La Gazette de L' État de Poudouchéry
The Gazette of Puducherry
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30 {
No.
22
Poudouchéry
Mardi
30
Mai
2017 (9 Jyaistha 1939)
No.
Puducherry
Tuesday
30th
May
2017
SOMMAIRES
CONTENTS
Page
Page
.. 512
Sentence arbitral du travail
.. 512
Award of the Labour Court .. 512
de tribunal.
.. 520
Notifications du Gouvernement
.. 520
Government Notifications .. 520
.. 533
Avis d’Adjudications
.. 533
Tender notices
.. 533
.. 536
Etablissements dangereux
.. 536
Dangerous Establishments
.. 536
.. 537
Annonces
.. 537
Announcements
.. 537
[ 511 ]
Registered with the Registrar
of Newspapers for India under
No. 10410
Registered No. SSP/PY/44/2015-17
WPP No. TN/PMG(CCR)/WPP-88/2015-17
Dated : 30-5-2017
Price : ` 22-00
512
LA GAZETTE DE L’ETAT
[30 May 2017
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G. O. Rt. No. 71/Lab./AIL/T/2017,
Puducherry, dated 2nd May 2017)
NOTIFICATION
Whereas, the Award in I.D. (L) No. 22/2012, dated
24-3-2017 of the Industrial Tribunal-cum-Labour
Court, Puducherry in respect of the Industrial Dispute
between the Management of Anglo French Textiles
(A Unit of Pondicherry Textile Corporation), Puducherry
and its workers Thiru P. Rangasamy and Thiru P. Zody
over regularization in the post of Security Supervisor
with remuneration has been received;
Now, therefore, in exercise of the powers conferred
by sub-section (1) of section 17 of the Industrial
Disputes Act, 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)
E. VALLAVAN,
Commissioner of Labour-cum-Additional
Secretary to Government (Labour).
————
BEFORE THE INDUSTRIAL TRIBUNAL-CUM-
LABOUR COURT AT PUDUCHERRY
Present : Thiru G. THANENDIRAN, B.COM.,M.L.,
Presiding Officer.
Friday, the 24th day of March 2017
I.D. (T) No. 22/2012
1. P. Rangasamy,
S/o. Perumal,
No. 110, Vinayagar Koil Street,
Sokkanathanpet, Pondicherry.
2. P. Zody,
S/o. Pandarinathan,
No. 19, First Cross,
Shri Sathiya Sai Nagar,
Reddiarpalayam, Puducherry
. . Petitioner
Versus
The Managing Director,
Anglo French Textiles,
(A Unit of Pondicherry
Textile Corporation),
Puducherry.
. . Respondent.
This industrial dispute coming up before me for
final
hearing
on
4-2-2017
in
the
presence
of
Thiru V.N.S. Srinivasan, Counsel for the petitioners
and Tvl. L. Sathish. T. Pravin, S. Velmurugan and
V. Veeraragavan, Counsels 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 by the
Government as per the G. O. Rt. No. 133/AIL/Lab./J/2012,
dated 23-8-2012 for adjudicating the following:
(a) Whether the dispute raised by Thiru P. Zody
and P. Rangasamy against the management of
M/s. Anglo French Textiles over regularization in the
post of Security Supervisor with remuneration is
justified?
(b) If justified, what relief the petitioners are
entitled to?
(c) To compute the relief if any, awarded in terms
of money if, it can be so computed?
2. The brief averments of the claim statement filed
by the petitioners are as follows :
(i) The first petitioner P. Rangasamy, Code No. 10447,
has joined duty as a Security Guard on 1-11-1981 and
the second petitioner P. Zody, Code No. 10448, has
joined duty as a Security Guard on 1-4-1981, in
M/s. Anglo
French
Textiles,
Cuddalore
Road,
Puducherry through the Office Order No. PTC/AO/19?
Security Dept./38 dated 10-1-2008 and 10-3-2008 and
in view of the acute shortage of the shift in-charge,
and the security department in-charge, is directed to
utilize the services of the petitioners to look after the
duties of shift in-charge of the security department in
the same capacity. The duties and responsibilities of
the Security Supervisor are careful vigil supervision
along with guards during in and out of the employees,
Roll call to company guards and Texco guards and duty
allocation reports of Security Supervisor in-charge,
clerk, attender, fire attendant and weigh bridge helper,
etc.,
513
30 May 2017]
LA GAZETTE DE L’ETAT
(ii) It is further stated that the duty hours of the
Security Guards, Shift Supervisors and Office in-charge
are as follows :
For Security Guard
:
I-Shift 08.00 to 16.00
Roll Call-07.50 Hours.
II-Shift 16.00 to 23.59
Roll Call-15.50 Hours.
III-Shift 23.59 to 08.00
Roll Call - 23.50 Hours.
For Shift Supervisor :
I-Shift 06.30 to 14.30 Hours
II-Shift 14.30 to 22.30 Hours
III-Shift 22.30 to 06.30 Hours
(iii) As per order, dated 10-1-2008, the petitioner
P. Rangasamy had been assigned to ‘C’ shift, and as per
order, dated 10-3-2008, the petitioner P. Zody had
been assigned to ‘B’ shift to look after the duties of
shift in-charge, solely, and they have continued the
duties and responsibilities of retired Security
Supervisor and also followed the Supervisor timings
and after completion of 240 days, they had approached
the management in person for the regularization along
with remuneration. Due to non favourable consideration,
they have given representation for the regulaiization along
with remuneration, but it had not been honored by the
management and hence they have filed a writ petition
in W.P. No. 2967 and W.P. No. 2968 of 2011
respectively in the Hon'ble High Court, Chennai, for
issuance of a writ of mandamus directing the management
of Anglo French Textiles to consider the petitioner's
representation dated 4-9-2010 and 26-10-2009 given
to the third respondent claiming promotion for the
post of Security Supervisor which is vacant in Anglo
French Textiles in which, the Hon'ble High Court,
Chennai passed an order dated 9-2-2011 directed the
respondent to dispose of the representations, dated
4-9-2010 and 26-10-2009, if, it had not been disposed
of till date on merits in accordance with law within
period of twelve weeks from the date of receipt of the
copy of the order and in this regard, the Office
Manager called them and verbally promised for the
action will be taken for all the benefits, instead of
favourable consideration, the General Manager of
Anglo French Textiles issued Memorandum No. PTC/
AO/19/Sec./(Rep.)59/2010/134, dated 25-4-2011 and the
Memorandum No. PTC/AO/19/Sec./(Rep.)59/2010/135,
dated 25-4-2011 separately to the petitioner stating
that the Post of Security Guard is coming under worker
category and whereas the post of Security Supervisor
is coming under staff category and the post of Security
Supervisor is not at all in line of promotion for the
Security Guard/Head Security, since the two posts are
under worker category, and they have been elevated to
the grade of Head Security from the Security Guard
with the enhanced pay scale, (i.e.) it may also be noted
that being the Head Security the petitioners are
performing the duties of shift in-charge and not acting
as Security Supervisor as stated in the letter, dated
4-9-2010 and 26-10-2009 and then they had given
counter separately to that Memorandum on date of
29-4-2011, with an evidence proof, that the worker
became Staff, Supervisor, Assistant Manager, and also
in the Security Department equal to the rank of Head
Guard became Security Supervisor.
(iv) It is further stated that even after this, they have
continued as shift in-charge and looked after duties
and responsibilities of retired Security Supervisor and
simultaneously the representation had been given in
various date to the management and requested in that
for the disposal of Hon'ble High Court Order, Chennai
and due to non favourable consideration, they have
filed petition at the Labour Officer (Conciliation)
on 20-10-2011 and after came to know this fact
through the concerned Department, the Joint Managing
Director of Anglo French Textiles had issued an
Order PTC/AO/19/Security Dept./Duty/38, dated
22-10-2011 stating that in Para. No, 2: The 8 guard
may be engaged as Head Guard (acting) along with three
existing Head Guards.
Para. No. 8 : the Security Supervisor will be over
all in-charge in allocating day to day post for Head
Guard, A.F.T. Security Guard, Texco Guard, for all
units.
(v) It is further stated that the instruction given in
the Para. No. 8, is one of the portfolio of the duties
and responsibilities of retired Security Supervisor, and
it had been looked after, by the petitioner of
P. Rangasamy from the period 10-1-2008 to 22-10-2010
and the petitioner P. Zody from the period 10-3-2008 to
22-10-2010 and the management made sudden changes
in the work nature willfully without prior intimation, in
the motivation to suppress the claims of the petitioners
due to the reason of filed petition at the Labour Officer
(Conciliation) for the preservation of service condition
and the nature of work, filed Civil Suit before the
III Additional District Munsif Court, Puducherry,
LA. No. 2898/2011 in O.S.No.1565/2011 and I.A.
No. 2899/2011 in O.S. No. 1566/2011, for mandatory
injection by directing the 3rd defendant therein to
operate the order dated 10-1-2008 and 10-3-2008 with
reference No. PTC/AO/19/Security/Dept./38, in favour
of the petitioners until regularize them as Security
514
LA GAZETTE DE L’ETAT
[30 May 2017
Supervisor, and for the declaration that the appointment
Order in PTC/AO/19/Security Department/Duty/38
dated as against the plaintiff therein is null and void
ab-initio. The petition filed by the 2nd and 3rd
defendant therein under order VII Rule 11(d) of CPC
to reject the suit as barred by express provisions of
Industrial Dispute Act. The Hon'ble III Additional
District Munsif Court, Puducherry passed an order on
13-12-2011, stating that the case as set up in the plaint
by the plaintiff therein has to be adjudicated in the
forum created under the Act. In the said case, the
plaintiff therein has sought for promotion as per the
standing order and remedy lies only in the Forum
created by the Industrial Dispute Act and the civil suit
is not maintainable and hence, the court has rejected
the said on the ground that it has no jurisdiction to
entertain and try the case. For the preservation of the
service condition and nature of the work the
petitioners again filed in the Hon'ble High Court,
Chennai, W.P. No. 29917 of 2011 & M.P. Nos. 1 & 2
of 2011 seeking a writ of certiorari calling for the
records on the file first respondent relating to the
impugned order, dated 22-10-2011, bearing Ref.PTC/
AO/19/Security/Dept./38 and quash the same in as
much as it relates to the petitioners and their working
as Security Supervisors in which the Hon'ble High
Court, Chennai passed an order on 23-12-2011
dismissing the unit. However, if order of demotion is
given to the petitioners they are at liberty to approach
the appropriate forum in that regard.
(vi) It is further stated that along with above order,
with a representation, dated 14-1-2011 to the joint
Managing Director, for the grant of permission to
continue to work of shift in-charge as done before and
they eagerly waited for an order to continue to work,
and instead of that the Personnel Department issued
charge sheet No. l and Charge Sheet No. 2 to both of
the petitioners on 23-1-2012 stating without prior intimation,
P. Zody, Code No. 10448, from the date 31-12-2011
and P. Rangasamy, Code No. 10447 from the date
30-12-2011 were in continuous absent more than
8 days without turned to duty and it is misbehaviour to
the institution under section 25 (f) & (L) and asked
them to give explanation and for that the petitioners
had given reply on 30-1-2012 that they were not in
absenteeism and explained about the leave letters had
been submitted in time. Further the Mill had declared
with paid holiday due to natural calamities of "Thane
Cyclone" with effect from 30-12-2011 to sine die.
Some of the employees of Raaga Show room had not
attended for duties from the dated 9-1-2012 and after
obtaining apology letter, they have been excuseed. When
it is a fact, again, another caution notice No.I for the
petitioner P. Zody and the caution notice No.2 for the
petitioner P. Rangasamy, dated 14-2-2012 had been
issued to the petitioner and for this they had given
reply on 27-2-2012 to the Personnel Department.
Thereafter, they have jointly sent a grievances letter,
dated 22-3-2012 to grant permission to continue the
work, but it had not been honoured. Due to the reason
of the socken remedies through legal, the management
had not considered the petitioners several representations
and also not allowed to continue the work. On the
intervention of the Law Secretary, Government of
Puducherry they have joined duty immediately and then
an order, dated 28-3-2012 was issued to them. The
duties and responsibilities services had been extracted
from the petitioner P. Zody and P. Rangasamy more
than
three
years
without
regularization
and
remuneration for that grade and even after arrival of
the new Security Supervisor they have continued the
work as usual since| they approached the Hon'ble High
Court.
(vii) The Promotion Policy of
Anglo French
Textiles reads as follows :
(a) Whenever an employee is allocated to work
in a higher category of leave vacancy, he is paid the
category wages in which he has worked.
(b) Whenever there is permanent vacancy it I filled
on the basis of Security-cum-Merit as per the
standing orders. When it is a clear optical whitening
evidence are in existence about the utilization of the
petitioner P. Rangasamy for the period from 10-1-2008
to 22-10-2011 and the petitioner P. Zody 10-3-2008
to 22-10-2011 more than 1100 days as Shift in-charge
obviously exceeding the limitation of 240 days, and
after that the willful demotional activities of the
management in their duties and respondent for
spoiling the claim, due to the reason of filed
petition at Labour Officer (Conciliation) and it is for
justification that the petitioner P. Rangasamy is
entitled for regularization of services in the post of
Security Supervisor from the year 10-1-2008
onwards and P. Zody is entitled for regularization
of services in the post of Security Supervisor for the
year 10-3-2008 and to be given the due pay and
allowances attached to the post with all attendant
benefits.
(viii) After protracting the attempt of the conciliation,
the management is not willing for an amicable
settlement of the dispute and so the Labour Officer
(Conciliation) had submitted failure report to the
515
30 May 2017]
LA GAZETTE DE L’ETAT
authorities on 7-6-2012. Hence, they are filed this
ID(T) No. 22 for the regularization/promotion to the
post of Security Supervisor with retrospective effect
from the year 10-1-2008 to the petitioner P. Rangasamy
and to the petitioner P. Zody with retrospective effect
from 10-1-2008 with monitory benefits according to
the scale of pay prevailing in the respondent management
of the relevant categories.
3. The brief averments of the counter filed by the
respondent are as follows :
(i) The claim of the petitioners that a blanket
direction for promotion/regularization is not a matter
of right but it is a matter of policy of every
establishment and promotion to a particular post will
depend
upon
various
criteria's
set
forth
by
establishment and Law recognizes right of a worker to
be ‘considered for a promotion' and not a ‘right to
promotion’ and hence the petitioners can only seek a
direction to be considered for promotion/regularization
to post of Security Supervisor as and when Departmental
Promotion Committee is convened to fill up vacancies
in said post and cannot ask for a relief of direct
promotion to the said post and that too with
retrospective effect and hence the claim of petitioners
for promotion with retrospective effect cannot even be
entertained by this court and that petitioners do not
have any case, much less justifiable case to seek the
reliefs and hence reference will necessarily have to be
answered in the negative. The petitioners have been
directed to look after duties of shift in charge from
10-1-2008 and 10-3-2008 respectively and they are
are discharging the duties of Security Supervisor from
10-1-2008 and 10-3-2008 respectively and they
have filed various cases in W.P. No. 2967/11,
W.P. No. 2968/11, OS No.1565/11 and 1566/2011 and
W.P. No. 29917/11 for enforcing their right of
promotion/confirmation to the post of Security Supervisor
and the respondent has declined to consider petitioners'
request for promotion/regularization on the ground
that petitioners were engaged as security supervisors,
they were only engaged as Security in-charge and the
post Security Supervisor is not in line of promotion
for Security Guard and Security Head and the
petitioners are being demoted by respondent by their
notification, dated 22-11-2011. After failing in so
many efforts before Hon'ble High Court as well as in
Civil Court, petitioners have now knocked the doors
of this court for similar remedies and the entire claim
of petitioners is totally misconceived and against the
basic tenets of service jurisprudence.
(ii) It is further stated that it is not true to claim
that petitioners were posted anytime as Security
Supervisor, much less on 10-1-2008 and 10-3-2008
and the orders issued by respondent on the
aforementioned dates would make it absolutely clear
that they were asked only to look after duties of shift
in-charge in the same capacity as Security Guard and
that additional responsibilities of shift in-charge were
given to petitioners due to acute shortage of man power
and therefore, respondent never promoted petitioners
to the post of Security Supervisor on any date as is
claimed by petitioner and hence the claim of
petitioners that they have worked as Security
Supervisors is absolutely false and baseless.
(iii) It is further stated that petitioners, who were
working as Security Guard were promoted as Head
Security vide respondent's notification G. O. Ms.
No. G/2009-Ind.B, dated 23-9-2009 and Security
Guard is in un-skilled 1' category but the Security Head is in
un-skilled 1' category and their Pay Scale were
elevated from ` 3,150-50-5,150 to the Scale Pay of
` 3,590-60-59,920 and thus they were given a basic
Pay of ` 5,565. Had
the petitioner been discharging
their duties as Security Supervisors since 10-1-2008
and 10-3-2008, they would not have accepted the
promotion of Security Head with revised Pay Scale
on 23-9-2009.
(iv) It is further stated that as per its Certified
Standing Orders, Security Guard is under worker
category. The provisions of its Certified Standing
Orders relating to promotion to worker category is as
follows:
"13-promotion: All promotions shall be entirely
at the discretion of the company whose decision
shall be final. Promotion to a higher grade or post
shall be on the basis of seniority-cum-merit and
subject to a probationary period which may
extend upto a period of 12 months in that grade or
post before confirmation in the position and in the
corresponding Grade and Scale of Pay".
Accordingly, by taking into consideration their
seniority and merits, petitioners were elevated to the
category of Head Security in Security Department with
enhanced Pay Scales with effect from 1-7-2009 and in
accordance with the said G. O. Ms. No. 6/2009-Ind.B.
dated 23-9-2009 and as per directions of Hon'ble High
Court, Madras in W.P. No. 2968 & 2967 of 2011 and
respondent had issued suitable replies to petitioners
on 25-4-2011 rejecting their request for promotion to
the post of Security Supervisor as they were in workers
category and already they were elevated to the post of
516
LA GAZETTE DE L’ETAT
[30 May 2017
Head Guard and it was also clarified that Head Guard
is not the feeder post for the post of Security Supervisor.
However, petitioners were also informed that they can
compare with the others during selection of Security
Supervisor if they fulfill the qualification prescribed
for that post.
(v) It is further stated that not satisfied with reply
of respondent. Petitioner once again approached High
Court, Madras in W.P. No. 29917/2011 to quash the
order of this respondent, dated 22-10-2011 bearing
ref.PTC/AO/19/Security/Department/duty/38 wherein
the respondent had promoted 8 Security Guards as
Head Guard (Acting) and after considering the
arguments on merits, the Hon'ble High Court dismissed
the said writ petition and directed the respondent to
approach the appropriate forum if at all they have any
claims. Petitioners have also filed civil suit before
Hon'ble III-ADM at Puducherry in O.S. No. 1565/2011
and O.S. No. 1566/2011 respectively seeking substantially
similar reliefs as is sought for in the present industrial
disputes. The Hon'ble III-ADM, Puducherry has rejected
the plaint vide order, dated 13-12-2011. Assuming
without admitting that petitioners did discharge the
functions of Security Supervisor in the course of
employment as shift in-charge that by itself does not
confer any right on petitioners to seek regularization
or promotion to the post of Security Supervisor. The
petitioners were given additional responsibilities of
shift in-charge only as a stop gap arrangement and in
the same capacity as Security Guard and later as
Security Head to meet emergency situation created due
to shortage of man power. It was not a promotion to
the post of shift in-charge by following due process
of service rules. It is trite that any stop gap
arrangement by virtue of which an employee is
required to discharge a particular function cannot give
right to seek regularization or promotion to the said
post irrespective of the length of service he had given
in the said post on ad-hoc basis. Hence, the petitioners
do not have any legal mandate to claim any reliefs
from this Court for regularization or promotion to the
post of Security Supervisor. Moreover the petitioners
were promoted as "Head Security" from the posts of
"Security Guard" with revised pay scale of 23-9-2009
and prayed for dismissal of claim petition.
4. In the course of enquiry on the side, of the
petitioner PW.1 and PW.2 were examined. Ex.P1 to
Ex.P30 were marked and on the side of the respondent
Rl has examined and Ex.R1 and R2 were marked.
5. The point for consideration is:
Whether the petitioners are entitled for regularization
in the post of Security Supervisor with remuneration
or not?
6. Both side arguments were heard. On the side of
both sides, written arguments were filed and the same
is carefully considered. In support of his case, the
petitioners in their claim statement relied upon the
following decisions in:-
1989L.A.B.I.C 2010
Council of scientific and industrial research
and another Vs. K.G.B. Batt and others.
'Administrative
Tribunal Act
1985
S.10
-
Promotion-
Public
or
Private
Organizations-
opportunity of advancement has to be given - person
is appointed not just for JOB but whole carrier'.
1997 LAB.I.C 1807:
Nazrul hassan Siddiqui Vs. Presiding Officer,
Central Government Industrial cum Labour Court
No. 2, Bombay and others.
"Employee working in a higher post - Sch.2 Item
6-Claiming Classification of higher post and
payment of salary of that post-Individual dispute
raised not substantial number of workmen in
Industry - he would be entitled to payment of higher
salary for work discharged on that post".
7.
On the Point:
This reference has been made by the Government to
adjudicate the dispute raised by these two petitioners
against the management of Anglo French Textiles over
regularization in the post of Security Supervisor with
remuneration. In order to prove the case PW.1 and
PW.2 were examined and Ex.P1 to Ex.P30 were
marked. It is the evidence of the PW.1 that petitioners
are working as Security Guard from the year 1981 in
the respondent management Textile Mills and due to
the shortage of Security Supervisors, these petitioners
have been utilized by the Security Department to look
after the duties of shift in-charge in the same capacity
from 2008 the petitioners had been in the shift to look
after the duties of shift incharge and after completion
of 240 days in the place of retired shift Supervisors.
These petitioners have approached the management- in
person for regularization along with remuneration and
continued the work as Security Supervisor which was
not honored by the management and therefore these
petitioners have filed a writ petition in W.P. No. 2967
and 2968 of 2011 and the Hon'ble High Court also
pleased to pass an order against the respondent directing
517
30 May 2017]
LA GAZETTE DE L’ETAT
them to dispose the representation of the petitioners,
dated 4-9-2010 and 26-10-2009 within 12 weeks from
the date of receipt of the order but the respondent
management has issued a memorandum to the petitioners
on 25-4-2011 stating that post of Security Guard is
coming, under worker category and the post of
Security Supervisor is coming under staff category and
the post of Security Supervisor is not at all in line of
promotion for the Security Guard and hence the
petitioners have been elevated to the grade of Head
Security from the Security Guard with enhanced pay
scale and that they have been informed that they have
worked as only the duties of shift in-charge and not
acting as Security Supervisor as stated in the
representation for which petitioners have filed a separate
memorandum, dated 29-4-2011 with an evidence proof
that the workers became staff, supervisor, Assistant
Manager and also in the Security Department equal to
the rank of Head Guard became Security Supervisor
and that therefore they have raised a dispute before the
Conciliation officer on 20-10-2011.
8. It is the further evidence of the PW.1 that they
have filed a suit before the III Additional District
Munsif Court, Puducherry for manadatory injection by
directing the management to regularize them as
Security Supervisor and for the declaration that the
appointment order as null and void which was disposed
of by the III Additional District Munsif Court that they
have no jurisdiction to entertain and try the suit and it
raise in the Forum created by the Industrial Dispute
Act and they subsequently moved the Hon'ble High
Court in W.P. No. 29917 of 2011 to quash the order
passed by the respondent management and the Hon'ble
High Court was also pleased to dismiss the writ
petition and the petitioner, however, if there is any
order of demotion is given to the petitioners they are
at liberty to approach the appropriate forum in that
regard and thereafter the respondent management has
issued a charge against these petitioners stating that
the petitioners are in continuous absent for more than
8 days without turned up to duty and it is misbehaviour
to the institution under section 25(f) & (L) calling
them to give explanation for which the petitioners gave
their reply that they were not in absenteeism and
explained that the leave letters have been submitted in
time but it was not accepted by the management and
enquiry was conducted on 6-2-2012 without giving
prior notice and as per the direction of the Enquiry
Officer they submitted a apology letter and again both
the petitioners submitted a grievances letter, dated
26-3-2012 to the Law Secretary, Government of
Puducherry and when the petitioners submitted about
the unfair law practice, the respondent had given reply
for the Right of Information that in view of the huge
laws the management imposed a total ban on all
requirement of personnel and also reduced production
activity in the units by sending the employees on VRS
and filling up vacancies not required and when the
employees left on superannuation, resignation, death
etc., to cut costs, the management has engaged the
Security on contract basis, from Security agencies
whenever required and that they came to know that one
Paramasivam was given special consideration for the
extension period of service continuously without
considering the genuine claim of the petitioners and
he has been appointed on contract basis as Security
Supervisor in the respondent management for the
period of one year and that therefore when the
management has not allowed to do continuously and
the duties and responsibilities of the shift in-charge
as done before and even after extracting the duties and
responsibilities of the retired Security Supervisor for
more than 11.00 days instead of regularization and
remuneration the management had wilfully decided and
fixed the limitation and wantonly planned for the
domination of the petitioners which is called in other
words, as it is for the demotional and that therefore
these petitioners prayed for the regularization/
premotion to the post of Security Supervisor with
retrospective effect from the year 2008 with monetory
benefits according to the Scale of Pay prevailing in the
respondent management. In order to prove the
contention, the petitioners have exhibited Ex.P1 to
Ex.P30.
9. From the evidence of petitioners PW.1 and PW.2
and exhibits marked through them, it is clear that it is
the grievances that they have been asked to holding and
discharging the duties of the Security Supervisor for
more than 11.00 days i.e., even that they have been
completed the 240 days in continuous but they have
not been promoted or regularized in the post of
Security Supervisor. On the other hand, the respondent
management has let the evidence through RW1, Deputy
Manager of the respondent establishment who is stated
in his evidence that the promotion/regularization is
not a matter of right and it is a matter of policy of
every establishment and promotion to a particular post
will depend upon various criteria's set forth by the
establishment and Law recognizes in the right of a worker
considered for promotion and not a right to promotion
and hence the petitioners can only seek a direction to
be considered for promotion/ regularization to post of
Security Supervisor as
and when Departmental
Promotion Committee is convened to fill up vacancies
and cannot asked for relief of direct promotion to the
said post and that too with retrospective effect and that
518
LA GAZETTE DE L’ETAT
[30 May 2017
claim of the petitioners with retrospective effect
cannot even be entertained by this court and that the
entire claim of the petitioners is totally misconceived
and the petitioners have posted Security Supervisor at
any time and the order passed on 10-1-2008 and 10-3-2008
in regard to the petitioners is very clear that they have
been asked to look after the decision of the shift in-
charge in the same capacity as Security Guard and that
it was made clear that the additional responsibility of
shift in-charge was given to them due to acute shortage
of man power and with the petitioners have been
discharging their duties as Security Supervisors since
from 2008 they would not have accepted the
promotion of Security Head with revised pay scale on
23-9-2009 while they have permitted and that the
certified standing orders, Security Guard is under
worker category and the standing orders relating to
promotion to worker category and as writ application
filed by the petitioner to quash the order of the
respondent, dated 22-10-2011 in W.P. No. 29917/2011
while the respondent promoted 8 Security Guards as
Head Guard, the Hon'ble High Court was pleased to
dismiss the writ petitioner and directed the respondent
to approach the appropriate forum if at all they have
any claims and that therefore the claim of petitioners
is devoid of merits and in support of its case, the
respondent management has exhibited
the copy of
authorization letter to Mr. Praghatheeswaran as Ex.Rl
and the copy of the certified standing orders of AFT
mills, Puducherry as Ex.R2.
10. From the evidence of both the parties, it
is clear that the respondent has contended that as per
the standing order all the promotions shall be entirely
at the discretion of the company whose decision shall
be final. The standing order of the respondent mill is
exhibited as R2 and clause (13) of the standing order
runs as follows:
Promotion : All employees shall be entirely at
the discretion of the company whose decision shall
be final. Promotion to a higher grade or post shall
be on the basis of seniority cum merit and subject to
a probationary period which may extend up to a
period of twelve months in that grade or post before
confirmation
in
that
position
and
in
the
corresponding Grade and Scale of Pay".
From the above, it is clear that the promotion is the
discretion of the company whose decision shall be
final. Promotion to a higher grade or post shall be on
the basis of seniority cum merit and subject to a
probationary period which may extend up to a period
of one year.
11. It is the further case of the respondent that the
Security Guard and Head Guard are the category of the
workmen, the Security Supervisor is the cadre of staff.
On this aspect, the learned counsel for the respondent
relied upon the following decision in
The Supreme Court, in Syed Khalid Rizvi and
others etc., and Union of India and other, etc,
reported in 1993 I LLJ 887, wherein, it has been
observed that-
''Service Law - Promotion - Chances of
promotion not condition of service - No employee
has right to promotion, but only right to be
considered for promotion as per rules - Chances of
promotion are not conditions of service."
The learned counsel for the respondent also relied
upon the following decision in State Bank of India and
others and Mohd. Mynuddin, reported in 1988 I LLJ
142, wherein the Apex Court observed that -
"court is not competent to decide merit, ability
and competence for promotion - only in cases where
bias or malafides are proved court can direct
the management to reconsider the case for promotion
and cannot straightaway direct promotion".
The learned counsel for the respondent also relied
upon the following decision in management of Bihar
State Super Phosphate Factory, Sindri Vs. The
Presiding Officer, Labour Court and others, reported
in 1996 I LLJ 931, wherein Patna High Court has held
that-
"Promotion is the matter for management Court
can
interfere
only
in
case
of
malicious
consideration and unfair labour practice. In the
absence of malafidesf it is for the management to
decide. Labour Court cannot order promotion."
The learned counsel for the respondent also relied
upon the following decision in In U.P. State Cement
Corporation Ltd., Vs. Industrial Tribunal I U.P.
Allahabad and another, reported in 1996 II LLJ 953.
wherein the Allahabad High Court has observed that -
"A promotion cannot be claimed as of right and
person claiming promotion to the higher post must
hold necessary qualification and eligibility for
promotion."
12. In the light of the above citations referred by
the respondent counsel, it is clear that this court is not
competent to decide the case for promotion and no
employee has right to promotion but only right to be
considered for promotion. As per rules, chances of
promotion are not conditions of services and the
promotion is the matter for management and in the
519
30 May 2017]
LA GAZETTE DE L’ETAT
absence of malafides, it is for the management to
decide the promotion particularly the Labour court
cannot order for promotion and that therefore, these
petitioners employees could not claim the promotion
as a matter of right, however they have promoted as
Head Guard by the management.
13. As per the standing order of the respondent
company which is exhibited as Ex.R2, it is clear that
the management having discretion for promoting their
employees and merely an employee holding and
discharging the duties of the Security Supervisor, it
cannot be presumed to be suitable for onward
promotion to the post of Security Supervisor and all
those posts can be determined by the management and
the management can promote the person who fulfilled
the conditions of eligibility for Security Supervisor
and that therefore the dispute in respect of
regularization is not justified and hence the petitioners
are not entitled for any relief of regularization/
promotion as claimed by them.
14. However, these petitioners have been asked to
do the shift in-charge work and they have been in
service for about 1100 days as directed by the
respondent. The citation referred by them in 1997
LAB.I.C 1807 in Nazrul hassan Siddiqui Vs. Presiding
Officer, Central Govt. Industrial cum Labour Court
No.2, Bombay and others, in which the Hon'ble, High
Court observed that when an employee has been asked
to do the work of the higher post, he would be entitled
for the payment that the higher salary of that post and
therefore these petitioners are entitled for the salary
for a period for which the respondent company has
asked them to discharge the duties of the shift in-
charge and hence in respect of the salary benefits, the
petitioners are entitled for the higher salary to the
post of shift in-charge for a period for which the
respondent company has asked them to discharge the
duties of the shift in-charge.
15. In the result, the petition is partly allowed in
respect of remuneration and the petitioners are
entitled for the higher pay for the period which the
respondent company has asked these petitioners to
discharge the duties of the shift in-charge and the
petition is partly dismissed in respect of regularization
and promotion of the petitioners. No cost.
Dictated to the stenographer, transcribed by her,
corrected and pronounced by me in the open court on
this the 24th day of March, 2017.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
List of petitioner witness:
P.W. 1— 27-08-2013 – P. Zody
P.W. 1— 14-03-2014 – L. Sundararajan Rajan
List of petitioner exhibits:
Ex.P1
— 10-01-2008
Copy of the PTC AO/19/
S e c u r i t y / D e p t ./ 3 8 ,
dated 10-1-2008.
Ex.P2
— 10-03-2008
Copy of the PTC/AO/
19/Security/Dept./38,
dated 10-3-2008.
Ex.P3
— 09-02-2011
Judgment Copy of the
Hon'ble High Court,
Chennai.
Ex.P4
— 13-12-2011
Judgment Copy of the III
Additional District Munsif,
Pondicherry.
Ex.P5
— 23-12-2011
Judgment Copy of the
Ho n'ble High Court,
Chennai.
Ex.P6
— 25-04-2011
Copy of the Memorandum-
PTC/AO/19/Sec./Rep./
59/ 2010-134 &135.
Ex.P7
— 03-04-2012
Copy of the Memorandum-
PTC/AO/19/Sec./Rep./
59/2010-563 &564.
Ex.P8
— 13-04-2012
Copy of the Memorandum-
PTC/AO/19/Sec./Rep./
59/2010-574 &575.
Ex.P9
— 18-10-2008
Copy
of
the
RTI
Ref.:TC/RTI/01/INFO/
63/134/2008/726/18-2008.
Ex.P10 — 19-05-2007
Copy of the RTI Ref:
PTC/2007/161.
Ex.P11 — 27-05-2010
Copy
of
the
RTI
Ref:PTC/RTI/01/INFO/
63/189/2010/216.
Ex.P12 — 27-07-2011
Copy of the Standing
order on No. 13 regarding
promotion.
Ex.P13 — 13-06-2011
Copy
of
the
RTI
Ref:PTC/RTI/01/INFO/
63/264/2011/185.
Ex.P14 — 22-10-2011
Copy of the PTC/AC/19/
Security Department/
Duty/38.
Ex.P15 — 08-01-2011
Copy of the letter to
Managing Director.
Ex.P16 — 14-07-2011
Copy of the letter to
Managing Director.
520
LA GAZETTE DE L’ETAT
[30 May 2017
Ex.Pl7 — 27-09-2011
Copy of the letter to
Chief Secretary.
Ex.P18 — 20-10-2011
Copy of the petition
filed at Labour Officer
(Conciliation).
Ex.P19 — 01-11-2011
Copy of the letter
to
Labour
Officer
(Conciliation).
Ex.P20 — 14-01-2012
Copy of the letter to
Joint Managing Director.
Ex.P21 — 20-01-2012
Copy of the letter to
Managing Director.
Ex.P22 — 22-03-2012
Copy of the letter to
Managing Director.
Ex.P23 — 26-03-2012
Copy of the letter to
Law Secretary.
Ex.P24 — 27-02-2012
Copy of the letter to
Office Manager.
Ex.P25 — 27-02-2012
Copy of the letter to
Manager IR/I/C.
Ex.P26 — 30-01-2012
Copy of the letter to
Manager IR/I/C.
Ex.P27 — 15-03-2012
Copy of the letter to
Office Manager.
Ex.P28 — 23-03-2012
Copy of the letter to
Assist. Labour Officer i/c.
Ex.P29 — 31-03-2012
Copy of the letter to
General Manager.
Ex.P30 — 28-03-2012
Copy of the Office
Order to P. Zody and
P. Rangasamy.
List of respondent’s witness:
RW.1
— 18-7-2014 Pragatheeswaran
List of respondent’s exhibits:
Ex.Rl
— 9-7-2014 Letter to authorization to
Mr.Pragatheeswaran.
Ex.R2 —
–
Certified standing orders
of AFT Mills, Puducherry.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
[(iii)-]
H.
A.
Ca.
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