;s?^ %^' ••—^^^ • f ' , .^^^:- .D^io.teh^ IIS' OHB H.EGH COU.BI OS MADHTA P&fiOESH- Al JABAI'PO'R. fSS:& 'J.-'V- gST%IONE8 |y" G. Tawastsar, I.^COU^OFM.P, (iOEAN S&U.YU, buRO. '^•p-s Mls c.Petit ion No. ^/ ^i^T . /l9911 CFBOOT1KI268 S H.VENKAIESHWAa LU. ; S/o Late N.Subbarayudu. P.Ho.11829, Assistant-Shipper, Rail Stores Incharge, Bhipp ing-Sect ioa, Rail & Structural Mill, Bhilsl. Steel Plant, , ''^ Ehilai '8a3aCi.. Tah. andDlstt...Durg fri.P) Af piesent posted in - Marketlncp Dep artment, Bhilai Steel Plant, Ispat Bhawan, • Steel Authority of India Ltd., Bhilai (E'i.P.) . R/Q M.I.G., lype-IIad, Ho.250 tiODCO/Tab'. & Disft^urg (Mfr) •^^3| VE &.S US _ • -. . ^J,;t RES.PONBENIS r'" s' 1) THS I4ANAGII-IG DIP^C'IOft. Bbilai Steel Plant, Steel Authority of India 1'td., Bhilai Nagar, T^sil and Distt. Durg (M.P) . 12) T ; SOPERIN'ISNDEl-ir. Rail &nd Structural Mill, Bhilal. Steel' Plaot. . Bhilai Nagar» 3'ahsi.l and Distric-fc - Durg Q'L.P.) 3) SHRIM.e.&A.Ei&. , '. P.No. 124,9,. ; ' Junlor-Manager, (E-l) . '.. Con'tlnnous S Castiiig Shop, . J contd,... .-»;2.;ag% BSBgW "..^^WSBS -s 2s- '5 Bhilai Steel Plgnt, Steel Authori-fcy of XndJ-a .Iitd., Bhilai Hagar, Tabsil aad District -Durg frl.P.) EEIITJQN gHBER AR2ICIES 226/227 OF THE :' COSSI'I'RJ'EIDK OF •SMW.& . "s\ lk •l'-i, mGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION No. 2152 of 1991 PETITIONERS : N. Venkateshwar Lu. VERSUS RESPONDENTS : The Managing Director, Bhilai Steel Plant & Others. -^ Post for pronouncement ofjudgment on .. 3-A.. .day of October, 2009. Sd/- Satish K. Agaihotri Judge ^ :m HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION No. 2152 of 1991 PETITIONERS : N. Venkateshwar Lu. VERSUS RESPONDENTS : The Managing Director, Bhilai Steel Plant & Others. t^ PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF DTOIA SB: Hon'ble Shri Satish K. Aenihotri, J. Present: Shri V.G.Tamaskar, Advocate for the petitioner. Dr. N.K.Shukla, Senior Advocate with Shri Shailendra Shiikla, Shri A.K.Yadav, Advocates for the respondent No. 1 and 2. JUDGMENT (Passed on ......? ^.'."day of October, 2009) The petitioner, by this petition, challenges the legality and validity of the order dated 16 January,1989 whereby the respondent No. 3 has been promoted to the post of Jimior Engineer, E-l Grade in violation of the promotion mles and policy of the company, further, a direction to the respondents to promote the petitioner to Grade -D and E-l grade with all consequential benefits. The facts, in brief, as projected by the petitioner are that the petitioner raised a dispute in respect of his supercession by the respondent No. 3 and others before the Laboui' Court, Raipur, m case No. 166/80/MPIR. The Labour Court,.Raipur, on 24 January, 1983 (Annexure P/l) ordered as under: _ ~ "Accordingly on the basis ofthe observations and the reasons stated above, I hold the action of the management in ,lfS'-»"&!.,i B. S 'l. '%^^ / r^ promoting non-applicant No. 5 superseding the applicant, to the post of recorder aad incharge Cooling Pit and as Charge Pits is illegal and order the management to promote the applicant on these posts w.e.f. the dates when N. No. 5 was promoted as such on various posts and grades. However, looking to the fact that applicant had not actually performed the duties as such he is only entitled to notional seniority as recorder w.e.f. 12.9.60 in the scale ofRs. 80-120 as Incharge Cooling Pit w.e.f. 1.10.61 in the scale ofRs. 150-210, and in the scale of Rs. 160-280 w.e.f. 1.10.62 and then as Chargemen Pit w.e.f. 21.10.65 i.e. the dates when the N.A. No. 5 was promoted. Applicant will not be entitled to difference ofwages but would count his seniority and have right for his pay fixations indicated in this para, parties to bear their own costs." The claim of the petitioner against Shri C.P.Pillai, Shri K.K.Vasu and Shri B.S.Chouhan, was dismissed. The petitioner was declared senior to the respondent No. 3. In the appeals preferred by the respondent No. 1 aad 2, being appeal No. 241/MPIR/83 and Appeal No. 326/MPIR/83, preferred by the respondent No. 3, the appellate authority i.e. the Industa-ial Court, Raipur, by order dated 11 April, 1985 (Annexure P/2) allowed the appeal partly by quashing the order of the Labour Court to the extent of cancellmg of promotion ofthe respondent No. 3. It was directed that the present petitioner may be considered at par with the respondent No. 3 for his promotion and his seniority may also be considered accordingly. It was further held that the petitioner would not be entitled to any arrears of salary. The respondent No. 3 was further promoted on the post ofJunior Manager (E-l grade) w.e.f. 16 January, 1989 in violation of the mles of the respondent-company. Thereafter, a new promotion policy for promotion from non-executive to executive cadre was circulated vide letter dated 11 June, 1988 (Annexure P/3). 'As per the new policy, the respondent No. 3 was entitled to be ^. BaiNB'.B! v considered for promotion to the cadre of E-0 and not directly to the E-l, Junior Manager. Thus, this petition. Shri V.G.Tamaskar, leamed counsel appearing for the petitioner would submit that the petitioner has been completely ignored despite the clear directions issued by the Industrial Court in Appeal No. 241/MPIR/83 and Appeal No. 326/MPIR/83 to treat the petitioner at par with the respondent No. 3 for the purpose ofgromotion and seniority. The direct promotion ofthe respondent No. 3 to E-l grade is contrary to fhe policy ofthe respondent- Company and as such, the same deserves to be quashed. The respondent- authorities may be directed to consider the seniority of the petitioner and grant notional promotion as granted to the respondent No. 3, time to time with consequential benefits. Dr. N.K.Shukla, learned Senior counsel appearing with Shri Shailendra Shukla and Shri A.K.Yadav, leamed counsel for the respondent No. 1 and 2 would submit that this writ petition, filed in the year 1991, seeks compliance ofthe order dated II? April, 1985 (Annexure P/2) passed by the Industrial Court, after a period of unexplained laches and delay for about 6 years. Section 78 of the Madhya Pradesh Industrial Relations Act, 1960 provides for machinery for execution of the decision of the Labour Coiirt and the Industrial Court. The petitioner ought to have approached the appropriate forum for execution of fhe order dated 11 April, 1985 passed by the Industrial Court. This Court may not act as an executing Court. Indisputably, the Industo-ial Court set aside the order of the Labour Court and directed the management to consider the case of the petitioner for considering promotion to the post to which the present respondent No. 3 had been promoted, and if 1 k ft, "-f 7'i^ p° ^^'^a-'t^i^^^ the petitioner was found fit for promotion, to promote him with effect from the same date, the respondent No. 3 was promoted. The order did not provide for grant of any back-wages. The petitioner was considered for promotion to the posts viz. Incharge, Cooling Pits in the pay scale of Rs. 100-160, Incharge, Cooling Pits in the pay scale ofRs. 160-280, Chargeman (Pits) in the pay scale ofRs. 210-365, Chargeman (SC Pits) in the pay scale ofRs. 490-763, and Chargeman.(SC Pits) in the pay scale ofRs. 650-1140, after passing the Trade Test wherever it was necessary, notionally by the sanctioned order dated 03rd Feti'uary, 1986 (Annexure R/5). The Trade Test is a prerequisite for promotion fi-om semi-skilled fo skilled category and skilled to supervisory category and from one trade to another trade within the existing line of promotions. The promotions are considered by the Departmental Promotion Committee on the basis of seniority-cum-merit after passing the trade test where it was necessary. The circular dated 17 June, 1977 provides for trade test to determine the suitability ofthe employee wifh respect of higher responsibilities md further suitability for different trades. Clause 5.1 ofthe circular dated 17 June, 1977 provides for trade test for all posts whether vacancy exists or not. If the vacancies were not in existence, the test would be a criteria for preparing a panel. All the eligible candidates are notified for line of promotion in any two trades. In case of promotion from the post of Assistant Shipper as held by the petitioner at the relevant time, on the post of Chargeman (SC Pits), the change of ta-ade/designation was involved, Trade Test was necessary requirement. The petitioner was advised by letter dated 23 November, 1985 (Annexure R/l) to appear in the trade test for the post of Chargeman, (SC Pits) before the Committee on 5 "v^ ,. --.' '<- K m ^ December, 1985, as there was a change ofTrade in promotion. The said letter was duly received by the petitioner on 26 November, 1985 as is evident from the acknowledgement dated 26 November, 1985 (Annexure R/2). The p .titioner declined to appear in the said Trade Test as communicated vide letter dated 27 November, 1985 (Annexure R/3). The petitioner was again advised by letter dated 19 February, .1986 (Annexure R/6) for appearing in the Trade Test to comply wifli the order ofthe Industrial Tribimal. Inspite of repeated advice to the petitioner to appear in the Trade Test as the Trade Test was a pre-requisite for promotion to the higher grade, the petitioner declined to appear in the test and as such, the direction of the Industrial Court could not be implemented. In the meantime, the petitioner retired w.e.f. 30 June, 1992 on attaining the age of superannuation. It is further submitted that the petitioner was holding L-7 grade at the relevant time and was to be promoted to L-8, L-9 and L-10 grade before being considered for E-0 cadre as per promotion policy ofthe Company. The respbndent No. 3 was promoted to E- 1 cadre on being found suitable for the post. Dr. Shukla would next urge that that prior to coming into force of new promotion policy (Aanexure P/4), the first promotion of the Non-Executive Cadre was in E-l grade (as there was no E-0 grade in the old promotion policy (Annexure R/4). For such promotion to E-l grade, the non-executives had to undergo'a pre-selection course of 2 years and then to pass a pre selection test, after which alone, they were promoted to E-l grade directly. Under the new promotion policy, non-executives are first promoted to E-0 and after completion ofone year's course and passing the post selection test, they-were promoted to E-l grade. When the new promotion policy was ^^- 'i'-Sf-SR-WS:^ brought into force, there were a number of non-executives, who, under the old promotion policy, had completed the pre-selection test, but were not promoted because of lack of vacancies in the executive cadre. Therefore, under the new promotion policy, a special provision was made for such non- executives for their direct promotion to E-1 grade which is in the following terms: "However, before implementing the new promotion policy the non-executives, who have undergone pre- selection training and are waiting for promotion to executive cadre because of lack of vacancies, are to be considered for promotion." Dr. Shukla would further contend that the respondent No. 3 and the other similarly placed non-executives were promoted to the executive E-l grade as Junior Managers under the aforesaid provisions under the new promotion policy. I have heard leamed counsel for the parties, perused the pleadings and documents appended thereto. The petitioner, by this petition, is seeking implementation of the order dated 11 April, 1985 (Annexure P/2) passed by the Industrial Court, Raipur. Section 78-A ofthe M.P./C.G. Industrial Relations Act, 1960 (for short 'the Act, 1960') reads as under: "78-A. Execution of award, etc., by Labour Court or the Industrial Court.- (1) Every award or determination or decision of a Labour Court or the Industrial Court shall be executed by the authority which made it, in such manner as may be prescribed. (2) Every award of an Arbitrator other than a Labour Court or the Industrial Court or an agreement arrived at under section 33 or a settlement arrived at under section 43 shall be executed by the Labour Court in the same manner as if it were an award made by such Labour Coiirt." ':-v, ,-: -•• i- ^ 9. Section 78-A ofthe Act, 1960 provides for execution ofthe award passed by the Industrial Court or the authority which made it. The petitioner, without taking recourse to provisions of section 78-A of the Act, 1960, has approached this Court by filing the present petition on 3 July, 1991 after a period ofabout 6 years. There is no explanation for such an inordinate delay. Further, the petitioner has also not explained asto why he has chosen writ jurisdiction instead of statutory provision as provided under section 78-A of the Act, 1960. The order dated 11th April, 1985 (Annexure P/2) passed by the Industrial Court, directed the employer to consider grant of promotion and seniority to the petitioner at par with respondent No. 3, and further, the petitioner was held not to be entitled for arrears of wages. Pursuant to the order of fhe Industrial Court, the respondent-authorities sent a notice to the petitioner on 23 November, 1985 (Annexure R/l) stating that the petitioner was required to appear before the Trade Test Committee on 5 December, 1985 which was duly acknowledged by the petitioner on 23 November, 1985. The petitioner, in tiim, declined to appear before the Trade Test Conuiiittee by letter dated 27 November, 1985 (Annexure R/3) The petitioner was thereafter again advised on 19 February, 1986 (Annexure R/6) to appear before the Trade Test Committe.e. The petitioner took the same stand and declined to appear before the Trade Test Committee on the ground that he is not required to appear before the Trade Test Committee as the Industrial Court has directed to promote the petitioner at par with the respondent No. 3. 10. On'perusal ofthe documents, it is evident that in any event, ifthe petitioner -has to change his trade or otherwise in service career, he is required to appear '•Y^ • ,. -' ' '<-. ^..-^sy' [ssss ^S^S^S^ in the Trade Test as per memo dated 17 June, 1977. Clause 6 ofthe Policy And Procedure On Trade Test, provides for test by the Trade Testing Committee. Clause 7 ofthe aforesaid policy reads as under: "7.0 TEST 7.1 The Trade Test Committee shall examine the employee appearing for the test with respect to their kuowledge, practical and theoretical in terms of Trade Test Specifications. 7.2 Trade Test will comprise of a fotal of 100 marks, with 25 marks allotted for theory test and 75 for practical test. 7.3 In the theory test, which should ordinarily be written, the candidate will be judged in his theoretical knowledge about the trade for which he is being considered. 7.4 The practical test may consist of oral questions, but as far as possible the skill ofthe candidate will bejudged by giving him a practical test on the equipment/machine/job which he will be required to perform. 7.5 The record of the employee's performance in the theory as well as practical test will be maintained. In case of written, the answers given by the candidate will constitute the record. In case of oraVpractical, a record of questions asked/replies given, as also his performance on the assignment given during the testwill be kept. 7.6 The employee shall write their answer either in Hindi or English. 7.7 The candidate appearing for Trade Test will be given answer papers duly stamped with the facsimile signatire of the Chairman ofthe Trade Testing Conunittee. Only trade number would be indicated on the tear out portions of the answer books and names will not be indicated. Different code number may be allotted against these before evaluation. 7.8 The qualifying marks shall be not less than 50%, on the aggregate ofthe total marks for theory and practical." 11. It is well-settled priuciple of law that no Court or Tribunal should direct the employer to appoint or promote an employee without considering the fact that the employee is qualified for being promoted or not. In the case on hand, direction ofthe Industrial Court is only to consider the case ofthe petitioner, not to promote the petitioner directly. i •aS.WSS \:, l^ 12. Further, looking into the conduct ofthe petitioner wherein the petitioner has straight-away declined to go through any Trade Test for promotion from the initial post which he was holding i.e. L-7 grade, without being promoted to L-8, L-9, L-10 and E-0 grade, the petitioner cannot be considered for promotion to E-l grade. 13. The next challenge ofthe petitioner is to quash the order dated 16 January 1989 whereby the respondent No. 3 has been promoted directly to E-l grade i.e. the post of Junior Manager. The petitioner has not filed the document dated 16 January, 1989, and for want ofdocument, this question cannot be considered. Even otherwise, the respondent authorities have made it clear that as per the new policy, an employee can directly be promoted to E-l grade who have undergone pre-selection training and is waitiag for promotion to executive cadre. No order which is sought to be challenged by the petitioner is filed. Thus, for want of document, this question cannot be decided. Promotion ofrespondent No. 3 to E-l grade cannot be questioned by the petitioner as the petitioner has not been promoted from L-7 to L8 and thereafter to L-9, L-10 and E-0 grade. 14. Looking from all angles, the petition is devoid of merit. Accordingly, the petition is dismissed. No order asto costs. Satish K. Agaihof Jadge h'-, Amit ' '^.