JUDGMENT Rakesh Tiwari, J.
1. Heard counsel for the parties and perused the record.
2. This petition has been preferred against the award dated 29.11.1997 passed by the Labour Court (IV), Kanpur in Adjudication Case No. 12 of 1989 directing thereby the petitioner to give the concerned workman the post and pay scale of lift operator.
3. Before giving the facts of the case it is necessary to give the background in which the award in the present case has come to be challenged. The Central Government constituted Central Electricity Wage Board (hereinafter referred to as C.E.W.B.) in the year 1966 for considering the pay revision of various categories in U. P. State Electricity Board. The C.E.W.B. unanimously recommended 21 categories of technical and nontechnical employees for revision of pay scales on the basis of job evaluation of point rating system. The recommendation of the C.E.W.B. were accepted by the State of U. P. on 1.4.1969 and a notification dated 11.2.1971 was issued by the State Government for enforcement of the recommendation w.e.f. from 1.4.1969, which was, later on amended on 18.6.1971. The notification provided for constitution of a tripartite union for fixation of static principles for the enforcement of the recommendation of the C.E.W.B. It appears that the U. P. State Electricity Board notified the pay scale of various post in arbitrary manner on 3.6.1971, as it were not done on the basis of result of Job evaluation of point rating system for a particular post according to the nature of work/duty performed by the employer on 31.3.1967. The dissatisfaction of employees resulted in raising of Industrial Disputes. On conciliation/settlement of disputes the State Government referred about 350 disputes for adjudication before the Industrial Dispute (V) U. P., Lucknow, regarding fitment in the pay scales of employees ; Adjudication Case No. 130 of 1972 was for fitment of liftman (Hydle). The award in Adjudication Case No. 130 of 1972 of liftman (Hydle) was given 167 points rating and it was enforced for a period of 5 years only that is to remain in from 1.4.1969 to 31.3.1974 in pursuance of Section 11 of the U. P. Industrial Disputes Act, 1947. The union of workmen which has raised the present dispute was not a party to reference in Adjudication Case No. 130 of 1972.
4. The brief facts of the present case are that respondent workman was working as lift operator in Panki Thermal Power Station Panki, Kanpur, in the pay scale of unskilled category. He raised an Industrial Dispute that work of liftman at Panki is same as that of Crane operator hence he is entitled to get the designation and corresponding pay scale of operator in skill (A) category. The claim of the workman was disputed by the petitioner on the ground that the reference was not maintainable as change of designation and corresponding pay-scale for higher post of lift operator is promotion and there was no post like 'lift operator' in the establishment. As conciliation proceedings failed, the State Government in exercise of powers under Section 4K of the U. P. Industrial Disputes Act, 1947, referred the following matter of dispute to the Labour Court, Kanpur, where it was registered as Adjudication Case No. 12 of 1989.
D;k lsok;kstdksa }kjk vius Jfed lh- ds- frokjh fy¶VeSu iq= Jh jkepUnz frokjh dks mlds dk;Z dh izÑfr ds vuqlkj fy¶V vkijsVj dk inuke o rnuqlkj iqujhf{kr osrueku :- 150&285 ¼dq'ky Js.kh ^,*½ u fn;k tkuk mfpr vFkok oS/kkfud gS \ ;fn ugha rks laacaf/kr Jfed D;k ykHk] vuqrks"k ;k fjyhQ ikus dk vf/kdkjh gS] fdl frfFk ls rFkk vU; fdl fooj.k lfgr \
5. The case set up by the petitioner before the labour court was that reference in Adjudication Case No. 12 of 1989 was barred by principles of res Judicata as the matter of fitment of liftman had already been once decided in Adjudication Case No. 130 of 1972. In the alternate the case set up was that in the garb of upgrading of the post, the workman in reality seeking his promotion, which is purely a managerial function. According to the management the main building has a lift operated by electricity for taking persons from one floor to another. The workman was working as a liftman, which was a post of unskilled category. The petitioner was paid salary of unskilled category, as the duties of liftman do not require any pre-training technical knowledge or skill whatsoever and that the lift can be operated by any person by on and off switch and the work of a liftman cannot be compared to that of crane operator, who lifts material to the maintenance section up to 36 metre height by the crane.
6. By the Impugned award in this petition the labour court answered the reference in favour of the workman and held that he was entitled to the designation and corresponding pay scale of Rs. 150-255 (revised to 1,000-1,575) in skilled (A) category,
7. The labour court held that the reference in Adjudication Case No. 130 of 1972 it was quite different from the dispute referred in the present Adjudication Case No. 12 of 1989. The labour court further held that the award in Adjudication Case No. 130 of 1972 was enforced only for a period of 5 years as such there was no bar on making reference thereafter regarding fitment on basis of the duties performed by liftman and as such the Adjudication Case No. 12 of 1989 is not barred by principle of res Judicata moreover it was not case of promotion but of fitment in pay scale accordingly to the nature of duties actually performed by the workman.
8. On the question of res Judicata the labour court took into consideration the evidence and documents on record showing the point rating for two posts and held that the instant case was not barred by principle of res judicata as in the Adjudication Case No. 130 of 1972 the post of liftman was given unskilled category on the basis of quality points given on assessment of the work performed by him whereas in the instant case the workman has made a demand for the post of operator in skilled 'A' category according to the point rating on the basis of work actually performed by him. The labour court grave a finding of fact on basis of pleadings and appreciation of oral and documentary evidence before it that there is vast difference in nature of work performed by liftman in Adjudication Case No. 130 of 1972 and in present reference in Adjudication Case No. 12 of 1989. It further held that the award in Adjudication Case No. 130 of 1972 was enforced only for a period of 5 years and as such even subsequent reference regarding fitment was not barred by res Judicata. The relevant finding of the labour court is as under :
^^eSaus i{kksa ds vfHkopu] vfHkys[kh; ,oa ekSf[kd lk{; rFkk rdZ fcUnqvksa ij lE;d fopkj fd;k gS A tgk¡ rd jsltqfMdsVk dk iz'u gS \ izfroknh dk rdZ gS fd vfHkfu.kZ; fookn la- 130 o"kZ 1972 esa fy¶VeSu ¼gkbZfMy½ ds dk;ks± dh foospuk dh xbZ Fkh rFkk mldh IokbaV jsfVax 157 ds ctk; 167 ekuh xbZ A vr% vc bl ckn dh jsfVax fd;k tkuk ckf/kr gS A Jfed i{k dk rdZ gS fd vfHkfu.kZ; okn la- 130 o"kZ 1972 eaas mudh ;wfu;u i{kdkj ugha Fkh A mDr fookn dk ,okMZ fnukad 1-4-1969 ek= ikap o"kks± ds fy; ykxw Fkk tcfd izLrqr fookn esa dk;Z dh izÑfr ds vk/kkj ij 17-12-1976 ls fy¶V vkijsVj ds ineku dh ekax dh xbZ gS A nksuksa fooknksa ds fy¶VeSu ds dk;ksZ esa tehu vkleku dk vUrj gS A eSa oknh ds i{k ds rdZ fcUnqvksa ls lger gw¡ fd fopkjk/khu okn jsltqfMdsVk ds fl)kUr ls ckf/kr ugha gS D;ksafd vfHkfu.kZ;
fookn la- 130 o"kZ 1972 esa fy¶VeSu dks of.kZr dk;ksZ ds vk/kkj ij jsfVax dj vdq'ky Js.kh nh xbZ tcfd izLrqr fookn esa mPprj Js.kh ds dk;ksZ ds 299 vadksa dh jsfVax ds vk/kkj ij dq'ky Js.kh ds osrueku dh ekax dh xbZ gS A vr% ,d ek= vfHkfu.kZ; fookn la[;k 130 o"kZ 1972 ds vk/kkj ij izfroknh }kjk mBkbZ xbZ vkifÙk fujLr dh tkrh gS rFkk fu.kZ; fn;k tkrk gS fd iLrqr izdj.k jsltqfMdsVk ds fl)kUr ls ckf/kr ugha gS A**
9. On merits of the case the labour court found that the work of lift man is similar to crane operator. The documents annexed along with counter-affidavit Annexure-C.A.-1 to Annexure-C.A.-6 which are order to the respondents for taking materials to different floor levels showing that findings arrived at by the labour court is not perverse or against the material on records and contention of the petitioner that nature of work of crane operator is not correct. This is evident from some of the order passed by the office of petitioner. Two of them are as under :
^fy¶V vkijsVj Ñi;k 30 ehVj ij T & P igq¡pkus dk d"V djsa A g- vLi"V fnukaad % 14-10-1980** ^^Jh lh- ds- frokjh fy¶V vkijsVj ch- ,e- izFke iudh fnukad 7-1-1982 ls vki fuEufyf[kr le; ij fy¶V dk iz;ksx dsoy Hkkjh lkeku Åij vFkok uhps ys tkus ds fy;s djsaxs A esjs vkns'k ds fcuk bl le; ds chp dksbZ iSlsUtj fy¶V dk iz;ksx ugha djsxk A ¼1½ lqcg 9 cts ls nksigj 11 cts rd ¼2½ lk;a 3 cts ls lk;a 6 cts rd A g- vLi"V 6-10-1982**
10. The workman performs more onerous duties than 'crane operator' as he not only lifts but also carries passengers. This is also apparent from the aforesaid orders and the orders dated 27.9.1980, 14.10.1980, 7.8.1982, 7.3.1982 and 6.10.1982 annexed with the counter-affidavit, which were filed before the labour court. The lift operated by the respondent No. 3 is of 2814 Kgs. capacity whereas the normal capacity is of about 600 Kgs. In the counter-affidavit it has been stated that similar work of loading of machine, turbine and pipes, Gas cylinders, etc. and other consignment up to the height of 36 metres from ground level, which the respondent performs by lift as liftman is also performed by the crane operator by the crane.
11. The only contention of the petitioner before the labour court that the nature of duties of the liftman (unskilled) is different from 'crane operator' has been considered by the labour court. The labour court has given findings of facts based on evidence to the effect that the petitioner performed the same work as liftman was performed by crane operator. The workman as was not only carrying the passengers but also lifting heavy materials for repairs up to 30-36 metres height in the turbine maintenance division for maintenance and bringing the repaired machinery down to the ground level. The evidence of the workman is supported by both the witnesses of the employers and is also based on documentary evidence from which it is established fact that the work performed by the workman as liftman at Panki Thermal Power Station, Kanpur, is same as that performed by crane operator, if not of more responsibility. The capacity of the lift is 8 to 10 tonnes and it is the heaviest lift in the Metropolitan City of Kanpur. The labour court has held that the work performed by the petitioner was of 'A' category as that of crane operator of skilled category.
12. No illegality, infirmity or perversity in the findings of the labour court in the award could be pointed out by the petitioner and it is not a fit case for interference under Article 226 of the Constitution of India.
13. For the reasons stated above the writ petition is dismissed. The interim order dated 13.5.1999 is vacated and the respondents are directed to comply with the award of the labour court and pay the difference to the emoluments due to him of pay scale of liftman operated due to him under the award along with 12 per cent interest within a period of one month.