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Allahabad High Court · body

2019 DIGILAW 933 (ALL)

Kanpur Jal Sansthan v. State of U. P.

2019-04-12

B.AMIT STHALEKAR

body2019
JUDGMENT : B. Amit Sthalekar, J. 1. Heard Sri R.M. Saggi, learned counsel for the petitioners and Sri Rajesh Tiwari, learned counsel for the respondent No. 3. 2. The petitioner is seeking quashing of the award dated 25.6.1998 passed by the Labour Court in Adjudication Case No. 218 of 1991. 3. Briefly stated the facts of the case are that the respondent No. 3 initiated proceedings before the State Government claiming that he shall be given the benefit of the post of Laboratory Assistant. The State Government referred the dispute to the Labour Court, which was registered as Adjudication Case No. 218 of 1991. The reference was as to whether the conduct of the petitioner department in taking the work from the respondent No. 3-workman of the post of Laboratory Assistant and not giving him the designation and the scale of pay of that post was valid? The case of the respondent workman was that he was appointed in the Kanpur Jal Sansthan on 16.2.1981 on the post of Beldar but the work of Laboratory Assistant was being taken from him. He also claimed that he had the qualification of B.Sc. (Biology) which is the requisite educational qualification prescribed for the post of Laboratory Assistant. The contention of the respondent No. 3 workman is that he has been working on the post of Laboratory Assistant w.e.f. 1.1.1985. The Labour Court by the impugned award has allowed the claim of the respondent No. 3 workman and held that the respondent workman shall be paid the salary/wages of the post of Laboratory Assistant w.e.f. 1.1.1985. 4. The contention of Shri R.M. Saggi, learned counsel for the petitioner Jal Sansthan is that the post of Laboratory Assistant in the petitioner department is a post required to be filled on the basis of direct recruitment and for which process of selection was also initiated against which the respondent workman had also submitted his application. It is also stated that the respondent workman may from time to time has assisted in the laboratory test but otherwise these tests are required to be carried out by Chief Water Analyst and Assistant Chemist. 5. It is also stated that the respondent workman may from time to time has assisted in the laboratory test but otherwise these tests are required to be carried out by Chief Water Analyst and Assistant Chemist. 5. On behalf of the workman an application 11/D was filed for producing documents in the court, therefore, the parties agreed to a joint inspection and accordingly a joint inspection of the record was done and its report, paper No. 15/D was filed before the court, copy of which has been filed as annexure-4 to the writ petition. The workman also filed an application 23/D directing the administration to file the letter dated 19.10.1985 in which recommendation was made for appointing him as Laboratory Assistant and on this application the Labour Court also passed orders directing the petitioner administration to produce the letter dated 19.10.1985 but the impugned award of the Labour Court shows that the petitioner administration did not produce the said letter. 6. On behalf of the petitioner administration seven documents in list 16-B(1) was filed and on behalf of the workman five documents were filed in list 31-B(2). The workman was also examined in evidence in which he stated that on 16.2.1981 he was appointed on the post of Daily Wage Supervisor but thereafter he was appointed on a permanent basis on the post of Beldar. He also stated that his educational qualification was B.Sc. (Chemistry), which is the requisite qualification for appointment to the post of Laboratory Assistant. During cross examination the workman, however, admitted that no order was ever issued appointing him on the post of Laboratory Assistant or even directing that the work of Laboratory Assistant be taken from him. He further admitted that the appointing authority to appoint Laboratory Assistant under the Rules was the General Manager, Jal Sansthan. He also stated that in the year 1989 he submitted an application for appointment on the post of Laboratory Assistant but till the time of coming to the court no order had been passed. 7. He further admitted that the appointing authority to appoint Laboratory Assistant under the Rules was the General Manager, Jal Sansthan. He also stated that in the year 1989 he submitted an application for appointment on the post of Laboratory Assistant but till the time of coming to the court no order had been passed. 7. On behalf of the workman one Bishan Chandra Shukla, Laboratory Assistant and Smt. Amita Bajpayee were examined as witnesses who stated that from time to time the work of Laboratory Assistant was being taken from the respondent workman since 1981 but at the same time Shri Bishan Chandra Shukla, employee witness also stated that the work of Laboratory Assistant at that time was being taken from the respondent No. 3. He further stated that the job of Laboratory Assistant was to check water turbidity and ALM doning and to carry out such task as given by the Chemist and Assistant Chemist and to make notings in the register and in this work the respondent workman was assisting him. Smt. Amita Bajpayee in her statement stated that she was working as Chemist in the Laboratory and she also verified her signature on paper No. 1, filed alongwith list 31-B(2) as also her handwriting Ext. W-3. She has also identified the signature of the respondent No. 3 Ext. W-4 but she also admitted that the respondent workman was transferred from the Laboratory. She also identified the signature of the respondent No. 3 in the OT list and further stated that the respondent No. 3 used to assist in the work of examination of ALM doning and water turbidity test and that he also used to work independently. 8. On behalf of the petitioner administration one Krishna Kumar Shukla was examined on 16.2.1993 as Management witness-1 and he has stated that he was working on the post of Chief Water Analyst since 1967 under the Department and that the respondent workman was working in the Department on the post of Beldar and that there was no order appointing him or to take work from him of the post of Laboratory Assistant. He reiterated that the post of Laboratory Assistant was a post to be filled by the direct recruitment through process of selection and that the respondent No. 3 had also applied for the said post but because there was a ban on recruitment by the State Government, therefore no selection was held. He further stated that the work of Beldar in the petitioner administration was checking water and chlorine test as well as ALM doning but he stated that the work of Laboratory Assistant was of a technical nature which the respondent workman was not competent to do. He further stated that the Beldar use to keep the register but it was wrong to say that he was working as Laboratory Assistant. 9. From the pleadings of the parties and the documents on record the undisputed facts that emerge are that the post of Laboratory Assistant is a selection post to be filled by direct recruitment through the process of selection. The respondent workman has never been appointed on the post of Laboratory Assistant as there is no order in writing to that effect although he had given an application in 1989 to be appointed on the said post but due to ban imposed by the State Government on recruitment selection was not held. It is not disputed that the respondent No. 3 was working on the post of Beldar under the petitioner Department and in that process he may have assisted the Chemist or Assistant Chemist in their work but it cannot be said that he was discharging the functions of the post of Laboratory Assistant which are of a highly technical nature. Infact no ALM doning report or water turbidity report under the signature of the respondent No. 3 workman has been produced before the Labour Court or referred to by the Labour Court. Merely because the signatures of the respondent No. 3 at some places in the register, reference report Annexure-4 to the writ petition, were identified by the workman witness Smt. Amita Bajpayee, does not mean that the respondent No. 3 was continuously working or discharging the functions and duties of Laboratory Assistant. What I further find is that at one place the respondent workman had mentioned his educational qualification as B.Sc. (Biology) and at another place he has mentioned his educational qualification as B.Sc. (Chemistry). What I further find is that at one place the respondent workman had mentioned his educational qualification as B.Sc. (Biology) and at another place he has mentioned his educational qualification as B.Sc. (Chemistry). I also find from the statements of the workman witnesses Shri Bishan Chandra Shukla and Smt. Amita Bajpayee that the respondent workman was working in the Laboratory but the finding recorded by the Labour Court that he was actually discharging the duties and functions of the Laboratory Assistant, merely on the assumption that the recommendatory letter dated 19.10.1985 was not produced by the petitioner management, is a wholly erroneous finding, based on no evidence that the respondent workman had actually discharged the duties and functions of the Laboratory Assistant. Not a single analysis report has been called for or examined by the Labour Court to come to the conclusion that the respondent workman was actually discharging the duties and functions of the post of Laboratory Assistant. Infact, Shri Bishan Chandra Shukla in his testimony has stated that the work of the Laboratory Assistant at the relevant time was not being taken from the respondent workman. Smt. Amita Bajpayee has also only stated that the respondent workman used to look after the work of ALM doning and water turbidity checking but at the same time she also stated that he was assisting her in her work. Assisting Smt. Amit Bajpayee, workman witness who was the Chemist in the Department in her work while checking water turbidity or ALM doning is not the same as actually performing the duties of a Laboratory Assistant. 10. Therefore on the facts of the case I find that the Labour Court has completely misread the testimony of the workman witnesses and the documents on record and recorded a wholly erroneous finding. 11. For reasons aforesaid the impugned award of the Labour Court dated 25.6.1998 is absolutely illegal and contrary to the evidence on record and is accordingly set aside. 12. The writ petition stands allowed.