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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.

Poudouchéry

Mardi

Janvier

2023 (13 Pausa 1944)

No.

Puducherry

Tuesday

3rd

January

2023

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SOMMAIRES

CONTENTS

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Page

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Sentence arbitral du Travail

Award of the Labour Court ..

de Tribunal.

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Notifications du Gouvernement

Government Notifications

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Avis d’ appel d’ offres

Tender Notice

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Etablissements dangereux

Dangerous Establishments

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Annonces

Announcements

LA GAZETTE DE L’ETAT

[3 January 2023

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 166/AIL/Lab./T/2022,

Puducherry, dated 15th December 2022)

NOTIFICATION

Whereas, an Award in I.D (T) No. 25/2019, dated

10-11-2022 of the Industrial Tribunal-cum-Labour Court,

Puducherry, in respect of dispute between the

management of M/s. The Pondicherry Co-operative Milk

Producers’ Union Limited, No. P.1, Kurumampet,

Puducherry and Ponlait Thozhilalar Sangam, Orleanpet,

Puducherry, over promotion of Thiru R. Magesh,

Operator (Boiler) Grade-I as Technical Superintendant;

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. 20/9/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)

P. RAGINI,

Under Secretary to Government (Labour).

————

BEFORE THE INDUSTRIAL TRIBUNAL -CUM-

LABOUR COURT AT PUDUCHERRY

Present :Tmt. V. SOFANA DEVI, M.L.,

Presiding Officer.

Thursday, the 10th day of November 2022.

I.D. (T) No. 25/2019

CNR. No. PYPY06-000056-2019

The President/Secretary,

Ponlait Thozhilalar Sangam,

No.7- 8, Moovendar Street,

Mullai Nagar, Puducherry.

. . Petitioner

Versus

The Managing Director,

M/s. Pondicherry Co-operative Milk

Producers’ Union Limited,

No. P1, Vazhudavur Road, Kurumampet,

Puducherry.

. . Respondent

This Industrial dispute coming on 20-10-2022 before

me for final hearing in the presence of Thiruvalargal

M. Veerappan and V.R. Aroumougam, Counsel for the

Petitioner, Thiruvalargal L. Swaminathan and

I. Ilankumar, Counsel for the respondent and after

hearing both sides and perusing the case records, this

Court delivered the following:

AWARD

This Industrial Dispute arises out of the reference

made by the Government of Puducherry vide G.O. Rt.

No. 100/AIL/Lab./T/2019, dated 11-07-2019 of the Labour

Department, Puducherry, to resolve the following

dispute between the Petitioner and the Respondent, viz.,

(a) Whether the dispute raised by the Ponlait

Thozilalar Sangam, Orleanpet, Puducherry, against

the Management of M/s. The Pondicherry

Co-operative Milk Producers’ Union Limited, No. P.1,

Kurumampet, Puducherry, over promotion of Thiru

R. Magesh, Operator (Boiler) Grade-I as Technical

Superintendent is justified or not? If justified, what

relief he is entitled to?

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

of money if, it can be so computed?

2. Brief facts of the case of the Petitioner:

The Petitioner Mr. R. Magesh who is the President

of the Petitioner’s Sangam has raised the dispute

against the Respondent over violation of service

conditions and practice so far followed by the

Respondent Management. Since 2003, the Petitioner

had been working in the Maintenance Department of

the Respondent Management. Due to the promotion

given to the four Technical Superintendent as

Assistant Manager in the Maintenance Department,

four vacancies had arisen in the post of Technical

Superintendent in the Maintenance Department.

Instead of giving opportunity to the working

employees who are qualified, the Respondent

Management had approached the Employment

Exchange, Labour Department, Puducherry to fill the

four posts of Technical Superintendent. Based on

the advertisement in the Local news daily by the

employment Exchange published calling for

applications from the public for the post of Technical

Superintendent. The Act of the Respondent

Management trying to give appointment to the

outsiders is against the Principles of equity, practice

and service conditions of the Respondent Society.

As per the information got under R.T.I Act, the

Respondent Management has admitted that ten

employees were working as Technical Superintendent

as on 31-12-2015 and from them, except one employee

others are regular employees. The Petitioner

possessed the required qualification and eligible as

per the service conditions such as pass in Degree,

possessing Certificate of Diploma in Mechanical

3 January 2023]

LA GAZETTE DE L’ETAT

Engineering, P.G. Diploma in Dairy Technology and

also possessed Certificate issued from National

Apprenticeship in the Trade of Boiler Attendant and

ITI Fitter Trade. He has 16 years experience in the

field of Maintenance Department under the

Respondent Management and therefore, he is eligible

for consideration to be appointed as Technical

Superintendent in one of the resultant vacancies of

the said post. He made several representations on

18-06-2015, 07-07-2015, 04-03-2016 and 25-08-2016 to

the Respondent Management to consider his case by

giving preference than choosing outsiders for

offering appointment to the post of Technical

Superintendent in the Respondent Management. But,

the Respondent failed to act so far, without any

justification.

(ii) Without adhering to the appointment of

working employees who possessed required

qualification and experiences to hold the post of

Technical

Superintendent,

the

Respondent

Management tried to bring outsiders for extraneous

reasons for appointment as Technical Superintendent.

Therefore, in order to get suitable remedy and justice,

Petitioner approached the Conciliation Officer. But,

it was failed due to the extraneous stand taken by

the Respondent Management citing that an I.D. Note

issued on 23-03-2018 by the Department of Personal

and Administrative Reforms Wing at Puducherry and

as per the said I.D Note W.P. No. 24492/2010, ordered

on 22-11-2017 by the Hon’ble Madras High Court

wherein, it has been observed that large number of

illegal and irregular appointment was made by the

authorities and in some point of time, this Court

bound to correct such wrong doing of the

Authorities in the matter of Appointment,

Regularization or Permanent absorption. The

Respondent Management informed to the Conciliation

Officer that the said order was equally apply to the

Respondent management.

(iii) The abovesaid I.D. Note was applicable only

to the Government Departments and Corporations run

directly by the Government of Puducherry and the

said note was not applicable to the Respondent

Management as the same was formed as separate

entity as Co-operative Society and has separate

administration of Board of Directors with governing

rules and regulations for running the administration.

The case of the Petitioner was different one and he

is a regular employee in the Respondent Society and

he was seeking the Respondent Management to

consider him for appointment to the vacant post of

Technical Superintendent as four of the Technical

Superintendent were promoted to the post of

Assistant Manager by the Respondent Management

and due to the resultant vacancy caused by way of

promotion of the employees who served in the post

Technical Superintendent, he requested the

Respondent Management to consider him for any one

of the said post of Technical Superintendent and this

was also necessitated due to the fact that the

Respondent Management called through newspaper

advertisement invited application to fill the post of

Technical Superintendent. Hence the claim.

3. Brief facts of the case of the Respondent:

With regard to the maintainability issue,

representation through Ponlait Thozhilalar Sangam,

the relief sought in the claim statement filed under

section 10(1) (d) of Industrial Disputes Act, 1947 by

R. Magesh, the President of the Sangam is to direct

the Respondent Management to consider the

Petitioner before inviting outsiders in the Post of

Technical Superintendent in the vacancies that arose

out of 4 employees who were promoted as Assistant

Managers. Mr. R. Magesh had filed petition, dated

01-09-2017 before the Labour Officer (Conciliation),

Puducherry under section 2 (k) and 4 (1) of the

Industrial Disputes Act, 1947 in his individual name

praying to give preference for offering appointment

as Technical Superintendent as 4 vacancies were

available in Ponlait and to consider him for

appointment to the said post either in Maintenance

or in the Dairy Section. He had also filed rejoinder,

dated 05-04-2018 before the Labour Officer

(Conciliation), Puducherry, in his individual name.

Whereas, the Failure Report, dated 11-01-2019 states

that “Industrial Dispute of Mr. R. Magesh is

represented by Ponlait Thozhilalar Sangam” and the

consequent Notification, dated 11-07-2019 of the

Commissioner of Labour-cum-Additional Secretary,

Puducherry, divulge that “the dispute is raised by

Ponlait Thozhilalar Sangam, Orleanpet, Puducherry,

against the Management of Puducherry Co-operative

Milk Producers’ Union Limited over promotion of

Mr. R. Magesh”.

(ii) When Mr. R. Magesh had raised the dispute,

over his promotion which is a service dispute in his

individual name in the Conciliation Proceedings,

inclusion of the name President/Secretary, Ponlait

Thozhilalar Sangam, is bad under law. It has been

held by various decisions of the Hon’ble High Court

of Judicature, Madras and Hon’ble Apex Court that

for the matters pertaining to service dispute of an

individual employee Trade Unions cannot espouse

the cause, the grievances of the said individual

employee. The President/Secretary, Ponlait Thozhilalar

Sangam being the Petitioner herein is not the person

LA GAZETTE DE L’ETAT

[3 January 2023

said to have been aggrieved and the said Ponlait

Thozhilalar Sangam is a stranger who cannot be

permitted to espouse the cause of the individual

dispute involving service matters and does not have

any existing right to any post and not intrinsically

concerned with any service matter is not entitled to

approach this Court. The very objective of framing

of section 2-A of the Industrial Disputes Act, 1947

would get defeated. Ponlait Thozhilalar Sangam is

not the aggrieved person and there exists no dispute

between Ponlait Thozhilalar Sangam and the

administration of Ponlait and therefore, invoking

section 2 (k) of the Industrial Disputes Act, 1947

cannot be entertained.

(iii) Mr. R. Magesh had approached the machineries

contemplated under the Industrial Disputes Act, 1947

pre-maturedly without any cause of action/without

any impugned order and hence, the present dispute

on consideration of promotion to Mr. R. Magesh

cannot be entertained by this Court.

(iv) Mr. R. Magesh herein, had approached the

Forum of the Registrar of Co-operative Societies,

Puducherry under NMD No. 3 of 2016 by invoking

section 84(1) (b) of the Pondicherry Co-operative

Societies Act, 1972 to fit him in appropriate

designation under the pay band of ` 5,200-20,200+GP

of ` 2,400 with effect from 01-07-2007 and

redesignate him as Boiler Attendant Grade-I with

effect from 01-07-2008 with all attendant benefits. The

Registrar, Co-operative Societies, Puducherry,

transferred NMD No. 3/2016 to the Deputy Registrar

of Co-operative Societies, Puducherry, for disposal.

After filing of the reply by the Administration of

Ponlait, the Deputy Registrar of Co-operative

Societies (Audit), Puducherry, had dismissed NMD

No. 3 of 2016 on 09-02-2017. As against which Mr. R.

Magesh had preferred an Appeal by invoking section

140 (1) of the Pondicherry Co-operative Societies

Act, 1972 before Hon’ble Principal District Judge

Court, (Co-operative Tribunal), Puducherry under

Co-operative Appeal No. 2 of 2018 which is pending

consideration.

(v) Having approached the Registrar of Co-operative

Societies by invoking Pondicherry Co-operative

Societies Act, 1972 under NMD No. 3 of 2016 for

fitting him in the higher scale of pay with

redesignation which is a service dispute and on the

contrary had approached this Court, for adjudication

of another service dispute under I.D. (T) 25/2019 for

consideration of his promotion to the post of

Technical Superintendent and thus, R. Magesh is

doing Forum shopping by choosing the Court of Law

according to his convenience which has to be highly

censured.

(vi) Promotion in services is not a matter of right

and it can only be considered as and when the

individual is eligible as per rules of the

administration. In the instant case, Mr. R. Magesh,

Operator Grade-I (Boiler) was engaged as Casual

Worker from 27-07-2005 and possessed the

qualification of SSLC and I.T.I (Fitter) with a

Certificate in II Class Boiler Attendant at the time of

engagement as Casual worker in Ponlait. Further,

Mr. R. Magesh was placed in the V Pay Time-Scale

Payment commencing from 01-07-2007 to 30-06-2008

and in the VI Pay Time-Scale Payment commencing

from 01-07-2008 to 30-10-2011. Subsequently, he was

appointed as Operator (Boiler) purely on temporary

basis with effect from 01-11-2011 and was fixed in the

Pay Band of ` 5,200-20,200 plus Grade Pay ` 1,900

vide Office Order, dated 17-11-2011 issued by the then

Managing Director of Ponlait. Thereafter, the said

Mr. R. Magesh was promoted to the post of Operator

Grade-I (Boiler) purely an ad hoc and temporary

basis with effect from 01-03-2016 and placed in the

Pay Band of ` 5,200 - 20,200 plus Grade Pay ` 2,400

vide Office Order, dated 01-03-2016 of the then

Managing Director of Ponlait and the services of

Mr. R. Magesh is purely temporary and has not been

regularized.

(vii) The

existing

approved

Subsidiary

Regulations Governing the Service Conditions of the

employees of Ponlait does not contain the post of

Technical Superintendent and there is no sanctioned

strength and the question of vacancy as imagined

by the said Mr. R. Magesh does not exist. Unless and

until amended recruitment rules as approved by the

Registrar of Co-operative Societies is notified, the

claim of the said Mr. R. Magesh to consider him for

promotion to the post of Technical Superintendent

cannot be considered and entertained more

particularly in the absence of rules and vacancies.

4. Point for determination:

Whether, the Petitioner Union is entitled for an

order directing the Respondent Management to

consider Mr. R. Magesh for the Promotion to the Post

of Technical Superintendent in the Respondent

Management of the Society?

5. On Point:

On Petitioner side, PW1 Mr. R. Magesh, Petitioner

himself examined and Ex.P1 to P6 marked. During

cross-examination of PW1, Respondent Management

marked Ex.R1 through PW1. No oral evidence

adduced on the side of the Respondent Management

of the Society.

3 January 2023]

LA GAZETTE DE L’ETAT

6. On the point:

The first and the foremost objection raised by the

Respondent Management of the Society is that Trade

Unions cannot espouse the cause the grievances of

the said individual employee on service dispute. In

support of the above contention, the arguments put

forth on its side that Mr. R. Magesh had filed

petition, dated 01-09-2017 before the Labour Officer

(Conciliation), Puducherry under section 2 (k) and 4

(1) of the Industrial Disputes Act, 1947 in his

i n d i v i d u a l n a m e . H e a l s o f i l e d r e j o i n d e r,

dated 05-04-2018 before the Labour Officer

(Conciliation), Puducherry in his individual name.

When Mr. R. Magesh had raised the dispute, over

his promotion which is a service dispute in his

individual name in the Conciliation Proceedings, and

the subsequent inclusion of the name President/

Secretary, Ponlait Thozhilalar Sangam is bad under

law and the reference of the Dispute by the

Government of Puducherry is not in consonance with

the dispute raised before the Labour Department,

Government of Puducherry. Further, it is contended

that the Hon’ble High Court of Judicature, Madras

and Hon’ble Apex Court on various occasions held

that for the matters pertaining to service dispute of

an individual employee, Trade Unions cannot

espouse the cause the grievances of the said

individual employee. The President/Secretary, Ponlait

Thozhilalar Sangam being the Petitioner herein is not

the person said to have been aggrieved and the said

Ponlait Thozhilalar Sangam is a stranger who cannot

be permitted to espouse the cause of the individual

dispute involving service matters and does not have

any existing right. If, such petitions are entertained,

the very objective of framing of section 2-A of the

Industrial Disputes Act, 1947 would get defeated.

Ponlait Thozhilalar Sangam is not the aggrieved

person and there exists no dispute between Ponlait

Thozhilalar Sangam and the Administration of Ponlait

and therefore, invoking section 2 (k) of the Industrial

Disputes Act, 1947 cannot be entertained.

7. Per contra, the learned Counsel appearing for the

Petitioner would say that the Labour Department,

Government of Puducherry vide its notification has made

over the said industrial dispute to this Tribunal to

decide the issue on merits by way of a valid reference

and thus according to the Government of Puducherry

the dispute existed has to be resolved by the competent

Forum. He further argued that the only authority which

can form such an opinion is the Government. In support

of his above contention, the learned Counsel appearing

for the claim Petitioner has referred and relied upon the

following case law reported in (2011) 1 LLJ 265-Bharat

Heavy Electricals Limited Vs. State of Uttarakhand and

Others and State of U.P (Now Uttarakhand) and others.

8. Heard both on this point. Perused the records in

this regard. The Hon’ble Apex Court in its Judgment in

Newspaper Limited, Allahabad Vs. Industrial Tribunal

(AIR 1960 SC 1328) has held that “any individual

dispute to be declared as an industrial dispute the

following conditions are to be satisfied. (i) when a body

of workmen Trade Union or a considerable number of

workmen, are found to have common cause with the

individual workman. (ii) when the body of the workmen

either acting to their Union or otherwise had sponsored

a workman’s case it becomes an industrial dispute

provided the support or sponsorship obtained must be

the workmen of the employer against whom the dispute

is sought”. Thus, an individual dispute to fall within

the definition of industrial dispute, it must be sponsored

by the Trade Union of the workmen or if, there is no

Trade Union, it must be sponsored by the majority of

the workmen or it must comply the requirements of

section 2(A) of Industrial Disputes Act 1947. In Jadhav.

J.H vs. Forbes Gobak Limited, it has been held that a

dispute relating to a single workman may be an

industrial dispute if, either it is espoused by the Union

or by a number of workmen irrespective of the reason

the Union espousing the cause of workman was not the

majority of the Union.

9. Therefore, keeping in mind the above ratio held

by the Hon’ble Apex Court, the case in hand and the

documents filed were verified. On verification it is found

that initially the Petitioner Mr. R. Magesh in his

individual capacity has moved his representation before

Labour Officer (Conciliation), Puducherry for the relief.

Rejoinder also filed by the Petitioner Mr. R. Magesh in

his individual capacity objecting the counter statement

filed by the Management Society before the Labour

Officer (Conciliation), Puducherry. Whereas, the

reference was made by the Labour Department,

Government of Puducherry, as the dispute that has

arisen between the Ponlait Thozhilalargal Sangam and

the Managing Director, Pondicherry Co-operative Milk

Producers Union Limited, Puducherry, over Promotion

of Mr. R. Magesh, under section 10 (1) (d) of industrial

disputes Act, 1947.

10. In the Counter Statement filed the Respondent

Society in this industrial dispute, a specific plea has

been raised that all of a sudden the Failure Report,

dated 11-01-2019 states that industrial dispute of

Mr. R. Magesh is represented by Ponlait Thozilalargal

Sangam and consequent notification, dated 11-07-2019

of the Commissioner of Labour-cum-Additional

LA GAZETTE DE L’ETAT

[3 January 2023

Secretary, Puducherry, divulge that the dispute is raised

by Ponlait Thozilalargal Sangam against the Management

of Pondicherry Co-operative Milk Producers Union

Limited, Puducherry, over promotion of Mr. R. Magesh.

Therefore, it is contended by the Respondent Society

that dispute over promotion is a service dispute which

was raised in his individual name by the Petitioner

Mr. R. Magesh in the Conciliation proceedings and

subsequent inclusion of the name of President/

Secretary, Ponlait Thozilalargal Sangam is bad under

law and the reference under section 10 of the Industrial

Disputes Act, 1947 made in this case invoking section 2 (k)

of Industrial Disputes Act, 1947 cannot be entertained.

11. Though it is a service dispute over Promotion

raised by the individual before the Conciliation

proceedings, but, later, i.e., before the reference made

by the Government of Puducherry, the dispute has been

espoused by the Union namely, Ponlait Thozilalargal

Sangam in which aggrieved individual workman is the

Member of the said Sangam. Here, in this case as per

the claim statement, the aggrieved workman Mr. R.

Magesh who raised the Industrial Dispute over his

promotion is the President of the said Petitioner

Sangam. As the President of the Sangam Mr. R. Magesh

has filed the claim petition before this Court. Since, the

reference was already made by the Government of

Puducherry showing that Industrial Dispute raised

between Ponlait Thozilalargal Sangam and Pondicherry

Co-operative Milk Producers Union Limited, Puducherry,

then the dispute though it is an individual dispute it

becomes an industrial disputes when it is espoused by

the Union. Even before the reference made by the

Labour Department, Government of Puducherry, the

present dispute was espoused by the Union and

therefore, the contention of the Respondent Society

that individual dispute is bad in law, cannot be

accepted. It is not that the reference was made to this

Court, in the individual name of the Petitioner and

subsequently, it has been espoused by the Union

pending disposal of the Industrial Dispute. If so,

subsequent espousal will render the reference invalid.

Therefore, the date when the dispute was espoused is

important. Here, in the instance case admittedly in the

notification for the reference itself the Union name

mentioned and thus the dispute was espoused even

before the reference of this dispute made to this Court.

Therefore, I hold that though the promotion being a

service dispute when it is espoused or sponsored by

the Union even before the reference to this Court, it is

an Industrial Dispute and the reference made by the

Labour Department, Government of Puducherry under

section 10(1) (d) of Industrial Disputes Act, 1947, holds

good and maintainable.

12. Next, it is contended on the Respondent

Management of the society that having approached the

Registrar of Co-operative Societies by invoking

Pondicherry Co-operative Societies Act, 1972 under

NMD No. 3 of 2016 for fitting him in the higher Scale

of Pay with redesignation which is a service dispute and

on the contrary had approached this Court, for

adjudication of another service dispute under I.D. (T)

25/2019 for consideration of his promotion to the post

of Technical Superintendent and thus Mr. R. Magesh

is doing Forum shopping by choosing the Court of Law

according to his convenience which has to be highly

censured.

13. Industrial Disputes Act is an existing Act falling

under Entry 22 of List III to Schedule VII of the

Constitution of India, viz., Trade Unions; Industrial and

Labour disputes. Industral Disputes Act was enacted

to make provisions for the investigation and settlement

of Industrial disputes and for the other purposes that

are mentioned in the Act. In so far as it is relevant,

section 2(j) defines ‘industry’, 2(k) defines ‘industrial

dispute’ and 2(s) defines ‘workman’. Chapter II of the

Industral Disputes Act provides for the authorities

under the Act and Chapter III provides for reference of

disputes to Boards, Courts or Tribunals. Chapter IV

provides the procedure, powers and duties of

authorities under the Act. Jurisdiction of the Labour

Courts and Industrial Tribunals functioning under the

Industral Disputes Act are not excluded and the

disputes of the nature which are explained in the

Judgment of the Apex Court in Premier Automobiles

Limited, would still be within the purview of the Labour

Courts and Industrial Tribunals also. In other words,

the legal position is that the issue regarding Promotion

can be tried by the Industrial Tribunals and Jurisdiction

is concurrent and the Reference made by the

Government Order for over promotion not suffers from

any infirmities. Further, a dispute referred by the

Government of Puducherry, where the claim was

espoused by the Union on behalf of the Individual

raised against the Management. Therefore, the

contention of the learned Counsel for the Respondent

Management Society regarding Forum Shopping also

not acceptable and thus not sustainable.

14. The next and last question to be decided is that,

“whether Mr. R. Magesh is entitled for an order from

this Court directing the Management Society to

consider his Promotion”. On this point, the Respondent

Society has submitted that Services of Mr. R. Magesh

is purely temporary and has not been regularized and

his claim is Premature one, since no cause of action/

without any impugned order the dispute has been

raised. It is also argued that the Promotion in services

3 January 2023]

LA GAZETTE DE L’ETAT

is not a matter of right and it can only be considered

as and when the individual is eligible as per rules of

the administration. In the instant case, Mr. R. Magesh,

Operator Grade-I (Boiler) was engaged as Casual Worker

from 27-07-2005 and possessed the qualification of

S.S.L.C. and I.T.I (Fitter) with a Certificate in II Class

Boiler Attendant at the time of engagement as

Casual worker in Ponlait. Further, it is contended that

Mr. R. Magesh was placed in the V Pay Time-Scale

Payment commencing from 01-07-2007 to 30-06-2008 and

in the VI Pay Time-Scale Payment commencing from

01-07-2008 to 30-10-2011. Subsequently, Mr. R. Magesh

was appointed as Operator (Boiler) purely on temporary

basis with effect from 01-11-2011 and was fixed in the

Pay Band of ` 5,200-20,200 plus Grade Pay ` 1,900 vide

Office Order, dated 17-11-2011 issued by the then

Managing Director of Ponlait. Thereafter, the said

Mr. R. Magesh was promoted to the post of Operator

Grade-I (Boiler) purely an ad-hoc and temporary basis

with effect from 01-03-2016 and placed in the Pay Band

of ` 5,200-20,200 plus Grade Pay ` 2,400 vide Office

Order, dated 01-03-2016 of the then Managing Director

of Ponlait and the services of Mr. R. Magesh is purely

temporary and has not been regularized. Mr. R. Magesh

had approached the machineries contemplated under

the Industrial Disputes Act, 1947 pre-maturedly without

any cause of action/without any impugned order and

hence, the present dispute on consideration of

Promotion to Mr. R. Magesh cannot be entertained by

this Court.

15. Whereas, on the side of the Petitioner Union, it

is argued that since 2003 the Petitioner had been

working in the Maintenance Department of the

Respondent Society. Instead of giving opportunity to

the working employees who are qualified, the

Respondent Society had approached the Employment

Exchange, Labour Department, Puducherry, to fill the

four posts of Technical Superintendent. The act of the

Respondent Society trying to give appointment to the

outsiders is against the Principles of equity, practice

and service conditions of the Respondent Society. It is

also submitted that the Petitioner possessed the

required qualification and also eligible as per the service

conditions such as pass in Degree, possessing

Certificate of Diploma in Mechanical Engineering, P.G.

Diploma in Dairy Technology and also possessed

Certificate issued from National Apprenticeship in the

Trade of Boiler Attendant and ITI Fitter Trade. He has

16 years experience in the field of Maintenance

Department under the Respondent Management and

therefore, he is eligible for consideration to be

appointed as Technical Superintendent in one of the

resultant vacancies of the said post. He further added

that he had made several representations on 18-06-2015,

07-07-2015, 04-03-2016 and 25-08-2016 to the Respondent

Management to consider his case by giving preference

than choosing outsiders for offering appointment to the

post of Technical Superintendent in the Respondent

Society but, the Respondent failed to act so far without

any justification.

16. Heard both on this point at great length.

Promotion refers to upward movement in present job

leading to greater responsibilities, higher status and

better salary. In State of Mysore vs. Narasingh Rao-AIR

1968 SC 349 and Markandeya vs. State of Andra

Pradesh-AIR 1989 SC 1308, held that Educational

Qualifications can be made the basic for classification

of employees in the matter of Pay Scales, Promotions,

etc., Higher Pay Scale can be prescribed for employees

possessing higher qualification. Similarly, in the matter

of employee promotion, classification on the basis of

educational qualification, so as to deny eligibility to a

higher post to an employer possessing lesser

qualification is valid.

17. In State of Jammu and Kashmir vs. Trilok Natah

Khosa-AIR 1974 SC 1 and in Roop Chand Adalakha vs.

Delhi Development Authority-AIR 1989 SC 301, the

Hon’ble Supreme Court of India, has upheld that

Educational Qualification can Justifiably be made as the

basis for qualification for the purpose of promotion to

the higher post.

18. The learned Counsel appearing for Respondent

Society argued that the Hon’ble High Court of Madras

in its Order, dated 22-11-2017 in W.P. No. 24492/2010

observed and directed that “in Pondicherry, large

number of irregular or illegal appointments are made by

the Authorities. It is the duty of the Government to

provide equal opportunity in public employments under

the Constitutional Principles to the Citizen by

undertaking the process of appointment in accordance

with the rules in force. When the Authorities are

indulging in such illegal practice of appointing persons

in violation of the regular Recruitment Rules against a

sanctioned or permanent post, when it is the duty of

the Government to identify all such illegal appointments

and initiate appropriate actions, including disciplinary

action, against such officials, who committed the act of

appointing employees illegally”. In view of the above

Judgment of Hon'ble High Court of Madras, an ID Note,

dated 23-02-2018 issued by the Department of Personnel

and

Administrative

Reforms,

Government

Pondicherry that all the Administrative Departments,

Public Sector Undertakings, Autonomous Bodies, etc.,

shall ensure that no illegal/irregular appointments in

violation of Recruitment Rules are made under any

LA GAZETTE DE L’ETAT

[3 January 2023

circumstances. Further, in the said ID Note, it has also

mentioned that the Development Commissioner/

Commissioners-cum-Secretaries/Secretaries/Special

Secretary to Government/Head of Departments/Heads

of Offices, Heads of Public Sector Undertakings and

Autonomous Bodies of Government of Puducherry shall

be accountable for strict compliance of the aforesaid

orders of Hon'ble High Court of Judicature at Madras

in respect of Departments/Public Sector Undertakings/

Autonomous Bodies/Corporations/Societies/Boards/

Authorities under their Control”. The said ID Note,

dated 23-02-2018 was produced on the side of

Respondent Management during arguments.

19. For which, the learned Counsel appearing for the

Petitioner submitted that this ID Note applicable only

to the Government Departments, Corporations run

directly by Government of Puducherry. Hence, he

concluded that this ID Note referred on the side of the

Respondent Management is not for the Respondent

Society and thus, the Respondent Society is making

wantonly unnecessary defence. He prayed to reject the

same.

20. On close and careful perusal of the case records

before me, I could able to see that even in the

Conciliation Proceedings before the Labour Officer

(Conciliation), Puducherry, as well as in the counter

filed by the Management Society in the Industrial

Dispute, the same plea has been specifically made about

the said W.P Order of the Hon’ble High Court of Madras

and consequent ID Note of the Government of

Puducherry that shall be accountable for strict

compliance of the aforesaid orders of Hon’ble High

Court of Judicature at Madras in respect of

Departments/Public Sector Undertakings/Autonomous

Bodies/Corporations/Societies/Boards/Authorities

under their Control. Further, it is seen that the

Management Society even in the Conciliation

proceedings before the Labour Officer (Conciliation),

Government of Puducherry has submitted the same ID

Note as one of the reasons for not accepting the claim

made by the Petitioner. This could be seen from

Ex.P4-the Failure Report, dated 11-01-2019 of the Labour

Officer (Conciliation), Government of Puducherry to the

Secretary to the Government (Labour), Puducherry.

It is mentioned by the Labour Officer (Conciliation),

Government of Puducherry in his Failure Report Ex.P4

at para 5 and also the relevant extract of the order, dated

22-11-2017 in W.P. No. 24492/2010 of the Hon’ble High

Court of Madras has also been reproduced thereunder.

Further in the same Ex.P4 at para 7 it has been

elaborately discussed about the said ID Note, dated

23-03-2018. Therefore, the stand of the Respondent

Society from the beginning is that there was an ID Note

issued by the Government of Puducherry, which is

equally applicable for Ponlait Establishment and the

strict compliance of the Order is mandatory. It is further

stated by the Respondent Society that adoption of

Recruitment Rules against a sanctioned post is

necessary for an appointment. Hence, the administration

of the Ponlait submitted a Draft Recruitment Rules and

cadre strength to the competent authority seeking

necessary approval to regularize the services of the

Casual employees and also to accord promotion to the

employees.

21. The argument put forth by the Petitioner counsel

that ID Note is only applicable for Government

Departments, Corporations run directly by the

Government of Puducherry, not to the Societies like

Respondent Society not accepted for the reason that

in the ID Note of Government of Puducherry, dated

23-02-2018, it is clearly mentioned that the ID Note

applicable to Departments/Public Sector Undertakings/

Autonomous Bodies/Corporations/Societies/Boards/

Authorities under their control. So being a society the

Respondent Management also bound to follow the said

ID Note issued by the Government of Puducherry with

regard to Appointments and Regularization. Thus, the

above contention made by the learned counsel for the

Petitioner Union is not sustainable and thus rejected.

22. Secondly, the serious contention made on the side

of the Respondent Management is that the Petitioner

has approached two different forums one for

Re-designating him with a high pay scale before the

Registrar, Co-operative Societies under section 84 of

Pondicherry Co-operative Societies Act, 1972 and

another for promotion before this Industrial Tribunal

as Industrial Dispute. Admittedly, his claim to

re-designate his post and to revise his Pay Scale band

was declined in the Proceedings under section 84

before the Registrar, Co-operative Societies and on

which an appeal before the Appellate Authority is still

pending for consideration. That being the case,

now again the claim for the Promotion for a new Post

cannot be entertained. To substantiate the above Ex.R1

the photocopy of the Appeal filed by the Petitioner

Mr. R. Magesh before the Co-operative Tribunal (PDJ),

Pondicherry in Co-operative Appeal in 02/2018 marked

on the side of the Respondent Management.

23. From Ex.R1, I could able to find that the Petitioner

Mr. R. Magesh seeking for the relief to re-designate his

post from Operator Grade-I (Boiler), Dairy Plant

Maintenance to Boiler Attendant Grade-I and to fix

his Pay Scale ` 5,200-20,200 + Grade Pay of ` 2,400

with effect from 01-07-2007. Further, the Petitioner

Mr. R. Magesh in his Appeal application Ex.R1 at para

9 mentioned that the Respondent Management service

3 January 2023]

LA GAZETTE DE L’ETAT

regulation for the employees mentioned only the list of

post and the pay scale attached to the said post was

not mentioned in the Service Recruitment Rules and

therefore the appellant Mr. R. Magesh collected

information from other institutions regarding the similar

post available in the said institutions and the Pay Scale

offered to the said post was collected and given to the

Respondent Management for implementation. From all

the above, it is understood that already a dispute

between the Petitioner Mr. R. Magesh and the

Respondent Society is still pending under the

Pondicherry Co-operative Societies Act, 1972 regarding

the relief of re-designation and to fix him in a high Pay

Scale band and now the present Industrial Dispute with

a prayer to consider him for promotion before this

Tribunal, seems to be similar reliefs claiming to fix in a

post with high pay scale band. That being the case, in

such a situation, when his appeal for redesignation and

fixation of high Pay Scale are still pending for disposal,

I do not find any substantial and Justifiable reasons

shown by the Petitioner Union for the claim to consider

him for the Promotion for a new Superior Post and on

this count itself the present claim cannot be

entertained.

24. Further, the another point of defence placed by

the Respondent Society is that services of the Petitioner

Mr. R. Magesh is purely temporary and has not been

regularized. He was engaged as Casual worker in 2005

with a qualification of S.S.L.C and I.T.I (Fitter) and

thereafter, placed in the V Pay time scale from 01-07-2007

to 30-06-2008 and VI Pay time scale from 01-07-2008 to

30-10-2011. Subsequently he was appointed as Operator

(Boiler) purely on temporary basis with effect from

01-01-2011 and thereafter he was promoted as Operator

Grade-I (Boiler) purely on adhoc and temporary

basis from 01-03-2016 and therefore the services of

Mr. R. Magesh is purely temporary and has not been

regularized. Thus, the Respondent Society states that

Petitioner Union’s claim to consider him for Promotion

cannot be entertained and liable to be rejected.

25. Whereas, it is contended by the learned Counsel

appearing for the Petitioner Union that Mr. R. Magesh

is a regular permanent employee of the Respondent

Society. When it is claimed that his employment is a

regular and permanent service, not a temporary or

adhoc one, it is on the petitioner Union who affirms the

fact has to prove the same before this Tribunal. PW1

Mr. Magesh during his cross-examination has deposed

that “ÂV[ 2003á_ √Ë¬z ºƒÏÕº>[ ∂>uÔV™

c›>´° ÂÔÁÈ >V¬Ô_ ÿƒFm^º·[. ÷Õ> kw¬˛_

√VıºÈ ÿ>VaÈV·ÏÔ^ Service Condition z§›m

gkð›Á> >V¬ÔV_ ÿƒFBs_ÁÈ ®[≈V_ ƒˆ>V[.

Further, there is no piece of documentary evidence

produced on the side of the Petitioner Union to

substantiate the same.

26. Ex.P1 is the photocopy of the letter of the

Pondicherry Co-operative Milk Producers’ Union

Limited addressed to the Employment Officer,

Employment Exchange, Puducherry calling for the

particulars of candidates enrolled with Degree in Dairy

Technology annexed with the Form for Notification of

Vacancies for the post Technical Superintendent (Dairy).

In which the Education Qualification mentioned as

should possess regular Degree in Dairy Technology

with 3 years experience or regular Diploma in Dairy

Technology with 5 years experience. The age for the

post is mentioned as “below 30 years”. During

cross-examination, PW1 Petitioner Mr. R. Magesh has

categorically admitted the above qualifications and age

eligibility mentioned in EX.P1. With regard to

qualification

and

eligibility,

PW1

his

cross-examination deposed as follows:

ÂV[ >V¬Ô_ ÿƒF]Ú¬zD \>.ƒV.6á_ c^·

>√V_ kaBVÔ √Ω›m xΩ›º>[. ∂>Á™ h[ 2012á_

√Ω›m

xΩ›º>[.

ÂV[

∂ıðV\ÁÈ

√_ÔÁÈ¬ÔwÔ›]_, >√V_ kaBVÔ, PG Diploma in

xΩ›º>[.

27. Further, during his cross-examination on

21-10-2021, PW1 deposed as: “÷Õ> kw¬z ƒD√Õ>\VÔ

ÿ>VaÈV·Ï ∂KkÈÏ (ƒ\´ƒ ∂]ÔVˆ) ∂kÏÔ”¬z ®™m

ÿ√Bˆ_

\–

ÿÔV|›º>[

®[≈V_

ƒˆ>V[.

ºkÁÈkVF©A

∂KkÈÔD

JÈ\VÔ

ÿ>VaÈV·Ï

WÁÈl_ º�√Ω WÆk™›]_, >z]•Á¶BkÏÔ”¬z

∂Õ> √ËlÁ™ kw∫Ô ºkı|D ®[Æ \–s_

√ˆÔV´D ºÔVˆ•^º·[. ÷Õ> ¿]\[≈›]_ ∂›>ÁÔB

√ˆÔV´D ºÔV´ ÷BÈVm ®[Æ ÿƒV[™V_ ƒˆB_È.

Amﬂºƒˆ x>[Á\ \Vk‚¶ ¿]\[≈›]_ ®[™V_

kw¬z, ÷[Á≈B º>]lKD WKÁkl_ c^·m ®[≈V_

º\_xÁ≈X| \– Ex.R1 gzD. º�√Ω, º\_xÁ≈X|

\–suzD, ÷Àkw¬˛uzD BVÿ>VÚ ƒD\Õ>xD ÷_ÁÈ.

º�√Ω Co-operative Appealáo_ >uº√Vm ®™¬z

*ı|D \Vu§ ∂Á\¬Ô ºkı|D ®[ÆD √ˆÔV´D

ÂV[

>V¬Ô_

ÿƒFm^·

º\_xÁ≈X‚Ω_

ÿƒV_o•^º·[. ®[Á™ √>s \Vu≈D ÿƒFm Boiler

Attendant-´VÔ WBt¬zD√Ω•D, ∂>uÔV™ ƒD√·D

s˛>›Á> ÿÔV|¬Ô ºkı|D ®[ÆD ºÔVˆ•^º·[.

÷Àkw¬˛_, ®™¬z √>s cBÏ° kw∫Ô ºkı|D.

LA GAZETTE DE L’ETAT

[3 January 2023

28. Every employee otherwise eligible for promotion

or who comes within the zone of consideration,

a fundamental right to be “considered” for promotion.

Equal opportunity means the right to be “considered”

for promotion. It was held by Honble Apex Court on

various occasions that if, a person satisfies the

eligibility and zone criteria, but, is not considered for

promotion, then there will be a clear infraction of his

fundamental right to be “considered” for promotion,

which is his personal right. Promotion is not a

fundamental right. Right to be considered for

promotion, however, is a fundamental right. Such a

right brings within its purview an effective, purposeful

and meaningful consideration. Suitability or otherwise

of the candidate concerned, however, must be left at the

hands of the DPC, but the same has to be determined

in terms of the rules applicable therefore. However,

though a right to be considered for promotion is a

condition of service, mere chance of promotion is not.

29.

Whereas, in the instant case, it is admitted by

the petitioner Mr. R. Magesh has completed his Diplomo

in Mechanical Engineering in the Evening College

during April 2014. He also did his B.Com. through

correspondence in June 2012. Further he completed his

P.G. Diplomo in Dairy Technology through Distance

Education in Annamalai University in May 2016.

30. The Hon’ble High Court of Madras in

B. Muthuramalingam Vs. Government of India (2022 SCC

online Mad 1306) held that Promotion per se cannot be

claimed as a matter of right by the employees. No doubt,

consideration for Promotion is a Fundamental Right of

the employee. Further the Hon'ble Court added that

administrative prerogative cannot be insisted upon by

the employees though they are eligible for Promotion/

Appointments as the case may be. Further the Hon’ble

High Court of Madras observed that mere preparation

of panel by the Authority Competent would not be a

ground to confer a right on the Petitioner to seek a

direction against the Government of India to convene a

Review Committee meeting and to prepare a Panel.

31. Further, during cross-examination, the claim

Petitioner Mr. R. Magesh as PW1 also admitted that as

per Ex.P1 - (Form for notification of Vacancies sent by

the Managing Director, Respondent Society to the

Employment Officer, Employment Exchange, Labour

Department, Puducherry), Age eligibility has been

mentioned as below 30 years and qualification should

posses regular degree in Diary Technology with 3 years

experience or regular Diplomo in Dairy Technology with

5 years experience. Further, more the admitted position

is that already a dispute for consideration regarding this

prayer for re-designation and for fixing new Pay Scale

Band is declined by the Registrar of Co-operative

Societies, Puducherry under section 84 of Puducherry

Co-operative Societies Act, 1972 and against the said

order an Appeal is pending before the Appellate

Authority (PDJ, Puducherry). As already discussed

above, the claim Petitioner has failed to demonstrate

before this Tribunal that he is in the row of seniority

and qualified for the said post satisfying the eligibility

criteria with regard to age as well as qualification.

When it is disputed by the Respondent Management

Society that he is only a temporary employee, no

documentary evidences placed by the claim Petitioner

Union to show that he is only a regular employee under

the Respondent Management. No appointment order

filed by the Petitioner and same admitted by the PW1/

R. Magesh in his cross-examination.

32. From the above discussions and findings, I hold

that the Petitioner has not established even a semblance

of legal right to direct the Respondent Management to

consider his representation and mere direction to

consider the representation would do no service to the

cause of justice in the absence of establishing any legal

right. On the whole, I could not find any valid reason

to allow this prayer as claimed. Thus, the point for

determination is decided accordingly as against the

Petitioner to the effect that the Petitioner Union is not

entitled for any relief from this Tribunal.

33.

In the result, Reference is unjustified and the

Industrial Dispute is dismissed. No costs.

Dictated to the Stenographer, directly typed by him,

corrected and pronounced by me in open Court, on this

10th day of November 2022.

V. SOFANA DEVI,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.

List of petitioner’s witness:

PW.1

— 24-02-2022

Mr. R. Magesh

List of petitioner’s exhibits:

Ex.P1

— 29-06-2015

Photocopy of the letter

addressed

the

Employment Officer by the

Respondent.

Ex.P2

— —

Photocopy of the list of

Technical Superintendent as

on 31-12-2015.

3 January 2023]

LA GAZETTE DE L’ETAT

Ex.P3

— —

Photocopy of the letter by

Series

R. Magesh (Operator Boiler)

to the Administrator/Managing

Director of the Respondent,

dated 18-06-2015.

(ii) Photocopy of the letter

the

Union,

dated

07-07-2015 to the Chief

Minister, Puducherry.

(iii) Photocopy of the letter,

d a t e d 0 4 - 0 3 - 2 0 1 6 b y

Magesh

the

Administrator/Managing

Director of the Respondent.

(iv) Photocopy of the letter,

d a t e d 2 5 - 0 8 - 2 0 1 6 b y

Magesh

the

Administrator/Managing

Director of the Respondent.

Ex.P4

— 11-01-2019

Photocopy of the Failure

Report by the Labour

Officer

(Conciliation),

Puducherry.

Ex.P5

— 11-07-2019

Photocopy

the

Notification issued by the

Puducherry Government.

Ex.P6

— —

Photocopy of the Diploma

Series

Certificate in Mechanical

Engineering of R. Magesh.

Photocopy

the

Consolidated Mark Sheets

in Mechanical Engineering

of R. Magesh.

Photocopy

the

Provisional Certificate of

B.Com., of R. Magesh.

Photocopy

the

Programme

Completion

Certificate in B.Com., of

R. Magesh.

Photocopy

the

Provisional Certificate in

P.G. Diploma in Dairy

Technology of R. Magesh.

Photocopy of the Grade

Certificate in P.G. Diploma in

Second Class of R. Magesh.

List of respondent’s witnesses: Nil

List of respondent’s exhibits:

Ex.R1

— —

Photocopy of the Petition

in Co-operative Appeal

No. 02/2018 before the

Principal

Sessions

and

District Court, Puducherry.

V. SOFANA DEVI,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.

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