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U.P.State Transport Corpn. and Anr. v. Ram Das Verma & ors. - WRIT - A No. 23507 of 1998 [2003] RD-AH 66 (28 March 2003)


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U.P.State Transport Corpn.

and Anr. ----- Petitioners


Ram Das Verma & ors. -----       Respondents.


Hon'ble Dr. B.S.Chauhan, J.

This writ petition has been filed against the Award of the Labour Court dated 28.8.1997, by which the Labour Court has granted the promotion to the respondent workman on the post of Electrician from the post of Assistant Electrician.

Facts and circumstances giving rise to this case are that the respondent-workman was working as Assistant Electrician and promoted on the post of Electrician on 25.1.1980 on ad hoc basis with a condition that promotion shall be effective subject to approval of the Head Office. As no approval was granted, he was reverted to his original post of Assistant Electrician. The respondent workman challenged the said order of reversion by raising the industrial dispute and the appropriate Government in exercise of its power under Section 4-K of the U.P.Industrial Disputes Act, 1947 (hereinafter called the Act 1947) made a reference to the Labour Court as to whether the reversion vide order dated 23.3.1988 on the post of Assistant Electrician from the post of Electrician was in accordance with law, and if not, to what relief he was entitled to?. In pursuance of the said reference, respondent workman filed a claim petition raising his grievance as persons junior to him had been promoted and his reversion was not legal.

On the contrary, the management raised the issue that Labour Court has no competence to adjudicate upon the matter as the matter requires consideration by the employer. Only granting promotion to the junior may not make a person eligible for consideration for promotion but it is the management who has to assess the suitability of the workman for promotion. In view of the pleadings, the case was decided and Labour Court directed the management to promote the respondent workman from the date on which his junior had been promoted. Hence this petition.

Learned counsel for the parties have raised same issues which had been raised before the Labour Court. More so, it has been submitted on behalf of the petitioner management that promotion to the post of Electrician is of a managerial character, and therefore, it was beyond the competence of the Labour Court to examine the issue.

So far as promotion is concerned, the Labour Court failed to examine the statutory provisions and to examine whether promotion could have been granted by the Court.

A Constitution Bench of the Supreme Court in Management  of  Brooke Bond  India  (Pvt.) Ltd. Vs. Their Workmen, AIR 1966 SC 668, has held                that promotion and supersession cannot be dealt with by the Labour Court unless the same is alleged to have been made on account of mala                fides or victimization.  The Court had observed as under:-

"Generally speaking, promotion is a management   function; but  it may be recognised  that there may be  occasions when  a Tribunal may have  to  interfere with  promotions  made by the  Management where  it is felt that persons superseded have  been  so superseded on  account  of                        mala  fides  or victimisation.  Even so, after a finding of mala fides or victimisation,  it is not the function of a  Tribunal  to  consider the  merits  of various  employees itself and then decide whom  to promote or whom not to  promote. If any Industrial Tribunal finds that promotions have been   made which are unjustified on the ground of mala fides or of  victimisation, the proper  course for  it  to  take  is  to  set-aside  the promotions and ask the Management to consider the cases of superseded employees and decide for itself whom  to promote, except, of course, the  persons whose promotion has been set-aside by the Tribunal."

  It is also settled proposition of law that a discrimination/ victimisation alleged by the petitioner to have been committed by the Management, should be a conscious one and may not be a result of over-sight. (Vide Constitution Bench judgment of the Supreme Court in Ramnath Verma & ors. Vs. State of Rajasthan & ors., AIR 1967 SC 603). In the instant case, undoubtedly, petitioner-workman had made allegations of discrimination by the Management.                In a case where allegations of malafides are against a Statutory Authority, the workman was supposed to name-out the individual officer who was having any malice towards him so that the Labour Court ought to have summoned him and ask him to explain his conduct. In absence of such particulars, the allegations of malafide etc. cannot be taken into consideration. (Vide J.M. Banuwalikar Vs. Municipal Corporation, Delhi and others, AIR 1996 SC 326; State of Bihar & ors. Vs. P.P. Sharma, 1992 Suppl. (1) SCC 222; and I.K.  Mishra Vs. Union of India and others, (1997) 6 SCC 228).

The word  'victimization', though not defined in the Act but the term was considered by the Hon'ble Supreme Court in Bharat Bank Ltd. Vs. Employees of Bharat Bank Ltd., AIR 1950 SC 188, wherein the Hon'ble Supreme Court  observed that " 'victimization"  is  an  ordinary  English word which means that a certain person has become a victim. In other words, he has been unjustly dealt with."

In Workmen  Williamson Magor  Co. Ltd. Vs. Williamson  Magor  Co.  Ltd.  & ors.,  AIR 1982 SC 78,the  Hon'ble  Supreme   Court,  placed                reliance  on  its judgment in K.C.P. Employees" Association, Madras Vs. Management of K.C.P. Ltd.,Madras, AIR 1978 SC 474, wherein it has been                observed   that   Industrial    Law   should   be interpreted  and  applied in the  perspective  of  Part IV of  the  Constitution giving  benefit  of               reasonable  doubt  on law and facts, if there  be such doubt,  to  the  weaker section,  i.e. the Labour and  the  Tribunal should dispose  of  the                case making   the  compassionate   approach   but without over-stepping  the  proved   facts.   The Court observed as under:-

"That wherever a workman has been dealt with unfairly and arbitrarily, the case of the superseded workman may be termed as victimization.   There may be cases where   inspite   of    allegations    of malafides, the workman of the union may not be able to prove factual malafides but there may be malice in law and effectual victimization may be obvious due to the fact that unjustified promotions of some junior persons  were made  superseding  without any reason  or necessity the other senior persons."

Similar view has been taken by the Hon'ble Supreme Court in Workmen Employed by Hindustan Liver Limited Vs. Hindustan Liver Limited, AIR                 1984 SC 1683.

No allegation of malafide etc. has been raised. No finding of victimization of the respondent workman has been found by the Labour Court. Even if Labour Court considered that his case has wrongly been rejected, it should have issued a direction to the management to reconsider the case along with other eligible persons, and in case he was found suitable, he should be granted promotion. But, it was beyond competence of the Labour Court to issue the direction for promotion.

Therefore in view of the finding, the Award of the Labour Court cannot be held to be in consonance with the law and it is modified to the extent that the management may reconsider the case of promotion assessing the suitability as on the date the person junior to him had been promoted, and as the petitioner has reached the age of superannuation and there has been an interim order staying the operation of the Award by this Court, he shall be entitled for notional benefits.

With these observations, the writ petition is disposed of finally.




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