- (1.) AGGRIEVED by Award dated 16.07.2012 in Reference Case No.251 of 2001, the Management of Bhelatand Colliery of M/s. TISCO has filed the present writ petition.
(2.) THE brief facts of the case are summerized thus; (i) The respondentworkman was appointed as Assistant Gomosta and after completion of the probation period vide, letter dated 25.12.1982, the respondentworkman was confirmed on the post of Assistant Gomosta w.e.f. 01.01.1983. A claim was raised by the respondent for his regularisation as Gomosta and the dispute was referred vide, Reference No.251 of 2001 for adjudication by the Industrial Tribunal. Before the Tribunal on behalf of respondentworkman it was pleaded that the Land Department/Revenue Department of the Management of Bhelatand Colliery consists of Junior Officer, Assistant Gomosta and Gomosta. On the post of Junior Officer, one Shri Poresh Trigunaith worked upto 1995, who was replaced by Shri Rajiv Shekhar. The petitioner was appointed on probation for three months. On the post of Gomosta one U.N. Singhdeo was working, who retired on 28.01.1983. After the retirement of the said U.N. Singhdeo, the post of Gomosta fell vacant and the petitioner started performing duty of Gomosta w.e.f. 28.01.1983. The Management filed its written statement stating that the workman is not covered under Section 2(s) of the Industrial Disputes Act, 1947. It was pleaded that the post of Gomosta has been abolished and the respondentworkman was upgraded to Technical Supervisor, GradeC in terms of S.L.U. w.e.f. 01.07.1993. The claim of the workman was denied on the ground that the post of Gomosta does not exist and he was upgraded under the S.L.U.
(3.) MR . Indrajit Sinha, the learned counsel for the petitioner submits that though the respondentworkman was appointed on the post of Assistant Gomosta on 01.01.1983 and he was performing the duty of 'Gomosta' w.e.f. 01.04.1983, he has not brought on record any evidence to establish that duties performed by him as 'Gomosta' could not have been performed by him while working as Assistant Gomosta. The respondentworkman in the garb of plea of regularisation has, in fact, claimed promotion, which cannot be granted. In support of this plea, the learned counsel for the petitioner refers to Schedule3 of the Industrial Disputes Act and submits that such a claim cannot be decided by the Industrial Tribunal. It is submitted that reference vide, order dated 27.11.2001 itself was invalid inasmuch as, it was not a case of regularisation of the respondentworkman and therefore, award dated 16.07.2012 warrants interference by this Court. It is further submitted that since the respondentworkman was granted GradeC under the Service Linked Upgradation (S.L.U.) w.e.f. 01.04.1993, he could not have claimed further benefit of promotion. It is thus, submitted that the direction to grant benefit of difference in wages and all consequential benefits w.e.f. 01.04.1983 is an error in law committed by the Industrial Tribunal. Mr. Milan Kr. Dey, the learned senior counsel appearing for the respondentworkman submits that the petitioner has failed to produce document in support of the claim that the post of 'Gomosta' was abolished. It cannot be contended by the petitioner that the respondentworkman was not entitled for benefit of the post of 'Gomosta'. It is submitted that the claim of the petitioner is not for promotion rather, the claim was for benefit accruing to a person working on the post of 'Gomosta' and thus, Industrial Tribunal has not committed an error in law in answering the reference in favour of the workman. Referring to statement of Management's witness, the learned senior counsel for the respondentworkman submits that the Management's own witness has admitted in the crossexamination that the Managing Director is the person competent for abolition or creation of a post and for the nonexecutive post, it is the General Manager, who takes such a decision. The Management witness has also admitted that no document has been produced on behalf of the Management to establish that the post of 'Gomosta' has been abolished.;