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Sentence arbitral du Travail

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Award of the Labour Court .. 272

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Notifications du Gouvernement .. 280

Government Notifications

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Etablissements dangereux

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Dangerous Establishments

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Annonces

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Announcements

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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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28 {

No.

Poudouchéry

Mardi

Mars

2023

(7 Chaitra 1945)

No.

Puducherry

Tuesday

28th

March

2023

272

LA GAZETTE DE L’ETAT

[28 March 2023

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 06/AIL/Lab.//T/2023, dated 19th January2023)

NOTIFICATION

Whereas, an Award in I.D (T) No. 12/2014, dated

14-12-2022 of the Industrial Tribunal-Cum-Labour Court,

Puducherry in respect of disbute between the Union,

Puducherry Road Transport Corporation Drivers &

Conductors Thozhilalargal Nala Sangam against the

management of M/s. Puducherry Road Transport

Corporation (PRTC), over fixation of seniority from the

date of appointment as daily rated employee on voucher

payment 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. 20/9/Lab./L, dated 23-5-1991, it is hereby directed

by the Secretary to Government (Labour) that the said

Award shall be published in the Official Gazette,

Puducherry.

(By order)

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.

Wednesday, the 14th day of December, 2022

I.D. (T) No. 12/2014

CNR. No. PYPY06-000020-2014

The President,

Puducherry Road Transport

Corporation Drivers and Conductors

Thozhilalargal Nala Sangam,

No. 45, Ist Cross, Gandhi Nagar,

Puducherry.

. . Petitioner

Versus

The Managing Director,

M/s. Puducherry Road Transport

Corporation (PRTC),

No. 4, Iyyanar Koil Street, Raja Nagar,

Puducherry.

. . Respondent

This Industrial dispute coming on 07-12-2022

before me for final hearing in the presence of

Thiru G. Krishnan, Counsel for the Petitioner and

Thiru B. Mohandoss, Counsel 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.111/AIL/LAB/J/2014,

dated 22-07-2014 for adjudicating whether the industrial

dispute raised by the Union, Puducherry Road Transport

Corporation Drivers & Conductors Thozhilalargal Nala

Sangam against the Management of M/s. Puducherry

Road Transport Corporation (PRTC) affiliated to

(PMTUC), over fixation of seniority from the date of

appointment as daily rated employee on voucher

payment of 64 persons viz; (1) M. Gunasegaran,

(2) R. Ramesh, (3) R. Sundaramoorthy, (4) A. Seetharaman,

(5) C. Murugan, (6) S. Ramalingam, (7) T. Rajendiran,

(8) A. Anandhan, (9) R. Nakeeran, (10) V. Muthalrayan,

(11) R.Thandavamoorthy, (12) S. Govindarajan,

(13) J. Balasoundirame, (14) A. Saviour Francis,

(15) D. Dhanaseelan, (16) V. Gnanavelu, (17) B. Suresh,

(18) D. Vasu, (19) V. Sundharam, (20) A. Arokkiyaraj

Cathivendar, (21) M. Pazhanisamy, (22) N.P. Balamurugan,

(23) S. Sivasankaran, (24) A. Theepanjan, (25) R. Senthilkumar,

(26) E. Purushothamman, (27) J. Veerapandian,

(28) S. Azhagumuthaiyan, (29) L. Ramesh, (30) R. Thirumaran,

(31) P. Balamurugan, (32) M. Prabu, (33) J. David

Devarayar, (34) K. Rajasegaran, (35) J. Parasuraman,

(36) D. Vengatachalam, (37) A. Savarimuthu, (38) J. Vadivel,

(39) S. Iyyappan, (40) S. Marimuthu, (41) A. Ramasamy,

(42) M. Samidurai, (43) S. Karthikesan, (44) S. Marimuthu,

(45) R. Babu, (46) D. Koujandhaivelu, (47) S. Malaivasan,

(48) S. Pazhani, (49) M. Kamartheen, (50) S. Murugavel,

(51) K. Ganapathy, (52) K. Ilanchezhian, (53) M. Aruljothi,

(54) K. Vengatachalapathy, (55) M. Sivakumar, (56) M. Kumar,

(57) K. Arul, (58) K. Dhanraj, (59) N. Malaiyalathan,

(60) S. Rajkumar, (61) M. Harirajan, (62) M. Ranganathan,

(63) V. Iyyanar and (64) T. Anandharaj is justified or not?

If, justified what relief, the Petitioner is entitled to?

(b) Whether the claim of the Union workmen to

effect transfer based on the Corporation Transfer Policy

and Rules is justified? If justified, what relief they are

entitled to?

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

money, if, it can be so computed?

273

28 March 2023]

LA GAZETTE DE L’ETAT

2. Brief averments made in the claim Statement of

the Petitioner:

The Puducherry Road Transport Corporation Drivers

and Conductors Thozhilalargal Nala Sangam (RTU No. 1537/

RTC/2008) affiliated with PMTUC, the Petitioner herein,

raised an industrial dispute over the disparity in fixation of

seniority of 69 workers and also over the transfer of

workmen and on failure in conciliation reference was made

by the appropriate Government to adjudicate upon the

following disputes:

(a) Whether the dispute raised by the Union,

Puducherry Road Transport Corporation Drivers and

Conductors Thozhilalargal Nala Sangam against the

management of M/s. Puducherry Road Transport Corporation

(PRTC) affiliated to (PMTUC), over fixation of seniority from

the date of appointment as daily rated employee on voucher

payment of 64 persons is justified? If justified, what relief

they are entitled to? (b) Whether the claim of the Union

workmen to effect transfer based on the Corporation

Transfer Policy and Rules is justified? If, justified what

relief, they are entitled to? (c) To compute the relief, if any,

awarded in terms of money, it can be so computed.

(ii) The Pondicherry Tourism Development

Corporation Limited (PTDC) was incorporated during

February 1986 to promote tourism in the Union

territory of Puducherry. With the introduction of

transport service from March 1988, the Corporation

was converted into Pondicherry Tourism and

Transport

Development

Corporation

Limited

(PT&TDC) with effect from December 1992.

Thereafter, the Corporation was bifurcated with effect

from 1st April 2005 into the Puducherry Road

Transport Corporation (PRTC) and Pondicherry

Tourism Development Corporation (PTDC), in order to

focus on diversification and expansion projects. The

Puducherry Road Transport Corporation (PRTC), the

Respondent herein is the Government Transport

Corporation in the Union territory of Puducherry that

provides services in all the four regions of

Puducherry, namely puducherry, Karaikal, Mahe and

Yanam.

(iii) The Respondent Corporation issued an

advertisement in the Daily Thanthi newspaper on

13-09-2005 inviting applications from eligible

candidates for appointment as Drivers and Conductors

on daily rated basis. By selection method the

Respondent selected 149 employees on merits and

all these selected candidates including the 64 employees

mentioned above were initially employed on daily

rated basis. Though all the said employees were

engaged from their date of joining as daily rated the

Respondent initially paid voucher payment to 64 of

them. Neither the recruitment rules nor the service rules

of the Respondent Corporation, provide for voucher

payment and such voucher payment for the daily

rated employees is illegal and unsustainable in law

and when represented the Respondent Management

informed that only for the sake of convenience

voucher payment was made which would not affect

their daily rated service.

(iv) All the 146 Drivers and Conductors were

regularised on 16-08-2010 but, while drawing seniority

list the services of the 64 Conductors and Drivers

herein was not reckoned from the date of their initial

appointment in par with similarly situated employees

on the ground that voucher payment service was not

counted which is against the settled principles of law.

During the conciliation proceedings, the Conciliation

Officer also pointed out the justification in the plea

of the Petitioner Union for the fixation of seniority

from the date of joining and that there is no such

provision of appointment on voucher payment. The

64 Drivers and Conductors herein are entitled to

seniority from the date of their initial engagement as

daily rated irrespective of the mode of payment made

by the Respondent Corporation.

(v) The allegations made by the Respondent

Corporation during conciliation that voucher

payment service will not be taken into account for

any purpose and since the said Drivers and

Conductors have been engaged on voucher payment

basis their services has not been taken in to account

are baseless and do not deserve any consideration

either factually or legally. The Respondent Corporation

failed to appreciate the fundamental difference

between mode of payment and mode of engagement.

The voucher payment made to the 64 Drivers and

Conductors herein was only a mode of payment

chosen by the Respondent Corporation but, even

during such period of voucher payment they were

engaged on daily rated basis from the date of their

appointment. The voucher payment service as

claimed by the Respondent is unknown to law and

created for unequal treatment.

(vi) The seniority to the grade of Drivers and

Conductors should be drawn only by taking in to

account of their respective date of appointment as

per the selection list and excluding the period of

voucher payment in reckoning seniority is unfair,

unjust, unreasonable and not in accordance with law.

The 64 Drivers and Conductors herein are entitled

to have their seniority reckoned from their date of

joining in the Respondent Corporation. Only on the

basis of seniority-cum-selection list transfer should

274

LA GAZETTE DE L’ETAT

[28 March 2023

be made in accordance with the Corporation transfer

policy but, the Respondent Management has effected

transfer at their whims and fancy with oblique motive

and in colourable exercise of power and the transfer

of Thiru K. Venkadesan, Thiru S. Ulaganathan and

Thiru K. Devanathan would establish the same. In

the circumstances stated above, it is prayed that this

Hon’ble Tribunal may be pleased to pass an Award

granting the following reliefs;

(a) reckoning seniority of the 64 Drivers and

Conductors herein from their date of joining in the

Respondent

Corporation

and

direct

the

Respondent to modify the seniority list of the

Drivers and Conductors accordingly.

(b) directing the Respondent Corporation to

effect transfer of the Drivers and Conductors in

accordance with the transfer policy of the

Corporation without any discrimination and

other reliefs.

3. Brief averments in the counter filed by the

Respondent are as follows:

The claim made by the Petitioner Union that

Reckoning seniority of the 64 Drivers and Conductors

herein from their date of joining in the Respondent

Corporation and direct the Respondent to modify the

seniority list of the Drivers and Conductors accordingly

and directing the Respondent Corporation to effect

transfer of the Drivers and Conductors in accordance

with the transfer policy of the Corporation without any

discrimination is not maintainable in Law or on facts and

hence, liable to be dismissed.

(ii) According to the third schedule appended to

the Industrial Disputes Act, 1947, the claim made by

the Petitioner and also the reference of dispute for

adjudication by this Court, cannot be decided for want

of jurisdiction of this Court.

(iii) According to section 2(m) of the Industrial

Disputes Act, 1947, “prescribed” means prescribed by

rules made under that Act. Similarly, the Industrial

Disputes (Central) Rules, 1957 or any other rules within

the jurisdiction of the Industrial Tribunal constituted

under the Industrial Disputes Act, 1947. As such only

the items (i to x) alone determine the subject matter

coming within the jurisdiction of the Industrial Tribunal.

None of the reliefs claimed by the Petitioner falls within

the subject matter of jurisdiction of this Court. Under

such circumstances, the claim made by the Petitioner is

liable to be dismissed as without jurisdiction by this

Court. The issue relating to lack of jurisdiction of this

Court, may kindly be taken up as a preliminary issue

and be decided in the first instance before going into

the other issues on merits of the claim.

(iv) The industrial disputes has been raised by the

Petitioner Union, over the fixation of Seniority of 64

persons, starting from M. Gunasekaran and ending with

T. Anandharaj in a representative capacity. This subject

matter of the dispute is a collective dispute coming

under the purview of section 2 (k) of the Industrial

Disputes Act, 1947 which is distinct from the individual

dispute coming under the purview of section 2-A of the said

Act. Under such circumstances the representative

charataken up the subject matter of the dispute as

referred to in the claim statement has not been disclosed

in the claim statement. As such the Locus standi of the

Petitioner Union to raise the dispute on behalf of the 64

workmen is not maintainable and valid in Law. In that

case, it will be in the fitness of things to decide the

questioning relating to the Locus standi of the

Petitioner Union to take up the dispute relating to the

64 workmen for adjudication by this Court, should be

decided in the first instances and accordingly seeks the

resolution of the said issue as a preliminary issue.

(v) The Respondent admits the factum of issuance

of advertisement in Daily Thanthi newspaper on

13-09-2005 inviting applications from eligible candidates

for appointment as Drivers and Conductors on daily

rated basis. However, the Petitioner Union has made

distorted version of facts to suite its convenience and

there is also suppression of material facts relating to

selection and appointment of 149 employees. As such

this Respondent expects the Petitioner Union to prove

the allegations made by the Petitioner in paragraphs

3 to 5 of the claim statement.

(vi) The 64 persons starting from M. Gunasekaran

and ending with T. Anandharaj referred to in the claim

statement cannot compare their service conditions with

those of other Drivers and Conductors of the Respondent

Corporation. The 64 Drivers and Conductors who were

engaged on voucher payment basis form a distinct class

by themselves. They are not permanent Employees

during voucher payment service and they do not have

the right to hold the post during the voucher payment

service period. It is important to note that those 64

persons do not come within the cadre strength of the

respective posts. They were not appointed to the

permanent post of the Drivers and Conductors and they

were only engaged as daily rated casuals depending

upon the day to day needs and Administrative and

Business exigencies of the Respondent Corporation. The

classification of post into different categories based on

intelligible criteria is valid in Law and will not amount to

hostile discrimination among the Drivers and

Conductors.

275

28 March 2023]

LA GAZETTE DE L’ETAT

(vii) The allegation in the claim petition “when

represented the Respondent Management informed that

only for the sake of convenience voucher payment was

made which would not affect their Daily-rated service"

is devoid of truth and substance. It is true that all the

Drivers and Conductors were regularised but, all of them

were not regularized with retrospective effect. The 64

persons in respect of whom the dispute has been raised

cannot be treated on par with other Drivers and

Conductors who are permanent. As such, the claim made

by the 64 persons who were initially engaged on

voucher payment to be treated on par with the other

Drivers and Conductors in terms of seniority cannot be

accepted. The persons appointed over and above the

permanent staff strength to take care of the day-to-day

needs and to fillup the temporary vacancies cannot

claim seniority similar to that of persons appointed to

permanent vacancies. The sound principles of Labour

Law recognizes equality of equals only and un-equals

cannot be treated alike. Under such circumstances the

contention that the 64 Drivers and Conductors are

entitled to seniority from the date of their initial

engagement as daily rated is invalid. It may kindly be

noted that the daily rated casuals have no lien over their

employment.

(viii) The contention that “during the conciliation

proceedings, the Conciliation Officer also pointed out

the justification in the plea of the Petitioner Union for

the fixation of seniority from the date of joining and that

there is no such provision of appointment on voucher

payment” is vexatious and does not represent true facts.

Engagement of persons to do the work of the employer

depending upon the exigencies of circumstances is valid

in law and payments to them and also to employees who

are daily rated casuals on obtaining voucher has got

sanction in law. The Labour jurisprudence also

recognizes the concept of ‘engagement’ which is distinct

from a regular 'appointment'.

(ix) The Respondent Management has not

effected transfer at its whims and fancies with oblique

motive and in colourable exercise of power as alleged

by the Petitioner. The transfer of Thiruvalargal

K. Venkadesan, Ulaganathan & Devanathan are valid

ones and the Petitioner has to establish with proper

pleadings as to how their transfer is not valid in law.

Its transfer policy is valid and expects the Petitioner to

prove the defects in the same.

(x) The Petitioner has not made out a proper case

for granting reliefs for the 64 Drivers and Conductors in

respect of their seniority position as well as their

transfers. It may kindly be noted that the petition has

not disclosed necessary facts and circumstances

without which the pleadings will not be complete.

The petition does not spell out as to who are all Drivers

& who are all Conductors from the list of 64 persons

referred to in the claim statement. Similarly, their dates

of appointment/initial engagement by the Corporation

have not been disclosed. To add further, the Petitioner

has to disclose the names of other Drivers and

Conductors and their initial date of appointment in

comparison with whom the Petitioner claims parity in

employment for the 64 Drivers and Conductors.

Moreover, the Petitioner refers to "Transfer Policy of

the Corporation" in a vague manner without pointing

out the details of the same. Under such circumstances,

the claim petition deserves dismissal for want of

necessary particulars to grant the reliefs claimed.

(xi) The Petitioner Union seeks to modify the

seniority list of the Drivers and Conductors. Such a

relief if granted, may affect the seniority position of

several Drivers and Conductors. The Petitioner Union

cannot seek such a relief without impleading the other

Drivers and Conductors whose interest is involved in

the same. The claim petition is liable to be dismissed

for non-joinder of necessary parties. Similarly, seeking

the relief to effect transfer of Drivers and Conductors

in accordance with the transfer policy is vague one and

the relief claimed if granted, cannot be executed in

precise terms. Hence, the Respondent prays this Court

to dismiss the claim with costs in the interest of justice.

4. Points for consideration:

Whether the dispute raised by Union, Puducherry

Road Transport Corporation Drivers & Conductors

Thozhilalargal Nala Sangam against the Management of

M/s. Puducherry Road Transport Corporation (PRTC)

affiliated to (PMTUC), over fixation of seniority from the

date appointment as daily rated employee on voucher

payment of 64 persons and the claim of the Union

workmen to effect Transfer based on the Corporation

Transfer Policy and Rules is justified and for what other

relief, the Petitioner is entitled to?

5. On point:

On the Petitioner side, Mr. P. Ilango, the claim

petitioner himself was examined as PW1 and through

him Ex. P1 to Ex. P12 were marked. On the Respondent

side, RW1 Kishore Kumar, General Manager & Company

Secretary, Puducherry Road Transport Corporation,

Puducherry was examined, Ex. R1 was marked through

him.

6. On the Point;

The Present reference has been made by the Government

of Puducherry to decide the industrial dispute regarding

the fixation of the seniority for 64 Employees who are

276

LA GAZETTE DE L’ETAT

[28 March 2023

Drivers and Conductors in the Respondent Corporation

from the date of appointment as daily rated employees

on voucher payment and to effect transfer based on the

Respondent Corporation Transfer Policy and Rules.

7. The first and the foremost contention raised on

the side of the Respondent Management is that the

subject matter of the dispute is a collective dispute

coming under the purview of section 2 (k) of Industrial

Dispute, Act 1947 which is distinct from the individual

dispute coming under the purview of section 2-A of

industrial act. Hence, the representative character of the

Petitioner Union to raise the dispute on behalf of 64

persons has to be made out. Whereas, the Petitioner

Union has not disclosed and proved before this Court,

under which Authority it is representing 64 workmen

and as such the locus standi of the Petitioner Union to

raise the dispute on behalf of 64 workmen is not

maintainable.

8. On perusal of case records, I could able to find

that before the Conciliation Proceedings, the Petitioner

Union has sponsored the dispute on behalf of the said

64 workmen. Even before that the representations such

as Ex. P8, P9 were given by the Petitioner Union to the

Labour Commissioner and to the Labour Officer

(Conciliation), respectively. On perusal of Ex. P10, the

reply given by the Respondent Corporation to the

Labour Officer (Conciliation), dated 18-07-2013. I could

find that the said objection never made before on any

occasions. For the very first time, the said objection

about the locus standi of the Petitioner Union for

raising this dispute made by the Respondent Corporation

only in its counter before this Court. Further, the

Petitioner Union was all along raising the industrial

dispute on behalf of 64 workmen before the Labour

Officer (Conciliation), Labour Commissioner and the

reference was also made to this Court by the Government

of Puducherry showing the Petitioner Union as one of

the party to the Industrial Dispute. Under these

circumstances, the objections raised on the side of the

Respondent Corporation for the very first time regarding

the locus standi of the Petitioner Union not holds good,

not acceptable and thus, rejected as not sustainable.

9. Admittedly, the Respondent Corporation (PRTC)

had invited Recruitment to the posts of Drivers and

Conductors on daily rated basis as employees by way

of publishing a Notification in the Daily Thanthi newspaper

on 13-09-2005. Accordingly, selection was made.

10. The Point of dispute is that according to the

Petitioner Union 149 employees were selected on merits

and issued with the Appointment Order. All the 149

employees were recruited only as daily rated employees

as per the Appointment Order. Only in December 2005,

the Respondent Corporation issued an order stating

that among 146 employees 69 employees who were

stated in the Annexure of the Reference were specified

as voucher payment employees. They were designated

as daily rated employees only from June 2007. Hence,

the Petitioner Union raised objection and requested the

Respondent Management to fix the seniority on the

basis of the Appointment Order and Selection List.

Further, the Union requested the Respondent Corporation

to effect transfer by following the norms and policy of

the Respondent Corporation.

11. It is strongly contended on the side of the claim

Petitioner Union that voucher payment made to the 64

Drivers and Conductors was only a mode of payment

chosen by the Respondent Corporation, but, even

during such period of voucher payment, they were

engaged on daily rated basis from the date of their

appointment. The seniority to the grade of Drivers and

Conductors should be drawn only by taking into

account of their respective date of appointment

excluding the period of voucher payment is totally

unfair, unjust, unreasonable and not in accordance with

law. Thus, he claimed that 64 Drivers and Conductors

are entitled to have their seniority reckoned from their

date of joining in the Respondent Corporation.

12. On the side of the Respondent Corporation it is

urged that the 64 persons referred in the claim statement

cannot compare their service conditions with those of

other Drivers and Conductors of the Respondent

Corporation. The said 64 Drivers and Conductors who

were engaged initially on voucher payment form a

distinct class by themselves. They don’t come within

the cadre strength of respective posts. They were not

appointed to the permanent post of the Drivers and

Conductors. So they don’t have the right to hold the

posts during the voucher payment service period. The

classification of posts into different categories based

on intelligible criteria is valid in law and will not amount

to discrimination among the Drivers and Conductors.

13. Further, it is contented by the learned Counsel

appearing for the Respondent Corporation that all the

Drivers and Conductors were regularised but, all of them

were not regularised with retrospective effect. The

persons appointed over and above the permanent staff

strength to take care of the day to day needs and to fill

up the temporary vacancies cannot claim seniority similar

to that of persons appointed to permanent vacancies.

Hence, the claim made by the 64 persons who were

initially engaged on voucher payment to be treated on

par with the other Drivers and Conductors in terms of

seniority cannot be accepted.

277

28 March 2023]

LA GAZETTE DE L’ETAT

14. It is further contended on the side of the Respondent

Corporation that only 40 Drivers and 40 Conductors

were engaged on daily rated basis in the year 2005 and

2006. For operating new rules and additional services,

Respondent Corporation decided to engage further

Drivers and Conductors on voucher payment basis from

the waiting list. After approval, 43 Drivers and 26

Conductors were engaged on voucher payment basis in the

year 2006. The said 43 Drivers and 26 Conductors

worked on voucher payment basis, they were paid on

voucher basis as and when they performed duty in the

vehicle. Thereafter, the Respondent Corporation decided

to engage them on daily rated basis and accordingly

they were engaged on daily rated basis w.e.f. 01-06-2007.

15. Further, it is contended on the side of the Respondent

Corporation that EPF recoveries being deducted from

the employee’s salary since daily rated service. Voucher

payment service has not been taken into account for

any purpose. Their services have been counted from

their daily rated basis. As per the Recruitment Rules,

146 Drivers and Conductors have been regularised in

the Pay Band of `5,200-20,200. While regularising daily

rated service has been taken for regularisation and

voucher payment service was not counted.

16. The learned Counsel appearing for the Respondent

Management relied upon 1. Rajasthan State Roadways

Transport Corporation vs., Paramjeet Singh, (2019) 2

Supreme Court Cases (L & S) 37; 2. Director of

Horticulture, Odisha vs., Pravat Kumar Dash, (2019) 2

Supreme Court Cases (L & S) 500; 3. Arbind Kumar vs.,

State of Jharkhand, (2019) 2 Supreme Court Cases (L &

S) 213 and 4. Anupal Singh vs. Uttar Pradesh, (2020) 1

Supreme Court Cases (L & S) 191.

17.

The sole question to decide the 1st point of

reference found in the Annexure is that whether it is

correct while regularising the service, the daily rated

service only be counted and regularization made from

the date of daily rated service or the voucher payment

service has also been included as claimed by the Claim

Petitioner herein?

18.

Heard both on this Point. Perused the Documents.

Chronologically let me deal with the facts before going

into the merit of the case. The Memorandum offering

appointment issued to P. Ilango, the Claim Petitioner

herein who was engaged as a Driver on voucher

payment basis vide Ex. P1 is dated 20-02-2006. Whereas,

the Respondent Corporation, had issued an Office order

by engaging 25 Drivers on daily rated basis which is

dated 23-02-2006 vide Ex. P2. The date of joining

mentioned in Ex. P2 for the said 25 Drivers who were

appointed directly as daily rated basis is 13-02-2006,

14-02-2006, 15-02-2006 and 16-02-2006. Whereas, the

joining date of the other Drivers including the Petitioner

P. Ilango who were engaged initially as voucher

payment basis was mentioned as 24-02-2006.

19. As stated above, Ex.P1 is the offer of Appointment

made to Mr. P. Ilango the claim Petitioner herein, only

as on voucher payment basis. Ex. P3 is the Official

Order, dated 08-03-2006 for engagement of Drivers on

voucher payment. Ex. P4 dated 01-06-2007 wherein, offer

of Appointment of said Mr. P. Ilango from Voucher

Payment basis Driver to the post of daily rated basis

Driver. Ex. P5 dated 28-06-2007 is an Office Order for

the engagement of 44 Drivers including Mr. P. Ilango, the

claim Petitioner on daily rated basis w.e.f. the forenoon

of 01-06-2007. The said Mr. Ilango, the claim Petitioner

herein appointed as Driver (Temporary post) vide

Ex. P6, dated 16-08-2010 and vide Ex. P7 an Office Order.

While drawing seniority list which has been enclosed

in Ex. P8, the said Mr. Ilango and other 63 Drivers and

Conductors names for whom this Industrial Dispute has

been raised, found place along with their Date of Birth

and the Date of Joining. Date of Joining is mentioned

therein as 01-06-2007 i.e., from the date of their

Appointment of Drivers and Conductors as daily rated

basis from voucher payment basis (Ex. P4 and Ex. P5).

Whereas, the contention and claim of 64 Drivers and

Conductors is that their Date of Joining should be taken

as 22-02-2006 to 27-02-2006 as mentioned in Ex. P3 i.e., from

the date of their initial engagement on voucher payment

basis in the Respondent Corporation. But, the

Respondent Corporation has taken their date of joining

as 01-06-2007 i.e., the date on which those 64 Drivers

and Conductors were appointed on daily rated basis

from voucher payment and based on it seniority list was

drawn.

20. On the side of the Respondent Corporation Ex. R1

has been marked to show that 88 posts of Drivers and

88 posts for Conductors were approved by the Government

for the creation of said posts in Respondent Corporation

on 11-06-2007. Therefore, 176 posts of Drivers and

Conductors were created for Pondicherry Road Transport

Corporation only in June 2007 vide Ex. R1 dated 11-06-2007.

21. RW1 during cross-examination has deposed that

"149

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278

LA GAZETTE DE L’ETAT

[28 March 2023

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ƒˆB_È".

22. Admittedly, the Memorandum of offering

appointment issued to Mr. P. Ilango, as Driver from

voucher payment basis to Daily Rated basis is dated

01-06-2007 (Ex. P4). All were regularised w.e.f the

date of their appointment as daily rated employee. Some

persons were appointed initially as daily rated

employees and some including the claim petitioner were

appointed initially as voucher payment basis and only

thereafter, they were appointed from voucher payment

to daily rated in June 2007. Thus, for the category of

persons who were appointed directly on daily rated

basis vide Ex. P2 dated 23-02-2006 their date of joining

were shown from as 13-02-2006 to 16-02-2006 and

regularization of their services were w.e.f such date of

their appointment as daily rated.

23. As per Ex. P4, dated 01-06-2007, and Ex. P5 dated

28-06-2007, Mr. P. Ilango the Claim Petitioner herein with

some others were engaged by PRTC/Respondent as

Driver on Daily Rated basis only w.e.f the forenoon of

01-06-2007. Before that, they were engaged as Drivers only

on voucher payment basis since their induction into

service. Hence, they were regularised w.e.f 01-06-2007

(date on which they engaged on daily rated basis).

24. The case of the Petitioner Union that by selection

method, the Respondent selected 149 employees on

merits and all these selected candidates including the

64 employees mentioned above were initially employed

on daily rated basis has not been substantiated with

any proof. Further, the allegation that though all the

said employees were engaged from their date of joining

as daily rated the Respondent initially shown 64

persons as voucher payment employees is also not

sustainable in absence of documents. On the contrary,

from the documents marked on the side of the Claim

Petitioner itself, it is made clear that some Drivers and

Conductors were initially appointed only as voucher

Payment basis. The specific case of the respondent is

that only the persons in the waiting list were engaged

on voucher payment basis for doing day today work

and in need of exigencies. Having accepted their initial

engagement in the Respondent Corporation as Drivers and

Conductors on voucher payment basis vide written offer

of appointment Ex.P1 and orders issued thereon for

voucher payment basis Ex.P3, now the petitioner Union

cannot turn around and say that they were initially

appointed only as daily rated basis but only for the sake

of making payment they were shown as voucher

payment basis, which is not sustainable. No documentary

proof produced to substantiate that they have questioned

the same with the Respondent Corporation as to why

they were shown as Drivers and Conductors

appointed on voucher payment basis.

25. Though all the 149 Drivers and Conductors

including these 64 persons have been regularized on

the same date i.e., in 2010 but, the seniority list has been

drawn by taking into account of date of Appointment on

daily rated basis. For all the 149 Drivers and Conductors,

the date on which they were appointed on daily rated

basis has been taken into account as their date of

joining in the Respondent Corporation and thus,

seniority list has been drawn. Since, these 64 persons

were appointed initially on voucher payment basis in

February 2006 and thereafter appointed as daily rated

basis only in June 2007, the date of joining was taken

as 01-06-2007.

26.

Regularisation cannot be granted in violation

of the recruitment rules in force. The benefit of

regularisation should be granted strictly in accordance

with the rules in force. The daily wage employees cannot

claim the benefit of regularisation or permanent

appointment and such claims cannot be considered in

violation of recruitment rules in force. All appointments

are to be made strictly in accordance with the rules in

force. Even mere continuance on voucher payment or

even daily wage basis would not confer any right on

the employees to claim the benefit of retrospective

regularisation or permanent appointment. Here in the

instant case, the regularisation has been made with

retrospective effect i.e., from the date of their appointment

on daily rated basis. Admittedly, they have already

regularised with retrospective effect from the date when

they were engaged as daily wage employees and were

continuing in the services that being so, the claim of

the Petitioner Union that the 64 persons have to be

given retrospective regularization from the date of their

appointment on voucher payment basis is totally

untenable.

27. As such, the respondent Corporation had already

extended concession to these daily wage employees

and they were brought under the regular employees and

279

28 March 2023]

LA GAZETTE DE L’ETAT

their services were regularised retrospectively from the

date of their appointment on daily rated basis. Granting

regularisation itself was a concession extended by the

Respondent. When, the claim petitioners had already

enjoyed the concession, they cannot seek retrospective

regularisation with effect from the date on which they

were engaged as voucher paid employees. In the event

of allowing such claims, the Government may not be in a

position to sanction the posts with retrospective effect.

28. The Hon’ble Constitution Bench of Supreme

Court, in State of Punjab V. Jagdip Singh and Ors.

MANU/SC/0273/1963: (1966) ILL J749SC held therein, “In

our opinion, where a government servant has no right

to a post or to a particular status, though an authority

under the Government acting beyond its competence

had purported to give that person a status which it was

not entitled to give, he will not in law be deemed to

have been validly appointed to the post or given the

particular status.”. Here the 64 Drivers and Conductors

involved in this claim were initially appointed only on

voucher payment basis to carry out the day to day work

in need of exigencies. That being so, they do not have

a right to claim retrospective regularization w.e.f their

appointment on voucher payment basis. Even recently,

in the case of State of Tamil Nadu and others Vs. A.

Singamuthu reported in (2017) 4 SCC 113, the Hon’ble

Supreme Court of India made an observation as

follows:-

"16. In State of Rajasthan vs. Daya Lal [State of

Rajasthan v. Daya Lal, (2011) 2 SCC 429 : (2011) 1,

this Court has considered the scope of regularisation of

irregular or part-time appointments in all possible

eventualities and this Court clearly laid down that

part-time employees are not entitled to seek

regularisation as they do not work against any

sanctioned posts. It was also held that part-time

employees in government-run institutions can in no

case claim parity in salary with regular employees

of the Government on the principle of equal pay for

equal work".

29. Voucher payment employees are not entitled to

seek regularisation as they are not working against any

sanctioned posts. There cannot be a direction for

absorption, regularisation or permanent continuance of

part-time temporary employees. In view of the legal

principles settled by the Apex Court, in the matter of

regularization and permanent absorption, the claim

petitioners who were already regularized with effect from

01-06-2007 (from their date of appointment as daily rated

employees) and therefore, they are not entitled for any

retrospective regularization from the date on which they

were

engaged

voucher

paid

employees.

Consequently, the claim of the Petitioner Union that

the seniority list has to be drawn by taking into account

of their service on voucher payment basis holds

unsustainable.

30. With regard to the transfer claim, it is submitted

on the side of the Respondent Corporation that the

relief sought is very vague and if relief granted, cannot

be executed in the precise terms. Further it is said that

as per the Transfer Policy, the Drivers and Conductors

were transferred to the outlying regions. I find substance

in the argument put forth on the side of the Respondent

Corporation. The said claim made is not supported with

any material to show that they are entitled for the said

direction. From the above findings and discussions, I

hold that Petitioner Union is not entitled for any relief

as sought in the claim petition.

31. 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

the 14th day of December, 2022.

V. SOFANA DEVI,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.

————

List of petitioner’s witness:

PW.1 —

04-07-2017 P. Ilango, President of

P u d u c h e r r y R o a d T r a n s p o r t

Corporation Drivers and Conductors

Thozhilalargal Nala Sangam.

List of petitioner’s exhibits:

Ex.P1 —

20-02-2006

P h o t o c o p y o f t h e

M e m o r a n d u m o f f e r i n g o f

appointment issued to P. Ilango,

a s Dr i v e r o n v o u c h e r p a y m e n t

basis.

Ex.P2 —

23-02-2006

P h o t o c o p y o f t h e

O f f i c e o r d e r i s s u e d b y t h e

Respondent Corporation, engaging

25 Drivers on daily rated basis.

Ex.P3 —

08-03-2006

P h o t o c o p y o f t h e

O f f i c e o r d e r i s s u e d b y t h e

Respondent Corporation, engaging

12 Drivers on voucher payment

basis.

280

LA GAZETTE DE L’ETAT

[28 March 2023

Ex.P4 —

01-06-2007

P h o t o c o p y o f t h e

M e m o r a n d u m o f f e r i n g o f

appointment issued to P. Ilango,

as Driver from voucher payment

basis to daily rated basis.

Ex.P5 —

28-06-2007

P h o t o c o p y o f t h e

O f f i c e o r d e r i s s u e d b y t h e

R e s p o n d e n t C o r p o r a t i o n f o r

engaging 44 Drivers including

P. Ilango on daily rated basis .

w.e.f. 01-06-2007

Ex.P6 —

16-08-2010

P h o t o c o p y o f t h e

M e m o r a n d u m o f f e r i n g o f

appointment issued to P. Ilango,

a s Dr i v e r t e m p o r a r y p o s t o n

a d h o c b a s i s .

Ex.P7 —

02-11-2010

P h o t o c o p y o f t h e

O f f i c e o r d e r i s s u e d b y t h e

R e s p o n d e n t C o r p o r a t i o n f o r

a p p o i n t m e n t t o t h e p o s t o f

Drivers.

Ex.P8 —

25-10-2012

P h o t o c o p y o f t h e

representation of the Petitioner

U n i o n m a d e t o t h e L a b o u r

Commissioner, Pondicherry.

Ex.P9 —

14-03-2013

P h o t o c o p y o f t h e

r e p r e s e n t a t i o n m a d e t o t h e

Labour Officer (Conciliation),

Puducherry.

Ex.P10—

18-07-2013

P h o t o c o p y o f t h e

r e p l y s u b m i t t e d b y t h e

Respondent Corporation to the

Labour Officer (Conciliation),

P uduc h e r r y.

Ex.P11—

19-12-2013

P h o t o c o p y o f t h e

r e p o r t o n f a i l u r e o f

conciliation.

Ex.P12—

09-09-2008

P h o t o c o p y o f t h e

R e c r u i t m e n t R u l e s o f t h e

R e s p o n d e n t C o r p o r a t i o n .

List of respondent’s witness:

RW1 —

12-09-2019

K i s h o r e K u m a r,

G e n e r a l M a n a g e r & C o m p a n y

S e c r e t a r y, P u d u c h e r r y R o a d

T r a n s p o r t C o r p o r a t i o n ,

Puducherry.

List of respondent’s exhibits :

Ex.R1 —

11-06-2007 True copy of the

order of the Transport Secretariat

under G.O. Rt. No.12/2007/Tr.Sec

relating to the approval of t h e

G o v ernment o f t h e c r e a t i o n

of posts for Puducherry Road

T r a n s p o r t C o r p o r a t i o n .

V. SOFANA DEVI,

Presiding Officer (FAC),

Industrial Tribunal-cum-

Labour Court, Puducherry.

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