Allahabad High Court
Greater Noida Industrial Development … vs Hem Singh And 05 Others on 16 October, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Neutral Citation No:- 2024:AHC:163442 Court No. 50 Reserved on: 06.9.2024 Delivered on: 16.10.2024 1. WRIT - C No. - 38900 of 2018 Petitioner :- Greater Noida Industrial Development Authority, Gautam Buddh Nagar, Through Its Chief Executive Officer Respondent :- Hem Singh and 5 Others Counsel for Petitioner:- Mr. M.C. Chaturvedi, Senior Advocate, Mr. Aditya Bhushan Singhal & Sri Vineet Kumar Pandey, Advocates Counsel for Respondent :- C.S.C., Mr. Gopal Narain & Sri Akash Pandey, Advocates With 2. WRIT - C No. - 42565 of 2018 Petitioner :- Greater Noida Industrial Development Authority Respondent :- Bansi Lal and Another With 3. WRIT - C No. - 42775 of 2018 Petitioner :- Greater Noida Industrial Development Authority Respondent :- Teekam Singh and Another With 4. WRIT - C No. - 42785 of 2018 Petitioner :- Greater Noida Industrial Development Authority Respondent :- Ram Kishan and Another With 5. WRIT - C No. - 42798 of 2018 Petitioner :- Greater Noida Industrial Development Authority Respondent :- Hem Singh and Another With 6. WRIT - C No. - 42803 of 2018 Petitioner :- Greater Noida Industrial Development Authority Respondent :- Sube Ram and Another With 7. WRIT - C No. - 42809 of 2018 Petitioner :- Greater Noida Industrial Development Authority Respondent :- Sanjay and Another With 8. WRIT - C No. - 42817 of 2018 Petitioner :- Greater Noida Industrial Development Authority Respondent :- Devendra Kumar and Another With 9. WRIT - C No. - 42824 of 2018 Petitioner :- Greater Noida Industrial Development Authority Respondent :- Anil Kumar and Another With 10. WRIT - C No. - 42825 of 2018 Petitioner :- Greater Noida Industrial Development Authority Respondent :- Sahab Singh and Another With 11. WRIT - C No. - 42827 of 2018 Petitioner :- Greater Noida Industrial Development Authority Respondent :- Sube Ram and Another With 12. WRIT - C No. - 42830 of 2018 Petitioner :- Greater Noida Industrial Development Authority Respondent :- Dhan Pal and Another With 13. WRIT - C No. - 42831 of 2018 Petitioner :- Greater Noida Industrial Development Authority Respondent :- Sant Ram and Another With 14. WRIT - C No. - 42839 of 2018 Petitioner :- Greater Noida Industrial Development Authority Respondent :- Bali and Another With 15. WRIT - C No. - 42843 of 2018 Petitioner :- Greater Noida Industrial Development Authority Respondent :- Gyan Chand and Another With 16. WRIT - C No. - 42844 of 2018 Petitioner :- Greater Noida Industrial Development Authority Respondent :- Sanjai Nagar and Another With 17. WRIT - C No. - 42853 of 2018 Petitioner :- Greater Noida Industrial Development Authority Respondent :- Giri Chand and Another 18. WRIT - C No. - 38893 of 2018 Petitioner :- Greater Noida Industrial Development Authority Respondent :- Presiding Officer, Industrial Tribunal and Another With 19. WRIT - C No. - 8474 of 2024 Petitioner :- Hem Singh and 4 Others Respondent :- State of U.P. and 3 Others Counsel for Petitioner:- Mr. Gopal Narain & Sri Akash Pandey, Advocates Counsel for Respondent :- C.S.C., Mr. M.C. Chaturvedi, Senior Advocate, Mr. Aditya Bhushan Singhal & Sri Vineet Kumar Pandey, Advocates With 20. WRIT - C No. - 8454 of 2024 Petitioner :- Greater Noida Mail Evam Safai Kamgar Union 34 Lal Jhanda Bhawan Respondent :- State of U.P. and 3 Others Hon'ble Chandra Kumar Rai,J.
1. Heard Mr. M.C. Chaturvedi, learned Senior Advocate, assisted by Mr. Vineet Pandey and Mr. Aditya Bhushan Singhal, Advocates for the Petitioner-Authority/ Respondent-Authority, Sri Gopal Narain, Advocate assisted by Sri Akash Pandey, Advocate for Respondents-Workmen / Petitioners-Workmen and the learned standing counsel for the state-respondents in all the writ petitions.
2. Since common issues are involved in all the writ petitions, hence all the writ petitions are clubbed and heard together and are being decided by a common order and Writ Petition No.38900 of 2018 shall be treated as a leading petition.
3. Brief facts of the case are that U.P. Industrial Area Development Act, 1976 (hereinafter referred to as the “Act of 1976”) came into force on 1.4.1976 and Petitioner-Greater Noida Industrial Development Authority (hereinafter referred to as the “GNIDA”) was constituted under Section 3 of the Act of 1976. The services of the employees of the GNIDA are governed by the provisions of Greater Noida Service Regulations, 1993. Respondent nos. 2 to 6, as elected representatives of workmen of petitioner, moved an application under Section 2-A of the U.P. Industrial Dispute Act, 1947 (hereinafter referred to As the “Act of 1947”) before Conciliation Officer/Assistant Labour Commissioner on 17.4.1998, stating that workmen had continuously worked in the petitioner-authority but their services have not been regularized. The aforementioned case was registered as C.B. No. 17/1998 and C.B. No.1/2002. The Assistant Labour Commissioner, Ghaziabad issued notice in the conciliation proceeding wherein the petitioner-authority filed objection, stating that workmen are not employees of the petitioner-authority, accordingly, conciliation proceeding was failed and matter was referred to the State Government. The State Government vide letter / orders dated 31.1.2000 & 14.9.2007 referred the dispute for adjudication to the Industrial Tribunal, Meerut which were registered as Adjudication Case Nos.6 of 2000 & 4 of 2007 wherein the Labour Court issued notice to the petitioner-authority as well as the workmen for adjudication of the industrial dispute. The petitioner as well as respondent-workmen/union filed their written statement in the aforementioned adjudication case. Both the parties filed their rejoinder to the written statements filed by the respective parties. The respondent-workmen/union also filed case under Section 6-F of the Act of 1947 which was registered as Misc Case Nos. 15 of 2004 to 27 of 2004 and 45 of 2005 to 47 of 2005. An application dated 26.11.2011 was also filed in the aforementioned Adjudication Case No.6/2000 for consolidating the aforementioned misc. cases with Adjudication Case No.6/2000. Both the parties adduced oral evidence in support of their cases. On the application 83-D of the respondent- workmen/ union for consolidating the Adjudication Case No.6/2000 (which was filed with regard to 129 workmen) and Adjudication Case No.4/2007 (which was filed with regard to 111 workmen) was allowed by Industrial Tribunal/respondent no.6 vide order dated 7.10.2016. Respondent no.6/Industrial Tribunal vide award dated 29.5.2018 as published on 4.9.2018 allowed the claim of respondent-workmen, directing the petitioner-authority to regularize the services of the respondent-workmen from the date of reference order and all consequential benefit in Adjudication Case No.6/2000 and Adjudication Case No.4/2007. Hence, Writ Petition No.38900 of 2018 for the following relief:-
“Issue writ, order or direction in the nature of certiorari, quashing the award passed in Adjudication Case (Abhinirnay Vivad) No.6 of 2000 notified on the notice board of respondent no.6 on 4.9.2018 (award dated 29.5.2018 published by the order of the State Government No.512 on 9.8.2018) (Annexure No.1).”
Writ Petition No.38893 of 2018 has been filed for the following relief:-
“Issue writ, order or direction in the nature of certiorari, quashing the award passed in Adjudication Case (Abhinirnay Vivad) No.4 of 2007 notified on the notice board of respondent no.1 on 4.9.2018 (award dated 29.5.2018 published by the order of the State Government No.512 on 9.8.2018) (Annexure No.1).”
4. Sixteen Misc. Cases filed by sixteen workmen (Misc. Nos.15/2004 to 27/2004 and 47/2005 to 49/2005) were heard together and allowed vide award/order dated 27.5.2018 as published on 13.7.2018, holding that services of workmen shall not be treated as terminated w.e.f. 6.2.2003 and they shall be treated in service with all service benefit, hence, 16 writ petitions were filed by petitioner-authority for quashing the order dated 27.5.2018/13.7.2018 passed in 16 misc. cases.
5. In the absence of any interim order in the writ petitions filed by the Petitioner-Authority, respondent-workmen – Kamgar Union initiated proceeding under Section 6(H)(1) of the Act of 1947, wherein a recovery certificate dated 4.1.2024 has been issued for recovery of the amount in question. However, no recovery has been effected by the respondent concerned, hence, respondent-workmen-Kamgar Union filed Writ C Nos. 8474 & 8454, both of 2024 for the following relief:-
“Issue a writ, order or direction in the nature of mandamus, commanding the respondent no.2 to recovery the amount of the recovery certificate dated 4.1.2024 and sent to the Deputy Labour Commissioner”.
6. This Court vide order dated 20.12.2018 directed the learned counsel for respondent to file counter affidavit but no interim order was granted in the instant writ petition. In pursuance of the order dated 20.12.2018, affidavits are exchanged between the parties.
7. Learned Senior Counsel for the Petitioner-Authority submitted that there was no master-servant relationship between the petitioner-authority and the respondent- alleged workmen, as such, the respondent-workmen cannot raise industrial dispute. He further submitted that there is no document regarding appointment of the respondent- alleged workmen in the petitioner-authority, as such, the respondent no.6/ Industrial Tribunal cannot order for regularization of the services of the respondent- alleged workmen along with other service benefits. He further submitted that workmen had worked through different contractor on different job and the contractors have not been impleaded before the Industrial Tribunal, as such, no relief can be granted in favour of respondent-alleged workmen by the Industrial Tribunal. He further submitted that the representatives of the workmen cannot contest the matter before the Industrial Tribunal as they were never elected as representative of alleged workmen and no proof of authorization was placed on record before the Industrial Tribunal by the representative of the alleged workmen. He further submitted that respondent- alleged workmen has not performed any permanent nature of work, as such, the order of regularization passed by the Industrial Tribunal is without jurisdiction. He submitted that there is no vacant post of permanent nature in the petitioner-authority, as such, the order of regularization passed by the Industrial Tribunal is without jurisdiction. He further submitted that 129 gardeners whose list has been annexed in Adjudication Case No.6/2000 and 111 gardeners / Safar Karamchari whose list has been annexed in Adjudication Case No.4/2007 were never appointed by the petitioner-authority and they have not even worked continuously for more than 240 days in a calendar year, as such, no relief can be granted in favour of respondent- alleged workmen by the Industrial Tribunal. He further submitted that the impugned award passed by respondent no.6/Industrial Tribunal is totally perverse and cannot be sustained in the eye of law. He further placed the written statement of the petitioner-authority, respondent-alleged workmen as well as the evidence adduced by both the parties in order to demonstrate that there was no direct master-servant relationship between the petitioner-authority and the respondent- alleged workmen. He further placed reliance upon the following judgments of Hon’ble Apex Court, of this High Court and that of the Delhi High Court in support of his argument:-
“1. 2020 0 Supreme (SC) 613, ONGC Employees Mazdoor Sabha vs. The Executive Director Basin Manager, Oil and Natural Gas Corporation (India) Ltd.
2. 2020 0 Supreme (SC) 120, Oil and Natural Gas Corporation vs. Krishan Gopal and Others.
3. 2004 (3) SCC 514, Workmen of Nilgiri Coop vs. State of Tamilnadu and Others.
4. 2014 (7) SCC 177, BSNL vs. Bhurumal.
5. 2004 (6) SCC 504, Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan and Others.
6. 2004 (8) SCC 195, Municipal Corporation Faridabad vs. Sri Niwas.
7. 2019 (6) SCC 448, The Superintending Engineer vs. M. Natesan etc.
8. 2024 (1) ADJ 515, M/s Triveni Engineering vs. State of U.P. and Others.
9. 2020 SCC Online (SC) 150, Oil and Natural Gas Corporation vs. Krishan Gopal and Others.
10. 2021 SCC Online (SC) 899, Union of India and Others vs. Ilmo Devi and Another.
11. 2023 Live Law (SC) 801, Ganesh Digamber Jambhrunkar and Others vs. The State of Maharashtra and Others.
12. 1981 AIR Allahabad 300, Gopal Krishna Indley vs. 5th Addl. District Judge, Kanpur and Others.
13. 1977 AIR Allahabad 1, U.P. State Road Transport Corporation vs. The State Transport Appellate (Tribunal), U.P., Lucknow and Others.
14. 2014 (213) DLT 325, Gopal vs. Bharat Sanchar Nigam Ltd.”
8. On the other hand, Sri Gopal Narain, learned counsel appearing for the respondent-workmen/Union submitted that respondent no.6-Industrial Tribunal after considering the evidence adduced by the parties as well as the ratio of law laid down by Hon’ble Apex Court, has passed the impugned award for regularization of the services of the workmen. He further submitted that the petitioner-authority has failed to prove that workmen have not worked in the petitioner-authority. He further submitted that proper opportunity was afforded to the petitioner-authority to lead evidence in support of their cases. He submitted that the petitioner-authority has never taken the plea of continuous working of the workmen before the Industrial Tribunal, hence, they cannot be permitted to raise such plea for the first time in the writ petition. He further submitted that claim of the workmen for regularization was pending, as such, according to the provisions contained under Section 6-E(2)(b) of the Act of 1947, the petitioner-authority cannot terminate the services of the workmen. He submitted that proceeding under Section 6-F of the Act of 1947 was rightly initiated by the workmen which has been decided under the impugned award, holding that termination was illegal with all service benefits. He further submitted that petitioner-authority has failed to prove that workmen were employed by the contractor. He further submitted that finding of fact has been recorded by the Industrial Tribunal that petitioner-authority had adopted the unfair labour practice, accordingly, there is no illegality in the impugned award. He further placed the written statement filed by the petitioner-authority in the aforementioned adjudication case in order to demonstrate that respondent-workmen were working in the petitioner-authority. He placed reliance upon the following judgments of Hon’ble Apex Court and that of this High Court in support of his arguments:-
“1. (2006) 1 Supreme Court Cases 106, R.M. Yellati vs. Asst. Executive Engineer.
2. [2002 (92) FLR 667], Jaipur Zila Sahkari Bhoomi Vikash Bank Ltd. vs. Shri Ram Gopal Sharma and Others.
3. 1970 (1) SCC 225, M/S Western India Match Co. Ltd. vs. The Western India Match Co. Workers Union and Others.
4 (1996) 2 SCC 293, Chief Conservator of Forests and Another vs. Jagannath Maruti Kondhare and Others.
5. AIR 1950 Supreme Court 188, The Bharat Bank India Limited vs. Delhi vs. The Employees of the Bharat Bank, Ltd., Delhi.
6. 1964 0 AIR (SC) 355, M/s Basti Sugar Mills Ltd. vs. Ram Ujagar and Others.
7. 2024 0 Supreme (SC) 224, Mahanadi Coalfields Limited vs. Brajrajnagar Coal Mines Workers’ Union.
8. (2001) 7 Supreme Court Cases 1, Steel Authority of India Ltd. And Others vs. National Union Waterfront Workers and Others.
9. (2002) 1 SCC 1, Pradip Chandra Parija and Others vs. Pramod Chandra Patnaik and Others.
10. 2019 (160) FLR 233, Food Corporation of India vs. Gen. Secy. FCI India Employees Union and Others.
11. 2015 (146) FLR 443, ONGC Ltd. vs. Petroleum Coal Labour Union and Others.
12. 1996 2 LBESR 776, Nagar Mahapalika Gorakhpur vs. Labour Court, Gorakhpur.
13. 2012 (133) FLR 976, I.C.I. (India) Limited (Formerly I.E.L. Ltd.), Fertilizer Division, Panki, Kanpur vs. State of U.P. and Others.
14. 2007 (115) FLR 371, M/s. U.P. State Road Transport Corporation, Jhansi and Another vs. Ramji Naik and Another.
15. FLR 1996 74 2600, U.P. State Electricity Board vs. P.O., Labour Court.
16. AIR 1976 Supreme Court 2547, The State of U.P. vs. Ram Chandra Trivedi.
17. AIR 1974 Supreme Court 1596, Mattulal vs. Radhe Lal.
9. I have considered the arguments advanced by learned counsel for the parties and perused the records.
10. There is no dispute about the fact that under the impugned award, the respondent no.6/Industrial Tribunal has passed the award for regularization of the services of the workmen with all service benefits.
11. In order to appreciate the controversy, involved in the matter, perusal of Section 2(Z) of the Act of 1947 and Rule 40 of the U.P. Industrial Disputes Rules, 1957 will be relevant which is as under:-
“2(Z) of the U.P. Industrial Disputes Act, 1947:-.
“workman” means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-
(I) who is subject to any Army Act, 1950 or the Air Force Act, 1950, or the Navy (Discipline) Act, 1934; or
(ii) who is employed in the police service or as an officer or other employee of a prison, or
(iii) who is employed mainly in a managerial or administrative capacity, or
(iv) who, being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.”
Rule – 40 of U.P. Industrial Dispute Rules, 1957:-
“40. Representation of Parties (1) The parties may, in their discretion, be represented before a Board, Labour Court or Tribunal,–
(i) in the case of a workman subject to the provision of sub-section (3) of Section 6-I, by–
(a) an officer of a Union of which he is member, or
(b) an officer of a Federation of Unions to which the union referred to in clause (a) above, is affiliated, and
(c) where there is no union of workmen, any representative, duly nominated by the workman who are entitled to make an application before a Conciliation Board under any orders issued by Government, or any member of the executive, or other officer;
(ii) in the case of an employer, by
(a) an officer of a union or Association of employers of which the employer is a member, or
(b) an officer of a federation of unions or associations of employers to which the union or association referred to in clause (a) above, is affiliated, or
(c) by an officer of the concern, if so authorized in writing by the employer:
Provided that no officer of a federation of union shall be entitled to represent the parties unless the federation has been approved by the Labour Commissioner for this purpose.
(2) A party appearing through a representative shall be bound by the acts of that representative.
(3) An application for approval of a federation of unions for representing the parties before a Board, Labour Court and Tribunal shall be made in Form XX to the Labour Commissioner:
Provided that no federation of unions, shall be entitled to apply for approval unless a period of two year has elapsed since its formation.
(4) On receipt of an application under sub-rule (3) above,the Labour Commissioner may, after making such enquiries, as he deems fit, approve the federation or reject the application. In case a federation is approved its name shall be notified in the Official Gazette otherwise the applicant shall be informed of the position in writing by the Labour Commissioner.
(5) The Labour Commissioner or the Registrar of the Trade Union, Uttar Pradesh, may, at any time before or after a federation has been approved, call for such information from the federation as he considers necessary and the federations shall furnish the information so called for.
(6) Every approved federation shall, _
(a) intimate to the Labour Commissioner and to the registrar of Trade Unions, Uttar Pradesh, in Form XXI every change in the address of its head office and in the members of the executive (including its office bearers) within seven days thereof; and
(b) submit to the Labour Commissioner and to the Registrar of Trade Unions, Uttar Pradesh by December 31 every year a list of unions affiliated to it in Form XXII.
(7) The Labour Commissioner may, at any time and for reasons to be recorded in writing, withdraw the approval granted to a federation under sub-rule (4) above.
(8) A party aggrieved by the order of the Labour Commissioner under sub-rule (4) or (7) may within one month from the date of the receipt of such order prefer an appeal before the State Government, whose decision in the matter shall be final and binding. ]”
12. The perusal of the industrial dispute which was referred for adjudication in adjudication cases are also necessary which are as under:-
लीडिंग अभिनिर्णय वाद संख्या 06/2000
औद्योगिक विवाद का विवरण
क्या सेवायोजक द्वारा संलग्न सूची में अंकित अपने 129 श्रमिको को एक वर्ष की अनवरत सेवा करने के पश्चात् नियमित व स्थायी न किया जाना उचित तथा वैधानिक है? यदि नहीं, तो संबंधित श्रमिकगण किस हितलाभ और आनुतोष पाने के अधिकारी है और अन्य किस विवरण के साथ?
अभिनिर्णय वाद संख्या 04/2007
औद्योगिक विवाद का विवरण
” क्या सेवायोजक द्वारा संलग्न सूची में अंकित 111 श्रमिको को तीन वर्षों की अनवरत सेवा पूर्ण करने के उपरान्त नियमित व स्थायी न किया जाना उचित तथा/अथवा वैधानिक है? यदि नहीं, तो संबंधित श्रमिकगण क्या हितलाभ/उपशम पाने के अधिकारी है, किस तिथि से व अन्य किन विवरणों सहित?”
13. The perusal of the written statements filed by the Petitioner-Authority as well as the Respondent-Workmen will also be relevant , which are as under:-
Written Statement filed by the Petitioner- Authority
“Before Industrial Tribunal (V) U.P. at Meerut
Adj. Case no. 6/2000
Between
5 Elected representative i.e. Development Authority Noida.
Matter of Dispute
क्या सेवायोजको द्वारा संलग्न सूची में अंकित 129 श्रमिको की एक वर्ष की अनवरत सेवा करने के पश्चात नियमित न किया जाना उचित तथा वैधानिक है यदि नही तो सम्बन्धित श्रमिकगण किस हित लाभ और अनुतोष पाने के अधिकारी है और अन्य किस विवरण के साथ
Written statement for and on behalf of the opp. Party namely Greater Noida Industrial Development Authority, Noida.
Sir,
It is respectfully , submitted as under:-
1. That Greater Noida Industrial Development Authority Noida ( hereinafter referred to as the Opp. Party) is a statutically body, entrusted with development of Greater Noida. The Main job of the Opp. Party is to develop the colony, roads grandens and severage etc. And for this purpose the opp. Party is employing a number of contract labours through different contractors.
2. That 129 persons as shown to the reference order never had any master servant relationship with the opp. Party and such question of their regularization with the opp. Party does not arise. However, persons shown in the annexure of the reference order either worked through different contractors assingned for the different jobs which cannot be catergorically claimed in the absence of records of the concerned contractors who has not been made party to the dispute before this Hon’ble Tribunal.
3. That, 5 alleged elected representatives are not competent to raise and represent the dispute under reference as they have never been elected and authorized by concerned 129 persons to raise and represent teir disputed before this Hon’ble Tribunal.
4. That no proof of authorization has been filed on the records of the case in respect of their competency to raise and represent the dispute under reference.
5. That majority of the workmen of the concern neither interested in the dispute under reference nor they have ever allowed 5 repereesentative to represent the dispute before this Hon’ble Court.
6. That the persons concerned through Greated Noida Mali and Safai Kamgar Union persons have filed writ petition regarding the same dispute i.e. regularization heir services with the opp. Party before Hon’ble Court at Allahabad in writ petition no. 40540/99 in which orders were passed by the Hon’ble Court directing the union to apply with 3 following options through order of the Hon’ble High Court at Allahabad dated 15.5.01.
1. to raise labour dispute
2. to apply of the service Tribunal
3. to appraoach state government for abolition of contract labour under the provisions of Regularizatio and Abolition Act, 1970, and rules made thereunder.
7. That in pursuance of the direction of the Hon’ble High Court the union has filed a C.B. case with regard to the matter of dispute which is under reference before this Hon’ble Court Tribunal before Shri Ghanshyam Prakash Asstt. Labour Commissioner Noida which form the subject matter of C.B. case no. 01/02 dated 25.01.2002.
8. That it is pertinent to point out here that orders of the Hon’ble High Court Allahabad has been obtained by the union after suppressing the facts regarding pendency of the cse before this Hon’ble Tribunal.
9. That no cause of action ever existed between the parties as mentioned in the above reference order in the absence of master servant relationship of the applicants with the opp. Party.
10. That the state government have not referred the true nature of dispute before this Tribunal as existed between the parties which is with regard to taking up of these persons in employment of the opp. Party after abolition of contract labour and not for regularization of their services before this Hon’ble Court Tribunal.
11. That for the reasons stated from para 3 to 9 above the present order of reference is bad in law.
12. That for the reasons from para 3 to 10 above, this learned Tribunal has no jurisdiction to proceed with the present disputes under the present proceeding.
13. That without prejudice to the aforesaid legal objections, the opp. Party hereby sunits forllowing facts on the merit of the above noted case.
14. That 129 persons as shown in the reference order never had any master servant relationship with the opp. Party and as such question of their regularization with the opp. Party does not arise. However persons shown in the annexure of the reference order neither worked through different contractors assigned for the different jobs which cannot be categorically claimed in the absence of records of the concerned contractors who has not been main party to the dispute before this Hon’ble Tribunal.
15 That the opp. Party does not have any work of permanent nature nor perosns concerned ever performed any permanent nature of work with the opp. Party either directly or through any contractor.
16. That there is no vacant post of permanent nature on which regularization of the perosons concerned can be made by the opp. Party.
17. That in the absence of any master servant relationship with the opp. Party question of regularization of the persons concerned can be considered as other senior candidates are available with the opp. Party in case any vacancy arises with the opp. Party.
18. The claim of the applicants has no force of law and is liable to be rejected with costs.
Prayer
It is, therefore, prayed that matter of dispute and legal objections taken by the opp. Party may kindly be decided in favour of opp. Party, rejecting the claim of the applicants.
For and on behalf of the opp. Party
sd/-
Rajesh Kumar
(Manager Law)”
Written Statement filed by the Respondent-Workmen
“समक्ष- पीठासीन अधिकारी, औद्योगिक न्यायाधिकरण (5) उ०प्र० मेरठ अभिनिर्णय विवाद संख्या 06 सन 2000
मै० ग्रेटर नोएडा औद्योगिक विकास प्राधिकरण
कामर्शियल काम्प्लेक्स, सेक्टर-20
नोएडा गौतमबुद्धनगर
— सेवायोजक
बनाम
पॉच चुने गये प्रतिनिधिगण — कर्मकार पक्ष
विवरण मॉगपत्र/याचिका ओर से श्रमिक/ कर्मकार पक्षः
1. यह कि सेवायोजक प्रतिष्ठा उ०प्र० सरकार का एक उपक्रम है जो यू०पी० अर्बन प्लानिंग एण्ड डेवेलपमेन्ट एक्ट 1973 की धारा 4 के अन्तर्गत गठित किया गया है ताकि अपने क्षेत्र में आने वाले क्षेत्र को औद्योगिक विकास की दृष्टि से विकसित कर उद्योगो को सुविधायें उपलब्ध करा सके।
2. यह कि सेवायोजको के द्वारा उक्त कार्य एक सुव्यवस्थित प्रक्रिया के तहत योजनाबद्ध तरिके से कर्मकारों के सहयोग से किया जाता है। जिसमें क्षेत्र का सौन्दर्यकरण एवं विकास भी सम्मिलित है। उक्त के अतिरिक्त सेवायोजको के द्वारा वाणिज्यिक एवं आवासीय भवनों, प्लाटो, उद्यान, पार्कों, सड़को आदि को निर्मित व विकसिक करने का कार्य भी सम्पादित किया जाता है और उक्त कार्य के लिये सेवायोजको के द्वारा नागरिको से मूल्य व शुल्क लिया जाता है और मानव आवश्यकता की पूर्ति की जाती है इस प्रकार से सेवायोजको के द्वारा किए जाने वाले क्रिया कलाप उद्योग की परिधि में आवर्त होता है।
3. यह कि सेवायोजक प्रतिष्ठान मे नियोजित कर्मकार विभिन्न पद व वर्ग में नियोजित है जिनकी सेवाए उ०प्र० शासन द्वारा औद्योगिक नियोजन (स्थायी आदेश) अधिनियम 1946 की व्यवस्थाओ के तहत निर्मित व रचित माडल स्टेण्डंग आर्डर्स से शासित होने के साथ साथ अन्य श्रम कानूनों से शासित होती है।
4. यह कि इस लिखित विवरण मांगपत्र/ याचिका के साथ संलग्न “एक” मे वर्णित कर्मकार सेवायोजक प्रतिष्ठान मे अपने अपने नाम के समक्ष अंकित तिथि से माली के स्थायी व नियमित पद पर अनवरत रूप से कार्य सेवायोजको के नियन्त्रण, सुपरविजन व आदेशो के तहत करते आ रहे है। सेवायोजको के द्वारा ही सम्बन्धित कर्मकारों को खाद बीज पौध, औजार व अन्य निर्देश दिन प्रतिदिन दिये जाते है तथा कार्य की मजदूरी भुगतान की जाती है। इस प्रकार से पक्षों मे सेवक व सेवायोजक का सीध सम्बन्ध है।
5. यह कि सम्बन्धित कर्मकारों के द्वारा किये जाने वाले कार्य स्थायी व नियमित प्रकृति के है, इसलिये सेवायोजको के द्वारा सम्बन्धित कर्मकारों को कार्य की प्रकृति व उत्तरदायित्व के अनुसार स्थायी व नियमित पद का वेतन व पदनाम तथा अन्य सुविधाए दी जानी चाहिए थी क्योंकि उसके लिये सम्बन्धित कर्मकार विद्यमान अधिकार रखते है जबकि सेवायोजक माडल एम्प्लायर में आवर्त होते है किन्तु सेवायोजको ने माडल एम्प्लायर की भूमिका नही निभाई बल्कि इसके विपरीत उनके द्वारा अनुचित व अविधिक रूप से कार्यरत कर्मकारों के साथ आदिकालीन अराजकतावादी आचरण करते हुए उन्हे कष्टकारी व्यवहार व आचरण करते हुए पद व उत्तरदायित्व के अनुरूप वेतन व सुविधाए न देकर बहुत कम वेतन देकर उनका शोषण किया जाता रहा है और किया गया जबकि सेवायोजको के द्वारा सम्बन्धित कर्मकारो मे से किसी को भी कोई परिचयपत्र वेतन पर्ची, नियुक्ति पत्र आदि प्रलेख सीधे कार्य पर रखने, कार्य लेने व मॉगने के बावजूद नही दिये गये। जबकि उन्हे सेवायोजको के द्वारा जीविका की सुरक्षा भी प्रदान नही की गई है। इस प्रकार से सेवायोजको के द्वारा किया गया कृत्य अनुचित श्रम व्यवहार मे आवर्त होता है। यहॉ यह भी सुसंगत है कि उ०प्र० शासन के नगर विकास अनुभाग-4 के दिनांक 20.6.1997 के दैनिक वेतन पर कार्यरत कर्मकारों को नियमित व प्रोन्नत करने का अधिकार दिया गया है। श्रम न्यायालय व औद्योगिक न्यायाधिकरण को कार्य की उपलब्धता के आधार पर पद सृजित करने की अधिकार है।
6. यह कि सम्बन्धित कर्मकारो के द्वारा सेवायोजको से अपने को कार्य व उत्तरदायित्व के अनुरूप वेतन व अन्य सुविधाए अन्य स्थायी कर्मकार के अनुसार दिए जाने का अनुरोध किया किन्तु सेवायोजको के द्वारा अपने लाभ के वशीभूत होकर सम्बन्धित कर्मकारो के द्वारा अपनी सदभाविक मॉग को पूरा कराने के लिए पॉच प्रतिनिधि चुने गए और यह विवाद प्रस्तुत किया गया है।
7. यह कि सेवायोजक प्रतिष्ठान न्यूनतम वेतन अधिनिय 1948 की व्यवस्थाओ के अनुसार “अनुचित व्यवसाय” मे आता है।
8. यह कि संविदा श्रमिक (उन्मूलन एवं नियमन) अधिनियम 1970 मे भी यह व्यवस्था की गई है कि ऐसे सभी उपक्रम जो नियमित व स्थायी प्रकृति के है तथा अधिनियम की धारा 10(2) के खण्डो मे आवर्त होते है मे ठेके पर कर्मकार रखकर कार्य कराना निषेध होगा और है। इस आधार पर भी सेवायोजको का कृत्य अविधिक होने के कारण मान्य नही है और विधिक रूप से मनमाना व अविधिक है।
9. यह कि सेवायोजको के द्वारा सम्बन्धित कर्मकारो को स्थायी व नियमित कर्मकारो की भांति वेतन व अन्य सुविधाए न देना भारतीय संविधान के अनुच्छद 21, 23 के विपरीत है तथा 38, 39, 41, 42, एवं 47 मे की गई व्यवस्थाओ जो आज्ञात्मक व निर्देशात्मक प्रभाव रखते है, के अनुकूल नही है।
10. यह कि सम्बन्धित कर्मकारो के द्वारा समय समय पर अपनी मॉग के बावत सेवायोजको तथा अन्य उच्चाधिकारियों से प्रार्थना की गई लेकिन आश्वासन के अतिरिक्त उन्हे कुछ नही दिया गया, इसलिये यह फोरम अपनाया गया जो न्याय संगत व उचित है।
11. यह कि सेवायोजको के द्वारा सम्बन्धित कार्मकारों की सेवा के बावजूद कम वेतन व कम सुविधाए दी जा रही है जिससे वह अपना जीवन भारतीय संविधान के अनुच्छेद 21 की व्यवस्था व भावना के अनुसार व्यतीत नही कर के गुलामों जैसा जीवन जी रहे है।
अतः माननीय न्यायाधिकरण से अनुरोध है कि समुचित सरकार द्वारा संदर्भित संदर्भादिश को सम्बन्धित कर्मकारों के पक्ष में निर्णित कर उन्हें उनके कार्य व उत्तरदायित्व के अनुसार स्थायी व नियमित किया जाकर तदानुसार वेतन व अन्य हित लाभ उन्हें उस तिथि से दिये जाए जिस तिथि से उनके द्वारा इस बावत मॉग की गई। सम्बन्धित कर्मकारो के उक्त कार्यवाही मे हुए व्यय को भी सेवायोजको से दिलाया जाए तथा अन्य प्रतिकर जिसे माननीय न्यायाधिकरण उचित समझे सम्बन्धित कर्मकारो को सेवायोजको के विरूद्ध दिलाया जाए।
हम पॉच श्रमिको के चुने गए प्रतिनिधिगण
प्रमाणित करते है कि विवरण मॉगपत्र की
धारा 1, 2, 4, 5, 6, 10 का कथन हमारे ज्ञान मे
तथा धारा 3, 7, 8 व 9, 11 का कथन विधि
परामर्शधीन हमारे विश्वास मे सत्य है।
प्रमाणित स्थल मेरठ दिनांक 25.02.02
श्रमिको पॉच चुने गये प्रतिनिधि
हेम सिंह
महेश कुमार
रामकिशन
फिरे राम
इन्द्रपाल
द्वारा-
नरेश कुमार वर्मा
(सत्य प्रतिलिपि)”
14. The perusal of the averments made in the written statements filed by the petitioner-authority as well as respondent-workmen demonstrate that 129 workmen in Adjudication Case No.6 of 2000 and 111 workmen in Adjudication Case No.4 of 2007 have worked in the petitioner-authority. The respondent no.6 / Industrial Tribunal has considered the evidence adduced by the parties and has recorded finding of fact that the workmen in Adjudication Case Nos.6 of 2000 and 4 of 2007 have worked as gardeners and Safar Karamchari for the last so many years in the petitioner-authority against the permanent nature of work, as such, the workmen are fit to be regularized and denial of the same will amount to unfair labour practice. The Industrial Tribunal has also recorded finding of fact that the petitioner-authority has not pleaded that the respondent-workmen were appointed through particular contractor. The finding of fact has also been recorded that petitioner-authority has failed to produce the evidence that the nature of work which were being discharged by the workmen, were not perennial in nature. The finding of fact has also been recorded that petitioner-authority has not produced the original record before the Industrial Tribunal in order to demonstrate that respondent-workmen have not worked in the petitioner-authority, accordingly, an adverse inference has been drawn against the petitioner-authority.
15. Considering the entire aspect of the case, the Industrial Tribunal has passed the order for regularization of the services of the workmen in the petitioner-authority from the date of making reference along with other service benefit. The Industrial Tribunal while deciding the 16 misc. cases, under Section 16-F of the Act of 1947 has recorded finding of fact that petitioner-authority has violated the provisions of Section 6-E(2)(b) of the Act of 1947 and terminated the services of the workmen w.e.f. 6.2.2003 which is illegal, as such, workmen shall be deemed to be in employment of petitioner-authority which is proper exercise of jurisdiction by Tribunal.
16. So far as the jurisdiction of the Industrial Tribunal with respect to regularization of the services of the workmen is concerned, the Hon’ble Apex Court in the case of ONGC Limited vs. Petroleum Coal Labour Union and Others (supra) has held that regularization can be ordered by the Industrial Tribunal, however, the aforementioned case of ONGC Ltd. (supra) has been ordered to be revisited by the Hon’ble Apex Court in Oil and Natural Gas Corporation vs. Krishna Gopal and Others (supra). Paragraph Nos. 23, 24 & 25 of the Oil and Natural Gas Corporation (supra) will be relevant for perusal which is as under:-
“23. The following propositions would emerge upon analyzing the above decisions:
i) Wide as they are, the powers of the Labour Court and the Industrial Court cannot extend to a direction to order regularisation, where such a direction would in the context of public employment offend the provisions contained in Article 14 of the Constitution;
(ii) The statutory power of the Labour Court or Industrial Court to grant relief to workmen including the status of permanency continues to exist in circumstances where the employer has indulged in an unfair labour practice by not filling up permanent posts even though such posts are available and by continuing to employ workmen as temporary or daily wage employees despite their performing the same work as regular workmen on lower wages;
(iii) The power to create permanent or sanctioned posts lies outside the judicial domain and where no posts are available, a direction to grant regularisation would be impermissible merely on the basis of the number of years of service;
(iv) Where an employer has regularised similarly situated workmen either in a scheme or otherwise, it would be open to workmen who have been deprived of the same benefit at par with the workmen who have been regularised to make a complaint before the Labour or Industrial Court, since the deprivation of the benefit would amount to a violation of Article 14; and
(v) In order to constitute an unfair labour practice Under Section 2(ra) read with Item 10 of the Vth Schedule of the ID Act, the employer should be engaging workmen as badlis, temporaries or casuals, and continuing them for years, with the object of depriving them of the benefits payable to permanent workmen.
24. The decision in PCLU needs to be revisited in order to set the position in law which it adopts in conformity with the principles emerging from the earlier line of precedent. More specifically, the areas on which PCLU needs reconsideration are: (i) The interpretation placed on the provisions of Clause 2(ii) of the Certified Standing Orders;
(ii) The meaning and content of an unfair labour practice Under Section 2(ra) read with Item 10 of the Vth Schedule of the ID Act; and
(iii) The limitations, if any, on the power of the Labour and Industrial Courts to order regularisation in the absence of sanctioned posts. The decision in PCLU would, in our view, require reconsideration in view of the above decisions of this Court and for the reasons which we have noted above.
25. We accordingly request the Registry to place the proceedings before the Hon’ble Chief Justice of India so as to enable His Lordship to consider placing this batch of appeals before an appropriate Bench.”
17. On the point of regularization of services of the workmen, the Hon’ble Apex Court in the case of Steel Authority of India Limited (supra) (Five-Judges-Judgment), has held in paragraph nos.112 & 113 as under:-
“112. The decision of the Constitution Bench of this Court in Basti Sugar Mills’ case (supra) was given in the context of reference of an industrial dispute under the Uttar Pradesh Industrial Disputes Act, 1947. The appellant Sugar Mills entrusted the work of removal of press mud to a contractor who engaged the respondents therein (contract labour) in connection with that work. The services of the respondents were terminated by the contractor and they claimed that they should be reinstated in the service of the appellant. The Constitution Bench held.
The words of the definition of workmen in Section 2(z) to mean “any person (including an apprentice) employed in any industry to do one skilled or unskilled, manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied” are by themselves sufficiently wide to bring in persons doing work in an industry whether the employment was by the management or by the contractor or the management. Unless however, the definition of the word ’employer” included the management of the industry even when the employment was by the contractor the workmen employed by the contractor could not get the benefit of the Act since a dispute between them and the management would not be an industrial dispute between “employer” and workmen. It was with a view to remove this difficulty in the way of workmen employed by contractors that the definition of employer has been extended by Sub-clause (iv) of Section 2(i). The position thus is: (a) that the respondents are workmen within the meaning of Section 2(z), being persons employed in the industry to do manual work for reward, and (b) they were employed by a contractor with whom the appellant-company had contracted in the course of conducting the industry for the execution by the said contractor of the work of removal of presumed which is ordinarily a part of the industry. It follows therefore, from Section 2(z) read with Sub-clause (iv) of Section 2(i) of the Act they are workmen of the appellant-company is their employer.
113. It is evident that the decision in that case also turned on the wide language of statutory definitions of the terms “workmen” and “employer.” So it does not advance the case pleaded by the learned Counsel.”
18. The Hon’ble Apex Court in the case of Chief Conservator of Forests and Another (supra) (Three-Judges-Judgment), has held in paragraph nos.18 to 22 as under:-
“18. This takes us to the second main question as to whether on the facts of the present case could it be held that the appellants were guilty of adopting unfair labour practice. As already pointed out, the respondents alleged the aforesaid art by relying on what has been stated under item 6 of Schedule IV of the State Act which reads as below:
“To employ employee as “badlis”, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees.”
19. The Industrial Court has found the appellants as having taken recourse to unfair labour practice in the present cases because the respondents-workmen who had approached the Court had admittedly been in the employment of the State for 5 to 6 years and in each year had worked for period ranging from 100 to 330 days. Ms. Jaising draws our attention in this context to the statement filed by the appellants themselves before the Industrial Court, a copy of which is at pages 75 to 76 or C.A. No. 4375/90. A perusal of the same shows that some of the respondents had worked for a few days only in 1977 and 1978, though subsequently they themselves had worked for longer period, which in case of Gitaji Baban Kadam, whose name is at serial No. 4 went upto 322 in 1982, though in 1978 he had worked for 4-1/2 days. (Similar is the position qua some other respondents).
20. According to Ms. Jaising the lesser number of days worked by say Gitaji in 1978, could have been because of his having sought employment in that year towards the fag-end or it may also be because of the fact that to start with large number of persons were engaged, which by 1981-82 got settled around 60, as would appear from the statement at page 66 of the aforesaid appeal. It is brought to our notice that only 25 such person had approached the Industrial Court of Pune (this number is 15 in the other batch) and as regards these 25 there should not be any doubt that they worked for long despite which they were continued as casuals, which fact is enough to draw the inference that the same was with the object of depriving them of the status and privileges of permanent employees. Learned Counsel urges that on these facts it was the burden of the employer to satisfy the Industrial Court that the object was not as alleged by the workmen.
21. Shri Dholakia would not agree to this submission as, according to him, the item in question having not stopped merely by stating about the employment of persons as casuals for years being sufficient to describe the same as unfair labour practice, which is apparent from what has been in the second part of the item, it was the burden of the workmen to establish that the object of continuing them for years was to deprive them of the status and privileges of permanent employees. Ms. Jaising answers this by contending that it would be difficult for any workmen to establish what object an employer in such a matter has, as that would be in the realm of his subjective satisfaction known only to him. She submits that we may not fasten a workman with such a burden which he cannot discharge.
22. We have given our due thought to the aforesaid rival contentions and, according to us, the object of the State Act, inter alia, being prevention of certain unfair labour practices, the same would be thwarted or get frustrated if such a burden is placed on a workman which he cannot reasonably discharge. In our opinion, it would be permissible on facts of a particular case to draw the inference mentioned in the second part of the item, if badlis, casuals or temporaries are continued as such for years. We further state that the present was such a case inasmuch as from the materials on record we are satisfied that the 25 workmen who went to Industrial Court of Pune (and 15 to Industrial Court, Ahmednagar) had been kept as casuals for long years with the primary object of depriving them the status of permanent employees inasmuch as giving of this status would have required the employer to pay the workmen at a rate higher than the one fixed under the Minimum Wages Act. We can think of no other possible object as, it may be remembered that the Pachgaon Parwati Scheme was intended to cater to the recreational and educational aspirations also of the populace, which are not ephemeral objects, but par excellence permanent. We would say the same about environment-pollution-care work of Ahmedanager, whose need is on increase because of increase in pollution. Permanency is thus writ large on the face of both the types of work. If, even in such projects, persons are kept in jobs on casual for years the object manifests itself; no scrutiny is required. We, therefore, answer the second question also against the appellants.”
19. The Hon’ble Apex Court in the case of Pradip Chandra Parija and Others (supra) has held that where there are conflicting view of Hon’ble Apex Court on any issue, then the proper course for the High Court is to follow the ratio of law laid down by the Larger Bench of Apex Court. Paragraph Nos. 6 & 9 of the judgment rendered in Pradip Chandra Parija and Others (supra) will be relevant for perusal, which is as under:-
“6. In the present case the Bench of two learned judges has, in terms, doubted the correctness of a decision of a Bench of three learned judges. They have, therefore, referred the matter directly to a Bench of five judges.
In our view, judicial discipline and propriety demands that a Bench of two learned judges should follow a decision of a Bench of three learned judges. But if a Bench of two learned judges concludes that an earlier judgment of three learned judges is so very incorrect that in no circumstances can it be followed, the proper course for it to adopt is to refer the matter before it to a Bench of three learned judges setting out, as has been done here, the reasons why it could not agree with the earlier judgment.
If, then, the Bench of three learned judges also comes to the conclusion that the earlier judgment of a Bench of three learned judges is incorrect, reference to a Bench of five learned judges is justified.
9. In the result, we are of the view that these matters could only have been referred to a Bench of three learned judges. We, accordingly, order that they shall be placed before a Bench of three learned judges. Having regard to the lapse of time, they shall be so placed in January, 2002.”
20. The Hon’ble Apex Court in another case in State of U.P. vs. Ram Chandra Trivedi (supra) has again reiterated the same view in paragraph no.22 of the judgment which is as under:-
“22. Thus on a conspectus of the decisions of this Court referred to above, it is obvious that there is no real conflict in their ratio decidendi and it is no longer open to anyone to urge with any show of force that the constitutional position emerging from the decisions of this Court in regard to cases of the present nature is not clear. It is also to be borne in mind that even in cases where a High Court finds any conflict between the views expressed by larger and smaller benches of this Court, it cannot disregard or skirt the views expressed by the larger benches. The proper course for a High Court in such a case, as observed by this Court in Union of India & Anr. V.K.S. Subramanian, to which one of us was a party, is to try to find out and follow the opinion expressed by larger benches of this Court in preference to those expressed by smaller benches of the Court which practice, hardened as it has into a rule of law is followed by this Court itself.”
21. The Apex Court in Mattulal (supra) has held that in case there are contradictory decisions of Hon’ble Apex Court, then the former decision of the larger bench must be followed than the later. Relevant paragraph of the judgment rendered in Mattulal (supra) is as under:-
“Now there can be no doubt that these observations made in Smt. Kamla Soni’s case(1) are plainly in contradiction of what was said by this Court earlier in Sarvate T. B.’s case.(2) It is obvious that the decision in Sarvate T.B.’s case(2) was not brought to the notice of this Court while deciding Smt. Kamla Soni’s case(1), or else this Court would not have landed itself in such patent contradiction. But whatever be the reason, it cannot be gain said that it is not possible to reconcile the observations in these two decisions. That being so, we must prefer to follow the decision in Sarvate T.B.’s case(2) as against the decision in Smt. Kamla Soni’s case(1) as the former is a decision of a larger Bench than the latter.”
22. Considering the aforementioned aspect of the case as well as the finding of fact recorded by the labour court under the impugned award/order, there is no scope of interference by this Court under Article 226 of the Constitution of India as well as in view of the Five-Judges-Judgment of the Hon’ble Apex Court in Steel Authority of India and Others (supra), there is no illegality in the award of the labour court for regularization of the services of the workmen.
23. Considering the entire facts and circumstances of the case, no interference is required in the matter.
24. The writ petitions filed by the Petitioner-Greater Noida Industrial Development Authority against the award passed by Industrial Tribunal in Adjudication Case No.6/2000, 4/2007 as well as in 16 misc. cases under Section 6-F of the Act of 1947 are accordingly dismissed.
25. In view of the dismissal of all eighteen petitions filed by petitioner-Greater Noida Industrial Development Authority, there is no illegality in the issuance of recovery certificate on the basis of the proceeding initiated by the workmen under Section 6-H(1) of the Act of 1947, accordingly, two writ petitions filed by the petitioners-workmen/Safai Kamgar Union are hereby finally disposed of with the direction to respondent no.2/Collector, Gautam Buddha Nagar to proceed with the matter to recover the amount in question under recovery certificate dated 4.1.2024 for its payment to the petitioner-workmen, as expeditiously as possible, preferably within a period of 3 months from today.
26. No order as to costs.
Order Date :- 16.10.2024
C.Prakash
(Chandra Kumar Rai, J.)