166
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[5 March 2013
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 16/AIL/Lab./J/2013, dated , 9th February 2013)
NOTIFICATION
Whereas, an Award in I.D.No. 11/1999, dated
23-10-2012 of the Labour Court, Puducherry in respect
of the industrial dispute between the President/
Secretary, P.L.Haulwel Trailers Labour Union
(Affiliated to AICCTU), Puducherry and the
management of M/s. P.L. Haulwel Trailers Limited,
Puducherry over charter of demands 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. M.s. 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 )
S. THAMMU GANAPATHY,
Under Secretary to Government (Labour).
————
BEFORE THE LABOUR COURT AT PUDUCHERRY
Present:
Thiru T. MOHANDASS, M.A. B.L.,
II Additional District Judge,
Presiding Officer, Labour Court,
Puducherry.
Thursday, the 23rd day of February, 2012
I.D. No. 11/1999
The President/Secretary,
P.L. Haulwel Trailers Labour Union,
Affiliated to AICCTU, Puducherry.
. . Petitioner
Versus
M/s. P.L. Haulwel Trailers Limited,
Puducherry.
. . Respondent
This petition coming before me for final hearing on
20-2-2012 in the presence of Thiru P. Sankaran,
Advocate for the petitioner, Thiru K. Babu, Advocate
for the respondent and upon hearing both sides, after
perusing the case records and having stood over for
consideration till this day, this court delivered the
following :
AWARD
This industrial dispute arises out of the reference
made by the Government of Puducherry, vide G.O. Rt.
No.51/99/Lab./L, dated 19-4-1999 of the Labour
Department, Puducherry, to resolve the following
dispute between the petitioners and the respondent, viz.,
(1) Whether the refusal of employment to the
workmen as mentioned in Annexure-II of this order
by the management of M/s. P.L. Haulwel Trailers (P)
Ltd., Mettupalayam, Puducherry-9 on the ground
that they are the employees of their contractor
Thiru Selvaraj is justified? If not, to what relief
they are entitled to?
(2) To compute the relief, if any, awarded in
terms of money, if it can be so computed?
2. The petitioner in his claim statement has stated
as follows:-
The following employees are the members of the
petitioner union:-
1.
V. Ganesan
. .
Axil Fitter
2.
S. Arul
. .
Do.
3.
N.S. Manavalan
. .
Fitter
4.
K.K. Ravi
. .
Do.
5.
R. Christ Doss
. .
Do.
6.
G. Jagathala Prathaban . .
Do.
7.
S. Prabu
. .
Do.
8.
Delhi Ganesan
. .
Do.
9.
Jagathisan
. .
Do.
10.
D. Ilango
. .
Do.
11.
D. Iyyappan
. .
Do.
12.
Venkatesan
. .
Do.
13.
S. Sakthivel
. .
Do.
14.
K. Manniyan
. .
Do.
15.
K. Rangaraj
. .
Do.
16.
Sriram
. .
Do.
17.
Palaniappan
. .
Do.
18.
A.S. Raj
. .
Do.
19.
K. Suresh
. .
Do.
20.
M. Ramachandran
. .
Do.
21.
Thirunavukarasu
. .
Gas Cutting and
Welder
22.
A. Arokiasamy
. .
Do.
23.
Elliyas
. .
Welder
24.
R. Subramani
. .
Turner
25.
A. Singaravelu
. .
Driller
167
5 March 2013]
LA GAZETTE DE L’ETAT
26.
Munusamy
. .
Driller
27.
P. Palany
. .
Electrician
28.
R. Ponniyan
. .
Do.
29.
Rabel
. .
Do.
30.
T. Palani
. .
Do.
31.
V. Thirunavukarasu
. .
Grinder
32.
Sanjeevi
. .
Do.
33.
Murugan
. .
Do.
34.
Veerappan
. .
Do.
35.
S. John Kennadi
. .
Painter
36.
D. Gopi
. .
Do.
37.
Ravichandran
. .
Do.
38.
Gunasekaran
. .
Do.
39.
Narayanan
. .
Do.
40.
R. Ezhumalai
. .
Axil Helper
41.
D. Chelladurai
. .
Do.
42.
G. Thirunavukarasu
. .
Do.
43.
Vetrivel
. .
Helper
44.
Balasubramanian
. .
Do.
45.
Elangovan
. .
Do.
46.
Raja
. .
Do.
47.
Vengatesan
. .
Do.
48.
Devendiran
. .
Do.
49.
Selvam
. .
Do.
50.
Dasarathan
. .
Do.
51.
Jagadesan
. .
Do.
52.
Anilkumar
. .
Do.
53.
Suresh Kumar
. .
Do.
54.
Senthil Kumar
. .
Do.
55.
Senthil
. .
Do.
56.
P. Vel
. .
Do.
57.
Solai Murugan
. .
Do.
58.
Kandhaswamy
. .
Welder
59.
P. Natarajan
. .
Do.
60.
N. S. Karikalan
. .
Do.
61.
China Durai
. .
Do.
62.
Shanmugavel
. .
L o a d i n g a n d
unloading workers
63.
Ganesan
. .
Do.
64.
Ramachandran
. .
Do.
65.
Panneerselvam
. .
Do.
66.
Ganapathi
. .
Do.
67.
Vijayan
. .
Do.
68.
Rangasamy
. .
L o a d i n g a n d
unloading workers
69.
Thirumal
. .
Do.
70.
Selladurai
. .
Do.
71.
Prabu
. .
Do.
Amended as per order in IA 51/2012, dated
30-11-2012
The said employees were engaged in two shifts for
production of trailer chassis and assembling from 1992
as workmen on regular basis under respondent
management factory premises called Unit-II. They
were regularly engaged in the basically core
production activities perennial in nature continuously
without any break throughout the year. The
respondent management failed and refused to extend
the statutory benefits under the Factories Act, E.S.I.,
E.P.F. and the payment of Bonus Act, etc. The
petitioner union demanded and complained to the
authorities concerned for those benefits to be
extended to the workmen for whom the respondent
management failed to respond and dragged on the
issue indefinitely. The respondent management also
intimidated the workmen and the office bearers of the
union through one E. Selvaraj creating unrest and
dissatisfaction among the workmen.
The petitioner was compelled to issue a notice of
strike dated 23-5-1996 to the respondent management
to fulfil their demands and the Conciliation Officer
called for conciliation on it. But the respondent
management refused to negotiate the demands even
before the Labour Officer and tried to induct one
Selvaraj all of a sudden surprisingly in the
proceedings as if he was the labour contractor
through whom the workmen were employee and the
respondent management was only the principal
employer by which imposed on the workmen to strike
work from 6-6-1996, since there was no other
alternative for the protection of their rights.
After several rounds of talks before the Labour
Officer, the respondent management agreed the
demands of the petitioner union resulting in the
withdrawal of the strike by the petitioner union and
the workmen reported for duty. But the respondent
management orally refused employment to all the
workmen without any reason, prior notice, prima facie,
allegations, charges without any enquiry against law
and natural justice amounting to illegal retrenchment
without any compensation as per law who were
working continuously from 1992 to 1996. Hence, the
refusal of employment on the ground that they are
the employees of their contractor is not at all
justified as it is highly imaginary, illegal, unjust and
not admissible under law. Hence, this industrial
dispute is filed to reinstate the above said employees
into service with full back wages, continuity of
service and other attendant benefits as per law.
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[5 March 2013
3. The respondent in his counter statement has
stated as follows:-
The respondent is a company registered under the
Companies Act and is engaged in business of design,
manufacture, sales and marketing of trailers, semi-
trailers. As part of its requirements, the respondent
company engaged the contractor by name E. Selvaraj
to provide contract labour for carrying out the
contractual obligations entrusted to the said
contractor. The workmen on whose behalf this
dispute has been raised by the petitioner union were
not employed by this respondent. The said persons
w e r e a d m i t t e d l y e m p l o y e d b y t h e c o n t r a c t o r
E. Selvaraj.
The contractor E. Selvaraj is the appropriate and
necessary party for proper adjudication of the
dispute and without whose presence the dispute
cannot be rightly adjudicated. Since the persons
referred in the order of reference was not workmen
of this respondent at any point of time and as they
were only employees of the said contractor, this
respondent is not in a position to give its detailed
remarks on the claim made by the petitioner union and
only if the contractor is made as a party to this
dispute, this respondent will be in a position to file
its detailed counter statement. Further it is learnt from
the contractor E. Selvaraj that about 17 workmen, who
were the employees of the said contractor settled
their accounts fully arising out of the voluntary
resignation submitted by them to their employer
E. Selvaraj. It is also learnt by the respondent that
the individuals had entered into a settlement with
their employer E. Selvaraj, contractor as contemplated
under section 18(1) of Industrial Disputes Act for
having settled that accounts fully with their
employer/contractor. Hence, he prays for dismissal of
the petition.
4. In the rejoinder to the counter, the petitioner
has stated as follows:-
The petitioner denies the averments that the
respondent engaged a contractor E. Selvaraj to
provide labour, since there is no such permission or
licence granted to the respondent or to the alleged
contractor E. Selvaraj and the burden of proof lies
with the respondent to prove the same with
documentary evidence. The workmen of the petitioner
union were very well employed by the respondent
and engaged in the production within the factory
premises that belonged to the respondent and even
if there was some illegal contract, it is not binding
on the petitioner union workmen and only the
principal employer is under legal obligation as there
exists the employer employee relationship according
to law between them. The respondent is also stopped
from raising the issue of the petitioner union's locus
standi to raise the dispute or about the membership
under the Trade Unions Act, 1926, as they are not the
issues to be decided by this court or the points of
reference. The jurisdiction of this court is limited only
to the reference made by the Government of
Puducherry under G.O.Rt. No.51/99/Lab/L, dated
19-4-1999. The dispute was faced by the union of the
workmen as it was a common issue, that is, the refusal
of employment to all workmen by the respondent
under section 2A of the Industrial Disputes Act is
absolute valid under law and it is untenable to say
that it amounts to non-employment of individual
workmen and should be raised under section 2K of
the Industrial Disputes Act.
5. In the additional counter, the respondent has
stated as follows:-
All the persons were not continuously posted by
the contractor in the respondent factory and he used
to supply labour as and when required by the
company and the reference notification mentioned
persons will be used by him on rotational basis and
they will be provided job by the contractor in the
respondent factory only intermittently and as such
this respondent does not know the proper identity of
those persons. Further they were engaged only by
the said contractor and were allotted the jobs only
by him through his supervisor.
The contractor Selvaraj had made PF contributions
to his employees vide separate PF sub-code vide
No.336-A. The said contractor had made all E.S.I.
contributions to his employees employed by him in
the respondent company by way of separate challans
under the respondent's company code as it is the
practice followed all these days.
Some of the contractor's employees, whose names
were included in the petitioner union's representation
submitted to the Labour Officer (Conciliation),
represented by Mettupalayam Industries Paattali
Workers Union, Puducherry entered into a settlement
under section 18(1) of the Industrial Disputes Act on
1-9-1997 to which the said contractor was also a party.
In the said settlement, it was agreed that some of the
contractor's employees would be recruited by the
respondent company, who had obtained the Principal
Employer's Certificate and that certain others would
be continued to be engaged by the contractor and it
was also indicated that no dispute were pending as
between the contractor and his workmen out of this
settlement. This was also honoured by the
respondent company in due course. Further the said
union has signed a settlement under section 12(3) of
the Industrial Disputes Act between the respondent
company and its direct workmen on 3-11-1998.
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Out of 71 persons referred in the reference
notification, 11 persons has got full and final
settlement from their employer, i.e. the contractor and
they were later observed by the company by issuing
separate appointment orders and they are working in
the respondent's factory as on date. Apart from this,
as per the records and information available with this
respondent, 28 persons has got their full and final
settlement from their employer namely E. Selvaraj by
entering into separate settlements under section 18(1)
of the Industrial Disputes Act, 1947. Out of the
remaining persons, some other persons has got
settlement from their employer i.e., the contractor and
the said documents are available only with the said
contractor. The other persons are gainfully employed
in other companies and most of the workmen were not
interested in pursuing the disputes or to support the
petitioner union. Further minority of the annexure
mentioned persons were not the members of the
petitioner union and in fact they have not raised any
dispute or made any complaint or set out their grief
if any to the petitioner union and as such the
reference itself is bad as the petitioner union has no
locus standi to raise the dispute regarding the
persons, who had no grievance or any dispute.
Hence, they pray for dismissal of the petition.
6. On the side of the petitioner, PW1 was examined
and marked Ex.P1 to Ex.P8. On the side of the
respondent, RW1 was examined and Ex.R1 to Ex.R95
were marked.
7. Now the point for determination is :
"Whether the petitioner is entitled for the relief
sought for?"
On this point:
8. The contention of the petitioner is that the said
workmen were engaged in two shifts for production
of trailer chassis and assembling from 1992 as
workmen on regular basis under respondent
management factory premises called Unit-II they were
regularly engaged in the basically core production
activities perennial in nature continuously without
any break throughout the year and the respondent
management failed and refused to extend the
statutory benefits under the Factories Act, E.S.I.
E.P.F., and the payment of Bonus Act, etc., and the
petitioner union demanded and complained to the
authorities concerned for those benefits to be
extended to the workmen for whom the respondent
management failed to respond and dragged on the
issue indefinitely and the respondent management
also intimidated the workmen and the office bearers
of the union through one E. Selvaraj creating unrest
and dissatisfaction among the workmen. The
petitioner has further contended that the petitioner
was compelled to issue a notice of strike dated
23-5-1996 to the respondent management to fulfil
their demands and the Conciliation Officer called for
conciliation on it, but the respondent management
refused to negotiate the demands even before the
Labour Officer and tried to induct one Selvaraj all of
a sudden surprisingly in the proceedings as if he was
the labour contractor through whom the workmen
were employee and the respondent management was
only the principal employer by which imposed on the
workmen to strike work from 6-6-1996, since there was
no other alternative for the protection of their rights
and after several rounds of talks before the Labour
Officer, the respondent management agreed the
demands of the petitioner union resulting in the
withdrawal of the strike by the petitioner union and
the workmen reported for duty, but the respondent
management orally refused employment to all the
workmen without any reason.
9. In order to prove his claim, the President of the
petitioner union was examined as PW1. PW1 in his
evidence has deposed about the said facts and
through him, Ex.P1 to Ex.P8 were marked.
10. The contention of the respondent is that as
part of its requirements, the respondent company
engaged the contractor by name E. Selvaraj to provide
contract labour for carrying out the contractual
obligations entrusted to the said contractor and the
workmen on whose behalf this dispute has been
raised by the petitioner union were not employed by
this respondent and the said persons were admittedly
employed by the contractor E. Selvaraj and hence
there is no employer and employee relationship
between them and the said employees. The respondent
further contended that it is learnt from the contractor
E. Selvaraj that about 17 workmen, who were the
employees of the said contractor, settled their
accounts fully arising out of the voluntary
resignation submitted by them to their employer
E. Selvaraj and the individuals had entered into a
settlement with their employer E. Selvaraj, contractor
as contemplated under section 18(1) of Industrial
Disputes Act for having settled that accounts fully
with their employer/contractor. In order to prove his
contention, the Senior Manager HR and Administration
in the respondent company was examined as RW1 and
through him, Ex.R1 to Ex.R95 were marked.
11. Heard both sides. On perusal of records, it is
seen that the said contractor by name Selvaraj had
made an application on 23-9-1992 to the then
Licensing Officer for engaging workmen on contract
basis in the respondent company. After scrutiny and
on the spot verification, the then Labour Officer
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LA GAZETTE DE L’ETAT
[5 March 2013
(Enforcement) refused to grant the licence to the said
Selvaraj under Ex.P5, after pointing out the following
grounds:-
(1) The factory where your workmen on contract
basis were being engaged was inspected twice in this
regard, in both the occasions, the engagement of your
firm was not in a position to engage 20 or more
workers.
(2) It is clear that the workmen are directly
engaged in the main manufacturing process of the
factory, which is against the spirit of the law.
(3) The work carried out by contract labour in the
factory premises is of perennial nature.
(4) There is enough justification for engaging
regular labour as there will be sufficient work to all
in the manufacturing process.
The records would further reveal that the said
decision of the Licensing Officer was also
communicated to the said Selvaraj on 17-8-1993 under
Ex.R10. Thereafter the said Selvaraj filed another
application on 24-6-1996 for licence under section 12
of the Act. On receipt of the said application, the
matter was enquired into again and a spot inspection
was made by the Labour Officer and then he sent a
letter to the said Selvaraj under Ex.P6, refusing the
licence, as there was no need for reconsidering the
decision already taken by him. Aggrieved against the
order of the Labour Officer (Enforcement), dated
8-7-1996, the said Selvaraj preferred an appeal before
the Hon'ble High Court, Madras vide W.M.P. No. 1148
of 1997 and W.M.P. Nos.14463, 19036 and 19037 of
1996 and the same was also dismissed by the Hon'ble
High Court, confirming the order of the Labour Officer
(Enforcement) under Ex.P7.
12. From the above, it is clearly seen that on spot
inspection, the Labour Officer (Enforcement) found
that the work on which the contract labour was
proposed to be engaged by the said Selvaraj
involved manufacturing process carried out in the
respondent company and is not of any incidental
nature and also as the work was of perennial nature
and is to be done primarily through the regular
workmen, the Labour Officer on reasonable grounds
rejected the request made by the said Selvaraj and
the appeal preferred by him against the order of the
Labour Officer was also dismissed by the Hon'ble
High Court, Madras.
13. The learned counsel for the respondent has
deposed that there is no relationship between the
respondent company and the petitioner, since there
was a legal and valid contract between the
respondent management and the said contractor
Selvaraj, dated 31-12-1992 under Ex.R1, which was
periodically renewed under Ex.R2 and Ex.R3 and the
respondent management has no control or supervision
over his men, who were engaged by the said
contractor for fulfilling the job order entrusted to him
and hence Ex.R1 to Ex.R3 will bear ample testimony
to the fairness and genuineness of the contract
agreement between the said contractor and the
respondent. The learned counsel for the respondent
relied upon the following decisions to support his
contention :
2004 LLR 351:
“Relationship of Employer-Employee Determination
of -Nature of extent of control required to establish
such relationship Only because some persons had
been more or less continuously working in
particular premises-It may not be possible to infer
that a relationship of employer and employee has
come into being-Control test and organisation test
are not the only factors which can be said to be
decisive-Integration of relevant tests With a view
to elicit the answer-The court is required to
consider several factors which would have a
bearing on the result: (a) who is appointing
authority, (b) who is the pay master, (c) who can
dismiss, (d) how long alternative service lasts
(e) the extent of control and supervision, (f) the
nature of the job e.g. whether it is professional or
skilled work, (g) nature of establishment, (h) the
right to reject.".
1985 STPL (LE) 12002 SC :
“It is clear that Parliament has not abolished
contract labour as such but has provided for its
abolition by the Central Government in appropriate
cases under section 10 of the Contract Labour
(Regulation and Abolition) Act, 1970. It is not for
the court to enquire into the question and to
decide whether the employment of contract labour
in any process, operation or other work in any
establishment should be abolished or not. This is
a matter for the decision of the Government after
considering the matters required to be considered
under section 10 of the Act.
2006 STPL (LE) 37449 SC:
“Contradictory and inconsistent plea - Workman
whether before the Labour Court or in writ
proceedings were represented by the same Union-
A definite stand taken by the employees that they
had been working under the contractor-Taking a
contradictory and inconsistent plea that they were
also the workmen of the principal employer, which
are mutually destructive plea, is impermissible in
law-Common law principles of estoppel, waiver and
acquiescence are applicable in an industrial
adjudication.”.
171
5 March 2013]
LA GAZETTE DE L’ETAT
2009 STPL (LE) 42216 SC:
“In the absence of a notification under section
10 of CLRA Act prohibiting the employment of
contract labour in the operation of cargo handling
work, the workman employed as contract labour
not entitled to claim absorption.”.
AIR 2001 Supreme Court 3527:
Prohibition
of
contract
labour-Automatic
absorption of contract labour by principal employer -
Not contemplated by Act-Contract labour however
to be given preference in employment by principal
employer.”.
AIR 1995 S.C. 1893:
“Contract labour - Abolition of - Authority is
exclusively vested in appropriate Government - No
court or industrial adjudicator can abolish contract
labour - However contract must be genuine.”.
2002 STPL (LE) 31048 SC:
“Absorption of contract labour cannot be
automatic and it is not for the court to give such
direction - Union of workmen can seek remedies
available in terms of para 125 of judgment in sail
case before state government of industrial adjudicator."
1997 LLR 163:
“Petitioner applied for being enlisted as
contract under section 12-Rejected-Ground that
licence cannot be granted as the petitioner
company is of regular and permanent nature-
whether Deputy Labour Commissioner had
jurisdiction to reject this petition? - No.”
2001-II-LLJ. (A.P.)
“No Notification under section 10(1) issued -
Nor cogent evidence to show board was in pith and
substance employer - Continuation in service for
years does not change status of person.”.
14. The learned counsel for the respondent further
contended that Ex.R6, allotment letter for issuance of
-separate PF sub code number to labour
contractor E. Selvaraj will show that immediately after
the contract agreement, the contractor has obtained
independent PF sub-code allotted by the Regional
Commissioner of Employee's Provident Fund and
Ex.R30 series and Ex.R31 series will prove that the
contractor had independently paid PF and E.S.I.
contributions of his employees with the appropriate
authorities.
He
further
contended
that
the
genuineness of the contract can very well be inferred
further from Ex.R28, the random voucher transactions
and Ex.R29, the invoices and job order forms the
contractor and Ex.R72, PF settlement documents will
also prove that the said contractor has complied with
the statutory requirements and the wages and all
statutory payments all along were paid only by the
contractor to his employees employed by him.
15. As per Ex.P5 and Ex.P6, the licence applied by
the contractor E. Selvaraj has been rejected by the
Labour Officer on 17-8-1993 and 8-7-1996 and the
appeal preferred by him before the Hon'ble High
Court, Madras has also been dismissed on 27-3-1997
as per Ex.P7. In the above circumstances, Ex.R1 to
Ex.R3 cannot be taken into consideration. Further it
is the case of the contractor Selvaraj that he has paid
the E.S.I. amount under Ex.R30 and Ex.R31 series. But
no oral evidence has been produced on the side of
the respondent to prove that the said amount has
been paid by them for the petition mentioned
workmen. Ex.R28 series are the bank vouchers issued
by the respondent company in favour of Selvaraj and
Ex.R29 series are the invoices said to have been sent
by the said Selvaraj to the respondent company
claiming labour charges for fabrication work. But the
respondent has not produced any document to show
that in respect of the petition mentioned workmen,
Ex.R28 and Ex.R29 have been issued. Further the said
Selvaraj is a competent person to speak about
relationship between him and the petition mentioned
workmen, as stated by the respondent.
16. Further on perusal of records, it is seen that
the application in I.A. No.16/2009 was filed by the
respondent to implead the said E. Selvaraj, Labour
Contractor and the said petition was dismissed on 3-3-2010 by
this Tribunal and the said order was also confirmed
by the Hon'ble High Court, Madras on 23-3-2010
in W.P. No. 5736/2010. The above order was also
further confirmed by the Bench in Writ Petition
No. 674/2010, dated 23-9-2010, observing that the
management will be at liberty to lead evidence before
the Labour Court. Further the management filed an
application in I.A. No.138/2010, ordering to issue
summons to the said E. Selvaraj, Labour Contractor
to produce the connected documents and the petition
was allowed on 9-12-2010 by this court. The said
Selvaraj
was
summoned
by
the
respondent.
Eventhough the summons was served to appear on
21-3-2011, the said Selvaraj was absent on 21-3-2011
and 20-4-2011. Hence, the respondent/management
proceeded with their case and the proof affidavit of
RW1 was filed on 20-4-2011. The non-examination of
the said Selvaraj is fatal to the case of the
respondent. Apart from the above, on the side of the
respondent, no wage register has been produced
pertaining to the relevant period to prove that the
petition mentioned workmen were not his employees.
Hence, the respondent has failed to prove that the
petition mentioned workmen were not their employees
and they were working under the contractor by name
E. Selvaraj.
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LA GAZETTE DE L’ETAT
[5 March 2013
17. At this juncture, it is pertinent to refer the
following decisions, which are relevant to this case:-
1990(1) LLJ Page 445:
Dhilip Hanumantrao Shirke and Others Vs. Zilla
Parishad, Yavatmal and Others:-
“Section 2(OO) sub-clause (bb) and section 25-F -
Sub-clause (bb) of Section 2(OO) has to be
construed strictly - Letter of appointment
providing fixed tenure cannot be the sole basis to
determine whether sub-clause (bb) of section
2(OO) is attracted-Nature of employment, nature of
duties and type of job should be considered -
Amended sub-clause (bb) would apply only to
cases where work ceases with employment or post
itself ceases to exist or such other analogous
cases where contract of employment is fair, proper
and bona fide - Labour Court has jurisdiction to
examine each and every case and protect the
workmen against exploiting employers.”
AIR 1985 Supreme Court 670:
The Workmen of Food Corporation of India Vs.
Food Corporation of India:
“Contract Labour (Regulation and Abolition)
Act (37 of 1970), Pre. - Object of Act - What is - Anti-
labour practice must be thwarted:
“The Act was enacted with a view to abolishing
wherever possible or practicable, the employment
of contract labour. The Act aimed at abolition of
contract labour in respect of such categories as
may be notified. Where the law helps, such anti-
labour practices must be thwarted or nipped into bud”.
2001(II) LLJ 1087 (2001 - (oo7) - S.c.C. - 0001):
Steel Authority of India Limited and Others Vs.
National Union Waterfront Workers and Others:-
"An analysis of the cases, discussed above,
shows that they fall in three classes: (1) where
contract labour is engaged in or in connection
with the work of an establishment and employment
of contract labour is prohibited either because the
industrial adjudicator/court ordered abolition of
contract Labour or because the appropriate
Government issued notification under section 10(1)
of the CLRA Act, no automatic absorption of the
contract labour working in the establishment was
ordered: (ii) where the contract was found to be a
sham and nominal, rather a camouflage, in which
case
the
contract
labour
working
in
the
establishment of the principal employer were held,
in fact and in reality, the employees of the principal
employer himself. Indeed, such cases do not relate
to abolition of contract labour but present
instances wherein the court pierced the veil and
declared the correct position as a fact at the stage
after employment of contract labour stood
prohibited; (iii) where in discharge of a statutory
obligation of maintaining a canteen in an
establishment the principal employer availed the
services of a contractor the courts have held that
the contract labour would indeed be the employees
of the principal employer.”.
18. As per the decision rendered by the Hon'ble
Apex Court in the said Steel Authority of India case,
it is the duty of the Labour Court to analyse whether
the alleged contract is sham and nominal or real one.
The reality of the nature of contract has to be
scrutinised thoroughly by the Labour Court. When
the licence for engaging contract labour was denied
by the Labour Officer through Ex.P5 and Ex.P6 and
the same was confirmed by the Hon'ble High Court,
Madras in Ex.P7, it is the duty of the respondent
management to prove their case in rightful manner.
When the respondent denies that the petition
mentioned workmen were not employed under their
management, it is the burden of the respondent to
prove that they were not employed under their
supervision. It is the duty of the respondent to prove
that the petition mentioned workmen were working
under the said Selvaraj. To prove the above version,
as already stated, the said Selvaraj has not been
examined as a witness before this court. Eventhough
some of the documents refer about the said contractor
E. Selvaraj, there is no conclusive proof to ascertain
that the respondent engaged him, as their contractor
to engage the petition mentioned workmen to perform
certain other duties. It is the duty of the management
to prove that the alleged agreements between the said
Selvaraj and the respondents under Ex.R1 to Ex.R3
are legally valid or not. Further the said documents
under Ex.R1 to Ex.R3 are not registered one.
Eventhough through Ex.R6, separate code has been
issued, the licence was refused by the concerned
Labour Officer to engage the alleged contractor
Selvaraj through Ex.P5 and Ex.P6. At this stage, on
what basis, the management has entered the
unregistered agreements between the alleged
contractor Selvaraj and the respondent management
through Ex.R1 to Ex.R3 has to be explained by the
management properly. But there is no proper
explanation from them in this regard. Ex.R30 is the E.S.I.
pay slip, Ex.R31 is the E.P.F. challans and Ex.R72 is
the application forms submitted to E.P.F. organisation
and these documents may be self serving documents
of the management, since as already stated there was
no licence issued to the respondent management to
engage the said Selvaraj as contract labour by the
concerned authority. Ex.R71 is the settlement under
173
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LA GAZETTE DE L’ETAT
section 18(1) of the Industrial Disputes Act, through
which some settlement has been arrived between the
parties. But the said settlement under Ex.R71 has
been denied by the petitioner. Hence, the said Selvaraj
is the competent person to speak about the said
settlement under Ex.R71. As already stated the said
Selvaraj has not been examined as a witness before
this court. Under these circumstances, in the absence
of any legal contract to show that the said Selvaraj
was appointed as contractor to engage the petition
mentioned workmen under the contractual basis, this
court cannot come to the conclusion that the said
Selvaraj is the contractor of the respondent and the
petition mentioned workmen were employed as
contract workmen under the relevant period.
19. The contention of the petitioner is that the
petition mentioned workmen were terminated from
service without any reason or enquiry and hence the
action of the respondent is illegal, arbitrary and
unsustainable in law.
20. There is no record produced on the side of the
respondent to prove that the enquiry was conducted
before terminating the petition mentioned workmen
from service. Further no termination order was issued
to them. In the above circumstances, the termination
of the petition mentioned workmen by the respondent
is illegal. The learned counsel for the respondent has
submitted that some of the employees were given
employment as per the decision taken by the
management. But there is no clear picture shown by
the learned counsel for the petitioner about this
aspect. Hence, the employees, who were not
re-employed by the respondent management, are
entitled to get employment under the respondent as
per the Industrial Disputes Act. Hence for the
reasons stated above, this court has come to the
conclusion that the petition mentioned workmen were
the employees under the respondent and their
termination from the service is against the law.
Accordingly, this point is answered.
21. In the result, this industrial disputes is allowed
and the petition mentioned employees are entitled for
reinstatement with continuity of service and other
attendant
benefits.
The
petition
mentioned
employees are also entitled for 25% of back wages.
No costs.
Typed to my dictation, corrected and pronounced
by me in the open court on this the 28th day of
February, 2012.
T. MOHANDASS,
II Additional District Judge,
Presiding Officer,
Labour Court, Puducherry.
List of witnesses examined for the petitioner:
P.W.1—23-11-2010—Balasubramanian
List of witnesses examined for the respondent:
RW1—20-4-2011—Jayaseelan
List of exhibits marked for the petitioner:
Ex.P1
— Copy of the dispute raised by the petitioner
union, dated 18-9-1996.
Ex.P2 — Copy of the bonus demand letter by the
petitioner union, dated 11-10-1997.
Ex.P3 — Complaint addressed to Chief Inspector
of Factories.
Ex.P4 — Copy of the notification by the Labour
Department, dated 19-4-1999.
Ex.P5 — Copy of the letter for refusal of licence
by the authority to Selvaraj, dated,
17-8-1993.
Ex.P6 — Copy of the letter for refusal of licence
b y t h e a u t h o r i t y t o S e l v a r a j ,
dated 8-7-1996.
Ex.P7 — Copy of the order of Hon'ble High Court,
dated 27-3-1997.
Ex.P8 — Total list of workmen engaged in Unit II
with all details.
List of exhibits marked for the respondent:
Ex.R1 — Agreement between Selvaraj and
respondent company dated 31-12-1992
Ex.R2 — Agreement
between
Selvaraj
and
respondent company, dated 9-12-1995.
Ex.R3 — A m e n d m e n t t o a g r e e m e n t , d a t e d
9-12-1995.
Ex.R4 — Letter by respondent to Labour Officer,
dated 6-2-1993.
Ex.R5 — Settlement under section 12(3) of
Industrial Disputes Act, dated 5-3-1992.
Ex.R6 — Allotment
letter
for
issuance
of
s e p a r a t e P F c o d e n u m b e r, d a t e d
29-3-1993.
Ex.R7 — Letter sent by Registering Officer,
dated 9-9-1992.
Ex.R8 — Application for licence by Selvaraj
dated 22-9-1992.
Ex.R9 — Letter by respondent to Labour Officer,
dated 6-11-1992.
Ex.R10 — Order by Labour Officer to Selvaraj,
dated 17-8-1993.
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LA GAZETTE DE L’ETAT
[5 March 2013
Ex.R11 — Affidavit of Selvaraj in W.P. No.10880/
1996.
Ex.R12 — Affidavit of petitioner union, dated
28-8-1996.
Ex.R13 — Order by Hon'ble High Court in W.P.
No.10880/96, dated 6-9-1996.
Ex.R14 — Counter affidavit filed by Labour
Officer, dated 20-9-1996.
Ex.R15 — Counter affidavit filed by respondent,
dated 12-12-1996.
Ex.R16 — Order of Hon'ble High Court in W.P.
No.10880/96, dated 27-3-1997.
Ex.R17 — Grounds of appeal by Selvaraj in
W.A.338/97 dated 10-4-1997.
Ex.R18 — Affidavit filed by Selvaraj in W.A.338/
97, dated 10-4-1997.
Ex.R19 — Affidavit by petitioner union, dated
28-6-1997.
Ex.R20 — Order of Hon'ble High Court in
C.M.P.
5567/97, dated 9-4-1997.
Ex.R21 — Order by Hon'ble High Court in W.A.
338/97 dated 6.9.2001.
Ex.R22 — Affidavit by Mettupalayam Industries
Pattali Workers Union in W.P. No.10880/96,
dated 20-11-1996
Ex.R23 — Order passed by Licensing Authority,
dated 14-12-2001.
Ex.R24 — Letter by respondent to Registering
Officer, dated 30-12-1995.
Ex.R25 — Letter by respondent to Registering
Officer, dated 24-6-1996.
Ex.R26 — Letter by Registering Officer, dated
2-9-1997.
Ex.R27 — Letter by respondent to Registering
Officer, dated 20-9-1997.
Ex.R28 — Bank vouchers 6 in Nos.
Ex.R29 — Invoice of Selvaraj 12 in Nos.
Ex.R30 — E.S.I.C. Pay in slip 10 in Nos.
Ex.R31 — E.P.F. challans 44 in Nos.
Ex.R32 — Affidavit by respondent in W.P.
No. 13562 of 1999.
Ex.R33 — Affidavit by Selvaraj, dated 17-6-1999.
Ex.R34 — Order by Hon’ble High Court in W.M.P.
No.19519/99, dated 10-8-1999.
Ex.R35 — Order by Hon’ble High Court in W.P.
No. 10608/1999 dated 1-9-2003.
Ex.R36 — Order in IA16/1999 dated 3-3-2010.
Ex.R37 — Order by Hon’ble High Court in W.P.
No. 13562/1999, dated 9-2-2009.
Ex.R38 — Typed set documents along with index
in W.A. No. 674/2010.
Ex.R39 — Order by Hon'bie High Court in W.A.
No. 674/2010, dated 23-9-2010.
Ex.R40 — Petition by petitioner union, dated
22-5-1996.
Ex.R41 — Form L strike notice by petitioner union
dated 23-5-1996.
Ex.R42 — Notice of enquiry, dated 23-5-1996.
Ex.R43 — Letter-by Selvaraj, dated 27-5-1996.
Ex.R44 — Letter by respondent to Labour Officer,
dated 3-6-1996.
Ex.R45 — Letter by respondent to Labour Officer,
dated 25-6-1996.
Ex.R46 — Letter by Selvaraj to Labour Officer,
dated 25-6-1996.
Ex.R47 — Letter by respondent to Labour Officer,
dated 8-7-1996.
Ex.R48 — Letter by Selvaraj, dated 11-7-1996.
Ex.R49 — Counter of petitioner union to Labour
Officer, dated 19-7-1996.
Ex.R50 — Letter by respondent to Labour Officer,
dated 19-7-1996.
Ex.R51 — Letter by respondent to Labour Officer,
dated 22-7-1996.
Ex.R52 — Letter by respondent to Labour Officer,
dated 25-7-1996.
Ex.R53 — Letter by respondent to Labour Officer,
dated 26-7-1996.
Ex.R54 — Letter by respondent to Labour Officer,
dated 7-8-1996.
Ex.R55 — Letter
by
respondent
to
Labour
Commissioner, dated 9-8-1996
Ex.R56 — Letter by respondent to Labour Officer,
dated 12-8-1996.
Ex.R57 — Letter by petitioner union to respondent,
dated 15-4-1997.
Ex.R58 — Letter by Selvaraj to Labour Officer,
dated 16-4-1997.
175
5 March 2013]
LA GAZETTE DE L’ETAT
Ex.R59 — Letter by respondent to Labour Officer,
dated 12-5-1997.
Ex.R60 — Letter by Selvaraj to Labour Officer,
dated 12-5-1997.
Ex.R61 — Letter by respondent to Deputy Labour
Commissioner, dated 14-5-1997.
Ex.R62 — Letter by respondent to Labour Officer,
dated 23-9-1997.
Ex.R63 — Letter by respondent to Commissioner
of Labour, dated 23-9-1997.
Ex.R64 — Letter by respondent to Secretary,
dated 24-9-1997.
Ex.R65 — Letter by respondent to Labour Officer,
dated 23-9-1997.
Ex.R66 — Letter by respondent to Deputy Labour
Commissioner, dated 28-5-1998.
Ex. R67— Letter by respondent to Deputy Labour
Commissioner, dated 10-6-1998.
Ex.R68 — Failure report by Deputy Labour
Commissioner, dated 15-3-1999.
Ex.R69 — Reference Notification, dated 19-4-1999.
Ex.R70 — FIR No.42/96 of Mettupalayam P.S.,
dated 11-6-1996.
Ex.R71 — Settlement under section 18(1) of
Industrial Disputes Act.
Ex.R72 — Application forms submitted to E.P.F.
Organisation.
Ex.R73 — Appointment letter to R. Subramanian,
dated 1-9-1997.
Ex..R74
— Appointment letter to A. Singaravelu,
dated 4-11-1998.
Ex.R75 — Appointment letter to K.T. Anilkumar,
dated 15-3-2002.
Ex.R76 — Appointment letter to A. Arokiasamy.
Ex.R77 — Photocopy of the proceedings of the
Labour Officer.
Ex.R78 — Copy of the letter by Selvaraj, dated
27-5-1996.
Ex.R79 — Copy of the letter, dated 5-6-1996 sent
by respondent.
Ex.R80 — Copy of the letter, dated 3-6-1996 sent
by respondent.
Ex.R81 — Copy of the letter, dated 11-6-1996 sent
by the respondent.
Ex.R82 — Copy of the letter, dated 25-6-1996 sent
by the respondent.
Ex.R83 — Copy of the letter by Selvaraj, dated
25-6-1996.
Ex.R84 — Copy of the notice of enquiry, dated
26-6-1996.
Ex.R85 — Copy of letter, dated 8-7-1996 by the
respondent.
Ex.R86 — Copy of letter, dated 11-7-1996 by
Selvaraj.
Ex.R87 — Copy of letter, dated19-7-1996 by the
respondent.
Ex.R88 — Copy of letter, dated 26-7-1996 by the
respondent.
Ex.R89 — C o p y o f no t i c e o f en q u i r y, d a t e d
18-8-1997.
Ex.R90 — Copy of letter by Selvaraj, dated
18-8-1997.
Ex.R91 — C o p y o f l e t t e r b y S e l v a r a j , d a t e d
21-8-1997.
Ex.R92 — Copy of the proceedings of the Labour
Officer.
Ex.R93 — Copy of the letter by respondent, dated
28-5-1998.
Ex.R94 — Copy of the letter by the respondent,
dated 10-6-1998.
Ex.R95 — C o p y o f no t i c e o f en q u i r y, d a t e d
2-7-1998.
T. MOHANDASS,
II Additional District Judge,
Presiding Officer,
Labour Court, Puducherry.
GOVERNMENT OF PUDUCHERRY
OFFICE OF THE CHIEF EDUCATIONAL OFFICER
No. 650/CEO/Exam Cell/2012-13.
Puducherry, the 13th February 2013.
NOTIFICATION
It is hereby notified that the original S.S.L.C. / Matric
Mark Certificate, bearing Register Number 473458 of
March 2004, in respect of D. Rajesh, an ex-pupil of
Fatima Higher Secondary School, Karuvadikuppam is
reported to have been lost and beyond the scope of
recovery and it is proposed to issue a duplicate