GOVERNMENT OF PUDUCHERRY
AWARD
LABOUR DEPARTMENT
(G.O. Rt. No. 138/Lab./AIL/J/2014, dated 5th December 2014)
NOTIFICATION
Whereas, an award in I.D. (T). No. 3/2006, dated 28-10-2014 of the Industrial Tribunal, Puducherry in respect of the industrial dispute between the Managing Director, M/s. Pondicherry Co-operative Sugar Mills Limited, Puducherry and Pattali Thozhir Sangam, Puducherry over seniority of Thiru A. Udayakumar 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 t h e n o ti f i ca t i o n i ss u e d i n La b o u r De p a r t me nt '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)
GIDDI BALARAM, Under Secretary to Government (Labour).
————
The industrial dispute arises out of the reference made by the Government of Pondicherry, vide G.O. Rt. No.63/AIL/Lab./J/2006, dated 31-3-2006 of the Labour Department, Pondicherry to resolve the following dispute between the petitioner and the respondent, viz., (a) Whether the demand of Pattali Thozhir Sangam claiming seniority of Thiru A.Udayakumar, Helper, over Thiru S. Elangovan, against the management of M/s. Pondicherry Co-operative Sugar Mills Limited is justified or not?
(b) If not, what remedy the petitioner is entitled to?
To give appropriate directions?
2. The petitioner in this petition has stated as follows:
BEFORE THE INDUSTRIAL TRIBUNAL
AT PONDICHERRY
Present : Thiru G. DHANARAJ, B.Sc., B.L.,
Presiding Officer, Industrial Tribunal.
Tuesday, the 28th day of October 2014
I.D. (T) No. 3/2006
The President/Secretary, Pattali Thozhir Sangam, Pondicherry Co-operative Sugar Mills Ltd., Puducherry
. . Petitioner
Versus
The Manager Director, Pondicherry Co-operative Sugar Mills Ltd., Puducherry.
. . Respondent This industrial dispute coming on this day before me for hearing in the presence of Mrs. Devasundari, Counsel for the petitioner and A.N.D. Law Associates Thiruvalargal K. Palaniappaan and R. Asvani Palaniappaan, Advocates for the respondent, upon hearing both sides, upon perusing the case records, after having stood over till this day, this court passed the following:
The petitioner union is a trade union registered under the Trade Unions Act, 1926 bearing No. 656/86. The said union is working for the cause of the workmen of the respondent mills. The present dispute pertains to the seniority of Thiru A. Udayakumar, Helper in relation to Thiru S. Elangovan, another Helper in the mills. During the pendency of the industrial dispute relating to the seniority of the above two Helpers, the respondent management granted promotion to S. Elangovan, as Fitter and hence the issue relating to legality of the promotion granted to S. Elangovan is also covered in this dispute. Thiru A. Udayakumar joined the service of the Pondicherry Co-op. Sugar Mills Ltd., on 9-1-1984 as NMR employee and from 1-6-1986 onwards he has been working as Fitter-Helper and he has been discharging his duties in a very and honest manner and without any black mark. The rival claimant S. Elangovan also joined the service of the mills as NMR employee on 9-1-1984 and later appointed as Fitter-Helper on 1-6-1986. As per the practice followed in the respondent mills and as per the sound principles of Labour law, the petitioner was accorded higher status in terms of seniority, he being elder than S. Elangovan, as the date of birth of petitioner Udayakumar and S. Elangovan are 11-7-1963 and 7-10-1965 respectively. Accordingly the respondent mills maintained the seniority list granting the petitioner Udayakumar higher position when compared to S. Elangovan.
In terms of merits also Thiru A. Udayakumar was in a better position when compared to S. Elangovan. Ever since the date of appointment, the former was regular in attending to the duties while the latter was23 December 2014] LA GAZETTE DE L'ETAT 915 report, dated 2-12-2003 by the Conciliation Officer. And the present dispute has been referred to this court by the Government through G.O. Rt. No., dated 31-3-2006. During the pendency of the above industrial dispute before this court the respondent management has granted promotion to S. Elangovan as Fitter through order, dated 4-11-2006 with effect from 6-11-2006.
very irregular in attendance. On account of very poor attendance, S. Elangovan was on loss of pay on several occasions. This has resulted in interruption of continuity of service by way of "service cuts" made by the respondent management. After taking note of the above irregularities and demerits in the service records of Thiru S. Elangovan the respondent management fixed lower wages when compared to A. Udayakumar. However, contrary to the above f a c t s r e l a t i n g t o t h e h i g h e r s e n i o r i t y o f A. Udayakumar over S. Elangovan, the respondent management suddenly somersaulted and took a d e v i a n t s t a n d t h a t S . E l a n g o v a n i s s e n i o r t o A. Udayakumar. Accordingly, the respondent altered the seniority list of Helpers and accorded higher seniority position to S. Elangovan, resulting in raising the industrial dispute in respect of the seniority position of the above persons in the category of Helpers. The petitioner union would like to bring to the kind attention of this court the seniority lists published by the respondent management in the year 1986, 1989 and 1995 for all the categories of employees in the mills. It is very pertinent to note that in the seniority list of the year 1986, in the category of Helper the name A. Udayakumar (F) has been placed under serial No. 14 while S. Elangovan has been placed below him under Serial No. 15. Similar ly in the senio r ity list o f the year 1 98 9 A. Udayakumar and Elangovan have been placed under Serial Nos. 12 and 13 respectively in the category of Helpers. To add further in the seniority list of the year 1995 in the seniority list of Fitter-Helpers (Semi-skilled) Udayakumar and Elangovan have been accorded seniority position No. 6 and 7 respectively. However, quite surprisingly in the seniority list, dated 28-4-2000 obliged by the respondent in the category of Fitter-Helper (Seasonal) the said S. Elangovan has been placed in the 4th position while A. Udayakumar has been placed in the 5th position. Aggrieved by the same the petitioner union has raised the industrial dispute.
When the dispute between the petitioner union and the respondent management in the matter of seniority of Udayakumar in relation to Elangovan in the post of Fitter-Helper was pending before this court, the granting of promotion by the respondent to said Elangovan as Fitter is highly unjustified, making mockery of judicial proceedings. In fact even when preparatory steps were taken by the respondent in this regard, Thiru A. Udayakumar sent notice, dated 9-10-2006 through his counsel calling upon the respondent to stop the process of issuing Fitter promotion to Elangovan and till the disposal of industrial dispute by this Tribunal. The above act of the respondent is also against the provisions of the Industrial Disputes Act, 1947 contained in section 33. According to the above provision the employer shall not alter to the prejudice to the workman concerned in the industrial dispute the condition of service applicable to workman immediately before the commencement of proceeding before the Industrial Tribunal, during the pendency of the proceedings before the Tribunal. By granting promotion to S. Elangovan the respondent has altered the condition of service applicable to workman concerned in the Dispute ID(T) 3/2006 in regard to matter connected with the dispute (i.e. seniority). The respondent management is an agency of instrumentality of State under Article 12 of the Constitution of India and is expected to act as a model employer. The above act of the respondent is also against the certified standing orders and service rules of the respondent company. Moreover it reveals a clear case of arbitrary exercise of power by the respondent. The constitutional principle of equality has also been grossly violated by the respondent. As the respondent has no justification to ignore the settled seniority list in the post of Fitter-Helper, there is a good ground for interference by this court.
The petitioner union raised the dispute by submitting representation, dated 20-9-2001 to the Labour Officer (Conciliation), Pondicherry finding fault with the respondent management for altering the seniority position of Udayakumar. The respondent management filed its reply before the Conciliation Officer belatedly, after 4 years. This made the petitioner union to submit its rejoinder for the reply of the respondent management. As the conciliation of the dispute was not possible due to the adamant attitude of the management, it tendered in failure
The issue relating to granting of promotion to S. Elangovan is incidental to the terms of reference made by the Government for determination by this Tribunal. This Tribunal may kindly take note of the916 LA GAZETTE DE L'ETAT [23 December 2014 fact that for granting promotion the material factor is the seniority in the feeder post. As such the question relating to legality of the promotion granted to S. Elangovan by the respondent to the post of Fitter comes within the purview of this Tribunal, being incidental to the determination of main issue relating to seniority position of A. Udayakumar and S. Elangovan in the post of Fitter-Helper. This dispute can also be approached from another angle. According to section 33-A of the Industrial Disputes Act, 1947 this Tribunal is empowered to adjudicate as to whether the condition of service of the workman has been changed during the pendency of the proceedings when complaint is given in writing with regard to contravention of section 33 of the above Act. As such the petitioner intends to submit a separate complaint in writing.
The petitioner craves leave of this Tribunal to treat the various representations and contentions made by the parties before the Conciliation Officer may kindly be treated as part and parcel of the representations and contentions before this Tribunal. Except the facts that are specifically admitted herein the petitioner expects the respondent to prove its contentions relating to the industrial dispute. The petitioner reserves its right to file additional claim statement, if warranted at a later stage. The petitioner prays this Tribunal to pass an award holding that the demand o f t h e p e t it i o n er u ni o n cl a i mi n g s e n i o r i t y o f Thiru A. Udayakumar, Helper over Thiru S. Elangovan against the management of the respondent mills is justified, that the promotion granted to Thiru S. Elangovan to the post of Fitter is null and void and to grant such other reliefs as deemed fit and proper.
3. The respondent in this counter has stated as follows:
The respondent denies all the averments contained in the claim statement except those that are admitted hereunder.
The dispute relating to promotion of one S. Elangovan as Fitter, from the post of Fitter-Helper, is not covered by the reference and therefore, it cannot be raised in this proceeding. The dispute relates to the grant of seniority to the said S. Elangovan in preference to one A. Udayakumar.
The respondent puts the petitioner to strict proof that it is the practice of the mills, to fix seniority on the basis of age factor. The said Udayakumar is elder to the said Elangovan by less than 2 years. Having regard to the educational qualification, the ability, the skill and the quality of performance, the seniority is fixed. The seniority list, published in the routine manner does not give any vested interest to the said Udayakumar nor it is binding on the mills.
When the promotion was due from the post of Fitter-Helper, following the principles of fairness, equity and good conscience, the mills having examined the correctness of the ranking and given an overall consideration to all the attending and relevant factors, had rightly revised the seniority and placed the said Elangovan senior to the said Udayakumar, and the mills are not estopped from revising the order of seniority. The mills bona fide revised the seniority after considering all relevant factors, relating to the said Udayakumar and the said Elangovan. The respondent puts the petitioner to strict proof the said Udayakumar has a meritorious record deserving senior status to that of the said Elangovan.
The leave on loss of pay is considered only for the postponement of increments and not for the reduction in seniority and therefore, the claim of the petitioner is untenable. The respondent puts the petitioner to strict proof that there is interruption of continuity of service by way of "service cuts" in the case of the said Elangovan. The respondent puts the petitioner to strict proof that in terms of merits, the said Udayakumar was in a better position than the said Elangovan. The respondent puts the petitioner to strict proof that there are demerits in the service record for the said Elangovan to rank him junior to the said Udayakumar. The respondent puts the petitioner to strict proof that the act of the mills is against the certified standing orders and the service rules. The respondent denies that there was an arbitrary exercise of power in the case of the said Udayakumar. The ranking of the said Elangovan as senior to the said Udayakumar is just and proper and consequently the promotion given to the said Elangovan, as Fitter, from the post of Fitter-Helper, on the basis of the revised seniority is also just and proper. The act of the mills is not mala fide. Therefore the petitioner is not entitled to any relief. This court may be pleased to dismiss the reference with cost.
4. On the side of the petitioner, PW1 was examined, and the side of the respondent RW1 and RW2 were examined, on the petitioner side Ex.P1 to Ex.P9 were marked. On the side of the respondent, Ex.R1 to Ex.R6 were marked.
23 December 2014] LA GAZETTE DE L'ETAT 9175. The point for determination is:
Whether the industrial dispute can be allowed or not?
6. On the point:
Both sides heard. It was submitted by the counsel for the petitioner that the petitioner is representing one Udayakumar who was working as a Helper in the Pondicherry Co-operative Sugar Mills Limited, seniority was to be fixed as to the senior to one S. Elangovan who was a junior in the service of the said respondent mill by virtue of joining date. Subsequently, the said Elangovan was placed as a senior to the said Udayakumar. The conciliation was taken place regarding the fixation of the seniority between the said Udayakumar and Elangovan. The said conciliation was failed because of the attitude of the respondent management. Hence this reference. The said Udayakumar was to be placed as a senior to the said Elangovan in his service.
7. On behalf of the respondent, it was contended that the seniority was being fixed on the basis of merit- cum-seniority and other relevant factors. The said Elangovan was qualified technically better than the said Udayakumar. Hence the claim of the petitioner that Udayakumar was to be placed as a senior over the said Elangovan was not maintainable.
8. After hearing both sides, records were perused. On perusal it comes to light that on behalf of the petitioner PW1 was examined and on behalf of the respondent RW1 and RW2 were examined. On behalf of the petitioner Ex.P1 to Ex.P9 were marked. Respondent side Ex.R1 to Ex.R6 were marked.
9. On the basis of the submission of the respondent counsel, a perusal of the evidence of RW1 who would say as follows (relevant portion):-
"The workman, A. Udayakumar was appointed as "Fitter-Helper" (seasonal) on the same consolidated pay of ` 620 per month with effect from 1-6-1986. The workman, S. Elangovan, the counterpart of A. Udayakumar, was also appointed to the post of "Fitter-Helper" (Seasonal) with effect from 1-6-1986 from the post of "Oil Man" (Seasonal). The order of seniority among the "Fitter-Helper" (Seasonal) was assigned by the selection committee, having regard to respective educational and technical qualifications, among other aspects. The workman, A. Udayakumar passed S.S.L.C. (10th standard) in 1980 and the technical course in fitting (Higher Secondary Course Certificate-Vocational Eduation) in 1982, whereas, the workman, S. Elangovan passed Fitter Grade in Junior Technical High School (JTS) i n 1 9 8 1 a nd th e co ur se o f G en er a l Me ch an is t in Technical Higher Secondary School-Vocational in 1983. Therefore, the selection committee having examined the relative technical qualifications of both the workmen, ranked S. Elangovan as senior to A. Udayakumar, which is just and proper. There is no practice in the mills to fix seniority only on the basis of age."
A cursory reading of the evidence of RW1 would show that the seniority was fixed on the basis of the merit and other qualifications by the competent authority, namely, the selection committee and the seniority was not fixed on the basis of age.
10. A perusal of evidence of PW1 at the time of cross-examination who would show as follows (relevant portion):-
" NMR Fitter/Helper Fitter/Helper ➢ seasonal semi-skilled ▪ ➢ Fitter Fitter/ Helper ▪ ▪ seniority Selection commitee ▪ seniority "
A careful study of evidence of PW1 at the time of cross-examination would reveal the fact that a selection committee was constituted for the purpose of deciding the seniority among the workers, on the basis of the said committee report, seniority was fixed, was the evidence of PW1 at the time of cross- examination.
11. Though, it was submitted by the petitioner that the said Udayakumar seniority was fixed over the said Elangovan as exhibited, Ex.P1, but a perusal of Ex.P1, on the basis of the evidence of PW1, which would show that the Ex.P1 was not at all a authorised document i.e., the said document was not signed either by the respondent mill authority or by any competent authority and also it was only a photocopy containing the names as mentioned thereon. The said photocopy also would not show the fact for which purpose the said copy was prepared and by whom on which date, these facts were not revealed on the face of the said document. The other documents filed by the petitioner also would not establish the case of the petitioner that the petitioner was fully qualified for the said post, namely, the post which was in dispute and the said Udayakumar918 LA GAZETTE DE L'ETAT [23 December 2014 was fully qualified to be placed over the said Elangovan as a senior by the respondent authority. Whereas, the documents filed by the respondent would reveal the fact that the said Elangovan was qualified for the said post, namely, the Fitter was established by the respondent by the documents as adduced by the respondent, marked as exhibits. Hence the court decided on a considered view that the case of the petitioner was not established and whereas the case of the respondent was established. The points are answered accordingly.
Ex.P7 — Copy of the circular, dated 8-8-2006 issued by the respondent.
Ex.P8 — Copy of the letter submitted by me to the Labour Officer (Conciliation), Puducherry, dated 20-9-2001.
Ex.P9 — Copy of the letter submitted by me to the Labour Officer (Conciliation), Puducherry, dated 5-12-2000.
List of exhibits marked for the respondent:
12. In the result, the reference is answered that the claim of the said Udayakumar seniority over the said Elangovan was not justified and the petitioner is not entitled for any relief, on the basis of the seniority claimed. Accordingly it is ordered.
Typed to my dictation, corrected and pronounced by me in the open court on this the 28th day of October 2014.
G. DHANARAJ, Presiding Officer, Industrial Tribunal, Puducherry.
Ex.R1 — Copy of the Mark list, dated 25-6-1981 Ex.R2 — Copy of the Mark list, dated 7-6-1983 Ex.R3 — Copy of the Mark list, dated 7-6-1984 Ex.R4 — C o p y o f t h e S t a t e m e n t o f M a r k s , dated 7-5-1990.
Ex.R5 — Copy of the National Trade Certificate Ex.R6 — Copy of the Certificate of Competence, dated 18-9-1993.
G. DHANARAJ,
————
Presiding Officer,
Industrial Tribunal, Puducherry.
List of witness examined for the petitioner:
PW.1 — 4-4-2012 — Udayakumar
————
List of witnesses examined for the respondent:
RW.1 — 22-8-2013 — Dayalan
GOVERNMENT OF PUDUCHERRY LABOUR DEPARTMENT
RW.2 — 27-6-2014 — Ilangovan
(G.O. Rt. No. 139/Lab/AIL/J/2014, dated 5th December 2014)
List of exhibits marked for the petitioner:
Ex.P1 — Copy of the extract from seniority list published by the respondent company in 1986.
Ex.P2 — Copy of the extract from seniority list published by the respondent company in 1989.
Ex.P3 — Copy of the extract from seniority list published by the respondent company in 1995.
Ex.P4 — Copy of the representation submitted by me to the Labour Officer (Conciliation), Puducherry.
Ex.P5 — Copy of the reply filed by the respondent to Labour Officer (Conciliation), Puducherry.
NOTIFICATION
Whereas, t h e a ward in I . D . ( T ) N o . 19/ 2 0 1 2, dated 24-9-2014 of the Industrial Tribunal, Puducherry in respect of the industrial dispute between the Managing Director, Anglo-French Textiles, Puducherry and Thiru A. Rajendiran, over regularisation in the post of Attender with remuneration has been received;
Now, therefore, in exercise of the powers conferred by sub-section (1) of section 17 of the Industrial Disputes Act, 1 9 4 7 ( Centr al Act XI V o f 1 9 4 7 ) 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)
GIDDI BALARAM,
Ex.P6 — Copy of the failure report submitted by Labour Officer (Conciliation), Puducherry to Secretary to Government (Labour), dated 2-12-2003.
Under Secretary to Government (Labour).
23 December 2014] LA GAZETTE DE L'ETAT 919BEFORE THE INDUSTRIAL TRIBUNAL
AT PONDICHERRY
Present : Thiru G. DHANARAJ, B.SC., B.L., Presiding Officer, Industrial Tribunal.
Wednesday, the 24th day of September 2014
I.D. (T) No. 19/2012
A. Rajendiran . . Petitioner Versus
The Managing Director, Anglo-French Textiles, Puducherry.
. . Respondent This industrial dispute coming on this day before me for hearing in the presence of Thiru V.N.S. Srinivasan, Advocate for the petitioner and Thiru B. Mohandoss, Advocate for the respondent, upon perusing the case records, this court passed the following:
AWARD
This industrial dispute arises out of the reference made by the Government of Puducherry, vide G.O. Rt. No. 126/AIL/Lab./J/2012, dated 24-7-2012 of the Labour Department, Puducherry to resolve the following dispute between the petitioner and the respondent, viz., (1) Whether t h e d i s p u t e r a i s e d b y T h i r u A. Rajendiran against the management of M/s. Anglo-French Textiles over regularisation in the post of Attender with remuneration is justified?
(2) If justified, to what relief the workman is entitled to?
(3) To compute the relief, if any, awarded in terms of money, if it can be so computed?
2. In view of the order passed in I.A.23/2014, the petition is dismissed.
Written and pronounced by me in the open court on this the 24th day of September 2014.
G. DHANARAJ, Presiding Officer, Labour Court, Puducherry.
———— • → •▪ }|{
➢ •▪ ▪ ➢ ➢•
➢➢ ▪
↔➢ ➢
➢➢ ➢
➢ ➢ ▪
➢➢➢ ▪➢➢ ➢
➢ ➢➢
• ➢ ➢ • ➢
•➢