LEGAL OPTION ON SRI BASAVARAJ. S. GHALE
Sri. Basavaraj S. Ghale
aged 54 years
Son of Sri. Siddannappa Ghale.
14th ‘A’ Cross, 8th Main Road,
BTM 2nd Stage
Bengaluru 560 076. . . . FIRST PARTY
The Management of
Karnataka Antibiotics and Pharmaceuticals Ltd.,
1st Block, Rajajinagar
Bengaluru 560 010
By its Managing Director. . . . SECOND PARTY
The First party above named respectfully submits as under :
01. The Central Government in exercise of powers conferred by Clause (d) of Sub-section-1 and Sub-section (2)(a) of Section 10 of the Industrial Disputes Act, 1947 (hereinafter called the Act) has referred the above dispute comprising of following points of dispute to this Hon’ble Tribunal for industrial adjudication. The schedule reads as under :
The Schedule - by Central Labour ministry
The is opinion obtained against Gravience raised after illegal settlement of account.
Whether the action of the Karnataka Antibiotics and Pharmaceuticals Limited (KAPL), Nirman Bhavan, Dr. Rajkumar Road, 1st Block, Rajajingar, Bengaluru 560 010, is justified in considering the absenteeism of Sh. Basavaraj S. Ghale, Assistant General Manager (Engineer) of KAPL posted at Guwahati as voluntarily abandonment of service and settling his final accounts without conducting domestic enquiry in accordance with Conduct, Discipline and Appeal Rules of the Company? If not, what relief the complainant Sh. Basavaraj S. Ghale is entitled to from the management of KAPL, Nirman Bhawan, Dr. Rajkumar Road, 1st Block, Rajajinagar, Bengaluru 560010
02. It is submitted that the first party was appointed on 23.10.2007 as Asst. General Manager – E&P, with employment number I-1476 the second party management. It is submitted that the second party management issue notification calling for applications to fill up several vacancies including that of Asst. General Manager-E&P. It is submitted that the first party is a graduate in Bachelor of Engineering (Mechanical). Earlier to his appointment in the second party management the first party had worked at several private establishments. Considering his qualification and experience the first party workman was selected for the post of Asst. General Manager by the second party management. It is submitted that after satisfactory completion period of probation the services of the first party stood confirmed. Ever since his appointment the first party was discharging his duties with out any black remarks in CPSU rule book as per the work assignment made by the second party management.
03. It is submitted that by transfer order dated 18.01.2013 first party was transferred from Project department to Engineering Stores department and he was directed to report to Mr. S.N. Ravindranath, Deputy General Manager-Materials. In pursuance of the transfer order the first party reported in the Engineering Stores department and after some deliberate delay time, he was issued to the said post As per the official instruction the first party was discharging his duties in the Engineering Stores department and his nature of duties and the responsibilities entrusted were of such a nature that the first party had no managerial or supervisory powers. His main duties were receipt and issue of materials without any assistance and forced accept and work as a labour under ID act. After the first party discharged duties in the Engineering Stores department with out any adverse remarks or misconducts in the span of 9 months, as a forced labour under ID act.
Again with in one year he was transferred from Engineering Stores department to Marketing department and posted at Guwahati with effect from 17.10.2013 as per Transfer order dated 10.10.2013. Since no reasons were assigned for abruptly transferring the first party from Bangalore to Guwahati, the first party submitted representation on 19.10.2013 requesting the management to cancel the order of transfer. However, there was no response from the management and in the circumstances the first party challenged the transfer order by filing writ petition before the Hon’ble High Court of Karnataka in W.P. No. 48265/2013 (S-Tr.) The Hon’ble High Court by order dated 24.10.2013 disposed of the writ petition directing the management to expeditiously consider the representation and in any event within two weeks from the date of receipt of copy of the order. It is submitted that the second party management rejected the representation submitted by the first party. Left with no other alternative the first party reported to Mr. M.N. Vijaya Kumar, General Manager, Marketing department, Head Office, Bangalore, as indicated in the transfer order dated 10.10.2013. In fact the first party reported on 26.12.2013 after sanctioning medical leaves till 25-12-13 by GM HRD not reporting officer Sri Mr. M.N.Vijaykumar,demoralizing first party The first party was directed by Sri. M.N Vijaya Kumar to go and report for duties at Guwahati as per the transfer order deliberately keeping first party in dark with out giving reporting office and CPSE infrastructure at Guwathi, It is submitted that after about few days work in Bangalore the first party was issued inter departmental note dated 03.01.2014 indicating the role/responsibilities of the first party on his reporting for duty at Guwahati and also his entitlements,with depromated pos from Asst General Manager to Manager and reduced salary with out any misconduct by first party. This inter office departmental note was issued by Sri.M.N. Vijaya Kumar, General Manager-Marketing. The first party reported for duties on 07.01.2014. It is submitted that in Guwahati there is no office of the second party management and that the management had not provided any accommodation for stay of the first party. Hence, the first party was constrained to stay in the hotel and started working from hotel only. He was required to interact with his official superiors at Bangalore head office through emails. He was also required to send daily report to the General Manager-Marketing. He was required to generate marketing for the business of the second party management by contacting various Government institutions located all over 7 States of North-East India. For this purpose the first party was required to travel extensively as per the tour programme given time to time by the General Manager-Marketing. At this stage, it is required to be stated that being aggrieved by the order passed in the writ petition and the duties entrusted to him on his posting to Guwahati, the first party instructed his Advocate to challenge the order passed by the learned single Judge by filing writ appeal. One more strong reason for filing the writ appeal is that the nature of duties entrusted to him did amount to his demotion and humiliation with out proven misconduct to work in Guwahati to work there without any assistance, infrastructure, future committed infrastructure. However, the Hon’ble Division Bench dismissed the writ appeal holding that under Clause 15 of the letter dated 23.10.2007 the first party services are liable to be transferred to company’s establishment in any part of India or abroad and as such the Hon’ble Division Bench held that there is no error in the order passed in the writ petition. It is submitted that since no accommodation was provided in Guwahati for the stay of the first party he was required to stay in the hotel which involved considerable expenditure. It is submitted that the first party was not in a position to shift his family to Guwahati due to children education etc However, with utmost difficulty the first party was discharging his duties as entrusted by the General Manager-Marketing. When things stood the first party received one more inter departmental dated 31.07.2014 from the General Manager-Marketing indicating change of roles/ responsibilities/entitlement. The work as sales promotion employee with no reporting staff and denied any future company infrastructure in writing, the roles comes under ID act, now entrusted was to directing the first party to visit minimum 10 doctors per day and promote the company’s products in the city of Guwahati. He was also required to generate business as against the month wise target fixed by the company. In fact the first party was corresponding with the management to transfer him back to Bangalore and assign him the original duties. In his representations sent through email he was highlighting the difficulties being faced by him without any office accommodation, any other infrastructure, etc., Since there was reduction in his salary he was also requesting the management that he is being subjected to financial difficulties apart from humiliation on account of virtually demoting him from the post of Asst. General Manager to that of a Marketing person and as a sales promotion employee. However, his request was not considered. There was no reply at all to any of the representations submitted by the first party.
04. It is submitted that with utmost difficulties faced by him he was discharging his duties. It submitted that during March 2015 one Mr. Adhikari, Regional sales Manager from Kolkata Branch of the second party management visited Guwahati to cross check the work being discharged by the first party. He prepared minutes of meeting making false accusations that the first party has not met particular doctors at the hospital on a particular day and he was forced to sign the minutes of meeting. Though first party resisted that he would not sign the minutes of meeting since the minutes were false recorded he was threatened that in case he fails to sign the document he will have to face the order of termination. The first party did not sign the minutes of meeting since the document was full of factual errors and mistakes. Since there was also further threat to the first party workman in several ways, he left Guwahati on 26.03.2015 by communicating his decision through email to the Bangalore office. In the email the first party narrated the reasons for leaving Guwahati. It's evedent that management failed to charge sheet, if any misconducts from first party. It's is clear criminal conspiracy of set senior employees of the CPSE and forced labour, reduced wages, confined one city with CPSE power and funds attrac IPC-374 clauses. When things stood thus, the Petitioner was informed that on account of absence from duty that his absence is treated as voluntary abandonment of service. In other words, the management terminated the services of the first party. In this connection it is submitted that on 17.11.2015 in response to the representation submitted by the firt party dated 11.09.2015, the first party was informed that his application dated 11.09.2015 seeking voluntary retirement from service under the Voluntary Retirement Scheme notified on 09.09.2015 mandates that the post held by him will have to be surrendered in case his application is to be accepted. The management stated in the said letter that since the post held by him cannot be surrendered and the same is required for the activities of the department his application is rejected. CPSU deliberately forcing to do inferior work against the appointment letter. In the same letter the first party was further informed that since the first party has not reported for his duties at Guwahati with in 7 days with inability to reach Guwahati from Bangalore for doing infirior forced with reduced salary etc, nor sent any reply to the letter dated 24.08.2015, the management would proceed to treat his absence from duty as voluntary abandonment of service from the company. This was followed by the letter of termination holding that the first party has voluntarily abandoned his services in as much s the fist party did not report for duties at Guwahati headquarters with 7 days after rejection of VRS, though it was difficult to reach Guwahati in short notice, it's seems to deliberate intentions of CPSE, It is under these circumstances the first party approached Centralized Public Grievance Redress and Monitoring System, Dept. of Administrative Reforms and Public Grievances. The petition was treated as closed on 03.08.2016 and the same was forwarded to the Labour Commissioner, Bangalore, for necessary action as it falls under the State jurisdiction. The first party was advised to pursue the matter with the Labour Commissioner, Bangalore, for addressing his grievance. It is thereafter on 04.10.2016 the Chief Labour Commissioner (Central), Bangalore, issued a letter informing the first party that on receiving reply from the management it is seen that the employer has paid gratuity and if there is any further grievance on payment of gratuity he may approach the Controlling Authority. However, with regard to other issues on industrial dispute the first party was informed that he may approach the appropriate Court as he is not a ”workman” under the I.D. Act, 1947. The letter so issued by the Central Labour Department being illegal and arbitrary, the first party took up the issue before the Deputy Chief Labour Commissioner (Central), Guwahati, who forward the grievance petition to the Asst Labour Commissioner (C), Guwahati, for further action. The proceedings were held before the ALC(C), Guwahati. Before the said Authority even though management contended that the first party is not a “workman” under the I.D. Act, and on rejoinder filed by the first party the Authority held that stand taken by the employer cannot be accepted and since there is no amicable settlement of the dispute a failure report was sent to the Central Government. Accordingly, the conciliation proceedings concluded on 20.03.2017 and thereafter the Govt. of India, vide order dated 29.08.2017 referred after evaluating the dispute to this Hon’ble Tribunal for industrial adjudication. Hence, the claim statement.
05. Having regard to the facts stated above and the nature of duties entrusted to the first party by the second party management and the first party having performed such duties it is manifestly clear that the first party had no managerial or supervisory powers while he was discharging duties at Guwahati before his service came to be terminated by the second party management under the guise of ‘voluntary abandonment of service’., It is therefore submitted that the first party satisfies the definition of “workman” under the Act. He had no managerial or supervisory powers. His work was totally clerical in nature. He was required to perform the duties entrusted to him by himself without any assistance from any one. The management did not provide any basic infrastructure while he was posted to work in Guwahati. In that view of the matter the work performed by the first party clearly proves beyond doubt that he is a “workman” under the Act. It is not in dispute that he was also entrusted with the work of meeting the doctors for the purpose of marketing of the products of the second party management. Admittedly, the second party being a pharmaceutical company the nature of duties entrusted to the first party is nothing but sales promotion. On this ground also the first party is a workman under the Act and therefore the dispute is maintainable.
06. It is further submitted that the second party management terminated the service of the first party under the guise of voluntary abandonment of service. Admittedly, the second party did not hold any enquiry by issuing charge sheet alleging unauthorized absence from duty. The action of the second party management is totally in violation of the rules of natural justice. The first party has been subjected to all sorts of humiliation by transferring him to Guwahati without any requirement of his services at Guwahati. He was not provide any basic amenities to enable him to discharge whatever duties entrusted to him. There was no office accommodation, no residential quarters, no any other infrastructure such as, providing support staff etc., It is, therefore, submitted that the action of the second party management is a clear case of unfair labour practice and victimization as defined under Section 2(ra) read with Fifth Schedule to the Act. Hence, the action of the management is unjust and illegal.
07. It is further submitted that the action of the management in treating the service of the first party as having voluntary abandonment of services is a clear case of termination which is otherwise unjustified. In other words the action of the second party amounts to retrenchment as defined under Section 2(oo) of the Act. Admittedly, the second party management employs hundreds of workmen. In that view of the matter it is a clear case of violation of the mandatory provisions of the Act and hence, the order of termination is void ab initio and illegal.
08. It is submitted that the first party did not ask for settlement of terminal benefits but the management forced him by remitting the amount by way of cheque. Hence, it cannot be contended that the first party has received all terminal benefits from the employer and therefore, the dispute is not maintainable.
09. In any view of the matter the action of the management is arbitrary, illegal and unjustified. On account of illegal action on the part of the second party management the first party has lost his livelihood and he is not gainfully employed.
10. The above all illustrated illegal, barberic, inhuman, decisions against article - 23 and CDA rules of CPSE, are taken by Sri K. M.Prasad, managing director and has misused the government of India power, money for his benefits. Deliberately managing director has instructed to reject the VRS application and forced compulsory infirior labour work.if it is acceptable in legal terms then all female employees of company should accept the harassment.
He also advised not issue the service certificate along with settlement of account to deliberately spoil my future 10 yrs carrier and family without proven misconduct. I may finally term it as less labour case and more of a criminal conspiracy in name administrative procedures.
GhaleBS 14th April 2018 From India, Mumbai