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PETITIONER: C.P. AGRAWAL

       Vs.

RESPONDENT: P.O. LABOUR COURT & ANR.

DATE OF JUDGMENT:       29/10/1996

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T PATIANAIK, J. Leave granted.      These  appeals  are  by  the  employees  of  the  Steel Authority of  India and  the grievance  of the appellants in each of  these appeals  is  that  they  were  illegally  not considered for  promotion to  the higher  grade  when  their juniors were  being promoted. They had approached the Labour Court under  Section 33-A  of the  Industrial  Disputes  Act (hereinafter referred to as "the Act") alleging therein that their  service   conditions  have   been  altered  to  their disadvantages while  the Reference  Case No.  39 of 1973 was pending. The  Labour Court  passed  an  Award  on  17.1.1991 holding that  the application  under  Section  33-A  of  the Industrial Disputes  Act was maintainable and there has been alteration in  the conditions  of service  while a reference was pending  before the  Labour Court. Ultimately the Labour Court gave  direction in  the case  of Shri  C.P.   Agarwal, appellant in  Civil Appeal  No. 11360 of 1995 to promote him to the  post of  construction supervisor Grade I with effect from 6.6.1971.  Additional, Divisional  Engineer with effect from 30.6.87 with all consequential benefits. The said Award of the Labour Court in favour of Shri Agarwal has been given effect to and due promotion has been given to him. The Steel Authority of  India, however,  approached the  High Court of Patna against  the aforesaid  Award of the Labour Court. The Authorities also  approached against the similar Award which are the  subject matter in other connected appeals. The High Court by  judgment dated  8.9.1995 came  to  hold  that  the provisions of  Section 33-A of the Act will not be attracted since  promotion   does  not   fall  within  the  expression ’conditions of  services’ and  any change  in the  rules  of promotion  will   not  tantamount   to  the   alteration  in conditions of  service during  the pendency  of the  dispute before the Labour Court. Writ Application filed by the Steel Authority of  India having been allowed and the Award of the Labour Court  having been set aside the employees approached this Court in these appeals.      The learned  counsel for  the appellants  in  different appeals

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reiterated their  contention that  the High  Court committed gross   error in coming to the conclusion that the promotion cannot be  held to be condition of service and alteration in the Rules  of promotion  does not  tantamount to  change  in conditions of   service  attracting Section    33-A  of  the Industrial Disputes  Act. Dr.  A.M. Singhvi,  learned senior counsel appearing  for the  respondents, on  the other  hand apart from  supporting the  conclusion  of  the  High  Court contended on  merits that the case of each of the appellants were dully  considered whenever the promotion  fell  due and on being  considered they  having been found unsuitable have not  been   promoted  and   their  juniors   were  promoted. Accordingly it  is contended    that  there    has  been  no infringement of  the  appellants’  constitutional  right  of being     considered  enshrined  under  Article  16  of  the Constitution and  consequently on  merits  the  appeals  are liable to  be dismissed.  When these  appeals were heard for considerable length  of time  on 1.5.1996, this Court passed the following order :-      "After  hearing   counsel  on  both      sides  for  considerable  time,  we      find that Rule 11 of Part II of the      Seniority   &    Promotion    Rules      prescribes  for   promotion.   Rule      11(1)  prescribes   procedure   for      promotion and  selection grade post      namely, post  in the  scale of  Rs.      550-1100/- and  Rs. 1450-1750/- and      above on   the  basis of merit-cum-      seniority. Under  sub-rule (ii) for      non-selection   posts,    promotion      subject to  the elimination  of the      unfit. The Tribunal in the award in      CA Nos.  11567-73/95 at page 191 of      the  paper  book  pointer  out  the      names of  ten   employees and their      dates  of  initial  appointment  as      C.S. Grade III and promotion to the      post  of   CS  Grade   II   and   I      respectively from  the   years 1971      to 1986.  It is not in dispute that      the promotion from CS Grade I to E-      I, E-II  and  E-III  are  based  on      merit  cum   seniority  covered  by      clause (1)  of Rule  11 of Part II.      The question  arises whether  their      cases have    been  considered  and      were  not   promoted  according  to      merit  cum   seniority  basis.  The      Tribunal,  unfortunately,   without      making any  distinction whether  it      is a  selection post or a seniority      post  had   given   directions   to      promote  the  appellants  from  the      dates  in  which  their  respective      immediate juniors stood promoted to      E-I post.  The High  Court has  not      dealt  with   this  aspect  of  the      matter in  particular but proceeded      on the  ground  of  limitation  and      non-maintainability     of      the      application filed under section 33-      A and also omission  to implead the      persons    who     were    promoted      superseding the appellants.

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    Dr.  A.M.   Singhvi,  the   learned      senior counsel  appearing  for  the      respondent has  pointed out  to  us      placing a  chart in  which all  the      persons have  been   considered  by      the     Departmental      Promotion      Committee in  the years 1988, 1990,      1992 and  1994 and either they were      found or  not found eligible, found      qualified  and  promoted  from  the      respective  cadres. This contention      was based  upon the  averments made      in the additional counter affidavit      filed  in   this  court   to  which      rejoinder   affidavit   was   filed      denying those averments. In view of      the denial  by the  appellants,  it      becomes  necessary  to  peruse  the      record of  the consideration by the      DPC  in     the   respective  years      mentioned hereinbefore. Dr. Singhvi      is directed  to produce  the record      with an  affidavit  explaining  how      they  have  been  dealt  with.  Dr.      Singhvi is  also directed to supply      a copy  of   the affidavit  to  the      appellants. He  seeks  for  and  is      granted six  weeks time  to do  the      needful.   Thereafter, the  counsel      for appellants  are at  liberty  to      file the  affidavit on the basis of      the allegations  in the  affidavit.      List the  matters immediately after      vacation."      Pursuant to  the aforesaid direction  necessary records were produced  alongwith affidavits indicating how  the case of each  of the  appellants has  been duly  considered.  The counsel appearing   for  the appellants  were  also  granted inspection of  those records. Reply affidavit has been filed on behalf of the appellants, not disputing the fact of their consideration, as  alleged by   the respondents but alleging that the  records produced were not the original records and as such,  no reliance can be placed on these records. We are unable to accept this submission made by the learned counsel appearing for the appellants. We have ourselves perused  the records produced  and we   have no hesitation to come to the conclusion that  the records  indicate consideration  of the appellants case  for promotion  whenever it fell due and the appropriate authorities  have  found them unsuitable on some occasion whereas  on  some  other  occasion  the  appellants themselves have  not applied for promotion and as such there has been  no limitation of Article 16 of the Constitution in the matter  of consideration of appellants for promotion. We find no  force in  the submission   made    by  the  learned counsel for  the appellants  that the  records produced  are manufactured ones  and are  not original. It is not possible for a  Public Undertaking  to manufacture  records and  that also in  relation to  the years 1977 to 1983. It is apparent from the  order of  this Court dated 1.5.1996 the High Court did not  consider the  question   as to whether the cases of the appellants  were considered  on  the  principle  in  the executive cadre  from the  Grade E-1  to E-II  and E-III and disposed  of   the  matter  merely  on  the  ground  of  non maintainability of  application filed  under Section 33-A of the Industrial  Disputes Act.  The respondents  were  called

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upon   by this Court, and to appreciate, the stand  taken by the respondents  to  the  effect  that  on  each  and  every occasion  the   case  of  the  appellants  has  been    duly considered but  on account    of    their  unsuitability  no promotion has  been given  to them.  The records having been produced before  us and  on perusal  of the said records  we are satisfied  that the  case of promotion of the appellants has been  duly considered  whenever  it  fell  due  and  the Appropriate  Authority   has  found   them  unsuitable   for promotion. Though  there is  some   force with regard to the promotion of  one R.B. Prasad who had been given a jump from L-6 in  non-executive cadre  to e-I  in the  executive cadre and the  explanation offered  by Dr. Singhvi, learned senior counsel appearing   for  Steel Authority  of India  on  that score is  not very  satisfactory yet  we are not prepared to annul the  said promotion made  in the year 1975 after lapse of 20 years.      Mr. Krishnamani,  learned senior  counsel appearing for the appellant in Civil Appeal No.  11360 of the 1995 as well as  the   learned  counsel   appearing  for  the  respective appellants in  other appeals  in course  of their  arguments urged  that   the  stand   taken  by  the  respondents-Steel Authority of  India before  the Labour  Court was  something different from  the stand  they have  taken in this Court to examine the  question as   to  whether infact the appellants were considered  for promotion and were found unsuitable, as urged by  Dr. Singhvi,  learned senior counsel appearing for the respondents. We are unable to appreciate this contention in view  of our  earlier order  dated 1.5.1996.  The earlier order  clearly indicates the respective stand of the parties and called  upon the  respondents to  produce  the  relevant record to  find  out  whether  infact  the  appellants  were considered for  promotion at  different point  of  time,  as urged by  Dr. Singhvi,  learned senior counsel appearing for the respondents  or not.  Apart from filing affidavit of one Anupam Anand,  Manager (Personnel) of the Steel Authority of India and  explaining   through different charts, annexed as Annexures 1  to 3  to the  said  affidavit,  indicating  the details of  each occasion  how the  case   of  each  of  the appellants has  been duly  considered,  we  have  also  gone through the  relevant records  produced before  us and going through the  same we  are satisfied that the case of each of the appellants  has been  duly considered whenever they have applied for  promotion but they were found unsuitable and as such they have not been promoted. On some occasion they have not applied  for promotion  and, therefore,  the question of consideration of  their case  at that  point of time did not arise.  In  the aforesaid premises we find no infraction  of Article 16 of the constitution in the matter of promotion to different grades  both in  the non  executive and  executive cadre, as  alleged by the learned counsel appearing for  the appellants  and   we  are  also  of  the  opinion  that  the constitutional rights of the appellants for being considered has not  been infringed in any manner. We, therefore, do not find any  substance in  these appeals  for our  interference under Article  136 of  the Constitution.     In view  of our aforesaid conclusion while we are dismissing all the appeals but so far as appellant C.P. Agarwal is concerned, he having already been  promoted pursuance  to the order of the Labour Court, the  said promotion may not be interfered with and he may not  be reverted   to  any lower  post from  the post to which he has already been promoted. But his order of ours in relation to  Shri Agarwal  may not be treated as a precedent for  other  employees  similarly  placed.  The  appeals  are dismissed  with   the  aforesaid   observation  but  in  the

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circumstances there will be no order as to costs.