JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Joshi, learned advocate for the petitioner and Mr. Paul, learned advocate for the respondent workmen. 2. In present petition, the petitioner board has challenged order dated 26.7.2003 passed by the learned Industrial Tribunal at Rajkot in Reference (IT) No. 222 of 1991. 3. The facts involved in and leading to present petition are that two employees working on the post of Helper with the petitioner board raised industrial dispute, claiming that they should be granted benefit and salary attached to the post of Junior Assistant considering the fact that they have been working as and performing duty of Junior Assistant. 3.1 So as to support the said claim, the concerned claimants relied on the office order/Circular No. 446 issued by the petitioner board and they also relied on other two facts, viz. (I) they were required to perform duties of Junior Assistant and they were actually working as Junior Assistant, though they were designated as Helper; and (ii) other similarly placed persons, i.e. Helpers who were working as and performing duties of similar nature were granted benefit of supernumerary post of Junior Assistant on the basis of Circular No. 446. 3.2 The said claim was not accepted by the petitioner board and therefore, the industrial dispute was raised which came to be referred for adjudication before the learned Tribunal vide order dated 22.10.1991. 3.3 The said reference was registered as Reference (IT) No. 222 of 1991. Before the learned Tribunal, the concerned workmen filed their statement of claim and contended that they were designated as Helper and they were working with the petitioner board since many years and by order dated 5.5.1987, they were granted benefit of supernumerary post of Helper, whereas actually they should have been regularised and on the supernumerary post (in light of the Circular No. 446) of Junior Assistant since they were working as Junior Assistant. 3.4 As mentioned earlier, the concerned workmen based their claim and the fact that the they were working and performing on duties of Junior Assistant and other similarly placed persons were given the benefit of supernumerary post of Junior Assistant and they also relied on Circular No. 446 of their claim. 3.5 The claim was opposed by the petitioner board by filing written statement. 3.5 The claim was opposed by the petitioner board by filing written statement. The petitioner claimed that the claimants were appointed as Helper and that they were working as Helper and therefore, they were given supernumerary post of Helper. The board claimed that they were not appointed on the post of Junior Assistant and that, therefore, they were not entitled for the benefit of supernumerary post of Junior Assistant. 3.6 After the stage of pleadings was concluded, the parties to the proceedings led evidence and on conclusion of the stage of evidence, the learned Labour Court heard the submissions and rival contentions of the contesting parties. 3.7 Thereafter, upon considering the documents and deposition and material on record and the submissions by learned advocates for the contesting parties, the learned Tribunal passed the impugned award dated 26.7.2004 which is impugned in present petition. 3.8 By the said award, the learned Tribunal has held that the claimants are entitled for the benefit of supernumerary post of Junior Assistant and the learned Tribunal, therefore, directed the petitioner board to pay all benefits and salary attached to the post of supernumerary post of Junior Assistant with effect from the date of order of reference, i.e. 22.10.1991. The learned Tribunal also directed the petitioner board to pay the difference of salary with interest @ 6%. The petitioner board is aggrieved by the said award and directions. 4. Mr. Joshi, learned advocate for the petitioner board submitted that the learned Tribunal erred in not appreciating that the claimants were appointed as Helper and they were working on NMR basis and they did not comply the requirements prescribed by Circular No. 446 so far as the post of Junior Assistant is concerned but they fulfilled the criteria for the post of helper so they were taken on regular establishment on supernumerary post of Helper. He submitted that the claimants were not appointed on the post of Junior Assistant and that, therefore, they were not entitled for being regularised as permanent employee on regular establishment on the post of Junior Assistant and therefore, the impugned award is bad and unsustainable. 5. He submitted that the claimants were not appointed on the post of Junior Assistant and that, therefore, they were not entitled for being regularised as permanent employee on regular establishment on the post of Junior Assistant and therefore, the impugned award is bad and unsustainable. 5. Per contra, learned advocate for the claimant workmen submitted that the claimants were performing duties and functions of Junior Assistant and merely because they were designated as helper, the benefit should not be denied to the claimants by ignoring the fact that they were actually performing duties of Junior Assistant and had worked as such for 240 days for 4 years and therefore, they are entitled for being made permanent on regular establishment on the post of Junior Assistant. He submitted that the award passed by the learned Tribunal is justified and does not suffer from any error. 6. I have considered the submissions by learned advocates for the petitioner and the respondent. I have also considered the material on record and the award and reasons recorded by the learned Tribunal. 7. On examination of the record, it emerges that the petitioner board has placed on record office orders dated 9.5.86, 5.5.1987 and 6.5.1991 to establish that the concerned claimants have been appointed on the post of Helper. 8. However, in the facts and circumstances of the case, what is relevant is the claim and assertion by the concerned claimants. 9. The case of the claimants, as put up before the learned Labour Court, is to the effect that though they were appointed and designated as Helper, they were asked to work as and they were actually working as Junior Assistant and performing duties of Junior Assistant. 10. It is also claimed that there were other persons also who were similarly placed inasmuch as they were also made to perform duties of Junior Assistant and subsequently, the petitioner board granted benefit of Circular No. 446 to them and they were made permanent on regular establishment on the post of Junior Assistant. 11. During the hearing of the petition, learned advocate for the petitioner board could not dispute the finding of fact recorded by the learned Tribunal that the concerned claimants had worked for 960 days during span of 4 years as Junior Assistant and had performed duties of Junior Assistant. 12. 11. During the hearing of the petition, learned advocate for the petitioner board could not dispute the finding of fact recorded by the learned Tribunal that the concerned claimants had worked for 960 days during span of 4 years as Junior Assistant and had performed duties of Junior Assistant. 12. Learned advocate for the petitioner board also could not dispute the finding of fact recorded by the learned Tribunal that Mr. Chavda, one of the concerned claimants had worked as Junior Assistant from 11.5.1987 to 7.5.1990. 13. The learned Tribunal has, on the basis of the evidence and material on record, reached and recorded finding of fact to the effect that (a) the concerned claimant possessed qualifications required for post of Junior Assistant; (b) the concerned claimants have been working as and performing duties of Junior Assistant; (c) persons similarly placed as the concerned claimants but junior to the concerned claimants have been granted the benefit of Circular No. 446 and have been made permanent on regular establishment on the post of Junior Assistant; (d) in para 20 of the award the learned Labour Court recorded finding of fact that the concerned claimants were working as and performing duties of Junior Assistant and in para 23 of the award, the learned Labour Court has recorded the finding of fact that the concerned persons possessed the qualifications required for the post of Junior Assistant and that the petitioner board has availed service of the concerned claimants as Junior Assistant and that it is also established that they completed services of 960 days during 4 years while performing the duties as Junior Assistant. 14. Any material contrary to the findings of fact recorded in para 23 of the award is not brought to the notice of the Court during the hearing of present petition. Learned advocate for the petitioner board could not dispute the finding of fact recorded by the learned Tribunal in para 20 and/or para 23 of the award. Further, any material is not shown from the record which would establish and would convince the Court. 15. In this view of the matter, this Court would not sit in appeal over the finding of fact recorded by the learned Tribunal and this Court would not re-appreciate the evidence. 16. Further, any material is not shown from the record which would establish and would convince the Court. 15. In this view of the matter, this Court would not sit in appeal over the finding of fact recorded by the learned Tribunal and this Court would not re-appreciate the evidence. 16. In this background, it is appropriate to take into account the relevant provisions under Circular No. 446: "1) All nominal muster roll of employees working in the Board who have completed as on 1.4.1983 240 days of continuous service in each of four or more years preceding 1.4.1983 or would complete such continuous service on a date subsequent to 1.4.1983 shall be deemed to be permanent on regular establishment in the prescribed time scale according to the nature of work being done by the employee concerned w.e.f. 1.4.1983 or the subsequent date as the case may be. That is, an NMR employees working as a welder, and satisfying the conditions for regular employment as above would be appointed in the same capacity in a regular post. Continuous service shall mean services rendered by N.M.R. employee for 240 days in a year. However if an N.M.R. employee has put in aggregate continuous services of 960 days with the Board, he shall be deemed to have completed four years of continuous service. Continuous service for the purpose of the above clause shall be as defined under Section 25B of the Industrial Disputes Act. For the purpose of absorption as aforesaid, supernumerary posts would be deemed to have been created at the stations in which N.M.R eligible for absorption under the terms of this settlement are working. The supernumerary posts would be adjusted against regular posts of the categories in which absorbed, as may be sanctioned from time to time hereafter. Details of persons taken up on regular employment and of supernumerary posts created therefore, should be reported to the Labour Section of Head Office within 2 months." 17. Having regard to the said observations and findings of fact recorded by the learned Tribunal, the directions contained in the award, except the direction requiring the board to pay the difference of amount with interest @ 6%, cannot be faulted. 18. Before proceeding further, it is relevant to mention that in the rejoinder affidavit, the petitioner board has stated, inter alia, that: "1. 18. Before proceeding further, it is relevant to mention that in the rejoinder affidavit, the petitioner board has stated, inter alia, that: "1. That both the respondents herein have duly given the benefit of Establishment Circular No. 446 dated Feb. 14, 1985 (Exh. No. 14), which provides for muster roll employees to be taken on regular establishment according to the nature of work being done by them, if they have completed 240 days of continuous service in a year etc. Since the two respondents, working as Helpers, were qualifying for the said benefit under the said Circular No. 446, they were taken on regular establishment as per details given below. 2. Respondent No. 1 was appointed to the post of store helper vide order dated 1.5.1986 which post he joined on the same date. He has since been working with the petitioner PGVCL without any protest and has in due course been appointed as Junior Assistant on 31.3.2004. His service book is annexed hereto and is marked as ANNEXURE-1 coly. It may not be out of place to mention here that now the gross salary of respondent No. 1 is Rs. 28,894.51/- and he is in the line of promotion to the post of Senior Assistant according to his merit and seniority." 19. Besides this, a copy of the order dated 31.3.2004 issued by the board in favour of the petitioner Mr. Chavda is placed on record. 20. Thus, from the said material, it becomes clear that the board itself issued the order making respondent No. 1 permanent on regular establishment on the post of Junior Assistant vide order dated 31.3.2004 i.e. before the date when the learned Tribunal passed the award on 26.7.2004. 21. The said action itself justifies the direction by the learned Tribunal requiring the petitioner board to consider the claims for the supernumerary post of Junior Assistant. 22. Such order is not issued in respect of respondent No. 2. On this count, it is relevant to mention that in the reply affidavit, the petitioner board has mentioned, inter alia, that: "3. Respondent No. 2 was also appointed to the post of store helper on 25.3.1986. He joined his duty on 27.3.1986. It may, however, be mentioned that he was not found regular in attending to his duty and disciplinary action had to be taken against him on more than one occasion. Respondent No. 2 was also appointed to the post of store helper on 25.3.1986. He joined his duty on 27.3.1986. It may, however, be mentioned that he was not found regular in attending to his duty and disciplinary action had to be taken against him on more than one occasion. Details of charges served on him and action taken are given in the copy of service book which is annexed hereto and marked as ANNEXURE-2 colly. His unauthorized absence from duty has, on 29.10.2001, finally led to the penalty of termination from service under Service Regulation No. 113." 23. From the said details mentioned in the reply affidavit, it appears that the service of respondent No. 2 is probably terminated on 29.10.2001. 24. During the hearing of this petition, the Court is informed that the approval application with regard to the termination order passed against respondent No. 2 is rejected by the learned Tribunal and the writ petition challenging the order passed by the learned Tribunal rejecting the approval application is pending before this Court. 25. What is pertinent is the fact that the approval application came to be rejected in 2006, i.e. after the learned Tribunal passed order impugned in present petition. 26. Thus, until the date on which the impugned order came to be passed by the learned Tribunal, respondent No. 2 was in employment with the petitioner board. 27. Having regard to the fact that any material to successfully assail the finding of fact recorded by the learned Tribunal with regard to the qualification of the concerned claimants and the finding of fact with regard to the total number of days worked by the concerned claimants while performing duties as Junior Assistant and the finding of fact that the concerned persons, though originally appointed as Helper were required to work and they were working as Assistant and they had worked as such for 960 days in 4 years, is not shown from the record of petition and learned advocate for the petitioner board could not dispute the said finding of fact. 28. Besides this, so far as respondent No. 1 is concerned, the petitioner board itself has passed the order appointing him as Junior Assistant but the effect is given on 31.3.2004. 29. 28. Besides this, so far as respondent No. 1 is concerned, the petitioner board itself has passed the order appointing him as Junior Assistant but the effect is given on 31.3.2004. 29. Under the circumstances, there is no reason or justification to interfere with the finding of fact recorded by the learned Tribunal or the direction obliging the petitioner board to pay difference of salary with effect from 22.10.1991 does not warrant interference. 30. However, so far as the direction to pay interest at the rate of 6% is concerned, the said direction is set aside. Accordingly, the petition is partly allowed. Rule is made absolute to the aforesaid extent.