JUDGMENT R.A. Sharma, J
1. The workman, respondent No. 3, who was employed in February, 1972, as a Junior Clerk in the petitioner's mill raised a dispute about his designation and pay which was referred by the Government to the Labour Court I, Kanpur. The Labour Court has given the award in favour of the workman and has directed thereby for giving designation and pay of Travelling Salesman to the workman. It is against this Award that the petitioner has filled this writ petition.
2. Learned Counsel for the petitioner has argued that by the impugned Award Labour Court has promoted the workman, which is managerial function and as such the award of the Labour Court is without jurisdiction. In this connection the learned counsel has relied upon two decisions of the Hon'ble Supreme Court in Management of Brook Bond India Ltd. v. Their Workman = 1966 (1) LLJ 402 and Hindustan Lever v. Their Workmen. 1974 I LLJ 94. In support of his argument the learned counsel has invited my attention to the Channel of promotion and in connection therewith has also referred to some agreement. This plea was taken before the Labour Court also, but was rejected on the ground that no documentary evidence, in its support, so as to prove the Channel of promotion has been filed by the employer.
3. It is true that in these cases the Hon'ble Supreme Court has declared that promotion of workman is managerial function and is outside the purview of the Labour Court. However, in another case of Workman Employed by Hindustan Lever Ltd. v. Hindustan Lever Ltd. = 1984 LIC 1573. Hon'ble Supreme Court has cast doubt on its earlier decision referred to above and has observed that view that promotion is a managerial function requires re-consideration, that as it may so far as this Court is concerned law has to be taken that the promotion of a workman is managerial function.
4. The question that remains for consideration is, as to whether the Labour Court has in fact, granted promotion to the workman? The Labour Court after considering the evidence of both the parties and facts and circumstances of the case, has accepted the case of the workman to the effect that he has been acting as Travelling Salesman at the instance of the employer (petitioner) since 1981 and on this basis Labour Court has held that it is not a cage of promotion but a case of giving designation and pay of the post in which the workman has been working for the last several years. The Award of the- Labour Court appears to be perfectly justified. It is the function of the Management to appoint a person for particular post or office and this managerial function of the Management was performed at the time when the workman was asked to work and act as a Travelling Salesman. The Management has itself permitted the workman, as per the finding recorded by the Labour Court to act as a Travelling Salesman and that was nothing but a promotion/appointment by the Management without giving designation and pay. Managerial function being over already what the Labour court has done nothing except giving designation and pay of the post of which he was discharging duties and performing functions. This cannot be said to be a case of promotion. In this connection reference be made to para 12 of the decision of the Hon'ble Supreme Court in the case of the The Workman v. Hindustan Lever (supra), relevant extract of which is quoted below:
"Even on the footing of law, as it stands at present in this country, that promotion is a Management function, the industrial dispute referred to the Tribunal was not one for claiming promotion. The Tribunal committed a grave error in so mis-interpreting the dispute referred to it. The Tribunal overlooked the fact that the demand was in respect of workman already promoted i.e. in respect of whom managerial function of selecting personnel for promotion had been already performed. The demand was in respect of already promoted workmen may be in an officiating capacity for their classification from acting or temporary to confirm that is permanent, in the higher grade to which they were promoted, after a reasonable period of service which according to the Union may be three months of service.
By no cannon of construction, this demand could be said to be one for promotion".
5. Regarding the plea of learned counsel that the aforesaid post of Travelling Salesman is higher post, it may be mentioned that documentary evidence was not produced before the Labour Court in order to prove categorisation, gradation and channel of promotion of post. That apart, even if it is presumed to be correct that cannot affect the position as the Management has itself permitted the workman to work and act as Travelling Salesman for several years. It is not a case of promotion but only giving to the workman what is due to him viz. designation and pay of the post, in which he has been working for the last several years.
6. The Writ Petition lacks and is dismissed. In view of the facts and circumstances of the case there shall be no order as to costs.