Judgment

DWIVEDI, J.:- The appellant is the Hindustan Lever Ltd. Ghaziabad. One P. P. Jude was employed as Incharge of the Animal Feeding Stuff Department in the factory at Ghaziabad. On April 10, 1967 he was transferred as In-charge to the Engineering Store Section. There are four grades of technical employees in the factory. The grades are called as Grade T 1, Grade T 2. Grade T 3, and Grade T 4. When P. P. Jude was working as In-charge of the Animal Feeding Stuff Department, he was in Grade T. 3. He was claiming to be placed in Grade T 4, a higher grade. So there were tow disputes in regard to his employment: (1) about his transfer from the Animal Feeding Stuff Department to the Engineering Store Section; and (2) about his being given Grade T 4. These disputes were referred by the State Government for adjudication to Labour Court, Meerut, on December 30, 1967.

2. Labour Court framed five issues. One of them is: Whether P. P. Jude was not placed in Grade T-4 because of his trade union activities? It is not necessary to mention the other issues. Labour Court found that there was no evidence to show that he was victimized for his trade union activities. On merits. Labour Court seems to have taken the view that the work performed by the In-charge of the Animal Feeding Stuff Department was of the nature of work which is performed by an employee in Grade T. 4. As P. P. Jude was In-Charge of the said Department, his case was really one of fitment in, and not promotion to grade T. 4. Accordingly Labour Court held that his transfer from that department to the Engineering Store Section is not legal and justified and that he is entitled to be reposted as the In-charge of the former department. It also held that he is entitled to be fitted in Grade T. 4 with effect from December 30, 1967, the date of the reference of dispute to adjudication. Labour Court gave its award on August 20, 1968 in favour of the workmen.

3. Counsel for the appellant has made five submissions: (1) as no demand was made on the appellant by the workmen on behalf of P. P. Jude no industrial dispute can be said to have existed at the time of reference; (2) there was no proper espousal by an appropriate Union of the workmen or a substantial number of workmen of the appellant and the dispute with respect of P. P. Judge was an individual dispute, not an industrial dispute; (3) Labour Court wrongly rejected the appellant s application dated June 4, 1968 for the production of the documents of the Hindustan Lever Mazdoor Sabha. Ghaziabad in order to prove that the said Union had not espoused the cause of P. P. Juge; (4) P. P. Jude was not a workman within the meaning of that expression in the U . P. Industrial Disputes Act; and (5) Labour Court has acted in excess of its jurisdiction in virtually promoting P. P. Jude to Grade T 4 despite its finding that the workmen have failed to prove mala fide or victimization of the workman.

4. After hearing counsel for the parties, we are of opinion that there is force in the last argument. It is not necessary for us to express any opinion on the first four submissions made by counsel for the appellant. We proceed to discuss the last submission only.

5. As already said, Labour Court has held that the appellant s refusal to place P. P. Jude in Grade T 4 was not due to victimization on account of trade union activities of P. P. Jude. This finding has not been challenged before us on behalf of the workmen. So the finding stands. Nevertheless. counsel for the workmen has submitted that the award really fits P. P. Jude in Grade T 4. According to him, Labour Court has not promoted P. P. Jude to Grade T 4. It is not disputed that ordinarily promotion is a management function. It is true that if the case is one of fitment of P. P. Jude in Grade T 4, the award cannot be successfully attacked by the appellant. If, on the other, hand evidence on record shows that P. P. Jude has in effect been promoted to Grade T 4. the award will be defective and w