Sri D. Tirumala Rao

1

BEFORE THE INDUSTRIAL TRIBUNAL CUM LABOUR COURT and Special Court

for the Trial of offenses under ESI Act 1948: GUNTUR

PRESENT: SRI D. THIRUMALA RAO

Chairman cum Presiding Officer, I.T. cum L.C., GNT.

This the 23rd Day of December 2024

INDUSTRIAL DISPUTE 64/2019

Between:

Telugunadu Trade Union Council,

Rep by its President,

Empee Sugars and Chemicals Limited Staff and

Workers Union,

(Regd. No. C/33/Nellore),

S.P.S.R. Nellore District.Claimant

AND

1.The Management,

Empee Sugars and Chemicals Limited,

Naidu, S.P.S.R. Nellore District.

2.Pankaj Srivastav, The Official Liquidator, 58, 3rd cross, Vinayakanagar, Hebbal,

Bengaluru – 560 024.

3.The Management, Radha Smelters Pvt., Ltd.,

Ayyappareddypalem Village,

Kapuluru Post, Kalipedu Panchayat,

Naidupet, Tirupathi District – 524 126.Respondents / Management

This petition came before me for adjudication on 16-12-2024 in the

presence of Sri M. Srinivasa Rao, Counsel for Claimant's union and

Sri D. Bala Raju, Counsel for R1, R2 and R3 remained exparte and upon hearing

both of them, and upon perusing the material papers on record and having stood

over for consideration till this day, this court delivered the following :

A W A R D

1)This reference under Sec. 10-1(c) of the Industrial Disputes Act.1947, has

been made by the Joint Commissioner of Labour, Zone-II, Guntur, to adjudicate

the following points formulated in relation to the demands of the claimant union

ie., Telugunadu Trade Union Council, Empee Sugars and Chemicals Ltd. Staff and

Workers Union (Regd No C/33/Nellore), SPSR, Nellore District:

1) Whether Empee Sugars & Chemicals Limited Staff & Workers Rgd. No C/33,

Nellore is justified in demanding withdrawal of transfer of 70 workers (list

enclosed) effected by the management of M/s.Empee Sugars and Chemicals

Limited, Naidupet ?

2) If not, what is the relief, the 70 workers entitled to ?

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2) The brief facts of the claimant Union case are that the claimant Union has

been duly authorized to represent and espouse the cause of the workmen as

mentioned in the reference. The particulars of each workman were given in the

annexur enclosed along with the reference.

3)The respondent company is one of the leading Sugar Mill in Andhra Pradesh having manufacturing of Sugar, Rectified Sprit, Extra Neutral Spirit, Bio Fertilizer etc and is located at Naidupet of Nellore District. There were various Departments

and Sections in the management factory of Naidupet. The present Industrial

Dispute covers about the workmen who were permanent employees in various

Departments and Sections in the Management factory. All these seventy workers

were discharging their duties in various Departments like Fitting, Welding, Boiler

operating and Turbine Operating etc, as per the instructions of their Shift

Incharge of the respondent management factory. The said work discharged by the

workmen are perennial and seasonal in nature.

4)The workmen in the present Industrial Dispute ie., totaling seventy workers

were transferred to other states at Aranthangi, Kolar and Palakkad with effect

from 20-7-2018. The respondent management did not give one month notice to

the workers. Some of the permanent workers filed claim applications for arrears

of wages from February 2018 under the Payment of Wages Act, in the month of

April 2018. After filing claim applications before the Competent Authority, the

respondent management transferred seventy permanent workers to other states

as submitted above on victimized motive which is unfair labour practice on the

part of the respondent management.

5)The claimant Union further submitted that most of the workers were studied

up to Intermediate and they have no managing skills to discharge their work due

to language problem and they were more than 55 years of age besides suffering

from health problems. Due to that it was very difficult for them to go and work at

the new Stations. Hence Prays to adjudicate the said reference in their favour.

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6)The first respondent filed counter denying the averments of the claim

statement and interalia submitted that there is no legal and proper espousal to

raise this Industrial Dispute as such it is not maintainable. This court has no

jurisdiction to entertain the same. At the time of raising this Industrial Dispute,

the claimant Union was not legally existing and the Person who signed on the

claim statement was not legally elected President of the claimant Union. So much

so, the said seventy workers were not having any membership in the said alleged

claimant Union. This court should not adjudicate other than reference and should

not travel beyond the terms of reference.

7)It is the further submission of this respondent that the respondent was having different Units at different places in different states. This respondent is having one sugar factory at Naidupet in Nellore District of Andhra Pradeh Sate. All

the seventy workers were working in the said respondent sugar factory in the

permanent capacity. The said Sugar factory is a seasonal factory. The said sugar

factory premises comprising of Sugar and Power Division. As per the terms and

conditions of the appointment order, there was a clause that the management has

every right to transfer their employees. Likewise, the said seventy workers were

transferred from one Unit to the other Unit of the respondent company.

8)The respondent further submits that for the last five years, the respondent

sugar factory at Naidupet had been incurring huge losses and the management

was unable to run the sugar factory due to lack of availability of sugar cane,

power cuts and also due to lack of demand of sugar. Under the said

circumstances, the respondent was forced to stop the crushing of Sugar cane

from the crushing year January 2018 onwards. The said respondent sugar factory

at Naidupet was not functioning since January 2018. But the management paid

wages to its workers up to July 2018. Even the said seventy workers in the

reference were not having any work and they sat in idle position. Instead of

termination of workers, with a positive intent, this respondent management

transferred the said seventy workers to the other Units of the respondent. In-

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spite of the said transfers, none of the said seventy workers did not report to

their transferred places. Again the respondent issued separate reminder letters

dt 4-8-2018 and 29-11-2018 to the said seventy workers asking them to attend

their duties at their transferred places. But there was no response from them.

After transferring the said seventy workers and after sending reminder letters to

the said seventy workers, the claimant Union approached to Labour Authorities

for payment of their wages without making any representation to the respondent

management or without questioning about their transfer orders.

9)It appears that as per the reference made by the government, none of the

said worker did not question their transfer order and also did not question the

action taken by the respondent management in transferring them from

respondent sugar Unit at Naidupet to other Units of the respondent. Their

demand is only to withdraw the said transfer orders. As such the demand of the

claimant Union asking the respondent management to withdraw the said transfer

orders is not justified and not tenable. So much so, there was no malafide

intention on the part of respondent in transfer the said seventy workers. This

respondent paid wages to the said seventy workers up to the date of their

transfer. As per the settled Law, in the case of transfer of employee, the court

should not interfere. So much so, the prayer in the claim statement did not

coincide with the reference made by the Government. There was no reference

with regard to their entitlement of Gratuity, Earned Leave amount, Bonus etc

totaling an amount of Rs. 2,89,97,520/- with interest at 24 % P.A. The same is

illegal, unwanted and beyond the scope of reference for which there was no

proper espousal. The respondent further submits that out of seventy workers two

have died and nine workers have resigned from their jobs and settled their

accounts. Therefore, this respondent prays to dismiss the reference with costs.

10)As per orders in I.As 222/2023, 223/2023, the claim statement was

amended and R2 and R3 were impleaded. Subsequently, R1 filed additional

counter and petitioner filed rejoinder to that effect.

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11)Basing on the amendments, the contention of the claimant Union is that the

first respondent factory was sold out to the third respondent vide Order No

1A(IBC)/49/2023 in TCP(IB) No 769/AMR 2019 in the Hon. Court NCLT,

Amaravathi Bench, A.P vide sale Certificate dt 14-11-2023 issued by R2 as Official

Liquidator. Hence, R1 to R3 are jointly and severally liable for the reliefs sought

by the claimant workers.

12)The contention of the first respondent is similar to that of his earlier version and in view of the sale of the first respondent company to the third respondent,

R1 is not liable for any relief as prayed for.

13)Claimant union filed a specific rejoinder claiming that even-though the sale

was affected in between R1 and R3 through R2 Official Liquidator, but as on the

date of the raising of the Industrial Dispute, R1 was in existence. Hence, all of

them are equally liable for the reliefs as sought for.

14)To substantiate the case of the claimant's Union, PW1 to PW54 were

examined in Chief and got marked Ex.P1 to P206. Subsequently, PW1 to PW54

(except PW7) did not turn up to face the cross-examination. Hence, the evidence

of PW6, PW8 to PW54 was eschieved as per the docket proceedings. Now the

evidence of PW1 to PW5 is eschieved as they did not face the test of cross-

examination. No oral and documentary evidence is adduced for the management.

Ex. P1Notarized copy of appointment order of witness dt. 04-12-1995 issued by respondent. Ex. P2Notarized copy of appointment order of witness dt. 09-03-1993 issued by respondent. Ex. P3Pay slip of December 2016 Ex. P4Transfer order dt. 20-07-2018 issued by respondent Ex. P5Notarized copy of appointment order of witness dt. 09-03-1993 issued by respondent. Ex. P6Notarized copy of appointment order of witness dt. 04-12-1995 Ex. P7Pay slip of December 2016 Ex. P8Transfer order dt. 20-07-2018 issued by respondent Ex. P9Notarized copy of appointment order of witness dt. 30-05-1990 issued by respondent. Ex. P10Notarized copy of appointment order of witness dt. 30-09-1991 issued by respondent Ex. P11Pay slip of December 2016 Ex. P12Transfer order dt. 20-07-2018 issued by respondent

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Ex. P13Notarized copy of appointment order of witness dt. 28-08-1991 issued by respondent. Ex. P14Notarized copy of appointment order of witness dt. 17-06-1993 issued by respondent Ex. P15Pay slip of January 2012 Ex. P16Transfer order dt. 20-07-2018 issued by respondent Ex. P17Notarized copy of appointment order of witness dt. 11-03-2004 issued by respondent. Ex. P18Pay slip of December 2015 Ex. P19Transfer order dt. 20-07-2018 issued by respondent Ex. P20Notarized copy of appointment order of witness dt. 11-07-1994 issued by respondent. Ex. P21Order dt. 01-01-2013 issued by respondent Ex. P22Pay slip of July 2017 Ex. P23Transfer order dt. 20-07-2018 issued by respondent Ex. P24Copy of appointment order of witness dt. 10-03-1993 issued by respondent Ex. P25Copy of appointment order of witness dt. 01-07-1997 issued by respondent Ex. P26Pay slip of March 2013 Ex. P27Transfer order dt. 20-07-2018 issued by respondent Ex. P28Copy of appointment order of witness dt. 11-03-1993 issued by respondent Ex. P29Copy of appointment order of witness dt. 01-05-1992 issued by respondent Ex. P30Pay slip of February 2013 Ex. P31Transfer order dt. 20-07-2018 issued by respondent Ex. P32Copy of appointment order of witness dt. 11-03-1993 issued by respondent Ex. P33Copy of appointment order of witness dt. 01-04-1992 issued by respondent Ex. P34Pay slip of December 2016 Ex. P35Transfer order dt. 20-07-2018 issued by respondent Ex. P36Copy of appointment order of witness dt. 01-11-2012 issued by respondent Ex. P37Pay slip of March 2017 Ex. P38Transfer order dt. 20-07-2018 issued by respondent Ex. P39Copy of appointment order of witness dt. 21-01-2012 issued by respondent Ex. P40Copy of appointment order of witness dt. 26-01-2012 issued by respondent Ex. P41Pay slip of February 2017 Ex. P42Transfer order dt. 20-07-2018 issued by respondent Ex. P43Copy of appointment order of witness dt. 02-05-1998 issued by respondent Ex. P44Copy of appointment order of witness dt. 26-12-1993 issued by respondent Ex. P45Pay slip of December 2015 Ex. P46Transfer order dt. 20-07-2018 issued by respondent Ex. P47Copy of appointment order of witness dt. 13-05-1990 issued by respondent

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Ex. P48Copy of appointment order of witness dt. 17-06-1993 issued by respondent Ex. P49Pay slip of December 2015 Ex. P50Transfer order dt. 20-07-2018 issued by respondent Ex. P51Copy of appointment order of witness dt. 15-09-2006 issued by respondent Ex. P52Copy of appointment order of witness dt. 08-06-2006 issued by respondent Ex. P53Pay slip of July 2017 Ex. P54Transfer order dt. 20-07-2018 issued by respondent Ex. P55Copy of appointment order of witness dt. 28-03-1992 issued by respondent Ex. P56Copy of appointment order of witness dt. 10-03-1993 issued by respondent Ex. P57Pay slip of May 2018 Ex. P58Transfer order dt. 20-07-2018 issued by respondent Ex. P59Copy of appointment order of witness dt. 01-03-1992 issued by respondent Ex. P60Copy of appointment order of witness dt. 11-03-1993 issued by respondent Ex. P61Pay slip of July 2016 Ex. P62Transfer order dt. 20-07-2018 issued by respondent Ex. P63Copy of appointment order of witness dt. 28-03-1992 issued by respondent Ex. P64Copy of appointment order of witness dt. 11-03-1993 issued by respondent Ex. P65Pay slip of July 2017 Ex. P66Transfer order dt. 20-07-2018 issued by respondent Ex. P67Copy of appointment order of witness dt. 02-06-1990 issued by respondent Ex. P68Copy of appointment order of witness dt. 17-06-1993 issued by respondent Ex. P69Pay slip of October 2017 Ex. P70Transfer order dt. 20-07-2018 issued by respondent Ex. P71Copy of appointment order of witness dt. 28-08-1991 issued by respondent Ex. P72Copy of appointment order of witness dt. 17-06-1993 issued by respondent Ex. P73Pay slip of December 2015 Ex. P74Transfer order dt. 20-07-2018 issued by respondent Ex. P75Copy of appointment order of witness dt. 10-03-1993 issued by respondent Ex. P76Copy of salary certificate dt 05-08-2004 Ex. P77Pay slip of November 2010 Ex. P78Transfer order dt. 20-07-2018 issued by respondent Ex. P79Copy of appointment order of witness dt. 30-03-1993 issued by respondent Ex. P80Copy of office order dt 01-11-2012 Ex. P81Pay slip of March 2017 Ex. P82Transfer order dt. 20-07-2018 issued by respondent Ex. P83Copy of appointment order of witness dt. 11-03-1993 issued by respondent

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Ex. P84Copy of appointment order of witness dt. 04-12-1995 issued by respondent Ex. P85Pay slip of February 2017 Ex. P86Transfer order dt. 20-07-2018 issued by respondent Ex. P87Copy of appointment order of witness dt. 11-03-1993 issued by respondent Ex. P88Copy of office order dt 01-11-2012 Ex. P89Copy of Aadhar card Ex. P90Pay slip of December 2017 Ex. P91Transfer order dt. 20-07-2018 issued by respondent Ex. P92Copy of appointment order of witness dt. 11-09-2006 issued by respondent Ex. P93Copy of office order dt 01-02-2010 Ex. P94Pay slip of February 2017 Ex. P95Transfer order dt. 20-07-2018 issued by respondent Ex. P96Copy of appointment order of witness dt. 02-12-1996 issued by respondent Ex. P97Copy of office order dt 02-03-1999 Ex. P98Pay slip of March 2017 Ex. P99Transfer order dt. 20-07-2018 issued by respondent Ex. P100Copy of appointment order of witness dt. 01-03-1993 issued by respondent Ex. P101Copy of office order dt 30-06-1998 Ex. P102Pay slip of February 2017 Ex. P103Transfer order dt. 20-07-2018 issued by respondent Ex. P104Copy of appointment order of witness dt. 31-10-2006 issued by respondent Ex. P105Copy of appointment order of witness dt. 08-11-2006 issued by respondent Ex. P106Pay slip of February 2018 Ex. P107Transfer order dt. 20-07-2018 issued by respondent Ex. P108Copy of appointment order of witness dt. 08-06-1998 issued by respondent Ex. P109Copy of office order dt 11-03-2004 Ex. P110Pay slip of December 2016 Ex. P111Transfer order dt. 20-07-2018 issued by respondent Ex. P112Copy of appointment order of witness dt. 01-07-1997 issued by respondent Ex. P113Copy of confirmation order dt 26-03-20014 issued by respondent Ex. P114Pay slip of December 2016 Ex. P115Transfer order dt. 20-07-2018 issued by respondent Ex. P116Copy of office order of witness dt. 29-03-1997 issued by respondent Ex. P117Copy of appointment order of witness dt. 10-03-1993 issued by respondent Ex. P118Pay slip of February 2017 Ex. P119Transfer order dt. 20-07-2018 issued by respondent Ex. P120Copy of office order of witness dt. 29-03-1997 issued by respondent Ex. P121Copy of appointment order of witness dt. 06-04-1993 issued by respondent

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Ex. P122Pay slip of March 2017 Ex. P123Transfer order dt. 20-07-2018 issued by respondent Ex. P124Copy of appointment order of witness dt. 10-03-1993 issued by respondent Ex. P125Copy of office order dt 29-03-1997 Ex. P126Pay slip of November 2016 Ex. P127Transfer order dt. 20-07-2018 issued by respondent Ex. P128Copy of appointment order of witness dt. 16-05-2005 issued by respondent Ex. P129Pay slip of December 2016 Ex. P130Transfer order dt. 20-07-2018 issued by respondent Ex. P131Copy of appointment order of witness dt. 11-03-2004 issued by respondent Ex. P132Copy of office order dt 27-10-2006 issued by respondent Ex. P133Pay slip of November 2013 Ex. P134Transfer order dt. 20-07-2018 issued by respondent Ex. P135Copy of appointment order of witness dt. 06-10-1990 issued by respondent Ex. P136Pay slip of December 2015 Ex. P137Transfer order dt. 20-07-2018 issued by respondent Ex. P138Copy of office order with effect dt. 17-11-2010 issued by respondent Ex. P139Copy of appointment order dt. 28-01-2011 issued by respondent Ex. P140Pay slip of March 2017 Ex. P141Transfer order dt. 20-07-2018 issued by respondent Ex. P142Copy of office order of witness dt. 04-12-1995 issued by respondent Ex. P143Copy of appointment order dt. 10-03-1993 issued by respondent Ex. P144Pay slip of February 2017 Ex. P145Transfer order dt. 20-07-2018 issued by respondent Ex. P146Copy of office order of witness dt. 11-03-2004 issued by respondent Ex. P147Copy of appointment order dt. 23-09-1999 issued by respondent Ex. P148Pay slip of March 2017 Ex. P149Transfer order dt. 20-07-2018 issued by respondent Ex. P150Copy of appointment order of witness dt. 18-08-1994 issued by respondent Ex. P151Copy of office order dt 08-08-2008 issued by respondent Ex. P152Pay slip of December 2016 Ex. P153Transfer order dt. 20-07-2018 issued by respondent Ex. P154Copy of appointment order of witness wef dt. 01-09-2004 issued by respondent Ex. P155Copy of appointment order of witness dt. 16-10-2004 issued by respondent Ex. P156Pay slip of October 2016 Ex. P157Transfer order dt. 20-07-2018 issued by respondent Ex. P158Copy of appointment order of witness dt. 17-12-2001 issued by respondent Ex. P159Copy of appointment order of witness dt. 26-12-2001 issued by respondent Ex. P160Pay slip of December 2017

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Ex. P161Transfer order dt. 20-07-2018 issued by respondent Ex. P162Copy of office order of witness dt. 01-02-2010 issued by respondent Ex. P163Copy of trainee order dt. 15-06-2005 issued by respondent Ex. P164Pay slip of December 2015 Ex. P165Transfer order dt. 20-07-2018 issued by respondent Ex. P166Copy of appointment order of witness dt. 01-03-2002 issued by respondent Ex. P167Copy of office order dt 26-12-2013 issued by respondent Ex. P168Pay slip of March 2016 Ex. P169Transfer order dt. 20-07-2018 issued by respondent Ex. P170Copy of appointment order of witness wef dt. 30-03-2006 issued by respondent Ex. P171Copy of appointment order dt. 03-04-2006 issued by respondent Ex. P172Pay slip of December 2015 Ex. P173Transfer order dt. 20-07-2018 issued by respondent Ex. P174Copy of appointment order of witness dt. 16-03-1992 issued by respondent Ex. P175Pay slip of July 2004 Ex. P176Transfer order dt. 20-07-2018 issued by respondent Ex. P177Copy of appointment order of witness dt. 26-09-2008 issued by respondent Ex. P178Pay slip of December 2015 Ex. P179Transfer order dt. 20-07-2018 issued by respondent Ex. P180Copy of appointment order of witness dt. 17-01-1992 issued by respondent Ex. P181Pay slip of February 2017 Ex. P182Transfer order dt. 20-07-2018 issued by respondent Ex. P183Copy of appointment order of witness dt. 01-02-2012 issued by respondent Ex. P184Pay slip of May 2016 Ex. P185Transfer order dt. 20-07-2018 issued by respondent Ex. P186Letter of intent dt. 29-07-2004 Ex. P187Pay slip of August 2016 Ex. P188Transfer order dt. 20-07-2018 issued by respondent Ex. P189Copy of appointment order of witness dt. 20-05-2003 Ex. P190Pay slip of March 2017 Ex. P191Transfer order dt. 20-07-2018 issued by respondent Ex. P192Copy of appointment order of witness dt. 10-10-2012 Ex. P193Pay slip of July 2013 Ex. P194Transfer order dt. 20-07-2018 issued by respondent Ex. P195Copy of appointment order of witness dt. 04-12-1995 Ex. P196Pay slip of March 2016 Ex. P197Transfer order dt. 20-07-2018 issued by respondent Ex. P198Copy of office order dt. 01-01-2013 Ex. P199Pay slip of July 2010 Ex. P200Transfer order dt. 20-07-2018 issued by respondent Ex. P201Copy of office order dt. 26-12-2013 Ex. P202Copy of appointment order of witness dt. 26-12-2013

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Ex. P203Pay slip of December 2013 Ex. P204Transfer order dt. 20-07-2018 issued by respondent Ex. P205Representation of the claimant's union regarding the transfer issue of seventy workers Ex.P206Communication from J.C.L to A.C.L regarding the list of seventy workers

15)I have heard the Learned counsel for the claimant Union and also the

Learned counsel for the first respondent. I have perused the material papers on

record very carefully along with the Rulings filed by the Learned counsel for the

first respondent.

16)Basing on the rival contentions of both parties, now the points that arise for

consideration are that:

1) Whether the reference is bad in Law due to lack of proper espousal ?

2) Whether Empee Sugars & Chemicals Limited Staff & Workers Regd. No

C/33, Nellore is justified in demanding withdrawal of transfer of 70 workers

effected by the management of M/s. Empee Sugars and Chemicals Limited,

Naidupet ?

3) To what relief ?

Point No 1 :

17)The case of the claimant Union is that the respondent management is a

Leading Sugar Mill in Andhra Pradesh. The workers under the reference are

permanent employees in various Departments and Sections of the respondent

management. The workers under the reference started demanding arrears of

wages from February 2018 under the payment of wages Act. As a counter blast,

the Management issued transfer orders for seventy workers without any

reasonable grounds which amounts to victimization.

18)The case of the respondent management is that there is no proper espousal to raise the Industrial Dispute by the claimant's Union. No Authorization is placed

before this court to represent the claimant's Union. In view of the financial

difficulty of the first respondent to run the industry, the first respondent was

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constrained to get the transfer of seventy workers to its sister concerns under the

bonafide impression of providing alternative employment to the seventy workers

who failed to join in their new stations. The management also went into

liquidation and the respondent factory was sold away to the third respondent by

the second respondent. Hence, the first respondent claims that there is no

illegality and irrationality in transferring seventy workers to question the act of

the management.

19)The Learned counsel for the petitioner submitted that the respondent

management failed to disburse the salaries of its workers for a period of six

months. As a result, the workers raised their demands for wages. By keeping the

same in mind, the respondent management initiated transfer proceedings to

transfer seventy workers to various places which are far away from the present

industry and the workmen were unable to join in their new stations. The act of

the management is retrenchment of the seventy workers without following the

due process of law and the claimant Union raised the dispute on behalf of seventy

workers with proper espousal. During the pendency of the present proceedings,

R1 factory was sold out to R3 by R2 as Official Liquidator. Hence, R2 and R3 were

added to the proceedings in view of change of management. So, therefore, the

demands of the claimant union on behalf of seventy workers are justifiable.

20)On the other hand, the Learned counsel for the first respondent submitted that there is no proper espousal to raise Industrial Dispute on behalf of seventy

workers. Espousal is crucial aspect to raise the Industrial Dispute which is a

procedural mandate. It is also canvased that 54 witnesses were examined, but

they did not face the test of cross-examination except PW7 who admitted that

they submitted their grievance before the NCLT, Amaravathi Bench which is

competent to decide the case of the seventy workers. It is also submitted that in view of the financial crises, R1 transferred the seventy workers from its Unit to its sister concern Unit, but the said seventy workers did not join in their duties.

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Hence, he concluded that the claimant Union had failed to establish its case. To

Bolster his submissions. He relied on the following Rulings :

1) 2015 LLR 747 (Del) between Lord Krishna Textile Mills/Ntional Textile

Corporation Ltd Vs. Rampal Singh.

2) 2007 LLR 386 (Del) between Management of Messers Hotel Samrat Vs

Government of NCT and others

3) 2015-1 LLJ 552 (Mad) between Management, RSL B Tannery Rep by its

Director, Vaduvanthangal, Katpadi Taluk Vs. Presiding Officer, Principal

Labour Court, Vellore and others

4) 2002 LLR 884 (A.P) between Sr. Regional Manager, Hindusthan petroleum

Corporation Ltd and Another Vs. Presiding Officer, Industril Tribunal-1,

Hyderabad and another

5) 2018 LLR 871 (Bom) between Mr. Ashok U Nikam Vs Tata Power Company

Ltd

21)To substantiate the case of the claimant's Union, one P. Prasad was

examined as PW7. By way of Chief Affidavit, PW7 deposed the case of the

claimant's Union apart from marking Ex P20 to P 23. During his cross-

examination, it is elicited that there is one Union in their factory premises at

Nellore. He does not know the name of his Union. His case was espoused by their

Union representatives. He got his own document in respect of his espousal

reference. He was transferred from Naidupet Unit to Pudukottai of Chennai Unit.

He received his transfer order copy. He did not report his duties as per the said

transfer orders. He did not challenge the transfer order before any Authority.

He admitted that he had demanded the management to withdraw his transfer

order. Except oral demand, he did not make any written demand. The respondent

management paid salaries to all the workers including him upto July 2018. He

does not know whether the respondent sugar factory functioned in loss for the

last five years prior to January 2018. He did not file his Membership in his Union.

There is a case pending in National Company Law Tribunal, Chennai Bench

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regarding their company issue and he filed his claim petition before the said court

which is pending.

22)The other witnesses from PW1 to PW6, PW8 to PW54 did not turn up before this court to face the cross-examination. Hence, their evidence is untrustworthy

and inadmissible for consideration in view of lack of facing the test of cross-

examination.

23)Confined to the documents marked through PW7, it is clear that only Ex.P20

to P23 are available before this court for consideration and the rest of the

documents from Ex.P1 to P19 and from Ex.P24 to P204 are inadmissible

evidence. Hence, those are excluded from the consideration. There are two other

documents under Exs. P205 and P206 available for consideration since those are

received with consent.

24)Ex. P20 is Notarized application of appointment order of PW7. Basing on

Ex. P20, it is clear that PW7 was appointed as Trainee on 11-7-1994 purely on

seasonal basis. The appointment order of PW7 is containing seven clauses.

Ex.P21 is Office Order dt 1-1-2013 regarding the assessment of the performance

of PW7. Ex.P22 is salary slip of PW7. Ex.P23 is Transfer order dt 4-8-2018 of

PW7. Basing on the transfer order, it is emerged that it is made to provide

continuous employment to the workmen as the Unit at Naidupet has no work and

it is idle in view of heavy losses to the first respondent company.

25)Ex.P205 is representation of the claimant's Union regarding the transfer

issue of seventy workers. Ex.P206 is a communication from J.C.L to A.C.L

regarding the list of seventy workers.

26)At this juncture, the Learned counsel for the management canvased that

there is no espousal and PW7 has no locus-standi to represent the claimant's

Union. The claimant's Union failed to prove its case before this court with proper

espousal which is a crucial to decide the case of the claimant's Union and

to that extent, he relied on the Rulings listed supra. It is also canvased that

the

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claimant's Union demanded various monetary reliefs without any reference to that

effect. So, therefore, this court cannot travel beyond the reference order.

27)As per the Ruling in Lord Krishna Textile Mills (listed supra), it is clear that

the reference is very essential to decide the case of the workmen. For better

understanding of the same, Paras 16 and 24 are essential from the said

Judgment. Hence, the same are reproduced below :

16. It can be seen from above that an industrial dispute can be raised either for a workman or any person regarding whom the workmen have substantial interest in the employment or non- employment or terms of employment or conditions of labour. The expression, „any person‟ in the definition has not been equated with workmen and it has a wider connotation. But „any person‟ is also subject to limitation under the process of judicial interpretation. The expression „any person‟ must have a direct relation with the workmen about whose employment or non-employment or terms of employment or conditions of labour, the workmen have direct and substantial interest. It means that any person must be an employee of the industry in which the workmen are employees as well. The next point for consideration in this series is that whether an individual dispute can become an industrial dispute under Section 2(k) of the ID Act?

21. A perusal of this Section shows that the dispute regarding discharge, dismissal, retrenchment or termination of the workman and any dispute or difference between that workman and his employer connected with or arising out of such discharge, dismissal, retrenchment or termination is deemed to be an industrial dispute under Section 2A (1) of the ID Act notwithstanding the fact that no other workman nor any union of workmen is a party to that dispute. Further, as per sub- section 2 of Section 2A of the ID Act, such a workman as aforementioned is empowered to directly approach the labour court or a tribunal for adjudication of the dispute as referred in Section 2A (1). However, in the cases of disputes not falling under sub-section 1 of the said Section, the position is the same as that before the 1965 amendment. For the disputes not covered under Section 2A (1) of the ID Act, its espousal must still be through a Union or a substantial number of fellow workmen.

22. What is observed from above is that the disputes falling under the categories specified under Section 2A of the ID Act are industrial disputes and all other kinds of disputes unless they are espoused properly through a substantial number of fellow workmen would fall under the category of „individual disputes‟ which are not a subject matter of concern under the ID Act. Clearly, individual disputes cannot be adjudicated and decided under the ID Act as they do not fall under the definition of the expression „industrial disputes‟ as defined under Section 2(k) thereof.

24. This court is not convinced by the view taken by the trial court. As observed above the tribunal is competent to decide only on the disputes which come under the definition of Section 2(k) and 2A of the ID Act and all other kinds of disputes are outside the realms of the ID Act. An individual dispute, howsoever genuine it may be, is not a subject matter of adjudication under the ID Act which talks of collective action and dispute resolution. Thus, the issue of espousal goes to the root of the matter and is not in a nature of a mere technicality. This court in „Management of Messers Hotel Samrat vs. Government of NCT & Ors‟, (2007) 2 LLJ 950 Del observed as under:- "14. ........The Tribunal has jurisdiction to adjudicate only an industrial dispute. The Tribunal came to conclusion that the cause of the workmen was not espoused. Once the Tribunal decided the issue of espousal against the workman, the Tribunal lost its jurisdiction to adjudicate the dispute since no industrial dispute existed. However, the Tribunal considered that it was a mere technicality. I consider that the entire jurisprudence of Industrial Disputes Act, is in respect of resolution of collective dispute of the workmen. It is not a mere technicality. An individual dispute unless covered under section 2A cannot be raised under Industrial Disputes Act."

28)Similar is the principle in the case of Management of Messers Hotel Samrat

(listed supra).

29)In the case of Management, RSL B Tannery (listed supra), the Hon'ble

Madras High Court observed the same. Hence, Paras 7, 8 and 9 are reproduced

below for better understanding of the case:

16

7. It is not in dispute that the union has raised the dispute and the Tribunal has passed as award. It is also an admitted fact that the management has raised a plea in regard to the contention of the Union in para 2 of the counter in I.D.No.46 of 2002 with regard to the representative capacity of the union. The Management has filed a counter but, there is no appearance for the Management and therefore, exparte order was passed in I.D.No.46 of 2002.

8.The Tribunal has rightly passed an award on merits in the absence of management. But, unfortunately, the Tribunal has not answered the issue raised by the management. The contention of the union is that it is only a technical objection and that more than a decade has passed away and that this Court can grant relief which cannot be accepted. A specific point is taken by the management that the union has no representative capacity and that the reference itself is incompetent. Neither the union nor the Tribunal has gone into the question as the representative capacity of the union. There is no iota of evidence by the union. The main point raised by the management was not answered by the Tribunal and that point which has been raised in para 2 of the counter mentioned supra.

9. In the absence of any evidence or proof to show that any other persons who mainly demands on behalf of the workers, the reference is bad. Even though the reliance placed by Mr.Ravindran, learned counsel for the petitioner, pertaining to the dispute of the year 1969, and as per the previous law, there is Industrial Dispute raised by the Union is good as on date though with regard to non-employment of the individual workmen. After introduction of Section 2(A) Industrial Disputes Act,1965, there is no need for a support of the Union and even if the membership is not established independently, the dispute will not stand. In case of the Section 2(K) pertaining to other issues could follow under Section 2A of Industrial Disputes Act, the principle laid down in the judgment will hold good. Even though, the Labour Court has stated that the WW1 has stated in evidence that there were 104 employees in the union, nowhere it is stated that there is sponsorship for raising dispute. This Court in a decision reported in 1999 (2) LLJ 8(Food Corporation of India, Class IV Employee Union v. Sangrur and Food Corporation of India, Chandigarh), wherein the individual workers raised the dispute without any sponsorship for the union. The contention of the management was rejected on the ground that 120 employees jointly raised the dispute. In this case, there is no evidence to that effect. I find that the union has not proved the representative capacity to maintain the dispute and therefore, set aside the award and remand the matter to the Tribunal for fresh disposal on merits after giving opportunity to both parties and the Tribunal should complete the exercise within a period of six months from the date of receipt of a copy of this order. At no point of time, the Tribunal shall grant adjournment for the period of more than three days, on a petition filed by parties. Since the employee had the benefit of the award and there is no mandatory relief granted to them during the pendency of the writ petition and the management is directed to pay the concerned workers a sum of Rs.25,000/- each to enable them to sustain during the pendency of the industrial dispute. Since the order of the Labour Court in respective claim petitions based on the order of the learned Single Judge of this Court which has been referred by the Division Bench. The order of the Labour Court is set aside as it is open to the employees to approach the Labour Forum if so advised depending upon the outcome of the proceedings before the Industrial Tribunal in I.D.No.46 of 2002. The Tribunal is directed to dispose of the case within a period of six months from the date of receipt of a copy of this order. The writ petition filed by the Management is allowed to the extent indicated supra. There is no order as to costs. Parties are directed to appear before the Tribunal on 31.10.2014. The Registry is directed to send all relevant papers to the Tribunal and it is also made clear that there is no notice to be sent to the Tribunal and the parties.

30)Basing on the above settled Legal proposition, it is clear that espousal is crucial in reference cases. As far as the case on hand, it is clear that except the

evidence of PW7, there is no other evidence before this court regarding the

espousal. During the cross-examination of PW7, PW7 failed to answer the name

of his Union. So, therefore, there is no much evidence before this court regarding

the Union and its espousal. The available documents are Ex.P20 to P23 apart

from Ex.P205 and P206. Ex P20 to P23 are individual documents of PW7 apart

from combined transfer order of other employees. Ex.P205 is Union

representation, but it is not proved before this court except came on record with

the consent of the parties. It is settled law that receipt of document for the

purpose of numbering is different from proving of the contents of the document.

So, therefore, the contents of Ex.P205 and P206 are not proved before this court.

17

As a result, it is concluded that the espousal is not proper and the evidence of

PW7 is no way helpful to represent the common cause of other co-workers. So,

therefore, it is clear that the reference is bad in law in view of lack of proper

espousal. Accordingly, this point is answered against the claimant's Union.

Point No 2 :

31)The transferred employees have every ground to challenge their transfer order with proper grounds either before joining or after joining into new places to

decide the grounds urged in the Union representation. There are various grounds

available to the Union to question the transfer order. The transfer orders can be

considered that they are vitiated when the transfer order is having a malafide

intention on the part of the management and when there is a violation of contract or service Rules and that when there is no lack of authority to pass such kind of transfer orders and that when there is no necessity of transfer and when there is

no requisition from sister company etc. These are only illustrative but not

exhaustive.

32)As far as the claimant's Union case is concerned, the transfer order was

made as a counter blast when the workers demanded for arrears of wages. On

the other hand, the management claimed that in view of financial constraints, the

management was unable to run the company and in order to provide

accommodation to the workers under dispute, they passed the transfer order for

the welfare of the workers. Inspite of the same, the workers did not join in their

new places.

33)As rightly canvased by the Learned counsel for the first respondent, it is clear that this court cannot travel beyond the reference order and this principle is

strengthened in the Rulings of Sr. Regional Manager, Hindusthan petroleum

Corporation Ltd and Mr. Ashok U Nikam Vs Tata Power Company Ltd

(listed supra). Hence, this court confined to the reference order only by excluding

the financial demands of the worker's Union for an amount of Rs. 2,89,97,520/-

pertaining to the Heads of Gratuity, Gross Salary from July 2018 to December

18

2019, balance P.F from September 2016 to July 2018, Earned Leave and Bonus

on the ground that the claimant's Union raised its demand before the N.C.LT,

Chennai Bench and it is left-over to the Hon'ble NCLT, Chennai Bench for its

decision on merits.

34) This court is confined to the validity of demand in respect of the referential

order pertaining to the transfer of seventy workers. Indisputably the claim is

restricted to fifty six workers on the ground that some workers are not interested to raise the dispute and some more persons died and left the service. At the same time, it is undisputed fact that they have crossed 56 years. The claimant's Union alleged that it is troublesome to the workers to go to their transferred places at

the age of 56 years. This argument cannot be countenanced in the absence of

any evidence to that effect. Further, the workers did not enter into the witness

box to face the test of the cross-examination to that effect. There is no other

evidence to question the management to withdraw the transfer order. In the

absence of any substantive evidence on record, the Union cannot demand the

management to withdraw the transfer order.

35)As per the evidence available on record, it is clear that the management went into liquidation and the properties of the first respondent were sold to third respondent by the second respondent as Official Liquidator. So, therefore, it is

clear that the management justified its transfer decision which is done for the

benefit of the seventy workmen in view of the financial instability of the first

respondent. So, therefore, when the action of the management is justified and

when there is no substantive evidence to raise the demand for withdrawal of

transfer orders, the claimant's Union cannot raise the demand for the withdrawal of the transfer order and the demand of the claimant's Union is unsustainable and

the argument of the Learned counsel for the claimant's Union is unsubstantiated

with evidence to that effect and the submissions of the Learned counsel for the

claimant's Union to that effect cannot be countenanced and it is unacceptable in

19

the absence of proper espousal and sufficient grounds to that effect. Accordingly,

this point is answered.

Point No 3 :

36)In the result, the reference is answered holding that the Empee Sugars and

Chemicals Limited Staff and Workers Reg.No C/33, Nellore is not justified in

demanding withdrawal of transfer of 70 workers effected by the management of

M/s. Empee Sugars and Chemicals Ltd, Naidupet. There shall be no order as to

costs. The office is directed to forward the award to the Government of Andhra

Pradesh for its publication under Sec. 17 of the Industrial Disputes Act, 1947

Typed to my dictation by the Office Superintendent, corrected and

pronounced by me in the open court, on this the 23rd Day of December 2024.

Chairman-Cum-Presiding Officer

Industrial Tribunal-Cum

Labour Court: Guntur

APPENDIX OF EVIDENCE

Witnesses examined for:

Petitioner side Respondents side

Pw1 : N. Venkateswarlu (Eschieved) Nil

Pw2 : K. Unni Krishna (Eschieved)

Pw3 : M. Penchalaiah (Eschieved)

Pw4 : P. Sudarshan Naidu (Eschieved)

Pw5 : M. Hari Prasad(Eschieved)

Pw6 : S.V. Ramnaiah(Eschieved)

Pw7 : P. Prasad

Pw8 : N.G.K. Raju(Eschieved)

Pw9 : V. Ramanaiah(Eschieved)

Pw10 : V. Mastan(Eschieved)

Pw11 : G. Vijay(Eschieved)

Pw12 : Kumud Kumar Sah(Eschieved)

Pw13 : B. Srinivasa Rao(Eschieved)

Pw14 : P. Muni Ratnam(Eschieved)

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Pw15 : M. Venugopal(Eschieved)

Pw16 : P. Thimmareddy(Eschieved)

Pw17 : Sk. Muzeebur(Eschieved)

Pw18 : K. Madhu Sudan Raju(Eschieved)

Pw19 : P. Rajagopal(Eschieved)

Pw20 : A. Srinivasulu Reddy (Eschieved)

Pw21 : Y. Srinivasulu Reddy (Eschieved)

Pw22 : P. Sukumar(Eschieved)

Pw23 : M.V.V. Subrahmanyam(Eschieved)

Pw24 : K. Naga Raju(Eschieved)

Pw25 : Sk. Gouse Basha(Eschieved)

Pw26 : K. Narasaiah(Eschieved)

Pw27 : P. Venkata Ramanaiah(Eschieved)

Pw28 : M. Ramesh(Eschieved)

Pw29 : Peta Muni Raja(Eschieved)

Pw30 : V. Yedukondalu(Eschieved)

Pw31 : P. Chandra Sena(Eschieved)

Pw32 : G. Perumal(Eschieved)

Pw33 : T. Ravindra Nath(Eschieved)

Pw34 : Syed Gouse Basha(Eschieved)

Pw35 : Syed Khadar Hussain (Eschieved)

Pw36 : A. Srinivasulu(Eschieved)

Pw37 : M. Subrahmanyam(Eschieved)

Pw38 : P. Siva Prasad(Eschieved)

Pw39 : K.Sudhakar(Eschieved)

Pw40 : S.P. Veeraswamy(Eschieved)

Pw41 : S. Venkataiah(Eschieved)

Pw42 : K. Sankar Rao(Eschieved)

Pw43 : N. Nageswara Rao(Eschieved)

Pw44 : Ch. Chinnabbaih(Eschieved)

Pw45 : M. Venkateswarlu(Eschieved)

Pw46 : K. Madhava(Eschieved)

Pw47 : G. Annavaram(Eschieved)

Pw48 : K. Ammer(Eschieved)

Pw49 : M. Jai Kumar(Eschieved)

21

Pw50 : Ram Avadh Singh(Eschieved)

Pw51 : K. M. Venkateswarlu (Eschieved)

Pw52 : M. Ramesh Babu(Eschieved)

Pw53 : D. Krishnaiah(Eschieved)

Pw54 : D. Haranadha Babu(Eschieved)

DOCUMENTS MARKED FOR PETITIONER :

Ex. P1Notarized copy of appointment order of witness dt. 04-12-1995 issued by respondent. Ex. P2Notarized copy of appointment order of witness dt. 09-03-1993 issued by respondent. Ex. P3Pay slip of December 2016 Ex. P4Transfer order dt. 20-07-2018 issued by respondent Ex. P5Notarized copy of appointment order of witness dt. 09-03-1993 issued by respondent. Ex. P6Notarized copy of appointment order of witness dt. 04-12-1995 Ex. P7Pay slip of December 2016 Ex. P8Transfer order dt. 20-07-2018 issued by respondent Ex. P9Notarized copy of appointment order of witness dt. 30-05-1990 issued by respondent. Ex. P10Notarized copy of appointment order of witness dt. 30-09-1991 issued by respondent Ex. P11Pay slip of December 2016 Ex. P12Transfer order dt. 20-07-2018 issued by respondent Ex. P13Notarized copy of appointment order of witness dt. 28-08-1991 issued by respondent. Ex. P14Notarized copy of appointment order of witness dt. 17-06-1993 issued by respondent Ex. P15Pay slip of January 2012 Ex. P16Transfer order dt. 20-07-2018 issued by respondent Ex. P17Notarized copy of appointment order of witness dt. 11-03-2004 issued by respondent. Ex. P18Pay slip of December 2015 Ex. P19Transfer order dt. 20-07-2018 issued by respondent Ex. P20Notarized copy of appointment order of witness dt. 11-07-1994 issued by respondent. Ex. P21Order dt. 01-01-2013 issued by respondent Ex. P22Pay slip of July 2017 Ex. P23Transfer order dt. 20-07-2018 issued by respondent Ex. P24Copy of appointment order of witness dt. 10-03-1993 issued by respondent Ex. P25Copy of appointment order of witness dt. 01-07-1997 issued by respondent Ex. P26Pay slip of March 2013 Ex. P27Transfer order dt. 20-07-2018 issued by respondent Ex. P28Copy of appointment order of witness dt. 11-03-1993 issued by respondent

22

Ex. P29Copy of appointment order of witness dt. 01-05-1992 issued by respondent Ex. P30Pay slip of February 2013 Ex. P31Transfer order dt. 20-07-2018 issued by respondent Ex. P32Copy of appointment order of witness dt. 11-03-1993 issued by respondent Ex. P33Copy of appointment order of witness dt. 01-04-1992 issued by respondent Ex. P34Pay slip of December 2016 Ex. P35Transfer order dt. 20-07-2018 issued by respondent Ex. P36Copy of appointment order of witness dt. 01-11-2012 issued by respondent Ex. P37Pay slip of March 2017 Ex. P38Transfer order dt. 20-07-2018 issued by respondent Ex. P39Copy of appointment order of witness dt. 21-01-2012 issued by respondent Ex. P40Copy of appointment order of witness dt. 26-01-2012 issued by respondent Ex. P41Pay slip of February 2017 Ex. P42Transfer order dt. 20-07-2018 issued by respondent Ex. P43Copy of appointment order of witness dt. 02-05-1998 issued by respondent Ex. P44Copy of appointment order of witness dt. 26-12-1993 issued by respondent Ex. P45Pay slip of December 2015 Ex. P46Transfer order dt. 20-07-2018 issued by respondent Ex. P47Copy of appointment order of witness dt. 13-05-1990 issued by respondent Ex. P48Copy of appointment order of witness dt. 17-06-1993 issued by respondent Ex. P49Pay slip of December 2015 Ex. P50Transfer order dt. 20-07-2018 issued by respondent Ex. P51Copy of appointment order of witness dt. 15-09-2006 issued by respondent Ex. P52Copy of appointment order of witness dt. 08-06-2006 issued by respondent Ex. P53Pay slip of July 2017 Ex. P54Transfer order dt. 20-07-2018 issued by respondent Ex. P55Copy of appointment order of witness dt. 28-03-1992 issued by respondent Ex. P56Copy of appointment order of witness dt. 10-03-1993 issued by respondent Ex. P57Pay slip of May 2018 Ex. P58Transfer order dt. 20-07-2018 issued by respondent Ex. P59Copy of appointment order of witness dt. 01-03-1992 issued by respondent Ex. P60Copy of appointment order of witness dt. 11-03-1993 issued by respondent Ex. P61Pay slip of July 2016 Ex. P62Transfer order dt. 20-07-2018 issued by respondent Ex. P63Copy of appointment order of witness dt. 28-03-1992 issued by respondent

23

Ex. P64Copy of appointment order of witness dt. 11-03-1993 issued by respondent Ex. P65Pay slip of July 2017 Ex. P66Transfer order dt. 20-07-2018 issued by respondent Ex. P67Copy of appointment order of witness dt. 02-06-1990 issued by respondent Ex. P68Copy of appointment order of witness dt. 17-06-1993 issued by respondent Ex. P69Pay slip of October 2017 Ex. P70Transfer order dt. 20-07-2018 issued by respondent Ex. P71Copy of appointment order of witness dt. 28-08-1991 issued by respondent Ex. P72Copy of appointment order of witness dt. 17-06-1993 issued by respondent Ex. P73Pay slip of December 2015 Ex. P74Transfer order dt. 20-07-2018 issued by respondent Ex. P75Copy of appointment order of witness dt. 10-03-1993 issued by respondent Ex. P76Copy of salary certificate dt 05-08-2004 Ex. P77Pay slip of November 2010 Ex. P78Transfer order dt. 20-07-2018 issued by respondent Ex. P79Copy of appointment order of witness dt. 30-03-1993 issued by respondent Ex. P80Copy of office order dt 01-11-2012 Ex. P81Pay slip of March 2017 Ex. P82Transfer order dt. 20-07-2018 issued by respondent Ex. P83Copy of appointment order of witness dt. 11-03-1993 issued by respondent Ex. P84Copy of appointment order of witness dt. 04-12-1995 issued by respondent Ex. P85Pay slip of February 2017 Ex. P86Transfer order dt. 20-07-2018 issued by respondent Ex. P87Copy of appointment order of witness dt. 11-03-1993 issued by respondent Ex. P88Copy of office order dt 01-11-2012 Ex. P89Copy of Aadhar card Ex. P90Pay slip of December 2017 Ex. P91Transfer order dt. 20-07-2018 issued by respondent Ex. P92Copy of appointment order of witness dt. 11-09-2006 issued by respondent Ex. P93Copy of office order dt 01-02-2010 Ex. P94Pay slip of February 2017 Ex. P95Transfer order dt. 20-07-2018 issued by respondent Ex. P96Copy of appointment order of witness dt. 02-12-1996 issued by respondent Ex. P97Copy of office order dt 02-03-1999 Ex. P98Pay slip of March 2017 Ex. P99Transfer order dt. 20-07-2018 issued by respondent Ex. P100Copy of appointment order of witness dt. 01-03-1993 issued by respondent Ex. P101Copy of office order dt 30-06-1998

24

Ex. P102Pay slip of February 2017 Ex. P103Transfer order dt. 20-07-2018 issued by respondent Ex. P104Copy of appointment order of witness dt. 31-10-2006 issued by respondent Ex. P105Copy of appointment order of witness dt. 08-11-2006 issued by respondent Ex. P106Pay slip of February 2018 Ex. P107Transfer order dt. 20-07-2018 issued by respondent Ex. P108Copy of appointment order of witness dt. 08-06-1998 issued by respondent Ex. P109Copy of office order dt 11-03-2004 Ex. P110Pay slip of December 2016 Ex. P111Transfer order dt. 20-07-2018 issued by respondent Ex. P112Copy of appointment order of witness dt. 01-07-1997 issued by respondent Ex. P113Copy of confirmation order dt 26-03-20014 issued by respondent Ex. P114Pay slip of December 2016 Ex. P115Transfer order dt. 20-07-2018 issued by respondent Ex. P116Copy of office order of witness dt. 29-03-1997 issued by respondent Ex. P117Copy of appointment order of witness dt. 10-03-1993 issued by respondent Ex. P118Pay slip of February 2017 Ex. P119Transfer order dt. 20-07-2018 issued by respondent Ex. P120Copy of office order of witness dt. 29-03-1997 issued by respondent Ex. P121Copy of appointment order of witness dt. 06-04-1993 issued by respondent Ex. P122Pay slip of March 2017 Ex. P123Transfer order dt. 20-07-2018 issued by respondent Ex. P124Copy of appointment order of witness dt. 10-03-1993 issued by respondent Ex. P125Copy of office order dt 29-03-1997 Ex. P126Pay slip of November 2016 Ex. P127Transfer order dt. 20-07-2018 issued by respondent Ex. P128Copy of appointment order of witness dt. 16-05-2005 issued by respondent Ex. P129Pay slip of December 2016 Ex. P130Transfer order dt. 20-07-2018 issued by respondent Ex. P131Copy of appointment order of witness dt. 11-03-2004 issued by respondent Ex. P132Copy of office order dt 27-10-2006 issued by respondent Ex. P133Pay slip of November 2013 Ex. P134Transfer order dt. 20-07-2018 issued by respondent Ex. P135Copy of appointment order of witness dt. 06-10-1990 issued by respondent Ex. P136Pay slip of December 2015 Ex. P137Transfer order dt. 20-07-2018 issued by respondent Ex. P138Copy of office order with effect dt. 17-11-2010 issued by respondent Ex. P139Copy of appointment order dt. 28-01-2011 issued by respondent

25

Ex. P140Pay slip of March 2017 Ex. P141Transfer order dt. 20-07-2018 issued by respondent Ex. P142Copy of office order of witness dt. 04-12-1995 issued by respondent Ex. P143Copy of appointment order dt. 10-03-1993 issued by respondent Ex. P144Pay slip of February 2017 Ex. P145Transfer order dt. 20-07-2018 issued by respondent Ex. P146Copy of office order of witness dt. 11-03-2004 issued by respondent Ex. P147Copy of appointment order dt. 23-09-1999 issued by respondent Ex. P148Pay slip of March 2017 Ex. P149Transfer order dt. 20-07-2018 issued by respondent Ex. P150Copy of appointment order of witness dt. 18-08-1994 issued by respondent Ex. P151Copy of office order dt 08-08-2008 issued by respondent Ex. P152Pay slip of December 2016 Ex. P153Transfer order dt. 20-07-2018 issued by respondent Ex. P154Copy of appointment order of witness wef dt. 01-09-2004 issued by respondent Ex. P155Copy of appointment order of witness dt. 16-10-2004 issued by respondent Ex. P156Pay slip of October 2016 Ex. P157Transfer order dt. 20-07-2018 issued by respondent Ex. P158Copy of appointment order of witness dt. 17-12-2001 issued by respondent Ex. P159Copy of appointment order of witness dt. 26-12-2001 issued by respondent Ex. P160Pay slip of December 2017 Ex. P161Transfer order dt. 20-07-2018 issued by respondent Ex. P162Copy of office order of witness dt. 01-02-2010 issued by respondent Ex. P163Copy of trainee order dt. 15-06-2005 issued by respondent Ex. P164Pay slip of December 2015 Ex. P165Transfer order dt. 20-07-2018 issued by respondent Ex. P166Copy of appointment order of witness dt. 01-03-2002 issued by respondent Ex. P167Copy of office order dt 26-12-2013 issued by respondent Ex. P168Pay slip of March 2016 Ex. P169Transfer order dt. 20-07-2018 issued by respondent Ex. P170Copy of appointment order of witness wef dt. 30-03-2006 issued by respondent Ex. P171Copy of appointment order dt. 03-04-2006 issued by respondent Ex. P172Pay slip of December 2015 Ex. P173Transfer order dt. 20-07-2018 issued by respondent Ex. P174Copy of appointment order of witness dt. 16-03-1992 issued by respondent Ex. P175Pay slip of July 2004 Ex. P176Transfer order dt. 20-07-2018 issued by respondent Ex. P177Copy of appointment order of witness dt. 26-09-2008 issued by respondent Ex. P178Pay slip of December 2015

26

Ex. P179Transfer order dt. 20-07-2018 issued by respondent Ex. P180Copy of appointment order of witness dt. 17-01-1992 issued by respondent Ex. P181Pay slip of February 2017 Ex. P182Transfer order dt. 20-07-2018 issued by respondent Ex. P183Copy of appointment order of witness dt. 01-02-2012 issued by respondent Ex. P184Pay slip of May 2016 Ex. P185Transfer order dt. 20-07-2018 issued by respondent Ex. P186Letter of intent dt. 29-07-2004 Ex. P187Pay slip of August 2016 Ex. P188Transfer order dt. 20-07-2018 issued by respondent Ex. P189Copy of appointment order of witness dt. 20-05-2003 Ex. P190Pay slip of March 2017 Ex. P191Transfer order dt. 20-07-2018 issued by respondent Ex. P192Copy of appointment order of witness dt. 10-10-2012 Ex. P193Pay slip of July 2013 Ex. P194Transfer order dt. 20-07-2018 issued by respondent Ex. P195Copy of appointment order of witness dt. 04-12-1995 Ex. P196Pay slip of March 2016 Ex. P197Transfer order dt. 20-07-2018 issued by respondent Ex. P198Copy of office order dt. 01-01-2013 Ex. P199Pay slip of July 2010 Ex. P200Transfer order dt. 20-07-2018 issued by respondent Ex. P201Copy of office order dt. 26-12-2013 Ex. P202Copy of appointment order of witness dt. 26-12-2013 Ex. P203Pay slip of December 2013 Ex. P204Transfer order dt. 20-07-2018 issued by respondent Ex. P205Representation of the claimant's union regarding the transfer issue of seventy workers Ex. P206Communication from J.C.L to A.C.L regarding the list of seventy workers

DOCUMENTS MARKED FOR RESPONDENTS : NIL

Chairman-Cum-Presiding Officer

Industrial Tribunal-Cum

Labour Court: Guntur

1

BEFORE THE INDUSTRIAL TRIBUNAL CUM LABOUR COURT and Special Court

for the Trial of offenses under ESI Act 1948: GUNTUR

PRESENT: SRI D. THIRUMALA RAO Chairman cum Presiding Officer, I.T. cum L.C., GNT.

This the 18th Day of December 2024

INDUSTRIAL DISPUTE 33/2023

Between:

Nayini Malla Reddy, S/o Linga Reddy, Flat No 102, Aaradhya Apartment, Malvya Nagar, Gudur Post, Tirupati DistrictPETITIONER

AND

1) Nelcast Limited, Rep by its Managing Director, No 34, Industrial Estate, Guidur Post, Tirupathi District

2) The Deputy General Manager, H.R Department, No 34, Industrial Estate, Guidur Post, Tirupathi District RESPONDENTS

This petition came before me for adjudication on 25-11-2024 in the presence ofSri Y. Kishore Kumar,counsel for petitioner and Sri B. Srinivasarao, counsel for respondents 1 and 2 and upon hearing both of them, and upon perusing the material papers on record and having stood over for consideration till this day, this court delivered the following :

A W A R D

This petition is filed under Sec.2-A(2) of the Industrial Disputes Act, 1947 by the petitioner praying this court to set aside the termination order 3-7-2023 passed by the respondents and to direct the respondents to reinstate him into service with continuity of service, back wages and all other attendant benefits with interest at 12 % per annum from the date of termination till the reinstatement.

2. The brief facts of the petitioner case are that the petitioner was appointed as workman in the respondent company w.e.f 28-9-1994 at Gudur. Subsequently, the petitioner was regularized in 2004. Later, he was promoted as Supervisor.

Thereafter, he was promoted as Assistant Superintendent and from there to

Superintendent. Though the petitioner was designated as Superintendent but he 2 was not having any supervisory, managerial or administrative powers. His duties are to check the unloaded raw materials along with the other workers and that if there was any variation, the same could be brought to the notice of the Manager.

Three workers worked along with him. But he has no power to grant any leaves to them nor to take any disciplinary action against them. His duties are manual in nature. As such, he is a workman as defined under the Industrial Disputes Act.

3.The petitioner further submit that the second respondent issued show cause notice dt 30-6-2023 with the following charge :

Charge :

It has come to our attention through CC T.V footage and security checking which clearly shows that you were stealing company Turning Machine insert items in your bike tank cover from Unit 1 on 28-6-2023 at 5-20 Pm. The evidence clearly shows that you were held responsible for this stealing. It is not only shameful act but also professionally unethical. Further, please note that as per company policy, such acts by the employees lead to termination of their employment.

Hence you are hereby requested to submit a written explanation as to why disciplinary action should not be taken against you to discharge.

Accordingly, you are hereby required to show cause within 24 hours from the date of receipt of letter.

4.The respondents given only 24 hours time to submit the explanation of the petitioner. The said show cause notice/charge sheet shows that they already decided to act against the petitioner. However, the petitioner submitted his explanation on 1-7-2023 denying the charge. He submitted that since 29 years he discharges his duties without any blemish and without any interruptions. The said subject issue was happened unknowingly and perhaps some one intentionally with a view to blame the petitioner, placed the said material in his 3 bike tank cover and falsely implicated the petitioner. He has not committed any mistake.

5.The petitioner further submits that without considering his explanation to the said show cause notice and even without conducting any domestic enquiry, the respondents removed the petitioner from the service. Removal of the petitioner without conducting any enquiry is illegal, unjust and opposed to the principles of natural justice.

6.The petitioner approached the Assistant Commissioner of Labour, Gudur with regard to unfair termination of employment by the respondent management.

The Assistant Commissioner of Labour convened conciliation Meetings between the parties. The ACL, Gudur intimated to the petitioner that the management had not followed the procedure while awarding punishment of removal. Hence advised to file petition before appropriate Forum. Therefore, the petitioner prays to set aside the termination order dt 3-7-2023 passed by the respondents and to direct the respondents to reinstate him into service with continuity of service, back wages and all other attendant benefits with interest at 12 % per annum from the date of termination till reinstatement.

7.The second respondent filed counter by denying the petition averments.

The First respondent adopted the counter of the second respondent.

8.The contention of the second respondent is that the petitioner worked as

Superintendent in the respondent company and was drawing a gross salary of

Rs.49,100/- per month besides exercising managerial and administrative duties.

Hence, the petitioner by virtue of his position, cadre, salary and nature of his duties is not a workman as defined under Sec. 2(s) of the I.D. Act. So much so, the petitioner discharged duties mainly of managerial in nature. He was vested with powers of approving Over Time, verifying and approving material drawing from the Stores. As such, the petition under Sec. 2-A(2) of the I.D. Act is not maintainable and is liable to be dismissed.

4

9.It is further submission of the respondents that the respondent is having a factory situated at Gudur. The petitioner joined in the respondent factory on 1-4-2004 as Supervisor. Thereafter, in 2017 the petitioner was promoted as

Assistant Superintendent and from there he was promoted as Superintendent.

The petitioner was Shift In-charge in his Department. He was involved in preparation of data and periodic reports pertaining to General Production in the factory. The reports prepared by the petitioner was sent to the Head of the

Department of respondent. The petitioner directly reported to the Plant Manager and DGM Operations.

10.The respondent further submits that on 28-6-2023 at about 5-20 PM, it has come to the attention of respondents through CCTV footage and security checking that petitioner was stealing company “Turning Machine Inserts” items in his bike tank cover from Unit-1. A show cause notice dt 30-6-2023 was issued to the petitioner. The petitioner submitted his explanation dt 1-7-2023 to the said show cause notice and the same was not convinced by the management. As per

Standing Orders of the respondent company theft/steal is a very serious offense.

As such, the respondent management terminated the petitioner from the service as the respondent lost confidence in the petitioner. Therefore, this respondents prays to dismiss the petition with costs.

11.To substantiate the case of the petitioner, the petitioner himself was examined as PW1 and one Y. Ananda Kumar stated to be a contract employee of respondent management was also examined as PW2 to corroborate the case of the petitioner and got marked Ex.P1 to P13. On behalf of the management Mw1 to Mw4 were examined apart from marking Ex.M1 to M5. Ex.P1 is the Pay slip of the petitioner Dt 30-6-2023. Ex.P2 is show cause notice dt 30-6-2023. Ex.P3 is explanation of the petitioner dt 1-7-2023. Ex.P4 is letter of termination dt 3-7- 2023. Ex.P5 is complaint made to ACL, Gudur by the petitioner. Ex.P6 is letter of

Joint meeting fixed by ACL, Gudur. Ex.P7 is Letter of respondent to ACL, Gudur dt 27-7-2023. Ex.P8 is letter of respondent to ACL, Gudur dt 28-7-2023. ExP9 is 5 letter of petitioner to ACL, Gudur dt 28-7-2023. Ex.P10 is Demand notice issued by petitioner to the respondent dt 21-8-2023. Ex.P11 is Acknowledgment dt 22- 8-2023. Ex.P12 is reply of respondents to demand notice. Ex.P13 is Standing

Orders of the respondent company.

12.Ex.M1 is notarized copy of Joining report of the petitioner. Ex.M2 is attested copy of received material from the Stores. Ex.M3 is attested copy of specimen signature of the petitioner. Ex.M4 is certified copy of promotion letter of the petitioner. Ex.M5 are two xerox copies of CC T.V footage dt 28-6-2023 and 1-7-2023.

13.I have heard the Learned counsel for petitioner and also the Learned counsel for the management. I have perused the written submissions and citations filed by the management.

14.On hearing both the parties and upon perusing the material papers on record, the points that arise for consideration are:

1)Whether the petitioner comes under the category of workman under

Sec 2(s) of the I.D Act to invoke the jurisdiction of this court ?

2)If so, whether the termination of the petitioner passed by the respondents vide proceedings dt 3-7-2023 without conducting regular domestic enquiry is justified and sustainable ?

3)To what relief ?

Point No 1 :

15.The case of the petitioner is that he worked in the respondent factory for the last twenty eight years in various capacities but he worked as a workman though his designation is different. The management without considering his past service suddenly terminated him from service on 3-7-2023 without conducting any domestic enquiry on a simple allegation of theft with an obliave motive to get rid of him from service without following any standing orders and statutory provisions to that effect.

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16.The case of the management is that the petitioner committed a theft by way of stealing “ turning machine inserts” from unit – I on 28-06-2023 which was detected by the checking officials through CC TV footage and he was checked at 5-20 pm and found the same. As a result, the management issued show cause notice and having dissatisfied with the explanation offered by the petitioner, the management terminated the services of the petitioner as per his service rules and regulations and this court does not have any jurisdiction to entertain the petition as the petitioner does not come under the purview of workman contemplated U/sec. 2 (S) of Industrial Disputes Act.

17.The learned counsel for the petitioner submitted that the petitioner comes under the purview of workman as contemplated u/sec. 2 (S) of the Industrial

Disputes Act. The petitioner was abruptly removed from service on 03-07-2023 without following any process of law. As a result, the petitioner was victimized and his termination resulted a cascading effect on his carrier. The alleged theft was not established. The witnesses were planted by the management for the purpose of this case. Designation is not the criteria to decide the fact that the petitioner does not come under purview of workman. The CC TV footage was not placed before this court. So therefore, this court has to draw adverse inference against the case of the management.

18.On the other hand, the learned counsel for the management strongly reputed the same saying that the petitioner worked under the control of Mw1.

His salary is more than Rs.49,000/-. Exs. M2 and M3 prove that the petitioner attended the supervisory works in the respondent factory. It is also canvased that other workers worked under the control of petitioner herein. The management with the assistance of Mw1 to Mw4 read with Exs. M1 to M5 clearly and categorically established the theft which is a serious misconduct leading to the termination of the petitioner from the service. In view of the activities of the petitioner under the respondent management, he does not come under the purview of Industrial Dispute Act and this court has no jurisdiction to entertain 7 the case of the petitioner. To bolster the case of the management, the learned counsel for the management relied on the following rulings :

1)2007 LLR 191 (Cal) between M/s. Capital Ltd Vs Eighth Industrial Tribunal,

West Bengal & Others

2)2023 LLR 357 (Raj) between Hari Charan Mali Vs. The Asst. Engineer, Public

Works Department.

3)2013 LAB.IC 3957 (Mad) between Aringar Anna Primary Agricultural

Cooperative Bank Vs Presiding Officer, Labour Tribunal, Karikal & Another

4)2009 LLR 380 (AP) between H. Rama Murthy Vs KRD Technologies Limited & Another

5)2007 LLR 62 (Del) between Bennett Coleman & Co. Ltd (M/S) Vs Shri

Yadeshwar Kumar.

6)2024-II-LLJ-504 (SC) between Bharti Airtel Ltd. Vs. A.S Raghavendra.

7)2009 LLR 1 (SC) between UP State Electricity Board Vs Laxmi Kant Gupta

8)AIR 2006 (SC) 586 between UP State Brassware Corpn Ltd. Vs Udai Narain

Pandey.

9)2013 LLR 922 (Allah) between Arvind Mehrotra Vs M/s. Shervani

Industrial Syndicate Ltd & others

10)2009 LR 205 (Del) between Roop Singh Vs. Government of NCT of Delhi &

Another.

11)2019 LLR 74 (Kar) between Mrs Ronica Gonever Vs The Management of

M/s. Britannia Industris Limited.

12)2008 LLR 1219 (AP) between Devendra Sahu Vs Presiding Officer, Industrial

Tribunal Cum Labour Court, Visakhapatnam & Another.

13)(1994) 3 SCC 510 between S.K Maini Vs M/s. Carona Sahu Company Ltd &

Others.

19.To substantiate the case of the petitioner, the petitioner himself was examined as Pw1. By way of chief examination, Pw1 reiterated his case apart from marking Ex. P1 to P12. During the cross examination of Pw1, it is elicited 8 that he worked as a supervisor as on 01-04-2004. He worked as Superintendent as on the date of his termination. He drew his salary as Rs.49,000/-. He has approval power to draw the material. He has the power of receival. No worker worked under his control after 2018. Before 2018, ten workers worked under his control. He has the authority to allot work to the said contract workers.

Workman are checked at the time of out going from the service. Employees are not checked. Contract employees are checked. Pw1 adds that check is not for employees but it is only for workers. He is exempted for check. Check is not for supervisor and the above cadre. He is under the above cadre of supervisor.

He has to report to his head of department. Company is having standing orders but they do not have any standing orders. They means superintendent cadre as such he deposed that they have no standing orders. He admitted that theft is a serious offense.

20.To corroborate the case of the petitioner one Contract employee was examined as Pw2. Pw2 deposed that the petitioner was checked on 28-06-2023 at the main gate and found the turning machine insert in the bike cover of the petitioner. During his cross examination, it is elicited that he does not know the designation of the petitioner. Nobody is working under control of the petitioner.

There are CC TVs at the main of the respondent factory. He was not present at the time of check under Ex. M5.

21.Deputy General Manager of the Respondent factory was examined as Mw1.

By way of chief affidavit, Mw1 restated the case of the management. During his cross examination, it is elicited that the CC Tv footage was not placed before this court. The petitioner allots work to 150 workers basing on the requirement. The petitioner allots machine orient work to the subordinates. He has to check the leave letters granted by the petitioner. There is a procedure in standing orders under Ex. P13 regarding the disciplinary actions against the workers.

22.Mw2 to Mw4 were examined to prove the theft. Their evidence will be helpful at the time of answering the 2nd point. Hence, their evidence is skipped at 9 this stage by focusing mostly on the nature of employment of the petitioner which is crucial to decide first before going to the second point.

23.The petitioner relied on Ex. P1 to P13 to establish his case apart from the irregularities committed by the respondent management. Ex. P1 is salary particulars of the petitioner. On careful examination of the salary particulars under Ex. P1, it is discernible that the petitioner received an amount of

Rs.49,100/- as gross salary under the heads of basic, house rent allowance, conveyance allowance and washing allowance. Ex. P2 is the show cause notice regarding the alleged theft. Ex. P3 is explanation to the show cause notice under

Ex. P2. Ex. P4 is termination order dt. 03-07-2023. Ex. P5 to P9 are the triangular correspondence among the petitioner, management and ACL regarding the Industrial Dispute raised by the petitioner. Ex. P10 is demand letter

dt. 21-08-2023.

24.The learned counsel for the management submitted that the petitioner worked as superintendent having the powers of managerial. Therefore, he does not come under the purview of Sec. 2 (S) of Industrial Dispute Act, 1947. The learned counsel for the management drew the attention of this court to the evidence Pw1 and Mw1 read with Ex. M1 to M5. Ex. M1 is Bio data form of the petitioner showing the qualification of the petitioner as ITI Fitter. Ex. M2 is copy of received material containing the signatures of the petitioner. Ex. M3 is copy of received material information by the petitioner. Ex. M4 is promotion letter

dt. 02-05-2021. Ex. M5 is copy CC TV footage dt. 28-06-2023.

25.As per the ruling in M/s. Capital Ltd (listed supra), it is clear that demand notice is mandatory before raising any Industrial Dispute. As far as the petitioner case is concerned, petitioner raised a demand under Ex. P10 irrespective of the fact whether he raised the demand prior to the submission to the ACL or subsequent to ACL conclusions but it remains on record that the said demand was raised by the petitioner prior to the raising of Industrial Dispute

before this court. So therefore, there is no force in the submissions of learned

10 counsel for the management to that effect. Similar is the answer regarding the case of Hari Charan Mali (listed supra). The ruling in Aringar Anna Primary

Agricultural Cooperative Bank (listed supra) speaks that employee having power of distribution of work to others and assign duties to others can be considered as a supervisor but cannot be considered as workman. The principle involved in H. Rama Murthy (listed supra) case is that when the workman draws a salary exceeds Rs. 1600/- per month, cannot be termed as workman. Para 11 of Bennett Coleman & Co. Ltd (M/S) (listed supra) case speaks that ..

11 : Obviously, the approach of the Labour Court has been contrary to the law laid down by the Supreme court in a series of judgments. In order to decide whether a person is a workman or not, the dominant and main functions are to be considered. A person can be called a supervisor if he is entrusted with the job of supervising other workmen who work under him. There is no dispute that the respondent was not only designated as Night Supervisor but he was having job of supervision over security guards, chowkidars and sweepers. He used to forward over time claims of the persons working under him after verifying the same. He used to recommend leave of the persons working under him. He was in charge of the security of the property of petitioner and used to supervise the work of security guards etc. It is not necessary that a supervisor has to be top cadre management person. A supervisor may occupy a lower position in the organisation chart of the company where in the descending order may be CMD, MD, General Managers, Deputy Managers, Managers, Administrative Officer and supervisor etc. It has been laid down by the Supreme Court that in order to be a workman a person must be performing one of the functions as specified in Section 2(s) of the Act and it was not sufficient that he was not performing administrative or managerial function. Tribunal also went in wrong in law by observing that strict principles of rules of evidence are required to be followed by the Tribunal. While weighing the material placed before the Tribunal, a Tribunal is not to follow the strict rules of evidence and neither has to arrive at a conclusion by considering the proof beyond reasonable doubt. A Tribunal has to weigh the material placed before it by both sides. All materials which are logically probative for a prudent mind are liable to be considered. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility.

26.The Hon'ble Apex Court in the case of Bharti Airtel Ltd (listed supra) also held that 19 : The story begins with induction of the respondent into the appellant-Company on 22.06.2009. Perusal of the Appointment Letter of even date, which has also been taken note of by the Labour Court, reveals at the very beginning that the respondent’s appointment was as “Senior Manager(B2) - Sales” in the Company.

23. The records also show that the respondent, in fact, performed a supervisory role over the managers and was the Assessing Manager of his team, which consisted of Managers in the B-1 & B-2 Levels. Moreover, after adducing the evidence led by both sides, the Labour Court vide a detailed order and discussion, has held the respondent not to be covered under “workman” as per Section 2(s), ID Act.

25. That being said, in our considered view, mere absence of power to appoint, dismiss or hold disciplinary inquiries against other employees, would not and could not be the sole criterion to determine such an issue. Holding otherwise would lead to incongruous consequences, as the same would, illustratively, mean that, employees in high-ranking positions but without powers to appoint, dismiss or hold disciplinary enquiry would be included under the umbrella of “workman” under Section 2(s), ID Act.

27.At this juncture, it is helpful to look into the definition of workman u/sec. 2

(s) of Industrial Dispute Act, for better understanding of the case. Hence, the same is reproduced below :

2 [(s) “workman” means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be 11 express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person —

(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or

(ii) who is employed in the police service or as an officer or other employee of a prison; or

(iii) who is employed mainly in a managerial or administrative capacity; or

(iv) who, being employed in a supervisory capacity, draws wages exceeding 3 [ten thousand rupees] per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.]

28.After giving careful consideration to the facts and circumstances of the case along with the settled legal proposition in respect of the parameters for the definition of workman, the petitioner has to establish his case that he comes under the purview of Sec. 2 (s) of the Industrial Dispute Act as the management is trying to get the exclusion of the petitioner from the clutches of the Sec. 2 (s) of the Industrial Dispute Act.

29.Both parties relied on oral and documentary evidence towards the establishment of their respective contentions in respect of pros and cons of the case. The petitioner claims that he is a workman and he tried to establish the same to invoke the powers of this court to adjudicate his dispute. However, the management is quite contrary to that effect and the management contended that the petitioner does not come under the purview of the workman in view of his designation and functions to that effect.

30.On careful analysis of the entire evidence available on record regarding the principle of workman, it is clear that the petitioner joined as workman on 28-09-1994. Later, he was promoted as supervisor and subsequently promoted as Assistant Superintendent. Finally, he was terminated from service under the cadre of Superintendent. The petitioner claims that though his designation is superintendent but he never attended the superintendent works and he also did not attend any managerial works.

31.Admittedly, the petitioner used to draw an amount of Rs.49,100/- as his salary. During the cross examination of Pw1, it is elicited that there are no standing orders to his cadre even though the company is having standing orders 12 under Ex. P13. It is also deposed by the petitioner that he is an exempted employee regarding the check. The check is meant for workers and contract workers. So therefore, his admissions during his cross examination goes against his interest regarding the nature of employment and his duties as workman.

On careful examination of the cross examination of Pw1, it is also revealed that he has the authority to allot work to the contract workers. Pw1 added that he does not have powers to grant leaves to them. There is no practice of leave letters to the contract workers except oral intimation. He used to suggest them to the higher authorities for sanction of leave. He has no authority to sanction. Pw1 adds that basing on the instructions of High authorities he has to sanction OT to others.

32.During the course of chief examination by way of chief affidavit of Mw1, it is deposed that the petitioner was shift incharge of his department. The petitioner was involved in the preparation of data and periodic reports pertaining to the general production in the factory. The reports prepared were sent to their head office. The petitioner was having Managerial and Supervisory powers. This fact was not rebutted by the petitioner during the cross examination of Mw1 even by denial of suggestions to that effect. So therefore, it is the considered opinion of this court that in the light of the settled legal proposition regarding the definition of workman, it is clear that the petitioner was working as superintendent by the time of his termination. He was drawing more than Rs.49,100/-. The petitioner was exempted regarding the check. The petitioner used to attend the entrustment of works to contract workers apart from directing them to higher authorities to get the sanction of leaves to them if any and he also used to attend the sanctioning of OTs basing on the instructions of his superiors. So therefore, it is clear that the petitioner worked as superintendent with the powers of managerial and supervisory by drawing more than Rs.49,100/-. As a result, it is held that the petitioner is excluded from the purview of the definition of workman in terms of Sec. 2 (s) of the Industrial Dispute Act, 1947 to invoke the 13 jurisdiction of this court as rightly pointed out by the learned counsel for the management and there is no force in the submissions of the learned counsel for the petitioner to that extent to consider that the petitioner comes under the purview of Sec. 2 (s) of the Industrial Dispute Act, to invoke the jurisdiction of this court. As a result, it is concluded that the petitioner does not come under purview of the workman u/sec. 2 (s) of the Industrial Dispute Act and his case does not come under the four corners of the definition of workman contemplated u/sec. 2 (s) of the Industrial Dispute Act, 1947. Accordingly, this point is answered.

Point No 2 :

33.In view of answering the 1st issue against the petitioner, this court losts its jurisdiction to entertain the case of the petitioner. In view of lack of jurisdiction to entertain the case of the petitioner, this court cannot decide the merits of the case. As a result, the merits of the case are left open to the competent court for decision. Accordingly, this point is answered.

Point No 3 :

34. In the result, the petition is directed to be returned to the petitioner so as to enable him to approach the jurisdictional court for his redressal. There shall be no order as to costs.

Typed to my dictation by the Senior Assistant, corrected and pronounced by me in the open court on this the 18th Day of December, 2024.

Chairman-Cum-Presiding Officer Industrial Tribunal-Cum Labour Court: Guntur 14

APPENDIX OF EVIDENCE

Witnesses examined for:

Petitioner side Respondents side

PW1: Nayini Malla RedduMW1: M. Palani Murugan

PW2: Y. Anand KumarMW2: E. Jagadeeswararao

MW3: A. Raja Ramesh Reddy

MW4: T. Venkata Subbaiah

DOCUMENTS MARKED FOR PETITIONER

Ex.P1 is the Pay slip of the petitioner Dt 30-6-2023.

Ex.P2 is show cause notice dt 30-6-2023.

Ex.P3 is explanation of the petitioner dt 1-7-2023.

Ex.P4 is letter of termination dt 3-7-2023.

Ex.P5 is complaint made to ACL, Gudur by the petitioner.

Ex.P6 is letter of Joint meeting fixed by ACL, Gudur.

Ex.P7 is Letter of respondent to ACL, Gudur dt 27-7-2023.

Ex.P8 is letter of respondent to ACL, Gudur dt 28-7-2023.

ExP9 is letter of petitioner to ACL, Gudur dt 28-7-2023.

Ex.P10 is Demand notice issued by petitioner to the respondent dt 21-8-2023.

Ex.P11 is Acknowledgment dt 22-8-2023.

Ex.P12 is reply of respondents to demand notice.

Ex.P13 is Standing Orders of the respondent company.

DOCUMENTS MARKED FOR RESPONDENTS

Ex.M1 is notarized copy of Joining report of the petitioner.

Ex.M2 is attested copy of received material from the Stores.

Ex.M3 is attested copy of specimen signature of the petitioner.

Ex.M4 is certified copy of promotion letter of the petitioner.

Ex.M5 is two xerox copies of CC T.V footage dt 28-6-2023 and 1-7-2023.

Chairman-Cum-Presiding Officer Industrial Tribunal-Cum Labour Court: Guntur

BEFORE THE INDUSTRIAL TRIBUNAL CUM LABOUR COURT and Special Court

for the Trial of offenses under ESI Act 1948: GUNTUR

PRESENT: SRI D. THIRUMALA RAO Chairman cum Presiding Officer, I.T. cum L.C., GNT.

This the 24th Day of December 2024

INDUSTRIAL DISPUTE 5/2024

Between:

Shaik Humayun Basha, S/o Sk. Baji, 42 years, Ex.Driver in RTC, Door No 1-47, Yanamadala Village, Nuzividu Mandal, Eluru District. PETITIONER

AND

1) The Depot Manager, APSRTC, Nuziveedu, Eluru District.

2) The Dy. Chief Traffic Manager, APSRTC, Machilipatnam, Krishna District.

3) The Regional Manager, APSRTC, Krishna Region, PNBS, Vijayawada, A.P RESPONDENTS

This petition came before me on 17-12-2024 for final hearing in the presence of Sri Ch. Mallikharjuna Rao counsel for petitioner and the Learned Law Officer of APSRTC for the respondent management and upon hearing both of them, and upon perusing the material papers on record and having stood over for consideration till this day, this court delivered the following:

A W A R D

1)This petition is filed under Sec.2-A(2) of the Industrial Disputes Act, 1947 by the petitioner praying this court to set aside the Removal order dt 19-2-2021 passed by the first respondent and to direct the respondents to reinstate him into service with continuity of service, back wages and all other attendant benefits.

2) The brief facts of the petitioner case are that while the petitioner was working as driver in the first respondent depot, the first respondent suspended the petitioner on 10-12-2020 by issuing charge sheet dt 10-12-2020 with the following charges:

Charge No 1

For having illegal transportation of prohibited items ie., liquor bottles from Bangalore to Nuzivid committed by you while conducting 2

TIM service with vehicle bearing No AP 16z 0613 on the route

Bangalore-Nuzivid on 17-11-2020 and you have kept illegal possession of non duty paid liquor, which constitutes misconduct under Reg 28(xv) of APSRTC Employees Conduct Reg. 1963

Charge No 2

For having violation of transportation of prohibited items while performing your duty in down trip Bangalore to Nuzivid on 17-11- 2020 as TIM service with vehicle bearing No 16z 0613, the HES,

Proddutur squad team had found two black covers which were tied to chasis of the said bus and verified two covers and found E.6 (1000ml) liquor bottles in each cover to tally 12 liquor bottles of 1000Ml transported illegally. It clearly shows you were committed the above act deliberately with your knowledge. The Special Enforcement

Bureau Authorities have registered case in Cr No 2018/2020 dt 25- 11-2020 under Sec.34(01) read with 34(a), 11(02) and 42 of AP

Excise (Amendment) Act 2020 which is cognizable offense and remanded for judicial custody for a period of 15 days, which results tarnishing the image of the Corporation before the traveling public, which constitutes misconduct under Reg. 28(xxxii) of APSRTC

Employees (Conduct) Reg. 1963.

3)The petitioner submitted his explanation to the charge sheet and denied the charges. He stated that he was not involved in the crime as alleged in the charge sheet. The said liquor bottles do not belong to him and the same were not transported by him. At the time of inspection of the bus, he was pressurized with dire consequence to give confessional statement. The TTIs have forcibly obtained his signature on the confessional statement. It was impossible for the petitioner to find out the goods and bags loaded by the passengers at the time of their boarding.

3

4)Without considering the explanation of the petitioner to the said charge sheet, the first respondent ordered for a routine enquiry. Thus, a farce enquiry was conducted which resulted removal of the petitioner from the service of the corporation. The Appeal, Review and Mercy petitions filed by the petitioner were rejected by the concerned Authorities. The Higher Authorities failed to see the reasonable explanation given by the petitioner under what circumstances he gave confessional statement admitting his guilt. The punishment was disproportionate to the alleged misconduct. Therefore, the petitioner prays to set aside the removal order dt 19-2-2021 passed by the first respondent and to direct the respondents to reinstate him into service with continuity of service, back wages and all other attendant benefits.

5) The Respondents filed a detailed counter by denying the averments made in the petition and interalia submitted that the petitioner was engaged as contract driver on 20-11-2011 and his services were regularized w.e.f 1-9-2014. During his service period, his annual increments were deferred on seven times. He was suspended once and removed from the service once. Thus, the petitioner is bereft of any clean record of service.

6)The TTIs of HES, Proddutur exercised check on the vehicle bearing No AP 16z 0613 of first respondent depot wherein the petitioner was performing as driver on 17-11-2020 at about 9-50 PM at Gubbala Toll Gate. In the said check, the TTIs detected two black covers which were tied to chasis of the said bus. The squad team verified the said covers and found six 1000ML each liquor bottles ( OLD ADMIRAL BRANDY) in each cover totaling 12 liquor bottles. The Squad team submitted information to the Special Enforcement Bureau Authorities. The

SEB had registered a case in CR No 2018/2020dt 25-11-2020 under Sec 34(01) r/w 34(a), 11(02) and 42 of AP Excise (Amendment Act 2020. The Government of A.P banned the illegal inter-state transportation of liquor bottles. The TTIs obtained spot statement from the petitioner in which the petitioner admitted the 4 said illegal transportation of liquor bottles, prepared charge memo and check- sheet duly signed by the petitioner and sent the same to the first respondent for further action.

7)The Supt (T) of the first respondent conducted a preliminary enquiry and found a primafacie case of illegal transportation of liquor bottles by the petitioner.

Accordingly submitted his report to the first respondent. As a clear primafacie case is established against the petitioner, the first respondent placed the petitioner under suspension pending enquiry and issued charge sheet dt 10-12- 2020 containing two charges.

8)As the explanation submitted by the petitioner to the charge sheet was not convinced, the first respondent ordered for detailed enquiry by entrusting the case to Asst. Engineer (M) of first respondent to conduct a detailed enquiry and for submission of report..

9)The Inquiry Officer conducted domestic inquiry as per the procedure and in accordance with APSRTC, CC&A Regulations duly following the principles of natural justice. During the course of inquiry, the inquiry officer examined the witnesses in the presence of the petitioner and recorded their statements besides giving opportunity to the petitioner to cross examine the said witnesses. The petitioner also offered his inquiry statement before the inquiry officer and all the findings made by inquiry officer were explained to the petitioner in his mother- tongue and he certified to have been recorded correctly. After perusing the entire evidence available on record, the inquiry officer submitted his inquiry report to the first respondent by holding that the charges leveled against the petitioner were proved beyond reasonable doubt.

10)The first respondent communicated the findings of the inquiry officer to the petitioner calling for his objections/remarks on inquiry report and he submitted his remarks. The first respondent after perusing the objections/remarks 5 of petitioner on inquiry report together with the entire evidence available on record, came to a provisional conclusion that the charges leveled against the petitioner in transporting prohibited items of Liquor bottles is very severe in nature and continuation of such employees would not only affect the work atmosphere but also damage the reputation of the Corporation. As such issued show cause notice to the petitioner to show cause as to why his services shall not be removed from the Service of the corporation. The petitioner submitted his explanation to the said show cause notice. The first respondent after perusing the entire evidence available on record, finally removed the petitioner from the service of the corporation vide its proceedings dt 19-2-2021.

11)Aggrieved by the said orders of the removal of the first respondent, the petitioner preferred an Appeal before the second respondent. It was considered on merits and rejected vide proceedings dt 31-3-2021. The petitioner also preferred a Review petition before the second respondent. It was also considered on merits and rejected vide proceedings dt 31-3-2021. The petitioner also filed

Mercy petition before the Executive Director, APSRTC, Vijayawada against the removal orders of the first respondent. The same was also considered on merits and rejected vide proceedings dt 31-10-2021. Thus, the action taken by the respondents is just, legal, valid and proportionate to the misconduct committed by the petitioner and prayed to dismiss the petition.

12)To substantiate the case of the petitioner, the petitioner himself was examined as PW1. No documents were marked. Dy. Supt (P) of the first respondent was examined as MW1 on behalf of respondents and got marked

Ex.M1 to M30. Ex M1 is Circular NO 2/2013 of VC & MD dt 15-2-2013. Ex.M2 is

G.O Ms No 274 dt 21-7-2014 of Revenue and Excise Department. Ex.M3 is G. O

Ms No 310 dt 26-10-2020 issued by the Revenue & Excise Department. Ex.M4 is check sheet. Ex.M5 is charge memo. Ex.M6 is spot statement of the petitioner.

Ex. M7 is Auxillary Way Bill. Ex.M8 is copy of STAR document along with TIM 6 report. Ex.M9 is preliminary enquiry report along with statements. Ex.M10 is letter from Inspector SEB, Chittoor. Ex M11 is remand report along with FIR No 218/2020 and Panchanama. Ex.M12 is charge sheet. Ex M13 is suspension order.

Ex.M14 is explanation to the charge sheet. Ex.M15 is nomination of enquiry officer. Ex.M16 is domestic enquiry statement of co-driver. Ex.M17 is domestic enquiry statement of petitioner. Ex.M18 is domestic enquiry statement of TTIs.

Ex.M19 is domestic enquiry report. Ex.M20 is communication of enquiry report.

Ex.M21 are comments/objections on enquiry report. Ex.M22 is Show cause notice of removal. Ex.M23 is explanation to show cause notice of removal. Ex.M24 is removal proceedings. Ex.M25 is Appeal proceedings. Ex.M26 is Review proceedings. Ex.M27 is Mercy proceedings. Ex.M28 is Service record extract of the petitioner. Ex.M29 is affidavit of the first respondent. Ex.M30 is authorization letter of MW1.

13)I have heard the Learned counsel for petitioner and also the Learned Law

Officer.

14)On hearing both the parties and upon perusing the material papers on record, the points that arise for consideration are:

1)Whether the domestic enquiry suffers from any procedural lapses or was conducted in violation of principles of natural justice and thereby, causing any prejudice to the rights of the petitioner ?

2)Whether the removal of the petitioner passed by the first respondent vide proceedings dt 19-2-2021 is justified and sustainable?

3)To what relief, the petitioner is entitled ?

Point No 1:

15)This is a case against the petitioner on the allegation that himself and his co-driver while attending their duties as Driver and TIM Driver illegally transported “Old Admiral” VSOP Brandy liquor bottles twelve in number worth 7 of Rs.387.80 each from Banglore-Nuzivid in a bus bearing No AP 16z 0613, Super

Luxory service No 4020 of Nuzivid. It is also further case of the management that the said bus was checked by the checking officials at Stage NO14/13 and they detected the twelve Brandy bottles in two blocks which were tied to chasis of the said bus leading to registration of a case in Crime No 2018/2020 for the offense under Sec. 34(01) r/w 34(a), 11(02), 42 of A.P Excise Amendment Act 2020 resulting the removal of the petitioner from the service after conducting a departmental enquiry.

16)The case of the petitioner is that he never committed any offense of illegal transportation of Brandy bottles as alleged by the management. The checking officials obtained his spot statement on compulsion. Both the preliminary enquiry officer and domestic enquiry officer failed to consider the same and he was removed from service illegally without establishment of any misconduct as alleged by the management.

17)The Learned counsel for the petitioner submitted that the petitioner's signatures were obtained on force on Ex.M6. Ex.M6 is involuntary and it was not proved in accordance with law. No case is established against the petitioner in respect of the alleged transport of liquor bottles. Further, there is no evidence on record to prove the role of the petitioner in transporting the said alleged liquor bottles. However, the management failed to consider the same and imposed a serious punishment of removal having a cascading effect on the financial sources of the petitioner warranting the interference of this court.

18)On the other hand, the Learned Law Officer strongly resisted the same saying that the case was detected by the checking officials. The checking officials found the illegal transport of twelve liquor bottles which were tied to the chasis of the bus. The petitioner along with the co-driver admitted the same saying that they were transporting the same for their social function. This factum of transport was established before the domestic enquiry officer. As a result, the petitioner 8 was removed from the service in view of establishment of the contents of the charge sheet leaving no grounds to interfere.

19)Before going into the merits of the case, it is profitable to look into the legal proposition regarding the domestic enquiries and powers of this court to interfere in domestic enquiries. The Hon'ble Apex Court in the case of Uttarpradesh State

Road Transport Corporation Vs Gajadharnath in C.A 7536 of 2021, at Para- 5 observed that, “ the scope of an adjudicator under the Industrial Disputes Act, 1947 may be noticed. The domestic enquiry conducted can be permitted to be disputed before the Tribunal in terms of Sec. 11-A of the Act. This court in a

Judgment reported as Workmen of M/s.Firestone Tyre and Rubber Co. of

India (P) Ltd. Vs. Management & others, held that in terms of Sec. 11-A of the Act, if a domestic enquiry has been held and finding of misconduct is recorded, the authorities under the Act have full power and jurisdiction to reappraise the evidence and to satisfy themselves whether the evidence justify the findings of misconduct. But where the enquiry is found to be defective, the employer can lead evidence to prove misconduct before the Authority. This court held as under:

From those decisions, the following principles broadly emerged:-

1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the later has power to see if action of the employer is justified.

2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders applicable and principles of natural justice. The enquiry should not be an empty formality.

3) When a proper enquiry has been held by an employer, and the finding of misconduct is plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in Judgment over the 9 decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimization, unfair labour practice or malafide.

4) Even if, no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and the validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open ;to the employer to adduce evidence for the first time justifying his action and it is open to the employee to adduce evidence contra.

5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a primafacie case. On the other hand, the issue about the merits of the impugned order or dismissal or discharge is at large before the Tribunal and the later, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.

6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective

It has never been recognized that the Tribunal should straight-away, without anything more, direct reinstatement of a dismissed or discharged employee once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.

7) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the 10

Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the

Tribunal itself to be satisfied about the alleged misconduct.

8) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in the cases where the punishment is so harsh as to suggest victimization.

20)In the case of State of Haryana and another Vs Ratan Singh, (1979) 2

SCC 491 , the Hon'ble Apex Court held that it is well settled that in a domestic enquiry, the strict and sophisticated rules of evidence under the Indian Evidence

Act, may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence

Act. For this proposition, it is not necessary to cite decisions nor text books, although, we have been taken through case-law and other Authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice.

Of course, fair play is the basis and if perversity or arbitrariness or surrender of the independence of judgment vitiate the conclusions reached. Such finding even though of a domestic Tribunal can not be held good.”

21)To substantiate the case of the petitioner, the petitioner himself was examined as PW1. By way of Chief Examination PW1, reiterated the case of the petitioner. During the cross-examination of PW1, it is elicited that he is not the regular driver to the service from Nuzivid to Bangalore. The other co-driver is a regular driver. The bus was checked by HES, Proddutur on 17-10-2020 and found the unauthorized transport of twelve Old Admiral liquor bottles. A charge memo 11 was issued to him. A crime was registered against them and he was enlarged

Bail. He submitted his spot statement to the checking officials. Preliminary enquiry was conducted. Later regular enquiry was conducted. He was provided opportunity to cross-examine the witnesses. He was removed from service on 19- 2-2021. The liquor bottles were tied up to the chasis of the bus and those were untied by himself and other co-driver before the checking officials and handed over them to the checking officials. Cargo luggage was loaded in Bangalore point.

22)The Dy Supt (P) of Nuzivid Depot was examined as MW1. By way of Chief

Affidavit, MW1 restated the case of the management apart from marking Ex.M1 to M30. During the cross-examination of MW1, it is elicited that the case on hand is the first case against the petitioner on the allegation of illegal transport of liquor and there is no past history to that effect. Ex.M6 spot statement is containing the signatures of two drivers. Ex.M6 is silent about the scribe of the document. He cannot say who drafted Ex.M6. The petitioner was not punished in

Crime No 218/2020 of Madanapalli PS.

23)Ex M1 to M3 are Circulars regarding the Prohibition of transportation of

Gutka, Pan-masala, liquor and other items. Ex.M4 is check sheet. Ex.M5 is the charge memo. Ex.M6 is spot statement of the petitioner and other co-driver. At this juncture, it is appropriate to mention that both the petitioner and the other co-driver admitted the drafting of Ex.M6 document during the course of domestic enquiry. So, therefore, when once the document is admitted, then there is no necessity for examining the scribe of the document. The examination of the scribe of the document arises only when the document is denied. So, therefore, there is no force in the submissions of the Learned counsel for the petitioner to the extent that the scribe of Ex. M6 is required to be examined.

24)EXM9 is the preliminary enquiry report. Basing on the preliminary enquiry report, Ex.M12 charge sheet was issued. During this time also, criminal proceedings were commenced and the petitioner was enlarged on Bail. Ex.M14 12 is the explanation of the petitioner to the charge sheet under Ex.M12. The petitioner explained the circumstances under which he had executed Ex.M6. The petitioner also questioned the act of the management to implead him in the case of illegal transport of liquor and he also questioned how his act becomes misconduct when a citizen was permitted to keep with him six bottles as per G.O

Ms No 411.

25)Having dissatisfied with the explanation of the petitioner, the management proceeded to conduct domestic enquiry. Before the domestic enquiry officer, the petitioner, his co-driver P. Apparao, TTI were examined. The petitioner and his co-driver cross-examined the TTI in all angles to reach their satisfaction. As per the record, it is clear that the management extended every opportunity to the petitioner to establish his case. As per the established facts on record, it is clear that the transportation of twelve liquor bottles was established. It is also established on record that the twelve bottles were tied to the chases of the bus.

26)At this juncture, the petitioner answered that there are chances to third party or to the passengers to tie up the liquor bottles to the chasis of the bus without their knowledge. The same was resisted by the Learned Law Officer saying that it is highly impossible to attend such kind of lengthy activity of tying the liquor bottles to the chasis of the bus without the knowledge of the driver or the co-driver of the bus. It is further canvased that there is no evidence to that effect even to presume or suppose to that extent. In consideration of the available evidence, it is established on record that this suggestion was placed

before the domestic enquiry officer who conceded to that suggestion, but there is

no concrete evidence before this court to draw such kind of presumptions on the ground that when the bus is parked in the vicinity of RTC premises, then there is no question of third party intervention to that extent as rightly pointed out by the

Learned Law Officer and that argument cannot be countenanced due to lack of any evidence to that effect and that argument is hypothetical on the part of the

Learned counsel for petitioner when there is an admission from the petitioner 13 regarding the transport of the liquor bottle for their social function.

27)Coming to the contents of Ex.M6, it is clear that both the petitioner and his co-driver placed their signatures on Ex.M6. It is admitted fact that Ex.M6 was drafted by the petitioner himself. Then, there is no question of compulsion to that effect and there is no evidence on the part of the petitioner to establish his defense of compulsion, force or undue influence on the part of the checking officials to that effect. So, therefore, it is the considered opinion of this court that viewed in any angle, there is no establishment of defense with concrete evidence and the management successfully established its case against the petitioner.

Further, the petitioner failed to place any Circular even-though, he relied on a

Circular in his explanation to the charge-sheet under Ex.M14 saying that the said

Circular or G.O is clear regarding the exemption of transportation of six liquor bottles irrespective of their quantity. In addition to that, the petitioner failed to establish any fact to consider that the domestic enquiry officer committed procedural irregularities and violated the principles of natural justice. In the light of the above observations, it is concluded that the management successfully established the illegal transport of liquor bottles in a suspicious manner by the petitioner and also established the misconduct on the part of the petitioner to that extent and that the charges leveled in Ex.M12 are established clearly and categorically. As a result, it is held that the domestic enquiry report under Ex.M19 is sustainable and binding on the petitioner. Accordingly, this point is answered.

Point No 2

28)As per record, it is clear that the petitioner was removed from service on 19-2-2021. The petitioner exhausted his remedies of Appeal, Review and Mercy to that effect. So, therefore, there is no question of Limitation and there is no force in the submissions of Learned Law Officer to that extent. As per the evidence, it is clear that this is the first act of transportation of liquor bottles. The

Learned counsel for the petitioner canvased that in view of first offense, a 14 sympathetic view is required for modification of the punishment. On hearing the same, the Learned Law Officer strongly resisted the same saying that the act of the petitioner tarnished the image of the respondent management in the public view. Hence, no leniency is required contrary to the management decision.

29)On careful examination of the established facts, it is clear that the proved transportation of liquor bottles was detected by the checking officials and the matter went into the registration of the Crime leading to the arrest and enlargement of the petitioner on Bail. Whether the petitioner was punished in a criminal case or not is not the criteria in departmental proceedings which are totally different from criminal proceedings. The petitioner failed to succeed in

Appeal proceedings, Review proceedings and mercy proceedings as rightly pointed out by the Learned Law Officer. The petitioner failed to prove any lenient grounds to invoke the powers of this court for the purpose of interfering into the management decision as rightly pointed out by the Learned Law Officer and it is the considered opinion of this court that the petitioner failed to prove any fact to consider that the punishment imposed is shocking to the conscience of this court to consider that the punishment imposed is irrational. So, therefore, it is the considered opinion of this court that the petitioner failed to establish any grounds to interfere into the punishment aspect. Accordingly, this point is answered.

Point No 3

30)In the result, the petition is dismissed. There shall be no order as to costs.

The office is directed to forward the award to the Government of Andhra Pradesh for its publication under Sec 17 of the Industrial Disputes Act, 1947.

Typed to my dictation by the office superintendent, corrected and

pronounced by me in the open court on this the 24th Day of December 2024.

Chairman-Cum-Presiding Officer Industrial Tribunal-Cum Labour Court: Guntur 15

APPENDIX OF EVIDENCE

Witnesses examined for:

Petitioner sideRespondents side

PW1 : Sk. Humayun BashaMW1: VV Ananda Rao

DOCUMENTS MARKED FOR PETITIONER : NIL

DOCUMENTS MARKED FOR RESPONDENTS

Ex M1 is Circular NO 2/2013 of VC & MD dt 15-2-2013.

Ex.M2 is G.O Ms No 274 dt 21-7-2014 of Revenue and Excise Department.

Ex.M3 is G. O Ms No 310 dt 26-10-2020 issued by the Revenue & Excise

Department.

Ex.M4 is check sheet.

Ex.M5 is charge memo.

Ex.M6 is spot statement of the petitioner.

Ex. M7 is Auxillary Way Bill.

Ex.M8 is copy of STAR document along with TIM report.

Ex.M9 is preliminary enquiry report along with statements.

Ex.M10 is letter from Inspector SEB, Chittoor.

Ex M11 is remand report along with FIR No 218/2020 and Panchanama.

Ex.M12 is charge sheet.

Ex M13 is suspension order.

Ex.M14 is explanation to the charge sheet.

Ex.M15 is nomination of enquiry officer.

Ex.M16 is domestic enquiry statement of co-driver.

Ex.M17 is domestic enquiry statement of petitioner.

Ex.M18 is domestic enquiry statement of TTIs.

Ex.M19 is domestic enquiry report.

Ex.M20 is communication of enquiry report.

Ex.M21 is comments/objections on enquiry report.

Ex.M22 is Show cause notice of removal.

16

Ex.M23 is explanation to show cause notice of removal.

Ex.M24 is removal proceedings. Ex.M25 is Appeal proceedings.

Ex.M26 is Review proceedings.

Ex.M27 is Mercy proceedings.

Ex.M28 is Service record extract of the petitioner.

Ex.M29 is affidavit of the first respondent.

Ex.M30 is authorization letter of MW1.

Chairman-Cum-Presiding Officer Industrial Tribunal-Cum Labour Court: Guntur

1

BEFORE THE INDUSTRIAL TRIBUNAL CUM LABOUR COURT and Special Court

for the Trial of offenses under ESI Act 1948: GUNTUR

PRESENT: SRI D. THIRUMALA RAO Chairman cum Presiding Officer, I.T. cum L.C., GNT.

This the 19th Day of December 2024

INDUSTRIAL DISPUTE 37/2023

Between:

I. Ashok, E No 517344,

S/o Yesudasu, 40 years,

Jr. Assistant, Ex.RTC Employee,

D.No 3-25, Christian Colony,

Darsi Post, Podili Mandal,

Prakasam DistrictPETITIONER AND

1) The Depot Manager, APSRTC,

Podili Depot, Prakasam District

2) The Regional Manager, APSRTC,

Ongole, Prakasam District

3) The Executive Director, APSRTC,

Nellore Zone, Nellore

4) The Managing Director, APSRTC,

RTC House, PNBS, Vijayawada,

Krishna District RESPONDENTS

This petition came before me on 16-12-2024 for final hearing in the presence of Sri M. Suresh Babu, Counsel for petitioner and the Learned Law Officer of APSRTC for the respondent management and upon hearing both of them, and upon perusing the material papers on record and having stood over for consideration till this day, this court delivered the following:

A W A R D

This petition is filed under Sec.2-A(2) of the Industrial Disputes Act, 1947 by the petitioner praying this court to set aside the Removal order dt 22-4-2016 passed by the first respondent and to direct the respondents to reinstate him into service with continuity of service, back wages and all other attendant benefits.

2

2. The brief facts of the petitioner case are that the petitioner joined as Junior

Assistant in APSRTC in 2012. The Deputy Superintendent of first respondent

Depot submitted a report to the first respondent alleging that the petitioner absented to his duties from 1-2-2016 to 9-2-2016 without submitting any kind of leave application or without intimation to his superiors. Basing on the said report, the first respondent issued charge sheet dt 9-2-2016 with the following charge :

Charge :

For having absented to your duties unauthorizedly from 1-2-2016 to 9-2-2016 without prior permission or any sanctioned leave which constitutes misconduct as per Reg 28(xxvii) of APSRTC

Employees (Conduct) Reg 1963.

3.The petitioner submitted his explanation to the charge sheet and denied the charge. While performing duties in the Month of February 2016, the petitioner was not in a good state of condition either mentally or physically. Therefore, he was habituated to loneliness and was not able to perform his duties properly.

Hence, he fell sick and admitted into Hospital on 1-3-2016 and was discharged on 9-3-2016. In that disturbed state of mental condition, he went to Aurvedic Doctor and admitted there. Meanwhile, the first respondent issued the charge sheet.

4.Without considering the explanation of the petitioner to the charge sheet, the first respondent ordered for enquiry. The enquiry officer conducted exparte enquiry in which principles of natural justice were not complied with. The findings of the enquiry officer are perverse and baseless. Basing on the erroneous findings of the enquiry officer, the first respondent issued show cause notice Dt 29-3-2016 to the petitioner as to why his services should not be removed from the Rolls of the Corporation. Without waiting for his explanation to the said show cause notice, the first respondent removed the petitioner from the service of the

Corporation vide proceedings Dt 22-4-2016.

3

5.Aggrieved by the removal Orders of the first respondent, the petitioner filed a Review Petition before the second respondent on 27-1-2021. The said Review

Petition was rejected as Time Barred vide proceedings dt 30-6-2021. The petitioner also filed a Mercy Appeal before the third respondent. The same was also considered and rejected vide proceedings dt 28-8-2021. Still aggrieved, the petitioner preferred Mercy Petition before the fourth respondent. It was also rejected vide proceedings dt 11-10-2021. Therefore, the petitioner prays to set aside the removal order dt 22-4-2016 passed by the first respondent and to direct the respondents to reinstate him into service with continuity of service, back wages and all other attendant benefits.

6.The Respondents filed a detailed counter by denying the averments made in the petition and interalia submitted that the petitioner kept quiet for a period of more than seven years without raising any Industrial Dispute. As such, this petition is infructuous and not maintainable.

7.The petitioner was appointed as Jr. Assistant (Personnel) in direct recruitment on 19-12-2012. During short span of his service period, he was removed twice in absenteeism cases. For the first time, the petitioner was removed from the service on 15-7-2014 in absenteeism case and was reinstated into service in Appeal proceedings of the second respondent dt 15-7-2014. This is the second occasion of removal of the petitioner from the service in absenteeism case. So he is bereft of any clean record of service.

8.The petitioner is working as Junior Assistant (P) who performs duty as per the instructions of the Office Superintendent. All Personnel and Accounts

Department are under the purview of Shops & Establishments Act. Therefore, petitioner is not a workman as defined under Sec. 2(s) of the Industrial Disputes

Act, 1947.

4

9.Being Jr Asst.(personnel), the following important responsibilities casted on the petitioner:

1)Preparation of Office Correspondence and Leave treatment files.

2)Up-dation of Employees Annual increments in computers.

3)Preparation of disciplinary action files.

4)preparation of employees transfer files.

5)Process of Note file for sanctioning of expenditure.

6)preparation of Depot level Out-sourcing contracts and stalls etc.

7)Any other work entrusted by the Supervisor/Unit Officer.

10.The Deputy Superintendent (P) of the first respondent depot submitted a report to the first respondent that the petitioner was absented to his duties unauthorizedly from 1-2-2016 to 9-2-2016 and to till date without any prior permission or intimation. Due to the absence of the petitioner, much inconvenience was caused in attending the administration work, as well as facing much inconvenience in making correspondence with the higher officials. Since the offense committed by the petitioner was serious in nature, and as a primafacie case exists against him, the first respondent issued charge sheet dt 9-2-2016 to the petitioner containing a lone charge. Copy of the said charge sheet was sent to the petitioner by RPAD. The said charge sheet was delivered to the petitioner on 18-2-2016 as per the endorsement of postal Authorities. But the petitioner failed to submit his explanation to the charge sheet. However, in order to provide further opportunity to the petitioner to defend his case, the case was entrusted to the A.M(T), Podili Depot by nominating him as enquiry officer to conduct a detailed enquiry and for submission of report.

11.The Enquiry officer sent Enquiry call letters on 8-3-2016, 10-3-2016 and 16-3-2016 to the petitioner to attend before the enquiry officer. But the petitioner did not attend for enquiry before the enquiry officer. As there was no other go, the enquiry officer conducted enquiry as per the procedure and in accordance with APSRTC CC&A Regulations duly following the principles of natural justice.

5

12.The enquiry officer recorded the statement of Deputy Superintendent (P),

Podili Depot. The enquiry officer submitted his report to the first respondent by holding that the charge leveled against the petitioner was proved.

13.The first respondent communicated the findings of the enquiry officer to the petitioner calling for his comments/objections by RPAD. It was returned by the postal authorities. The first respondent after perusing the entire evidence available on record, came to a provisional conclusion that the removal of the petitioner from the service of the corporation is fit and proper to be imposed on the petitioner. Accordingly, issued show cause notice of removal to the petitioner.

The same was delivered to the petitioner by the postal authorities. Copy of the said show cause notice of removal was also exhibited on the Notice board of the traffic section. But the petitioner failed to submit his explanation to the show cause notice of removal. The first respondent after perusing entire evidence available on record, finally removed the petitioner from the service of the

Corporation vide its proceedings dt 22-4-2016.

14.After lapse of five years, the petitioner preferred an Appeal before the second respondent against the removal proceedings of the first respondent.

It was considered on merits and rejected as Time Barred vide proceedings

dt 30-6-2021. The petitioner preferred Mercy petition before the third

respondent. It was also considered on merits and rejected vide proceedings

dt 28-8-2021. The petitioner also preferred Mercy Appeal before the fourth

respondent. The same was also considered on merits and rejected vide proceedings dt 8-2-2022. Thus, the action taken by the respondents is just, legal, valid and proportionate to the misconduct committed by the petitioner and prayed to dismiss the petition.

15.To substantiate the case of the petitioner, Petitioner himself was examined as PW1 and no documents were marked on his behalf. MW1 was examined on behalf of respondents and Ex M1 to M22 were marked on their behalf. Ex.M1 is 6 report of Deputy Supt(P), Podili. Ex.M2 is charge sheet. Ex.M3 is postal tracking report. Ex.M4 is nomination of enquiry officer. Ex.M5 is postal acknowledgment.

Ex.M6 is enquiry call letter. Ex.M7 is domestic enquiry statement of Deputy Supt (P). Ex.M8 is domestic enquiry report. Ex.M9 is communication of enquiry report to the petitioner. Ex.M10 is postal acknowledgment. Ex.M11 is show cause notice of removal. Ex.M12 is letter of Senior Supt. Post Office to first respondent.

Ex.M13 is show cause notice of removal. Ex.M14 is removal proceedings. Ex.M15 is all concerned message. Ex.M16 is letter of first respondent to Supt of Post

Office, Ongole. Ex.M17 is exhibition of removal proceedings on Notice Board.

Ex.M18 is Appeal proceedings. Ex.M19 is Review proceedings. Ex.M20 is Mercy proceedings. Ex.M21 is Service record extract of the petitioner. Ex.M22 is authorization letter of MW1.

16.I have heard the learned counsel for the petitioner and also the learned law officer of respondent. I have perused the material papers on record very carefully.

17.On hearing both the parties and upon perusing the material papers on record, the points that arise for consideration are:

1)Whether the petitioner comes under the ambit of “Workman” as defined under Sec. 2(s) of the Industrial Disputes Act, 1948?

2)Whether the domestic enquiry suffers from any procedural lapses or was conducted in violation of principles of natural justice and thereby, causing any prejudice to the rights of the petitioner ?

3)Whether the removal of the petitioner passed by the first respondent vide proceedings dt 27-10-2013 is justified and sustainable?

4)To what relief, the petitioner is entitled ?

7

Point No 1:

18.The case of the management is that the petitioner worked as Junior

Assistant (P). He performed his duties as per the instructions of the office superintendent. All personal and account departments are under the purview of

Shops and Establishment Act. Hence, the petitioner does not come under purview of Sec. 2 (s) of the Industrial Dispute Act.

19.On the other hand, the case of the petitioner is that the petitioner was removed from service based on the misconduct of unauthorized absence. The misconduct is mentioned as per regulation 28 (Xxvii) of APSRTC Regulations. The employees who were removed under the above said regulation are entitled to raise Industrial Dispute before this court.

20.As per the record, it is clear that the respondent / management filed IA No.

109/2024 to decide the same as preliminary issue. The said issue is touching the merits of the case and it is based on evidence. Hence, both parties are directed to adduce evidence for the decision of the said preliminary issue.

21.Both parties submitted their respective arguments towards the concept of the workman and jurisdiction of this court.

22.To prove the case of the petitioner, the petitioner himself was examined as

Pw1. By way of chief affidavit, Pw1 reiterated his case. During the cross examination of pw1, it is elicited that he joined as Junior Assistant (P) in the respondent corporation in 2012. Since his joining, he worked in Podili Depot. He does not have the facility of “off day” leaves. He is no way concern to the cadre of drivers and conductors. Charge sheet was received by him. He did not submit explanation to the charge sheet. He did not attend the enquiry. He received show cause notice on removal on 29-03-2016. He did not submit any explanation to the said show cause notice. He was removed from service on 22-04-2016. He filed appeal before the 2nd respondent after five years from the date of his removal. He was removed from service previously in 2014.

8

23.Junior Assistant (P) of Podili Depot was examined as Mw1. By way of chief affidavit Mw1, reaffirmed the case of the management apart from marking Ex. M1 to M22. During the cross examination of Mw1, it is elicited that as per Labour Act one has to work for eight hours in the office. The petitioner used to work under the control of Depot Manager as a staff member. As a Junior Assistant, the petitioner duties were the preparation of higher purchase bus service bills, preparation of increment bills, addressing operational letter pertaining to hire buses, payment of electricity bills, telephone bills and property tax etc. Junior

Assistant is the lower cadre in their department. Petitioner made a representation to the Regional Manager for reinstatement on 30-06-2021. Petitioner also addressed representation to the Executive Director on 21-08-2021.

24.Ex. M1 is report of Deputy Superintendent (P) to the Depot Manager, Podili regarding the unauthorized absence of the petitioner for his duties from 01-02-2016 to 09-02-2016 without prior permission or intimation from the authority concern. Ex. M2 is charge sheet for the unauthorized absence considering it as misconduct in accordance with regulation no. 28 (xxvii) of

APSRTC Employees (Conduct) Regulations, 1963.

25.Exparte enquiry was conducted by Sk. Mounica, E. No. 516120, AM(T)

Podili. Show cause notice of removal was issued subsequent to domestic enquiry report under Ex. M8. The management did not file any service conditions governing the services of the petitioner herein to consider that the petitioner does not come under the purview of Sec. 2 (s) of the Industrial Dispute Act though the management seriously raised the objection stating that the petitioner does not come under the purview of workman as contemplated u/sec. 2 (s) of the

Industrial Dispute Act. The learned law officer strongly objected the plea of the petitioner that he is a workman and also resisted the case of the petitioner that in view of his designation and also in view of his nature of duties the petitioner does not come under the purview of the workman.

9

26.As rightly pointed out by the learned counsel for the petitioner, it is clear that the management did not place any material evidence to consider the nature of work of the petitioner as a Junior Assistant except relying on the pleadings and the connected oral evidence to that effect. However, the charge sheet and the enquiry proceedings are in terms of the standing orders of the respondent corporation which are applicable to the workman. So therefore, it is the considered opinion of this court that nomenclature of an employee is not the criteria to decide his position but his nature of duties are very essential for consideration. Further, the management except relying on the salary of the petitioner did not file any other document to show that the petitioner attended administrative works. Therefore, it is held that the management failed to prove the nature of duties of the petitioner as a Junior Assistant and also failed to place any material regarding his appointment orders and the other documents from

Ex. M1 to M21 appears to have followed the standing orders of the respondent corporation which are meant for workman. The learned law officer is also unable to answer why the appeal, review and mercy proceedings which are meant for a workman basing on their standing orders, have been permitted to a Junior

Assistant when the Junior Assistant is governed by other service regulations.

27.In the light of the above observations, it is the considered opinion of this court that the case of the petitioner was attended just like as the case of a workman by following the standing orders of the respondent corporation. So therefore, it is held that the petitioner comes under the purview of Sec. 2 (s) of the Industrial Dispute Act as rightly pointed out by the learned counsel for the petitioner and there is no force and substantive evidence at hands of the respondent / management to consider that the petitioner does not come under the purview of Sec. 2(s) of Industrial Dispute Act, 1947. Finally, it is concluded that the petitioner comes under purview of the four corners of the definition of workman to invoke the jurisdiction of this court. Accordingly, this point is answered.

10

Point No 2 :

28.As can be seen from the record, it is clear that the enquiry against the petitioner was commenced basing on the report of Deputy Superintendent (P),

APSRTC, Podili under Ex. M1 in respect of the absence of the petitioner for his duties from 01-02-2016 to 09-02-2016 without any permission from the respondent authorities. In consequence to the said report, a charge sheet was issued to the petitioner under Ex. M2. There is no response from the petitioner regarding the charge sheet under Ex. M2. Thereafter, Enquiry officer was nominated to conduct enquiry against the petitioner on the allegation of unauthorized absence. As per record, it is discernible that the enquiry officer put his efforts to communicate all the proceedings to the petitioner but the efforts of the management as well as the enquiry officer remained futile. The enquiry officer recorded the statement of Deputy Superintendent (P). Thereafter, he submitted his report under Ex. M8. Subsequently, the management called for objections from the petitioner on Ex. M8 enquiry report and later issued show cause notice of removal. Inspite of the best efforts made by the management as well as the domestic enquiry officer to communicate enquiry proceedings and enquiry notices to the petitioner to the correct address of the petitioner, but the petitioner did not respond properly to that effect. So therefore, the management was constrained finally to remove the petitioner from the service.

29.On careful examination of the report under Ex. M1, the contents of the charge sheet under Ex. M2 apart from the statement of Deputy Superintendent (P) under Ex. M7, it is clearly proved that the petitioner remained absent unauthorizedly for a period of nine days specifically from 01-02-2016 to 09-02-2016. The same is found by the enquiry officer in his report under Ex. M8.

It is the not the case of the petitioner that he was not residing in the address mentioned in all the proceedings of notices relied on by the management.

So therefore, it is the considered opinion of this court that all the proceedings recorded by the domestic enquiry officer are in accordance with law though it is 11 an exparte enquiry. Further, the petitioner failed to place any material before this court to consider that the domestic enquiry officer committed the violation of procedural irregularities and also violated the principles of natural justice. As a result, it is held that the domestic enquiry report under Ex. M8 is sustainable and binding on the petitioner. Accordingly, this point is answered.

Point No 3 :

30.Coming to the punishment aspects, the learned counsel for the petitioner canvased that the punishment is disproportionate in considering the absent period for nine days. On hearing the same, the learned law officer submitted that though it is mentioned as nine days in charge sheet under Ex. M2 but the petitioner did not turn up later even after the commencement of enquiry proceedings against him. Further, it is also submitted that the petitioner was also removed from service previously on the similar ground of unauthorized absenteeism and he was reinstated into service on humanitarian grounds which proves that he is an habitual absentee. On careful observation of the punishment aspect, it is clear that the petitioner is punished disproportionately. Despite the punishment aspect is challenged strongly by the petitioner submitting that it is disproportionate but the petitioner has to establish his diligence in raising

Industrial Dispute to that extent.

31.As per record, it is clear that he was removed from service on 22-04-2016.

As per his own evidence, it is proved that he filed appeal after a lapse of five years from the date of his removal. The petitioner submits that the petition is with in the limitation period as it was filed after the dismissal of his mercy proceedings in the year 2022. Though, the petitioner is able to convince with his clever argument but the law does not permit him to raise the Industrial Dispute after completion of three years from the date of his removal as per Sec. 2 A (3) of

Industrial Dispute Act,1947. As per the provisions of Sec. 2 A (3) of Industrial

Dispute Act, 1947 the petition shall be filed with in three years from the date of discharge, dismissal, retrenchment or other wise termination of service. So 12 therefore, it is the considered opinion of this court that as far as the limitation aspect is concerned, there is a force in the submissions of the learned law officer and there is no justification in the submissions of learned counsel for the petitioner regarding the limitation aspect. As a result, it is concluded that the petition is barred by limitation. Hence, this court cannot interfere into the punishment aspect in view of lack of diligence on the part of the petitioner in raising the Industrial Dispute. Accordingly, this point is answered that the petition is devoid of merits.

Point No 4 :

32.In the result, the petition is dismissed. There shall be no order as to costs.

The Office is directed to forward the award to the Government of Andhra Pradesh for publication under Sec. 17 of the Industrial Disputes Act, 1947.

Typed to my dictation by the Senior Assistant, corrected and pronounced by me in the open court on this the 19th Day of December, 2024.

Chairman-Cum-Presiding Officer Industrial Tribunal-Cum Labour Court: Guntur

APPENDIX OF EVIDENCE

Witnesses examined for:

Petitioner side Respondents side

PW1 : I. AshokMW1: B. Venkata Reddy

DOCUMENTS MARKED FOR PETITIONER : NIL

DOCUMENTS MARKED FOR RESPONDENTS

Ex. M1 is report of Deputy Supt(P), Podili.

Ex.M2 is charge sheet.

Ex.M3 is postal tracking report.

Ex.M4 is nomination of enquiry officer.

13

Ex.M5 is postal acknowledgment.

Ex.M6 is enquiry call letter.

Ex.M7 is domestic enquiry statement of Deputy Supt (P).

Ex.M8 is domestic enquiry report.

Ex.M9 is communication of enquiry report to the petitioner.

Ex.M10 is postal acknowledgment.

Ex.M11 is show cause notice of removal.

Ex.M12 is letter of Senior Supt. Post Office to first respondent.

Ex.M13 is show cause notice of removal.

Ex.M14 is removal proceedings.

Ex.M15 is all concerned message.

Ex.M16 is letter of first respondent to Supt of Post Office, Ongole.

Ex.M17 is exhibition of removal proceedings on Notice Board.

Ex.M18 is Appeal proceedings. Ex.M19 is Review proceedings.

Ex.M20 is Mercy proceedings.

Ex.M21 is Service record extract of the petitioner.

Ex.M22 is authorization letter of MW1.

Chairman-Cum-Presiding Officer Industrial Tribunal-Cum Labour Court: Guntur

1

BEFORE THE INDUSTRIAL TRIBUNAL CUM LABOUR COURT and Special Court

for the Trial of offenses under ESI Act 1948: GUNTUR

PRESENT: SRI D. THIRUMALA RAO Chairman cum Presiding Officer, I.T. cum L.C., GNT.

This the 20th Day of December 2024

EXECUTION PETITION: 4/2022 IN I.D 268/1994

Between:

1) Kavali Srinivasa Rao (Died), S/o Radha Krishna Rao

2) Kavali Jaya Lakshmi, W/o Kavali Srinivasa Rao, D.No 7-2-17, Nalamvari Veedhi, Kovurammagude Daggara, Kovvuru, West Godavari District (Now in E.G)

3) Kavali Durga Shiva Kiran, S/o Kavali Srinivasa Rao, D.No 7-2-17, Nalamvari Veedhi, Kovurammagude Daggara, Kovvuru, West Godavari District (Now in E.G)

4) Kavali Durga Sireesha, D/o Kavali Srinivasa Rao D.No 7-2-17, Nalamvari Veedhi, Kovurammagude Daggara, Kovvuru, West Godavari District (Now in E.G) (Dhr 2 to 4 are added as per orders Dt 28-8-2023 in E.A 1/2023) DECREEHOLDERS AND The Joint Managing Director, Andhra Sugars Ltd., Chemicals & Fertilizers Division, Kovvur, West Godavari District JUDGMENTDEBTOR

This Execution Petition came before me for adjudication on 28-11-2024 in the presence of Sri M.Srinivasa Rao, counsel for DHRs and Sri D. Balaraju counsel for JDRs and upon hearing both of them, and upon perusing the material papers on record and having stood over for consideration till this day, this court passed the following :

O R D E R

This Execution Petition is filed under Order 21 Rule 11(1) CPC praying this court to attach the (1) Bank Account bearing No OCC 211, Andhra Bank, Kovvur,

West Godavari District, (2) Bank Account bearing No 03181304600021, Andhra 2

Bank, Taluka Office Road, Kovvur, West Godavari District of the Judgment Debtors ie., for realization of decreetal amount of Rs. 17,98,534/-.

2.The brief facts of the First Decree holder case are that the First Decree holder herein is the main petitioner in the above I.D 268/1994. On elaborate enquiry, this court passed Award I.D 268/1994 on 8-4-2005 infavour of the First

Decree-holder directing the Judgment Debtor for reinstatement of First DHR with continuity of service and back wages at Rs. 18/- per day from 21-1-1994 till the date of the order with interest at 6% per annum from the date of order. If the

First DHR is not reinstated into service within one month from the date of notification of the Award, the Judgment-debtor shall pay minimum wages to the first DHR from the date of this order besides costs of Rs. 5,000/-. The Award in

I.D 268/1994 came into force on 28-8-2005. The JDR filed W.P 18871/2005

before the Hon'ble High Court. As per Orders in WVMP 2377/2006 and WPMP NO

2406/2005 in WP NO 18871/2007, stay was vacated . The JDR filed Writ Appeal

No 1726/2018. There was no stay against the order of this Court in the said Writ

Appeal. Therefore, it was open for the first Decree-holder to execute the said

Award as per Law. The JDR has means to implement the said award in I.D 268/1994. As per the Award, the first Decree-holder is entitled for minimum wages and other benefits besides reinstatement with back wages as Store Boy.

The said details were given in the Calculation Memo annexed to this Execution

Petition. When the First decree-holder approached the Judgment-debtor on number of times with a request to implement the said Award, the JDR has been dodging the matter on one pretext or the other. The JDR has sufficient means to implement the Award. Therefore the First Decree-holder prays to implement the

Award in I.D 268/1994 by way of attachment of the schedule bank account of the

Jdr for recovery of the EP amount.

3.The judgment debtor filed a detailed counter contending that when the Writ

Appeal 1726/2018 against the Order dt 1-10-2018 in W.P 18871/2005 was pending before the Hon'ble High Court, the present E.P in respect of 3 implementation of Award in I.D 268/1994 is not maintainable. So much so, this court has no jurisdiction to entertain the present E.P in view of Sec 11(9) and (10) of the Industrial Disputes Act. On that score also, this E.P is not maintainable and is liable to be dismissed.

4.The JDR further submits that without determining the alleged total back wages by a separate proceedings under Sec. 33-C(2) of the I.D Act, direct filing of the present E.P for back wages is not tenable and is not maintainable. Hence, this E.P is liable to be rejected on that ground alone.

5.The Judgment-debtor filed Writ Petition No 18871/2005 before the Hon'ble

High Court against the award passed by this court in I.D 168/1994 questioning the validity of the said Order. The said Writ Petition was disposed on 11-10-2018 by dismissing the same. Against the said dismissal order, the Judgment-debtor filed Writ Appeal No 1726/2018 before the Hon'ble High Court and got Interim order on 21-1-2019. The said Interim Order was dismissed on 21-10-2019.

6.The Judgment-debtor further submits that pending Writ Petition and Writ

Appeal, the Judgment-debtor paid wages to the first decree-holder as laid down under Sec. 17-B of the I.D Act till the date of retirement of the Dhr. No. 1 from the service ie by June 2021 due to attaining the age of superannuation. The first decree-holder did not reduce the wages already he had received as per Sec 17-B of the I.D Act in his calculation memo towards back wages. Further, the first decree-holder claimed back wages even subsequent to his superannuation ie., after June 2021. The Judgment-debtor further submits that the first decree- holder claimed Rs. 55,000/- towards Advocate fee in this E.P though there was no such award to get an amount of Rs. 55,000/- in the Award in I.D 268/1994.

Further, the calculation of back wages for the period from 8-4-2005 to 20-11-2021 totaling Rs 16,39,938/- was completely wrong and without any basis.

There was no mention by the first decree-holder regarding the base on which minimum wage G.O was relied on and on what designation, he calculated the said back wages. So much so, the DHR claimed more than the minimum wages than 4 whatever he is eligible for the post of Helper/Office Boy/any unskilled Mazdoor.

So much so, pending Writ Appeal No 1726/2018 before the Hon'ble High Court, the first decree-holder is not entitled to minimum wages towards back wages as claimed by him in this E.P.

7.It is the further submission of the Judgment-debtor that the designation of the first decree-holder was in dispute and basing on which the Minimum wages

G.O and his entitlement for wages is in dispute. Without determining the correct calculation of wages under separate proceedings, direct filing of the present E.P is not correct and the same is unsustainable and is liable to be dismissed.

8.The Judgment-debtor further submits that the first Decree-holder has been working as LIC Agent and he is earning more than RS. 35,000/- per year besides his other avocation. Further the claim and contention of the first decree-holder is untenable in law and also without any legal basis. The present E.P is misconceived, unsustainable and is liable to be dismissed. Therefore, the

Judgment-debtor prays to dismiss this E.P with costs.

9.To substantiate the case of the first Decree-holder, the first decree-holder was examined as PW1 and got marked Ex.P1 to P18. One Ch. Sukamaharshi was examined as DW1 on behalf of Judgment-debtor and got marked Ex.D1 on behalf of Judgment-debtor. Ex.P1 is Copy of Award in I.D 268/1994. Ex.P2 is Copy of

Minimum wages G.O NO 117 dt 7-12-2007. Ex P3 is statement of cost of living allowance. Ex.P4 is statement of Basic+VDA issued by ALO, Kovvur. Ex.P5 is G.O

Ms No 117, LET&F Department from 1-4-2014 to 30-9-2014. Ex.P6 is G.O Ms No 117 LET&F Department Dt 7-12-2007 from 1-10-2014 to 31-3-2015. Ex.P7 is G.O

Ms No 117, LET&F Department from 1-4-2015 to 30-9-2015. Ex.P8 is G.O Ms No 117, LET&F Department from 1-10-2015 to 31-3-2016. Ex.P9 is G.O Ms No 117,

LET&F Department from 1-4-2016 to 30-9-2016. Ex.P10 is G.O Ms No 117, LET&F

Department from 1-10-2017 to 31-3-2018. Ex.P11 is G.O Ms No 117, LET&F

Department from 1-4-2017 to 30-9-2017. Ex.P12 is G.O Ms No 117, LET&F

Department from 1-10-2018 to 31-3-2019. EX.P13 is G.O Ms No 117, LET&F 5

Department from 1-4-2019 to 30-9-2019. Ex.P14 is G.O Ms No 117, LET&F

Department from 1-10-2019 to 31-3-2020. Ex.P15 is copy of Order in WPMP NO 21803/2007 in WP NO 18871/2005 dt 24-8-2007 of Hon'ble High Court. Ex.P16 is copy of Order in W.P No 18871/2005 Dt 11-10-2018. Ex.P17 is copy of Judgment in W.A No 792/2009 dt 16-9-2009. Ex.P18 is proceedings sheet of Hon'ble High

Court dt 7-9-2021 in W.A No 1726/2018.

10.Ex.B1 is Authorization letter issued to DW1.

11.I have heard the learned counsel for the decree holder and also the learned counsel for Jdr. I have perused the citations memo filed by the Jdr.

12.On hearing both parties and upon considering material papers on record, the points that arise for consideration are :

1) Whether the decree holders are entitle for the recovery of an amount of

Rs.17,98,534/- ?

2) To what relief?

Point No 1 :

13.This is an execution petition filed by the decree holders for recovery of an amount Rs. 17,98,534/- along with costs basing on the award in ID No.

268/1994. It is emerged on record that during the pendency of the proceedings, the 1st Dhr died and the decree holders 2 to 4 are brought on record as per orders

dt. 28-08-2023 in EA No. 01/2023.

14.This EP is resisted by the Jdr on various grounds questioning jurisdiction of this court to entertain the EP apart from questioning the power of this court to determine the minimum wages.

15.The learned counsel for the decree holder submitted that this court granted an award under Ex. P1 which is executable. The Jdr challenged the said award by filing a writ petition 18871/2005 which was dismissed by the Hon'ble High Court confirming the award of this court. Later, the Jdr filed writ appeal 1726/2018 which is pending before the Hon'ble High Court. Though the Hon'ble High Court initially granted stay of the execution of the award of this court but that was not 6 continued and ended in vacation. So therefore, there is no bar to execute the award of this court. Initially, the 1st decree holder filed the EP. Subsequently, the 1st decree holder passed away. Hence, his Lrs were brought on record as decree holder 2 to 4. The decree holders 2 to 4 established the back wages as ordered by this court. As a result, the Jdr has to pay the EP amount.

16.On the other hand, the learned counsel for the Jdr strongly disputed the same saying that writ appeal is pending which is a continuous process of litigation. So therefore, till the disposal of the writ appeal the EP is not maintainable for the execution of the award. Further, there is a dispute regarding the nature of employment of the 1st decree holder and the documents relied on by the decree holder for the mean profits are no way helpful unless those are determined by the labour court. It is also submitted that the calculations are improper and the prayer in the EP is also untenable in view of improper quoting of law. It is also canvased that unless the minimum wages are determined this court cannot execute the award for the determination of minimum wages. To that extent, he relied on the following rulings :

1. 2016 LLR 236 in between Rishi Kumar Vs. Presiding Officer and others.

2. Writ appeal No. 792 of 2009 in between M/s. Andhra Sugars Ltd., Vs. Kavali

Srinivasa Rao and another.

17.To substantiate the case of the decree holder, the 1st decree holder was examined as Pw1. By way of chief affidavit, Pw1 reiterated his case apart from marking Ex. P1 to P18. During the cross examination of Pw1, it is elicited that he does not know about the pendency of writ appeal 1726 of 2018. He did not issue any notice to the Jdr before filing this EP. He denied the suggestion that he was declared as daily wager in ID No. 268/1994. Jdr deposited his last drawn salary during the pendency of writ petition 18871/2005. He withdrew the deposited amount. He received Rs.50,000/- and odd towards his wages but he did not deduct the same in this petition. Presently, he is aged about 65 years and his retirement age was 60 years. He claimed the wages under the designation of 7 store assistant. He denied the suggestion that he is not entitled for EP amount during the pendency of writ appeal 1726/2018.

18.Assistant General Manager (HR) of Jdr company was examined as Dw1.

By way of chief affidavit, Dw1 reaffirmed the case of the Jdr apart from marking

Ex. B1 authorization. During his cross examination, it is elicited that the EP is filed for the execution of award in ID No. 268/1994. The 1st decree holder is no more and the decree holders 2 to 4 are legal heirs of the 1st decree holder. The 1st decree holder was not reinstated into service after the disposal of ID No.

268/1994. They paid Rs.468/- to the 1st decree holder as per the directions of the Hon'ble High Court.

19.Basing on the evidence available on record, it is clear that the EP is filed for the recovery of minimum wages as awarded by this court under Ex. P1 award as an alternative relief to the 1st decree holder in case of non compliance of the 1st part of the award. Admittedly, writ appeal is pending before the Hon'ble High

Court. Pending Writ appeal, the decree holder filed the present EP.

20.The learned counsel for the Jdr relied on a ruling in the case of Rishi Kumar submitting that what ever the document filed by the decree holder shall be proved in accordance with law and the documents filed by the decree holder regarding the minimum wages are required to be proved by examining the author of the document. This is resisted by the learned counsel for the decree holder saying that all the documents under Ex. P1 to P18 are public documents.

Therefore, the court can presume the validity of those documents. On keen observation of the ruling in the case of Rishi Kumar, it is discernible that the petitioner in the said case relied on medical certificates. So therefore, the Hon'ble

High Court came to that conclusion regarding the proof of the documents. As far as the case on hand is concerned the decree holder relied on certified copies of public documents to prove the minimum wages from Ex. P2 to P14. So therefore, it is the considered opinion of this court that the public documents are having the force of presumptions and evidenciary value for consideration. Hence, there is no 8 force in the submissions of the learned counsel for the Jdr to that extent and the ruling in Rishi Kumar is no way helpful to the Jdr in view of distinguishable aspects on law.

21.Coming to the other issues of maintainability of this EP in the absence of any determination of minimum wages, it is a crucial point for consideration on the ground that the EP is based on award. Award is very silent regarding the determination of minimum wages. There is also another crucial aspect for consideration in the present case is that there is a dispute regarding the employment and wage of the 1st decree holder. The 1st decree holder claims that he is a store assistant and he relied on Ex. P2 to P14 Gos for claiming minimum wages as store assistant. On the other hand, the Jdr claims that the 1st decree holder is a daily wage earner but not a store assistant. So therefore, this disputable fact regarding the employment and its nature along with wages is to be determined by competent court but not by the executing court as that aspect is to be determined either by the Labour Court or Industrial Tribunal to that effect in terms of Industrial Dispute Act, 1947. Unless, the disputable aspects are answered by the competent court, the decree holders are not entitled for recovery of the EP amount as rightly pointed out by the learned counsel for the

Jdr. Therefore, there is no force in the submissions of decree holder to that extent. Further, as answered by this court pending proceedings are continuation of the award proceedings. Unless, the writ appeal 1726/2018 is disposed off by the Hon'ble High Court, the decree holders are not having any executable right for the execution of the award in ID No. 268/1994. Hence, there is a force in the submissions of the learned counsel for the Jdr to that extent. It is needless to answer the other grounds of mis calculations as those aspects are required to be determined by the competent court established under Industrial Dispute Act, 1947. Therefore, those disputable points regarding the nature of employment, minimum wages, calculations to that effect are left over to the competent court for determination basing on the available evidence. As a result, it is held that in 9 the absence of any award regarding the minimum wages and in view of pendency of writ appeal 7626/2018 this EP is not maintainable before this court for recovery of an amount of Rs. 17,98,534/-. Accordingly, this point is answered.

Point No 2 :

22.In the result, the Execution Petition is dismissed. There shall be no order as to costs.

Typed to my dictation by the Senior Assistant, corrected and pronounced by me in the open court on this the 20th Day of December 2024.

Chairman-Cum-Presiding Officer Industrial Tribunal Cum Labour Court: Guntur.

APPENDIX OF EVIDENCE

Witnesses Examined For

Decree holder side : Judgment Debtors side :

PW1: Kavali Srinivasa RaoDW1 : Ch Sukamaharshi

DOCUMENTS MARKED FOR DECREE HOLDERS

Ex.P1 is Copy of Award in I.D 268/1994.

Ex.P2 is Copy of Minimum wages G.O NO 117 dt 7-12-2007.

Ex P3 is statement of cost of living allowance.

Ex.P4 is statement of Basic+VDA issued by ALO, Kovvur.

Ex.P5 is G.O Ms No 117, LET&F Department from 1-4-2014 to 30-9-2014.

Ex.P6 is G.O Ms No 117 LET&F Department Dt 7-12-2007 from 1-10-2014 to 31-3-2015.

Ex.P7 is G.O Ms No 117, LET&F Department from 1-4-2015 to 30-9-2015.

Ex.P8 is G.O Ms No 117, LET&F Department from 1-10-2015 to 31-3-2016.

Ex.P9 is G.O Ms No 117, LET&F Department from 1-4-2016 to 30-9-2016.

Ex.P10 is G.O Ms No 117, LET&F Department from 1-10-2017 to 31-3-2018.

Ex.P11 is G.O Ms No 117, LET&F Department from 1-4-2017 to 30-9-2017.

Ex.P12 is G.O Ms No 117, LET&F Department from 1-10-2018 to 31-3-2019.

EX.P13 is G.O Ms No 117, LET&F Department from 1-4-2019 to 30-9-2019.

Ex.P14 is G.O Ms No 117, LET&F Department from 1-10-2019 to 31-3-2020.

10

Ex.P15 is copy of Order in WPMP NO 21803/2007 in WP NO 18871/2005 dt 24-8- 2007 of Hon'ble High Court.

Ex.P16 is copy of Order in W.P No 18871/2005 Dt 11-10-2018.

Ex.P17 is copy of Judgment in W.A No 792/2009 dt 16-9-2009.

Ex.P18 is proceedings sheet of Hon'ble High Court dt 7-9-2021 in W.A No 1726/2018.

DOCUMENTS MARKED FOR JUDGMENT-DEBTOR

Ex.B1 is Authorization letter issued to DW1.

Chairman-Cum-Presiding Officer Industrial Tribunal Cum Labour Court: Guntur.