1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.6018/1997 Sohan Lal vs. Assistant Engineer, F.M.D. & Anr. Date of order : 5/2/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri R.C. Joshi for the petitioner. Shri S.D. Khaspuria, Addl. Govt. Counsel for the respondents. ****** Heard the learned counsel for the parties. This writ petition has been filed by the petitioner Sohan Lal challenging the validity of the award dated 12.9.1996, by which the learned Industrial Tribunal, Kota held that the action of the respondents in not promoting / appointing petitioner on the basis of seniority on the post of Machine Operator is legal and that the petitioner is not entitled to any relief. Apart from making several other arguments, learned counsel for the petitioner in specific referred to the seniority list dated 19.4.1991 issued by the Executive Engineer, Field Machinery Division, Kota wherein name of the petitioner appears at S.No.35, whereas name 2 of Bhola Ram appears at S.No.48 and Mohal Lal at S.No.50. It is argued that even though all these persons were junior to the petitioner, yet they were promoted as Operator. Petitioner was assigned the work of the Operator from 8.4.1985 to 11.5.1985 by written order, yet they were promoted/appointed as Operator and petitioner was not promoted. Learned counsel submitted that the specific claim of the petitioner before the Industrial Tribunal was that right from the date of his initial appointment, he has been discharging the duties of Operator and many of his juniors were appointed / promoted as Operator, but his case was not considered. The learned Industrial Tribunal has however rejected claim of the petitioner on the ground that those juniors were not impleaded as party and that in an earlier writ petition filed by the Union in the case of Chambal Abhiyantrika vs. State, petitioner was also a party. In the schedule appended to memo of that writ petition the above referred to persons were got shown as Operator whereas the petitioner was shown as helper. Learned 3 counsel further argued that the Labour Court has negatived claim of the petitioner on the premise that the petitioner has filed an affidavit before this Court in the aforesaid writ petition that no other matter was pending consideration with this Court with regard to claim of the petitioner. It is contended that the context in which affidavit was filed was the claim in the writ petition which was filed way back in the year 1995 by the Union whereby the declaration was sought that the employees mentioned in the schedule appended to the writ petition including Work Charged Rules of 1996 be considered and it was prayed that the respondents be directed to pay arrears of salary to the members of the petitioner union from the date they have completed two years of service for being declared semi permanent. This Court by allowing the writ petition directed the respondents to give to the members of the petitioner union the benefit of work charged and declare them semi permanent from the date of completion of two years of service and grant them salary in the regular pay scale. That was an 4 altogether different claim than the one which was pending adjudication before the Tribunal at that time even before the decision in the writ petition. The Tribunal has not given any finding on the question involved in the matter, especially with regard to the fact that many of the petitioner's junior were promoted and appointed as Operator, but petitioner was not promoted. The matter therefore requires reconsideration and requires to be adjudicated afresh by the Tribunal. Shri S.D. Khaspura, the learned Additional Government Counsel for the respondents opposed the writ petition and argued that the Tribunal has taken note of the fact that petitioner was required to give affidavit. He merely gave the affidavit that no such claim was pending before this Court, but no reference was made to the dispute pending before the Industrial Tribunal. Learned counsel submitted that persons, who are junior to the petitioner were not made party and that the petitioner was working in another sub division and the junior persons were in a different sub- 5 division. Learned counsel submitted that while Bhola Ram was appointed as Operator since December, 1980, Siya Ram was promoted as Operator from the post of Driver on 30.1.85. The case of the petitioner was therefore not comparable with their cases. The petitioner-helper was required to work as Operator on temporary basis only because the machine was required to be run in double shift. Having heard the learned counsel for the parties and perused the award and other material forming part of the record, I find that even though the petitioner has set up a specific plea in the statement of claim which was duly supported by the seniority list in which he categorically stated with regard to the fact that his above referred to juniors being promoted / appointed as Operator, but the learned Tribunal has not given any finding on this aspect and brushed aside the argument by simply observing that petitioner has not impleaded those persons as party before the Industrial Tribunal. In the practice and procedure that is adopted in the Labour Court, reference case is 6 prosecuted at the instance of worker/union, which is opposed by the management. It may not be therefore necessary to implead the juniors persons as party before the Tribunal as per the procedure contained in Industrial Disputes Act and the rules framed thereunder. When the petitioner and those others, who were appointed / promoted as Operator were in the common seniority list dated 19.4.1991 and petitioner was shown senior to them, it was very necessary for the Tribunal to have rendered its finding as to the correctness or otherwise of the promotion granted to the juniors. The affidavit that was required by this Court in the earlier writ petition filed by the Union was given in an altogether different context where the claim was made by the union on behalf of its members that they be extended the benefits of Work Charge Rules. This Court merely directed that members of the union be granted semi permanent status. The dispute that was raised before the Tribunal in the present matter was therefore essentially different in its scope. In my considered view, the Tribunal has committed 7 an error by not answering the reference on its merits and answering the same in negative on technicalities, rather than on the real issues that are involved in the matter. In the result, this writ petition is allowed and the impugned award dated 12.9.1996 is quashed and set aside and the matter is remanded back to the Tribunal for fresh adjudication. The parties would be at liberty to adduce any fresh evidence which they make like to produce in support of their claim/counter claim. The Tribunal is expected to give priority to this matter except any other matter pending after 1990 because reference in this case was made on 16.1.1990. The parties are directed to appear before the Tribunal on 8.3.2010. (MOHAMMAD RAFIQ), J. RS/