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[9 July 2013

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 97/Lab./AIL/J/2013, dated 27th June 2013)

NOTIFICATION

Whereas, an award in I. D. No. 34/2008,

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

respect of the industrial dispute between the Swadeshi

Panchalai Thozhilalar Urimai Padukappu Sangam against

the General Manager, Swadeshi Cotton Mills,

Puducherry over change of date of joining of 17 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

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.

Thursday, the 13th day of December 2012.

I.D. No. 34/2008

The President,

Swadeshi Panchalai Thozhilalar

Urimai Padukapu Sangam,

Puducherry

. .

Petitioner

Versus

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. 153/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 Swadehsi

Panchalai Thozhilalar Urimai Padukapu Sangam,

Puducherry for change of date of joining of 17

workers Thiruvalargal 1. R. Sundaramurthy,

2. N. Govindaraj, 3. C. Ezhilarasan, 4. V. Ariamala,

5. G. Seethalakshmi, 6. D. Mangalakshmi, 7. K. Subrayan,

8. J. Krishnaraj, 9. D. Paul, 10. D. Kothandaraman,

11. S. Mariapragasam, 12. R. Ravichandran, 13. M. James,

14. P. Mohan, 15. R. Mohan, 16. M. Parasuramasharma

and 17. T. Danasegaran is justified or not?

(2) To what relief, they are entitled to? Give

appropriate directions.

2. 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 blackmark

whatsoever. As such ranging from the year 1986 to

1988, the employees were covered under the E.S.I.

scheme and E.S.I. Identity Card also issued to

them in this regard. From the date on which the

E.S.I. coverage was extended to them. E.S.I.

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 17

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

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 17 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

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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 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

industial 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 17 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

22½ hours per day and 6 days a week. Therefore,

they were regularised as a good will gesture.

The petitioners are claiming to consider the date

of entry mentioned in the E.S.I. card as the date of

confirmation for all other purposes and records. The

E.S.I. card is issued under the E.S.I. Act and the

same yardstick under which a worker is brought

under the ambit of the E.S.I. Act cannot be in

blanket and blindly applied to all records not

covered by the E.S.I. Act. The E.S.I. 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 E.S.I. 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 pay slip 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 pay slips 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 industial disputes.

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

were examined and Ex.P1 to Ex.P7 were marked. On the

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

and Ex.R1 to Ex.R6 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 blackmark whatsoever and as such ranging

from the year 1986 to 1988, the said employees were

covered under the E.S.I. scheme and E.S.I. 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 PW1 and marked

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[9 July 2013

Ex.P1 to Ex.P7. Ex.P1 is the copy of the pay slip 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:-

R. Sundaramurthy

. .

21-2-1985

N. Govindaraj

. .

1-2-1985

Ezhilarasan

. .

2-10-1966

V. Ariamala

. .

1-1-1984

G. Seethalakshmi

. .

1-1-1979

D. Mangalakshmi

. .

14-12-1979

K. Subrayan

. .

2-1-1985

J. Krishnaraj

. .

7-11-1984

D.Paul

. .

12-1-1985

10.

D. Kothandaraman

. .

1-2-1985

11.

S. Mariapragasam

. .

20-10-1983

12.

R. Ravichandran

. .

25-10-1983

13.

M. James

. .

5-10-1983

14.

P. Mohan

. .

2-10-1982

15.

R. Mohan

. .

5-10-1983

16.

M. Parasuramasharma

. .

13-11-1982

17.

T. Danasegaran

. .

21-9-1982

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 pay slip 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 E.S.I. card as the date

of confirmation for all other purposes and records and

the E.S.I. card is issued under the E.S.I. Act and the

same yardstick under which a worker is brought under

the ambit of the E.S.I. Act cannot be in blanket and

blindly applied to all records not covered by the E.S.I.

Act and the E.S.I. 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 E.S.I.

card except those that are envisaged in the Act.

He further submitted that all the employees are given

individual E.S.I. cards by the E.S.I. 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 E.S.I. 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 E.S.I. Corporation was examined as RW.2.

RW.2 in his evidence has deposed that the E.S.I. 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 E.S.I. 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 E.S.I. 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 E.S.I. card was issued by the

E.S.I. Corporation.

10. 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

17 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 pay slips of the

workmen as Ex.R1, copy of the nomination forms of the

workmen as Ex.R2, copy of the standing orders for the

employees of Sri Bharathi Mills Limited as Ex.R3. RW.2

has marked the authorisation letter as Ex.R4, insurance

particulars in respect of the said workmen as Ex.R5 and

copy of the Form-5 and Form-6 as Ex.R6. 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.

11. Though the petitioner union has mentioned the

original date of joining in their claim statement, they

693

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have not produced any document to prove their claim.

and the particulars of date of birth the date of joining

are mentioned in the pay slips under Ex.P1 and Ex.R1

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 pay slips 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 E.S.I. card. The E.S.I. 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

E.S.I. card cannot be taken into consideration as date

of joining, since they could have discontinued from the

service and joined later stage.

12. It is not denied by the respondent management

that the E.S.I. cards were issued to the petitioners,

when they were working in the same establishment.

When the petitioner says that the E.S.I. 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 E.S.I. cards to them.

13. The contention of learned counsel for the

petitioner is that 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.

14. 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 mill 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.

15. The labour legislations were enacted to bring

peace among the workers to bring more productivity in

our country in the smooth circumstances. When the

E.S.I. 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 E.S.I. 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 L.L.J. 33 S.C.:

Workmen of M/s. Williamson Magor and

Company Limited, Versus William Magor and

Company Limited:

“This court in the case of K.C.P. Employees’

Association, Madras Versus Management of K.C.P.

Limited, Madras and other reported in (1977

I 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 off 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 17 workmen according to the date

of joining mentioned in their E.S.I. Identity Card is

justifiable. Accordingly, this point is answered.

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LA GAZETTE DE L’ETAT

[9 July 2013

16. In the result, the industrial dispute is allowed

and the respondent is hereby directed to correct the

date of entry of said 17 workmen as per the E.S.I.

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—

29-8-2012 — Gopi Mohanan

List of witnesses examined for the respondent:

RW.1—

28-9-2012 — Gopi Mohan

RW.2— 29-11-2011 — Padmini

List of exhibits marked for the petitioner:

Ex.P1 — Copy of the pay slip of the petition

mentioned workmen.

Ex.P2 — Copy of the E.S.I. card of the petition

mentioned workmen.

Ex.P3 — Copy of the letter given by the petitioner

name

Sundaramurthy

the

respondent, dated 28-2-2005.

Ex.P4 — Copy of the letter, dated 12-12-2006 given

by the petitioner union to respondent.

Ex.P5 — Copy of the failure report, dated 29-7-2008

Ex.P6 — Copy of the notification, dated 13-10-2008

Ex.P7 — Copy of the information, dated 4-12-2009

obtained under RTI.

List of exhibits marked for the respondent:

Ex.R1 — Copy of the pay slips of 17 workmen

Ex.R2 — Copy of the nomination forms of the

workmen.

Ex.R3 — Copy of the standing orders

Ex.R4 — Authorisation letter, dated 28-11-2012

Ex.R5 — Insurance particulars in respect of

workmen.

Ex.R6 — Copy of the Form-5 and Form-6

T. MOHANDASS,

Presiding Officer,

Labour Court, Puducherry.

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