Raj Kumar Saxena vs State of U.P. and Others

Heard learned Counsel for the parties and perused the record.

The present writ petition under Article 226 of the Constitution of India has been preferred against the impugned judgment and order dated 07-05-1991, passed by U.P. Public Services Tribunal, Lucknow, in Claim Petition No. 33/F/III of 1991. The Tribunal has dismissed the claim petition on the grounds that U.P. Krishi Utpadan Mandi Parishad is not an industry and the claim petition filed by the Petitioner was time barred.

Learned Counsel for the Petitioner has invited attention of this Court towards two judgments of Hon''ble Supreme Court, copies of which have been filed as Annexure Nos. 3 & 12 to the writ petition.

It has been submitted by learned Counsel for the Petitioner that the Petitioner had filed the Writ Petition No. 537/1988 under Article 32 of the Constitution of India before the Hon''ble Supreme Court and that writ petition was dismissed by Hon''ble Supreme Court vide judgment and order dated 21-01-1991. The writ petition No. 536/1988 connected with W.P. No. 1371/87,filed by other employees was also dismissed by their Lordships of Hon''ble Supreme Court vide judgment and order dated 16th August, 1989 by giving liberty to the Petitioners to approach the U.P. Public Services Tribunal within a period of one month with the observation that the State shall not raise objection as to delay and jurisdiction. The Tribunal shall dispose of the matter expeditiously on merits and in accordance with law. The order dated 16th August, 1989 passed by Hon''ble Supreme Court in Writ Petition No. 536/1988 connected with W.P. No. 1371/1987, is reproduced as under:

The Petitioners are not in service, the fact of which is not in dispute. In view of this circumstance, we are of the opinion that it is proper for the Petitioners to approach the U.P. Service Tribunal for relief and if they approach the Tribunal within one month from today, the State shall not raise objection as to delay and jurisdiction. The Tribunal shall dispose of the matter expeditiously on the merits and in accordance with the law.

Both the writ petitions are accordingly dismissed.

Later on Petitioner''s case was taken up by their Lordships of Hon''ble Supreme Court and another order dated 21-01-1991, was passed in Writ Petition No. 537 of 1988, giving parity of earlier judgment by remitting the matter to U.P. Public Services Tribunal. The judgment and order dated 21-01-1991 passed by Hon''ble Supreme Court in Writ Petition No. 537 of 1988, is reproduced as under:

The basis of the present writ petition was two earlier writ petitions pending in this Court being Writ Petition No. 536/1988 and 1371/1987. This Court on August 16,1989 after hearing those two cases had taken the view that the writ petition in this Court under Article 32 of the Constitution of India should not be entertained and Petitioners of those cases should have liberty to move the Uttar Pradesh Service Tribunal. This writ petition has, therefore, to meet the same fate. We direct that this application shall be taken as dismissed without examination on merits with the liberty to the Petitioner to move the U.P. Service Tribunal for appropriate relief. The U.P. Service Tribunal would dispose of the matter within three months from its institution.

Accordingly, submission of learned Counsel for the Petitioner is that while dismissing the claim petition, the Tribunal has not considered the letter and spirit of the judgment of the Hon''ble Supreme Court.

The argument advanced by learned Counsel for the Petitioner seems to be correct. The Tribunal should have taken note of the judgment of Hon''ble Supreme Court and thereafter, the claim petition should have been decided. Whether U.P. Krishi Utpadan Mandi Parishad is an industry or not or whether on account of discharge of duty for more than 240 days, the Petitioner shall deem to be a retrenched employee in view of Section 6N of Industrial Disputes Act, are the questions in issue. Since, the Tribunal has not recorded any finding in view of judgment of Hon''ble Supreme Court, it shall be appropriate that the matter may be remitted back to U.P. Public Service Tribunal, Lucknow for deciding afresh.

In view of above, we allow the writ petition and set aside the judgment and order dated 07-05-1991 passed by U.P. Public Services Tribunal No. III, Lucknow in Claim Petition No. 33/F/III of 1991. The matter is remitted back to the U.P. Public Services Tribunal, Lucknow, for deciding afresh. While deciding the controversy, the Tribunal shall restore the claim petition to its original number. While recording any finding with regard to dismissal or allowing the claim petition, the Tribunal shall take note of judgment of Hon''ble Supreme Court dated 21-01-1991, copy of which has been filed as Annexure No. 3 to the writ petition.

Let a fresh decision be taken by the Tribunal expeditiously say preferably within a period of three months from the date of receipt of certified copy of this order, after providing opportunity of hearing to the parties.