Gauhati High Court
Hindustan Paper Corporation Ltd. And ... vs Suresh Ch. Prasad And Ors. on 9 November, 2000
Equivalent citations: (2001)ILLJ1278GAU
JUDGMENT J.N. Sarma, J.
1. This appeal has been filed by the defendant and it is against the judgment and decree dated November 20, 1998 passed by the learned Civil Judge. Sr. Division No. I Hailakandi in TS 44/92.
2. The respondents herein filed a suit before the learned Civil Judge with the following reliefs;
i) declaring that the plaintiffs are eligible for and entitled to be promoted to the upper supervisory pay scale of Rs. 2150-3850/-p.m. of the 2-Tier clubbed posts with all requisite benefits as per the existing corporation rules from the existing lower supervisory pay scale of Rs. 2000-3440/-p.m.
ii) declaring that the plaintiff's are entitled to get proper house rent, annual increments and leave benefits for the existing post of service with retrospective effects i.e. January 1, 1987 as other non-technical promotee supervisors of the Corporation on the same pay scale.
iii) declaring that the non-submissions of the names of the eligible plaintiffs for due recommendation for promotion, batch by batch, in the DPC Session held in the year 1990-1991 & 1992 respectively under the initiative of the defendants Nos. 1, 2 and 3 are illegal, void, unconstitutional and repugnant to the natural justice and violation of Corporation rules and further a direction to the defendant Nos. 1, 2 and 3 to submit the seniority lists of the plaintiffs in the current DPC session 1992 for recommendation of the names of plaintiffs for promotions to the next higher pay scale with effect from the dates of previous respective dates of promotion from workmen to the lower supervisory pay scale, without hampering and interfering the plaintiffs in their respective peaceful services within a period to be prescribed by the Court.
iv) declaring that the ambiguous order issued from the office of defendant No. 3 dated August 1, 1991 respecting counting of seniority status of the plaintiffs from the date of re-designation dated August 1, 1991 is illegal, void, unconstitutional, ineffective and repugnant to the Corporation rules and tripartite settlement dated June 27, 1991 and directing the defendants to follow-up and implement the departmental relevant rules and enforce the decisions of tripartite settlement for the due promotion of the plaintiffs and its genuine privileges within a period to be prescribed by the Court.
3. The suit was basically for declaration that the plaintiffs are eligible for promotion from lower supervisory pay scale to the upper supervisory pay scale of Rs. 2150-3850/- p.m. of the 2-Tier clubbed posts with all requisite benefits as per the existing Corporation rules and they claim it from retrospective date i.e. from January 1, 1987.
4. The admitted position in the plaint is that these plaintiffs joined the Corporation as workmen in the year 1980, batch by batch and it is further admitted that they are known as "technical staff and thereafter they continued to get promotion from time to time and in course of time they reached the highest point of the ladder to which a workman can be promoted and accordingly on behalf of plaintiffs, the Union raised a demand before the management and the matter was taken up for conciliation. Earlier an appeal was filed before the authority stating that there was patent and recurring discrimination between technical and non-technical staff of the promotee supervisory category and ultimately there was a conciliation proceeding and that finds place in para 3 of the plaint and that reads as follows:
".....the plaintiffs were formerly found eligible for promotion in D.P.C. session held in the year 1988, and they were accordingly promoted batch by batch to the next higher pay scale from workmen category to lower supervisory pay scale with effect from January 1, 1987 though proper benefits i.e. house rent, leave benefits and annual increments were not provided to them and hence there arose a dispute before the Asstt. Labour Commissioner-cum-Conciliation Officer, Silchar on November 10, 1989."
Also in para 4 it is stated as follows:
".....in the DPC Session held in the year, 1990, the plaintiffs names were not enlisted for recommendation for promotion and hence they raised protests and objections and to that effect a tripartite settlement was held among the Corporation, Union (Plaintiffs) and Asstt. Labour Commissioner-cum-Conciliation Officer, Silchar respectively on June 27, 1991 and an agreement was arrived at for the fulfilment of the claims of the plaintiffs, but-the Corporation did not implement the said tripartite settlement in full."
5. There is also a further statement in para 5 of the plaint that the defendants did not implement the decision of the said settlement dated June 27, 1991. It is admitted that on June 27, 1991 the posts of the plaintiffs were re-designated as Foreman and it is also admitted that they were kept in the same scale of pay as Foreman.
6. A written statement was filed on behalf of defendant stating inter alia as follows:
a) That this Court has got no jurisdiction to try this suit as the same is exclusively within the jurisdiction of Industrial Tribunal.
b) The plaintiffs were workmen. They were unionised categories of employees and were governed by the Standing Orders of Company applicable to workmen....
c) The plaintiff being in the highest positions of workmen category, there was no scope of any further promotion during the period.
d) In para 7 of the plaint it is stated that the plaintiffs are not qualified to be promoted to supervisory post as most of them are ITI certificate holders and some of them are BA/B.Sc/B.Com, Matriculates or Intermediates.
e) On reaching the highest position of workmen category i.e. Sr. Technicians/Sr. Operators the plaintiff applicants started bargaining with the Management for getting additional financial benefits. After prolonged discussions by their unions at various management forum, the management with a view to retaining the skills and experience gained by these incumbents, and also as a matter of good gesture, took a lenient view on the issue and sympathetically agreed to extend enhanced financial benefits to these Technicians/ Operators and accordingly put them in the pay scale of Rs. 715-1355/- but with all the other benefits and terms and conditions of workmen category as per the understanding reached. Incidentally the pay scale of Rs. 715-13557- happens to be that entry level of pay scale of lower supervisory category.
f) While in the pay scale of Rs. 715-13557-the plaintiff-applicants continued to enjoy the benefits of the workmen category viz. Uniforms, Washing allowance, Shift allowance, Overtime allowance etc. as such the plaintiff-applicants are 'Workmen'. The plaintiffs-applicants were also enjoying the benefits of being the unionised category employees under the Industrial Disputes Act, 1947. It is on record that during this period some of the applicants/plaintiffs held the positions of Union Office bearers also.
g) That on their repeated approach and with an honest intention of giving some benefit to the plaintiffs, they were redesignated as 'FOREMAN' with effect from August 1, 1991. Accordingly their names were considered in the DPC session of 1992. But ultimately that had to be referred to the Head Office seeking some clarifications. In the meantime this suit has been filed, so no decision could be arrived at since the issue became subjudice.
h) That promotion is not a matter of right. Line of promotion also differs. Availability of posts, job specification and many other factors including the need to fill up the vacancies are required to be considered for effecting any promotion."
7. As many as 8 issues were framed. The issues relevant for disposal of this appeal are as follows:
1. Whether the Court has jurisdiction to try this suit?
2. Whether the plaintiffs are eligible and entitled to be promoted to the Upper Supervisory pay scale of Rs. 2150-38507-p.m. with all incidental benefits with retrospective effects. ?
3. Whether order dated August 1, 1991 passed by the defendant No. 2 the Deputy General Manager (P&A) HPC Ltd. respecting counting a seniority and other incidental benefits is illegal and inoperative?
4. Whether Tripartite settlement mentioned in the plaint regarding promotion and other benefits of the plaintiffs has got to be enforced by the defendants?
5. Whether the plaintiffs are workmen and unionised and are not entitled for any other promotion?
8. Only two witnesses were examined. On behalf of plaintiffs one Dipak Chandra Nath (Plaintiff No. 9) and on behalf of defendant one S.K. Sharma, Asstt. Manager (P&A) HPC Ltd. A large number of documents were exhibited. The learned Civil Judge, Sr. Division, Hailakandi decided Issue No. 1 i.e. cause of action in favour of the plaintiffs. The learned judge took up Issue Nos. 2 and 3 for discussion together and without sufficient reasons and materials decided both the issues in favour of plaintiffs. Learned Judge found in deciding Issues Nos. 2 and 3 as follows:
"That the plaintiff are not workmen and that the present suit is not barred by Industrial Disputes Act"
9. It was further found that the plaintiffs are holding supervisory posts under the Corporation with redesignation of Foreman. In deciding Issue No. 4 learned Judge looked to Ext. I, the guideline as approved by the Board of Directors of the Corporation applicable to the case of promotion of the employees. He also looked to Exts. 2 and 3. Ext. 2 is merely a chart submitted by the plaintiffs stating that promotion was given to lower supervisory pay scale on the dates as mentioned therein. There is no signature of anybody in this Ext. 2 and it is not understood what evidentiary value this Ext. 2 will have. On the basis of the statement given in this Ext. 2, it was held by the learned Judge that there was promotion from the workmen category to lower supervisory pay scale. In deciding the controversy rival contentions, the scale is not relevant. What is relevant is when and how promotions were made by the Corporation to the supervisory posts. The Corporation all along has taken a stand that there was no such promotion to supervisory category and the last letter i.e. dated June 27, 1991 admittedly is a case of redesignation of the posts stating that it is 'Foreman'. The finding in Issue No. 4 is as follows:
"(a) As per Ext. 2 the plaintiffs are entitled to the supervisory pay scale w.e.f. July 1990, July 1991, July 1992 respectively according to their effective date of promotion to the supervisory pay scale.
(b) The defendant also failed to produce any evidence oral or documentary to show that the plaintiffs have not fulfilled any of the criteria of their eligibility for promotion after having rendered the minimum qualifying period of two years service in the next lower grade."
10. This is absolutely without any basis inasmuch as pointed out by me above Ext. 2 only is a scrap of paper and it does not bear any signature of anybody. If the plaintiffs want to rely on the controversy regarding promotion they should have produced the letters of the authority promoting them as claimed by them. Fault also was found by the learned judge that the defendant failed to produce any evidence oral or documentary to show that the plaintiffs have not fulfilled any of the criteria of their eligibility for promotion after having rendered the minimum qualifying service of 2 years in the lower grade. This burden is on the plaintiffs and not on the defendant. The plaintiffs came to the Court seeking certain reliefs and it would be their burden to show that they are eligible and they have fulfilled the necessary criteria giving them a right to be considered for promotion.
11. Regarding Issue No. 5 the right of the petitioner to get promotion from back date, the matter was decided by the learned Judge only on the basis of Ext. 26. Regarding Issue No. 6 the tripartite settlement and accordingly that issue was decided in favour of the plaintiffs. Regarding Issue No. 7 it was found that the plaintiffs are not workmen after their promotion. Regarding Issue No. 8 it was decided that the plaintiffs are not entitled to get all the benefits of promotional post and they are not entitled to the benefits already derived by the plaintiffs as workmen and accordingly a decree was passed. Hence this appeal.
12. I have heard Smti M. Hazarika, learned counsel for appellant and Mr. B.K. Das, learned counsel for respondents.
13. Smt. Hazarika, learned counsel while assailing the judgment and decree makes the following submissions:
i) that the finding that the plaintiffs are not workmen is perverse and not correct;
ii) the Civil Court once held that the plaintiffs are workmen, the Civil Court shall have no jurisdiction to try the suit and as such the matter must go before the Industrial Tribunal;
iii) A person does not have a right to be promoted per se;
iv) plaintiffs reached the highest level of employment category to which they are entitled to be considered according to scheme/policy decision of Corporation and the Court cannot give any further direction for promotion;
v) The lines of promotion are different. Plaintiffs belonged to the technical line and as such they are not entitled to get promotion in the non-technical line.
14. Mr. B.K Das, learned counsel for respondents joins in issues on these contentions and he submitted as follows:
i) That on the admission made in the W.S. the Court must come to a finding that the plaintiffs are not workmen;
ii) That the plaintiffs are poor employees and the benefits which have been given to them that should not be wiped out;
iii) That the Industrial Tribunal does not have the jurisdiction in the matter and it is the Civil Court which will have the jurisdiction to decide the matter.
15. Let us find out whether the plaintiffs are workmen or not on the basis of factual position and legal position as settled by a catena of decision of the Apex Court. The definition of 'workman' is given in Section 2(s) of the Industrial Disputes Act, 1947. It is not necessary to quote that definition. One thing which must be borne in mind in deciding this question is that the designation of an employee is not of much importance and what is important is the nature of duties being performed by the employee. The determinative factor is the main duties of the concerned employee and not some works incidentally done by him. The broad intention is to take in the entire "labour force" and exclude the "managerial force "only. The "terms of employment" of any person refer to all matters covered by the contract of employment, either express or implied. In the language of LORD DENNING M.R. "terms and conditions of employment may include not only the contractual terms and conditions but those terms which are understood and applied by the parties in practice, or habitually or by common consent without ever being incorporated in the contract". Basically "terms of employment" include such straight forward industrial issues as bonus, wage rates (in all forms including dearness allowance and other allowances) hours of work, overtime, holidays with pay, sickness benefits, superannuation benefit, grading and promotion, dismissal and retrenchment procedures. But "terms of employment" is a wide-ranging phrase which also extends to less obvious aspects of labour relation than these. Before a dispute can be an industrial dispute, it must be connected with "the terms of employment or the conditions of labour" of any person. It is only then that the question would arise as to under what item of the second schedule or third schedule such a dispute falls. If a dispute is not connected with the "terms of employment or conditions of labour" of the workmen, the mere fact, that the claim falls under a particular item in the second or the third schedule will not convert it into an 'industrial dispute'. In other words, the connection of the dispute with the "terms of employment or conditions of labour" of the workers is a condition precedent. If the dispute is so connected which falls in any item in the second or the third schedule, then alone can it partake the character of an 'industrial dispute.'
16. Section 2(k) defines "Industrial Dispute" and it is from that definition we must come and hold that what we mean by the terms of employment. The "terms of employment" are already indicated above.
17. Regarding the question whether the plaintiffs are workmen or not, already we have quoted the pleadings and it is the admitted position that the plaintiffs entered the services of the Corporation as workmen, but their contention is that after promotion they ceased to be workmen as they are doing the supervisory duties. That contention is denied by the defendent and also by the witnesses of the defendant. The witnesses of the defendant categorically stated that these plaintiffs are doing the same work and that also is evident from Ext. 26 which is the order by which they were re-designated. That order is quoted below:
"HINDUSTAN PAPER CORPORATION LTD.
CACHAR PAPER MILLS Ref : CPM/P&A/CR4/1559 dated 1.8,1991 OFFICE ORDER The following Sr. Operators/Sr. Technicians are hereby designated as Foreman in the respective areas in the pay scale of Rs. 2000 - 3440/- Their Basic pay in the concerned pay scale will be fixed as per Corporation Rules.
They will be governed by the Provisions of Conduct, Discipline & Appeal Rules and Services Rules of the Corporation as applicable. However, other terms and conditions of their employment will remain unchanged."
18. So it is clearly written there that other terms & conditions of their employment will remain unchanged meaning thereby that they will have to perform the same duties. There is nothing to show in the document exhibited as well as in evidence of the plaintiffs that these plaintiffs did any supervisory work in the year 1991, they were merely redesignated, but they continued to do the same work.
19. Smt. Hazarika, learned counsel in support of the contention that the plaintiffs are workmen relied on the following decisions:
1. Burmah Shell Oil Storage and Distribution Company of India Limited v. The Burmah Shell Management Staff Association and Ors. AIR 1971 SC 922 : 1970 (3) SCC 378 : 1970-II-LLJ-590, wherein the Supreme Court inter alia pointed out as follows at 595 of LLJ:
"7. The next aspect that has to be taken notice is that, in practice, quite a large number of employees are employed in industries to do work of more than one of the kinds mentioned in the definition i.e., Section 2(5)."
20. The Supreme Court further pointed out that if a person is mainly doing supervisory work and/or technical work, there would be no difficulty in holding him not to be workman. The principle is now well settled that, for this purpose, a workman must be held to be employed to do that work which is the main work he is required to do, even though he may be incidentally doing other types of work.
In Para 12, the Supreme Court held as follows 1970-II-LLJ-590 in p. 598 :
"12. Thus in the present case also, in determining which of the employees in the various categories are covered by the definition of "workmen", we have to see what is the main or substantial work which they are employed to do? If it is supervisory work, it would be held that they were employed to do supervisory work even though they may also be doing some technical, clerical or manual work, if on the other hand, the supervisory work be incidental to the main or substantial work of any other type.''
21. In this particular case it will be seen that there is absolutely no evidence whatsoever both oral and documentary to show that the plaintiffs do any supervisory work. They were workmen till they were redesignated as Foreman and they continued to do the same duties as will be evident from Ext. 26 which has been quoted above.
22. The next case on this point is D.P. Maheswari v. Delhi Administration and Ors. AIR 1984 SC 153 : 1983 (4) SCC 293 : 1983-II-LLJ-425. In that particular case, the appellant was appointed and thereafter he was redesignated as Accountant in a private limited company. A dispute was raised in 1969 consequent to termination of his service and when it was referred to Labour Court the management raised preliminary objection before the Court that the appellant was not workman under Section 2(s) of the Industrial Disputes Act as he was an officer by designation. Repealing that contention, the Supreme Court in Para 5 of the judgment found that though he was designated as Officer he was doing clerical duties and as such he continued as workman.
23. In Arkal Govind Raj Rao v. Ciba Geigy of India Ltd. AIR 1985 SC 985 : 1985 (3) SCC 371 : 1985-II-LLJ-401. The appellant before the Supreme Court was an Assistant in a Company. A dispute arose before the Labour Court and there a preliminary objection was taken by the management/ employer to the extent that he is not a workman and his duty is mainly of supervisory nature. The High Court accepted that plea and the matter went up to the Supreme Court and the Supreme Court in para 16 pointed out as follows in 1985-II-LLJ-401 at 406 :
"16. The test that one must employ in such a case is what was the primary, basic or dominant nature of duties for which the person whose status is under enquiry was employed. A few extra duties would hardly be relevant to determine his status. The words like managerial or supervisory have to be understood in their proper connotation and their mere use should not detract from the truth."
24. The Supreme Court in the facts and circumstances of that case allowed the appeal and held that the appellant was a workman.
25. S. K. Maini v. Corona Sahu Company Limited and Ors. AIR 1994 SC 1824 : 1994 (3) SCC 510 : 1994-II-LLJ-1153 was a case where the appellant was a workman. The Supreme Court in that case referred to its earlier judgment and laid down the law as follows at p 1158 of LLJ:
"9. The determinative factor is the main duties of the employee concerned and not some works incidentally done. In other words, what is in substance, the work which employee does or what in substance he is employed to do. Viewed from this angle, if the employee is mainly doing supervisory work but incidentally or for a fraction of time also does some manual or clerical work, the employee should be held to be doing supervisory works. Conversely if the main work is of manual, clerical or of technical nature, the mere fact that some supervisory or other work is also done by the employee incidentally or only a small fraction of working time is devoted to some supervisory works, the employee will come within the purview of 'workman' as defined in Section 2(s) of the Industrial Disputes Act."
26. On the facts of that case, on considering the duties of the appellant, it was found that he was not a workman but his duties was of administrative and managerial nature.
27. Following the law laid down by the Supreme Court and on consideration of the materials on record, both oral as well as documentary and also the pleadings of the parties I hold that the plaintiffs are workmen within the definition of Section 2(s) of Industrial Disputes Act. Their duties were that of the workman and they were not exercising any power of supervision. Having decided this question in favour of appellant and against the plaintiffs, the next question is whether the Civil Court will have the jurisdiction to entertain the suit. There is no denying of the fact that earlier there was a conciliation proceeding with regard to demand made by the plaintiffs which is the subject matter of this suit. In that conciliation proceeding, a tripartite agreement was arrived at and in terms of the tripartite agreements the plaintiffs were given higher scale and some other benefits and thereafter by Ext. 26 they were redesignated and one of the prayer as will be evident from the plaint was that for the enforcement of the right which flows from the agreement. The question is whether the right which flows from the agreement that can be enforced by the Civil Court or plaintiffs are to approach Industrial Tribunal. The other question will be whether the relief claimed by the respondents/plaintiffs is basically an Industrial dispute. In connection with this contention, Smt. Hazarika learned counsel for appellant places reliance on the following decision:
1. Rajasthan State Road Transport Corporation and Anr. v. Krishna Kant and Ors. AIR 1995 SC 1715 : 1995 (5) SCC 75 : 1995-II-LLJ-728. The first case on the point is Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke AIR 1975 SC 2238 : 1976 (1) SCC 496 : 1975-II-LLJ-445 wherein the Supreme Court laid down 4 principles as follows 1995-II-LLJ-728 at 738 :
"22. (i) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act the remedy lies only in the Civil Court.
(ii) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the Civil Court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy.
(iii) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act.
(iv) If the right which is sought to be enforced is a right created under the Act such as Chapter V-A then the remedy for its enforcement is either Section 33C or the raising of an industrial dispute, as the case may be."
28. The next case on this point is Jitendra Nath Biswas v. Empire of India and Ceylone Tea Co. and Anr. AIR 1990 SC 255 : 1989 (3) SCC 582 : 1989-II-LLJ-572, where in para 6 the Supreme Court laid down the law as follows at p. 577 of LLJ:
"6. It is therefore clear that the scheme of the Industrial Disputes Act clearly excludes the jurisdiction of the Civil Court by implication in respect of remedies which are available under this Act and for which a complete procedure and machinery has been provided in this Act."
29. That was a suit which was filed before the Civil Court with regard to certain charges which are sought to be framed against the appellant by a Tea Garden and he filed a suit for declaration and the Supreme Court in para 6 pointed out that the Civil Court had no jurisdiction to entertain the suit as it was a matter clearly covered by the Industrial Disputes Act.
30. Shramik Sangh, Bombay v. Indian Hume Pipe Co. Ltd and Anr. 1993 (2) SCC 386 : 1993-I-LLJ-965. That was a case wherein the Supreme Court has pointed out as follows at p. 968 of LLJ:
"7. It must be remembered that the Industrial Tribunal/Labour Court is supposed to be a substitute forum to the Civil Court. Broadly speaking, the relief which the Civil Court could grant in an industrial dispute can be granted by the Industrial Tribunal/Labour Court."
31. Sankaranarayanan Potti (dead) by Lrs. v. K. Sreedevi and Ors. 1998 (3) SCC 751 the Supreme Court regarding jurisdiction of the Civil pointed out as follows:
"It is obvious that in all types of civil disputes Civil Courts have inherent jurisdiction as per Section 9 of the Code of Civil Procedure unless a part of that jurisdiction is carved out from such jurisdiction, expressly or by necessary implication, by any statutory provision and conferred on any other tribunal or authority."
32. On the basis of the law as laid down by the Supreme Court, Smt. M. Hazarika, learned counsel for appellant urges that the jurisdiction of the Civil Court is ousted and the claim made by the plaintiffs are basically industrial disputes and as such the Civil Court had no jurisdiction to entertain the suit.
33. Before we go to the other points urged by Smt. M. Hazarika, learned counsel let us have a look on the submissions made by Mr. B.K. Das, learned counsel for plaintiffs.
34. Mr. B.K. Das, learned counsel contends that once these plaintiffs were promoted, they ceased to be workmen and their duties are supervisory in nature. As already indicated above this contention is not correct and already I have held against him.
35. Next contention of Mr. Das, learned counsel is that the claim made by the plaintiffs in the suit are not industrial disputes, they flow from the general and/or common law and as such jurisdiction of the Civil Court cannot be deemed to be ousted. His alternative submission is that even if it is an industrial dispute, there is no bar inasmuch as the law gives option or right to choose and accordingly he has chosen the forum of Civil Court and the civil Court is bound to decide the matter. Mr. Das, learned counsel strenuously relied on the decision reported in Rajasthan State Road Transport Corporation and Anr. v. Krishna Kant and Ors. (supra) is a judgment by three judges. Earlier judgment in Premier Automobiles (supra) were also by three judges. The law laid down in Premier Automobiles (supra) was considered in the later case. The brief facts of that case were that certain drivers and conductors of Rajasthan State Road Transport Corporation were removed from service and they filed a civil suit before the trial Court challenging the legality and validity of the order of termination. The management/employer took up the plea that this dispute was clearly within the four corners of Industrial Tribunal and as such the civil Court had no jurisdiction. The question was decided against the management/ employer and as such the matter was taken up on appeal to the Supreme Court and the Supreme Court pointed out that the decision in Premier Automobiles Ltd. has created some doubt and has raised the tricky question again and again and there was necessity to explain it and accordingly they took up for consideration like this. Where a dispute between the employer and employee does not involve the recognition or enforcement of a right or obligation created by the Industrial Disputes Act and where such dispute also amounts to an industrial dispute within the meaning of Industrial Disputes Act, whether the Civil Court's jurisdiction to entertain a suit with respect of such dispute is barred? (see para 22). Thereafter in para 25 the Supreme Court in deciding this question considered the decision in case of Dhulabhai regarding jurisdiction of the Civil Court (see AIR 1969 SC 78,) and noted down 7 principles as follows:
"32. We may now summarise the principles flowing from the above discussion:
(1) Where the dispute arises from general law of contract i.e. where reliefs are claimed on the basis of the general law of contract, a suit filed in Civil Court cannot be said to be not maintainable, even though such a dispute may also constitute an "industrial dispute" within the meaning of Section 2(k) or Section 2A of the Industrial Disputes Act, 1947.
(2) Where, however, the dispute involves recognition, observance or enforcement of any of the rights or obligations created by the Industrial Disputes Act the only remedy is to approach the fora created by the said Act.
(3) Similarly, where the dispute involves the recognition, observance or, enforcement of rights and obligations created by enactments like Industrial Employment (Standing Orders) Act, 1946 which can be called "sister enactments" to Industrial Disputes Act and which do not provide a forum for resolution of such disputes, the only remedy shall be to approach the fora created by the Industrial Disputes Act provided they constitute industrial disputes within the meaning of Section 2(k) and Section 2A of Industrial Disputes Act or where such enactment says that it shall be adjudicated by any of the fora created by the Industrial Disputes Act. Otherwise, recourse to civil Court is open.
(4) It is not correct to say that the remedies provided by the Industrial Disputes Act are not equally effective for the reason that access to the forum depends upon a reference being made by the appropriate Government. The power to make a reference conferred upon the Government is to be exercised to effectuate the object of the enactment and hence not unguided. The rule is to make a reference unless, of course, the dispute raised is a totally frivolous one ex facie. The power conferred is the power to refer and not the power to decide, though it may be that the Government is entitled to examine whether the dispute is ex facie frivolous, not meriting an adjudication.
(5) Consistent with the policy of law aforesaid we commend to Parliament and the State Legislatures to make a provision enabling a workman to approach the Labour Court/Industrial Tribunal directly i.e. without the requirement of a reference by the Government-in case of industrial disputes covered by Section 2A of the Industrial Disputes Act. This would go a long way in removing the misgivings with respect to the effectiveness of the remedies provided by the Industrial Disputes Act.
(6) The certified Standing Orders framed under and in accordance with the Industrial Employment (Standing Orders) Act, 1946 are statutorily imposed conditions of service and are binding both upon the employers and employees, though they do not amount to "statutory provisions". Any violation of these Standing Orders entitles an employee to appropriate relief either before the fora created by the Industrial Disputes Act or the Civil Court where recourse to civil Court is open according to the principles indicated herein.
(7) The policy of law emerging from Industrial Disputes Act and its sister enactments is to provide an alternative dispute resolution mechanism to the workmen, a mechanism which is speedy, inexpensive, informal and unencumbered by the plethora of procedural laws and appeals upon appeals and revisions applicable to civil Courts. Indeed, the powers of the Courts and Tribunals under the Industrial Disputes Act are far more extensive in the sense that they can grant such relief as they think appropriate in the circumstances for putting an end to an industrial dispute."
36. In para 32, the Supreme Court considering the case of Dhulabhai (supra) laid down the principles as follows in 1995-II-LLJ-728 at 738:
"22. (1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act the remedy lies only in the Civil Court.
(2) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the Civil Court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy.
(3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act.
(4) If the right which is sought to be enforced is a right created under the Act such as chapter V-A then the remedy for its enforcement is either Section 33C or the raising of an industrial dispute as the case may be."
37. By applying this test, the Supreme Court held that the suit filed by the respondent is not maintainable in law. But inspite of it, the decrees were not set aside by the Supreme Court and the relief was maintained. But in para 34 the Supreme Court made it clear as follows in 1995-II-LLJ-728 at 742:
"34. It is directed that the principles enunciated in this judgment shall apply to all pending matters except where decrees have been passed by the trial Court and the matters are pending in appeal or second appeal, as the case may be. All suits pending in the Trial Court shall be governed by the principles enunciated herein as also the suits and proceedings to be instituted hereinafter."
38. So, this law reiterating the earlier law in Premier Automobiles Ltd. and the direction shall be clearly binding in this case in view of the fact that this matter was decided subsequent to this decision. Mr. B.K. Das, learned counsel strenuously urges that he is entitled to the benefit of principle No. 1 and he submits that the right flows from the General Law of Contract. This contention of Mr. Das, cannot be accepted because the rights which have been claimed did not flow from the General Law of Contract, but flow from the Tripartite Agreement as well as Conciliation Proceedings and the other rights made available for promotion and giving benefits to the plaintiffs. The dispute does not arise from the General Law of Contract and as such the civil suit cannot be filed for enforcement of them. The only alternative remedy available to the plaintiffs is to go to the Industrial Tribunal. Mr. Das, learned counsel places reliance on the following decisions:
1. Sudhan & Chandra Gogol v. Smt. Lakhyahira Das and Ors. 1993 Supp (1) GLR 169. That is a decision of this Court regarding ousting of jurisdiction of Civil Court and it is not necessary to pursue that case as that aspect of the matter has been settled by the Supreme Court.
39. So, I hold that the suit before the Civil Court is not maintainable and the plaintiffs can have their remedy only under Industrial Disputes Act. In view of the decision arrived at by me with regard to these two matters, it is really not necessary to consider other points urged by Smt. Hazarika, learned counsel for appellant, but as long drawn argument was made on the points, I deem it to be just and proper to decide this question.
40. Let us take up the right to promotion and the bar of the Court to give direction for promotion. The law has been settled in Ajit Singh and Ors. v. State of Punjab and Ors. 1999 (7) SCC 209, wherein it has been stated that right to be considered for promotion is a fundamental right but whether the person is to be promoted or not that itself is a managerial function because the question of promoting a person to higher level of employment will depend on the evaluation to be made by the authority. The Supreme Court in para 22 pointed out as follows:
"Article 16(1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be "considered" for promotion."
41. But in para 23 it was pointed out that the Court cannot give any direction for promoting a particular person and that will depend upon the other factors. Of course, if there is any discrimination and/or violation of Article 14 the Court may step in, in such a situation.
42. Smt. Hazarika, learned counsel in support of this contention places reliance on the following decisions:
1. State Bank of India Ors. v. Moh. Mynuddin AIR 1987 SC 1889 : 1987 (4) SCC 486 : 1998-I-LLJ-142 where in para 5, the Supreme Court pointed out as follows in at p. 145 of LLJ:
"The Court is not by its very nature competent to appreciate the abilities, qualities or attributes necessary for the task, office or duty of every kind of post in the modern world and it would be hazardous for it to undertake the responsibility of assessing whether a person is fit for being promoted to a higher post which is to be filled up by selection. The duties of such posts may need skills of different kinds, scientific, technical, financial, industrial, commercial, administrative, educational etc. The methods of evaluation of the abilities or the competence of persons to be selected for such posts have also become nowadays very much refined and sophisticated and such evaluation should, therefore, in the public interest ordinarily be left to be done by the individual or a committee consisting of persons who have the knowledge of the requirements of a given post, to be nominated by the employer. Of course, the process of selection adopted by them should always be honest and fair."
2. Union Public Service Commission v. Himnyalal Dev and Ors. AIR 1998 SC 1069 : 1998 (2) SCC 242 where also the same law has been laid down by the Supreme Court.
3. Orissa Small Industries Corporation Ltd. v. Narasingha Charan Mohanty and Ors., AIR 1999 SC 516 : 1999 (1) SCC 465 : 1999-I-LLJ-298. Where in para 3 the Supreme Court pointed out as follows p. at 299 of LLJ:
"3. That apart, the Court is not entitled to assess the respective merit of the candidates for adjudging their suitability for being promoted and the only right the employee has is a right of consideration. The said right of consideration not having been infringed in the present case, the High Court was not justified in issuing the impugned direction for reconsideration of his case."
43. That being the position of law, the order of the Court that the plaintiffs are entitled to get the upper supervisory pay scale immediately after the date of completion of two years in the lower supervisory pay scale along with benefits in respect of house rent, annual increment etc. is illegal and the same is liable to be quashed which I hereby do.
44. The next argument advanced by Smt. Hazarika, learned counsel for appellant is that the plaintiffs have reached the highest level of employment category and there is no further scope of promotion for these persons and the question of giving them more promotion does not arise. Whether in a particular service, promotion shall be available or not that is to be decided by the employer and an employee cannot have a right to claim promotion as because he has put up service for a particular number of years. Smt. Hazarika, learned counsel for appellant further submits that the line of promotion of the plaintiffs are different as they belonged to technical category and the line of promotion in the non-technical category is different. In one branch there may be more promotions then the other branch, but that cannot be said to be discriminatory and/or arbitrary. It may be the position that some persons in the other line may not be qualified and/or suitable to hold the post in the other line. The Court without looking to that aspect of the matter cannot straightaway direct for promotion as has been done in this case.
45. For all the reasons as stated above, this appeal is to be allowed which I hereby do. The impugned judgment and decree shall stand set aside and quashed.
46. Before I part with the record, I make it clear that the direction which was given in the judgment impugned regarding deduction of some amount for the facilities enjoyed by these plaintiffs, that direction/order shall also stand quashed as I have come to a finding that the plaintiffs are workmen. There is another aspect of the matter which I want to highlight that these plaintiffs belong to the poor strata of the society and if the defendant can give them some benefits that may be given. The dismissal of the suit of the plaintiffs shall not be used as a handle by the defendant and as stated in the written statement on behalf of defendant the matter shall receive consideration at the hand of the authority and the authority may consider the matter according to its own wisdom and some benefits may be given to the plaintiffs in order to keep harmonious relation in the Corporation. The consideration shall be made by the authority within a reasonable time, if it is possible within 6 months from today. It is submitted by Smt. Hazarika, learned counsel for appellant that the appellant has already offered some benefits but those benefits have not been accepted by the plaintiffs on the ground that the appellant put condition that there will be no further promotion. I find the offer to be fair and reasonable. It will be for the plaintiffs now to accept or to reject it. If it is accepted it is well and good and if it is not accepted, it is their own risk.
47. The appeal is accordingly allowed.