Civil Writ Petition No.3360 of 1996 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.3360 of 1996 Date of Decision:24.10.2008 The [ENTITY] and another Petitioners Vs. Shri [ENTITY] and another Respondents CORAM:- HON'BLE MR. JUSTICE [ENTITY] Present:- Mr. [ENTITY], AAG, Punjab for the petitioners. Mr. [ENTITY], Advocate for respondent No.1. [ENTITY], J.
This petition has been moved by the [ENTITY] and others under [SECTION] of the [ACT] for quashing the award dated 28.11.1995 (Annexure P.9).
The facts giving rise to this petition are that [ENTITY], respondent was appointed as Cleaner in the pay-scale of Rs.30-1/2 - 35 in the month of December, 1962. He joined his duty as Cleaner on 21.12.1962. Till today, he is working as such in the office of the petitioner. As per Punjab Pay Commission Recommendation and [ACT], the option was sought. As per his option as Cleaner, his (workman-respondent) pay was revised accordingly. Now he is drawing pay of Cleaner in the scale of Rs.800- 1455/-, Basic pay Rs.1280+25/-. The duties of Cleaner is to wash and clean the vehicle of the petitioner. He has been assigned the duties accordingly. He was never appointed/ promoted as Electrician Class III post by the petitioner. There is only one sanctioned post of Electrician in the office of petitioner No.2. Against this post, [ENTITY], etc., have already been working as Electrician. The respondent- workman is illiterate. Lastly, it has been prayed that the impugned award is liable to be set aside on the grounds embodied in this petition.
In the written statement, the respondent- workman has inter-alia pleaded that the State has no cause of action to file this petition because the Labour Court in its order dated 28.11.1995 (Annexure P.9) has directed the State to pay wages with effect from 1.1.1978 to 31.12.1992 for which the answering respondent has worked as Electrician. It is a finding of fact returned in favour of the answering respondent. As per Ex.AW2/2 dated 23.10.1978, Ex.2/6 dated 14.5.1983, Ex.AW2/7 dated 27.4.1981, Ex.AW2/1 dated 26.4.1985 and Ex.AW2/2/1 dated 8.5.1992, the answering respondent has worked as Electrician for the aforesaid period. Lastly, it has been prayed that this petition may be dismissed.
The following issues were framed by the learned trial Court:-
1) Whether the application is barred by resjudicata?
2) Whether the applicant has no existing right to make the claim?
3) Whether the applicant is entitled to the amount claimed?
After hearing the respective representatives of the parties and examining the evidence on record, the learned Presiding Officer, Labour Court vide order dated 28.11.1995 held that the applicant is entitled to the wages of Electrician for the period from 1.1.1978 to 31.12.1992 and directed the respondents (the present petitioners) to compute the difference of pay drawn by him as Cleaner and that of Electrician to which he was entitled during the above said period. It was further directed that computation be supplied in tabulated form to this Court (referring to Labour Court) by 20.12.1995. Feeling aggrieved therewith, the petitioners have preferred this petition.
I have heard the learned counsel for the parties, besides perusing the findings returned by the learned Presiding Officer, Labour Court with due care and circumspection.
Mr. [ENTITY], Assistant Advocate General, Punjab on behalf of the petitioners strenuously urged that the respondent- workman being an illiterate person could not be appointed to the post of Electrician and that being so, the impugned order is liable to be set aside. He further argued that in re: [ENTITY] and Others v. Presiding Officer and others, AIR 1988 Supreme Court 1618, the workmen had claimed under [SECTION] of the [ACT] (for brevity `the Act') that they should be classified as "B" Grade Fitters even though they had been appointed as "C" Grade Fitters on the ground that they had been performing the duties which were similar to the duties of "B" Grade Fitters. The Apex Court held that "such a relief could not be claimed under the aforesaid Section. By merely doing the same kind of work which is done by a "B" Grade Fitter, a workman appointed as a "C" Grade Fitter will not be entitled to claim the wages of a "B" Grade Fitter unless he is duly promoted after getting through the prescribed trade tests." On the analogy of these observations, he canvassed at the bar that the learned Presiding Officer, Labour Court was not justified in holding that the respondent- workman was entitled to the wages of Electrician for the period in question.
Mr. [ENTITY], Advocate representing the respondent- workman countered these arguments by agitating that all the letters issued by petitioner No.2 and relied upon by the Labour Court in the impugned order tend to show that specific directions were given to the workman to perform the duty of electrician. He further pressed into service that the findings of fact returned by the learned Presiding Officer, Labour Court cannot be interfered with in view of the observations made by this Court in re: [PRECEDENT] through [PRECEDENT] and State Transport, Punjab v. [ENTITY], 2001(4) Service Cases Today
386. I have given a deep and thoughtful consideration to the rival contentions.
The learned Presiding Officer, Labour Court observed as under:-
8. There is the statement of the applicant as AW-2 in support of his claim. AW-1 [ENTITY] did not oblige him and did not bring summoned record. Yet there is no evidence of the respondent. Therefore, statement of the applicant carries weight. He has deposed that though he was appointed as a cleaner on 20.12.1962 as class IV employee, yet he had been working as Electrician a Class III post since 13.6.1977.
Even the Chief Medical Officer gave commendation certificate. He produced several letters to show that he worked as electrician and not as cleaner. He marked his presence in the attendance register as electrician.
9. Ex. AW-2/2 dated 23.10.1978 is letter from the Senior Medical Officer Incharge Civil Hospital, Kapurthala addressed to the applicant where he was described as electrician. He was asked to take charge from [ENTITY] who had proceeded on one month leave. Vide Ex.AW2/6 dated 14.5.1983, he was asked by SMO Civil Hospital, Kapurthala to do repair work of electrical fittings. He was described as Electrician. Similarly, vide Ex.AW-2/7 dated 27.4.1981, Civil Surgeon, Kapurthala asked the S.M.O. Incharge Civil Hospital to depute "[ENTITY] Electrician" for repair of electric fan fitting in K.M. Lab. Kapurthala, Ex.AW-2/1 dated 26.4.1985 and Ex.AW2/2/1 dated 8.5.1992 are letters from S.M.O. Civil Hospital, Kapurthala to the applicant describing him as Electrician and asking him to do certain electric repairs. Then there is certificate by [ENTITY] to the Distt. Family Planning Officer, Kapurthala and [ENTITY] commending service of the applicant as electrician from 1982 to 1983. From the above material, it is proved that the applicant performed duties of Electrician till the date he filed suit in the court of Senior Sub Judge, Kapurthala, at lease from 23.10.1975. Since he performed duties of Electrician, he is entitled to the wages payable at an electrician. He has claimed wages as such from 1.1.1978 to 31.12.1992, besides, H.R.A. and D.A. as stated at the outset of the order. There is no rebuttal to this contention. This issue is decided in favour of the applicant."
Apparently, the above findings are based on documentary evidence. In Ex.AW2/2, the workman has been described as Electrician. He was asked to take charge from [ENTITY], Carpenter who had proceeded on one month leave. Vide Ex.AW2/6, the workman was asked by SMO, Civil Hospital, Kapurthala (referring to the petitioner No.2) to do the repair work of electrical Fittings. To my mind, the above-referred findings of fact are not liable to be disturbed in view of the observations rendered in re: M/s Alfamet Private Ltd. (supra) as well as [ENTITY] (supra). Palpably, the learned State Counsel has made every endeavour to make much capital out of the observations made in re: [ENTITY] and Others (supra). As is borne out from the facts of that case, the workmen had moved under [SECTION] ibid that they should be classified as "B" Grade Fitters though their appointment was made as "C" Grade Fitters. One thing is clear that the workmen were basically Fitters. They wanted to be classified as "B" Grade Fitters by way of promotion. In the present case, the workman has not sought to be promoted as electrician. He has simply claimed wages for his having done the work of electrician. There is voluminous documentary evidence showing that at the instance of petitioner No.2, the workman had to do the work of Electrician. There is also a specific mention in the impugned order that Chief Medical Officer, Kapurthala as well as Senior Medical Officer, Kapurthala had commended the services of the workman as Electrician from 1982 to 1983. It leaves no room for doubt that the workman knew the job of an Electrician and it is because of this reason that the work of Electrician was being taken from him. Thus, in my view, the observations rendered in re: [ENTITY] and Others (supra), in no manner applies to the facts of the instant case.
In view of the preceding discussion, I do not consider it proper to interfere with the impugned order in the exercise of writ jurisdiction under [SECTION] of the [ACT]. [ENTITY], this petition is dismissed.
October 24, 2008 ( [ENTITY] ) renu JUDGE