JUDGMENT Rakesh Tiwari, J.
1. The petitioner is a unit of U.P. State sugar and Cane Development Corporation Ltd.. It is engaged in the manufacture of white crystal sugar by vaccum pan process. The petitioner has assailed the award passed by the Presiding Officer, Labour Court, Gorakhpur in Adjudication Case No. 40/1990 which has been enforced by publication on the Notice Board on 15.10.2003. No interim order has been granted in favour of the petitioner at the time of admission or thereafter.
FACTS
2. Before noting the contentions of the parties before the Labour Court, it may be pointed out here that the Union representing the workmen had 'not pressed' reference No. 2 regarding designation and corresponding pay scale to 28 employees of list 'kha', hence the dispute survived only in respect of reference No. 1, which is being dealt herewith.
3. The facts of the case, in brief, are that the following two suo motu references were made by the State Government vide Government order No. 1646- 65/36(1) Suo Motu Reference 2(57)89 dated 3.11.1989:
Reference No. 1.
1& D;k lsok;kstdksa }kjk ifjf'k"V ^d* esa vafdr vius 39 Jfedksa dks LFkkbZ ?kksf"kr fd;k tkuk pkfg,\ ;fn gkW] rks fdl frfFk ls ,oa fdl vU; fooj.k lfgr\ Reference No. 2 2& D;k lsok;kstdksa }kjk ifjf'k"V ^[k* esa vafdr vius 28 Jfedksa dks muds uke ds le{k vafdr inuke rFkk rnuqlkj [email protected] fn;k tkuk pkfg,\ ;fn gkW] rks fdl frfFk ls rFkk fdl fooj.k lfgr\
4. The case of the petitioner in respect of reference No. 1 was that persons shown in the list 'ka' are seasonal workmen and are being paid accordingly. They are paid retaining allowance during off season. Whenever they are called for some work during off season they are paid their due wages for working in the off season.
5. The case of the workmen was that Standing Orders of Vaccum Pan Sugar Industries notified under Section 3(b) of the U.P. Industrial Disputes Act, 1947, workmen in Schedule 'Ka' are permanent seasonal employees who not only work during the season but also in the off season. Employee mentioned at sl. No. 10 has died and those at si. Nos. 32 to 34 have been made permanent by the employers; that the employers have discriminated the rest of the employees who have not been declared as permanent till date despite the fact that the employers are taking work of permanent nature from them throughout the year and that the concerned workmen have worked for more than 240 days in each of the year as such, the action of the employers of not declaring them permanent amounts to unfar labour practice.
6. During the pendency of the dispute, employees at Sl. Nos. 7, 8, 10, 14, 20, 24, 31 and 37 either retired from service or have expired. The employees at Sl. Nos. 1, 2, 4, 9, 11, 13, 18, 23, 26, 32, 33, 34 and 35, namely, S/Sri Badri Prasad Kushwaha, Jawahar Sharma, Gulab Kohri, Lal Bahadur Khatik, Kedar Nath Sharma, Pradubhna Upadhyay, Vijai Pratap Singh, Jata Shankar Lal, Laxmi Shankar, Yogendra Singh, Raj Deo Yadav and Chandra Bhan Singh. were declared permanent by the employers. The Union did not press the case of the employees at sl. Nos. 1,12,28,31 and 39. Thus, the dispute now remains confined only to following 14 employees:-
S/Sri
1. Prasad Khatik
2. Balwant Koiri
3. Jokhan Kewat
4. Ismail Jolha
5. Indrajit Pandey
6. Santosh Prasad Gupta
7. Yograj Singh
8. Harbansh Yadav
9. GayaKurmi
10.Srikant Singh
11.Anant Bhar
12.Mohd. Yusuf
13.Ram Subhag Kewat
14.Hridesh Kumar Srivastava.
Contention of Counsel for the petitioner:-
7. The Counsel for the petitioner has assailed the award on the following submissions :-
(a) The Labour Court by the impugned award has declared the 14 employees of list 'ka' as permanent employees of the Corporation entitled to corresponding benefits from the date of the award, which is beyond the powers of Labour Court as such declaration and grant of benefits amount to promotion.
The Counsel has vehemently urged that promotion is purely a management function and it is beyond the jurisdictional realm of the Labour Court to grant promotion to the employees. He has placed confidence in the judgement of Hon'ble the Apex Court rendered in Brook Bond India (P) Ltd., v. their workmen- 1966(12) F.L.R.-42.
(b) It is then submitted that case of employees who are senior to the concerned workmen was also liable to be considered. This aspect has not been considered by the Labour Court, as such, the award is vitiated.
(c) The next contention of the Counsel for the petitioner is that due to modernization of unit, certain staff/employees have become surplus and as requisite number of sanctioned posts do not exist, the respondent-workmen cannot be adjusted. The Labour Court has, in fact, modified the reference while granting relief to the workmen who were not even members of the Union which espoused their cause. It is urged that in the circumstances, the award is illegal, arbitrary and is liable to be set aside being without application of mind.
Contention of Counsel for the respondents
8. Counsel for the respondents submits that Hon'ble the Supreme Court in Chandrakant Tukaram Nisam v. Municipal Corporation Ahmedabad and Ors. (2002)92 FLR -1159, in paragraphs 4(7) and 5 held that the power of the Courts and Tribunals under the Industrial Disputes Act are far more extensive in the sense that they can grant such relief as they think appropriate in the circumstance for putting an end to the industrial dispute.
9. In paragraph 5 of the aforesaid decision, the Hon'ble Supreme Court has further held as under:-
5. It may be borne in mind that the Industrial Disputes Act was enacted by the Parliament to provide speedy, inexpensive and effective forum for resolution of disputes arising between workmen and the employers, the underlying idea being to ensure that the workman does not get caught in the labyrinth of civil Courts which the workmen can ill afford as has been stated by this Court in Rajasthan State Road Transport Corporation case (supra). It cannot be disputed that the procedure followed by civil Courts are too lengthy and consequently, is not an efficacious forum for resolving industrial disputes speedily. The power of industrial Courts also is wide and such forums are empowered to grant adequate relief....
10. He has further relied upon the case of National Textile Corporation (U.P.) Ltd., v. Presiding Officer, Labour Court Kanpur 1991 (vol.62) FLR-583 which has been followed by this Court in U.P. State Electricity Board and Ors. v. Presiding Officer Labour Court Gorakhpur and Ors. 1995 (70) FLR-1137. In these cases, it has been held that if a workman is doing the work of a post then declaring him to be permanent on that post is not a case of promotion but giving designation and pay of the post in which he has been working for last several years.
11. In the case of National Textile Corporation (U.P.) (supra), the management had not produced any documentary evidence in order to prove categorization, gradation, channel of promotion and even the nature of work being performed by the workman and as such, declaration of workman to be permanent on a post on which he had been working for the last several years was held not to be promotion and that the Labour Court had not committed any error in the circumstances. In the instant case also, the Labour Court has categorically recorded a finding that no evidence was given by and on behalf of the employers in support of their case.
12. The case of the employers before the Labour Court was thus a case of no evidence. If the award of the Labour Court is tested on the basis of ratio laid down by Hon'ble the Supreme Court in a catena of decisions as to whose case would fail if no evidence is led, the obvious answer is that in the facts and circumstances of the case, the case of the petitioner would fail as neither oral evidence was adduced by the petitioner before the Labour Court nor documents filed, if any, were proved.
Conclusions
13. Having heard Counsel for the parties, I am of the view that though promotion normally is a management's function but the Labour Court can interfere in the order of promotion when it finds that it is arbitrary, illegal, mala fide or for any other just and proper cause. The Labour Court has given a categorical finding that the workmen had been working on the said posts not only during the season but also during off season i.e., they were working throughout the years and were paid corresponding wages of the posts held by them hence declaring them permanent in the facts and circumstances would not amount to promotion.
14. Needless to point out that a joint inspection report had been submitted by the parties before the Labour Court as paper No. 24-D according to which record of working of the concerned workmen was shown by the employers only for two years i.e. for the years 1986 and 87. The Labour Court has given a finding of fact that from perusal of joint inspection report the number of days on which the workmen had not worked during the aforesaid two years, reveals that the workmen had worked throughout the year.
15. The contention of Counsel for the petitioner that the case of the employees who were senior to the workmen ought to have been considered by the Labour Court has no merit for the simple reason that any employee who was senior to the workmen concerned, if aggrieved by the impugned award, could have raised an industrial dispute or applied for impleadment before the Labour Court. In the circumstances, the aggrieved person would have been the employee claiming himself to be senior to any of the concerned workmen and not the employers. No workman has come forward aggrieved by the award. The award also must have been implemented by now as no interim order was passed in favour of the employers in the writ petition.
16. The other contention of Counsel for the petitioner that no sanctioned post exists also does not hold good in as much as, the concerned workmen had been performing the work continuously for years together. It would be, therefore, reasonable to assume that permanent work was available for the workmen which was being performed by them. There is no dispute that the Labour Court has wide powers. It can not only create post but can also create a new contract between the employers and the employee. The Labour Court has only molded the relief and has declared the workmen to be permanent against the work being performed by them.
17. The next two contentions of Counsel for the petitioner that the workmen were not members of the union and due to modernization of unit, staff has become surplus as such the workmen concerned could not have been granted permanent status are devoid of merits. It is not necessary for raising an industrial dispute that the workmen should be member of the union. Union can take up the case of any workman for the purpose of reference of industrial dispute. The petitioner has not given any details of modernization or staff set up rendered surplus due to modernization of the unit. In fact, there is no iota of evidence that the petitionr had taken any of these pleas before the Labour Court which Counsel for the petitioner has now urged before this Court and as such he cannot be permitted to raise these pleas for the first time in the writ petition.
18. Insofar as the plea of working of the concerned workmen against permanent post is concerned, as stated earlier, no statement, whatsoever, has been given by the petitioner, hence the case of the petitioner must fail on the touchstone of the ratio laid down in V.K. Raj Industries v. Labour Court and Ors. 1979 (39) FLR 70; and Airtech Private Limited v. State of U.P. and Ors. 1984 (49) FLR 38.
19. No illegality or infirmity in the impugned award could be pointed out by Counsel for the petitioner.
20. The petition fails and is dismissed without any order as to costs.