S.R.Singh - (1.) NATIONAL Thermal Power Corporation, in short 'the Corporation' is a company incorporated under the Companies Act, 1956. It is a Public Sector Corporation with all its shares held by the President / Central Government. Amongst the main objects to be pursued by the Corporation is "to act as an agent of Government/Public Sector Financial institutions, to exercise all the rights and powers exercisable at any meeting of any Company engaged in the planning, investigation, research, design and preparation of preliminary, feasibility/and definite project reports, construction, generation operation and maintenance of Thermal Power Stations and Projects, transmission, distribution and sale of thermal power, in respect of any shares held by the Government, public financial institutions, nationalised banks, nationalised insurance Companies with a view to secure the most effective utilisation of the financial investments and loans in such companies and the most sufficient development of the concerned industries." Bir Bhadra Patel, the 3rd respondent (a workman employed in the Corporation), raised certain dispute through .NATIONAL Thermal Power Corporation Employees' Union, Shaktinagar, District Sonbhadra, the 2nd respondent, on the basis of which following issues were referred for adjudication to the Industrial Tribunal, U. P. Allahabad by the State Government in exercise of its power under section 4-K. of the U. P. Industrial Disputes Act, 1947 vide order of reference dated 8th September, 1988 - (1) Kaya sevayojako dwara apne Shramik Virendra Patel Putra Shri Brijman Patel Dresser Cum Compounder ko Rs. 650-980 ko vetan man diya jana chaheya ? Yadi ha to kiss thithi se ave kiss anya vivran sahit ? (2) Kay a sevayojako dwara apne Shraruik Virendra Patel Putra Shri Brijman Pattl Dresser cum Compounder ko esthaye na kiya jana uchit thatha / athva vaidhamik ha ? Yadi nahi, to sambandhit Shraruik kiss labhe chatipurti (Relief) pane ka Adhikari ha, kiss thithi se eva auya kiss viran sahit ?
(2.) ON the basis of the aforesaid reference a case it being adjudication case No. 117 of 1988 was registered before the Industrial Tribunal (I) U. P. Allahabad, which made its award on 9-10-1990, and the same was published on 23-11-1990. The petitioner was directed by means of the said award to make the 3rd respondent permanent on the post of Dresser- cum-Compounder w.e.f. 2-2-1984 and to pay him the wages in the grade of Rs. 650-980 w.e.f. the said date viz 2-2-1984. The legality and validity of the said award has been challenged by the petitioner in the instant writ petition, In his written statement of demand the workman contended that he was appointed on permanent basis as a dresser-cum-compounder in the hospital of the petitioner Corporation on 16-6-79 and his services were illegally terminated we.f 16-4-1984, whereupon his union got the matter referred to the Labour Court, for adjudication under section 4-K. of the U. P. Industrial Disputes Act, 1947. The said dispute, it being Adjudication Case No. 58 of 1985, was decided in his favour on 27-2-1986 by the Industrial Tribunal, U. P. Allahabad and he was directed to be reinstated with full back wages and other benefits. The award given by the Tribunal in the said adjudication case no. 58 of 1985 was affirmed by the High Court, while dismissing the writ petition filed by the employer vide order dated 16-7-1986. The employer, however, it was contended by the workman, re-instated him not as a regular employee but as a casual workman and not as dresser- cum- compounder but as a helper in dis-regard of the award given by the Industrial Tribunal, Allahabad in Adjudication case No. 58 of 1985. According to the workman this amounted to an act of unfair labour practice done by the employer and in the circumstances of the case he claimed compensation of Rs. 20,000/- as well as confirmation as dresser-cum-compounder w.e.f 240 days after 16-6-1979, which was the date of his initial appointment. The defence set up by the employer to the demands of the workman was that he remained in their employment intermitently for different periods as semi-skilled casual workman between August, 1979 and 15th June, 1981 and even during this period he did not complete continuous service of one year during any 12 consecutive calendar months. According to the Employers, Bir Bhadra Patel the workman was employed by different contractors in contention with the work of the establishment after June, 1981 and during this period National Thermal Power Corporation or for that purpose Singrauli Super Thermal Power Station, Shakti Nagar, District Sonbhadra, remained only his principal employer within the meaning of Contract Labour (Regulation and Abolition) Act and no relationship of employer and employee existed between them. According to the petitioners, dispute, if any, could be raised only against the contractor and not against the petitioner.
(3.) I have heard Sri Vijay Ratan Agarwal for the petitioner and Sri K. P. Agarwal for the respondent workman. The learned counsel for the petitioner while challenging the legality and validity of impugned award has raised following contentions ; First, that the appropriate Government in relation to the petitioner Corporation is the Central Government and the reference by the State Government under section 4-K of the U. P. Industrial Disputes Act, 1947 was wholly incompetent and without jurisdiction in as much as the appropriate Government in relation to the petitioner being the Central Government, the reference could lawfully have been made only by the Central Government. The award, according to the learned counsel for the petitioner, is void for the reason that it has been given on an incompetent reference ; Secondly, that the award is vitiated for the reason that the Tribunal has illegally directed regularisation of the workman with retrospective effect even though he did not possess the requisite qualification for the post of dresser-cum-compounder, which has since been redesignated as Pharmacist. According to the learned counsel for the petitioner, the regularisation ot the workman ordered by the Tribunal is violative of the provisions of Articles 14 and 16 of the Constitution, in that it results in denial of equal opportunity for being considered for the post, etc. those, who were eligible and qualified for being appointed as Pharmacist in the establishment ; and Thirdly, that the award is invalid also for the reason that the Tribunal has ordered regularisation of the workman without considering the effect of the workman having not done any work attached to the post of dresser-cum- compounder/Pharmacist, at least after his re-instatement. The learned counsel for the respondent workman on the other hand contended before me that appropria'e Government concerning the petitioner is the State Government within the meaning of section 2 (a) (ii) of the U. P. Industrial Disputes Act and within the meaning of term as interpreted by the Supreme Court in Heavy Engineering Majdoor Union v State r,f Bihar, AlR 1970 SC 82 and that the reference made by the State Government, under section 4-K of the U. P. Industrial Disputes Act, 1947 was perfectly valid. The learned counsel for the respondent workman further contended that the question of the reference being not made by the appropriate Government was not raised before the Tribunal and, therefore, the petitioner having lost the case from the Industrial Tribunal, is not entitled to raise the validity of the reference made by the State Government on the ground that it was not made by the appropriate Government. On the question of regularisation of the workman, the learned counsel for the respondent workman contended that In view of the finding given by the labour Court in adjudication case no. 58 of 1985 to the effect that Bir Bhadra Patel, the respondent workman, was working as dresser- cum-compounder in NTPC/SSTPP throughout until his services were terminated in the year 1984 and he believed himself to be in direct employment (on regular muster roll) of the Corporation and since he had been in the continuous employment of the Corporation as Pharmacist ever since February 2, 1981, the direction given by the Labour Court to its award dated 27-2-1986 tor treating him as continuing in employment necessarily means hat he should be treated in the employment of the petitioner as dresser- cum-compounder redesignated as Pharmacist. The learned counsel further contended that the question of non-fulfilment of the requisite educational qualification for the post of Pharmacist, was relevant at the time of his initial appointment and not after he was allowed to work on the post for more than three years w.e.f. 2-2-1984 to atleast 15-4-1984, during which petiod the workman gained sufficient experience to enable him to claim regularisation on the post of Pharmacist even if he was not possessed of the requisite educational qualification.;