1. The petitioner is aggrieved by award dated 1.10.2011 passed in reference (IT) No.31 of 1999 whereby the Industrial Tribunal Rajkot has rejected the reference.
2. Ms. S.S. Pathan, learned advocate for Mr.Kazi, learned advocate has appeared for the applicant.
3. I have heard learned advocate for the petitioner and perused the record.
4. So far as the factual background is concerned, it emerges from the record that three workmen of the respondent Municipality raised demand that they should be granted promotion to the post of driver and the respondent municipality should also make payment of difference of salary between the salary of cleaner and the salary of driver. The said demand was not accepted by the respondent municipality. Therefore, dispute was raised. Appropriate Government referred the said dispute for adjudication. The order of reference culminated into reference No.31 of 1999.
4.1 Before the labour Court the said workmen admitted that they were appointed as cleaner and they have been paid wages payable to the cleaner as per the pay scale and grade applicable to the post of cleaner however they claimed that there is gap between the salary of cleaner and the salary of driver. It was claimed that they are entitled for promotion to the post of driver and there is sanctioned set up for the post of driver and many times in exigencies they asked to work as / in place of driver (e.g. in case of driver's absence) and that therefore they should be granted promotion to the post of driver, particularly because they are duly qualified for the promotion to the said post. The concerned workman also claimed of difference of wages.
5. The reference was resisted by the respondent municipality. It was claimed that one of the concerned workman i.e. Mr.Bhojabhai Munabhai had voluntarily tendered resignation and he was not in employment on account of his voluntary resignation with effect from 3.1.2001. Therefore reference was restricted to the two workman out of the three claimant - workman.
5.1 Now, out of the said two persons, only one has preferred this petition.
5.2 The municipality also contended that the subject of promotion is within discretion and realm of the management and such decisions depends on various factor e.g. clear vacancy, sanctioned post, financial position, experienced personnel, other claimant etc. and whether promotion is required to be granted or not and whether particular person should be granted promotion or not and whether particular person is duly qualified eligible, and entitled for promotion or not are the issues which can be decided by the employer.
5.3 It was also contended that if the promotion as prayed for is to be granted then it would impose financial burden on the municipality which it was not able to bear. It was also claimed that the municipality is passing through and facing severe financial crises and cash crunch and it would not be in position to bear such additional financial burden. It was also claimed that actually there was policy decision to effect cut of 10% to 20% in the total number / strength of the employee and that therefore also it was not possible for the municipality to consider the request of promotion.
5.4 It was also claimed that if and when any of the concerned person was required to perform duty of the driver, additional allowance as per the Rules and Regulation was paid and that therefore neither the relief for difference of salary nor demand for promotion was justified or sustainable.
6. The petitioner is aggrieved by the said decision. Ms. Pathan, learned advocate for Shri K.I. Kazi, learned advocate for the petitioner has appeared and submitted that the reasoning by the learned tribunal is unjustified. She submitted that the petitioner has been working as driver and that therefore its demand was justified and should have been granted by the tribunal. She submitted that there is vacancy and there was no justification to not to fill up the vacancy by granting promotion to the petitioner. She submitted that because of the respondent's action of not granting promotion to the petitioner, the petitioner was suffering financial loss. Any other submission has not been made.
7. After considering the evidence on record and the submissions by the contesting parties, tribunal came to the conclusion that the demand was not justified and the subject matter being within the discretion and realm of the decision of the management, it would not be proper for the tribunal to grant promotion and / or to accept the request for direction to the corporation to grant promotion and difference in wages. The tribunal considered all relevant aspects.
7.1 It is pertinent that any appointment or promotion require sanction from the office of Board for selection / recruiting or Director of Municipality as the case may be, however, in present case such sanction was also not granted and that therefore also the question of any direction to grant promotion to the concerned workman was not practicable or even permissible.
7.2 Furthermore, it is also relevant that whenever any of the concerned workman was required to perform work for the post of driver, he was paid the charge / special allowance.
7.3 Besides this, merely because there was vacancy (assuming that there was vacancy, since the fact was not proved) on the sanctioned set up, as claimed by the concerned workman, it was not open for the tribunal to grant promotion or to issue direction to the municipality to promote the concerned workman without considering and without taking care of the relevant factors e.g. sanction by the authority, clear vacancy, financial position, personnel possessing prescribed qualification, other senior claimants etc. The petitioner failed to establish the said aspects in his favour. When the said aspects are considered, then any fault cannot be found in the impugned decision.
7.4 Having regard to the aforesaid and such other relevant aspects it cannot be said that the tribunal committed error in rejecting the reference.
8. It is also necessary to mention that it is not in dispute that the petitioner is appointed as and on the post of Cleaner.
8.1 His substantial appointment is and nature of duty which he is required to perform / to discharge and which he actually and regularly discharges are that of cleaner.
8.2 It is also not in dispute that the post of driver is a higher post in higher cadre and higher grade. Differently put, said post is promotional post. From the material on record it is not clear as to whether post of cleaner is a feeder post for the post of driver or not. It is also not clear from the record what are the prescribed technical qualification and / or prescribed minimum experience for the said post and whether petitioner holds and satisfy such qualifying criteria or not.
8.3 He, however, could not and did not dispute the fact that whenever he was required to work as driver, he was paid charge allowance.
8.4 The petitioner has not pleaded and established that as to whether he possesses the prescribed minimum education qualification and prescribed minimum experience and prescribed length of service for the promotional post and other qualifying criteria or not.
8.5 The bald assertion that he is qualified for the post, would not make him entitled for the promotion.
8.6 The petitioner has also failed to establish any illegality or arbitrariness in the action of respondent.
8.7 The petitioner also could not establish that any other person who is less qualified in experience and / or qualification or his junior has been appointed on the post of driver by adversely affecting the petitioner's, right, interest or claim.
The petitioner also could not establish that the Board of recruitment or the Director of Municipality has granted sanction to fill up the post. The petitioner also could not dispute the assertion of the municipality regarding policy decision to effect cut off 10 to 20% in the strength of the employee.
Besides this the fact that his substantial post is that of cleaner and whenever he is asked to work in place of driver in exigencies, he is paid special / charge allowance and that municipality's financial position is weak hence there is no scope for promotion, etc. are not even disputed by petitioner
9. On over all consideration, any error or illegality or arbitrariness in the award is not established. Learned advocate for the petitioner has not been able to establish any justification to interfere with the decision of the tribunal to set aside the said decision.
In view of the aforesaid clarification the petition fails and the same is hereby rejected.
(K.M.THAKER,J.) Suresh* Top