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LA GAZETTE DE L’ETAT

[24 May 2011

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 99/AIL/Lab./J/2011, dated 10th May 2011)

NOTIFICATION

Whereas, the Award in I.D. No. 11/2006, dated 9-2-2011

of the Labour Court, Karaikal in respect of the industrial

dispute between the management of M/s. Pondicherry

Power Corporation Limited, Karaikal and PASIC,

Pondicherry and its worker Tmt. K. Madharasi over

non-employment has been received;

Now, therefore, in exercise of the powers conferred by

sub-section (1) of section 17 of the Industrial Disputes

Act, 1947 (Central Act XIV of 1947) read with the

notification issued in Labour Department’s G. O. Ms.

No.20/91/Lab./L, dated 23-5-1991, it is hereby directed

by Secretary to Government (Labour) that the said

Award shall be published in the official gazette,

Puducherry.

(By order)

N. APPA RAO,

Under Secretary to Government (Labour).

————

BEFORE THE LABOUR COURT, KARAIKAL

Present : Tmt. R. MARGARET ROSALINE, M.L.,

Presiding Officer, District Judge.

Wednesday, the 9th day of February 2011

I.D. No. 11/2006

K. Madharasi,

26, Madha Koil Street,

Polagam, T.R. Pattinam,

Karaikal.

. . Petitioner

Versus

1. The Executive Engineer ( Mech),

Pondicherry Power Corporation

Limited, T.R. Pattinam, Karaikal.

2. The Managing Director,

Pondicherry Agri Service and

Industries Corporation Limited,

Thattanchavady, Pondicherry. . . Respondent

This petition coming on 4-1-2011 for final hearing

before me in the presence of Thiru A. Ahmed Ansari,

advocate for the petitioner, Thiru R. Vetriselvan,

advocate for the 1st respondent, and Thiru B. Mohandoss,

advocate for the 2nd respondent, upon hearing both

sides and perusing the case records and having stood

over for consideration till this day, this court passed

the following :

AWARD

This is a reference under the Industrial Disputes

Act, 1947 regarding the dispute within the management

of M/s. Pondicherry Power Corporation Limited, Karaikal

and PASIC, Pondicherry and its worker Tmt. K. Madharasi,

over her non-employment in G.O. Rt. No.86/2006/Lab./

AIL/J, dated 5-6-2006.

The following issues are found in the Annexure:

1. Whether t h e n o n - e m p l o y m e n t o f

T m t . K . M a d h a r a s i b y t h e ma n a g e m e n t o f

M/s. Pondicherry Agro Services and Industries

Corporation Limited (PASIC), Pondicherry is justified

or not?

2. To what relief, she is entitled to?

3. To compute the relief, if any, awarded in terms

of money, if it can be so computed?

2. The petitioner has filed this claim statement

with the following averments:

The petitioner was recruited as a gardener in order

to set up a green belt installation in M/s. Pondicherry

Power Corporataion Limited, during 1999 by

PASIC, Pondicherry. She was appointed by the 2nd

respondent to work with the 1st respondent. On being

appointed so, she was paid ` 45 per day. The

petitioner is a student in Diploma of Teacher

Training and was pursuing computer education.

The petitioner was in the pay roll of the second

respondent. She was also selected among the

seven other female workers as gardener. The

petitioner and her colleagues often faced sexual

harassment by the Environmental Engineer one

Saravanan. She was also given oral instructions to

perform her duties in the staff quarters. With the

help of the intervention of the local politicians, the

workers enable themselves to live and work with

dignity. The petitioner was continuously in

service of the second respondent till 2003. During

June 2000 the petitioner was permitted to have a

substitute for her as she had to attend computer

classes. Except half a day leave on Sunday, she

worked as a gardener on all the days in a week.

When she went to attend personal contact

programme in Annamalai University for 46 days

in the month of July 2004 she was permitted to

have a badli worker. She was paid salary on

consolidated monthly basis with Deepavali

bonus of ` 1,300 every year. When the petitioner came

after a short leave in the month of August 2003,

the supervisor one Jayaraj used filthy language

against her and prevented her from doing work. The

petitioner signed in the pay register and

acquaintances on the direction of the said

Saravanan and Jayaraj. The Security Chief one

321

24 May 2011]

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Anand prevented her from going to work, though she

signed in the gate register maintained by the

first respondent. The petitioner is physically

handicapped and the non-employment is not justified.

The petitioner is put to physical and mental torture

as she had not indulged in any activities which will

warrant her illegal termination of service. Hence, she

was compelled to approach the Labour Officer. The

contract between the first and the second respondent

is still in force. Hence, she prayed for the order to

reinstate her into the service of the respondent with

full back wages, monetary benefits, costs and

compensation.

3. The 1st respondent filed its counter statement

with the following averments:

At the outset this respondent denied that the

petitioner was directly recruited as gardener by the

second respondent during 1999 for setting a green

belt installation in the premises of this respondent.

The 2nd respondent was given work order for

maintenance of the green belt for the period from

January 2003 to December 2003. The 2nd respondent

was engaged by this respondent and it is admitted

that the petitioner was an employee of the 2nd

respondent for the contract period of one year.

As per the work order issued by this respondent, the

2nd respondent was entitled to engage 8 labourers

and under that clause, the petitioner was engaged

by the 2nd respondent. The petitioner is not the

employee of this respondent and her name is not in

the roll of this respondent. The claim petition is silent

from whom the petitioner got her salary at the rate of

` 45 per day. The petitioner herself has admitted that

she is in the pay roll of the 2nd respondent. This

respondent denies the allegation against the

Environmental Engineer one Saravanan regarding the

sexual harassment and the instruction to perform her

duties in the staff quarters. Being the student of

Teacher Training Education, it is not necessary for

the petitioner to urge for this employment. No one

has any right to enter into the premises of this

respondent except on permission by the 2nd

respondent administration. This respondent is not

aware of the fact that the petitioner was permitted to

have a substitute and the terms of the conditions

between the petitioner and the second

respondent. The petitioner receipt of consolidated

monthly salary and bonus are all the matters between

the petitioner and the 2nd respondent.This respondent

denied the allegation about the usage of filthy

language by the supervisor Jayaraj and the

prevention of the petitioner from entering into the

premises by the Security Chief Anand under the

instructions of the said Supervisor Jayaraj and

Saravanan. The petitioner had never signed in the

pay roll and acquaintance of this respondent.The

petitioner might have signed in the gate entry

register maintained by this respondent during her

course of employment under the 2nd respondent in

maintaining the green belt in its premises.The

petitioner being employed under the 2nd respondent

had to necessarily sign in the register. The petitioner

was not orally directed not to come to work by this

respondent. This respondent is not the necessary

party to this case and the petitioner ought to have

re-employment against the 2nd respondent alone.

The allegation of maintenance of contract of green

belt is still in force. The contract was ended in

December 2003. From January 2004, the contract was

not with the 2nd respondent. This respondent had

not terminated the service of the petitioner, as she

is not the employee of this respondent.The

conciliation report submitted by the Labour Officer

reveals that the petitioner was engaged casually by

the 2nd respondent as and when required for

attending the maintenance work. From the report

it is evident that the actual industrial dispute is

between the petitioner and the 2nd respondent.

Hence, it prayed for the dismissal of the dispute with

costs.

4. The second respondent filed its counter with the

following averments:

It is admitted that this respondent recruited female

workers as gardeners for setting up a green belt

installation in the first respondent premises. The

petitioner has to prove that she was recruited during

the year 1999 and she was in continuous service of

this respondent until she was terminated orally in the

month of August 2003. The petitioner has made

distorted version of facts suppressing the material

facts. It is true that work order was given by the first

respondent for the period of one year beginning from

January 2003 to December 2003. The petitioner as

well as seven other workers were engaged for the

above contract for a period of one year alone for the

purpose of fulfilling the work order. The petitioner

was appointed purely as casual work woman on

day-to-day basis depending upon the requirements

under the green belt scheme. The petitioner was

never in continuous employment for 240 days. The

petitioner was engaged as daily rated worker and the

workmen were not paid on the days of non-

employment. The petitioner was engaged

intermittently and there was no formal appointment

order issued to the petitioner. The petitioner was

engaged on voucher payments to meet special

contingencies. As the period of one year stipulated

above was over, the first respondent has stopped the

contract. There was no necessity for this respondent

to utilise the service of the petitioner and other

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[24 May 2011

gardeners. The contract was for a fixed period and

the non-renewal of the contract is not retrenchment

as per the provisions of the Industrial Disputes

Act, 1947. The respondent has no knowledge about

the allegations made by the petitioner against the

officials of the first respondent. The allegations

about the employment of badli and the permission

to have substitute when she went to attend the

personal contact programme in Annamalai University

for 46 days are all denied. If the petitioner considered

herself to be a regualar employee, she should have

applied leave on these occasions. Hence, the

petitioner cannot make a claim for reinstatement with

back wages with all attendant benefits like a regular

employee.

5. This respondent has entered into a contract with

the first respondent for maintenance of the garden for

a period starting from 3-3-1999 and ending with

February 2004. The garden maintenance was done by

this respondent directly from 3-3-1999 to 9-1-2002.

Subsequently when the petitioner was engaged she was

serving only on contractual basis for the period from

3-3-1999 to 1-2-2000. Subsequently from 3-2-2000 to

11-4-2001 the petitioner absented herself and did not

report for duty. Then this respondent entrusted the

garden maintenance work of the first respondent to a

sub-contractor namely M/s. N.H. Nursery, Papanasam.

The said sub-contractor engaged the petitioner for

garden maintenance from 10-1-2002 to August 2003 on

contractual basis with inermittent breaks. Even then she

has not reported for duty to M/s. N.H. Nursery. Then

the first respondent entrusted his garden maintenance

work to M/s. Sharan Agro Tech. Services, Mudaliarpet,

Pondicherry-4 from 1-11-2004 to 31-10-2005. The records

maintained by this respondent as well as the first

respondent and M/s. N.H. Nursery make it crystal clear

that the petitioner was engaged by this respondent from

3-3-1999 to 1-2-2000 alone purely on contractual basis

as a daily rated casual and she had no right to claim

continuous employment. Subsequently, the petitioner

along with other employees were engaged by the

contractors appointed by the first respondent from time

to time. In the absence of relationship of employer and

employee between the respondent and the petitioner,

there is no obligation on the part of this respondent to

provide work or pay wages to the petitioner. There is

no question of termination of employment of the

petitioner by this respondent, as there is no relationship

as that of employer and employee. Hence it prayed for

the dismissal of the petition with costs.

6. On these pleadings :

The petitioner examined herself as P.W.1 and one

another witness as P.W.2 and marked Exs.P1 to P4. On

the side of the respondents, the first respondent

examined one witness as R.W.1 and the Managing

Director of the second respondent examined himself as

R.W.2 and one another witness as R.W.3. The

respondent has chosen to mark Exs. R1 to R17 and

Exs. XI and X2 have been marked through P.W.2.

7. The points for consideration are:

1. Whether the petitioner was under the

employment of the first respondent or the second

respondent?

2. Whether the petitioner has worked for 240 days

as alleged by her in the petition?

3. Whether the non-employment of the petitioner

is justified. If not, what relief the petitioner is

entitled to?

Points No. 1 and 2 :

8. The perusal of the claim petition reveals that the

petitioner has averred that she has been appointed as

a gardener directly by the second respondent to work

with the first respondent on a daily rated salary of `45

per day. Therefore as per her own petition and the

evidence before this court that, the petitioner has

claimed to be a worker under the second respondent

alone on daily rated basis. She would say that she has

been appointed since 1999 till she was denied work i.e.

on 25-8-2003. On the other hand the contention of the

second respondent is that the petitioner was engaged

on contractual basis for a period from 3-3-1999

to 1-2-2000 with intermitted breaks. The second

respondent would further allege that subsequently

from 3-2-2000 to 11-4-2001 the petitioner absented herself

and did not report for duty and subsequently the

garden maintaining work was entrusted to sub-contractor

namely M/s. N. H. Nursery, Papanasam and the said

sub-contractor alone has engaged the petitioner from

10-1-2002 to August 2003 on contractual basis with

intermittent breaks. It would also allege that the

petitioner has not worked continuously for a period of

240 days in a year. Therefore, it is the bounden duty

of the petitioner to prove that she has worked for 240

days in a year prior to her illegal retrenchment under

the second respondent so as to claim the benefits. In

order to substantiate her claim the petitioner has

marked Exs.P1 to P4. The perusal of Ex.P1, a letter

written, to the Hon’ble Chief Minister, Pondicherry,

reveals that she had worked for three years initially

under the second respondent and then she worked

under a sub-contractor namely Thiru Mohamed Sali for

two years. In Ex.P1, the petitioner has admitted that

she used to receive wages only from the said Mohamed

Sali and on the instructions of one Saravanan, the

Environmental Engineer and one Jayaraj, Supervisor of

the garden maintenance she was refused work

from 25-8-2003. Therefore, the petitioner is not in a

position to say that when she was denied work

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on 25-8-2003 she was working under the second

respondent. Her own admission in Ex.P1 reveals that

one Mohamed Sali was a sub-contractor under the

second respondent and she was working only under

him. Even Ex.P1 reveals that she has availed four

days leave from 21-8-2003 to 24-8-2003 after giving

leave letter. However, there is no reference in Ex.P1

to show that she gave leave letter to her employer

namely Thiru Mohamed Sali who is the sub-contractor

of the second respondent. If Mohamed Sali is a

sub-contractor under whom the petitioner has worked,

she ought to have availed leave with the permission of

the said Mohamed Sali and not either from the

Environmental Engineer or the garden supervisor who

were the employees of the first respondent. Even the

failure report namely Ex.P2 reveals that the petitioner

has demanded reinstatement only from the first

respondent namely M/s. Pondicherry Power Corporation

Limited, Karaikal which is totally a wrong representation

made by the petitioner to the Labour Officer. The first

respondent during the enquiry before the Labour Officer

has categorically denied the relationship as that of

employer and employee between itself and the petitioner

herein. Subsequently the second respondent was asked

to appear for the conciliation proceedings before the

Labour Officer and in turn even the second respondent

has categorically reported to the Labour Officer that

the petitioner was not employed by it at the alleged

time of retrenchment. As averred by the second

respondent the petitioner has worked under one

Mohamed Sali and the same is evident from Ex.R14.

Ex.R12 to R14 are the letters sent by the said sub-

contractor to the second respondent namely from

Mohamed Sali who was running M/s. N.H. Nursery,

Papanasam. Under Ex.R14 the petitioner has signed

having received a salary from 1-1-2003 to 31-3-2003

from the said sub-contractor. Ex.R12 also reveals that

the petitioner has reported to have received salary from

1-3-2000 to 31-3-2000 from the said Mohamed Sali who

was running M/s. N.H. Nursery as a sub-contractor of

the second respondent. As such the petitioner has

failed to prove that she was illegally retrenched from

her work since 25-8-2003 by the second respondent.

The perusal of Ex.R1 reveals that the first respondent

has given a work order to the second respondent for

maintenance of garden green belt area in the first

respondent project site for a period of one year from

January 2003 to December 2003 alone. The petitioner

has not produced any documents before this court to

show that the second respondent continued to be in

the service of the first respondent even after the expiry

of the period referred in the work order namely Ex.R1.

The first respondent has totally denied the fact that

its contract with the second respondent is still

continuing. The first respondent would aver that for

the past four years from January 2004 the contract

of maintenance of green belt in the premises of the

2nd respondent was with some other contractor and not

with the PASIC, Pondicherry. Therefore, it is evident

that even if the second respondent was having

contract with the first respondent, it is only up to the

period January 2004. It is further evident that the

contract between the first and the second respondent

for maintenance of the green belt had ended in

December 2003. Even if the petitioner was employed

directly by the second respondent after the termination

of the contract, the second respondent cannot be

ordered to reinstate the petitioner at this stage. Hence,

this court is of the opinion that the petitioner’s prayer

that she has to be reinstated into service is not be

possible.

9. In view of the above discussions, point No.1 is

answered to the effect that the petitioner was not

employed by the first respondent at any point of time

and after the termination of the contract by the first

respondent from January 2004, the second respondent

cannot be the employer of the petitioner.

In view of the above discussions, point No.2 is

answered to the effect that the petitioner has not proved

that she has worked under the second respondent for

about 240 days before the date of her retrenchment.

Hence this point is answered to the effect that the

petitioner has not worked for 240 days as alleged by

her in the petition.

Point No. 3 :

10. In view of the decisions of this court in points

No.1 and 2, the petitioner has failed to prove that she

has worked under the second respondent or the first

respondent continuously for 240 days before her

alleged date of retrenchment. Hence this point is

decided that the petitioner is not entitled for any relief

as prayed by her in the petition.

11. In the result, the industrial dispute is dismissed.

Dictated to the Stenographer, transcribed by her,

corrected and pronounced by me in the open court on

this the 9th day of February 2011.

R. MARGARET ROSALINE,

Presiding Officer, Labour Court.

Karaikal.

————

Petitioner’s witnesses :

P.W.1 —

K. Madharasi

P.W.2 —

S. Anthonisamy

Respondent’s witnesses :

R.W.1 —

Ramachandran Santhosh

R.W.2 —

Manthaiyan

R.W.3 —

Mohamed Sali

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[24 May 2011

Petitioner’s exhibits :

Ex.P1

—

Copy of the petition given by

the petitioner to the Hon’ble

Chief Minister, Pondicherry.

Ex.P2

11-2-2004 Copy of the Letter by the

Labour Officer to the Secretary

to Government (Labour), Chief

Secretariat, Pondicherry.

Ex.P3

5-6-2006

Copy of the notification in

G.O. Ms. No. 86/2006/Lab./AIL/J,

dated 5-6-2006.

Ex.P4

20-10-2003 Copy of the notice enquiry/

conciliation by the Labour

Officer (Conciliation), Karaikal.

Respondent’s exhibits :

Ex.R1

6-1-2003

Copy of letter by the

P o n d i c h e r r y P o w e r

Corporation, T.R. Pattinam,

Karaikal

to

the

General

Manager, PASIC, Pondicherry.

Ex.R2

11-2-2004 Copy of the Letter by the

Labour Officer to the Secretary

to Government (Labour), Chief

Secretariat, Pondicherry.

Ex.R3

18-8-1998 Copy of the letter by the Project

Director, Pondicherry Power

Corporation Limited to the

General Manager, PASIC,

Karaikal.

Ex.R4

25-11-1998 Copy of the letter by the

Managing Director, Pondicherry

Power Corporation Limited to

the Managing Director, PASIC,

Pondicherry.

Ex.R5

13-6-1998 Copy of the letter by the Project

Director, Pondicherry Power

Corporation Limited to the

Manager, PASIC, Karaikal.

Ex.R6

19-2-1999 Copy of the letter by the Project

Director, Pondicherry Power

Corporation Limited to the

General Manager, PASIC,

Karaikal.

Ex.R7

11-11-1998 Copy of the letter by

B a n y a n N u r s e r y t o

Thiru Vasanthakumar, Agro

House, Thattanchavady.

Ex.R8

20-11-1998 Copy of letter by Dy. General

Manager (INPUTS) Pondicherry

Agro Service to the Managing

Director, Pondicherry power

C o r p o r a t i o n L i m i t e d ,

Pondicherry.

Ex.R9

28-12-1998 C o p y o f the l e t t e r b y

B a n y a n

N u r s e r y

t o

T h i r u Vasanthakumar, Agro

House, Thattanchavady.

Ex.R10

19-1-1999 Copy of the letter by Banyan

Nursery to the Managing

Director, PASIC. Pondicherry.

Ex.R11

12-3-1999 Copy of the letter by Banyan

Nursery to the Managing

Director, PASIC, Pondicherry.

Ex.R12 —

Copy of acknowledgment of

receipt of wages by the

petitioner and 3 others.

Ex.R13 —

Copy of acknowledgment of

receipt of wages by the

petitioner and three others.

Ex.R14

—

Copy of letter by Mohamed Sali

to the Managing Director,

PASIC, Pondicherry.

Ex.R15

3-9-2003

Copy of the letter by the

petitioner to the Labour Officer.

Ex.R16

18-10-2003 Copy of letter by the Executive

Engineer, Pondicherry Power

Corporation to the Labour

Officer, Karaikal.

Ex.R17

17-12-2003 Copy of letter by Managing

Director, PASIC, Pondicherry

to the Labour Officer, Karaikal.

Court’s exhibits :

Ex.XI

3-7-2009

Authorisation letter given by

the Labour Officer to one

S. Anthonisamy, Inspector

of Labour, Labour Department.

R. MARGARET ROSALINE,

Presiding Officer,

Labour Court, Karaikal.

————

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G. O. Rt. No. 100/AIL/Lab./J/2011, dated 10th May 2011)

NOTIFICATION

Whereas, the Award in I. D. No. 8/2008, dated 31-1-2011

of the Labour Court, Karaikal in respect of the industrial

dispute between the management of M/s. Nallathur

Co-operative Milk Society Limited, Nallathur and

Thiru N. Subramanian over non-employment has been

received;

325

24 May 2011]

LA GAZETTE DE L’ETAT

Now, therefore, in exercise of the powers conferred by

sub-section (1) of section 17 of the Industrial Disputes

Act, 1947 (Central Act XIV of 1947) read with the notification

issued in Labour Department’s G. O. Ms. No. 20/91/Lab./L.,

dated 23-5-1991, it is hereby directed by Secretary to

Government (Labour) that the said Award shall be published

in the official gazette, Puducherry.

(By order)

N. APPA RAO,

Under Secretary to Government (Labour).

————

BEFORE THE LABOUR COURT, KARAIKAL

Present :

Tmt. R. MARGARET ROSALINE, M.L.,

Presiding Officer, Labour Court,

(District Judge), Karaikal.

Monday, the 31st day of January 2011

I. D. No. 8/2008

Thiru N. Subramanian,

No.3, Melatheru,

Surakudy, Thirunallar,

Karaikal

. . Petitioner

Versus

The Nallathur Co-operative

Milk Society Limited,

Nallathur P. O.,

Nedungadu, Karaikal

. . Respondent

This case coming on 18-1-2011 in the presence of

Thiru V. Govindasamy, advocate for the petitioner and

the respondent being called absent and set ex parte,

and on hearing the petitioner and on perusing the case

records, this court passed the following:

AWARD

This industrial dispute arises out of the reference

made by the Government under section 10(l)(c) of the

Industrial Disputes Act in G.O.Rt. No. 146/AIL/Lab./J/2008,

dated 18-9-2008 in and by which the following

references were made to this court for adjudication.

(a) W h e t h e r t h e d i s p u t e r a i s e d b y

Thiru N. Subramanian against the management of

M/s. Nallathur Co-operative Milk Society Limited,

Nallathur, Karaikal over non-employment is

justified or not ?

(b) To what relief, Thiru N. Subramanian is

entitled to ?

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

of money, if it can be so computed ?

2. Award passed. The petitioner has proved through

the Ex.P.2 that he has been appointed as Clerk with

effect from 1-2-1997. As per Ex.P.8 the petitioner was

recommended for promotion to Grade-II Clerk by the

respondent society. Hence the petitioner is an employee

who is entitled for remedies under the Industrial

Disputes Act. Under such circumstances the petitioner

cannot be denied employment. Even the respondent

society has not followed any principles or rules before

denying employment.

In view of the above discussion, the dispute is

decided to the effect that the non-employment of

petitioner is not justified. Hence he is entitled for

reinstatement. The respondent society is directed to

reinstate the petitioner in the same cadre of employment

forthwith with back wages and all attendant benefits as

prayed by him.

Written and pronounced by me in the open court on

this 31st day of January 2011.

R. MARGARET ROSALINE,

Presiding Officer, Labour Court,

Karaikal.

————

List of witnesses examined by the petitioner :

P.W.1 — N. Subramanian

List of exhibits marked by the petitioner :

Ex.P1 —

Office order, dated 30-6-1995 issued to

the petitioner by the respondent society.

Ex.P2 —

Office order, dated 1-2-1997

Ex.P3 —

Office order, dated 1-9-1997

Ex.P4 —

Office order, dated 22-8-1998

Ex.P5 —

Proceeding of respondent society,

dated 9-10-1998.

Ex.P6 —

Letter by the respondent society to

Registrar of Co-operative Societies

Pondicherry, dated 5-4-1999.

Ex.P7 —

Office order, dated 31-3-2004.

Ex.P8 —

Office order, dated 22-6-2004.

Ex.P9 —

Letter by the respondent society to

Registrar of Co-operative Societies,

Pondicherry, dated 4-5-2007.

Ex.P10 —

Letter by President to the petitioner to

call for explanation, dated 11-8-2007.

Ex.P11 —

Explanation given by the petitioner,

dated 17-8-2007.

R. MARGARET ROSALINE,

Presiding Officer, Labour Court,

Karaikal.

326

LA GAZETTE DE L’ETAT

[24 May 2011

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 101/AIL/Lab./J/2011, dated 10th May 2011)

NOTIFICATION

Whereas, the Award in I.D. No. 1/2005, dated 8-2-2011

of the Labour Court, Karaikal in respect of the industrial

dispute between the management of M/s. Soundararaja

Mills, Karaikal and its workman Thiru A. Roosevelt over

non-employment has been received;

Now, therefore, in exercise of the powers conferred by

sub-section (1) of section 17 of the Industrial Disputes

Act, 1947 (Central Act XIV of 1947) read with the

notification issued in Labour Department’s G.O. Ms. No.

20/91/Lab./L, dated 23-5-1991, it is hereby directed by

Secretary to Government (Labour) that the said Award

shall be published in the official gazette, Puducherry.

(By order )

N. APPA RAO,

Under Secretary to Government (Labour).

————

BEFORE THE LABOUR COURT, KARAIKAL

Present : Tmt. R. MARGARET ROSALINE, M.L.,

Presiding Officer, Labour Court,

(District Judge), Karaikal.

Tuesday, the 8th day of February 2011

I.D. No. 1/2005

Thiru A.Roosevelt,

No. 48, Anthoniar Koil Street,

Kottapakkam, Nedungadu, Karaikal.

. . Petitioner

Versus

The Employer,

M/s. Soundararaja Mills Limited,

Nedungadu, Karaikal.

. . Respondent

This case coming on 16-11-2010 in the presence of

Thiru V. Govindasamy, advocate for the petitioner, and

Thiru R.Thimbiraj, advocate for the respondent, and on

hearing both sides, and on perusing the case records,

this court passed the following:

AWARD

This industrial dispute arises out of the reference

made by the Government under section 10(l)(c) of

the Industrial Disputes Act in G.O. Rt. No. 166/2004/

Lab./AIL/J, dated 23-12-2004 in and by which the

following references were made to this court for

adjudication.

(a) Whether t h e n o n - e m p l o y m e n t o f

Thiru A. Roosevelt b y t h e m a n a g e m e n t o f

M/s. Soundararaja Mills, Karaikal is justified or not ?

(b) To what relief, he is entitled to ?

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

of money, if it can be so computed?

2. Petitioner present. Settlement arrived between

parties under section 18(1) of Industrial Disputes Act

as full and final settlement. Hence industrial dispute

dismissed.

Written and pronounced by me in the open court on

this the 8th day of February 2011.

R. MARGARET ROSALINE,

Presiding Officer,

Labour Court, Karaikal.

————

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 102/AIL/Lab./J/2011, dated 10th May 2011)

NOTIFICATION

Whereas, the Award in I. D. No. 3/2006, dated 17-12-2010

of the Labour Court, Karaikal in respect of the industrial

dispute between the management of M/s. Henkel Spic India

Limited, Karaikal and its workman Thiru K. Sivakumar over

non-employment has been received.

Now, therefore, in exercise of the powers conferred

by sub-section (1) of section 17 of the Industrial

Disputes Act, 1947 (Central Act XIV of 1947) read

with the notification issued in Labour Department’s

G.O. Ms. No. 20/91/Lab./L, dated 23-5-1991, it is hereby

directed by Secretary to Government (Labour) that the

said Award shall be published in the official gazette,

Puducherry.

(By order)

N. APPA RAO,

Under Secretary to Government (Labour).

————

BEFORE THE LABOUR COURT, KARAIKAL

Present :

Tmt. R. MARGARET ROSALINE, M.L.,

Presiding Officer,

District Judge.

Friday, the 17th day of December 2010

I. D. No. 3/2006

Thiru K. Sivakumar

. .

Petitioner

Versus

The Employer,

M/s. Henkel Spic India Limited,

Karaikal

. . Respondent

327

24 May 2011]

LA GAZETTE DE L’ETAT

This petition coming on 19-11-2010 for final hearing

before me in the presence of Thiruvalargal V.Govindasamy,

A. Danasegary and M. Uma Maheswari, advocates for

the petitioner, and Thiru S.Selvaganapathy, advocate

for the respondent, upon hearing both sides and

perusing the case records and having stood over till

this day for consideration, this court passed the

following:

AWARD

This is a reference under the Industrial Disputes

Act, 1947 regarding the dispute within the management

of M/s.Henkel Spic India Limited, Karaikal and its

workman K.Sivakumar over his non-employment in

G.O. Rt. No. 65/2006/Lab./AIL/J, dated 3-4-2006.

The following issues are found in the Annexure:

(1) Whether

the

non-e m p l o y m e n t

o f

Thiru K. Sivakumar by the management of Henkel

Spic India Limited, Karaikal is justified or not?

(2) To what relief, he is entitled to?

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

of money, if it can be so computed?

2. The petitioner has filed this claim statement with

the following averments:

The petitioner joined the respondent company

on 28-8-1998 as an apprentice on a consolidated salary

of ` 3,000 per month which expired on 7-8-2001.

At the end of the period, he was given a service

certificate on 7-8-2001. Thereafter the petitioner

continued to work in the respondent management as

they assured to make him as a permanent worker in

case vacancy arises after consulting with the

Managing Director. Therefore the petitioner continued

to work under the respondent. All of a sudden

on 28-10-2004 the respondent was denied work.

Therefore the petitioner was constrained to

approach the Labour Officer, Karaikal for redressal.

The respondent management filed a counter stating

that on completion of apprenticeship, the petitioner

was asked to approach M/s. Eswaramurthy, contractor

for job and the petitioner only worked under him. The

respondent further stated that on 15-6-2004 the contract

of Eswaramurthy came to an end and a new

contractor M/s.Abirami Services Private Limited came

on the scene and the petitioner was retained by the

said new contractor. The respondent alleged that on

27-10-2004 the petitioner meddled with the main tank

activities and therefore the Manager Y. Narayanan

advised M/s. Abirami Services Private Limited to

terminate his services and accordingly his services were

discontinued.As the conciliation proceedings failed

the Government of Puducherry referred the matter

for adjudication. It is not correct to say that he worked

under the contractor M/s. Eswaramurthy and

subsequently he served under the contractor

M/s. Abirami Services Private Limited on 15-6-2004.

If both the contractors had appointed they would

have given him appointment order and paid his

salary. This respondent management employed the

petitioner and he was handling work in the ensyme

system and he was designated as area technician.

His work was supervised by the respondent management.

The petitioner’s services was arbitrarily terminated

on 28-10-2004 after completion of three

years. Therefore he has put in around 240 days of

work during the period of 12 calendar months.

The petitioner has been retrenched without implicating

section 25-F of the Industrial Disputes Act, 1947.

Hence his termination is illegal. The petitioner was

working as against the permanent vacancy and no

enquiry was conducted. Hence the petition for

reinstatement with backwages, continuity of service and

other consequential benefits with costs.

3. The respondent management filed its counter

statement with the following averments :

This respondent is a registered company having its

factory at Karaikal. This respondent have registered

themselves as principal employer under the Contract

Labour (Regulation and Abolition) Act and

appointed independent contractors to take up works

relating to plant and machineries and to handle

miscellaneous operations such as loading and

unloading, housekeeping, security, gardening and so on.

The petitioner was engaged as an apprentice under

the Apprentice Act, 1971 for the period from 28-8-1998

to 27-8-2001 and there was no agreement between the

petitioner and the respondent to give any permanent

employment. Therefore, on expiry of the

apprenticeship training period he was relieved and a

service certificate dated 7-9-2001 was issued. On the

date of the said completion of apprenticeship

training, the petitioner ceased to be even a trainee

and he does not have any lien or right of

employment with the respondent. On completion of

apprenticeship if vacancy is available based on

test and interview, the petitioner will be considered

for regular appointment. The petitioner was taken

as apprentice along with one Subbaiah and after

their apprenticeship training they were issued

certificates. Subsequently the petitioner was

employed under the registered contractor namely

B. Eswaramoorthy and that contract came to end

on 15-6-2004. After that the petitioner joined under

an another contractor by name M/s. Abirami Services

Private Limited. However the said contractor

discontinued the engagement of the petitioner for

various reasons. This petitioner was not a worker of

the respondent management and his services were

328

LA GAZETTE DE L’ETAT

[24 May 2011

governed by the contractor by name M/s. Abirami

Services Private Limited. Therefore the petitioner

cannot claim employment with this respondent as a

matter of right. If at all the petitioner is having any

right of employment he should have preferred his

claim only against the contractor. In the absence of

employer-employee relationship with the

respondent, the petition is not maintainable and the

reference made by the Government is bad in

law. The petitioner will have to say for the non

joinder of proper and necessary parties that is

M/s. Abirami Services Private Limited. Hence the

petition is liable to be dismissed. Hence it prayed

for dismissal of the industrial dispute.

4. On these pleadings, the petitioner examined

himself as PW1 and marked Ex.P1 to Ex.P15. On the

side of the management, company examined its Deputy

Manager as RW1 and marked Ex.R1 to Ex.R3.

5. Now the point for determination is -

Whether the non-employment of the petitioner by

the respondent management is justified or not? If not

whether the petitioner is entitled for reinstatement with

backwages and other benefits as claimed by him?

6. On point :

The contention of the respondent is that there is no

relationship as that of the employee and employer

between the petitioner and the management and the

petitioner was employed only under one contractor by

name M/s.Abirami Services Private Limited when he

was terminated from the services. In order to support

the said claim, the learned counsel for the respondent

had submitted the citation in “Bharat Cooking Coal

Limited Vs. Rashtriya Collery Mazdoor Sangh - 2006

LLR 245 SC”, wherein the Hon’ble Apex Court has

decided that when existence of the relationship of

employer and employee is disputed, the same was

required to be determined in presence of all the parties

who are interested in the subject matter of reference

and the burden is always on the petitioner to prove that

he was employed under the principal employer when

the management pleads that the worker was under the

contractor.

7. There is no dispute about the petitioner being

engaged as an apprentice for a period of three years and

the contention of the petitioner is that he has been

employed directly by the respondent management and

he has never worked under any contractor of the

respondent. The petitioner has marked Ex.P3 to show

that even on 2-9-2001 he was given work order. He has

also marked Ex. P 10 to show that he was asked to work

as Area Technician on 9-9-2003. Ex.P.11 reveals that he

was asked to work as Area Technician during the month

of July 2003. Ex. P12 reveals that on 26-2-2004 he worked

as Area Technician. Ex.P13 reveals that he has worked

as Area Technician on 9-8-2004. He has also marked

Ex.P14 to show that he had worked as a Area Technician

on 16-8-2004. ExP3, Ex.P4 and Ex.P5 refer to the petitioner

as the Area Operator and it also refers the petitioner as

Area Technician. Therefore in the opinion of this court

that the petitioner has worked under the respondent

management even after completion of his training

period. The contention of the respondent is that the

petitioner was employed under one M/s. Abirami

Services Private Limited who was inturn the contractor

of the respondent company. The respondent in order

to substantiate its claim has produced Ex.R2 and Ex.R3

long after the examination of RW1 before this court.

Ex.R2 is letter issued by one M/s. Abirami Services

Private Limited to the Personnel Officer of the

respondent company seeking for issuance of Form-5. Ex.R3

is also another requisition by the same contractor for

the year 2006. If really the respondent management

has appointed M/s. Abirami Services Private Limited as

its contractor, before appointment of such contractor

the respondent company was legally bound to get

permission from the concerned department for taking

the said contractor as the contractor of the company for

employment of the workers. The respondent has not

chosen to produce any such order permitting the

respondent company for engaging labourers on contract

through a contractor. RW1 during his cross-examination

before this court has categorically admitted that he has

not produced any such order obtained from the Labour

Department. He has also gone to the extent of saying

that for every year they used to renew such permission.

The non-production of such vital document calls for

drawing adverse inference as against the respondent

management by this court. Further the respondent

management. Further the respondent management

ought to have maintained attendance and other records

for having kept the petitioner as the contract labourer

through one M/s. Abirami Services Private Limited. The

failure to produce such documents was not explained

by the respondent management. Even the perusal of

Ex.P10 to Ex.P14 clearly show that the Deputy Manager,

Production by name one C. Karunanithi was the

Supervisor for the petitioner herein. Further the

petitioner has proved that he has completed 240 days

in a calendar year before he was retrenched by the

respondent company. In view of the above discussion,

this court is of opinion that the petitioner has been

retrenched from the services without any reason or

rhyme. If really the petitioner had committed any

mistake in his work, the management ought to have

taken action against him by way of an enquiry. In the

absence of any such records, the respondent terminate

the services of the petitioner without following the

principles enshrined under the labour enactments.

8. The learned counsel for the respondent has cited

a case law in “Uttar Pradesh Rajya Vidyudh Parishad

Apprentice Welfare Association - 2000 LLR 869 SC”

329

24 May 2011]

LA GAZETTE DE L’ETAT

wherein the Hon'ble Apex Court has decided that if the

appointment is not made through examination or

interview before regular appointment the apprentice

cannot claim any regular employment as a matter of

right and the same view has been reiterated

in the “Hindustan Aeronautics Ltd, vs. Dan Bhadur

Singh and Others - 2007 LLR 1229 SC”. Though the

petitioner admittedly has not produced any documents

to show that he has been employed by the respondent

on regular basis after the completion of the

apprenticeship he has been permitted to work directly

under the surveillance and control of the respondent

management. As such, the contention that the

petitioner was not employed by the respondent

management does not hold water as the burden has been

shifted to it to prove otherwise.

9. In view of the above discussion, this point is

answered to the effect that the petitioner is entitled for

reinstatement. With regard to the claim of backwages

the petitioner cannot claim it as he has not contributed

any services and the backwages cannot be automatic.

Therefore the petitioner is entitled for reinstatement

with continuity of service without any backwages or

any other detrimental benefits.

10. In view of the above discussion, this point is

answered to the effect that the petitioner is entitled for

reinstatement with continuity of service from the date

of this order without any backwages or any other

pecuniary benefits.

11. In the result, the petition is allowed and the

petitioner is entitled for reinstatement from the date of

this order without any backwages or any other

pecuniary benefits.

Dictated to the Stenographer, transcribed by him,

corrected and pronounced by me in the open court on

this the 17th day of December 2010.

R. MARGARET ROSALINE,

Presiding Officer, Labour Court.

Karaikal.

————

Petitioner’s witnesses:

PW1 — Sivakumar

Respondent’s witnesses :

RW1 — Sivakumar

Petitioner’s exhibits :

Ex.P1

7-9-2001

Service

certificate

of

the

petitioner

Ex.P2

7-9-2001 Office Order

Ex.P3

—

Maintenance requisition

Ex.P4

19-7-2004 Nozzle area log of respondent

company.

Ex.P5

1-10-2003 Vessel entry and box up permit

of respondent company.

Ex.P6

29-9-2003 Vessel entry and box up permit

of respondent company.

Ex.P7

7-2-2004

Vessel entry and box up

permit of respondent company.

Ex.P8

14-2-2004 Safety permit Class I -Enzyme

system of the respondent

company.

Ex.P9

1-3-2004

Safety permit Class I -Enzyme

system of the respondent

company.

Ex.P10

9-9-2003

Safety permit Class I-Enzyme

system of the respondent

company.

Ex.P11

26-7-2003

Safety permit Class I-Enzyme

system of the respondent

company.

Ex.P12

26-7-2004

Safety permit Class I -Enzyme

system of the respondent

company.

Ex.P13

9-8-2004

Safety permit Class I -Enzyme

system of the respondent

company.

Ex.P14

16-8-2004

Safety permit Class I -Enzyme

system of the respondent

company.

Ex.P15

3-11-2004

Xerox copy of the letter addressed

by the petitioner to the

Labour Welfare Officer,

Karaikal.

Respondent’s exhibits :

Ex.R1

12-8-2009 Authorisation letter of the

respondent company

Ex.R2

13-6-2005

Letter

addressed

by

the

respondent

company

to

Abhiraami Services (P) Limited.

Ex.R3

15-6-2006 Letter addressed by Abhiraami

Services (P) Limited, to the

respondent company.

R. MARGARET ROSALINE,

Presiding Officer, Labour Court.

Karaikal.

GOVERNMENT OF PUDUCHERRY

FINANCE DEPARTMENT

(G.O. Ms. No. 28/F2/2011, dated 10th May 2011)

NOTIFICATION

Whereas the Ministry of Finance, Department of

Revenue, Government of India have framed the National

e-Government Plan (NeGP) and the Commercial Taxes

Mission Mode Program (hereinafter referred to as the