ORDER
A.K. Shrivastava, J.
1. By this petition under Articles 227 of the Constitution of India, the petitioner is challenging the validity of impugned order Annexure P/1 dated 8.12.2000 passed by Industrial Court bench at Jabalpur in Case No. 99/MPIR/2000/Appeal whereby the order passed by the Labour Court, Jabalpur in case No. 322/96/MPIR dated 23.2.2000 has been affirmed.
2. An application under Section 31(3) of M.P. Industrial Relations, Act, 1960 (hereinafter referred to as the Act) was submitted by the employee ;that vide order dated 6.2.1980 he was appointed on workcharge establishment as Line Attdt. Grade III in the pay scale of Rs. 290-435 plus dearness allowance. Further vide order dated 27.4.1984 he was redesignated as temporary Line Attdt. Gr.II in the pay scale of Rs. 415-560 plus usual allowance. In para 4 of the application Annexure P/3 filed before the Labour Court it has been specifically pleaded by the employee that he was appointed as NMR in 1979 but from the date of initial appointment the work of welder is being taken from him in the Workshop Division. In para 5 of the application it has been pleaded that as per the Board’s Memorandum No. G/II/2506 dated 22.7.1960 the post of Welder is a Class III post and its required qualification is that a candidate should have studied up to matric or at least should possess working knowledge of English for taking don reading and drawing etc. and the candidate must be a good welder with at least 5 years experience both in electrical and gas welding and be capable of carrying on welding job in all positions in a Power Station.
3. It is no more in dispute that a settlement was arrived between the Board and the representative Union in terms of Section 33 of the Act in regard to revision of pay-scale of class III and class IV employees and in pursuance to that settlement order No. 135 dated 3.11.1989 was issued by the Board. The registered agreement has been placed on record as annexure R/3. Clause 4.31 of the settlement reads thus:
Appointment to the post of Testing Assistant Gr.II, Plant Asstt. Gr.II persons having educational qualification of HSSC plus ITI (2 year course) will be considered for appointment to the post of Plant Asstt. Grade II or equivalent post in Generation side. For non-matric ITI & HSSC, working on lower post than that of plant Asstt. Gr.AII minimum years of experience will be prescribed in consultation with Federation.
4. By inviting my attention to annexure R/4 dated 17.11.1989 Shri Pethia, learned Counsel for employee has submitted that Clause 4.31 of the registered settlement which was made applicable to the post of T.A.Gr.II/P.A.Gr.II or equivalent cadre was also made applicable to T & D and Civil Wing.
5. In the application filed under Section 31, 61 and 64-A of the Act following reliefs were prayed by the petitioners:
It is, therefore, prayed that:
This Hon’ble Court be pleased to direct the non-applicants to classify the applicant as Welder with effect from February 1979 and further be pleased to direct the non-applicants to pay difference of wages and assigned seniority on the post of Welder with effect from February, 1979.
ALTERNATIVELY
The applicant prays that the non-applicant may kindly be directed to appoint the applicant on the post of Line Asstt. Gr.II with effect from 1.4.1989 and pay him difference of wages.
Any other orders which this Hon’ble Court deems fit and proper may also be passed.
6. The petitioner refuted averments made in the application by filing written statement before the Labour Court. Copy of the written statement has been placed on record as Annexure P/4. The Labour Court after framing the issues and receding the evidence gave a finding of fact that the employee (respondent No. 3) is entitled for appointment to the post of Line Asstt. Grade II. This finding of fact has been arrived at by marshalling the evidence. The Labour Court on the basis of the evidence of employee as well as on the basis of the evidence of the witnesses of the Board arrived at such finding. One Shri Saxena Executive Engineer was examined by the Board. On going through the order of the Labour Court, it is gathered that in the cross examination this witness has specifically admitted that he cannot say what is the designation of an employee who discharge the work of welding. He has further admitted that the employee serving on the post of Blacksmith, Rigger, Heeler, Moulder they have been designated as Assistant Grade I. This Executive Engineer has further admitted that vide order Ex.D-6 and D-7 the employee serving as workcharge employee were directly appointed as Line Attdt., Grade II. In pursuance to order of the Board Ex.P-4, the employees serving on the post of MMR were directly appointed on the post of workcharge Attdt, Grade II. He has further stated they why despite qualifying the requisite conditions of the order Ex.D-4, the present employee (respondent No. 3) was not appointed on the post of Asstt. Grade II, he cannot say. Ex.D-4 has also been filed here as Annexure P/5 which is an order issued by the Board dated 20.11.1990 which reads thus:
In supersession to this office order No. 01-05/IV/1449 dated 10.2.1987 and in partial modification to this office order No. 01-05/IV/05 dated 9.6.1988 it has been decided that existing employees working as Plant Attendant Gr.II/III and possessing technical/educational qualification of ITI shall be appointed as Plant Assistant Gr.II in case they fulfill the criteria of minimum educational qualification and experience as under:
S. No. Qualification Experience as Plant Attdt. Gr.II/III puttogether (a) xxxxx xxxxx (b) xxxxx xxxxx (c) xxxxx xxxx (d) xxxxx xxxx (e) 8th class + one year ITI course pass Five years experience.
On going through annexure P/5 it is gathered that in supersession to the earlier office order and in partial modification the office order, it was specifically directed and decided that the existing employees serving as Plant Attendant Gr.II/III and possessing technical/educational qualification of ITI shall be appointed as Plant Assistant Gr.II. Since the petitioner is possessing the qualification as envisaged under Clause (e) therefore on the basis of Annexure P/5 the Labour Court after marshalling the evidence of the employee as well as of the Executive Engineer Shri Saxena passed the order directing the Board to appoint employee (respondent No. 3) on the post of Line Attdt. Grade II.
7. Indeed the key of the case as well as pivot document is Annexure P/5 and if the criteria laid down by this document is tested on the anvil of the present factual scenario, it would become luminously clear that the case of petitioner would come in the slot which are fixed by annexure P/5. Indeed, Annexure P/5 has been issued on the basis of registered settlement arrived at between the Representative Union and the Management.
8. Thus, the view of this Court is that the Labour Court did not err in passing the impugned order directing the employee (respondent No. 3) to be appointed on the post of Line Attdt., Grade II. Similarly the Industrial Court did not commit any error in putting the stamp of approval on the finding of the Labour Court. The finding arrived at by the two courts below are pure finding of fact and are based on appreciation of evidence and the document annexure P/5, which has been issued on the basis of registered settlement arrived at under the Act.
9. It has been contended by Shri Nair, learned Counsel for the petitioners that the relief of classification was rejected by the Labour Court and the respondent No. 3 did not assail that part of the order in the Industrial Court by filing any appeal and if that is the position since the application under Section 31, 61 and 64-A of the Act was filed in the year 1996 therefore the same was barred by prescribed period of limitation and in that regard he has invited my attention to Section 62 of the Act. The argument at the first blush appears to be quite effective however on deeper scrutiny is found to be devoid of any substance. The cause of action accrued to the employee (respondent No. 3) was recurring cause of action and if that is the position, the application which was filed by the employee in the year 1996 cannot be dismissed on the ground of limitation. The two courts below did take care of this aspect of the matter and allowed the difference of wages permissible under the period of limitation i.e. it was allowed only for two years from the date of the filing of the application before the Labour Court.
10. For the reasons stated hereinabove, I do not find any merit in this petition and the same is hereby dismissed with costs. Counsel fee Rs. 1000/- if pre-certified.