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U.P. POWER CORPORATION LTD. & ANOTHER versus GOKUL PRASAD UPADHYAY & OTHERS

High Court of Judicature at Allahabad

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U.P. Power Corporation Ltd. & Another v. Gokul Prasad Upadhyay & Others - WRIT - C No. 19787 of 2003 [2005] RD-AH 1765 (26 July 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

                                                                                            Reserved on 13.7.2005

                                                                                             Ready on 18.7.2005

                                                                                            Delivered on 26.7.2005

                  Civil Misc. Writ Petition No. 19787 of 2003

U.P. Power Corporation Limited 14 Ashok Marg, Shakti Bhavan,Lucknow through the Executive Engineer Electricity Store Division Gorakhpur  and another.

                                                                                                        ...Petitioner

                                                        Versus                                                    

Gokul Prasad Upadhyaya and another.                                        .. Respondents

Counsel for the petitioners:- Sri Arvind Kumar, Advocate

Counsel for the respondents:- Sri Shyam Narain and Sri Sudhanshu Narain,Advocates

Hon'ble Rakesh Tiwari,J.

Heard counsel for the parties and perused the record.

This writ petition has been filed by U.P. Power Corporation Limited, Lucknow through the Executive Engineer Electricity Store Division Gorakhpur challenging the validity and correctness of the award dated 17.4.2002 passed by the labour court, Gorakhpur in Adjudication Case No. 11 of 1992.

By the impugned award, the labour court after considering the evidence on record answered the reference in favour of the workman and has given a finding of fact that from the post of Junior Engineer his reversion is illegal and unjustified. The Labour Court further directed that he shall be given all benefits and pay of the post of Junior Engineer w.e.f. 11.4.90 and also imposed cost of Rs. 200/- on the employers.

BACKGROUND.

The backdrop of the case is that the petitioner company is engaged in production and distribution/ supply of electricity which was being done by the erstwhile U.P. State Electricity Board (UPSEB). The UPSEB ceased to exist after U.P. State Electricity Board Reforms Transfer Scheme 2000 was notified vide notification no. 149/P-1/2000-24 Lucknow on 14th January, 2000.

Respondent no.1, Gokul Prasad Upadhyaya, the workman concerned was initially appointed as Waterman (Seasonal) w.e.f. 22.5.1963 in the petitioner establishment. With the passage of time he was promoted to the post of Peon then as Assistant Store Keeper and thereafter to the post of Store Keeper w.e.f. 6.11.73.

It appears that the erstwhile U.P. State Electricity Board issued a circular dated 1st October, 1980 in partial modification of office order no. 4184-NG/ Ra.V.Pa-4-402/63 dated 18.9.1979 read with office order dated 626 NG/ Ra.V. Pa dated 17.3.80   that the employees holding the post of Assistant Supervisor shall be promoted to the post of J.E. (O.G.) on the basis of screening only. That in the screening the ACRs/ work capability report etc. would be considered. The G.O. has been appended as Annexure-1 to the writ petition which is as under:-

^^ mRrj izns'k jkT; fo|qr ifj�?n] 'kfDr Hkou] 14] v'kksd ekxZ] y[ku�?

           la[;k& 5720 dkfeZd ¼9½ jk0fo0&80 fnukad vDVwcj 1] 1980

                                 dk;kZy; Kkiu

              dk;kZy; Kki la[;k 4184&,u0th0@ jk0 fo0 i0&4&402@63 fnukad 18-9-79 lifBr dk;kZy; Kki la[;k& 626 ,u0 th0@jk0 fo0i0 fnukad 17&3&80 esa fn;s x;s funsZ'kksa esa vkaf'kd la'kks/ku djrs gq, ifj�?n] lg�?Z vkns'k djrs gS fd &

    1& ifj�?n] esa dk;Zjr lHkh lgk;d Ik;Zos{kdksa dks fcuk fyf[kr ijh{kk ds dsoy Ldzhfuax ds vk/kkj ij voj vfHk;Urk ¼lkekU; Js.kh ½ ds in ij izksUufr fd;k tk;saxk A  Ldzhfuax esa lgk;d Ik;Zos{kdksa dh pfj= iaftdk@ dk;Z {kerk fjiksZV vkfn dk Hkh Hkyh HkkWfr v/;;u fd;k tk;xk A

    2& Ldzhfuax ds Ik'pkr ftrus lgk;d Ik;Zos{kdksa voj vfHk;Urk ¼lkekU; Js.kh ½ ds in ij izksUufr fd;s tk;sxsa mrus gh lgk;d Ik;Zos{kd ds in voj vfHk;Urk ¼lkekU; Js.kh½  ds inksa esa ifjofrZr dj fn;s tk;sxsa rFkk mrus gh lgk;d Ik;Zos{kdksa ds in lekIr le>s tk;sxsa A

     3& tks lgk;d Ik;Zos{kd mijksDr Ldzhfuax esa lQy ugha gksrs mudh izR;sd o�?Z Ik'pkr iqu% Ldzhfuax dh tk;sxh A tc rd os voj vfHk;Urk ¼lkekU; Js.kh ½ ds in ij fu;qDr ugha gks tkrs A lQy Ik;Zos{kdksa dh ofj"Brk muds voj vfHk;Urk in ij dk;ZHkkj lEHkkyus dh frfFk ls tksM+h tk;sxh A

                                              f=yksd pUnz vxzoky

                                                            lfpo**

       From perusal of the aforesaid G.O.  it appears that the post of Assistant Supervisor was a dying cadre post.

In response to the aforesaid circular dated 1st October, 1980 the respondent workman applied for promotion to the post of J.E. (O.G.). The Executive Engineer, Gorakhpur forwarded the application of the respondent workman vide letter no. 2414/82 interalia that it has been verified from the records that the details given by the workman are correct. The report about his work and conduct was also attached along with the aforesaid letter. For ready reference letter dated 26.6.89 is as under:-

                    ^^ dk;kZy; dk uke & fo|qr HkaMkj [k.M] xksj[kiqj

                            iwjk uke& xksdqy izlkn mik/;k;

                 i= la[;k&                      fnukad  26&6&89

         mijksDr izkFkZuk i= tks bl dk;kZy; esa fnukad 26&6&89 dks vH;FkhZ n~okjk fn;k x;k Fkk dks vfxze dk;Zokgh gsrq bl fVIi.kh ds lkFk izsf"kr fd;k gS fd tSlk fd lsok vfHkys[kksa n~okjk lR;kfir fd;k x;k gS izkFkhZ n~okjk fn;s x;s mijksDr fooj.k lghs gS A mlds dk;Z ds ckjs esa dksS'ky vk[;k Hkh layXu gS A

layXud& mijksDrkuqlkj                                      g0 vifBr

                                                   ¼ vf/k'kklh vfHk;Urk ½

                                                        xksj[kiqj**

After due process the workman was promoted to the post of J.E. (O.G.) vide order dated 29th March, 1990 and was appointed to work in the office of C.E. (MM), Lucknow on purely temporary basis which thereafter withdrawn vide order dated 19th April, 1990 passed by the Chief Engineer ( Hydel) and he was consequently reverted.

Aggrieved by his reversion the workman raised an industrial dispute. On conciliation proceedings having failed the dispute regarding reversion of the workman was referred to the Labour court, Gorakhpur in the following terms.

             ^^ D;k lsok;kstdks n~okjk vius  Jfed xksdqy izlkn mik/;k; iq+= Jh jkecyh mik/;k; dks vkns'k fnukad 19-4-90 n~okjk voj vfHk;zark ds in ls izR;kofrZr fd;k tkuk vuqfpr ,oa voS/kkfud gS\ ;fn gkW rks lacf/kr Jfed D;k fgrykHk@mile ikus dk vf/kdkjh gS rFkk fdl vU; fooj.k lfgr\**

The reference was registered as Adjudication Case No. 11 of 1992 in labour court, Gorakhpur. On receipt of summons the parties filed their written statements and rejoinder statements.

In the written statement filed before the labour court the only case of the petitioners that the name of Gokul Prasad Upadhyaya was recommended by mistake for promotion to the post of J.E. (O.G.) along with eligible employees and when this mistake came to the notice of the petitioners order of promotion was withdrawn by the Executive Engineer (HYDEL) vide order dated 19.4.1990. It was prayed that in the aforesaid circumstances the workman was not entitled to be promoted to the post of J.E. (O.G.) nor for any benefit for the said post.

The case of the workman before the labour court was that he was initially appointed on the post of Waterman. He was appointed as Assistant Store Keeper w.e.f. 3.12.63 after selection and since then he is continuously working in the petitioners' establishment. It was also averred that the workman appeared in the examination for the post of Assistant Supervisor and was selected/ appointed to the post of Town Incharge along with Gopal Krishna Gupta.  It was averred in the written statement that his selection as Town In charge was in accordance with Recruitment Rules but he was not allowed to work on the ground that there was no vacancy, though Sri Gopal Krishna Gupta who was lower to him in the merit list was given charge of Town In charge and he is still working as J.E. in the petitioners establishment; that the petitioner though higher in merit, has been illegally deprived of the promotion which is discriminatory and against the principles of natural justice and amounts to unfair labour practice. It was also averred that the workman represented the matter and ultimately orders were passed on 29.3.90 for promoting him as J.E. in pursuance thereof he joined the post on 11.6.92 but was thereafter reverted on 19.4.92.

It was lastly the case of the workman that reversion is punishment and without affording him any opportunity before reverting him is against the principles of natural justice and against law; that order of reversion is due to vengeance against the rules and amount to unfair labour practice by the employers. He prays that in the circumstances the order dated 11.4.90 of reversion be quashed and the employers be directed to pay him the salary and arrears treating him to Junior Engineer w.e.f. 11.4.90.

In the rejoinder statement filed by the petitioner it is stated that though the workman had passed the examination for selection as Assistant Supervisor held by the department along with Sri Gokul Krishna Gupta and was in higher merit than him but after appointment he had not joined the post of Town In charge whereas Sri Gopal Krishna Gupta had joined the aforesaid post of Town In charge, hence the workman was not eligible for the benefits of office memorandum dated 1st October, 1980.

The workman has also denied the claim of the department and has stated that he was higher in merit than Sri Gopal Krishna Gupta and at the relevant time the post of Assistant Supervisor had not been declared as Dying cadre and even after being declared dying cadre many employees have been given promotion as Assistant Supervisor thereafter such as Sri Gopal Krishna Gupta. He was deliberately neither relieved by the employers nor his ACrs etc. were sent to the authorities for his joining to the post of Town In charge. In the circumstances he was prevented by the employers in a guileful manner to work on the post of Assistant Supervisor thus victimizing the workman concerned.

CONTENTIONS

The counsel for the petitioners relying upon the office memorandum dated 1st October, 1980 (Annexure-1 to the writ petition) and the application of the workman for promotion to the post of J.E.(O.G.) submits that no where in the application the respondent workman has stated that he has ever worked on the post of Assistant Supervisor as such he was not  eligible  for the post  but was  given promotion  by mistake. He further submits that when the department realized the mistake it was rectified and the workman was reverted back to his original post of Store Keeper vide order dated 19.4.90 after cancelling the promotion order of the respondent workman.

Rebutting the argument of the counsel for the petitioner Sri Shyam Narain, the counsel appearing for the respondents workman has relied upon the office memorandum dated 3rd October, 1966 which shows that "consequent upon the selection in the test held on 9th to 11th July, 1966 by Selection Committee no.1 of this Circle, the persons mentioned therein were temporarily appointed and posted in the Divisions in the time scale of pay noted against each with effect from their date of joining. Sri Ashok Kumar, Sri Gokul Prasad Upadhyaya , Sri Ghulan Singh and Sri Gopal Krishna Gupta  are  shown to have been selected for the post of Assistant Supervisor in the pay scale of Rs. 85-5-120-EB-8-200. Their division of posting has also been given in column no.4 of the aforesaid office memorandum. One of the conditions of the aforesaid office memorandum was that the other terms and conditions shall be as applicable to similar employees of the U.P. State Electricity Board and the appointment as Town In charge is subject to their giving an unconditional undertaking to accept the lower scale of pay of Assistant Supervisor till revised by the Board. The relevant extract of which is as under:-

   

 " U.P. State Electrcity Board  Hydel Circle ,Gorakhpur

                      No.-H(G) C-2                                      Dated October 3, 1966.

                                              OFFICE MEMORANDUM

        Consequent upon their selection in the test held on 9th to 11th July, 1966 by Selection Committee No.1 of this Circle, the following candidates are hereby temporarily appointed and posted in the divisions in the time scale of pay noted against each with effect from their date of joining.

Name of candidates & address For the post of Scale of pay Division in which     posted.

- - - - - - --- ----------------- Rs.85-5-120-EB-8-200

------------- ------------------- -------------------- --------------------

-------------- ------------------ -------------------- --------------------

-------------- ------------------- -------------------- ---------------------

--------------- -------------------- -------------------- --------------------

---------------- --------------------- --------------------- ---------------------

---------------- -------------------- --------------------- -----------------------

--------------- -------------------- -------------------- ---------------------

Sri Gokul Prasad Upadhyaya - - Hydel Test Division, Gorakhpur Assistant Supervisor Rs.85-5-120-EB-8-200 Hydel Division Gorakhpur in place of Sri Madan Mohan Srivastava promoted as L.T.

Sri Ghulan Singh, Hydel Division Gorakhpur, Azamgarh --do--- -- do--- Hydel Division Basti against existing vacancy

Sri Gopal  Krishna Gupta, O/w Sri I.S. Gupta,Baleshwar Ghat, Ballia ---do--- ---do--- Hydel Division Basti against existing vacancy

- - - - - -- - - - - - - - - - - - - - - - - -  --------- - - - - - - - - - - -- - - -- - - - - - - - -- - - -- - -- - -------------------------------- - - -  - - - - - - - - - - - - - - - - - - -

The above appointments are purely temporary and their services may be terminated at any time without notice and subject to the terms and conditions.

- - - -------------- -- -- - - - - - - - --  - - - - - - - - -- - - - - - - - --   - - - - - -- - - -- -- - - - - - - - - - - - - - - - - - - - - - - -   - - - - - - - -

The other terms and conditions shall be applicable as applicable to similar employees of the U.P. State Electricity Board.

The appointment as Town In charge is subject to their giving an unconditional undertaking to accept the lower scale of pay of Asstt. Supervisors till revised by the Board.

                                Sd/-(V.D.Seth)                                                                                                   SUPERINTENDING ENGINEER"

The whole controversy depends upon the fact whether workman Sri Gokul Prasad Upadhyaya was prevented from joining the post of Town In charge deliberately or he himself did not join the post.

It appears from Annexure-CA-2 to the counter affidavit that Sri Gopal Krishna Gupta who also had appeared along with the workman for selection as Assistant Supervisor and was lower in merit to Gokul Prasad Upadhyaya, had made a representation to the Chief Engineer U.P.S.E.B. Lucknow to be treated as Assistant Supervisor instead of Town Area In charge in the pay scale Rs. 85-200. His representation along with the case of Gokul Prasad Upadhyaya and others were considered at the Board level and it was decided to treat them as Assistant Supervisor. A communication in this regard was made by the Deputy Secretary to the Chief Engineer (Hydel) UPSEB,Lucknow.  It is evident from  perusal of letter dated 2.8.85 of Deputy Secretary that the case of S/Sri Gokul Prasad Upadhyaya, Gulan Singh and Ashok Kumar Town Area In charge was also directed to be decided on the same analogy as that of Gopal Krishna Gupta. The relevant extract of the letter is as under:-

"    The representation of Sri G.K. Gupta has been examined in great details at Board's level and decided that Sri Gopal Krishna Gupta be treated as Assistant Supervisor instead of Town In charge with effect from the date he joined in the pay scale of Rs. 85-200 which was the pay scale of Assistant Supervisor.

   The cases of S/ Sri Gokul Prasad Upadhyaya, Gulan Singh and Ashok Kumar,Town  In charge may also be decided on the same analogy.

    Necessary action in the matter may kindly be taken accordingly.

                                                                         Yours faithfully

                                                                                    Sd/ D.C. Tiwari

                                                                                     (D.C. Tiwari )

                                                                                     Deputy Secretary"

From Annexure-CA-4 letter No. 2083 K-IX-A/SEB/85  dated 2nd December, 1985 issued by the Chief Engineer, Hydel U.P.S.E.B., Lucknow it appears that the matter of absorption to the post of J.E. (O.G.) was pending as the A.C.Rs. of Assistant Supervisors working under the control of Superintending Engineer including that of respondent workman had  not been sent. The relevant portion of the letter is as under:-

                    "The matter of absorption of Assistant Supervisors to the post of Junior Engineer (OG) is lingering on since last five years for want of Annual Confidential Reports. You have been requested several times to send the ACRs of Assistant Supervisors working under your control but Annual Confidential Reports and others particulars of Assistant Supervisors mentioned in the list have not been received from you as yet."

Along with the aforesaid letter for Gorakhpur Zone the names of Gopal Krishna Gupta, Gokul Prasad Upadhyaya, Ashok Kumar and Gullan Singh were mentioned whose ACRs had not been sent.

 

It appears from Annexure-CA-5 that the relevant papers relating to the respondent Gokul Prasad Upadhyaya, Store Keeper were alleged to have been sent to the Chief Engineer by the Superintending Engineer, U.P.S.E.B. Lucknow under covering letter dated 3.7.86 but were not received in the office of the Chief Engineer. The U.P. State Electricity Board again by letter dated 11th March, 1987 expressed  anguish with this state of affairs as the matter of absorption of Assistant Supervisor to the post of J.E.  (O.G.) was lingering on for the last 7 years due to non-supply of particulars of Assistant Supervisors.  The name of Sri Gokul Prasad Upadhyaya is again given in the list whose papers had not been sent.  The relevant portion of the letter dated 11.3.87 is as under:-

               "It has been brought to my notice that the matter of absorption of Assistant Supervisors to the post of Junior Engineer (O.G.) could not be decided as yet only for want of their annual confidential reports and other particulars for the last six to seven years although more than a dozen reminders have been issued by the Chief Engineer ( Hydel) to you as well as to your Superintending Engineer.

      I am pained to see such state of affairs which certainly shows the lack of interest on your part while it was clearly mentioned by Chief Engineer (Hydel) in his D.O. No. 5125-8-II/78- 15 Misc.  (133 old), dated Dec 2, 1985 that if Annual Confidential Reports of the concerning Assistant Supervisors are not readily available, a special report about their work and conduct may be obtained from the concerned officers clearly indicating whether the Assistant Supervisor is fit for promotion or not. The details of Disciplinary Proceeding/Vigilance enquiry if any pending against him should also be indicated on the prescribed proforma for special performance report already sent to you."

Thereafter vide letter dated 7.10.1988 the relevant ACRs in respect of the workman were sent by the Superintending Engineer to the Chief Engineer, Hydel. In this background the workman was relieved for training by letter dated 10th April, 1990.  By letter dated 28.2.90 the Secretary Electricity Service Commission, U.P. Electricity Board approved the name of the respondent workman for promotion to the post of Junior Engineer ( O.G.) in its meeting held on 22.2.90. A perusal of this letter also shows that the post of Store Keeper is equivalent to that of Assistant Supervisor.    

 It is evident that the petitioner Corporation had not relieved the respondent workman to join his duties on the post of Town In charge on the ground that there was no vacancy  even though he was higher in merit than Sri Gopal Krishna Gupta in the examination conducted by the department on 9.6.66 who was allowed to join.  It is also evident that inspite of repeated reminders neither the workman was relieved nor his ACRs were sent for his joining to the post of Town In Charge. The authorities concerned have shown their anguish on the pathetic working of the department and a number of persons along with the workman were deliberately deprived from working on their rightful post even after selection on the false ground that there is no vacancy whereas juniors to him were promoted.  The petitioners have utterly and miserably failed to establish before the labour court as well as before this Court that the promotion of Sri Gokul Prasad Upadhyaya on the post of J.E. (O.G.) was by mistake. It is crystal clear that he was selected as Town In charge and at that time he was working as Assistant Store Keeper, which was a post not carrying less pay scale than the post of Assistant Supervisor as is evident from office memorandum dated October 3, 1966 wherein their appointment as Town In charge was subject to giving their unconditional undertaking to accept the lower pay of Assistant Supervisor.

Inspite of clear-cut directions that the cases of Gokul Prasad Upadhaya, Ashok Kumar and Gulan Singh etc. who were similarly situated as Gopal Krishna Gupta be also decided on the basis of decision taken on the representation of Sri Gopal Krishna Gupta treating them to be Assistant Supervisor. No action was taken which appears to be deliberate and malafide. The contention of the counsel for the petitioners that the respondent workman was never promoted to the post of Town In charge/Assistant Supervisor is not correct and is belied from the record.  It is evident that the respondent workman had been prevented from discharging his duties as Town In charge as he was neither relieved from the post of Assistant Store Keeper nor his  relevant papers were deliberately sent for a number of years depriving him of his rightful claim to the post. The labour court has given a finding of fact that reversion of the respondent workman was illegal and unjustified as he is entitled to the pay and benefits of the said post of J.E. (O.G.).  There is no illegality or infirmity in the impugned award. The reversion of the respondent workman has been found to be illegal and unjustified by the Labour Court and these findings of facts do not require any interference by this Court under Article 226 of the Constitution of India. The conclusion arrived at by the Labour Court after appreciation of evidence on record.

For the reasons stated above, the writ petition fails and is dismissed.

No order as to cost.

Dated 26.7.2005

CPP/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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