JUDGMENT Rakesh Tiwari, J.
1. Heard counsel for the parties and perused the record.
2. This writ petition is directed against the award of the Labour Court dated 30.7.2001 published on 23.1.2003. By the impugned award the claim of the petitioners-workmen for regularization on the post of Clerk grade 11 and payment of salary for the aforesaid post was refused by the Labour Court.
3. Brief facts of the case are that the petitioners were appointed on the post of 'Khalasi' on compassionate ground. Their case was that since they were qualified, work of clerk was allocated to them i.e. doing of 'Pairvi' of the Court cases filed before the High Court as well as before the Labour Court etc. but corresponding pay scale was not given to them. A dispute was raised by the petitioners before the Regional Conciliation Officer. On conciliation proceedings having failed, the following matter of dispute was referred to the Labour Court, Allahabad where it was registered as Adjudication Case No. 3 of 2002.
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4. The Labour Court after appreciation of evidence held that the workmen claimed that they were doing the work of 'Pairvikar' which is clerical work but as there is no post of Pairvikar their claim can not be granted. It further held that it cannot create any post and until and unless a permanent post of clerk is vacant it cannot direct for regularization on that post. It also held that since no evidence was given by the workmen that the posts of clerks are vacant on which they can be accommodated they cannot be granted relief in this matter.
5. Relying upon the statement of employer's witness that there is no post of general category vacant in clerical cadre the Labour Court held that the petitioner cannot be absorbed.
6. The Labour Court further held that the workmen have failed to prove that they were adversely affected particularly in view of the specific averments of the employer that a person appointed on compassionate ground can not be given higher post and reply in this regard is negative.
7. After hearing the counsel for the parties and on perusal of the record the admitted position is that the petitioners were appointed as permanent employees on compassionate ground and the work of doing Pairvi of the cases in the High Court was being taken by the Jal Sansthan, Allahabad. This work was only being done by an employee of clerical grade.
8. In the aforesaid admitted background the finding of the Labour Court that there is no post of 'Pairokari' i.e. doing of Pairvi is misconceived. The petitioners never claimed that they were working on the post of 'pairvikari' rather their claim was that they were discharging the work performed by a clerk in Jal Sansthan. As regards the finding of the Labour Court that it cannot create the post of clerk is also fallacious.
9. It is settled law that the Labour Court not only has power to create post but also can create a new contract between the employee and the employer and also impose new terms and conditions.
10. Reference in this regard may be made to the judgment of the Apex Court in 1955 Supp (1) SCC-223 Swadeshi Cotton Mills v. Labour Court-I, Kanpur and Ors. and connected with Ghyyas Ahmed Khan v. Swadeshi Cotton Mills and Ors. In the case of Swadeshi Cotton Mills (supra) the workman was initially engaged as sprayman demanding creation of post of designer-sprayman and fixation of his salary in that post. A reference was made pursuant to such demand for adjudication of legality and justifiability of denial of such pay to the workman. It was held in that case that the Labour Court had jurisdiction to create post of designer sprayman.
11. In the instant case, the workmen did not raise any demand for creation, of post but raised a demand for being placed on the post of clerk, which was already in existence in the establishment as they were discharging the work of pairvikar, which is done by a clerk.
12. Thus on both counts i.e. (i) the post of pairvikar does not exist and (ii) the Labour Court can not create a post, the findings of the Labour Court are liable to be quashed. In so far as the finding of the Labour Court that a person appointed on compassionate ground cannot be given higher post is concerned, it appears that the Labour Court has not applied its mind to the facts of the case. The Government Orders are to the effect that at the time of appointment a person being appointed on compassionate ground can not be appointed on higher post i.e. class III post or above. A person appointed on compassionate ground has every right to be promoted or to claim promotion to next higher post in accordance with law. If promotion of a person to a higher post is arbitrarily denied it will certainly affect his career adversely. The Labour Court and the Industrial Tribunal appointed under the U.P. Industrial Disputes Act, 1947 and Industrial Disputes Act (Central) have power not to give only appropriate relief but also have power to create new contract between the employee and the employer and can also create a post etc.
13. For the reasons stated above, the writ petition is allowed. The matter is remanded back to the Labour Court to decide it afresh in accordance with law in the light of the observations made in the body of the judgment within a period of four months from today.