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Sambasiva Rao, J.—One C. Subramanyam, who was a junior salesman in the service of the Brooke Bond India Limited, was promoted by the Management as Controller. The workmen of the Brooke Bond India Limited, Visakhapatnam branch, raised a dispute that the promotion was improper as it was made overlooking the claims of several senior salesmen with merit and ability. The Government of Andhra Pradesh referred the matter as an industrial dispute under Sec. 10(1) (d) of the Industrial Disputes Act, 1947 (hereinafter referred to as ''the Act'') to the Industrial Tribunal, Hyderabad The reference was on the following questions: (1) Whether the action of the management of Brooke Bond India Limited, Visakhapatnam branch in having promoted Sri C. Subramanyam a junior salesman transferred on special duty from Vijayawada branch ignoring the claims of senior salesman working in Visakhapatnam branch is justified : and (2) if not, what should be the norms of promotion to the post of Controllers and to what relief the salesmen belonging to the Brooke Bond Employees Union are entitled?
According to the claim filed before the Tribunal by the Secretary of the Visakhapatnam Union, C. Subramanyam was a Junior salesman at Vijayawada. He was transferred to Visakhapatnam branch as a salesman on special duty. Subsequently he was promoted to the post of the Controller, thereby superseding several senior and competent salesmen not only in the Visakhapatnam branch but also Vijayawada Branch. It was maintained that one of the senior salesmen of the Visakhapatnam branch with requisite qualifications alone should have been promoted as Controller and that the promotion of Subramanyam was unjustified and illegal. A direction was also sought from the Industrial Tribunal that the post of the Controller should, in future, be filled up by senior salesmen having no adverse record and that Subramanyam should be reverted back to the post of salesman. 2. In their counter, the management contended that the order of reference was illegal and void and the Tribunal had no jurisdiction to adjudicate upon the dispute. The petition of the reference, which related to fixation of norms for promotion, was beyond the scope of the Tribunal. Fixing the guidelines for promotion is the function of the management and the industrial Court cannot interfere with that privilege of the management unless mala fides are alleged and proved. Further, there was an agreement dated 24th of January, 1962 between the company, which is spread all over the width and breadth of India, and the All India Brooke Bond Employees Federation. This was recognised by the Supreme Court in one of its decisions According to the agreement, any disputes relating to the matters mentioned in Annexure A thereto can be raised only by the All India Federation, while those covered by Annexure B can be raised by any local union. There was a subsequent agreement dated 24th of September, 1965 between the same parties, whereby it was agreed that individual disputes relating to matters coming under Annexure A of the earner agreement were transferred to Annexure B which enabled the local unions to raise industrial dispute if it related to promotion of an individual workman only. The present dispute raised by the Visakhapatnam Union, however, endeavoured to espouse the cause of its members as a whole claiming promotion to them. This is clearly in contravention of the agreements between the parties. It was also alleged in the counter of the management that the salesmen, who were involved in the dispute, were not workmen as defined in Sec. 2 (s) of the Act and there was no valid industrial dispute that could be raised with regard to non-workmen. On the merits it was pointed out by the management that the post of the Controller required a high degree of leadership and supervisory qualities. The management was of the opinion that Subrahmanyara was the fit for person the post. While promoting him to the post of Controller the management followed the directions of the National Industrial Tribunal in its award dated 9th June, 1959 as well as the Supreme Court in its decisions relating to the relations between the company and its employees.
The Industrial Tribunal by its award dated 28th of September 1972 expressed the view that the dispute referred to it was not in respect of one person alone but was concerned with fixation of norms of promotion. Such fixation could be done only on all India basis as the company exists throughout India. If norms for promotion are to be fixed it is the All India Federation of the employees which was to raise the matter since it comes within Annexure A to the agreement of 24th of January 1962. Therefore, the Tribunal held that the reference was bad in law to that extent. On the question of promotion of Subrahmanyam to the post of Controller, the Tribunal felt that it was not possible to split up the reference, since both the questions were so inextricably intertwined that one aspect cannot be separated from the other. At the same time, it expressed an opinion that the intention of the management was to see that Subrahmanyam was promoted overlooking his seniors, whose cases were not at all taken into consideration. Therefore, the promotion of Subrahmanyam was not a bona fide action on the part of the management. Consequently the promotion of Subrahmanyam had to beset aside with a direction that the management should consider the cases of all seniors to Subrahmanyam also taking into consideration the seniority and merits. Dispite this view, the Tribunal held, by virtue of its conclusion on the first aspect of the matter, that the reference was bad in law and therefore rejected it.
The Visakhapatnam branch of the employees union represented by its Secretary filed W.P. No. 6887/73 challenging the award to the extent it was against the union. The management, however, did not challenge the award in any independent proceeding. The wit petition was disposed of by our learned brother Chennakesava Reddy J. The view taken by the Tribunal that the first Part of the reference in question No. 2 was bad commended itself to the acceptance of the learned Judge. He opined that the dispute between the parties related to the Principles to be followed in the matter of promotion to the post of Controller which is an all India matter, which was mentioned in Annexure A to the agreement dated 24th January, 1952 entered into between the parties. The learned Judge the before felt that the All India Federation alone could raise the dispute relating to such matters and the local union could not raise it to espouse, the cause of its members as a whole. However, he did not agree the view of the Tribunal that the second part of the reference is not severable from the first part. In his opinion the second question is not so inextricably bound up with the part declared invalid that what remains cannot independently service. Therefore, the learned Judge held that the second part can be considered and disposed of by the Tribunal since he held that the second part is severable, and understanding the finding of the Tribunal as holding that the action of the management in promoting Subrahmanyam was mala fide, the learned Judge held that relief can be granted on the severable part. The writ petition was allowed to that extent and the tribunal was directed to pass a proper award. This time the management of Brooke Bond India Limited has filed this writ appeal.
Sri K. Srinivasamurthy learned counsel for the appellant raised the following points:
(1) The entire reference to the Tribunal is bad. (2) It was not open to the local union of Visakhapatnam to contend that promotion should be given only to their members and not to non-member employees of the management. (3) The Tribunal as well as the learned single Judge did not record a finding on the question whether salesmen are ''workmen within the meaning of Sec. 2 (s). (4) On the mere finding that the action of the management was not bona fide, neither the Tribunal nor the High Court can interfere with the function of the management in regard to promotions and managerial acts, (5) Because of the intervening events after the Court''s decision, the award has become invalid.
Sri P. Kodandaramayya for the worker''s union, in his turn, not only supported the conclusion of Chennakesay Reddy, J., that the matter relating to the promotion of Subrahmanyam is severable, but also disputed the correctness of the view of the Tribunal that the local union could not raise a dispute in regard to the norms.
Just like the Brooke Bond India ''Limited is an all India business and industrial venture, its workers also, though organised in local unions, have an all India federation. The management and the federation of the unions entered into an agreement on 24th of January, 1962 and it was amended by the latter agreement of 24th of September 1965. These were considered by the Supreme Court on two occasions in Brooke Bond (India) (Private) Ltd. v. Their Workmen 1968 (1) Lab LJ 256 and Brooke Bond (India) (Private) Ltd. v. Their Workmen 1969 (1) Lab LJ 402. In the earlier case the Supreme Court laid down that promotions to which industrial employees are entitled normally would be treated as the function of the management. At the same time labour also wants that the claims of employees who are eligible for promotion should be duly considered. Normally it must be left to the discretion of the management to see which of the employees should be promoted at a given time. However, if it appears that in promoting one employee in preference to another, the management has been actuated by malicious considerations or that the failure to promote one eligible person amounts to an unfair labour practice, that would be a different matter. In the absence of mala fides the promotions made by the management should not be ordinarily interfered with. In the latter case the same principles were reiterated by the Supreme Court. It was reiterated that while it is the privilege and function of the management to make promotions amongst its employees, a Tribunal may interfere with the promotions where it is felt that persons have been superseded on account of mala fides or victimisation Even after a finding that mala fides or victimisation vitiated the promotion, it is not the function of a Tribunal to consider the merits of the various employees itself and then decide whom to pro note or whom not to promote. If any industrial tribunal finds that promotions which have been made, are unjustified on the ground of mala fides or of victimisation, the proper course for it is to set aside the promotions and ask the management to consider the cases of the superseded employees and decide for itself whom to promote except of course the person whom promotion has been set aside by the tribunal. In the course of the judgment rendered by Wanchoo, J (as he then was) an earlier award by the National Tribunal was referred to which provided:--
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 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.
These are the general principles which should be borne in mind while disposing of the present writ appeal.
There is no doubt that the view taken by the Tribunal and affirmed by our learned brother that the dispute relating to promotion is an All India matter is correct. The principles relating to promotion is one of the items in Annexure-A to the recognition agreement dated 24th June, 1962 which was entered into between the management and the workers federation So, questions of promotion can be raised only by the All India federation before the National Tribunal. As against this, Annexure-B to the agreement relating to local issues. The subsequent agreement of 24th of September, 1965 shows that all disputes relating to all India matters as per Annexure-A should be raised only by the Federation and that individual disputes relating to such matters could be treated as matters under Annexure-B to the agreement. The dispute raised by the Visakhapatnam Labour Union, though it related to she promotion of Subrahmanyam, has been made on behalf of quite a large number of persons who, according to it, were wortheir of promotion. The first part of the second point referred to the Tribunal is what should be the norms of promotion to the post of Controllers. On the very face of it, it is clearly within the realm of Annexure-A to the recognition agreement of 24th of January 1962, and therefore it is the All India Federation that could raise the dispute before the National Tribunal. Since the present reference is not only with reference to the promotion of one person within the local area but also is concerned with fixation of norms of promotion, to that extent it cannot be said to be a local matter, coming within the ambit of Annexure-B. As the first part of the second question itself shows that fixation of norms of promotion is the dispute referred to the Tribunal, clearly it is not for the State Tribunal to decide it. Therefore, the Tribunal as well as our learned brother are very much right in saying that, to that extent the reference is bad. We, therefore, repel the contention of Sri Kodandaramayya, learned counsel for the local union and uphold our learned brother''s decision in this behalf.
Then taking up the objections raised by Sri Srinivasamurthy to the validity of the reference itself, his contention is that the entire reference is bad. This argument was advanced on more than one ground. The first ground is that Subrahmanyam who was promoted as Controller, was a salesman before his promotion. He was drawing a salary of more than Rs. 500/- and the work he did was of supervisory nature. Therefore, he was not a ''workman'' under Sec. 2 (s) of the Act. Since the reference related to him, who was not a workman, it was incompetent and the Tribunal had no jurisdiction to enquire into the dispute. This contention was no doubt raised in the counter filed by the management before the Tribunal and was also argued before it. But unfortunately, reading the order of our learned brother Chennakesay Reddy, J., in the writ petition, it does not appear that this question was argued before him. There is no affidavit filed before us that though this question was argued, the learned Judge has failed to decide it. So, we will have to go by the conclusion that this particular aspect of the matter was not pressed before our learned brother. Something which was not argued before the learned single Judge cannot be canvassed in appeal. That apart, the Tribunal''s reasoning while rejecting this contention appears to be reasonable. The argument advanced there was that if the claim of the union was upheld, then Subrahmanyam would have to be reverted and he would become a workman from a non-workman. The union maintained that salesmen were workmen. Indeed, there was no evidence that a salesman usually does supervisory work. Mere drawing emoluments of Rs. 500/- would not be sufficient to take him out of the definition of a ''workman''.
In this connection the decision in The Workmen Vs. Greaves Cotton and Co. Ltd. and Others, . was referred to by the Tribunal. The learned Judges of the Supreme Court considered the case in question as to whether the Supervisors getting less than Rs. 500/- a month on the date of reference can raise a dispute in regard to the wages which take them beyond Rs. 500/-. The learned Judges observed that the Tribunal had jurisdiction to consider revision of wage scale, dearness allowance and other emoluments so far as there was a category of workmen who were employed in a supervisory capacity and drawing less than Rs. 500/- and that even where the workmen in a supervisory capacity asked for a pay structure which took them beyond Rs. 500/- that by itself did not preclude its jurisdiction to determine what was the proper wage structure for that class of category of workmen Applying these principles and also those laid down in All India Reserve Bank Employees Association Vs. Reserve Bank of India, . the Tribunal held that in view of the promotion of one of the salesmen as a Controller and when the promotion was made, several other employees were interested in that promotion, and it may so happen that by this promotion the salesman who was workman till the date of promotion will become a non-workman in view of the promotion since he would be drawing a salary of more than Rs. 500/- but it cannot be said that because of promotion the promotee would be drawing salary higher than Rs. 500/- the other salesman cannot raise a dispute at all as regards the said promotion. This reasoning appears to be plausible to us. However, as we have pointed out, this was not dealt with by our learned brother obviously for the reason that it was not urged before him. So, this objection of Sri Srinivasaraurthy to the reference has no force.
Likewise his third contention that the Tribunal and the learned Judge did not find that salesmen are ''workmen'' within the meaning of Sec. 2 (s) is also untenable.
It was next argued by the learned Counsel for the management that on 1-4-1975 subsequent to the award made by the Tribunal, Subrahmanyam became Deputy Area Sales Manager which post is outside the orbit of the industrial dispute. No industrial dispute can arise in respect of such posts which are not within the ambit of Sec. 2 (s). Reliance was placed on All India Reserve Bank Employees Association Vs. Reserve Bank of India, . Workmen G.C. & Co. vs. G.C. & Co. AIR 1972 S.C. 301 to support the contention that when employees are drawing emoluments of more than Rs. 500/- and exercising supervisory powers they are not workmen and the Tribunal has no jurisdiction. Even at the time of reference if the concerned workman was getting more, that would be a supervening circumstance and it would take the case outside the jurisdiction of the Tribunal. For this purpose reference was also made to a Calcutta decision in Workmen, Jessop & Co. vs. Jessop & Co. 1974 Labour and Industrial Cases 332. But there is a crucial fact which takes the present case from outside the attack mounted by the learned council. There was already an award passed by the Industrial Tribunal before Subrahmanyam was promoted as Deputy Area Sales Manager, which post is outside the Ambit of Sec. 2 (s). His promotion to that post was on 1-4-1975 and the award by the Industrial Tribunal was rendered on 28th of September, 1972. Though the reference was held to be incompetent, the finding of the Tribunal was that Subrahmanyam was shown undue favouritism. Once the learned single Judge directed the Tribunal to pass a proper award after splitting the reference, its effect dates back to the date of reference. The promotion of Subramanyam as Deputy Area Sales Manager was subsequent to that and therefore all these decisions cited by Sri Srinivasamurthy do not help him.
The next ground on which the reference is said to be bad is that the local union has no place excepting as a representative of workmen. The reference now is whether the promotion of Subrahmanyam ignoring the claims of senior salesmen is justified and to what relief the salesmen belonging to the Brooke Bond Employees Union are entitled. Our attention was invited to the definition of ''industrial dispute'' contained in Sec. 2 (k) which means any dispute or difference between employers & employees or between employers and workmen or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour of any person. So, Sri Srinivasamurthy submitted that the union has no place since the industrial dispute is one between the management and the workmen. He endeavoured to drew support to this contention from the provisions of Section 10, 18 and 36 and also Rule 16 of the Industrial Disputes Rules. The Union, as Sri Srinivasamurthy himself submitted, merely represents the workmen. Since it is inconvenient for all the workmen, who have qualifications for being considered for promotion, to individually come with a dispute, the union on their behalf raised the dispute. In substance and in effect, it is a dispute raised by the workmen of the Brooke Bond establishment who claim to have qualifications for promotion. Therefore, in effect, it is a reference between the management on one side and the concerned workmen on the other. Therefore, we see no force in this contention.
It was also urged for the management that the second part of the second question referred to the Tribunal is wholly untenable because the consideration for promotion could not be limited only to the Salesman belonging to the Brooke Bond Employees Union A reference limiting the scope of consideration by the Tribunal to the claims of salesmen belonging to the union is bad and when a promotion is made, all the qualified candidates should he considered and not merely those who belong to the union. So, the reference in this behalf is said to be bad. Once we are unable to accede to this argument. It is true, as urged by the learned counsel, that Tribunal cannot go beyond the scope of the reference. But the scope of the reference will have to be understood reading the points referred to the Tribunal as a whole. The first point clearly poses the question whether the promotion of Subrahmanyam, a Junior Salesman, ignoring the claims of senior salesmen working in Visakhapatnam Branch is justified. The second point is what were the norms of promotion to the post of Controller and to what relief the salesmen belonging to the union are entitled. Understood as a whole, the reference clearly comes to this; whether the promotion of Subrahmanyam, a junior salesman transferred on special duly from Vijayawada, ignoring the others available and qualified senior salesmen working in Visakhapatnam branch, is justified or not. It is thus manifest that the reference is not limited to the members of the employees'' union alone but has a wide amplitude. The tribunal was requested to consider whether the promotion of Subramanyam vis-a-vis the senior salesmen in Visakhapatnam Branch is justified. Therefore, we can not say that the reference is bad on this score.
The above consideration disposes of all the points raised by Sri. Srinivasamurthy for the appellant and Sri Kodandaramayya for the respondent, excepting in regard to Justice Chennakesav Reddy, decision that the question as to the individual promotion of Subrahmanyam without considering the claims of other qualified and senior salesmen is severable. Sri Srinivasamurty relied on The Sindhu Resettlement Corporation Ltd. Vs. The Industrial Tribunal of Gujarat and Others, and The Sindhu Resettlement Corporation Ltd. Vs. The Industrial Tribunal of Gujarat and Others, to contend that the Tribunal cannot go beyond the reference and that when a question is inextricably linked up with the other points, which cannot be decided by the Tribunal, it cannot be separated and decided. There is no disputing the propositions laid down in these decisions. However, the principles relating to severability of the questions have been considered by the Supreme Court on more than one occasion. We may also refer to The State of Bihar Vs. Sir Kameshwar Singh, Shewpujanrai Indrasanrai Ltd. Vs. The Collector of Customs and Others, and Y. Mahaboob Sheriff and sons, Y. Mahaboob Sheriff and Others and S. Shamsoddin and Others Vs. Mysore State Transport Authority, Bangalore and Others, The principle laid down by the Supreme Court in all these decisions is that the real question to be decided is whether what remains is so inextricably bound up with the part declared invalid, that what remains cannot independently survive or it has sometimes been put whether on a fair review of the whole matter, it can be assumed that the legislature would have enacted at all that which survives without enacting the part that is ultravires. When a statute is in part, void, it will be enforced as regards the rest if that is severable from what is invalid. This is in respect of severability of a statutory provision. Shewpujanrai Indrasanrai Ltd. Vs. The Collector of Customs and Others, relates to the jurisdiction of a Tribunal. It was observed there:
It is well settled that where proceedings in an inferior court or tribunal are partly within and partly without its jurisdiction prohibition will lie against doing what is in excess of jurisdiction (see Halsbury''s Laws of England) Third edition Vol. II paragraph 216 page 116. In the recent decision in Ram Krishna Dalmia Vs. Shri Justice S.R. Tendolkar and Others, this court held that a part of the notification made under S. 3 of the Commission of Enquiry Act (LX of 1952) to be bad and holding that it is severable from the rest of the notification and held that the rest of the notification to be good.
In the light of these principles it is to be seen whether the question as to the individual promotion of Subrahmanyam vis-a-vis the claims of the other qualified salesmen can be separated from the other point which is said to be out-side the scope of the Tribunal. The norms of promotion cannot be decided by the Industrial Tribunal and a local union cannot raise it. But the question of the individual promotion of Subrahmanyam is certainly severable. To the extent the guidelines of promotion are there in the agreement entered into between the management and the All India Federation, it can be examined whether the promotion of Subrahmanyam is valid or invalid, and whether other deserving candidates have been considered or not. This certainly is a severable aspect of the reference. In regard to this conclusion we are in agreement with Chennakesav Reddy, J. Therefore, we uphold this direction that the matter should be sent back to the Tribunal for passing a proper award.
However, before we conclude, there is another aspect which was very vehemently pressed before us by Sri Srinivasamurthy. He strongly objected to the description given by our learned brother of the action of the management in promoting Subrahmanyam as mala fide. Learned Counsel pointed out that the Tribunal said that in the circumstances it did not appear to be bona fide Learned Counsel argued that there is a world of difference between ''not bona fide'' and ''mala fide''. He pointed out that the Brooke Bond is an All India concern and if its action is dubbed as mala fide, it will hurt its image and prestige. It is true that our learned brother thought that the Tribunal had found that the action of the management in promoting Subrahmanyam was mala fide. But the Tribunal did not say that the action was mala fide. What it said was that the promotion was not bona fide. Therefore, while affirming the direction of our learned brother to the Tribunal to pass a proper award, we direct the Tribunal to give an award in regard to the severable part of the reference as to whether the promotion of Subrahmanyam is proper, whether there were other worthy salesmen who were not considered or were superseded, and whether the promotion of Subrahmanyam was justifiable or not. The award will have to be made in the light of the norms fixed in the agreement between the parties. With this clarification, we dismiss this writ appeal with costs. Advocate''s fee Rs. 150/-.