Sunil Ambwani - (1.) HEARD Shri Gopal Misra for the petitioner and Shri L. M. Singh, for respondent-workman in Writ Petition No. 18439 of 1999 and Shri L. M. Singh, for petitioner and Shri D. P. Singh, for respondent-employer in Writ Petition No. 67316 of 2005.
(2.) THE Writ Petition No. 18439 of 1999 filed by M/s. Artherton Mills Company, a Unit of National Textile Corporation (U. P.) Ltd., Kanpur, the petitioner employer arises out of Adjudication Case No. 94 of 1990, decided by Industrial Tribunal (3) U. P., Kanpur, dated 30.10.1998 by which Shri Prahlad Chandra Gupta-respondent No. 3, workman was directed to be promoted by giving the post and pay-scale, and wages of Sales Officer w.e.f. 1.6.1979, when Shri Nisar Ahmad was promoted from the post of Supervisor to Sales Officer. THE Tribunal further directed that the employer shall give difference of wages within one month and Rs. 250 as cost of the case. An industrial dispute was referred by the Government of U. P. on 23.1.1990 under Section 4K of the U. P. Industrial Disputes Act, 1947, to the Industrial Tribunal for adjudicating whether it was just and proper not to give the post and pay scale to Shri Prahlad Chandra Gupta-workman, Sr. Clerk, Poli-General Sales Department as Supervisor and if the question is decided in favour of the employer the benefits and damages to which the workman is entitled. The second question referred to the Tribunal was whether the concerned workman was entitled to be given post of Sales Officer and other benefits with effect from the date on which his junior employees were promoted as Sales Officer and if yes, the details thereof. The respondent-workman stated in his written statement that he was directed to work as Supervisor and Sales Officer from 1970 to June 1978 and when he demanded the post and pay scale of Sales Officer, the officers in the establishment transferred Shri Nisar Ahmad Ansari from Printing Department/mill side to the administrative office on 7.6.1978 and by placing him in supervising cadre, he was promoted as Sales Officer. Similarly Shri Narain Das, Junior clerk was promoted on 14.2.1977 from the post of Junior Clerk to Sr. Supervisor as on 1.6.1979. Shri Sardendu Srivastava was directly appointed as Sales Officer. The respondent-workman further stated that there are no rules governing the promotions and that the establishment awarded promotions arbitrarily without following any norms thereby discriminating senior employees. Shri Narain Das was promoted as Sales Officer on 1.11.1980. The juniors to the respondent-workman were also promoted in supervisory cadre and that the petitioner being senior to them was ignored.
(3.) THE employer in his written statement took objections to the maintainability and competence of the reference raised by B.M.S. (the unit), which did not have substantial membership. THEre was no vacancy in the sales department. In the year 1984, about 15 lacs meters of cloth was produced, which got reduced to 5 lacs mtrs. per month and thus there was no need of three sales officers and two sales supervisors. THEre was excess of two sales officers and two sales supervisors in the establishment. THE respondent-workman had no concern with the work of supervisor. He was in the category of senior clerk and as per the agreement dated 25.5.1989 the clerks were classified in the categories of one junior clerk, two senior clerks and three head clerks. THEre was many persons senior to the respondent-workman. In the additional written statement, the petitioner employer stated that no production and commercial activities are carried out by the mill since 14.5.1991. There is no industrial dispute either existing or apprehended as the industry was dead in the absence of working capital, and the financial position of plant and machineries. There was no chance of its revival. The State Government did not apply its mind before referring the question after lapse of about 5 years. The promotion of the employee is the prerogative of the management and the Tribunal has no authority to interfere in the matter. There was no post of Supervisor in the organisational structure sanctioned by the Board of Directors and as such the demand for the post was illegal and unjustified. There is only one post of Sales Officer, which was held by Mr. M. M. Pathak and he is getting ideal salary as no sales activities are going on in the absence of production. The management was not in a position to bear the financial burden. The employer relied upon Western Match Company v. Western India Match Company Workers' Union, 1990 (II) LLJ SC. It was further contended that the respondent-workman was declared as senior clerk in terms of the settlement dated 28.5.1979. He did not become head clerk and could not be considered for promotion of Supervisor. The service conditions and wage structure of the clerks, supervisors/officers is quite different. The watch and ward staff are governed by standing order while the others are governed by N.T.C. service rules with different age of superannuation. The demand of wage stricture of the clerical staff is pending with the Supreme Court.;