# Sheo Shanker v. Central Govt. Industrial Tribunal cum Labour Court and another

- **Citation:** (2002) 1 ILRA 233
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-02-01
- **Case number:** Civil Misc. Writ Petition No. 29451 of 1996
- **Bench:** Anjani Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sheo-shanker-v-central-govt-industrial-tribunal-cum-labour-court-and-another-39164
- **Pages:** 3

## Headnote

Constitution of India- Article 226- Even if
there is no post, the Labour Court can
issue a direction for creation of the post
designating the pay scale- the reference
is
maintainable
in
respect
of
the
workman
drawing
wages
less
then
Rs.1600/-.

Held - Para 3

The Labour Court has considered the
pleadings of the parties and evidence on
record and arrived at a conclusion that
the workman is performing his similar
duties which were normally performed
by the Assistant Engineer in the other
department of the employer. In this view
of the matter, the labour Court has
allowed the workman concerned to be
designated as Assistant Engineer and
even if there is no such post, it is open to
the employer to create the post of the
similar capacity and pay the salary of the
pay scale, which is being drawn by
otherd Assistant Engineers in other
department of the employer.
Case Law Referred
1977 FLR-147
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
234

## Text

1All] Sheo Shanker V. Central Govt. Industrial Tribunal cum Labour Court and another
233
on compassionate ground, ceased to
continue when his mother has been given
appointment under dying in harness rules
as peon. In view of the above, it cannot be
said that the petitioner's appointment was
under dying in harness rules and this was
also not a pleading before the labour
Court. It also clear that under dying in
harness rules only one of the family
member is entitled for appointment.

5. In any view of the matter, since
the labour Court has found that the
appropriate Government in the case of
employees of the Central Government, as
the petitioner claims to be the reference
by the State Government, is bad in law.
To meet this finding of the labour Court,
learned counsel for the petitioner has
relied upon a decision reported in 2001
A.I.R. SCW page 2685-Sapan Kumar
Pandit Versus U.P. State Electricity
Board and others, passed in civil appeal
no. 471 of 2001 (arising out of SLP
(Civil) No. 2648 of 2000), decided on
24.7.2001 by the apex Court, wherein the
apex Court has ruled that once the State
Government refers the dispute under
Section 4 K of the U.P. Industrial
Disputes Act, 1947, it is not within the
domain of the labour Court to say that he
will not enter in the dispute as the
reference was made after un-due delay.
Needless to say that the aforesaid decision
relied upon by the learned counsel for the
petitioner is in different context and is not
relevant to the present case.

6. In view of what has been stated
above, this writ petition has not merits
and is accordingly dismissed. The interim
order, if any, stands vacated. There will,
however, be no order as to costs.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHBAD 01.02.2002

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No. 29451 of 1996

M/S Laxmirattan Cotton Mills, Kanpur

...Petitioner
Versus
Labour Court (IV) U.P. Kanpur and
others

 ...Respondents

Counsel for the Petitioner:
Sri Devendra Pratap

Counsel for the Respondents:
Sri D.P.Singh
Sri Rajesh Tiwari
S.C.

Constitution of India- Article 226- Even if
there is no post, the Labour Court can
issue a direction for creation of the post
designating the pay scale- the reference
is
maintainable
in
respect
of
the
workman
drawing
wages
less
then
Rs.1600/-.

Held - Para 3

The Labour Court has considered the
pleadings of the parties and evidence on
record and arrived at a conclusion that
the workman is performing his similar
duties which were normally performed
by the Assistant Engineer in the other
department of the employer. In this view
of the matter, the labour Court has
allowed the workman concerned to be
designated as Assistant Engineer and
even if there is no such post, it is open to
the employer to create the post of the
similar capacity and pay the salary of the
pay scale, which is being drawn by
otherd Assistant Engineers in other
department of the employer.
Case Law Referred
1977 FLR-147
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
234
(Delivered by Hon'ble Anjani Kumar, J.)

1. By means of the present writ
petition
under
Article
226
of
the
Constitution of India, the petitioneremployer has challenged the award of the
Labour
Court
dated
05.02.1996,
Annexure-10 to the writ petition, in
adjudication case No. 80 of 1989. The
facts leading to the filing of present writ
petition are that the State Government
vide its order dated 14th June, 1989 as
amended on 04.09.1989 referred the
following dispute under Section 4-K of
the U.P. Industrial Disputes Act, 1947 of
adjudication before the Labour Court.

"D;k lsok;kstdksa }kjk vius Jfed v:.k
izdk'k iq= Jh 'kadj yky in flfoy vksojfl;j dks
muds dk;Z ds vuqlkj lgk;d vfHk;Urk dk inuke
,oa osrueku :0 650+&1200 u fn;k tkuk mfprA
rFkk/vFkok oS/kkfud gS? ;fn ugha rks lacaf/kr Jfed
D;k ykHk/vuqrks"k (fjyhQ) ikus dk vf/kdkjh gSA
fdl frfFk ls rFkk fdl vU; fooj.k lfgr?"

2. The Parties have exchanged their
written statements and rejoinder affidavits
and adduced their evidence. The Labour
Court after considering the evidence on
record and on the basis of the pleadings of
the parties arrived at a conclusion that the
workman concerned is entitled for the
relief claimed for.

3. Learned counsel appearing on
behalf of the petitioner-employer has
argued that the Labour Court has not
considered the objection regarding the
maintainability of the reference before the
Labour Court on the ground that the
workman concerned was not covered by
the definition of employee as according to
the re-instatement he has claimed the
wages, which is higher than Rs. 1,600/-
per month and further that the designation
being Supervisor, he is superior. The
labour Court has recorded a finding that at
the time of reference, the workman was
drawing wages in the pay scale of Rs.
500-900 and has not drawn mote than Rs.
1,600/-. In this view of the matter, the
labour Court has further considered the
nature and duties performed by the
workman concerned as supervisory. The
aforesaid question was though dealt with
by the labour Court, but has not been redetermined at the employer as argument
before this Court since it is finding of
fact. The further contention of the
employer-petitioner is that the post of
Assistant Engineer (Civil) is not in
existence in the employer's establishment
and therefore the demand of designating
the workman as Assistant Engineer
(Civil) cannot and should not be granted
by the Labour Court. The Labour Court
has considered the pleadings of the parties
and evidence on record and arrived at a
conclusion
that
the
workman
is
performing his similar duties, which were
normally performed by the Assistant
Engineer in the other department of the
employer. In this view of the matter, the
Labour Court has allowed the workman
concerned to be designated as Assistant
Engineer and even if there is no such post,
it is open to the employer to create the
post of the similar capacity and pay the
salary of the pay scale, which is being
drawn by other Assistant Engineers in
other department of the employer. This
Court has held in the case reported in
1997 F.L.R. 147- Nagar Mahapalika,
Gorakhpur
Versus
Labour
Court,
Gorakhpur in which the learned Judge has
considered the authority and arrived at a
conclusion that even if there is no post,
the labour court can issue a direction for
creation of the post designating the payscale. Further contention on behalf of
1All] M/s Laxmirattan Cotton Mills, Kanpur V. Labour Court(IV), Kanpur and others
235
learned counsel for the petitioner is that
the Labour Court has not considered this
aspect of the matter that the workman
concerned has himself admitted in his
statement that he is drawing the pay-scale
of Rs. 2000-3500 and therefore he could
not have treated to be a workman. This, in
fact, is misleading statement of the
workman. The workman has said that he
is entitled for the pay scale of Rs. 20003500 when he will be assuming charge
though at present he is drawing pay-scale
of Rs. 500-900. No other point was
argued by the learned counsel for the
petitioner.

4. In view of the arguments
advanced by the learned counsel for the
petitioner and also for the reasons
aforestated in this judgement, this writ
petition deserves to be dismissed and is
hereby dismissed. There will be no order
as to costs. The interim order, if any,
stands, vacated.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 8.2.2002

BEFORE
THE HON'BLE S.K.SEN, C.J.
THE HON'BLE R.K.AGARWAL, J.

Special Appeal No. 98 of 2002

Anwar Ali

...Petitioner
Versus
Prescribed
Authority/Sub
Divisional
Officer, Chunar, District Mirzapur and
others

 ...Respondents

Counsel for the Petitioner:
Sri Avanish Mishra

Counsel for the Respondents:
Sri S.P.Singh
Sri Ran Vijay Singh
S.C.

U.P. Panchayat Raj Act 1947 Section 12
C (i) (b) - Recounting not to be orderedunless it materially affect the result of
election.

Held - Para 6

In view of the foregoing discussions, the
judgement and order dated 21.1.2002
passed by the learned Single Judge is
hereby set aside and the order dated
26.12.2001 passed by the Sub Divisional
Magistrate is hereby quashed. The writ
petition as well as the Special Appeal are
allowed. However, there shall be no
order as to costs.

(Delivered by Hon'ble S.K. Sen, C.J.)

1. We have heard Shri Avanish
Mishra learned counsel for the appellantwrit petitioner, Shri S.P.Singh learned
counsel for the respondent no. 5 and Shri
Ran
Vijay
Singh
learned
Standing
Counsel for the other respondents.

2. This Special Appeal is directed
against the judgment and order dated
21.01.2002 passed by the learned Single
Judge dismissing the writ petition. In the
writ petition, the writ petitioner- appellant
has challenged the order of the SubDivisional
Magistrate
directing
for
recounting of the votes.

3. It is the contention of the writ
petitioner that he has won by eight votes
whereas the dispute raised by the
respondent no.6-herein, is with regard to
two votes. The contention of Mrs. S.P.
Singh learned Counsel for the respondent
no. 5 is that there was inaccuracy in
mathematical calculation, which resulted
in apparent error to two votes, in as much
as, in all, 1166 number of votes were