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[5 November 2013
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 145/Lab./AIL/J/2013, dated 23rd October 2013)
NOTIFICATION
Whereas, the common award in I.D. No. 26/2012,
27/2012 and 28/2012, dated 26-6-2013 of the Labour Court,
Puducherry in respect of the industrial dispute between
the management of M/s. Larsen and Toubro Limited,
Puducherry and its workmen Thiruvalargal S. Pasupathi,
S. Atralasun and V. Rajacanbady, over 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. 20/9/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)
S. THAMMU GANAPATHY,
Under Secretary to Government (Labour).
————
BEFORE THE LABOUR COURT AT PUDUCHERRY
Present :
Thiru T. MOHANDASS, M.A., M.L.,
Presiding Officer, Labour Court.
Wednesday, the 26th day of June 2013
I.D. No. 26/2012
S. Pasupathi
. . Petitioner
I.D. No. 27/2012
S. Atralasun
. . Petitioner
I.D. No. 28/2012
V. Rajacanabady
. . Petitioner
Versus
The Management of Larsen and
Toubro Limited, ECC Division,
Rep. by its Managing Director.
. . Respondent
These industrial disputes coming on 20-6-2013 before
me for final hearing in the presence of Thiuvalargal
P.R. Thiruneelakandan and A. Mithun Chakkaravarthy,
Advocates for the petitioners, Thiuvalargal M. Vaikunth,
Narayanan, R. Vikneshraj and R. Elamparudhi, Advocates
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:
COMMON AWARD
Since the petitioners are the employees of the
respondent company and the respondent is the one and
the same in all the industrial disputes and all the
industrial disputes are interlinked with each other, the
common award is passed.
2. The petitioners in their petition have stated as
follows:
The petitioner in I.D. No. 26/2012 was appointed
on 4-10-1993 as a casual, then on 8-7-1996 he was
given appointment as trainee and then on 22-2-1999
he was confirmed as permanent employee. The
petitioner in I.D. No. 27/2012 was appointed on
28-9-2000 as contract worker and then his service
was confirmed as operator on 4-7-2001. The petitioner
in I.D. No. 28/2012 was initially appointed as casual on
30-8-1994 and then he was given appointment order
on 8-7-1996 as trainee and then his service was
confirmed on 21-2-1999. Though the schedule of
Industrial Employment Standing Order Act, 1946 does
not provide any clause for transfer of workman, the
respondent incorporated the transfer matter as a one
of the service conditions in the letter of appointment.
The Industrial Employment Standing Order
(Central Rule) does not apply to the respondent
factory. Under these circumstances, the power of
transfer of industrial employee/workmen working in
private industrial establishment in Union territory of
Puducherry shall not be transferred for any reason
and the transfer of workman cannot be termed as
incidental of service condition after the Industrial
Employment Standing Order Act came into force.
Whenever the workers and trade union raised
charter of demand for wage revision and other
allowances at the crucial point of negotiation talk
over the said demand, the respondent management
used to give promotion selectively to the trade union
office bearer and the worker who is having active
participation in the trade union. The promotion was
given with a view to create fear on the mind of
workers to desist from union activity and to suppress
the demand.
The respondent using the above said tactics of
giving promotion to the workers at the crucial point
of time of negotiation of wage demand, transferred the
trade union office bearer and active trade union
participant and the workers were terminated from
service, by act of victimisation in the transferred
place and they were prevented from redressing their
grievance due to their alteration service condition in
the transferred place. In the transferred place, the
transferred worker were treated discriminately and
they were not allowed to meet their family, which
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created much mental pressure on the worker and
thereby the worker was forced to leave the service
voluntarily, if any worker manage to work, he was
also terminated from service in the construction site
once the project is completed.
Eventually 12(3) Settlement, dated 10-8-2009
arrived between the respondent and the Larsen and
Toubro Pattali Thozhil Sangam before the Labour
Officer Conciliation. In the said settlement in
clause 10, the respondent agreed that there will be no
promotion unless the workers reached the maximum
basis slab of “IV Grade”. By letter, dated 15-6-2011
the said settlement extended till reach the next
settlement, as such the said settlement is in force as
of now.
In the meantime the respondent submitted the draft
standing, including the transfer clause before the
Commissioner of Labour, who is certifying officer
under the Industrial Employment Standing Order.
The workers and Larsen and Toubro Pattali Thozhil
Sangam objected the transfer clause as it is outside
the schedule of Act and not in conformity with the
Standing Order Act. Despite such objection, the
certifying officer certified the Standing Order.
As against the said Certified Standing Order, the
Larsen and Toubro Pattali Thozhil Sangam filed a Writ
Petition No. 5457 of 2010 and since the Hon’ble High
Court in its order expressed a view to avail appeal
remedy, the Larsen and Toubro Pattali Thozhil
Sangam filed appeal before the Labour Court,
Puducherry under section 6 of the Industrial
Employment Standing Order Act, which brings
automatic stay of the operation of the said Certified
Standing Order under section 7 of the Act.
On 12-7-2011 Larsen and Toubro Pattali Thozhil
Sangam sent charter of demand for wage revision and
other allowances. The Larsen and Toubro Pattali
Thozhil Sangam raised a demand for bonus for
contract workers, which was opposed by the
respondent management stating that the trade union
representing permanent employees has no business
to raise a demand for contract workers. Despite such
objection, the Larsen and Toubro Pattali Thozhil
Sangam raised the dispute over the demand of bonus
for contract workers before the Conciliation Officer,
which annoyed the respondent management and they
had refused to negotiate the charter of demand
submitted by the Larsen and Toubro Pattali Thozhil
Sangam.
Larsen and Toubro Pattali Thozhil Sangam
submitted a demand for one time lump sum
settlement as paid every year, but the same was
denied by the respondent management. Hence, the
said union raised a dispute in I.D. No. 2466/2011/
LO(C)/AIL claiming one time lump sum settlement.
On 2-8-2011 and on 10-11-2011. The Larsen and Toubro
Pattali Thozhil Sangam sent a letter to the
respondent management to invite the trade union for
negotiating the charter of demand. Then on 26-11-2011,
the Larsen and Toubro Pattali Thozil Sangam sent
another letter stating that if they are not invited for
negotiation talk, they will do protest by wearing black
badge. On receipt of the said letter, the respondent
management instead of inviting the trade union to
negotiate the charter of demand, the respondent on
17-1-2012 announced that they are proposed to
promote and transfer the office bearer and executive
committee members of the Larsen and Toubro Pattali
Thozhil Sangam.
The said proposal was strongly opposed by the
trade union and as against the proposed promotion
and transfer of workers on 18-1-2012, raised dispute
in
I.D. No. 127/2012/LO(C)/AIL
before
the
Conciliation Officer. The Conciliation Officer issued
notice either parties in the above said dispute. While
pending the above said dispute, an ante dated
promotion-cum-transfer order, dated 4-1-2012 was
served to the petitioners, wherein the said
petitioners were promoted as company staff
(Technical/Commercial Supervisors) and posted at
Rajpur, Kolkatta, Chennai.
On 16-2-2012 in the conciliation proceedings in
I.D. No. 127/LO(C)/AIL 2012, the Conciliation Officer
advised the respondent that they shall not effect any
promotion-cum-transfer. But the respondent did not
pay any heed to the advice of the Conciliation Officer.
Hence, Larsen and Toubro Pattali Thozhil Sangam made
a complaint, dated 13-2-2012 in I.D. No. 801/LO(C)/
AIL/2012 against the respondent for unfair labour
practice. While so on 13-2-2012 the petitioner
workers forgo their promotion order and sent a letter,
dated 13-2-2012 to the respondent management and
to the Labour Officers.
In the conciliation meeting held on 16-2-2012 the
Conciliation Officer advised the respondent
management to withheld the promotion-cum-transfer
of the workers as it is against the 12(3) Settlement
and violation of section 33 of Industrial Disputes Act.
Despite such advise order of the Labour Officer, the
respondent did not withheld the promotion order and
denied employment to the workers. Hence, this
industrial dispute is filed by the petitioners for their
reinstatement with other benefits.
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[5 November 2013
3. The respondent in his counter has stated as
follows :
The industrial dispute filed on 23-7-2012 itself has
become infructuous for the reason that even before
filing of the present industrial dispute, an
Memorandum of Understanding under section 12(3)
of the Industrial Disputes Act had been signed on
25-5-2012 between the respondent and the
petitioner’s union in the presence of the Labour
Officer-Conciliation whereby the parties to the
settlement had agreed to accept the transfer order,
dated 4-1-2012 issued by the respondent
management. It is also agreed in the said agreement
that the management has agreed to accommodate all
the workers transferred vide order dated 4-1-2012 in
various locations in Tamil Nadu and Puducherry only.
Accordingly, the petitioners were transferred and in
pursuance to the transfer orders, all the employees
were relieved with a direction to report at the new
locations within a stipulated time. Instead of
complying with the transfer orders and reporting at
the transferred place, a few employees including the
petitioners, chose to stay away even after all of them
were relieved to enable them to report at the new
locations. The petitioners did not chose to report at
the new locations and hence the respondent had to
resort to the concept of “no work no pay”. Therefore,
there was no question of any non-employment as
alleged by the petitioners. Hence, they pray for
dismissal of the industrial dispute.
4. In the reply statement, the petitioner has stated as
follows :
The petitioners have resigned from Larsen and
Toubro Pattali Thozhil Sangam on 5-5-2012 and their
resignation was accepted and they were relieved on
6-5-2012. Then the petitioners raised the individual
disputes on 8-5-2012 under section 2(A) of Industrial
Disputes Act over their denial of employment. On
25-5-2012 the Larsen and Toubro Pattali Thozhil
Sangam entered into 12 (3) Settlement in respect of
four workmen, who had agreed the proposal given by
the respondent management. On the date of
settlement, the petitioners are neither the members of
the said Larsen and Toubro Pattali Thozhil Sangam
nor signed the settlement accepting the proposal of
the respondent. Rule 58 of the Industrial Disputes Act
the settlement signed between the Larsen and Toubro
Pattali Thozhil Sangam and the respondent
management will not bind the petitioners. Under the
very same rule, the trade union have no right to sign
any settlement in respect of the individual dispute
filed under section 2(A) of the industrial dispute
Act, (8) under the very same rule in respect of the
individual dispute under section 2(A) of the Industrial
Dispute Act the concerned workmen alone have right
to sign the settlement and thus 12(3) settlement,
dated 25-5-2012 will not bind the petitioners.
5. In I.D. No. 26/2012, on the side of the petitioner,
the petitioner was examined as PW.1 and Ex.P1 to Ex.P20
were marked and on the side of the respondent, RW.1
was examined and Ex.R1 to Ex.R3 were marked. In I.D.
No. 27/2012, on the side of the petitioner, the petitioner
was examined as PW.1 and Ex.P1 to Ex.P20 were marked
and on the side of the respondent, RW.1 was examined
and Ex.R1 to Ex.R3 were marked. In I.D. No. 28/2012,
the petitioner was examined as PW1 and Ex.P1 to Ex.P20
were marked and on the side of the respondent, RW.1
was examined and Ex.R1 was marked and Ex.R2 and
Ex.R3 were marked by consent.
6. The point for consideration is:
Whether these industrial disputes can be allowed?
7. On this point :
The contention of the petitioners is that they were
Treasurers, active members of Larsen and Toubro
Pattali Thozhil Sangam and the respondent used the
promotion-cum-transfer the workers to the construction
site to victimise the workers and the said Larsen and
Toubro Pattali Thozhil Sangam opposed the promotion
of the workers, eventually entered into the 12(3)
settlement, dated 10-8-2009 wherein both the trade union
and the respondent management agreed in clause 10 of
the settlement that there will be no promotion, unless
the workers reached the maximum scale of pay in their
fourth grade.
8. In order to prove their respective claims, the
petitioners in the respective industrial disputes were
examined as PW.1. PW.1 has marked the copy of the
12(3) settlement entered into between Larsen and
Toubro Pattali Thozhil Sangam and the respondent
management on 10-8-2009 as Ex.P3. According to the
petitioners, they have resigned from Larsen and Toubro
Pattali Thozhil Sangam on 5-5-2012 and their resignation
was accepted and they were relieved on 6-5-2012 and
then they raised the individual disputes on 8-5-2012
under section 2(A) of Industrial Disputes Act over their
denial of employment and on 25-5-2012 the Larsen and
Toubro Pattali Thozhil Sangam entered into 12 (3)
Settlement in respect of four workmen, who had agreed
the proposal given by the respondent management and
on the date of settlement, they were neither the members
of the said Larsen and Toubro Pattali Thozhil Sangam
nor signed the settlement accepting the proposal of the
respondent and hence the settlement signed between the
Larsen and Toubro Pattali Thozhil Sangam and the
respondent management will not bind them. In order to
prove his claim, the learned counsel for the petitioner
has cited the following decisions:-
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1981 (3) SCC 493:
Brooke Pond India Limited Vs. The Workmen:
“Industrial Disputes Act, 1947 sections 2a(p) and
18(1) settlement otherwise than in course of
conciliation proceedings–memorandum of settlement
signed by office bearer of union without being
authorised either by the constitution of union or by
the executive committee of the union or by the
workmen enter into any agreement with the
management, held–does not amount to a settlement”
within the meaning of section 2(p)–hence such a
settlement is not binding between the parties under
section 18(1) – and can be got withdrawn by the
union.”
1969 LAB 1C 1450 (DEL):
Hindustan Housing Factory Limited Vs.
Hindustan Housing Factory Employees Union the
High Court:
“A reading of rule 58 clearly shows that it
presupposes the existence of a settlement already
arrived at between the employer and the workmen,
and it only prescribed the form in which the
Memorandum of Settlement should be and by whom
it should be signed. It does not deal with the
entering into or arriving at a settlement. Therefore,
where a settlement is alleged to have been arrived
between an employer and one or more office bearers
of the union, and the authority of the office bearers
who signed the Memorandum of Settlement has to be
established as a fact and it is not enough if the
employer merely points out and relies upon the fact
that the Memorandum of Settlement was signed by
one or more of the office bearers of the union.”
(1990) 1 LLJ 119:
Co-operative Store Limited Vs. Ved Prakash
Bhambri:
HELD: Rule 58 of the Industrial Disputes (Central)
Rules, 1957 and Form H are statutory provisions
which have to be given full effect before the
settlement could be considered valid. Eventhough the
settlement has not been arrived at during the
pendency of the conciliation proceedings, yet the
settlement has to be in accordance with the statutory
provisions before it can be held to be valid.
Settlement between the individual workman and the
management must be strictly in compliance with the
rules. ‘Settlement’ has been clearly defined under
section 2(p) of the Industrial Disputes Act and the
same has to be in accordance with the statutory
provisions. If there is no settlement as contemplated
in the statute and the rules made thereunder, the
same will not be binding on the parties under
section 18(1) of the Industrial Disputes Act, 1947.”
9. Per contra, the contention of the learned counsel
for the respondent is that pursuant to the transfer
orders, all the employees were relieved with a direction
to report at the new locations within a stipulated time
and instead of complying with the transfer orders and
reporting at the transferred place, a few employees
including the petitioners chose to stay away and did not
report at the transferred place. He further submitted that
the union had approached the Labour Officer (Conciliation)
to reopen I.D. No. 127/LOC/AIL/2012 and to reconciliate
over the dispute and the respondent also participated in
the reopened conciliation and after several rounds of
discussions, the respondent agreed to accommodate all
the workers transferred vide order dated 4-1-2012 in
various locations in Tamil Nadu and Puducherry only
and accordingly under section 12(3) of the Industrial
Disputes Act was reached and signed between the
respondent management and the recognised union on
25-5-2012 and hence the said settlement will bind the
petitioners also. In order to support his claim, he relied
upon the following decisions:
(1998) 1 Supreme Court Cases 650 :
P. Virudhachalam and others Vs. Management of
Lotus Mills and another:
“The appellant’s contention that for attracting
the first proviso to section 25-C(1), there should be
independent agreement between the workman and
the employer to that effect agreeing not to demand
lay-off compensation beyond 45 days of the starting
of the lay-off period cannot be accepted. An
agreement restricting the claim of lay-off
compensation beyond the available period of 45 days
can be said to be arrived at between the workmen on
the one hand the employer on the other as there is
such an agreement embedded in a binding settlement
which has a legal effect of binding all the workmen
in the institution as per section 18(3) of the Act.
Such binding effect of the embedded agreement in
the written settlement arrived at during the
conciliation proceedings would get telescoped into
the first proviso to section 25-C(1) an bind all
workmen eventhough individually they might not
have signed the agreement with the management or
their union might not have signed such agreement
with the management on behalf of its member-
workmen.”
(2002) 3 Supreme Court cases 411:
ITC Limited, Workers Welfare Association and
another Vs. Management of ITC Limited and
another:
“The settlement arrived at in the instant case was
in the course of conciliation proceedings and
therefore it carries a presumption that it is just and
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[5 November 2013
fair. It becomes binding on all the parties to the
dispute as well as the other workmen in the
establishment to which the dispute relates and all
other persons who may be subsequently employed in
that establishment. An individual employee cannot
seek to wriggle out of the settlement merely because
it does not suit him.”.
10. On the side of the petitioners, the resignation letter
of the petitioner from the trade union, dated 5-5-2012
was marked as Ex.P18, the letter, dated 6-5-2012 sent by
the trade union to the petitioners accepting his
resignation as Ex.P19 and the industrial dispute raised
by the petitioner before the Conciliation Officer as
Ex.P20. A perusal of Ex.P18 to Ex.P20 reveals that the
petitioners were the members in Larsen and Toubro
Pattali Thozhil Sangam and on 5-5-2012 they resigned
from the said sangam and their resignation was accepted
by them and on 8-5-2012 they raised individual dispute
over the denial of employment.
11. On the side of the respondent, copy of
memorandum of settlement under section 12(3) of
Industrial Disputes Act was marked as Ex.R1. A perusal
of Ex.R1 reveals that the said settlement was arrived on
25-5-2012 between the trade union and the respondent
management. As the petitioners were resigned from the
trade union on 5-5-2012 under Ex.P18 and the same was
accepted by the trade union on 6-5-2012 under Ex.P19,
the petitioners were not members of the said union on
25-5-2012. Hence, Ex.R1 signed between the respondent
and the Larsen and Toubro Pattali Thozhil Sangam will
not bind the petitioners.
12. Further the settlement must be signed in a
prescribed manner and the manner prescribed for
signing settlement under rule 58 of Industrial Disputes
Central Rules provides which is as follows:-
Rule 58 of Memorandum of Settlement:
(1) A settlement arrived at in the course of
conciliation proceedings or otherwise, shall be in
Form ‘H’.
(2) The settlement shall be signed by–
(a) ... ...
(b) In the case of workmen, by any officer of a
trade union of the workmen or by five
representative of the workmen duly authorised in
this behalf at a meeting of workmen held for the
purpose.
(c) In the case of the workmen, in an industrial
dispute under section 2A of the Act, by the
workman concerned.
13. From the above, it can be seen that to sign any
settlement in case of workman, the said workman must
be a member of trade union and the office bearer or five
representative of the workman duly authorised in this
behalf at a meeting of the workman held for the
purpose. In the case on hand, as already stated, the
petitioners were not members of Larsen and Toubro
Pattali Thozhil Sangam at the time of signing 12(3)
Settlement under Ex.R1 and also after their resignation
from the said trade union, they were not an authorised
office bearers or any representative of the trade union
to sign settlement under Ex.R1. Hence, the settlement
under Ex.R1 signed between the respondent and the said
Larsen and Toubro Thozhil Sangam and it will not bind
the petitioners and it cannot be termed as settlement in
respect of the petitioners’ individual dispute over their
denial of employment.
14. Further the petitioners filed a writ petition sought
for directions against the respondent, Conciliation
Officer, Larsen and Toubro Pattali Thozhil Sangam not
to sign any settlement so as to withdraw their individual
dispute and in the said writ petition, the L & T Pattali
Thozhil Sangam filed a detailed counter stating that they
had signed settlement only for the workers, who had
accepted the proposal given by the respondent
management and it will not bind either the rest of union
members or the petitioners. Therefore, the settlement
under Ex.R1 will not bind the petitioners and there is no
settlement arrived between the petitioners and the
respondent under rule 58 of Industrial Disputes Central
Rules.
15. The learned counsel for the petitioners further
submitted that the promotion-cum-transfer order, dated
4-1-2012 under Ex.P12, the respondent has not assigned
any reason for the transfer of the workers to other State
and as per the petitioner's letter of appointment under
Ex.P1, the petitioners can be transferred only in case of
necessity, but no necessity has been shown in the
promotion-cum-transfer order under Ex.P10 and hence
the petitioners were given unmerited promotion and
posted them to north India to victimise them for their
union activities and therefore the contention of the
respondent that the petitioners were transferred to other
State as per the management policy decision, which is
nothing but an unfair labour practice stated in
Schedule V Part 1 Clause 7 of the Industrial Disputes Act.
16. The contention of the learned counsel for the
respondent has submitted that it is needless to submit
that the transfer is an incidence of service and the lawful
orders of transfer to meet exigencies of business and
administrative needs cannot be interfered with unless it
is mala fide and the management is entitled to effect
transfer of any employee, if the same is an
administrative exigency and the terms and conditions of
employment so provide. In order to support his claim,
he relied upon the following decisions:-
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1974 (2) LLJ 298 Madras:
“Constitution of India Art. 226 - Tamil Nadu Shops
and Establishments Act, 1947, S. 41 - Employee
dismissed from service for disobeying order of
transfer - On appeal by the employee, the Additional
Commissioner for Workmen’s Compensation holding
that the employee was not liable to be transferred and
setting aside the order of dismissal - The employee
having failed in the writ petitioner preferring the
instant writ appeals - Power of management to
transfer employee though inherent, held, the
employee having been appointed to work at the place
where he was originally and specifically appointed to
work by the management the finding of the Additional
Commissioner for Workmen's Compensation on facts
to that effect could not be interfered with.”.
2001 4 LLN 440 Raj (D/B):
“The courts have held that transfer of an
employee is part of conditions of service and the
employees are bound to obey the order of transfer
and work in the place where they have been
transferred and posted. Transferability from one
establishment to another is an incident of service and
that the utilisation and distribution of its manpower
amongst various units and places. Courts and
Tribunals cannot also properly assess or adjudicate
effectively the reasons given for transfer of
employees. The decision of the employers in such
cases is conclusive and that except in the rarest of
rare cases, court should not interfere with transfer
orders.”.
1963 (2) LLJ 354 SC :
“Order of transfer of a clerk made by the bank
should ordinarily be presumed to be proper unless it
is proved that it was made mala fide or by way of
victimisation, unfair labour practice or some ulterior
motive, not connected with the business interests of
the bank - Order of transfer in the instant case, held,
proper and justified where it was held by the Labour
Court that the action of the management was
bona fide.".
1966 1 LLJ 440 SC:
“There is no doubt that the banks are entitled to
decide on a consideration of the necessities of
banking business whether the transfer of an
employee should be made to a particular branch.
There is also no doubt that the management of the
bank is in the best position to judge how to distribute
its employees between the different branches. We
are, therefore, of opinion that Industrial Tribunals
should be very careful before they interfere with the
orders made by the banks in discharge of their
managerial functions. It is true that if an order of
transfer is made mala fide or for some ulterior
purpose, like punishing an employee for his trade
union activities, the Industrial Tribunals should
interfere and set aside such an order of transfer,
because the mala fide exercise of power is not
considered to be the legal exercise of the power given
by law. But the finding of mala fide should be
reached by Industrial Tribunals only if there is
sufficient and proper evidence in support of the
finding. Such a finding should not be reached
capriciously or on flimsy grounds as the Industrial
Tribunal has done in the present case.".
17. From the arguments of learned counsel for the
petitioner and the respondent, it can be seen that the
trade union filed writ petition Nos. 3314 and 3315 of 2012
before the Hon'ble High Court, Madras to declare that
the transfer order issued by the respondent, dated
4-1-2012 transferring the petitioners from Puducherry
factory to other State is illegal and without jurisdiction
and the union had also filed a Standing Order Appeal
before the Appellate Authority under the Industrial
Employment (Standing Orders) Act, challenging the
certificate granted by the competent authority to the
standing orders submitted by the respondent especially
with regard to inclusion of provisions related to the
transfer of employees and the said two writ petitions are
still pending before the Hon’ble High Court, Madras.
18. According to the petitioners, the Larsen and
Toubro Pattali Thozhil Sangam and the respondent
management mutually agreed in clear term in clause 10
of the 12(3) Settlement, dated 10-8-2009 for not to give any
promotion to the workers before completion of IV grade
and the respondent management knowing very well
about the said agreed terms of clause 10 of 12(3)
settlement, deliberately with an ulterior motive issued
ante dated promotion order, dated 4-1-2012 to the some
workers including them and since the proposed
promotion-cum-transfer announced by the respondent
management was contrary to the agreed terms of
clause 10 of 12 (3) settlement, dated 10-8-2009 and the
Larsen and Toubro Pattali Thozhil Sangam and the
individual workers including them opposed and objected
the proposed promotion-cum-transfer to other State and
as against the proposed transfer, the Larsen and Toubro
Patalli Thozhil Sangam raised the industrial dispute in
I.D. No. 127/2012/LOC/AIL before the Labour Officer,
Conciliation, Puducherry and while pending the said
dispute, without getting approval of the Labour Officer
(Conciliation), the respondent by his order, dated
4-1-2012, served on the petitioners, promoted them as
Company's Technical/Commercial Supervisor and posted
them in the construction site at Kolkatta, West Bengal
State. The petitioners further contended that the as
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[5 November 2013
against the said promotion order, the Larsen and
Toubro Pattali Thozhil Sangam lodged a complaint
before the Labour Officer (Conciliation) under
section 33-A of the Industrial Disputes Act and also
lodged a complaint under section 25 T of the Industrial
Disputes Act for unfair labour practice and in the said
industrial dispute, negotiation talk was held before the
Conciliation Officer and also at level of Deputy
Commissioner of Labour, in which the Conciliation
Officer by advice order, dated 9-2-2012 advised the
respondent to allow the workers to report to the work
and they shall not be deprived any right and no adverse
decision should be taken against them and thereafter in
the conciliation meeting held before the Deputy
Commissioner of Labour on 13-2-2012, he, considering
the 12 (3) settlement and forego letter of the individual
worker forging his promotion, he has passed the
detailed advise order stating the promotion-cum-
transfer is against the terms of 12(3) settlement and he
advised the management not to give effect to the
promotion-cum-transfer order, unless a mutually
acceptable solution is arrived and despite the advice of
the Labour Officer (Conciliation) and the Deputy
Commissioner of Labour in the above said pending
dispute, the respondent denied the employment to the
petitioners even after receipt of his letter forgoing their
promotion.
19. The respondent has not produced any records
before this court to justify the promotion. Even in the
promotion under Ex.P10, the respondent has not
assigned any reason for promotion-cum-transfer of the
petitioners. As per clause 10 of 12(3) settlement, dated
10-8-2009, there will be no promotion, unless the
workers reached the maximum scale of pay in their
fourth grade. But RW.1 in his cross-examination has
admitted that the petitioners are in third grade. Hence,
the petitioners have not even reached the fourth grade,
the respondent without assigning any reasons,
promoted the petitioners and posted them in North
India, which is mala fide one.
20. The learned counsel for the respondent has
submitted that under section 2A of the Industrial
Disputes Act, only disputes related to discharge,
dismissal or retrenchment can be raised by the
individual workman and in the case on hand, the
petitioners have not been dismissed, discharged or
retrenched and consequently there cannot be any
ground for raising the present dispute over non-
employment and the petitioners were promoted on the
basis of their qualification and seniority and transferred
in terms of the company policy; however the petitioners
even after their relief, did not choose to report at the
transferred place and therefore there is no question of
denial of employment as alleged by them.
21. The learned counsel for the petitioners has
submitted that though they have submitted letter to
forgo their promotion and requested the respondent to
continue employ them as workmen in the Puducherry
factory, the respondent denied employment to the
petitioners and they were not allotted any work and
their names were removed from the integrated
attendance, access system and thereby they prevented
from entering into the factory from 18-2-2012 and they
after forgone their promotion, sent letter, requesting the
respondent to provide employment in Puducherry
factory, despite their request they were denied
employment.
22. As per the own averments of the respondent, in
pursuant to the transfer orders, all the employees were
relieved with a direction to report at the new locations
within a stipulated time and instead of complying with
the transfer orders and reporting at the transferred
place, the petitioners chose to stay away and did not
report at the transferred place. As already stated, the
petitioners have been transferred to other State
violating the settlement under section 12(3) of Industrial
Disputes Act and consequent to the transfer order
issued to the petitioners, they were relieved from duty,
which would show that in order to deny the employment
only, the respondent in a hasty manner without
assigning any reasons issued the transfer orders to the
petitioners. In the above circumstances, the petitioners
have rightly filed the above industrial disputes before
this court under section 2(A) of Industrial Disputes Act
and consequently, the petitioners are entitled for
reinstatement with continuity of service.
23. As far as the back wages are concerned, the
learned counsel for the petitioner has submitted that the
petitioners after foregoing their promotion, expressed
their desire to continue as operator in the respondent
factory but the respondent denied employment to the
petitioners and when the petitioners declined to accept
the promotion, it does not amount to misconduct or
abandonment of service. In order to prove his claim, he
relied upon the following decision:-
2005 (3) MLJ 569:
Ambassador Pallava, rep. by its Executive
Assistant Manager Mr. Vasant Sampath, Chennai Vs.
The Presiding Officer, II Additional Labour Court,
City Civil Court Buildings and another:
“We do not agree that the second respondent had
abandoned his service. The finding of fact of the
Labour Court is that he was always willing to serve
as office boy and he never refused to perform his
duties as such. He only did not want to become a
security guard. In our opinion, this cannot be called
as misconduct by any stretch of imagination.
1007
5 November 2013]
LA GAZETTE DE L’ETAT
The second respondent was prevented by the
management from discharging his duties as office boy
since November 1986, merely on the ground that he
refused to accept promotion. In our opinion, the
action of the management was wholly arbitrary and
illegal. There is nothing to show that the second
respondent was unwilling to work as office boy. He
was only unwilling to work as security guard. By
foregoing his promotion, we fail to understand what
wrong he had committed.”.
In the above case, the second respondent/employee,
who was the office boy, has foregone his promotion as
security guard and even after foregoing his promotion,
he was prevented by the management from discharging
his duties as office boy and hence the Hon’ble High
Court has held that this cannot be called as misconduct
by any stretch of imagination and confirmed the order
of trial court that the employees are entitled for
reinstatement with full back wages and continuity of
service. In the case on hand, the promotion, which was
issued to the petitioners, has been foregone by them
and even after foregoing their promotion, they were
denied employment to work as operator. Hence, the act
of the respondent was wholly arbitrary, unreasonable,
illegal and amounted to victimisation of the petitioners.
Hence, the respondent is hereby directed to reinstate
the petitioners as operators in Puducherry factory with
50% of back wages and continuity of service. In case if
the respondent feels that the transfer with promotion is
an incidence of service to meet exigencies of business
and administrative needs, the respondent is hereby
directed to accommodate the petitioners in various
locations in Tamil Nadu and Puducherry, as admitted by
the learned counsel for the respondent. Accordingly,
this point is answered.
24. In the result the industrial dispute is partly
allowed with costs and the respondent is directed to
reinstate the petitioner into service with 50% back
wages and continuity of service and other attendant
benefits.
Typed to my dictation, corrected and pronounced by
me in the open court on this the 26th day of June 2013.
T. MOHANDASS,
Presiding Officer,
Labour Court, Puducherry.
————
I.D. No. 26/2012
List of petitioner’s witness :
PW.1 — 24-1-2013 — S. Pasupathi
List of petitioner’s exhibits :
Ex.P1
— Appointment order of the petitioner as
Trainee, dated 8-7-1996.
Ex.P2
— Copy of the confirmation order of the
petitioner, dated 28-1-1999.
Ex.P3
— Settlement under section 12(3) of
Industrial Disputes Act, dated 10-8-2009.
Ex.P4
— Settlement under section 12(3) of
Industrial Disputes Act, dated 15-6-2011.
Ex.P5
— Letter, dated 12-7-2011 sent by the
petitioner's union to the respondent.
Ex.P6
— Reminder letter, dated 2-8-2011 sent by
the union to the respondent.
Ex.P7
— Reminder letter, dated 10-11-2011 sent
by the union to the respondent.
Ex.P8
— Letter, dated 26-12-2011 sent by the
trade union to the respondent.
Ex.P9
— Industrial dispute raised by the trade
union in Industrial Dispute No. 127/
2012/LO(C)/AIL, dated 18-1-2012.
Ex.P10 — Transfer order, dated 4-1-2012 issued to
the petitioner by the respondent.
Ex.P11 — Advise order issued by the Deputy
Labour Commissioner, dated 13-2-2012.
Ex.P12 — Letter, dated 13-2-2012 sent by the
to
petitioner foregoing his promotion.
Ex.P16
Ex.P17 — Advise order sent by the Conciliation
Officer, dated 16-2-2012.
Ex.P18 — Resignation letter sent by the petitioner,
dated 5-5-2012 resigning from trade
union.
Ex.P19 — Letter, dated 6-5-2012 sent by the trade
union, accepting the resignation sent by
the petitioner.
Ex.P20 — Industrial dispute raised by the
petitioner before the Conciliation Officer,
dated 8-5-2012.
List of respondent’s witness :
RW.1
— 5-4-2013 – K. Shanmugam
List of respondent’s exhibits :
Ex.R1
— Copy of the Memorandum of Settlement
under section 12(3) of Industrial Disputes Act.
Ex.R2
— Letter, dated 15-5-2012 sent by the
petitioner to the respondent.
Ex.R3
— Postal cover
I.D. No. 27/2012
List of petitioner’s witness :
PW.1
— 24-1-2013 - S. Atralarasu
List of petitioner’s exhibits :
Ex.P1
— Probation order of the petitioner, dated
28-9-2000.
1008
LA GAZETTE DE L’ETAT
[5 November 2013
Ex.P2
— Copy of the confirmation order of the
petitioner, dated 4-7-2001.
Ex.P3
— Settlement under section 12(3) of
Industrial Disputes Act, dated 10-8-2009.
Ex.P4
— Settlement under section 12(3) of
Industrial Disputes Act, dated 15-6-2011.
Ex.P5
— Letter, dated 12-7-2011 sent by the
petitioner's union to the respondent.
Ex.P6
— Reminder letter, dated 2-8-2011 sent by
the union to the respondent.
Ex.P7
— Reminder letter, dated 10-11-2011 sent
by the union to the respondent.
Ex.P8
— Letter, dated 26-12-2011 sent by the
trade union to the respondent.
Ex.P9
— Industrial dispute raised by the trade
union in I.D. No. 127/2012/LO(C)/AIL,
dated 18-1-2012.
Ex.P10 — Transfer order, dated 4-1-2012 issued to
the petitioner by the respondent.
Ex.P11 — Advise order issued by the Deputy
Labour Commissioner, dated 13-2-2012.
Ex.P12 — Letter, dated 13-2-2012 sent by the
to
petitioner foregoing his promotion.
Ex.P16
Ex.P17 — Advise order sent by the Conciliation
Officer, dated 16-2-2012.
Ex.P18 — Resignation letter sent by the petitioner,
dated 5-5-2012 resigning from trade
union.
Ex.P19 — Letter, dated 6-5-2012 sent by the trade
union, accepting the resignation sent by
the petitioner.
Ex.P20 — Industrial dispute raised by the
petitioner before the Conciliation Officer,
dated 8-5-2012.
List of respondent’s witness :
RW.1
— 5-4-2013 - K. Shanmugam
List of respondent’s exhibits:-
Ex.R1
— Copy of the Memorandum of Settlement
under section 12(3) of Industrial
Disputes Act.
Ex.R2
— Letter, dated 15-5-2012 sent by the
petitioner to the respondent.
Ex.R3
— Postal cover.
I.D. No. 28/2012:
List of petitioner’s witness :
PW.1
— 24-1-2013-V. Rajacanabady
List of petitioner’s exhibits :
Ex.P1
— Appointment order of the petitioner as
Trainee, dated 8-7-1996.
Ex.P2
— Copy of the confirmation order of the
petitioner, dated 28-1-1999.
Ex.P3
— Settlement under section 12(3) of
Industrial Disputes Act, dated 10-8-2009.
Ex.P4
— Settlement under section 12(3) of
Industrial Disputes Act, dated 15-6-2011.
Ex.P5
— Letter, dated 12-7-2011 sent by the
petitioner's union to the respondent.
Ex.P6
— Reminder letter, dated 2-8-2011 sent by
the union to the respondent.
Ex.P7
— Reminder letter, dated 10-11-2011 sent
by the union to the respondent.
Ex.P8
— Letter, dated 26-12-2011 sent by the
trade union to the respondent.
Ex.P9
— Industrial dispute raised by the trade
union in I.D. No. 127/2012/LO(C)/AIL,
dated 18-1-2012.
Ex.P10 — Transfer order, dated 4-1-2012 issued to
the petitioner by the respondent.
Ex.P11 — Advise order issued by the Deputy
Labour Commissioner, dated 13-2-2012.
Ex.P12 — Letter, dated 13-2-2012 sent by the
to
petitioner foregoing his promotion.
Ex.P16
Ex.P17 — Advise order sent by the Conciliation
Officer, dated 16-2-2012.
Ex.P18 — Resignation letter sent by the petitioner,
dated 5-5-2012 resigning from trade
union.
Ex.P19 — Letter, dated 6-5-2012 sent by the trade
union, accepting the resignation sent by
the petitioner.
Ex.P20 — Industrial dispute raised by the
petitioner before the Conciliation Officer,
dated 8-5-2012.
List of respondent’s witness :
RW.1
— 5-4-2013 - K. Shanmugam
List of respondent’s exhibits :
Ex.R1
— Copy of the Memorandum of Settlement
under section 12(3) of Industrial
Disputes Act.
Ex.R2
— Letter, dated 15-5-2012 sent by the
petitioner to the respondent.
Ex.R3
— Postal cover
T. MOHANDASS,
Presiding Officer,
Labour Court, Puducherry.