Judgment R.N.Sahay, J. 1. By this application under Articles 226 and 227 of the Constitution of India the petitioner has impugned the award dated November 11, 1987 rendered by the respondent No. 2 on the reference under Sec. 10(1) (c) of the Industrial Disputes Act. The following questions were referred to the Labour Court for adjudication. "(1) Whether Shri Girindra Kishore Mishra, Commercial Assistant is entitled to officiating pay for performing his duty on the posts of lower Division Assistants from 1968 to 1971 and Upper Division Assistant from 1976 to 1979? If so, how much and from which dates? (2) Whether Shri Girindra Kishore Mishra, Commercial Assistant is entitled to promotion on the post of Upper Division Clerk from 1976 and on the post of Sales Officer from 1979? If so, from which date and on what post he should get promotion? 2. The Labour Court having examined the rival evidence held that the workman respondent was entitled to officiating pay for performing his duty on the post of L.D. Assistant from September 1, 1968 to 1971. But his claim for officiating pay for performing duty as U.D. Assistant from 1976 to 1979 was held to be not justified. The second question was decided in favour of respondent, Mishra. 3. Shri Mitter, learned counsel for the petitioner has assailed the award on the following grounds:- (i) The respondent No. 1 having been satisfied that there was an office order dated July 1, 1968 by which the concerned workman was asked to hand over complete charge of his work to Shri Karyee and to be responsible for the work in the time office should not have held that in the absence of evidence in proof of actual handing overcharge, it should be presumed that the respondent No. 3 continued to do the work of L.D. Assistant when in making such a presumption he was over looking the presumption of law against misconduct and that, accordingly, obedience to lawful official order should have been presumed. (ii) The Labour Court in resorting to the presumption aforesaid over looked the law relating to burden of proof according to which the party alleging the affirmative of the issue must be called upon to prove the same. (ii) The Labour Court in resorting to the presumption aforesaid over looked the law relating to burden of proof according to which the party alleging the affirmative of the issue must be called upon to prove the same. (iii) The respondent No. l should not have decided the question of inter se seniority as between the respondent No. 3 on the one hand and Sri P.C. Karyee and Shri G.K. Sinha on the other especially when the said two employees were not parties to the reference and when the terms of the reference did not invite such a decision. (iv) The Respondent No. 1 deciding the question of promotion of respondent No. 3 and in issuing a direction to the petitioner to give effect to his order of promotion are absolutely illegal on the following grounds: (a) Promotion is a management function and, as such, cannot be the subject matter of an industrial dispute except where the right to promotion is shown to have been conferred on the aggrieved workman by conditions of his service and that the management is shown not to have acted with bonafide motives. (b) In a proper case where the aggrieved party has a legal right to be promoted and that right he has not been permitted to avail of, the Industrial Court, after recording a finding to the above effect, is to remit the case back to the management for reconsideration and not issue a mandate to promote the workman straightaway. (c) The mere fact that the concerned workman sometimes was in charge of the superior post or that he was very competent are never sufficient to entitle him to be promoted substantially to that post. (d) The question whether he should be promoted is to be decided by the management and the Labour Court is not to arrogate to itself the promotional function of the management. (e) When the Labour Court could not promote the respondent No. 3 to the existing post, with the cadre and scale attached thereto, the Labour Court should not have ordered for down-grading that post to accommodate the concerned workman especially when such a course could not, in virtue of the terms of reference, be resorted to by him. 4. (e) When the Labour Court could not promote the respondent No. 3 to the existing post, with the cadre and scale attached thereto, the Labour Court should not have ordered for down-grading that post to accommodate the concerned workman especially when such a course could not, in virtue of the terms of reference, be resorted to by him. 4. Shri K. Bahadur learned counsel for the respondent, Mishra has supported the award on the ground that the Labour Court gave the award after thorough analysis of the evidences on record and there is absolutely no fault in the order to render it invalid. 5. In order to appreciate the argument advanced on behalf of the rival parties it would be necessary to briefly refer to the facts which led to the reference for adjudication. The 3rd Respondent G.K. Mishra was appointed as time keeper in January 12, 1963. He worked extra duty from April 13, 1966 till June 30, 1988 for which he was paid allowances. He claimed to have worked as Lower Division Assistant even after June 30, 1988 although there was an office order directing him to hand over charge to one Karyee who had since been appointed as Lower Division Assistant on May 3, 1967. According to the petitioner on August 7, 1969 Shri G.K. Sinha was also appointed as L.D.A. Thus, there was no necessity to engage an extra hand, as L.D.A. in any department. The case of the management is that Shri Mishra was reverted as Time-keeper after July 1, 1988 and he handed over all the files to Karyee. 6. The Labour Court in para 7 of the award has discussed the evidence on record in respect of the claim of the workman for grant of allowance for performing extra work from 1968 to 1971. The Labour Court on considering all the evidence held: "The concerned workman did continue to work in the Establishment Section even from July 1, 1968. The Management have also not filed any document nor they have adduced any evidence to show that the order dated February 9, 1968 (Ext. M-4) with which special pay at 20% was sanctioned in favour of the workman was revoked at any later stage. Ext. M-7 further shows that the duty chart was enclosed with it, the said duty chart has been filed by the workman, which is marked as Ext. M-4) with which special pay at 20% was sanctioned in favour of the workman was revoked at any later stage. Ext. M-7 further shows that the duty chart was enclosed with it, the said duty chart has been filed by the workman, which is marked as Ext. W-20, which suggests that apart from the work of Time Office the concerned workman did perform other works in the Establishment section even from July 1, 1968. 7. The finding of the Labour Court is based on proper appreciation of evidence and does not call for interference. I, therefore, hold that the award so far of extra allowance from 1968 to 1971 is concerned cannot be challenged since no error apparent on the face of record has been pointed out. The next question for consideration with regard to claim of the workman that he was entitled to promotion to the post of UDC from 1976 and on the post of Sales Officer from 1979. The Labour Court has up-held the claim. 8. Admittedly, the petitioner was Timekeeper, but for some time he was officiating as L.D. Assistant for which he was paid allowances. In 1967 Karyee was appointed as L.D.A. and in 1969 G.K. Sinha was appointed. Respondent, Mishra was promoted as L.D.A. in 1971 and on April 11, 1979 he was promoted as Commercial Assistant. In 1980 a cadre of Assistant was converted into U.D. Assistant. In the Head Office an other sister concern of Corporation post of U.D.C./U.D.A. existed from before. The case of the Management is that since there was no post of U.D.A. in 1976 question of his promotion did not arise. In 1969 Shri G.K. Sinha was selected by the Promotion Committee for promotion as U.D.A. at the Head Office, Patna. He deserved promotion by virtue of experience and qualification. According to the Management, Shri Mishra was not eligible and hence he was not considered for promotion as U.D.A. The case of the workman was that he was entitled to be appointed as L.D.A. in 1968 as he has already worked as L.D.A. from before. He deserved promotion by virtue of experience and qualification. According to the Management, Shri Mishra was not eligible and hence he was not considered for promotion as U.D.A. The case of the workman was that he was entitled to be appointed as L.D.A. in 1968 as he has already worked as L.D.A. from before. He was senior most person and possessed the requisite qualification and as a matter of fact he had also an experience as L.D.A. However, the Management ignoring his qualification, seniority and experience selected P.C. Karyee and G.K. Sinha who were junior to him and who were employed on daily rated basis whereas the workman was a monthly rated. The workman claimed that he should have been promoted as U.D.C. in 1976 and as a matter of fact the Chief Personnel Officer, Patna had stayed the appointment, of G.K. Mishra. But ignoring the order of the Chief Personnel Officer Sinha was promoted to the post of U.D.C. The concerned workman was already on the post of L.D.A. from 1971. The appointment of Sinha to the post of L.D.A. is therefore, illegal. The workman was promoted to the post of Commercial Assistant on the pay scale of Rs. 269-460.00 whereas scale of U.D.A. was Rs. 380-570.00 and in the personal file of the workman the then General Manager recommended that the workman had already worked as U.D.A. from the year 1976 and as such he had been promoted on April 11, 1979 to the post of Commercial Assistant under protest. In the nutshell the case of the workman was that he was senior both to Sri P.C. Karyee and Shri G.K. Sinha for the post of L.D.A. and U.D.A. and he also possessed the requisite qualification and is also experienced and having good C.C.R. to his credit for the said posts i.e. L.D.A. & U.D.A. as also for the post of Assistant Sales Officer/Sales Officer. The Management illegally did not consider his case for promotion at the time of giving promotion to Karyee and Sinha. The workman worked as Sales Officer during the period 1985. The Labour Court had held that the management had not placed before the Court the reasons why Mishra was superseded by Karyee and G.K. Sinha though he had good record of service, educational qualification and experience making him eligible for such promotion. The workman worked as Sales Officer during the period 1985. The Labour Court had held that the management had not placed before the Court the reasons why Mishra was superseded by Karyee and G.K. Sinha though he had good record of service, educational qualification and experience making him eligible for such promotion. The Labour Court held:- "The action of the management in not giving promotion to the post of L.D.A. in due time either in the year 1967 or 1969 to the post of UDA on September 16, 1976, when Shri G.K. Sinha was promoted, is arbitrary and amounts to denial of natural justice meted out to the concerned workman. In the result, the workman is entitled to promotion to the post of UDA from September 16, 1976 the date when his junior colleague Shri G.K. Sinha was promoted. 9. As regards claim of the workman for promotion to the post of Sales Officer from 1979 the Labour Court held as follows:- "It is not denied that the workman had been working in the Sales department right from the date of his promotion as Commercial Assistant. So far as the experience is concerned he had such an experience in his credit. It is not denied that he was a graduate in the year 1976. There is also nothing on record to suggest that his records of service were not good. On the contrary the documents i.e. Ext. M-30, memorandum of Tripartite settlement dated August 3, 1962, the promotion to the higher post should be made according to seniority and qualification. There is nothing on record to suggest that any person at Sindri Unit was senior to the concerned workman in the Sales Dept. He did, therefore, possess requisite qualification, experience, and seniority to his credit to be promoted as an Officer in the Sales Deptt." The Labour court next held:- "Shri Mishra was entitled to be promoted to the post of Assistant Sales Officer w.e.f. April 11, 1982 on a down grade scale of pay i.e. Rs. 880-1510.00 The concerned workman is further entitled to promotion to the post of Sales Officer w.e.f. August 1, 1985 soon after he takes over charge in the sales department from Shri G.K. Sinha. 10. Shri Mitter strongly argued that the Labour Court had jurisdiction to decide the question of promotion of Mishra to the post of LDA, UDA, Astt. 880-1510.00 The concerned workman is further entitled to promotion to the post of Sales Officer w.e.f. August 1, 1985 soon after he takes over charge in the sales department from Shri G.K. Sinha. 10. Shri Mitter strongly argued that the Labour Court had jurisdiction to decide the question of promotion of Mishra to the post of LDA, UDA, Astt. Sales Officer and Sales Officer. Reliance has been placed in Management of Brooke Bond India (P) Ltd. V/s. Their Workmen (1963-1-LLJ-256). In this case the Tribunal had held that the concerned workman is entitled to promotion to Grade B w.e.f 1959. The Tribunal had held that the concerned workman "was not worse than the two persons who had been given promotion in preference to the concerned workman." The Management had given no reason for refusing promotion to Mani, the concerned workman. It was argued on behalf of the appellant - Management before the Supreme Court that the Tribunal in giving the aforesaid award has exceeded its jurisdiction. It was observed by the Hon ble Supreme Court:- "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 recognised that it must be left to the discretion of the management to select persons for promotions. If at a given time, if more than one person is eligible for promotion seniority should be taken into account and should prevail unless the eligible persons are not equal in merits." The Supreme Court however, held that the matter would be different if the decision of the Management is actuated by malicious consideration or that the failure to promote one eligible person amounts to an unfair labour practice. 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. 11. In another decision between the same parties reported in (1966-I-LLJ-402) earlier view was reiterated. In this case the award was set aside because there were only two posts and the Tribunal ordered the management to promote five persons. 11. In another decision between the same parties reported in (1966-I-LLJ-402) earlier view was reiterated. In this case the award was set aside because there were only two posts and the Tribunal ordered the management to promote five persons. It was held by the Supreme Court that if the Tribunal was satisfied that the supersession of the aggrieved workman was not justified only course for the Tribunal was to set aside the promotion of the persons who had been promoted suppressing the claim of the concerned workman. The Supreme Court observed at P. 405 of LLJ, "The Order, therefore, passed by the Tribunal promoting five other employees is clearly wrong. It is true that one term of the reference was with respect to the relief given to the workmen who were superseded. That however did not mean that the Tribunal should promote five more persons on the same date as the two promoted by the management. The order of the Tribunal, therefore, promoting these five persons in addition to the already promoted by the management must be set aside on this ground alone." 12. The present case is fully covered by law laid down by the Supreme Court in the case of Management of Brooke Bond India (P) Ltd. V/s. Their Workmen (supra). The Labour Court in the instant case erred in answering the question No. 2 in favour of the workman. This application is partly allowed and the relief granted to the respondent-Mishra in terms of sub-paras (2) & (3) of para 19 of the award is quashed. There shall be no order as to costs.