of Labour Court are unsustainable.  The Court also noted the circumstances in which the award is said to have been obtained by collusion and fraud by the two respondent-workmen-Lokendra Kumar and Yogendra Kumar with the help of Sri Nagendra Kumar who was doing pairvi of the case on behalf of the Corporation without disclosing the fact to the employers that he was real brother of the two workmen concerned.  

85. The Court also relied upon the cases of Himanshu Kumar Vidyarthi V. State of Bihar -1997(4) S.C.C-391 and Surendra Kumar Sharma v. Vikas Adhikari- (2003) 5 S.C.C-12 and held that the cases of daily wagers who claim retrenchment after many years stand on different footings from regular and temporary employees and termination of the service of the workman concerned were not entitled to relief of reinstatement etc., as awarded by the Labour Court in the facts and circumstances of the cases.

  86. The Court also took judicial notice of the fact that though the reference was only about termination of services the Labour Court had granted relief of seniority, annual increments, time scale, revised/amended pay scale, promotion with continuity in service at par with regular employees for the eighteen years directing the employers to deem the concerned workman in continuous and regular service.  The were also awarded pensionary benefits even though they had not worked even for a single day or approached the petitioners for work during all these years. In other words the Labour Court not only regularized the services of the workmen but also gave them all the benefits of a regular employee when in fact, the respondents were daily wage employees and had worked as such for specified periods from time to time. It has also come on record that it was only after the award was published and during the pendency of the writ petition that the petitioner was informed by letter dated 12.6.200 vide Annexure 29 to the writ petition, that Nagendra Kumar Kaushik, the real brother of the two workmen concerned had done pairvi on behalf of the Corporation before the Labour Court along with Sri Ashok Kumar Sharma, Personal Officer, Agra Zone UPSEB before the Labour Court without disclosing his relationship with his brothers to the Corporation during the proceedings before the Labour Court.

              87. From the original records summoned by this Court from the Labour Court as well as from the affidavits/amendments filed on record of the writ petition it appears that Nagendra Kumar Kaushik had been authorized to represent the Corporation along with Sri Ashok Kumar Sharma, Personnel Officer but he had not signed the letter of authority for obvious reason that he was brother of Sri Lokendra Kumar and Sri Yogendra Kumar and knew that this fact may come to the knowledge of the corporation at any time hence it appears that he preferred to remain in the background and kept on doing Pairvi of the cases of his brothers surreptitiously before the Labour Court.   This fact also finds strength from paragraph 2 of the affidavit filed in the impleadment application filed by Sri Nagendra Kumar Kaushik in which it has been admitted that he was doing pairvi of the case and Sri Lokendra Kumar and Sri Yogendra Kumar who are his real brothers and respondents in the two writ petitions, aforesaid. Paragraph 2 of the impleadment application is as under :-

        "That the above noted writ petition has been filed against judgment/award dated 14.2.2000 passed by Labour court U.P. Agra in Adj. Case No. 119 of 1997  SEUDCUPSEB Agra and Lokendra Kumar, before the Labour Court, U.P., Agra. The deponent/applicant was deputed to assist Sri Ashok Kumar Sharma, Personal Officer, Agra Zone (UPSEB) Agra as the authorized representative of employers (UPSEB) before the Labour Court, U.P., Agra vide letter of authority dated 21.10.1997 issued by Superintending Engineer UPSEB Urban Distribution Circle, Agra. During the entire proceedings conducted before the Labour Court U.P. Agra Sri Ashok Kumar Sharma, represented the employer/UPSEB and his name also finds mention in the impugned award dated 14.2.2000."

88.      Perusal of the letter of authority shows that Sri Nagendra Kumar Kaushik was authorized to represent the UPSEB before the Labour Court. It is evident that by that time  his relationship with his brother in the relevant adjudication cases had not been revealed and he had very cautiously, craftly and cunningly not signed on the letter of authority filed before the Labour Court knowing fully well that in future he might have to face such a situation where his relationships with his brothers may come to the knowledge of the employers. It is for this reason the sentence in paragraph 2 above that he  was  "deputed to assist Sri Ashok Kumar Sharma, Personnel Officer, Agra Zone (UPSEB) Agra as the authorized representative of employers" has been used which  is half truth as appears from the documents and the facts and circumstances stated above.

89. It is then stated by him that Sri  Sudhanshu Narain who has been subsequently engaged, had obtained consent from the counsel Sri B.D. Madhyan,  who was initially counsel for the respondents to argue the case.          

84. The facts stated above already disclosed in the aforesaid writ petitions are being reagitated in the garb or review application on the ground that judgment under review suffers from error apparent on the face of record.

  92.   U.P. Power Corporation also

94. Apart from the law enunciated by the Apex court through its various judgments, the review application is not maintainable and is liable to be rejected as the matter has already been decided on merits by judgment dated 19.12.2003 and cannot be permitted to be reopened or reagitated for decision afresh on merits.

95. For the reasons stated above, the review petition fails and is dismissed without any order as to costs.

Dated  

Kkb


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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