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17 {
No.
16
Poudouchéry
Mardi
17
Avril
2018 (27 Chaitra 1940)
No.
Puducherry
Tuesday
17th
April
2018
494
LA GAZETTE DE L’ETAT
[17 April 2018
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 15/Lab./AIL/T/2018,
Puducherry, dated 5th February 2018)
NOTIFICATION
Whereas, an Award in I.D (L) No.10/2012, dated
08-12-2017 of the Labour Court, Puducherry in
respect of the Industrial Dispute between the management
of M/s. DXN Herbal Manufacturing (India) Pvt. Ltd.,
Puducherry, over non-employment of 17 employees
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.
S. MOUTTOULINGAM,
Under Secretary to Government
(Labour).
————
BEFORE THE INDUSTRIAL TRIBUNAL-CUM-
LABOUR COURT AT PUDUCHERRY
Present : Thiru G. THANENDRAN, B.COM, M.L.,
Presiding Officer,
Friday, the 8th day of December, 2017
I.D. (L) No. 10/2012
The Secretary,
DXN Labour Union,
No. 471, First floor,
Bharathi Street,
Puducherry-605 001.
. . Petitioner
Versus
The Managing Director,
M/s. DXN Herbal Manufacturing
(India) Pvt. Ltd.,
R.S. No. 141/4 & 142/5,
Whirlpool Road,
Thiruvandarkoil,
Mannadipet Commune,
Puducherry-605 102.
. . Respondent
This industrial dispute coming on 05-12-2017 before
Pre-negotiation sitting for hearing in the presence of
Thiru M. Ganapthy, Advocate for the petitioner and
Tmt. Indra Josephine Shakila, 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
1. This Industrial Dispute has been referred by the
Government as per the G. O. Rt. No. 42/AIL/Lab.J/2012,
dated 19-3-2012 for adjudicating the following:-
(a) Whether the dispute raised by DXN Labour
Union against the management of M/s. DXN
Herbal Manufacturing (India) Pvt. Ltd., Puducherry
over non-emp loyment o f 1 7 emp lo yees viz.,
(1) R. Pugazendy, (2) N. Vettrivel, (3) A. Raja,
(4) D. Dayalan, (5) D. Mahalatchumy, (6) R. Sarala,
(7) R. Umadevi, (8) V. Rajeshwari,
(9) S. Banu,
(10) K. Hemamalini, (11) P. Sudha, (12) P. Latcumy,
(13) R. Devaki, (14) V. Vani, (15) P. Maheswari,
(16) N. Malathi and (17) J. Omsakthi is justified?
(b) If justified, to 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 averments in the Claim Statement and
additional claim statement filed by the petitioner are
as follows:-
The petitioner union and the management entered
into a settlement under section 12(3) of the Industrial
Disputes Act regarding the production of the goods.
As per this settlement, total 28 employees have to
produce 3500 bottles of finished goods per day.
The production may vary according to the total number
of workers employed on a particular day. The production
of 3500 bottles of finished goods per day is a collective
work of all the employees. The management without
following this aspect issued individual charge to a
section of the employees alleging that each of the
employees has not produced 3500 bottles of finished
goods. The management infact alleged nil production
also for some of the working days without proper
verification of records. Some of the employees were
dismissed on the false allegation and without following
any procedure. The alleged domestic enquiry has also
not been conducted in a fair manner and no opportunity
495
17 April 2018]
LA GAZETTE DE L’ETAT
was given to the employees in this regard during the
alleged enquiry. The Enquiry Officer has simply
accepted the version of the management and
handed over a report to the management and there are
gross violations in this regard. On the date of dismissal
the conciliation proceedings were pending against
all these dismissed employees and the respondent
without following the provisions of the Industrial
Disputes Act dismissed all the employees. The
petitioner union requested the respondent to furnish
audited balance sheet of the company for the year 2009-
2010 for arriving a just bonus to the employees by
way of a letter, dated 17-09-2010 for which the
respondent neither replied nor furnished the balance
sheet for the year 2009-2010. Hence, the petitioners
have sent another letter on 14-10-2010 demanding 20%
bonus and 20% ex-gratia since, there was a huge profit
to the respondent in the said financial year. For getting
the balance sheet they have submitted an application
before the Labour Officer (Conciliation) also and even
before the Conciliation Officer, the respondent had
not produced the balance sheet inspite of repeated
demands of the Conciliation Officer. On the
contrary, the respondent disputed the very authority of
the Conciliation Officer for furnishing the copy of the
balance sheet in a very arbitrary manner. The respondent
had sent a letter on 14-10-2010 stating that they will
furnish the balance sheet in due course but, till date
they have not furnished the balance sheet. The
respondent is behaving in an authoritative manner with
its employees without respecting the beneficial labour
legislations.The respondent is not following the
provisions of the Payment of Bonus Act and acting to
their whims and fancies. The employees has worked to
their best and produced maximum quantity of production
and this can be verified by perusing the work sheet
of the company. Obviously for this reason only the
respondent is willfully and wantonly refusing to furnish
the balance sheet as requested by the petitioners.
Since, there was surplus profit over and above the
ceiling limit of bonus, the petitioners have demanded
20% bonus and 20% ex-gratia. This is the usual
practice followed in all companies where there was
surplus profit over the bonus limit. The respondent by
their letter, dated 18-11-2010 has made a false
representation before the Labour Officer, Conciliation
that the bonus was paid to all its employees as per rules
and this is an utter false statement and virtually this
will amount to unfair labour practice by the respondent.
The management has followed different methods for
each employee and paid the bonus to them by making
difference among them.The management without following
any rule deducted the salary of the employees.
Therefore, the petitioner union prayed this Court to pay
an Award for the payment of bonus at 20% and ex-gratia
at 20% to the employees and to direct the management
to pay the deducted wages to the employees and to pass
an Award for the reinstatement of the dismissed
employees as per the reference with back wages with
continuity of service and other attendant benefits.
3. The averments in the counter and 2 additional
counter statements filed by the respondent are as follows :-
The respondent denied all the averments except those
which are specifically admitted by them and stated that
the respondent management was running a drug unit
called DXN Herbal manufacturing Co. (India) Ltd., and
that there was a subsisting settlement between the union
and the management under section 12(3) of Industrial
Disputes Act concluded in the presence of Labour Officer
(Conciliation) and under clause 2.2 of the said
settlement, dated 09-03-2009 it was agreed between
the parties that 3500 bottles of finished goods per shift
as production norms and also under clause 18.4, it was
agreed that workman shall not resort to any direct action
to settle their grievances but, only seek remedy under
negotiations and it was also agreed under clause 11.1
and 11.2 of the said settlement that the payment of
annual Bonus shall be as per payment of Bonus Act and
it was categorically agreed that the workman shall work
in a disciplined manner and produce 3500 bottles of
finished goods per shift. However, the workman
resorted to ‘go slow’ from April 2010 and the
respondent advised the workmen to return to normalcy
by way of notices which was refused to listen by the
petitioner union and without understanding the reality
the workmen aggravated their illegal acts by way of
illegal strike, which resulted the unbearable loss to the
company for which the respondent company issued
several warning notices to the reference mentioned 17
employees and the explanation submitted by the said
17 employees are not true to the circumstances and so
an interim suspension order was issued against
R. Pugazhenthy for damaging the company properties,
N. Vetrivel for allegation of several misconducts,
A. Raja for threatening the supervisor and co-worker,
regarding D. Dhayalan, D. Sarala, N. Malathy,
G. Maheswari, P. Sudha, J. Omsakthi, V. Rajeswari,
R. Devagi, S. Banu, V. Vani, R. Umadevi, P. Lakshmi,
D. Mahalakshmi, K. Hemamalini for go slow and during
496
LA GAZETTE DE L’ETAT
[17 April 2018
the period of suspension due subsisting allowances
were given to them and that the matter was raised before
the Labour Officer (Conciliation), Puducherry and that
the explanation so given by the above 17 employees
were not satisfied, a domestic enquiry was conducted
as against these 17 employees and after due enquiry,
the Enquiry Officer submitted their report and that the
management concurred with the findings of the Enquiry
Officer and after issuance of II show cause
notice dismissed the workmen for their proved
misconduct of 'go slow' and that in pursuance of the
termination all the benefits were indented for the
workmen were given, whereas, they refused to receive
the same and that the bonus for the period of 2009-
2010 were given to all the employees @ bonus
8.33%, ex-gratia 11.67% that is totally 20% as per
the Bonus Act and that the respondent company has
given all the benefits in accordance with the Bonus Act
and as per the Industrial Disputes Act and that the
respondent company has not done any injustices to
workmen in the name of deduction of wages or
otherwise and that the respondent company has acted
based upon the Payment of Wages Act, 1963 and no
injustice was caused and that the respondent company
has not done any contravention under section 33 (l)(b)
of the Industrial Disputes Act and hence, the claim made
by the claimant are virtually untenable and illegal in
nature and therefore, prayed to dismiss the claim
petition.
4. In the course of the enquiry on the side of the
petitioner, PWI was examined, and EX. P1 to Ex. P6
were marked and on the side of the respondent RW1
was examined and Ex.R1 to Ex.P35 were marked.
5. The point for consideration is:
Whether the dispute raised by the petitioner union
against
the
respondent
management
over
non-
employment 17 reference mentioned employees is
justified or not and if justified, what is the relief
entitled to the abovesaid employees?.
6. Argument heard. In order to prove their case, the
petitioner union has examined PW1 and PW2 and
marked Ex.Pl to Ex.P6. On the other hand, the
respondent management has examined RW1 and marked
Ex.Rl to Ex.R35. While the matter was posted for cross
examination of RWl, this case has been referred to the
Lok Adalat for amicable settlement wherein, the parties
have amicably settled the matter and that they have
entered into the memorandum of settlement under
section 12(3) of the Act in which the respondent
management has agreed to reinstate all the reference
mentioned employees of the petitioner union into
service at their establishment and as per the terms and
conditions of memorandum of settlement under section
12(3) of the Act arrived at between the parties, the
respondent management has also agreed to pay
Rs.40,000 as one time compensation amount for all the
past service of the reference mentioned employees
of the petitioner union and also agreed to reinstate all
the reference mentioned employees of the petitioner
union who agreed the memorandum of settlement
under section 12(3) of the Act and thereafter, the
petitioner union and the respondent management has
filed
a
Joint Compromise Memo along with
memorandum of settlement, wherein, it is stated that
the matter has been settled out of the Court 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 Award is to be passed in terms of memorandum
of settlement and the memorandum of settlement is to
be attached as part and parcel of the Award.
7. In the result, the petition is allowed by holding
that the industrial dispute raised by the petitioner union
against the respondent management over non-employment
of 17 reference mentioned employees is justified and
Award is passed in terms of the Memorandum of
settlement arrived at between the parties on 04-12-2017
and the same is recorded and the respondent
management is directed to reinstate all the reference
mentioned employees into service as per the terms and
conditions of the memorandum of settlement entered
between them and the said memorandum of settlement
shall be attached as part and parcel of the Award. No
cost.
Dictated to Stenographer, transcribed by her,
corrected and pronounced by me in the open Court on
this the 8th day of December, 2017.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-Labour Court,
Puducherry.
————
List of petitioner’s witnesses:
PW.1 — 13-06-2013 —
Pugazhenthy
PW.2 —
22-05-2017 —
Balasubramanian
497
17 April 2018]
LA GAZETTE DE L’ETAT
List of petitioner’s exhibits:
Ex.P1 — 17-09-2010 — Copy of the letter given
by the petitioner union
t o t h e r e s p o n d e n t
management.
Ex.P2 — 01-10-2010 — Copy of the industrial
dispute by the petitioner
union
before
Labour
Officer (Conciliation).
Ex.P3 — 14-10-2010 — Copy of the letter given
by the petitioner union
to
the
respondent
management.
Ex.P4 — 14-10-2010 — Copy
of
the
letter
given by the respondent
management
to
the
L a b o u r
O f f i c e r
(Conciliation).
Ex.P5 — 18-11-2010 — Copy of the letter
given by the respondent
management
to
the
L a b o u r
O f f i c e r
(Conciliation).
Ex.P6 — 24-04-2012 — Copy of Conciliation
failure report.
List of respondent’s witnessess:
RW
— 09-05-2014 — Thomas Arokiaraj
List of respondent’s exihibits:
Ex.R1—
—
—
Copy of payment of
Bonus for the period 1st
2009 to 31st March, 2010.
Ex.R2 — 25-11-2010 — Copy of termination
order of S. Vani along with
cheque.
Ex.R3 —
25-11-2010 — Copy of termination
order of G.Maheshwari
along with cheque .
Ex.R4 — 25-11-2010
— Copy
of
termination
order of R. Umadevi
along with cheque.
Ex.R5 — 25-11-2010 — Copy
of
termination
order of P. Lakshmi
along with cheque.
Ex.R6 — 25-11-2010
— Copy
of
termination
order of P. Sudha along
with cheque.
Ex.R9 — 25-11-2010 — Copy
of
termination
order of D. Mahalakshmi
along with cheque.
Ex.R10 — 25-11-2010 — Copy
of
termination
order of K. Hemamalini
along with cheque.
Ex.R11 — 25-11-2010 — Copy
of
termination
order of S. Sarala along
with cheque.
Ex.R12 — 25-11-2010 — Copy
of
termination
order of S. Banu along
with cheque.
Ex.R13 — 25-11-2010 — Copy
of
termination
order of N. Malathy
along with cheque.
Ex.R14 — 25-11-2010 — Copy
of
termination
order of R. Devagi along
with cheque.
Ex.R15 — 23-11-2010 — Copy of termination order
of N. Vetrivel along
with cheque.
Ex.R16 — 23-11-2010 — Copy
of
termination
order of R. Pugazhenthy
along with cheque.
Ex.R17 — 23-11-2010 — Copy
of
termination
order of D. Dhayalan
along with cheque.
Ex.R18 — 23-11-2010 — Copy of termination order
of A. Raja along with
cheque.
Ex.R19 — 23-11-2010 — Copy
of
domestic
enquiry report of S. Vani
(6002).
Ex.R20 — 23-11-2010 — Copy of domestic enquiry
report of G. Maheshwari
(6003).
Ex.R21 — 23-11-2010 — Copy of domestic enquiry
report of R. Umadevi
(6004).
Ex.R22 — 23-11-2010 — Copy of domestic enquiry
report of P. Lakshmi
(6006).
Ex.R23 — 23-11-2010 — Copy of domestic enquiry
report
of
P.
Sudha
(6007).
498
LA GAZETTE DE L’ETAT
[17 April 2018
Ex.R24 — 23-11-2010 — Copy of domestic enquiry
report
of
J.
Omsakthi
(6012).
Ex.R25 —23-11-2010 — Copy of domestic enquiry
report of V. Rajeswari
(6014).
Ex.R26 —23-11-2010 — Copy of domestic enquiry
report of D. Mahalakshmi
(6015).
Ex.R27 —23-11-2010 — Copy of domestic enquiry
report of K. Hemamalini
(6017).
Ex.R28 —23-11-2010 — Copy of domestic enquiry
report of S. Sarala (6018).
Ex.R29 —23-11-2010 — Copy of domestic enquiry
of S. Banu (6019).
Ex.R30 —23-11-2010 — Copy of domestic enquiry
report of N. Malathy (6020).
Ex.R31 —23-11-2010 — Copy of domestic enquiry
report of R. Devagi (6023).
Ex.R32 —23-11-2010 — Copy of domestic enquiry
report of N. Vetrivel
(6024).
Ex.R33 —23-11-2010 — Copy of domestic enquiry
report of R. Pugazhenthy
(6025)
Ex.R34 —23-11-2010 — Copy of domestic enquiry
report of R. Dhayalan
(6026).
Ex.R35 —23-11-2010 — Copy of domestic enquiry
report of A. Raja (6027).
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-Labour Court,
————
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 16/Lab./AIL/T/2018,
Puducherry, dated 6th February 2018)
NOTIFICATION
Whereas, an award in I.D (L) No.18/2016 ,
dated 22-12-2017 of the Labour Court, Puducherry in
r e s p e c t o f t h e
in d u s t r i a l
di s p u t e b e t we e n
Thiru C. Appadurai, Puducherry against the management
of M/s. Hidesign India Private Limited, Puducherry,
over non-employment arising out his retirement with
all service and monetary benefits 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)
S. MOUTTOULINGAM,
Under Secretary to Government (Labour).
————
BEFORE THE INDUSTRIAL TRIBUNAL -CUM-
LABOUR COURT AT PUDUCHERRY
Present :Thiru G. THANENDRAN, B.COM., M.L.,
Presiding Officer.
Friday, the 22nd day of December 2017.
I.D. (L) No. 18/2016
C. Appadurai,
No. 14, Kanagavalli Street,
Pudupettai, Lawspet,
Puducherry-605 008.
. .Petitioner
Versus
The Managing Director,
M/s. Hidesign India Private Limited,
Odhiyampet Village,
Puducherry-605 110.
. .Respondent
This industrial dispute coming on 23-11-2017
before me for final hearing in the presence of
Thiruvalargal P. R. Thiruneelakandan and A. Mithun
Chakkaravarthy and R. Harinath, Counsel for the
petitioner, Thiru G. Krishnan, 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
1. This Industrial Dispute has been referred by the
Government as per the G.O. Rt. No. 93/AIL/Lab./T/2016,
dated 22-09-2016 for adjudicating the following:
(i) Whether the dispute raised by Thiru C. Appadurai
against the management of M/s. Hidesign India
Private Limited, Puducherry, over non-employment
arising out his retirement on 30-11-2015 on
499
17 April 2018]
LA GAZETTE DE L’ETAT
attaining the age of 55 years and to permit him to
retire from service on 30-11-2018 on attaining the
age of 58 years with all service and monetary
benefits is justified or not? If justified, what relief
the petitioner 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 :
It is stated that the petitioner is a workman
employed in respondent factory at Puducherry, he had
completed 26 years of continuous service in the
respondent factory. While so, the respondent vide
letter, dated 04-11-2015 terminated the petitioner's
service with effect from 30-11-2015 as he had reached
superannuation at his age of 55 on 16-09-2015.
Aggrieved by the same he had raised an industrial
dispute. It is further stated that at the time of the
petitioner's initial appointment, he was not issued any
written Appointment Order and further at the time of
his initial engagement there was no certified standing
order in the respondent establishment and the model
standing
order
framed
under
the
Industrial
Employment Standing Order (Central) Rules applicable
to the respondent establishment and accordingly, as
stated in Schedule 1-B of the Industrial Employment
Standing Order (Central) Rules, the age of retirement
of workmen is 58 years unless contrary agreed
between the workmen and the
employer
under
agreement or settlement or Award. As far as
superannuation of employee is concerned there was no
agreement or settlement or Award between the
respondent and his workers or their Trade Union
representative or petitioner. In the absence of such
arrangement stipulating the age of retirement was
followed as 58 years as stated in the Industrial
Employment Model Standing Order. It is well settled
legal position that the certified standing order shall be
in conformity with the Industrial Employment Standing
Order Act and the Rules made thereunder and
considering Sec.(2)g and Sec.3(2) of the Industrial
Employment Standing Order Act, the certified standing
order should be relating to the matter set out in the Schedule
of the Industrial Employment Standing Orders Act.
The Schedule contains only 11 items which does not
includes matter relating to superannuation or
retirement age of the workers. Therefore, the
additional item provided in the model standing orders
namely, clause 3 age of retirement applicable to all
industrial Establishment. Accordingly, the age of
superannuation of workers is 58, unless contrary is
agreed between the employer and the workmen by
way of an agreement or settlement or otherwise the age
of the retirement is settled by way of industrial Award.
Therefore, the respondent is barred from submitting
any draft standing order not in conformity with the
Industrial Employment Standing Order Act, Rules and
further the Certifying Officer also have no authority
or jurisdiction to certify any standing order not in
conformity with the model standing order or contrary
to the model standing order and that if, any standing
order certified not in conformity with the model
standing order or in contrary with the Industrial
Employment Standing Order Act, Rules, the model
standing order, the Act and the Rules prevail over the
certified standing order and the employer and
employees are bound by the model standing order and
the certified standing order not in conformity with the
model standing order would not be existence in the eye
of law. The respondent reduced the age of retirement
from 58 to 55 stating that they have obtained
permission from the Commissioner of Labour. Hence,
the objection was made before the Commissioner to
restore the age of retirement. Pursuant to which
the commissioner vide its proceeding reference
No. 3812/AIL/Lab./S/2014, dated 29-10-2015, the age
of retirement of the workers of the respondent
establishment to 58 years. The respondent relying the
alleged
certified
standing
order
and
denied
employment to the petitioner is arbitrary, illegal and
against the provision of Industrial Employment
Standing Order Act, Rules, model standing order and
further stated that the due age of the superannuation
of the petitioner is 58 years which will fall on 30-11-
2018 and the termination of petitioner’s service at 55
years of age is illegal and therefore, the petitioner is
entitled to reinstatement of service with full back
wages, continuity in service and all other attendant
benefits. The petitioner’s last drawn was ` 9,839 per
month. After he was illegally denied employment he
has not been gainfully employed anywhere in any
establishment. Therefore, prayed this Court to pass an
Award holding that the denial of employment to the
petitioner from 01-12-2015 is illegal as the age of
retirement is 58 years and direct the respondent to
reinstate the petitioner in his service with effect from
01-12-2015 with continuity of service with full back
wages and all other attendant benefits till he reaches
superannuation.
500
LA GAZETTE DE L’ETAT
[17 April 2018
3. The brief averments in the counter filed by the
respondent are as follows :
The claim statement filed by the petitioner is false
and vexatious and do not deserve any consideration
either legally or factually. The workmen employed by
the respondent are governed by the Certified standing
orders which was certified by the Commissioner of
Labour and Certifying Officer for the Union territory
of Puducherry as early as on 31st October, 1993 after
giving due notice to the Hidesign Labour Union,
Puducherry which is trade union registered under the
Trade Unions Act with Registration No.RTU/657/89.
The management and the said union participated in the
enquiry and after following the procedure as
contemplated under section 5(2) of the Act the draft
standing order submitted by the management was
certified after making necessary modifications
therein. The union in which the petitioner was also
a member had participated in the proceedings for the
initial certification however, did not prefer any appeal
as against the certification of the existing standing
orders which was certified on 31-10-1993 though, an
appeal was contempt under the Act. The standing
orders of the respondent duly certified under the
Industrial Employment (Standing Orders) Act dealt
inter alia with the provisions relating to retirement of
workers. The retirement age of 55 was fixed taking
into account of the nature of job performed by the
workers which required good eyesight, nimbleness of
the fingers, good memory and speed and as one gets
older, the above attributes begin to dimmish and this
affects the efficiency of the workers and the workmen
above the age of 55 would not be capable of
performing their duties in the expected manner owing
to problems in eye vision and other physical in
capabilities and the union which actively participated
in the enquiry taking into consideration of these
factors had also agreed for fixing the age of 55 as
retirement age. It is settled law that every amendment
to the model standing orders does not, perse, become
applicable to an industrial establishment, which has
certified standing orders. The retirement age of 55 as
per the provisions of the existing certified standing
order
would
continue
unless
certification of
amendment as contemplated under the Industrial
Employment (Standing Orders) Act is made and until
then the workmen of the respondent units including the
petitioner herein would continue to be governed by
their certified standing orders. The existing certified
standing orders of the respondent in respect of
retirement, till modified in the manner provided by
law, is binding on the petitioner and therefore, the
retirement of the petitioner in terms of the existing
certified standing orders of the respondent units is
valid in law. The existing standing orders came into
operation from 1993 and since then many workmen
were superannuated on completion of 55 years of age
without any discrimination and the petitioner
employed subsequent to the certification was thus
governed by the age of superannuation as fixed under
the certified standing orders and therefore, he was
rightly retired with effect from 30-11-2015 and the
petitioner is not entitled for any relief as sought by
him in the claim statement. Further, he can not also
take advantage of the modification in the retirement
age done at the instance of the union since the order
of the Certifying Officer was challenged by the
management in S.O. A.No. 2 of 2015 before the
Hon’ble Appellate Authority under the Industrial
Employment (Standing Orders) Act and the same is
pending. The question of denial of employment would
not arise since the petitioner was relieved from the
services on superannuation in terms of the existing
certified standing orders of the respondent company.
4. In the course of enquiry on the side of the
petitioner PW.1 was examined and Ex.Pl to Ex.P8 were
marked and on the side of the respondent RW.1 was
examined and Ex.Rl to Ex.R8 were marked.
5. The point for consideration is:
Whether the dispute raised by the petitioner against
the respondent management over non-employment
arising out his retirement on 30-11-2015 on attaining
the age of 55 years and to permit him to retire from
service on 30-11-2018 on attaining the age of 58 years
with all service and monetary benefits is justified or
not and whether the petitioner is entitled for order of
reinstatement at the respondent establishment or not?
6. Both sides are heard. The submission of both the
parties, the evidence let in by either sides and the
exhibits marked on both sides are carefully considered.
On the side of the respondent written argument was
filed and the same is carefully considered. In support
of his argument, the learned Counsel for the
respondent has relied upon the Judgment reported in
CDJ 1969 SC 210 and CDJ 2009 Ker HC 905.
7. It is the case of the petitioner that he had
completed 26 years of continuous service at the
respondent factory and on 04-11-2015, he received a
letter that he had been terminated from service with
effect
from
30-11-2015
as
he
had
reached
superannuation at his age of 55 on 16-09-2015 against
501
17 April 2018]
LA GAZETTE DE L’ETAT
which he has raised an industrial dispute before the
Labour Officer (Conciliation) on 07-12-2015 and while
pending dispute, the respondent management has denied
employment without approval of the Labour Officer
(Conciliation) and the dispute raised by the petitioner
before the Labour Officer (Conciliation) was failed and
the failure report was submitted to the Government of
Puducherry and the Government has referred the said
dispute to this Court and that he is entitled for service
up to 58 years as per Industrial Employment Standing
Order (Central) Rules applicable to the respondent
establishment and further, while at the time of
appointment, no Appointment Order was given to him
and that there was no agreement entered between the
respondent management and workmen regarding the
age of retirement and in the absence of such
arrangement stipulating the age of retirement, the age
of retirement was followed as 58 years as per
Industrial Employment model standing order and
therefore, the petitioner has to be given service up to
30-11-2018 for 58 years and hence, the termination
of petitioner's service at 55 years of age is illegal and
the respondent management cannot deny the right of
the petitioner and hence, he has to be reinstated with
back wages and he has to be permitted to serve till
30-11-2018 at the respondent factory.
8. In order to prove the case of the petitioner, the
petitioner has examined himself as PW.1 and he has
deposed that he was illegally denied employment with
effect from 30-11-2015 and that he has filed the claim
statement before this Court and that has been treated
as part and parcel of the evidence and prayed to
reinstate
him
in
service
at
the
respondent
establishment with effect from 30-11-2015 as prayed
for in the claim statement. In support of his evidence
the petitioner has exhibited Ex.Pl to Ex.P8. Ex.Pl is
the copy of petitioner’s EPF details. Ex.P2 is the copy
of petitioner’s Pay Slip for the month of June, 2014.
Ex.P3 is the copy of petitioner’s ESI card. Ex.P4 is
the copy of petitioner's relieving order. Ex.P5 is the
copy of the letter sent by the petitioner to the
respondent management. Ex.P6 is the copy of the
letter by the respondent to the petitioner. Ex.P7 is the
copy of the industrial dispute raised by the petitioner
before the Conciliation Officer. Ex.P8 is the copy of
the order passed by Commissioner of Labour-cum-
Certifying Officer regarding age of retirement. These
documents would reveal the fact that the petitioner had
been in service at the respondent establishment up to
November 2015 and the information regarding the
order of retirement was served to him on 04-11-2015
and the petitioner has raised the industrial dispute
before the Labour Conciliation Officer on 07-12-2015
and the Commissioner of Labour-cum-Certifying
Officer has passed an order enhancing the age of
retirement from 55 years to 58 years on 29-10-2015
in the standing order of the respondent establishment.
9. On the other hand, to prove their case the
respondent management has examined RW.1 and he has
deposed that he is the authorized representative of the
respondent management and that on 31-10-1993 the
standing order of the respondent establishment was
certified by the Commissioner of Labour, wherein, it
is stated that he passed the said order after giving
reasonable opportunity to the union as well as the
management and he certified the same after making
necessary modifications therein in accordance with
section 5(3) of the Industrial Employment (Standing
Order) Act and the retirement age was fixed as 55 years
and that the nature of job performed by the workers
in the respondent company requires good eyesight,
nimbleness of the fingers, good memory and speed and
as one gets older, the above attributes begin to
diminish and this affects the efficiency of the workers
and the workmen above the age of 55 would not be
capable of performing their duties in the effective
manner owing to problems in eye vision and other
physical in capabilities and the union which actively
participated in the enquiry taking into consideration all
these factors had also agreed for fixing the age of 55
as retirement age and that from 1993 many workmen
were superannuated on completion of 55 years of age
without any discrimination and the petitioner also
employed subsequent to the certification and that
therefore, the petitioner was rightly retired with effect
from 30-11-2015 and the petitioner is not entitled for
any reinstatement as claimed by him and that he cannot
take advantage of the modification in the retirement
age done at the instance of the union since the order
of Certifying Officer was challenged by the
management in S.O.A. No. 02 of 2015.
10. In support of their case the respondent
management has exhibited Ex.Rl to Ex.R3. Ex.Rl is the
certified true copy of the Extract of the resolution
passed at the meeting of the Board of Directors of
respondent Company. Ex.R2 is the copy of the
certified standing orders of the respondent company.
Ex.R3 is the copy of memorandum of appeal in S.O.A.
2/2015. From the oral evidence of RW.l and the
exhibits marked on the side of the respondent it is
established by the respondent management that the
respondent company has certified standing order from
31-10-1993 and that the respondent management has
filed an Appeal against the order of the Commissioner
of Labour who has modified the standing order.
502
LA GAZETTE DE L’ETAT
[17 April 2018
11. From the evidence of both the parties it can be
seen that the following facts are admitted by either
sides. Originally, the respondent management has
certified standing order from 31-10-1993 wherein, the
retirement age was only 55 years to the workers of the
respondent establishment and as per standing order the
date of retirement of the petitioner was 30-11-2015
and subsequent to the intimation given to him, the
petitioner has raised the industrial dispute before the
Conciliation Officer and the union also has filed the
petition before the Labour Commissioner to modify
the standing order of the respondent establishment and
after hearing both sides the learned Commissioner has
passed an order enhancing the retirement age as 58
years against which the respondent management has
filed an Appeal before this Court challenging the said
order enhancing the age of retirement from 55 years
to 58 years. Now, it is to be decided whether the
petitioner is entitled for reinstatement as claimed by
him in the claim statement and whether he is entitled
to work till 58 years as claimed by him. On this
aspect, the evidence and records are carefully
considered.
12. The evidence of PW.l in his cross examination
is carefully considered which runs as follows;
“.......
Standing order
Standing order
Labour Commissioner
Labour Commissioner
S.O.A. 02/2015 ”
From the above evidence, it is clear that the
Commissioner of Labour-cum-Certifying Officer has
enhanced the age of retirement from 55 years to
58 years by modifying the standing order and the
management has also filed an Appeal before this Court
and further it is learnt from the above evidence that
no one has been permitted to serve at the respondent
establishment after 55 years till date.
13. Admittedly, the petitioner was not terminated by
the respondent management and only he was given
retirement on 30-11-2015 and the order has been
passed by the Commissioner of Labour modifying the
standing order to the effect that enhancing the
retirement age from 55 years to 58 years on
29-10-2015. Furthermore, it is clear from the
contention of the petitioner that he sought for order
of reinstatement only on the foot of the order of
Labour Commissioner modifying the standing order of
the respondent establishment to enhance the retirement
age. However, the same was challenged by the
respondent management before this Court and the same
is also posted for orders today wherein, this Court has
also decided the Appeal today which was filed
challenging the modification of the standing order in
which the age of retirement was enhanced from
55 years to 58 years and the Appeal was allowed by this
Tribunal and the said order of Commissioner of labour
was set aside by this Court since the said modification
order was passed by the Labour Commissioner in
violation of the 12(3) settlement arrived at between
the workers union and the respondent management on
31-01-2012 under memorandum of settlement.
14. Furthermore, the learned Counsel has relied
upon the Judgment reported in CDJ 2009 Ker HC 905,
wherein, the Hon’ble High Court has observed that,
“The unions agree that during the period of
operation of this settlement, they shall not raise any
demand having financial burden on the Corporation
other than bonus provided that this clause shall not
affect the rights and obligations of the parties in regard
to matters covered under section 9-A of the Industrial
Disputes Act, 1947.
In that case also the Certifying Officer allowed the
modification. The appellate authority affirmed the
revision with a slight modification. Affirming the
judgment of the High Court relying on clauses 19 and
21 of the memorandum of settlement, the Supreme
Court held thus in paragraphs 9 and 10.
503
17 April 2018]
LA GAZETTE DE L’ETAT
“9. The settlement does not make any specific
mention about the age of retirement. Clause 19 of the
settlement, however, provides that such terms and
conditions of service as are not changed under this
settlement shall remain unchanged and operative for
the period of the settlement. The age of retirement
prescribed by clause 20 of the Certified Standing
Orders was undoubtedly a condition of service which
was kept intact by clause 19 of the settlement....10....
The argument that the upward revision of the age of
superannuation will not entail any financial burden
cannot be accepted. The High Court rightly points out:
“Workmen who remain in service for a longer period
have to be paid a large amount by way of salary, bonus
and gratuity than workmen who may newly join in place
of retiring men”. The High Court was, therefore, right
in concluding that the upward revision of the age of
superannuation would through an additional financial
burden on the management in violation of clause 21
of the settlement. Therefore, during the operation of
the settlement it was not open to the workmen to
demand a change in clause 20 of the Certified Standing
Orders because any upward revision of the age of
superannuation would come in conflict with clauses 19
and 21 of the settlement. We are, therefore, of the
opinion that the conclusion reached by the High Court
is unassailable.”
The clauses quoted above from Exts.P7, P8 and P9
settlements between the parties in this case are in pari
materia with clauses 19 and considered by the
Supreme Court. It is not disputed before me that the
petitioner company is in dire financial straits. It is also
not disputed before me that the last of the settlement
was in force at the time of passing the impugned
orders. Therefore, the ration of the decision of the
Supreme Court in Barauni Refinery's case (Supra)
squarely applies to the facts of this case on all fours.
Therefore, I have no option but, to decide this case in
accordance with the ration of that decision.
Therefore, following the decision of the Supreme
Court, I allow this Writ Petition and set aside the
impugned orders to the extent it allows the
modification of clause 48 of Ex.Pl Standing orders.
However, the wages paid to the employees who
continued in service by virtue of the interim orders of
this Court for the period subsequent to their attaining
55 years shall not be recovered from them. The
extended period of service till today shall be treated
as extension granted in exercise of the discretion of
the management as provided in clause 48 of Ext.Pl
Standing orders.”
From the above observation of the Hon’ble High
Court, it is clear that whenever there is settlement
between the employer and employees and no
modifications can be made in the standing order
against the clause of the settlement arrived at between
the employer and employees giving additional financial
burden on the management. It is clear that enhancement
of retirement age of the worker in the Industry which
would create financial burden to the Industry since the
entire employee has to be given more wages than the
new workers and if, the entire workman is in service
for longer period they have to be paid large amount of
wages, bonus and gratuity than the workmen who may
newly joined in the place of retiring man which would
give additional financial burden on the management in
violation of the settlement arrived under section 12(3)
of the ID Act. Furthermore, more than 50 workers
have been retired from service at age of 55 as per the
standing order. As per the above observation of the
Hon’ble High Court, the said Appeal in S.O.A. No.02
of 2015 was allowed by this Court and the order of the
Commissioner of Labour enhancing the age of
retirement from 55 years to 58 years was set aside by
this Court. As this Court allows the said Appeal and set
aside the order of the Commissioner of Labour, this
claim petition filed by the petitioner automatically
become infractuous that is the petitioner would not
seek any remedy on the foot of the said modification
of the standing order since the age of retirement is 55
years as per the standing order of the respondent
establishment and that therefore, it is to be held that
the industrial dispute raised by the petitioner against
the respondent management over non-employment
arising out his retirement on 30-11-2015 on attaining
the age of 55 years and to permit him to retire from
service on 30-11-2018 on attaining the age of 58 years
with all service and monetary benefits is unjustified
and as such, the petitioner is not entitled for any relief
as claimed by him in the claim statement and the
petition is liable to be dismissed.
15. In the result, the petition is dismissed by
holding that the industrial dispute raised by the
petitioner against the respondent management over non-
employment arising out his retirement on 30-11-2015
on attaining the age of 55 years and to permit him to
retire from service on 30-11-2018 on attaining the age
of 58 years with all service and monetary benefits is
unjustified and the petitioner is not entitled for any
order of reinstatement at the respondent establishment
as claimed by him in the claim statement. No cost.
Dictated to the Stenographer, transcribed by her,
corrected and pronounced by me in the open Court on
this the 22nd day of December, 2017.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-Labour Court,
Puducherry.
504
LA GAZETTE DE L’ETAT
[17 April 2018
List of
petitioner’s witness:
PW.1— 18-07-2017 —
C. Appadurai.
List of petitioner’s exhibits:
Ex.Pl
— 2014-2015— Copy of petitioner’s EPF
details.
Ex.P2
— June,
— Copy of petitioner’s pay
2014
slip.
Ex.P3
— —
— Copy of petitioner’s ESI
card.
Ex.P4
— 04-11-2015—Copy
of
petitioner’s
relieving order.
Ex.P5
— 18-11-2015—Copy of the letter sent by
the petitioner to the
respondent management.
Ex.P6
— 30-11-2015—Copy of the letter by the
respondent
to
the
petitioner.
Ex.P7
— 07-12-2015—Copy of the industrial
dispute raised by the
petitioner
before
the
Conciliation Officer.
Ex.P8
— 29-10-2015—Copy of the order passed
by
Commissioner
of
Labour-cum-Certifying
Officer regarding age of
retirement.
List of respondent’s witness:
RW.1— 12-09-2017 —
T. Rajkumar.
List of respondent’s exhibits:
Ex.Rl
— 16-12-2015— Certified true copy of
the
Extract
of
the
resolution passed at the
meeting of the Board of
Directors of respondent
Company.
Ex.R2
— 31-10-1993— Copy of the certified
standing orders of the
respondent company.
Ex.R3
— 17-11-2015— Copy of memorandum
of appeal S.O.A. 2/2015.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal,
Puducherry.
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