UTTAR PRADESH JAL VIDYUT NIGAM LIMITED & ORS.versusBALBIR SINGH

92                      [2021]
              SUPREME COURT    9 S.C.R. 92
                             REPORTS                       [2021] 9 S.C.R.


A      UTTAR PRADESH JAL VIDYUT NIGAM LIMITED & ORS.
                                       v.
                               BALBIR SINGH
                        (Civil Appeal No. 5667 of 2021)
B                           SEPTEMBER 13, 2021
              [M. R. SHAH AND ANIRUDDHA BOSE, JJ]
             Uttar Pradesh Reorganization Act, 2000: s. 35(2) – Transfer
     of proceedings from Allahabad High Court to Uttarakhand High
     Court – Creation of the State of Uttarakhand – Writ petition filed
C
     by the appellants pending before the High Court of Allahabad
     challenging the judgment and award passed by the Presiding Officer,
     Labour Court, Dehradun was required to be transferred to the High
     Court of Uttarakhand by the Chief Justice of the High Court of
     Allahabad in exercise of power under Sub-Section (2) of Section
D    35 – However, the writ petition was not transferred – When the said
     writ petition came up for hearing before the Allahabad High Court,
     the High Court permitted the appellants to withdraw the said writ
     petition with liberty to file the same before the appropriate court-
     High Court of Uttarakhand and hence, the appellants filed the writ
     petition before the High Court of Uttarakhand – However, after 5
E
     years of filing of writ petition, the Single Judge of the High Court
     of Uttarakhand dismissed the said writ petition by observing that
     the Coordinate Bench of the Allahabad High Court by permitting
     the appellants to withdraw writ petition pending before it with liberty
     to file the writ petition before the High Court of Uttarakhand, barged
F    into to override the provisions contained under Sub-Section (2) of
     Section 35 by adoring himself with the powers of the Chief Justice
     of Allahabad High Court as contemplated under Sub-Section (2) of
     Section 35; and that too when award was challenged before the
     Uttarakhand High Court after 19 years of its pendency –
     Sustainability of – Held: Not sustainable – Judicial order passed
G
     by the High Court of Allahabad permitting the appellants to
     withdraw the writ petition cannot be said to be contrary to the
     provisions contained under Sub-Section (2) of Section 35 –
     Furthermore, there was no delay at all on the part of the appellants
     in challenging the award passed by the Labour Court, Dehradun –
H
                                       92
  UTTAR PRADESH JAL VIDYUT NIGAM LIMITED & ORS.                       93
                 v. BALBIR SINGH

Thus, the order passed by the High Court being unsustainable, is      A
quashed and set aside.
      Judicial discipline/propriety: Mandate of – Held: Judicial
discipline/propriety demands to respect the order passed by the
Coordinate Bench and more particularly the judicial order passed
by the Coordinate Bench of the High Court.                            B
      Allowing the appeal, the Court
       HELD: 1.1 On the creation of the State of Uttarakhand,
the jurisdiction over the Labour Court, Dehradun would only vest
with the High Court of Uttarakhand. Therefore, the writ petition
pending before the High Court of Allahabad challenging the            C
judgment and award passed by the Presiding Officer, Labour
Court, Dehradun was required to be transferred to the High Court
of Uttarakhand by the Chief Justice of the High Court of Allahabad
in exercise of power under Sub-Section(2) of Section 35 of the
Uttar Pradesh Reorganization Act, 2000. As the writ petition          D
before the High Court of Allahabad was against the judgment
and award passed by the Labour Court, Dehradun, Sub-Section
(3) of Section 35 shall not be applicable. Therefore, as such, the
writ petition before the High Court of Allahabad was required to
be transferred to the High Court of Uttarakhand. However for
whatever reason the writ petition filed by the appellants before      E
the High Court of Allahabad was not transferred. Therefore, when
the writ petition pending before the High Court of Allahabad came
up for hearing before the Allahabad High Court, the High Court
permitted the appellants to withdraw the said writ petition with
liberty to file the same before the appropriate court i.e. in the     F
instant case the High Court of Uttarakhand. Accordingly, the
appellants filed the writ petition before the High Court of
Uttarakhand. However, after 5 years of filing of writ petition, the
Single Judge of the High Court of Uttarakhand dismissed the
said writ petition by observing that the Coordinate Bench of the
Allahabad High Court was not justified in permitting the appellants   G
to withdraw the writ petition with liberty to file fresh petition
before the appropriate court. The Single Judge of the High Court
of Uttarakhand observed that by permitting the appellants to
withdraw writ petition pending before it with liberty to file the
writ petition before the appropriate court-High Court of              H
94           SUPREME COURT REPORTS                     [2021] 9 S.C.R.


A    Uttarakhand, the Coordinate Bench of the High Court of
     Allahabad barged into to override the provisions contained under
     Sub-Section (2) of Section 35 of the Act by adoring himself with
     the powers of the Chief Justice of Allahabad High Court as
     contemplated under Sub-Section (2) of Section 35 of the Act for
     transfer of pending matters before the Allahabad High Court. It
B
     is observed by the Single Judge that the liberty granted by
     Allahabad High Court permitting the appellants to file a fresh
     writ petition before the appropriate court, would not make the
     writ petition tenable before the High Court of Uttarakhand and
     that too when a challenge is given to the award before the
C    Uttarakhand High Court after 19 years of its pendency. The Single
     Judge also observed that even the institution of the writ petition
     before the High Court of Uttarakhand challenging the award
     passed by the Labour Court, Dehradun dated 31.05.1997 would
     be 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 of
     Allahabad permitting the appellants to withdraw the writ petition
     pending before the Allahabad High Court with the liberty to file
     fresh writ petition before the appropriate court cannot be said to
     be contrary to the provisions contained under Sub-Section (2) of
E    Section 35 of the Act as observed by the Single Judge in the
     impugned order. The order under Sub-Section (2) of Section 35
     of the Act by the Chief Justice of the Allahabad High Court for
     transfer of pending matters before the Allahabad High Court to
     the High Court of Uttarakhand is an administrative order. If that
F    power was not exercised and subsequently it was found that
     proceedings which were required to be transferred in exercise
     of power Sub-Section (2) of Section 35 of the Act, has not been
     transferred, it does not preclude the High Court of Allahabad to
     pass a judicial order and that too permitting the appellants to
     withdraw the writ petition pending before it and to file it before
G    an appropriate court. As such the High Court in such a situation
     would be absolutely justified in permitting to withdraw the writ
     petition pending before it with liberty to file it before an
     appropriate court having jurisdiction, on the creation of the new
     State-State of Uttarakhand. [Para 3.2][101-A-D]
H
  UTTAR PRADESH JAL VIDYUT NIGAM LIMITED & ORS.                         95
                 v. BALBIR SINGH

       1.3 The another reason which is assigned by the High Court       A
while passing the impugned order is that if the writ petition is
filed before it-the High Court of Uttarakhand challenging the
judgment and award of the Labour Court, Dehradun dated
31.05.1997, it would be suffering from the principles of laches.
The said reason is absolutely unsustainable. The High Court has
                                                                        B
not appreciated that the writ petition before the High Court was
filed immediately which remained pending before the High Court
of Allahabad for about 14 years and thereafter after the appellants
withdrew the writ petition from the Allahabad High Court
immediately the writ petition was filed before the High Court of
Uttarakhand. Therefore, there was no delay at all on the part of        C
the appellants in challenging the award passed by the Labour
Court, Dehradun. Therefore, in such a situation there was no
question of any delay and laches. [Para 3.3][101-E-G]
      1.4 Even otherwise once a judicial order was passed by the
High Court of Allahabad permitting the appellants to withdraw           D
the writ petition with liberty to file a writ petition before the
appropriate court (the High Court of Uttarakhand) and thereafter
when the appellants preferred the writ petition before the High
Court of Uttarakhand, the Single Judge of the High Court of
Uttarakhand is not at all justified in making comments upon the
judicial order passed by the Coordinate Bench of the Allahabad          E
High Court. The Single Judge of the High Court of Uttarakhand
was not acting as an appellate court against the judicial order
passed by the High Court of Allahabad permitting the appellants
to withdraw the writ petition with liberty to file a writ petition
before an appropriate court. Judicial discipline/propriety demand       F
to respect the order passed by the Coordinate Bench and more
particularly the judicial order passed by the Coordinate Bench of
the High Court, in the instant case the Allahabad High Court
which as such was not under challenge before it. Therefore, the
observations made by the High Court of Uttarakhand in the
impugned order on the judicial order passed by the Single Judge         G
of Allahabad High Court dated 24.04.2014 permitting the
appellants to withdraw the writ petition pending before it with
liberty to file fresh writ petition before the appropriate court (the
High Court of Uttarakhand) is absolutely unwarranted and is
                                                                        H
96             SUPREME COURT REPORTS                           [2021] 9 S.C.R.


A    unsustainable. The impugned order passed by the High Court
     dismissing the writ petition without entering into the merits of
     the 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 of
B    2021.
            From the Judgment and Order dated 26.11.2019 of the High Court
     of 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.
C           The Judgment of the Court was delivered by
            M. R. SHAH, J.
            Leave granted.
            1. Feeling aggrieved and dissatisfied with the impugned judgment
     and order dated 26.11.2019 passed by the High Court of Uttarakhand at
D    Nainital in Writ Petition No.1314 of 2014 (M/S) by which the High Court
     has dismissed the said writ petition preferred by the appellants herein
     without entering into the merits of the case, the original writ petitioner
     has preferred the present appeal.
            2. The facts leading to the present appeal in nutshell are as under:-
E           That the respondent herein raised an industrial dispute challenging
     his termination dated 15.06.1996. The dispute was referred to the labour
     court. The Presiding Officer, Labour Court, Dehradun, passed an award
     dated 31.05.1997 holding that the termination order is illegal. The Labour
     Court directed the reinstatement of the respondent with full back wages.
     Feeling aggrieved and dissatisfied with the judgment and award passed
F
     by the Labour Court, Dehradun in case No.180 of 1996, the original
     petitioners - appellants herein preferred Writ Petition No.6898 of 1997
     before the High Court of Allahabad. That the High Court of Allahabad
     passed a conditional interim order staying the execution of award and on
     condition to deposit the entire back wages before the Labour Court. The
G    appellant complied with the same and deposited the amount of back
     wages. That during the pendency of the aforesaid writ petition, the State
     of Uttarakhand came to be created and the jurisdiction of the Labour
     Court, 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 the
H    Uttar Pradesh Reorganization Act, 2000, the proceedings pending before
  UTTAR PRADESH JAL VIDYUT NIGAM LIMITED & ORS.                                     97
           v. BALBIR SINGH [M. R. SHAH, J.]

the High Court at Allahabad were required to be transferred to the High             A
Court having jurisdiction, in the present case the High Court of
Uttarakhand. However, writ petition No.6898 of 1997 was not transferred
by the Chief Justice of the High Court of Allahabad for whatever reason.
Therefore when writ petition No.6898 of 1997 though was required to
be transferred to the High Court of Uttarakhand as what was challenged
                                                                                    B
before the High Court of Allahabad was the judgment and award passed
by the Labour Court, Dehradun, the jurisdiction of which subsequently
vested with the High Court of Uttarakhand, came up for hearing before
the Allahabad High Court on 24.04.2014 and the Allahabad High Court
was of the view that since the award has been passed by the Labour
Court, Dehradun and therefore the jurisdiction does not lie with the High           C
Court of Allahabad and therefore permitted the appellants herein - original
writ petitioner to withdraw the writ petition with liberty to file fresh petition
before the appropriate court i.e. High Court of Uttarakhand. That
thereafter the appellants herein preferred the present writ petition before
the High Court of Uttarakhand which was numbered as writ petition
                                                                                    D
No.1314 of 2014, challenging the award dated 31.05.1997 passed by the
Presiding Officer, Labour Court, Dehradun in case No.180 of 1996.
That thereafter the matter was listed before the learned Single Judge of
the High Court of Uttarakhand on 26.11.2019. By the impugned order
the High Court has dismissed the said writ petition without entering into
the merits of the case solely on the ground that in view of the provisions          E
contained under Sub-Section (2) of Section 35 of the Uttar Pradesh
Reorganization Act, 2000 (hereinafter referred to as ‘the Act’), the power
to transfer the case lie with the Chief Justice of the High Court of
Allahabad and therefore the Coordinate Bench of Allahabad High Court
was not justified in granting liberty to the appellants herein – original writ
                                                                                    F
petitioner to withdraw the writ petition with liberty to file fresh writ petition
before the appropriate court. The Single Judge of the High Court of
Uttarakhand observed that the liberty granted by the High Court of
Allahabad permitting the appellants to withdraw the writ petition pending
before it with liberty to file fresh writ petition before the appropriate
court is just contrary to the provisions contained under Sub-Section (2)            G
of Section 35 of the Act.
       2.2 Feeling aggrieved and dissatisfied with the impugned order
passed by the High Court of Uttarakhand, the original writ petitioners
have preferred the present appeal.
                                                                                    H
98             SUPREME COURT REPORTS                           [2021] 9 S.C.R.


A           3. Having heard the learned counsel appearing for the respective
     parties and considering the impugned order passed by the High Court of
     Uttarakhand, we are of the opinion that the impugned order passed by
     the High Court dismissing the writ petition without entering into the merits
     of the case is unsustainable.
B           3.1 It cannot be disputed that as such on the creation of the State
     of Uttarakhand, the jurisdiction over the Labour Court, Dehradun would
     only vest with the High Court of Uttarakhand. It also cannot be disputed
     that therefore as such the writ petition pending before the High Court of
     Allahabad challenging the judgment and award passed by the Presiding
     Officer, Labour Court, Dehradun was required to be transferred to the
C    High Court of Uttarakhand by the Chief Justice of the High Court of
     Allahabad in exercise of power under Sub-Section (2) of Section 35 of
     the ‘Act’.
           Section 35 of the Uttar Pradesh Reorganization Act reads as
     under:-
D
           “35. Transfer of proceedings from Allahabad High Court to
           Uttaranchal High Court:-
           (1) Except as hereinafter provided, the High Court at
           Allahabad shall, as from the appointed day, have no
E          jurisdiction in respect of the transferred territory.
           (2) Such proceedings pending in the High Court at Allahabad
           immediately before the appointed day as are certified, whether
           before or after that day, by the Chief Justice of that High
           Court, having regard to the place of accrual of the cause of
F          action and other circumstances, to be proceedings which
           ought to be heard and decided by the High Court of
           Uttarachal 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 hereinafter
G
           provided, the High Court at Allahabad shall have, and the
           High Court of Uttaranchal shall not have, jurisdiction to
           entertain, hear or dispose of appeals, applications for leave
           to the Supreme Court, applications for review and other
           proceedings where any such proceedings seek any relief in
H
  UTTAR PRADESH JAL VIDYUT NIGAM LIMITED & ORS.                                  99
           v. BALBIR SINGH [M. R. SHAH, J.]

       respect of any order passed by the High Court at Allahabad                A
       before the appointed day: Provided that if after any such
       proceedings have been entertained by the High Court at
       Allahabad, it appears to the Chief Justice of that High Court
       that they ought to be transferred to the High Court of
       Uttaranchal, he shall order that they shall be so transferred,
                                                                                 B
       and such proceedings shall thereupon be transferred
       accordingly.
       (4) Any order made by the High Court at Allahabad.
       (a) before the appointed day, in any proceedings transferred
       to the High Court of Uttaranchal by virtue of sub-section (2)             C
       or
       (b) in any proceedings with respect to which the High Court
       at Allahabad retains jurisdiction by virtue of sub-section (3),
       shall for all purposes have effect, not only as an order of the
       High Court at Allahabad, but also as an order made by the                 D
       High Court of Uttaranchal.”
       As the writ petition before the High Court of Allahabad was
against 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 required       E
to be transferred to the High Court of Uttarakhand. However for
whatever reason the writ petition filed by the appellants before the High
Court of Allahabad being writ petition No.6898 (M/S) of 1997 was not
transferred. Therefore when the writ petition pending before the High
Court of Allahabad came up for hearing before the Allahabad High Court,
the High Court permitted the appellants to withdraw the said writ petition       F
with liberty to file the same before the appropriate court i.e. in the present
case the High Court of Uttarakhand. Accordingly, the appellants filed
the writ petition before the High Court of Uttarakhand. However, after
5 years of filing of writ petition, by impugned order dated 26.11.2019 the
learned Single Judge of the High Court of Uttarakhand has dismissed              G
the said writ petition by observing that the Coordinate Bench of the
Allahabad High Court was not justified in permitting the appellants to
withdraw the writ petition with liberty to file fresh petition before the
appropriate court. The learned Single Judge of the High Court of
Uttarakhand has observed that by permitting the appellants to withdraw
                                                                                 H
100             SUPREME COURT REPORTS                            [2021] 9 S.C.R.


A     writ petition pending before it with liberty to file the writ petition before
      the appropriate court – High Court of Uttarakhand, the Coordinate Bench
      of the High Court of Allahabad has barged into to override the provisions
      contained under Sub-Section (2) of Section 35 of the Act by adoring
      himself with the powers of the Chief Justice of Allahabad High Court as
      contemplated under Sub-Section (2) of Section 35 of the Act for transfer
B
      of pending matters before the Allahabad High Court. It is observed by
      the learned Single Judge that the liberty granted by Allahabad High Court
      permitting the appellants to file a fresh writ petition before the appropriate
      court dated 24.04.2014, will not make the writ petition tenable before
      the High Court of Uttarakhand and that too when a challenge is given to
C     the impugned award before the Uttarakhand High Court after 19 years
      of its pendency. The learned Single Judge has also observed that even
      the institution of the writ petition before the High Court of Uttarakhand
      challenging the award passed by the Labour Court, Dehradun dated
      31.05.1997 would be suffering from the principles of laches.
D            3.2 None of the aforesaid grounds are tenable at law. It cannot be
      disputed that after the creation of the State of Uttarakhand the jurisdiction
      over judgment and award passed by the Labour Court, Dehradun would
      vest with the High Court of Uttarakhand and not with the High Court of
      Allahabad. Therefore, the writ petition pending before the High Court of
      Allahabad challenging the judgment and award passed by the Labour
E     Court, Dehradun was as such required to be transferred by the Chief
      Justice of the High Court of Allahabad to the High Court of Uttarakhand
      in exercise of power under Section 35 of the Act. For whatever reason
      the said writ petition was not transferred. That does not mean that despite
      the above, jurisdiction of the High Court of Allahabad against the judgment
F     and award passed by the Labour Court, Dehradun would continue.
      Therefore subsequently when the writ petition came up before the High
      Court of Allahabad and having realized and observed that the jurisdiction
      against the judgment and award passed by the Labour Court, Dehradun
      would vest with the High Court of Uttarakhand, the High Court of
      Allahabad rightly permitted the appellants to withdraw the said writ
G     petition pending before it with the liberty to the appellants to file fresh
      writ petition before the appropriate court. In the present case, the
      appropriate court would be the High Court of Uttarakhand only. Therefore
      as such no error was committed by the High Court of Allahabad
      permitting the appellants to withdraw the writ petition pending before it
H     with the liberty to file a fresh writ petition before the court having
  UTTAR PRADESH JAL VIDYUT NIGAM LIMITED & ORS.                                      101
           v. BALBIR SINGH [M. R. SHAH, J.]

jurisdiction. The aforesaid cannot be said to be adoring himself with the            A
powers of the Chief Justice of Allahabad High Court. The judicial order
passed by the High Court of Allahabad permitting the appellants to
withdraw the writ petition pending before the Allahabad High Court with
the liberty to file fresh writ petition before the appropriate court cannot
be said to be contrary to the provisions contained under Sub-Section (2)
                                                                                     B
of Section 35 of the Act as observed by the learned Single Judge in the
impugned order. The order under Sub-Section (2) of Section 35 of the
Act by the Chief Justice of the Allahabad High Court for transfer of
pending matters before the Allahabad High Court to the High Court of
Uttarakhand is an administrative order. If that power was not exercised
and subsequently it was found that proceedings which were required to                C
be transferred in exercise of power Sub-Section (2) of Section 35 of the
Act, has not been transferred, it does not preclude the High Court of
Allahabad to pass a judicial order and that too permitting the appellants
to withdraw the writ petition pending before it and to file it before an
appropriate court. As such the High Court in such a situation would be
                                                                                     D
absolutely justified in permitting to withdraw the writ petition pending
before 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 while
passing the impugned order is that if the writ petition is filed before it –
the High Court of Uttarakhand challenging the judgment and award of                  E
the Labour Court, Dehradun dated 31.05.1997, it would be suffering
from the principles of laches. The aforesaid reason is absolutely
unsustainable. The High Court has not appreciated that the writ petition
before the High Court was filed immediately which remained pending
before the High Court of Allahabad for about 14 years and thereafter                 F
after the appellants withdrew the writ petition from the Allahabad High
Court immediately the writ petition was filed before the High Court of
Uttarakhand. Therefore there was no delay at all on the part of the
appellants in challenging the award passed by the Labour Court,
Dehradun. Therefore in such a situation there was no question of any
delay and laches.                                                                    G

       4. Even otherwise once a judicial order was passed by the High
Court of Allahabad permitting the appellants to withdraw the writ petition
with liberty to file a writ petition before the appropriate court (the High
Court of Uttarakhand) and thereafter when the appellants preferred the
                                                                                     H
102                SUPREME COURT REPORTS                        [2021] 9 S.C.R.


A     writ petition before the High Court of Uttarakhand, the learned Single
      Judge of the High Court of Uttarakhand is not at all justified in making
      comments upon the judicial order passed by the Coordinate Bench of
      the Allahabad High Court. The Single Judge of the High Court of
      Uttarakhand was not acting as an appellate court against the judicial
      order passed by the High Court of Allahabad permitting the appellants to
B
      withdraw the writ petition with liberty to file a writ petition before an
      appropriate court. Judicial discipline/propriety demand to respect the order
      passed by the Coordinate Bench and more particularly the judicial order
      passed by the Coordinate Bench of the High Court, in the present case
      the Allahabad High Court which as such was not under challenge before
C     it. Therefore the observations made by the High Court of Uttarakhand
      in the impugned order on the judicial order passed by the learned Single
      Judge of Allahabad High Court dated 24.04.2014 permitting the appellants
      to withdraw the writ petition pending before it with liberty to file fresh
      writ 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 the
      present appeal succeeds. The impugned judgment and order dated
      26.11.2019 passed by the High Court of Uttarakhand at Nainital in Writ
      Petition No.1314 of 2014 (M/S) is hereby quashed and set aside. The
      writ petition is directed to be restored on the file of the High Court of
E     Uttarakhand. Considering the fact that the dispute is very old, we request
      the High Court to finally decide and dispose of the Writ Petition No.1314
      of 2014 (M/S) at the earliest and preferably within a period of six months
      from the date of receipt of the present order. The Registry is directed to
      communicate this order to the High Court of Uttarakhand forthwith.
F     No costs.


      Nidhi Jain                                                    Appeal allowed.



G




H