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Judgment
U.P. Singh, J.—In this writ application the Management of M/s Indian Oil Corporation, Barauni Oil Refinery has challenged the validity of the award dated 31.3.1981 passed by the Labour Court, wherby the Management has been directed to upgrade the post held by respondent no. 1 at the Factory Site Dispensary to that of Head Compounder (Grade B) and placed him to that Grade with effect from 1.5.1978. The 1st respondent Deep Narain Prasad was appointed as a Compounder in the Medical department in February, 1962. He was promoted as Compounder-cum-Stores Incharge in January, 1968 in the pay scale of Rs. 170-292 plus other benefits. Earlier to him, one Sri B.P. Pramanik had been initially appointed in September, 1960 and promoted to the post of Com-pounder-cum-Dispensary Incharge with effect from January, 1968. The two posts namely Compounder-cum-Dispensary Incharge and Compounder-cum Stores Incharge are of the same cadre having the same scale of pay and the post is interchangeable. Sri B.P. Pramanik was posted at Hathida Dispensary of the Management to discharge his duties as Compounder-cum-Dispensary Incharge, whereas the 1st respondent was posted as Compounder-cum-Stores Incharge in the Factory Site Dispensary of the Management''s. Later, on the recommendation of the Committee, one post of Head Compounder and six posts of Compounder Incharge were created. They were filled up on the recomendation of the duly constituted Departmental Promotion Committee.
When the post of the Head Compounder was created, at that time, there were two Compounders Incharge in the medical department of the Corporation, namely, Sri B.P. Pramanik and Sri Deep Narain Prasad (respondent no. 1). There cases were considered by the Departmental Promotion Committee and Sri B.P. Pramanik, who was senior amongst the two, having better service record, was recommended by the Committee for promotion as Head Compounder with immediate effect.
Being aggrieved, the first respondent raised his grievance before the General Secretary of the Union, and to the General Manager of Corporation. The grievance was that the respondent Sri Prasad be conferred the Post of Head Compounder of the Factory Site Dispensary with effect from the date when Sri Pramanik was promoted. In November, 1974 the Management communicated its inability to accept the said request and the General Secretary of the Union was accordingly informed. The Union then raised the dispute before the Labour Superintendent, Begusarai. Conciliation proceeding was started but failed. By notification dated 14th October, 1977 the Government of Bihar then referred a dispute before the Labour Court, Bhagalpur u/s 10 (1) (c) of the Act and the only matter under reference was "Whether Sri Deep Narain Prasad is entitled ft r promotion to the post of. Head Compounder (Grade B). If so, from which date ?". In the meantime, by an agreement arrived at between the Management and the Workmen, a scheme for removal of stagnation to the Workmen stagnating in the same scale of pay for a period of ten years or more was evolved. In June, 1979 Sri Prasad was placed in the next higher scale, of pay and was designated as Compounder-cum-Stores Incharge (Special Grade) with effect from 1-5-1978. By order of the Presiding Officer, Labour Court dated 25-7-1979 Sri Prasad was permitted to accept the next higher scale of pay of Rs. 355-683. Before the Labour Court the only demand of the Union was to upgrade/promote the said Deep Narain Prasad, Compounds urn-Stores Incharge as Head Compounder of the Factory Site Dispensary. By its award dated 31-3-1981, the Labour Court held in favour of respondent no. 1 that he is entitled for promotion to the post of Head Compounder (Grade B) with effect from 1-5-1978. It is this finding which is being challenged by the Corporation.
Mr. K.D. Chatterji appearing for the Corporation has contended that the Tribunal acted beyond its jurisdiction in creating any such post. The question of promotion/up-gradation of a workman to a post which did not exist was not within the competency of the Labour Court.
The contention is well founded. The facts are cot denied that there is only one post of Head Compounder to which Sri Pramanik had been promoted on the recommendation of the departmental promotion committee. The creation of a post or promotion or upgradation of a post is within the competence of the Management. In the absence of the finding of malafide or victimization or any unfair labour practice, the Labour Court could not arrogate to itself the promotional function of the management. It would amount to unjustified interference with the managerial function of the Corporation. Suitability of a post is a matter for the management to decide. The determination of the size of the working force of the medical department of the Corporation was the exclusive right of the management, Thus, the findings of the Labour Court which have been given in great detail, holding, that each of the dispensaries should have been in the charge of the person having equal status would amount to undue interference with the management. The question under reference was whether respondent, no. 1 was entitled to promotion or not to the post of Head Compounder (Grade B). The finding recorded by the Labour Court upgrading the post of respondent no. I virtually amounted to the creation of a new post in the facts of the present case.
It is not disputed that in the present case the workman has been designated and placed in the same scale equivalent to the scale of the Head Compounder. What, however, the Labour Court has done is that in the garb of promotion it has created a post Ordinarily, it is a managerial function. Reference may be made to the case of The Hindustan Lever Ltd. Vs. The Workmen, wherein, it was held 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 the 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, the Labour Court could not arrogate to itself the promotional sic.
In the case of sic Industris Ltd. v. Workman of the sic Industries Ltd. (1968 L. L C.82) a division Bench of this Court placed reliance upon the judgment of the Supreme Court in the case of Management of Brooke Bond India (P) Ltd. Vs. Workmen, and held:--
It is well settled that whether a particular employee should be promoted from one grade to higher grade depends not only on the length of service but also on his efficiency and other qualifications for the post, to which he seeks to be promoted and in the matter of promotion, the intimate knowledge of the higher authority, empowered to promote, has a greater value In absence of a clear proof, of malafides or discrimination on extraneous grounds on the part of the Management, it would be wholly inappropriate for any outside authority to attempt to weigh the relevant merits of the individuals who might be holding the higher post and those who are aspiring for the same. Moreover, the determination of the size of the working force is the exclusive right of the Management, and it is only when it is shown that the Management is working with less men than necessary, that the workmen who are overworked can claim that the working force be increased if, therefore, the Management is within it rights to fill up a particular vacancy, it is difficult to appreciate how the non exercising of that right can be described as an ''unfair labour practice'' on its part.
In the case of Management of Brooke Bond India (P) Ltd. Vs. Workmen, , the Supreme Court held:--
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 persons superseded have been so superseded on account of malafides or victimisation. Even so after a finding of malafides 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 it finds that promotions have been made which are unjustified on the ground of malafides 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 employees'' and decide for itself whom to promote, except of course the person whose promotion has been set aside by the tribunal.
The cases referred by the respondent''s counsel reported in Jarnail Singh Vs. State of Punjab, have not taken any different view on the question raised and decided in those cases.
It has not been shown, in the facts of the present case, that there was any malafide on the part of the management or any unfair labour practice was adopted by them in deciding the case of promotion of the petitioner and the 1st respondent. The admitted position is that the 1st respondent has been placed in the scale equivalent to the scale of the Head Compounder and, therefore, there was no justification for the tribunal to have created another post, there being only one post for the Head Compounder. In the result, the award contained in Annexure-''1'' is set aside and the application is allowed but in the circumstances of the case, however, there will be no order as to cost.