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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.