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High Court Of Madhya Pradesh
P.V. Dixit, C.J. and A.P. Sen, J.
Mahendralal
Versus
Hindustan Steel Ltd., Bhilai Steel Project
Decided On : Mar 26,1968
Normally, in dealing with disputes as to promotions, however anxious industrial adjudication may be, regard must always be had to the fact that in matters of promotion discretion has primarily be left to the employer. In the absence of mala fides, normally it must be left to the discretion of the management to decide which of the employees should be selected for promotion at a given time.
Even after a finding of mala fides or victimisation, it is not the function of a tribunal to consider the merits of various employees itself and then decide whom to promote or whom not to promote. If any industrial tribunal finds that promotions have been made which are unjustified on the ground of mala fides or of victimisation, the proper course for it to take is to set aside the promotions and ask the management to consider the case of superseded employee and decide for itself whom to promote, except of course the person whose promotion has been set aside by the tribunal. AIR 1966 SC 668 & (1963) 1 LLJ 256 relied on. [Para 7
(3) Industrial Relations Act, 1960 (M.P.) - S. 66 - powers in revision are similar to section 115, C.P.C. - scope of the power.
The powers of the Industrial Court are identically the same as the powers of the High Court under section 115 of the Civil Procedure Code because section 66 of the M.P. Industrial Relations Act, 1960, is in pari materia with that section. Section 66 applies to jurisdiction alone, the irregular or non exercise of it, or illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved.
The words acted in the exercise of its jurisdiction illegally or with material irregularity' refer to 'the manner in which the decision is reached' 1966 JLJ 143, AIR 1953 SC 23 & ILR (1917) 40 Mad. 793 (PC) relied on.
If an erroneous decision results in the Labour Court exercising a jurisdiction not vested in it by law, a case for revision arises. AIR 1949 PC 239 relied on. [Para 9
(3) Industrial Relations Act, 1960 (M.P.) - Ss. 31 (3) & 66 - question of promotion of an employee - rights of other employees involved - cannot be decided in the absence of such other employees - decision given on their back - is irregular exercise of jurisdiction.
There is an error of jurisdiction committed by the Labour Court in deciding the application filed, by one of the employees under section 31 (3) of the Act, without impleading the other employees who were necessary parties to the proceedings. No declaration on the question of the promotion of the applicant employee in the absence of the other employees whose promotion was involved. [Para 10
( 1. ) BY this application under Articles 226 and 227 of the Constitution of India, the petitioner Mahendralal applies for issuing a writ of certiorari for quashing the order of the industrial court, Madhya Pradesh, Indore, dated 5 September 1966, and for a writ of mandamus directing the General Manager, Hindustan Steel, Ltd. , Bhilai, to enforce the order of the labour court, Raipur, dated 28 April 1956.
( 2. ) THE material facts are these. The petitioner was employed as an upper division clerk in the Bhilai Steel Project with effect from 24 October 1956. On 27 September 1958, the project promoted 46 upper division clerks to the post of section assistants, in the higher pay-scale of Rs. 160-10-330, with effect from 20 September 1958 until further orders, and the petitioner Mahendralal was one of them. In the promotion order, it was directed that the seniority of the petitioner, who figured at serial No. 34 in the cadre of upper division clerks would be reckoned from the date of his regular promotion, i. e. , with effect from 27 September 1958, although the petitioner was already working as section assistant in an officiating capacity, on ad hoc basis, from 13 September 1958. That was the order in which his name was placed in the list of promoted section assistants. Since, however, the petitioner was officiating as section assistant from 13 September 1958, the project issued an order dated 7 October 1958 apparently for regularizing his officiating appointment for financial purposes. The parties are not agreed as regards the true implication of this order, and it would be convenient to set it out in extenso for a proper appreciation of the controversy between them regarding this: No. Estt. III-7 (b)-AD (R) iv (D) (ii) (16-a) 56. Hindustan Steel (Private), Ltd. , Bhilai Steel Peoject. Dated Bhilai, 7 October 1958. Office order No 1364. Mahendralal, upper division clerk attached to Chief Engineer (3), is promoted temporarily to the post of head assistant on Rs. 160 per month in the scale of Rs. 160- 10-330 with effect from 13 September 1958 (forenoon) far a period of two months or till the date a regular officer is posted, whichever is earlier. (Sd.) B. N. TREHAN, Assistant Personnel Officer. It would appear from the terms of this order that the petitioner was promoted temporarily with effect from 13 September 1958 "for a period of two months" or "till the date a regular officer was posted," whichever was earlier. This was purely a temporary arrangement. The promotion order, dated 27 September 1958, was, however, in the following terms : no. ESTT. III-l (2)/58, Hindustan Steel (Private), Ltd. , Bhilai Steel Project. Bhilai, dated 27 September 1958 Office order No. 1346
( 3. ) THE following 46 upper division clerks are promoted to the post of section assistants in the scale of Rs. 160-10-330 with effect from 20 September 1953 (forenoon) until further orders. Sl. Name At present Office Appointed Remark No. where to which on Rs. working posted (1) (2) (3) (4) (5) (6) 1. . . . . . . . . . . . . . . * * * * * 34 Mahendralal C. E. (8) C. E. (8) 160 46 * * * * (4) Seniority of serial Nos. 34 and 42 already promoted as section assistants in officiating capacity and those who were promoted on adhoc basis will be reckoned from the date of their regular promotion, i. e. , with effect from 20 September 1958.
( 4. ) THE petitioner contends, on the strength of a circular No. MRU/631056, issued by the Personnel Manager, Bhilai Steel Project, dated 29 May 1963, that under the rules, his seniority should count from 13 September 1958, from which date he started drawing his pay in the cadre of section assistants, Being aggrieved with the direction in the promotion order, the petitioner sought a revision of the order with a view to refixation of his inter se seniority, on the strength of the said circular but the project authorities having turned it down, he eventually applied to the labour court, Raipur, under Section 31 (3) of the Madhya Pr
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