HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. RESERVED Case :- WRIT - C No. - 2413 of 2004 Petitioner :- Vindhyachal Mani Respondent :- The P.O. Labour Court Gorakhpur And Another Counsel for Petitioner :- A.K. Singh,D.S. Mani Tripathi Counsel for Respondent :- C.S.C.,Dr. Y.K. Srivastava,R.C. Shukla,R.K. Srivastava Hon'ble Suneet Kumar,J.
The workman/petitioner has invoked the writ jurisdiction of this Court assailing the award of the Labour Court, U.P., Gorakhpur dated 03.03.2003.
The State government on 14 September 1990 made the following reference to the Labour Court:-
^^D;k lsok;kstdksa }kjk vius Jfed foU/;kpy ef.k iq= Jh cCcu ef.k dks mlds dk;Z dh izd`fr ds vuq:i fyfid o"kZ&5 dk inuke o osrueku rFkk 50 izfr'kr cSBdh HkRrk u fn;k tkuk vuqfpr [email protected] vFkok voS/kkfud gS\ ;fn gkW] rks lacaf/kr Jfed D;k [email protected] vuqrks"k ¼fjyhQ½ ikus dk vf/kdkjh gS] fdl frfFk ls] rFkk fdl vU; fooj.k lfgr\** The case of the petitioner was that he was employed as a labour with the second respondent U.P. State Sugar Corporation Ltd.Unit Baitalpur, Deoria in 1976-77, thereafter, was declared a seasonal employee on 1 January 1978. In 1982-83, the petitioner was appointed P.H. (Power of Hydrogen) Recorder. Since 1985-86, the petitioner was given the work of P.H. Recorder for three days and as a clerk Grade-V for the remaining three days. Upon the dispute being referred to the labour court regarding the claim of the petitioner/workman for the post and pay-scale of clerical grade-V and 50% retaining allowance, the labour court answered the reference holding that the petitioner was not entitled to either the post or pay-scale of clerical Grade-V and neither was entitled to retaining allowance.
Contention of learned counsel for the petitioner is that as per the recommendation of the Wage Board the petitioner was entitled to the salary and designation of clerk since 1985-86, the labour court has erroneously answered the reference rejecting the claim of the petitioner under Order 13(A).
In rebuttal, Dr. Y.K. Srivastava, learned counsel appearing for the respondents, would submit that grant of promotion is a managerial function, the same is made upon consideration of the availability of posts, suitability, efficiency; seniority is not the sole criteria for promotion. The work record of the petitioner was highly unsatisfactory, several office memo and show cause notice was issued to which the petitioner accepted his guilt and tendered an undertaking that he would not repeat the said misconduct. Learned counsel for the respondent would contend that the award is lawful and legal.
I have considered the rival submissions.
The facts are not in dispute that the petitioner was appointed as labour in 1978, from the crushing season 1982-83 was placed as P.H. Recorder in the semi scale grade and since then was receiving wages admissible against the said grade. The labour court recorded a finding of fact that from the crushing season 1985-86 the petitioner was working three days as P.H. Recorder and for the remaining days as punching clerk. As per the U.P. Sugar Wage Board, 1991, order 13 provides for remuneration of relieving workman. Order 13(a) reads as follows:-
"When a reliever of a lower category relieves workman of higher category, he shall, during the period of such service receive pay and other allowances at the rates not lower than the amount payable to a workman in the higher category."
According to the learned counsel for the petitioner, the petitioner was entitled to fitment under Order 9(e) and 9(f) which reads as follows:-
"(e) If there is any change in the status of a job between the season and off-season, the grade and the wage scale of the better of the jobs performed by a workman shall be considered for fitment in the revised wage scale, subject to the condition that he shall not be entitled to this benefit if he has not performed the duty in a higher grade atleast for one full season or for one full off-season.
(f)If a workman other than a relieving workman is allotted duties of jobs in two different grades alternatively and regularly, he shall be given the designation and wage scale of the higher of the two grades subject to the condition that he shall not refuse to perform the duties prescribed for the lower grade."
Merely because the workman was performing duty for three days as P.H. Recorder and for remaining days as punching clerk, it cannot be said that the petitioner was promoted or given fitment at a higher position. The Constitution Bench of the Supreme Court in Management of Brook Bond India (P) Ltd. Vs. Workmen1, held that generally promotion is a management function. It is not the function of a Tribunal to consider the merits of the various employees itself and then decide whom to promote and whom not to promote. If Industrial Tribunal finds that promotion has been made which are unjustified on the ground of malafides or victimization, the proper course for it to take is to set aside the promotion and ask the management to consider the case of the superseded employees and decide for itself whom to promote and whom not to promote.
Hon'ble Apex Court in the case of the Hindustan Leyer Limited Vs. The Workman2, has reiterated the same view that ordinarily promotion of a workman from a lower grade to a higher grade is a managerial function and in the absence of a finding that refusal of the management to place a workman in the higher grade was on account of his trade union activities or any unfair labour practice. Labour Court could not arrogate to itself the promotional function. In the said judgment it has also been mentioned that fitment will depend on the fact where work was of the nature of the work performed by an employee of higher Grade.
This Court in case National Textile Corporation Ltd. Vs. Presiding Officer, Labour Court, Kanpur3, has taken the same view that promotion of workman is managerial function and giving designation and pay of the post is different aspect of the matter, which in common parlance is known as fitment. In the matter of fitment, nature of duties performed is the essence whereas in matter of promotion various factors have to be taken into consideration namely availability of vacancies in the higher grade, past antecedents, performance and availability of candidate, need/ requirement to fill the post as well as application of policy of reservation and availability of funds. No employee has an indefeasible right to claim promotion. Promotion is to be made strictly as per rules for which merit list has to be prepared. Concept of fitment has been introduced with the object to weed out unfair labour practice so that one may get the wages, commensurate to the nature of work performed.
In the case of fitment, benefit would be available only to the stage of work performed by the employee and not beyond that. In case fitment is of permanent nature, then certainly it would be a case of promotion, which is a managerial function and in respect to which Labour Court has no jurisdiction. Cases of fitment based on promotion will stand on different footing where as fitment based on nature of work performed will stand on different footing. In case employer is taking work from the incumbent of higher grade the wages commensurate to said work has to be paid and same will be paid till the period, work is assigned and taken.
On behalf of the respondent-corporation, it was contended that the Unit has finally closed down and petitioner has opted for Voluntary Retirement Scheme (V.R.S.) which was duly accepted on 28 January 2008 and in terms of the scheme the petitioner has now retired from service and all his claims stand settled.
The Supreme Court in A.K. Bindal and another Versus Union of India and others4, where in the facts of the case the company have already suspended their operation and on the date no unit is functioning, the workman accepted the V.R.S. Scheme and as per the scheme considerable amount was paid to the workman. The Supreme Court observed as follows:-
"The main purpose of paying this amount is to bring about a complete cessation of the jural relationship between the employer and the employee. After the amount is paid and the employee ceases to be under the employment of the company or the undertaking, he leaves with all his rights and there is no question of his again agitating for any kind of his past rights, with his erstwhile employer including making any claim with regard to enhancement of pay scale for an earlier period. If the employee is still permitted to raise a grievance regarding enhancement of pay scale from a retrospective date, even after he has opted for Voluntary Retirement Scheme and has accepted the amount paid to him, the whole purpose of introducing the Scheme would be totally frustrated."
The factum of accepting the V.R.S. is not admitted by the petitioner/workman.
Considering the facts and circumstances of the case, I do not find any illegality or infirmity with the award.
For the reasons stated herein above, the Court declines to exercise its discretionary jurisdiction under Article 226 of the Constitution of India.
The writ petition is accordingly dismissed.
No order as to costs.
Order Date :-22.05.2015 kkm