I.S. Tiwana, J. - (1.) The petitioner, General Manager, Northern Railway, impugns the order of the Labour Court, Jullundur, dated Sept. 30, 1977 (Annexure P.4) whereby he has been directed to pay arrears amounting to Rs. 1558.85 to the respondent workman Nathoo Ram for the period from June 3, 1972 to May 15, 1977. In order to appreciate the contention raised by the learned counsel for the petitioner, the following facts deserve to be noticed.
(2.) Respondent Nathoo Ram was offered a promotion in the Higher grade as a Highly Skilled Painter, Grade II, for the first time on May 25, 1971 but he declined to accept the same on account of certain family or domestic circumstances. He could not be so promoted till June, 1974. On July 2, 1976, he filed the present application under section 33-C(2) of the Industrial Disputes Act, 1974 (for short, the Act) claiming therein that though as per the instructions of the Railway Board on account of his declining to accept the promotion order dated May 25, 1971, he could be ignored for that promotion for a period of one year, yet with the lapse of that period he should have been so promoted and paid the arrears of the promoted post. This claim of his was contested primarily on the ground that he could not be promoted to the above notes post till June 1974 as there was no vacancy available. It was, however, conceded before the Labour Court that on account of the refusal of Nathoo Ram to join his promoted post, and Dalip Singh who was junior to him, was promoted in his place. The Labour Court, while adjudicating the claim of Nathoo Ram, has recorded the finding that after the lapse of one year from May 25, 1971, i.e. the date on which he was offered the promotion, the authorities concerned should have reconsidered his case and promoted him by reverting, Dalip Singh who, as already indicated, was initially junior to him (Nathoo Ram). The objection raised by the employer to the effect that the claim of Nathoo Ram did not fall within the purview of section 33-C(2) of the Act as it was, disputed that he was required to be promoted after the lapse of one year from May 25, 1971, was brushed aside by the said Court with the observation that Nathoo Ram had "an existing right to sustain his claim.
(3.) Now Mr. Shant, learned counsel for the petitioner, besides urging on merits that Nathoo Ram respondent had no such claim for reconsideration after the lapse of one year of his declining the promotion on May 25, 1971 in view of the Railway circular dated Feb. 17, 1965 (Annexure P.5) forcefully contends that the Labour Court could not determine under section 33-C(2) of the Act the right of Nathoo Ram to be promoted with effect from a particular date. According to the learned counsel, it was a disputed question of law and fact and unless Nathoo Ram had been able to secure a determination in his favour by the Industrial Tribunal under section 10 of the Act, no right to claim arrears had either occurred to him or had come into existence. In a nut shell, the argument is that Nathoo Ram's right to be promoted after the lapse of one year from May 25, 1971 could not be the subject-matter of determination or settlement by the Labour Court under Sec. 33-C(2) of the Act. I find merit in this submission of the learned counsel.;