JUDGMENT 1. - The instant writ petition has been filed challenging the Labour Court Award dated 29.9.88 (Annexure 6), by which the claim of the respondent-workman had been allowed and the present petitioner has been directed to promote him on the post of Lower Division Clerk (hereinafter referred to as `L.D.C.') with effect 28.4.84 with all consequential benefits. 2. The facts and circumstances giving rise to this case are that the `Appropriate Government' made a reference of an industrial dispute to the Labour Court on 21.7.86 as to whether the respondent-workman, a Class IV employee, was entitled to be promoted as L.D.C. with effect from 20.3.84. is Before the Labour Court, in the claim petition, respondent-workman had stated that he was appointed as Class IV employee on 28.4.79 and possessed the qualification of Secondary and was the senior most Class IV employee. However, Mr. Kalyan Singh, respondent No. 3, a Class IV employee junior to him as had been appointed with effect from 6.3.80, was promoted as L.D.C. vide or dated 20.3.84 and, thus, he was entitled to be promoted as L.D.C. from the said date. 3. The salient features and the admitted facts of the case remain that the respondent-workman, in his claim petition, had agitated the issue that the respondent No. 3 was promoted ignoring his claim and it was arbitrary, mala fide, discriminatory and against the principles of natural justice and, thus, the order dated 20.3.84, by which respondent No. 3 had been promoted, was liable to be quashed. Further mala fide was shown that after promoting respondent No. 3 as L.D.C., he was transferred to another office in Jaipur vide order dated 15.10.85 and relief of promotion with effect from 20.3.84 as L.D.C. was claimed. Respondent No. 3 Mr. Kalyan Singh, who had been impleaded as party before the Labour Court, filed reply before the Labour Court stating that in the petitioner society, the Rules tad not been framed . and till framing of the Rules, the Society had adopted the Rajasthan Service Rules, 1951 (for shod, `the Rules, 1951'). He had not been promoted rather appointed directly as he possessed the qualification of Higher Secondary and was very good in Hindi typing. He further contended that the issue whether his appointment/promotion vide order dated 20.3.84 was good and valid was out-side the scope of reference, therefore, the same cannot be decided by the Labour Court. He had not been promoted rather appointed directly as he possessed the qualification of Higher Secondary and was very good in Hindi typing. He further contended that the issue whether his appointment/promotion vide order dated 20.3.84 was good and valid was out-side the scope of reference, therefore, the same cannot be decided by the Labour Court. More so, he produced the order dated 20.3.84, which indicated that he was appointed purely for a period of three months and the tenure was likely to be extended after assessing his work and in case his services were not found to be satisfactory, it would be liable to be terminated. Respondent-workman mentioned in his affidavit filed on 5.5.88 that rules for selection or promotion had not been framed by the Society, rather they had adopted the procedure which was applicable in the case of State Government employees. In his cross-examination, he made it clear that he was not aware whether typing was necessary for the post of L.D.C. or but in case of promotion from Class IV employee to L.D.C., no such requirement was not mandatory. He was also not aware whether respondent No. 3 Kalyan Singh was appointed/promoted after assessing his merit along with him and other employees like Mr. Bhanwar Singh Handa. He also categorically stated that he was not claiming any relief against Kalyan Singh, rather he wanted promotion for himself. (Annexure 4). 4. On behalf of the petitioner society, the Manager Mr. Madan Lal Sharma filed an affidavit on 13.9.98 stating that the work of the respondent-workman had never been found satisfactory and respondent No. 3 Kalyan Singh was not promoted but was appointed on the post of L.D.C. as he had good knowledge of typing and possessed the qualification of Higher Secondary. Respondent-workman was not knowing the typing nor was he eligible for promotion. In his cross-examination, he categorically admitted that certain percentage is reserved for promotion on the vacancies of L.D.C. from Class IV employees. He also admitted that respondent No. 3 Kalyan Singh was not appointed by the Rajasthan Public Service Commission and was directly appointed by the petitioner society. The Committee which appointed him, consisted of the Managing Director and the General Manager of the Society. At the relevant time, there were only two vacancies available on the post of L.D.C. 5. Various legal issues have been agitated by the learned counsel for the parties. The Committee which appointed him, consisted of the Managing Director and the General Manager of the Society. At the relevant time, there were only two vacancies available on the post of L.D.C. 5. Various legal issues have been agitated by the learned counsel for the parties. particularly the scope of interference by the Writ Court, in its jurisdiction under Article 227 of the Constitution; impleadment of parties; acquiescence and that a party cannot be permitted to agitate a ground not taken by it in the Court below or to take a complete somersault on its stand. In support of their averments, various judgments have been cited at the Bar. 6. This Court has very limited scope of interference in exercise of its powers under Article 227 of the Constitution as per the law laid down by the Hon'ble Supreme Court in Mohd. Yunus v. Mohd. Mustaqim & ors., AIR 1984 SC 38 , wherein it has been held that even the errors of law cannot be corrected in exercise of re visional jurisdiction under Article 227 of the Constitution sparingly when it comes to the conclusion that the Authority/ Tribunal has exceeded its jurisdiction or .proceeded under erroneous presumption of jurisdiction. The High Court cannot assume unlimited prerogative to correct ell species of hardship or wrong decision. For intervention, there must be a case of flagrant abuse of fundamental principles of law or justice or where order of the Tribunal etc. has resulted in grave injustice. (Vide Constitution Bench judgments of the Apex Court in D.N. Banerji v. P.R. Mukherjee, AIR 1953 SC 58 ; and Nagendra Nath Bora v. Commissioner of Hills Division & Appeals, AIR 1958 SC 398 . For interference under Article 227, the finding of facts recorded by the Authority should be found to be perverse or patently erroneous and dehors the factual and legal position on record. (Vide Nibaran Chandra Bag v. Mahendra Nath Ghughu, AIR 1963 SC 1895 ; Rukmanand Bairoliya v. the State of Bihar & ors., AIR 1971 SC 746 ; Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha & ors., AIR 1980 SC 1896 ; Laxmikant R. Bhojwani v. Pratapsing Mohan Singh Pardeshi, (1995) 6 SCC 576 ; Reliance Industries Ltd. v. Pravinbhai Jasbhai Patel & ors., (1997) 7 SCC 300 ; M/s. Pepsi Food Ltd. & Anr. v. Sub-Judicial Magistrate & ors., (1998) 6 SCC 749 ; and Virender Kashinath Ravat & ors. v. Vinayak M. Joshi & ors. (1999) 1 SCC 47 . 7. It is well settled that power under Article 227 is of the judicial superintendence which cannot be used to upset conclusions of facts, `howsoever erroneous those may be, unless such conclusions are so perverse or so unreasonable that no Court could ever have reached them. (Vide Rena Drego v. Lalchand Soni; (1998) 3 SCC 341 ; Chandra Bhushan v. Beni Prasad & ors., (1999) 1 SCC 70 ; Savitrabai Bahusaheb Kevate & ors. v. Raichand Dhanraj Lunja, (1999) 2 SCC 171 ; and Savita Chemical (P) Ltd. v. Dyes & Chemical Workers Union & Anr., (1999) 2 SCC 143 . Unless the findings are patently erroneous and de hors the factual and legal position on record, exercising the power under Article 227 of the Constitution may not be justified and in that eventuality disturbing the findings of facts would amount to jurisdictional error. (Vide Dattatraya Laxman Kamble v. Abdul Rasul Moulali Kotkunde, (1999) 4 SCC 1 . Power under Article 227 of the Constitution is not in the nature of power of appellate authority enabling re-appreciation of evidence. It should not alter the conclusion reached by the competent Statutory Authority merely on the ground of insufficiency of evidence. (Vide Union of India & ors. v. Himmat Singh Chahar, (1999) 4 SCC 521 . Nor it is permissible for the High Court to substitute its opinion of the Labour Court in proceedings under Article 226/227 of the Constitution. (Vide Ajaib Singh v. Sirhind Co-operative Marketing-cum-Processing Service Society Ltd., (1999) 6 SCC 82 . 8. On the issue of impleadment of necessary party, a Constitution Bench of the Hon'ble Supreme Court in Udit Narain Singh Malparia v. Member, Board of Revenue, Bihar, AIR 1963 SC 786 , has categorically held that a person who is likely to be adversely affected, is a necessary party and no order affecting him adversely can be passed behind his back and if it is so passed, the person has a right to ignore the said order. 9. 9. In Central Bank of India v. S. Satyam & ors., (1996) 5 SCC 419 , the Hon'ble Supreme Court has held that when a person claims relief under Section 25-H of the Act alleging that workmen retrenched subsequent to him have been re-employed ignoring his claim for re-employment, the said workmen, are necessary party and they should be impleaded. 10. In Hochtief Gammon v. Industrial Tribunal, Bhubneshwar, Orissa & ors., AIR 1964 SC 1746 , after considering several provisions of the Act the Court observed that the Tribunal has a limited jurisdiction and it has to decide the dispute referred to it for adjudication by Appropriate Government by an order of reference, therefore, it is not open to the Tribunal to travel materially beyond the terms of reference and while dealing with some incidental matters, if Tribunal feels that some persons, who are not joined to the reference, should be brought before it, it may be able to make an order in that behalf under Section 18(3)(b) of the Act. The Court observed as under:- "The result of these relevant provisions clearly seems to be that if the Industrial Tribunal, while dealing with an industrial dispute, came to the conclusion that persons other than those mentioned as parties to the industrial dispute were necessary for a valid determination of said dispute, it had the power to summon them; and if such persons were summoned to appear in the proceedings, the award that the Industrial Tribunal may ultimately pronounce, would be binding on them......." The test always must be, is the addition of the party necessary to make the adjudication itself effective and in forcible? In other words, the test may well be, would the non-joinder of the party make the arbitration proceedings ineffective and unenforceable? It is in the light of this test that the implied power of the Tribunal to add parties must be held to be limited." 11. Issue of promotion and supersession is also no more res-integra. A Constitution Bench of the Supreme Court in Management of Brooke Bond India (Pvt.) Ltd. v. Their Workmen, AIR 1966 SC 668 , has held that promotion and supersession cannot be dealt with by the Labour Court unless the same is alleged to have been made on account of male fides or victimisation. A Constitution Bench of the Supreme Court in Management of Brooke Bond India (Pvt.) Ltd. v. Their Workmen, AIR 1966 SC 668 , has held that promotion and supersession cannot be dealt with by the Labour Court unless the same is alleged to have been made on account of male fides or victimisation. The Court had observed as under - "Generally speaking, promotion is a management function; but it may be recognised that there may be occasions when a Tribunal may have to interfere with promotions made by the Management where it is felt that persons superseded have been so superseded on account of mala fides or victimisation. Even so, after a finding of mala fides or victimisation, it is not the function of a Tribunal to consider the merits of various employees itself and then decide whom to promote or whom not to promote. If any Industrial Tribunal finds that promotions have been made which are unjustified on the ground of mala fides or of victimisation, the proper course for it to take is to set-aside the promotions and ask the Management to consider the cases of superseded employees and decide for itself whom to promote, except, of course, the persons whose promotion has been set aside by the Tribunal." 12. It is also settled proposition of law that a discrimination/victimisation alleged by the petitioner to have been committed by the Management, should be a conscious one any may not be a result of over-sight. (Vide Constitution Bench Judgment of the Supreme Court in Ramnath Verma & ors. v. State of Rajasthan & ors., AIR 1967 SC 603 . In the instant case, undoubtedly, petitioner-workman had made allegations of discrimination by the Management. In a case where allegations of malafides are against a Statutory Authority, the workman was supposed to name out the individual officer who was having any malice towards him so that the Labour Court ought to have summoned him and ask him to explain his conduct. In absence of such particulars, the allegations of mala fide etc. cannot be taken into consideration. (Vide J.M. Banuwalikar v. Municipal Corporation, Delhi and others, AIR 1996 SC 326 ; State of Bihar and others v. P.P. Sharma, 1992 Suppl. (1) SCC 222 ; and I.K. Mishra v. Union of India and others, (1997) 6 SCC 228 . 13. In absence of such particulars, the allegations of mala fide etc. cannot be taken into consideration. (Vide J.M. Banuwalikar v. Municipal Corporation, Delhi and others, AIR 1996 SC 326 ; State of Bihar and others v. P.P. Sharma, 1992 Suppl. (1) SCC 222 ; and I.K. Mishra v. Union of India and others, (1997) 6 SCC 228 . 13. The word `victimization', though not defined in the Act but the term was considered by the Hon'ble Supreme Court in Bharat Bank Ltd. v. Employees of Bharat Bank Ltd. AIR 1950 SC 188 , wherein the Hon'ble Supreme Court absented that "victimization" is an ordinary English word which means that a certain person has become a victim. In other words, he has been unjustly dealt with." 14. In Workmen Williamson Magor Co. Ltd. v. Williamson Magor Co. Ltd. & ors., AIR 1982 SC 78 , the Hon'ble Supreme Court, pieced reliance on its judgment in K.C.P. Employees' Association,Madras v. Management of K.C.P Ltd. Madras, AIR 1378 SC 474 , wherein it has been observed that Industrial Law should be interpreted and applied in the perspective of Part IV of the Constitution giving benefit of reasonable doubt on law and facts, if there be such doubt, to the weaker section, i.e. the Labour and the Tribunal should dispose of the case making the compassionate approach but without over-stepping the proved facts. The Court observed as under - "That wherever a workman has been dealt with unfairly and arbitrarily, the case of the superseded workman may be termed as victimization. Them may be cases where in spite of allegations of mala fides, the workman of the union may not be able to prove factual mala fides but there may be malice in law and effectual vitimization may be obvious due to the fact that unjustified promotions of some junior persons were made superseding without any reason or necessity the other senior persons." 15. Similar view has been taken by the Hon'ble Supreme Court in Workmen Employed by Hindustan Liver Limited v. Hindustan Liver Limited, AIR 1984 SC 1683 . 16. In Niemla Textile Finishing Mills Ltd. & ors. v. 2nd Punjab Tribunal & ors., AIR 1957 SC 329 , the Constitution Bench of the Hon'ble Supreme Court has held as under "A Legislature cannot anticipate every possible legal problem. Neither can it do justice in cases after they had arisen. 16. In Niemla Textile Finishing Mills Ltd. & ors. v. 2nd Punjab Tribunal & ors., AIR 1957 SC 329 , the Constitution Bench of the Hon'ble Supreme Court has held as under "A Legislature cannot anticipate every possible legal problem. Neither can it do justice in cases after they had arisen. This inherent limitation in the legislative process makes it essential that there must be some elasticity in the judicial process. Even the ordinary course of law applies to the principle of justice, equity and good conscience in many cases, e.g. cases in tort and other cases where the law is not codified or does not , in turn, cover the problem under consideration. The initial courses are to adjudicate on the disputes between employers and their workmen etc. and in the course of such adjudication, they must determine the `right' and `wrongs' of the claims made and in so doing, they are undoubtedly free to apply the principle of justice, equity and good conscience, keeping in view the further principle that their jurisdiction is invoked not for the enforcement of mere contradictory rights but for preventing labour practice regarded as unfair and for restoring industrial peace on the basis of collective bargaining. The process does not cease to be judicial by reason of that elasticity or by reason of application of principle of justice, equity and good conscience. 17. In Kalyan Peoples Co-operative Bank Ltd. v. Dulhanbibi Aqual Aminasheb Patil & ors., AIR 1966 SC 1072 , the Hon'ble Apex Court held that requirement of producing the evidence to the factual matrix is rot required at all if the opposite party has agreed to it. The reason behind this rule is that it to would be unfair to ask any party to prove a particular fact when the other party has already admitted that the way it has been brought before the Court has sufficiently proved it and in case the party does not raise any objection on a particular fact mentioned in the pleadings, there is no need to lead the evidence on that issue. 18. In M/s. M.P. Sugar Mills Co. Ltd. v. State of U.P. & others, AIR 1979 SC 621 , the Hon'ble Apex Court has held that it is ultimately that waiver is a question of fact and it may be properly pleaded and proved. 18. In M/s. M.P. Sugar Mills Co. Ltd. v. State of U.P. & others, AIR 1979 SC 621 , the Hon'ble Apex Court has held that it is ultimately that waiver is a question of fact and it may be properly pleaded and proved. No plea of waiver can be allowed to be raised unless it is pleaded and the factual foundation for it is lea in the pleadings as there can be no waiver unless the person who is said to have waived his fully enough as to his right and with full knowledge of such right, he intentionally abandons it. 19. From the facts and the law referred to above, it is evident that respondent-workman had not claimed any relief whatsoever against the respondent No. 3 and if it is so, it is not understandable as for what purpose he had been impleaded as a defendant. More so, the Labour Court has erred in proceeding with the presumption that the appointment of employees in the petitioner Co-operative Society, had to be made under the Rules, 1951. The said Rules provide for General provisions of appointment etc. but there is no rule for making promotion from the post of Class IV to the post of Lower Division Clerk. The Rules which are relevant in the State Government service are the Rajasthan Subordinate Offices Ministerial Staff Rules, 1957 (for short, "the Rules, 1957") and the said Rules provide for procedure for filling up the posts of L.D.Cs. through Rajasthan Public Service Commission. Rule 7(3) of the said Rules, as it existed at the relevant time, provided for reservation of 10% of the vacancies of Lower Division Clerks to be filled up by promotion from Class IV employees. The case before the Labour Court was that there were only two vacancies of Lower Division Clerk at the relevant time and if 10% vacancies could be filled up by promotion, there was no scope either to as promote the respondent-workman or the respondent No. 3 as no vacancies fell in that quota. The General Manager of the petitioner society was cross-examined by the respondent-workman and he had full opportunity to elicit this issue. No question was put to him in the cross-examination and no clarification was sought. The General Manager of the petitioner society was cross-examined by the respondent-workman and he had full opportunity to elicit this issue. No question was put to him in the cross-examination and no clarification was sought. The Labour Court erred in appreciating that if there as was no vacancy to be filled up in promotional quota, how the respondent-workman could be promoted. 20. More-so, even if there was one vacancy to be filled-up by promotion and the same was filled up by promotion of respondent No. 3, was it open for the Labour Court to promote the respondent No. 3. At the most, so as per the law laid down by the Hon'ble Supreme Court referred to above, the Labour Court ought to have asked the Management to consider the case strictly in accordance with law after determining the farts position The Labour Court failed to appreciate the evidence led by petitioner society as there had been a crystal clear stand that respondent No. 3 had been appointed/promoted after considering his merit along with respondent-workman and others. No rule has been pointed out by the learned counsel for the respondent-workman that promotion was to be made purely on the basis of `seniority' and `merit' had no role, to play in it, nor the Labour Court could consider the fact that in a society even if Rules, 1951 had been adopted, how could the Rajasthan Public Service Commission be involved in filling up the vacancies of Lower Division Clerk and, therefore, where was the scope to promote any employee as per the Rules, 1951 or the Rules, 1957. Any averment made by a party and conceded by other party, if run counter to the basic principle of law or the statutory provision, is liable to be ignored. (Vide Ram Ganesh Tripathi v. State of U.P & ors. AIR 1997 SC 1446 . 21. Any averment made by a party and conceded by other party, if run counter to the basic principle of law or the statutory provision, is liable to be ignored. (Vide Ram Ganesh Tripathi v. State of U.P & ors. AIR 1997 SC 1446 . 21. The Labour Coon took note of the fact that the appointment letter issued to respondent No. 3 Kalyan Singh could not be said to be an order of promotion and it was an appointment letter but side-tracked the issue by stating the Court was concerned only whether respondent - workman was entitled tor promotion on the post of L.D.C. In fact, even if respondent No. 3 was promoted, there was no material before the Labour Court to contradict the stand that respondent No. 3 had been promoted after considering his case along with respondent-workman and other employees and the respondent workman was not found suitable as he did not know typing and his work was not found suitable. It further failed to appreciate that if there were only two vacancies in the society, how any of them could be filled up by promotion under the promotional quota for Class IV employee provided under rule 7(3) of the Rules, 1957, even if the said Rules, 1967 were applicable. Learned Labour Court observed that respondent No. 3 had been appointed and transferred to Jaipur and, therefore, the vacancy was available. The Court failed to appreciate that even if the vacancy was available, it was not meant to be filled up by promotion nor there is any discussion or finding of fact recorded by the Labour Court on this count. Unfortunately, the Labour Court has misdirected itself and without determining the basic question whether under any law or rule the respondent-workman was required to be considered for promotion and whether the vacancy, which was available on the post of L.D.C. be filled up by promotion under any rule/law, made the award in favour of the workman. 22. Thus, even In a limited jurisdiction under Article 227 of the 4o Constitution, it is a fit case which falls within the exceptional category where this Court must interfere and in view of the above, the Labour Court Award is liable to be set aside. 23. Thus, there is no substance in the averments made by Mr. 22. Thus, even In a limited jurisdiction under Article 227 of the 4o Constitution, it is a fit case which falls within the exceptional category where this Court must interfere and in view of the above, the Labour Court Award is liable to be set aside. 23. Thus, there is no substance in the averments made by Mr. Acharya that the petitioner cannot be permitted to change the stand taken by it before the Labour Court, nor there was any acquiescence by the Society on the application of Rules, 1951 or 1957, nor issue of estoppel is involved in the instant case, against the petitioner society. 24. Before parting with the case, it is worth mentioning that the Award was made in 1988. At the Bar, it has clearly been stated that the Award has not yet been implemented and there had been no effort on the part of the respondent-workman for its implementation. The society did not implement the award after the petition was entertained by this Court in spite of the fact that there was no interim order staying the operation of the impugned Award. Thus, setting aside the award is not going to disturb any existing position. 25. In view of the above, the petition succeeds and is allowed. The Labour Court Award dated 29.9.88 (Annexure 6) is hereby set aside. However, in the facts and circumstances of the case. It is directed that the society may consider the claim of respondent-workman for promotion etc. strictly in accordance with Rules/law in force, if any, if he fulfils all other conditions. There shall be no order as to costs.Petition Allowed. *******