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[4 August 2015
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 81/Lab./AIL/J/2015, dated 13th July 2015)
NOTIFICATION
Whereas, an award in I.D.(T) No. 12/2010, dated 9-12-2014
of the Labour Court, Puducherry in respect of the
industrial dispute between the Managing Director,
M/s. Hindustan Unilever Limited (Detergent Factory),
Puducherry and Hindustan Unilever Workers Union,
Puducherry over promoting juniors overlooking the
seniority of 135 workers has been received;
Now, therefore, in exercise of the powers conferred
by sub-section (1) of section 17 of the Industrial
Disputes Act, 1947 (Central Act XIV of 1947) read with
the notification issued in Labour Department’s G.O. Ms.
No. 20/91/Lab./L, dated 23-5-1991, it is hereby directed
by Secretary to Government (Labour), that the said
award shall be published in the official gazette,
Puducherry.
(By order)
A. RAJARATHINAM,
Under Secretary to Government (Labour).
————
BEFORE THE LABOUR COURT AT PONDICHERRY
Present : Thiru G. DHANARAJ, B.SC, B.L.,
Presiding Officer, Labour Court.
Tuesday, the 9th day of December 2014
I.D. (T) No. 12/2010
The President,
Hindustan Unilever Workers Union,
Puducherry.
. . Petitioner
Versus
The Managing Director,
M/s. Hindustan Unilever Limited,
Detergent Factory,
Puducherry.
. . Respondent.
This industrial dispute coming on 25-11-2014 for final
hearing before me in the presence of Thiruvalargal
M. Veerappan and S. Lenin Durai, Counsel for the
petitioner, Thiruvalargal L. Sathish, T. Pravin,
S. Velmurugan and V. Veeraragavan, Counsel for the
respondent, upon hearing both sides, upon perusing the
case records, after having stood over for consideration
till this day, this court passed the following :
AWARD
This industrial dispute has been referred as per the
G.O. Rt. No. 187/AIL/Lab./J/2010, dated 20-9-2010 for
adjudicating the following:-
(1) Whether the dispute raised by the Hindustan
Unilever Workers Union against the management of
M/s. Hindustan Unilever Private Limited, Detergent
Factory, Puducherry over promoting juniors overlooking
the seniority of 135 workers as mentioned in the
Annexure is justified or not?
(2) If justified, what relief the 135 workers of the
union are entitled to?
(3) To compute the relief, if any, awarded in terms
of money, if it can be so computed?
2. The facts giving rise to this industrial dispute as
stood exposited from the claim petition runs thus:-
The petitioner union is one of the major union in
the respondent company which has the 280 members
in the employees union and all are employed in the
said respondent company. The petitioner union had
submitted a representation to respondent company
regarding consideration of promotion to 135 workers
of the union who have been put in the service of
around thirteen years. But the respondent company
refused to give promotion to them.
The petitioner’s employees union has taken up
the issue of non-consideration of promotion to the
union members of 135 employees and denial of
promotion to the said employees to the next cadre
who have been put in the service of more than
thirteen years with the respondent company, but the
respondent company failed to see the reason and
acted arbitrarily and against established law.
While denying promotion to the said 135 employees,
the respondent company has given promotion to
some 70 employees without any basis.
Without adhering the basic principles of seniority
of the employees in the said company the promotion was
considered and given to the above said 70 employees.
The company has stated that promotion would be
considered on the basis of the criteria laid down in
Part ‘C’ 2(d) as per the terms and conditions of the
broad criteria for eligibility for upgradation/promotion
shall be as follows:-
(i) Minimum five years service in the company.
(ii) No record of disciplinary action over the
last three years.
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(iii) Regular attendance of the minimum
240 days each year for the previous 3 cosecants
years of service.
(iv) Performance o n t h e j o b i n c l u d i n g
multi-skilling and flexibility.
(v) Needless to mention that upgradation/
promotion will be at the sole discretion and
management and shall be non-negotiable.
As per the broad criteria for eligibility for
upgradation/promotion was mentioned in the
memorandum of settlement in the year 2002, there is
no proper rule was framed or guidelines was issued
by the respondent company to implement the criteria
for eligibility for promotion.
The petitioner union was not a party to the
memorandum of settlement executed in the year 2002.
The most of the agreed terms are widely balancing
on the management side and there are unspecific,
uncertain and ambiguity clauses found in the said
settlement. The point made in the settlement as if the
management cannot be questioned on such terms and
conditions is absolutely arbitrary and cannot be
enforced as per law. Therefore, the discretionary
power enumerated in the Clause-V is absolutely
constitutional and unlawful and therefore the
management could not take any advantage under the
guess of this clause and stating that upgradation/
promotion could be done at the mercy of management.
There is also another memorandum of settlement
which come into force in the year 2007 and will be in
force till 2011. In the said memorandum of settlement,
the criteria for eligibility/promotion to the staff is not
at all mentioned and the management failed to
incorporate many important items or omitted in the
said memorandum of settlement and when the
employees union raised question about many
important points were not covered, the management
failed to give valid clarification or explanation.
But they simply said that the omitted items in the
memorandum of settlement of 2007 may be covered
as per the memorandum of settlement existed in the
year 2002.
Out of the 135 employees there are 88 employees
are non-technical employees and the remaining 47
only technical employees. The eligibility criteria for
upgradation/promotion as stated in Part ‘C’ 2(d) (IV)
is applicable only to skilled employees and it may not
be applicable to non-technical employees like packer,
house keeper, scavenger, forklift operator and similar
employees. The management by taking advantage of
broad criteria for eligibility for promotion as stated
in the settlement in the year 2002, should not refuse
promotion/upgradation to the said employees. Even
the technical employees who fulfill criteria as per
Part ‘C’ 2(d) (I) (II) (III) (IV) as per settlement are
entitle to be promoted to another higher grade/post.
But the management taking advantage of the
Part ‘C’ 2(d) (V) so far denied upgradation/
promotion to the all 135 employees which is
arbitrary, unconstitutional and contrary to the
procedure laid down in this regard.
The respondent company was informing the
employees union that the upgradation/promotion
would be considered only on the basis of the above
said criteria and also basing on seniority-cum-merit
basis. But, it may be noticed that the respondent
company have never issued any seniority list to
anyone of the employees in this case so far. Unless
the company issued seniority list to all the
employees and maintain a seniority list every year,
the question of seniority-cum-merit may be accepted
and that too only for the technical employees but the
management has not maintain any such seniority list
and the same was not published and communicated to
the staff of the company.
The management’s standing order which is a basic
constitution to run the company fail to indicate the
provision of appointment, regularization, promotion
and such other important aspects in the said standing
order. Therefore, neither the standing order nor the
terms and conditions as per the memorandum of
settlement 2002 and 2007 have clearly indicated the
promotion policy in terms of rules or guidelines so
as to make mandatory and transparent to follow by
management as well as employees. Therefore, the
respondent company failed to follow equality of
treatment in equal circumstances as per Article 14 of
the Constitution of India and also failed to act as per
Article 16 of the Constitution of India wherein
equality of opportunity should given but the above
said employees were denied promotion arbitrarily and
only some people were given promotion without
following any rules, guidelines and without any
basis and as such the act of the management
construed to be unfair, arbitrary and goes against the
spirit of the principles of laid down rules in this
regard.
The management have admitted that there are two
types of employees engaged in the company and the
one technical staff and another is non-technical staff
but the respondent management failed to provide
specific provisions for upgradation/promotion to the
technical and to the non-technical staffs and
therefore, the failure of or refusal of consideration
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of promotion to the abovesaid aggrieved employees
is not justified and therefore the management act of
refusal to give promotion/upgradation is arbitrary,
unfair and therefore illegal.
The technical employees and non-technical
employees list are furnished in the list of documents
and their details and period of service and their
position from the date of appointment to till date are
also furnished in the said statement which may kindly
be perused please. This would clearly point out that
respondent management is not only acting unfairly,
unconstitutionally but also acted arbitrarily and
therefore refusal of consideration of promotion to the
abovesaid employees by the respondent management
is totally illegal and unconstitutional.
The issue of not giving promotion to 135 workers
who are seniors in the company and put into several
years of service and also fulfilled the eligibility
criteria was represented by the petitioner union with
the respondent management. Since the management
refused to consider the issue to give promotion to
the said employees the matter was taken up with the
Labour Officer (Conciliation) to seek the interference
of the competent authority to render justice to the
abovesaid affected employees.
The petitioner raised labour dispute before the
Labour Officer (Conciliation) and the conciliation
proceedings in which the Labour Officer advised
the management to consider the promotion of
135 employees who have been put in the service of
around thirteen years in the said company. But the
respondent company adamantly refused to consider
the views of the Labour Officer (Conciliation) and
the proceedings ended in failure and therefore the
failure report was issued on 20-5-2010 and
consequently, the matter was referred to this court
for adjudication.
The refusal of giving upgradation/promotion to
the 135 employees of the said company although they
fulfilled the eligibility criteria is arbitrary, unfair and
therefore not maintainable in law for the following
among other reasons.
The petitioner union reserves the right to file
additional claim statement/reply statement as and
when it is required.
Grounds:
(i) The management refusal of consideration of
upgradation/promotion to the 135 employees is
violation of basic principles of constitutional law
under Article 14 and Article 16 and constitutes unfair
labour practice and therefore it is not maintainable
in law.
(ii) The failure to follow the standard guidelines/
rules for promotion to the technical as well as
non-technical employees of the said company who
are otherwise eligible for promotion are arbitrary and
therefore denial of promotion/upgradation to the said
employees of the management is unfair and unlawful
and therefore not maintainable in law.
(iii) This court pleased to pass an order directing
the respondent management to consider the promotion
of 135 employees and they may be given the upgraded
salary from the date on which they are eligible for
promotion/upgradation and further the management
may be directed to pay the increment of pay and
other salary benefits and also other permissible
benefits to the abovesaid employees.
(iv) To pass orders and such other orders that
this court may deem fit and proper under the
circumstances of the case.
3. Per contra, traversing the averments the claim
statement, the respondent filed the counter with the
averments which runs thus:-
On justification of promoting juniors overlooking
the seniority of 135 workers and if it is justified, the
relief that 135 workers of union are entitled to. But
in the claim statement, the petitioner is seeking for a
direction to the respondent to consider promotion of
135 employees and upgradation of their salary, increment
and other benefits. There is no reference regarding
consideration of promotion of petition-mentioned
workers. Therefore, the claim statement filed by
petitioner is not in accordance with the reference
made by Government and hence, no relief can be
granted in terms of relief sought for in the claim
statement.
The dispute raised by petitioner union challenging
alleged promotion to juniors allegedly overlooking
the seniority of 135 workers is not an industrial
dispute which can be adjudicated before this Tribunal
and hence, the very reference of the said dispute by
Government of Puducherry is bad in the eye of law.
It is gainsaid that matters covered under Schedule- III
of Industrial Disputes Act alone can be referred for
adjudication to Industrial Tribunal. Schedule-III of
the Industrial Disputes Act prescribes the following
matters to be referred for adjudication before this
Tribunal namely :—
1. Wages, including the period and mode of
payment;
2. Compensatory and other allowances;
3. Hours of work and rest intervals;
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4. Leave with wages and holidays;
5. Bonus, profits sharing, provident fund and
gratuity;
6. Shift working otherwise than in accordance
with standing orders;
7. Classification by grades;
8. Rules of discipline;
9. Rationalisation;
10. Retrenchment of workmen and closure of
establishment; and
11. Any other matter that may be prescribed.
The issue of promotion is not an issue covered
under Schedule-III of Industrial Disputes Act and
hence, there is no scope for adjudication of the said
dispute before this Tribunal.
Petitioner claims that juniors have been promoted
ahead of 135 senior workers. But, none of the so called
juniors who are said to be promoted have been made a
party to the proceedings. Section 2(k) of Industrial
Disputes Act defines industrial dispute as—
“2(k) ‘industrial dispute’ means any dispute or
difference between employers, or between employers
and workmen, or between workmen and workmen,
which is connected with the employment or
non-employment or the terms of employment or with
the conditions of labour, of any person...”
Thus, all disputes between workmen and workmen
also are covered within the meaning of industrial
dispute and hence, if the petitioner union has any
grievance regarding alleged promotion of so called
junior workers, they ought to have made those junior
workers party to this proceeding. None of so called juniors
were summoned by the Labour Officer (Conciliation)
in connection with the dispute raised by petitioner union.
In fact, event he bare minimum particulars of those 70
workers like their names, their employment numbers,
their date of enrollment, their designation etc., have not
been furnished. In the absence of those workers, the
1st issue of reference cannot be fairly adjudicated and
hence, the present dispute is liable to dismissed on this
count also.
The respondent putsforth the above issues as
preliminary issues and requests this Tribunal to
adjudicate these issues before adjudication to the fact
involved in the case.
Without prejudice to the aforementioned contentions,
the respondent states that even on merits, the petitioner
do not any substance in its claim and the same is liable
to dismissed.
Firstly the averments in the claim statements to the
effect that:-
(a) The petitioner union is a major union and has
280 workers of respondent company as its members.
(b) The union ever made any representation to
the respondent seeking promotion of 135 workers
and the respondent refused to consider them at any
point of time.
(c) The respondent ever acted arbitrary are
against established law.
(d) The respondent gave promotion to 70 workers
without any basis but, denied promotion to 135 workers.
(e) The respondent did not adhered principles of
seniority and promotion was given to 70 workers
without considering the said principle.
(f) No proper rules, regulations or guidelines exist
in respondent company to implement the scheme of
promotion.
(g) The petitioner union was not a party to the
memorandum of settlement signed in the year 2002.
(h) The agreed term in the said settlement were
widely balancing on management side and there was
any ambiguity, uncertainty in the clauses of
settlement there is any arbitrariness in terms of
promotion and they are unconstitutional and
unlawful.
(i) Important clauses or items are omitted to be
mentioned in 12(3) settlement signed in the year
2007, the eligibility criteria for promotion as stated
in Part C (2) (d) (IV) is applicable only to skilled
employees and not to technical employees like
packer, house keeper, scavenger, forklift operator and
similar employees.
(j) The respondent, taking advantage of the
Part ‘C’ 2(d) (V) of the said memorandum of
settlement, has so far denied upgradation/promotion to
all 135 workers which is arbitrary or unconstitutional.
(k) No seniority list is maintained or issued by the
respondent.
(l) Neither the standing order of the company
nor the terms and conditions in the memorandum of
settlement in 2002 and 2007 clearly indicates
promotion policy in.
(m) Respondent failed to follow equality of
treatment in equal circumstances as per Article 16 of
Constitution of India.
(n) Respondent is acting unfairly, unconstitutionally,
arbitrarily.
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(o) The respondent refused to consider the
petition mentioned workers for promotion, which is
illegal and unconstitutional.
(p) The respondent was advised by Labour Officer
(Conciliation) to consider the promotion of 135
workers who have been put in the service of around
thirteen years in the said company.
(q) Respondent company adamantly refused to
consider the views of the Labour Officer
(Conciliation).
(r) The petitioner are entitled to any relief as
sought for in the claim petition.
Are emphatically denied as false and baseless and
the petitioner is put to strict proof the same.
The respondent states that seniority of each of its
employee is easily and clearly ascertainable by the token
number given to each of the workers. The token
numbers are given in ascending order, beginning with
the senior most workers. Therefore, the grievance of
petitioner union that no seniority list is maintained or
disclosed by respondent is totally false and baseless.
The list of worker with their respective token number
and their date of joining is annexed herewith as
Annexure-1, which indicates the date of enrollment of
each of the workers. In the said list of workers, serial
number 39 to 43 are workers containing token number:
559 to 564. But, they are not juniors to the other listed
workers given in the claim petition. In fact, these
workers joined the respondent factory during 2007 with
previous experience of 13 years in another industry
belongs to Hindustan Unilever Limited and had
thorough exposure to the factory work.
The respondent states that it is absurd to claim that
the respondent has no concrete or transparent
promotion policies. The promotion policies are well
defined and accepted by then and only union
representing all the workers of respondent factory in 2002.
In the memorandum of settlement, dated 12-12-2002, the
respondent has spelt out the criteria for eligibility for
upgradation and promotion which is adopted by
respondent throughout all its factories including the
respondent unit from the date of its inception. The
promotion policies of the respondent and as admitted
by the petitioners themselves are—
(a) Minimum five years' service in the company.
(b) No record of disciplinary action in the last
three years.
(c) Regular attendance of minimum 240 days each
year for the previous 3 years consecutive in the
service.
(d) Promotion in the job including multi-skilling
and flexibility
(e) Upgradation and promotion at the sole
discretion of respondent and it is non-negotiable.
The five criteria are the most fundamental and basic
and yet essential requirements for consideration for
promotion of any worker. The criteria specified above
clearly indicate that the promotion policy of respondent
is based on merits, discipline and continuity of services.
It is gainsaid that promotion or upgradation cannot be
claimed as a matter of right as the same is within the
sole discretion of management as long as the discretion
is used by the management in fair, equitable and just
manner without any bias, vindictiveness or favouritism.
The promotion policy is well settled and widely
accepted by the workers and there was no dispute
regarding the same when the next settlement, dated
10-5-2007 was signed. Hence, it was not included in the
terms of settlement, dated 10-5-2007. It is of common
knowledge that only the disputed issues find their place
in the settlement and not undisputed issues. Pertinently,
even the petitioner union did not raise any dispute
regarding promotion policy in its charter of demands
preceding 12(3) settlement, dated 10-5-2007. Other than
petitioner, there are two more unions and they have not
raised any dispute regarding fairness of promotion
policy of respondent as on this date. Therefore,
promotion policy as found in settlement, dated
12-12-2002, still holds good for all practical propose and
there is absolutely no ambiguity or vagueness in the
said policy.
The petitioner cannot compel the respondent to
adopt the policy of seniority-cum-merit in promotion or
upgradation and respondent is free to give precedence
to merits, discipline and conduct of worker over his
seniority. The claim of petitioner is therefore contrary
to the well-established principle of promotion or
upgradation.
The petitioner’s accusation that the certified
standing order of the respondent company does not
contain promotion policy is again a void allegation and
reflects the ignorance of petitioner union regarding the
ambit in which certified standing orders of the company
operates. The Industrial Employees Standing Order Act
does not mandate promotion policy to be incorporated
in certified standing orders of the company. In fact, the
Model Standing Orders given in Annexure of said Act
does not contain any promotion policy, thus making it
clear that promotion policies need not form part of
certified standing orders.
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The petitioners is deliberately misinterpreting Part-C
2(d) (iv) of settlement, dated 12-12-2002 by claiming that
it is applicable only to skilled employee and not to
non-technical like packers, house-keepers, scavenger,
forklift operators, etc. The petitioner is misquoting the
term ‘multi-skilled’ used in the provision, which denote
the ability of a worker to do more than one activity in a
skillful manner. Such activities can be both technical
and non-technical. The logic being inclusion of such
criteria as consideration for promotion is that a person
who has ability to do more than one activities can be
easily accommodated in any position. For eg., if a packer
exhibits good skill in lift operation, he can be considered
for promotion for the post of packers as well as forklift
operators depending upon the requirements of the
respondent.
The petitioner’s allegation of unfair practice in
promoting 70 workers ahead of 135 workers listed in the
petition is as vague as vagueness could be. Assuming
without admitting that respondent had promoted 70
workers ahead of workers listed in claim petition, that
by itself is not sufficient for the petitioner to claim
promotion for themselves. The petitioner must plead
and prove that the respondent has acted in a mala fide
manner in promoting the ineligible workers and denying
promotion to workers listed in claim petition by giving
specific instances of such mala fide act of respondent.
The petitioner cannot make bald and vague allegation
of denial of opportunity in promotion without pleading
specific instance of any bias, mala fide act or
vindictiveness on the part of respondent in denying
promotion to workers listed in claim petition.
Petitioners cannot claim promotion on the sole
grounds that they are seniors in the respondent
company. The petitioners must plead and prove to the
satisfaction of this Tribunal that they possess all the
other requirements enlisted in the promotion policy viz.,
(a) they do not have any past records of disciplinary
action, (b) they have regular attendance of 240 days in
the previous 3 consecutive years and (c) they are
multi-skilled. The petitioner has not even pleaded that
the workers listed in claim petition satisfy all the criteria
to be considered for promotion.
It is false to claim that there is no clear division of
skilled or non-skilled workers. In fact, the list given by
the petitioner itself suggests that there is a clear
division between technical worker and non-technical
workers. Admittedly, there are two categories of workers
in respondent's factory; one is unskilled and the second
is skilled workers. The unskilled workers are further
categorized into two groups (a) W1 and (b) W2. The
skilled workers are categorized as W3 and W4.
As per the 12(3) settlement, dated 10-5-2007 W1
workers are further classified into W1E, who are entry
level workers under unskilled category (W1). The W1E
workers are not considered for promotion for initial
period of 5 years. But, as soon as he completes a period
of 5 years he automatically becomes W1 worker and
from thereon he becomes eligible to be promoted to the
next level i.e., W2 category. The W1 worker’s
performance is assessed based on his past conducts as
per the promotion policy. Before promoting a worker
from W1 to W2 categories, the respondent conducts
multilevel interviews. In the 1st level the worker is
interviewed by respondent’s line executive and line
manager of respective department. Once the worker
clears the 1st level of interview, the 2nd level interview is
conducted by Finance Manager, the H.R. Manager,
Line Manager and the Factory Manager. The performance
of the worker is thoroughly scrutinized and only eligible
and deserving workers are promoted to W2 level.
The skilled workers are categorized as W3 and W4.
They are ITI qualified. The same process of promotion
is followed for W3 and W4 workers also. The unskilled
workers also have every chance of upgrading
themselves to the category of skilled workers by their
experience and skills gained during the course of their
employment.
It commissioned its operation in the year 1997 and
as on date it has promote only 109 workers from all
categories. The last token number promoted by the
respondent is token No. 200. The list furnished by the
petitioner along with claim statement clearly shows that
except for the first 12 workers in the unskilled categories
and the first 9 workers in the skilled categories, the rest
of the workers are juniors to the last incumbent promoted
and therefore they cannot have any grievance.
The list of workers promoted by it as on this date is
annexed herewith. In the said list of workers, serial
number 39 to 43 are workers containing token number:
559 to 564. But, they are not juniors to the other listed
workers given in the claim petition. In fact, these
workers joined the respondent factory with previous
experience of 13 years in our another industry and had
thorough exposure to the nature of work.
The reason for not promoting some of the senior
workers like R. Muthukrishnan bearing token number 44
(currently this person is not in the company
employment) and M. Gopalakrishnan bearing token
number 78 etc., is that they failed to satisfy the
essential criteria for promotion or upgradation. Some of
the workers listed in the claim petition are facing serious
charges of misconducts and many of them do not
possess necessary attendance. Therefore, they cannot
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LA GAZETTE DE L’ETAT
[4 August 2015
be considered for promotion because of past records.
There is absolutely no motive or reason behind
non-consideration of such candidates for promotion
except their own conducts. There is absolutely no
merits the claim of petition and hence, claim may be
dismissed.
There is absolutely no merit in any of the allegation
contained in the petition and therefore the present
application is liable to be dismissed with exemplary cost.
The respondent reserves its right to file additional
counter statement together with all the necessary and
relevant documents with the permission of this
Tribunal.
This court may be pleased to dismiss the claim
petition with exemplary costs and answer the reference
accordingly and justice be rendered.
4. On the side of the petitioner, PW1 was examined,
and the side of the respondent RW1 was examined, on
the petitioner side Ex.P1 to Ex.P6 were marked. On the
side of the respondent, Ex.R1 to Ex.R30 were marked.
5. The point for consideration is:
Whether the industrial dispute can be allowed?
or not?
6. On this point:
Heard. It was submitted by the counsel for the
petitioner that the petitioner’s were employees of the
respondent company and the respondent management
did not consider the upgradation of the petitioner union
employees and the petitioners are eligible for the
promotion. The matter was conciliated but, the
respondent management did not concede the advice of
the Conciliation Officer. The respondent management
without any proper reason refuse to promote the
petitioner’s to the higher post, the petitioners are
eligible for the higher post.
7. On behalf of the respondent, it was submitted that
the dispute pending before this court cannot be
adjudicated by this forum. The dispute regarding the
promotion cannot be decided as it was not mentioned
in the Schedule-III of the Industrial Disputes Act and
also the petition is bad for non-joinder of necessary
parties. The persons who were alleged to have been
promoted were not added as a party in this case. The
promotion policy of the respondent company was
well-defined and was settled as per the settlement,
dated 12-12-2002 and also the settlement, dated
10-5-2007. The promotion policy was applicable for both
skilled and unskilled workers. The workers in the
respondent management factory were categorized as
skilled and unskilled labourers. The skilled workers are
categorized as W3 and W4 based on the sound
promotion policy. The promotion was in a transparent
manner and the eligible and deserving candidates were
promoted to the next level. Respondent had promoted
109 workers from all categories, the respondent
company had given specific reasons for the
non-promotion of the senior workers in the concerned
records. The Hon'ble High Court had ruled to that effect
to substantiate the views of the respondent company.
Hence, the petition is to be dismissed.
8. After hearing both sides. Records were perused.
On behalf of the petitioner PW1 was examined and Ex.P1
to P6 were marked. On behalf of the respondent RW1
was examined and Ex.R1 to R30 were marked. It was the
case of the respondent that the matter cannot be
referred to this forum as it was not mentioned in the
Schedule-III of the Industrial Disputes Act. Accordingly,
a perusal of the evidence of PW1 at the time of
cross-examination who would say as follows:-
“
(CP)
”
A cursory reading of the evidence of PW1 at the time
of cross-examination would show that the dispute,
namely, the promotion of the employees other than the
persons mentioned in the petition and non-promoting
the persons mentioned in the reference, was not
authorised by the Act, especially, section 2(A) of the
Industrial Disputes Act. Because, it has been held in a
case as reported in 2012 IV LLJ Pg.700 (Madras)
T.M. Ramamoorthy Vs. Union of India, represented by
the Secretary to Government, Labour and Employment
Department, New Delhi and Others as follows:-
“Industrial Disputes Act (14 of 1947) - sections
2(k) and 2-A - Issue relating to promotion of
employee, held, would not be industrial dispute, and
could not be raised by individual workman, as such
issue could not be considered to be in respect of
non-employment”.
677
4 August 2015]
LA GAZETTE DE L’ETAT
A careful observation of the abovesaid ruling,
wherein, it has been clearly held that the issue relating
to promotion of the employee would not be a industrial
dispute and could not be raised by individual workman,
as such issue could not be considered to be in respect
of non-employment.
9. It has been held in a case B.K. Sbarma Vs. State
of U.P., 1976 (32) FLR 280 vide Industrial Disputes Act,
Justice D.D. Seth, 9th edition, Pg.519 as follows:-
“Section 2-A contemplates dispute arising out of
discharge, dismissal, retrenchment or termination of
services of individual workman and not other service
conditions. Where a workman is employed for a fixed
period with a condition that his right to continue will
automatically come to an end on expiry of the period,
this section has no application”.
10. In the light of the abovesaid rulings a perusal of
the records on hand which would also reveal that the
case of the petitioner’s that the problem i.e., the dispute,
i.e., promotion, which was said to have been denied to
the petitioners, was not a dispute which should be
decided by the concerned forum constituted under the
Industrial Disputes Act.
11. A perusal of the evidence of RW1 who would
say at the time of cross-examination as follows:-
“2002, 2006 settlement, part C- promotion must
given to those who have merit with clean upper hand
”.
A cursory reading of the abovesaid RW1 which would
show the fact that there was a settlement during the year
of 2002 and 2006 regarding the promotion policy and
also a perusal of the Ex.R3 would also the reveal the
fact that there was a settlement between the employees
and employer of this dispute, namely, the petitioner and
the respondent respectively. A perusal of the Exs.R4,
R5, R6 and R7 would also reveal the fact that the
respondent management had adopted a promotion
policy and considered the employees, efficiency and
other related factors for promotion.
12. But, on the other hand, it was not established
by the petitioner that the petitioner's, namely, 135 workers
who were claiming the promotion as referred in the
reference were eligible for promotion by adducing the
substantial documents before this court. The documents
produced by the petitioner’s, namely, Ex.P1 to P5 were
not establishing the case of the petitioners as how the
petitioners were eligible for promotions overlooking the
persons already promoted as alleged.
13. It has been held in a case as reported in 2011-
IV-LLJ-34(Madras) Pg.34, President, represented Chennai
Petroleum Employee's Union, Chennai Vs. General
Manager (H.R.), Chennai Petroleum Corporation Limited,
Chennai as follows:-
“Performance appraisal procedure adopted by
management was held not illogical”.
In the light of the abovesaid ruling a perusal of the
records on hand, the court decided on a considered view
that the abovesaid proposition of the law laid down by
the Hon'ble High Court of Madras is also squarely
applicable to the given case.
14. Hence, the court decided on a considered view,
that the case of the petitioner was not established by
the petitioner's either on facts or on law and the same
is to be rejected and the reference made by the
concerned authority be closed as devoid of merits.
Accordingly, it is ordered that the reference is closed
as it was not established by the petitioner's as claimed.
15. In the result, the reference made by the
Government of Puducherry in G.O. No. 187, dated
20-9-2010 was closed, as the petitioners, wherein, were
not establishing the claim and the petitioner’s were not
entitled for any relief as claimed. Accordingly, it is ordered.
Typed to my dictation, corrected and pronounced by
me in the open court on this the 9th day of December 2014.
G. DHANARAJ,
Presiding Officer, Labour Court,
Pondicherry.
————
List of petitioner’s witness:
P.W.1 — 6-8-2013 — C. Ezhil
List of respondent’s witness:
RW1— 14-2-2014 — J. Joseph Alexander
List of petitioner’s exhibits:
Ex.P1 — Copy of the Employees union letter
address to respondent to consider promotion
to the employees, dated 19-2-2009.
Ex.P2 — Copy of the list of employees who have
been affected.
Ex.P3 — Copy of the Memorandum of Settlement (2002),
dated 12-12-2002.
Ex.P4 — Copy of the employees union representation
to the Labour Officer in respect of the
affected employees, dated 26-2-2010.
Ex.P5 — Copy of the Labour Officer (Conciliation)
failure report, dated 20-5-2010.
678
LA GAZETTE DE L’ETAT
[4 August 2015
Ex.P6 — Copy of the various representation made
by the labour union to the respondent,
dated 7-12-2009.
List of respondent's exhibits:
Ex.R1 — Copy of the letter of authorization for
Joseph Alexander, dated 5-2-2014.
Ex.R2 — Attested copy of the order of transfer of
P. Canbady (T.No. 559), S. Gobi(T.No. 560),
S.A. Sankar (T.No. 561) and T. Sasikumar
(T.No. 563) from Biopolymers and Hosur
Tea Units to respondent’s factory and his
absorption in respondent factory (To prove
that he has been transferred and not
promoted as mentioned in claim statement),
dated 18-11-2005.
Ex.R3 — Attested copy of the 12(3) settlement,
dated 12-12-2002 and 10-5-2007 (To show
the criteria for promotion), dated 10-5-2007,
12-12-2002.
Ex.R4 — Attested copy of the assessment of
J. Sivakumar (T.No. 151) with his appraisal
forms and other papers, giving insight on
procedures being adopted by respondent
in promotion of workers. (To show the
promotion process followed as per the
criteria in a just and fair manner).
Ex.R5 — Attested copy of the assessment of
V. Meganathan (T.No. 200) and with his
appraisal forms and other papers, giving
insight on procedures being adopted by
respondent in promotion of workers.
(To show the promotion process followed
as per the criteria in a just and fair manner).
Ex.R6 — Attested copy of the list of promotions
given by respondent from 2006 to 2013.
(To show that till 2010 promotions have
been made only up till T.No. 200 and so,
all employees in list of 135 workmen
appearing after 200 are not qualified for
promotion on grounds of seniority and
also that 74 promotions have been done
as against the 70 claimed by petitioner as
on 1-11-2008).
Ex.R7 — Attested copy of the statement relating to
some of the workers mentioned in present
dispute
giving
reasons
for
their
disqualification to promotion from 2007 to
2010. (To give justification for non-
promotions of the 21 employees from list
of 135 employee submitted by petitioner).
Ex.R8 — Attested copy of the charge sheet issued
to R. Muthukrishnan (T.No. 44) for various
misconducts committed by him and its
punishment order, his pay slip for month
of December 2008 for inadequate
attendance. (To give proof of justification
for disqualification from 2007, 2008 and
2010 promotion process), dated 16-12-2005,
24-10-2005, 8-10-2005.
Ex.R9 — Attested copy of the advisory letter
issued to A. Senthilvel (T.No. 59) and his
pay slips for the month of April 2006,
December 2008 and 2009 for lack of
attendance. (To give proof of justification
for disqualification from 2007, 2008 and
2010 promotion process), dated 18-5-2006.
Ex.R10 — Copy of the pay slips of M. Gopalakrishnan
T.No. 78 for the month of December 2005,
2007, 2008 and 2009 and the dismissal letter
issued to him. (To give proof of justification
for disqualification from 2007, 2008 and
2010 promotion process).
Ex.R11 — Attested copy of the performance
development plan and assessment sheet of
Ayup Khan (T. No. 118) for the year 2006.
(To show that he had qualified but failed
in the promotion interview), dated 27-12-2007.
Ex.R12 — Attested copy of the promotion letter sent
by respondent to T. Jayapal (T.No. 120).
(To show that he had qualified and has
been promoted), dated 26-2-2011.
Ex.R13 — Attested copy of advisory letter and April
2006 pay slip issued to V. Manogaran
(T.No. 123), giving details of his
attendance for the year 2006. (To give
proof of justification for disqualification
from 2008 and 2010 promotion process),
dated 18-5-2006.
Ex.R14 — Attested copy of the show cause notice
issued to A. Ravi (T.No. 144). (To give proof
of justification for disqualification from
2010 promotion process), dated 10-1-2006.
Ex.R15 — Attested copy of the pay slips of R. Selvaraj
(T.No. 150) for the month of December
2007, 2008 and 2009 giving details of his
attendance. (To give proof of justification
for disqualification from 2010 promotion
process.
Ex.R16 — Attested copy of the interview evaluation
form of B. Uthayakumar (T.No. 168).
(To show that he was not recommended
for promotion during the promotion
interview).
679
4 August 2015]
LA GAZETTE DE L’ETAT
Ex.R17 — Attested copy of the interview evaluation
form and employee appraisal form of
R. Venkatesan (T.No. 169) for the year
2006. (To show that he had qualified for
2010 promotion process but failed in the
promotion interview).
Ex.R18 — Attested copy of the Annual Performance
Appraisal form of K. Kuppusamy (Token
No. 175). (To give proof of justification for
disqualification from 2010 promotion
process).
Ex. R19—Att e st e d c o p y o f th e p a y s l ip s o f
D. Thulasinathan (T.No.181) for the month
of December 2009 giving details of his
attendance and his dismissal form (To give
proof of justification for disqualification
from 2010 promotion process), dated 30-10-2013.
Ex.R20 — Attested copy of the charge sheet of
S. Ethirasu (T.No. 183) issued in 2007.
(To give proof of justification for
disqualification from 2010 promotion
process), dated 1-3-2007.
Ex.R21 — Attested copy of the charge sheet and
warning letter issued to C. Ezhil (T.No. 184)
in 2008 and 2009, (To give proof of
justification for disqualification from 2010
promotion process), dated 18-11-2008,
dated 26-3-2009.
Ex.R22 — Attested copy of the promotion letters
along with interview appraisal forms of
S. Kumaravenkatraman (T.No. 185).
(To show that he had qualified for 2010
promotion process and has been promoted),
dated 21-2-2011.
Ex.R23 — Attested copy of the promotion letters
along with interview appraisal forms of
P. Murugan (T.No.186). (To show that he
had qualified for 2010 promotion process
and has been promoted), dated 20-12-2010.
Ex.R24 — Atte sted c o p y o f the p a y slip s o f
K. Ramesh (T.No. 189) for the month of
December 2009 giving details of his
attendance for the year. (To give proof of
justification for disqualification from 2010
promotion process).
Ex.R25 — Attested copy of the resignation letter
submitted by K. Ramesh (T.No. 189), his
relieving order, service certificate and
cheque represents full and final settlement.
(To show that he has resigned and his full
and final settlement has been properly
completed), dated 5-7-2010.
Ex.R26 — Attested copy of the warning letter issued
to V. Theivanayagam (T.No. 190). (To give
proof of justification for disqualification
f r o m 2 0 1 0 p r o mo t i o n p r o c e s s ) ,
dated 7-9-2009.
Ex.R27 — Attested copy of the promotion letters
along with interview appraisal forms of
K. Kumaran (T.No. 197). (To show that he
had qualified for 2010 promotion process
and has been promoted), dated 20-12-2010.
Ex.R28 — Attested copy of the promotion letters
along with interview appraisal forms of
K. Madanagobalan (T.No.198). (To show
that he had qualified for 2010 promotion
process and has been promoted),
dated 9-2-2011.
Ex.R29 — Attested copy of the excel sheet
containing the date of promotion given to
26 workers out of 135 workers mentioned
in the claim statement. (To show that 26
out of 135 employees so claimed by
petitioner have been promoted already and
as and when the positions are available
promotions will further be done)
Ex.R30 — Attested copy of the dismissal order of
V. Elumalai (T.No. 404), dated 5-11-2013
G. DHANARAJ,
Presiding Officer, Labour Court,
Pondicherry.
————
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 82/Lab./AIL/J/2015, dated 14th June 2015)
NOTIFICATION
Whereas, an award in I.D.(T)2/2012, dated 21-1-2015
of the Industrial Tribunal, Puducherry in respect of the
industrial dispute between the Managing Director,
Tamil Nadu State Transport Corporation, Puducherry
and the President, Puduvai Pradesa Pokkuvarathu
Thozhilalar Sangam, Puducherry over charter of
demands such as 2nd review of monthly salary w.e.f.
2002 onwards and recovery of illegal deduction of
wages
along
with
arrears
of
Thiruvalargal
Panchanadhan and R. Rajendiran 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
680
LA GAZETTE DE L’ETAT
[4 August 2015
G.O. Ms. No. 20/91/Lab./L. dated 23-5-91, it is hereby
directed by Secretary to Government (Labour) that the
said award shall be published in the official gazette
Puducherry.
(By order)
A. RAJARATHINAM,
Under Secretary to Government (Labour).
————
BEFORE THE INDUSTRIAL TRIBUNAL AT
PONDICHERRY
Present : Thiru G. DHANARAJ, B.Sc., B.L.,
Presiding Officer, Industrial Tribunal.
Wednesday, the 21st day of January 2015.
I.D. (T) No. 2/2012
The President,
Puduvai Pradesa Pokkuvarathu
Thozhilalar Sangam,
Puducherry.
. . Petitioner
Versus
The Managing Director,
Tamil Nadu State Transport
Corporation, Puducherry.
. . Respondent
This industrial dispute coming on 24-12-2014 for final
hearing before me in the presence of Thiru Durai Arumugam,
Counsel for the petitioner, Thiru N. Vinayagam, Counsel
for the respondent, upon hearing both sides, upon
perusing the case records, after having stood over for
consideration till this day, this court passed the
following:
AWARD
This industrial dispute has been referred as per the
G.O. Rt. No. 58/AIL/Lab./J/2012, dated 29-3-2012 for
adjudicating the following:-
(1) Whether the dispute raised by Puduvai
Pradesa Pokkuvarathu Thozhilalar Sangam over
charter of demands such as 2nd review of monthly
salary w.e.f. 2002 onwards and recovery of illegal
d e d uc tio n o f wa ges alo ng wit h a rrea rs to
Thiru Panchanadhan and Thiru R. Rajendiran are
justified?
(2) Whether the claim over recovery of illegally
deducted wages and its arrears from the salary of
Thiru M. Segar working in Puducherry branch of
M/s. Tamil Nadu State Transport Corporation is
justified.
(3) If justified, to what relief they are entitled to?
(4) To compute the relief, if any, awarded in terms
of money, if it can be so computed?
2. The facts giving rise to this industrial dispute as
stood exposited from the claim petition runs thus:-
The respondent company was running with 400
employees at Mudaliarpet, Uppalam Road, in
Puducherry State for the last 40 years. The
respondent company did not provide any benefit for
the employees of the said company. The respondent
management did not comply with the labour welfare,
the facts and was indulged in illegal activities. The
respondent management did not provide the annual
increment to the employees and did not take any
necessary steps as to review the salary of the
employees as per the standing order of the respondent
management and was conducting the management
administration whimsically. The respondent management
provides the benefits only to those bear on good
books of respondent management and the remaining
employees were being ill-treated. Due to the
respondent management illegal activities, the
employees of the respondent management were lost
lakhs of rupees which was entitled for the concerned
employees. The employees Thiruvalargal Panchanadhan
DR 1784, R. Rajendiran CR 2788 and M. Segar
CR 1075, were affected due to the illegal activities of
the respondent management and the dispute was
brought before the conciliation officer. The respondent
management authorities did not attend the
conciliation process and no settlement was taken
place the matter was referred to this court.
The said Panchanadhan was joining the
respondent management company on 13-2-1987, the
said Panchanadhan was entitled for review of the
salary benefits as on 13-2-1993, as per the agreement
made between the parties thereon. But after the lapse
of seven years only, the said Panchanadhan was
benefitted after review of the salary of him. The said
Panchanadhan was not given the second salary
review, due on 13-2-2001 till date. The respondent
management was not assigning any valid reason for
non-sanctioning of the salary increment. It was
stated by the respondent management that the said
Panchanadhan was negligently driving the vehicle
and the said vehicle was made with an accident
because which only the salary review was delayed
for the said Panchanadhan. But, it was only a false
representation of the management. The respondent
management was conducting the ex-parte enquiry in
the pretext of the drivers were driving the vehicle
negligently and was accident taken place. Repentantly,
681
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LA GAZETTE DE L’ETAT
the increments entitled for the concerned drivers
were not given of the salary and also there was
reduction of basic pay as a punishment even the
court of law bound found not guilty of the concerned
drivers the punishment given by the respondent
management authorities were not reviewed and was
not cancelled. The said Panchanadhan was entitled
for a sum of ` 2,74,892 with interest.
Likewise, the said Rajendiran was not given the
second review of salary benefit which was matured
even in the year of 2006, till date. The reason given
by the respondent management was not legally valid.
The reason stated by the respondent management,
the said Rajendiran was absent from attending duty
and was behaved disorderly. The enquiry conducted
against the said Rajendiran was not fair and was
illegally conducted. The respondent management had
taken revenge against the said Rajendiran by
non-providing the early increment and not review the
salary then and there. Even the standing order of the
respondent management did not mention the period
to which the salary review be withheld. The said
Rajendiran is entitled for a sum of ` 3,50,762 with
interest as mentioned in the Annexure, which was
withheld by the respondent management illegally.
The employee Mr. Sekar who was a conductor in
the respondent management organisation whose
number is 1075 and new number is TMO 149 was
deducted the salary from ` 9,295 to ` 6,655 stating
the reason that the said Sekar was absent from
attending duty, from the date of 29-6-2006. For the
period of three years, the said order was taken effect
from the date of 21-5-2010, the said Sekar was a
diabetic patient and was taking treatment and was
on medical leave. The said Sekar had submitted his
application with medical certificate with an
endorsement by the respondent management
authorities. In spite of the said fact, the respondent
management authority was treating the said period
as an absence period which was only revengical act
and it was a anti-labour attitude, the respondent
management did not provide the vehicle for attending
the duty and the employees were returned without
assigning any work, the attendants of the said
employee were also noted in the concerned register.
The respondent management had taken the action
against the labour acts in the pretext of their absent
from duty and the punishment given to the said
Rajendiran and was not correct. The said Rajendiran
should not be punished and the salary of the said
Rajendiran should not be discussed and no amount
be deducted. The claim petitioners, namely,
Panchanadhan DR 1784, was entitled for a sum of
` 2,74,892 and the said Rajendiran, CR, was entitled
for a sum of ` 3,50,752 and the said Sekar, CR 1075,
New No. TMO 149 was entitled for the salary
prescribed to him and the order of the deduction of
salary of the said Sekar was to be cancelled.
3. Per contra, traversing the averments the claim
statement, the respondent filed the counter with the
averments which runs thus:
The averments made in the claim petition of the
petitioner are totally false and was denied by the
respondent. The averments made in the claim petition
was to be proved by the petitioner themselves. The
respondent management organisation was a Public
Service Transport Organisation having Headquarters
at Villupuram and is having Branch Office at Puducherry
Union Territory. There are four hundred labour
workmen in the said organisation, the workmen are
entitled for all benefits as per the labour welfare Acts
and were being given the respondent management
authorities did not do any illegal acts against the
workmen. The workmen are entitled and are being
given annual increment of salary and wage revision.
As per the Act, the industrial dispute before this court
was arisen due to the non-wage revision to one
Panchanadhan, driver and one R. Rajendiran CR and
deduction of salary for three years for one Sekar, CR.
As per the procedure this dispute before this court
was to be risen, after the decision of the General
Body Meeting or the Executive Meeting Resolution.
But the dispute before this court, was not approved
by either General Body Meeting or Executive Meeting
and the dispute is to be dismissed in liminine. The
said Panchandhan DR, was transfered to Sankarapuram
Branch on 6-10-2010 and M. Sekar, CR was transfered
to Chidambaram Branch on 19-2-2006. The said
Panchanadhan and Sekar were not employees of the
Puducherry Branch. This court is not having
jurisdiction over the dispute regarding the said
Panchanadhan and Sekar. The wage revision of said
Panchanadhan and R. Rajendiran was not automatic
and could not be given after the expiry of the
prescribed period. The wage revision was not a
matter of right, the wage revision was being given
to the employees concerned, if the concerned
management was satisfied with the work of the
concerned employee for the development of the
concerned management organisation. The wage
revision was amount to a gift to the concerned
employee given by the concerned management
organisation. It is purely a discretionary power of the
concerned management not otherwise as per the
settlement between the management and the union
members under section 12(3) of the Act. After the
682
LA GAZETTE DE L’ETAT
[4 August 2015
completion of six years service of the concerned
employee the first wage revision will be given from
the said period. After the completion of eight years,
second wage revision would be given. Provided, the
said employee was found satisfactory for the said
management employment and the concerned,
employee was put his efforts for the development of
the concerned organisation and there was no
punishment during the said period. The said
Panchanadhan
had
joined
the
respondent
management organisation on 13-2-1987 as a driver
and was confirmed on 1-11-1987 as a driver. The wage
revision was given to him on 1-5-1995 after that after
the completion of eight years. He would have been
given the second wage revision, but the said
Panchanadhan had given his vehicle on 12-12-1999
negligently and met with an accident and department
of domestic enquiry was conducted following which
the wage revision was postponed for three years from
the date of 20-3-2000. Subsequently, also the said
Panchanadhan had given his vehicle in a negligent
manner on 24-11-2004 was met with an accident
causing a death of a person, and a domestic enquiry
was conducted following which the wage revision
was postponed of five years from the date of 5-4-2006
as ordered. On 3-12-2005 also he drew the vehicle in
a negligent manner and met with an accident causing
death to a person due to which the basic salary was
deducted from ` 6,390 to ` 4,440. The said deduction
would be in force for three years, the suspension
period was regularised as his leave period eligible to
him. The final order was passed on 18-1-2007, the said
Panchanadhan was absent from duty from 7-7-2010.
The said Panchanadhan was given more punishment
during his duty period and was absent from 7-7-2010.
The said Panchanadhan was not given second wage
revision, the wage revision would be given after the
punishment period no illegal deduction was done to
the said Panchanadhan salary. The demand of the
union regarding the salary wage revision to
Panchanadhan was not acceptable one. The
petitioner did not take any necessary action to set
aside the punishment given by the domestic enquiry
authorities and was no appeal against the decision
of the domestic enquiry authorities and the decision
of the domestic enquiry is final.
The said Rajendiran had joined duty on 27-11-1992
as conductor and he was confirmed as a conductor
on 1-10-1993. The wage revision was given to him
on 1-5-2000 onwards. He was entitled for second
wage revision from 1-5-2008, but the said Rajendiran
was irregularly attending his duty from 14-6-2002 to
21-10-2002 for the period of 41 days. A domestic
enquiry was conducted against him and was ordered
that the wage revision should be postponed for one
year without any cumulative effect from 5-7-2003. As
per the final order from 22-12-2003, he was absent
from duty and he was facing the domestic enquiry.
Finally, his basic salary was deducted from ` 4440
to ` 3390 for five years on 16-12-2000 as final order.
Subsequently, it was reviewed as per the petition
given by him and it was decided that the five year
period reduced to two years period without
cumulative effect from 14-5-2000. On 26-6-2004 he
misbehaved disorderly and domestic enquiry was
conducted and his annual increment was postponed
for one year from 27-5-2005. Subsequently, he was
behaved disorderly on 13-4-2005 and was facing
enquiry and his annual increment was postponed
further one year, as per the order dated 16-12-2005,
he was doing his duty irregularly. On 19-6-2005, while
distributing the travelling tickets and was facing the
domestic enquiry. His annual increment was
postponed for further six years from 11-3-2006. He
was suspended for three days for his irregular
activities during his duty period on 16-4-2009 and was
censure. As per the order dated 26-5-2010, he
misbehaved with the Assistant Manager, Operation,
on 30-5-2010 and was facing enquiry and suspended
from his service and he was reinstated on 21-6-2010
pending enquiry. Subsequently, also he was
misbehaved with the passenger and the Assistant
Engineer, he was suspended from duty on 1-7-2010
and was reinstated on 19-10-2010. Finally his annual
increment was postponed for two years with
cumulative effect as per the final order dated 26-11-2010.
The said Rajendiran was facing a chain of action and
his wage revision was postponed for four years. The
said Rajendiran was on leave on loss of pay from 112
days and was absent for attending duty for 278 days.
Subsequently, he was absent without salary from
attending duty for 390 days, the enquiry was also
pending against him. The order passed on 21-11-2004,
after due enquiry only the punishment was given to
him which was only a lesser punishment. There was
no appeal against the finding of the domestic
enquiry authorities still the punishment given by the
respondent management authorities is still in force.
The said Sekar who was a conductor having
No.CR 1075 was absent from attending duty from
29-6-2006 and was facing enquiry and it was ordered
that the basic pay of the said Sekar was to be
reduced from ` 9295 to ` 6655 for three years from
22-5-2010. The said Panchanadhan, Rajendiran was
not entitled for any benefit as decided by the
683
4 August 2015]
LA GAZETTE DE L’ETAT
respondent management authorities as stated above
and the said Sekar is also not entitled for any benefit
claimed by him in the claim petition for the reasons
stated above. The action taken by the respondent
management authorities, as per standing order, the
reduction of salary for the said persons was
according to standing order. The said Panchanadhan,
Rajendiran and Sekar were facing enquiry for the
irregularities and were given the punishment for their
irregularities. As decided by the respondent
management authorities as per law and the
punishment given to them were not arbitrarily.
4. On the side of the petitioner, PW.1 and PW.2
were examined, on the petitioner side Ex.P1 to Ex.P5
were marked.
5. The point for consideration is:
Whether the industrial dispute can be allowed?
or not?
6. On this point:
Heard. It was submitted by the Counsel for the
petitioners
that
the
petitioners,
namely,
one
Panchanadhan, one Rajendiran were the employees of
the Tamil Nadu Transport Corporation having Branch
at Puducherry. The said petitioners were being
represented through the petitioner union, namely,
“Puduvai Pradesa Pokkuvarathu Thozhilalar Sangam”.
The said Panchanadhan was not given the salary
increment as agreed and as per convention from the
date of 13-2-1993. Subsequently, from 13-2-2001 also the
said Panchanadhan was not given the salary increment
as agreed. The said Rajendiran also was not given the
salary increment as agreed for the concerned period.
The said Panchanadhan and Rajendiran were entitled for
the monetary benefit as claimed in the petition. The
conciliation took place between the parties herein and
the same was failed. Hence this dispute.
7. On behalf of the respondent, in spite of repeated
adjournments there was no argument, a perusal of the
counter statement filed by the respondent would show
that the driver P. Panchanadhan and the conductor
Rajendiran were proceeded with domestic enquiry for
the lapses committed by them as mentioned thereon.
The driver Panchanadhan was negligently driving the
vehicle and caused the accident and was punished as
per the disciplinary proceedings proceeded against him
for the irregularity committed by said Panchanadhan. On
the basis of the finding of the domestic enquiry
proceedings, the said Panchanadhan was not given the
benefit, namely, the salary increment as claimed. The
salary benefit entitled to him would be given to him at
appropriate time, after considering his performance. The
said Rajendiran was also proceeded for his irregularity
and domestic enquiry was conducted as per the finding
of the disciplinary authority, the salary increment
benefits were not given to him, the findings of the
disciplinary authority was still inforce. Hence the
benefit claimed by the petitioners, namely, driver
Panchanadhan and conductor Rajendiran were not
entitled for any salary increment as claimed in the
petition. Another petitioner one Sekar who was the
conductor of the respondent management Corporation
also was proceeded with the disciplinary proceedings
and was found guilty by the concerned disciplinary
authority. The said findings of the disciplinary authority
is also still inforce. Hence the said Sekar who is
conductor is also not entitled for any benefit as claimed.
8. After hearing petitioner’s Counsel and after
perusing the counter statement filed by the respondent.
records were perused. On perusal it comes to light, on
behalf of the petitioner PW.1 and PW.2 were examined
Ex.P1 to P5 were marked as exhibits and neither any
evidence nor any documents produced by the
respondent. On the basis of the evidence of PW.1, a
perusal of the Ex.P2, wherein, it has been mentioned as
follows (relevant portion):-
“
(WC)
684
LA GAZETTE DE L’ETAT
[4 August 2015
(WC)
`
( W C )
( WO C )
`
`
`
`
”
9. A perusal of the exhibit P3, which is pertaining to
the Rajendiran, wherein, it has been mentioned as
follows (relevant portion):-
`
x
x
x
x
( W C )
685
4 August 2015]
LA GAZETTE DE L’ETAT
(Removal from service)
`
``
(Pay reduction)
(Basic pay is reduced and fixed at ` 3390 from present
basic pay of ` 4440 in the time scale of pay of
` 3390-75-5490 with effect from 21-11-2004. The period
of pay reduction is fixed as 5 years (Five years) on
restoration the period of pay reduction will operate to
postpone
his
future
increments)
A careful study of the abovesaid exhibits, namely,
Ex.P2 and P3 would reveal the fact that the said
Panchanadhan and Rajendiran were subject to domestic
enquiry and was found guilty and were given
punishment as mentioned thereon, i.e. the petitioner’s
documents themselves would show that the petitioners
were given punishment as mentioned thereon. A perusal
of the Ex.P3 would also reveal the fact that the punished
persons, namely, deliquents, namely, Panchanadhan
and Rajendiran be preferred an appeal against the order
of the disciplinary authority before the concerned
competent authority within the prescribed time. But it
was not established by the petitioners, namely, the said
Panchanadhan and Rajendiran and another Sekar that
the orders passed by the concerned disciplinary
authorities as exhibited in Ex.P2 and P3 were set aside
by any competent authority.
10. A cursory reading of the Central Civil Services
Classification, Control and Appeal Rules, rule 24,
wherein, it has been mentioned as follows :-
“24. Appellate Authority
(1) A Government servant, including a person who
has ceased to be in Government service, may prefer an
appeal against all or any of the orders specified in
rule 23 to the authority specified in this behalf either in
the Schedule or by a general or special order of the
President or, where no such authority is specified.
(i) Where such Government servant is or was a
member of a Central Service, Class I or Class II or
holder of a Central Civil post, Class I or Class II,-
(a) to the appointing authority, where the order
appealed against is made by an authority
subordinate to it; or
(b) to the President where such order is made
by any other authority;
(ii) where such Government servant is or was a
member of a Central Civil Service, Class III or Class IV
or holder of a Central Civil post, Class III or Class IV,
to the authority to which the authority making the
order appealed against is immediately subordinate.
(2) Notwithstanding anything contained in
sub-rule(1)-
(i) an appeal against an order in a common
proceeding held under rule 18 shall lie to the
authority to which the authority functioning as the
disciplinary authority for the purpose of that
proceeding is immediately subordinate:
Provided that where such authority is subordinate
to the President in respect of a Government servant
for whom President is the appellate authority in terms
of sub-clause (b) of clause (i) of sub-rule (1), the
appeal shall lie to the President.
(ii) where the person who made the order appealed
against becomes, by virtue of his subsequent
appointment or otherwise, the appellate authority in
respect of such order, an appeal against such order
shall lie to the authority to which such person is
immediately subordinate.
686
LA GAZETTE DE L’ETAT
[4 August 2015
(3) A Government servant may prefer an appeal
against an order imposing any of the penalties specified
in rule 11 to the President, where no such appeal lies
to him under sub-rule (1) or sub-rule (2), if such penalty
is imposed by any authority other than the President,
on such Government servant in respect of his activities
connected with his work as an office-bearer of an
association, federation or union, participating in the
Joint Consultation and Compulsory Arbitration
Scheme.”
A careful study of the above said rule would reveal
the fact that any Government servant may prefer an
appeal against any order of the authority, namely,
disciplinary authority before the competent concerned
appellate authority or before any competent authority.
11. In the light of the above said rule, a perusal of
the records on hand would reveal the fact that it was
not case of the petitioners that the punishments
awarded by the concerned disciplinary authority against
the said Panchanadhan and Rajendiran were set aside
either by the concerned appellate authority or by any
competent authority. Until and unless, the punishment
given by the disciplinary authority against the said
Panchanadhan and said Rajendiran, the benefit claimed
in the petition would not be entitled for them. For the
simple reason, that already a order was issued by the
competent authority for non-sanctioning the benefit to
the petitioner Panchanadhan and Rajendiran.
12. It is pertinent to note down here one Sekar who
was a party to the conciliation proceedings did neither
produce any evidence nor any documents to
substantiate his claim before this court. Hence the court
decided on a considered view, the case of the
petitioners was not established before this court and
the petitioners are not entitled for any benefit as
claimed in the petition.
13. In the result, it is ordered that the petitioners,
namely, Panchanadhan, Rajendiran and Sekar were not
entitled for any monetary benefit as claimed in the
petition and the reference made in G.O. No. 58,
dated 29-3-2012 is answered accordingly.
Typed to my dictation, corrected and pronounced by
me in the open court on this the 21st day of January 2015.
G. DHANARAJ,
Presiding Officer,
Industrial Tribunal, Pondicherry.
List of petitioner’s witnesses:
PW.1 — 22-11-2013 — P. Panchanadhan
PW.2 — 3-9-2014
— R. Rajendiran
List of respondent’s witness: Nil
List of petitioner’s exhibits:
Ex.P1 — Photocopy of the objection letter by
respondent, dated 21-11-2011.
Ex.P2 — Photocopy of the order of basic salary
deductions in Thiru P. Panchanadhan,
dated 24-1-2007.
Ex.P3 — Photocopy
of
the
basic
salary
deductions in Thiru R. Rajendiran, dated
16-12-2004.
Ex.P4 — Photocopy of the 12(3) agreement in all
Labour Associations, dated 6-2-2008.
Ex.P5 — Photocopy of the Legal Standing
Orders in Association, dated 12-1-1981.
List of respondent’s exhibits: Nil
G. DHANARAJ,
Presiding Officer, Industrial Tribunal,
Pondicherry.
GOVERNMENT OF PUDUCHERRY
OFFICE OF THE CHIEF EDUCATIONAL OFFICER
No. 650/CEO/Exam Cell/2014-15.
Puducherry, the 13th July 2015.
NOTIFICATION
It is hereby notified that the original S.S.L.C. Mark
Certificate under Register Number 306374 of April 1993
in respect of A. Said Pirane, an ex-pupil of Ilango
Adigal
Government
Higher
Secondary
School,
Muthiraiyarpalayam is reported to have been lost and
beyond the scope of recovery it is proposed to issue a
duplicate certificate. If the original certificate is to be
found by anybody, it should be sent to the Director of
Government Examinations, Chennai-6 for cancellation, as
it is no longer valid.
N. RAMALINGAM,
Chief Educational Officer.
————
GOVERNMENT OF PUDUCHERRY
OFFICE OF THE CHIEF EDUCATIONAL OFFICER
No. 650/CEO/Exam Cell/2014-15.
Puducherry, the 13th July 2015.
NOTIFICATION
It is hereby notified that the original S.S.L.C.
Mark Certificate, under Register Number 491745 of
March 2005 in respect of S. Sivachandran, an ex-pupil
of Sri Sankar’s Vidhyalaya, Villianur is reported to have