JUDGMENT
N.L. Ganguly, J.
1. This writ petition is directed against the award of the Labour Court. Gorakhpur dated October 5. 1993 in Adjudication Case No. 124 of 1988. Annexure 9 to the Writ petition. At the initial stage when the petition was filed the standing counsel had accepted notice for respondent No. 1 and Sri Shyam Narain had accepted notice for respondent No. 3. Counter affidavit and rejoinder affidavit have been exchanged between the parlies. The Writ
petition is being decided finally at the admission stage with the consent of the parties.
2. The petitioner. U.P. State Electricity Board, filed this Writ petition with the allegations that the respondent No. 3 was appointed on the post of Beldar on April 16, 1974 by the Board at Gorakhpur. There is no post of condencer attendant at Gorakhpur nor he was ever appointed as
condencer attendant. The respondent No. 3 raised an industrial dispute under Section 4-A of the U.P. Industrial Disputes Act. A reference was made by the state for adjudication to the Labour Court, Gorakhpur as under:
1. Whether the employers are liable to make respondent Sri Chandra Shekhar Tewari permanent on the post of condenser attendant if so, from which date ?
2. Whether the employers are under legal obligation to give payment of salary to the respondent No. 3 and designation for the post of Lineman on which he has been working. If so, from which date with details ?
3. It has been stated that in the earlier Adjudication case No. 101 of 1983 an award was given by the Labour Court on August 18, 1986 and the respondent No. 3 was not given the post and salary of condenser attendant, only the Award giving the arrears of salary for the post of condenser attendant from April 15, 1974 till 1979, the date when the respondent No. 3 was transferred to the Power House Mohaddipur, was given along with Rs. 100/- as costs. On the other dispute raised by the respondent No. 3 in which the question raised as to whether the employer was justified in not regularising the respondent No. 3 on the post of Lineman if yes, then from which date he should be regularised, an award was given which is the subject matter in the present writ petition. The petitioner submitted that in order to encash the previous award dated August 18, 1986 whereby only an order was given for payment of salary for certain period and the workman was not given the post of condenser attendant, the respondent No. 3 moved an application before the Labour Court that since he was working on the post of condenser attendant, he should be regularised. The statement of the respondent No. 3 was recorded before the Labour Court. The counsel for the petitioner submitted that
the respondent No. 3 is not entitled to get salary of the Lineman.
4. The learned counsel for the petitioner, Sri Ranjit Saxena, submitted that under Section 79 of the State Electricity Act, 1948 the Board has power to frame regulations and such regulations supersede any law for the time being in force. It was submitted that according to the regulations framed by the Board the qualification and venue of promotion as specified do not permit the respondent No. 3 to any promotion on the post of Lineman nor he is entitled for such designation or salary thereof. It was submitted that the duties of Beldar, as specifically given in the regulation, are to assist the Lineman. His work is merely to assist the Lineman and he never becomes entitled for promotion to the post of Lineman as the Beldar lacks the essential requisite qualification. The learned counsel for the petitioner placed before the Court Annexures CA-1 and CA-2 filed with the counter-affidavit of respondent No. 3 which are the rules for promotion for the staff of the Board. He submitted that these rules do not confer any legal right on the respondent No. 3 for the designation and emoluments of the Lineman. The learned counsel for the petitioner placed a copy of the statement of the respondent No. 3 and stremeously submitted that a bare reading of the statement of the respondent No. 3 shows that he was never given independent work of Lineman and he was merely assisting the Lineman. The learned counsel for the petitioner submitted that if the statement of the respondent No. 3 and is taken into account, the entire award is rendered illegal and is liable to be quashed. The award of the Labour Court was placed by Sri Saxena before the Court. The perusal of the award shows that the respondent No. 3 has been working as Lineman from 1979. The oral evidence of the respondent No. 3 that he was working as Lineman since March, 1979 and till the date he has been working as Lineman was considered by the Labour Court and the certificate
dated December 1, 1986 given by the S.D.O. Sri G.C, Rai was relied upon, which speaks that the respondent No. 3 has worked on the line and construction of L.T. 11 K.V. and 33 K.V. The Exts. W / 6 to W / 12, which were T.A. bills submitted by the respondent No. 3 were relied upon by the Labour Court. The Labour Court also observed that the respondent No. 3 had done the work of survey also. It is also believed that the work of survey is done by the Lineman. All these documents were appreciated by the Labour Court to arrive at a conclusion that the respondent No. 3 had been working as Lineman. The Labour Court thus recorded a finding after appreciating the oral and documentary evidence that the respondent No. 3 has worked as Lineman and is entitled to get the designation and payment for the post of Lineman with effect from April, 1982 on which date he had completed three years working as Lineman.
5. Learned counsel for the petitioner submitted that the Labour Court was not competent to give promotion to the respondent No. 3 and the direction given by the Labour Court is wholly unwarranted and without jurisdiction. It is only employer, who according to the rules and regulations of the Board, could give the promotion if the workman was entitled to. The argument of the learned counsel for the petitioner was controverted by Sri Shaym Narain, learned counsel for the respondent No. 3, who placed the decision reported in National Textile Corporation, U.P. Kanpur v. Presiding Officer, Labour Court 1, U. P. Kanpur and Ors. 1991 (62) FLR 583 (Alld.).
6. The question whether the Labour Court could grant promotion and the facts and circumstances of the present case require consideration by this court which shows that–it was the adjudication of the fact whether the workman was working on a particular post and was entitled to get emoluments for the post and its designation. The judgment of
the learned Single Judge (Supra) in para 4 relying on the Supreme Court decision is quoted as under :
“The question that remains for consideration is as to whether the Labour Court has in fact granted promotion to the workman. The Labour Court, after considering the evidence of both the parties and facts and circumstances of the case, has accepted the case of the workman to the
effect that he has been acting Travelling Salesman at the instance of the employer (petitioner) since 1981 and on this basis Labour Court has held that it is not a case of promotion but a case of giving designation and of the post
in which the workman has been working for the past several years. The award of the Labour Court appears to be perfectly justified. It is the function of the management to appoint person for a particular post or office and the managerial
function of the management was performed at the time when the workman was asked to work and act as a Travelling Salesman. The management has itself permitted the workman, as per the finding recorded by the Labour Court,
to act as a Travelling Salesman and that was nothing but a promotion / appointment by the Management without giving designation and pay Managerial function being over already what the Labour Court has done is nothing except giving
designation and pay of the post of which he was discharging duties and performing functions.
This cannot be said to be case of promotion.
In this connection reference may also be made to
para 12 of the decision of Hon’ble Supreme Court in
the case of the Workmen v. Hindustan Lever (supra),
relevant extract of which is quoted below :
“Even on the footing of law, as it stands at
present in this country, that promotion is a
management function, the industrial dispute
referred to the Tribunal was not one for claiming
promotion. The Tribunal committed a grave error in so misinterpreting the dispute referred to it. The Tribunal over-looked the fact that the demand was in respect of workman already promoted i.e. in respect of whom managerial function of selecting personnel for promotion has been already performed. The demand was in respect of already promoted workmen, may be in an officiating capacity for their classification from acting of temporary to confirmed that is permanent, in the Higher grade to which they were promoted, after a reasonable period of service which according to the Union may be three months of service. By no cannon of construction, this demand could be said to be one for promotion”.
7. In view of the law stated above and examination of the facts and circumstances of the
case I am of the view that in the present case the Labour Court has not given a promotion to the respondent No. 3 but only granted what the workman was entitled to which was due to him i.e. the designation and pay of the post on which he had been working for the last several years.
8. The attempt of the learned counsel for the petitioner to pursuade the Court to appreciate the
evidence and arrive at a different conclusion would be wholly outside the scope of this Court under Article 226 of the Constitution. The findings of fact recorded by the Labour Court are the questions of facts and decision thereon, which is not open to be
reappreciated. I do not find any just cause, circumstance or legal infirmity in the award of the Labour Court impugned in this petition.
The writ petition is dismissed with costs.
