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La Gazette de L' État de Poudouchéry

The Gazette of Puducherry

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Publiée par Autorité

Published by Authority

Registered with the Registrar

of Newspapers for India

under No. 10410

Registered No. PY/44/2021-23

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No.

10 Poudouchéry

Mardi

8

Mars

2022 (17 Phalguna 1943)

No.

Puducherry

Tuesday

8th

March

2022

ÿ√VÚ·¶¬ÔD

SOMMAIRES

CONTENTS

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Page

Page

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170

Sentence arbitr al du Travail

.. 170

Award of the Labour Court .. 170

de Tribunal.

∂´∑ ∂§s¬ÁÔÔ^

..

181

Notifications du Gouvernement

.. 181

Government Notifications

.. 181

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..

187

Avis d’ appel d’ offres

.. 187

Tender Notice

.

187

g√›>V™ WÆk™∫Ô^

..

188

Etablissements dangereux

.. 188

Dangerous Establishments

..

188

ƒVu≈§¬ÁÔÔ^

..

191

Annonces

.. 191

Announcements

..

191

170

LA GAZETTE DE L’ETAT

[8 March 2022

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 11/AIL/Lab./T/2021,

Puducherry, dated 4th February 2022)

NOTIFICATION

Whereas, an Award in I.D. (T) No. 01/2017, dated

dated 23-12-2021 of the Industrial Tribunal-cum-Labour

Court, Puducherry, in respect of the Industrial Dispute

between the management of M/s. Hindustan Unilever

Limited, Tea Factory, Kirumampakkam, Puducherry and

HLL Tea Worker’s Welfare Union, over charter of

demands such as to increase the basic wages every year by

10%, HRA by 40%, Conveyance Allowance by ` 3,000

and other allowances, etc., has been received;

Now, therefore, in exercise of the powers conferred

by sub-section (1) of section 17 of the Industrial

Disputes Act, 1947 (Central Act XIV of 1947), read with

the Notification issued in Labour Department’s G.O. Ms.

No. 20/91/Lab./L, dated 23-05-1991, it is hereby directed

by the Secretary to Government (Labour) that the said

Award shall be published in the Official Gazette,

Puducherry.

(By order)

D. MOHAN KUMAR,

Under Secretary to Government (Labour).

————

BEFORE THE INDUSTRIAL TRIBUNAL-CUM-

LABOUR COURT AT PUDUCHERRY

Present :Thiru R. BHARANIDHARAN, M.L.

Presiding Officer.

Thursday, the 23rd day of December 2021.

I.D. (T) No. 01/2017

in

C.N.R. No. PYPY060000082017

The General Secretary,

HLL Tea Worker’s Welfare Union,

No. 34, Madha Kovil Street,

Korukkumedu, Thavalakuppam,

Kattupalayam Post,

Puducherry.

. . Petitioner

Versus

The Managing Director,

M/s. Hindustan Unilever Limited (Tea Factory),

No. 9 (3) Cuddalore Road,

Kirumampakkam,

Puducherry.

. . Respondent

This Industrial Dispute coming on 15-12-2021 before

me for final hearing in the presence of Thiruvalargal

P.R. Thiruneelakandan, R. Harinath and A. Mithun

Chakravarthy, Counsels for the petitioner and

Thiruvalargal L. Sathish, S. Ulaganathan, T. Pravin,

S. Velmurugan, V. Veeraragavan and E. Karthik, Counsels

for the respondent, upon hearing both sides, perusing

the case records, after having stood over for

consideration till this day, this Court delivered the

following:

AWARD

This Industrial Dispute has been referred by the

Government as per the G.O. Rt. No. 123/AIL/Lab./T/2016,

dated 26-12-2016 for adjudicating whether the industrial

dispute raised by HLL Tea Worker’s Welfare Union,

against the management of M/s. Hindustan Unilever

Limited, Tea Factory, Kirumampakkam, Puducherry, over

charter of demands such as to increase the basic wages

every year by 10%, HRA by 40%, conveyance Allowance

by ` 3,000 and other allowances, etc., is justified or

not? If justified, what relief the petitioner Union entitled

to?

(b) To compute the relief if any, awarded in terms

of money if, it can be so computed?

2. Brief averments made in the claim Statement of

the petitioner:

The respondent is a multi-national company

carrying on business in India and the same is

registered under Indian Companies Act. The members

of the petitioner Union are being given monthly wage

of ` 6,000 while so the petitioner union has submitted

a charter of demand for revision of wage for a period

from 2015 to 2019. The respondent management has

not considered the request of the petitioner’s union

and the union was constrained to approach the

Labour Officer (Conciliation) for Conciliation. The

Conciliation proceedings since, ended in failure the

dispute was referred to the Tribunal for adjudication

as per Government Order, dated 26-12-2016.

(ii) The respondent management in order to

suppress the wage demand has posed the counter

demand to increase the machine speed from 29 units

to 39 units with the existing work force and also

demanded workers to accept the proposed erection

of auto machine which would likely to lead

retrenchment of existing workers. On 14-12-2015 the

petitioner union raised industrial dispute over the

wage revision before the Labour Officer (Conciliation),

Puducherry. The industrial dispute over the charter

of demand for wage revision and other allowances

171

8 March 2022]

LA GAZETTE DE L’ETAT

for the period covering from 19-08-2015 under 40

heads. The respondent management has followed the

delaying tactics and attempted to form puppet union

to support the management and simultaneously

negotiated with the petitioner. The respondent

management by letter, dated 29-08-2011 offered a

some ` 2,806 per month and final amount of wage

increase inclusive of all wage component since, the

wage revision offered by the respondent management

was not in accepted terms, the Labour Officer

(Conciliation) has given a failure report on 21-09-2016.

The members of the petitioner union are permanent

workers and they are working in the respondent

factory for more 15 years of continuous service.

(iii) At present the respondent is following

method in fixing the basic wage of the W-1 category

worker in entry level is ` 15 per day, the same was

restricted maximum ceiling of ` 64 per day. In the last

wage settlement, dated 07-05-2007 entry level in W-1

category workman was given increase of ` 2 per day

in basic wage which comes in a month of 26 working

days a sum of ` 442 (No. of days 26 X Basic pay

` 15 per day = ` 390 + (No. of days 26 X Increase

Basic by ` 2 per day = ` 52). The remaining portion

of wage has been paid by way of fixed DA up to 576

points ` 1,350 per month, and ` 1,365 as allowance

which includes HRA, Conveyance allowance,

Canteen, Night shift Education allowance, Medical

allowances, Performance allowance, Attendance

allowances. In totaling basic plus other allowance for

the workers in Grade W-1 has been paid ` 2,975 per

month and worker Grade W-3 has been paid ` 3,230

per month, which could not even meet the

requirement of statutory minimum wages fixed to the

Industries in Puducherry Union Territory. The major

portion of the meager wage of the workers has been

paid by way of allowances, particularly by way of

production incentive linked with the production

which might vary individual to individual, efficiency,

diligent, some time season to season and also it vary

with variation in the rate of supply of raw material

or with the assistance obtainable from machinery or

vary by nature interference.

(iv) Considering the volume of production turn

over and profit the wages payable to the members

of the petitioner’s union is very meager and the

conditions of the workers is pathetic and the wage

paid to the workers cannot meet the present cost of

living. About 99% of the workmen are married and

have children and parent to who required their

support. In order to quit the cost of living the wage

has to be increase under all the heads, so as to

commensurate the present cost of living. The

petitioner prayed for passing of an Award revising

the wages of the petitioner’s in terms of charter of

demand, dated 19-08-2015 with retrospective effect

from 06-05-2015 with other benefits.

3. The brief averments in the counter filed by the

respondent are as follows:

The petitioner union is a minority union represent

only 40 workers has absolutely no locus standi to

rack up the issue particularly when the respondent

has entered into 18(1) settlement with the majority

union. The present industrial dispute and the claim

petition filed by the petitioner union is nothing but,

an adjudication of claim petition in I.D (T) 04/2012

between the petitioner and respondent except some

superficial changes. In reply to the claim statement

filed in I.D. (T) 04/2012 the respondent has

specifically pleaded the wage structure and other

attendant benefits claimed in I.D. (T) 04/2012 was

resolved between the management and the majority

of the workers vide a comprehensive settlement

under section 18(1) of the Industrial Dispute Act,

dated 04-03-2013. The validity of the settlement,

dated 04-03-2013 is for a period of 4 years, i.e., until

03-03-2017. It is only 14 workers who did not accept

the settlement and sought for separate wage

structure when the settlement, dated 04-03-2013 is in

force. The settlement, dated 04-03-2013 was ratified

by 110 workers out of 124 workers the present

dispute is raised for wage fixation from 06-05-2015

which is comprehensively covered under the

settlement, dated 04-03-2013.

(ii) The settlement, dated 04-03-2013 is now,

superseded by a fresh 18(1) settlement, dated

20-12-2016 between the respondent and three out of

4 unions in the factory. The said settlement was

ratified by 92 workers out of 122 workers. The

petitioner claim for wage revision in the present

industrial dispute is fully covered under the

settlement, dated 04-03-2013 and 20-12-2016. On

expiry of settlement dated 04-03-2013 three unions

out of 4 unions in the respondent company has

started new wage settlement negotiations on

03-03-2017 and they have also formed a joint

negotiations committee. The respondent has signed

a comprehensive 18(1) settlement with the majority

of workers from three out of 4 unions with full

concurrence of the respective members which is

binding on all the workers of the respective three

unions. The settlement signed between the

respondent and unions on 04-03-2013 and 20-01-2016

are absolutely fair and those who have accepted

both the settlement have benefited immensely.

172

LA GAZETTE DE L’ETAT

[8 March 2022

The 14 workers who have not accepted the 18(1)

settlement, dated 04-03-2013 cannot claim any

benefits under the said settlement which was expired

and superseded by a fresh settlement, dated

20-12-2016. Giving wages in terms of 18(1) settlement,

dated 04-03-2013 to the 14 workers who did not

accept the said settlement and who did not give

production in terms of the said settlement for more

than 4 years would be a grave injustice to the other

majority workers who has accepted the settlement.

The respondent denies that the nearby industries

such as Godrej Consumer products Limited and NCR

Limited have given wage revision to the tune of

` 32,471.

(iii) The factory was established in November

1997. Employees were recruited and confirmed in

service post completing their training period around

1999. Post confirmation they were given standard

wages, for Assistant Operators – the basic started

with `15 per day and for Operators the basic started

with ` 25 per day. In addition to this FDA and VDA

are part of their PF wages. The average basic of

Assistant Operator (unskilled worker as mentioned

by petitioners union) as on August 2012 are ` 2,036

in addition to this they are paid ` 2,114 as FDA

and ` 1,675 as VDA and hence, the total PF wages

paid was around ` 6,815. Hence, the petitioner

union’s claim that the basic pay was ` 1,000 to

` 1,800, mentioning about FDA and VDA was equally

important as it forms the part of PF wages. The

respondent submit that the claim settlement lacks

bona fide and the same is liable to be dismissed.

4. On the petitioner side Mr. Rajendirane was

examined as PW.1 and through him proof affidavit was

filed, Ex.P1 to Ex.P14 were marked. On the respondent

side no oral or documentary evidence has been

produced.

5. Points for consideration:

Whether the charter of demands raised by the HLL Tea

Workers Welfare Union against the M/s. Hindustan

Unilever Limited, Tea Factory, Puducherry, to increase

the basic wages every year by 10%, HRA by 40%,

conveyance allowance by ` 3,000 and other

allowances is justified and what relief available to the

members of the petitioner union?

6. On the petitioner side Thiru Radjendirane, son of

Sadhasivam who is the Secretary of the petitioner union

was examined as PW.1 and through him chief affidavit

of PW.1 is filed and Ex.P1 to P14 were marked. In the

evidence of PW.1 by way of chief affidavit he has

stated that the petitioner union raised the abovesaid

industrial dispute in I.D. No. 01/2017 for revision of

wage in terms of charter of demands, dated 19-08-2015

with retrospective effect from 06-05-2015. The petitioner

union filed claim statement in the abovesaid industrial

dispute in the averments made in the claim statement

of the said industrial dispute may be read as part and

parcel of the proof affidavit to avoid repetition. PW.1

extensively cross-examined by the respondent

management since, this Court has already discussed the

brief averments of the claim statement it will be a futile

attempt to once again repeat the contents of the claim

statements.

7. During pendency of the trial the respondent

management has filed a memo stating that the industrial

dispute raised by the petitioner union over wage

revision and for other reliefs against the respondent

management. The petitioner union and the respondent

management have entered into settlement under section

18(1) of Industrial Disputes Act on 03-07-2020 and they

have settled all their dispute and demands in the present

Industrial Dispute as well as in C.P.13/2018 pending

before this Court. The memo filed by the respondent

management for which the petitioner union filed as

objections. In the said memo of objection the petitioner

has stated that the petitioner Trade Union has filed

industrial dispute for wage revision and commutating

of arrears of wage increment for 14 members including

the workers Mr. S. Radjendirane. The respondent

management has come forward to settle the issue by

way of 18(1) settlement, dated 03-07-2020 and thereby

settle the workers dispute and demands made in I.D.(T)

01/2017 as well as in C.P.13/2018 except the worker

Mr. S. Radjendirane. The claim and the dispute is not

settled in respect of worker S. Radjendirane. In respect

of other 13 workers are concerned the Award may be

passed in the said industrial dispute and C.P in terms

of said 18(1) settlement. Since, the industrial dispute

and C.P. were not completely settled between the

parties. This Hon’ble Court may be pleased to

adjudicate the aforesaid I.D.No. 0l/2017 and C.P.13/2018

and disposed of the same on merit as far as the worker

Mr. Radjendirane is concerned.

8. This Court has perused the memorandum of

settlement arrived between the petitioner Trade Union

and the respondent management entered between

themselves on 03-07-2020. Wherein, full and final

settlement of all the demands of the Union and the

employees in connection with the matters specified in

the charter of demands, dated 11-02-2011 and

18-10-2016, the 2013 long term settlement, the 2016 long

173

8 March 2022]

LA GAZETTE DE L’ETAT

term settlement and the industrial disputes. Upon

execution of settlement each of the employees shall

indicate their acceptance of the terms of settlement by

duly signed in the letter of acceptance in the

Annexure-B. Both sides learned Counsel has accepted

except Mr. Radjendirane all other 13 employees were

signed in the letter of acceptance.

9. Both sides learned Counsel has vehemently

contended when the Court has to pass Award in respect

of 13 workers who has accepted the 18(1) settlement and

signed the letter of acceptance. The learned Counsel for

the petitioner union submit since, the dispute raised by

the petitioner union was not fully settled, the dispute

in respect of Mr. Radjendirane may be continued for

adjudication after trial.

10. This Court is bound to answer the dispute in

respect of Mr. Radjendirane, who is not a party to the

18(1) settlement. At the same time, the majority of the

employees are waiting for the Award of this Court in

terms of 18(1) settlement. Both side learned Counsel has

reminded that this Court can order for separate trial in

respect of worker Mr. Radjendirane, under order II Rule

6 of C.P.C. This Court is empowered to order for separate

trial when it appears to the Court, when the joinder of

cause of action in suit may embrass or delay the trial

or other order as may be expedient in the interest of

justice. The 18(1) settlement was entered into between

the parties on 03-07-2020 and all the 13 workers are

waiting for the Award. At the same time, the reference

in respect of Mr. Radjendirane has to be answered. In

the above circumstances, this Court is of the considered

opinion to pass Award in respect of 13 workers and

separate trial to be conducted in respect of worker

Mr. Radjendirane, by assigning new case number. Since,

the case is under trial stage the separated case of

Mr. Radjendirane shall be continued from the stage in

which it was separated and thereby no prejudice will

be caused to the contesting worker Mr. Radjendirane.

The Office is required to assign fresh case number in

respect of Mr. Radjendirane. In the interest of justice

and by considering the welfare of 13 employee, this Court

has decided to separate cause of Mr. Radjendirane from

the other employees.

11. In the result, this Court conclude that all the

13 workers of the petitioner union are entitled to get

the relief under section 18(1) settlement and the

respondent management is directed to extend the

benefits under 18(1) settlement, dated 03-07-2020 to all

the 13 employees within a period of 8 weeks from the

date of this Award and the reference is answered

accordingly. No costs.

Dictated to Stenographer, transcribed by him,

corrected and pronounced by me in the Open Court on

this 23th day of December 2021.

R. BHARANIDHARAN,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.

List of petitioner’s witness:

PW.1

— 23-10-2019

Rajendirane.

List of petitioner’s exhibits:

Ex.P1

— 19-08-2015

Copy of the Charter of

Demands submitted to the

Factory Manager, HUL Tea

Factory.

Ex.P2

— 21-09-2016

Copy of the Failure Report

issued

by

the

Labour

Officer

(Conciliation),

Puducherry.

Ex.P3

— 26-12-2016

Copy of the Reference

issued by the Government.

Ex.P4

— 15-09-2015

Copy of the letter given to

the Factory Manager, HUL

Tea

Factory,

by

the

President of the Trade

Union.

Ex.P5

— 06-03-2017

Copy of the Regisration

Certificate of the Trade

Union.

Ex.P6 —

Copy of the list of the

Union members.

Ex.P7

— 25-09-2015 Copy of the reply letter by

the respondent Manager to

the President of the Trade

Union.

Ex.P8

— October

Copy of the Pay Slip of

2017

Employee

by

name

Murugan issued by Godrej

Consumer Products Limted,

(Puducherry and Karaikal).

Ex.P9

— 02-08-2017

Copy of the Memorandum

of Settlement under section

12(B) (page 7 to 50).

Ex.P10 — 14-12-2015

Copy of the petition filed

under section 2K before the

Labour Officer (Conciliation),

Puducherry.

174

LA GAZETTE DE L’ETAT

[8 March 2022

Ex.P11 — 28-12-2015

Copy of the reply by the

Management to the Labour

Officer

(Conciliation),

Puducherry.

Ex.P12 — 28-03-2017

Copy of the reply given by

the Trade Union before the

Labour Officer (Conciliation),

Puducherry.

Ex.P13 — 17-04-2017

Copy of the reply given by

the Management to the

President of the Trade

Union.

Ex.P14 — 20-12-2016 Copy of the letter from the

Trade Union to the Labour

Officer

(Conciliation),

Puducherry.

List of respondent’s witness: NIL

List of respondent’s exhibits: NIL

R. BHARANIDHARAN,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.

————

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 16/AIL/Lab./T/2021,

Puducherry, dated 4th February 2022)

NOTIFICATION

Whereas, an Award in I.D (T) No. 23/2017, dated

30-12-2021 of the Industrial Tribunal-cum-Labour Court,

Puducherry, in respect of the Industrial Dispute

between the management of M/s. Jyothi Laboratories

Limited, Thethampakkam, Puducherry and its workman

Thiru R. Arumugam, Vice-President of Jyothi Laboratories

Thozhilalargal Sangam PMTUC, Puducherry 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 23-05-1991, it is hereby directed

by the Secretary to Government (Labour) that the said

Award shall be published in the Official Gazette,

Puducherry.

(By order)

D. MOHAN KUMAR,

Under Secretary to Government (Labour).

BEFORE THE INDUSTRIAL TRIBUNAL-CUM-

LABOUR COURT AT PUDUCHERRY

Present :Thiru R. BHARANIDHARAN, M.L.

Presiding Officer.

Thursday, the 30th day of December 2021.

I.D. (T) No. 23/2017

in

C.N.R. No. PYPY060000942017

R. Arumugam,

Workman and the Vice-President

of Jyothi Laboratories Thozhilalargal

Sangam PMTUC,

No. 76, Vysial Street,

Puducherry.

. . Petitioner

Versus

The Managing Director,

M/s. Jyothi Laboratories Limited,

Thethampakkam,

Puducherry.

. . Respondent

This Industrial dispute coming on 21-12-2021 before

me for final hearing in the presence of Thiruvalargal

M. Nakkeeran, L. Sairaja Chandiran, M. Manjini and

A. Prabakaran, Counsels for the petitioners and

Thiruvalargal R. Ilanchezhiyan and S. Geetha, Counsels

for the respondent, upon hearing both sides, perusing

the case records, after having stood over for

consideration till this day, this Court delivered the

following:

AWARD

This Industrial Dispute has been referred by the

Government as per the G.O. Rt. No. 166/AIL/Lab./T/2017,

dated 03-11-2017 for adjudicating whether the industrial

dispute raised by the petitioner Thiru Arumugam,

Workman, Vice-President of Jyothi Laboratories

Thozilalargal Sangam PMTUC, No. 76, Vysial Street,

Puducherry, against the management of M/s. Jyothi

Laboratories Limited, Thethampakkam, Puducherry, over

transfer to Karaikal Factory is justified or not and if

justified, what relief the petitioner is entitled to?

(b) To compute the relief if any, awarded in terms

of money if, it can be so computed?

2. Brief averments made in the claim Statement of

the petitioner:

The petitioner is employed as a workman in Jyothi

Laboratories Limited, since, 07-08-1998. He become

regular employee on 09-09-2009. The petitioner was

175

8 March 2022]

LA GAZETTE DE L’ETAT

discharging his duties as a load man in the

respondent company. The petitioner is also the

Vice-President of Jyothi Laboratories Thozhilalargal

Sangam. The petitioner was striving hard for the

upliftment of the company and welfare of the

workman. In order to restrict the activities of the

petitioner Trade Unions the respondent management

intentionally avoided the petitioner union to

participate in the negotiation for the revision of salary

held during Apil 2015. To put an end to the

functioning of the Trade Union activities the

petitioner was transferred to Karaikal unit by transfer

order, dated 03-04-2017. Anticipating the transfer the

petitioner gave representation to the Labour Officer

(Conciliation), Puducherry, to resolve the issue

amicably. The petitioner has to manage his family

with two school going children with his meager

income. The petitioners daughter is a Cardiac Patient

who underwent surgery recently. The petitioner was

not allowed to enter into a company since, 1st week

of April 2017. The petitioner was transferred as his

services are required to train the employees at

Karaikal. The petitioner was transferred to Karaikal

unit on the exigency basis to train up the recently

absorbed workers. The petitioner is only a loadman

and does not hold any technical qualification to give

training. The respondent has filed Form-I, dated

13-07-2017 stating that the transfer of petitioner to

Karaikal, is purely on exigency and not with ulterior

motive and requested for initiation of disciplinary

proceedings against the petitioner. The petitioner

pray for the revocation of his transfer order with

effect from 10-04-2017.

3. The brief averments in the counter filed by the

respondent are as follows:

The petitioner was transferred from Pondicherry

factory to Karaikal factory out of exigency of work

with effect from 10-04-2017. The terms of appointment

of the workman contemplates transferred to any

factory or any of its branches and also the certified

standing orders of the company provides and permit

for such transfer. The transfer is purely on exigency

of work and does not have any ulterior motive. It is

a general practice of the respondent management to

transfer its workman on need basis to various places

in India. The time of refusal of employment does not

arise. The act of the petitioner is purely voluntary

abatement without obeying the transfer order of the

respondent. The respondent denies that the

petitioner had been victimized for his Trade Union

activities. There are three unions recognized by the

respondent management. There is not even a single

activity of victimization for any Trade Union

activities. The respondent management contributed

substantial amount to take care of the petitioner’s

child for undergoing a surgery. The respondent

management took over a factory at Karaikal from

M/s. Henkel India Limited and about 250 contract

workers were taken as company employee. To train

up those contract workers the services of some

trained workers was felt necessary and only on that

basis the petitioner was transferred. Since, the

petitioner was transferred only with the Pondicherry

Union Territory. There is no justification for the

petitioner not accepting the transfer. Transfer of the

petitioner cannot be coloured as punishment or

victimization. The history of the petitioner shows that

he used to be an undisciplined worker. The

respondent pray for dismissal of the petition.

4. On the petitioner side Arumugam was examined

as PW.1, one Pushpa was examined as PW.2 and

through them proof affidavit was filed. Ex.P1 to Ex.P8

were marked through PW.1. On the respondent side

Sivaraman was examined as RW.1 and Ex.R1 to Ex.R11

were marked.

5. Points for consideration:

Whether the dispute raised by the petitioner Thiru

Arumugam, workman, Jyothi Laboratories, Puducherry

against the respondent management M/s. Jyothi

Laboratories Limited, Thethampakkam, Puducherry, over

transfer to Karaikal factory is justifiable?

6. The petitioner Thiru Arumugam was examined as

PW.1 and his chief examination affidavit was filed before

this Court. Through Ex.P1 to P8 were marked. In the

evidence of PW1 he has deposed that he was transfer

by transfer order, dated 03-04-2017 from Puducherry

Joythi Laboratories to Karaikal unit. The petitioner was

appointed as a workmen since, 07-08-1998 and become

a regular employee on 09-09-2009. The petitioner is a

Vice-President of Joythi Laboratories Thozhilalar

Sangam (PMTUC). In order to restrict the activities of

the Trade Union, the respondent management

intentionally avoided the petitioner’s union from

participating in the negotiations for revision of salary

and other benefits in April 2015. The transfer order

issued to the petitioner is against the law and unfair

trade practice. The petitioner daughter is a Cardiac

patient undergone surgery recently and she required

utmost attention and care all the times. In the first week

April 2017 the petitioner was not allowed to enter to

the respondent company the petitioner was employed

as a load man and he does not poses any technical

176

LA GAZETTE DE L’ETAT

[8 March 2022

qualification so as to train the employees at Karaikal

unit. Anticipating transfer the petitioner has approached

the Labour Officer (Conciliation), Puducherry by

representation, dated 13-07-2017. The respondent filed

a report before the Labour Office (Conciliation),

Puducherry that the petitioner had been transfer the

Karaikal unit to train up the newly absorbed workers.

The petitioner stated that the transfer is with an ulterior

motive to curtail the Trade Union activities. The

petitioner is jobless since, April 2017 and their family

is suffering for their livelihood.

7. PW.2 Tmt. Pushpa is the workmen working in the

respondent management since, 1998. The service

condition applicable to the workmen in the respondent

unit does not contemplate transfer from one station to

another. There is no precedent of transfer of workmen

from respondent unit at Puducherry to any other station.

PW.2 further deposed that there is no clause in the

appointment order contemplating transfer of an

employee from Puducherry who were transfer to

Guwahati, Karaikal and Silvasa were not joined in the

respective station even after the receipt of transfer

order. The petitioner was victimized by the order of

transfer.

8. RW.1 Thiru P. Sivaraman, Officer (H.R) in the

Respondent Company has deposed that the petitioner

was transfered from Puducherry factory to Karaikal

factory out of exigency. However, the petitioner instead

of reporting for work at Karaikal factory he has raised

an Industrial Dispute alleging flimsy reasons. The terms

of appointment of the workmen and also the clause of

the certified standing orders contemplates transfer to

any factory in India or any of its branches. The transfer

of petitioner is within the parameter of law. The

respondent management does not have any ulterior

motive but, the transfer is a routine one. It is effected

on need basis. The workmen who are all transfered are

entitled for additional benefits as per the policy of the

management and they are being paid out-station

allowances, TA, DA, etc., The respondent management

denied that the petitioner was victimized due to his

Trade Union activities. There are three unions

recognized by the respondent management and from the

year 2007. The respondent management engaged in

negotiations to resolve the issues directly with the

union and was in the habit of entering into settlement

from time to time. The respondent management has even

contributed a substantial amount to the petitioner child

who underwent surgery. The respondent factory at

Karaikal was took over from M/s. Henkel India Limited

along with 250 contract workers. To train up those

contract workers the service of the experienced workers

is required to transfer of an employee from one place

to another place is only an incidence of an employment

and cannot be coloured as punishment or victimization

as alleged by the petitioner. In the past the petitioner

exhibits undisciplined both in his behaviour and

attitude.

9. There is no single case of victimization for any

Trade Union activities. The refusal of employment by

the respondent management does not arise as

contended by the petitioner. The act of the petitioner

is a purely a case of voluntary abatement of duty

without obeying the lawful orders of the respondent

management. The question of re-employment with back

wages or any other service of pecuniary benefits does

not arise in this case. On the respondent side the

appointment order issued to the petitioner, dated

03-11-1999 was marked as Ex.R11. After the completion

of his training period the petitioner was made

permanent.

10. The learned Counsel for the petitioner in his vibrant

argument submit that the petitioner Thiru Arumugam

was appointed in the respondent company on

07-08-1998 and his services was regularized by the

management on 09-09-2009. Ever since, the date of his

appoint he was worked as a load man he is also the

Vice-President of Jyothi Laboratories Thozhilalar

Sangam (PMTUC). The learned Counsel for the

petitioner submit that there are two other Trade Unions

functioning in the respondent management. The

respondent management always exhibits step mother

treatment to the petitioner Trade Union. The petitioners

Trade Union was not consulted for negotiations

regarding salary hike and other service conditions of

the employee. The learned Counsel for the petitioner

further submit that the petitioner was transferred from

Puducherry factory to Karaikal unit with effect from

10-04-2017. Moreover, the petitioner was not allowed to

enter into the company premises from 01-04-2017. The

learned Counsel for the petitioner further submit that

the petitioner’s daughter underwent a heart surgery in

the year of 2006 and the petitioner has to take care of

her daughter constantly and the presence of the

petitioner at Puducherry is essential for the well being

of his daughter.

11. The learned Counsel for the petitioner submit

that the respondent management has under took

M/s. Henkel India Private Limited at Karaikal, which is

a Multi-national Company. In order to train the contract

labourers of the Karaikal unit the assistance of

experienced persons was required and that is why the

177

8 March 2022]

LA GAZETTE DE L’ETAT

petitioner was transferred to Karaikal is the reason

assigned by the respondent. Where as the petitioner is

not a technical person and he was all along utilized by

the respondent management only for loading and

unloading work. It is further submitted in the list of

contract workers there are other two male persons name

was present in the seniority list maintained by the

respondent. If, the women workers also considered

there are several other persons available in the seniority

list ahead of the petitioner. The learned Counsel for the

petitioner submit that the respondent management was

annoyed to the active participant of the petitioner in

the Trade Union activities and planned to transfer him

to Karaikal factory to victimize him. The petitioner in

anticipation of his transfer order has presented in an

application before the Labour Officer (Conciliation),

Puducherry on 07-04-2017 in Ex.P2 seeking the

intervention of the Labour Officer (Conciliation),

Puducherry to stop the transfer on 08-05-2017. The

respondent has filed his counter statement wherein, the

respondent has claimed that to give training through

experienced workman they have been transferred.

12. The learned Counsel for the petitioner has

invited the attention of this Court to the Judgment of

Hon’ble Apex Court in K.N. Singh and another vs. G.M.

(Personnel, M.M.T.C. Ltd. and others the case reported

in 2011 1 LLJ 655 wherein, the Hon’ble Apex Court held

“the power has to be exercised in good faith, no

arbitrarily and the employer should try to accommodate

the low paid employee at nearby places” in the case of

B. Varadha Rao vs. State of Karnataka and others, AIR

1986 SC 1955 wherein, Hon’ble Apex Court held “One

cannot, but, deprecate that frequent, unscheduled and

unreasonable transfers can uproot a family, cause

irreparable harm to a Government Servant and drive him

to desperation. It disrupts the education of his children

and leads to numerous other complications and

problems and results in hardship and demoralization.

It therefore, follows that the policy of transfer should

be reasonable and fair and should apply to everybody

equally. But, at the same time, it cannot be forgotten

that so far as superior or more responsible posts are

concerned, continued posting at one station or in one

Department of the Government is not conductiue to

good administration. It creates uested interest and

therefore, we find that even from the British times the

general policy has been to restrict the period of posting

for a definite period. We wish to add that the position

of Class II and Class IV employees stand on a different

footing. We trust that the Government will keep these

considerations in view while making an order of

transfer”.

13. The learned Counsel for the petitioner has

invited the attention of this Court to the judgment of

Hon’ble Apex Court in 2013 1 LLJ 570 Ansal Properties

and Industries Limited vs. The Presiding Officer,

Industrial-cum-Tribunal Court-I, Gurgaon and Another

reported in “that extension of service beyond the period

for which respondent No. 2 was initially appointed

would be on the basis of terms and conditions, which

were agreed upon between the parties and those having

not been produced on record, it cannot be claimed as a

matter of right that same conditions will continue to

apply, especially in the facts and circumstances of the

present case where one of those terms and conditions

is sought to be misused by the management by

transferring a low paid employee) who was drawing

salary of merely ` 2,825 per month Gurgaon to Mumbai.

The facts of the present case in totality establish that

the management in the present case had used devices

somehow to dispense with the services of respondent

No. 2. The Court can always lift the veil and see the

circumstances behind it”.

14. The learned Counsel for the petitioner further

submit that the nature of transfer order seems to be

arbitrary and vindictive nature the order of transfer

issued by the respondent management is not at all

tenable and the same has to be quashed and the

petitioner needs to be reinstated in the Puducherry

factory with back wages and all other attendant benefits.

15. The learned Counsel for the respondent in his

strenuous argument submit that he respondent is a

Public Limited Company registered under the

Companies Act. The respondent is having 34 factories

all over India and employing more than 5,000 employees.

The respondent management is a professionally

managed company and does not have any unethical

approach towards its employees. The respondent

management has taken over M/s. Henkel India Limited

at Karaikal and all the regular employees of the Henkel

India Limited were opted for voluntary retirement and

therefore, the management settled their accounts by

being compensation. Since, there was no regular

employee at Karaikal factory the respondent has

transferred some workers form various units to the

Karaikal unit with a good intention of utilizing their

services in the new unit. The transfer of the petitioner

is purely out of exigency. In the order of appointment,

dated 03-11-1999 there is a specific clause No. 3 that

the petitioner is liable to be transferred from Puducherry

unit to any other unit of the respondent management.

16. The learned Counsel for the respondent further

submit that in clause 6.6 of the standing orders “a workman

shall be liable to be transferred to any department or

178

LA GAZETTE DE L’ETAT

[8 March 2022

section of the establishment or to any other place of

business of the company subject to exigencies”. The

learned Counsel for the respondent has invited the

Court attention to the Judgment of Hon’ble Supreme

Court of India in M/s. Kundan Sugar Mills vs.

Ziyauddin and others 1960 AIR 650 “Held, that apart

from any statutory provision, the right of an employee

and an employer are governed by the terms of contracts

between them or by the terms necessarily implied

therefrom, but, in the absence of an express agreement

between the employer and employees it cannot

necessarily be implied that the employer has the right

to transfer the employee to any of its concerns in any

place, and that the employee has a duty to join the

concern to which he may be transferred. In this instant

case, it was not a condition of service of employment

of the concerned workmen either express or implied that

the employer had the right to transfer them to a new

concern started by the employment subsequent to the

date of the employment”.

17. The learned Counsel for the respondent further

submit that “transfer of an employee in the

circumstances of that case from one post to another

was held not to be an alteration of any service condition

within the meaning of section 33 of the Industrial

Disputes Act”. The case law was reported in (1956)

1 LLJ 343. The learned Counsel for the respondent has

also invited this Court attention to the judgment of

Hon’ble Calcutta High Court Susmriti Das and others

vs. Basumati Corporation Limited, the case law reported

in (1994) 1 LLJ 26 Calcutta reiterate the position of law

in respect of transfer of an employee.

18. The respondent has maintaining cordial

relationship with three Trade Unions to maintaining

industrial harmony and peace. The respondent does not

have any mala fide intention to transfer the petitioner

and the transfer order was issued purely due to

business exigency. The learned Counsel for the re

pondent further submit that the order of transfer was

not issued to victimize the petitioner. In this respect,

the learned Counsel for the respondent has invited this

court attention to the judgment of Hon’ble Apex Court

in State of Bihar and Another vs. P.P. Sharma, I.A.S and

Another case law reported in 1992 Supp (1) sce 222 held

“this Court held that mala fide means want of good

faith, personal bias, grudge, oblique or improper motive

or ulterior purpose. The plea of mala fide involves two

questions, namely, (i) whether there is a personal bias

or an oblique motive, and (ii) whether the administrative

action is contrary to the objects, requirements and

conditions of a valid exercise of administrative power.

As far as second aspect is concerned, there is a power

of transfer vested in the employer in terms of letter of

appointment. Even in terms of the provisions in terms

of Act, the transfer by itself cannot be said to be an

Act of unfair labour practice unless it is actuated by

mala fide. Therefore, to sustain a plea of mala fide,

there has to be an element of personal bias or an

oblique motive”.

19. The learned Counsel for the respondent further

submit that if, an employee employed a person it was

exploited in the appointment order and employee can

be transferred to any place depends upon the

requirement of the employer. It is further submitted that

the transfer is an incident of service and an

administrative function. The employer is the best judge

about the requirement and posting of its employees.

The learned Counsel for the respondent further submit

that the petitioner having voluntarily abetting his duty

from the date of his transfer is not entitle for any back

wages and any other benefits applying the principles

of “No work, No pay” and prayed for dismissal of the

petition.

20. This Court has carefully considered the rival

submissions and exhibits marked on both sides and

written arguments filed by the respondent side. The

petitioner was working in the respondent management

from the year 1998. From the year 2000 onwards he acted

as the Vice-President of Jyothi Laboratories Limited

(PMTUC). According to the petitioner the respondent

management has a grudge over his active involvement

in the Trade Union and for the welfare of the workers

of the respondent management and has issued the

transfer order with a vindictive motive and to victimize

the petitioner. But, on the respondent side the

contention of the petitioner was denied and submitted

that even though the petitioner was Vice-President of

the alleged Association the transfer order were issued

only in the year of 2017 are facts which can establish

that the respondent has no ulterior motive or mala fide

intention as against the petitioner.

21. The respondent management has contended that

they have spent a sum of ` 55,000 for heart surgery of

the petitioner’s daughter in the year 2006 and the

respondent is always taken care of the well being of the

worker a well as their family members. It was further

contended on the respondent side that the respondent

always maintained the healthy relationship and sort out

the differences by way of negotiations with Trade

Union. Ever since establishment of the respondent

management there was no industrial unrest for whatever

reasons.

22. On the petitioner side it was contended that

there was no condition prescribed in the appointment

order that the respondent is entitled to transfer to any

179

8 March 2022]

LA GAZETTE DE L’ETAT

other factories managed by the respondent. Further on

the respondent side they have produced Ex.R1 which

is the copy of the transfer order wherein the petitioner

has put his signature for the receipt of the order of

transfer. However, it was vehemently denied by the

petitioner that the signature found in Ex.R11 was not

made by the petitioner and the same was not his

signature. When the signature of the petitioner is

denied the onus is that respondent to prove the

genuineness of the appointment order. Further the

respondent has not taken any further steps to prove

the Ex.R11 appointment order which was allegedly

issued by the management and allegedly received by

the petitioner. Though the respondent is contended that

as per clause 6.6 of the certified standing orders of the

employee is liable to be a transfer to any other unit.

However the certified standing orders were not marked

by the respondent during trial. However, a copy of the

certified standing orders was submitted by the

respondent side during arguments. On the respondent

side genuineness of the Ex.R11 was questioned. In this

respect, the learned Counsel for the petitioner submit

that Ex.R11 is a created document for the purpose of

this Court case and that is why Ex.R11 was not produced

during earlier stages of trial.

23. RW.1 Sivaraman the Officer (H.R.) during

cross-examination admitted that there are about 340

permanent workers and 129 unskilled workers employed

with the respondent management. RW.1 further admitted

the petitioner is a general worker and he is in the 3rd

place of the seniority list maintained by the respondent

management. Ex.R5 to R.10 are the transfer orders

issued to Sivakumar (Technician), Annamalai

(Engineering Section Officer), Thulasi (Welder),

Manivannan (Office Staff), Rajagopal (Fabricator),

Manickam (Electrical Technician).

24. The respondent management contended that the

transfer of the petitioner is purely on exigency basis

and need basis and there is no victimization for whatever

reason. This Court has perused the transfer letter issued

on 03-04-2017 by the respondent management. In the

transfer letter there is no “exigency or need was

mentioned”. The reason stated by the respondent is

that in order to train the contract labours of the Henkel

India Limited, Karaikal unit which was taken over by the

respondent management. The service of the experienced

persons is required to give training to the inexperienced

persons. The petitioner all along worked with the

respondent only as a loadman and he does not posses

any technical qualification. On the perusal of Ex.R5 to

R.10 the persons who were transferred on 24-12-2012,

13-07-2013 and 08-05-2013. This persons who were

technically. qualified and persons worked in the

administrative section were transferred from 24-12-2012

to 13-07-2013. Where as the petitioner was transferred

by transfer order, dated 03-04-2017 that is three years

after the Henkel India Limited was taken over by the

respondent management. The transfer order issued after

three year from the date of transfer of other employees

create serious suspicion about the alleged exigency

stated by the respondent. The respondent management

has admitted that they have spent a sum of ` 55,000

towards heart surgery of the petitioner’s daughter and

it is well known to the wisdom of a common man that a

child underwent a heart surgery required continuous

medication and constant care. The petitioner has to

travel about 250 kilometers to attend his work from

Puducherry to Karaikal and returned to home from

Karaikal to Puducherry. In the evidence of RW.1 he has

deposed that the petitioner is in the 3rd place in the

general worker category and the other persons who

were stood 1st and 2nd in the seniority list were not

transferred to meet out the alleged exigency. RW.1 Thiru

Sivaraman during cross-examination deposed that he

don’t know how many unskilled labours were transferred

and he further deposed that no other unskilled workers

were transfered before the transfer issued to the

petitioner Arumugam.

25. There is plethora of decision of the Hon’ble Apex

Court and our Hon’ble High Court that the employer

being the master is entitled to take decision in respect

of transfer of an employee on the administrative side.

At the same time the order of transfer must exhibit the

bona fide of the employer. The reason attributed by the

respondent for the transfer of the petitioner is not at

all proved through cogent evidence and this Court is

of the considered opinion that the respondent lack

bona fide in issuing orders of transfer to the petitioner

and on the score alone the order of transfer issued by

the respondent management to the petitioner by

transfer him to the Karaikal factory is liable to be

quashed. Even before issuance of transfer order the

petitioner has approached the Labour Officer

(Conciliation), Puducherry and it is admitted by both

sides that the petitioner has not attended the duty from

the date of issuance of transfer order. The petitioner is

without any job from the date of transfer order till date

and suffering a lot without any employment and he is

struggling for his livelihood. At the same time, this Court

is not inclined to order for any back wages by applying

the principles of “No work, No pay”. From the overall

discussion this Court is of the considered opinion that

the transfer of the petitioner from Puducherry to

Karaikal factory is not justified.

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LA GAZETTE DE L’ETAT

[8 March 2022

26. In the result, the petition is allowed. The respondent

management is directed to give employment to the

petitioner in the respondent management M/s. Joythi

Laboratories Limited, Thethampakkam, Puducherry, with

continuity of service within a period of six weeks from

the date of this Award. No costs.

Dictated to Stenographer, transcribed by him, corrected

and pronounced by me in the open Court on this the

30th day of December 2021.

R. BHARANIDHARAN,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.

List of petitioner’s witnesses:

PW.1

— 29-08-2019

Arumugam

PW.2

— 18-12-2019

Pushpa

List of petitioner’s exhibits:

Ex.P1

— March

Pay Slip of the petitioner for

2017

the month of March 2017.

Ex.P2

— 07-04-2017

Letter to the Labour Officer

Conciliation by the

petitioner.

Ex.P3

— 08-05-2017

Letter to the Labour Officer

Conciliation

by

the

Respondent.

Ex.P4

— 02-06-2017

Letter to the Labour Officer

Conciliation by the Petitioner.

Ex.P5

— 13-07-2017

Form-I submitted by the

respondent to the Labour

Officer Conciliation.

Ex.P6

— 02-08-2017

Reply to Form-I.

Ex.P7

— 28-11-2006

Discharge Summary issued by

Department of Cardiothoracic

and

Vascular

Surgery.

Discharge

Summary

–

Pondicherry Institute of

Medical Sciences.

Ex.P8

— 04-02-2018

C e r t i f i c a t e i s s u e d b y

Dr. Manimarane.

List of respondent’s witness:

RW.1

— 16-03-2020

Sivaraman

List of respondent’s exhibits:

Ex.R1

— 03-04-2017

Copy of the Transfer letter

issued by the Respondent

to the Employee by name

Arumugam.

Ex.R2

— 12-04-2017

Copy of the covering letter

with copy of the Conciliation

letter, dated 07-07-2017

submitted to the Conciliation

Officer by the employee

Arumugam.

Ex.R3

— 08-05-2017

Copy of the reply letter

submitted

to

the

Conciliation Officer by the

Respondent Management.

Ex.R4

— 13-07-2017

Copy of the Form-I submitted

by

the

Respondent

Management before the

Labour Officer, Conciliation

under section 33(1) of ID

Act, 1947.

Ex.R5

— 24-12-2012

Copy of the Transfer Order

issued by the Respondent

Management

to

the

employee G. Manickam.

Ex.R6

— 24-12-2012

Copy of the Transfer Order

issued by the Respondent

Management

to

the

employee R. Annamalai.

Ex.R7

— 24-12-2012

Copy of the Transfer Order

issued by the Respondent

Management

to

the

employee D. Manivannan.

Ex.R8

— 13-07-2013

Copy of the letter issued by

the Respondent Management

to the employee by name

P. Thulasi.

Ex.R9

— 13-07-2013

Copy of the letter issued by

the Respondent Management

to the employee by name

Shivakumar.

Ex.R10 — 08-05-2013

Copy of the letter issued by

the Respondent Management

to the employee by name

K. Rajagopal.

Ex.R11 — 03-11-1999

Copy of the Appointment

Order of the petitioner

Arumugam issued by the

Respondent Management.

R. BHARANIDHARAN,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.