BEFORE
THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM
I.D.No.20/2012
The Chairman Cum Managing
Director,
NLC Limited,
Nyeveli-607 801.
…Petitioner
Vs
1. The
General Secretary,
NLC Workers Solidarity Union,
A-2, Screw Lane
Neyveli-607 803.
2. The
General Secretary,
NLC
Mazdoor Sangh,
Vishwakaram
Bhavan,
D-24,
Perumal Koil Salai,
Block-27,
Neyveli-607
803.
…Respondents
COUNTER
STATEMENT FILED BY THE 1ST RESPONDENT UNION
The
1st Respondent Union respectfully submits as follows:
1. The 1st Respondent
Union denies all the allegations and averments made by the
Petitioner/Management in their claim statement as false and incorrect except
which are specifically admitted here under by the 1st Respondent and put the
same to the strict proof of the Petitioner/Management.
2. The Petitioner
Management namely the Neyveli Lignite Corporation is wholly owned by the
Government of India and it is a ‘company’ within the meaning of Section 617 of
the Companies Act.
3. The 1st Respondent
Union, namely NLC Workers Solidarity Union is a trade union registered under
the Trade Unions Act, 1926 and its registration Number is 26/SAV. The 1st Respondent Union is
affiliated to Democratic Trade Union Centre.
The 1st Respondent Union has been espousing the cause and
welfare of the workmen who belong to unionized staff and labour category employees.
The members of the 1st Respondent Union are employed both in
production units as well as in the administrative and corporate offices.
4. The 1st Respondent
Union states that it was one of the Unions which fought for election of
recognized representative unions through secret ballot and only due to the
efforts taken by the 1st Respondent Union, now the
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bargaining agent of the workmen is/are democratically elected by
holding elections through secret ballot.
Similarly, only because of the efforts taken by the 1st
Respondent Union, the periodicity for conducting election to elect the
recognized/representative union has been fixed.
The 1st Respondent Union has filed various cases not only to
protect the interest of the workmen but also the interest of the Management.
5. The Petitioner
Management is involved in mining of lignite and generation of electricity. It has got three mines and three thermal
power stations. Apart from the mines and
thermal power stations, it has got various service units. Further, it has also got Corporate and
Administrative Office including the office of Neyveli Township Administration
providing residential quarters and related services to the permanent Employees employed by them.
6. The mines and thermal
power stations are called production units and the workmen and employees
employed in those production units are given direct incentive. They are paid incentive called Quarterly
Plant Performance Reward, shortly QPPR, at the rate of Rs.7,200 per
quarter.
7. So far as the workmen
and the employees employed in the service units are given Semi-Direct incentive
and they are paid at the rate of Rs.5,100 per quarter.
8. Similarly, the workmen
and employees other than the executives working
in offices are given indirect incentive at the rate of Rs.4735 per
quarter.
9. So far as the workmen
employed in the production units, the workmen have to report for work in
advance earlier to the starting of their respective shift timings. Similarly, they have to leave later than the
closing time of their respective shifts.
Originally the workmen and the employees working in these production
units were paid extra/over time wages for reporting earlier and leaving later
than the scheduled timings. Later the
payment of extra and overtime wages were sought to be stopped by the
Management. This was opposed by the
workmen and the staff. Therefore, the
Management came forward to extend the benefit of compensatory off in lieu of
extra/overtime wages.
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10. So far as the workmen
directly employed in the operation work both in the mines and the thermal power
stations, three days compensatory off was
provided in lieu of extra/overtime wages per month. So far as the workmen who were involved in the maintenance work in the mines and the thermal power stations, they were extended with two days compensatory off in lieu of extra/overtime wages. The benefit of compensatory off has been in vogue for more than 20 years.
provided in lieu of extra/overtime wages per month. So far as the workmen who were involved in the maintenance work in the mines and the thermal power stations, they were extended with two days compensatory off in lieu of extra/overtime wages. The benefit of compensatory off has been in vogue for more than 20 years.
11. The compensatory off
has to be availed in each month and if the compensatory off available in a
particular month is not availed actually, it will get lapsed and it cannot be
carried over to the next month and also it cannot be en-cashed.
12. Apart from the benefit
of compensatory off as stated above, the workmen employed in the mines and the
thermal power stations both in operational work and maintenance work are
enjoying the canteen facilities and they are getting food items at a very
meager and concessional rates.
13. All the workmen and the
employees working in the production units and the service units are working in
five shifts in certain areas and two shifts in certain other areas. Among the five shifts, three shifts would be
on rotation. The remaining two shifts
would be regular first shift and the general shift. Similarly, in the areas working with two
shifts also the workmen and the employees would work on rotation.
14. The workmen, employees
and the executives working in the places and areas other than the production
units and service units, namely the Corporate Office and other Administrative
Offices, they have been working between 10 am to 5 pm.
15. The Executives both who
are working in the Corporate Office and Administrative Office and also in the
production units are getting incentive namely the Performance Related Pay,
shortly PRP and they are getting PRP incentive on annual basis at the rate of
5% of the profit, 40% to 200% based on their scale of pay and their rating of
performance.
16. The PRP incentive payable to the Executives
namely the Officers is many times higher than the QPPR and PLI. Further, though the non-executives who are
working in all the three units namely Production Units, Service Units and the
Corporate/Administrative Office are also getting Productivity Linked Incentive
shortly PLI which is commonly known as bonus,
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it is a fixed
amount and all the workmen and employees covered by PLI Scheme would get an amount
of Rs.21,800 per annum. However, even
both QPPR and PLI are added the total among being received by the
non-executives namely the workmen and the staff would be only around 50,000 per
annum and on the other hand, the PRP payable to the Executives will be at least
two times more than the total amount of QPPR + PLI being received by workmen
and staff. Further, the executives at
the higher level are getting PRP ranging from Rs.6 Lakhs to 7 Lakhs per annum.
17. When the Executives
working in the Corporate and Administrative Office are getting more benefits
namely a large amount under PRP Scheme, though the non-executive staff working
in the Corporate Office and Administrative Offices have been working with the
same working hours namely between 10 am and 5 pm were not extended with similar
incentive as payable to the executives.
Similarly, the staff working in the Corporate and Administrative Offices
are not extended with the same or similar benefits as available to the workmen
and staff employed in the production units.
The staff working in the Corporate and Administrative Offices are not
given similar canteen facility as available to the workmen and staff employed
in the production units. Similarly, they
are not extended with the compensatory off as available to the workmen and
staff who are employed in the production units.
18. The workmen and staff
employed in the production units would be normally and always called upon for
work even on the national and festival holidays, because the work in the
production units namely in the mines and the thermal power stations, the work
is a continuous process and it has to work without any stoppage or break. Therefore, when they report for work on
national and festival holidays, apart from getting holiday wage, they will also
be given extra wages for working on those national and festival holidays.
19. However, the same or
similar benefit as stated above is not available to the staff employed in the
Corporate and Administrative Offices.
That was why they have been extended with 18 days of national, festival,
local holidays and restricted holidays.
On those 18 holidays, the staff employed in
the Corporate and Administrative Office will not be called upon to
work and they have to necessarily avail those leave.
20. Therefore, if a
comparison is made between the workmen and the staff employed in the production
units and the staff employed in the Corporate
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and Administrative Offices, the staff employed in the Corporate and
Administrative Office would be getting wages for 18 days of national festival
and local holidays. On the other hand,
though the workmen and staff are not extended with 18 holidays on account of
national festival and local holidays, they would be getting wages for 18 days,
that is, wages for 9 holidays and also overtime wages for 9 holidays.
21. So far as the workmen
and staff who were working three rotation shifts and two rotation shifts
respectively they have been working on 6 days/3 relay shift pattern. That is, a workman who is put in the first
shift, will work in the said shift for 6 days.
After availing one day weekly off, he will be moved to third shift and
in the third shift he will work for 6 days.
Again after availing of 1 day weekly off, he will be moved to the second
shift and in the second shift he will work for 6 days. Again after availing 1 day weekly off, he
will be moved to first shift. Similarly,
4 relays 2 days shift pattern and the workmen and staff who have been working
in two rotation shifts will work for 6 days in the first shift and after
availing 1 day weekly off, they will work in the second shift for 6 days. After availing 1 day weekly off, again they
will work in the first shift.
22. The above shift
working pattern has been in vogue and practice from the date of inception of
the Petitioner Management. Similarly,
the office/working hours for both the staff and the executives in the Corporate
and Administrative Offices is between 10 am and 5 pm and it was also in vogue
from the date of inception.
23. In the above
circumstances, the Petitioner Management without any reason or justification
wanted to change the above conditions of service and issued a notice under
Section 9 (A) of the I.D. Act proposing to make changes in the above service
conditions without taking the workmen into confidence and also without holding
any negotiations and also without reaching any settlement.
24. Therefore, the workmen
and staff who are likely to be affected by the proposed change made objection
through their respective unions and requested the Petitioner Management to
withdraw their notice under Section 9 (A) of the I.D. Act and not to make any
change as proposed in their notice.
25. However, the Petitioner
Management was not willing to accept the objections made by the workmen and
they were adamant in implementing the changes proposed by them in their
notice. Therefore, having left with no
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other option the workmen and staff who were likely to be affected by
the proposed changes, raised Industrial Disputes through their respective
unions to which they belong to.
26. The Assistant Labour
Commissioner (Central) issued notice of conciliation to the Management and the
Unions and held conciliation proceedings on various dates. During conciliation, so far as the change
proposed by them in respect of the shift working and pattern, the Management
informed the Conciliation Officer that they were not going to implement the
same and that they have kept the notice in so far as the shift working and the
pattern in abeyance. Therefore, except
this issue, the conciliation proceedings were continued on other issues. However, since there was no settlement
between the parties, the Conciliation Officer concluded his conciliation
meeting and recorded the failure of conciliation and informed the parties that
he would send the failure report to the Government of India.
27. Taking advantage of the
conclusion of the conciliation meeting and also proceeding as if the
conciliation proceedings came to an end, the Petitioner Management sought to
implement the changes proposed by them in their notice under Section 9 (A) of
the I.D. Act.
28. Since mere conclusion
of the conciliation meeting will not amount to conclusion of the conciliation
proceedings and since the conciliation proceedings will conclude only when the
failure report is received by the Government and since the Management cannot
effect and implement the proposed change once a dispute is raised over the
proposed changes unless and until the matter was either settled or adjudicated,
the 1st Respondent Union filed a Complaint under Section 33 and pointed out
that seeking to implement the changes without seeking prior permission during
the pendency of the conciliation proceedings would amount to contravention of
Section 33 and hence action should be taken against the Petitioner Management
for such contravention.
29. On receipt of the
failure report, the Government of India by its order dated 20.03.2012 referred
the following issue for adjudication:
“Whether the action
of the Management of Neyveli Lignite Corporation Ltd., in proposing the change
of increase in working hours in Administrative
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Office of NLC Ltd. is justified or not? To what relief the concerned workmen are
entitled to?”
30. Though notice under Section
9 (A) was issued on four issues namely withdrawal of compensatory off,
reduction of national and festival holidays, increase in working hours to the
staff working in the administrative offices and in the shift pattern and
working, the reference was issued only with regard to the increase in working
hours to the staff working in the administrative office. Therefore, the 1st Respondent Union sent a
representation to the Government to refer the remaining issues also for
adjudication and also filed a memo in this regard before this Hon’ble
Tribunal. Further, since the reference
made by the Government was with regard to the justification of the change
proposed by the Petitioner Management in increasing the working hours to the
staff working in the administrative office, the 1st Respondent Union also filed
another memo stating that the Petitioner Management alone has to first file
their Claim Statement. Though the said
memo was returned by this Hon’ble Tribunal directing the 1st Respondent to file
the same in the form of a Petition, the Petitioner Management themselves have
filed their statement of claim on 28.11.2012.
31. Though the Petitioner
Management proposed for change in the working hours for the staff employed in
the Corporate and Administrative Offices and wanted to change the working hours
between 10 am to 5 pm to 9 am to 5.30 pm, the same was not implemented by the
Petitioner Management in so far as the staff employed in the Secretariats of
the Chairman and all other Directors of the Petitioner Management. Therefore, while stating that they have
issued the notice under Section 9 (A) to bring uniformity in the working hours,
the Petitioner Management cannot apply different yardstick from one section to another. Therefore, such an action of the Petitioner
Management is arbitrary, unjust, unreasonable and discriminatory.
32. Further, by the
proposed change, the earlier working hours would not only get changed but also
it would get increased from 7 hours to 8 ½ hours.
33. While the working hours
fixed for the entire set of workmen and staff employed in the entire
corporation area is only 8 hours including the lunch/tea break, the Petitioner
Management cannot fix 8 ½ hours as working hours only for the staff employed in
the Corporate and Administrative Office that too leaving a section of staff who
are working in the Secretariat of the Chairman and the Directors and when the
working hours for those staff
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continue to remain the same, that is, 7 hours per day even as on
date.
Further, due to the proposed change in the working hours, the staff who are working in the Corporate and the Administrative Offices of the Petitioner Management would be put to great prejudice, hardship and a lot of discomfiture, that too without compensating them in any manner. That is, the Management has not come forward to compensate them in any manner for the increase in working hours by one hour and 30 minutes than the working hours of seven hours per day which was prevailing prior to the issuance of notice under Section 9 (A) of the I.D. Act.
Further, due to the proposed change in the working hours, the staff who are working in the Corporate and the Administrative Offices of the Petitioner Management would be put to great prejudice, hardship and a lot of discomfiture, that too without compensating them in any manner. That is, the Management has not come forward to compensate them in any manner for the increase in working hours by one hour and 30 minutes than the working hours of seven hours per day which was prevailing prior to the issuance of notice under Section 9 (A) of the I.D. Act.
34. The Management
therefore cannot make any comparison with others only in respect of the working
hours particularly when the working hours for the workmen and staff in other
units namely in the production and service units is only 8 hours per day and
also when they are getting more benefits such as subsidized canteen facility
and compensatory off and when the workmen and staff are getting various other
allowances such as risk allowance, hazard allowance, hot seat relieving
allowance, night shift allowance, etc.
Similarly, when the staff working in the Secretariats of the Chairman
and the Directors are getting the same pay and allowance and other benefits
same and similar to the staff working in the Corporate and Administrative
Offices with 7 hours per day as working hours, for the same pay and allowances,
the staff working in the Corporate and Administrative Offices alone can be
asked for 8 ½ hours, that too with the very same pay, allowances and other
benefits. Therefore, the proposed change
and the increase in the working hours to the staff in the Corporate and
Administrative Offices is totally unjustified and unreasonable.
35. If at all the
Petitioner Management wants to change and increase the working hours to the
staff employed in the Corporate and Administrative Offices, those staff shall
be extended with the same and similar benefits as made available to the workmen
and staff employed in the production units.
That is, these staff should be extended with compensatory off, direct
QPPR, PLI, extra and double wages for the work on national and festival
holidays, subsidized canteen facilities, etc.
Unless these benefits are extended to the staff concerned and uniformity
is brought on par with the workmen and staff employed in the production units
on other conditions of service, the Petitioner Management cannot increase the
working hours alone and keep a disparity between them and the workmen and staff
employed in the production areas and units.
There is no logic or justification for the Management to bring
uniformity in working hours alone, when there is no
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uniformity in other conditions of service. In fact, if the proposed change is given
effect to and implemented, there will not be uniformity in working hours
because the working hours of the staff employed in the Corporate and
Administrative Offices will be 30 minutes more than the working hours fixed for
the workmen and staff employed in the production units. Further, the Petitioner Management has not come
with any proposal regarding compensation to the staff employed in the Corporate
and Administrative Offices in reci pro quo to the increase of working hours by
1 hour and 30 minutes.
36. As stated above the
compensatory off is provided to the workmen and staff employed in the
production units, that is, who are involved in operational and maintenance work
to compensate their extra work beyond and over and above the working hours
fixed for them and also in lieu of overtime/ double wages for the extra/overtime
work. Therefore, there is no reason or
justification to withdraw the compensatory off when the reason to extend the
benefit of compensatory off still continue to exist.
37. Similarly as stated
above, the staff employed in Corporate and Administrative Offices are getting
18 days national, festival and local/restricted holidays, on par with the staff
employed in similar industries and region.
In all other industries belonging to the Central Government and also
situated in the same region, those staff continue to enjoy the same number of
holidays. Therefore, there is no reason
or justification to reduce the number of holidays. Further, though the workmen employed in the
production units are enjoying only 9 national and festival holidays, they have
to report for work on those holidays and they are paid one day extra wages
apart from a paid holiday. Therefore,
they are paid 18 days wages for 9 national and festival holidays. But no such benefits are available and being
extended to the staff employed in the Corporate and Administrative
Offices. Therefore, that cannot be any
comparison and the holidays being now enjoyed by the staff cannot therefore be
reduced and there is no justification for such proposed reduction in number of
holidays.
38. In fact, the issues
with regard to the proposal regarding change in the compensatory off and
holidays have not been referred for adjudication. Therefore, the management cannot insist for
such changes unless those issues are also referred for adjudication and unless
those issues are adjudicated by this Hon’ble Tribunal.
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39. To the knowledge of and
the information gathered and received by the 1st Respondent Union, the
recognized unions which were in office during the wage negotiation for the
period from 01.01.2007 to 31.12.2011 have not singed the minutes and also they
have not agreed to bring changes in the working hours, compensatory off,
holidays and in shift working and pattern as alleged by the Petitioner
Management. In any event, when the said paragraph
has been deleted from the minutes and also when the said paragraph was not
included in the settlement, the Petitioner Management cannot take advantage of
the same. Therefore and that was why the
Petitioner Management has issued a notice under Section 9 (A) since there was
no settlement on the issues.
40. The above issues are
sought to be raked up only because of the dispute and difference between the
officers working in the production units and in the Corporate and
Administrative Offices with regard to extension of same PRP to the officers
working in the Corporate and Administrative Offices though their working hours
were less than the working hours of the officers working in the production
units and also since the nature of work of the officers working in the
production units are more hazardous and strainful than the work of the officers
working in the Corporate and Administrative Offices. Therefore, only in order to resolve the said
dispute, the Management wanted to change the working hours and holidays of the
Officers working in the Corporate and Administrative Offices on par with the
officers working in production units.
Therefore, based on this reason, the working hours of the staffs cannot
be increased and also their holidays cannot be reduced.
41. The Petitioner
Management itself had admitted in its Claim Statement that the above stated
benefits have been extended to the staff and the workmen for historical reasons
and the same have been in vogue continuously from the inception. Thus, it has become a custom and usage. The Petitioner Management was able to achieve
initially a Mini-Ratna status and later as Nava-Ratna status only because of
the best and optimum performance of the staff and the workmen. Similarly, only because of the hard and
sincere work and efforts put forth by the workmen and staff to the maximum and
optimum level, the Petitioner Management is able to achieve its high
productivity and huge profit every year and also it is able to expand its
activities, in spite of the shortage of man power and in spite of non-filling
up of vacancies in the post belonging to workmen and staff category other
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than the posts belonging to officers. The Petitioner Management has not given any
extravagant, concessions or privileges.
The above privileges and benefits were extended only to motivate the
workmen and staff and to increase the productivity and profit and hence it is
not a wasteful practice as alleged by the Petitioner Management. Therefore, in order to sustain the productivity,
profit, etc., the already existing benefits shall be continued and if those
benefits are discontinued, it would not only affect the morale of the workmen
and the staff but also it will affect and jeopardize the work culture and
discipline due to different conditions of service and also it will
detrimentally affect the interest of the workmen as well as the Management.
42. The 1st Respondent Union crave leave of this Hon’ble Tribunal to add, amend
or alter this Written Statement in future if necessary and required.
It is therefore
prayed that this Hon’ble Tribunal may be pleased to pass an award holding that
the action of the Petitioner Management in proposing changes in the working
hours by increasing the same to the staff in the Corporate/Administrative
Office as unjustified and consequently direct the Petitioner Management to
continue all the existing benefits, namely the working hours, the holidays and
compensatory off as was prevailing prior to the issuance of notice under
Section 9 (A) of the I.D. Act and thus render justice.
Dated at Chennai this
the 25th day of February
2013.
1ST RESPONDENT UNION
VERIFICATION
I, R.Ravichandran,
S/o.Rajulu, aged about 50, residing at A-2, Screw Lane, Block-11, Neyveli-607
803 and General Secretary of the 1st
Respondent Union do hereby verify and declare on this 25th day of
February, 2013 in Chennai that what are all stated in the above paragraphs are
true and correct to my knowledge, belief and information.
R. RAVICHANDRAN
