ORDER

1. In this case, the respondent-workman had raised an industrial dispute claiming the wages of designer-sprayman although he was initially engaged by the appellant-mills as a sprayman. The reference made by the State Government read as follows :

"Whether the action of the employer in denying the wages of designer-sprayman to Shri Gayas Ahmed Khan, s/o Shri Abdul Razak Khan working in shift general, Engraving Department is legal and justified? If not, what benefit/relief is the workman entitled and with what other details?"

2. The Labour Court recorded a finding that although the workman was engaged as a sprayman, he was actually doing the work of duplicating the designs and also as a tracer in addition to his work as sprayman. The Court further found that the salary of a designer in the other departments of the appellant-mills was Rs 740 per month whereas that of the tracer was Rs 850 and Rs 620 per month depending upon the departments to which they were attached. Since the workman was not a designer but only a duplicator of designs and was also a tracer and a sprayman, the Labour Court fixed the basic wage of the workman at Rs 500 per month by its award of 9-4-1981. This award was challenged by the appellant-mills before the High Court in a writ petition. The High Court by its impugned order dated 16-12-1985 held on a concession made by the learned counsel appearing for the workman that the terms of reference made to the Labour Court did not give it jurisdiction to create the post of a sprayman-designer. It merely called upon the court to fix the salary of the sprayman-designer. Secondly it found that the demand raised by the workman was severable from what was awarded and the award should be confined to the demand for increase in basic wages. The court also found that since the workman in his statement of claim had confined his demand to the basic wage of Rs 300 per month, the Labour Court could not have given more basic wage than that.

3. Shri Sanghi, learned counsel appearing for the appellant-mills, contended that the reference did not authorise the Labour Court to create the post of a designer-sprayman since no such post existed in the mills. Since the Labour Court as well as the High Court had given the basic wage of a designer-sprayman, when no such post existed, the courts had exceeded their jurisdiction. He further contended that the workman was originally a Mazdoor and was promoted to the post of a sprayman and even in the spraymans salary, he was given Rs 6 as additional pay. Since he was doing no work other than that of tracing, he was not entitled to any basic wage above the one which was given to him when he was engaged of the purpose. In any case, he submitted that the jump in salary from Rs 36 p.m. to Rs 300 p.m. was unwarranted.

4. We must confess that it has not been possible for us to appreciate the circumstances under which the learned counsel appearing for the workman had made concession before the High Court that the Labour Court was not called upon to create the post of a designer-sprayman. A careful reading of the reference shows that the demand was two-fold, viz., creation of the post of a designer-sprayman and fixation of the salary of the said post. Without creating the post, it was not possible for the Labour Court to fix the salary of the post. There is, therefore, an apparent contradiction in the decision of the High Court.

5. As regards the contention that the workman was doing no work other than that of a sprayman, we find that the Labour Court has recorded a finding which is not disturbed by the High Court, that in fact the workman was doing the work of duplicator of designs as well as of a tracer and a sprayman. It is a finding of fact and cannot be disturbed under Article 136. As regards the contention advanced by Shri Sanghi that the basic wage given by the High Court is many times more than what the workman was getting as a sprayman, it may be pointed out that in fact the workman had exami