Central Administrative Tribunal - Madras
Thozhilalar Munnetra Sangam ... vs Ordnance Factory Board on 24 July, 2023
] OA 609/2019 CENTRAL ADMINISTRATIVE TRIBUNAL CHENNAT BENCH OA NO.609/2019 Dated Monday the 24" day of July Two Thousand Twenty Three CORUM: HON'BLE MS. LATA BASWARAJ PATNE, JUDICIAL MEMBER 1. Thozhilalar Munnetra Sangam Padalthurai Udai Thozhirsalai, Rep. by its President, Avadi, Chennai - 54. 2. A.Mohamed Meera S/o M.Ayyadurai Office Superintendent, OCF, 4/1, VOC Street, Thiruvalluvar Nagar, Pattabiram, Chennai 72. ve Applicant By Advocate M/s.S.Kala Vs 1. The Union of India Rep. by The Chairman/DGOF, Ordnance Factory Board, Ayudh Bhavan, No.i0, S.K.Bose Road, Kolkatta ~ 700001. 2. Ordnance Clothing Factory Rep. by its General Manager Avadi, Chennai,Pin - 600054. a Respondents By Advocate Mr.M.Kishore Kumar SPC 2 0A 609/2019 ORAL ORDER
(Pronounced by Hon'ble Ms. Lata Baswaraj Patne, Member(J)) Heard learned senior counsel MrV.Prakash for the applicant and MrM. Kishore Kumar, SPC for the respondents.
2. The applicant has filed the present OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following rellef:
"to Direct the respondents
a) To call for and set aside the impugned order in F.O Part Ill No, 183, F.O Part Il No.1304, 1305, 1306 and 1307 dated 15.04.2019 passed by the2nd Respondent Annexure No.A6 series; and
b) Issue such further and other appropriate orders or directions as ihis Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case by suitably moulding the relief and award costs and thus render justice."
3. The brief facts of the case as stated by the applicant are as follows:
The 1* applicant is a registered trade union with the objective of collective bargaining representing the common cause of the employees of the Ordnance Clothing Factory, Avadi, Chennai-600 054. There are also other trade unions and federations in the same factory, which members went on a strike from 23.01.2019 to 25.01.2019.
3.1 In that strike, the 1* applicant's members and some other employees did not participate. The applicants declined not to join strike and hence the members attended duty on all these three days. On 24th January, 2019, when more than 350 willing employees including 170 female employees with a commitment to attend duty, reached the gate of the factory, the gate was forcibly closed by the management and hence, the empicyees could not enter their respective sections. No lockout was declared. The attendance was taken manually by security staffs namely Shri.Murali and Shri.Mohan. A dispute under Section 2(k) of the Industrial Dispute Act 1947 was also raised 3 OA 609/2019 before the Assistant Labour Disputes Act, Commissioner (Central), wherein the management gave an undertaking that salary will not be deducted for these 326 workers and it will be treated as Special Casual Leave. While 56, all of a sudden, on 20.04.2019, the second respondent, without any notice, published a Factory Order Part-II No.I83, Part - II No. 1304, 1305 1306 and 1307 dated 15.04.2019, at the instance of the rival union that went on strike, to the effect that the Special Casual Leave was cancelled and that the salary for that day, i.e, 24.01.2019 will be deducted for those 326 members.
The applicants have immediately approached this Tribunal by filing the present OA on 23.04.2019 and the same has been taken up for hearing on Interim relief on 29.04.2019 by its order dated 29.04.2019 directed the respondents te maintain status quo as on that day.
4. After notice the respondents have entered appearance through their counsel and filed their reply and opposed the rellef on the ground that in respect of the said strike, settlement has been taken place before the Labour Commissioner and signed by the President/OCF of the applicant association. The respondents have justified their action of recovery of one day salary in respect of said absence on 24.01.2019 due to the said strike. The respondents have also contended that the applicant are claiming the benefit and their entitlement under the Industrial Disputes Act and hence this court does not have jurisdiction to entertain the claim of the applicants and the only way available to the applicants are to approach either before the Labour Commissioner who has accorded the said settlement or otherwise the approach the appropriate forum wherein the claim of Industrial Disputes Act will be entertained and prayed for dismissal of the OA,
5. Learned senior counsel MrPrakash has argued that under Section 9 of the Industrial Disputes Act and as per the Schedule 1 & 4 salaries of the 4 OA 609/2019 workman as well as leave and other entitlements has been described. Whatever the action taken by the respondent competent authority is not only against the Act, but also against the settlement accorded by the Labour Commissioner by order dated 25.01.2019. If the competent authority want to change their decision, they have to give show cause to the applicarts. So far in the matter of the association members who are the workman, the respondent authority have not given any show cause.
6. The learned counsel for the applicant has contended that the members of the applicants' association were not participants in the strike movement and they were very keen to join on the same day and render their services, however gates were closed and they were not allowed to enter inside and do their regular duties and because of the action of the respondents only the members of the applicants' association are made to suffer for no reason, Hence they cannot direct the applicants to submit their one day leave application (other than CL) in order to reqularise the absence on the sald day of strike, i.e., 24.01.2019.
7, On the other hand, learned counsel for the respondents vehemently opposed the prayer as well as the arguments of the learned counsel for the applicant, that adhering to the provisions contained in the OFB Confidential letter No. 13/ 12/2000/A/IR dated 07.08.2000, the competent authority has regularized the cases of said employees by sanctioning Special Casual Leave as per the authority quoted in Para 2 of the OFS, Kolkata letter dated 07.08.2000. The above position was intimated to Ordnance Factory Board, Kolkata vide this office letter No. 1808/ LB/ Leave dated 14.03.2019. In the meantime, Shri V.Velkumar, an employee of this factory filed an application under section 33c(2) of the Industrial Dispute Act, 1947- before the Central Government industrial Tribunal Cum Labour Court. However, the same was 5 OA 609/2019 withdrawn during the first hearing as the case was settled by DCLC. The first respondent was intimated by the second respondent of the situation that led to grant of Special Casual leave for all the employees whose attendance were noted on 24.01.2019, OFB, Kolkata vide their letter No. 13/15/Strike/ 23-25/ 1/2019/Per/ IR dated 10.04.2019 intimated that as per the procedure, show cause notice has to be given to the employees who were absent during the strike period and based on their reply, absence period has to be regularized. Instructions given in OFB, Confidential Mo. 13.12.2000/A/ IR dated 07.08.2000, referred by OCF for granting Special Casual Leave, pertains to regularization of absence of employees on the day of Bundhs/ Curfew. As per Rules, special casual leave is not to be granted for regularization of strike period. OFB, Kolkata therefore directed the factory to cancel the special casual leave granted to above employees and then follow the procedure laid down therein in the OFB instruction No.23/2006/A/R dated 27.08.2006 and regularize the period of absence on 24.01.2019 by grant of only those leave which are due and permissible. Accordingly, vide FO. Part-II No. 1304, 1305, 1306 & 1307 dated 15.04.2019 and FO.Part-III No. 183 dated 15.04.2019 the special casual leave granted to aforesaid employees were cancelled, Further, all the concerned employees were intimated vide jetter dated 26.04.2019 with regard to cancellation of Special Casual jeave and directed to submit leave application (other than CL) for 24.01.2019 i.e., strike period with suitable reason to reqgularize their absence. By this account, they will not loss their pay for 24.01.2019.
8. There is no illegality in the impugned action of the respondents. Although Members of Thozhilalar Munnetra Sangam, claim that they reached the factory area at about 08.30 hours, they assembled in a group and wantonly reached the gate in mob at about 09.30 hours to have a 6 OA 609/2019 confrontation with a rival union on the pretext of attending duty and to create embarrassment to the management.
9. The union and its members have no right to demand entry. into the factory at untimely hours i.e., well beyond the mustering in hours (7.30 hrs to 8.00 hrs). The management decided to close the gate considering the volatile situation and in order to safeguard the government instailation/properties.
10. In the conspectus of the facts and circumstances of this case, their attendance should have only be marked as absent on that strike day i.e., on 24.01.2019. However, the respondents had not gone back on_ their undertaking that attendance of those concerned employees will not be marked as absence but regularised as that of leave.
11. Instead of granting special Casual leave the management has now sought to regularize their absence period by obtaining leave application (except CL) for 24.01.2019, as it has been brought to the notice of the 2™ respondent by the i* respondent that there is no provision in the rule to grant special casual leave during strike period.
12, As per Minlstry of Personnel, Public Grievances & Pensions, Departmenc of Personnel & against Training O.M.No.33011/1/77-Estt(B) 25.04.1978 it has been directed that "all Ministries/Department must observe the principle of no work - no pay' and this should not be circumvented in any way including by grant of leave for the period of a strike; and on all important service matters which are likely to have repercussions on other services (e.g., action taken Government employees participating in dated strikes), all Ministries/ Departments should, with a view to ensuring the maximum uniformity in the general approach, consult the Department of Personnel and Training before taking/announcing any decision so that the embarrassment to 1 7 OA 609/2019 the Government in dealing with the generality of civil services is avoided."
13. The Hon'ble Supreme Court in the Civil Appeal No.2581. of 1986 (1990 (3} SLI) has held that whether the strike is legal or illegal, the workers are liable to lose wages for the period of strike. However, no punitive action has been contemplated against the concerned employees for their absence on 24.01.2019 J.e. during the strike period, as per the instructions on the subject.
14. The management has only sought to regularize thelr absence period by obtaining an leave application (except CL) for 24.01.2019. By this account, they will not lose their pay for 24.01.2019. There is no question of going back on the undertaking as instead of granting Special Casual leave, the absence of the concerned employees will be regularised by granting of their own leave. A mistake has been made by granting of Special Casual leave due to oversight while interpreting the guidelines/instructions and the same is corrected by cancellation of Special Casual Leave vide impugned Factory orders and the concerned employees has been directed to submit leave application (other than CL) for 24.01,2019 i.e., strike period with suitable reason to regularize their absence. If this process is not allowed, it will be against the provision of rules and it will lead to wider repercussions and ramification. Hence he prayed for dismissal of the OA.
15. It is te be noted that in respect of the strike of the Unions, the Union as well as the Government has approached the Labour Commissioner and accordingly by its proceedings dated 25,01.2019 it is observed thus:
"After prolonged discussion the representative of the management agreed to consider the day of 24.01.2019 as Special Casual Leave (i.e., one day salary) to 326 employees whose list is already available with the management due to extraordinary circumstances. The union representatives also agreed to the proposal of the management. In view of the above, the dispute is treated as amicably settled and closed."
ze 8 OA.609/2019
16. itis to be noted that all the concerned representative of the employees as well as employer has accorded their signature on the said settlement/understanding. It Is to be noted that though the respondents have accorded their signature on the settlement/understanding before the competent authority, they have not followed with the settlement/ understanding. It is also to be observed that as per the Industrial Dispute Act, Section-9, Schedule 1 & 4, employees' salary, leave and other entitlements have been specifically described under the Act, Once one of the competent authorities having power has taken the cali on the issue and passed the appropriate orders in view of the settlement between the parties, in my considered opinion, it is not appropriate to intervene in the orders of the Deputy Chief Labour Commissioner (Central) as the same is beyond scope of this Tribunal and the applicants are at liberty to approach before the same forum for their claim. The interim relief granted on 29.04.2019 hereby 4 stands vacated. OA is dismissed. No order as to costs.