Heard learned counsel for petitioner. Though served, none is present for the respondent. The petitioner, first party-the employer in Reference (IT) No.351 of 1991 in the Industrial Tribunal, Ahmedabad has approached this Court, under article 226 and 227 of the Constitution of India, challenging the award passed in the reference, whereunder, the Industrial Tribunal partly allowed the reference and directed the petitioner to place respondent-workman in the grade of Dairy Superintendent from 01.01.1988 and pay him the difference of the wages on that basis till the date of his superannuation and all the consequential benefits on that basis, with cost of Rs.250/-.
The facts in brief leading to the filing of this petition, deserves to be set-out as under:-
Present petitioner came into existence on amalgamation of Ajod Dairy and Sardar Dairy in the year 1985. The respondent-workman was employeed in Ajod Dairy. Respondent-workman raised dispute, claiming pay-scale of Rs.1600-3110 admissible to Dairy Superintendent. The Unit on behalf of the workman raised the dispute, which was referred to the Competent Court, wherein, it was registered in the Industrial Tribunal, Ahmedabad as Reference (IT) No.351 of 1991. Against the statement of the claim, written statement was filed, controverting and contesting the claim that no appointment order or promotion order was given to the concerned workman indicating that he has worked as Dairy Superintendent, concerned workman did not possess essential qualification for the post of Dairy Superintendent nor was there any selection wherein the workman could have been adjudged to be meritorious to be a Dairy Superintendent. The evidences were laid to the extent that workman was not appointed in any manner as Dairy Superintendent to the newly formed petitioner Unit, after amalgamation of the aforesaid dairies.
The workman was in fact promoted to the post of Assistant Dock Officer, which is not equivalent to the post of Dairy Superintendent and in the dairy, the promotion were based upon merits and not upon seniority.
The Tribunal partly allowed the reference on ground that evidences, with regard to absence of any roster order or respondent-workman not being eligible and entitled for the post of Dairy Superintendent or non-existence of the post of Dairy Superintendent in the present petitioner, not being specifically taken in the pleadings or written statement, they cannot looked into, despite the fact that they have been given opportunity during the recording of the evidence. The Industrial Tribunal thus, partly allowed the reference and given aforesaid direction.
Being aggrieved and dissatisfied with the aforesaid judgment and award, present petition is preferred on the grounds that are mentioned in the memo of the petition under Article 226 and 227 of the Constitution of India.
Learned counsel for the petitioner invited this Court's attention to the award and findings recorded in the award and indicated that those finding were per se contrary to the evidence on record and therefore, this renders the award perverse, so as to make it untenable in the eye of law.
Learned counsel for the petitioner further contended that written statement filed on behalf of the employer brought for perusal of the Court (page No.12), which contains specific pleadings, qua claim of the respondent-workman as could be seen from Paragraph Nos.5, 6 and 7 of the written statement. Learned counsel for the petitioner submitted that the entire tenure of the written statement go to suggest unequivocally that the claim of the workman for being placed in the grade of Dairy Superintendent was resisted on various grounds and the evidences laid thereafter, in support thereof, would persuade the Court to hold in favour of the employer for rejecting the reference. Unfortunately, the Industrial Tribunal has not appreciated this aspect and therefore, the order in award being contrary to the evidence on record, in substance is vitiated and the same is requires to be quashed and set aside.
The Court has perused the statement of the claim, written statement and the award impugned. The petitioner has clearly averred in the written statement in Paragraph No.5, 6 and 7, which in my view could be said to be sufficient pleadings, so as to raise the point of consideration to the very claim for the petitioner being considered as eligible and entitled to the grade of Dairy Superintendent. The evidences brought on record clearly indicate that the claim of the workman was not justified on following grounds namely:-
The workman himself was promoted to the post of Assistant Dock Officer, which post is not equivalent to that of Dairy Superintendent grade, whereof, as claimed by workman. The said promotion was accepted by the workman and those facts have remained uncontroverted.
There exists no post of Dairy Superintendent in the establishment of the petitioner nor has the workman successfully pointed out that there existed any post called 'Dairy Superintendent' as claimed.
The deposition of the witness that generally, the promotions are based upon the consideration of the merits and they are not merely on the basis of the seniority has remained uncontroverted, therefore, when the respondent-workman neither pleaded nor established that he was entitled for atleast considering for such a meritorious candidate so as to be appointed in the grade of Dairy Superintendent, the same relief could not have been granted by the Industrial Court.
The Court is of the considered view that unless and until it is established by the workman that he is entitled for the promotion, based upon previous practice or recruitment procedures, ought not to have directed straight-way placement of the workman as if workman had established his appointment on all ground for the post of Dairy Superintendent. At the most, when workman had established that there exists grade and scale of the Dairy Superintendent and he was wrongly denied promotion and there he was completely eligible for being promoted and promotion was wrongly denied, in that eventuality, that direction could have been given for consideration for the promotion of the workman and same on his being found eligible there could be order of placement in the grade of Dairy Superintendent. In the instant case, straight-way placing of the respondent-workman in the grade of Dairy Superintendent, without there being any post and without any eligibility and suitability or merits for the grade or extension of the grade in the establishment of the petitioner and when other grounds taken by the petitioner-employer was not demolished, it would not proper on the part of the Tribunal to pass such an order. In my view, the order impugned, therefore, cannot said to be tenable in the eye of the law and requires to be quashed and set aside and accordingly, quashed and set aside.
In the result, the petition is allowed. Rule is made absolute. No orders as to costs.
[S.R.BRAHMBHATT,J.] ..mitesh..
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