Ashim Kumar Banerjee, J. - (1.) Writ petitioner No. 1 was a Government company (hereinafter referred to as the "petitioner company") Respondent Nos. 1 and 2 in the first matter were workmen under the petitioner company. In September, 1994 they were asked to appear at a selection test for the purpose of considering their candidature for promotion. They did not choose to appear at the said test and as such they were not considered by the departmental promotional committee for promotion. Both of them approached the Assistant Labour Commissioner, Asansol by raising industrial dispute and ultimately approached 9th Industrial Tribunal, West Bengal, Durgapur where reference case was initiated being Reference Case No. 23 of 1990. Before the Tribunal the petitioner company raised the preliminary question as to the maintainability of the said reference. The Tribunal ultimately published an award answering the reference in favour of the respondent Nos. 1 and 2 and held that non- consideration of the respondent Nos. 1 and 2 for promotion to the post of Senior Armature Winder and charge head ("winding") respectively was not justified and gave them the consequential benefit.The award was challenged by the petitioner company in the first writ petition. This Court passed an interim order staying operation of the said award for a period of three months. Such interim order was time to time extended. However, the interm order was not extended after a certain period which prompted the respondent No. 1 to approach the Tribunal again for implementation of the award which compelled the petitioner to file the second writ application wherein this Court again passed an order of stay of operation of the impugned award and directed affidavits to be filed. Both the applications were heard by me upon completion of affidavits.
(2.) Short question germane herein is whether denial of promotion could be made a subject-matter of an industrial dispute. It was contended on behalf of the petitioner company that since promotion was within the prerogative of the employer the same could not be agitated before the Industrial Tribunal. It was contended that the denial of promotion could not be termed as industrial dispute as it did not fall under the Third Schedule of the Act of 1947.
(3.) Reliance was placed on the following three Apex Court decisions: (i) AIR 1974 SC Page 17 (Hindustan Lever Ltd vs. Workmen). (ii) AIR 1984 SC Page 1683 (Workmen Employed by Hindustan Lever Limited vs. Hindustan Lever Limited). (iii) 1993, Lab. IC (SC) Page 1996 (State of Madhya Pradesh vs. Srikant Chaphekar).;