Allahabad High Court
U.P.State Road Transport Corporation ... vs Mohd. Danish Naqvi And Others on 13 January, 2023
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 11.01.2023 Delivered on 13.01.2023 Court No. - 10 Case :- WRIT - C No. - 13859 of 1998 Petitioner :- U.P.State Road Transport Corporation And Another Respondent :- Mohd. Danish Naqvi And Others Counsel for Petitioner :- R.K. Ojha,Adarsh Bhushan,Samir Sharma Counsel for Respondent :- C.S.C.,G.B. Qadri Hon'ble Rohit Ranjan Agarwal,J.
1. Heard Sri Adarsh Bhushan, learned counsel for the petitioners, Ms. Ghazala Bano Quadri, learned counsel for respondent no. 1 and learned Standing Counsel for respondent nos. 2 and 3.
2. This writ petition under Article 226 of the Constitution of India has been filed assailing the judgment and award dated 14.08.1997, published on 11.12.1997 by Labour Court (IV), U.P. Kanpur/ respondent No.2.
3. Facts in nutshell, are that respondent No.1 was appointed as an Accountant on 18.04.1987 in U.P. State Road Transport Corporation (hereinafter referred to as "UPSRTC"). The workman/respondent No.1 raised an industrial dispute, and claimed pay and post of Senior Accountant. The State Government exercising power under Section 4-K of U.P. Industrial Disputes Act referred the matter for adjudication to the Labour Court which was registered as Adjudication Case No. 357 of 1995.
4. The Labour Court adjudicated upon the matter and by the award impugned granted the benefit to the workman from 01.07.1989 for the post of Senior Accountant and directed for payment of wages of Senior Accountant as well as was given the designation of the post of Senior Accountant from the date when he took charge in Azad Nagar Depot.
5. Learned counsel for the petitioner submitted that the Labour Court was not correct in making the award as it amounted to granting promotion, which is a managerial function of the employer and the Labour Court had no jurisdiction to grant such promotion under the garb of "fitment". According to learned counsel, the appointment of respondent No.1 was on the post of Accountant and the post of Senior Accountant being a promotional post is within the exclusive domain of the employer. According to learned counsel, the promotion was made as per the seniority list and the respondent No.1 was promoted to the post of Senior Accountant on 07.04.1997. Thus, the award giving the benefit from 01.07.1989 cannot be accepted.
6. Reliance has been placed upon decision of Apex Court in case of Management of Brooke Bond India (P) Ltd. vs. Workmen, AIR 1966 SC 668; The Hindustan Lever Limited v. The Workmen, AIR 1974 SC 17, and decision of coordinate Bench of this Court in Writ-C No.21459 of 2000, UPSRTC v. Imtiaz Ahmad and Ors., decided on 02.05.2011, M/s. Swadeshi Cotton Mills vs. Presiding Officer, Labour Court (III), Kanpur and others, 1993 67 FLR 487 (All) and decision in Writ-C No. 17313 of 1997, UPSRTC and Ors. vs. Brij Nandan Lal and Ors., decided on 02.05.2012 .
7. Per contra, learned counsel appearing for the workmen submitted that the language used in the award is not granting promotion on the post of Senior Accountant but rather the designation of Senior Accountant has been given and the pay of the post on which the workman has worked for several years had been given. She contended that it was not a case of promotion rather the post was vacant, the workman was asked by the officers of the UPSRTC to work on that post. According to her, it is a case of "fitment".
8. Reliance has been placed upon decision of coordinate Bench of this Court in case of National Textile Corporation (U.P.) Ltd. vs. Presiding Officer Labour Court, 1991 (62) FLR 583 and U.P. State Electricity Board vs. Presiding Officer Labour Court, 1995 70 FLR 1137.
9. I have heard learned counsel for the parties and perused the material on record.
10. The sole dispute which arises in the present writ petition is whether the case of the workman/respondent No.1 is of "fitment" or by the award impugned, the Labour Court has exceeded its jurisdiction and by giving the designation and pay for the post of Senior Accountant has in fact granted promotion to the workman which is a managerial function.
11. From the reading of the award, it is clear that the Labour Court transgressed its limit and in fact had given all the benefits to the workman for the post and wages of Senior Accountant from 01.07.1989, though, the workman who was appointed as an Accountant in the year 1987 was granted promotion on 07.04.1997.
12. The matter regarding promotion being a managerial function and granting of designation and status to a workman has been under active consideration of not only the Apex Court but also of this Court for a long time. The matter is no more res intigra. In Brooke Bond India (supra), the Apex Court had cleared the air and held that promotion is a managerial function. The Apex Court was of the view that in case an employee was not considered for promotion, the Tribunal at best could have remitted back the matter after setting aside the promotion and asked the Management to consider it. In the present case, there was no such dispute and the Labour Court had granted designation of the post as well as given the salary which amounts to promotion.
13. The coordinate Bench of this Court in Brij Nandan Lal (supra), after considering all the judgments placed before this Court from both sides found that directing prospective grant of designation and pay scale is nothing but promotion ignoring the claim of other similarly situate workman.
14. In Swadeshi Cotton Mills (supra), this Court found that where there was no finding recorded that there was denial of promotion to the workman which was mala-fide or was with a view to victimize him, in absence of such finding, the Labour Court could not have entered in the matter of promotion of a workman.
15. In Vindhyachal Mani vs. Presiding Officer, Labour Court, UP (2015) 146 FLR 615, this Court while considering the denial of benefit of post or pay scale to a workman held as under :
"10. In the case of fitment, benefit would be available only to the stage of work performed by the employee and not beyond that. In case fitment is of permanent nature, then certainly it would be a case of promotion, which is a managerial function and in respect to which Labour Court has no jurisdiction. Cases of fitment based on promotion will stand on different footing where as fitment based on nature of work performed will stand on different footing. In case employer is taking work from the incumbent of higher grade the wages commensurate to said work has to be paid and same will be paid till the period, work is assigned and taken."
16. Considering the facts and circumstances of this case, I find that the Labour Court exceeded its jurisdiction in granting designation and pay scale which is nothing but promotion. The Tribunal has failed to record any finding that the workman was denied any promotion and people junior to him were promoted.
17. As the workman was promoted on 07.04.1997, thus, giving him the benefit of promotion by way of designation from 01.07.1989 cannot be allowed and the order impugned is unsustainable in the eyes of law and the same is set aside.
18. The writ petition stands allowed.
Order Date :- 13.1.2023 V.S.Singh