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No. 37 Poudouchéry Mardi 11 Septembre 2018 (20 Bhadra 1940)
No. Puducherry Tuesday 11th September 2018
➢ S OM M A I R E S C O N T E N T S
Page Page
➢ .. 11 3 8 Sentence arbitral du Travail .. 11 3 8 Award of the Labour Court .. 11 3 8
de Tribunal.
• .. 11 5 0 Notifications du Gouvernement .. 11 5 0 Government Notifications .. 11 5 0 .. 1181 Etablissements dangereux .. 1181 Dangerous Establishments .. 1181 .. 11 8 4 Annonces .. 11 8 4 Announcements .. 11 8 4
[ 1137 ]1 13 8 LA GAZETTE DE L'ETAT [11 September 2018 GOVERNMENT OF PUDUCHERRY
Versus
LABOUR DEPARTMENT
(G.O. Rt. No. 81/AIL/Lab./T/2018,
Puducherry, dated 16th May 2018)
NOTIFICATION
Whereas, an Award in I.D. (T) No. 25/2012, dated 26-03-2018 of the Labour Court, Puducherry in respect of the industrial dispute between management of M/s. Hindustan Unilever Limited., Tea Factory, Kirumapakkam, Puducherry and HLL Tea Workers Welfare Union and Hindustan Unilever Tea unit Employees Union over charter of demands 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).
————
The Managing Director, M/s. Hindustan Unilever Limited, Tea Factory, No. 9(3), Cuddalore Road, Kirumapakkam, Puducherry-607 402.
. . Respondent.
This industrial dispute coming on 06-03-2018 before me for final hearing in the presence of Thiruvalarkal P.R. Thiruneelakandan and A. Mithun Chakkaravarthy, Counsel for the petitioners, and Thiruvalarkal L. Sathish, T. Pravin, V. Veeraragavan, Advocates 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. 141/AIL/Lab./J/2012, dated 23-08-2012 for adjudicating the following:-
(a) Whether the dispute raised by the unions HLL Tea Workers Welfare Union and Hindustan Unilever Tea Unit Employees Union against the management of M/s. HUL Tea Factory, Puducherry, over charter of demands to advise the management such as (i) not to procure the blended tea outside the factory and carry the manufacturing process of blending of tea in the factory as per licence granted to the factory,
BEFORE THE INDUSTRIAL TRIBUNAL-CUM-
LABOUR COURT AT PUDUCHERRY
Present : Thiru G. THANENDRAN, B.COM, M.L., Presiding Officer,
Monday, the 26th day of March, 2018
(ii) to pass necessary order not to alter the weight of the blended tea bag to 550 kgs. against the agreed terms of the 12(3) settlement that too without issuing prior notice to the workers as required under section 9 of the Industrial Disputes Act, 1947.
I.D. (T) No. 25/2012
1. HLL Tea Workers Welfare Union,
Rep., by its Secretary, Reg. No. 1483/RTU/2007, No. 34, Madha Koil Street, Korkkumedu, Thavalakuppam, Kattupalayam Post, Puducherry.
2. Hindustan Unilever Tea unit
Employees Union, Rep., by its President, Reg. Office at No. 44, Ellaiamman Koil Street, Korkaadu and Post, Villianur, Puducherry-110 . . Petitioners (iii) to withdraw the suspension order, charge memo against the worker Thiru S. Rajendirane and (iv) to pass necessary order to lift the illegal lockout against the entire worker and pay wage to the workers during the period of illegal lockout is justified?
(b) Whether the dispute raised by the unions against the management of M/s. HUL Tea Factory regarding the lockout declared by the management is illegal is justified? If so, to give appropriate direction?
(c) To what other relief the workmen represented by the unions are entitled to?
11 September 2018] LA GAZETTE DE L'ETAT 1139victimize the office bearer of the petitioner union a n d t he Se c r e t a r y o f t h e fi r s t p e t it i o n er u ni o n Thiru Rajendirane was suspended from service from 24-05-2012 alleging that he had not allowed the respondent to remove the crane and 550 kgs. blended tea bag which was involved in the accident and that the petitioner union secretary Thiru Rajendirane had nothing to do with the accident and the workers strongly condemn the victimization act of the respondent against the said secretary of the first petitioner union and an industrial dispute was raised before the Labour Officer (Conciliation) over the issue of procurement of blended tea outside the factory, alteration of weight of the blended tea bags in the packing area and to declare the illegal lockout of the respondent factory from 24-05-2012, the issue over the suspension, charge memo victimization against the worker Thiru S. Rajendirane and that the stoppage of manufacturing process of blending of Tea and procured the blended Tea outside the factory and installation of automatic machines and increase the weight of tea bags from 300 kgs. to 550 kgs. in the name of rationalization certainly lead to retrenchment of existing workers and it shall not be done without giving prior notice to the workers or trade union and that the said Thiru Rajendirane has not committed any misconduct as alleged by the respondent management and though the said Thiru Rajendirane is the protected workman the act of the respondent management is unfair labour practice and only to victimize the members of the petitioner union the action has been taken by the management and therefore, they have prayed to pass an award holding that the stoppage of manufacturing process of blending of tea and procurement the blended tea outside factory and alter the weight of blended teabag from 300 kgs. to 550 kgs. and installing automatic machine, without giving any prior notice to the workers trade union is illegal and violation of section 9 and section 33 A of Industrial Disputes Act and also prayed to pass an award holding that the suspension and charge memo against the worker Thiru Rajendirane is illegal and the lockout of the respondent factory from 24-05-2012 is also illegal and to pay wages to union members.
2. The petitioner unions have submitted the claim statement before this Court stating that they are the registered trade union in the respondent establishment who engaged in manufacturing process of blending of packaging of tea and that settlement was arrived on 07-05-2007 for 4 years period between the management and the petitioner unions with regard to the wage revision and other allowances and certain other issues relating to the service conditions of the workers and the respondent management did not consider the petitioners demand and suppress the demand of the petitioners and the negotiation was failed and therefore, the petitioner unions raised an industrial dispute over the charter of demand for wage revision and other allowances before the Labour Officer (Conciliation) which was ended in failure and the same was pending before this Court and while pending of the said dispute the respondent without consulting with the workers or with the trade union unilaterally decided to increase the production level and retrench the existing man power by means of rationalization and all of sudden they stopped the manufacturing process of blending of Tea and procured the blended tea directly from the market and thereby, the considerable number of workers employed in the manufacturing process were rendered jobless and were kept idle and their services were likely to reduce the workers working in Tea pack area, the tea weight of the tea pack which was used in the packing area was increased from 300 kgs. to 550 kgs. and without giving any notice to the workers and the Trade union, automatic packing machines, cranes, etc., in the factory was installed likely to retrenchment of work force and the increase of tea bag weight was likely to harm the workers who were handling and lifting the tea bags from ground floor to machine hopper area and therefore, the same was objected by the employees and the workers Vijayakumar and M. Sathyanathan were forced to lift the 550 kgs. jumbo bag of blended tea to the machine hopper area, due to over weight the tea bag and the crane fell down on the workers and they got struck under the crane and subsequently, they have been rescued and later they sent to hospital for treatment and immediately the respondent stopped the production and expelled out the workers working in the said shift and the factory main gate was closed and no workers were permitted to enter into the factory from 23-05-2012 general shift and the Inspector of factory conducted spot inspection and passed an order prohibiting the respondent to handle 550 kgs. blended tea bag in the packing area as it is unsafe to the workers and the respondent management coerce the workers and
3. On the other hand, the respondent management has filed the counter statement stating that the petitioner unions have no locus standi to raise the industrial dispute in view of majority of its workers have already agreed to close the present dispute after the comprehensive settlement of all their disputes with the respondent management and that the petitioner trade unions do not even have the required strength of the members and they have only 14 workers as its1 14 0 LA GAZETTE DE L'ETAT [11 September 2018 OS. No. 809/2011 and that there are lot of variations between claim statement made by the petitioner unions and the petition presented by petitioners to the Labour Officer (Conciliation) and there is glaring contradictions in the statements of petitioners on different occasion exposes the evil mindset of petitioner unions and their untrustworthiness and that the respondent expelled the workers from the factory main gate and prohibited the workers from entering into the factory from 23-05-2012 and there was an illegal lock out by the respondent is denied and it is totally false and perverse and that the workers alone conducting illegal strike and threatening the workers who dared resume work and there was no lockout committed by the respondent.
4. In the course of enquiry on the side of the petitioner PW.1 was examined and Ex.P1 to Ex.P39 were marked and on the side of the respondent RW.1 was examined and Ex.R1 to Ex.R24 were marked. Both side arguments were heard. The pleadings of the parties, the evidence let in by both sides and the exhibits marked on either side are carefully considered. On the side of the respondent written argument was filed and the same was also carefully. In support of his contention the learned Counsel for the respondent has relief upon the Judgment reported in CDJ 2011 MHC 1952, CDJ 2013 Cal HC 667 and (1995 1 LLJ 246).
5. The point for consideration is:
Whether the dispute raised by the petitioner unions against the respondent management, over the charter of demands to advise the management such as not to procure the blended tea outside the factory and carry the manufacturing process of blending of tea in the factory as per licence granted to the factory and not to alter the weight of the blended tea bag to 550 kgs. against the agreed terms of the 12(3) settlement that too without issuing prior notice to the workers as required under section 9 A of the Industrial Disputes Act and to withdraw the suspension order, charge memo issued against the worker Thiru Rajendirane and to lift the illegal lock out against the entire worker and pay wage to the workers during the period of illegal lockout and to declare that the respondent management has committed illegal lockout is justified or not and if, justified, what is the relief entitled to them.
6. On the point:
members inclusive of its office bearers and when the pendency of this dispute, workers of respondent factory formed yet another registered union by name National Employees Trade Union and they entered into a comprehensive Long Term Settlement on 04-03-2014 with the respondent management resolving all their disputes on wage revision and other issues and the said settlement is operative for the next four years and until such time a new settlement is signed and the said settlement was signed by 10 office bearers of said union which was specifically, agreed by the said Union that they shall take all steps to close the dispute in ID(T). No. 4/2012 and ID(T). No. 25/2012 and the said Long Term Settlement was individually accepted and ratified by 107 workers out of 121 permanent workers by giving individual letters on various dates and they have also individually agreed to close the industrial disputes since the majority of 107 workers out of 121 workers have settled their disputes and grievances p er tain ing t o th e pr esent industrial dispute with t h e r e s p o n d e n t m a n a g e me n t a n d t h a t t h e s a i d Thiru Rajendirane is apprehensive of facing a free and fair domestic enquiry for the grave charges of misconduct levelled against him and once the majority of workers have agreed to withdraw the present industrial dispute the office bearers of the petitioner unions cannot agitate the present dispute for their individual benefits against the wishes of majority workers and insist on adjudication of dispute on merits and the dispute shall be deemed to have been settled and closed by mutual consensus between the respondent and majority of its workers and hence, the disputed has to be dismissed as settled out of Court and that the charge-sheet and suspension of the said Thiru Rajandrane is not an industrial dispute and it has not become infructuous and that the blending activities were never stopped in toto and there was never any retrenchment of workers and that the respondent had introduce new machines increased the weight of baggage in tea packing area from 300 kgs. to 550 kgs. is true and that the accusations and statements made by petitioners posing a dangerous picture because of such increase in the weight are sheer exaggerations and distortion of actual facts and that the respondent is fully justified and authorized to introduce any new machines and alter the manufacturing process to increase its productivity and pave way for higher income to its workers and that on 23-05-2012 the 550 kgs. of bag slipped from the crane because of excess weight and it fell on two workers, who were rendered unconscious and were taken to hospital is denied and it is a false statement made by the petitioner unions in the present claim petition which is in total contrast to their stand in Civil Suit in
In order to prove the case of the petitioner union the Secretary of the first petitioner union was examined as PW.1 and he has stated all the facts which are in the claim statement. The vital evidence of the PW.1 is that 121 permanent workers were working at11 September 2018] LA GAZETTE DE L'ETAT 1141 the respondent establishment apart from the contract workers and there was a settlement arrived at between the management and the petitioner union on 07-05-2007 for the period of four years which came to an end on 06-05-2011 and the petitioner union has submitted the charter of demands on 11-02-2011 which was not considered by the management and the industrial dispute was raised while it was pending in violation of 12(3) settlement the respondent management has changed the service condition by allowing 550 kgs. blended tea bag and therefore, the union has raised its objection on 24-10-2011 which was not accepted by the management and that therefore, the complaint was made before the Labour Officer (Conciliation) on 06-03-2012 for the change of service condition made by the management and on 23-05-2012 in the second shift workers Vijayakumar and Sathyanathan and one crane operator Arulraj were forced to handled the 550 kgs. blended tea bag which was fell down at about 04.50 p.m., and they have sustained injuries and therefore, the workers and the union secretary Thiru Rajendirane have objected to handle the said tea bags and it was informed to the Labour Department and submitted the report to the Labour Inspector on 24-05-2012 and therefore, on 24-05-2012 the factory was inspected by the Factory Inspector and issued show cause notice to the management and therefore, the respondent management has issued notice to him on 29-05-2012 and issued memo to him asking explanation and on 31-05-2012 the dispute was raised before the Conciliation Officer and he replied for the memo on 02-06-2012 along with the explanation and thereafter, the Factory Inspector has passed an order against the respondent management restraining them to handle 550 kgs. blended tea bags on 11-06-2012 and that the management has issued the domestic enquiry notice on 26-06-2012 and therefore, the petitioner union has raised the industrial dispute wherein, the conciliation negotiation was taken place and subsequently failed and that the respondent management took disciplinary p r o c e e d i n g s a n d c o mm e n c e d d o m e s t i c e n q u i r y on 14-07-2012 and the reference has been sent by the Government to this Tribunal regarding the above dispute and the act of the respondent management is only to victimize him and therefore the Hon'ble High Co ur t was p leased to stay the d o mestic e nq uir y on 05-06-2013 and thereafter on 06-11-2013 the report of the domestic enquiry was served by the management to him.
respondent and Labour Officer, dated 24-10-2011. Ex.P3 is the copy of petitioner union complaint to Labour Officer, dated 06-03-2012. Ex.P4 to Ex.P6 are the copy of petitioner union's members namely Arulraj, Vijayakumar and Sathyanathan letters to the respondent, dated 23-05-2012. Ex.P7 is the copy of petitioner union complaint to the Inspector of Factories, dated 24-05-2012. Ex.P8 is the copy of petitioner union complaint to the Labour Officer (Conciliation), dated 24-05-2012. Ex.P9 is the copy of petitioner union office bearer namely Thiru Rajendirane suspension order, dated 24-05-2012. Ex.P10 is the copy of petitioner union letter to the respondent, dated 24-05-2012. Ex.P11 is the copy of petitioner union letter to the respondent, dated 24-05-2012. Ex.P12 is the copy of Inspector of Factories inspection report, dated 25-05-2012. Ex.P13 is the copy of Inspector of Factories letter to the management (Show cause notice), dated 25-05-2012. Ex.P14 is the copy of petitioner union office bearer namely Thiru Rajendirane charge-sheet-cum-show cause notice, dated 29-05-2012. Ex.P15 is the copy of petitioner union raised dispute before the Labour Officer (Conciliation) ID.(LOC) No.1463 of 2012 on 31-05-2012. Ex.P16 is the copy of petitioner union office bearer Thiru S. Rajendirane reply to the charge-sheet on 02-06-2012. Ex.P17 is the copy of conciliation notice, dated 04-06-2012. Ex.P18 is the copy of Inspector of Factories (Prohibition order), dated 11-06-2012. Ex.P19 is the copy of petitioner union general body meeting passed a resolution on 24-06-2012. Ex.P20 is the copy of Thiru Rajendirane domestic enquiry notice, dated 26-06-2012. Ex.P21 is the copy of conciliation failure report in I.D. No.1463/ 2012/LO(c)/AIL, dated 27-06-2012. Ex.P22 is the copy of Enquiry Officer notice, dated 05-07-2012. Ex.P23 is the copy of Thiru Rajendirane reply to the Enquiry Officer and respondent, dated 14-07-2012. Ex.P24 is the copy of Thiru Rajendirane reply to the Enquiry Officer, dated 10-08-2012. Ex.P25 is the copy of Enquiry Officer notice and enquiry proceedings, dated 18-08-2012. Ex.P26 is the copy of Government reference, dated 23-08-2012. Ex.P27 is the copy of Thiru Rajendirane reply to the Enquiry Officer, respondent, dated 05-08-2012. Ex.P28 is the copy of Court notice, dated 17-09-2012. Ex.P29 is the copy of Enquiry Officer notice, dated 20-09-2012. Ex.P30 is the copy of Enquiry Officer notice and enquiry proceedings, dated 20-10-2012. Ex.P31 is the copy of Enquiry Officer notice and attachment, dated 25-01-2013. Ex.P32 is the copy of Thiru Rajendirane reply to the Enquiry Officer, dated 02-02-2013. E x . P 3 3 i s c o p y o f r e s p o n d e n t l e t t e r t o t h e Thiru Rajendirane, dated 06-11-2013. Ex.P35 is the copy of legal notice to the respondent, dated 11-11-2013.
7. In support of their oral evidence the petitioner unions have exhibited Ex.P1 to Ex.P39. Ex.P1 is the copy of the union registration certificate, dated 06-10-2010. Ex.P2 is the copy of petitioner union complaint to1 14 2 LA GAZETTE DE L'ETAT [11 September 2018 Ex.P36 is the copy of High Court passed an order in WP.No.15079 of 2013 on 25-07-2014. Ex.P37 is the copy of respondent's enquiry notice, dated 05-09-2014. Ex.P38 is the copy of Thiru Rajendirane reply to the respondent, dated 11-10-2014. Ex.P39 is the copy of the letter given by the respondent to the President of HLL Tea Workers Welfare union, dated 28-06-2017.
9. On the other hand the respondent management has examined the Senior Executive-HR of the respondent as RW.1 who has stated all the facts stated in the counter statement and in support of their case the respondent management has exhibited Ex.R1 to Ex.R24. Ex.R1 is the copy of chief affidavit filed by HLL Tea Workers Welfare union (Tea Division) in OS. No.809/2012, dated 03-07-2012. Ex.R2 is the copy of written statement filed by HLL Tea Workers Welfare union (Tea Division) in OS. No. 809/2012, dated 02-07-2012. Ex.R3 is the copy of plaint filed by HLL Tea Workers Welfare union (Tea Division) & Hindustan Unilever Theyilai Pirivu Thozhilalar sangam in OS.No.809/2012. Ex.R3 is the copy of docket order in I.A. No.1555/2012 in OS.No.809/2012, dated 03-07-2012. Ex.R5 is the copy of memorandum of settlement under section 12(3) of the Industrial Disputes Act, 1947, dated 07-05-2007. Ex.R6 is the copy of respondent factory licence. Ex.R7 is the copy of letter of authorization to Mr.Karthick working as Sr. Executive HR in respondent factory, dated 10-04-2017. Ex.R8 is the copy of the certified standing orders of the respondent's factory, dated 15-03-2004. Ex.R9 is the copy of the reply letter given by respondent to Conciliation Officer over the issue of alleged change in service conditions given by 1st petitioner union, dated 14-06-2011. Ex.R10 is the copy of the reply, letter given by the respondent to 1st petitioner referring to notice of usage of 550 kgs. tea bag process and its Tamil translation, dated 23-01-2012. Ex.R11 is the copy of the reply letter given by the respondent to the 1st p etitioner o ver the imp lementatio n o f 550 kgs. tea bags with its Tamil translation. Ex.R11 is the copy of the reply letter given by the respondent to the Conciliation Officer in respondent to complaint given by 1st petitioner union alleging violation of 12(3) settlement, dated 07-05-2007. Ex.R13 is the copy of the reply letter given by the management to Inspector of Factories concurring to make suitable changes for using 550 kgs. bags, dated 12-04-2012. Ex.R14 is the copy of reports of examination done by expert Engineers and valuers on Hopper feeding EOT crane, dated 19-05-2012. Ex.R15 is the copy of the letter given by respondent to Conciliation Officer informing him about the illegal strike by the petitioners commenced by them alongwith photos (4 Nos.) on 24-05-2012. Ex.R16 is the copy of the letter given by the respondent to SHO Kirumambakkam for providing protection to respondent's factory in view of illegal strike by petitioner union on 24-05-2012. Ex.R17 is the copy of reports of examination done by expert Engineers and valuers on Hopper feeding EOT crane, dated 24-05-2012. Ex.R18 is the copy of the 8. The above documents would evident that the petitioner union has made a complaint to the management on 24-10-2011 that without negotiating the workers the management has raised the weight of the blended tea bag from 300 kgs. to 550 kgs. against the terms of the 12(3) settlement and on 06-03-2012 the union has raised an industrial dispute for the said change of service condition that raising the blended tea bag from 300 kgs. to 550 kgs. and some of the employees namely Arulraj, Vijayakumar and Sathyanathan have made a complaint to the manager of the respondent establishment that they would not handle 550 kgs. bags and thereafter, the union has made a complaint on 24-05-2012 to the Inspector of Factories regarding the alleged accident and show cause notice was issued by the Inspector of Factories to the respondent management on 25-05-2012 regarding the contravention alleged to have been committed by the factory stating that the management has not provided adequate information, instruction, training and supervision as are necessary to ensure health and s a f e t y w h i l e h a n d l i n g t h e j u m b o b a g s a n d Thiru Rajendirane was given charge-sheet-cum-show cause notice and on 31-05-2012 the petitioner unions have filed the claim statement before the Labour Officer (Conciliation) to withdraw the suspension order, charge memo against the worker Thiru Rajendirane in connection with the abovesaid incident of entire workers and to lift the illegal lockout and the said Thiru Rajendirane submitted explanation for the charge memo and that the conciliation was failed and further it is learnt from the records that the Inspector of Factories has inspected the factory of the respondent and has issued an order prohibiting further, handling of materials of 550 kgs. jumbo bags under section 92 of the Factories Act and thereafter on 24-06-2012 the general body meeting was conducted by the union and passed a resolution to ask the management to withdraw t h e s us p e ns io n o r d er p a ss ed a g ai ns t t he wo r ke r Thiru Rajendirane and to withdraw the charge memo and on 26-06-2012 domestic enquiry notice was issued to Thiru Rajendirane by the management and the conciliation proceedings were failed for which the Labour Department has submitted the report on 27-06-2012 and that the worker Thiru Rajendirane has submitted a reply on 02-02-2013 before the Enquiry Officer.
11 September 2018] LA GAZETTE DE L'ETAT 1143equipment breakdown service report given by the Cranedge India Pvt., Ltd., to respondent, dated 26-05-2012. Ex.R19 are the copies of the notices issued by respondent to employees warning them of consequences of illegal strike by petitioner union from 23-05-2012 to 28-06-2012. Ex.R20 is the copy of the reply letter given by the respondent to the show-cause notice of Inspector of factories, dated 25-02-2012. Ex.R21 is the copy of the letter given by the respondent to Labour Commissioner informing him about the ongoing illegal strike by petitioners, dated 15-06-2012. Ex.R22 is the copy of the 18(1) settlement arrived between the respondent and National employees trade union, dated 04-03-2013. Ex.R23 are the copies of the individual undertaking given by 107 employees accepting 18(1) settlement, dated 04-03-2013 from 05-03-2012 to 13-05-2014. Ex.R24 are the copies of the minutes of the meeting between the respondent and the joint negotiation committee comprising of three out of four unions in respondent's factory.
11. Though the respondent management to disprove the case of the petitioner union exhibited Ex.R1 to Ex.R24, out of which Ex.R22 to Ex.R24 are the vital documents. Ex.R22 is the copy of 18(1) settlement arrived at between the respondent management and National Employees Trade Union wherein, it has been elaborately discussed regarding earlier dispute raised by the other petitioner union and conciliation proceedings was taken place and conciliation report was submitted by the conciliation on 29-03-2012 and that there was a negotiation taken place based on the representation of the employees, dated 25-02-2013 regarding their charter of demands, dated 02-03-2013 and settlement was arrived at between the parties and signed by them on 04-03-2013 and wages were revised and settlement was signed with regard to the scale of pay, production incentives, bonus, festival advance, uniform, leave, annual increment and to give increase in the basic pay of the permanent employees, dearness allowances and other allowances. Ex.R23 is the vital document wherein, 107 employees have signed individually agreed and accepted the settlement executed between the National Employees Trade Union and the management and individual undertakings were executed by them to the management agreeing and accepting the terms and conditions of the 18(1) settlement arrived at between the said parties and the said document would reveal that out of 121 employees except 14 all other employees of the respondent establishment have agreed to the said 18(1) settlement wherein it was also agreed by 107 employees that to with draw the dispute raised by them in I.D. (T) No. 4/2012 and I.D. (T) No. 25/2012. Ex.R24 would reveal that there was a meeting between the employees of the respondent establishment and the respondent management and they have negotiated the above dispute and settlement under section 18(1) of the Act was arrived at between them. Therefore, the main contention of the respondent management that they have entered 18(1) settlement with the majority of 107 workers out of 121 workers and the office bearers of the petitioner unions alone have not accepted 18(1) settlement and as the majority of the union members have accepted the settlement and employees are receiving the revised wages as agreed in the settlement after agreeing to withdraw the dispute in I.D. (T) No. 4/2012 and I.D. (T) No. 25/2012, these petitioner unions have no right to continue the dispute seeking relief which are prayed in the claim statement.
12. It is an admitted fact that there were 121 permanent workers working at the respondent establishment and the documents exhibited by the respondent would go to show that out of 121 workers 10. The above documents would evident that the respondent management has filed a Suit in O.S.No. 809/2012 before the III Additional District Munsif, Puducherry for the order of permanent injunction against the union restraining them to conduct any strike, agitation, demonstration, raising any slogans within the premises or within the area of 500 metres from the entrance of this factory in the month of July, 2012 and that there was a memorandum of settlement executed between the union and the management on 07-05-2007 and that the respondent establishment has certified standing order and that there was conciliation proceedings wherein, the respondent management has submitted several reply letters and that there was failure in crane machines and that was examined by the expert engineers and valuers and report was given by them and equipment breakdown report was also given by them and notices were issued to the employees against the alleged illegal strike by the management warning them of consequences of illegal strike by petitioner union and that the management has replied for the show cause notice issued by the Factory Inspector and it was reported by the management to the Labour Commissioner informing about the ongoing strike by the members of the petitioner union and on 04-03-2012 the settlement under section 18(1) was arrived at between the employees of the respondent establishment and National Employees Trade Union and individual undertakings were given by 107 employees accepting the 18(1) settlement on various dates from 05-03-2012 to 13-05-2014 and meeting was held between the respondent and the joint negotiation committee comprising of three out of four unions in the respondent's factory.
1 14 4 LA GAZETTE DE L'ETAT [11 September 2018107 workers have agreed the 18(1) settlement wherein, they have given an undertaking to withdraw the industrial dispute raised by them in I.D. (T) No. 25/2012. However, the said settlement is only with regard to the wage revision and not regard to the other reliefs claimed by the petitioners in the claim statement. Therefore, now it is to be decided that whether the petitioners are entitled for the relief as claimed before the Conciliation Officer and whether the respondent can be directed to not to procure the blended tea outside the factory and carry the manufacturing process of blending of tea in the factory as per licence granted to the factory and whether prohibited order can be passed that not to alter the weight of the blended tea bag to 550 kgs. against the agreed terms of the 12(3) settlement that too without issuing prior notice to the workers as required under section 9 A of the Industrial Disputes Act and to withdraw the suspension order, charge memo given against the worker Thiru Rajendirane and whether the order can be passed to lift the illegal lock out against the entire workers and pay wage to the workers during the period of illegal lockout of the respondent factory.
14. It is the second demand of the petitioner unions that without giving notice under section 9 of the Industrial Disputes Act the respondent management altered the weight of the blended tea bag to 550 kgs. against the agreed terms of 12(3) settlement. It is an admitted fact that the respondent management has without giving notice under section 9A of the Act has increased the weight of the blending bags from 300 kgs. to 550 kgs. If, there is any change of service condition the management has to give statutory notice under section 9A of the Act. It is the further case of the petitioners unions that change of weightage from 300 kgs. to 550 kgs. is against the agreed terms of 12(3) settlement and notice was not given under section 9A of the Act. The said 12(3) settlement was exhibited as Ex.R5. The petitioner has not at all stated in which clause under the 12 (3) settlement such prohibition was accepted by the management and they have not come forward to even exhibit the said 12(3) settlement on their side. On the other hand the respondent management has exhibited the said 12(3) settlement as Ex.R5 and it is also admitted by PW.1 the Secretary of the petitioner union that such clause is not found in the 12(3) settlement prohibiting the management from increasing the weight of blending tea bags from 300 kgs. to 550 kgs. The learned Counsel for the respondent has pointed out in his argument that the clause 5 of the said settlement specifically empowers the respondent management to introduce the new bags and change the packing materials. The clause 5 of the 12(3) settlement is carefully perused which runs as follows:
"The union appreciates the fact that in order to remain competitive in the rapidly changing market place, it is absolutely essential to respond to changes, in the shortest possible time. It is specifically understood that there could be changes in packing materials, introduction of new packs/new products/new machines, changes in layout/machine speeds/work methods/process/capacity of equipment, etc,, during the operative period of this settlement. As in the past, union would agree to extend its support and commits itself to ensure that all such changes are implemented and stabilized within 15 days".
From the above clause (5) of the 12(3) settlement it is clear that under the 12(3) settlement empowers the management to implement changes in packing materials, new packs new products, new machines, lay out, work methods, process, capacity of equipment during the period of the settlement and that therefore, the respondent management is permitted by the 13. It is the main contention of the respondent management that there is no contractual prohibition in procuring blending tea from outside the factory in the licence of the respondent and the 12(3) settlement marked under Ex.R5 does not prohibit the respondent establishment from procuring the blending tea from outside. On this aspect 12(3) settlement was carefully perused. The said settlement would reveal the fact that the said prohibition does not find in the settlement that the respondent establishment should not procure blended tea outside the factory and the licence which is exhibited as Ex.R6 also does not find any such prohibition that the factory should not be permitted to procure blended tea from outside. Since, there is no prohibition in licence or in the 12(3) settlement the respondent management cannot be prohibited by this Tribunal not to procure the blended tea outside the factory and not to carry the blended tea and neither the employees of the union nor the workers have made any complaint to the management that objecting to procurement of blending tea from outside and absolutely there is no evidence that there was any retrenchment of workers due to such procurement of blending tea from outside and that therefore, it is decided that the dispute raised by the petitioner unions that to advise the management not to procure the blended tea factory is not sustainable as there is no condition in the licence that the factory should not bring any blending tea from the outside of the factory.
11 September 2018] LA GAZETTE DE L'ETAT 1145suspension as the suspension was not inflicted on him by way of punishment and it was only suspension pending enquiry and such suspension is not an industrial dispute that can be challenged before this Tribunal and it would not affect the service condition of delinquent employee and he was suspended only after considering the gravity of situation pending enquiry and he was instigating the workers to go on illegal strike and he was disrupting the peaceful functioning of the factory and he commenced illegal strike from 24-05-2012 which stalled the entire activities of the respondent factory.
employees to alter the package materials and size and increase the capacity of the packing materials. Since, it was agreed by the employees under 12(3) settlement that the change can be made by the management for which the notice under section 9A of the Act is not necessary and therefore, no notice is required to change such process i.e., increasing the weightage of blending tea bag from 300 kgs. to 550 kgs. Further, as rightly pointed out by the respondent management that even after such change the majority of the 107 workers out of 121 workers have entered the 18(1) settlement and accepted such change and undertake to withdraw the disputes raised by them and that therefore, it is decided that the industrial dispute raised by the petitioner unions that to pass necessary order not to alter the weight of the blended tea bags to 550 kgs. against the agreed terms of the 12(3) settlement that too without issuing notice to the workers as required under section 9A of the Act is also not sustainable.
15. This reference also has been referred to this Tribunal to decide the issue raised by the petitioner unions that whether the suspension order and charge memo issued by the management against the secretary of the petitioner union Thiru Rajendirane is sustainable or not and whether it can be ordered to withdraw. It is the case of the petitioner unions that on 23-05-2012 the weight of 550 kgs. of blended tea jumbo bags and crane fell on the workers due to over weight and workers got struck under the crane and the bag and they have been rescued by other workers and the management has stopped the production and coerce the workers and to victimize the office bearers of the petitioner union particularly the secretary of the first petitioner union namely Thiru Rajendirane was suspended from service from 24-05-2012 alleging that he had not allowed the respondent management to remove the crane and the 550 kgs. blended tea bag which involved in the accident and the secretary had nothing to do with the accident and he has only objected the respondent to remove the crane machine and tea bag so as to facilitate the Inspector of Factories to enquire into the cause of accident and safety of the workers and that therefore, the union has raised the industrial dispute before the Labour Officer (Conciliation), over the issue of procurement of blended tea outside the factory, alteration of weight of the blended tea bags in the packing area and the issue over the suspension, charge memo victimization against the worker Thiru S. Rajendirane. On the other hand, it is stated by the respondent management that the petitioner unions have no locus standi to challenge the
16. On perusal of Ex.P14 - the copy of charge-sheet- cum-show cause notice issued to the said Thiru Rajendirane by the respondent management on 29-05-2012 which would reveal the fact that the said Thiru Rajendirane has only questioned the removal of the crane and bag after the alleged accident and he asked the Production Manager of the factory that not to remove the crane and 550 kgs. blended tea bag alleged to have fell down in the said accident. It is not disputed by the respondent management that such accident has not taken place on 23-05-2012. As the secretary of the union the said Thiru Rajendirane has asked the management the Production Manager that not to remove the same since they have sought for relief from the Inspector of Factories and that therefore, the allegation levelled against the Secretary of the first petitioner union Thiru Rajendirane is not at all sufficient to suspend the said Thiru Rajendirane from service as he was the secretary of the first petitioner union and having the right to ask the management that not to remove the crane and 550 kgs. blended tea bag which is alleged to have been fell down on the said date in the accident till the arrival of Factory Inspector to whom they lodged the complaint. Furthermore, the suspension order passed by the respondent management which is exhibited as Ex.P9 would reveal the fact that even without hearing the said Thiru Rajendirane and without issuing memo or show cause notice to him the said Thiru Rajendirane was suspended by the management which is against the principles of natural justice and there was no urgency to suspend him from service while he was asking the management that not to remove the crane as well as the 550 kgs. blended tea bag and therefore, the industrial dispute raised by the petitioner unions with regard to the withdrawal of the suspension order of the said Thiru Rajendirane has to be justified and the relief sought for by the petitioner unions that to pass an order to withdraw the suspension order and charge memo can be ordered and1 14 6 LA GAZETTE DE L'ETAT [11 September 2018 as such the order of suspension issued by the respondent management under Ex.P9 and charge-memo issued by the respondent management issued by the respondent management under Ex.P14 ordered to be withdrawn.
▪ ▪ ▪ ▪ claim statement ➢▪ ➢ ➢ Illegal lockout ▪ ▪
➢ ▪ ▪ ▪ ▪▪ claim statement of proof affidavit ▪➢ ▪ ▪ ➢ ➢ ➢ ▪ ▪ ➢ ➢ ▪ ➢ ➢ ▪ ➢ ➢ ➢ ▪ ▪ ➢ ➢ 17. The yet another main contention of the petitioner unions is that the respondent management has declared illegal lockout from 24-05-2012 and this reference has been sent to this Tribunal also to decide the issue that whether the industrial dispute raised by the petitioner unions to pass necessary order to lift the illegal lockout against the entire workers and pay wage to the workers during the period of illegal lockout and to declare that the lockout is illegal is justified or not. It is stated in the claim petition by the petitioner unions that when the workers of the petitioner unions protested against the respondent management to use 550 kgs. blended tea bags in the packing area and objected to continue the packing with 550 kgs. bags and demanded enquiry by the Inspector of Factories the respondent management has stopped the production and expelled out the workers working in the said shift and the factory main gate was closed and no workers were permitted to enter into the factory from 23-05-2012 general shift. On the other hand, it is contended by the respondent management that the Secretary of the first petitioner union Thiru Rajendirane has instigated some of the workers to go on illegal strike with effect from 24-05-2012 and they have not announced any lockout as stated by the petitioners and it is the argument of the respondent management that Ex.R15 to Ex.R17 and Ex.R20 would reveal the fact that the petitioner union has instigated the workers to go on illegal strike with effect from 24-05-2012 and that therefore, the suit in O.S. No. 809/2012 was filed by the respondent management and the said suit plaint was exhibited as Ex.R1 wherein the petitioner union has filed the written statement which is exhibited as Ex.R2. On this aspect the evidence of PW.1 in his cross examination is carefully perused which runs as follows :
Ex.P15 first shift ➢ ▪ first shift ▪ ▪ ▪ ➢ ▪Ex.P15para ➢ ▪ • Ex.P10 page ➢ ▪ Ex.P10 lockout ➢ ➢ ▪ ▪ ➢ Ex.P10 and Ex.P11 ➢ lockout▪ Ex.P10 and Ex.P11 ➢ ▪ ➢ ▪ ➢ ▪ ▪ Ex.P10 and Ex.P11 ➢ ▪ ……….." " ....... (Illegal lockout) ➢ ➢ ▪▪▪ ▪ ➢ ▪ ▪ ➢ ▪
From the above evidence, it is clear that PW1 has admitted that they have announced strike on 24-05-2012 and it was also evident from Ex.P15 that they have involved in strike from 24-05-2012 and the respondent management has made a complaint to the Sub-Inspector of Police on 24-05-2012 to provide vigilance outside11 September 2018] LA GAZETTE DE L'ETAT 1147 the factory gate and it is also evident from Ex.R19 that notices were issued by the respondent management to the employees on various dates warning them of consequences of illegal strike by petitioner union and the evidence of PW.1 also would go to show that the workers of the petitioner union have involved in the strike and the same was corroborated by Ex.P10 wherein it has been stated by the petitioner union to the management of the factory that they have decided to undergo strike. The another letter issued to the management on 24-05-2012 by the petitioner union is exhibited as Ex.P11 wherein the union has stated that since the accident had happened on 23-05-2012 they have decided to undergo strike and these letters under Ex.P10 and Ex.P11 would not contain the contention that the respondent management has declared any lockout or announced any lockout as stated by the petitioner unions on 24-05-2012 as alleged in the claim statement.
(ii) the petition is partly dismissed and the industrial dispute raised by the petitioner unions against the respondent management over other demands to advise the management such as not to procure the blended tea outside the factory and carry the manufacturing process of blending of tea in the factory as per licence granted to the factory, to pass necessary order not to alter the weight of the blended tea bag to 550 kgs. against the agreed terms of the 12(3) settlement that too without issuing prior notice to the workers as required under section 9 of the I.D. Act, 1947, to pass necessary order to lift the illegal lock out against the entire worker and pay wage to the workers during the period of illegal lock out and the lockout declared by the management is illegal are not justified and the petitioners are not entitled for any relief as claimed in the claim statement in respect of the above issues. No cost.
Dictated to the Stenographer, transcribed by her, corrected and pronounced by me in the open Court on this the 26th day of March, 2018.
G. THANENDRAN, Presiding Officer, Industrial Tribunal-cum-Labour Court,
Puducherry.
List of petitioner's witness:
PW.1 — 03-12-2015 — S. Rajendirane List of petitioner's exhibits:
18. Furthermore, the petitioner unions have not at all stated anywhere else in the claim petition when the lockout begins and when it was closed by the respondent management and further, it is not stated by the petitioner unions that how much period that the workers have not been paid wages by the management for the said alleged lockout period. Furthermore, the petitioner unions have not established that how much workers have been retrenched from employment and how much workers have been rendered jobless and were kept idle by the management while they had been in the factory and none of the workers were examined to establish that they have not given employment and they were refused any employment by the management. It is clearly established by the respondent management that the respondent management has not declared any lockout as stated by the petitioner unions and that therefore, since there is no lockout was declared by the respondent management it is just and necessary to hold that the industrial dispute raised by the petitioner unions against the respondent management that to declare the lockout by the respondent management is illegal one and to pass an order directing the respondent management to pay wages to the workers on the lockout period does not arise.
19. In the result,
(i) the petition is partly allowed and the industrial dispute raised by the petitioner unions against the respondent management over the suspension order and charge memo against the worker Thiru S. Rajendirane is justified and Award is passed directing the respondent management to withdraw the suspension o r d er and char ge -memo issued against the said Thiru Rajendirane and;
Ex.P1 — 06-10-2010 — Copy of the union
registration certificate.
Ex.P2 — 24-10-2011 — Copy of petitioner union complaint to respondent and Labour Officer.
Ex.P3 — 06-03-2012 — Copy of petitioner union complaint to Labour Officer.
Ex.P4 — 23-052012— Copy of petitioner union's member namely, Arulraj letter to the respondent.
Ex.P5 — 23-05-2012— Copy of petitioner union Member namely, Vijayakumar letter to the respondent.
Ex.P6 — 23-05-2012 — Copy of petitioner union Member namely, Sathyanathan letter to the respondent.
1 14 8 LA GAZETTE DE L'ETAT [11 September 2018Ex.P7 — 24-05-2012 — Copy of petitioner union
complaint to the
Inspector of Factories.
Ex.P8 — 24-05-2012— Copy of petitioner union
complaint to the Labour
Officer (Conciliation).
Ex.P9—24-05-2012 — Copy of petitioner union
office bearer namely Thiru
S. Rajendirane suspension
order.
Ex.P10—24-05-2012— Copy of petitioner union
letter to the respondent.
Ex.P11—24-05-2012— Copy of petitioner union
letter to the respondent.
Ex.P12—25-05-2012— Copy of Inspector of
Factories inspection report.
Ex.P13—25-05-2012— Copy of Inspector of
Factories letter to the
management (Show
cause notice).
Ex.P14—29-05-2012— Copy of petitioner union
office bearer namely Thiru
S. Rajendirane charge-
sheet-cum-show cause
notice.
Ex.P15—31-05-2012— Copy of petitioner union
raised dispute before the
Labour Office
(Conciliation) ID.(LOC)
No.1463 of 2012.
Ex.P16—02-06-2012— Copy of petitioner union
office bearer namely Thiru
S. Rajendirane reply to
the charge-sheet.
Ex.P17—04-06-2012— Copy of conciliation
notice.
Ex.P18—11-06-2012— Copy of Inspector of
Factories (Prohibition
order).
Ex.P19—24-06-2012— Copy of petitioner union
general body meeting
passed a resolution.
Ex.P20—26-06-2012— Copy of Thiru S. Rajendirane
domestic enquiry notice.
Ex.P21—27-06-2012— Copy of conciliation failure report in I D . N o . 1 4 6 3 / 2 0 1 2 / LO(c)/AIL.
Ex.P22—05-07-2012— Copy of Enquiry Officer
notice.
Ex.P23—14-07-2012— Copy of Thiru S. Rajendirane reply to the Enquiry Officer and respondent.
Ex.P24—10-08-2012— Copy of Thiru S. Rajendirane reply to the Enquiry Officer.
Ex.P25—18-08-2012— Copy of Enquiry Officer notice and enquiry proceedings.
Ex.P26—23-08-2012— Copy of Government
reference.
Ex.P27—05-08-2012— Copy of Thiru S. Rajendirane reply to the Enquiry Officer, respondent.
Ex.P28—17-09-2012— Copy of Court notice.
Ex.P29—20-09-2012— Copy of Enquiry Office
notice.
Ex.P30—20-10-2012— Copy of Enquiry Office notice and enquiry proceedings.
Ex.P31—25-01-2013— Copy of Enquiry Office
notice and attachment.
Ex.P32—02-02-2013— Copy of Thiru S. Rajendirane reply to the Enquiry Officer.
Ex.P33—05-06-2013— Copy of High Court passed an order in MP.No.1 of 2013 in WP.No. 15079 of 2013.
Ex.P34—06-11-2013— Copy of respondent letter to the Thiru S. Rajendirane.
Ex.P35—11-11-2013— Copy of legal notice to
the respondent.
Ex.P36—25-07-2014— Copy of High Court passed an order in WP.No.15079 of 2013.
Ex.P37—05-09-2014— Copy of respondent's
enquiry notice.
11 September 2018] LA GAZETTE DE L'ETAT 1149Ex.P38—11-10-2014 — Copy of Thiru S. Rajendirane reply to the respondent.
Ex.P39—28-06-2007— Copy of the letter given by the respondent to the President of HLL Tea Workers Welfare union.
Ex.R10—23-01-2012 — Copy of the reply letter given by the respondent to 1st petitioner referring to notice of usage of 550 kgs. tea bag process and its Tamil translation.
List of respondent's witness:
RW.1— 29-04-2017 Karthick.
List of respondent's Exhibits:
Ex.R1— 03-07-2012 — Copy of chief affidavit filed by HLL Tea Workers Welfare union (Tea Division) in OS.No.809/2012.
Ex.R2— 02-07-2012 — Copy of written statement filed by HLL Tea Workers Welfare union (Tea Division) in OS.No.809/ 2012.
Ex.R3— 02-06-2012 — Copy of plaint filed by HLL Tea Workers Welfare u n i o n ( Te a D i v i s i o n ) & Hindustan Unilever Theyilai Pirivu Thozhilalar sangam in OS.No.809/2012.
Ex.R4— 03-07-2012 — Copy of docket order in I.A.No.1555/2012 in OS.No.809/2012.
Ex.R5— 07-05-2007 — Copy of memorandum of settlement under section 12(3) of the Industrial Disputes Act, 1947.
Ex.R6— - Copy of respondent
factory licence.
Ex.R7— 10-04-2017 — Copy of letter of authorization to Mr. K a r t h i ck wo r k i n g a s Sr. Executive HR in respondent factory.
Ex.R8— 15-03-2004 — Copy of the certified standing orders of the respondent's factory.
Ex.R9—14-06-2011 — Copy of the reply letter given by respondent to Conciliation Officer over the issue of alleged change in service conditions given by 1st petitioner union.
Ex.R11—24-02-2012— Copy of the reply letter (wrongly given by the respondent mentioned to the 1st petitioner over as t h e i mp l e me n t a t i o n o f 24-10-2012) 550 kgs. tea bags with its
Tamil translation.
Ex.R12—20-03-2012— Copy of the reply letter given by the respondent to the Conciliation Officer in respondent to complaint given by 1st petitioner union alleging violation of 12(3) s e t t l e m e n t , d a t e d 07-05-2007.
Ex.R13—12-04-2012— Copy of the reply letter given by the management to Inspector of Factories concurring to make suitable changes for using 550 kgs. bags.
Ex.R14—19-05-2012— Copy of reports of examination done by expert Engineers and valuers on Hopper feeding EOT crane.
Ex.R15—24-05-2012— Copy of the letter given by respondent to Conciliation Officer informing him about the illegal strike by the petitioners commenced by them along with photos (4 Nos.). Ex.R16—24-05-2012— Copy of the letter given by the respondent to SHO Kirumambakkam for providing protection to respondent's factory in view of illegal strike by petitioner union.
Ex.R17—24-05-2012— Copy of reports of examination done by expert Engineers and valuers on Hopper feeding EOT crane.
1 15 0 LA GAZETTE DE L'ETAT [11 September 2018Ex.R18—26-05-2012 — Copy of the equipment breakdown service report given by the Cranedge India Pvt. Ltd., to respondent.
Ex.R19—23-05-2012— C o p i e s o f t h e n o t i c e s to issued by respondent to 28-06-2012 employees warning them of consequences of illegal strike by petitioner union.
Ex.R20—05-06-2012— Copy of the reply letter given by the respondent to the show cause notice of Inspector of factories, dated 25-02-2012.
Ex.R21—15-06-2012— Copy of the letter given by the respondent to Labour Commissioner informing him about the ongoing illegal strike by petitioners.
Ex.R22—04-03-2013 — Copy of the 18(1) settlement arrived between the respondent and National Employees Trade Union.
Ex.R23—05-03-2012— Copies of the individual to undertaking given by 107 13-5-2014 employees accepting 18(1) s e t t l e m e n t , d a t e d 04-03-2013.
Ex.R24— – Copies of the minutes of the meeting between the respondent and the joint negotiation committee comprising of three out of four unions in respondent's factory.
G. THANENDRAN, Presiding Officer, Industrial Tribunal-cum- Labour Court, Puducherry.
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