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SUPDT.ENGINEER ELECTRICITY versus P.O.AND OTHERS

High Court of Judicature at Allahabad

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Supdt.Engineer Electricity v. P.O.And Others - WRIT - C No. 11967 of 1984 [2005] RD-AH 796 (18 March 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

Hon'ble Mr. Rakesh Tiwari, J.

This writ petition is directed against the impugned award dated 28.2.1984, passed by Labour Court IV, Kanpur in Adjudication Case No. 90 of 1982.   By the impugned award, the Labour court has directed the Superintending Engineer, Electricity Transmission Circle, U.P. State Electricity Board, Kanpur and the Additional Chief Engineer, U.P. State Electricity Board, Allahabad to give the disgnation of Fitter to Sri Bairagi Prasad, -workman and corresponding wages of the post of Fitter from 1.7.1967 less wages already paid to him, within a month of the award becoming enforceable.

The award was enforced by publication on the Notice Board on 28.4.1984 and became enforceable on 27.5.84 after expiry of 30 days, as provided under Section 6-A of the U.P. Industrial Disputes Act, 1947.  At the time of admission, the following interim order was passed :-

"Hon. H.N. Seth, J

 Issue notice.

 I direct that until further orders, the respondents will not take steps to implement the award dated 28th of February, 1984 (Annexure 10 to the writ petition) provided the petitioner deposits with respondent no. 1 the entire amount due to respondent no. 3 under the said award for the period 1st of July 1967 to 31st of December, 1984, within a period of one month from today's date.  The amount so deposited may be permitted to be withdrawn on respondent no. 3's furnishing adequate security to the satisfaction of the Labour Court for the refund thereof, in case the writ petition eventually succeeds.

Dt. 14.12.1984                                                        Sd/- Illigible"

Brief facts of the case are that U.P. State Electricity Board (for short ''UPSEB') is an autonomous body constituted under the provisions of Electricity Supply Act, 1948 for the purposes of distribution, generation and transmission of the electrical energy to the consumers. The workman- respondent no. 3 was employed on temporary basis in the year 1967 in the establishment of S.D.O. (IV), Panki, Kanpur along with several other persons as work charge employee vide letter dated 26.4.1967 for specified period, i.e., w.e.f. 1.4.67 to 30.4.67 on consolidated salary of Rs. 80/- per month.  The appointment was purely temporary and liable to be terminated at any time without notice.  It appears that the appointment of the respondent -workman was extended from time to time for specific periods.  He also worked as Coolie ( work charge) w.e.f. 1.5.68 to 31.5.68.  

A selection test for the post of Petrolman (semi skilled) was held by the petitioner in the pay scale of Rs. 60-80 in which respondent no. 3 also appeared and was declared successful.  Respondent no. 3 joined the post of Petrolman on 1.6.68 in pursuance of appointment letter dated 10.5.68 and continued to work as such.  The pay scale of Postman was revised in the year 1981. The next promotional post from Petrolman is of Lineman. The promotion to the post of Lineman is made on the basis of seniority-cum- merit.

After about 12 years, sometime in 1981 respondent no.3 moved the Additional chief Engineer, UPSEB, Allahabad claiming that he should be appointed as Fitter.  The qualifications for the post of Fitter prescribed by Board's order dated 27.10.67 is High School. Since he did not possess the aforesaid qualifications as he was simply class V pass, his request was not considered.

Aggrieved by non consideration of his demand, the respondent-workman raised an industrial dispute for appointment on the post of Fitter and corresponding pay scale.  As no settlement could be arrived at during the conciliation proceedings, the State Government made the following reference to the Labour Court for adjudication :-

"D;k lsok;kstdks Onkjk vius Jfed oSjkxh izlkn iq= Jh x.ks'k izlkn is0eSu fo/kqr izs"k.k [k.M fOnrh; dkuiqj dks fQVj ds in ,oa rnuqlkj osru fn;k tkuk pkfg, ? ;fn gkW] rks dc ls rFkk vU; fdl fooj.k ds lkFk ?"

The reference was registered as Adjudication Case no. 90/82 in Labour Court IV, Kanpur. A supplementary affidavit has been filed by the petitioner showing the nature of duties of the posts of fitter (Skilled) and Petrolman (Semi-skilled) in the U.P. Power Corporation Limited ( for short ''UPPCL').  It may be mentioned here that the erstwhile UPSEB is currently known as UPPCL. The service rules framed by the erstwhile UPSEB in respect of operating staff is known as ''Operating Staff Service Rules, 1955' dealing with recruitment, qualifications and nature of duties of the Fitters and Petrolman. The age of superannuation of Petrolman is 60 years while that of Fitter is 58 years. On receipt of summons, the parties filed their respective written statements and rejoinder statements.  The parties also filed documentary evidence in support of their cases and  adduced oral evidence. The impugned award was passed by the Labour Court returning the reference in favour of the workman.

 Aggrieved by the directions contained in the award, this writ petition has been filed by the UPSEB on the ground that the Labour Court has allowed the claim of the workman solely on the basis of order dated 4.8.1967 appointing him on the post of Fitter from 1.7.1967 to 30.9.1967.  The award is  assailed on the ground that the Labour Court has committed an error in law in shifting the burden of proof on the employers though it was incumbent upon the workman to have proved his case before the Labour Court. It is urged by the counsel for the petitioner that the Labour Court has utterly failed to take into consideration that the  appointment of the respondent in pursuance of letter dated 4.8.1967 was purely temporary for limited period of three months, which expired on 30.9.1967 and thereafter he had no claim on the aforesaid post nor the Labour Court could have directed appointment of respondent no. 3 beyond 30.9.1967 on the post of fitter as he had thereafter been appointed as Coolie.  It is further urged that the Labour Court has acted beyond jurisdiction in not considering the subsequent appointment order dated 10.5.1968 whereby the workman was appointed in the regular cadre of Petrolman and had accepted the said appointment and continued to work as such after joining on 1.6.1968.  It is lastly submitted that the impugned award is bad and arbitrary as the Labour Court has failed to consider all the documentary evidence placed before it.

Counsel for the respondents submits that the nature of duties of Petrolman and fitter contained in the Operating Staff Service Rules, 1955 is wholly irrelevant as it is the validity of the impugned award, which is under challenge before this court.  It is further submitted that these documents were not submitted along with supplementary affidavit before the Labour Court, as such, the court ought not to look into it while exercising power of judicial review at this stage.  He also submits that the workman has now retired from service on attaining the age of superannuation while he was working on the post of Petrolman.  

Counsel for the petitioner in rebuttal submits that the workman has by concealment of illegally continued in service as Petrolman till he attained the age of 60 years though he ought to have retired after attaining the age of 58 years. Thus, the benefit in terms of the award on the post of fitter having been availed by him after attaining the age of 58 years ought to be balanced by this court in its equity jurisdiction.

From the pleadings of the parties and the record, it is evident that the workman has admitted that he was appointed as fitter on 22.11.1966 for specific period and was engaged thereafter from time to time.  It is also admitted fact that he thereafter worked as coolie w.e.f. 1.5.68 to 31.5.68. Thereafter having appeared in the competitive test and  been selected, joined the post of petrolman w.e.f. 1.6.1968.  The Labour court ignoring the fact that he was working as coolie immediately before being appointed as petrolman held as under :- :-

"        It may be that the employers failed to trace and the workman concerned failed to furnish any proof regarding the appointment of Sri Bairagi Prasad as Fitter from 22.11.66, but Ex. W/13 is a proof that the workman concerned was appointed as Fitter w.e.f. 1.7.67. This appointment also by implication means that the workman concerned has the ''suitability and skill' for the post of Fitter.

     In the light of this finding, I need not further examine the evidence adduced by the four witnesses who entered the witness box on behalf of the workman concerned.  I also need not answer the employers' objection that promotion is a function of management as the promotion so called was an accomplished fact as long back as on 1.7.67.

Order

            I, therefore, direct (1) Superintending Engineer, Electricity Transmission Circle, UPSEB, Kanpur (2) Additional Chief Engineer, U.P.S.E.B. Allahabad to designate Sri Bairagi Prasad s/o Ganesh Prasad, Petrolman, Electricity Transmission Circle (II), Kanpur as Fitter w.e.f. 1.7.67 and to pay him the wages due as Fitter from 1.7.67 less already paid. These arrears should be cleared within a month of the award becoming enforceable.

           Rs. 100/- as costs.

Dated 23.2.1984                                 Sd/- (Radha Ballabh)

                                                                Presiding Officer "

From the perusal of the award it is evident that the Labour Court has failed to consider that the workman was working as coolie before he joined the post of Petrolman in 1968 in regular cadr, hence his appointment as Fitter in 1966 on consolidated wages on work charge basis for specified period had neither any significance nor vested him with any legal right for designation and pay scale of fitter.  The workman had, nowhere denied that he was not appointed as Petrolman on 1.6.1968.  the Labour Court totally misdirected itself and did not examine the documentary evidence filed by the petitioner before the Labour court.  The workman having once joined as Petrolman on 1.6.68 on the regular strength of the establishment and continuously having worked thereafter for about 12 years, cannot turn around and start claiming the post of Fitter and corresponding wages of the said post merely on the ground that he had suitability and skill of fitter.  It may also be noted here that he did not possess the eligibility/qualifications for permanent appointment on the post of fitter. It is evident from the award that the Labour Court has not examined further evidence or the case of the employers and has committed grave illegality and infirmity in holding that promotion of the workman was an accomplished fact as long back as on 1.7.67 completely ignoring the fact that he had worked for only 3 months in a work charged establishment and had joined the permanent strength of the establishment on the post of petrolman w.e.f. 1.6.68 after selection.  If the criteria of granting a post is past working on a post then why not could he be appointed as coolie, i.e. the post on which he was working immediately before his selection on the post of petrolman.  The finding of the Labour court in the facts and circumstances is without rationale, perverse, arbitrary and is liable to be set aside.

For the reasons stated above, and in view of the fact that the workman has retired from the post of petrolman, which according to petitioner was the post from which he ought to have retired, the writ petition is allowed.  The impugned award dated 28.2.1984, passed by Labour Court IV, Kanpur -respondent no.1 is quashed. No orders as to costs.

Dated    

kkb


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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