La Gazette de L' État de Poudouchéry
The Gazette of Puducherry
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No.
17
Poudouchéry
Mardi
25
Avril
2017 (5 Vaisakha 1939)
No.
Puducherry
Tuesday
25th
April
2017
SOMMAIRES
CONTENTS
Page
Page
.. 334
Sentence arbitral du travail
.. 334
Award of the Labour Court .. 334
de tribunal.
.. 342
Notifications du Gouvernement
.. 342
Government Notifications .. 342
.. 350
Avis d’Adjudications
.. 350
Tender notices
.. 350
.. 357
Etablissements dangereux
.. 357
Dangerous Establishments
.. 357
.. 362
Annonces
.. 362
Announcements
.. 362
.. 368
Corrigendum
.. 368
Corrigendum
.. 368
[ 333 ]
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334
LA GAZETTE DE L’ETAT
[25 April 2017
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 47/Lab./AIL/T/2017,
Puducherry, dated 6th April 2017)
NOTIFICATION
Whereas, the Award in I.D.(L)No. 02/2015, dated
15-2-2017 of the Labour Court, Puducherry in respect of
the industrial dispute between the Management of
M/s. AVA Cholayil Health Care (Pvt.) Limited, Puducherry
and Thiru S. Anbazhagan, Villianur, Puducherry over
non-employment has been received;
Now, therefore, in exercise of the powers conferred
by sub-section (1) of section 17 of the Industrial
Disputes Act, 1947 (Central Act XIV of 1947), read with
the notification issued in Labour Department’s G.O. Ms.
No. 20/91/Lab./L, dated 23-5-1991, it is hereby directed
by the Secretary to Government (Labour) that the said
Award shall be published in the Official Gazette,
Puducherry.
(By order)
E. VALLAVAN,
Commissioner of Labour-cum-
Additional Secretary to Government (Labour).
————
BEFORE THE INDUSTRIAL TRIBUNAL-CUM-
LABOUR COURT AT PUDUCHERRY
Present : Thiru G. THANENDRAN, B.COM., M.L.,
Presiding Officer.
Wednesday, the 15th day of February 2017
I.D.(L) No. 02/2015
S. Anbazhagan,
Employee No.141900143,
No. 4, Vinayagar Koil Street,
SMV puram, Villianur,
Puducherry-605 110.
. . Petitioner
Vs.
The Managing Director,
M/s. AVA Cholayil Health Care
Private Limited,
Puducherry.
. . Respondent
This industrial dispute coming on this day for hearing
before me in the presence of Thiruvalargal A. Sakthivel
and A. Govindh, Advocates for the petitioner,
Thiru B. Mohandoss, Advocate for the respondent,
upon hearing both sides, upon perusing the case
records, after having stood over for consideration till
this day, this Court passed the following:
AWARD
This industrial dispute arises out of the reference
made by the Government of Puducherry vide G.O. Rt.
No. 4/AIL/Lab./J/2015, dated 30-1-2015 of the Labour
Department, Puducherry to resolve the following
dispute between the petitioner and the respondent viz.,
(1) Whether the dispute raised by the petitioner
Thiru S. Anbazhagan against the management of
M/s. AVA Cholayil Health Care Private Limited,
Puducherry over non-employment is justified ?
If justified, what relief he is entitled to ?
(2) Whether the management adopted unfair
practice against the union office bearers ? If so,
what relief the petitioner is entitled to ?
(3) To compute the relief if any, awarded in
terms of money if, it can be so computed?
2. The petitioner, in his claim statement, has
averred as follows:
It is the case of the petitioner that he is the
Secretary of the Medimix Labour union which was
bearing No.1593/RTU 2009 situated at SMV puram,
Villianur, Puducherry and AVA Cholayil Health Care
Private Limited, is also functioning at Odiayampet,
Villianur, Puducherry and wherein, 88 employees
were working, out of which 60 employees are the
members of the petitioner union and another union
in the name of Labour Welfare Association is also
functioning in the respondent industry which is
functioning in support of the management, wherein,
23 employees are the subscribers of the union and
that the respondent management has not adopted the
Industrial Disputes Act for the past 28 years and
conciliation were taken place before the Assistant
Commissioner of Labour and an appeal is pending
before the Assistant Commissioner of Labour and
on the compel of the management that there was an
18(1) settlement existed between the employer and
the employees, and the petitioner union has given
application on 1-1-2010 for the revision of wages
without any proper meeting conducted between the
employees and employer for negotiation and they
have compelled and obtained the signatures of the
employees and 18(1) settlement was amended and
the respondent management has also terminated one
lyyappan, the President of the union, from his
service and which was challenged before the
Conciliation Officer and the same is pending before
the Court, and with the intention to retrench the
union members by lodging several false complaint
and memo was issued on 8-2-2012 against the
petitioner by the respondent management and that
335
25 April 2017]
LA GAZETTE DE L’ETAT
he has been terminated from service since he has
been doing against the respondent for the unfair
labour practice and foisting of false complaint and
that respondent management has not issued show
cause notice to the 18 employees and no action has
been taken on other 15 employees except three. No
charge-sheet has been issued which shows that
revenge of the management taking against the
petitioner and it is the further case of the petitioner
that he has not been given opportunity to cross
examine one Ramu, PW.2 on 14-7-2012 and no
adjournment were granted to petitioner also on
26-7-2012, which is against natural justice and the
request of the petitioner to examine the Manager is
also rejected by the respondent establishment and
that therefore, he prays to set aside the termination
order and pass an order to directing the respondent
to reinstate him with backwages from 12-12-2013
till disposal of this case.
3. In the counter statement, the respondent has
stated as follows:-
(i) The petitioner has canvassed several facts
and issues which have no nexus with the claim made
by the petitioner in the above industrial dispute and
hence, it is an abuse of process of law and
unnecessarily the petitioner has raised the issues
relating to the claim made by the Medimix Thozilalar
Sangam in ID(T).9/2012 pending on the file of this
Court for disposal and similarly, the petitioner has
raised the issue relating to termination of the
services of Thiru Iyyappan, President of Medimix
Thozilalar Sangam in a vexatious manner and that the
petitioner has suppressed the fact of ID(T).32/
2012 (in which the dismissal of Iyyappan was
challenged) was dismissed by this Court through
Award, dated 18-7-2014 and that the petitioner has
no right or justification, simply to attract sympathy
of this Court, to bring those issues into the present
claim and admitted that the petitioner is the
Secretary of the Medimix Thozilalar Sangam and
d e nied the al lega tio n that out of about 88
permanent workmen employed by the respondent, 60
are members of the above trade union and stated that
the petitioner has raised this industrial dispute in his
individual capacity and the above trade union is not
the petitioner in the present industrial dispute and
denied the allegation that Thozilalar Nala Sangam,
the other trade union formed by the workmen of the
respondent establishment is favouring the management
and stated that based on the merits and demerits of
the issues raised by the workmen, the said union
takes the stand either to support or not to support
the management and denied the allegation that the
respondent management has not followed the laws
like Standing orders Act, Industrial Disputes Act,
etc., despite the passing of 28 years after the
formation of the factory and denied that the
respondent dismissed the petitioner on false
grounds and stated that the petitioner requested the
respondent to declare him as a protected workman
and as it was rejected by the respondent he has taken
up the matter with the Labour Officer (Conciliation)
and pointed out that the claim made by the petitioner
for recognizing him as a protected workman is not
lawful one and accordingly, it was rightly rejected
by the respondent and stated that the provisions of
section 33(1)(b) of the ID Act, 1947 are not
applicable to the claim made by the petitioner and
hence, the approval of the Labour Officer (Conciliation)
and of the Hon’ble Labour Court before imposing
punishment of dismissal on the petitioner is not
required as per law and that the petitioner is guilty
of submitting distorted version of facts and suppression
of material facts relating to his dismissal from
service by the respondent and the petitioner has
conveniently omitted to state the necessary facts
and circumstances attending to the disciplinary
proceedings initiated by the respondent for misconduct
and that the petitioner has not even pointed out the
actual charges framed against him, the explanation
submitted by him for the charges, the evidence
adduced in the enquiry, the report of the Enquiry
Officer, etc.,
(ii) The respondent further stated that through
charge-sheet, dated 18-2-2012 the petitioner was
alleged to have committed the following misconducts
on 8-2-2012 : (1) refusal to discharge the duties
entrusted to him by the making supervisor Mr. Sunil,
(2) Not satisfying the production target of 50
moulds along with 17 other workmen, (3) refusal to
follow the instructions of the management in
discharging the duties by stating (jointly along
with workmen A. Pandi and V. Sivakumar) only 40
moulds could be done and finishing the works
according to your will and pleasure, (4) stopping
the work abruptly even when the shift working time
was not over and the production target was not
completed and leaving the place of work without
obtaining prior permission of the supervisor,
(5) Performing the work for less than 8 hours and
the petitioner submitted the explanation, dated 8-3-2012
denying the charges of misconduct by stating that
he and the other 17 workmen produced 40 moulds
which was in excess by 4 moulds, as per the practice
followed for the past 1 year and the petitioner
336
LA GAZETTE DE L’ETAT
[25 April 2017
further stated that the management has followed the
victimizing attitude against him and other workmen
who are trade union members and hence to find out
the truth regarding the charges framed against the
petitioner, the respondent made arrangement for a
domestic enquiry and in the enquiry, adequate
opportunity was granted to the petitioner to defend
the charges in the proper manner and the enquiry
was conducted in accordance with law and principles
of natural justice and the charges framed against the
petitioner were proved in the enquiry in accordance
with law through reliable evidence and that the
petitioner was granted opportunity to submit
objections/explanation for the enquiry report, dated
12-6-2013 through letter of the respondent, dated
23-8-2013 in which the respondent accepted the
report, the Enquiry Officer holding the petitioner
guilty of the charges and that the petitioner
submitted his explanation, dated 4-9-2013 in which
the petitioner had stated untrue facts and alleged
unwarranted charges against learned Enquiry Officer
and also against management and therefore, the
respondent sent the 2nd show-cause notice of
proposed penalty of dismissal, dated 8-11-2013 and
the punishment of the dismissal was imposed after
taking into consideration the past record of service
of the petitioner which is not free blemish, through
order dated 12-12-2013.
(iii) The respondent further stated that the
petitioner has made unwanted allegations against the
Enquiry Officer and as per law even the legal advisor
of an establishment can conduct domestic enquiry
and in this case only the J unior Ad vo cate
Mrs. Devasundari attached to the office of the
Senior Counsel of the establishment conducted the
enquiry, but, the abovesaid Enquiry Officer is not
appearing for the establishment in the present case
or any other case against the petitioner and that the
petitioner is stopped from canvassing new facts and
taking new pleas which were not raised in the
explanation for the charges and the 2nd show-cause
notice to attack the disciplinary proceedings and
pointed out that the punishment of dismissal is in
tune with the gravity of the misconducts committed
by the petitioner and as pointed out in the 2nd
show-cause notice, dated 8-11-2013, his past
performance was not clean and noted that under
the charge-sheet, dated 31-12-2008 charges of
misconduct were framed by the respondent against
the petitioner and in the enquiry conducted by the
Enquiry Officer-Advocate Thiru K. Velmurugan, the
petitioner admitted the charges on 11-1-2010 and
the petitioner was also supplied the Enquiry Officer’s
report, dated 26-2-2010 and the respondent further
stated that the domestic enquiry proceedings are
quasi-judicial in nature and cannot be equated to the
judicial proceedings of a Court and the nature of
evidence required to sustain the charges and the
mode of proof in the enquiry proceedings are not
similar to the ones related to the Courts and that as
per the sound principles of Labour Jurisprudence,
it is enough if, there is some evidence to prove the
charges of misconduct which is distinguished from
the case of no evidence and similarly, the nature of
proof is not the proof beyond shadow of doubt but,
when a reasonable man believes it to be true from
the facts and circumstances then that alone is
required and in this case the charges of misconduct
levelled against the petitioner have been proved as
required by law and the respondent further stated
that in the enquiry proceedings, the petitioner
participated with his defence assistant and was
permitted to adduce evidence and to cross examine
witnesses and as such this is not an ex parte enquiry
and as per the correct legal position even the ex parte
enquiry proceedings can be the basis for imposing
punishment on the delinquent employee, unless the
findings of the Enquiry Officer are perverse, no
interference can be made so as to set aside the
findings of the Enquiry Officer and on the same
reasoning the punishment imposed on the employee
based on the findings of the Enquiry Officer cannot
be set aside.
(iv) The respondent further stated that for the
sake of inventing ground for justifying his
misconduct, the petitioner has referred to change in
the production process, as an afterthought and in
that attempt he is interpreting the terms and
conditions of settlement under section 18(1) of the
ID Act according to which every employee in the
making section has to give production of 4 moulds
and that the petitioner has admitted the above
production yardstick in para 36 of the claim
statement, but, he is not justified in reading between
the lines, the settlement regarding change in the
production process and that the production process
includes utilization of raw material and hence,
change in the production process automatically
includes change in the utilization of raw material
and under such circumstances it is highly
unreasonable on the part of the petitioner to
contend that the change in the oil content [by
replacing coconut oil by palm oil (palm bio-tech)]
is not warranted under the settlement and the
respondent further stated that the petitioner along
337
25 April 2017]
LA GAZETTE DE L’ETAT
with co-workmen A. Pandi and V. Sivakumar
(petitioner in ID(L).8/2015 where the main cause
for stopping the production by arguing that only 40
moulds could be produced on 8-2-2012 and against
the said Pandi, former Secretary of the Medimix
Thozhilalar Sangam, also charges were framed
under the charge-sheet, dated 18-2-2012 and enquiry
was conducted by the very same Enquiry Officer,
Advocate Mrs. Devasundari and pointed out that
Thiru A. Pandi admitted the charges and settled his
accounts with the respondent management, after
submitting resignation and as such the false
contentions made against the respondent in respect
of the very same misconduct do not hold water and
the respondent denied all the allegations made by
the petitioner except the facts that are specifically
admitted in the counter and hence, they pray for
dismissal of the industrial dispute.
4. On the side of the petitioner, WW.1 was
examined and Ex.W1 to Ex.W19 were marked. On the
side of the respondent, no oral or documentary
evidence has been adduced.
5. The point for determination is:
Whether the industrial dispute can be allowed?
6. Heard. The contention of the petitioner is that
to direct the respondent management to withdraw the
Termination order passed by them and to reinstate him
with full back-wages, allowance, bonus and all other
benefits.
7. Per contra, the contention of the respondent is
that the claim of the petitioner is not maintainable in
law or on facts and hence prays for dismissal of the
petition.
8. In order to prove his case, the petitioner was
examined as WW.1 and through him, Ex.W1 to Ex.W19
were marked. On the side of the respondent, no oral
or documentary evidence has been adduced. While the
matter was posted for cross examination of WW.1, the
petitioner and the respondent-Company filed a Joint
Compromise Memo, wherein, it is stated that the
matter has been settled out of the Court of law and
they have sought this Tribunal to pass an Award on the
basis of Joint Compromise Memo and therefore, it is
just and necessary to record the joint compromise
memo and the industrial dispute raised by the
petitioner through reference is closed.
9. In the result, the joint compromise memo is
recorded and the industrial dispute raised by the
petitioner through reference is closed. No costs.
Dictated to the stenographer, transcribed by her,
corrected and pronounced by me in the Open Court on
this the 15th day of February, 2017.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal,
Puducherry.
————
List of witness examined for the petitioner:
WW.1— 15-2-2016 — Anbazhagan
List of exhibits marked for the petitioner:
Ex.W1— Call for explanation letter by the
respondent
management
to
the
petitioner, dated 18-2-2012.
Ex.W2— Copy of reply letter by the petitioner to
the respondent management, dated
8-3-2012.
Ex.W3— Letter regarding Departments enquiry
sent by the respondent management to
the petitioner, dated 12-4-2012.
Ex.W4— Suspension order with constitution of
enquiry sent by the respondent management
to the petitioner, dated 2-5-2012.
Ex.W5— Copy of letter sent by the petitioner
regarding violation of natural justice by
Enquiry Officer, dated 20-10-2012.
Ex.W6— Copy of letters alleging that Enquiry
Officer
moved
in
favour
of
the
respondent management, sent by the
petitioner to the Enquiry Officer, dated
17-11-2012 and 15-12-2012.
Ex.W7— Copy of final written report by the
petitioner to the Enquiry Officer, dated
28-1-2013.
Ex.W8— Copy of file relating Departmental
enquiry, dated 14-5-2012 to 26-12-2012.
Ex.W9— Copy of the report of the Enquiry
Officer, dated 12-6-2013.
Ex.W10—Copy of call for second explanation
letter by the Disciplinary Authority to
the petitioner, dated 23-8-2013.
Ex.W11—Copy of reply letter to the letter,
dated 23-8-2013 by the petitioner, dated
3-9-2013.
338
LA GAZETTE DE L’ETAT
[25 April 2017
Ex.W12—Copy of reply by the petitioner to the
proposed penalty letter of the Disciplinary
Authority, dated 18-11-2013.
Ex.W13—Copy of Termination letter by the
Disciplinary Authority to the petitioner,
dated 12-12-2013.
Ex.W14—Copy of requisition letter of the
petitioner to withdraw the termination
order by the respondent management,
dated 19-12-2013.
Ex.W15—Copy of letter to the Conciliation
Officer by the petitioner, dated 14-2-2014.
Ex.W16—Copy of letter to the
Conciliation
Officer by the respondent management,
dated 16-5-2014.
Ex.W17—Copy of conciliation failure report,
dated 8-12-2014.
Ex.W18—Copy of the petitioner process clearance
certificate, dated 8-2-2013.
Ex.W19—Copy of the Making report, dated
12-11-2014.
List of witnesses examined for the respondent: Nil
List of exhibits marked for the respondent: Nil
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal,
Puducherry.
————
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 48/Lab./AIL/T/2017,
Puducherry, dated 10th April 2017)
NOTIFICATION
Whereas, the Award in I.D. (T) No. 5/2011, dated
28-2-2017 of the Industrial Tribunal-cum-Labour Court,
Puducherry in respect of the industrial dispute between
the Managing Director, M/s. Tamil Nadu State Transport
Corporation Limited, Puducherry and Puduvai Pradesa
Pokkuvarathu Thozhilalar Sangam, Puducherry over
charter of demands such as fixing of working hours,
intervals, KMPL (Kilometre per litre) and shifts 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 the Secretary to Government
(Labour) that the said Award shall be published in the
Official Gazette, Puducherry.
(By order)
E. VALLAVAN,
Commissioner of Labour-cum-
Additional Secretary to Government (Labour).
————
BEFORE THE INDUSTRIAL TRIBUNAL-CUM-
LABOUR COURT AT PUDUCHERRY
Present : Thiru G. THANENDRAN, B.COM., M.L.,
Presiding Officer.
Tuesday, the 28th day of February 2017
I.D (T) No. 5/2011
Puduvai Pradesa Pokkuvarathu
Thozhilalar Sangam, Puducherry.
. . Petitioner
Vs.
The Managing Director,
M/s. Tamil Nadu State Transport
Corporation Limited, Puducherry.
. . Respondent
This industrial dispute coming on 3-1-2017 for final
hearing before me in the presence of Thiru Durai
Arumugam, Representative for the petitioner,
Tmt. J. Vanitha, 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
1. This industrial dispute has been referred as per
the G.O. Rt. No.114/AIL/Lab./J/2011, dated 1-6-2011
for adjudicating the following:
(i) Whether the dispute raised by Puduvai Pradesa
Pokkuvarathu Thozhilalar Sangam, Puducherry
against the Management of M/s. Tamil Nadu State
Transport Corporation Limited, Puducherry over
charter of demands such as fixing of working hours,
intervals, KMPL (Kilometre per litre) and shifts are
justified ? If so, to give appropriate directions?
(ii) Whether the dispute raised by Puduvai
Pradesa Pokkuvarathu Thozhilalar Sangam, against
the Management of M/s. Tamil Nadu State Transport
Corporation Limited, Puducherry over the following
other issues are justified ?
339
25 April 2017]
LA GAZETTE DE L’ETAT
• Illegal transfer of the petitioners viz.,
Thiruvalargal (1) V. Ramakrishnan, (2) R. Rajendiran
and P. Panchanadhan from Puducherry to
Tamil Nadu branches.
• I l l e g a l d e mo t i o n o f t h e p e t i t i o n e r
Thiru K. Muruganandham.
• Illegal reduction of wages to the petitioner
Thiru M. Segar.
(iii) If so, to give appropriate directions ?
2. The petitioner filed this petition against the
respondent for following reliefs:
1. To direct the respondent to implement the up
and down procedures to the Driver and Conductor.
2. To direct the respondent to stop bus for every
2 ½ hours interval(for natural calls).
3. To direct the respondent to take into
consideration of the bus, usage of engine, to
determine the usage of diesel and travelling hours
and road capacity.
4. And also to direct the respondent to
implement the work on shift based on seniority.
3. In the counter, the respondent has stated as
follows:
The respondent Transport Corporation is under
the control of Government of Tamil Nadu with its
branch office at Villupuram and respondent is the
branch office of respondent Corporation at Puducherry
and it is running under the control of Villupurum
Branch and it is contended that the petitioner union
has no power to raise any claim or dispute and the
petitioner union is not registered with the
respondent company and further stated that pays and
work allotments of workers working in the Tamil
Nadu Transport Corporation were determined by
negotiation with unions and settlement made on
behalf of it. The Hon’ble High Court has passed the
order in W.A. No. 1425/2006, M.P. No. 2/2010 in
W.A. No. 1425/2006, dated 21-9-2010 and 1-10-2010
stating that Thozhilar Munnetra Sanga Peravai was
elected and subsequently the order has been passed
in Government order No. 359, Transport (C1)
Department, dated 8-12-2010 stating that Thozhilar
Munnetra Sanga Peravai has all rights to participate
in negotiations regarding workers issues. Based on
that on 22-1-2011, a settlement was formed between
Tamil Nadu Government Transport Corporations and
Thozhilar Munnetra Sanga Peravai after negotiation.
Hence, the respondent prays this Court to dismiss
the claims made in the dispute. The respondent
further stated that based on the Government Order,
dated 8-12-2010, the Thozhilar Munnetra Sanga
Peravai has only having right to raise any claim or
dispute against the respondent corporation and
hence, the petitioner union has no right to raise any
claim or dispute and hence, prays for dismissal of
petition and further stated that the working hours of
Drivers and Conductors workings at Puducherry
branch were formulated and implemented based on
Motor Transport Employees Act and further stated
all buses which travels very far from Puducherry
stops at the intermission for food break and for
natural calls and subsequently, there was proper time
interval between reach in and reach out of the bus
at every bus station and further stated that the
respondent corporation has not determined equal
usage of diesel for all buses and has determined it
based on the condition of the bus, service of engine,
capacity of the road and the Drivers are advised to
drive the bus to achieve the KMPL target fixed by
the corporation and further stated that at present
shift basis work were allotted to the workers and
steps were taken to enhance it and further stated
that petition filed by the petitioner is not acceptable
and prays for dismissal.
4. On the side of petitioner, WW.1 was examined
and Ex.Wl to Ex.W3 were marked. On the side of the
respondent, RW.l was examined and Ex.Rl to Ex.R4
were marked.
5. The point for consideration is:
(i) Whether the dispute raised by the claimant
union against the management of the respondent
over charter of demands are justified or not ?
(ii) Whether the dispute raised by the claimant
union against the respondent management over the
transfer of V. Ramakrishnan, R. Rajendiran and
P. Panchanadhan from Puducherry to Tamil Nadu
branches is illegal or not?
(iii) Whether the demotion of the petitioner
K. Muruganandham is illegal or not ?
(iv) Whether the reduction of wages to the
petitioner M. Segar is illegal or not ?
6. On the points 1 to 4:
Both side arguments were heard. In order to prove
its case, the petitioner union has examined one
Panjanathan as WW.1 and WW.1 has stated in his
evidence that he is working at Puducherry Uppalam
Workshop and that they have raised industrial dispute
regarding Drivers and Conductors for fixation of
340
LA GAZETTE DE L’ETAT
[25 April 2017
working hours, intervals, kilometre per litre and shifts
of the Drivers. In support of its case, they have
exhibited copy of the demand made by the workmen
as Ex.Wl, Conciliation failure report is exhibited as
Ex.W2, settlement for pay revision is exhibited as
Ex.W3. The petitioner union has filed a claim statement
stating that up and down system to the Drivers and
Conductors of the respondent corporation is to be
implemented to avoid the accident since the Drivers are
driving the vehicle about 24 hours and also asked for
intervals to attend the natural calls for every 2 ½ hours
while they are driving the buses and also to modify the
kilometre per litre and to allot shift system to the
Drivers in the respondent corporation.
7. On the other hand, it is contended by the
respondent transport corporation that the petitioner
union is not recognized at the respondent corporation
and already the pay and the work allotment of the
workers working in the respondent corporation were
determined by negotiation with unions and settlement
was arrived and as per the direction of Hon’ble High
Court, Thozhilalar Munnetra Sanga Peravai was elected
and subsequently, as per the Government Order, dated
8-12-2010 Thozhilalar Munnetra Sanga Peravai has
only all rights to participate in the negotiation
regarding workers issues and based on that on
22-1-2011, a settlement was formed between Tamil
Nadu
Government
Transport
Corporation
and
Thozhilalar Munnetra Sanga Peravai, after negotiation
and therefore, as per the order of the Government,
dated 8-12-2010, Thozhilalar Munnetra Sanga Peravai
alone having the right to raise any claim or dispute
against the respondent corporation and that therefore,
the petitioner union has no any right to claim or
dispute and only under the Motor Transport
Employees Act the working hours of the Drivers and
Conductors of Puducherry Branch were formulated and
implemented and all the buses which travels very far
from Puducherry stops at intermission for food break
and for natural calls and that the corporation has not
determined equal usage of diesel for all buses and it
determined based on the condition of the bus, service
of engine, capacity of the road and the Drivers are
advised to drive the bus to achieve the target fixed by
the corporation and only shift basis works were
allotted to the workers.
8. In support of the counter, V. Baskaran, Assistant
Engineer, Puducherry Branch, Tamil Nadu Transport
Corporation was examined as RW.1 who has deposed
that petitioner union has no right to raise any dispute
against the respondent corporation and the resolution
passed by the petitioner union has been filed before
this Court to raise such dispute is not sustainable and
petitioner union is not a registered union, and also not
recognized by the respondent and that therefore, the
dispute raised by the petitioner union is not
sustainable and he has deposed all the averments in the
counter statement, particularly he has stated that as per
the order of the Hon’ble High Court in W.A. No. 1425/
2006, M.P. No. 2/2010 in W.A. No. 1425/2006, dated
21-9-2010 and 1-10-2010, the Thozhilalar Munnetra
Sanga Peravai has been elected by obtaining 57.31%
of votes in the election held between the Trade unions
and as per the Order of the Hon’ble High Court on
28-11-2010, the Thozhilalar Munnetra Sanga Peravai
was elected and as per the Government Order, passed
on 8-12-2010 negotiation was held between the
recognized trade union and the respondent and under
section 12(3) of the Industrial Disputes Act, a settlement
wa s ar riv ed o n 2 2 -1 -2 0 11 a nd whe rein , t he
recognized trade union have participated and signed
the settlement and that therefore, it is to be decided
whether the dispute raised by the petitioner union is
sustainable or not.
9. On this aspect, the records and evidence of the
petitioner were perused. WW.l has exhibited the copy
of the petition of the employees as Ex.Wl which
discloses that they have asked for implementation of
up and down system. Ex.W2 is the failure report of the
Conciliation Officer sent to the Government. Ex.W3
is the settlement arrived under section 12(3) of the
Industrial Disputes Act between the recognized trade
union and the respondent management on 6-2-2008.
It is learnt from the Ex.W2 that industrial dispute
raised by the petitioner union to revise the present
pattern and to bring the old pattern into existence as
regards the working hours of the workers and to
provide daily intervals for rest at 2 ½ hours between
the plying hours i.e., from starting place till the
destination place in order to sustain the good
reputation of the corporation and fixation of kilometre
per litre is to be done based on the condition of the
vehicle, its usage, time and distance and it varies
depending upon the vehicle and therefore, the kilometre
fixed by the corporation at 6 km per litre is not
justified by them and it is one of the dispute raised by
the petitioner union to provide shift method based on
the clause 32 of the 10th wage settlement entered on
1-9-2007. It is the main contention of the respondent
corporation that petitioner union is not a recognized
union of the management and the union was not elected
on secret pooling made by the management and the
union had not raised the issue of charter of demands
based on the minutes of the union by way of calling
341
25 April 2017]
LA GAZETTE DE L’ETAT
of electoral body or general body. In the light of the
above discussion, it is to be noted that the Hon'ble
Karnataka High Court in the President Labour
Organization of HAL Vs. the Management of Hindustan
Aeronautics Limited, reported in CDJ 2005 Kar H.C.
403 has held thus:
“ .... 15, In the instant case it is not in dispute that
in the industrial establishment, there is another
registered trade union which admittedly has
membership of more than 80% of the employees.
The management has recognized the said union. In
so far as the petitioner union is concerned till today
they are not able to give list of the members of the
union. They are unable to state how many members
are there in their union. Though, in the counter
statement it was specifically stated that the union
is not duly authorized to espouse the dispute and
they have no locus standi to represent the workers
of the establishment except producing the
certificate of registration, bye-laws and a copy of
the resolution passed by the Executive Committee
nothing is placed on record to show the
membership of the union and the number of persons
it represent. In fact, the respondents have filed along
with the statement of objections, an affidavit stating
that seven members who have subscribed to the
memorandum of association to the petitioner union
since have retired on reaching; the age of
superannuation and all of them earlier were
members of the recognized union and, therefore, it
is contended that this union is not a representative
union
of
the
employees
of
the
industrial
establishment and, therefore, they have no locus
standi to espouse the dispute. In an establishment
where there are more than 14,300 employees. 7 of
them can form a trade union, get it registered, have
their own bye-laws and negotiate with the
management and also espouse the cause of an
individual workman, assist a workman in a departmental
enquiry and give all assistance but, they cannot
represent the entire body of the workmen. The
dispute which is now raised is for payment of 20%
bonus to all the employees and appointment of
persons on compassionate grounds. This dispute
pertains to the entire labour force. The recognized
union has not raised the dispute. Under these
circumstances, as rightly held by the Industrial
Tribunal, the petitioner is not a representative union
of the entire employees of the establishment, they
have no locus standi to raise this industrial dispute
and the Government was in total error even in
making the reference to the Industrial Tribunal for
adjudication, though this objection was raised by the
management at the earliest point of time, at the
conciliation. I do not find any merit in this petition.
Accordingly, it is dismissed. No costs .... ” and
that the Patna High Court in M/s. Bharati Bhawan
(P&D), Patna Vs. The State of Bihar and Ors on 29
July, 2015-Civil Writ Jurisdiction Case No. 9645
of 2007 has held thus:
“....... It is well settled principle of law that an
unrecognized union cannot raise the demands of
general nature and at best, an unrecognized union can
only negotiate, discuss and raise the individual
problems of its members of individual nature .... ”
From the above citation, it is clear that it is well
settled principle of law that an unrecognized union
cannot raise the demands of general nature and an
unrecognized union can only negotiate, discuss and
raise the individual problems of its members of
individual nature and this objection is also been raised
by the management in the Conciliation proceedings
and therefore, the charter of demands claimed by the
petitioner union even without the resolution passed by
the union is not sustainable.
10. Furthermore, the evidence of RW.l would go to
show that already the settlement was arrived between
the union which was elected in the secret pool and a
settlement was arrived on 22-1-2011 wherein, the
representatives of the majority union which was
elected and was recognized have signed the settlement
agreeing the terms of settlement and through RWl,
Ex.R1 to Ex.R4 were marked. Ex.P4 is the application
submitted by the Tamil Nadu Government Transport
Corporation Thozhilalar Munnetra Sangam to the
Managing Director wherein, all the Drivers and
Conductors have signed agreeing to continue the
existing system for allotment of workers, fixing of
hours and shift basis wherein, 134 employees have
signed the application. From this document filed by the
respondent, it is clear that the majority union and the
respondent corporation have entered into the
settlement under Industrial Disputes Act and thereupon
all the settlement was being implemented by them.
Meanwhile, this application has been filed by the
petitioner union with the Conciliation Officer which
goes to show that when the settlement entered by the
majority union with the respondent corporation is in
force, this dispute has been raised by the petitioner
union with the respondent corporation. Ex.R4
discloses that all the members of the union of the
Drivers and Conductors have accepted the settlement
and implementation made by the respondent corporation
to continue the existing system for allotment of
workers, fixing of hours and shift basis and therefore,
this union has no right to raise the said dispute.
342
LA GAZETTE DE L’ETAT
[25 April 2017
11. In the result, the industrial dispute raised by the
petitioner union is not justified and furthermore, other
reliefs raised on this dispute is also failed and that
therefore, the petitioner union is not entitled for any
relief as prayed for and consequently, the industrial
dispute stands dismissed.
Dictated to the Stenographer, transcribed by her,
corrected and pronounced by me in the Open Court on
this the 28th day of February, 2017.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
————
List of petitioner’s witness:
WW.1— 10-12-2015—Panjanathan
List of petitioner’s exhibits :
Ex.Wl — Copy of the petition of the 105
employees.
Ex.W2— Copy
of
Report
on
failure
of
Conciliation, dated 12-1-2011.
Ex.W3— Copy of the settlement under section
12(3) of Industrial Disputes Act,1947,
dated 6-2-2008.
List of respondent’s witness :
RW.1 —15-2-2016 — V. Baskaran
List of respondent’s exhibits :
Ex.Rl — Copy of the settlement under section
12(3) of Industrial Disputes Act, 1947,
dated 6-2-2008.
Ex.R2 — Copy of letter sent by the General
Secretary, Puduvai Pradesa Pokkuvarathu
Thozhilar Sangam to Labour Officer
(Conciliation).
Ex.R3 — Copy of the settlement under section
12(3) of Industrial Disputes Act, 1947,
dated 22-1-2011.
Ex.R4 — Copy
of
letter sent
by
General
Secretary, Puduvai Pradesa Pokkuvarathu
Thozhilar Sangam to the Managing
Director, Tamil
Nadu Government
Transport Corporation Limited, Villupuram.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
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