JUDGMENT : Gajendragadkar, J. 1. In November 1959, the appellant ?Brooke Bond India Ltd. promoted two clerks Sankara Narayanan and Natarajan from Grade ?A? to Grade ?B?. Sankara Narayanan was recruited in the services of the appellant on November 5, 1944, whereas Natarajan was recruited in the middle of September 1944. Mr Mani had been recruited by the appellant on July 31, 1944, and in length of service, he was senior to Sankara Narayanan and Natarajan. Mr Mani however was not promoted. The failure of the appellant to promote Mani from Grade ?A? to Grade ?B? has given rise to the present dispute between the appellant and its workmen. 2. Another dispute was also referred to the Tribunal and that was in respect of the transfer of Mr Nair one of the employees of the appellant. The Tribunal held that the transfer of Nair was justified and so the reference was answered against the workmen on that point. 3. In regard to the complaint made by the respondents workmen on behalf of Mr Mani, the Tribunal has held that the appellant was not justified in refusing to promote Mr Mani and it has accordingly directed the appellant to promote him to Grade ?B? with effect from April 1, 1959. The award further directs that Mr Mani is entitled to all the emoluments of ?B? Grade clerk with effect from that date. It is this award which is challenged by the learned Attorney-General on behalf of the appellant before us. 4. It appears that the Tribunal has based its decision substantially on the view which it took that the failure to promote Mr Mani is in violation of the direction issued by the National Industrial Tribunal in its award. It appears that the National Industrial Tribunal which pronounced its award in 1959 dealt with the question about promotions and a general formula which it evolved in respect of these promotions was stated in these terms: "I give the general formula which has been accepted by many concerns, namely, all things being equal, seniority shall count for promotion. It appears that the National Industrial Tribunal which pronounced its award in 1959 dealt with the question about promotions and a general formula which it evolved in respect of these promotions was stated in these terms: "I give the general formula which has been accepted by many concerns, namely, 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 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 any reasons to any civil or criminal proceedings." 5. The Tribunal has held that on the record it appeared that Mr Mani was not worse than the two persons who have been promoted and in a sense was their equal, and he has observed that the appellant had failed to give reasons for refusing to promote him. It is mainly on these two grounds that the Award has been passed directing promotion of Mr Mani. 6. In this appeal it has been urged before us that in making the award under appeal, the Tribunal has exceeded its jurisdiction. It is also argued that on the merits, the award is wholly unsustainable. There can be no doubt that promotions to which industrial employees are entitled normally would be treated as the function of the management, and so even the National Industrial Tribunal which dealt with this issue recognised that it must be left to the discretion of the management to select persons for promotion. On the other hand, Labour also wants that the claims of employees who are eligible for promotion should be duly considered and so, the formula evolved by the National Industrial Tribunal requires that at a given time, if more than one person are eligible for promotion, seniority should be taken into account and should prevail unless the eligible persons are not equal in merit. This formula was accepted by the employers and it is on the strength of this formula that the respondents? claim is based in the present proceedings. This formula was accepted by the employers and it is on the strength of this formula that the respondents? claim is based in the present proceedings. It is true that though promotions would normally be a part of the managements function, 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. But in the absence of mala fides, normally it must be left to the discretion of the management to select which of the employees should be promoted at a given time subject of course to the formula to which we have just referred. 7. The Tribunal seems to have taken the view that since Mr Mani was working as an ?A? Grade clerk and the two persons were also working as ?A? Grade clerks, it followed that Mr Mani was equal to the other two in all respects. In our opinion, this view is clearly erroneous. If this view were to be accepted as true, there would be no scope for determining the rival claims of persons claiming promotion on merits. In this company, there are three Grades, Grade ?A? which is the lowest, Grade ?B? which is higher than ?A?, and Grade ?C? which is the highest. It is common ground that in November 1959, all the three persons were working in Grade ?A?. But surely, merely from the fact that the three persons were working in Grade ?A?, it does not follow that their merits were exactly the same and equal. The Tribunal seems to have assumed that since Mani was working in Grade ?A?, he must be deemed to be equal to Sankara Narayanan and Natarajan. That, in our opinion, is the basic fallacy on which the award proceeds. 8. The other ground on which the Tribunal has based its decision is that the appellant failed to give its reasons for not promoting Mr Mani, and in support of its finding the Tribunal has referred to a communication addressed to the appellant by the Union. That, in our opinion, is the basic fallacy on which the award proceeds. 8. The other ground on which the Tribunal has based its decision is that the appellant failed to give its reasons for not promoting Mr Mani, and in support of its finding the Tribunal has referred to a communication addressed to the appellant by the Union. The Tribunal has taken the view that though this communication was addressed to the appellant by the Union and though it did not contain a request to the appellant to supply reasons for not promoting Mr Mani, the appellant should have considered the communication as amounting to such a request. In our opinion, this conclusion also is wholly untenable. This communication merely told the appellant that the Union was inclined to take the view that the claim of Mr Mani had been overlooked unintentionally and, therefore, the appellant was requested to rectify the mistake and to promote him to Grade ?B?. The principle laid down by the National Industrial Tribunal requires that if an employee feels that his claims for promotion have not been duly considered, it is open to him to request his employer to give him reasons for that result. Such a request has clearly not been made by Mr Mani and the latter addressed by the Secretary of the Union, does not contain the request. Therefore, we think that the Tribunal was in error in holding that the appellant was to blame for not giving reasons to Mr Mani. 9. It is somewhat unfortunate that having proceeded to deal with this dispute on the two grounds to which we have just referred, the Tribunal failed to consider the evidence led before it on the merits of Mr Manis standing with the appellant. Mr Mani gave evidence himself and in his cross-examination, he has admitted that from 1950 to 1958, he had been continuously ill and he had to ask for leave for one unfortunate reason or another throughout. He has also admitted that in 1957, when his work was inspected, several mistakes were noticed and his attention was drawn to those mistakes. In other words, the admissions made by Mr Mani clearly show that his record of service is not without blemish and owing to his unfortunate illness, he had to go on leave on several occasions. He has also admitted that in 1957, when his work was inspected, several mistakes were noticed and his attention was drawn to those mistakes. In other words, the admissions made by Mr Mani clearly show that his record of service is not without blemish and owing to his unfortunate illness, he had to go on leave on several occasions. Therefore if only the Tribunal had considered these admissions, it would have hesitated in coming to the conclusion that the refusal of the appellant to promote Mr Mani was in contravention of the formula laid down by the National Industrial Tribunal. It is obvious that if Mr Mani had been suffering from illness and his work was not satisfactory, the appellant would be entitled to take the view that he did not deserve to be promoted. 10. In dealing with these disputes, however anxious industrial adjudication may and must be to protect the legitimate rights of the employees, regard must always be had to the fact that in matters of promotion discretion has primarily to be left to the employer. Having considered the matter in the light of the formula evolved by the National Industrial Tribunal, we are inclined to hold that the appellant was justified in not promoting Mr Mani in November 1959. That being our view, we must allow the appeal, set aside the award which directed the appellant to promote Mr Mani from April 11959. 11. The result is the appeal is allowed. There will be no order as to costs.