Kerala High Court
The Managing Director vs The Secretary on 12 January, 2007
Author: S. Siri Jagan
Bench: S.Siri Jagan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP No. 9494 of 2003(E)
1. THE MANAGING DIRECTOR, KELTRON ELECTRO
... Petitioner
Vs
1. THE SECRETARY, KELTRON EMPLOYES UNION
... Respondent
2. THE LABOUR COURT, KOZHIKODE.
For Petitioner :SRI.T.P.KELU NAMBIAR (SR.)
For Respondent :SRI.P.RAMAKRISHNAN
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :12/01/2007
O R D E R
S. SIRI JAGAN, J.
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O.P. No. 9494 OF 2003 E
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Dated this the 12th day of January, 2007
J U D G M E N T
The management in ID No.33/97 is the petitioner herein. Ext.P1 award passed by the Labour court in that ID is under challenge in this original petition. The issue referred for adjudication was as follows:
" Whether alleged denial of promotion to Sri.K.Kannanunni HST II by the management of Keltron Electro Ceramics, Kuttippuram is justifiable? If not the relief entitled to the workman."
The Tribunal came to the conclusion that the workman was entitled to be promoted as Highly Skilled Technician-I(HST-I) from the post of Highly Skilled Technician-II(HST-II) with effect from 15.11.1985 onwards.
2. The contention of the petitioner is that as per the eligibility criteria the workman can aspire for promotion only after putting his 5 years' service as HST-II and should also satisfy the attendance criteria in addition to passing the job oriented test to be conducted for the candidates aspiring for promotion. The contention of the petitioner is that the workman was promoted as HST-II only on 15.6.89 and, therefore, he would have been eligible for promotion as HST-I only after OP.9494/03 2 15.6.94. He would further submit that as evidenced by Ext.M4 letter issued to the workman it is proved that he did not fulfill the attendance criteria, which is a requirement for promotion as per agreement dated 22.3.85. He would further submit that the question of calling the petitioner for job oriented test would arise only if he satisfies the other criteria stated above and, therefore, the Labour court went wrong in finding fault with the management for not conducting the job oriented test.
3. On the other hand, the 1st respondent union would contend that the management is trying to take advantage of their own mistake.
According to him, he was eligible for promotion as HST-II as early as on 15.11.81 and that is why although he was promoted as HST-II on 15.6.89, the same was with retrospective effect from 15.11.81. That being so, he must be deemed to have acquired the experience qualification on completion of 5 years from 15.11.81. He would also submit that as per Ext.W2 statement the experience criteria was only 4 years and, therefore, he was entitled to be promoted with effect from 15.11.85 as HST-I.
4. I find considerable merit in the contention of the 1st respondent. Admittedly on 15.6.89 the workman was promoted as HST-
II with effect from 15.11.81. That would definitely mean that the workman was entitled to be promoted as HST-II with effect from OP.9494/03 3 15.11.81 and it is because of their own lethargy that they waited till 1989 to make the promotion. The petitioner cannot take advantage of their own mistake to deny legitimate promotion due to a workman.
5. Regarding the attendance criteria apparently there are three agreements, Exts.W2, W3 and W4. Exts.W3 and W4 are dated 10.1.89 and 1.6.89 respectively. The Tribunal found that MW1 the Deputy Manager(Personnel) of the management company himself on cross examination admitted that he is unaware as to why W2 agreement was separately entered into. He has sworn to the fact that as per W2, no attendance criteria is necessary for promotion. He also admitted that no test mentioned in W2 has been conducted by the management. He also admitted that although attendance criteria is mentioned in W4 the same is absent in W2. He further admitted that had the worker been given promotion in 1985 he would become Master Technician in 1989. Apart from the fact that the management witness himself admits that as per the settlement in force at the relevant time the attendance criteria was not a necessary requirement for promotion. I am not satisfied that the management has succeeded in proving that the workman is not qualified for promotion since he did not fulfill the attendance criteria. To prove this, what they have relied on is a letter written to the workman namely, Ext.M4 stating that he has not satisfied the eligibility criteria of attendance requirement for promotion. I do not think that that letter can OP.9494/03 4 be accepted as proof of that fact. Since best evidence was available with the management to prove attendance details of the workman such as muster roll, acquittance roll, etc., without producing such evidences were available with the management which they have not cared to do they cannot aspire to prove the same simply by producing a unilateral letter issued to the workman. As such, I am satisfied that the management has not succeeded in proving either that the attendance criteria was a necessary requirement for promotion or that the workman did not fulfill the attendance criteria. That being so, clearly the workman must be deemed to have fulfilled both the experience criteria and the attendance criteria. The only thing that remains is the passing of the job oriented test. Admittedly, the management has not conducted such test. The contention of the Advocate for the petitioner management is that the question of conducting the job oriented test would arise only if the workman satisfies the eligibility criteria for promotion. When as found above, the workman should be deemed to have satisfied the eligibility criteria then it was for the management to conduct the test and they cannot now contend that since they have not conducted the test the workman cannot be promoted. Therefore, on all counts I find that the workman had made out a case before the Labour court for promotion with effect from 15.11.1985. As he was promoted as HST-II with effect from 15.11.1981 and as per the eligibility criteria the experience required OP.9494/03 5 for promotion was fixed only as four years. In any event, I do not find any perversity as such in the findings of the Labour court on the basis of evidence before it, which alone would give me jurisdiction to interfere with Ext.P1 award. In the above circumstances, I do not find any merit in the original petition and accordingly the same is dismissed.
(S. SIRI JAGAN, JUDGE) aks S. SIRI JAGAN , J.
OP No.9494/03E J U D G M E N T 12th January, 2007