NAGAR MAHAPALIKA GORAKHPUR Vs. LABOUR COURT GORAKHPUR

JUDGEMENT

(1.) D. K. Seth J The award dated 28-11-1987 passed in Adjudication case No 172 of 1986 by the Labour Court Gorakbpur is under challenge in Represent writ petition. Mr. B. D. Mandhyan, learned counsel for the petitioner contends that the Labour Court had come to a perverse finding on the basis of the material on record to the effect that the workman was performing the duty of pump Supervisor.

(2.) HE contended that the Labour Court had no jurisdiction to direct reinstatement of the workman in the post of pump Supervisor in the absence of any post of pump supervisor. According to him the Labour Court does not have jurisdiction to direct the Government to create post. HE relies on several judgments with regard to his contention which will be dealt with at a later stage in appropriate manner. 3 The leaned counsel for the respondent on the other hand con tends that the finding that the workman was performing the job of pump Supervisor is a finding of fact with which writ court ordinarily is very slow interfering. Therefore, this court should not interfere with the said finding of fact. According to him Labour Court is empowered to direct creation of post while adjudicating an industrial dispute. Therefore, the decision cited by Mr. Mandyan at the bar in support of his contention that the court cannot direct creation of post does not apply. According to him creation of post is ancillary direction flowing from the award itself. The Court therefore can direct creation of post. 4 I have heard Mr. Mandhyan for the petitioner, Mr. Shyam Narain for the respondent and Mr. Huda Standing counsel for the state. 5 I have also perused the English translation of the award furnished by the counsel for the petitioner. A reading of the said award indicates that the Labour Court had discussed the material placed before it. On the basis of the materials after scrutinizing the same, the Labour Court has come to a finding particularly on the basis of the record of the petitioner itself that the workman was discharging the function and duties of a pump supervisor It was under his supervision, the pump operators were working Various instructions were issued to him from time to time addressing him as pump Supervisor by the petitioner itself which were also endorsed by the workman. It is also found that the petitioner has re commended appointment of the workman in the post of pump Supervisor for which they had made requisition to the State Government for creation of the post The said facts could not be disputed in the course of hearing by Mr. Mandhyan. Therefore on the face of the reasons given in the award itself it is hardly possible to say that there was any kind of perver sity in the said reasoning. After having gone through the English translation of the award I have been unable to persuade myself to agree with the submission of Mr. Mandhyan. that the finding recorded by the Labour Court is perverse. 6. Admittedly the Labour Court has come to the conclusion that the workman had been discharging the duties and functions of pump Super visor. It has also been found that the scale of different employees of the Nagar Mahapalika are being paid according to the scales recommended in the pay Commission Report. The learned Labour Court has found that a scale for pump Supervisor is provided in the said recommendation. There fore, it cannot be said that there is no perception of the post of pump Supervisor in the Nagar Mahapalika when the Labour Court had found from the records placed before it that the Nagar Palika itself had sought for sanction of the post of pump Supervisor. Therefore the Labour Court had every jurisdiction to direct fixation of pay of the workman in the scale of pump Supervisor. Such a direction is a natural consequence of the finding that the petitioner was getting the work of pump Supervisor from the workman. Against the work done as pump Supervisor the petitioner is bound to pay the workman payment for pump Supervisor. In case though the petitioner obtains work of pump Supervisor from the workman yet if it pays him the pay of pump Supervisor in that event the Nagar Maha palika would be exploiting the workman and would violate Article 23 of the Constitution of India. This also attracts Article 14 of the Constitution since equity demands equal pay for equal work which principle is violated if against the work of pump Supervisor payment of pump Operator is made. Therefore, it is well settled in the jurisdiction of the Labour Court to fix the pay of workman in the scale of pump Supervisor and the Labour Court had rightly done the same within the ambit of its jurisdiction. 7. Now unless the post is there it is not possible for the Labour Court to fix the pay of the post. Admittedly the post is not there but the post was sought to be created and sanction was sought for from the State Government Mr. Mandhyan contends that despite a long lapse of time the sanction has not come. Therefore, Nagar Mahapalika cannot pay the workman according to the scale of pump Supervisor. HE further contends that the Nagar Mahapalika has no authority or jurisdiction to create any post. It can only require sanction for creation of such post from the State Government. According to him it is the State Government alone which can create the post by sanctioning such post. Without such sanction it is not possible for the Nagar Mahaplika to place the workman at the scale of pump Supervisor. 8. The Labour Court in order to fix the pay in the scale of pump Supervisor has to direct creation of post otherwise the pay in the scale of pump Supervisor cannot be fixed. In the case of Swandeshi Cotton Mills v. Labour Court (I) Kanpur 1995 SCC (L and S) 436, it has been held that he Labour Court has jurisdiction to direct creation of post if a reference is made to it. The Industrial Disputes Act puts the Labour Court n a different footing whereby a very wide jurisdiction which is not otherwise available m ordinary Civil Courts or in writ Courts are available to the Labour Court If the creation of post is a subject-matter of reference in that event Labour has jurisdiction to direct creation of post. Inasmuch Is when a reference is made the Labour Court is called upon to adjudicate the, Industrial Disputes which means "any dispute or difference between employers and workmen which is connected with the employment or non employment or the terms of employment or the condition of labour of an v person". The Industrial dispute has not bean confined by any limitation. It embraces a very wide situation. Fixing of pay or creation of post comes within the ambit of employment or condition of labour as the case may be. Such disputes are referred to the authorities under the Industrial Disputes Act under Section 10 of the said Act by the Government. The disputes which are to be referred are mentioned in sub-section (1) of Section 10 including those connected with or relevant to the dispute. The matters specified in IInd Schedule are to be referred to labour when those in the IIIrd Schedule to the Tribunal for adjudication. Third Schedule prescribe certain items. It in the last item prescribe "any other matter that may be prescribed. "whereas IInd Schedule prescribes 5 items while on the 6th item it has been provided that "all matters other than those specified in the IIIrd Schedule". Therefore, item VI embraces all kinds of dispute and the scope is very wide. According to the scheme of the Industrial Disputes Act the power of the Labour Court has not been limited in any manner the only limitation is provided that it has to adjudicate only upon a reference as made before it. Therefore, the Labour Court has to confine its adjudication within the ambit of reference made to it. 9. In the present case the reference was made "whether the employers should give the designation and wages scale of pump Supervisor/shift Incharge to their workman pump Attendant Sri Ram Bujharat Singh s/o Sri Dudh Nath Singh ? If Yes, then from which date and with what other particulars. " 10. Therefore, It appears that the reference was made for deciding the wage scale of pump Supervisor and other reliefs in order to give effect to the determination. Once it is decided by the Labour Court that the employers should give the designation and wage scale of pump Supervisor then the same means the question of creation of post was also referred to inasmuch as the same is ancillary to the said reference. 11. Now in Swadeshi Cotton Mills (supra) it was held that when a reference was made for fixing of pay in a particular post and while adjudicating legality and justifiability of denial of such pay to the work man, it was held that the labour Court and implied jurisdiction to create the post of designer sprayman post. While expressing their views their Lordships of Hon'ble Supreme Court had made their Lordships observation on the basis of order of reference as to "whether the action of the employer in denying the wages of designer sprayman to Sri Gayas Ahmad Khan s/o Sri Abdul Razak Khan working in shift general, Engraving Department is legal and justified ? If not, what benefit/relief is the workman entitled and with what other details ?" A careful reading of the reference shows that the demand was two fold namely creation of the post of a designer sprayman and fixing of the salary of the said post. Without creating the post it was not possible for the Labour Court to fix the salary to a post. In the present case the word used in the reference which are much more explicit. HEre the employers whether he should give the designation, is question of reference, along with wages scale. Giving of designation and wage scale itself, cannotes creation of post. Therefore it cannot be said that the creation of post was not within the order of reference. When the question of creation of post was also included in the order of reference the Labour Court can very well direct creation of post. The decision in the case of Bhullar Nath Yadav v. Mayo Holl Sport Complex, Allahabad, 1990 (61) FLR 68 cited by Mr. Shyam Narain does not help him because the same was not concerned with an Industrial Disputes. The said matter arose in a writ proceeding. 12. On the other hand the decision in the case of Catering Cleaners of Southern Railways v. Chief Commercial Superintendent Southern Railway, AIR 1991 SC 26 cited by Mr. Mandhyan does not help him. Though in the said case it was expected by the Supreme Court that in the absence of permanent posts particular employee cannot be made permanent the peti tioner therein who were given temporary status were being paid regular salary and as such would be made permanent in due course, was the stand taken by the respondent therefore the court had directed that service with reference to those persons shall not be discontinued till they retire terminat ed in departmental exigencies. The said case does not deal with the scope of the jurisdiction of the Labour Court under the Industrial Disputes Act and as such is of no help in the facts and circumstances of the present case. The decision in the case of State of Haryana v. Piara Singh, AIR 1992 SC 2130 also does not help Mr. Mandhyan. The facts of the said case are wholly distinguishable. Inasmuch as in the said case ad hoc temporary employees working for more than one year was directed to be regularised without ascertaining existence of any vacancy unconditionally that too in a writ proceeding without ascertaining the need for a regular post. In the present case the need has been ascertained by the Nagar Mahapalika which is seeking sanction for creation of post from the Government. In the case of Piara Singh (supra) the question was considered in the back ground that those lad hoc temporary employees were not in regular recruitment through prescribed agency but were appointed due ito the exigencies of ad ministration calling for ad hoc or temporary appointment without any re gular selection or appointment any the same was held with a view to avoid arbitrary action on the part of appointing authority who should recruit employees through Employment Exchange. Otherwise the requirement of Article 16 would be flouted. The present 'case is completely different as observed earlier, from the one on the basis whereof the said decision was given. 13. The next case relied on by Mr. Mandhyan being Union of India v. Dr. Cyan Prakash Singh, JT 1993 (5) SC 681, also does not help in the background of the facts of said case on the basis of ratio decidendi. The facts therein are completely different from the facts of the present case. The said case was also a case where an ad hoc appointment was made. The said ad hoc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . appointee could not be given benefit of regularisation because he was not working on the post of Assistant Medical Officer/assistant Divisional Medical Officer on the end off date which was 1st October, 1984 allowed in the case of Dr, A. K. Jain's case, on the ground that the petitioner therein had joined service on 9th October, 1984. The regularisation of the service in the said case was done pursuant to an order which used an expression up to October 1, 1984, Therefore, the ratio decidendi is riot of a general application that too arose out of writ proceeding unconnected with Industrial Disputes. 14. The case of Madhyamik Siksha Parishad, U. P. v. Anil Kumar Mishra, Lab 1c 1197 cited by Mr. Mandhyan also does not help him in the facts and circumstances of this case which are altogether distinguishable from the facts and circumstances of the said ease. There the question was looked into from a point of view of termination. In the said case the work man was engaged for the purpose of writing certificates at the rate of Rs. 12 for 100 certificates which was raised to Rs. 20 subsequently. There having been backlog (sic) was cleared the preparation of certificate was computeris ed and therefore the assignment was discontinued after they had worked for a period ranging from. one to two years. The said discontinuation was challenged by means of writ petition. In a writ proceeding the analogy of the provisions of Industrial Disputes Act, 1947 was refused to be imported simply because the said persons had continued for more that 240 days, The legal consequences that flow from work for that duration under the U. P. Industrial Disputes Act, 1947 are entirely different from what by way of implication attributed to the situation of the said case by way of analogy. It was not appropriate to import and apply that analogy in a extended or enlarged from here. 15. Therefore, all the decision cited by Mr. Mandhyan has no manner of application in the question raised in the present case. 16 But the facts remain that the Nagar Mahapalika has no authority to create post unless the same is sanctioned by the State Government which fact is not disputed by Mr. Shyam Narayan. Mr. Mandhayn on the other hand contends that despite requisition by the Nagar Mahapalika the State Government has not sanctioned the post. In the absence of sanctioned post. It is not possible for Nagar Mahapalika to implement the award. The dispute under the Industrial Disputes Act does not depend on the shifting of responsibility. It is a dispute between the employer and employee which has been referred to for adjudication before the Labour Court. It is for the Nagar Mahapaiika to take appropriate steps for implement ing the award since the 4ispute has" been adjudicated wholly within the jurisdiction of the Labour Court and there has been no lack of jurisdiction in directing grant relief on the basis of reference made. It is for the Nagar Mahapalika to take appropriate steps for obtaining sanction of the post created from the date of the award namely 28th November, 1987. The Nagar Mahapalifca shall take appropriate steps by seeking sanction of the post once again in continuation of earlier requisition within the period of three months from the date if such requisition is made to the State Government. It is expected that the State Government will deal with the same accordingly keeping in view of the award of the Labour Court in respect whereof the State Government has a responsibility to see the same is implemented as well as the observation made in the present case as early as possible preferably within the period of six months from the date of such requisition with effect from 28th November, 1987. After the said post is sanctioned the Nagar Mahapalika shall make all payments arrears being the difference of pay and current payments. It may be recorded that it is the responsibility of the Nagar Mahapalika to obtain sanction from the State Government in terms of the said award and the State Government has the responsibility to sanction such posts when requisition in accordance with law having regard to the facts and circumstances of the present case. 17. In the result the writ petition fails and is dismissed with the above observations. There shall, however, no order as to costs. Petition dismissed. .