IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- SPL. APPL. WRIT No. 547 of 2001 VICE PRESIDENT & ANR V/S UNION OF INDIA & ORS Mr. SN TRIVEDI, for the appellant / petitioner Mr. KAMAL DAVE, Mr. TARUN JOSHI, for the respondent Date of Order : 18.12.2007 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI MUNISHWAR NATH BHANDARI,J. ORDER ----- The appellants by this appeal seek to challenge the order of the learned Single Judge, modifying the award of the learned Central Industrial Tribunal, to the extent, that the employer shall consider the case of the workman for promotion in accordance with the law, within a period of three months from the date of receipt of the certified copy of the order alongwith the eligible persons, if there is vacancy on the sanctioned post, and pass appropriate order, and also to the extent, that the arrears of back- wages as awarded by the Tribunal from 7.2.83, shall be payable to the workman from the date of reference, till the date of award onwards. The very brief facts, necessary for the controversy are, that the appellant was appointed as Painter Khalasi, and according to his averments, since 1967 he was actually working as a Painter, and thereafter on 7.2.83 he appeared and qualified the trade test for Painter, but then he was not given the promotion to the post of Painter, though persons junior to him were so given promotion. The matter was litigated out before the Central Industrial Tribunal under Section 33C(2), and that claim was decided by the judgment dated 18.11.92, which was challenged before the Central Administrative Tribunal, who quashed the order of the labour Court, observing, that the workman shall seek reference under Section 10(1) of the Industrial Disputes Act. Consequently, the workman approached, by setting into motion the machinery under the Industrial Disputes Act, and the reference came to be made in the year 1996, to the Central Industrial Tribunal. The learned Tribunal, by award dated 18.6.99, answered the reference to the effect, that the workman shall be entitled to difference of wages and allowances of Painter w.e.f. 7.2.83, and shall be deemed to be promoted on the post of Painter on 7.2.83, the date on which he passed the trade test. This award was assailed by the Union of India by way of writ petition, inter-alia challenging that the Industrial Tribunal had no jurisdiction to direct the employer to make promotion of the employee, much less with effect from a particular date, as it amounts to the 2 Tribunal promoting the employee, with effect from a particular date, and that the emoluments of the post of Painter could also not be ordered to be awarded, unless the workman was promoted to that post, on there being in existence any vacancy. The learned Single Judge found, that the dispute was raised by the petitioner after more than 13 years, and there could not have been any justification for asking the employer to pay the difference w.e.f. 7.2.83, and therefore, the award was modified. Likewise, regarding promotion, it was found, that the question of promotion could not arise unless there was sanctioned post, and persons falling within the zone of consideration were assessed in accordance with law, and therefore, the above order had been passed. Reliance in this regard has been placed on a Constitutional Bench Judgment of Hon'ble the Supreme Court, in Management of Brooke Bond India (P) Ltd. Vs. Their Workmen, reported in AIR 1966 SC 668. We have heard the learned counsel for either side, and have gone through the impugned judgment of the learned Single Judge, and that of the learned Tribunal. A look at the judgment of the learned Tribunal shows, that the learned Tribunal itself had recorded a categoric finding, to the effect, that though the workman 3 was found to be working as Painter since 1967, it is required to be seen, as to whether he was entitled to get any pay and grade of the Painter, and for that purpose, it was found that “there is no doubt that a person can get pay scale or promotion only when there exists a post in that cadre”. We quite appreciate, that to this extent the finding was perfectly alright, but then, in the later part of the judgment, even without coming to any conclusion about the existence of any post in the promotion cadre, much less without recording any particular date of the coming into existence the vacant post, the learned Tribunal proceeded to award the pay and allowances, so also promotion, from the date, the workman had qualified the trade test i.e. 7.2.83, simply in view of the fact, that he had been working as a Painter since much before. To say the least, the learned Tribunal had, thus, recorded a self-contradictory finding. Inasmuch as on the face of the finding recorded about requirement of existence of the post in the promotion cadre, the later part of the finding, could obviously not been sustained. Then so far as the question of persons junior to the petitioner having been promoted on the post of Painter, is concerned, in that regard also, no finding has been recoded by the learned Tribunal, finding any person junior to the petitioner to have been promoted on the post of the Painter. In that view of the matter, even on merits, the order of the Tribunal 4 could not be sustained. Obviously the Tribunal had no jurisdiction to direct, rather virtually make, the order of promotion, with effect from a particular date, much less even without coming to any conclusion about the existence of any post in the promotion cadre. However, the fact does remain, that the order of the learned Single Judge, whereby the learned Single Judge has directed the workman to be entitled to the benefits of pay and emoluments of the post of Painter, with effect from the date of reference, has not been challenged by the Union of India, therefore, that part of the order need not be set aside, and obviously, on the face of the finding of the learned Tribunal itself, the workman could not be held to be entitled to the pay and emoluments of the post of Painter w.e.f. 7.2.83. So far as the promotion part is concerned, the learned Single Judge has clearly directed the employer, to consider the case of the petitioner, and we are told, that the petitioner has already been promoted now. Thus, the net out come of the aforesaid discussion is, that we don't find any ground to interfere with the impugned judgment. The appeal is, therefore, dismissed. ( MUNISHWAR NATH BHANDARI ),J. ( N P GUPTA ),J. /tarun/ 5