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U.P.S.E.B. v. Presiding Officer, Labour Court, Kanpur & Another - WRIT - C No. - 16090 of 1999 [2007] RD-AH 17821 (14 November 2007)

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Court no. 23

Civil Misc. Writ Petition No. 16090 of 1999

U.P. Rajya Vidyut Utpadan Nigam Ltd. ...Petitioner


The Presiding Officer,Labour Court(4), U.P.

Kanpur and another. ...Respondents

Hon'ble Rakesh Tiwari,J.

Heard counsel for the parties and perused the record.

Respondent workman Ram Narain son of Mewa Lal was working on the post Lab Attendant in Vidyut Parishad Inter College, Panki,Kanpur since 1949. The workman belongs to Scheduled Caste Candidate i.e. Dhobi.

It appears that the petitioner was initially known as U.P. State Electricity Board for short (UPSEB) and in view of the U.P. Electricity Reforms Act, 1999 a New Company known as U.P. Rajya Vidyut Utpadan Nigam Ltd. has now been constituted under the Company Act. It has been substituted as party to the petition vide order dated 2.9.2004 in place of U.P. State Electricity Board, as U.P. Rajya Vidyut Utpadan Nigam Ltd.

It also appears that a notice was issued by the Executive Engineer, Headquarter, UPSEB at the relevant time calling for application from the eligible candidates for promotion to the post of Lab Assistants in the Corporation.

The workman who as was working in a School being managed and controlled by the Corporation applied for the post of Lab Assistant in the Power Corporation but was not promoted on the ground that there is no post of Lab Assistant in the Vidyut Parishad Inter College, Panki, Kanpur.

The case of the petitioner before the Labour Court was that there was no post of Lab Assistant in the said College and the respondent workman was working as Lab Attendant in the said College, hence his claim on the said post in the Power House is not maintainable. It is stated that there was even no evidence before the Labour Court that there was functional integrity between the two establishments and nature of work of Lab Assistant recruitment process, qualification etc. in the said two establishments was same evidence about availability of post of Lab Assistant, hence respondent workman could not claim promotion as a matter of right.

It further appears that the workman raised following matter of dispute, which was referred by the State Government to the Labour Court, U.P. Kanpur.

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The reference was registered as Adjudication Case No. 201 of 1996. On receipt of summons, the parties filed their respective written statements as well as their rejoinder statements.

The Labour Court by its award dated 31.10.98 granted promotion to respondent no.2 workman on the post of Lab Assistant with effect from 4.5.91 in Power House Panki. It further directed that as posts of Lab Assistants were available in the Power House and no person from the reserved category having been promoted on the said post, the petitioner being a Scheduled Caste candidate be appointed as Lab Assistant there.

The counsel for the petitioner assails the award on the ground that he was appointed in the Rajya Vidyut Parishad Inter College,Panki, Kanpur which is a separate establishment from Panki Power House; that where there is no post of Lab Assistant sanctioned in the Inter College on which the workman could be promoted. It is stated that since he was not an employee in Panki Power House the Labour Court has committed an illegality in directing the employer to promote the workman concerned as Lab Assistant there.

It is submitted that merely because the petitioner has applied against the said post in Panki Thermal Power Station, he could not be appointed by promotion there from the Inter College as a departmental candidate the two being separate and distinct establishments may be of the same employer.

It is stated that the Presiding Officer, Labour Court, U.P. Kanpur has failed to appreciate that the number of examples given by respondent no.2 were either appointed in the dying in harness rules or were appointed on the post of the sweeper or peon and thus, in any case, there is no comparison of the cases given by respondent no.2.

It is submitted that the Labour Court has already given an award in Adjudication Case No. 118 of 1988 directing the employers to consider the promotion of the workman as such a second reference for same relief in Adjudication Case No. 201 of 1996 ought not to have been referred by the State Government, hence the award passed in Adjudication Case No. 201 of 1996 is therefore, barred by principle of rejudicata and estoppel.

The counsel for the respondent workman submits that the workman belongs to Scheduled Caste category and has passed Intermediate Examination in Second Division having secured 56.2 percent marks total marks and 61 percent marks in Chemistry subject; that essential qualifications desired by the petitioner for promotion to the post of Lab Assistant is Inter pass with at least 50% in aggregate and at least 50% in chemistry; that pursuant to the notification no. 453 dated 21.5.1990 respondent no.2 had submitted his application form through proper channel on 28.5.1990 and also appeared in the Interview held for the post. It is stated that in the interview the workman had also shown his original mark-sheet of having passed Intermediate Examination in the science stream, however, inspite of being declared successful in the said interview he has been denied promotion on the ground as industrial dispute in Adjudication Case No. 118 of 1988 was pending. This dispute however, has subsequently been answered by the Labour Court in favour of the workman by award dated 30.3.1992. Consequently one post of Lab Assistant reserved for Scheduled caste has been kept vacant by the Superintending Engineer in pursuance thereof in the Panki Thermal Power House.

He also submits that by exhibit W/4 the workman had established before the Labour Court that a post reserved for the Scheduled Caste is vacant in the Power Station at Panki Kanpur for which he was fully qualified but has been denied promotion merely on the ground of pendency of the dispute i.e. Adjudication Case No. 118 of 1958 that has been decided since then. However, even after the award rendered by the Labour Court on 30.3.1992 in the aforesaid adjudication case the workman has not been promoted by the petitioner, which is discrimination. It is malafide, arbitrary and colourable exercise of powers.

At the time of admission the following interim order was passed on 20.11.99.

" Heard Sri Ranjeet Saxena learned counsel for the petitioner and Sri S.C. Shukla appearing on behalf of respondents.

Let counter affidavit be filed on behalf of respondent no.2 within six weeks.

List thereafter.

In the mean time, the operation of the award dated 29.1.99 shall remain stayed provided the petitioner deposit the difference of amount payable to the petitioner under the award within 40 days from today with respondent no.1. If the amount is so deposited within the time allowed, it shall be invested in a fixed term deposit of some Nationalized Bank so that it may earn interest. This deposit shall be held subject to the ultimate decision of the present writ petition. In the event of failure of the petitioner to deposit the amount aforesaid within the time allowed, this stay order shall stand discharged ipsofacto and the amount shall become recoverable all alone."

Pursuant to the order dated 20.11.99 the workman has been paid difference of wages for the post of Lab Assistant from 4.5.1991 to 30.4.1999; that M/s Raj Kumar and Mohd. Khalil have been promoted on the post of Noter and Drafter during the pendency of the dispute before the Labour Court whereas respondent no.2 has not been promoted even after the decision of the said dispute which is discriminatory, malafide and arbitrary.

The documentary evidence goes to show that the Panki Thermal Power Station, Kanpur and the Vidyut Parishad Intermediate College, Panki, Kanpur are two establishments of the same employer, managed and controlled by the U.P. State Electricity Board. There is direct evidence of promotion inter transfers and appointments between the employees of the two establishments of the employer i.e. the Panki Power Station, Kanpur and the Intermediate College.

It is not in dispute that Adjudication Case No.118 of 1986 has been made by the Labour Court in favour of the workman directing him to be promoted to the post of Lab Assistant, hence the award of the Labour Court directing promotion to the post of Lab Assistant in Adjudication Case No. 201 of 1996 was stayed by this Court. It is also not disputed by the parties that the two establishments of the employers are separate but it is established from records that there is inter transfer, appointments of employees in the establishment i.e. Inter College to Panki Power House and vice versa. It is also established from records that the workman concerned was permitted to appear as a departmental candidate in the interview for the post of Lab Assistant in Panki Power House and was declared successful but was not allowed to join the post there only on ground of pendency of adjudication proceedings before the Labour Court which has been decided in his favour prior to Adjudication CaseNo.201of 1996 for promotion to the post of Lab Assistant. There appears to be a direct functional integrity and nexus between the two establishments of the employers though they are registered separately. The Labour Court has also given a finding of fact in this regard by discussing the transfer and appointment as well as evidence of the employees from one establishment to the others in this regard, hence this petition was liable to have been dismissed.

However, accepting the plea of the employers that the award in Adjudication Case No. 201 of 1996 is barred by principles of resjudicata on the face of it as the matter of promotion has already been decided in Adjudication Case No. 118 of 1988 between the parties and also considering the fact that the employers have kept one post of reserved category vacant in Panki Power House for the petitioner and have deposited the difference of salary in terms of order dated 20.11.99 in the writ petition. This petition is allowed merely on ground of resjudicata as pleaded by the petitioner.

It is however, directed that in the facts and circumstances the petitioner will appoint the petitioner in the Panki Power Station, Kanpur with all consequential benefits of the said post pursuant to award in Adjudication Case No. 118 of 1988 within a period of one month from today which according to the petitioner has not been challenged and has become final. The difference in wages deposited by the petitioner in terms of order dated 20.11.99 shall be paid to the workman concerned accordingly.

No order as to cost.

Dated 14.11.2007



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