UTTAR PRADESH JAL VIDYUT NIGAM LIMITED & ORS. versus BALBIR SINGH on 13 September 2021

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[2021] 9 S.C.R.

AUTTAR PRADESH JAL VIDYUT NIGAM LIMITED & ORS.

v.

BALBIR SINGH

(Civil Appeal No. 5667 of 2021)

BSEPTEMBER 13, 2021

[M. R. SHAH AND ANIRUDDHA BOSE, JJ]

Uttar Pradesh Reorganization Act, 2000: s. 35(2) – Transferof proceedings from Allahabad High Court to Uttarakhand HighCourt – Creation of the State of Uttarakhand – Writ petition filedCby the appellants pending before the High Court of Allahabadchallenging the judgment and award passed by the Presiding Officer,Labour Court, Dehradun was required to be transferred to the HighCourt of Uttarakhand by the Chief Justice of the High Court ofAllahabad in exercise of power under Sub-Section (2) of SectionD35 – However, the writ petition was not transferred – When the saidwrit petition came up for hearing before the Allahabad High Court,the High Court permitted the appellants to withdraw the said writpetition with liberty to file the same before the appropriate court-High Court of Uttarakhand and hence, the appellants filed the writpetition before the High Court of Uttarakhand – However, after 5Eyears of filing of writ petition, the Single Judge of the High Courtof Uttarakhand dismissed the said writ petition by observing thatthe Coordinate Bench of the Allahabad High Court by permittingthe appellants to withdraw writ petition pending before it with libertyto file the writ petition before the High Court of Uttarakhand, bargedFinto to override the provisions contained under Sub-Section (2) ofSection 35 by adoring himself with the powers of the Chief Justiceof Allahabad High Court as contemplated under Sub-Section (2) ofSection 35; and that too when award was challenged before theUttarakhand High Court after 19 years of its pendency –Sustainability of – Held: Not sustainable – Judicial order passedGby the High Court of Allahabad permitting the appellants towithdraw the writ petition cannot be said to be contrary to theprovisions contained under Sub-Section (2) of Section 35 –Furthermore, there was no delay at all on the part of the appellantsin challenging the award passed by the Labour Court, Dehradun –H

Thus, the order passed by the High Court being unsustainable, isquashed and set aside.

Judicial discipline/propriety: Mandate of – Held: Judicialdiscipline/propriety demands to respect the order passed by theCoordinate Bench and more particularly the judicial order passedby the Coordinate Bench of the High Court.

Allowing the appeal, the Court

Conclusion

HELD: 1.1 On the creation of the State of Uttarakhand,the jurisdiction over the Labour Court, Dehradun would only vestwith the High Court of Uttarakhand. Therefore, the writ petitionpending before the High Court of Allahabad challenging thejudgment and award passed by the Presiding Officer, LabourCourt, Dehradun was required to be transferred to the High Courtof Uttarakhand by the Chief Justice of the High Court of Allahabadin exercise of power under Sub-Section(2) of Section 35 of theUttar Pradesh Reorganization Act, 2000. As the writ petitionbefore the High Court of Allahabad was against the judgmentand award passed by the Labour Court, Dehradun, Sub-Section(3) of Section 35 shall not be applicable. Therefore, as such, thewrit petition before the High Court of Allahabad was required tobe transferred to the High Court of Uttarakhand. However forwhatever reason the writ petition filed by the appellants beforethe High Court of Allahabad was not transferred. Therefore, whenthe writ petition pending before the High Court of Allahabad cameup for hearing before the Allahabad High Court, the High Courtpermitted the appellants to withdraw the said writ petition withliberty to file the same before the appropriate court i.e. in theinstant case the High Court of Uttarakhand. Accordingly, theappellants filed the writ petition before the High Court ofUttarakhand. However, after 5 years of filing of writ petition, theSingle Judge of the High Court of Uttarakhand dismissed thesaid writ petition by observing that the Coordinate Bench of theAllahabad High Court was not justified in permitting the appellantsto withdraw the writ petition with liberty to file fresh petitionbefore the appropriate court. The Single Judge of the High Courtof Uttarakhand observed that by permitting the appellants towithdraw writ petition pending before it with liberty to file thewrit petition before the appropriate court-High Court of AB

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AUttarakhand, the Coordinate Bench of the High Court ofAllahabad barged into to override the provisions contained underSub-Section (2) of Section 35 of the Act by adoring himself withthe powers of the Chief Justice of Allahabad High Court ascontemplated under Sub-Section (2) of Section 35 of the Act fortransfer of pending matters before the Allahabad High Court. ItBis observed by the Single Judge that the liberty granted byAllahabad High Court permitting the appellants to file a freshwrit petition before the appropriate court, would not make thewrit petition tenable before the High Court of Uttarakhand andthat too when a challenge is given to the award before theCUttarakhand High Court after 19 years of its pendency. The SingleJudge also observed that even the institution of the writ petitionbefore the High Court of Uttarakhand challenging the awardpassed by the Labour Court, Dehradun dated 31.05.1997 wouldbe suffering from the principles of laches. [Para 3.1][98-B-C; 99-D-H; 100-A-D]D

1.2 The judicial order passed by the High Court ofAllahabad permitting the appellants to withdraw the writ petitionpending before the Allahabad High Court with the liberty to filefresh writ petition before the appropriate court cannot be said tobe contrary to the provisions contained under Sub-Section (2) of ESection 35 of the Act as observed by the Single Judge in theimpugned order. The order under Sub-Section (2) of Section 35of the Act by the Chief Justice of the Allahabad High Court fortransfer of pending matters before the Allahabad High Court tothe High Court of Uttarakhand is an administrative order. If that

Fpower was not exercised and subsequently it was found thatproceedings which were required to be transferred in exerciseof power Sub-Section (2) of Section 35 of the Act, has not beentransferred, it does not preclude the High Court of Allahabad topass a judicial order and that too permitting the appellants towithdraw the writ petition pending before it and to file it beforeGan appropriate court. As such the High Court in such a situationwould be absolutely justified in permitting to withdraw the writpetition pending before it with liberty to file it before anappropriate court having jurisdiction, on the creation of the newState-State of Uttarakhand. [Para 3.2][101-A-D]H

1.3 The another reason which is assigned by the High Courtwhile passing the impugned order is that if the writ petition isfiled before it-the High Court of Uttarakhand challenging thejudgment and award of the Labour Court, Dehradun dated31.05.1997, it would be suffering from the principles of laches.The said reason is absolutely unsustainable. The High Court hasnot appreciated that the writ petition before the High Court wasfiled immediately which remained pending before the High Courtof Allahabad for about 14 years and thereafter after the appellantswithdrew the writ petition from the Allahabad High Courtimmediately the writ petition was filed before the High Court ofUttarakhand. Therefore, there was no delay at all on the part ofthe appellants in challenging the award passed by the LabourCourt, Dehradun. Therefore, in such a situation there was noquestion of any delay and laches. [Para 3.3][101-E-G]

1.4 Even otherwise once a judicial order was passed by theHigh Court of Allahabad permitting the appellants to withdrawthe writ petition with liberty to file a writ petition before theappropriate court (the High Court of Uttarakhand) and thereafterwhen the appellants preferred the writ petition before the HighCourt of Uttarakhand, the Single Judge of the High Court ofUttarakhand is not at all justified in making comments upon thejudicial order passed by the Coordinate Bench of the AllahabadHigh Court. The Single Judge of the High Court of Uttarakhandwas not acting as an appellate court against the judicial orderpassed by the High Court of Allahabad permitting the appellantsto withdraw the writ petition with liberty to file a writ petitionbefore an appropriate court. Judicial discipline/propriety demandto respect the order passed by the Coordinate Bench and moreparticularly the judicial order passed by the Coordinate Bench ofthe High Court, in the instant case the Allahabad High Courtwhich as such was not under challenge before it. Therefore, theobservations made by the High Court of Uttarakhand in theimpugned order on the judicial order passed by the Single Judgeof Allahabad High Court dated 24.04.2014 permitting theappellants to withdraw the writ petition pending before it withliberty to file fresh writ petition before the appropriate court (theHigh Court of Uttarakhand) is absolutely unwarranted and is AB

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Aunsustainable. The impugned order passed by the High Courtdismissing the writ petition without entering into the merits ofthe case is unsustainable, and as such quashed and set aside.[Para 3-5][101-G-H; 102-A-E]

CIVIL APPELLATE JURISDICTION: Civil Appeal No.5667 of2021.BFrom the Judgment and Order dated 26.11.2019 of the High Courtof Uttarakhand at Nainital in Writ Petition No.1314 of 2014 (M/S).

Sunil Kumar Jain, Adv. for the Appellants.

Ms. Meha Ashok Aggarwal, Adv. for the Respondent.

CThe Judgment of the Court was delivered by

M. R. SHAH, J.

Leave granted.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 26.11.2019 passed by the High Court of Uttarakhand atDNainital in Writ Petition No.1314 of 2014 (M/S) by which the High Courthas dismissed the said writ petition preferred by the appellants hereinwithout entering into the merits of the case, the original writ petitionerhas preferred the present appeal.

2. The facts leading to the present appeal in nutshell are as under:- EThat the respondent herein raised an industrial dispute challenginghis termination dated 15.06.1996. The dispute was referred to the labourcourt. The Presiding Officer, Labour Court, Dehradun, passed an awarddated 31.05.1997 holding that the termination order is illegal. The LabourCourt directed the reinstatement of the respondent with full back wages.Feeling aggrieved and dissatisfied with the judgment and award passedFby the Labour Court, Dehradun in case No.180 of 1996, the originalpetitioners - appellants herein preferred Writ Petition No.6898 of 1997before the High Court of Allahabad. That the High Court of Allahabadpassed a conditional interim order staying the execution of award and oncondition to deposit the entire back wages before the Labour Court. TheGappellant complied with the same and deposited the amount of backwages. That during the pendency of the aforesaid writ petition, the Stateof Uttarakhand came to be created and the jurisdiction of the LabourCourt, Dehradun came within the jurisdiction of the State of Uttarakhand.

2.1 In that view of the matter and in view of Section 35 of theHUttar Pradesh Reorganization Act, 2000, the proceedings pending before

the High Court at Allahabad were required to be transferred to the HighCourt having jurisdiction, in the present case the High Court ofUttarakhand. However, writ petition No.6898 of 1997 was not transferredby the Chief Justice of the High Court of Allahabad for whatever reason.Therefore when writ petition No.6898 of 1997 though was required tobe transferred to the High Court of Uttarakhand as what was challengedbefore the High Court of Allahabad was the judgment and award passedby the Labour Court, Dehradun, the jurisdiction of which subsequentlyvested with the High Court of Uttarakhand, came up for hearing beforethe Allahabad High Court on 24.04.2014 and the Allahabad High Courtwas of the view that since the award has been passed by the LabourCourt, Dehradun and therefore the jurisdiction does not lie with the HighCourt of Allahabad and therefore permitted the appellants herein - originalwrit petitioner to withdraw the writ petition with liberty to file fresh petitionbefore the appropriate court i.e. High Court of Uttarakhand. Thatthereafter the appellants herein preferred the present writ petition beforethe High Court of Uttarakhand which was numbered as writ petitionNo.1314 of 2014, challenging the award dated 31.05.1997 passed by thePresiding Officer, Labour Court, Dehradun in case No.180 of 1996.That thereafter the matter was listed before the learned Single Judge ofthe High Court of Uttarakhand on 26.11.2019. By the impugned orderthe High Court has dismissed the said writ petition without entering intothe merits of the case solely on the ground that in view of the provisionscontained under Sub-Section (2) of Section 35 of the Uttar PradeshReorganization Act, 2000 (hereinafter referred to as ‘the Act’), the powerto transfer the case lie with the Chief Justice of the High Court ofAllahabad and therefore the Coordinate Bench of Allahabad High Courtwas not justified in granting liberty to the appellants herein – original writpetitioner to withdraw the writ petition with liberty to file fresh writ petitionbefore the appropriate court. The Single Judge of the High Court ofUttarakhand observed that the liberty granted by the High Court ofAllahabad permitting the appellants to withdraw the writ petition pendingbefore it with liberty to file fresh writ petition before the appropriatecourt is just contrary to the provisions contained under Sub-Section (2)of Section 35 of the Act.

2.2 Feeling aggrieved and dissatisfied with the impugned orderpassed by the High Court of Uttarakhand, the original writ petitionershave preferred the present appeal.

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3. Having heard the learned counsel appearing for the respectiveparties and considering the impugned order passed by the High Court ofUttarakhand, we are of the opinion that the impugned order passed bythe High Court dismissing the writ petition without entering into the meritsof the case is unsustainable.

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B3.1 It cannot be disputed that as such on the creation of the Stateof Uttarakhand, the jurisdiction over the Labour Court, Dehradun wouldonly vest with the High Court of Uttarakhand. It also cannot be disputedthat therefore as such the writ petition pending before the High Court ofAllahabad challenging the judgment and award passed by the PresidingOfficer, Labour Court, Dehradun was required to be transferred to theCHigh Court of Uttarakhand by the Chief Justice of the High Court ofAllahabad in exercise of power under Sub-Section (2) of Section 35 ofthe ‘Act’.

Section 35 of the Uttar Pradesh Reorganization Act reads asunder:-D

“35. Transfer of proceedings from Allahabad High Court toUttaranchal High Court:-

(1) Except as hereinafter provided, the High Court atAllahabad shall, as from the appointed day, have nojurisdiction in respect of the transferred territory.

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(2) Such proceedings pending in the High Court at Allahabadimmediately before the appointed day as are certified, whetherbefore or after that day, by the Chief Justice of that HighCourt, having regard to the place of accrual of the cause ofFaction and other circumstances, to be proceedings whichought to be heard and decided by the High Court ofUttarachal shall, as soon as may be after such certification,be transferred to the High Court of Uttaranchal.

(3) Notwithstanding anything contained in subsections (1)and (2) of this section or in section 28, but save as hereinafterprovided, the High Court at Allahabad shall have, and theHigh Court of Uttaranchal shall not have, jurisdiction toentertain, hear or dispose of appeals, applications for leaveto the Supreme Court, applications for review and otherproceedings where any such proceedings seek any relief in G

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respect of any order passed by the High Court at Allahabadbefore the appointed day: Provided that if after any suchproceedings have been entertained by the High Court atAllahabad, it appears to the Chief Justice of that High Courtthat they ought to be transferred to the High Court ofUttaranchal, he shall order that they shall be so transferred,and such proceedings shall thereupon be transferredaccordingly.

(4) Any order made by the High Court at Allahabad.

(a) before the appointed day, in any proceedings transferredto the High Court of Uttaranchal by virtue of sub-section (2)or (b) in any proceedings with respect to which the High Courtat Allahabad retains jurisdiction by virtue of sub-section (3),shall for all purposes have effect, not only as an order of theHigh Court at Allahabad, but also as an order made by theHigh Court of Uttaranchal.”

As the writ petition before the High Court of Allahabad wasagainst the judgment and award passed by the Labour Court, Dehradun,Sub-Section (3) of Section 35 of the Act shall not be applicable. Therefore,as such, the writ petition before the High Court of Allahabad was requiredto be transferred to the High Court of Uttarakhand. However forwhatever reason the writ petition filed by the appellants before the HighCourt of Allahabad being writ petition No.6898 (M/S) of 1997 was nottransferred. Therefore when the writ petition pending before the HighCourt of Allahabad came up for hearing before the Allahabad High Court,the High Court permitted the appellants to withdraw the said writ petitionwith liberty to file the same before the appropriate court i.e. in the presentcase the High Court of Uttarakhand. Accordingly, the appellants filedthe writ petition before the High Court of Uttarakhand. However, after5 years of filing of writ petition, by impugned order dated 26.11.2019 thelearned Single Judge of the High Court of Uttarakhand has dismissedthe said writ petition by observing that the Coordinate Bench of theAllahabad High Court was not justified in permitting the appellants towithdraw the writ petition with liberty to file fresh petition before theappropriate court. The learned Single Judge of the High Court ofUttarakhand has observed that by permitting the appellants to withdraw AB

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Awrit petition pending before it with liberty to file the writ petition beforethe appropriate court – High Court of Uttarakhand, the Coordinate Benchof the High Court of Allahabad has barged into to override the provisionscontained under Sub-Section (2) of Section 35 of the Act by adoringhimself with the powers of the Chief Justice of Allahabad High Court ascontemplated under Sub-Section (2) of Section 35 of the Act for transferBof pending matters before the Allahabad High Court. It is observed bythe learned Single Judge that the liberty granted by Allahabad High Courtpermitting the appellants to file a fresh writ petition before the appropriatecourt dated 24.04.2014, will not make the writ petition tenable beforethe High Court of Uttarakhand and that too when a challenge is given toCthe impugned award before the Uttarakhand High Court after 19 yearsof its pendency. The learned Single Judge has also observed that eventhe institution of the writ petition before the High Court of Uttarakhandchallenging the award passed by the Labour Court, Dehradun dated31.05.1997 would be suffering from the principles of laches.D3.2 None of the aforesaid grounds are tenable at law. It cannot bedisputed that after the creation of the State of Uttarakhand the jurisdictionover judgment and award passed by the Labour Court, Dehradun wouldvest with the High Court of Uttarakhand and not with the High Court ofAllahabad. Therefore, the writ petition pending before the High Court ofAllahabad challenging the judgment and award passed by the LabourECourt, Dehradun was as such required to be transferred by the ChiefJustice of the High Court of Allahabad to the High Court of Uttarakhandin exercise of power under Section 35 of the Act. For whatever reasonthe said writ petition was not transferred. That does not mean that despitethe above, jurisdiction of the High Court of Allahabad against the judgment Fand award passed by the Labour Court, Dehradun would continue.Therefore subsequently when the writ petition came up before the HighCourt of Allahabad and having realized and observed that the jurisdictionagainst the judgment and award passed by the Labour Court, Dehradunwould vest with the High Court of Uttarakhand, the High Court ofAllahabad rightly permitted the appellants to withdraw the said writGpetition pending before it with the liberty to the appellants to file freshwrit petition before the appropriate court. In the present case, theappropriate court would be the High Court of Uttarakhand only. Thereforeas such no error was committed by the High Court of Allahabadpermitting the appellants to withdraw the writ petition pending before itHwith the liberty to file a fresh writ petition before the court having

jurisdiction. The aforesaid cannot be said to be adoring himself with thepowers of the Chief Justice of Allahabad High Court. The judicial orderpassed by the High Court of Allahabad permitting the appellants towithdraw the writ petition pending before the Allahabad High Court withthe liberty to file fresh writ petition before the appropriate court cannotbe said to be contrary to the provisions contained under Sub-Section (2)of Section 35 of the Act as observed by the learned Single Judge in theimpugned order. The order under Sub-Section (2) of Section 35 of theAct by the Chief Justice of the Allahabad High Court for transfer ofpending matters before the Allahabad High Court to the High Court ofUttarakhand is an administrative order. If that power was not exercisedand subsequently it was found that proceedings which were required tobe transferred in exercise of power Sub-Section (2) of Section 35 of theAct, has not been transferred, it does not preclude the High Court ofAllahabad to pass a judicial order and that too permitting the appellantsto withdraw the writ petition pending before it and to file it before anappropriate court. As such the High Court in such a situation would beabsolutely justified in permitting to withdraw the writ petition pendingbefore it with liberty to file it before an appropriate court having jurisdiction,on the creation of the new State – State of Uttarakhand.

3.3 The another reason which is assigned by the High Court whilepassing the impugned order is that if the writ petition is filed before it –the High Court of Uttarakhand challenging the judgment and award ofthe Labour Court, Dehradun dated 31.05.1997, it would be sufferingfrom the principles of laches. The aforesaid reason is absolutelyunsustainable. The High Court has not appreciated that the writ petitionbefore the High Court was filed immediately which remained pendingbefore the High Court of Allahabad for about 14 years and thereafterafter the appellants withdrew the writ petition from the Allahabad HighCourt immediately the writ petition was filed before the High Court ofUttarakhand. Therefore there was no delay at all on the part of theappellants in challenging the award passed by the Labour Court,Dehradun. Therefore in such a situation there was no question of anydelay and laches.

4. Even otherwise once a judicial order was passed by the HighCourt of Allahabad permitting the appellants to withdraw the writ petitionwith liberty to file a writ petition before the appropriate court (the HighCourt of Uttarakhand) and thereafter when the appellants preferred the AB

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Awrit petition before the High Court of Uttarakhand, the learned SingleJudge of the High Court of Uttarakhand is not at all justified in makingcomments upon the judicial order passed by the Coordinate Bench ofthe Allahabad High Court. The Single Judge of the High Court ofUttarakhand was not acting as an appellate court against the judicialorder passed by the High Court of Allahabad permitting the appellants toBwithdraw the writ petition with liberty to file a writ petition before anappropriate court. Judicial discipline/propriety demand to respect the orderpassed by the Coordinate Bench and more particularly the judicial orderpassed by the Coordinate Bench of the High Court, in the present casethe Allahabad High Court which as such was not under challenge beforeCit. Therefore the observations made by the High Court of Uttarakhandin the impugned order on the judicial order passed by the learned SingleJudge of Allahabad High Court dated 24.04.2014 permitting the appellantsto withdraw the writ petition pending before it with liberty to file freshwrit petition before the appropriate court (the High Court of Uttarakhand)is absolutely unwarranted and is unsustainable.D

5. In view of the above and for the reasons stated above thepresent appeal succeeds. The impugned judgment and order dated26.11.2019 passed by the High Court of Uttarakhand at Nainital in WritPetition No.1314 of 2014 (M/S) is hereby quashed and set aside. Thewrit petition is directed to be restored on the file of the High Court ofEUttarakhand. Considering the fact that the dispute is very old, we requestthe High Court to finally decide and dispose of the Writ Petition No.1314of 2014 (M/S) at the earliest and preferably within a period of six monthsfrom the date of receipt of the present order. The Registry is directed tocommunicate this order to the High Court of Uttarakhand forthwith.FNo costs.

Nidhi Jain

Appeal allowed.

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