A.P. Sen, J.
1. By this application under Articles 226 and 227 of the Constitution of India, the petitioner Mahendralal applies for issuing a writ of certiorari for quashing the order of the industrial court, Madhya Pradesh, Indore, dated 5 September 1966, and for a writ of mandamus directing the General Manager, Hindustan Steel, Ltd., Bhilai, to enforce the order of the labour court, Raipur, dated 28 April 1956.
2. The material facts are these. The petitioner was employed as an upper division clerk in the Bhilai Steel Project with effect from 24 October 1956. On 27 September 1958, the project promoted 46 upper division clerks to the post of section assistants, in the higher pay-scale of Rs. 160-10-330, with effect from 20 September 1958 until further orders, and the petitioner Mahendralal was one of them. In the promotion order, it was directed that the seniority of the petitioner, who figured at serial No. 34 in the cadre of upper division clerks would be reckoned from the date of his regular promotion, i.e., with effect from 27 September 1958, although the petitioner was already working as section assistant in an officiating capacity, on ad hoc basis, from 13 September 1958. That was the order in which his name was placed in the list of promoted section assistants. Since, however, the petitioner was officiating as section assistant from 13 September 1958, the project issued an order dated 7 October 1958 apparently for regularizing his officiating appointment for financial purposes. The parties are not agreed as regards the true implication of this order, and it would be convenient to set it out in extenso for a proper appreciation of the controversy between them regarding this:
No. Estt. III-7 (b)-AD (R) iv (D) (ii) (16-a) 56.
Hindustan Steel (Private), Ltd.,
Bhilai Steel Peoject.
Dated Bhilai, 7 October 1958.
Office order No 1364.
Mahendralal, upper division clerk attached to Chief Engineer (3), is promoted temporarily to the post of head assistant on Rs. 160 per month in the scale of Rs. 160- 10-330 with effect from 13 September 1958 (forenoon) far a period of two months or till the date a regular officer is posted, whichever is earlier.
(Sd.) B.N. TREHAN,
Assistant Personnel Officer.
It would appear from the terms of this order that the petitioner was promoted temporarily with effect from 13 September 1958 'for a period of two months' or 'till the date a regular officer was posted,' whichever was earlier. This was purely a temporary arrangement.
The promotion order, dated 27 September 1958, was, however, in the following terms :-
No. ESTT. III-l (2)/58, Hindustan Steel (Private), Ltd., Bhilai Steel Project.
Bhilai, dated 27 September 1958
Office order No. 1346
3. The following 46 upper division clerks are promoted to the post of section assistants in the scale of Rs. 160-10-330 with effect from 20 September 1953 (forenoon) until further orders.
Sl. Name At present Office Appointed RemarkNo. where to which on Rs.working posted(1) (2) (3) (4) (5) (6)1 ... ... ... ... ...* * * * *34 Mahendralal C.E. (8) C.E. (8) 16046 * * * *(4) Seniority of serial Nos. 34 and 42 already promoted as section assistants in officiating capacity and those who were promoted on adhoc basis will be reckoned from the date of their regular promotion, i.e., with effect from 20 September 1958.
4. The petitioner contends, on the strength of a circular No. MRU/631056, issued by the Personnel Manager, Bhilai Steel Project, dated 29 May 1963, that under the rules, his seniority should count from 13 September 1958, from which date he started drawing his pay in the cadre of section assistants, Being aggrieved with the direction in the promotion order, the petitioner sought a revision of the order with a view to refixation of his inter se seniority, on the strength of the said circular but the project authorities having turned it down, he eventually applied to the labour court, Raipur, under Section 31(3) of the Madhya Pradesh Indus trial Relations Act, 1960, stating that he was entitled to get his seniority fixed from 13 September 1958, i.e., from the date ho was first promoted to the post of section assistant and started drawing his salary in that grade, and claimed that he was wrongly placed at serial No. 112 in the provisional gradation list of section assistants as on 31 December 1953 (wherein he is shown as working on the post of section assistant from 20 september 1958), asserting that if his seniority were counted from 13 September 1958, his legitimate place in the seniority list should be at serial No. 74. On a construction of the various circulars issued by the project, dealing with promotion of its employees and their inter se seniority, the labour court held that as both the general order, dated 27 September 1958 as well as the special order, dated 7 October 1958 were provisional, and there was no sanctity attached to the promotion order, dated 20 September 1958 and, therefore, there was no justification for not counting the seniority of the petitioner on the basis of his length of service in the particular grade, i.e., from the date he started drawing his pay in that grade. In that view, the labour court granted to the petitioner a declaration that he was entitled to have his seniority counted from 13 September 1958, and, accordingly, directed the management to amend its provisional gradation list of section assistants, placing him above the 33 upper division clerks promoted on 20 September 1958.
5. The matter went up in revision before the industrial court, Madhya Pradesh, under Section 66 of the Madhya Pradesh Industrial Relations Act, 1960. It held that the Labour court had exceeded its jurisdiction in directing the fixation of seniority of the petitioner from 13 September 1958 which direction was contrary to the various circulars dealing with the subject. T he industrial court held inter alia that-
(i) the promotion of the petitioner as section assistant on. 13 September 1958 was not made after considering the inter se seniority of all the upper division clerks, but was made for the exigencies of work in the section itself ' ; and,
(ii)' his service from 13 to 20 September 1958 in the grade of head assistant was thus under ' fortuitous circumstances,' and cannot be counted in that grade to the prejudice of his seniors whose promotion was shortly made, after full consideration of their inter se seniority.
In other words, the industrial court was of the view that the temporary promotion of the petitioner in an officiating capacity, made on ad hoc basis, could not be counted in determining his seniority in the cadre of section assistants. Apart from this, the industrial court also reversed the decision of the labour court on another ground. It held that no adjudication of this nature was possible without first impleading 33 upper division clerks who admittedly were senior to the petitioner and who would be adversely affected, if any declaration was granted in his favour. For both these reasons, it reversed the decision of the labour court, and dismissed the application made by the petitioner under Section 31(3) of the Act.
6. The learned counsel for the petitioner assails the decision of the industrial court on these grounds. In the first place, he contends that the labour court had full competence to place a particular construction on the relevant circulars in arriving at its finding that seniority of the petitioner as section assistant should be reckoned from the date from which he started drawing his pay in that particular grade and assuming that there was an error in placing that construction, it could not be said that the labour court had acted illegally or with material irregularity in exercise of its jurisdiction and, therefore, the industrial court could not have reversed its decision in its revisional jurisdiction under Section 66 of the Madhya Pradesh Industrial Relations Act by merely construing the circulars in a different manner. In support of this contention; the learned counsel placed reliance on Kymore Cement Mazdoar Congress, Kymore v. Industrial Court, Madhya Pradesh, Indore. and Ors. 1966-I L.L.J. 117. Secondly, he contends, on the strength of the Personnel Manager's circular No MRU/33/1053, dated 29 May 1983 and circular No. Sr. P. O. (O)-63/3904, dated 2 August 1963, that the seniority of the petitioner had been rightly counted by the labour court from the date he actually started drawing his pay in the grade of section assistants, i.e., with effect from 13 September 1958. Lastly, he urges that if no adjudication of this nature was possible without impleading the other 33 upper division clerks., then the proper course for the industrial court was to have remitted the case for a fresh decision after the impleading of these persons as parties to the proceedings. We are not impressed with any of these submissions, for reasons which we shall presently state.
7. Before dealing with the questions raised, it would be necessary to refer to the various circulars issued by the Bhilai Steel Project, regulating the right of promotion of its employees and the determination of their inter se seniority on which the entire controversy between the parties rests. There are three circulars dealing with the subject. The first is a circular issued by the General Manager which is to following effect:
Hindustan Steel, Ltd., Bhilai Steel Project
Bhilai, dated 3 May 1962
It has been decided that seniority shall be fixed strictly in accordance with the date of joining of an employee in a particular category or cadre.
Prior service in other category or cadre will not be taken into consideration even though the posts are in indentical grade or in the same organization.
(Sd.) R.C. Roy,
Deputy General Manager.
The remaining two are circulars Issued by the Personnel Manager, and the relevant extracts from them, are set out below:
Hindustan Steel, Ltd., Bhilai Steel Plant
Bhilai, dated 29 May 1963 No. MRU/63/1053.
(2) Under the rules, the seniority counts from the date a person draws pay in a particular grade. Wherever the worker transferred to identical grade has been transferred in the exigency of work from one identical grade to another, he will count his seniority in the grade from the date he is appointed to the grade and not from the date he is so transferred to the new designation or grade. Transfer made on request of the worker will, however, be treated as a fresh appointment and the seniority will count from the date the individual has been so transferred. It is presumed that the transfer on request would have the same process as of selection of new recruits.
(Sd.) R.P. MISRA,
Sr. P.O. (O)-63 3904 Dated 2 August 1963. [Subject-Seniority list of workers]
(4) In the event of the promotion, however, the seniority will stand revised as per the order in which the names of the workers are put in the promotion order. T.hese will be on the basis of merits, the promotees getting the highest marks in the merit-rating report to be put up on the top, the one getting' leaser than him as next below him, and so on.
(Sd.) C. P. CHRLE,
Senior Personnel Officer.
8. The first question regarding jurisdiction is interlinked with the second Question regarding' the construction of the different circulars, and we propose to deal with them together. Normally, in dealing with disputes as to promotion, however anxious industrial adjudication may be, regard must always be had to the fact that in matters of promotion discretion has primarily to he left to the employer. In Brooke Bond (India) (Private), Ltd.v. their workmen 1963-I L.L.J. 256, their lordships of the Supreme Court stated:
Thus, though promotion is normally a function of the management, if it appears to the tribunal, to which a dispute as to the failure of the employer to promote a senior employee is referred. that in promoting another employee in preference to the senior employee the management has been actuated by considerations other than of merits, or that the failure to promote the eligible person who is senior in service amounts to an unfair labour practice, the tribunal would be justified in interfering with the order made. But in the absence of mala fides, normally it must be left to the discretion of the management to decide which of the employees should, be selected for promotion at a given time, subject of course to the above formula.
Their lordships have reiterated these principles in Brooke Bond (India,) (Private), Ltd. v. their workmen 1966-I L.L. J. 402 in these words (at p. 405):.Generally speaking, promotion is a management function ; but it may be recognized that there may be occasions when a tribunal may have to interfere with promotions made by the management where it is felt that persons superseded have been so superseded on account of mala fides or victimization. Even so after a finding of mala fides or victimization, it is not the function of a tribunal to consider the merits of various employees itself and then decide whom to promote or whom not to promote. If any industrial tribunal finds that promotions have been made which are unjustified on the ground of mala fides or of victimization, the proper course for it to take is to set aside the promotions and ask the management to consider the cases of superseded employees and decide for itself whom to promote, except of course the person whose promotion has been set aside by the tribunal.
The labour court, In transgression of these settled principles, tried to interfere with a fair and just decision of the management. Thereby, it usurped a jurisdiction which it did not possess.
9. Apart from this, there is no manner of doubt that the construction put on the circulars by the labour court is not correct and in directing the management to reckon the seniority of the petitioner with effect from 13 September 1958, it exercised a jurisdiction under a misconception. In other words, it had exercised a jurisdiction not vested in it by law. The principles governing seniority of the employees of the Bhilai Steel Project are embodied in General Manager's circular No. DGM Cir/XlI/1606, dated 3 May 1962, namely-
Seniority shall be fixed strictly in accordance with the date of joining of an employee in a particular category or cadre.
Now, the temporary promotion of a person to a post in a higher cadre in an officiating capacity, is not tantamount to his appointment in a particular category or cadre within the meaning of the circular. Such a temporary appointment confers on him no right to that post. It, therefore, follows the appointment of the petitioner to the cadre of section assistants was on 20 September 1958, when he, along with 33 other upper division clerks, was first promoted as section assistant. The labour court acted illegally or with material irregularity in not adhering to the basic principles underlying the circular. The remaining circulars of the Personnel Manager had to be interpreted in consonance with these principles. Circular No. MRU/63/1053, dated 29 May 1963, no doubt, speaks of the date from which the person promoted starts drawing his pay in the higher grade. But the right to draw his pay in a higher grade accrues to that person from the date he is appointed to that particular cadre. Circular No. Sr. P. O. (O)-63' 3904, dated 2 August 1963, instead of supporting the petitioner, is really against him. In event of promotion the seniority stands as per.'. the order in which the names appear ' in the promotion order. The management had acted strictly in accordance with these circulars, in directing in the promotion order, dated 20 September 1958, that the petitioner will take his legitimate place at serial No. 34 and his seniority shall be reckoned with effect from 20 September 1958, the date of his regular promotion. It must, accordingly, be held that the labour court in holding that the fixation of seniority was contrary to circulars and in allowing seniority to him from 13 September 1958, acted in excess of its jurisdiction, or, at any rate, illegally and with material irregularity.
10. The scope of the revisional jurisdiction of the industrial court under Section 66 of the Madhya Pradesh Industrial Relations Act, 1960, came up for consideration before this Court in Kymore Cement Mazdoor Congress, Kymore v. Industrial Court, Madhya Pradesh, Indore, and Ors. 1966-I L.L.J. 117 (vide supra). The powers of the industrial court are identically the same as the powers of the High Court under Section 115 of the Civil Procedure Code because Section 66 of the Madhya Pradesh Industrial Relations Act, 1960, is in part materia with that section. Following the view taken in Kymore Cement Mazdoor Congress, Kymore v. Industrial Court, Madhya Pradesh, Indore and Ors. 1936-I L.L. J. 117 (vide supra), we must, therefore, state that Section 66 ibid. applies ' to jurisdiction alone, the irregular or non-exercise of it, or the illegal assumption of it,' in the words of their lordships of the Privy Council in Balkrishna v. Vasudeva I.L.R. (1917) 40 Mad. 793. The section is, therefore, not directed against conclusion of law or fact in which the Question of jurisdiction is not involved, The rule laid in Kymore Cement Mazdoor Congress, Kymore v. Industrial Court, Madhya Pradesh, Indore and Ors. 1966-I L.L.J. 117 (vide supra), clearly attracted the revisional jurisdiction of the industrial court under Section 66 of the Madhya Pradesh Industrial Relations Act, 1960, in the present case. The labour court has given no reason for reckoning the seniority of the petitioner with effect from 13 September 1958, contrary to the circulars governing the subject. Thereby, it usurped a jurisdiction which it did not possess i.e., there was illegal assumption of jurisdiction. If an erroneous decision results in the labour court exercising a jurisdiction not vested in it by law, a case for revision arises see Joychand Lal Sahu v. Kamalaksha Chaudhuri and Ors. A.I.R. 1949 P,C. 239. By placing a wrong construction on the circulars, the labour court also acted illegally or with material irregularity. The words, ' acted in the exercise of its jurisdiction illegally or with material irregularity,' had given rise to a conflict of decisions. In Kesheo Deo v. Radha Kissen : 4SCR136 , their lordships of the Supreme Court have settled the conflict by stating that these words refer to ' the manner in which the decision is reached.' Now, there is no doubt as regards the manner in which the labour court reached its decision. It acted ' illegally,' that is, in breach of same provision of law, namely, the relevant circulars, and also 'with material irregularity,' by not referring to the principles settled by the circulars, particularly the Deputy General Manager's circular No. DGM/Cir/XII/18/1606, dated 3 May 1962.
11. Even otherwise, the industrial court rightly held that there is an error of jurisdiction committed by the labour court in deciding the application filed by the petitioner under Section 31(3) of the Act, without impleading the 33 other upper division clerks who were necessary parties to the proceedings. We are in accord with the view of the industrial court that no declaration of the kind-asked for by the petitioner could be granted in their absence, In. fact, no adjudication of this nature was possible unless they were heard because they are, undoubtedly, the persona who would be adversely affected by granting the declaration asked for. Nevertheless, the industrial court was right in not remitting the matter for a decision afresh after impleading these persons since the application under Section 31(3) of the Act was itself not maintainable.
12. The result is that the petition fails and is dismissed with costs. Counsel's fee Rs. 100, if certified. The outstanding amount of security shall be refunded to the petitioner.