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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
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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;
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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.
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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