Promotion or Increase in salary in a private Establishment is a managerial Function and cannot be claimed to be a condition of service in the Absence of any such policy : High court of Bombay
(A) BRIEF FACTS:
A.1 Petitioner is a registered company under the Companies Act and is publishing daily newspapers from Nagpur. Petitioner-company is an industry within the meaning of Section 2(j) and respondent is a workman under section 2 (s) of the Industrial Disputes Act, 1947. Instant petition takes an exception to the judgment and order passed by the Industrial Court.
A.2 By said judgment and order, Industrial Court allowed the complaint filed by the Respondent under Section 28 of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 and declared that, Petitioner has indulged in unfair labour practice under Items 5, 7 and 9 of Schedule IV of the Act of 1971 and shall cease and desist from continuing the unfair labour practice.
A.3 Main grievance of complainant is that juniors, whose names have been mentioned in the complaint, were promoted and respondent was not at all considered for promotion, though his service record is unblemished throughout. He alleges victimization on the ground that Petitioner-company had shown favoritism to the juniors regardless of the merits.
B.1 Respondent has admitted in the cross-examination that, he never worked on higher posts. He further admitted that, he has not filed any document to show that, employees were promoted only on the basis of seniority or length of service. There is no whisper in the complaint that, the junior employees named in the complaint were initially appointed with M/s. Goldi Advertising and Marketing Services (P) Limited.
B.2 Respondent admits in unequivocal terms in the cross-examination that, to grant promotion factors like seniority, availability of work, posts, vacancies, qualifications and experience has to be taken into account. The Industrial Court did not consider all these material admissions brought in the evidence of complainant.
B.3 Promotion or increase in salary in a private establishment is a managerial function and cannot be claimed to be a condition of service if there is no scope in the management for the same. The learned counsel for petitioner submitted that M/s. Goldi Advertising and Marketing Services (P) Limited had no promotional channel and till the order of the Hon’ble Supreme Court and issuance of order by petitioner-company, there was no scope for the petitioner-company to consider the case of complainant for promotion.
B.4 According to petitioner-company, the persons named in the complaint were initially appointed by petitioner-company and not by M/s. Goldi Advertising and Marketing Services (P) Limited. While giving promotion, management is supposed to follow the service conditions as per the awards. The service conditions of the employees of petitioner-company are governed by Palekar, Bachhawat and Manisana Awards but none of the Awards contemplate granting of promotions.
B.5 It is not denied by complainant that pay-scales prescribed under the Awards were duly given to him. In these circumstances, if promotion is not given to complainant by petitioner-company that, ipso facto would not amount to victimization unless complainant establishes factual mala-fides, malice in law and effectual victimization by proving that promotions to some junior persons were given superseding the complainant without any reason or necessity.
B.6 It is an admitted fact that, there is no standard or norms or policy for promotions to the employees working in petitioner-company. That does not mean that, tribunal is powerless and cannot adjudicate industrial disputes between the management and workmen. The Industrial Tribunals are intended to adjudicate factual disputes between the management and workmen and pass effective awards in such a way that industrial peace and harmony between the employer and employees is maintained. The promotion is a managerial and administrative function of the management.
C.1 In the instant case, it has come on record that, promotion is not based solely on the seniority or length of service. There are various other factors which are required to be considered for the same. In such a situation, where initial appointment of complainant was with M/s. Goldi Advertising and Marketing Services (P) Limited and it is only after the orders of Supreme Court that, Petitioner-company treated the complainant as its employee and issued the orders accordingly asking the complainant to report for the duties, it was necessary for the complainant to wait and watch and allow the management to consider his service record for promotion.
C.2 Petitioner has categorically stated that M/s. Goldi Advertising and Marketing Services (P) Limited had no promotional channel and as soon as petitioner-company treated the complainant as its employee in view of the orders of the Hon’ble Supreme Court, management was to complete the formalities of appraisal forms to be filled in by the departmental heads with recommendations and assess the work performance of respondent. As complaint was filed, there was no occasion for management to consider the case of complainant for promotion. There is no evidence to establish malafides or malice in law or effectual victimization at the hands of management.
C.3 The hon’ble High Court of Bombay held that the Industrial Court has not adopted the proper course available in law and in the absence of the evidence to attract unfair labour practice under item 5 of the MRTU & PULP Act, wrongly held management liable for breach of item 5, this court finds that the impugned order is unsustainable and needs to be interfered with in the present petition. Impugned order passed by Industrial Court is quashed and set aside.