1.0 This petition is directed against the judgement and award dated 16.09.2003 passed by the learned presiding Officer, Industrial Tribunal, Nadiad in Reference ( ITN) No. 408 of 1998 ( Old Reference ( IT) No. 319 of 1993) partly allowing the reference and directing the petitioner Board to give deemed date promotion to the respondent herein with effect from 30.07.1976 as Plant Operator Grade II along with the benefit of seniority and further directing that pay fixation shall be carried out notionally and, therefore, the respondent herein is not entitled to any amount as arrears. The petitioner is also directed to pay wages to the respondent herein in newly fixed pay from the date of publication of award.
2.0 The facts of the case are that the respondent herein was appointed by the petitioner Board as Switch Board Operator on 07.11.1966 and subsequently the respondent was given promotion as Plant Attendant Grade I at Dhuvaran on 26.04.1973. One Mr. K.C. Shah who was junior to the respondent was employed in the petitioner Board from 1971 and he was given promotion as Plant Attendant Grade I at Dhuvaran on 27.04.1973. Both the respondent and Mr. K.C.Shah were working at Dhuvarn as Plant Attendant Grade I and Mr. K.C. Shah was junior to the respondent, Mr. K.C. shah was given promotion as Plant Operator Grade II on 02.04.1978 and subsequently Mr. K.C. Shah was also promoted to the post of Post Operator Grade I in the year 1978 whereas the respondent was promoted to the post of Plant Operator Grade I on 12.04.1986.
2.1 The respondent, therefore, approached the Industrial Tribunal by way of filing Reference ( ITN) No. 408 of 1998 ( Old Reference (IT) No. 319 of 1993) with a prayer for promotion as Plant Operator Grade II in 1978 i.e. from the date of promotion of Mr.KC Shah with all consequential benefits. After adjudicating the matter, the Tribunal passed the aforesaid award which is challenged in the present petition.
3.0 Learned advocate appearing for the petitioner contended that learned Tribunal has committed error in allowing the reference of the respondent directing the petitioner Board to give deemed date promotion to the respondent with effect from 30.07.1976. He further submitted that the respondent was given two promotions and respondent has accepted the same without any objection and therefore, it will not be appropriate to challenge the same after such delay.
4.0 Learned advocate for the petitioner further contended that the respondent in his deposition stated that he was promoted as Plant Attendant Grade I on 26.04.1973 and Shri KC Shah was promoted to the said post of Plant Attendant Grade I on 27.04.1973; that as per the rules of the board the senior employee remains senior, that he was having all the qualifications for the post of Plant Operator Grade II but he was not called in the interview whereas Shri KC Shah was called for the interview; that in 1976 there were agreement and rule in the Board to give promotion only on the basis of seniority; that the qualification which Shri KC Shah possessed for the post of Plant Operator Grade II was also possessed by him and that GSO 315 was not applicable to him. In the crossexamination the respondent stated that he and Shri KC Shah were working as Plant Attendant Grade I in 1973 at Dhuvaran. The respondent admitted that in the year 1976, interviews were held for the post of Senior Electrician before the selection committee but he was not called for interview and that he has not challenged the said action of not calling in the interview in any Court. He further submitted that respondentworkman had accepted the promotion as Plant Operator Grade II in 1978 and as Plant Operator Grade I in 1986. He further submitted that the reference has been preferred after a long period. Therefore, there is delay in filing the reference.
5.0 Learned advocate for the respondent supported the judgement and award of the learned Tribunal and submitted that the petition may be dismissed.
6.0 Heard learned advocates for the parties and perused the documents on record.
6.1 The respondent workman was appointed as Switch Board Operator on 07.11.1966. Thereafter, he was promoted to the post of Plant Attendant Grade I at Dhuvaran on 26.04.1973. The junior to the present respondent Mr. K.C. Shah was promoted as a Plant Attendant Grade I at Dhuvaran on 27.04.1973. From the General Standing Order No. 315 it reveals that only the nomenclature of the post is different, but the channel of promotion of the petitioner and Mr. K.C. Shah is same.
6.2 As far as question of limitation is concerned, the respondent challenged the promotion in the year 1993. The Deputy Commissioner of Labour, Vadodara referred the dispute between the aforesaid parties to the 6th Industrial Tribunal Ahmedabd vide oder dated 10.12.1993. Subsequently on constitution of the Industrial Tribunal at Nadiad the said dispute was transferred to the Tribunal by the competent authority. The dispute between the parties is whether Shri G.A. Shah POI of Gujarat Electricity Board, Mehmedabad should be given promotion of POII from 30.07.1976 with all the incidental benefits of seniority and pay scales?
6.3 The respondent was promoted to the post of Plant Attendant Grade I on 26.04.1973 and Shri KC Shah was promoted to the post of Plant Attendant Grade I on 27.04.1973 and both of them were working at Dhuvaran Thermal power stations but the fact regarding giving promotion to Shri KC Shah earlier is presented in a twisted manner. It is the say of the petitioner Board that Shri KC Shah was selected by the selection committee and was promoted to the post of Senior Electrician and thereafter the channel of promotion of the present workman and Shri KC Shah was changed and hence he was promoted to the post of Plant Operator Grade I in 1978 and since the channel of promotion was changed, there was no question of seniority or confidential reports and hence there is no question of giving the promotion of plant operator Grade II from 1976 to the respondent.
6.4 It is required to be noted that certain documents were produced by the Baord vide DE list Exh.13. Erxh.14 was the report of Selection Committee selecting Shri K.C. Shah to the post of Senior Electrician. Exh.15 and Exh.16 are respectively the applications of the respondent and Shri KC Shah for being considered by the Selection Committee for the post of Senior Electrician. Exh.17 is the order granting promotion to Shri K.C. Shah and Exh.18 is GSO 315 dated 10.7.90 prescribing qualification and experience for various posts in the board.
6.5 It is not in dispute that present respondent was promoted as Plant Attendant Grade I on 26.04.1973 and Shri KC Shah was promoted as Plant Attendant Grade I on 27.03.1973 and thus, it cannot be disputed that the present respondent was senior to Shri KC Shah by one day. The question now to be considered is whether the promotions were to be given on the basis of seniority or on the basis of selection by a selection committee. The agreement as alleged is not produced before the Tribunal but the existence of the same is also not denied by the Board by leading evidence in that behalf or by cross examining the witnesses of the union on that count. On the other hand it is a fact that Shri KC Shah was interviewed by the selection panel and was selected for the post of senior Electrician which was equivalent to the post of Plant Operator Grade II. The present respondent was working along with Shri KC Shah as Plant Attendant Grade I and he being senior, had also applied to the selection committee vide Exh. 15. Shri KC Shah had also applied to the selection Committee Vide Exh. 16. However, Shri KC Shah was called for interview and present respondent was kept away from the interview, though he was senior. There is no answer to the question as to why the respondent was not called for interview even though he possessed required qualification for the post of Senior Electrician and also he was senior to Shri K.C. Shah. Therefore, fact remains, that present respondent though senior, and having required qualification, was not granted promotion as Senior Electrician in 1976 with the result that he got promotion as Plant Operator Grade II which was equivalent to Senior Electrician only in 1978. There is nothing on record which can justify the stand of the petitioner Board that Senior Electrician can become Plant Operator Grade I earlier in time than the Plant Operator Grade II nor is there anything to show that merely because Shri KC Shah was promoted as Senior Electrician his and present respondent’s channel of promotion was changed. It is apparent that the petitioner has not acted in accordance with law.
7.0 It is required to be noted that the Tribunal has directed for pay fixation notionally and therefore no backwages were granted.
8.0 In the premises aforesaid, I am of the opinion that order passed by the learned Tribunal is just and proper. The petition is dismissed with costs quantified at Rs.3500/. Rule is discharged. Interim relief, if any, stands vacated.
(K.S.JHAVERI, J.) niru*