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PETITIONER: MANAGEMENT OF BROOKE BOND INDIA (P) LTD.

       Vs.

RESPONDENT: WORKMEN

DATE OF JUDGMENT: 01/11/1965

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B. (CJ) HIDAYATULLAH, M. RAMASWAMI, V. SATYANARAYANARAJU, P.

CITATION:  1966 AIR  668            1966 SCR  (2) 465  CITATOR INFO :  R          1982 SC  78  (9)  RF         1984 SC1683  (9,10,11,12)

ACT: Industrial Dispute--Promotions by management allegedly based on  mala fides and victimisation-Tribunal’s jurisdiction  to set  aside  promotions-Tribunal whether can decide  whom  to promote.

HEADNOTE: The appellant-concem promoted two employees from grade A  to grade  B. One of these promotees M superseded  one  employee while  the other D superseded six, A dispute was -raised  by the respondents workmen on account of this supersession, and a  reference  was  made to the industrial  tribunal  by  the Government of Mysore.  The case of the workmen was that  the action of the management was not bona fide and was taken  to victimise the six employees in disregard of seniority.   The case  of the appellant on the other hand was that  seniority alone  could  not be the criterion for  promotion  and  that other factors like merit. personality etc. had -to be  taken into  consideration.   The Tribunal came to  the  conclusion that  the action of the management was mala fide because  it took  eleven  weeks  to reply to the query  of  the  workmen asking  for -reasons for their supersession.   The  Tribunal also found substance in the allegations of victimisation  on the  ground that those superseded were more or  less  active members  of  the  union.   The Tribunal  then  came  to  the conclusion  that  five of the superseded employees  were  as good  as those who had been promoted -and ordered that  they should be promoted from grade A to grade B, with effect from the  date from which the other two had been  promoted.   The appellants  came to this Court by special leave against  the Tribunal’s  award and contended : (1) On the face of it  the award  could  not  be  sustained for  there  were  only  two promotions  by the management and the Tribunal  had  ordered the management to promote five more persons.  The promotions of  M  could  not be assailed at all as  he  was  second  in seniority.  (2) The Tribunal’s finding that there were  mala

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fides and victimisation was based on no evidence. HELD:     (i) Although promotion is a management function it may  be  recognised  that  there may  be  occasions  when  a Tribunal  may have to interfere on grounds of mala fides  or victimisation.   But it is none of the Tribunal’s  functions to consider the merits of various employees itself and  then decide whom to promote or not to promote.  The Tribunal  can only set aside the wrongful promotion and ask the management to make a fresh promotion. [468 F-H] In the present case M was second in seniority and  therefore only  D’s case required ’he consideration of  the  Tribunal. Assuming  that D’s promotion was liable to be set aside  the Tribunal had no justification for promoting five persons  in addition to the two promoted by the management. [469 B-C] (ii) The   management  had  stated  in  its  reply  to   the superseded employees     that  it  had  considered  all  the relevant factors and had also considered     the  cases   of all  senior employees due for promotion before  promoting  M and  D. It was difficult to see how the tribunal could  come to the    conclusion  merely  from the fact that  there  was some delay in 466 giving  the  reply to the query as to the reasons  that  the management  had  not considered the relative merits  of  all senior employees before making the promotions.  There  could be  no  doubt  that the findings of the  Tribunal  that  the relative  merits were not considered or that there was  mala fides  or  that  there was victimisation were  based  on  no evidence  and  must  therefore  be  set  aside.   Once  that conclusion was reached there was no reason for the  Tribunal to  interfere  with the promotions made by  the  management. [470 E-G]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 541 of 1964. Appeal  by special leave from the Award dated the March  14, 1963  of the Industrial Tribunal, Mysore, in I.T. No. 13  of 1961. M.   C.  Setalvad,  J.  B.  Dadachanji,  0.  C.  Mathur  and Ravinder Narain, for the appellant. S.   V.  Gupte, Solicitor-General and Janardan  Sharma,  for the respondents. The Judgment of the Court was delivered by Wanchoo,  J  This  is  an appeal  by  special  leave  in  an industrial  matter.   The  appellant-concern  promoted   two employees  from grade A to grade B on April 1, 1959.   These two employees were Manerikar and Dhume.  As a result of this promotion,  Manerikar  superseded one employee  while  Dhume superseded  six  employees.   A dispute was  raised  by  the respondents-workmen  on account of this supersession.   This was  based on an earlier award with reference to  this  very concern  by the National Tribunal which provided as  follows :-               "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 the  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  reasons,  to  any  civil   or               criminal proceedings." It  appears  that  when the supersession  became  known  the

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management was asked to give the reasons and the  management gave  the  same and said that in making promotions  it  took into consideration the merit, personality and suitability of the  employees.  This did not satisfy the employees who  are superseded  and a dispute was raised on their behalf by  the workmen which was referred to the industrial tribunal by the government of Mysore in these terms "Whether the promotion of Sriyuths P. D. Dhume and Y.   S. Manerkar, superseding Sriyuths G. N. Kamat, B.   V. Kulkarni, H. S. Deshpande, G. R. Balgi and D. N..                             467 Naik is justified ? If not, to what relief are the  affected workmen entitled It  may  be added that the name of Sri V.  R.  Kulkarni  was added later in the list of persons superseded.  The case  of the  workmen was that the action of the management  was  not bona  fide and was taken to victimise the six  employees  on account of their trade union activities and that the reasons given for superseding the senior employees were vague and of a general character.  The case of the appellant on the other hand was that seniority alone could not be the criterion for making   promotion  and  that  other  factors  like   merit, personality, etc. have to be taken into consideration.   The appellant asserted that all these facts had been taken  into consideration when the two promotions in question were made. It  was  also  asserted  that  promotions  were  made  after considering  the  qualities and abilities of  the  employees concerned.  The appellant further denied that there were any mala  fides  in the matter of these promotions or  that  the action  was  taken with a view to victimise those  who  were superseded. The tribunal recognised that normally the question of promo- tion was a management function and had to be left mainly  to the discretion of the management which had to make a  choice from  among the employees for promotion.  But it was of  the view that in a proper case the workmen had a right to demand relief when just claims of senior employees were  overlooked by  the  management.   It  therefore  first  considered  the question  whether this was a case in which the  workmen  had the  right particularly in view of the earlier  decision  in this  very  concern to demand that the two  promotions  made should  be scrutinised by the industrial tribunal.  It  came to the conclusion that the action of the management was mala fide  mainly because it took 11 weeks to reply to the  query of  the workmen asking for reasons for  their  supersession. It  was of the view that the evasive replies and  inordinate delay  showed that the two promotions were mala  fide.   The tribunal also seems to have held that the six employees were superseded on the ground that they were more or less  active members  of  the  union and because, of  their  trade  union activities,  though  there is no specific  finding  to  that effect.   The tribunal further seems to have held  that  the delay  made  by the management in giving  the  reasons  when asked to do so showed that the management had not considered the  reasons  for supersession prior to or at the  time  the promotions were made; that was why it took time to formulate reasons  for  supersession.  Thereafter the,  tribunal  went into  the merits of the case and considered the  records  of the six employees which were. 468 produced  before it and came to the conclusion that five  of them were as good as those who had been promoted.   Finally, it  ordered  that these five employees  should  be  promoted from. grade A to grade B with effect from the date on  which the  other  two persons were promoted.  It  further  ordered

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that these persons be given their due place with respect  to their seniority.  It also ordered that they were entitled to increments  which they would have got if they were  promoted along with the two persons namely, Manerikar and Dhume. The appellant has attacked the correctness of this award  on two  main grounds.  In the first place it is urged  that  on the face of it the award cannot be sustained for there  were only  two promotions by the management and the tribunal  has ordered the management to promote five more persons.  It  is urged that the tribunal could riot do this even if it  found that  the  promotions  were not  justified.   In  any  event promotion of Manerikar could not be assailed as he was No. 2 in  seniority  and  only the promotion  of  Dhume  could  be assailed.   In  any  case  it is urged  that  there  was  no occasion  to promote seven persons from the date from  which these two promotions were made, for on that date there  were only  two  promotions  to be made and  what  in  effect  the tribunal had done is to make seven promotions on that  date. Secondly, it is urged that the tribunal’s finding that there were  mala fides and victimisation is based on no  evidence. Further  it  is urged that even if the tribunal  found  that there  was case for interference with the  promotions  made, the  tribunal should have set aside the promotion  of  Dhume for  Manerikar in any case was entitled to  promotion  being No.  2  in the seniority list and should have  directed  the appellant to promote another person in place of Dhume  after considering all relevant factors. We are of opinion that both the contentions raised on behalf of the appellant are correct.  Generally speaking, promotion is  a  management function; but it may  be  recognised  that there may be occasions when a tribunal may have to interfere with promotions made by the management where it is felt that persons  superseded  have been so superseded on  account  of mala  fides  or victimisation.  Even so 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 cases of superseded 46 9 employees  and decide for itself whom to promote, except  of course the person whose promotion has been set aside by  the tribunal. Bearing these principles in mind we now turn to the  conten- tions  raised  before  us.   In  the  firm  place  only  two promotions  were made on April 1, 1959.  of these  Manerikar was  No. 2 and he in any case would have been promoted  even if  promotions went only by seniority.  So it was only  the, case  of Dhume which required serious consideration  by  the tribunal.  Assuming that the tribunal came to the conclusion that  Dhume’s  promotion  suffered  from  the  infirmity  of victimisation or mala fides that promotion alone should have been set aside and the management directed to promote  some- one-else  in his place after considering the records of  all senior employees worth consideration.  But there was in  our opinion  no justification for the tribunal to  promote  five persons  in addition to the two promoted by  the  management and  to  make those promotions retrospective from  April  1, 1959.   It is obvious that only two promotions were made  on April  1,  1959  and the tribunal  could  not  impose  seven promotions  on the management as from that date.  The  order therefore  passed  by  the  tribunal  promoting  five  other

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employees  is  clearly wrong.  It is true that one  term  of reference was with respect to the relief to be given to  the workmen who were superseded.  That however did not mean that the tribunal should promote five more persons from the  same date  as the two promoted by the management.  The  order  of the  tribunal  therefore  promoting these  five  persons  in addition to the two already promoted by the management  must be set aside on this ground alone. Turning now to the question of mala fides, the only  -ground which  the tribunal has given for coming to that  conclusion is  that the management made a delay of 11 weeks  in  giving its  reply  to  the workmen’s query for  reasons  for  their supersession.   We  are  of opinion that this  is  hardly  a reason for coming to the conclusion that the promotions were mala fide.  Another reason given by the tribunal is that the replies were evasive and vague.  Now the reply was that  the promotions   were   made  after  considering   the   merits, personality and suitability of the employees concerned.   We cannot  agree that these reasons amount to  evasive  replies for after all promotion will depend upon merit,  suitability and  personality of the persons concerned.  Nor do we  think that  initiative and efficiency which were later  emphasised by  the management before the tribunal as among the  grounds for  promotion  can  be said to  be  an  after-thought,  for initiative  and efficiency must be deemed to be included  in the word "merit" which appeared in the replies 470 given  by the management.  There was thus in our opinion  no basis whatsoever for the tribunal to come to the  conclusion that the promotions were mala fide. Turning  now  to  the question  of  victimisation,  we  have already :said that there is no clear finding of the tribunal that  there  was  victimisation.   But  it  appears  to   be suggested  in para. 53 of the -award that the tribunal  felt that  there  was  victimisation.   of  the  six   superseded employees we find that only one was an official of the union while   the  other  live  were  merely  members  just   like Manerikar.  Dhume it appears was not a member of the  union. But  there  was  no evidence to show  that  there  were  any strained  relations  between the management  and  these  six employees  on account of their trade union  activities.   We have already said that five of them were ordinary members of the union like Manerikar and only one Balgi was an  official of the union.  But there is nothing to show that because  of that  there  was  any  bad  blood  between  Balgi  and   the management.  We are therefore of the -opinion that there  is no evidence worth the name on which the tribunal could  have come  to the conclusion that these two promotions were as  a result   of   victimisation  of  those  persons   who   were superseded. The  management  had  stated  in  its  reply  that  it   had considered all the relevant factors and had also  considered the  cases of all senior employees due for promotion  before promoting these two persons.  We cannot see how the tribunal could come to the conclusion merely from the fact that there was  some delay in giving the reply to the query as  to  the reasons that the management had not considered the  relative merits of all senior employees before making the  promotion. We  have no doubt that the finding of the tribunal that  the relative merits were not considered or that there were  mala fides  or  that  there was victimisation  are  based  on  no evidence and must therefore be set aside.  Once that conclu- sion  is reached there was in our opinion no reason for  the tribunal  to  interfere  with the  promotions  made  by  the management.

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We  therefore allow the appeal, set aside the award  of  the tribunal and hold that the promotions of Y. S. Manerikar and P. D. Dhume were justified.  ’No relief is therefore due  to the  other six employees.  In the circumstances we  pass  no order as to costs. Appeal allowed. 471