In matters of promotion, discretion has primarily to be left to the employer, and the employer is not required to promote an employee who has a history of illness and unsatisfactory work performance.

JUDGMENT :

Gajendragadkar, J.

1. In November 1959, the appellant ?Brooke Bond India Ltd. promoted two clerks Sankara Narayanan and Natarajan from Grade ?A? to Grade ?B?. Sankara Narayanan was recruited in the services of the appellant on November 5, 1944, whereas Natarajan was recruited in the middle of September 1944. Mr Mani had been recruited by the appellant on July 31, 1944, and in length of service, he was senior to Sankara Narayanan and Natarajan. Mr Mani however was not promoted. The failure of the appellant to promote Mani from Grade ?A? to Grade ?B? has given rise to the present dispute between the appellant and its workmen.

2. Another dispute was also referred to the Tribunal and that was in respect of the transfer of Mr Nair one of the employees of the appellant. The Tribunal held that the transfer of Nair was justified and so the reference was answered against the workmen on that point.

3. In regard to the complaint made by the respondents workmen on behalf of Mr Mani, the Tribunal has held that the appellant was not justified in refusing to promote Mr Mani and it has accordingly directed the appellant to promote him to Grade ?B? with effect from April 1, 1959. The award further directs that Mr Mani is entitled to all the emoluments of ?B? Grade clerk with effect from that date. It is this award which is challenged by the learned Attorney-General on behalf of the appellant before us.

4. It appears that the Tribunal has based its decision substantially on the view which it took that the failure to promote Mr Mani is in violation of the direction issued by the National Industrial Tribunal in its award. It appears that the National Industrial Tribunal which pronounced its award in 1959 dealt with the question about promotions and a general formula which it evolved in respect of these promotions was stated in these terms:

"I give the general formula which has been accepted by many concerns, namely, all things being equal, seniority shall count for promotion. If the senior person, has been overlooked in the question of promotion he is at liberty to ask the concern for reason why he has been overlooked, in which case, the concern shall give him the reasons provided that it does not expose the concern or the officer giving any reasons to any civil or criminal proceedings."

5. The Tribunal has held that on the record it appeared that Mr Mani was not worse than the two persons who have been promoted and in a sense was their equal, and he has observed that the appellant had failed to give reasons for refusing to promote him. It is mainly on these two grounds that the Award has been passed directing promotion of Mr Mani.

6. In this appeal it has been urged before us that in making the award under appeal, the Tribunal has exceeded its jurisdiction. It is also argued that on the merits, the award is wholly unsustainable. There can be no doubt that promotions to which industrial employees are entitled normally would be treated as the function of the management, and so even the National Industrial Tribunal which dealt with this issue recognised that it must be left to the discretion of the management to select persons for promotion. On the other hand, Labour also wants that the claims of employees who are eligible for promotion should be duly considered and so, the formula evolved by the National Industrial Tribunal requires that at a given time, if more than one person are eligible for promotion, seniority should be taken into account and should prevail unless the eligible persons are not equal in merit. This formula was accepted by the employers and it is on the strength of this formula that the respondents? claim is based in the present proceedings. It is true that though promotions would normally be a part of the managements function, if it appears that in promoting one employee in preference to another, the management has been actuated by malicious considerations or that the failure to promote one eligible person amounts to an u