The court upheld the decision of the labour court based on the evidence presented and considered the objection regarding the workman's eligibility as a finding of fact.

( 1 ) BY means of the present writ petition under Article 226 of the Constitution of India, the petitioner-employer has challenged the award of the labour court dated 5. 2. 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 4. 9. 1989 referred the following dispute under Section 4k of the U. P. Industrial Disputes Act. 1947, for adjudication before the labour court. . . (VERNACULAR MATTER OMMITED ). .

( 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 more than Rs. 1,600. In this view of the matter, the labour court has further considered the nature of duties performed by the workman concerned as supervisory. The aforesaid question was though dealt with by the labour court, but has not been re-determined at the employers 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 employers 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 in Nagar Mahapalika, Gorakhpur v. Labour Court, Gorakhpur, 1997 FLR 147. In which the learred 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 pay-scale. Further contention on behalf of 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. 2. 000-3,500 and, therefore, he could not have been 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. 2,000-3,500 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 afore stated in this judgment, 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.

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