JUDGMENT Rakesh Tiwari, J.
1. Heard the learned counsel for the parties and perused the records.
2. The petitioner U.P. State Electricity Board (now Corporation) has challenged the award dated 9.2.1989 passed by the Industrial Tribunal II. U.P., Lucknow, By the impugned award it has been held that respondent No. 1 is entitled to seniority from the date of joining, i.e., 17.12.1956 as Junior Engineer in ordinary grade and is eligible for consideration for the post of Junior Engineer in selection grade and Assistant Engineer on the date on which his next junior was considered and given promotion on the next post with retrospective effect from due dates.
3. Workman P.N. Khanna was appointed as work charge supervisor on 12.12.1956 and joined his duties on 17.12.1956. By order dated 23.4.1966 he was approved as shift supervisor.
4. A seniority list of Junior Engineers ordinary grade was announced on 12.6.1983 in which respondent No. 1 was placed at serial No. 1145 on the basis of date of approval; whereas other similarly placed workman, namely, Amit Das Gupta, N.K. Sharma, J.K. Bhattacharya, Manohar Lal and R.S. Thaddi were given seniority from the date of appointment. S.C. Nigam, Junior Engineer was also given seniority from the date of joining, i.e., 26.8.1962 and was promoted as Assistant Engineer with effect from 22.8.1984. Aggrieved by the seniority list, respondent-workman raised an industrial dispute, which was referred by the State Government for adjudication by the Industrial Tribunal (II) U.P. at Lucknow under Section 4K of the U.P. Industrial Disputes Act, 1947. The said reference was registered as Adjudication Case No. 60 of 1985.
5. The aforesaid adjudication case was heard along with Adjudication Case No. 53 of 1985 as the dispute was between the same parties and more or less identical dispute was involved. Oral and documentary evidence furnished in Adjudication Case No. 58 of 1985 was common to the Adjudication Case No. 60 of 1985 also. On the basis of the pleadings of the parties, the following additional issue was framed :
"1. Is the workman concerned not covered by the definition of workman as per U.P.I.D. Act and Rules, if not its effect?"
This issue was discussed in Adjudication Case No. 58 of 1985 and it was decided vide award dated 24.1.1989 in favour of the workman. The decision in the aforesaid Adjudication Case No. 58 of 1985 is also binding in this case as it was the leading case. From the records it appears that U.P. State Electricity Board framed S.E. and M.F.S. Regulations in 1970 and there was no regulation for fixing of seniority prior to this date. The case of respondent-workman is that if his correct seniority is fixed, he would have been entitled to promotion to the post of Junior Engineer (S.G.) on the same date on which the aforesaid Amit Das Gupta was promoted to the post of Assistant Engineer in 1973 vide order dated 18.1.1973.
6. The petitioners have not dented the fact that respondent No. 1 was posted as Work Charge Supervisor from 1956 to 1966, though have stated that till 1966, 20% posts of Junior Engineers (O.G.) were filled out of work-charged staff, who passed a departmental test and fulfilled the prescribed conditions of eligibility. It is alleged that in years 1960 and 1965 tests were held, but Sri Khanna, respondent No. 1 either did not appear or failed to qualify. In 1966, another test was held for those eligible candidates and respondent No. 1 passed the test on 1.1.1966 and was promoted to the post of Junior Engineer (O.G.) on 23.4.1966 and was given seniority in accordance with the rules. It is also admitted that respondent No. 1 was regularised on the same post and his seniority was fixed from the date of qualifying test. It is alleged by the petitioners that the candidates, who were declared successful in the earlier tests, i.e., 31.7.1963 or 26.5.1964 were allowed yearwise/batchwise seniority as per agreement with the Subordinate Engineers Association and this was also in conformity with the Board order dated 13.8.1985.
7. In so far as Sri S.C. Nigam is concerned. It is submitted by the petitioners that he was a diploma holder, whereas respondent No. 1 was not a diploma holder and as such his case is not comparable to that of Sri P.N. Khanna. Before the labour court oral as well as documentary evidence was filed by the parties.
8. The labour court after going through the records and the evidence held that respondent No. 1 is entitled to seniority from the date of joining, i.e., 17.12.1956 as Junior Engineer (O.G.) and further he was eligible for consideration for the posts of Junior Engineer (S.G.) and Assistant Engineer on the date on which his next junior was considered. A direction was issued by the labour court directing the employers, i.e., petitioners to consider the case of respondent No. 1 for promotion with retrospective effect from the due dates and pass just and fair orders.
9. The contention of the employer that respondent No. 1 is not a workman, was decided in Adjudication Case No. 118 of 1985, Jeet Singh v. UPSEB, on the basis of the nature of job performed by the workman. It is pointed out that Jeet Singh, another co-employee, who had also claimed same seniority as that of respondent No. 1, was held to be the workman by the Tribunal. The petitioners challenged the award by means of Writ Petition No. 6563 of 1983, which was dismissed by an order dated 30.3.1984. Thus, I find no force in the contention of the petitioners that respondent No. 1 was not a workman. It also appears from the records that in year 1963, respondent No. 1 was eligible for being considered for promotion, but was refused permission to go on leave in order to get application form from Lucknow. This finding of the labour court is a finding of fact. The Tribunal has further recorded a finding of fact that the Board order dated 13.8.1985 was discriminatory and arbitrary as it provides seniority from the date of joining to persons who passed in 1963 and 1964, but shunts out those who passed only a few months later.
10. In 1980 SCC (L & S) 531, 1982 SCC (L & S) 42 and 1984 SCC (L & S) 879, it has been held that supersession of earlier appointees by their juniors resulting from fixation of seniority on the basis of date of approval/selection is violative of Articles 14 and 16 of the Constitution of India. Respondent No. 1 joined on 17.12.1956 ; whereas his juniors who joined on 14.12.1959 (Sri Asit Das Gupta), on 27.2.1959 (Sri N.K. Sharma), on 1.12.1960 (Sri. J.K. Bhattacharya) were given higher seniority as Junior Engineers from the date of their Joining. Thus, respondent No. 1 was discriminated and action of the petitioners was not fair and transparent.
11. The petitioners have relied upon the following cases :
This was a case under the U.P. Industrial Disputes Act, 1947. The main question involved in this case was whether the employee was a workman or not. The employee in this case was working as Joint Secretary and was dismissed from service for disobeying the transfer order. The High Court directed the Government to make reference to the labour court. The Government during the process of making the reference formed its opinion that the employee was not a workman. The High Court again directed the Government to make a reference whether the respondent was a workman. The Government on the basis of material on record formed its opinion that the employee was not a workman. It was held by the Apex Court that it was not shown that while passing administrative order Government took into consideration any irrelevant or foreign matter, Government rightly approaching the question that respondent was not a workman. High Court erred in directing Government to make reference and set aside the order of the High Court.
2. 1996 (2) SLR 482 (SC) :
In this case of National Council for cemented building materials v. State of Haryana and Ors., the Management raised a preliminary objection whether the same is an industry or not. It was held in this case that all the issues preliminary or otherwise should be decided together so as to rule out the possibility of any litigation at the interlocutory stage. The Apex Court in this case deprecated the practice of raising frivolous preliminary objections.
3. Sharad Kumar v. Government of NCT of Delhi, 2002 (93) FLR 826 :
In the case of Sharad Kumar the reference was made by State Government taking note of designation of post held by the respondent-workman, who was working as Area Sales Executive. The High Court confirmed the order and held that determination of the question whether the respondent was workman or not, depends upon duties assigned.
4. Phone Poulence India Ltd. v. State of U. P., 2000 (7) SCC 675 :
In reference made by the Government of Uttar Pradesh, the labour court held that the medical representative concerned to be sales promotion employee under Section 6(2) of the Sales Promotion Employees (Condition of Service) Act, 1976 and therefore, deemed workman under Industrial Disputes Act, 1947, holding him entitled to raise an industrial dispute in respect of his dismissal from service.
5. The Nedungadi Bank Ltd. v. K.P. Madhavankuty and Ors., 2000 (2) AWC 923 (SC) : 2000 (84) FLR 673 (SC) :
In the case of Nedungadi Bank, it was held that there was no dispute pending at the time when reference was made and all disputes raised or apprehended do not always become industrial dispute. As such the dispute could not be the subject-matter of reference under Section 10 of the Industrial Disputes Act. It was held that the Central Government lacked power to make reference on the ground of delay and there being no industrial dispute existing, reference is bad in law.
6. Corporation Bank Employees Union v. Corporation Bank and Anr., 2000 (84) FLR 921 :
In this case an agreement was reached between the Bank and the Officers Association Organisation. It was held that it was not open to challenge the award by the Union to settlement as it has specifically agreed not to agitate as a rival to Officers Organisation.
7. Indian Oxygen Employees v. State of T.N., 1993 Supp (1) SCC 610 :
In this case the dispute arising out of termination of service for unauthorised absence from duty was declined to be referred by the Government. The writ petition challenging the order refusing reference was dismissed by the High Court making certain observations. In appeal filed against the judgment and order of the High Court, it was held by the Apex Court that the matter requires reconsideration by the Government, hence the Government directed to consider the various aspects of the question with regard to the observations made by the High Court and to pass order whether or not the dispute required to be referred to the appropriate industrial Court.
8. Sultan Singh v. State of Haryana and Anr., (1996) 2 SCC 66 :
In this case the question Involved whether the reference was made on the second representation of the workman after rejecting the first representation, it was held that even in such a case affording prior opportunity to the employer or recording reasons was not necessary for making a second reference as it is only an administrative order and principles of natural justice audi alteram partem are not applicable in such matters.
12. The findings of fact arrived at by the Tribunal after appreciation of oral and documentary evidence that the case of Sri P.N. Khanna was not only at par with that of Sri S.C. Nigam, who passed the test in 1969, but even better as he passed the test in 1965-66 and that the Board's order dated 13.8.1985 was discriminatory and arbitrary as it gives seniority from the date of joining to persons, who passed in 1963 and 1964. The observations of the labour court that the petitioner could well have passed the test in 1963 if not refused the leave to obtain the application form from Lucknow on payment, cannot be faulted with. The petitioner had deliberately prevented the respondent workman from appearing in the test in 1963. Thus, the action of the petitioner is violative under Articles 14 and 16 of the Constitution of India. Sri P.N. Khanna joined in 1956 : whereas his juniors, who joined on 14.12.1959, were given higher seniority as Junior Engineers from the date of joining ; whereas Sri Khanna was given seniority only from 1966, i.e., the date of passing the test. The Tribunal has given categorical findings of fact that this was illegal and unfair and the workman is entitled to seniority from the date of joining as Junior Engineer (O.G.). The Tribunal has directed the employer to consider the case of the workman Sri Khanna for promotion with retrospective effect from due date and pass just and fair orders to discharge their managerial function. The counsel for the petitioners have failed to point out any illegality in the direction for considering the case of the workman for promotion. The cases cited by the petitioners are clearly distinguishable and are not applicable to the facts and the circumstances of the present case. The findings of fact given by the Tribunal on the basis of the record and the evidence should not be disturbed lightly in exercise of powers under Article 226 of the Constitution of India, unless there is any serious illegality or perversity shown to the Court.
13. No other point has been argued in this case.
14. The court below has rightly held that the workman is entitled to seniority from the date of joining, i.e., 17.12.1956 as Junior Engineer (O.G.) and was eligible for consideration for the posts of Junior Engineer (S.G.) and Assistant Engineer from the date on which his next junior was considered for promotion. The powers of the labour court are wide enough for granting the relief to the workman on the basis of the next below rules and has rightly given the findings of fact that the order of the Board dated 13.8.1985 was discriminatory and arbitrary providing seniority from the date of joining to the person, who passed in 1965-66 preventing those who passed the test later on.
15. The petitioners have failed to make out any Illegality, infirmity or perversity in the award of the labour court.
16. For the reasons stated above, the writ petition is dismissed. No order as to costs.