- (1.) RAKESH Tiwari, J. Heard Smt. Kirtika Singh for the petitioner and perused the record.
(2.) THE application has been filed for recall of the order dated 25-11-2003 dismissing the writ petition for want of prosecution. THE ground taken in the application is that she failed to make the case in the list of 25-11-2003, as such no Counsel could appear from the side of the petitioner when the case was taken up. THE nature of work of an advocate is professional, as such there is no question of exoneration of such mistakes on their part, as such no sufficient cause has been shown for restoration of the writ petition. I have gone through the record at the instance of the learned Counsel for the petitioner who states that the matter may be decided on merits. From the record I find that this petition has been filed for quashing the award of the Labour Court dated 25-6-1984 enforced by publication on the notice board on 23-8-1984. The award arose out of a reference made by the State Government vide reference order No. 6977 (Shra. Aa.)/36 Shram (1) CB. 1328 (Kanpur)/81, dated 4-10-1983 under Section 4-K of the U. P. Industrial Disputes Act for the adjudication of an industrial dispute between M/s Swadeshi Cotton Mills and their workman Hardaya Narain Misra. The terms of reference are as under : "kya sevayojkon dwara apney shrmik Hardaya Narain Misra putra Sri Deviratan Misra, senior lipik, ticket No. 88459 shift general, price control vibhag ko incharge price control ka pad va tadnusar vetan na diya jana uchit athwa vaidhanik hai? Yadi nahin to vivadit shramik kya labh/anutosh (relief) paney ka adhikari hai tatha kis tithi sey avam kin anya vivaran sahit?" The Labour Court has given the following findings : "i have gone through the pleadings of the parties, the documents filed by the workman and the oral evidence produced by the parties and have also heard the learned representatives appearing for the two parties. It is the common case of both the parties that H. N. Misra workman is working as a senior clerk in M/s Swadeshi Cotton Mills. It is also conceded by both the parties that there was a post of Incharge price control in the employers concerned and the post was held till November, 1975 by one Bhagwat Dayal who resigned from service and that since then the post has not been filled up. The employers say that they have not filled up this post as they did not see the necessity and have given charge of the Incharge Price Control to some other officers of the concern in addition to their duties. The workman, on the other hand, says that he has been working as an Incharge Price Control Section since the retirement of Bhagwat Dayal in November, 1975 and has been signing all the papers as Incharge Price Control and, therefore, he should be designated and paid as such. I have closely perused the documentary and oral evidence and have given my anxious consideration to the evidence and the circumstances of the case. Some facts which prominently came out are : (1) Undisputedly the post of Incharge Price Control existed in M/s Swadeshi Cotton Mills uptil November, 1975 and was held by one Bhagwat Dayal. The post has not been abolished by the employers. They do not assert that the post has been abolished. The numerous notes addressed to Incharge Price Control filed by the workman also show that the post of Incharge Price Control continued to exist through the years 1977, 1978, 1980, 1981 and 1982 right upto 1984. In the documents filed by the workman there are numerous notes which are actually addressed to Incharge Price Control. If this post had been abolished in November, 1975, the aforesaid notes should not have been addressed in this form. It is abundantly clear that the post of Incharge Price Control was not abolished after the resignation of the last incumbent Bhagwat Dayal, but continue to exists and even now exists. (2) There is no written order of 1975 or 1976 by the Management saying that after the resignation of Mr. Bhagwat Dayal Incharge Price Control, such officer or official will now be the Incharge of Price Control section and will perform the Incharge Price Control's functions. (3) Inspite of opportunity given to the employers and inspite of specific query, the employers representative could not produce a single paper signed by Sri Satya Narain or Sri T. K. V. Raman, who according to them were looking after the price control section. It is significant that there is a long period from 1975 to 1984, but no paper signed by any officer as Incharge Price Control could be produced by the employers to controvert the documentary evidence of the workman. (4) There is overwhelming documentary evidence in support of the workman's version that he has been working as Incharge Price Control Section. In the documents filed by the workman, there are numerous notes and letters sent by him under his signatures to various sections and officers of the Mill as Incharge Price Control. He has also produced numerous notes addressed to Incharge Price Control. All these notes have come from workman Misra's custody. The above facts clearly show that the post of Incharge Price Control has not been abolished and has continued to exists in the years 1976-77 and onward right upto now and that Sri H. N. Misra, Senior Clerk has been performing the functions of Incharge Price Control all these years and signing the papers as Incharge Price Control. He should, therefore, have been designated as Incharge Price Control and given the salary admissible on that post. The employers contention that the post of Incharge Price Control is a promotion post and the employers have right to promote a suitable man, is not tenable in this case, because they have been sitting over the matter all these nine years and have not passed any orders regarding the promotion of anybody. I, therefore, hold that the employers action in not giving the designation and the salary of Incharge Price Control to workman H. N. Misra was not valid and legal and that he is entitled to be given this designation and the pay scale right from November, 1975. I give my award accordingly. I may, however, add that since no regular selection to this promotion post of Incharge Price Control has been made by the employers, they are even now free to make a regular selection out of the illegible persons till then Senior Clerk H. N. Misra will continue as Incharge Price Control. The Soot Mill Mazdoor Sabha which sponsored the workman's case shall be paid Rs. 100/- as costs. A copy of this award shall be sent to Government for further action. Sd/- P. D. Chaturvedi Presiding Officer Labour Court-i Kanpur"
(3.) IT appears from the record of the writ petition that no interim order whatsoever was passed in the writ petition and the matter was taken up on 25-11-2003. His Lordship Hon'ble Ravi S. Dhavan, J. rejected the Civil Misc. Application No. 10613 of 1987 filed on 5-5-1987 for stay of the order dated 9-4- 1987 of the Labour Court II, Kanpur in Misc. Case No. 98 of 1985 in the following terms : ". . Having heard learned Counsel for the petitioner and for the workman, this Court considers it in the interest of justice and equitable that while employer may retain the monetary benefits, which have been declared on the application of the workman under Section 33 (C) (2) as from the date of the order passed on 9-4- 1987, the amount will be retained by the employer, Thereafter, he shall add simple interest @ 10% p. a. From the date of the order and until June, 1990. Then during this month the employer shall deposit this amount in one of the monthly income schemes of a nationalized bank or a public finance institution like the Unit Trust of India. The interest accrued in this scheme shall go to the workman and the principal amount shall be subject to the final orders of this Court. Thus, the workman shall have the monthly income on benefits which have been computed in terms of money and later on if the petition is allowed this amount will go to the workman. Should the petition be dismissed the amount will be retained by the employer. Thus, this application is decided accordingly. " Thus, the position is that the petitioner who was employer has neither complied with the Award of the Labour Court even though there was no interim order granted in the writ petition nor they have complied with the order of this Court dated 5-5-1987 passed by this Court rejecting the stay application.;