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Judgment
Sudhir Narain, J.—These two writ petitions are being disposed of by a common judgment as they arise out of a common order passed by Presiding Officer, Labour Court-V, U.P. Kanpar, deciding adjudication case No. 122 of 1985. adjudication case No. 67 of 1986 and Misc. Case No. 1 of 1986.
The facts in brief are that Respondent no 3 appeared for selection of officer assistant Grade-II conducted by the Petitioner and he was selected. The Petitions issued a letter dated 2nd November 1976 asking the Respondent whether ue would be willing to work as a conductor voluntarily. The Respondent was posted in the office of Assistant Regional Manager, City Bus Service, Azad Nagar, Kanpur with effect from 30-7-1978. He was assigned the work of typist in the said office. The appointment of the Respondent was for the post of conductor but he was doing the work of typist in the office of the Petitioner He raised an industrial dispute alleging that he had been doing the work of a typist but the employers were treating him as a conductor and that he was entitled to the wages of the post of typist. The State Government referred the dispute u/s 4-K of the U.P. Industrial Disputes Act on 23-9-1985 and a reference was made'' as to whether Respondent No. 3 was entitled to the wages admissible to a typist and if so, from what date. It was registered as Adjudication Case No. 122 of 1985 before the Labour Court-V, U.P. Ranpur.
Daring the pendency of adjudication case No. 122 of 1985, the Respondent no 3 was removed from service on 24th December 1985 on the ground that he was guilty of misconduct as he did not comply with the order of transfer given on 3rd June, 1985. The Petitioner alleged that Respondent No. 3 was working at Azad Nagar Depot. Ranpur and he was relieved on 3rd June, 1985 to take charge at Fatehpur Depot in pursuance of the order of transfer but he deliberately did not join there. Depart mental proceedings were conducted and in the said disciplinary-proceeding an order of removal of the Respondent No. 3 was passed by the Assistant Regional Manager on 24th December, 1985. Respondent No. 3 then filed an application u/s 6F of the U.P. Industrial Disputes Act, alleging that he had been removed from service during the pendency of adjudication case No. 122 of 1985 in contravention of the provisions of Section 6E of the U.P. Industrial Disputes Act and, as such ,the orders of removal and transfer were bad and he was entitled to reinstatement and other benefits. The Labour Court registered that matter as Misc. Case No. 1 of 1986.
Respondent No. 3 again moved another application alleging that the Petitioner had Invited applications from the departmental candidates for appointment to the post of stenographer but the application filed by him was not forwarded by the Petitioner and he was not allowed to appear in the Interview. One Sri 3. N- Dubey was selected as stenographer and appointed to that post in July. 1985. The Respondent No. 3 claimed that by excluding him from interview, he was deprived of the right of being appointed as stenographer and he was entitled to be treated as stenographer and to the wages admissible to a stenographer. Since no settlement was arrived at, a report was submitted to the State Government and the State Government, in exercise of its power u/s 4-K of U P. Industrial Disputes Act, referred the matter to the Labour Court-V, U.P. Kanpur as to whether the order dated 3rd June, 1985 relieving Respondent No. 3 from duty was valid aad as to whether he was entitled to the post of stenographer and to the wages accordingly. It was registered as adjudication Case No. 67 of 1986
Respondent no 2 consolidated all the cases, The parties filed written statements and led evidence In the case, the Labour Court by a common award dated 23-1-1988 held that the respondent was working as a typist therefore, he was entitled to the post and wages admissible to a typist. The order dated 3rd June 1985, transferring Respondent no 3 from Azad Nagar Depot Kanpur to Fatehpur Depot, was illegal. The order of dismissal of Respondent No. '' 3 was also Illegal and further Respondent No. 3 was wrongly not permitted to appear before the Interview Board for selection to the post of stenographer and, as such, be is entitled to be treated as stenographer with effect from 19-5-1986 on ad hoc basis and be should be paid salary which is admissible to a stenographer with a further direction that the Petitioner shall take steps for fresh selection to the post of stenographer for making the regular selection to the said post.
I have heard learned Counsel for the Petitioner Sri S. K. Sharma and Sri Bhupendra Nath Singh learned Counsel for Respondent no. 3.
Learned Counsel for the Petitioner submitted that the Respondent was not appointed as a typist therefore, he was not entitled to the post and wages admissible to a typist It is not disputed that the Respondent No. 3 was doing the work of a typist and ha never worked as a conductor .The Labour Court hss given cogent reasons that the Petitioner should be treated as a typist and paid the wages which are admissible to a typist. There is no manifest error of law in the view taken by the Labour Court.
The next submission of learned Counsel for the Petitioner is that the Labour Court acted illegally in treating the removal of Respondent No. 3 against the provisions of Section 6E(2)(b) of U.P. Industrial Disputes Act. It was contended that the disciplinary proceedings initiated against Respondent no 3 were not connected with any industrial dispute relating to disciplinary proceedings Against him. The Respondent No. 3 had raised the Industrial Dispute claiming the right to be treated as a typist and, therefore, the- provisions of Section 6E of the Act were not applicable. It is not necessary to go into the said question. The Labour Court has recorded a finding that Respondent No. 3 was not given an opportunity of hearing in the disciplinary proceedings which were taken against him and further he was not given one month wages before removal of his service. In view of these findings the order of removal was erroneous. It has not been shown that these findings are erroneous The findings of the Labour Court are based on material evidence produced before it.
The last submission of learned Counsel for the Petitioner is that the Labour Court having come to the conclusion that Respondent No. 3 was not given an opportunity to appear before the Interview Board for selection to the post of stenographer but on such finding it bad no Jurisdiction to treat him to have been appointed as stenographer on ad hoc basis with effect from 9th May 1986. Secondly ,Sri S. N. Dubey had been selected and appointed as stenographer and he was not impleaded as a party and his selection cannot be treated as Illegal without giving film an opportunity of hearing. He Delayed reliance upon a decision in the case of Jaswant Singh v. State of U.P. 1986 FLR 25, wherein the Court held that If the promotion of a person is set aside by the Labour Court and such person Is not Impleaded as a party, the ward of the Labour Court will be invalid.
It Is not disputed that Sri S. N. Dubey was selected to the post of stenographer and he was accordingly given appointment and he is working as stenographer In the office of the Petitioner. There was. only one post of stenographer in the office of the Petitioner. The Labour Court did not give any opportunity of hearing to him with the; result, in case the operative portion of the award is enforced, his rights will be affected.
the Labour Court took the view that the Petitioner was not given an opportunity to appear for interview in selection to the post of stenographer. Be that as it may, he, however, cannot be treated to have been appointed as stenographer on ad hoc basis on that date. It was not for the Labour Court to consider about the merit and demerit of a candidate and to dome to'' a conclusion that if Respondent no 3 would have appeared, be might have been selected to that post The award of Labour Court to that extent is erroneous in law.
On the facts as found by the Labour Court, Respondent No. 3 may be given ao opportunity to appear for selection to the post of stenographer. Sri S.N. Dubey and the Respondent No. 3 both shall ba given an opportunity to appear for Selection before the Selection Committee/Interview Board for the post of stenographer. The Petitioner shall hold Selection/Interview of both these persons within three months from today in accordance with prescribed procedure.
In the result, writ petition No. 13048 of 1988 is dismissed. Writ petition no 13047 of 1988 is partly allowed to the extent of the observation made above.
The parties shall bear their own costs.