Rakesh Tiwari, J.@mdashHeard counsel for the parties and perused the record.
2. The brief facts of the case are that the petitioner Swedeshi Cotton Mills Karmachari Sangh is a registered Trade Union of the employees of the Swadeshi Cotton Mills, Naini, Allahabad (hereinafter referred to as the Mills). The respondent No. 1 M/s Swadeshi Cotton Mills, which is wholly owned by National Textile Corporation Ltd., Naini, Allahabad is a Government of India undertaking. It was engaged in manufacturing cotton and staple fibre yarn.
3. The workman concerned in the dispute Sri Gopesh Verma was appointed as pay sheet clerk on 23.7.1965 and thereafter he was promoted and designated as Establishment Incharge w.e.f. 1.1.1968 and worked as such till 13.5.1976. Thereafter again he was transferred in Store Department as Assistant and subsequently he was designated as Assistant Store Incharge w.e.f 1.5.1980. Store Incharge Sri A.P. Shukla resigned his services and his resignation was accepted by the company on 30.10.1981. Hence workman concerned was directed to take charge from him, which was taken on 30.10.1981, the concerned workman represented to the management for designating him and payment of corresponding pay scale of Store Incharge. He raised an industrial dispute inter alia Stating that since he was performing the duties or store incharge last about 6 years continuously as such he is entitled to be designated as Store Incharge and pay for the post of Store Incharge. On conciliation proceedings having failed the dispute; was referred to Labour Court at Allahabad where it was registered as adjudication case No. 21 of 1987. The reference is as under:-
4. On receipt of summons the employers filed their written! statement inter alia stating that concerned workman was Assistant Store incharge only and never appointed as Store Incharge and a; number of clerks were working under him and that he supervises the work of clerks under him and controls their work and gives them directions. It was further stated that the present dispute relates to the promotion in the garb of designation, which is the exclusive function of the management and cannot be subject matter of adjudication. The '' monthly emolument of Shri Gopesh Verma was Rs. 960 - + V.D.A.+Adhoc Rs. 45/- per month at that time. Shri Gopesh Veram. Assistant Stores Incharge was working as a temporary measure looking after the work of stores and is being given an allowance of Rs. 150/-k per month for that work National Textile Corporation (U.P.) Ltd., Kanpur has a framed rules for appointment for the posts of departmental incharge including stores incharge prescribing qualifications and experience for the post. The post has to be advertised and his candidature has to be considered along with other candidates. It was also contended that his appointment as Store Incharge will amount to promotion and the Labour Court has no jurisdiction to decide the question of promotion or any other relief what so ever.
5. From the record it appears that the concerned workman was ?never appointed as Store Incharge but had been given charge of the post temporarily for Which he was paid Rs. 150- per month as additional allowance. The post of Store Incharge had to be filled up according to the procedure prescribed for appointment recruinment after due advertisement and selection process.
6. The Labour Court gave impugned award dated 26th April 1988, which was enforced by publication on the notice board on 19.7.1988. By the impugned award the Labour Court held that the Gopesh Verma, the concerned workman couldn''t be granted the designation and corresponding pay scale of the Store Incharge in view to {he nature of duties discharged by him and he is not entitled to any relief what so ever.
7. The Labour Court dealing with the preliminary objection of the employers that Gopesh Verma was not a workman within the meaning of Act took into consideration, the evidence led by the parties wherein nature of duties were elucidated by the witnesses. The Labour Court after considering the oral and documentary evidence held that he was a workman. The Labour Court further held that from the record it is crystal clear that demand for higher post or pay scale or both amounts to promotion which is management function. Relying upon the judgment in Hindustan Lever Ltd v. Workman 1973 (27) FLR 393 and 1960 (1) LLJ 272 Vishnu Suger Mills v. Workman the Labour Court held that until and unless and malafide- are proved the non-promotion cannot be said to be arbitrary. It cannot be Weld that workman has been victimized.
8. The Labour Court in paragraph 7 and 9 concluded as under:-
9. Counsel for the petitioner had stated that the award of the Labour Court is misconceived and that the Labour court has gone off the tangent in holding that if was a case of promotion. He submits that controversy before the Labour! Court was as to whether the workman who was discharging his duties of the post of Store Incharge should be given the post and corresponding pay scale of Store Incharge according to the nature of work and duties performed by him. He submits that since the workers was already performing the work of Store Incharge. It was a case of fitment and not a case of promotion and the Labour Court has wrongly applied the case of Hindustan Lever Ltd and Vishnu Suger Mills Ltd. The Labour Court is liable to be quashed.
10. Counsel for the respondents submits that Sri Gopesh Verma is not entitled for any promotion as stores Incharge. Since it is a matter of promotion and post has to be filled in according to the rules. The post has to be advertised and all the eligible persons both working in the mills have to be considered thereafter selection is made. He was never selected for promotion nor approached as such. In these circumstances, the Labour Court was fully justified while refusing any relief to the concerned workman Sri Gopesh Verma. He further submits that the respondent is not a workman. The post of Store Incharge is supervisory post and as such the entire dispute is misconceived and the writ petition is riot maintainable. He relies on the case of State of Orissa v. Rajendra Kumar Das reported in 2003 (99) FLR 389 where in the Apex Court has considered the case of peon who claimed the post of Daftari which carried higher scale. It was held that it is a Case of promotion and it is right of management to decide who is to be promoted as Daftari. Admittedly the post of Daftari carried higher scale. Mere working on a post for some time without appointment does not confer any right to such posts.
11. From the record it appears that the workman had not been discharging supervisory, managerial or administrative duties and the Labour Court has rightly came to the conclusion that Sri Gopesh Verma was a workman within the meaning of the Industrial Disputes Act 1947.
12. In so for as promotion is concerned the counsel submits that this Court as well as the Hon''ble Apex Court have settled that it is not open for the Labour Court to issue any direction for promoting one Individual without considering cases of other eligible persons, The Supreme Court has also settled that it is not open for the Labour Court to issue direction for promoting one individual but cant direct the management to consider the case for the purposes of promotion or appointment of all the eligible candidates.
13. The appointment to this post can only be made by the N.T.C. (U.P.) Ltd. Head Office, Kanpur. The principle of equal pay for equal work is also not attracted. A large number of senior hands were available in various mills of N.T.C. (U.P.) Ltd. who may have better claim for the post of Store Incharge that is why the Selection on the said post is made through Head Office. He has relied upon 1960 SC 668 (Brook Bond Case) where it has been held that promotion is managerial function and unless there are findings of malafide, the court cannot direct promotion. In 1961 (1) LLJ 10 at page 13 Supreme Court has held that Tribunal is not competent to issue direction of promoting a particular individual, as the task of promotion cannot be under taken by the Tribunal is isolation by ignoring cases of other suitable hands. Similar is the view taken by the Supreme Court in 1974 SC 17 Hindustan Lever Case. In 1987 SC 1889 it has been held that promotion is managerial function and the management should be given opportunity to consider the matter with openness and all the eligible hands should be considered. Allahabad High Court in Writ No. 29008 of 1982 decided on 4.5.1982 and the writ petition No. 8909 of 1982 relation to the swadeshi Cotton Mills decided on 25.8.1982, Writ Petition No. 14064 of 1997 Keshav Kumar Gupta v. State of U.P. and Ors. in case it has been held by the Supreme Court that the Tribunal should not order the promotion, at the best it can direct the Govt to consider the matter of promotion with due regard to various situations.
14. The post of Store incharge is of Grade-5 whereas the Assistant Store Incharge is a lower post with lesser scale of pay. He was paid Rs. 150/- per month for holding charge of the post of Store Incharge. The workman was never appointed as Store Incharge. A judicial notice can be taken that this mill is lying closed for about 10 years and is in process of closure.
15. In view of the above claiming higher designation or higher pay-scale or both would amount to the claim for promotion In the instant case the workman was appointed as Assistant Store Incharge and his demand/claim for higher post and corresponding pay scale is claimed for promotion, which is management function.
16. Admittedly there are other persons who are senior to the workman and there case has to be considered alone for promotion, if any.
17. The Labour Court has rightly rejected the prayer for appointment of the petitioner as Store Incharge. No perversity has been shown in the finding of fact recorded by the Labour Court. For the reasons stated above it is not a fit case for interference under Article 226 of the Constitution of India. The writ petitions fails and is dismissed. No order as to costs.
