1. Heard learned counsel for the parties.
2. The petitioner-Electricity Company and employer party in reference being Reference (IT) No.47 of 1992 has approached this Court under Article 226 and also under Article 227 of the Constitution of India, challenging the award and order dated 16/01/2003 passed by the Industrial Tribunal holding that the workman, respondent hereinabove, is entitled to be absorbed as Junior Assistant from 02/03/1987 and consequential benefit accruing there from.
3. This Court on 15/04/2004 [Coram: Jayant Patel, J.] passed the following order:
Upon hearing Mr.Munshaw for the petitioner and Mr.Acharya for the respondent it, primafacie, appears that the tribunal found that the respondent was working as Jr.Assistant prior to absorption. However, the absorption ordered on the post with consequential benefits from 1987 onwards primafacie does not appear to be proper because the workman concerned has not actually worked from 1987 onwards as Jr.Assistant but has worked as Helper. At the most, the tribunal could have considered the matter for absorption with prospective effect.
Under the above circumstances, RULE. Ad interim relief in terms of para 8(c) so far it relates to giving effect from 2.3.1987 to 16.1.2003 and till today. However, from next month, i.e. from May, 2004, the petitioner shall implement the award qua absorption and posting of the respondent in the cadre of Jr.Assistant.
This order was carried into appeal. But appeal failed and as a consequence thereof the benefit is granted, as per the order to the workman. So, now really speaking the challenge would confine to the admissibility of the benefits of the award from 02/03/1987 to 16/01/2003 or till the absorption of the workman was made i.e. in November, 2004. Though, learned counsel for the petitioner did not give up challenge to the entire award on the ground that implementation of the award is under the interim order and, therefore, the employer cannot be said to have given up challenge to the entire award and interim orders cannot govern the final out come of the petition.
4. The facts in brief leading to filing this petition deserve to be set out as under;
5. The workman was working with the employer, Electricity Company in different capacities since 1981, and from 1985 onwards he was known to have been working on Nominal Muster Roll ('NMR' for short) as per the Board Resolution No.446. The employees completing requisite number of days on NMR were required to be absorbed as per their tenure of NMR employee. The respondent workman came to be absorbed as a work charge employee helper vide order dated 02/03/1987 along with other NMR employees numbering 21. Thus, total 22 NMR employees came to be absorbed vide order dated 02/03/1987 pursuant to the Board Resolution No.446 referred thereunder. The said order is produced at page 43 and before the Tribunal it was produced at Exhibit 43. Pursuant to the said order on the next day the detailed posting order also came to be passed. As, the workman perceived that his absorption as work charge helper was contrary to the Board Resolution No.446, he addressed a communication in the form of representation dated 20/05/1987. In this representation he unequivocally asserted that in terms of the Board Resolution No.446, the NMR employee working in a trade has to be absorbed in the same trade or department or posting and as he was working as Junior Assistant he ought to have been absorbed as Junior Assistant, which carries higher pay scale than the post of helper in which he was in fact absorbed vide order dated 02/03/1987. The said representation remained as it is without any action, hence the workman had to file four more representations on various dates namely 10/01/1988, 28/11/1989, 01/06/1990 and 10/01/1991. In all these representations the workman kept on emphasizing on the fact that he was working as Junior Assistant even when he was on NMR and after his absorption as helper he is working as Junior Assistant only. Meaning thereby all along consistently, the workman as a helper vide order dated 02/03/1987, was incorrect and the said mistake was required to be rectified as otherwise it is causing tremendous losses in terms of lessor emoluments and other benefits. The workman in fact declined promotions in the channel of helper, as his grievances was alive and on going. However, when the promotion of Switch Board Operator came, he had to accept the same but that acceptance is also under protest and without prejudice to right and contention of the workman qua the pendency of litigation. The workman's representations were not replied to and he persisted in making the same. Therefore, as per the say of the workman in the year 1992, he was divested of the work of Junior Assistant and was started being asked to discharge duties as helper whereunder he was required to be sent to fields.
Meaning thereby prior to 1992 he was continuously discharging his duties as Junior Assistant only. His divesting of work as Junior Assistant was on account of his persistent approach and voicing his grievances qua he being not given the legitimate due which was admissible to him under Board Resolution No.446.
6. The workman through Union raised industrial dispute, which came to be referred to the competent Tribunal wherein it was numbered as Reference (IT) No.47 of 1992. The workman produced evidences and the statement of claim also. He consistently claimed that he was actually working as Junior Assistant from the day one and was divested of the work only when he repeatedly requested the authority for redressing his grievances. The management examined witnesses. The management put up a stand that the workman was never working as Junior Assistant. The workman was absorbed as helper, as his qualification warranted such absorption and the workman could not establish that he was working as Junior Assistant so as to take advantage of being absorbed as such, as per the resolution or order no.446. The management also examined its witnesses who adhered to the stand of the management that the workman was not working as Junior Assistant and he was in fact discharging his duties as helper only. The Tribunal after appreciating evidences came to the conclusion that the workman establishes his case and hence declared that he was entitled to be absorbed as Junior Assistant and entitled to consequential benefits and as such granted the same vide order dated 16/01/2003. Being aggrieved and dissatisfied with the same, the present petition is preferred on the grounds mentioned therein.
7. Learned advocate appearing for the petitioner contended that this Court while issuing Rule clearly indicated that being an interim order the same was also containing prima facie view of the Court that the Tribunal could not have granted the benefit of absorption from 1987 and the challenge to it by Letters Patent Appeal and its failure, consequent assignment of work and treating the workman as Junior Assistant, may not be construed as implementing the order on its own volition so as to negate the right to the employer to contain that workman is not entitled to be absorbed as Junior Assistant. In alternative and without prejudice to the aforesaid submission, it was contended that the order of absorption has been accepted by the workman which was issued on 02/03/1987 and the challenge to the absorption is raised in the year 1992 would show that the workman could not have been granted benefit with retrospective effect, as workman did not even challenge the order of absorption wherein it is clearly mentioned that the workman was absorbed only as helper.
8. None challenge to the order of absorption or rather acceptance of the order as helper and working as helper pursuant to the order should disentitle the workman from agitating his case and the evidences on record also do not suggest that the workman has right to be absorbed only as Junior Assistant as claimed by the workman.
9. Learned advocate for the petitioner invited this Court's attention to the various orders and the observations of the Tribunal and contended that the Tribunal could not have overlooked these facts that workman had not challenged the absorption as helper nor has the workman lodged any protest when he accepted the order of posting pursuant thereto. These facts ought to have been appreciated by the Tribunal appropriately which would have persuaded the Tribunal in not passing the order in favour of the workman.
10. Learned advocate for the petitioner further contended that the oral testimony of witnesses and the affidavits of fellow workmen cannot be given more weightage what they deserve, as the workman was under obligation to establish that in fact he was working as Junior Assistant when he was working on NMR setup. The workman's contention that the witness of the management also admitted that there is no specific assignment of work to NMR employees, also cannot be construed as any positive statement qua workman was working as Junior Assistant, as he claimed.
11. Learned advocate for the respondent-workman invited this Court's attention to the resolution or order no.446 of the Board, whereunder a special emphasis is led on the absorption that the workmen who were working on NMR were to be absorbed in their respective category only. When such is the case, then the superior officer while recommending the name of the workman for absorption ought to have mentioned the same which would have resulted into absorption of the workman as Junior Assistant only which carries higher pay scale than that of helper.
12. Learned advocate for the respondent-workman thereafter invited this Court's attention to the observations and findings recorded by the Tribunal and submitted that those observations which are in favour of the workman cannot be said to be perverse in any manner and this Court in exercise of power under Articles 226 and 227 of the Constitution of India would certainly not invoke with the same.
13. Learned advocate for the respondent-workman thereafter invited this Court's attention to the testimony of the management witness and contended that the management witness was put specific questions to which he has answered and those answers would help the case of the workman in establishing that the workman was in fact as Junior Assistant even when he was in NMR. The none reply of the workman's letters and representations of various dates wherein workman unequivocally stated that he was working as Junior Assistant even after his absorption, would also go to help the workman's contentions that he was in fact working as Junior Assistant and as such the same could not have been denied by anyone, much less, by the evidence on record which goes contrary to the stand of the management.
14. Learned advocate for the respondent-workman thereafter invited this Court's attention to the affidavits filed by the fellow workmen, wherein they have categorically mentioned that the workman was working as Junior Assistant and thereafter when he lodged protest he was sent to field to work as helper and these affidavits and the contents thereunder has remained uncontroverted, as the management has not chosen to examine nor management has put up any obligation calling upon these witnesses to appear so that they could be cross-examined. In other words, these witnesses' statement by way of affidavit have remained uncontroverted and should have been sufficient evidences to say that the workman was in fact working as Junior Assistant and the order passed by the Tribunal being just and proper, the Court may not interfere with the same.
15. The Court is of the considered view that the petition is required to be dismissed for the following reasons namely;
(i) The controversy in this petition, now, in my view, cannot be said to be challenge to the entire award as the interim order passed by this Court would clearly indicate that the order is to be treated as restricting the petition qua the retrospective effect of the absorption only, else the Court would have left proper liberty to the petitioner else the observation of the Court in the interim order, would go to show that the Court had employed words “Ad interim relief in terms of para 8 (c) so far it relates to giving effect from 02.03.1987 to 16.1.2003 and till today.
However, from next month, i.e. from May, 2004, the petitioner shall implement the award qua absorption and posting of the respondent in the cadre of Jr. Assistant”. This observation of the Court, in my view, concluded the scope of the petition which could be said to be confined to the retrospective effect of the award only or else it was required to be challenged in appropriate manner before the appropriate forum and in fact the petitioner did carry this order into appeal, unfortunately the order passed by the Appellate Bench is not available on record, but fact remains to be noted that in appeal also the petitioner failed, therefore, in my view, now controversy in this petition confine to the retrospective effect of the absorption order only.
(ii) The submission made on behalf of the petitioner that in absence of any challenge to the original order dated 02/03/1987, would disentitle the workman from challenging the same appears to be attractive, but without any substance, as if one looks at the reference or the term of the reference, one would surely come to know that what is challenged is the inaction on the part of the management in not treating the workman to have been absorbed strictly in accordance with the Board Resolution No.446. This, in my view, would answer the contention raised by learned counsel for the petitioner qua workman's disentitlment or entitlement for challenging the absorption.
(iii) The workman cannot be said to have accepted the absorption as helper as sought to be made out by the management as the workman in the first instance did not have any option but to accept the order and when the workman has led a clear case in the statement of claim narrating the circumstances under which he was compelled to accept the order and when those circumstances have remained uncontroverted, then it may not be said that the workman did ever given up his ground for he being absorbed as Junior Assistant in terms of the Board Resolution No.446. Therefore, in my view, the workman cannot be said to be not entitled to challenge the inaction on the part of the management as the workman immediately took up a cause by way of representation of May 1987. This representation and the subsequent representations contain consistent stand of the workman and the management's enigmatic silent thereon would be a pointer to the genuineness in the claim of the workman which cannot be overlooked by Court of law in any manner. The conduct of the parties and the scope of the jurisdictional interference in the Tribunal under the I.D. Act would persuade this Court not to interfere with the award as it is by now established principle of law that under I.D. Act, the Tribunals have vast power qua service condition of the workman and the service contracts between the workman and the employer. The Electricity Company at this stage might be justified in arguing that the employer is governed by such principle of recruitment rules etc., but in absence of any such plea based upon either the qualification criteria or the recruitment rules or the provisions governing the recruitment and in light of the positive mandate embedded in Board Resolution No.446 which is sought to be relied upon by both, one will have no option but to accept that what was important was workman establishing his case that he was working as Junior Assistant when he was in Nominal Muster Roll.
(iv) The evidences adduced on record and the testimony of the management's witness and none challenge to the fellow workmen's affidavits, which is unequivocally clear, collectively would go to show that the workman has successfully established that he was working as Junior Assistant and, therefore, his absorption was also warranted to be as Junior Assistant only. The Tribunal, in my view, has not committed any error, much less, any error of law rendering the order perverse.
16. In absence of any perversity in the order, this Court in exercise of power under Articles 226 and 227 of the Constitution of India, would not interfere with the same. The petition being bereft of merits, deserve rejection and is accordingly rejected. However, in these circumstances there shall be no order as to costs. Rule is discharged.
Pankaj (S.R.BRAHMBHATT, J.)