Allahabad High Court
Dinesh Kumar vs Presiding Officer Industrial ... on 21 July, 2023
Bench: Manoj Kumar Gupta, Surendra Singh-I
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:145609-DB
Court No. - 21
Case :- SPECIAL APPEAL DEFECTIVE No. - 444 of 2023
Appellant :- Dinesh Kumar
Respondent :- Presiding Officer Industrial Tribunal(V) And Another
Counsel for Appellant :- Onkar Nath
Counsel for Respondent :- C.S.C.,Diptiman Singh
Hon'ble Manoj Kumar Gupta,J.
Hon'ble Surendra Singh-I,J.
Order on the Delay Condonation Application
1. Heard learned counsel for the parties.
2. Sri Diptiman Singh, learned counsel for respondent no. 2, does not oppose the delay condonation application.
3. Accordingly, the application is allowed.
4. Office is directed to allot a regular number to the instant appeal.
Order on the Memo of Appeal
1. The instant intra-court appeal is directed against the order dated 18.10.2021, by which learned Single Judge has allowed Writ - C No. 48567 of 2011, set aside the award of the Labour Court dated 12.10.2009 and has directed for reinstatement of the appellant (petitioner) in service. The petitioner was held entitled to back wages only from the date of termination till the date of passing of the award dated 12.10.2009 by the Labour Court. It has also been observed that he would be entitled to monthly wage only from the date of passing of the order by the Writ Court.
2. Sri Diptiman Singh, learned counsel appearing on behalf of respondent no. 2, submits that the instant intra-court appeal is not maintainable in view of exclusion clause in Chapter VIII Rule 5 of the Allahabad High Court Rules, 1956. In support of his submission, he places reliance on Division Bench judgment of this Court in Vajara Yojna Seed Farm, Kalyanpur (M/s.) and Others vs. Presiding Officer, Labour Court II, U.P., Kanpur and another, 2003 (1) UPLBEC 496.
3. Chapter VIII Rule 5 reads thus: -
Special appeal.- An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of Appellate Jurisdiction in respect of a decree or order made by a Court subject to the Superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of Superintendence or in the exercise of criminal jurisdiction or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award (a) of a tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution or (b) of the Government or any Officer or authority, made or purported to be made in the exercise or purported exercise of Appellate or Revisional Jurisdiction under any such Act of one Judge.
4. A plain reading of the provision reveals that an appeal against an order passed by the Writ Court in exercise of jurisdiction conferred under Article 226 or Article 227 of the Constitution in respect of any judgment, order or award of a Tribunal in purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution is specifically excluded.
5. The award in the instant case was passed by the Industrial Tribunal under the provisions the U.P. Industrial disputes Act, 1947, in a reference under Section 4-K of the Act. The order passed by learned Single Judge is apparently an order passed in exercise of power under Article 226 against an award of a Tribunal passed in exercise of power under U.P. Act in respect of the matter enumerated in the Concurrent List, i.e. List 3 Item No. 22.
6. The same aspect was examined by the Division Bench in Vajara Yojna Seed Farm (supra) and the special appeal preferred against the order of Labour Court was held to be not maintainable under Chapter VIII Rule 5 of the Rules of the Court. The relevant observations in this behalf are extracted below: -
51. The submission of Sri P.S. Baghel appearing for the respondents in Special Appeal No. 1177 of 2001 is fully supported by the Division Bench judgment of this Court in Oriental Bank of Commerce's case (supra). The Division Bench of this Court in the aforesaid case had occasion to consider as to whether special appeal is maintainable against a judgment of learned Single Judge passed in writ petition arising out of award by Central Industrial Tribunal. The Division Bench of this Court while considering Chapter VIII, Rule 5 of the Rules of the Court laid down in Paragraphs 4 and 5 of the aforesaid judgment as under :-
"4. ...................................................
On a plain reading of the above provision, it is clear that if the judgment of the learned Single Judge has been passed in exercise of the jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award of a Tribunal, Court or Statutory Arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act with respect to any of the matters enumerated in the State Lists or the Concurrent List of the Seventh Schedule of the Constitution or of the Government or any officer or authority made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act, then no appeal shall lie against the judgment of the Single Judge. If on the other hand, the judgment of the Single Judge is rendered with respect to any matter enumerated in the Union List, then an appeal may be filed against the judgment.
5. The crucial question, therefore, is whether the award passed by the Central Industrial Tribunal in the present case can be said to be with respect to any of the matters enumerated in the State List or the Concurrent List of the Seventh Schedule to the Constitution or it is in respect of a matter under the Union List. Indisputably, the reference to the Central Industrial Tribunal was made by the Central Government (appropriate Government) under Section 10 of the Industrial Disputes Act, 1947 and the Tribunal passed the award in exercise of the jurisdiction vested under the said Act. The Industrial Disputes Act, 1947 deals with matters relating to Trade Unions, Industrial and Labour Disputes; provided in Entry 22 of List III Concurrent List."
52. From the above discussion, it is clear that special appeal filed against the award by Labour Court is not maintainable and the Special Appeal Nos. 1177 of 2001. 416 of 2002 and 541 of 2002 are liable to be dismissed as not maintainable.
7. Counsel for the appellant is not in a position to dispute the above legal position.
8. The appeal is accordingly dismissed as not maintainable.
(Surendra Singh-I, J.) (Manoj Kumar Gupta, J.)
Order Date :- 21.7.2023
Jaideep/-
