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In 2007 the trade union preferred a complaint under Section 28 of the Maharashtra Act for unfair labour practices,-“28. Procedure for dealing with complaints relating to unfair labour practices: (1) Where any person has engaged in or is engaging in any unfair labour practice, then any union or any employee or any employer or any Investigating Officer may, within ninety days of the occurrence of such unfair labour practice, file a complaint before the Court competent to deal with such complaint either under section 5, or as the case may be, under section 7, of this Act: Provided that, the Court may entertain a complaint after the period of ninety days from the date of the alleged occurrence, if good and sufficient reasons are shown by the complainant for the late filing of the complaint.”= “…If an employer deliberately uses his power of promoting employees in a manner calculated to sow discord among his workmen, or to undermine the strength of their union, he is guilty of unfair labour practice.”- We allow the appeal and set aside the order of the High Court in which has merged the order of the Labour Court. However, we make it clear that in implementing the scheme the management of the appellant-company must not bring about any retrenchment of the workmen nor should the workmen be rendered surplus in any way.

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 REPORTABLE

 IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NO.8607 OF 2011

 (Arising out of SLP(C) No.17414 of 2010) 

Siemens Ltd. & another .....Appellant(s)

 - Versus -

Siemens Employees Union & another ....Respondent(s)

 J U D G M E N T

GANGULY, J.

1. Leave granted.

2. This appeal has been preferred from the order dated 

 12th March, 2010 of the Division Bench of the Bombay 

 High Court in Letters Patent Appeal No. 30/2010. 

 1

3. The appellant no. 1 is a public limited company 

 having its registered office at 130, Pandurang 

 Budhkar Marg, Dr. Annie Besant Road, Worli, Mumbai 

 and is engaged in the business of manufacturing 

 switchgears, switchboards, motors, etc., of its many 

 factories, one is located at Thane-Belapur Road, 

 Kalwe, Thane, and houses the plant that manufactures 

 switchboards for the company. The appellant employs 

 about 2200 employees. The appellant no. 2 is the 

 Chief Manager (Personnel) of the said Company.

4. Respondent no. 1, the contesting respondent, is a 

 registered trade union of the workers employed by 

 the appellant no.1. It is recognized under the 

 provisions of the Maharashtra Recognition of Trade 

 Unions and Prevention of Unfair Labour Practices 

 Act, 1971 (hereinafter, referred to as the 

 Maharashtra Act). Respondent no. 2, the pro forma 

 respondent, represents the Switchboard Unit of the 

 company, and is responsible for the routine 

 functioning of the plant at Kalwe.

 2

5. In 2007 the trade union preferred a complaint under 

 Section 28 of the Maharashtra Act for unfair labour 

 practices, jointly and severally against the 

 company, its Chief Manager for personnel (appellant 

 no. 2) and its Works Manager (respondent no.2) 

 before the learned Industrial Court, Thane, 

 Maharashtra. The trade union impugned a notification 

 dated 3rd May, 2007 issued by the company for its 

 workmen employed in its factory located in Kalwe, 

 whereby applications were invited to appear for a 

 selection process to undergo a two year long period 

 as an `Officer Trainee'. This training was to be in 

 the fields of manufacturing, quality inspection and 

 testing, logistics and technical sales order 

 execution. The notification stated that after the 

 successful completion of the said two years, the 

 trainees were to be designated as `Junior Executive 

 Officers'. The case of the respondent trade union is 

 that though the designation of `Junior Executive 

 Officer' was that of an officer belonging to the 

 management cadre, in fact it was merely a 

 3

 nomenclature, with negligible content of managerial 

 work. It was urged that the job description of a 

 Junior Executive Officer was same as that of a 

 workman, with little additional duties. Resultantly, 

 the Junior Executive Officers of the factory were 

 now to do the very same work that had always been 

 done by the workmen.

6. It was submitted that such a move was, in effect an 

 alteration in the conditions of service of the 

 workmen, as some vacancies available for workmen in 

 the switch board unit were to be reserved for 

 officers from the management cadre. Resultantly 

 there would have been a reduction in the job 

 opportunities for workers. According to the trade 

 union, any such change could not have been affected 

 without giving the workmen a prior notice to such 

 effect in terms of Section 9A of the Industrial 

 Disputes Act, 1947. In this regard, the trade union 

 referred to an agreement entered into between itself 

 and the company in 1982. The said agreement, titled 

 4

 `Rationalization and Transport Settlement' has 

 clause (7). The said clause is as follows:-

 "7. That employees or officer or staff 

 categories shall not be asked to do normal 

 production work."

7. The union also referred to clause (12) of the 

 agreement which is as follows:-

 "12. That this settlement shall not be 

 utilized for eliminating the further 

 employment potential or promotional 

 opportunities to the existing workmen."

8. Clause (16) is set out herein below:

 "16. This agreement shall come into force 

 with effect from 01.01.1981 except Clause 

 No.14 which shall have effect from 

 16.11.1982 only and shall remain in 

 operation until it is changed in accordance 

 with the provisions of law.

9. Clause (7) ensures that the job opportunities for 

 workers shall not be reduced by the company by 

 making its managerial staff perform the workmen's 

 5

 job. Clause (16) ensured the perpetuity of this 

 Settlement until expressly overruled by a subsequent 

 Settlement. It was submitted by the trade union that 

 the change sought to be brought about by the company 

 by its notification dated 3rd May, 2007, was in 

 violation of clause (7). The trade union thus 

 complained that the company and its two officers 

 resorted to unfair labour practices mentioned in 

 items 9 and 10 of Schedule IV of the Maharashtra 

 Act, and had thereby violated the mandate of Section 

 27 of the Maharashtra Act.

10. It was further submitted that even if the said 

 Settlement was said to be non-binding, the impugned 

 move was in violation of Section 9A of the 

 Industrial Disputes Act insofar as the affected 

 workmen had not been given any notice as 

 contemplated by clause (a) of Section 9A read with 

 Entry 11 of the Fourth Schedule of the Industrial 

 Disputes Act. 

 6

11. The Maharashtra Act was the first enactment of its 

 kind in the country to have been legislated by a 

 State for the prevention of unfair labour practices 

 and consequent victimization. It was a comprehensive 

 legislative device to weed out unfair labour 

 practices, not only on the part of the employers, 

 but also on the part of trade unions and the 

 workmen. Chapter VI of the Act is titled `Unfair 

 Labour Practices'. Section 26, the first section of 

 this chapter, defines an unfair labour practice for 

 the purposes of the Act. It reads as under:

 "26. Unfair labour practices: In this Act, 

 unless the context requires otherwise, 

 `unfair labour practices' mean any of the 

 practices listed in Schedules II, III and 

 IV."

12. Section 27 prohibits `unfair trade practices'. 

 The said Section is as follows:-

 "27. Prohibition on engaging in unfair 

 labour practices: No employer or union and 

 no employees shall engage in any unfair 

 labour practice."

 7

13. Section 28 deals with the procedure for preferring 

 a complaint against an unfair labour practice. 

 Clause (1) of this section reads as follows:

 "28. Procedure for dealing with complaints 

 relating to unfair labour practices: (1) 

 Where any person has engaged in or is 

 engaging in any unfair labour practice, then 

 any union or any employee or any employer or 

 any Investigating Officer may, within ninety 

 days of the occurrence of such unfair labour 

 practice, file a complaint before the Court 

 competent to deal with such complaint either 

 under section 5, or as the case may be, 

 under section 7, of this Act:

 Provided that, the Court may entertain 

 a complaint after the period of ninety days 

 from the date of the alleged occurrence, if 

 good and sufficient reasons are shown by the 

 complainant for the late filing of the 

 complaint."

14. In the instant case the complaint has been filed 

 under Section 28 read with Section 30(2) of the 

 Maharashtra Act by the respondent-union and in the 

 instant complaint the respondent-union alleged that 

 the management is indulging in unfair labour 

 practices under item Nos.9 and 10 of Schedule IV of 

 the Maharashtra Act (para 3(a) of the complaint). 

 Schedule IV of the Maharashtra Act categorizes the 

 general unfair labour practices on the part of the 

 8

 employers. Under Schedule IV, item Nos.9 and 10, in 

 respect of which unfair labour practices have been 

 alleged, provide as follows:

 "9. Failure to implement award, settlement 

 or agreement.

 10. To indulge in act of force or 

 violence."

15. In paragraph 3 (b) of the complaint it has been 

 alleged that the respondent-union is anticipating 

 that the management is likely to reduce the work of 

 the workmen category and give it to the newly 

 recruited officer trainees. It has also been alleged 

 that by doing so the management is acting in 

 violation of Section 9(A) of Industrial Disputes 

 Act, 1947 by bringing about a change in service 

 condition without giving any notice. In so far as 

 this allegation in the complaint is concerned, the 

 order of Industrial Court, Thane, shows that it did 

 not find that the management was in any way trying 

 to change the condition of the service or it was 

 9

 acting in violation of the provisions of Section 

 9(A).

16. The precise findings of the Labour Court, Thane 

 while dealing with the complaint of the Union about 

 change of condition of service under Section 9(A) of 

 the Industrial Disputes Act are as under:

 "......Considering the evidence that even 

 earlier also, the company has reduced the 

 strength of the employees in various 

 departments, they were transferred from one 

 section to other section, the promotions are 

 given from the category of workmen to the 

 category of officers and therefore, it 

 cannot be said that there's any breach under 

 S.9A of the Industrial Dispute Act, 1947."

17. Therefore, the complaint of the respondent-union, 

 which ultimately found favour with Industrial Court 

 as unfair labour practice, is the attempt made by 

 the management in not implementing clause 7 of 

 settlement.

 10

18. In this aspect the exact finding of the Labour 

 Court is as follow: 

 "......Considering the nature of work to be 

 performed by these Officer's Trainee, 

 certainly it shows that there's breach of 

 clause 7 of the Settlement dated 16.11.1982. 

 As such, the Complainant Union has succeeded 

 to prove the unfair labour practice under 

 Item 9 of Schedule IV of the Act."

19. Before proceeding further in this matter, this 

 Court proposes to examine the concept of unfair 

 labour practice and the way it has been dealt with 

 under the Maharashtra Act and also under the ID Act. 

 Any unfair labour practice within its very concept 

 must have some elements of arbitrariness and 

 unreasonableness and if unfair labour practice is 

 established the same would bring about a violation 

 of guarantee under Article 14 of the Constitution. 

 Therefore, it is axiomatic that anyone who alleges 

 unfair labour practice must plead it specifically 

 and such allegations must be established properly 

 before any forum can pronounce on the same. It is 

 also to be kept in mind that in the changed economic 

 11

 scenario, the concept of unfair labour practice is 

 also required to be understood in the changed 

 context. Today every State, which has to don the 

 mantle of a welfare state, must keep in mind that 

 twin objectives of industrial peace and economic 

 justice and the courts and statutory bodies while 

 deciding what unfair labour practice is must also be 

 cognizant of the aforesaid twin objects. 

20. Unfair labour practice, for the first time, was 

 defined and codified in the Maharashtra Act referred 

 to hereinabove. But in so far as the Industrial 

 Disputes Act, Central Law, is concerned, unfair 

 labour practice was codified and brought into force 

 by the Amending Act, 46 of 1982 with effect from 21st 

 August 1984. 

21. Clause (ra) of Section 2 of Industrial Disputes Act 

 defines unfair labour practice to mean the practices 

 specified in the fifth schedule and the fifth 

 schedule was also inserted by the said Amending Act. 

 12

The fifth schedule has two parts. The first part 

refers to unfair labour practices on the part of the 

employers and trade union of employers and the 

second part refers to unfair labour practices on the 

part of the workmen and trade union of workmen. 

However, there is some difference between the 

provisions relating to unfair labour practices in 

the Maharashtra Act and those in Central Act i.e. 

Industrial Disputes Act. The Industrial Disputes Act 

prohibits an employer or workmen or a trade union 

from committing any unfair labour practice while the 

Maharashtra Act prohibits an employer or union or an 

employee from engaging in any unfair labour 

practice. The prohibition under the Industrial 

Disputes Act is aimed at preventing the commission 

of an unfair labour practice while the Maharashtra 

Act mandates that the concerned parties cannot be 

engaged in any unfair labour practice. The word 

`engage' is more comprehensive in nature as compared 

to the word `commit' [See Hindustan Lever Ltd. v. 

Ashok Vishnu Kate & others reported in 1995 (6) SCC 

326 at para 37, page 345 of the report]. 

 13

22. In the instant case no allegation of victimization 

 has been made by the respondent-union in its 

 complaint. In the absence of any allegation of 

 victimization it is rather difficult to find out a 

 case of unfair labour practice against the 

 management in the context of the allegations in the 

 complaint. It is nobody's case that the management 

 is punishing any workmen in any manner. It may be 

 also mentioned here that no workmen of the 

 appellant-company has made any complaint either to 

 the management or to the union that the management 

 is indulging in any act of unfair labour practice.

23. Even then the Labour Court, Thane, has come to 

 certain findings of unfair labour practice against 

 the management and which have been referred to 

 above.

24. The appellant-company challenged the finding of the 

 Labour Court before the High Court by filing a writ 

 14

petition. The learned Single Judge in his judgment 

noted that the main grievance of the respondent-

union was that in the process of reorganizing its 

work pattern the management of the appellant-company 

was reducing the number of posts of workmen and some 

of the work which were done by the workmen are to be 

done by the officers and the grievance of the 

respondent-union was that this was contrary to 

clause 7 of settlement dated 16th November, 1982 

(hereinafter `the said settlement'). Ultimately, 

the learned Single Judge came to a finding that 

though the post which is introduced by the 

management is named Junior Executive, the said post 

was different from the post of Junior Executive 

which was in existence and after saying so the 

learned Single Judge held, "the Tribunal has rightly 

held that this amounted to unfair labour practice 

under item 9 of Schedule IV of the said Act" (para 

9). The learned Single Judge also noted that even 

though promoted as Junior Executive the present 

workers will be expected to do a part of the work of 

the workman along with some additional work. This, 

 15

 according to the learned Single Judge, was in breach 

 of clause 7 of the said settlement.

25. The appellant-company also challenged the said 

 order of the learned Single Judge before the 

 Division Bench. The Division Bench came to a 

 finding that whatever work is given to the 

 officers/trainees in addition to the present work 

 was the work of a workman. So even if the workmen 

 are promoted they will be doing the job of a workman 

 with some additional work and the Division Bench 

 also came to the same finding that this will be in 

 violation of clause 7 of the agreement and thus 

 considered it unfair labour practice. With these 

 findings, the Division Bench affirmed the finding of 

 the learned Single Judge. 

26. Mr. K.K. Venugopal, learned Senior Counsel 

 appearing on behalf of the respondent-union urged 

 that in exercise of its powers under Article 136 

 this Court normally does not interfere with 

 16

 concurrent finding and, therefore, should not 

 interfere with the concurrent finding in the instant 

 case.

27. It is true that this Court normally does not upset 

 a concurrent finding but there is no such inflexible 

 rule. The jurisdiction of this Court under Article 

 136 is a special jurisdiction. This is clear from 

 the text of the Article itself which starts with a 

 non-obstante clause. This is a jurisdiction 

 conferring residual power on this Court to do 

 justice and is to be exercised solely on discretion 

 to be used by this Court to advance the cause of 

 justice. This Article does not confer any right of 

 appeal on any litigant. But it simply clothes this 

 Court with discretion which is to be exercised in an 

 appropriate case for ends of justice. Therefore, 

 there can be no hard and fast rule in the exercise 

 of this jurisdiction. Just because the findings 

 which are assailed in a special leave petition are 

 concurrent cannot debar this Court from exercising 

 17

 its jurisdiction if the demands of justice require 

 its interference. In a case where the Court finds 

 that the concurrent finding is based on patently 

 erroneous appreciation of basic issues involved in 

 an adjudication, the Court may interfere. In the 

 instant case the Court proposes to interfere with 

 the concurrent finding for the reasons discussed 

 hereinbelow. 

28. Admittedly, the finding of unfair labour practice 

 against the appellant-company by the High Court and 

 the Labour Court is based on the premise that the 

 appellant-company acted in breach of clause 7 of the 

 agreement. It is well known that an industrial 

 settlement is entered into between the management 

 and labour for maintaining industrial peace and 

 harmony. Therefore, any attempt by either the 

 management or the workmen to violate such a 

 settlement may lead to industrial unrest and amounts 

 to an unfair labour practice. Here the charge of 

 unfair labour practice against the appellant-company 

 18

is that it has violated item 9 of Schedule IV of the 

Maharashtra Act. Item 9 has been set out 

hereinabove and the purport of item 9 is that any 

failure to implement an award or settlement or 

agreement would be an unfair labour practice. In 

the instant case while considering clause 7 of the 

said settlement the Courts have not taken into 

consideration clause 12. Both clauses 7 and 12 have 

been set out hereinabove. If a harmonious reading 

is made of clauses 7 and 12 it will be clear that 

clause 7 cannot be given an interpretation which 

makes clause 12 totally redundant. Clause 7 

contains a prohibition against the employees or 

officers or members of the staff of the appellant-

company from doing normal production work. But that 

cannot be read in such a manner as to nullify the 

purport of clause 12 which reserves the promotional 

employment potential of existing workmen. So in the 

instant case if by way of rearrangement of work, the 

management of the appellant-company gives 

promotional opportunity to the existing worker that 

does not bring about any violation of clause 7 of 

 19

 the said settlement rather such a rearrangement of 

 work will be in terms of clause 12. At the same 

 time if some of job of executive officers are the 

 same as is done by the existing worker that does not 

 bring about such a violation of clause 7 as to 

 constitute unfair labour practice. 

29. What is restricted under clause 7 is asking the 

 officers to do the normal production work. There is 

 no blanket ban in asking the officers from doing any 

 production work. Therefore, both clause 7 and 

 clause 12 of the said settlement must be reasonably 

 and harmoniously construed to make it workable with 

 the evolving work culture of the appellant-company 

 in facing the new challenge in the emerging economic 

 order which has changed considerably from 1982. 

 Even if we assume that 1982 agreement still subsists 

 even then when a challenge is made of unfair labour 

 practice on the basis of violation of a clause of 

 1982 agreement on the basis of a complaint filed in 

 2007, the Labour Court and the High Court must 

 20

consider the said agreement reasonably and 

harmoniously keeping in mind the vast changes in 

economic and industrial scenario and the new 

challenges which the appellant-company has to face 

in the matter of reorganizing work in order to keep 

pace with the changed work culture in the context of 

scientific and technological development. This 

Court also finds that while adjudicating on the 

complaint of the union both the Labour Court and the 

High Court should have taken into consideration all 

subsequent settlements between the management of the 

said company and the union in 1985, 1988, 1992, 1997 

and 2004. Both the Labour Court and the High Court 

failed to notice that in its complaint the union has 

accepted that they are not objecting to the 

promotion being granted to the workers. However, 

the said stand of the workers union is not 

consistent with the nature of the complaint filed 

before the Labour Court. 

 21

30. The admitted facts are, there are 89 vacancies in 

 the category of officers and 154 workers have 

 applied. Therefore, everybody who has applied cannot 

 be promoted, only a certain percentage of the 

 workers applying can be promoted. Both the Labour 

 Court and the High court failed to take into 

 consideration that the workers voluntarily applied 

 for the promotion scheme pursuant to its 

 introduction. Nowhere has it been alleged by the 

 workers that any force or pressure was brought upon 

 them to apply. In the background of these facts the 

 question is when the workers applied on their own to 

 a scheme of promotion introduced by the management 

 and they do not make any complaint either to the 

 union or to the management in respect of the 

 introduction of the scheme, can it be said that by 

 introducing a promotional scheme the management is 

 indulging in unfair labour practice? The union is 

 supposed to represent the interests of the workers. 

 When the workers themselves do not consider the 

 scheme as unfair to them, can the union take upon 

 them the burden of saying that the scheme is unfair? 

 22

 In the instant case the respondent-union is 

 unfortunately seeking to do that. Both the Labour 

 Court and the High Court have failed to appreciate 

 this basic fundamental issue in their adjudication 

 and have, therefore, come to an obviously erroneous 

 finding. Apart from the aforesaid clear factual 

 position legally also the management of the company 

 is not prevented from rearranging its business in 

 the manner it considers it best, if in the process 

 it does not indulge in victimisation. 

31. Reference in this connection may be made to a 

 decision of this Court in Parry & Co. Ltd. v. 

 P.C.

 Pal & ors., reported in AIR 1970 SC 1334, a 

 three-Judge Bench of this Court held as follows:-

 "It is well established that it is 

 within the managerial discretion of an 

 employer to organize and arrange his 

 business in the manner he considers best. 

 So long as that is done bona fide it is not 

 competent of a tribunal to question its 

 propriety. If a scheme for such 

 reorganization results in surplusage of 

 employees no employer is expected to carry 

 the burden of such economic dead weight and 

 retrenchment has to be accepted as 

 inevitable, however unfortunate it is..."

 23

 (para 14, page 1341 of the report)

32. In the instant case no malafide has been alleged 

 against the appellant-company. Nor it is anybody's 

 case that as a result of reorganization of its 

 working pattern by introducing the scheme of 

 promotion any person is either retrenched or is 

 rendered surplus. 

33. In the given situation, this Court cannot 

 appreciate how by introducing the scheme of 

 promotion to which the workers overwhelmingly 

 responded on their own can it be said that the 

 management has indulged in unfair labour practice. 

34. Similarly, in the case of Hindustan Lever Ltd. v. 

 Ram Mohan Ray and others reported in 1973 (4) SCC 

 141, another three-Judge Bench of this Court held 

 that nationalization and standardization of work by 

 24

 the management by itself would not fall under item 

 10 of Schedule IV of Industrial Disputes Act unless 

 it is likely to lead to retrenchment of workers. 

 Relying on the decision in Parry (supra) this Court 

 held in Hindustan Liver (supra) that since the 

 reorganization has not brought about any change 

 adversely affecting the workers and there has been 

 no retrenchment, similar principles are applicable 

 here. 

35. Mr. K.K. Venugopal, learned Senior Counsel appearing 

 for the union in support of his submission relied on 

 a decision of this Court in the case of Arkal Govind 

 Raj Rao v. Ciba Geigy of India Ltd., Bombay reported 

 in 1985 (3) SCC 371. In that case the question 

 which was considered by this Court was where an 

 employee was performing multifarious duties and the 

 issue is whether he is a workman or not the test to 

 be applied is what was the primary, basic or 

 dominant nature of the duties for which the workman 

 was employed. This Court came to the conclusion 

 25

 that when the primary and basic duties of an 

 employee are clerical but certain stray assignments 

 are given to him to create confusion, the Court may 

 remove the gloss to find out the reality. 

36. In Arkal Govind Raj (supra) the aforesaid question 

 arose out of the termination of service of the 

 appellant Govind Raj as his termination led to an 

 industrial dispute. In that dispute numerous 

 primary objections were raised by Ciba Geigy and one 

 of them was that Govind Raj was not a workman within 

 the meaning of Section 2(s) of the Industrial 

 Disputes Act. In that context, this Court, after 

 analyzing the evidence, came to a finding that 

 Govind Raj was a workman within the meaning of the 

 Act and held that neither the Labour Court nor the 

 High Court came to a correct finding. With that 

 finding this Court remanded the matter to the Labour 

 Court for deciding the dispute in accordance with 

 its judgment. The said decision has no bearing on 

 the issues with which we are concerned in this case. 

 26

 It is well known that the ratio of a decision has to 

 be appreciated in its context. Going by that 

 principle, we do not find that the decision in Arkal 

 Govind Raj (supra) is of any assistance to the 

 respondents. 

37. Mr. Venugopal also relied on the commentary of K.D. 

 Srivastava on Law Relating to Trade Unions and 

 Unfair Labour Practices in India (Fourth Edition). 

 The learned counsel relied on a decision of the 

 Allahabad High Court in the case of L.H. Sugar 

 Factories and Oil Mills (P) Ltd., v. State of U.P., 

 (1961) 1 LLJ 686 (HC All). Some of the observations 

 made in the said judgment which have been quoted in 

 the commentary of K.D. Srivastava are as follows:-

 "...If an employer deliberately uses his power 

 of promoting employees in a manner 

 calculated to sow discord among his workmen, 

 or to undermine the strength of their union, 

 he is guilty of unfair labour practice."

 (page 402)

 27

38. In the instant case no malafide has been alleged by 

 the union against the appellant-company in the 

 matter of reorganization of its work. It is also 

 nobody's case that as a result of the reorganization 

 of the work any attempt is made by the appellant-

 company to create discord amongst the workmen so as 

 to undermine the strength of the union. Apart from 

 that the facts in the case of L.H. Sugar Factories 

 (supra) are totally different. In L.H. Sugar 

 Factories (supra) the company wrongfully deprived 

 ten workers of their promotion to the post of 

 driver-cum-assistant fitter while preferring eleven 

 other workmen over them. This led to an industrial 

 dispute. Therefore, those observations of Allahabad 

 High Court in a totally different fact situation are 

 not attracted in the present case to make out a case 

 of unfair labour practice. We fail to appreciate 

 the relevance of the aforesaid decision to the facts 

 of the present case. 

 28

39. At the same time it is not the case of the 

 respondent-union that its recognition is in any way 

 being withdrawn or tinkered with. Nor is it the 

 case of the respondent-union that it is losing its 

 power of collective bargaining. It may be that the 

 number of workmen is reduced to some extent pursuant 

 to a promotional scheme to which the workmen readily 

 responded. But no union can insist that all the 

 workmen must remain workmen perpetually otherwise it 

 would be an unfair labour practice. Workmen have a 

 right to get promotion and improve their lot if the 

 management offers them with a bona fide chance to do 

 so. In fact if the order of the High Court is 

 upheld, the same will go against the interest of 

 erstwhile workmen of the appellant-company who have 

 responded to the scheme of promotion. 

40. For the reasons aforesaid, we are of the view that 

 the High court failed to have a correct perspective 

 of the questions involved in this case and obviously 

 came to an erroneous finding. 

 29

41. We allow the appeal and set aside the order of the 

 High Court in which has merged the order of the 

 Labour Court. However, we make it clear that in 

 implementing the scheme the management of the 

 appellant-company must not bring about any 

 retrenchment of the workmen nor should the workmen 

 be rendered surplus in any way. 

42. The appeal is, thus, allowed. There will be no 

 order as to cost. 

 .......................J.

 (D.K. JAIN)

 .......................J.

New Delhi (ASOK KUMAR GANGULY)

October 12, 2011 30

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