2004 INSC 0194
                                    SUPREME COURT OF INDIA

                                                  U.P.S.E.B.

                                                      Vs.

                                                 Ram Ashray

                                           C.A.No.6473 of 1998

                           (Shivaraj V. Patil and Dr. AR. Lakshmanan JJ.)

                                                 11.02.2004

                                                   ORDER

1. The order dated 16th October, 1997 passed by the High Court of Judicature at Allahabad
in Civil Miscellaneous Writ Petition No. 4486 of 1997 is under challenge in this appeal. The
first respondent was working as Stenographer Grade-11 at Panki Thermal Power Station,
Kanpur. Certain adverse entries were made against him for the period 1st January 1985 to
31st March 1985. He raised an industrial dispute challenging the said entries and they were
ordered to be expunged on 14th December 1988. If the adverse entries had not been
expunged, they would have come in the way of his promotion. He was promoted from
Stenographer Grade-11 to Stenographer Grade-1 by the order dated 11th May 1989 issued by
the Chief Engineer of the Board. Under the said order, the first respondent and few others
were promoted subject to certain conditions mentioned in the said order. He was relieved on
15th May 1989. On 17th May 1989, the first respondent made a representation that he ought
not to have been relieved hurriedly and forcibly; he had difficulties in joining on the
promoted post at Dehradun, . He raised an industrial dispute challenging the order relieving
him on 15th May 1989. Before the Labour Court, the appellants resisted the claim of the first
respondent on various grounds, inter alia, contending that the reference made by the
government was not at all tenable; no industrial dispute existed between the parties and the
dispute could not have been raised en behalf of the first respondent by an unregistered union
and that there was nothing illegal in issuing the relieving order on 15th May, 1989. The
Labour Court, having considered the material placed before it and looking to the facts and
circumstances of the case, rejected all the contentions urged on behalf of the appellants and
passed the Award setting aside the order of relieving the first respondent and declared that he
shall be deemed to have been working at Panki Thermal Power Station, Kanpur, and also
entitled to pay and allowances. The appellants, aggrieved by the Award, filed a writ petition
before the High Court. The High Court, by the impugned order, modified the Award, of
course without deciding the points of dispute and without recording detailed reasons for so
doing. The impugned order directed that the post- retirement benefits should be given to the
first respondent within three months and as far as the wages are concerned for the period
from 15th May, 1989 to 22nd December, 1994, direction was given to the effect that the first

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respondent should be paid half of the salary which was due to him during that period. Hence
this appeal.

2. The learned counsel for the appellants, before us, reiterated the contentions that were
raised before the Labour Court, including the grounds that no industrial dispute existed
between the parties and that the order relieving the first respondent was neither illegal nor
forcible. According to the learned counsel, the Labour Court committed an error in allowing
the claim of the first respondent. He made a grievance that the High Court, in the impugned
order, did not deal with the merits of the contentions raised on behalf of the appellants but
simply modified the Award.

3. In opposition, the learned counsel for the first respondent made submissions supporting
the impugned order. He pointed out to the findings recorded by the Labour and tried to
justify them. He also drew our attention to the order of promotion dated 11th May, 1989. He
submitted that the High Court was not justified in ordering only half of the salary for the
period 15th May 1989 to 22nd December 1994 but fairly submitted that the first respondent
has not challenged the impugned order.

4. We are told that the first respondent was compulsorily retired on 22nd December 1994 and
this order of compulsory retirement is challenged in a writ petition before the High Court,
which is pending. It is not necessary for us to deal with the validity of the compulsory
retirement or otherwise as it does not arise for our consideration in this appeal. The facts that
are not in dispute are that the promotion order relating to the first respondent and few others
was issued on llth May, 1989 by the Chief Engineer of the Board in which it is clearly stated
that to enable the post holders to join at new posting of promotion, they should be relieved
from present posting latest by 12th June, 1989 so that they should join on the promotion post
latest by 19th June, 1989; those post holders who will not join within the prescribed period,
their promotion order will be deemed to 'be cancelled. The order of promotion, it is said, was
brought by special messenger to Kanpur and 13th and 14th May, 1989 were holidays, being
second Saturday and Sunday, relieving order was issued on 15th May, 1989. The Labour
Court has recorded detailed reasons to come to the conclusion that the relieving order was
issued to the first respondent in undue haste and illegally. Having perused the reasons
recorded by the Labour Court, we do not find any good reason to take a different view. When
the first respondent could be relieved latest by 12th June 1989, there was no reason as to why
the first respondent ought to have been relieved by 15th May 1989 without making honest
efforts to serve on him. Since the relieving order affected the condition of service of the first
respondent inasmuch as he went out of job and there was serious dispute as to the very
validity of the relieving order, it is not possible to accept the contention that no industrial
dispute existed between the parties. The Labour was right in negativing the contention urged
on behalf of the appellants in this regard. The fact remained that the first respondent did not
go and join as Stenographer Grade-1. There appears to be no representation made by the first
respondent requesting the authorities to permit him to join in the promoted cadre either at
Kanpur or at some other place. Since the first respondent did not join on the promoted post,
he was entitled to get the salary and all other benefits available to the Stenographer Grade-11
for the period 15th May 1989 to 22nd December 1994. The High Court, in the impugned

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order, taking note of the fact that the first respondent did not work during this period,
directed to pay half of the salary for the said period. However, the High Court rightly
directed the appellants herein to give all retiral benefits to the first respondent. Since the first
respondent has not challenged the order of the High Court making any grievance in this
regard, it is not possible for us to modify the order at the instance of the first respondent so as
to give direction for payment of full salary for the period 15th May, 1989 to 22nd December,
1994. This being the position, we are not inclined to interfere with the impugned order.
Consequently, the appeal is dismissed.

5. At this stage, the learned counsel for the appellants brought to our notice that as per the
order dated 16th December, 1998, the appellants have deposited a sum of Rupees seventy
five thousand in the High Court and while calculating the payment to be made to the first
respondent pursuant to the impugned order passed by the High Court, this amount of Rupees
seventy five thousand may be adjusted. We order accordingly. The Bank guarantee furnished
by the first respondent pursuant to the order of this Court dated 16th December 1998 stands
discharged.

6. We, however, do not wish to say anything in regard to the dispute as to the compulsory
retirement in these proceedings.

No costs.

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