(1) Heard Shri Shishir Jain, for the petitioner and Shri Sanjay Kumar Rao, who appears for the opposite party no.1, Nagar Mazdoor Engineering Sangh, Lucknow, who represented the Workman Hari Shanker, before the opposite party no.2.
(2) The petitioners are aggrieved by the Award dated 27.03.2015 passed by the Labour Court, Lucknow, in Adjudication Case No.73 of 2006 wherein a direction has been issued to the writ petitioners to regularize the workman Shri Hari Shanker, on the post of Jeep/Car driver and to pay him all consequential benefits with effect from the date of submission of his application for regularization as Driver i.e. with effect from 01.01.1980.
(3) It has been submitted by Shri Shishir Jain, that the workman Shri Hari Shanker was initially engaged on Muster Roll on the post of Helper on 31.08.1979 in the Corporation. On 01.04.1985, he was placed in Group-B Category as Helper. On 18.07.1998, he was regularized on the post of Helper. Due to exigencies of work, the workman Shri Hari Shanker was asked to perform the work of Driver for sometime, intermittently but he was asked not to drive the vehicle i.e. the Jeep of the Unit by an order dated 09.07.2002 passed by the Assistant Engineer (Mechanical), U.P. State Bridge Corporation Limited, Unit at Allahabad.
(4) The workman, Shri Hari Shanker, thereafter continued to discharge the duty of Helper but he challenged the order dated 09.07.2002 and another order passed giving similar directions on 24.09.2003 in Writ Petition No.5519 (M/S) of 2003.
(5) The Writ Petition No.32533 of 2002 (Hari Shanker Vs. State of U.P. and Others) was taken up as fresh for admission on 31.01.2003 by this Court and this Court, was prima facie satisfied that the writ petitioner had continued to work as Jeep driver for a long time and recommendations were made in his favour for his regularization as Jeep driver. Therefore, this Court as an interim measure, directed that till the next date of listing, the writ petitioner be permitted to work as Jeep driver and the order passed by the Authorities rejecting his representation challenged in the writ petition, would remain in abeyance. In pursuance of the interim order granted by this Court the workman Shri Hari Shanker continued to work as driver.
(6) The writ petition was ultimately dismissed by this Court by a detailed judgment and order passed on 06.08.2004 where this Court observed that the Supreme Court in the case of Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke of Bombay & Others reported in 1976 (1) SCC 496, has directed that the writ petitions be not entertained in matters relating to Industrial Disputes Act. The Court observed that the contentions raised in the writ petition required adjudication on the basis of an oral and documentary evidence, which can only be done by the Labour Court/Industrial Tribunal. Since, questions of facts had to be adjudicated, the workman Shri Hari Shanker was relegated to filing a claim before the Labour Court.
(7) Shri Hari Shanker, thereafter filed his claim before the Government through the respondent no.1, Union which was referred to the Labour Court, the respondent no.2 by the Reference order dated 30.05.2006. The Reference can be loosely translated as follows:-
"Whether the employers continuing the workman Shri Hari Shanker s/o Sakaldev as Helper with effect from 01.01.1980 and not regularizing him as Jeep driver, had committed an illegality? If yes then to what relief such workman is entitled to?"
It was this Reference order which was registered as Adjudication Case No.73 of 2006. By means of the impugned Award, the Presiding Officer has made observations to the effect that the workman Hari Shanker was entitled to be regularized as Jeep driver with all consequential benefits.
(8) It has been submitted by Shri Shishir Jain, that the respondent no.2 has allowed the claim of the workman on two grounds mainly, firstly on the basis of evidence submitted by the workman, the Presiding Officer has come to the conclusion that the workman had been working since long as a Jeep driver continuously, and secondly that his juniors i.e. persons engaged after him, had been regularized as Jeep drivers.
(9) It has been submitted that both these findings recorded by the opposite party no.2 are perverse and against the evidence on record. Shri Shishir Jain, has referred to the written statement filed on behalf of the Corporation in the Adjudication Case No. 73 of 2006 wherein in paragraph nos.2, 3, 5, 7, 8 and 9 specific case of the Corporation was that the workman Hari Shanker was initially engaged on the post of Helper on Muster Roll basis on 31.08.1979. He was placed in Group-B as Driver on 01.04.2008 and he was further regularized to the post of Helper by an Office Order No.642/ESB/54 WCE/98 (Appointment), dated 18.07.1998 with effect from 01.08.1998. He joined as Helper and continued to work as Helper. However, due to exigencies of service, in emergencies, when there was no Jeep driver available, the workman had been asked to work as driver. Since the workman was never ever engaged as Driver, he could not be regularized as Driver. He could only be regularized as a Helper.
(10) A written statement also referred to an Office Circular being issued on 18.11.1985 imposing complete ban on the change of name of Designation/Post and also to Circulars dated 23.01.2001 and 04.01.2003 to the same effect. The workman had made representations repeatedly claiming salary of driver, his representations were rejected against which he filed Writ Petition No.32533 of 2002. On the basis of an interim order granted therein, the workman continued to work as Driver but he cannot be given any benefit from mere working on the post of driver, as the writ petition ultimately was dismissed on the ground of alternative remedy.
(11) Learned counsel for the petitioner has also referred to the rejoinder affidavit filed by the Corporation to the counter claim set up by the respondent no.1, wherein again repeatedly the same facts have been mentioned, and also the fact that due to interim order granted by this Court in Writ petition filed by the workman Hari Shanker he was allowed to continue to work as Jeep driver.
(12) Shri Shishir Jain, has also referred to the oral statement of the employers' witness filed alongwith writ petition on 24.09.2011, wherein it has been specifically stated again that the workman was engaged as Helper and was also regularized on 01.08.1990 and also he had no right to be regularized as Jeep driver. There was no power in Assistant Engineer or Executive Engineer to promote the workman concerned. It was only the Headquarters which could pass orders for promotion on the basis of seniority as per Rules.
(13) It has been submitted by Shri Shishir Jain, further that the finding recorded by the respondent no.2 regarding juniors of the petitioners being regularized is also a perverse finding, which is not born out from the record.
(14) Shri Sanjay Kumar Rao, on the other hand, has referred to the interim order granted by this Court on 31.01.2003 in Writ Petition No.5519 of 2003 wherein this Court had recorded a prima facie satisfaction that certain persons being juniors of the workman had been regularized as drivers in the year 1988-2001. Therefore, this Court had directed the petitioner to be continued as Driver till the next date of listing. Shri Sanjay Kumar Rao, has also referred to the finding recorded by the respondent no.2 to the same effect, that at least two Helpers namely Rama Kant and Raj Bahadur who were juniors to the petitioner and engaged after him as per the Seniority list of Helpers maintained by the Division, had been regularized as Drivers by the Corporation.
(15) Having heard the rival submissions, this Court has carefully perused the order impugned, it is apparent from the Award that the respondent no.2 has noticed that the workman concerned had been regularized as Helper with effect from 01.08.1998. Such order was never challenged anywhere by the workman concerned. He had accepted his regularization as Helper. The workman had also accepted his engagement as Helper on Muster Roll basis since 1980 by the Corporation. There was no promotion exercise undertaken by the Corporation. The respondents no.2, therefore, could not have directed the regularization of the workman as Driver. The order of regularization as Driver being without any basis, and the finding recorded in the Award being perverse and against the material on record, it is set aside. This writ petition is allowed.
(16) However, it is open to the workman Hari Shanker to file an appropriate case before the Court of Competent Jurisdiction for his consideration for promotion as Driver, in accordance with law.
Order Date :- 29.8.2019 PAL