Hon’ble Tarun Agarwala, J.—Heard Shri R.K. Awasthi, the learned counsel for the petitioner who has filed the writ petition challenging the award and Shri Chandan Sharma, the learned counsel for the petitioner who has challenged the Recovery Certificate issued under Section 6-H (1) of the U.P. Industrial Disputes Act pursuant to the award of the Labour Court, and Shri Rajeev Mishra, the learned counsel for respondent workman.

2. A dispute was referred to the Labour Court for adjudication as to whether the workman working as a driver should be made permanent or not w.e.f. 1.10.1982. The Labour Court, after considering the material evidence on record, found that the workman was working as a driver from 1.4.1977 and this finding was given on the basis of a document E-3. The Labour Court also came to a finding that juniors to the workman had been made permanent and that the petitioner was discriminated and was not made permanent. Before this Court, this finding that the petitioner had been working as a driver since 1.4.1977, has not been refuted and the only ground urged by Shri Awasthi, the learned counsel for the petitioner is that promotion or confirmation on the said post is basically a managerial function which is outside the powers of the Labour Court, and that, the Labour Court had no power to give an award holding that the workman should be made permanent from a particular date or that he should be given the wages of a permanent workman w.e.f. a particular date. In support of his contention, the learned counsel placed reliance upon a decision in Management of Brooke Bond India (P) Ltd. v. Their Workmen, AIR 1966 SC 668, and in the case of Hindustan Lever Ltd. v. The Workmen, AIR 1974 SC 17, wherein the Supreme Court held that the promotion is a managerial function and the Tribunal should not interfere with the promotion made by the management unless it finds that the workman had been superseded on account of mala fide or victimisation.

3. There is no quarrel with the proposition made by the Supreme Court in the aforesaid decision. This Court finds that the said judgment is not helpful to the petitioner. In fact, it supports the cause of the workman. The workman, in the present case, has been found to be working as a driver since 1977. There is also a finding that juniors to the workman has been confirmed, and to the detriment of the workman, these findings which are based on material evidence on record has not been refuted. Therefore, a case of victimisation has been made out. The Supreme Court has categorically held that in a case of victimisation or mala fide, the Tribunal or the Labour Court can interfere. In the present case, the Labour Court, after coming to the conclusion that juniors have been promoted, and that the workman has been discriminated, directed that the workman was entitled to the relief of being made permanent and to be paid wages on the said post.

4. In my opinion, the award of the Labour Court, being based on findings of fact, does not require any interference. The said judgments, in fact, squarely covers the case of the workman. The writ petition fails and is dismissed.

5. In so far as the connected writ petition is concerned, an order has been passed by the Deputy Labour Commissioner computing the arrears of wages in terms of the award. The only ground urged by Shri Chandan Singh, the learned counsel for the petitioner is, that for a brief period, the workman had worked in Iraq on deputation and that the Deputy Labour Commissioner had calculated a higher wage which was not payable to him. The Court finds that the Deputy Labour Commissioner has only calculated the wages which the workman would have drawn in Iraq on a higher pay-scale, which was payable by the employers to other employees I do not find any error in the impugned order since only a mere calculation has been made which was based on admitted facts. Consequently, the writ petition filed against the Recovery Certificate also fails a