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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
√¬ÔD
Page
Page
ÿ>Va_ ¿]\[≈› yÏ©AÔ^ ..
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
Œ©√ ∂§s©AÔ^
..
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.