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LA GAZETTE DE L’ETAT

[30 April 2013

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 51/Lab./AIL/J/2013, dated 12th April 2013)

NOTIFICATION

Whereas, an award in I.D. No. 33/2008, dated

13-12-2012 of the Labour Court, Puducherry in respect

of the industrial dispute between the President,

Swadeshi Panchalai Thozhilalar Urimai Padukapu

Sangam, Puducherry and the General Manager

Swadeshi Cotton Mills, Puducherry over the claim for

change of date of joining of 25 workers 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)

S. THAMMU GANAPATHY,

Under Secretary to Government (Labour).

————

BEFORE THE LABOUR COURT AT PUDUCHERRY

Present : Thiru T. MOHANDASS, M.A., M.L.,

Presiding Officer, Labour Court,

Puducherry.

Thursday, the 13th day of December 2012

I.D. No. 33/2008

The President,

Swadeshi Panchalai Thozhilalar Urimai

Padukapu Sangam,

Puducherry

. . Petitioner

Vs.

The General Manager,

Swadeshi Cotton Mills,

Puducherry

. . Respondent

This industrial dispute coming on 7-12-2012 for final

hearing before me in the presence of Thiru K. Velmurugan,

Advocate for the petitioner, Thiru K. Ravikumar,

Advocate for the respondent, upon hearing both

sides, upon perusing the case records, after having

stood over for consideration till this day, this court

passed the following :

AWARD

This industrial dispute arises out of the reference

made by the Government of Puducherry, vide G.O. Rt.

No. 151/AIL/Lab./J/2008, dated 13-10-2008 of the

Labour Department, Puducherry to resolve the

following dispute between the petitioner and the

respondent, viz.,

1. Whether the dispute raised by Swadeshi

Panchalai Thozhilalar Urimai Padukapu Sangam,

Puducherry for change of date of joining of 25 workers

Thiruvalargal (1) R. Balasegar, (2) S. Srinivasan,

( 3 ) S . N a g a s u n d a r a m , (4) P. Paramasivam,

(5) M. Kalyanasundaran, (6) M. T h a n a p p a n ,

(7) V. Kothandapani, ( 8 ) V. Ve e r a s e l v a m ,

( 9 ) R . M u n i s a m y , (10) R. Janakiraman,

(11) K. Neelakandan, (12) M. Patturaja Samuel,

(13) S. Kasinathan, (14) K. Kalianam, (15) E. Kalidass,

(16) M. Chandirasegaran, (17) P. Vinayagamurthy,

(1 8 ) S . N a t a r a j a n , ( 1 9 ) K . M a n n a k a t t y,

(20) T. Veerappan, (21) M. Ramesh, (22) M. Jayavelu,

(23) K. Udayakumar, (24) K. Kaliamurthy and

(25) S. Subramanian is justified or not?

2. To what relief, they are entitled to? Give

appropriate directions.

The petitioner, in his claim statement has averred

as follows :

At the time of appointment, the petition

mentioned workmen were paid ` 8 per day and

subsequently it was raised to ` 12 per day and

finally at ` 24 per day. The said workmen worked

continuously for more than 240 days of every year

in the respondent mills without any sort of black

mark whatsoever. As such ranging from the year

1986 to 1988, the employees were covered under

the ESI Scheme and ESI Identity Card also issued

to them in this regard. From the date on which the

ESI coverage was extended to them, ESI

contribution was deducted from their salary.

On 1-4-1991 the above employees were covered

under the Employees Provident Fund and

Miscellaneous Provisions Act, 1956 and separate

Provident Fund account number was given to each

and every employee and thereafter Provident Fund

Contributions were deducted from the salary of the

employees.

On

26-5-1993

the

respondent

management confirmed the services of the

abovesaid 25 workmen. However, the date of

joining the said workmen were entered into the

service records as 26-5-1993 instead of their

respective original date of appointment in the

respondent mills.

On 17-5-1993 the petitioner union entered 18(1)

settlement

agreement

with

the

respondent

management whereby the petitioner union has

423

30 April 2013]

LA GAZETTE DE L’ETAT

agreed that it will not raise any dispute and also

will not file any case as against the management

with regard to date of joining of 25 workmen, until

the

management

proceeds

with

24

hours

continuous operation of the mill. After signing of

the above settlement agreement, the respondent

continued with 24 hours continuous operations of

the mill for some years. This being so, the

respondent with effect from 28-8-2005 unilaterally

and arbitrarily terminated the above settlement

agreement without intimating the petitioner union

and thereby stopped the 24 hours continuous

operation of the mills. Hence, the petitioner union

is not bounded by the terms and conditions of the

aforesaid agreement. As such the plea of the

respondent that the petitioner cannot raise any

dispute with regard to their date of joining

belatedly and that too contrary to the agreed terms

of the settlement agreement will not arise.

Further one S. Kumar, R. Jeevanandam, Adiseshan,

Munisamy and Sridharan were appointed in the

Bharathi Mills on 3-5-1986 and their services were

regularised on 1-8-1995 though the said workmen

were regularised on 1-8-1995, their date of joining was

entered as 3-5-1986. Thus it is evident that the act

of the respondent in the case on hand by not

considering the actual date of joining of the said

17 workmen is illegal, unjust and not proper. Hence,

the industiral dispute is filed directing the

respondent to correct the date of joining of the said

workmen from 26-5-1993 to their respective original

date of appointment as mentioned in the petition

in all the service records and other incidental

records

maintained

by

the

respondent

management.

3. In the counter statement, the respondent has

stated as follows:

The practice of respondent mill is that on

requirement any person is employed as gate

casuals first and then only on regular requirement

become a temporary employee and then only can

be confirmed. In cases of all the abovesaid 25

workmen, they were gate casuals and they were

regularised in the services as per 18(1) settlement,

dated 17-3-1993 with effect from 26-5-1993 as the

mills

required

additional

hands

due

to

implementation of 24 hours working per day and

for 7 days in a week as against 22 ½ hours per day

and 6 days a week. Therefore, they were

regularised as a goodwill gesture.

The petitioners are claiming to consider the date

of entry mentioned in the ESI card as the date of

confirmation for all other purposes and records.

The ESI card is issued under the ESI Act and the

same yardstick under which a worker is brought

under the ambit of the ESI Act cannot be in blanket

and blindly applied to all records not covered by

the ESI Act. The ESI card that the petitioners rely

on and base their whole claim is issued even to

temporary workers, contract labourers and casual

labourers. Such temporary workers, contract

labourers and casual labourers cannot claim any

rights based on the ESI card except those that are

envisaged in the Act.

The very basic details, such as name,

department, category, token number, father's name,

date of birth and date of entry of each and every

one of the workmen of the respondent mills, as per

the records of the respondent mills are reproduced

in each payslip of such workmen. Each and every

one of the petitioners, who have raised the dispute

have put in service of more than twenty years and

have received and checked and have been satisfied

with the entries in their respective payslips for all

these years. The petitioners are estopped from now

raising any dispute over the entries made in the

pay slip and reproduced in the list with permanent

numbers.

Further as per the practice of the respondent

mills, each of the petitioners will have to submit

service and identification agreement and gratuity

nomination. Each of the petitioners have signed

and submitted the service and identification

agreements and gratuity nominations. Only based

on the information given by the petitioners

themselves, the entries have been made in the

respondent mills records. The petitioners have not

claimed that they themselves have given the date

of entry wrongly. Hence, the petitioners are

estopped from claiming such a relief. Hence, the

respondent prays for dismissal of the industrial

dispute.

4. On the side of the petitioner, PW.1 and PW.2

were examined and Ex.P1 to Ex.P10 were marked. On

the side of the respondent, RW.1 and RW.2 were

examined and Ex.R1 to Ex.R7 were marked.

5. The point for determination is:

Whether the petitioner can be considered for

reinstatement in service with accrued benefits?

6. On the point:

The contention of the petitioner union is that the

abovesaid workmen worked continuously for more

than 240 days of every year in the respondent mills

without any sort of black mark whatsoever and as

such ranging from the year 1986 to 1988, the said

employees were covered under the ESI Scheme and

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LA GAZETTE DE L’ETAT

[30 April 2013

ESI Identity Card also issued to them in this regard

and on 1-4-1991 they were covered under the

Employees Provident Fund and Miscellaneous

Provisions Act, 1956 and separate provident fund

account number was given to each and every

employee and thereafter provident fund contributions

were deducted from the salary of the employees and

on 26-5-1993 the respondent management confirmed

the services of the said workmen, however, the date

of joining the said workmen were entered into the

service records as 26-5-1993 instead of their

respective original date of appointment, which

mentioned in the petition, in the respondent mills. In

order to prove the said version, the President of the

petitioner union was examined as PW.1 and marked

Ex.P1 to Ex.P10. Ex.P1 is the copy of the payslip and

Ex.P2 is the copy of the ESI card of the workmen. As

per Ex.P2, the date of joining of the each of the

workmen is as follows:

1.

R. Balasegar

—

6-6-1981

2.

S.Srinivasan

—

6-6-1981

3.

S. Nagasundaram

—

11-10-1982

4.

P. Paramasivam

—

11-11-1983

5.

M. Kalyanasundaram —

6-6-1981

6.

M.Thanappan

—

11-12-1983

7.

V. Kothandapani

—

6-6-1981

8.

V. Veeraselvam

—

20-10-1982

9.

R. Munisamy

—

1-6-1985

10. R. Janakiraman

—

10-8-1984

11. K. Neelakandan

—

1-1-1987

12. M. Patturaja Samuel

—

30-12-1983

13. S. Kasinathan

—

10-10-1981

14. K. Kalianam

—

20-11-1984

15. E. Kalidass

—

11-11-1983

16. M. Chandirasegaran

—

10-10-1984

17. P. Vinayagamurthy

—

30-4-1986

18. S. Natarajan

—

7-6-1985

19. K. Mannakatty

—

30-4-1984

20. T. Veerappan

—

12-12-1983

21. M. Ramesh

—

1-6-1986

22. M. Jayavelu

—

10-10-1986

23. K. Udayakumar

—

10-10-1979

24. K. Kaliamurthy

—

26-1-1984

25. S. Subramanian

—

6-7-1985

But the date of joining of all the abovesaid workmen

has been mentioned as 26-5-1993, as could be seen

from the copy of the payslip of the said workmen.

7. The learned counsel for the respondent has

stated that the petitioners are claiming to consider

the date of entry mentioned in the ESI card as the

date of confirmation for all other purposes and

records and the ESI Card is issued under the ESI.

Act and the same yardstick under which a worker is

brought under the ambit of the ESI Act cannot be in

blanket and blindly applied to all records not covered

by the ESI Act and the ESI card that the petitioners

rely on and base their whole claim is issued even to

temporary workers, contract labourers and casual

labourers and such temporary workers, contract

labourers and casual labourers cannot claim any

rights based on the ESI card except those that are

envisaged in the Act. He further submitted that all

the employees are given individual ESI Cards by the

ESI Corporation, in which the date of entry into the

mills is given as per the information proved by the

management and this does not mean that they have

entered to the mills as casuals and hence he denied

that the date of entry as per the ESI. Identity card

is liable to be taken as date of confirmation. In order

to prove his claim, the Security Officer of the

respondent mill was examined as RW.1.

8. On the side of the respondent, the Branch

Manager of ESI Corporation was examined as RW.2.

RW.2 in his evidence has deposed that the ESI Card

will be issued to the workmen, who is Casual Labour,

temporary or permanent workmen, those who are

getting the salary up to ` 15,000 per month as per

the request of the management and the management

will send the declaration form. RW.2 further deposed

that the ESI Card will be issued even to the Casual

Labourers, who are working for more than three

months and even if the particular workman

discontinue his service, the same number will be

continued even after he rejoins in the service and the

date of joining already mentioned in the ESI card will

continue.

9. RW.2 further stated that it is the respondent

management, who is custodian of the attendance

records relating to its employees and only seeing

upon that, one can find out whether the workmen

worked 240 days in a year or not. He also stated that

based upon the information furnished by the

respondent management alone, the ESI card was

issued by the ESI Corporation.

10. The learned counsel for the petitioner has

submitted that on 17-5-1993 the petitioner union

entered an 18(1) settlement agreement with the

respondent management whereby the petitioner union

has agreed that it will not raise any dispute and also

will not file any case as against the management with

regard to the date of joining of 25 workmen, until the

425

30 April 2013]

LA GAZETTE DE L’ETAT

management proceeds with the 24 hours continuous

operation of the mill and in other words, the main

core of the agreement is that the trade union will not

raise any dispute with regard to the date of joining

i.e., 26-5-1993 of 25 workmen, only if the management

carries on 24 hours continuous operations of the mill

continuously i.e., without any interruption and after

the signing of the above settlement agreement, the

respondent continued with 24 hours continuous

operations of the mill for some years and this being

so, the respondent with effect from 28-8-2005

unilaterally and arbitrarily terminated the above

settlement agreement without intimating the petitioner

union and thereby stopped 24 hours continuous

operation of the mills and when the petitioner union

asked the management as to the reason for unilateral

termination of the above settlement agreement, the

respondent gave vague and evasive reply to them and

aggrieved by this, the petitioner union raised the

industrial dispute with regard to the date of joining

of the above workmen. The learned counsel for the

petitioner relied upon the following decision to

support his claim:-

2001(3) LLJ 698:

“I have considered the submissions which have

been urged on behalf of the petitioner. Emphasis

has been placed on the submission that the

workers were engaged from time to time as

temporaries depending upon the exigencies of the

work. The fact which emerges from the record is

that these workmen were engaged for well over a

decade, and by the time the Award of the Industrial

Court came to be passed, for two decades. The

workmen, even if they did not complete the

requirement of 240 days service, during the period

1986 to 1991, as was the submission of the

petitioner before the Industrial Court, there was no

denial of the fact that they had rendered long

service as temporary workers, since they originally

joined between the years 1979 to 1981. The

company failed to produce on the record material

or documents in its possession as regards the

extent of work which was performed between 1979

and 1986. Workmen who were junior to the workers

in question came to be regularised in service. The

workers were denied the benefit of the conditions

of service which were allowed to permanent

workers and they had to work as temporaries, on

paltry wages. The work which was performed by

the temporary workers was of the same nature as

the work performed by permanent workmen. For

long years, these workers continued as temporaries

only to be deprived of the security of service and

the conditions of service allowed to permanent

workers. The role of the petitioner, even after the

take over under a Parliamentary enactment was not

what is envisaged for the State as model employer.

In these circumstances, the award of the Industrial

Tribunal cannot be faulted.

11. Per contra, the contention of the learned

counsel for the respondent is that the settlement is

valid until replaced by a new settlement or an Award

of the court and in the case on hand, no such new

settlement or Award has come into force and hence

the 18(1) settlement, dated 17-5-1993 is still in

existence and binding on the petitioner. In order to

support his claim, he relied upon the following

decision:

2009 STPLE (LE) 42501:

Gujarat Agricultural University Vs. Ali

Gujarat Kamdar Karamachari Union (S.C.)

“It is an admitted position that no new

settlement has been entered between the employer

and the workmen subsequently nor any award has

replaced the settlement dated August 22, 1980

continues to regulate the conditions of service of

the workmen covered thereby. The contract of

service or the conditions of service provided in the

settlement holds the field unit new lawful

settlement is brought into being.”.

12. The primary document which contains the date

of joining of every workman in an establishment is

the Muster Roll and the Production Book Register.

As such in order to prove the factum of employment

of 25 workmen in the respondent management, the

petitioner had summoned the respondent to produce

the Muster Roll and the Production Book Register in

respect of the said workmen. However, the respondent

has not produced the same and has stated that it was

damaged. RW.1 has marked the payslips of the

workmen as Ex.R2, Copy of the Nomination Forms of

the workmen as Ex.R3, Copy of the standing orders

for the Employees of Sri Bharathi Mills Limited as

Ex.R4. RW.2 has marked the Authorisation Letter as

Ex.R5, Insurance particulars in respect of the said

workmen as Ex.R6 and Copy of the Form-5 and Form-6

as Ex.R7. Those documents are not in any way

helpful to the case of the respondent. Under such

circumstances, it is pertinent to refer section 114(g)

of Indian Evidence Act which runs as follows:

“That evidence which could be and is not

produced would, if produced, be unfavourable to

the person withholds it."

Thus adverse inference could be drawn against

such document for not producing the relevant

documents before this court and consequently, the

benefit goes in favour of the petitioner.

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LA GAZETTE DE L’ETAT

[30 April 2013

13. Though the petitioner union has mentioned the

original date of joining in their claim statement, they

have not produced any document to prove their claim.

The particulars of date of birth and the date of

joining are mentioned in the payslips under Ex.P1 and

Ex.R2 issued to the said workmen of the respondent

mill every month. According to the respondent

management, the said workmen have not objected the

particulars regarding the date of birth and date of

entry, which are mentioned in the payslips for so

many years, but now only, through the unions, they

have objected the same and insisted the respondent

management to enter the date of entry as found in

ESI card. The ESI card is no doubt issued to the

employees, those who are working in the respondent

mill. But it is the contention of the management that

the date of entry as found in ESI card cannot be taken

into consideration as date of joining, since they could

have discontinued from the service and joined later

stage.

14. It is not denied by the respondent management

that the ESI cards were issued to the petitioners, when

they were working in the same establishment. When

the petitioner says that the ESI card is issued at the

instance of the respondent management, it is the duty

of the respondent to prove that the said workmen

were left service in a particular date and later joined

in their establishment. In this case, the respondent

has not taken any steps to bring any records to prove

that the said workmen were discontinued their service

after issuing the ESI cards to them.

15. The contention of learned counsel for the

petitioner is that one S. Kumar, R. Jeevanandam,

Adiseshan, Munisamy and Sridharan were appointed

in the Bharathi Mills on 3-5-1986 and their services

were regularised on 1-8-1995 and though the said

workmen were regularised on 1-8-1995, their date of

joining was entered as 3-5-1986 and thus it is evident

that the act of the respondent in the case on hand

by not considering the actual date of joining of the

said 17 workmen is illegal, unjust and not proper.

16. In this regard, the learned counsel for the

respondent has submitted that the said five workmen

were working in the canteen for a very long time and

the canteen in the mills is run by the mill management

and for all purposes the said five canteen casuals

were treated as mill employees and hence they were

regularised during May 1986 and their work is regular

and permanent in nature. But in order to prove the

said claim, no document was filed on the side of the

respondent.

17. The labour legislations were enacted to bring

peace among the workers to bring more productivity

in our country in the smooth circumstances. When

the ESI cards were issued to the said workmen by the

respondent management, the presumption is that the

said workmen were working under the respondent

management from the date of entry, which was found

in ESI card. The industrial legislations were enacted

to achieve the ambitions enshrined under Article 14

and 21 of Constitutional Law of India. The

proposition laid down by the Hon'ble Supreme Court

in the following cases are very relevant at this stage:

2005(3) L.L.N. 719 (Madras):

National Small Industries Corporation

Limited, Chennai Versus Presiding Officer,

I Additional Labour Court, Madras and

another:

“The whole approach of industrial law is that the

employer and employee do not stand on an equal

bargaining position Industrial law recognises that the

workers are in a weaker position than the employers

who have financial resources, management skills,

connections, etc., Hence the whole object of industrial

law is to help the weaker section in the society (the

workmen)

and

given

them

protection

from

exploitation. There can be no estoppel against a

person, who accepts his designation as an

apprentice, but later on raises a plea that in fact he

was not an apprentice but was doing the work of a

workman.”.

1982 I LLJ 33 S.C.:

Workmen of M/s. Williamson Magor and Co.

Limited Verus William Magor and Company Limited:

“This court in the case of KCP Employees

Association, Madras Vs. Management of KCP

Limited, Madras and other reported in (1977 1 L.L.J.

322) observed:

"In Industrial Law, interpreted and applied in the

perspective of Part IV of the Constitution, the benefit

of reasonable doubt, on law and facts, if there be

such doubt must go to the weaker section, labour.

The Tribunal will dispose of the case making this

compassionate approach but without over stepping

the proved facts.”.

The above proposition of law laid down by the

Superior Courts were to be borne in mind to decide

this case. The workers, who are from weaker section

of the society, should not be exploited by the

management, those who are in higher position. Hence,

the relief sought by the petitioner union is reasonable

and genuine and the change of date of entry of the

said 25 workmen according to the date of joining

mentioned in their ESI Identity Card is justifiable.

Accordingly, this point is answered.

427

30 April 2013]

LA GAZETTE DE L’ETAT

18. In the result, the industrial dispute is allowed

and the respondent is hereby directed to correct the

date of entry of said 25 workmen as per the ESI

register and enter the same in the relevant registers

of the respondent mill. No costs.

Typed to my dictation, corrected and pronounced

by me in the open court on this the 13th day of

December, 2012.

T. MOHANDASS,

Presiding Officer, Labour Court,

Puducherry.

————

List of witnesses examined for the petitioner :

PW.1 — 1-12-2011 K. Mohandass

PW.2

—

9-8-2012 Gopi Mohanan

List of witnesses examined for the respondent :

RW.1

—

28-9-2012 Gopimohan

RW.2

—

29-11-2011 Padmini

List of exhibits marked for the petitioner :

Ex.P1 — Copy of the payslip of the petitioner

mentioned workmen.

Ex.P2 — Copy of the ESI card of the petition

mentioned workmen.

Ex.P3 — Copy of the letter given by the

petitioner union to the respondent,

dated 4-12-2004.

Ex.P4 — Copy of the letter, dated 4-12-2004 given

by the petitioner union to respondent.

Ex.P5 — Copy of the letter, dated 31-1-2005 given

by the petitioner union to Labour

Officer

Ex.P6 — Copy of the representation, dated 12-12-2006

given by the petitioner union to the

Labour Officer.

Ex.P7 — Copy of the failure report, dated 18-7-2008.

Ex.P8 — Copy of the notification, dated 1-10-2008.

Ex.P9 — Copy of the information, dated 4-12-2009

obtained under RTI.

Ex.P10 — Authorisation letter, dated 7-7-2012

List of exhibits marked for the respondent :

Ex.R1 —

Copy of the 18(1) settlement, dated 17-5-1993.

Ex.R2 — Copy of the standing order

Ex.R3 — Copy of the Payslips of 25 workmen

Ex.R4 —

Copy of the gratuity nomination forms

of the workmen.

Ex.R5 — Authorisation letter, dated 28-11-2012

Ex.R6 — Insurance particulars in respect of

workmen.

Ex.R7 — Copy of the Form 5 and Form 6

T. MOHANDASS,

Presiding Officer, Labour Court,

Puducherry.

————

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 52/AIL/Lab./J/2013, dated 15th April 2013)

NOTIFICATION

Whereas, an award in I.D. No. 51/2012, dated 23-11-2012

of the Labour Court, Karaikal in respect of the

industrial dispute between the management of

M/s. Vinayaga Missions Medical College and

Hospital, Karaikal and one Thiru A. Aruldoss 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 23-5-91, 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, M.L.,

Presiding Officer,

Labour Court (Karaikal Camp).

Friday, the 23rd day of November, 2012.

I.D. No. 51/2012

A. Aruldoss,

No. 9, Periyapet,

Karaikal.

. . Petitioner

Versus

The Management,

Vinayaga Missions Medical

College and Hospital,

Kottucherry, Karaikal

. . Respondent

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LA GAZETTE DE L’ETAT

[30 April 2013

This industrial dispute coming on this day before me

for final hearing in the presence of Thiru A. Alex Britto,

Representative for the petitioner, Thiruvalaragal

R. Ilancheliyan and R. Thilagavathi, Advocates for the

respondent, upon hearing both sides, upon perusing the case

records, after having stood over for consideration till this

day, this court passed the following:

AWARD

This industrial dispute arises out of the reference made by

the Government of Puducherry, vide G.O. Rt. No.122/AIL/

Lab./J/2010, dated 8-6-2010 of the Labour Department,

Puducherry to resolve the following dispute between the

petitioner and the respondent, viz.,

(1) Whether the dispute raised by Thiru A. Aruldoss

against the management of M/s. Vinayaga Missions

Medical College and Hospital, Karaikal over

non-employment is justified or not?

(2) If justified, to what relief the petitioner is entitled to?

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

money, if it can be so computed?

2. The petitioner in his petition has stated as follows:

The petitioner was working as casual labour in the

respondent hospital from 2006. He was discharging his

duties to the satisfaction of the respondent hospital. He

was working in the respondent hospital continuously for

more than two years. When he reported for duty on

16-10-2009 after completing the leave period, he was denied

the employment and he was orally informed that he was

terminated from service. The respondent hospital has not

obtained any explanation from the petitioner and they

have not conducted any domestic enquiry. Further they

have not issued any termination order to the petitioner.

Hence, the petitioner approached the Conciliation Officer

and since there was no settlement in the conciliation, the

Conciliation Officer made his failure report and hence there

was a reference of the dispute to this court.

3. The respondent in his counter has stated as follows:

The petitioner was a casual labour engaged on need

based by the respondent and he did not report for work

from 6-10-2009. He neither submitted any leave application

nor got prior permission from the respondent management

for his absence from work and he continued to be absent

for more than 15 days.

It was reported in the news that the petitioner was

arrested in a criminal case for the possession of dangerous

weapons and he was also remanded for 15 days by the

Judicial Magistrate, Karaikal. The petitioner was engaged

only as a casual labour and he deserted his work for more

than 15 days. He has also suppressed the fact about his

involvement in a criminal case. Hence, the case of the

petitioner being a voluntary act of desertion of work and

the said desertion is purely for an act involving moral

turpitude giving him work will not be conducive the interest

of institution. Hence, they pray for dismissal of the

industrial dispute.

4. On the side of the petitioner, PW.1 was examined and

Ex.P1 was marked. On the side of the respondent, RW.1 was

examined and Ex.R1 to Ex.R3 were marked.

5. The point for consideration is:

Whether the industrial dispute can be allowed?

6. On this point:

The petitioner was working as casual labour in the

respondent hospital from 2006. He was discharging his duties

to the satisfaction of the respondent hospital. He was working

in the respondent hospital continuously for more than two

years. When he reported for duty on 16-10-2009 after

completing the leave period, he was denied the employment

and he was orally informed that he was terminated from service.

In order to prove his claim, the petitioner examined himself

as PW.1.

7. The contention of the respondent is that the petitioner

was a casual labour engaged on need based by the respondent

and he did not report for work from 6-10-2009 and he neither

submitted any leave application nor got prior permission from

the respondent management for his absence from work and

he continued to be absent for more than 15 days and hence

the case of the petitioner is being a voluntary act of desertion

of work.

8. The respondent has set up his case that it is admitted

that the petitioner was an employee under them, but since has

absented himself from 6-10-2009 without any notice or

information or legal sanctioned leave, it will be presumed that

he has abandoned the employment. It is pertinent to refer the

following decisions, which are relevant to this case:

2002(4) L.L.N. 850:

State of Uttar Pradesh Vs. Presiding Officer, Labour

Court, Agra and another:

“Abandonment of service - Even in the case of alleged

abandonment, it is necessary for employer to conduct an

enquiry, issue a charge sheet and notice to the workman

concerned informing him that he is continuously absenting

without any sanctioned leave - Admittedly this having not

been done in this case the plea of employer about

abandonment of service by workman not tenable.”

1988 1 L.L.N. Page 259:

Gaurishankar Vishwakarma Vs. Eagle Spring

Industries (P) Ltd., and others:

“Industrial dispute - Practice and procedure - Non-

employment of workman - Case of employer is that workman

has abandoned service - Even in case of abandonment of

service employer has to give notice to workman and hold

429

30 April 2013]

LA GAZETTE DE L’ETAT

an enquiry -It is for employer to prove such abandonment-

Labour Court expected to follow judicial procedure should

not depend on unverified statements to come to conclusion

that it was workman who had refused to resume work.”

9. Admittedly, the respondent has not given any notice to

the workman either calling upon him to resume the duty or

asking him to show cause as to why his services should not

be terminated for his failure to resume his duties. No wonder,

therefore, that there was no enquiry held before the termination

of his service. The case of the respondent is that the petitioner

had abandoned the service by refusing to come and to resume

the work. It is difficult to accept this case, it is now well settled

that even in the case of the abandonment of service, the

employer has to give a notice to the workman, calling upon

him to resume his duty and also to hold an enquiry before

terminating his service on that ground. In the present case,

the respondent has done neither. It was for the employer to

prove that the workman had abandoned the service.

10. To prove the abandoned the service, RW.1 has stated

that it was reported in the news that the petitioner was arrested

in a criminal case for the possession of dangerous weapons

and he was also remanded for 15 days by the Judicial

Magistrate, Karaikal and the petitioner was engaged only as a

casual labour and he deserted his work for more than 15

days and he has also suppressed the fact about his

involvement in a criminal case and hence, the case of the

petitioner being a voluntary act of desertion of work and the

said desertion is purely for an act involving moral turpitude

giving him work will not be conducive the interest of institution.

To prove the said fact, RW.1 has marked the copy of the letter

sent by the S.I. of Police, Kottucherry Police Station to the

Manager of the respondent management as Ex.R2. In Ex.R2, it

has been stated that the petitioner has been arrested along

with two others in connection with Cr. No.101/2009 under

section 25(10) (a) of Arms Act, 1959 for the possession of

dangerous weapons. RW.1 has also marked the copy of the

newspaper as Ex.R3, wherein it has been stated that the

petitioner along with two others have been arrested for the

possession of dangerous weapons.

11. PW.1 in his cross-examination has admitted about the

arrest of the police in connection with the abovesaid criminal.

But he has marked the copy of the Judgment in CC No.35/

2010, dated 6-10-2010 as Ex.P1. On perusal of Ex.P1, it is seen

that since there is no evidence as against the petitioner with

regard to the possession of dangerous weapons, he has been

acquitted of the charges levelled against him. In this regard, it

is pertinent to refer the following decision:—

1985(2) SCC Page 184:

Shankar Dass Vs. Union of India and another:

“Probation of Offenders Act, 1958, S.12- Prosecution

launched for breach of trust against an employee - Employee

pleading guilty of charge before the criminal court -

Employee convicted but released under Probation of

Offenders Act - Employer dismissing the employee from

service on the ground of conviction by criminal court

for an offence - Dismissal from service on conviction

amounts to disqualification - Dismissal from service is not

disqualification attached to a conviction for an offence

and the term disqualification applies to cases, where statues

specifically provide for such a disqualification.”

12. In the above judgment, the Hon'ble Supreme Court

has held that though the employee has been convicted, since

he has been released on Probation of Offenders Act, the

dismissal from service is not disqualification attached to the

said conviction for an offence. In the case on hand, though

the petitioner has been arrested in a criminal case, he has been

acquitted of the charge levelled against him vide Ex.P1, which

has not been denied or challenged by the respondent. In the

above circumstances, the contention of the learned counsel

for the respondent that the involvement of the petitioner in a

criminal case leads to dismissal from service, cannot be

accepted.

13. Finally, the learned counsel for the respondent is that

the petitioner was only a casual labour and he was engaged

on need basis and hence there is no need to issue notice or

conduct any domestic enquiry.

14. It is pertinent to point out that even a casual labour is

considered to be an employee and as because the petitioner is

a casual labour, he cannot be terminated from service without

issuing notice or conducting any domestic enquiry as per the

decisions held in 1970 Lab I.C. Elumalai Vs. Management of

Concrete Piles India Limited, Madras and (1971) ILLJ

Pilot Pen Co. Limited. In the above circumstances, the

termination of the petitioner is bad in law and the same is

liable to be set aside. But considering the facts and

circumstances of the case, the petitioner is not entitled for

any back wages. Accordingly, this point is answered.

15. In the result, the industrial dispute is partly allowed

and the petitioner is entitled for reinstatement with continuity

of service. However, he is not entitled for back wages and

other service benefits. No costs.

Typed to my dictation, corrected and pronounced by me in

the open court on this the 23rd day of November, 2012.

T. MOHANDASS,

Presiding Officer,

Labour Court, Puducherry.

List of petitioner’s witness :

PW.1

— 25-7-2011 - Aruldoss

List of petitioner’s exhibits:

Ex.P1 — Copy of the judgment in CC No.35/2010,

dated 6-10-2010.

430

LA GAZETTE DE L’ETAT

[30 April 2013

List of respondent’s witness:

RW.1

— 14-10-2011 - S. Mohan, Personnel Officer

of respondent hospital.

List of respondent’s exhibits :

Ex.R1 — Authorisation letter, dated 12-10-2011

Ex.R2 — Copy of the letter sent by the S.I. of Police

to the respondent, dated 15-2-2010.

Ex.R3 — Copy of the newspaper

T. MOHANDASS,

Presiding Officer,

Labour Court, Puducherry.

————

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 53/Lab./AIL/J/2013, dated 15th April 2013)

NOTIFICATION

Whereas, an award in I.D. No. 81 of 2012,

dated 30-10-2012 of the Labour Court, Puducherry in

respect of the industrial dispute between the

Proprietor, M/s. Pinnakkattu Enterprises, Mahe and

one Thiru P. Shaji 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)

S. THAMMU GANAPATHY,

Under Secretary to Government (Labour).

————

BEFORE THE LABOUR COURT AT PUDUCHERRY

(MAHE CAMP)

Present : Thiru T. MOHANDASS, M.A., M.L.,

Presiding Officer, Labour Court.

Tuesday, the 30th day of October 2012

I.D. No. 81/2012

P. Shaji

Mangalam House, Puzhithala, Mahe . . Petitioner

Versus

The Proprietor,

Pinnakkattu Enterprises, Mahe

. . Respondent

This industrial dispute coming on this day for final

hearing before me in the presence of Thiru K. Viswan,

Advocate for the petitioner, Thiru M.D.Thomas,

Advocate for the respondent, upon hearing both

sides, upon perusing the case records, after having

stood over for consideration till this day, this court

passed the following:

AWARD

This industrial dispute arises out of the reference

made by the Government of Puducherry, vide G.O. Rt.

No. 130/AlL/Lab./J/2008, dated 23-7-2008 of the

Labour Department, Puducherry to resolve the

following dispute between the petitioner and the

respondent, viz.,

(1) Whether the dispute raised by Thiru Shaji

against the management of M/s. Pinakkattu

Enterprises, Mahe over non-employment is justified

or not?

(2) If justified, what relief, the petitioner

Thiru Shaji is entitled to?

(3) 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

averred as follows:

The petitioner was working in the respondent

firm as salesman from January 1996. Initially his

monthly salary was fixed at ` 1,500 and later it has

been enhanced to ` 3,500. However in the year

2008, the salary of the petitioner was at 4,000 per

month. The petitioner has made request to

enhance the salary to an amount as given to one

Nideesh, who was appointed in the year 2003 at

the monthly salary of ` 5,000. The respondent

showed his displeasure as to the demands of the

legitimate salary and transferred the petitioner to

branch office of the said firm. However he

performed his duty without any default. As per the

understanding

of

the

petitioner

and

the

respondent, ` 30 was agreed to pay as allowance

per day. However there was unilateral refusal on

the part of the respondent in disbursing the said

allowance.

Later

the

respondent

initiated

proceeding illegally and tried to deny the legitimate

right of the petitioner.

When the petitioner made an attempt to bring

high hand action of the respondent to the notice

of the trade union leaders, the respondent chose

to issue the show cause notice attributing utter

falsehood. The respondent purposely refused to

disburse the salary per month at the rate of ` 4,000

from March 2007 onwards and the arrears of daily

431

30 April 2013]

LA GAZETTE DE L’ETAT

allowance from 1996 onwards. Hence, on 24-4-2008

the petitioner issued a notice demanding payment

of arrears of salary and daily allowance and also

demanding to reinstate him into service. There is

unilateral refusal on the side of the respondent in

providing employment to the petitioner. Hence,

this industrial dispute is filed to reinstate him into

service and for arrears of salary and daily

allowance.

3. In the counter statement, the respondent has

stated as follows:-

The petitioner was appointed in January 1996 for

a monthly salary of ` 1,250 and subsequently it

has been enhanced to ` 2,600 It is not true that in

the year 2008 the salary of the petitioner was at

` 4,000 per month. In order to improve the business

of the firm, the petitioner was transferred to the

branch office. The petitioner has not performed his

duty effectively. There was no understanding or

agreement to pay ` 30 per day as allowance.

The petitioner has received salary up to 17-12-2007,

but he refused to sign in the acquittance register from

July 2007 onwards. The respondent constrained to

issue a notice on 17-12-2007 as consequent to the

show cause notice issued by this respondent.

The petitioner admitted the receipt of ` 28,575 as

advance from this respondent in front of Assistant

Labour Officer and the leaders of his union. After

discussion with the Assistant Labour Officer, union

leaders and the petitioner, it is agreed by this

respondent to pay ` 25,000 as full and final

compensation. But the petitioner has not received the

same from the respondent. It is learnt that the

petitioner joined as a head load worker in Mahe region

Head Load Workers and hence he had not received

the amount and created troubles in order to get a

termination from this respondent's firm. The petitioner

is trying to obtain a huge amount from this

respondent as compensation. Hence, they pray for

dismissal of the industrial dispute.

4. On the side of the petitioner, PW.1 and PW.2

were examined and Ex.P1 to Ex.P10 were marked. On

the side of the respondent, RW.1 was examined and

Ex.R1 was marked.

5. The point for determination is:

Whether the industrial dispute can be allowed?

6. On the point:

There is no dispute that the petitioner was working

with the respondent from the year 1996. The

contention of the petitioner is that initially his

monthly salary was fixed at ` 1,500 and later it has

been enhanced to ` 3,500. However in the year 2008,

the salary of the petitioner was at ` 4,000 per month

and he has made request to enhance the salary to

an amount as given to one Nideesh, who was

appointed in the year 2003 at the monthly salary

of ` 5,000 and the respondent showed his displeasure

as to the demands of the legitimate salary and

transferred the petitioner to branch office of the said

firm and as per the understanding between him and

the respondent, ` 30 was agreed to pay as allowance

per day, however there was unilateral refusal on the

part of the respondent in disbursing the said

allowance and later he initiated proceeding illegally

and tried to deny his legitimate right. In order to

prove his, claim, the petitioner examined himself as

PW.1.

7. The contention of the respondent is that the

petitioner was appointed in January 1996 for a

monthly salary of ` 1,250 and subsequently it has

been enhanced to ` 2,600 and it is not true that in

the year 2008 the salary of the petitioner was at

` 4,000 per month and in order to improve the

business of the firm, the petitioner was transferred

to the branch office and the petitioner has not

performed his duty effectively and there was no

understanding or agreement to pay ` 30 per day as

allowance. In order to support his claim, the

proprietor of the respondent enterprises was examined

as RW.1. RW.1 has marked the wage register of his

shop as Ex.R1. As per Ex.R1, the petitioner was

getting a sum of ` 2,600 per month as salary till

July 2007 and from August 2007, though the amount

of ` 2,600 has been entered as against the name of

the petitioner, his signature is not found place. In

this regard, RW1 has stated that the petitioner has

received the salary up to 17-12-2007, but he had

refused to sign in the acquittance register from

July 2007 onwards. The petitioner has not filed any

document to prove that he was getting ` 4,000 per

month from the year 2008. As per the wage register

under Ex.R1, the name of the petitioner is found place

till the month of December 2007 only. Hence, the

contention of the petitioner that he was getting

` 4,000 per month from the year 2008 cannot be

accepted.

8. The petitioner and the respondent in their

evidence have not clearly stated whether the

petitioner was terminated from service, or whether he

abandoned the service and the reason for the same.

The petitioner in his evidence has stated that he

insisted about his enhancement of salary and prayed

this court to reinstatement of service with arrears of

salary. The petitioner has not stated about

subsequent stage of enhancement of salary and why

he has prayed for reinstatement of service. Likewise

the respondent has also stated only about the salary

432

LA GAZETTE DE L’ETAT

[30 April 2013

which has been given to the petioner and about

refusal of salary by the petitioner from the month of

July 2007 onwards.

9. On the side of the petitioner, the failure report

given by the Labour Officer was marked as Ex.P5.

In Ex.P5, it has been stated as follows:-

“Conciliation fixed on 18-3-2008. ... The employer

stated that termination of worker is on 18-12-2007.

The worker asked for enhancement of wages and

not asked for batta. There is no such batta paid to

any worker. The petitioner has not interested to do

work. His performance is very poor. Then the

employer has given a show cause notice, dated

12-11-2007

to

the

worker

regarding

the

unsatisfactory performance and spreading gossips

about the employer to others. The employer has

given one month time to reply. But the worker has

not given any reply. Then on 17-12-2007 the

employer has given termination notice stating that

the employer is ready to give termination benefit

of ` 44,000. The worker has already indebted to

the employer ` 28,575. The balance amount of

` 15,425 is ready to disburse.

Employer further stated that he is admitting

12 year service and his wages is ` 2,600 per month.

Apart from ` 2,600 the employer has given extra

amount in every month. Hence, the worker is

getting ` 4,000 per month. As per wages register

and service record, his wage is ` 2,600 only.

Employer has stated that due to misunderstanding

and ill-will, reinstatement is not possible. But he

is ready to pay legal compensation.

The union representative stated that other

workers are getting batta as like tea and travelling

allowances. Legally the worker is entitled to

` 48,000. Union representative requested to give

reasonable amount as compensation.”

10. From Ex.P5, it can be seen that the allegation

against the petitioner is that he has not discharged

his duty to the satisfaction of the respondent and

hence the respondent has given a show cause notice

under Ex.P1, for which no reply has been sent by the

petitioner and hence the respondent issued a

termination order under Ex.P2. A perusal of Ex.P5

further reveals that since there is misunderstanding

between the petitioner and the respondent, there is

no possibility of reinstatement of the petitioner and

the respondent was ready to pay ` 44,000 to the

petitioner and since the petitioner has not agreed, the

conciliation ended in failure.

11. According to the respondent, the performance

of the petitioner was very poor and hence following

the show cause notice, the petitioner was terminated

from service. But before terminating the petitioner, the

respondent has not framed any charges and not

conducted the domestic enquiry by appointing an

Enquiry Officer and without conducting the domestic

enquiry, the termination of petitioner from service is

not fair and in the above circumstances, considering

the Ex.P5, this court has to come to the conclusion

that

the

petitioner

can

be

given

monetary

compensation.

12. On the side of the petitioner, the Labour Officer

was examined as PW.2. PW.2 in his evidence has

marked Ex.P5 conciliation report, Ex.P6 petition given

by Mahe Shop and Workers Union, Ex.P7 is the

institution regarding non-acceptance of explanation

and Ex.P8 is the Conciliation notice issued to the

petitioner. During the cross-examination, PW.2 has

stated that the petitioner has completed 11 years of

service and he is eligible for one month salary for one

year and if one employee is terminated, he is entitled

for termination benefits.

13. Though the petitioner has stated that he

performed his duty to the satisfaction of the

respondent, the respondent has stated that the

petitioner has not performed his duty effectively.

14. The petitioner has filed the industrial dispuste

for his reinstatement with back wages and the arrears

of salary from March 2007 to October 2008 and the

arrears of day allowance at ` 30 from 1996 onwards.

But there was misunderstanding between the

petitioner and the respondent management and in the

above circumstances, if any order passed by this

court to reinstate him into service, there will not be

any smooth relationship between them. Hence, I feel

that instead of reinstate him into service, he can be

given monetary compensation as already stated.

15. There is no dispute that the petitioner was

working in the respondent company for more than

10 years. PW.2 in his evidence has deposed that the

petitioner is eligible for one month salary for one year

and if one employee is terminated, he is entitled for

termination benefits. Considering the age and the

services rendered in the respondent company, a sum

of ` 1,00,000 can be awarded to the petitioner

towards monetary compensation. Accordingly, this

point is answered.

16. In the result, the industrial dispute is partly

allowed and the petitioner is not entitled for

reinstatement with back wages and other benefits.

However, the respondent is directed to pay a sum

of ` 1,00,000 (Rupees one lakh only) towards the

monetary compensation to the petitioner. No costs.

433

30 April 2013]

LA GAZETTE DE L’ETAT

Typed to my dictation, corrected and pronounced

by me in the open court on this 30th day of

October, 2012.

T. MOHANDASS,

Presiding Officer, Labour Court,

Puducherry.

————

List of witnesses examined for the petitioner :

PW.1 — 21-10-2010 Shaji

PW.2 — 10-10-2011 Monoj Kumar

List of witness examined for the respondent :

RW.1 — 24-11-2011 Mathew

List of exhibits marked for the petitioner :

Ex.P1 — Show cause notice issued by the

respondent to the petitioner.

Ex.P2 — Termination

order

issued

by

the

respondent, dated 17-12-2007.

Ex.P3 — Copy of lawyer’s notice sent by the

petitioner’s counsel, dated 24-4-2008.

Ex.P4 — Reply notice sent by the respondent's

counsel, dated 12-6-2008.

Ex.P5 — Conciliation report

Ex.P6 — Petition given by Mahe Shop and

Workers’ Union.

Ex.P7 — Institution regarding non-acceptance of

explanation.

Ex.P8 — Conciliation notice issued to the

petitioner.

Ex.P9 — Letter, dated 7-2-2008 given by the

respondent.

Ex.P10 — Notice sent by the respondent

List of exhibits marked for the respondent :

Ex.R1 — Wage register

T. MOHANDASS,

Presiding Officer, Labour Court,

Puducherry.

GOVERNMENT OF PUDUCHERRY

HOME DEPARTMENT

(G.O. Ms. No. 20, dated 8th April 2013)

NOTIFICATION

Whereas, a separate Police Station for the Protection of Civil Rights (PCR) Cell has been set up in the

Puducherry having jurisdiction over the whole of the Pondicherry region of the Union Territory vide G.O. Ms. No. 47,

dated 1-6-1983 of Home Department, Government of Puducherry;

And whereas, Government of India has subsequently sanctioned 11 temporary non-gazetted posts for

setting up of new Protection of Civil Rights (PCR) Cells at Karaikal and Yanam regions for implementation of Protection

of Civil Rights Act, 1955 and the order in this regard has been issued vide G.O. Ms. No. 6, dated 23-1-1987 of Home

Department, Government of Puducherry;

And whereas, the said Protection of Civil Rights (PCR) Cells set up at Karaikal and Yanam have started

functioning accordingly and it has become therefore necessary that the said Cells are required to be declared as Police

Stations under the Code of Criminal Procedure, 1973;

Now, therefore, in exercise of the powers conferred by clause(s) of section 2 of the Code of Criminal

Procedure, 1973 (Central Act 42 of 1974), the Lieutenant-Governor, Puducherry is pleased to declare that the PCR

Cells at Karaikal and Yanam regions shall be the Police Stations from the date of their functioning with extent of

jurisdiction as detailed below:

Sl.

Name of the Police Station

Jurisdiction

Controlling

No.

Officer

(1)

(2)

(3)

(4)

1

PCR Cell Police Station, Karaikal

Whole of Karaikal region

Superintendent of Police

(PCR Cell).

2

PCR Cell Police Station, Yanam

Whole of Yanam region

Do.