JUDGMENT 1. - The instant writ petition has been filed challenging the impugned Award dated 27.8.94 (Annexure 12), by which the claim of the respondent-workman for promotion with effect from 2.7.75 on the post of Electrician has been allowed. 2. The facts and circumstances giving rise to this case are that the respondent-workman had joined the petitioner under the Work-charged Employees (including PWD (B & R), Garden. Irrigation (including Water Supply, Forest Department and Aayurved Department) Service Rules, 1964 (for short, "the Rules, 1964"). Workman claimed to have worked with effect from 2.7.75 as an Electrician though the present petitioner had given him the promotion with effect from 9.5.77 while two other persons, viz., Bhupendra Singh and Madan Singh, had been offered the post of Electricians by direct appointment in 1975-1976. Respondent-workman raised the dispute at a belated stage and the Appropriate Government made a reference : whether his promotion with effect from 9.5.77 is justified or whether he ought to have been given promotion w.e.f. 2.7.75 ? After considering the evidence adduced before it, the Labour Court allowed the claim of the respondent-workman and directed that he may be granted promotion with effect from 2.7.75 instead of 9.5.77. Hence this petition. 3. The submission raised on behalf of the petitioner is that after availing the benefit of promotion for a period of twelve years, the respondent workman ought not have raised the industrial dispute in 1987 and even if the reference was made. the Labour Court ought to have rejected the claim only being a stale claim. In view of the judgment of the Hon'ble Supreme Court in Ajaib Singh v. Surhind Co-operative Marketing Society, (1999) 6 SCC 82 , such a plea is not maintainable for the reason that if the Legislature has not fixed any period of limitation and a claim is raised at a belated stage, the Labour Court may deprive the workman of back wages etc. but the claim cannot be rejected merely being stale. 4. It has further been contended that the services of the respondent-workman involved in this case were governed by the Rules, 1964. Rule 4 provides for mode of appointment and promotion and Clause (3) of the said rule specifically provides that the appointment shall be made by the rules framed by the Head of the Department. Rule 7 provides for maintaining seniority list of the employees of the same category. Rule 4 provides for mode of appointment and promotion and Clause (3) of the said rule specifically provides that the appointment shall be made by the rules framed by the Head of the Department. Rule 7 provides for maintaining seniority list of the employees of the same category. However, the posts have to be filled-up in accordance with the procedure and quota prescribed in the Schedule. As per the Schedule annexed to the said Rules, 25% vacancies on the post of Electricians are to be filled up by direct recruitment while 75% posts are to be filled-up by promotion. Therefore, the rule itself stipulates for quota-rota rule. The Labour Court has decided the whole case on the basis of the letter dated 2.7.75 written by the Assistant Engineer, by which the workman was directed to work on a particular date as an Electrician and that had been the sheet-anchor of his argument. While adjudicating upon the claim of the respondent-workman, the Labour Court failed to take note of the statutory Rules. If the rule provides for filling up the vacancies by promotion and direct appointment separately, it was the duty of the Labour Court to find out first whether the vacancies, which occurred on 2.7.75, had fallen in the quota of direct recruitment or in promotion quota. Without determining so, the Labour Court was not warranted to proceed further in the matter and in absence of any specific finding of fact that the post was to be filled up by promotion, the award could not have been made in favour of the respondent-workman. 5. In the case of N. S. Giri v. City Corporation of Mangalore, JT 1999 (6) SC 538 , the Apex Court has held that if an award has been made in contravention of the statutory rules, it is to be treated as void and it cannot be given effect to. In the instant case, as the Labour Court has not first determined whether the vacancies occurred on 2.7.75 would have been filled-up by promotion, the award remains inconsequential and un-executable. 6. More so, in a case of promotion, it is not permissible for the Labour Court to make direct order of promotion for the reason it affects the seniority and promotion of other persons who are not party before the Labour Court. 6. More so, in a case of promotion, it is not permissible for the Labour Court to make direct order of promotion for the reason it affects the seniority and promotion of other persons who are not party before the Labour Court. In the instant case, respondent-workman claimed victimisation because of direct recruitment of Bhupendra Singh and Madan Singh and the Labour Court has decided the claim without impleading them as a party, or even without giving them any show cause notice. 7. On the issue of impleadment of necessary party, a nearly 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. 8. 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. 9. In Hochtief Gammon v. Industrial Tribunal, Bhubneshwar, Orissa & Ors., AIR 1964 SC 1746 , where after considering several provisions of the Act, the Apex 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 inforcible? 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." 10. There is another aspect of the matter which has not been considered by the Labour Court. 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 mala 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 male 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." 11. 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 and 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 else where allegations of mala fides 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 . 12. 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 observed 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." 13. In Workmen Williamson Magor Co. Ltd. v. Williamson Magor Co. Ltd. & Ors., AIR 1982 SC 78 , the Hon'ble Supreme Court, placed reliance on its judgment in K.C.P. Employees' Association, Madras v. Management of K.C.P. Ltd., Madras, AIR 1978 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 so 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. There may be cases where in spite of allegations of mala fides. 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. There 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 victimisation 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." 14. Similar view has been taken by the Hostile Supreme Court in Workmen Employed by Hindustan Liver Limited v. Hindustan Liver Limited, AIR 1984 SC 1683 . 15. Thus, in view of the above, I am of the candid view that the Labour Court has grossly erred while making the award in favour of the respondent-workman and the same is liable to be set aside. 16. The petition succeeds and is allowed. The impugned award is set aside. There shall be no order as to costs.Writ Petition Allowed. *******