JUDGMENT
N.K. Sodhi, J.
1. Punjab State Tubewell Corporation Class-IV Employees Union (for short, the Union) served a demand notice on the management alleging therein that one Shri Nitya Nand who was working as a peon had been ignored in the matter of promotion to the post of Ferro Printer while persons junior to him and with lesser qualifications had been promoted. The names of four persons bad been mentioned who were allegedly junior to Nitya Nand and had been promoted. What was demanded from the management was that Shri Nitya Nand should be deemed to have been promoted to the post of Ferro Printer from the date when his juniors were promoted. Another demand that was made was that certain Class-IV employees who fulfilled the qualifications for promotion to the post of Clerks had been wrongly superseded by their juniors and that all those seniors who fulfilled the qualifications be deemed to have been promoted as Clerks from the date when their juniors were so promoted. This demand notice was referred to the Labour Court-respondent for adjudication under Section 10(1)(c) of the Industrial Dispute Act 1947 (hereinafter called the Act).
2. The management contested both the demands and it was admitted that Nitya Nand was working as a peon. It was denied that he was wrongly ignored for promotion to the post of Ferro Printer. It was pleaded that there was no channel of promotion from the post of peon to that of Ferro Printer in the bye laws of the Corporation which governed the service conditions of its employees. The demand raised by the Union was considered and for this reason it was found unjustified and the same was rejected. As regards the promotion to the post of Clerks from amongst class-IV employees, the case of the management was that there were no bye-laws regulating such promotions and that 10 per cent quota had been fixed for such promotions which already stood exhausted.
3. The Labour Court recorded evidence of the parties and on a consideration thereof it found that the management had promoted Mahender Pal Nachhatar Singh, Balbir Kumar, Sada Ram, Rajnish Kumar and Sadi Mohd. from the Post of peon to the post of Ferro Printers. The Labour Court also relied on a letter dated 12.4.1990 issued by the Divisional Engineer (establishment) to the Superintending Engineers of different Circles whereby they were called upon to intimate the names of Class-IV employees working in their circles so that they could be considered for promotion as Ferro Printers. This circular letter is Exhibit AW2/A on the record of the Labour Court. The Labour Court came to the conclusion that the stand of the management that there were no promotional avenues from the post of peon to that of Ferro Printer was false and that several persons had been so promoted. A finding was, thus, recorded that there was a promotional channel for the peons to be promoted as Ferro Printers. It was also found that Shri Nitya Nand had been wrongly ignored and that two persons namely, Balbir Kumar and Sada Nand who were junior to him had been promoted as Ferro Printers, in the year 1983. The promotion of these two persons was held to be illegal and it was declared that Nitya Nand Would be deemed to have been promoted on the day when his juniors were promoted. As regards the other demand made by the Union, it was found that junior persons had been promoted to the post of Clerks while seniors had been ignored. A direction was, therefore, issued to set aside the promotions of all the junior persons and to promote the seniors against 10 per cent quota to be filled up from amongst the peons. The reference was accordingly decided in favour of the Union and against the management and the demands were held to be genuine. It is this award of the Labour Court that has been challenged by the management in the present petition filed under Article 226 of the Constitution.
4. I have heard counsel for the parties at length and perused the impugned award. It could not be disputed by learned counsel for the parties that several persons had been promoted as Ferro Printers from the post of a peon and that two persons, namely, Balbir Singh and Sada Nand who had been so promoted were junior to Nitya Nand whose case had been espoused by the Union. In my opinion, the Labour Court was not justified in setting aside the promotion of these two persons as they were not before it. It was open to the Labour Court to have impleaded them as parties in exercise of its powers under sub-section (3) of Section 16 of the Act and then decide the matter but it did not to so. In the absence of those persons their promotions could not be set aside. This part of the award setting aside their promotion cannot, therefore, be sustained. The Labour Court had declared that Nitya Nand shall be deemed to have been promoted from the day when his juniors were promoted as Ferro Printers. It cannot be denied that the management in the instant case is a government company and is a ‘State’ for purposes of Article 12 of the Constitution and it cannot, therefore, violate the rights guaranteed to Nitya Nand under Articles 14 and 16 of the Constitution. It has also been found by the Labour Court that persons junior to Nitya Nand had been promoted as Ferro Printers. The direction given by the Labour Court that he too will be deemed to have been promoted with effect from the date when his juniors were promoted is unexceptionable and just and fair in the circumstances. This part of the direction cannot, therefore, be interfered with.
5. What was seriously objected to by Mr. Amar Vivek, learned counsel for the petitioner was that the Labour Court was not justified in recording a finding that there was a channel of promotion from the post of peon to that of a Ferro Printer. There is merit in this contention. It is true as found by the Labour Court that several persons had been promoted as Ferro Printers from the post of a peon but in my opinion, all those promotions were irregular and contrary to the bye-laws of the Corporation relating to the service conditions of its employees. A copy of the byelaws was exhibited as Ml on the record of the Labour Court. A bare perusal of these bye-laws would indicate that there is no channel of promotion from the post of a peon to that of a Ferro Printer, There is only direct recruitment to the post of Ferro Printer/Azo Printer and there is no mode of appointment by promotion. Since the promotion of all those who had been promoted as Ferro Printers was not under challenge before the Labour Court, there is no occasion for this Court to set aside those promotions and nor is it feasible to do so at this stage.
6. Now, I come to the second demand that was raised by the union. The Labour Court has given a general direction setting aside the promotion of these employees who were junior without specifying their names and a direction had been issued to the management to fill up 10 per cent quota according to seniority and promote these who are eligible in terms of the bye-laws. Learned counsel for the petitioner did not seriously challenge this finding/direction issued by the Labour Court and the same need not be examined any further.
7. For the reasons recorded above, the writ petition, is partly allowed and the impugned award of the Labour Court modified and it must be held that there is no channel of promotion from the post of a peon to the post of Ferro Printer/Azo Printer. The direction whereby the promotion of Balbir Kumar and Sada Nand was set aside without impleading them as parties is quashed However, the direction regarding promotion of Nitya Nand to the post of Ferro Printer from the date his juniors were promoted is sustained. Parties are left to bear their own Costs.