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Judgment
Rakesh Tiwari, J.—Heard learned Counsel for the parties and perused the record.
The case of respondent No. 1 workman is that he was appointed as Fitter and was working as skilled workman. He claims pay and post of Specialist Grade I on the ground that the work of Specialist Grade I was taken from him by the employer. When his claim was denied by the employer, the workman raised an industrial dispute which was referred to Labour Court (II) UP. Kanpur and was registered there as Adjudication Case No. 241 of 1983.The reference was thereafter again amended by Government Order dated 31.3.1986 as under:
D;k lsokk;kstdks }kjk vius Jfed jke dqekj iq= Jh Qwy pUnz fV0 ua0 1543 dq''ky xq.k &2] f''kQV tujy dks mlds }kjk fd;s tk jgs dk;Z ds vuqlkj Lisf''kfyLV xzsM & izFke dk inuke o osrueku u fn;k tkuk mfpr rFkk @ vFkok mfpr ,oa oS/kkfud gS\\ ;fn ugh] rks lacaf/kr Jfed D;k ykHk @ vuqrks"k �fjyhQ� ikus dk vf/kdkjh gS] fdl frfFk ls rFkk fdl vU; fooj.k lfgr \\
The claim of the workman on the basis of pleadings and oral evidence was accepted by the Labour Court which rendered its award dated 26.2.92 in favour of the workman.
The contention of learned Counsel for the petitioner is that in the Central Workshop of petitioner there are five categories of workman viz, Unskilled, Semi-Skilled, Skilled, Specialist and Specialist Grade-I and that promotions from one post to another are made on the basis of seniority-cum-suitability subject to rejection of unfit.
It is urged by the Counsel for the petitioner that the respondent workman was working as skilled workman as such he could only have been promoted on the post of Specialist/workman in accordance with seniority but the Labour Court has illegally granted double jump promotion to respondent No. 1 by promoting him to the post of Specialist Grade I as such the award is wholly illegal and erroneous.
It is further urged that promotion is the sole domain of the petitioner and it is not open to the Labour Court to grant promotion as such the award also suffers from error apparent on the face of the record as well as in law and even assuming that respondent workman worked on a higher post or performed work which was done by Special Grade I/workman will in itself not entitle him for the post of higher category and its corresponding pay scale and at the most he can claim salary of higher post for the period he worked on said higher post.
He has relied upon two judgments of this Court in this regard i.e. judgment dated 1.2.1989 in Civil Misc. Writ Petition No. 1037 of 1989, Sarvesh Kumar Sharma v. Regional Manager. UPSRTC, Lucknow and Anr. as well as judgment dated 2.8.1987 rendered in Civil Misc. Writ Petition No. 2185 of 1987, Rama Kant Pandev and Ors. v. The Depot Manager and Ors. Both the judgments have been appended as Annexures-2 and 3 to the writ petition relevant extract of which are as under:
(Judgment in W.P. No. 1037 of 1989)
From the documents filed by the petitioner along with the writ petition it appears that he was appointed as Conductor in the UPSRTC though he was utilized on the post of clerk This would not give an inadmissible right to the petitioner to work on the post of clerk. He can still be utilized as conductor, the post on which he was originally appointed.
The petition has no merit and is dismissed summari ly.
Sd. S.S. Ahmad, J. Sd. S.N. Sahai, J. 1.2.89
(Judgment in Writ Petition No. 2185 1987)
It is undisputed that the petitioners were appointed as conductors, the fact that they have been permitted to work as Clerks which does not confer any right to that post.
Therefore, wee no reason to admit this petition and it is accordingly rejected.
Sd. K.J. Shetty, C.J. Sd. S.S. Anand, J. 2.4.87.
The award dated 26.2.292 has been published on 18.8.92 which is challenged in the present writ petition and the following ad-interim order was granted on 8.2.93:
Affidavit of service has been filed by the learned Counsel for the petitioner today in Court. Inspite of service the opposite party No. 1 has not put in appearance nor filed any counter affidavit.
Admit.
Issue notice.
The aforesaid ad-interim order was vacated by order dated 10.9.2002, hence the award has now become enforceable.
On a query made by the Court from the learned Counsel for the petitioner he has informed that the award has not been given effect to by the employer inspite of the vacation of the interim order.
Learned Counsel for the respondents states that the workman is entitled for promotion, designation and corresponding pay scale as he was already performing the work of Special Grade I which is also apparent from the tenor of the order of reference.
I have also considered the arguments of the learned Counsel for the parties and perused the award. The Labour Court has considered the case of the parties in paragraphs 7 to 10 of the award which are as under:
7- lsok;kstd i{k ls bZ Mcy&1 ds :i esa Jhd`".k dqekj dk lk{; gqvk A mUgksus vius c;ku esa dgk gS fd og m0iz0jk0l0i0 fuxe ds dsfUnz; dk;Z''kkyk esa flfu;j QksjeSu xzsM&1 ds :i es dk;Zjr gS A bl le; og eksfYMu ,D''ku tujy fQfVax lsD''ku o bysDfV�d Hkh dk dk;Z ns[k jgk gS A og ckn ls lacaf/kr Jfed dks tkurs gS tks tujy fQfVax lsD''ku gS fLdYM ds in ij dk;Zjr gS A tujy fQfVax lsD''ku esa clksa ds dEiksusV vkfn cuk;s tkrs gS A bl dk;Z ds fy, vdq''ky] dq''ky] v)Zdq''ky] Lis''kfyLV o Lis''kfyLV xzsM & 1 ds 42 deZpkjh dk;Zjr gS A bu inks dk inkuslkj dk;Z dk foHkktu ugh gS ysfdu ,slk gS fd tc fdlh deZpkjh esa vuqHko gksrk gS vkSj mldk izeks''ku gksrk gS rks mls ,d Bhdk crk nsrs gS ftl ij og dk;Z djrk gS mPp in ij inksUufr T;s"Brk ds vk/kkj ij gksrh gS A lwph 13 ch �1� dk isij la0 2 Jfedksa dh ofj"Brk lwph gS vkSj tks 1981 esa izdkf''kr gqbZ A ;g vfHkys[k ij ,DlfoV bZ&1] Mkyk x;k A bu ij eq[; okfi=d vfHk;ark ds gLrk{kj dks xokg us izekf.kr fd;k gS o"kZ 1989 esa ?kksf"kr ofj"Brk lwph esa oknh deZpkjh dk cky flfoYM+] ij dzekad&4 ij gS] loZ Jh thoh jke] Mh0ih0 pVthZ] eks0 guhQ tks flfoYM+ ij dk;Zjr gS dks tkurk gS tks oknh Jfed ls T;s"B gS A okn ls lEcfU/kr deZpkjh fQVj dk dk;Z djrk gS A osfYMax e''khu dk dk;Z og bl le; dj jgk gS A okn ls lacaf/kr Jfed fQVj dk lHkh dk;Z djrk gS A fQVj dk dk;Z vdq''ky in ds deZpkjh;ks dks NksM+dj pkHkh inks ds dEkZpkjh djrs gS A fnukad 13-9-72 rd V�sM+ ds vuqlkj deZpkjh dks inuke fn;k tkrk gS A fnu fnukad 14-9-72 ds vkns''k ds vuqlkj 5 inks dks cuk;k x;k ftlds laca/k esa �13 ch &1� ij isij la0&3 gS A Jfedks dh T;s"Brk lwph xrokj dh tkrh gS A eSdsfudks] twfu;j QksjeSu] lhfu;j QksjeSu ds dk;ksZ es fHkUUkrk gS vkSj izksUufr V�sM+ VsLV ds vk/kkj ij gksrk gS A lR;nso f=ikBh o of''k"B frokjh dks U;k;ky; }kjk Lis''kfyLV xzsM&1 cuk;k x;k Fkk A budh inksUufr vc eSdsfud ds in ij dh x;h gS o"kZ 1992 eas tks ikap in bls mles deZpkjh;ksa ds in ij fQV esaV dSls gqvk xokg crkus es vleFkZ jgk A Jh f''koizlkn ds lkFk okn ls lacaf/kr Jfed dks yxk;k x;k Fkk A f''ko izlkn dfVax o ckbZfM+ax e''khu ds dk;Z djrs Fks mudh vuqifLFkfr esa jkedqekj dk;Z ns[krs Fks A lwph 13 lh �1� dk isij la0 2 dzekad 16 ds chp dzekad 11]12]13]14]15 esa vafdr O;fDr og dk;Z ugh djrs tks f''ko izlkn djrs Fks A xokg ;g ugh crk ldk fd Lis''kfyLV xzsM&1 ds eseks mldh dk;Z''kkyk ds eseksa gS A
8- ;wfu;u ds Jh jkedqekj iq= Jh Qwypan ds }kjk fd;s tk jgs dk;Z ds vuqlkj Lis''kfyLV xzsM&1 ds inuke o osrueku fn;s tkus dh ekax dh gS A lsok;kstd i{k ls ;g dgk x;k gS fd inksUufr lsok;kstd ds dk;Z{ks= dh ckr gS ;g lgh gS ijUrq tc rd fd ;g fl) ugh gks fd inksUufr djus esa lsok;kstd }kjk mfpr U;k; ugh fd;k x;k gS lsok;kstd }kjk gLr{ksi ugh fd;k tk ldrk A oSls ;g ekeyk inksUufr dk ugh gS A ;wfu;u ds dk;Z dh izd`fr ds vuqlkj inuke o osrueku fn;s tkus dk okn mBk;k gS A Jfed i{k ls tks vfHkys[k izLrqr fd;s x;s gS mlds laca/k esa lsok;kstd i{k gS dsoy bruk gh dgk x;k gS fd ;g QthZ gS ijUrq mUgksus blds tkyh gksus dh ckr fl) ugh dh gS A lsok;kstd }kjk vfHkys[k dks QthZ dg nsuk gh dkQh ugh gS vfHkys[kks }kjk Jfed i{k us muds }kjk fd;s tkus okys dk;Z dks fl) fd;k x;k gS vkSj og dgk x;k gS fd og dk;Z Lis''kfyLV xzsM&1 dh Js.kh esa vkrk gS ijUrq lsok;kstd Ik{k }kjk dgh Hkh ;g fl) ugh fd;k x;k fd ;g dk;Z Lis''kfyLV xzsM&1 dk ugh Fkk A lsok;kstd lk{; ls ekuk gS fd lacaf/kr deZpkjh fQVj dk lHkh dk;Z dj jgk gS vkSj orZeku esa og ckbfUMax e''khu dk dk;Z dj jgk gS A lsok;kstdks xokg ftjg es ;g Hkh ugh crk ldk fd o"kZ 1972 esa tks ikap in cps mlesa ls igys ls dk;Z djus okys deZpkjh;ksa dk fQVesaV dSls gqvk A Jfed us vius lk{; esa ;g fl) fd;k gS fd f''ko izlkn Lis''kfyLV xzsM&1 ds in ij dk;Zjr Fkk mlus igys ;g ckbfaUMx e''khu ij dk;Z djrk Fkk vc ogh dk;Z okn ls lacaf/kr Jfed jke dqekj dj jgk gS A lsok;kstd xokg b0MCyw&1 esa ftjg esa ;g dgk gS fd f''ko dqekj dh vuqifLFkfr esa Jh jke dqekj mudk dk;Z ns[krs gS A Jfed i{k }kjk ;g fl) fd;k x;k gS fd ;g ckbfUMax e''khu pykus ,;jdwy cl dk dk;Z o"kZ 1979 cjkfj dj jgk gS A mPp rduhdh dk;Z ds fy, mls bUVj''kki eseks Hkh fn;k tkrk gS A Jfed ls ;g Hkh fl) fd;k gS Jh f''koizlkn ds LoxZokl gks tkus ,oa Tokyk izlkn dh lsok fuo`Rr gks tkus ds dkj.k 2 in Lis''kfyLV xzsM 1 ds fjDr gks x;s gS A bl laca/k esa mlus u rks dksbZ iz''u ik vkSj u gh bl lanHkZ esa lsok;kstd lk{; gh izdk''k Mkyk blds foijhr viuh ftjg esa lsok;kstd lk{; esa dgk gS fd mls ugha ekywe fd Lis''kfyLV xzsM&1 dh Lohd`fr la[;k tks iwjs dk;Z''kkyk ds fy, gS ij fdrus deZpkjh dk;Zjr gS A og ;g Hkh ugh crk ldk fd ftl foHkkx esa ;g dk;Zjr gS A ml foHkkx esa fdrus in Lis''kfyLV xzsM&1 ds fjDr gS A
9- mDr foospuk ls ;g Li"V gks tkrk gS fd izfr"Bku esa Lis''kfyLV xzsM&1 ds in fjDr gS vkSj Jfed ls og dk;Z fy;k tkrk gS tks fd Lis''kfyLV xzsM&1 ds deZpkjh ls fy;k tkrk gS A
10- vr% leLr rF;ksa ,oa ifjfLFkfr;ksa ij fopkjksijkUr eS bl fu"d"kZ ij igqWaprk gWa fd lsok;kstd }kjk lacaf/kr Jfed jke dqekj iq= Jh Qwy pUnz dks blds LokHkkfod dk;Z dh izd`fr ds vuqlkj Lis''kfyLV xzsM&1 dk inuke o osrueku u fd;k tkuk mfpr ,oa oS/kkfud ugh gS A Jfed i{k }kjk oiz 1-7-81 ls Lis''kkfyLV xzsM&1] dk inuke o osrueku dh ekax dh x;h gS ijUrq og ;g Li"V ugh dj lds fd bldk ---- D;k gS A vr% bl okn esa esjk vfHkfu.kZ; gS fd lsok;kstd lacaf/kr Jfed jke dqekj iq= Jh QwypUnz fVdV ua0 11543] dq''ky xzqi&2 f''kQV tujy dks lanHkkZns''k dh frfFk fnukad 13-12-83 ls Lis''kfyLV xzsM&1 dk inuke o osrueku nl vfHkfu.kZ; ds izdk''ku ds 30 ds vanj iznku djs A lsok;kstd Jfed izfrfuf/k dks okn O;; ds :i 100@& :i;k dk Hkqxrku Hkh djsxs A
�Mh-,u- fuxe� ihBklhu vf/kdkjh A
After considering the contentions of Counsel for the parties the Labour Court has held that it is clear that the post of Specialist Grade I is vacant in the establishment of the petitioner and the workman was performing the work on that date. The employers have failed to establish this case or explain as to how fitment was made by them in the fine vacancies of Specialist Grade I. The workman has also not been cross-examined by the employers as to how he was working as Specialist Grade I when according to them there is no vacancy of the post. Hence after considering the facts and circumstances of the case, the Labour Court has rightly recorded a categorical finding of fact that as the workman was performing same work of Special Grade I which was being performed by Shiv Prasad and Jawala Prasad workmen of Specialist Grade I before their death/retirement respectively as such he is entitled to the nomenclature and corresponding pay scale of Specialist Grade I from the date of order of reference dated 13.12.1983. Though promotion is the domain of the employers and it implies grant of higher pay scale or post but as the workman was already discharging work of higher post, hence grant of corresponding pay scale in the circumstances can not be strictly said to be ''promotion''. Even otherwise rather its denial by the employer is arbitrary, malafide and amounts to victimization of the workman in the facts and circumstances of this case.
Learned Counsel for the petitioner has also not been able to show any illegality or infirmity in the reasoning of the Labour Court. Moreover he could not justify the actions of the employers once the interim order was vacated, why the award has not been implemented. It is expected that whenever an order is passed by the Court it is to be complied, with unless it is stayed by the competent Court of law. Otherwise the inaction of a party which has no interim or final order in his favour may sow its malice against the other party.
For all the reasons stated above, I am of the considered opinion that the petition deserves to be dismissed and is accordingly, dismissed. The order of the Labour Court in the circumstances, be complied with by the employer within 30 days from today.
No order as to costs.