Judgment:
B.N. Srikrishna, J.
1. These two cross writ petitions impugn the same order dated 5.8.1994 made in Complaint (ULP) No. 685 of 1987 by the Industrial Court, Bombay, under the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as 'the Act'). For the sake of convenience the parties would be referred to as arrayed in Writ Petition No. 4130 of 1994.
2. The petitioner is a Co-operative Society established by the Government of Maharashtra for the purpose of marketing the cotton grown by Cotton Growers in Maharashtra. The petitioner is appointed as the Chief Agent to implement the the cotton monopoly procurement scheme under Section 42 of the Maharashtra State Cotton (Procurement, Processing and Marketing) Act, 1971. Initially, a Society by name Maharashtra State Co-operative Marketing Federation Limited was charged with the implementation of the Cotton Monopoly Scheme. That Society was taken over by the present writ petitioner an all the employees working in the service or the erstwhile Society were also taken over by the petitioner on 'as is, where is' basis.
3. The First Respondent jointed the service of the Maharashtra State Co-operative Marketing Federation Limited and was taken over in the service of the Petitioner as Office Superintendent from 1-7-1985. Sometime in the early part of 1981, the Petitioner was required to fill up vacancy of the post of Deputy Manager for which the promotional channel was from amongst the Office Superintendents and the Senior Grade Clerks. The First Respondent, being one of the employees within the zone of consideration, was called upon to attend an interview before the Selection Committee. The Selection Committee interviewed the First Respondent and assigned him grade 'C'. In all, 17 candidates were interviewed for the said post by the Selection Committee. Upon consideration of their performance, the Petitioner selected three of the Office Superintendents and four of the Senior Grade Clerks for being promoted as Deputy Managers. Candidates who had obtained grades of 'B plus' and above where selected while candidates who obtained grades of 'B' and 'C' were not selected for the post. The First Respondent who obtained grade 'C' was not selected. By an order issued on 18.7.1987, four employees, V. L. Jadhav, P. R. Dongre, A. K. Bhende and M. D. Patil were promoted as Deputy Managers as they were found suitable and their performance was good.
4. The First Respondent filed a complaint before the the industrial Court, Bombay, vide Complaint (ULP) No. 685 of 1987, invoking item 9 of Schedule IV of the Act challenging the promotion of other employees and his non-selection for the promotional post of Deputy Manager. The only case pleaded, as seen from the complaint, is that the First Respondent was entitled to the benefit of a direction in the Award of Shri Patankar in Reference (IT) No. 213 of 1973 under which, according to the First Respondent, a person who had worked in higher post for not less than 240 days had a preferential claim to the promotional post. It was the case of the First Respondent that during the period 20th November, 1984 to 5th March, 1986 he had worked in the vacant post of Deputy Manager (Export) in acting capacity and, therefore, by virtue of the direction contained in the Patankar Award he was preferentially entitled to be promoted to the vacant post of Deputy Manager. Inasmuch as the Petitioner had failed to do this, there was an unfair labour practice within the meaning of Item 9 of Schedule IV of the Act. This, shortly put, was the First Respondent's case before the industrial Court. The industrial Court tried the complaint and, by the impugned order dated 5.8.1994, held that the Petitioner had engaged in an unfair labour practice within the meaning of Item 9 of Schedule IV of the Act. It directed the Petitioner to promote the First Respondent as Deputy Manager from the date of its order and denied retrospective benefit of such promotion from 1987. Being aggrieved by the declaration and the Direction to promote the First Respondent as Deputy Manager, the Petitioner Federation is before this Court by Writ Petition No. 4130 of 1994; being aggrieved by the refusal to grant the promotion retrospectively, the First Respondent is before this Court by his Writ Petition No. 4257 of 1994.
5. The linchpin of the First Respondent's case is that the direction in Patankar Award is a condition of service applicable to him and that he was entitled to the benefit flowing therefrom. Since this has been vehemently contested by the Petitioner, it is necessary to consider this issue somewhat elaborately.
6. Some time in or prior to the year 1973, the workmen of the petitioner had raised an industrial dispute with regard to several demands. The Industrial dispute was referred by the appropriate Government for adjudication to the industrial Tribunal, Shri Patankar, vide Reference (IT) No. 213 of 1973. Demand No. 12 referred for adjudication was formulated thus :
'Those employees, who had worked in aggregate for 150 days during 12 months prior to 1.1.1973 in any higher post, should be confirmed in that post and he should be given the grade of that post from 1.1.1973'.
In the Award made by the industrial Tribunal, Shri Patankar, Demand No. 12 was dealt with in paragraph 29. The crucial paragraph 29 of the Award reads :
'The only demand that remains for consideration is about confirmation of workmen on acting post. It is the case of Union that those employees who have worked in aggregate for 180 days during 12 months prior to 1st January, 1973 in any higher post should be confirmed in that post and he should be given the grade of that post from 1st January, 1973. This demand has been strongly opposed on the ground that promotion to the higher post does not merely depend upon working on that post for a particular period. It was argued for the Federation that whenever an employee in the senior post proceeds on leave then the junior is given a chance to work in that post for the leave period and it is tried to be found out as to whether he would be fit for that post and his promotion is then considered. If the demand of the Union is conceded, then if any person gets a chance of working in higher post for 180 days then he has to be confirmed irrespective of the fact as to whether there is any permanent vacancy in the higher post. On the other hand it would amount to directing the Federation to create new permanent posts for such employees who get chance to work for 180 days. Any employee who is ripe for promotion on account of his seniority is given such chances in the leave vacancies and his merits are tested and then on being found fit for promotion, he is promoted whenever vacancy in that grade occurs. It is the right of the management to grant promotion. The demand of the Union as made at No. 11 in the order of reference, therefore, cannot be granted as prayed for. It can, however, be directed that any employee who has worked for 240 days in aggregate in any higher post should be promoted to such higher post immediately when any vacancy occurs on finding that he is otherwise also fit for promotion and it is accordingly directed'.
7. It will at once be seen that the demand referred for adjudication was not a general demand that all employees who complete aggregate of 180 days of working in a higher post be confirmed in that post. On the other hand, the demand put forward was specially in respect of a specific category of employees viz., 'those workmen who had worked for 180 days during 1st January, 1973 in any higher post' and the relief claimed was that such workmen should be given a grade of that higher post from 1st January, 1973. It was this demand referred for adjudication which was considered by the Industrial Tribunal of Shri Patankar. The discussion in paragraph 29 of the Award would show that the Tribunal was not inclined to accept the demand in its entirety. It considered two modifications necessary before the demand could be granted. The first modification introduced by the Tribunal was that the eligibility criterion was increased from working for 180 to 240 days in aggregate in any higher post. The second, that the person considered for promotion should also be otherwise fit. It is against this background that the operative direction in paragraph 29, 'any employee who has worked for 240 days in aggregate in any higher post should be promoted to such higher post immediately when any vacancy occurs on finding that he is otherwise also fit for promotion and it is accordingly directed' should be understood.
8. The first Respondent's contention, which appears to have been accepted by the Industrial Court, is that this direction in the Award is of a generic nature and applies to all employees past, present and future. The petitioner, on the contrary, vehemently contends that this direction, made only with regard to the demand in the reference pending for adjudication, must be held to apply only to the category of workmen on whose behalf the demand has been pressed.
9. In my opinion, there is merit in the contention of Mr. Purav that the direction, though ostensibly of unlimited nature, must be held as operative only in respect of the workmen on whose behalf the demand had been raised. Section 10(4) of the Industrial Disputes Act, 1947 provides the limits of the adjudicatory jurisdiction of authorities and provides :
Where in an order referring an industrial dispute to a Labour Court, Tribunal or National Tribunal under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, the Labour Court or the Tribunal or the National Tribunal, as the case may be, shall confine its adjudication to those points and matters incidental thereto'.
Though this section has been interpreted by several judgments of the High Court and Supreme Court, it is unnecessary to burden the judgment by reference to all except the judgment of the Supreme Court in The Delhi Cloth and General Mills Co. Ltd. v. The Workmen & Ors. : (1967)ILLJ423SC where the visceral contents of the section have been exposed. If the contention of Dr. Kulkarni were to be accepted, it would mean that the Industrial Tribunal of Shri Patankar travelled beyond the terms of the dispute referred for adjudication. While the dispute referred for adjudication was only with regard to a limited category of workmen and relief was claimed only in respect of such workmen, Dr. R. S. Kulkarni would have us believe that the Tribunal was unmindful of the limits of its adjudicatory jurisdiction and made a direction of a generic nature applicable to all workmen - past, present and future. It is not possible to read the direction in the Award in such manner as to impute illegality or lack of jurisdiction to it. In my view, the operative direction in paragraph 29 of the Patankar Award must be read down as being applicable to the category of workmen in respect only of whom the demand was made and in respect only of whom the relief was claimed. It is, therefore, not possible to accept the contention of Dr. Kulkarni that the direction in paragraph 29 of Reference (IT) No. 213 of 1973 is of such amplitude as canvassed by him. Once it is held that the direction in the Patankar Award ought to read down as limited by the terms of reference, it would be clear that the direction would operate only in respect of workmen who had worked for 240 days in aggregate in a higher post in the 12 months prior to 1st January, 1973. It is not in dispute that the First Respondent did not fall within the category of such workmen and, therefore, in my view, the First Respondent could not have claimed the benefit of the direction in Shri Patankar Award. On this ground alone, the First Respondent was liable to fail in the complaint and must fail in the present writ petitions. However, since an additional point was seriously canvassed before the Industrial Court and, also here, I shall decide the said point also.
10. It is contended by Mr. Purav that, even assuming that the direction in Shri Patankar Award was applicable to the case of the First Respondent, the First Respondent having been found unsuitable by the Department Promotional Committee set up to select suitable candidates for the post of Deputy Manager, the Petitioner could not be said to have indulged in an unfair labour practice within the meaning of Item 9 of Schedule IV of the Act, merely because the First Respondent was not selected for promotion. Dr. Kulkarni, however, rejoins that the entire process of selection was unfair, the moment it is assumed that the direction in Shri Patankar Award applies then, irrespective of the merit of any other candidates - junior, senior or otherwise - the candidate who had worked for 240 days in any higher post in an acting capacity should automatically be confirmed in the said post unless he is specifically found unfit to hold the said post. Here again, I am unable to accept the wide contention advanced by Dr. Kulkarni. Even assuming that the direction in the Award is one of generic nature, the direction is two-fold and introduces two criteria; (a) that the workman should have completed 240 days in aggregate in any higher post and, (b) that he is otherwise also 'fit for promotion' to the said post. There is no negative test of absence of unfitness postulated in Shri Patankar's Award. It is well settled that fitness for promotion to superior posts in general, and considering the nature of the post involved in the present case, in particular, requires assessment of several factors and mere absence of adverse record against an employee does not per se render him 'fit for promotion'. In the instant case, even if we assume that the first criterion laid down in the Patankar Award applies to the case of the First Respondent, he does not fulfil the second criterion of being found otherwise fit for promotion. The Selection Committee gave him a merit rating of 'C', while the selected candidates were at 'A' and 'B' plus. It is not possible to accept the argument of Dr. Kulkarni that the first criterion of working for 240 days in an acting capacity would override the second criterion as to fitness for promotion. In my opinion, it at all, it would be the other way. In fact, if an employee, even after working for 240 days in higher post, is not found fit to hold that post, it would be wholly unjust to compel the employer to promote such an employee to the higher post.
11. Dr. Kulkarni then contended that the whole exercise by the Selection Committee was a mala fide exercise. He relied on a recommendation made by the Staff Committee dated 21-12-1992 at page 38 to the First Respondent's Writ Petition No. 4257 of 1994. In my view, reliance thereupon is misconceived. The said Committee was not a Committee appointed to appraise the performance of the First Respondent with a view to select him for promotion. Several cases including the First Respondent's case were pending before the Courts and a Staff Committee had been appointed in order to see which of the cases could be compromised. The recommendation relied upon by First Respondent was a recommendation, merely intended for consideration of the Management of the Petitioner compromising the pending litigation. Mr. Purav has drawn my attention to the report dated 2-3-1993 made by the Legal Officer, the Joint Managing Director and the Managing Director to the Chairman recommending that the case of the First Respondent be compromised in the manner suggested by the Staff Committee and the endorsement of the Chairman dated 22-5-1993 disagreeing with the said recommendation and taking the stand the he saw no special reason for compromising the case. The Staff Committee's recommendation cannot be said to have demonstrated the fulfilment of the second criterion in Shri Patankar Award. It is, therefore, not possible to accept the contention of Dr. Kulkarni that the First Respondent being awarded 'C' grade during the interview was only an eye-wash.
12. Dr. Kulkarni relies on the judgment of the Supreme Court in Workmen of M/s. Williamson Magor and Co. Ltd. v. M/s. Williamson Magor & Co. Ltd. & Anr. : (1982)ILLJ33SC . In my view, this judgment is of no assistance to the First Respondent. Though Dr. Kulkarni highlighted the expanded concept of victimisation expounded in this judgment and the fact that the Supreme Court had directed the framing of grades, up gradation/promotion as also scales of pay for different grades, I am of the view that it was done in the peculiar facts of the case before the Supreme Court. Those direction are not of much relevance in deciding the present writ petitions which have to be decided in the matrix of their own peculiar facts and circumstances.
13. In the result, though I find that the petition of the First Respondent (Writ Petition No. 4257 of 1994) is liable to fail and the petition of the Petitioner (Writ Petition No. 4130 of 1994) is entitled to succeed, however, taking an overall view of the facts and circumstances of the case, I am of the considered opinion that the promotion granted to the First Respondent need not be disturbed. Since the interpretation to be given to the concerned direction in the Patankar Award has been decided in this judgment, there is no likelihood of such similar cases arising in future. The ends of justice would be met if the First Respondent is promoted effective, prospectively, from 1st December, 1995.
14. In the result, Writ Petition No. 4130 of 1994 is allowed and the rule issued therein made absolute. Writ Petition No. 4257 of 1994 is dismissed and the rule issued therein is discharged. The petitioner shall promote the First Respondent to the post of Deputy Manager, if there is a present vacancy, with effect from 1st December, 1995 and if there is no present vacancy, then immediately upon there occurring a vacancy, without his having again to go through a selection process.
15. No order as to costs. Certified copy expedited.