Arbind Kumar Mishra Vs. State of U.P. and anr.

Arbind Kumar Mishra vs State of U.P. and anr.

Disposition Writ petition allowed Court Allahabad Decided Aug 03, 2004

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Citation: sooperkanoon.com/487496
Court: Allahabad High Court
Judge: Devi Prasad Singh, J.
Decided On: Aug 03, 2004
Case Number: Civil Misc. Writ Petition No. 3124 of 1992
Subject: Labour and Industrial
Disposition: Writ petition allowed

Case Summary

AI-generated summary - not the official court judgment text.

- MOTOR VEHICLES ACT, 1988 [C.A. No. 59/1988]Section 168; [S.B. Sinha & H.S. Bedi, JJ ] Determination of compensation Meaning of income of victim Held, The term income has different connotations for different purposes. A court of law, having regard to the change in societal conditions must consider the question n...

Key legal issue: Labour and Industrial
Outcome / disposition: Writ petition allowed
Acts & sections: Uttar Pradesh Industrial Disputes Act, 1947 - Sections 6N; ;Constitution of India - Article 14

Parties & Advocates

Appellant / Petitioner

Arbind Kumar Mishra

Advocate P.S. Pandey and ;S.K. Yadav, Advs.

Respondent

State of U.P. and anr.

Advocate N.B. Tewari, Adv. and ;S.C.

Legal References

Acts: Uttar Pradesh Industrial Disputes Act, 1947 - Sections 6N; ;Constitution of India - Article 14
Reported In: (2004)3UPLBEC2997

Excerpt

.....family. loss caused to the family on a death of a near and dear one can hardly be compensated on monetary terms. section 168 uses the word just compensation which, in our opinion, should be assigned a broad meaning. it cannot be lost sight of the fact that the private sector companies in place of introducing a pension scheme takes recourse to payment of contributory provident fund, gratuity and other perks to attract the people who are efficient and hard working. different offers made to an officer by the employer, same may be either for the benefit of the employee himself or for the benefit of the entire family if some facilities are being provided whereby the entire family stands to benefit, the same, must be held to be relevant for the purpose of computation of total income on the basis whereof the amount of compensation payable for the death of the kith and kin of the applicants is required to be determined. the amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. from the said amount of income, the statutory amount of tax payable thereupon must be deducted. - 9 to 11 of the writ petition which reveals non-payment of salary of specified period as well as termination of petitioner's services by oral order, in paragraph no. 9 to 11 of the writ petition have not been denied in the counter-affidavit, it is very well established that the petitioner's services were terminated by oral order w. the opposite parties shall also pay the petitioner, the salary which was payable to him for the period commencing from july, 1991 to december, 1991. the opposite parties shall take necessary steps for payment of dues and regularization of services in accordance with the government order dated 24.1.1989 as well as under..........have not been denied in the counter-affidavit, it is very well established that the petitioner's services were terminated by oral order w.e.f, 2.1.1992 and he has been also not paid salary from july, 1991 to december, 1991.7. under the admitted facts and circumstances, the submission of the petitioner in the writ petition stands proved. an order of termination of service passed orally is a highly arbitrary act on the part of the authorities. it is settled law that the right of livelihood is a fundamental right guaranteed under article 21 of the constitution of india. it is also settled law that in case, the authorities passes an order affecting a person's civil right or right to livelihood, they have to act fairly and in a reasonable manner. the termination of the services of the employee by oral order is a feudalistic approach does not got sanction from our constitution. even the services of temporary government servant may be dispensed with in accordance with the provisions contained in u.p. temporary government servant (termination of service) rules, 1975. similarly, the termination of a workman should be done in accordance with the provisions contained in section 6-n of the up. industrial disputes act, 1947. since the petitioner, has worked for more than 3 years' continuously and the factum of working has not been denied, the petitioner's services is being protected by statutory provisions contained in section 6-n of the u.p. industrial disputes act. since long it is the settled law, that in case, the authorities want to do certain thing then they have to act in accordance with the manner provided under the act or statute. a reference may be given to a leading case reported in air 1967 sc 395 (para 34), barium chemicals case.8. oral order or instruction passed by the authority terminating the services of an employee is an arbitrary unjust and improper act hence shall be hit by article 14 of the constitution of india. the procedure to terminate the services.....

Full Judgment

Devi Prasad Singh, J.

1. List revised. None present for the petitioner.

2. I have gone through the records. According to the petitioner, he was appointed on the basis of daily wage on 1.6.1987 and discharged his duties on the post of Clerk in B.R.D. Medical College, Gorakhpur.

3. It has been pleaded in the writ petition that the petitioner has been continuing on the said post as daily wage employee in pursuance of the appointment order issued from time to time. The petitioner's appointment on the post of daily wage Clerk was duly sanctioned by the Competent Authority as evident from documents filed as Annexures-2, 3 and 4 to the writ petition. On 1.7.1991, the petitioner had submitted a representation to the respondents for regularization of his services in pursuance of the Government Order dated 24.1.1989, as he had completed 3 years of continuous service. It has been submitted by the petitioner in the writ petition that after receipt of the petitioner's representation the opposite parties have stopped the payment of salary from July, 1991 and not paid the same upto December, 1991 in spite of discharging of duties. Thereafter w.e.f, 2.1.1992 the petitioner's services were terminated by oral instruction. In Paragraph No. 11 of the writ petition it has been submitted that no written order was passed by the Competent Authority for termination of petitioner's services.

4. Learned Standing Counsel submits that a counter-affidavit has been filed but the same is not on the record. Hence a true copy of the counter-affidavit is taken on record supplied by learned Standing Counsel.

5. In response to averments made in Paragraph Nos. 9 to 11 of the writ petition which reveals non-payment of salary of specified period as well as termination of petitioner's services by oral order, in Paragraph No. 6 of the counter-affidavit no specific reply has been given. Only reply given by the respondent is that the averments contained in Paragraph No. 11 of the writ petition need no comment being matter of record.

6. In view of the above, since the averments contained in Paragraph Nos. 9 to 11 of the writ petition have not been denied in the counter-affidavit, it is very well established that the petitioner's services were terminated by oral order w.e.f, 2.1.1992 and he has been also not paid salary from July, 1991 to December, 1991.

7. Under the admitted facts and circumstances, the submission of the petitioner in the writ petition stands proved. An order of termination of service passed orally is a highly arbitrary act on the part of the authorities. It is settled law that the right of livelihood is a fundamental right guaranteed under Article 21 of the Constitution of India. It is also settled law that in case, the authorities passes an order affecting a person's civil right or right to livelihood, they have to act fairly and in a reasonable manner. The termination of the services of the employee by oral order is a feudalistic approach does not got sanction from our Constitution. Even the services of temporary Government Servant may be dispensed with in accordance with the provisions contained in U.P. Temporary Government Servant (Termination of Service) Rules, 1975. Similarly, the termination of a workman should be done in accordance with the provisions contained in Section 6-N of the UP. Industrial Disputes Act, 1947. Since the petitioner, has worked for more than 3 years' continuously and the factum of working has not been denied, the petitioner's services is being protected by statutory provisions contained in Section 6-N of the U.P. Industrial Disputes Act. Since long it is the settled law, that in case, the authorities want to do certain thing then they have to act in accordance with the manner provided under the Act or Statute. A reference may be given to a leading case reported in AIR 1967 SC 395 (Para 34), Barium Chemicals case.

8. Oral order or instruction passed by the authority terminating the services of an employee is an arbitrary unjust and improper act hence shall be hit by Article 14 of the Constitution of India. The procedure to terminate the services by oral order or instruction cannot be approved under our constitutional frame and such practice is highly objectionable and deprecated in strongest word. The authorities must adopt a recourse while taking such action in accordance with law or statutory provisions. Even if there is no statutory provisions, it shall always be necessary for the authorities to pass a written order instead of acting in an autocratic way. .

9. The petitioner, has been continued in service in pursuance of the interim order passed by this Court. Under the facts and circumstances discussed herein above, the writ petition deserves to be allowed.

10. A writ of mandamus is issued commanding the opposite parties to restore the petitioner in service w.e.f, 1.1.1992 with all consequential benefits. The opposite parties shall also pay the petitioner, the salary which was payable to him for the period commencing from July, 1991 to December, 1991. The opposite parties shall take necessary steps for payment of dues and regularization of services in accordance with the Government Order dated 24.1.1989 as well as under other existing provisions provided by law expeditiously and preferably within 3 months from the date of receipt of the certified copy of this judgment and shall pass a speaking and reasoned order.

11. The writ petition is allowed, accordingly. No order as to costs.

Same Court & Year Allahabad · 2004 Same Parties Arbind Kumar Mishra vs State of U.P. and anr. Same Subject Labour and Industrial Same Judge Devi Prasad Singh, J. Acts & Sections Uttar Pradesh Industrial Disputes Act, 1947 - Sections 6N; ;C...

Labour and Industrial