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Sentence arbitral du travail
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Award of the Labour Court
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Notifications du Gouvernement .. 323
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Avis d’Adjudications
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Tender notices
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Annonces
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6 {
No.
10
Poudouchéry
Mardi
6
Mars
2018 (15 Phalguna 1939)
No.
Puducherry
Tuesday
6th
March
2018
314
LA GAZETTE DE L’ETAT
[6 March 2018
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G. O. Rt. No. 200/Lab./AIL/T/2017,
Puducherry, dated 29th December 2017)
NOTIFICATION
Whereas, an Award in I.D (T) No. 10/2014, dated
29-11-2017 of the Industrial Tribunal, Puducherry in
respect of the Industrial Dispute between the
management of M/s. The Puducherry State Weavers
Co-operative Society Limited, No. P. 57, Industrial
Estate, Thattanchavady, Puducherry-605 009 and
President/Secretary, Socialist Workers Union, No. 161,
Thambu Chetty Street, II Floor, Chennai, regarding the
continuity of service, seniority, promotion, revision
of wages, etc., 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 29th day of November, 2017.
I.D. (T) No. 10/2014
The President/Secretary,
Socialist Workers Union,
No. 161, Thambu Chetty Street,
II Floor, Chennai-600 001
. . Petitioner
Versus
The Managing Director,
M/s. The Puducherry State Weavers
Co-operative Society Limited, No.P.57,
Industrial Estate, Thattanchavady,
Puducherry-605 009
. .
Respondents.
This industrial dispute coming on 02-11-2017 before
me for final hearing in the presence of Thiru R. Jayakumar,
Representative for the petitioner and Thiru M. Vaikunth,
Advocate for the respondent, upon hearing the
petitioner, 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. 93/AIL/Lab./J/2014,
dated 05-06-2014 for adjudicating the following:-
(i) Whether the dispute raised by Socialist
Wo rkers Union against the management of
M/s. Puducherry State Weavers Co-operative Society
Limited, Puducherry regarding the continuity of
service, seniority, promotion, revision of wages
and payment of deducted wages, etc. and also to
nullify the orders, dated 10-01-2007 and 23-10-2010
issued against the petitioner Thiru V. Selvaraj is
justified? If justified, what relief the union is
entitled to?
(ii) To compute the relief if any, awarded in
terms of money if, it can be so computed?
2. The averments in the claim statement of the
petitioner, in brief, are as follows :
The workman V. Selvaraj entered service under the
respondent on 14-03-1988 and he continuously worked
under the respondent with efficiently, sincerely and to
the satisfaction of his superiors. On 14-02-2003, the
respondent has separately constituted a Society in the
name of Texpro without any legal entity created an
agreement
on
18-02-2003
without
obtaining
willingness and consent from workman V. Selvaraj and
by an act of compulsion, deputed him and 16 other
employees of respondent to Texpro with effect from
01-04-2003 vide order, dated 28-03-2003. E.P.F amount,
other deductions and all the records related to his
service were maintained by this respondent for more
than 24 years without any break. The respondent did
not settle his account or paying gratuity and other
benefits when he transferred to Texpro or till now and
it reveals that workman V. Selvaraj is all along
employee of this respondent. Being an illiterate, the
workman is not having any knowledge of English, the
respondent with mala fide intention getting signature
using as if, he is agreeing for transfer, membership in
Texpro, and offer of fresh entrant, etc., Though, the
workman
made
several
letter
and
series
of
315
6 March 2018]
LA GAZETTE DE L’ETAT
representations to the respondent authorities regarding
the unwillingness and requested the respondent not to
transfer to Texpro, the respondent did not heed his
request. Finally, the respondent take back him and fix
the proper scale of pay. After knowing that some of
juniors to V. Selvaraj filed a W.P.No.43480 of 2006
sought equal pay on par with him and hence without any
enquiry, the respondent reduced his basic scale of pay
from ` 4,930 to ` 3,600 illegally and deducted the
amount from his salary in equal 24 installments. The
salary of the workman was illegally demoted below the
junior scale of pay. The Writ Petition filed by workman
in W.P. No. 5110/2010 sought for seniority and
W.P. No. 43480/2006 filed by his juniors for equal pay
were dismissed by the Hon'ble High Court on the
ground of jurisdiction as if, Co-operative Society employee
cannot filed Writ Petition. Thereafter, on 10-01-2007,
23-02-2010, the respondent periodically issuing
seniority list in which all his juniors were given
seniority, promotion and revision illegally which is
nothing but illegal and unfair labour practice. Though,
the workman gave various representations, the
respondent did not give any response. Hence, the
petitioner union raised a dispute on behalf of his
member V. Selvaraj before the Labour Officer
(Conciliation) and on failure of the Conciliation the
Government has referred this matter to this Tribunal.
The petitioner union prayed to nullify the orders, dated
10-01-2007 and 23-02-2010 of the respondent and to
give continuity of service, seniority, promotion,
revision of wages on the ground that the workman
V. Selvaraj was transferred to Texpro without obtaining
his willingness and consent is highly illegal and that
the workman Selvaraj was not at all relieved from the
respondent and he was asked by the respondent to go
to Texpro as deputation and hence that the respondent
herein keeping all the statutory benefits and
documents. Since, some juniors to Selvaraj went to
Court the management should not curtain his rights and
reduce his scale of pay. Admittedly the workman
Selvaraj EPF No. TN/PC/120/194 account if,
continuously maintained by the respondent for the past
23 years without any break. The EPF amount has also
not been transferred to Texpro. Hence, he is deemed
to be an employee of this respondent from the date of
joining. Admittedly, at the time of transferring to
Texpro or till now this management did not settling any
service benefits, legal dues and all other benefits for
the period of 1988 to 2003 when he worked under this
management. Hence, it clearly shows that he is having
continuity of service under this respondent from 1988
to till date. The service condition of the Selvaraj was
adversely affected and the management without
adopting legal provision changed his service conditions
without any notice is highly illegal. The petitioner
union prayed this Court to set aside the orders, dated
10-01-2007 and 23-02-2010 passed by the respondent
consequently direct the respondent to give continuity
of service, seniority, promotion, revision of wages
and all other attendant benefits with 12% interest based
on the seniority taking for all the aspects from 14-03-1988
and Payment of deducted wages to V. Selvaraj.
3. The brief averments in the counter filed by the
respondent are as follows :
The respondent denied all the averments made by
the petitioner union in their claim statement and stated
that the respondent management had entered an
agreement on 18-02.2003 and as per the terms and
conditions of the said agreement 17 employees from
Pontex were sent to the new Society Texpro with
effect from 01-04-2003 vide order, dated 28-03-2003
and the wo rkman V. Selvaraj was o ne o f the
17 employees. Member admission register printed by
PIC press and sold to all the Co-operative Societies in
Pondicherry. The Society's name will be written on the
front page of the admission register by manually.
Therefore, the Society name will not be found in each
and every page. It is only a Xerox copy of the member
admission register maintained by Texpro. In the offer
of appointment letter given to the workman Selvaraj on
19-05-2005 by Pontex, the workman Selvaraj signed
stating that the terms and conditions mentioned in the
offer of appointment are accepted by him. The said
Selvaraj worked in Pondicherry Co-operative Textile
and Processing Society as dye house worker and came
to Pontex and accepted the post of Helper in the
Pontex, in the scale of pay fixed for the post. The joining
report was properly signed by the workman Selvaraj
and filed in Pontex files. The workman Selvaraj is still
working in the Pontex since 23rd May, 2005. The enclosure
R2 was issued to workman Selvaraj along with other
employees and after that only he himself enrolled as
a member in the Texpro Society as a member of the
Society. The enclosure R4 was accepted by the
workman Selvaraj and signed himself accepting the
terms and conditions found in the offer of
appointment. The workman Selvaraj was relieved from
the respondent Society and joined in the Texpro and
after some time as a fresh recruit an offer of
316
LA GAZETTE DE L’ETAT
[6 March 2018
appointment was given to him and after accepting the
offer of appointment to work as helper in the
respondent Society Pontex he joined in the helper post.
If, the workman V. Selvaraj given any objection at the
time of fixation of pay, at the time of acceptance of
promotion or at the time of revision of scale of pay
as per the directions given by the Registrar of Co-operative
Societies, etc., the objections were considered and
based on merits decisions were taken. All the
representations submitted were considered now and
then by the respondent and replies were given to the
workman, now and then was disposed off on merits.
The workman Selvaraj joined in the Pontex only as a
fresh appointment as Helper from Texpro by accepting
offer of appointment issued to him. The petitioner has
got other alternative remedy to file a petition and get
redressal before the Registrar of Co-operative.
Societies under Section 84 of the Puducherry Civil
Services Act, 1972 in the service matters, except the
disciplinary action. Therefore, the respondent prayed
to dismissed the claim petition.
4. In the course of enquiry on the side of the
petitioner WW1 was examined and Ex.Wl to Ex.W23
were marked and on the side of the respondent RW1
was examined and Ex.Rl to Ex.R25 were marked.
Though, several opportunities were given, the
respondent has not turned up before this Court to
putfoth their argument. Hence, the the argument of the
respondent was closed and the case was posted for
orders.
5. The point for consideration is:
Whether the dispute raised by the petitioner union
against the respondent management over the continuity
of service, seniority, promotion, revision of wages,
and payment of deducted wages etc and also to nullify
the orders, dated 10-01-2007 and 23-10-2010 issued
against the petitioner Thiru V. Selvaraj is justified or
not and if justified, what is the relief entitled to the
petitioner union?
6. Heard.
The pleadings of the parties, the evidence let in by
either sides and the exhibits marked on both sides are
carefully considered. On the side of the petitioner,
written argument was filed and the same is carefully
considered. From the pleadings of the parties, it is
clear that following facts are admitted by them that the
workman V.Selvaraj for whom the petitioner union has
raised this dispute was working at the respondent
establishment and on 18-02-2003 an agreement was
entered by the respondent management and Society in
the name of Texpro was created and the said V. Selvaraj
along with 16 other employees were shifted to the
Texpro with effect from 01-04-2003 and subsequently,
the said workman V. Selvaraj was taken back by the
respondent establishment and proper scale of pay was
fixed and it is also an admitted fact that the respondent
management has reduced his basic scale of pay from
` 4,930 to ` 3,600 and thereafter, the respondent
management has passed an seniority list periodically
on 10-01-2007 and 23-02-2010 and the union has
raised the industrial dispute on behalf of workman
V. Selvaraj for seniority and promotion before the
Labour Conciliation Officer wherein, the enquiry was
conducted and on failure of conciliation, the failure
report was submitted by the Labour Conciliation
Officer and the case has been referred to this Court.
7. It is the main contention of the petitioner that he
has not given any consent or willingness to depute him
from respondent establishment to Texpro and without
his consent and willingness he was deputed to Texpro
and he made several letters with requests to transfer
once again to Pontex since the E.P.F amount, other
deductions and all the records of the workman
V.Selvaraj related to his service were maintained by the
respondent management and his request was accepted
by the respondent management at the end and once
again
he
has
been taken
to
the respondent
establishment and his salary was fixed at the rate of
basic scale of pay of ` 4,930 and subsequently it was
reduced to ` 3,600 and that his juniors were given
seniority by the respondent establishment by passing
of an order periodically on 10-01-2007 and 23-02-2010
in which all his juniors were given seniority,
promotion and revision of wagos and hence, the
petitioner union has raised the industrial dispute on
behalf of workman V. Selvaraj for fixation of proper
scale of pay with subsequent consequential benefits.
8. On the other hand, it is the contention of the
respondent management that only on the consent and
willingness of the workman V. Selvaraj and as per
12(3) settlement entered on 18-02-2003, 17 employees
including the workman Selvaraj of the Pontex were
relieved from their duties from Pontex and sent to new
Society Texpro with effect from 01-04-2003 vide
office order, dated 28-03-2003 and the petitioner has
joined at, the Texpro and he had been in service and
subsequently, the workman Selvaraj was taken back by
Pontex by giving an offer of appointment on 19-05-2005
wherein, the workman signed stating that terms and
conditions mentioned in the offer of appointment are
317
6 March 2018]
LA GAZETTE DE L’ETAT
accepted by him and he has accepted the post of helper
in the Pontex in the scale of pay fixed for the post and
that the workman after accepting the terms and
conditions found in the offer of appointment given to
him on 19-05-2005 joined in the Pontex and submitted
his joining report and the workman Selvaraj was
working at Pontex since 23-05-2005 and the said
workman had worked at Texpro for the period from
28-03-2003 to 23-05-2005 and the said workman
Selvaraj signed himself accepting the terms and
conditions found on the offer of appointment. On this
aspect, the evidence let in and exhibits marked on
either side are carefully perused.
9. It is the evidence of the W.W.1 that workman
V. Selvaraj entered service under the respondent
establishment on 14-03-1988 and he continuously
worked under the respondent with efficiently,
sincerely and to the satisfaction of his superiors and
on 14-02-2003 the respondent has separately constituted
a Society in the name of Texpro entered settlement on
26-03-2003 and the respondent management has
deputed the workman V.Selvaraj without obtaining
willingness and consent and by an act of compulsion
to the said Texpro along with 16 others with effect
from 01-04-2003 vide order, dated 28-03-2003 and
however, E.P.F amount, other deductions and all the
records of the workman V.Selvaraj related to his
service were maintained by this respondent for more
than 24 years without any break and that the workman
V. Selvaraj is not having any knowledge of English, the
respondent with mala fide intention getting signature
using as if, he is agreeing for transfer, membership in
Texpro, and offer of fresh entrant, etc., and that though
the workman made several letters and representations
to the respondent authorities, the respondent did not
heed his request and that finally, the respondent take
back him and fix the proper scale of pay and that some
of juniors to V. Selvaraj filed a W.P. No. 43480 of
2006 sought equal pay on par with him and while so,
the basic scale of pay of the workman V. Selvaraj was
reduced from ` 4,930 to ` 3,600 by the respondent
management illegally and deducted the amount from
his salary in equal 24 installments and hence, the Writ
Petition was filed by workman V.Selvaraj in W.P.
No. 5110/2010 sought for seniority and the W.P. No.
43480/2006 filed by his juniors for equal pay were
dismissed by the Hon'ble High Court, on the ground
of jurisdiction as if, Co-operative Society employee
cannot file Writ Petition and that on 10-01-2017,
23-02-2010, the respondent periodically issuing
seniority list in which all his juniors were given
seniority, promotion and revision illegally which is
nothing but illegal and unfair labour practice and hence,
the petitioner union raised a dispute on behalf of its
member V. Selvaraj before the Labour Officer
(Conciliation) and on failure of the conciliation, the
Government has referred this matter to this Tribunal.
10. In support of their case, the petitioner union has
exhibited Ex.Wl to Ex.W23. Ex.Wl is the copy of the
objection letter written by the workman for deputation
to Texpro on 26-02-2003. Ex.W2 is the copy of 12(3)
settlement, dated 26-03-2003. Ex.W3 is the copy of
the objection letter written by the workman for
deputation to Texpro on 22-04-2003. Ex.W4 is the copy
of the objection letter written by the workman for
deputation to Texpro on 04-07-2003. Ex.W5 is the copy
of the objection letter written by the workman for
deputation to Texpro on 27-12-2003. Ex.W6 is the
copy of the objection letter written by the workman
for deputation to Texpro on 31-01-2004. Ex.W7 is the
copy of the objection letter written by the workman
for deputation to Texpro on 25-02-2004. Ex.W8 is the
copy of the objection letter written by the workman
for deputation to Texpro on 17-12-2007. Ex.W9 is the
copy of letter by workman seeking promotion in the
respondent concern, dated 26-12-2005. Ex.Wl0 is the
copy of letter by workman seeking increment and
promotion in the respondent concern, dated 28-01-2006.
Ex.W11 is the copy of letter by workman seeking
increment and promotion in the respondent concern,
dated 16-03-2006. Ex.Wl2 is the copy of representation
to declare seniority list, dated 25-05-2006. Ex.W13
is the copy of legal notice, dated 03-12-2006. Ex.W14
is the copy of order of respondent for denial of revised
scale of pay and recovery on 10.01.2007. Ex.W15 is
the copy of salary received with protest, dated 07-03-2007.
Ex.W16 is the copy of objection to the provisional
common seniority list on 13-02-2009. Ex.Wl7 is the
copy of letter by workman taking seniority from the
date of appointment i.e., 14-03-1988 on 02-12-2009.
Ex.W18 is the copy of petition under RTI Act, dated
17-02-2010. Ex.W19 is the copy of respondent
denying seniority, dated 23-02-2010. Ex.W20 is the
copy of 2K petition, dated 21-08-2012. Ex.W21 is the
copy of rejoinder filed by the petitioner, dated 06-06-2013.
Ex.W22 is the copy of 2nd rejoinder filed by the petitioner,
dated 25-09-2013. Ex.W23 is the copy of failure
report issued by the Labour Officer on 04-03-2014.
11. On the other hand, to disapprove the case of the
petitioner the respondent management has examined
one V. Selvaraj as RW1 and he has deposed that the
respondent management had entered an agreement on
318
LA GAZETTE DE L’ETAT
[6 March 2018
18-02-2003 and as per the terms and conditions of the
said agreement 17 employees were relieved from
Pontex and sent to the new Society Texpro with effect
from 01-04-2003 vide order, dated 28-03-2003 and
the workman V. Selvaraj was one among them and that
only he himself enrolled as a member in the Texpro
Society as a member of the Society and however, the
payment was given by the respondent management to
the workman V. Selvaraj and that the workman
V. Selvaraj signed stating that the terms and conditions
mentioned in the offer of appointment are accepted by
him and he accepted the post of Helper in the Pontex,
in the scale of pay fixed for the post and after
accepting the terms and conditions in the offer of
appointment, dated 19-05-2005 given to him the
workman V. Selvaraj joined at the Pontex and submitted
his joining report and that the workman V.Selvaraj is
still working in the Pontex from 23-05-2005 and that
the respondent Society has relieved the workman
V. Selvaraj from duty and he joined in the Texpro and
after some time as a fresh recruit an offer of
appointment was given to him and after accepting the
offer of appointment to work as Helper in the
respondent Society Pontex, he joined in the Helper post
and that all the representations submitted by the
workman V. Selvaraj were seriously considered by the
respondent management and replies were given to the
workman, now and then and that the workman
V. Selvaraj joined in the Pontex only as a fresh
appointment as Helper from Texpro by accepting offer
of appointment issued to him by the respondent
management.
12. In support of his case, the respondent management
has exhibited Ex.Rl to Ex.R25. Ex.Rl is the copy of
authoriation letter, dated 12-04-2017. Ex.R2 is the copy
of III-Pay Committee report implemented by the
Committee Consisted by the Registrar of Co-operative
Society (RCS) for Co-operative Societies, dated
18-05-1998. Ex.R3 is the copy of 12(3) agreement
between management and labour, dated 18-02-2003.
Ex.R4 is the copy of relieving order of Thiru
V. Selvaraj and other to Texpro Society, dated 28-03-2003.
Ex.R5 is the copy of member admission register of
V. Selvaraj in Texpro, dated 21-04-2004. Ex.R6 is the
copy of offer of appointment order in respect of
V. Selvaraj in Texpro, dated 19-05-2005. Ex.R7 is the
copy of joining report of Thiru V. Selvaraj in Texpro,
dated 23-05-2005. Ex. R8 is the copy of W.P.
No. 43480/2006, dated Nil. of 09.2006. Ex.R9 is the
copy of IV-Pay Committee report implemented by the
committee consisted by the Registrar of Co-operative
Society (RCS) for Co-operative societies, dated
28-02-2006. Ex.R10 is the copy of the memorandum
issued to Thiru.V. Selvaraj, in connection with the pay
disparity, dated 15-12-2006. Ex.R11 is the copy of
explanation submitted by Thiru V. Selvaraj, dated 20-12-2006.
Ex.R12 is the copy of speaking order issued to Thiru
V. Selvaraj issued by the management of the Society,
dated 10-01-2007. Ex.R13 is the copy of tentative
common seniority list issued by the management to
Thiru V. Selvaraj, dated 13-11-2009. Ex.R14 is the
copy of objection letter submitted by Thiru V. Selvaraj
against his seniority list, dated 01-12-2009. Ex.R15 is the
copy of final common seniority list issued by the
management to Thiru V. Selvaraj, dated 23-02-2010.
Ex.R16 is the copy of the counter affidavit filed by the
respondent in W.P. No.43480/2006. Ex.R17 is the copy
of affidavit filed by the petitioner in W.P. No. 5110/2010
on 26-02-2010. Ex.R18 is the copy
of counter
affidavit filed by the respondent in W.P. No. 5110/
2010 on 23-03-2010. Ex.R19 is the copy of the
common order in W.P. Nos. 43480/2006 and 5110/
2010 and M.P.No.1/2010, dated 06-04-2010. Ex.R20
is the copy of Promotion order to Thiru V. Selvaraj, dated
22-11-2010. Ex.R21 is the copy of joining report of
Thiru V. Selvaraj in Pontex, dated 22-11-2010. Ex.R22
is the copy of counter filed by respondent to Labour
Officer (Conciliation), Puducherry on 23-02-2011. Ex.R23
is the copy of V Pay Committee report implemented
by the Committee constituted by the Registrar of
Co-operative
Society
(RCS)
for
Co-operative
Societies, dated 12-01-2012. Ex.R24 is the copy of
pay option letter submitted to Pontex by Thiru V. Selvaraj
on 18-02-2012. Ex.R25 is the copy of counter filed
by the respondent before the Labour Officer (Conciliation)
on 19-11-2012.
13. The documents exhibited by the petitioner
would go to show that the workman V. Selvaraj had been
in service from 14-03-1988 and subsequently he has
been deputed to Texpro in the year 2003 along with
16 others and that the workman V. Selvaraj has submitted
several applications seeking promotion at the
respondent establishment and also he has submitted
requisition seeking increment and promotion on
various dates from 2003 to 2006 and that the
respondent management has reduced the basic scale of
pay of workman V. Selvaraj and therefore, he has
received salary with protest from the respondent
establishment and made an objection to the provisional
common seniority list and further Ex.Wl7 would reveal
that the workman V. Selvaraj has submitted an application
to the Registrar of Societies on 02-12-2009 stating all
the facts with the request to direct the management to
319
6 March 2018]
LA GAZETTE DE L’ETAT
reconsider the seniority list from the date of
appointment and further Ex.W18 would also reveal the
fact that the workman V. Selvaraj has submitted an
application to the Conciliation Officer against the
reduction of wages and he has sent a letter to the
respondent management on 02-12-2009 sought for
seniority from the date of appointment i.e., 14-03-1988
and however, the respondent management has denied
the seniority by an order dated 23-02-2010 which was
exhibited as Ex.W19 which reveals the fact that the
respondent management has denied seniority to
workman V. Selvaraj stating that he has taken as fresh
employee and seniority from 01-01-1991 cannot be
acceded and Ex.W20 also would evident that petitioner
union has submitted an application to the management
of Pontex with the request to give proper seniority and
promotion with proper basic pay to workman Selvaraj
and that the petitioner union has raised the industrial
dispute on behalf of workman V. Selvaraj before the
Conciliation Officer and on failure of the conciliation
the failure report was submitted by the Conciliation
Officer.
14. Furthermore, on perusal of documents exhibited
by the respondent management, it is clear from Ex.R4
that the respondent Society has relieved the 17
employees including the workman V. Selvaraj from the
respondent Society Pontex and sent them to new
Society with effect from 01-04-2003 wherein, it has
been stated that GPF, EPF and gratuity will be
transferred to the newly formed Society and this order
has been passed as an office order of the respondent
establishment. Further, it is noticed from the Ex.R.6-
offer of appointment given by the respondent establishment
to the said workman V. Selvaraj on 19-05-2005 that
there was some terms and conditions mentioned by the
respondent establishment and it is also revealed from
Ex.R7 that the workman has reported duty as per the
order of the respondent management on 23-05-2005.
15. Further, it can be clearly noticed from
Ex.W 23- the failure report that the service condition
of the workman V. Selvaraj was adversely affected and
his service condition was changed without any notice
and that the respondent management has reduced the
pay from ` 4,930 to ` 3,600 and hence, the union
prayed for continuity of service from 14-03-1988 to
till date with revised scale of pay, promotion and
fixation of seniority and salary dues and repayment of
deducted salary, etc., to workman V. Selvaraj and
further the Ex.W23 - the failure report would evident
that the Conciliation Officer has advised the respondent
management that it was not fair on the part of the
management regarding continuity of service and denial
of seniority of the petitioner and it was also the advise
of the Conciliation Officer that without obtaining
willingness or consent, the service condition of the
workman would not be changed without giving notice
to the workman and further the change of service
condition without the consent of the workman which
adversely affected the seniority and promotion of the
workman and which also affect the scale of pay is not
fair and further, it was advised by the Conciliation
Officer to the management that reduction of basic
scale of pay and deduction of salary is also not fair
on the part of the management for which the
respondent management has showed their inability to
take the advise of the Conciliation Officer. From these
advise of the Conciliation Officer, it is clear that the
respondent management has without getting consent
and willingness, shifted 17 workmen including the
workman V. Selvaraj to the Texpro and subsequently,
the basic pay of V. Selvaraj also has been reduced
without giving any notice required under section 9A of
the Industrial Disbutes Act and the service condition
also has been changed without giving notice to the
workers who have been shifted from the respondent
establishment in the year 2003.
16. Admittedly, it is not the case of the respondent
management that they have given any notice prior to
the shifting of 17 employees to the newly formed
Society Texpro and it is the case of the respondent
management that only on the willingness and consent
of the 17 employees including the workman V. Selvaraj,
have been shifted to said newly formed Society Texpro
with effect from 01-04-2003 and it is not in dispute
that the offer of appointment was given to workman
V. Selvaraj and he had been taken back to the
respondent Society in the year 2005 and it is the case
of the respondent management that workman V. Selvaraj
has accepted the terms and conditions and hence, he
has been treated as fresh appointee. But, no document
was putforth by the respondent management while the
workman V. Selvaraj relieved from Pontex, he has been
given any gratuity or other benefits for the period of
15 years of service since the petitioner has joined the
respondent Society in the year 1988. Furthermore, no
document is exhibited before this Court that EPF and
GPF were transferred to Texpro Society where the
17 employees have been shifted. On this aspect the
evidence of RW1 was carefully considered which runs
as follows:
"
320
LA GAZETTE DE L’ETAT
[6 March 2018
”
From the above evidence it is clear that the workman
V. Selvaraj has not signed the 12(3) settlement alleged
to have been entered between the employees and the
management. Further, Ex. RS would also reveal the fact
that 15 employees mentioned in the said settlement
have not signed the same. The evidence of RWI would
go to show that said settlement has not been signed by
workman V. Selvaraj for whom this industrial dispute
has been raised and further, it reveals from above
evidence that no employees have been participated in
the negotiation for the said settlement and no
resolution has been passed at the petitioner union and
it is also admitted by RWI in his evidence that they
have not issued any notice to get the consent or
opinion from the employees regarding such shifting of
employees to Texpro and no worker has given any
letter accepting or consenting the same and it is also
admitted by RW1 that no resolution has been passed
by the petitioner union regarding acceptance to shift
the 17 employees to Texpro and it is also admitted by
RW I that these 17 employees only have been deputed
as they have formed new Society in the name of Texpro.
17. The further evidence of RW1 would runs as
follows :
"...........
PF
PF
Gradutty
PF
PF
”
321
6 March 2018]
LA GAZETTE DE L’ETAT
From the above evidence, it is clear that RW1 has
admitted that while shifting the 17 employees to
Texpro, the respondent management has given an
undertaking to the said 17 employees that they would
take back the employees with same seniority with
continuity of service and other benefits as if, the
employees had been in services at Pontex and RW1 also
has admitted that they had reduced salary of the said
V. Selvaraj since he had approached the Court for his
promotion and further, RW1 admits that the act of the
respondent management not giving proper seniority to
the workman V. Selvaraj while re-appointment to the
same Society is against law and as illegal and further,
the evidence of RW1 would reveal the fact that they
have not given notice under section 9A of the Act while
reducing the salary to the workman V. Selvaraj which
is a clear violation of provision of Industrial Disputes
Act committed by the respondent management.
18. Further, it is admitted by RW1 that the
provident fund amount was contributed by the said
Texpro in the same PF number only in which the
respondent management has previously paid which
would go to show that Texpro was also managed by the
respondent mangement and thus, the PF amount was
paid in the same number and even then, the said
V. Selvaraj was working at Texpro for the short period
till 2005. All these evidence would go to show that the
respondent management ought to have given original
seniority to the workman V. Selvaraj and he could not
be given seniority on the basis of fresh appointment
given to him while he returned back to Pontex and
therefore, the order passed by the respondent
management on 10-01-2007 to the workman V. Selvaraj
with regard to reduction of his basic salary from
` 4,9307 to ` 3,600/- is not sustainable and it is liable
to be declared as null and void and furthermore, the
o rd er p assed b y the resp o nd ent management
on 23-02-2010 denying seniority to workman Selvaraj
is also not sustainable and hence it is also liable to be
declared as null and void and that therefore, it is to be
held that the industrial dispute raised by the petitioner
union against the respondent management over the
continuity of service, seniority, promotion, revision of
wages and payment of deducted wages, etc., and also
to nullify the orders, dated 10-01-2007 and 23-10-2010
issued against the workman V. Selvaraj is justified and
as such, the workman V. Selvaraj is entitled for the
relief as claimed by the petitioner union.
19. In the result, the petition is allowed by holding
that the industrial dispute raised by the petitioner
union against the respondent management regarding
continuity of service, seniority, promotion, revision
of wages and payment of deducted wages, etc., to
employee V. Selvaraj and also to nullify the orders,
dated 10-01-2007 and 23-10-2010 issued against the
employee V. Selvaraj is justified by declaring the order
passed by the respondent management on 10-01-2007
by reducing the basic scale of pay of V. Selvaraj from
` 4,930 to ` 3,600 and order passed by the respondent
management on 23-02-2010 denying seniority of the
employee V. Selvaraj as null and void and Award is
passed by directing the respondent management to give
seniority and promotion to the employee V.Selvaraj by
giving continuity of service and to revise his salary by
giving such seniority and promotion as if, he had been
in service at respondent Society.
No cost.
Dictated to the Stenographer, transcribed by her,
corrected and pronounced by me in the open Court, on
this the 29th day of November, 2017.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court,
Puducherry.
List of petitioner’s witness:
WW1 —04-01-2016 — R. Jaikumar
List of petitioner’s exhibits:
Ex.Wl —26-02-2003— Copy of the objection
letter written by the
workman for deputation
to Texpro.
Ex.W2 —26-03-2003— C o p y
o f
1 2 ( 3 )
settlement.
Ex.W3 —22-04-2003— Copy of the objection
letter written by the
workman for deputation
to Texpro.
Ex.W4 —04-07-2003— Copy of the objection
letter written by the
workman for deputation
to Texpro.
Ex.W5 —27-12-2003— Copy of the objection
letter written by the
workman for deputation
to Texpro.
322
LA GAZETTE DE L’ETAT
[6 March 2018
Ex.W6 —31-01-2004— Copy of
the objection
letter written by the
workman for deputation
to Texpro.
Ex.W7 —25-02-2004— Copy of the objection
letter written by the
workman for deputation
to Texpro.
Ex.W8 —17-12-2007— Copy of the objection
letter written by the
workman for deputation
to Texpro.
Ex.W9 —26-12-2005— Copy
of
letter
by
w o r k m a n
s e e k i n g
p r o m o t i o n
i n
t h e
respondent concern.
Ex.Wl0—28-01-2006— Copy
of
letter
by
w o r k m a n
s e e k i n g
p r o m o t i o n i n t h e
respondent concern.
Ex.W11—16-03-2006—Copy of letter by
w o r k m a n
s e e k i n g
increment and promotion
i n t h e r e s p o n d e n t
concern.
Ex.W12—25-05-2006—Copy of representation
to declare seniority list.
Ex.Wl3—03-12-2006— Copy of legal notice.
Ex.W14—10-01-2007—C o p y o f o r d e r o f
respondent for denial of
revised scale of pay and
recovery.
Ex.Wl5— 07-03-2007—Copy of salary received
with protest.
Ex.W16—13-02-2009—Copy of objection to
t h e
p r o v i s i o n a l
c o m m o n seniority list.
Ex.W17—02-12-2009—Copy
of
letter
by
workman taking seniority
from
the
date
of
appointment i.e. 14-03-1988.
Ex.Wl8—17-02-2010— Copy of petition under
RTI Act.
Ex.Wl9— 23-02-2010—Copy
of
respondent
denying seniority.
Ex.W20—21-08-2012—Copy of 2K petition.
Ex.W21—06-06-2013—Copy of rejoinder filed
by the petitioner.
Ex.W22— 25-09-2013—Copy of 2nd rejoinder
filed by the petitioner.
Ex.W23—04-03-2014—Copy of failure report
issued by the Labour
Officer.
List of respondent’s witness:
Ex.W1— 17-07-2017— V. Selvaraj
List of respondent’s exhibits:
Ex.Rl — 12-04-2017— Copy of authorization
letter.
Ex.R2 —18-05-1998 — Copy of III-Pay
Co mmi t t e e
r e p o r t
implemented
by
the
Committee consisted by
the R C S for Co-operative
Societies.
Ex.R3 —18-02-2003 — Copy of 12(3) agreement
between management and
labour.
Ex.R4 —28-03-2003 — Copy of relieving order
of Thiru V. Selvaraj and
other to Texpro Society.
Ex.R5 —21-04-2004— C o p y
o f
m e m b e r
admission register of
V. Selvaraj in Texpro.
Ex.R6 —19-05-2005 — Copy
of
offer
of
appointment
order
in
respect of V. Selvaraj
in Texpro.
Ex.R7 —23-05-2005— Copy of joining report
of Thiru V. Selvaraj in
Texpro.
Ex.R8 —Nil-09-2006— Copy of W.P.No.43480/
2006.
Ex.R9 —28-02-2006 — Copy of IV - Pay
C o m m i t t e e
r e p o r t
imp leme nted b y the
Committee consisted by
the RCS for Co-operative
Societies.
Ex.Rl0 —15-12-2006— Copy of the memorandum
disparity.
323
6 March 2018]
LA GAZETTE DE L’ETAT
Ex.R11—20-12-2006— Copy
of
explanation
s u b m i t t e d b y T h i r u
V. Selvaraj.
Ex.R12 —10-01-2007—Copy
of
speaking
order
issued
to
Thiru
V. Selvaraj issued by the
management
of
the
Society.
Ex.R13—13-11-2009— Copy
of
tentative
common seniority list
i s s u e d
b y
t h e
management to Thiru
V. Selvaraj.
Ex.R14 —01-12-2009—Copy
of
objection
letter submitted by Thiru
V. Selvaraj against his
seniority list.
Ex.Rl5 —23-02-2010— C o p y
o f
f i n a l
c o m m o n seniority list
issued
by
the
management to Thiru
V. Selvaraj.
Ex.R16 —
Copy of the counter
affidavit
filed by the
respondent in
W.P.
No. 43480/2006.
Ex.Rl7 —26-02-2010— Copy of affidavit filed
by the petitioner in
W.P. No. 5110/2010.
Ex.Rl8 —23-03-2010 —Copy of counter affidavit
filed by the respondent
in W.P. No. 5110/2010.
Ex.R19 —06-04-2010—Copy of the common
order
in
W.P.
Nos.
43480/ 2006 and 5110/
2010 and M.P. No. 1/
2010.
Ex.R20 —22-11-2010—Copy
of
Promotion
order Thiru V. Selvaraj.
Ex.R21 —22-11-2010—Copy of joining report
of Thiru V. Selvaraj in
Pontex.
Ex.R22 —23-02-2011—Copy of counter filed by
respondent to Labour
Officer (Conciliation),
Puducherry.
Ex.R23 —12-01-2012—C o p y o f V-P a y
Committee
report
implemented by the
Committee
constituted
b y
t h e R C S f o r
Co-operative Societies.
Ex.R24 —18-02-2012—Copy of pay option
letter submitted to Pontex
by Thiru V. Selvaraj.
Ex.R25 —19-11-2012—Copy of counter filed
by the respondent before
the
Labour
Officer
(Conciliation).
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 23/AIL/Lab./T/2018,
Puducherry, dated 15th February 2018)
NOTIFICATION
Whereas, the Government is of the opinion that an
industrial dispute has arisen between the management
of M/s. Larsen and Toubro Private Limited, Puducherry
and Larsen and Toubro Employees Union, Puducherry
over transfer of Thiru N. Thandapani, Technical/
Commercial Supervisor, in respect of the matter
mentioned in the Annexure to this order;
And whereas, in the opinion of the Government, it
is necessary to refer the said dispute for adjudication;
Now, therefore, by virtue of the authority delegated
vide G.O. Ms. No. 20/91/Lab./L, dated 23-5-1991 of
the Labour Department, Puducherry to exercise the
powers conferred by clause (d) of sub-section (1) of
section 10 of the Industrial Disputes Act, 1947
(Central Act XIV of 1947), it is hereby directed by the
Secretary to Government (Labour) that the said dispute
be referred to the Industrial Tribunal, Puducherry for
adjudication. The Industrial Tribunal, Puducherry, shall
submit the Award within 3 months from the date of
issue of reference as stipulated under sub-section (2-A)
of section 10 of the Industrial Disputes Act, 1947 and
in accordance with rule 10-B of the Industrial
Disputes (Central) Rules, 1957. The party raising the
dispute shall file a statement of claim complete with