1000

LA GAZETTE DE L’ETAT

[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

1001

5 November 2013]

LA GAZETTE DE L’ETAT

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.

1002

LA GAZETTE DE L’ETAT

[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:-

1003

5 November 2013]

LA GAZETTE DE L’ETAT

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

1004

LA GAZETTE DE L’ETAT

[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:-

1005

5 November 2013]

LA GAZETTE DE L’ETAT

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

1006

LA GAZETTE DE L’ETAT

[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.