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[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
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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
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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.