Judgment Satyeshwari Roy, J. 1. In this application, the petitioner has prayed for quashing Annexure-9, the award given by respondent No. 2 by which respondent No. 2 has held that the workman (Jatadhar Lall), represented by respondent No. I, was entitled to be confirmed on completion of his probationary period of one year from the date of his appointment and also entitled to promotion as Assistant Accounts Officer with effect from November, 1964. Respondent No. 1 also held that Lai was entitled to attendant benefits and all consequences arising out of such promotion including promotion to higher post. 2. By Annexre-1 respondent No. 1 offered appointment to Lall to the post of accountant. One of the conditions of the offer was that Lall would be on probation for a period of one year which period might be extended or curtailed at the discretion of the appointing authority and on satisfactory completion of probation, Lall would be given contract for a period of three years. He joined on 27-2-1962 by letter dated 4-7-1972 the management wrote Lall that in continuance of annexure 1 it was informed that during the period of probation Lall was required to pass the prescribed departmental examination as per the rules of the Hindustan Steel Ltd. Lall protested to that condition. He, however, applied for appearing at the departmental examination and in fact he appeared at the examination held in February, 1964, March 1967, March 1971 and October 1971, Lall however, could not pass the said examination. He, in November, 1971 passed Part II but failed in Part I. As Lall did not pass the departmental examination, he was not confirmed. Meanwhile, persons junior to him were promoted. He thereafter filed a suit challenging the action of the management. The suit was dismissed, copy of judgment is annexure-2. Lall filed an appeal against. The appeal was allowed and the suit was decreed. The judgment is annexure B to the counter affidavit. The management filed an appeal in this Court that it was held that the suit was not maintainable. The judgment of this Court is annexure-3 to the writ petition. 3. Thereafter an industrial dispute was raised by respondent No. 1 and the dispute was referred to respondent No. 2. The judgment is annexure B to the counter affidavit. The management filed an appeal in this Court that it was held that the suit was not maintainable. The judgment of this Court is annexure-3 to the writ petition. 3. Thereafter an industrial dispute was raised by respondent No. 1 and the dispute was referred to respondent No. 2. The Reference was whether the action of the management in not confirming promoting Lall on the ground that he has not passed the departmental examination for the post of accountant as prescribed in Companys Circular dated 18th April, 1961 was justified. On the basis of the materials on record, respondent No. 2 answered the reference in favour of Lall and granted reliefs as noticed hereinabove. 4. Mr. Gupta, learned Counsel appearing on behalf of the petitioner, challenged the validity of the award on the following grounds: (a) The Central Government was not the appropriate Government for referring the dispute as the Coal washery in which Lall was appointed and working was not a mine as the Central Government Under Sec. 63 of the Mines Act by a notification dated 22-11-1965 exempted all the coal washeries forming part of the mines from the operation of Mines Act. (b) The Central Government could not have referred the dispute as Lall had elected to agitate the matter in Civil Court. Further, in view of the findings of the Civil Court issues involved were barred by res judicata. (c) Lall having sat at the departmental examination number of times without any protest, and having failed was not entitled to contend that for the purpose of his confirmation it was not necessary for him to qualify in the examination and, therefore, he was not entitled to any relief (d) The award was liable to be set aside on the ground that there were errors apparent on the face of the record. (e) The reliefs granted by the Tribunal were not warranted by law. (f) As the persons who were promoted earlier than Lall were not parties to the reference, the Trtbunal could not have ordered for promoting Lall above them. 5. So far point no (a) is concerned, Sec.2 (a) of the Mines ct defines mine. (e) The reliefs granted by the Tribunal were not warranted by law. (f) As the persons who were promoted earlier than Lall were not parties to the reference, the Trtbunal could not have ordered for promoting Lall above them. 5. So far point no (a) is concerned, Sec.2 (a) of the Mines ct defines mine. Under that Section, unless exempted by the Central Government by notification in official Gazette any premises on part thereof, in or adjacent to and belonging to a mine, on which any processes ancilliary to the getting, dressing, or preparation for sale of minerals or of cokes being carried on is a mine. With reference to this Mr. Gupta submitted that in the notification dated 22-11-1965 issued Under Section 83 (a) all coal washeries forming part of mines have been exempted from the operation of the provisions of the Mines Act and, therefore, coal washery in which Lall was working was not a mine within the meaning of the Mines Act consequently the appropriate Government was not the Central Government but the State Government. Mr. Roy learned Counsel for the workman submitted that since the jurisdiction of the Central Government to refer the dispute was not challenged by the petitioner before the Tribunal, the objection raised should not be entertained. 6. Annexure 4 is the written statement of the petitioner filed in the reference. Paragraph 2 of the written statement reads as follows : That the employers submit that the reference is not State but the Central Government has no jurisdiction whatsoever to make a reference as will be explained hereinafter. (Emphasis added). From perusal of the written statement it appears that the jurisdiction of the Central Government was challenged on the ground of res judicata i.e. the decision on the issues by the Civil Court and on the ground that Lall had availed alternative remedy by filing a suit. Nowhere in the written statement, the petitioner stated that the Central Government was not the appropriate Government to refer the dispute as the coal washery was not a mine within the meaning of Mines Act. Mr. Gupta, however, drew my attention to the Award in which the Tribunal stated that the employer took the plea that the Central Government had no jurisdiction to make a reference. He submitted that although this point was formulated by the Tribunal, it did not record any finding on this. Mr. Gupta, however, drew my attention to the Award in which the Tribunal stated that the employer took the plea that the Central Government had no jurisdiction to make a reference. He submitted that although this point was formulated by the Tribunal, it did not record any finding on this. The formulation of points or issues for the purpose of answering a reference will depend on the pleadings of the parties. I have already noticed that in the written statement, the petitioner did not question the jurisdiction of the Central Government to refer the dispute on the ground that the coal washery was not a mine within the meaning of the Mines Act. The petitioner without raising the question of jurisdiction of the Central Government on the above ground to refer the dispute submitted to the jurisdiction of the Tribunal and contested the matter. The petitioner, therefore, cannot be allowed to raise for the first-time in this Court in the writ petition the question of jurisdiction of the Central Government to refer the dispute on the ground that it was not the appropriate Government. Reference may be made to the case of Sohan Singh V/s. General Manager Ordinance Factory, AIR 1981 SC 186. The first contention of Mr. Gupta is, therefore rejected. 7. So far point No. (b) is concerned, there is no dispute that Lall had filed title suit being title suit No. 41 of 1972 in the court of Munsif, Dhanbad challenging the action of the petitioner. In that suit Lall had prayed for declaration that the terms and conditions embodied in letter dated 15/17-2-1966 i.e. the offer of appointment was binding on the parties and the petitioner (defendant in the suit) was debarred to incorporate any stipulation in the terms and conditions with regard to his promotion and confirmation. He also prayed for declaration that the departmental examination was not applicable to him and also for declaration that he was entitled to promotion and confirmation of his services. The judgment of the trial Court is annexure-2 to the writ petition. The trial Court held that Lall was required to pass the departmental examination and he was not entitled to promotion without passing the said examination. It further held that the Civil Court had jurisdiction to try the suit. The judgment of the trial Court is annexure-2 to the writ petition. The trial Court held that Lall was required to pass the departmental examination and he was not entitled to promotion without passing the said examination. It further held that the Civil Court had jurisdiction to try the suit. On the basis of the findings recorded by it with regard to the right of Lall, the suit was dismissed. The judgment of the first appellate court in Annexure B to the counter-affidavit. The first appellate court held that as at the time of his appointment no such condition was imposed, Lall was not required to pass the departmental examination. It, on the basis of the finding that Lall was not required to pass departmental examination, allowed the suit. It however, denied the relief prayed for by Lall for confirmation of his services or promotion. The appeal was allowed in part by the first appellate court. this Court In second appeal, the judgment of which is annexure 3 to this writ petition, held that the suit was not maintainable. The suit for Lall was dismissed by this Court on that ground. It will thus be noticed that the limited finding in the suit was that the suit was not maintainable. If the suit was not maintainable, any finding recorded in that line with regard to the merit of the case would not be available to any of the parties. The findings, therefore, cannot operate as res judicata. Since the Civil Court refused to give any relief to Lall on the ground that it had no jurisdiction to give any relief, the contention of Mr. Gupta that since Lall had elected to agaitate the grievance before the civil court, could not have agitated the matter again under the Industrial Disputes Act cannot be sustained. 8. With regard to point no (c) there is no dispute that after the receipt of letter dated 4-7-1972 by which the petitioner had informed Lall that he would be required to pass the departmental examination during probationary period, Lall protested. He took the stand that as he was not part of the terms and conditions of his appointment as contained in annexure-1, he was not required to pass departmental examination for the purpose of his confirmation. He took the stand that as he was not part of the terms and conditions of his appointment as contained in annexure-1, he was not required to pass departmental examination for the purpose of his confirmation. According to the petitioner, in spite of his initial protest, Lall subsequently appeared at the examination number of times and qualified in one part, but failed in the other. On the basis of this, Mr. Gupta submitted that notwithstanding his initial protest, since Lall appeared at the examination repeatedly, could not be heard to say that he was not required to pass the examination. Mr. Roy submitted that Lall had no option but to appear at the examination because the petitioner threatened to terminate his services. In support of this contention Mr. Roy relied on the evidence of M.W. 1. The Tribunal did not record any finding that Lall appeared at the examination under protest. It, however, recorded a finding that Lall had appeared at the examination only when he was threatened with termination of his service. Mr. Gupta in support of his contention relied on Om Prakash Shukla V/s. Akhilesh Kumar Shukla -- From the report of that case, it appears that the petitioner of that case had appeared at the examination without protest and filed the writ petition only after he had perhaps realised that he would not succeed in the examination. In those circumstances, the Supreme Court refused to give any relief to the petitioner in that case. But in this case M.W. 1 in his evidence stated that the protest of Lall was considered and again he was asked that if he did not pass the departmental examination, his services would be terminated. It, therefore, cannot be said that Lall appeared voluntarily at the examination. This ground of Mr. Gupta fails. 9. Point No. (d) relates to the findings of the Tribunal with reference to the letter dated 4-7-1972 by which Lall was informed that he was required to pass the departmental examination during the probationary period as per the rules of the Hindustan Steel Limited, According to the Tribunal, this letter could not be held to be part and parcel of annexure-1, the offer of appointment given by the petitioner to Lall. The Tribunal further held that the condition, i.e., for qualifying in the examination, applied to the persons below the rank of accountant in the matter of confirmation to the post of accountant. Further, according to the Tribunal only those accountants would be required to pass the departmental examination in whose appointment letter that condition was incorporated and as this was not incorporated in the offer of appointment of Lall, he was not required to pass departmental examination. The Tribunal was also of the opinion that asking Lall to pass the departmental examination, amounted to changes in the service condition and as there was no compliance of Section 9 of the Industrial Disputes Act, it could not be given effect. 10. The relevant letter is part of annexure 8 and it is dated 18-4-1961. Paragraph 2 of the letter reads as follows: The promotions confirmations will be made on the basis of this examination as well as the interview by the Departmental Promotion Committees of the plants concerned which will take into account the Service Records, etc, of the candidates staff. The subject mentioned in the letter : "Departmental Examination for Accountants." 11 From that letter it is clear that for the purpose of confirmation of accountants, the result in the departmental examination was to be considered. Even assuming that as the condition was not incorporated in annexure it was not part of that, the petitioner in order to judge the suitability of a probationer/Accountant for confirmation was entitled to ask such probationer to appear at the departmental examination. It is the right of the management to lay down the conditions which a probationer must fulfil for judging his suitability for confirmation. The petitioner was, therefore, entitled to ask Lall to appear at the departmental examination to judge whether Lall was suitable for confirmation 12. From the letter it further appears that qualifying in the departmental examination for judging the suitability of the probationery for his confirmation was not only the criteria. The probationer was further required to be interviewed by the Departmental Promotion Committee and his service records were also required to be looked into. It cannot be held that management could not have prescribed the criteria for judging the performance of a probationer. The probationer was further required to be interviewed by the Departmental Promotion Committee and his service records were also required to be looked into. It cannot be held that management could not have prescribed the criteria for judging the performance of a probationer. The Tribunal was also wrong in holding that the policy enumerated in the letter was applicable only to the persons below the rank of accountants in the matter of their promotion to the post of accountant. I have already quoted the relevant clause from annexure-1, which did not provide for automatic confirmation after the expiry of the Probationery period rather it provided that the period might be extended or curtailed at the discretion of the appointing authority and on satisfactory completion of the probationary period Lall would be given confirmation for a period of three years. Lall therefore, could not have claim that he should be deemed to be confirmed automatically on the expiry of the probationary period. It was held by the Supreme Court in Workmen, Williamson Magor and Co. V/s. Williamson Magor & Co., 1982 0 FLR 71, that although promotion/upgradation is a managerial function, it must not be fon the subjective satisfaction of the management but must be on some objective criteria. In my opinion, that must apply in case of probationer also. If this principle is applied to this case, the management was entitled to lay down some objective criteria for judging the suitability for confirming a probationer. Once such objective criteria was passing of departmental examination. The Tribunal was certainly wrong in holding that in this case Section 9-A of the Industrial Disputes Act was applicable because asking a probationer to appear at the examination for the purpose of judging his suitability for confirmation and promotion cannot be said to be one of the conditions of service enumerated in 4th Schedule of the Industrial Disputes Act. The petitioner, therefore, must succeed on this point. 13. So far point No. (e) is concerned, the Tribunal held that Lall should have been confirmed on completion of probationary period of one year from the date of his appointment and should have been promoted as Assistant Accounts Officer with effect from November, 1964. It is relevant to notice that during the course of hearing, Mr. 13. So far point No. (e) is concerned, the Tribunal held that Lall should have been confirmed on completion of probationary period of one year from the date of his appointment and should have been promoted as Assistant Accounts Officer with effect from November, 1964. It is relevant to notice that during the course of hearing, Mr. Roy submitted that the award of the Tribunal could not be interpreted to mean that it had directed the management to confirm/promote Lall. He also submitted that even if the management did not confirm/promote Lall, the petitioner would not be held liable for the breach of the award because the award could not be implemented. According to Mr. Ray all that the Tribunal held was that for the purpose of considering the case of Lall for confirmation, the petitioner was not entitled to take into consideration the performance of Lall in the examination. In other words according to Mr. Roy the criteria of passing the departmental examination in the case of Lall was not a condition precedent for consideration of his case for confirmation, if he was found otherwise fit. In view of the concession of Mr. Roy, this point must be answered in favour of the petitioner. 14. In view of what has been held in the preceding paragraph, it is not necessary to consider point No. (f) urged by Mr. Gupta. 15. It must be recorded that after conclusion of hearing, I wanted to know from Mr. Gupta, whether the petitioner as an exceptional case, would confirm Lall who admittedly did not pass the departmental examination but has put in long service of twenty four years. Time was granted to him to obtain instruction in the matter from the management. On 26-11-198 SI was informed that the petitioner was unable to relax the criteria of passing the departmental examination. 16. For the findings of point Nos. (d) and (e), this application is allowed and the award (annexure-9) is set aside. There shall be no order as to costs.