Wanchoo, J. - (1.) This is an appeal by special leave in an industrial matter. The appellant-concern promoted two employees from grade A to grade B on April 1, 1959. These two employees were Manerikar and Dhume. As a result of this promotion, Manerikar superseded one employee while Dhume superseded six employees. A dispute was raised by the respondents-workmen on account of this supersession. This was based on an earlier award with reference to this very concern by the National Tribunal which provided as follows:- "All things being equal, seniority shall count for promotion. If the senior person has been overlooked in the question of promotion, he is at liberty to ask the concern for the reason why he has been overlooked, in which case the concern shall give him the reasons, provided that it does not expose the concern or the officer giving reasons, to any civil or criminal proceedings." It appears that when the supersession became known the management was asked to give the reasons and the management gave the same and said that in making promotions it took into consideration the merit, personality and suitability of the employees. This did not satisfy the employees who were superseded and a dispute was raised on their behalf by the workmen which was referred to the industrial tribunal by the Government of Mysore in these terms: "Whether the promotion of Sriyuths P. D. Dhume and Y. S. Manerikar, superseding Sriyuths G. N. Kamat, B. V. Kulkarni, H. S. Deshpande, G. R. Balgi and D. N. Naik is justified If not, to what relief are the affected workmen entitled - It may be added that the name of Sri V. R. Kulkarni was added later in the list of persons superseded. The case of the workmen was that the action of the management was not bona fide and was taken to victimise the six employees on account of their trade union activities and that the reasons given for superseding the senior employees were vague and of a general character. The case of the appellant on the other hand was that seniority alone could not be the criterion for making promotion and that other factors like merit, personality, etc., have to be taken into consideration. The appellant asserted that all these facts had been taken into consideration when the two promotions in question were made. It was also asserted that promotions were made after considering the qualities and abilities of the employees concerned. The appellant further denied that there were any mala fides in the matter of these promotions or that the action was taken with a view to victimise those who were superseded.
(2.) The tribunal recognised that normally the question of promotion was a management function and had to be left mainly to the discretion of the management which had to make a choice from among the employees for promotion. But it was of the view that in a proper case the workmen had a right to demand relief when just claims of senior employees were overlooked by the management. It therefore first considered the question whether this was a case in which the workmen had the right particularly in view of the earlier decision in this very concern to demand that the two promotions made should be scrutinised by the industrial tribunal. It came to the conclusion that the action of the management was mala fide mainly because it took 11 weeks to reply to the query of the workmen asking for reasons for their supersession. It was of the view that the evasive replies and inordinate delay showed that the two promotions were mala fide. The tribunal also seems to have held that the six employees were superseded on the ground that they were more or less active members of the union and because of their trade union activities, though there is no specific finding to that effect. The tribunal further seems to have held that the delay made by the management in giving the reasons when asked to do so showed that the management had not considered the reasons for supersession prior to or at the time the promotions were made, that was why it took time to formulate reasons for supersession. Thereafter the tribunal went into the merits of the case and considered the records of the six employees which were produced before it and came to the conclusion that five of them were as good as those who had been promoted. Finally, it ordered that these five emloyees should be promoted from grade A to grade B with effect from the date on which the other two persons were promoted. It further ordered that these persons be given their due place with respect to their seniority. It also ordered that they were entitled to increments which they would have got if they were promoted along with the two persons namely, Manerikar and Dhume.
(3.) The appellant has attacked the correctness of this award on two main grounds. In the first place it is urged that on the face of it the award cannot be sustained for there were only two promotions by the management and the tribunal has ordered the management to promote five more persons. It is urged that the tribunal could not do this even if it found that the promotions were not justified. In any event promotion of Manerikar could not be assailed as he was No. 2 in seniority and only the promotion of Dhume could be assailed. In any case it is urged that there was no occasion to promote seven persons from the date from which these two promotions were made, for on that date there were only two promotions to be made and what in effect the tribunal had done is to make seven promotions on that date. Secondly, it is urged that the tribunal's finding that there were mala fides and victimisation is based on no evidence. Further it is urged that even if the tribunal found that there was case for interference with the promotions made, the tribunal should have set aside the promotion of Dhune for Manerikar in any case was entitled to promotion being No. 2 in the seniority list and should have directed the appellant to promote another person in place of Dhune after considering all relevant factors.;