Aloke Chakrabarty, J.@mdashFor quashing the award of Industrial Tribunal (III) Kanpur dated 3091978 at Annexure No. 1 to the writ petition, the U.P. State Electricity Board came to this Court. Mr. S.P. Mehrotra, learned Counsel for the petitioner contended that upon recommendation of Central Wage Board, State of Uttar Pradesh by order dated 1621971 under Section 3(b) of the U.P. Industrial Disputes Act adopted the said recommendations. It is further stated that the Wages of employee concerned, being respondent No. 3, was revised pursuant to the Government Order dated 1861971 amending the earlier Government Order dated 1621971 aforesaid. It is contended by the learned Counsel for the petitioner that therefore, the said Government Order was duly implemented and the respondent No. 3 could not maintain a claim for grant of higher payscale on allegation that he was discharging duties of High Pressure Welder for a period starting from 2911976. It is contended that not only the said Government Order stood exhausted in respect of respondent No. 3 upon giving him the benefit available there under on the date the said Government Order was issued but the Notification itself shows that by virtue of provisions contained in Clause 11 thereof no benefit there under could be claimed after expiry of period of five years starting from 141969. It is contended that, therefore, the respondent No. 3 could not claim benefit from 1976 after the expiry of aforesaid period.
2. Further contention of the learned Counsel for the petitioner is that the said post of High Pressure Welder requires selection and the respondent No. 3 having not been selected for the said post could not claim benefit of payscale meant for the said post by reason'' of the provision of Rule 13 of the Electricity Department Operating Staff Service Rules, 1955.
3. Mr. K.P. Agrawal, learned for the workman the respondent No. 3 contended that the aforesaid contention of the petitioner can be decided only on facts and such questions having not been raised before the Labour Court nor in the writ petition itself, the petitioner is not entitled to raise such question. Moreover, it has been contended on behalf of the petitioner that the reference in the present case was as regards entitlement of payscale and designation of High Pressure Welder pursuant to the Government Order. It is contended that the said Government Order prescribed norms and it cannot be contended that such norms ceased to be existing after the expiry of the said period of five years. Had such contentions been raised before the Labour Court, the workman concerned would have been in a position to produce material in support of such claim and that having not been done, the present petitioner employer cannot raise such question at this stage.
4. With regard to the entitlement to the payscale and designation the bar allegedly contained in the said Rule 13 of the Rules of 1955 is not available as the said Rules though framed under Article 309 of the Constitution of India but are not statutory rules applicable in respect of respondent No. 3. It is further stated that the said Rules even if adopted by U.P State Electricity Board, the same ceased to be statutory Rules. It is further contended that even such contentions require to be decided on facts as regards applicability of the said Rules in case of respondent No. 3 and such questions having not been raised at any earlier stage, cannot be relied on in the writ proceeding for the first time at the time of hearing.
5. After considering the aforesaid contentions I find that there is force in the contention of the respondent workman. In the proceeding before the Labour Court no such contention was raised and the objection filed by the employer (Annexure No. 4 to the writ petition) does not indicate that any such ground was taken. I am of the opinion that both the questions raised require consideration on facts for the purpose of a proper decision. The claim of the workman in respect of payscale and designation on the ground of his actual working as High Pressure Welder on the basis of norms contained in the Government Order of 1971, cannot be disputed at this stage. No material is available to show that those norms did not continue to be existing after expiry of the period of five years. No such case has been made out by the petitioner employer even in the writ petition nor any other set of norms have been shown to this Court for the purpose of contending that the workman concerned was not entitled to the benefit claimed as the norms were altered thereafter. Similarly in case of applicability of said Rules of 1955 as statutory Rule nothing has been shown here on which the contention of the petitioner employer can be accepted. The set of Rules produced before this Court did not satisfy that the said Rules apply to respondent No. 3 working under the petitioner employer.
6. In view of the aforesaid findings such objections raised by the petitioner employer at the late stage of hearing of the writ petition cannot be entertained. With regard to the merit of the case I find that the Labour Court has decided the same on facts and it has not been shown on behalf of the petitioner that such findings are contrary to the materials on record or not supported by such materials. Therefore, said findings cannot be disturbed at this stage in the absence of any reason shown for doing so.
7. In view of the aforesaid findings, this writ petition fails and the same is hereby dismissed. There will be no order as to costs.
