146

LA GAZETTE DE L’ETAT

[1 March 2011

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 34/AIL/Lab./J/2011, dated 10th February 2011)

NOTIFICATION

Whereas, the Award in I.D. No. 7/2008, dated 3-12-2010

of the Labour Court, Karaikal in respect of the

industrial dispute raised by Thiru M. Narayanasamy

against the management of M/s. Ambagarathur

Co-operative Milk Society Limited, Karaikal over his

non-employment has been received;

Now, therefore, in exercise of the powers conferred

by sub-section (1) of section 17 of the Industrial

Disputes Act, 1947 (Central Act XIV of 1947) read with

the notification issued in Labour Department’s G. O.

Ms. No.20/91/Lab/L, dated 23-5-91, it is hereby directed

by Secretary to Government (Labour) that the said

award shall be published in the official gazette,

Puducherry.

(By order)

G. MALAR KANNAN,

Joint Secretary to Government (Labour).

————

BEFORE THE LABOUR COURT, KARAIKAL

Present : Tmt. R. MARGARET ROSALINE, M.L.,

Presiding Officer, District Judge.

Friday, the 3rd day of December 2010.

I. D. No. 7/2008

Narayanasamy

. . Petitioner

Versus

Ambagarathur Co-operative . . Respondent

Milk Society Limited.

This petition coming on this day for hearing before

me in the presence of Thiru A.Thirumal Valavan,

advocate for the petitioner, Thiru S. Suriamoorthy,

advocate for the respondent, and later the respondent

was called absent and was set ex parte, upon hearing

the petitioner and perusing the case records, this court

passed the following:

AWARD

This is a reference under the Industrial Disputes

Act, 1947 r e g a r d i n g t h e d i s p u t e w i t h i n t h e

management of M/s. Ambagarathur Co-operative

Milk Society Limited, Ambagarathur, Karaikal and its

workman M.Narayanasamy over his non-employment in

G.O.Rt.No.134/AIL/Lab./J/2008, dated 30-7-2008.

The following issues are found in the Annexure:

(1 ) W h e t h e r t h e d i s p u t e r a i s e d b y

Thiru M. Narayanasamy against the management

of M/s. Ambagarathur Co-operative Milk Society

Limit ed , Ambagarathur, K a r a i k a l o v e r h i s

non-employment is justified or not?

(2) To what relief, Thiru M. Narayanasamy is

entitled to?

(3) To compute the relief, if any, awarded in terms

of money, if it can be so computed?

2. Notice had been served on the respondent and

objection to the claim statement had been filed.

Thereafter the respondent was called absent and was

set ex parte. The petitioner filed his proof affidavit as

PW.1 and Ex.P1 to Ex.P5 have been marked. Perused.

Award passed. As the petitioner has proved that he was

employed since 6-2-2002 by the respondent as daily

wages and has been retrenched without any enquiry or

following statutory requirements, he is directed to be

reinstated into service with immediate effect with

continuity of service. As far as the back wages is

concerned, he is entitled for 5% backwages alone as per

the last paid wage. As the petitioner has not proved

through documentary evidence to show his right to

claim arrears as averred in the petitioner, he is not

entitled for the same. Hence the petition is partly

allowed accordingly without costs.

Written down and pronounced by me in the open

court on this the 3rd day of December 2010.

R. MARGARET ROSALINE,

Presiding Officer, Labour Court,

Karaikal.

————

Petitioner’s witnesses :

PW.1—Narayanasamy

Respondent’s witnesses : Nil

Petitioner’s exhibits :

Ex.P1—5-2-2002

Office order issued to the petitioner

Ex.P2—4-2-2002

Xerox copy of the board resolution

Ex.P3—19-1-2006 Pay certificate of the petitioner

Ex.P4—2-11-2001 Xerox copy of the circular

Ex.P5—2-11-2001 Xerox copy of the circular.

Respondent’s exhibits : Nil

R. MARGARET ROSALINE,

Presiding Officer, Labour Court,

Karaikal.

147

1 March 2011]

LA GAZETTE DE L’ETAT

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 37/AIL/Lab./J/2011, dated 17th February 2011)

NOTIFICATION

Whereas, the Award in I.D. No. 29/2008, dated 26-11-2010

of the Labour Court, Puducherry in respect of the

industrial dispute raised by the Anna Thozhilalar

union against the management of M/s. Anglo-French

Textiles, Puducherry over non-promotion/confirmation

of Thiru V. Sivasankaran has been received;

Now, therefore, in exercise of the powers conferred by

sub-section (1) of section 17 of the Industrial Disputes

Act, 1947 (Central Act XIV of 1947) read with the

notification issued in Labour Department’s G. O. Ms.

No. 20/91/Lab./L, dated 23-5-1991, it is hereby directed

by Secretary to Government (Labour) that the said

Award shall be published in the official gazette,

Puducherry.

(By order)

G. MALAR KANNAN,

Joint Secretary to Government (Labour).

————

BEFORE THE LABOUR COURT AT PONDICHERRY

Present : Thiru T. MOHANDASS, M.A., M.L.,

II Additional District Judge,

Presiding Officer, Labour Court.

Friday, the 26th day of November 2010

I.D. No. 29/2008

The President,

Anna Thozhilalar Union,

Rodiar Mill Street, Mudaliarpet

. . Petitioner

Versus

The Managing Director,

Anglo-French Textiles,

Pondicherry

. . Respondent

This industrial dispute coming on 22-10-2010 for

final h e a r i n g b e f o r e m e i n t h e p r e s e n c e o f

Thiruvalargal R.S. Zivanandam, D. Ravichandran,

S. Ashok Kumar, advocates for the petitioner,

Thiru B. Mohandoss, advocate for the respondent,

upon hearing both sides, upon perusing the case

records, after having stood over for consideration till

this day, this court passed the following :

AWARD

This industrial dispute arises out of the reference

made by the Labour Department, Government of

Pondicherry vide G.O. Rt. No. 128/AIL/Lab./J/2008,

dated 21-7-2008 for adjudicating the following:—

(a) W h e t h e r the dispute raised by Anna

Thozhilalar Union against the management of

M/s. Anglo-French Textiles, Pondicherry over

non-promotion/confirmation of Thiru V. Sivasankaran

is justified or not?

(b) To what relief, he is entitled to?

of money, if it can be so computed?

2. The petitioner in his claim statement, has averred

as follows:

Thiru V. Sivasankaran was appointed as an

employee of Anglo-French Textiles and posted to

work in the category known as Spare Parts Helper

Transport in the muster under the control of Picanol

Maintenance. It was in the practice from the erstwhile

management to engage Attenders as Clerks in the

absence of shortfall of Clerks and later used to

promote them as Clerks. One Thiru Natarajan,

Attender of ‘B’ unit was engaged in the post of Clerk

from 1987 and subsequently the said Natarajan died

in the year 1991. Thiru V. Sivasankaran the concerned

worker designated as Transport Helper was assigned

to do the work of Attender. When vacancy arises in

the post of Attender, it is the usual practice of the

management to get the assistance of the worker to do

the vacant post. Likewise, the concerned worker

Thiru V. Sivasankaran was asked to do the duties of

Attender from 1987.

Thiru V. Sivasankaran was engaged as an Attender

and also as a Clerk from the year 1988 till date

without proper promotion or confirmation in the post

of Attender denying the monetary benefits and other

benefits that are applicable to other employees, who

are Attenders.

The Managers of ‘B’ unit have sent many letters

to the Personnel Department, highlighting the case of

Thiru V. Sivasankaran, who is posted as an Attender

in place of Thiru Natarajan, who is posted as a Clerk.

The respondent through its HR Department,

Manager (Personnel) has called for details of the

employees, who are working in higher categories

vide No. PD/643/91, dated 11-3-1991. The unit has

sent the necessary information to the Manager,

Personnel heads vide letter NM/WS/No. 015, dated

15-3-1991. In spite of it, the management did no

confirmation to higher category to the post of

Attender.

Thiru V. Sivasankaran made his representation to

Manager (Industrial Relations) through proper

channel also by the Manager (Weaving). But the

respondent confirmed three Attenders, who had been

148

LA GAZETTE DE L’ETAT

[1 March 2011

appointed in daily rated basis in Head Office and

Dispensary. Having not considered for promotion or

confirmation

Thiru

Sivasankaran

made

his

representation to the Managing Director and to the

Chairman at last. Having found that there was no

reply, he approached the Conciliation Officer through

his trade union for the promotional benefits.

Thiru V. Sivasankaran has been engaged as

Attender from the year 1988 and he had worked for

more than 240 days in the higher position without

benefits. Hence, this industrial dispute is filed to

award monetary benefits that are entitled to

Thiru V. Sivasankaran for the post of Attender and

place him in the seniority list and thereby he may

also be promoted to the post of Clerk with

retrospective effect from the year 1991 with monetary

benefits according to the scale of pay prevailing in

the respondent’s management to the relevant categories.

3. In the counter statement, the respondent has

stated as follows:

It is true there was practice from the erstwhile

management to enagage Attenders as Clerks, where

there was shortall of Clerks and later to promote them

as Clerks depending upon the permanent vacancy.

Similarly the vacant post of Attenders used to be

filled up from the post of existing workers, when

there was shortfall of clerical staff based on

permanent vacancy. Such a practice of engaging a

person in a higher category of post in a temporary

vacancy (as a stop-gap arrangement) cannot confer

automatic right to hold that higher post. Unless

confirmed in the officiating higher post, the person

holding substantive lower post cannot claim for

treatment on par with a person holding substantive

higher post.

The Government of Pondicherry constituted a

Special Industrial Tribunal to adjudicate the

industrial dispute between the management and

workmen of Anglo-French Textiles with respect to

their demand for wage revision/benefits and the

dispute was numbered as I.D.1/2000. The Special

Industrial Tribunal after hearing both sides submitted

an award to the appropriate Government on 18-4-2001

and the Government of Puducherry published the

award in the official gazette, dated 11-8-2001.

However,

the

Government

Puducherry

simultaneously made a declaration under section 17A

of Industrial Disputes Act that the award will not

become enforceable on the expiry of 30 days from the

date of publication of award on the ground that

giving effect to that award will affect the national

economy and social justice.

The Textile Technical Tradesman Association filed

W.P. No. 15517/2001 to stay the operation of the

notification issued by the Labour pending disposal

of the W.P. and also to pass adinterim injunction

restraining A.F.T. and P.T.C. Limited, from entering

into any wage settlement with their workmen pending

disposal of the writ petition, the Association also

filed W.P. No. 15518/2001 for a writ of declaration to

declare sections 17A(1) and 17A(3) of the Industrial

Disputes Act as ultravires the Constitution of India.

As far as the arrears of wages part of the Government

Order is concerned, the same has been implemented

with effect from 1-1-2003 and limited to ` 15,000 and

settled on 23-7-2005. The entire amount paid has been

made only as tentative payments, subject to the final

orders of the Hon’ble High Court in the said two writ

petitions which are still pending in the Hon’ble High

Court. During the pendency of the writ petition,

the management cannot suo moto finalise the

rationalisation of the employees. Hence, they pray for

dismissal of the industrial dispute.

4. On the side of the petitioner, PW.1 was examined

and maked Ex.P1 to Ex.P24 were marked. On the side of

the respondent, no oral evidence was adduced and Ex.R1

to Ex.R4 were marked by consent.

5. The point for determination is :

Whether the relief sought for by the petitioner can be

allowed?

6. On the point :

This is an individual dispute of an employee, namely

Sivasankaran, whose cause was espoused by the

Labour Union, the petitioner herein against the

employer M/s. Anglo-French Textiles, Puducherry.

7. The contention of the learned counsel for the

petitioner is that the employee Sivasankaran, who is a

member of the petitioner-union, joined the services of

the respondent in the year 1986 as Spare Parts Helper

Transport and his name is in the muster roll of the

Department of Picanol Maintenance. The practice of the

management is to engage the Attenders of the mill as

Clerks in the event of any shortfall in that category.

Likewise the vacant posts of Attenders were filled from

the workers category. During the year 1987, one

Natarajan, Attender was asked to do the job of Clerk and

in his vacant post of Attender, the petitioner-union

member Sivasankaran was asked to do the job of

Attender. In the year 1991, the said Natarajan officiating

as Clerk in the ‘B’ Unit of the mill also died. Hence, the

said Sivasankaran was asked to do the duties of Clerk

from the year 1991 onwards. Though he was assigned

the duties of Clerk, he was not promoted to the post of

Clerk and not paid the salary and other benefits of

Clerk, as applicable to other Clerks of the mill.

Therefore, he made several representations to the

management to offer him the post of Clerk and to extend

the benefits of Clerk right from the date on which he was

assigned to do that work, but as the management did

not budge to this request, he has approached the

petitioner-union, to espouse his cause, which in turn

has resulted in the industrial dispute.

149

1 March 2011]

LA GAZETTE DE L’ETAT

8. Per contra, the contention of the respondent is

that it has been the practice of the management to

engage Attenders as Clerks, where there was shortfall

of Clerks and later to promote them as Clerks depending

upon the permanent vacancy and similarly, the vacant

post of Attenders was used to be filled up from the post

of existing workers, when there was shortfall of clerical

staff, based on permanent vacancy. Such a practice of

engaging a person in higher category of post in a

temporary vacancy (as a stop-gap arrangement) cannot

confer automatic right to hold the higher post. Such a

practice has got sanction in service jurisprudence and

it not uncommon in Government service also to appoint

a person holding a substantive lower post to work

temporarily in a higher post called officiating post. It is

further contended that the Government of Pondicherry,

vide G.O. Ms. No. 14/2000-Lab./L of the Labour

Department, dated 28-7-2000, constituted the Special

industrial tribunal to adjudicate upon the industrial

dispute between the management and workmen of

Anglo-French Textiles in I.D. 1/2000 with respect to

their demand for wage revision benefits with effect from

1-1-1999. The Special Industrial Tribunal passed an

Award on 18-4-2001, but Government of Pondicherry

vide Notification G.O. Ms. No. 24/2001, dated 11-8-2001,

under section 17A of the Industrial Disputes Act,

declared that the said Award will not become enforceable

because the Award would affect the national economy

and social justice. Aggrieved by the said notification,

the Textiles Technical Tradesmen Association filed writ

before the Hon'ble High Court in W.P.15517/2001 for

staying the operation of notification in G.O. Ms.No.24/2001,

dated 11-8-2001, issued by the Labour Department and

to restrain the respondent from indulging in any wage

settlement with its workmen, pending disposal of the

writ petition. The said Association also filed W.P.

No.15518/2001 to declare sections 17A(1), 17A(2) and

17A(3) of the Industrial Disputes Act as ultravires of the

Constitution of India. The respondent would therefore

contend that as the writ petitions are pending, the

petitioner-union has no locus standi to maintain this

industrial dispute.

9. On the side of the petitioner-union, the President

of the union was examined as P.W.1 and Exs.P1 to P24

marked. On the side of the respondent, no oral evidence

was adduced, but Exs.RI to R4 were marked by consent.

10. Now it has to be seen whether the petitioner-

union is entitled for the relief sought for.

11. The member of the petitioner-union, viz.,

Sivasankaran is a permanent employee in the muster roll

of the respondent, as defined in the Standing Orders

of the respondent-mill. From the documents marked as

Exs.P1 to P24, it is seen that the officers of the

respondent’s ‘B’ Unit have sent many letters to the

Personnel Department highlighting the case of

Thiru V. Sivasankaran, who is posted as an Attender in

place of Thiru Natarajan, who died in service of the mill

as Clerk. It is also seen that the respondent through the

Manager (Personnel) has called for details of the

employee who are working in higher categories vide

No. PD/643/91, dated 11-3-1991 and in reply thereto, the

Weaving Master of ‘B’ Unit has sent the necessary

particulars to the Manager (Personnel) vide letter NM /

WS / No. 015, dated 15-3-1991, but the management did

not choose to offer the post of Clerk to the employee

Sivasankaran. It is further seen that though the

employee

Sivasankaran

has

made

several

representations to the respondent, his plea was not

considered and instead, the respondent is found to have

confirmed three Attenders who were appointed on daily

rated basis in the Head Office and Dispensary.

12. There is no dispute that the employee

V. Sivasankaran has been engaged as Attender from the

year 1988 and he had worked for more than 240 days in

the higher position of Clerk since the year 1991 without

benefits. It is not expected of the respondent to make

use of the service of the employee for nearly 20 years

without giving the monetary benefits intended for the

higher post.

13. However, at the outset, it has to be seen that the

respondent-management has clearly admitted in the

counter statement filed by them that it is a practice

followed by the management to fill the vacant post of

Attenders from the post of existing workers and to

engage Attenders as Clerks, where there was shortfall

of Clerks and later to promote such of those Attenders

as Clerks depending upon the permanent vacancy.

However, the learned counsel argued before this court

that simply because the employee was asked to look

after the duties of the Clerk, it would confer upon him

the right to claim promotion to the post of Clerk, since

such an appointment was made only as a stop-gap

arrangement on a temporary basis and the promotion

to the post of Clerk could be considered only when a

permanent post of Clerk falls vacant.

14. This court does not concur with the argument of

the learned counsel for the respondent. It may be true

and correct that a employee holding a lower post may

be asked to look after the duties attached to the next

higher post due to certain exigencies. But the period of

time for which the employee would be so required to

look after the duties in the higher post, should be short.

In the instant case, the employee Sivasankaran, who

was working as Attender, was asked to look after the

works of Clerk in the ‘B’ Unit of Anglo-French Textiles

since the year 1991, as one Natarajan. who worked as

Clerk, died and the employee Sivasankaran still

continues to hold the post. Such an act of the

management requiring the employee to perform the

duties of Clerk in duly sanctioned vacant post of Clerk

may be irregular, though not illegal, but the employee

has continued to work as Clerk for nearly 20 years,

without any objection from any category of staff and

without intervention of orders of court or tribunals.

The learned counsel for the petitioner has relied upon

the following decisions:-

150

LA GAZETTE DE L’ETAT

[1 March 2011

1997 LAB.I.C.1807:

Nazrul Hassan Siddiqui Vs. Presiding Officer,

Central Government Industrial-cum-Labour Court

No.2. Bombay and others:—

“Employee working in higher post - Sch.2,

Item 6 - Claiming classification of higher post and

for payment of salary of that post - Individual

dispute raised by him though not sponsored by

substantial number of workmen in industry -

He would be entitled to be regularised on that

post and entitled to payment of higher salary for

work discharged on that post.”

1989 LAB.I.C.2010:

Council of Scientific and Industrial Research and

another Vs. K.G.S. Bhatt and another:—

“Administrative Tribunals Act (1985)

S.10- Promotion -Public or private organisations-

Opportunity of advancement has to be given-

Person is appointed not just for job but for whole

career.”

AIR 2006 Supreme Court 1806:

Secretary, Sate of Karnataka and Others Vs.

Umadevi and Others:—

One aspect needs to be clarified. There may be

cases where irregular appointments (not illegal

appointments) as explained in S.V. Narayanappan

( S u p r a ) , R.N. Nanjundappa (Supra) and

B.N. Nagarajan (Supra) and referred to in

paragraph 15 above, of duty qualified persons in

duly sanctioned vacant posts might have been

made and the employees have continued to work

for ten years or more but without the intervention

of orders of courts or of tribunals. The question

of regularisation of the services of such employees

may have to be considered on merits in the light

of the principles settled by this court in the cases

above referred to and in the light of this judgment.

In that context, the Union of India, the State

Governments and their instrumentalities should

take steps to regularise as a one time measure, the

services of such irregularly appointed, who have

worked for ten years or more in duly sanctioned

posts but not under cover of orders of courts or

of tribunals and should further ensure that regular

recruitments are undertaken to fill those vacant

sanctioned posts that require to be filled up, in

cases where temporary employees or daily wagers

are being now employed. The process must be set

in motion within six months from this date. We

also clarify that regularisation, if any already made,

but not subjudice, need not be reopened based on

this judgment but there should be no further by

passing of the constitutional requirement and

regularising or making permanent, those not duly

appointed as per the constitutional scheme.”

Under the above circumstances, the question of

regularisation of services of the employee Sivasankaran

may have to be considered on merits in the light of the

principles settled by the Hon'ble Apex Court in

Secretary, State of Karnataka and others Vs. Umadevi

and others [AIR 2006 SC 1806].

15. The contention of the respondent is that the

petitioner-union has no locus standi to maintain this

industrial dispute because of notification in G.O. Ms.

No. 24/2001, dated 11-8-2001, under section 17A of the

Industrial Disputes Act and the consequent writ

petition filed before the Hon'ble High Court in

W.P.15517/2001 for staying the operation of notification

in G.O.Ms.No.24/2001, dated 11-8-2001, issued by the

Labour Department and to restrain the respondent from

indulging in any wage settlement with its workmen,

pending disposal of the writ petition as well as

W.P. No. 15518/2001 filed to declare sections 17A(1),

17A(2) and 17A(3) of the industrial Disputes Act as ultra-

vires of the Constitution of India. In W.P. No.15518/2001

the Hon'ble High Court has held as follows:-

“In the light of the above legal position,

applying the principles stated in Kusum Ingots

case, cited supra, I am of the view that the

impugned provision viz., section 17-A of the

Industrial Disputes Act, 1947, is no more in force

in the Union territory of Puducherry also in

pursuance of the judgment of the High Court of

Andhra Pradesh in Telugunadu Work charged

Employees Vs. Government of India, cited supra.

There can be no doubt that the judgment of the

High Court of Andhra Pradesh in which it has been

adjudged that section 17-A of the Act is

unconstitutional, will have effect throughout the

Territory of India.

In view of the said position, I am of the view

that it would be suffice for this court to declare

that section 17-A of the Industrial Disputes Act, 1947

is void and the same is unenforceable in the Union

territory of Puducherry also, and consequently, the

impugned notification, dated 11-8-2001 passed by

the Puducherry Government under section 17-A of

the Act is liable to be set aside. In the result all

these writ petitions are allowed; it is hereby

declare that section 17-A of the Industrial

Disputes Act, 1947 is void and consequently the

impugned notification, dated 11-8-2001 passed

under section 17-A of the Industrial Disputes

Act, 1947 by the Union territory of Puducherry is

set aside.”

151

1 March 2011]

LA GAZETTE DE L’ETAT

From the above observation of Hon'ble High Court,

Madras, section 17-A of Industrial Dispute Act is no