IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 5507 of 2011. Decided on: 20.7.2011. __________________________________________________________ Superintending Engineer, Punjab State Power Corporation Ltd. and another. …Petitioners. Versus Sikander Lal ….Respondent. ________________________________________________________ Coram: Hon’ble Mr. Justice Kurian Joseph, Chief Justice. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the petitioners : Mr. Anand Sharma, Advocate. For the respondent : None. ___________________________________________________________ Justice V.K. Sharma, Judge. (Oral). Heard Mr. Anand Sharma, learned counsel for the petitioners. 2. Award dated 20.5.2010 (Annexure P-1), passed by the learned Presiding Judge, Industrial Tribunal-cum-Labour Court, Dharamshala, H.P., in Reference No. 44 of 2007, Shri Sikander Lal vs. Superintending Engineer, P.S.E.B., Circle Office, Shanan, Joginder Nagar, District Mandi, H.P. and another, under Section 10 (1) of the Industrial Disputes Act, 1947 (in short ‘the I.D. Act’), operative part whereof, contained in the relief clause at para 26 is extracted below, is under challenge in this petition, under Articles 226/227 of the Constitution of India at the instance of the appellants-employer:- “For all the foregoing reasons discussed above the reference is allowed. The action of the respondent in promoting the juniors of the petitioner as foreman is held to be illegal and untenable. As a sequel thereto 1 Whether reporters of the local papers may be allowed to see the judgment? 2 the respondent is directed to promote the petitioner as a foreman w.e.f. the date other three had been promoted as such i.e. 30.6.1997. The petitioner shall be entitled to all consequential benefit arising thereto. Since the petitioner has retired, the respondent shall take all steps to grant the notional promotion w.e.f. 30.6.1997 and its pecuniary benefits as payable within a period of 90 days from the award. The reference is answered in the following terms. A copy of this award be sent to the appropriate Government for publication in the official gazette and the file after completion consigned to the record room.” 3. The case of the respondent-workman before the learned Industrial Tribunal-cum-Labour Court was that he had initially joined the employment of the appellants-employer as Assistant Machine Attendant (A.M.A.) on 31.3.1975. He worked as such uptill 30.7.1982 and was promoted as Machine Attendant (M.A.) on 31.7.1982 and continuously worked as such till 10.1.2001. Lateron he was promoted as Foreman in the scale of Rs. 6300-10500 w.e.f. 11.1.2001 and worked as such till his retirement on 30.4.2005. 4. The grievance raised by the petitioner was that persons working with him as Assistant Machine Attendant, namely, Gurmit Lal, Subhash Chand and Sardari Lal, who were junior to him, were promoted as Foreman vide order dated 30.6.1997, ignoring his just and rightful claim. His further case was that having joined as Assistant Machine Attendant in 1975, he was due for promotion as Foreman after completion of 15 years of service in the year 1990. 3 5. The claim was contested by the appellants-employer on legal objections regarding delay and laches and maintainability. On merits, it was averred that in 1990, the petitioner did not fall in the zone of consideration for promotion to the post of Foreman. Gurmit Lal and Sardari Lal belonged to Scheduled Caste category and they were promoted against such category. Subhash Chand, who was Gate Attendant, belonged to different cadre and his seniority is maintained separately. His name figured in the seniority list at serial No. 53 and his date of birth is 13.9.1944. Likewise, the name of Sardari Lal figured at serial No. 43 and his date of birth is 7.1.1946 and name of Gurmit Lal figured at serial No. 38 and his date of birth is 5.6.1947. Name of the petitioner is reflected at serial No. 31 and his date of birth is shown as 18.4.1947. While admitting that an incumbent, who has completed 15 years of service, has a right to be considered for promotion, it is stated that it is only a qualifying condition subject to availability of post. The Board (P.S.E.B.) (now Corporation) has fixed a minimum time gap for promotion as Foreman from A.M.A./M.A. etc. and promotion is made on the basis of seniority-cum-merit subject to availability of post. 6. The challenge against the impugned award dated 20.5.2010 is mainly on the grounds that Subhash Chand and Sardari Lal being senior in age to the respondent-workman, they were rightly promoted as Foreman. The impugned award is liable to the quashed for the reason that the Secretary of the Corporation, who is competent to make promotion to the post of Foreman, was not impleaded as a party to the proceedings. Sardari Lal, Gurmit 4 Lal and Subhash Chand, whose promotion as Foreman with effect from 30.6.1997 has been challenged by the respondent-workman, were also not joined as parties to the proceedings. There was inordinate delay in raising the dispute. The petitioner had not completed the requisite service of 15 years as Machine Attendant. All these aspects have been dealt with in detail by the learned Industrial Tribunal-cum-Labour Court in the impugned judgment dated 20.5.2010. 7. In the face of categoric admission on the part of the appellants-employer that promotion to the post of Foreman is made on the basis of seniority-cum-merit subject to availability of post, it does not lie in its mouth to say that since Subhash Chand and Sardari Lal were senior in age to the respondent-workman, they were rightly promoted to the post of Foreman in preference to him. Even as per seniority list of Assistant Machine Attendants for the period ending 31.3.1979, Annexure P-2, the petitioner, who figures at serial No. 31, is apparently senior to Gurmit Lal and Sardari Lal, who are at serial No. 37 and 43, respectively. Subhash Chand nowhere figures in this list. 8. The case set up on behalf of the appellants-employer before the learned Industrial Tribunal-cum-Labour Court was that the Board (P.S.E.B.) (now Corporation) has fixed minimum time gap for promotion as Foreman from A.M.A./M.A. etc. and the promotion is made on seniority-cum-merit basis subject to availability of post. Such period is stated to be 15 years. In such situation, the respondent-workman having been appointed as A.M.A. on 31.3.1995 had already completed the requisite period of 5 15 years in 1990. Even if it is assumed that no vacancy was available at that time, the respondent-employee had a vested legal right to be considered for promotion as Foreman along with the aforesaid Sardari Lal, Gurmit Lal and Subhash Chand, when they were so promoted on 30.6.1997. However, it was not done despite the fact that the petitioner was senior to all of them, as admitted before the learned Industrial Tribunal-cum-Labour Court by RW-1 Jagdish. 9. In any case even if Sardari Lal and Gurmit Lal were promoted against reserved vacancies, the respondent-workman was entitled for promotion as Foreman when Subhash Chand, who was admittedly junior to him in the common feeder cadre of A.M.A./M.A. etc., was promoted on 30.6.1997. 10. Admittedly, the respondent-workman was also lateron promoted as Foreman with effect from 11.1.2001 and has since retired from service on 30.4.2005. However, as already noticed, his claim for such promotion dates back to 30.6.1997 and has rightly been upheld by the learned Industrial Tribunal-cum-Labour Court. We do not see any justifiable reason to interfere with such finding. Accordingly, the petition is dismissed being without any merit. (Justice Kurian Joseph) Chief Justice. (Justice V.K. Sharma) July 20, 2011. Judge. (cr)