# ·D v. WORKMEN

- **Citation:** [1966] 2 S.C.R. 465
- **Court:** Supreme Court of India
- **Decided:** 1966
- **Case number:** Civil Appeal No. 541 of 1964
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, M. Hidayatullah, V. Ramaswam!, P. SATYANARAYANA Ruu
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/d-v-workmen-3595
- **Pages:** 6

## Headnote

Industrial Dispute~Promotions by 111anage111ent
allegedly
based on
ri1ala fides and victitnisation-Tribunal's jurisdiction to set aside promotiOns~Tribunal 1vhether can decide 1vho1n 'LO jJron1ote.
The appellant-concern promo'ted two employees from grade A lo
grade B.
One of these promotees M superseded one employee while
the other D superseded six.
A dispute
was taised by the respondentsworkmcn on account of this supersession, and a reference was ma<le to
the industrial tribunal by the Government of Mysore.
The case of the
workmen was that the action of the management was not bona fide and
\\'as taken to victimise the six employees in disregard of seniority.
The
case of the appellant on the other hand was that seniority alone .could
not be the criterion for promotion and that other factors 1ike merit_.
personality etc. had to be raken into consideration. The Tribunal came
to the conclusion that the action of the management \Vas 1nala fide be~
cause it took eleven weeks to reply to the query of the workmen asking
for ·reasons for their supersession. The Tribunal also found
substaitce
in the allegations of victimisation on the
ground that those superseded
\Vere more or less active members of the union. The Tribunal then came
to the conclusion that five of the superseded employees \Vere as good as
those who had been promoted and ordered that they should be promoted
from grade A to grade B, with effect from the date from \Vhich the other
two had been promoted.
The appellants came to this Court by special
leave against the Tribunal's awJrd and contended : ( 1) On the face of it
the award could not be sustained for there were only t\vo promotions by
the management and the Tribunal had ordered the management to pro1notc five n1ore persons. The promotions of M could not be assailed at all as
he was second in seniority. (2) The Tribunal's
finding that there were
111ala (ides and victimisation was based on no evidence.
HELD : (i) Although promotion is a management function it may be
recognised that there may be occasions
when a Tribunal may have to
interfere on grounds of 1nala fides or victimisation. But it is none of the
Tribunal's functions to consider the merits of various
employees itself
and then decide whom to promote or not to promote. The Tribunal can
only set aside the \\1rongful promotion and ask the management to make
a fresh promotion. [468 F-H]
. In the present case 1\I was second in seniority and therefore only D's
case required 'he consideration of the Tribunal.
Assuming that D's pron1otion was liable 'to be set aside the Tribunal had no justification for
promoting five persons in addition to the two promoted by the manaRe~
ment. [469 B-C]
·
(ii) The management had stated in its reply to the superseded emμloyees that it had considered all the relevant factors and had also considered the cases of all senior emμloyees due for promotion before promoting M and D.
It was difficult to see how the tribunal could come
to the conclusion merely from the fact that
there was some delay in
466
SUPREME COURT REPORTS.
[1966] 2 S.C.R.
giving the reply to the query as to the reasons that the management ~ad A
not considered the relative merits of all senior employees before making
the promotions. There could be no doubt that the findings of the Tribunal that the relative merits were not considered or that there was ma/a
fides or that there was victimisation were based on no evidence and must
therefore be set aside. Once that conclusion was reached there was no
reason for the Tribunal to interfere with the promotions made by the
management. [470 E-G]
B
l

## Text

' .
•
•
...
'
A
MANAGEMENT OF BROOKE BOND INDIA (P) L1D.
B
c
·D
E
F
G
H
v.
WORKMEN
November I, 1965
[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO,
M. HIDAYATULLAH, V. RAMASWAM! AND
P. SATYANARAYANA Ruu, JJ.]
Industrial Dispute~Promotions by 111anage111ent
allegedly
based on
ri1ala fides and victitnisation-Tribunal's jurisdiction to set aside promotiOns~Tribunal 1vhether can decide 1vho1n 'LO jJron1ote.
The appellant-concern promo'ted two employees from grade A lo
grade B.
One of these promotees M superseded one employee while
the other D superseded six.
A dispute
was taised by the respondentsworkmcn on account of this supersession, and a reference was ma<le to
the industrial tribunal by the Government of Mysore.
The case of the
workmen was that the action of the management was not bona fide and
\\'as taken to victimise the six employees in disregard of seniority.
The
case of the appellant on the other hand was that seniority alone .could
not be the criterion for promotion and that other factors 1ike merit_.
personality etc. had to be raken into consideration. The Tribunal came
to the conclusion that the action of the management \Vas 1nala fide be~
cause it took eleven weeks to reply to the query of the workmen asking
for ·reasons for their supersession. The Tribunal also found
substaitce
in the allegations of victimisation on the
ground that those superseded
\Vere more or less active members of the union. The Tribunal then came
to the conclusion that five of the superseded employees \Vere as good as
those who had been promoted and ordered that they should be promoted
from grade A to grade B, with effect from the date from \Vhich the other
two had been promoted.
The appellants came to this Court by special
leave against the Tribunal's awJrd and contended : ( 1) On the face of it
the award could not be sustained for there were only t\vo promotions by
the management and the Tribunal had ordered the management to pro1notc five n1ore persons. The promotions of M could not be assailed at all as
he was second in seniority. (2) The Tribunal's
finding that there were
111ala (ides and victimisation was based on no evidence.
HELD : (i) Although promotion is a management function it may be
recognised that there may be occasions
when a Tribunal may have to
interfere on grounds of 1nala fides or victimisation. But it is none of the
Tribunal's functions to consider the merits of various
employees itself
and then decide whom to promote or not to promote. The Tribunal can
only set aside the \\1rongful promotion and ask the management to make
a fresh promotion. [468 F-H]
. In the present case 1\I was second in seniority and therefore only D's
case required 'he consideration of the Tribunal.
Assuming that D's pron1otion was liable 'to be set aside the Tribunal had no justification for
promoting five persons in addition to the two promoted by the manaRe~
ment. [469 B-C]
·
(ii) The management had stated in its reply to the superseded emμloyees that it had considered all the relevant factors and had also considered the cases of all senior emμloyees due for promotion before promoting M and D.
It was difficult to see how the tribunal could come
to the conclusion merely from the fact that
there was some delay in
466
SUPREME COURT REPORTS.
[1966] 2 S.C.R.
giving the reply to the query as to the reasons that the management ~ad A
not considered the relative merits of all senior employees before making
the promotions. There could be no doubt that the findings of the Tribunal that the relative merits were not considered or that there was ma/a
fides or that there was victimisation were based on no evidence and must
therefore be set aside. Once that conclusion was reached there was no
reason for the Tribunal to interfere with the promotions made by the
management. [470 E-G]
B
l
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 541 of
1964.
Appeal by special leave from the Award dated the March 14,.
:..
1963 of the Industrial Tribunal, Mysore, in LT. No. 13 of 1961.
M. C. Setalvad, J. B. Dadachanji, 0. C. Mathur and Ravinder
Narain, for the appellant.
e
S. V. Gupte, Solicitor-General and Janardan Sharma, for the
respondents.
The Judgment of the Court was delivered by
Wanchoo, J,
This is an appeal by special leave in an industrial D
matter.
The appellant-concern promoted two employees from
grade A to grade Bon April I, 1959.
These two employees were
Manerikar and Dhume.
As a result of this promotion, Manerikar
superseded one employee while Dhume superseded six employees.
A dispute was raised by the respondents-workmen on account of
this supersession.
This was based on an earlier award with referE
cnce to this very concern by the National Tribunal which provided
as follows :-
"All things being equal, seniority shall count for promotion. If the senior person has been overlooked in
the question of promotion, he is at liberty to ask the concern for the reason why he has been overlooked, in which
,F
case the concern shall give him the reasons, provided
that it does not expose the concern or the officer giving
reasons, to any civil or criminal proceedings."
It appears that when the supersession became known the management was asked to give the reasons and· the management gave the
G
same and said that in making promotions it took into consideration
the merit, personality and suitability of the empfoyees.
This did
not satisfy the employees who are superseded and a dispute was
raised on their behalf by the workmen which was referred to the
industrial tribunal by the government of Mysore in these terms :-
"Whether the promotion of Sri)'uths P. D. Dhume and
H
Y. S. Manerkar, superseding Sriyuths G. N. Kamat,
B. V. Kulkarni, H. S. Deshpan<k', G. R. Baigi and D. N.
•
I
BROOKE BOND LTD. v. WORKMEN (Wanchoo, J.)
467
A
Naik is justified ? If not, to what relief are the affected
workmen entitled ?"
It may be added that the name of Sri V. R. Kulkarni was added
later in the list of persons superseded.
The case of the workmen
was that the action of the management was not bona fide and was
B
taken to victimise the six employees on account of their trade
union activities and that the reasons given for superseding the
senior employees were vague and of a general character. The case
of the appellant on the other hand was that seniority alone could
not be the criterion for making promotion and that other factors
like merit, personality, etc. have to be taken into consideration.
C
The appellant asserted that all these facts had been taken into
consideration when the two promotions in question were made.
It was also asserted that promotions were made after considering
the qualities and abilities of the employees concerned.
The appellant further denied that there were any mala fides in the matter
of these promotions or that the action was taken with a view to
D
victimise those who were superseded.
The tribunal recognised that normally the question of promotion was a management function and had to be left mainly to the
discretion of the management which had to make a choice from
among the employees for promotion.
But it was of the view that
E
in a proper case the workmen had a right to demand relief when
just claims of senior employees were overlooked by the manage~
ment.
It therefore first considered the question whether this was
a case in which the workmen had the right particularly in view
of the earlier decision in this very concern to demand that the
two promotions made should be scrutinised by the industrial triF
bunal.
It came to the conclusion that the action of the management was mala fide mainly because it took 11 weeks to reply to
the query of the workmen asking for reasons for their supersession.
It was of the view that the evasive replies and inordinate delay
showed that the two promotions were mala fide.
The tribunal
also seems to have held that the six employees were superseded on
G
the ground that they were more or less active members of the union
and because of their trade union activities, though there is no specific finding to that effect.
The tribunal further see.ms to have held
that the delay made by the management in giving the reasons when
asked to do so showed that the management had not considered
the reasons for supersession prior to or at the time the promotions
H
were made; that was why it took time to formulate reasons for
supersession.
Thereafter the tribunal went into the merits of the
case and considered the records of the six employees which were
468
SUPREME COURT REPORTS
[1966] 2 S.C.R.
produced before it and came to the conclusion that five of them A
were as good as those who had been promoted.
Finally, it ordered that these five employees should be promoted from grade A to
grade B with effect from the date on which the other two persoris
were promoted.
It further ordered that these persons be given
their due place with respect to their seniority.
It also ordered that
they were entitled to increments which they would have got if B
they were promoted alm;ig with the two persons namely, Manerikar
and Dhume.
The appellant has attacked the correctness of this award on two
main grounds.
In the first place it is urged that on the face of
it the award cannot be sustained for there were only two promoC
tions by the management and the tribunal has ordered the management to promote five more persons.
It is urged that the tribunal
could not do this even if it found that the promotions wete not
justified.
In any event promotion of Manerikar could not be
assailed as he was No. 2 in seniority and only the promotion of
Dhume could be assailed.
In any case it is urged that there was
D
no occasion to promote seven persons from the date from which
these two promotions were made, for on that date there were
only two promotions to be made and what in effect the tribunal
had done is to make seven promotions on that date.
Secondly,
it is urged that the tribunal's finding that there were ma/a fides and
victimisation is based on no evidence.
Further it is urged that E
even if the tribunal found that there was case for interference with
the promotions made, the tribunal should have set aside the promotion of Dhume for Manerikar in any case was entitled to promotion being No. 2 in the seniority list and should have directed
the appellant to promote another person in place of Dhume after F
considering all relevant factors.
We are of opinion that both the contentions raised on behalf of
the appellant are correct.
Generally speaking, promotion is a
management function; but it may' be recognised 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 G
have been so superseded on account of ma/a fides or victimisation.
Even so after a finding of ma/a fides or victimisation, 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 ma/a fides or of victimisaH
tion, the proper course for it to take is to set aside the promotions
and ask the management to consider the cases of superseded
l
•
BROOKE BOND LTD. V. WORKMEN (Wanchoo, J.)
469
A employees and decide for itself whom to promote, except of course
the person whose promotion has been set aside by the tribunal.,
B
Bearing these principles in mind we now turn to the contentions raised before us.
In the first place only two promotions
were made on April 1, 1959.
Of these Manerikar was No. 2 and
he in any case would have been promoted even if promotions went
only by seniority.
So it was only the case of Dhume which
required serious consideration by the tribunal.
Assuming that the
tribunal came to the conclusion that Dhume's promotion suffered
from the infinnity of victimisation or mala fides that promotion
alone should have been set aside and the management directed to
C promote some-one-else in his place after considering the records of
all senior employees worth consideration.
But there was in our
opinion no justification for the tribunal to promote five persons in
addition to the two promoted by the management and to make
those promotions retrospective from April 1, 1959.
It is obvious
that only two promotions were made on April 1, 1959 and the
D
tribunal could not impose seven promotions on the management
as from that date.
The order therefore passed by the tribunal
promoting fiye other employees is clearly wrong.
It,is true that
one term of reference was with respect to the relief to be given
to the workmen who were superseded. That however did not mean
that tbe tribunal should promote five more persons from the same
E
date as the two promoted by the management.
The order of the
tribunal therefore promoting these five persons in addition to the
two already promoted by the management must be set aside on
this ground alone.
•
Turning now to the question of mala fides, the only ground
F which the tribunal has given for coming to that conclusion is that
the management made a delay of 11 weeks in giving its reply to
the workmen's query for reasons for their supersession,
We are
of opinion that this is hardly a reason for coming to the conclusion
that the promotions were mala fide.
Another reason given by
the tribunal is that the replies were evasive and vague,
Now the
G reply was that the promotions were made after considering the
merits, personality and suitability of the employees concerned. We
cannot agree that these reasons amount to evasive replies for after
all promotion will depend upon merit, suitability and personality
of the persons concerned.
Nor do we think that initiative and
R
efficiency which were later emphasised by the management before
the tribunal as among the grounds for promotion can be said to
be an after-thought, for initiative and efficiency must be deemed
to be included in the word "merit" which appeared in the replies
470
SUPREME COURT REPORTS
(1966] 2 S.C.R.
,given by the management.
There was thus in our opinion no
A
basis whatsoever for the tribunal to come to the conclusion that
!he promotions were ma/a fide.
Turning now to the question of victimisation, we have already
:said that there is no clear finding of the tribunal that there was
victimisation.
But it appears to be suggested in para. 53 of the
B
.award that the tribunal felt that there was victimisation. Of the
.six superseded employees we find that only one was an official of
4
the union while the other five were merely members just like
1
Manerikar.
Dhume it appears was not a member of the union.
But there was no evidence to show that there were any strained
relations between the management and these six employees on C
account of their trade union activities.
We have already said that
five of them were ordinary members of the union like Manerikar
and only one Balgi was an official of the union.
But there is
nothing to show that because of that there was any bad blood
between Balgi and the management.
We are therefore of the
opinion that there is no evidence worth the name on which the
D
tribunal could have come to the conclusion that these two promotions were. as a result of victimisation of those persons who were
superseded.
The management had stated in its reply that it had considered
all the relevant factors and had also considered the cases of all
E
senior employees due for promotion before promoting these two
persons.
We cannot see how the tribunal could come to the conclusion merely from the fact that there was some delay in giving
the reply to the query as to the reasons that the management had
not considered the relative merits of all senior employees before
making the promotion.
We have no doubt that the finding of F
the tribunal that the relative merits were not considered or that
there were ma/a {ides or that there was victimisation are based on
no evidence and must therefore be set aside.
Once that concluc
sion is reached there was in our opinion no reason for the tribunal
to interfere with the promotions made hy the management.
We therefore allow the appeal, set aside the award of the tri·
G
bunal and hold that the promotions of Y. S. Manerikar and P. D.
Dhume were justified.
No relief is therefore due to the other six
employees. In the circumstances We pass no order as to costs.
Appeal allowed.