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[8 April 2014

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 39/Lab./AIL/J/2013, dated 5th March 2014)

NOTIFICATION

Whereas, an award in I.D. No.18/2004, dated 5-9-2013

of the Labour Court, Puducherry in respect of the

industrial dispute between the Managing Director,

Fancy Traders, Puducherry and Thiru D. Vadivelu

represented by Centre of Indian Trade Union,

Puducherry 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 PONDICHERRY

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

Presiding Officer, Labour Court.

Thursday, the 5th day of September 2013

I.D. No. 18/2004

Centre of Indian Trade Union (CITU) Puducherry,

42, Cuddalore Road,

Mudaliarpet, Puducherry.

. . Petitioner

Versus

The Managing Director,

Fancy Traders,

Thattanchavady, Puducherry.

. . Respondent

This industrial dispute coming on 2-9-2013 for final

hearing before me in the presence of Thiru S. Parimalam,

Advocate for the petitioner, Thiru. C.P. Thirunavukkarasu,

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. 54/2004/Lab./AIL/J, dated 23-3-2004 of the Labour

Department, Puducherry to resolve the following

dispute between the petitioner and the respondent, viz.,

(1) Whether the non-employment of Thiru D. Vadivelu

is justified or not?

(2) To what remedy he is entitled to?

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

money, if it can be so computed?

2. The petitioner, in his claim statement has averred

as follows:

One Vadivelu was a workman under the

respondent company and on 30-8-2001 when he was

reporting for duty, they refused him to enter into the

company without assigning any reason. The said

workman has approached the management for

reinstatement both personally and through letter, but

they turned with deaf ears to consider the request of

the workman. So far no written order of termination

was sent to the workman Vadivelu. The dispute was

brought to the notice of the trade union and on

14-9-2011, the trade union also issued a letter to the

Labour Officer (Conciliation). In their reply, the

management has stated that the workman Vadivelu

was absent from 30-8-2001 onwards till date.

During the conciliation, the management agreed to

provide the job with back wages. Then the proprietor

was reported to be dead, the matter before the

conciliation was adjourned periodically. On 9-4-2003

one Jayabalu was present but he has not disclosed

anything. In the meanwhile the respondent management

has sent a letter, dated 5-4-2003 directing the

workman to report for duty within seven days. Since

the matter was pending before the Conciliation

Officer, the workman was waiting for the verdict of

the Conciliation Officer. But the management failed to

represent before the Conciliation Officer. Hence, the

conciliation was ended failure.

No proper enquiry was conducted for removing

the workman Vadivelu. The punishment which is

imposed upon the workman is most arbitrary, vitiated

by mala fides and is a clear case of unfair labour

practice which resulted in victimization of the

workman for his union activities.

3. In the counter statement, the respondent has

stated as follows:-

It is true that one Vadivelu was a worker in the

respondent concern. The respondent never refused

to give employment to Vadivelu. The workman

conspicuously absent from 30-8-2001 to the

respondent and he did not apply for any leave or

even oral permission from the respondent. To the

surprise of the respondent, they have received a

letter from the workman, dated 6-9-2011 for the

reinstatement and then a strike notice from the

petitioner trade union. According to the petitioner,

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8 April 2014]

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the workman brought to the notice of the petitioner

union on 14-9-2001 and on the same day the

petitioner union issued a letter to the Labour Officer,

Puducherry for the proposed strike for the aforesaid

purpose. When the above admitted facts that were

created by the petitioner within 15 days are perused,

it reveals that all acts are vindictive and deliberated

for the purpose of creating a case for the reasons

best known to the petitioner union and the workman.

Bearing all these atrocities, they have sent a letter,

dated 26-9-2001 to the Labour Officer, Puducherry as

a reply and marking a copy to the petitioner union

and also to the workman stating that the respondent

concern has not removed the workman from the job

and he may join duty within seven days of the receipt

of the letter. But, for the reason best known to them,

the workman did not turn to the respondent office to

resume his employment. Hence, there is no fault on

the part of the respondent concern about the

employment of the workman.

Eventhough, the workman was absent to the company

without assigning any reason, the respondent was

ready and willing to provide employment and it was

also informed duly to the workman on the same

month. But, without accepting the employment, for

the reason best known claimed back wages. The

respondent never agreed to pay the back wages for

the workman. Once the respondent offered

employment to the workman, there is no necessity for

further conciliation. Hence, they pray for dismissal

of the industrial dispute.

4. In the additional counter, the respondent has

stated as follows:-

Even before and after raising the dispute before

this court, the petitioner was employed in different

institutions and getting salaries. The petitioner is

getting salary from Self Mutual Benefit Trust and

Sarvodaya Vazhvu Aathara Self-help Group.

During the period of alleged employment by the

claim petitioner, the respondent company was an

individual concern. The proprietor of the concern

was one Sathiya Narayana. He died in the year 2002.

Then the licence of the concern was transferred to

the name of one Usha and Umavani for the year 2003

and 2004 and subsequent to that also and till now

the licence is in the name of the said persons. As far

as the petitioner workman is concerned, he was a

worker under the said Sathiya Narayana and not a

worker under the present owners of the concern.

Since the proprietor of the concern is different, there

is no employer and employee relationship in between

the petitioner and the respondent. Hence, they pray

for dismissal of the industrial dispute.

5. In the reply claim statement, the petitioner has

stated as follows:-

The petitioner denies the averment that the

respondent came to know the proceedings only after

taking charge of the concern. The respondent herself

stated that she is not fully aware of the case, only

after the claim statement, through the counsel, she

came to know about this case. Admittedly all along

the respondent is following the matter for a long time

and the petitioner has already examined himself as

PW1by filing proof affidavit and after a long interval,

just to protract the proceedings the respondent has

chosen to file the additional counter without any

basis. In any event, the additional counter is highly

time barred.

The facts pleaded in the additional counter are not

tenable and is liable to be rejected, neither before the

conciliation nor in the counter it has been mentioned

by her. By way of additional counter, the respondent

has attempted to set up a new defense on her side.

Hence, he prays to reject the additional counter filed

by the respondent.

6. On the side of the petitioner, PW.1 was examined

and Ex.P1 to Ex.P8 were marked. On the side of the

respondent, RW1 was examined and Ex.R1 to Ex.R11

were marked.

7. The point for consideration is:

Whether the industrial dispute can be allowed?

8. On the point:

The contention of the petitioner is that one Vadivelu

was a workman under the respondent company and on

30-8-2001 when he was reporting for duty, they refused

him to enter into the company without assigning any

reason and the said workman has approached the

management for reinstatement both personally and

through letter, but they turned with deaf ears to

consider the request of the workman and so far no

written order of termination was sent to the workman

Vadivelu. In order to prove their contention, the said

Vadivelu was examined as PW1.

9. Per contra, the contention of the respondent is

that the individual employee Vadivelu was never refused

to give employment, when he was reporting duty on 30-8-2001

and he conspicuously absent from 30-8-2001 to the

respondent concern and he did not apply for any leave

or even oral permission from the respondent.

10. There is no dispute that the said Vadivelu was an

employee under the respondent concern. According to

PW1 he was working as Accounts Assistant from March 1993

with the respondent management and he was getting

salary of ` 2,000 per month. Though the respondent has

denied the said contention of the petitioner, PW1 has

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[8 April 2014

marked the copy of the certificate issued by the

respondent to him as Ex.P1. A perusal of Ex.P1 reveals

that the respondent has issued a certificate to PW1 that

he is working under them as an Accounts Assistant from

March 1993 to till date. Hence, the petitioner has proved

through Ex.P1 that PW1 was working under the

respondent concern from March 1993 till 30-8-2001 as

Accounts Assistant.

11. 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 30-8-2001

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 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”.

12. On the side of the respondent, the Manager of

the respondent concern was examined as RW1. RW1 in

his evidence has deposed that the management has sent

a letter dated 26-9-2001 to the petitioner union stating

that they had not removed the workman from the job and

called upon him to join duty within seven days from the

date of receipt of the said letter and marked the said

letter as Ex.R2. Ex.R2 confirms the version of RW1.

RW1 in his evidence has further stated that the said

Vadivelu was continuously and unauthorisedly absent

from 30-8-2001, but to their surprise, they received a

letter dated 6-9-2001 from the petitioner for his

reinstatement and five days later, they received a strike

notice from the petitioner union and on 19-9-2001 they

received a notice from the Labour Officer (Conciliation)

about non-employment of the workman and from the

above facts, it is clear that within a period of 15 days,

the petitioner union, the workman Vadivelu have done

the above things vindictively and deliberately for the

purpose of creating a false industrial dispute for the

reasons best known to him, however they sent a letter

dated 26-9-2001 to the petitioner union stating that they

had not removed the workman from the service and

called upon him to join duty within seven days from the

date of receipt of the said letter.

13.

From the above evidence of RW1, it can be seen

that though the workman Vadivelu was continuously

unauthorised absent from 30-8-2001, they have sent a

letter to him on 26-9-2001 calling upon him to resume

duty that too only after receipt of enquiry notice from

the Labour Officer (Conciliation). As admitted by RW1,

PW1 has sent a letter dated 6-9-2001 to the respondent

for his reinstatement, for which no reply has been sent

by the respondent. Even after receipt of the strike

notice from the trade union, the respondent has not

taken any steps to sent a notice to the petitioner, calling

upon him to resume 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 sent a letter to the workman Vadivelu

only on 26-9-2001 that is after 27 days from the date of

alleged abandonment of service. It was for the

employer to prove that the workman had abandoned the

service. In the absence of any evidence, it cannot be

said that the said Vadivelu was unauthorized absent

from 30-8-2001 cannot be accepted.

14. The learned counsel for the respondent has

submitted that Vadivelu was a workman of Fancy

Traders which is an individual concern and he worked

under one Sathiyanarayana and during the period from

30-8-2001, he continuously absent and in the year 2002,

the said Sathiyanarayana died and the license of the firm

was transferred in the name of one Usha and Umarani

from 2003 and 2004 and after the death of Sathiyanarayana,

the management and the proprietary has been

transferred and changed and it is a new concern and the

licence is also of new for the new concern and they are

not taking the liability of Sathiyanarayana and again the

concern of the licence was transferred to the present

owners and hence no decree or award could be passed

as against the present owners.

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8 April 2014]

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15. In order to prove the said version, the copy of the

licence for possession and sale of Indian made liquors

was marked as Ex.R7 and the copy of the reconstitution

deed was marked as Ex.R10. A perusal of Ex.R7 reveals

that consequent to the death of one Sathiyanarayana,

under whom the workman was worked, the licence has

been transferred in the name of one Usha and Umavani,

who is none other than the daughters of the said

Sathiyanarayana on 18-7-2003. On perusal of Ex.R10

reveals that apart from the said Usha and Umavani, one

Lavanya and Kishorekumar were joined as partners in

the respondent concern on 1-1-2012. RW1 has also

marked the copy of the reconstitution deed as Ex.R11.

A perusal of Ex.R11 reveals that the said Usha and

Umavani have been retired from the respondent concern

on 14-2-2012. Though the said Usha and Umavani, who

are the daughters of Sathiyanarayana, under whom the

petitioner was working, the other two persons are

continued as partners in the respondent concern.

Further RW1 in his cross examination has stated that the

respondent concern is running till now. His relevant

portion is as follows:-

“>uº√Vm ®]Ï\–>V´Ï WÏkVÔD ÷B∫z˛≈m”.

Hence, the contention of the learned counsel for the

respondent that the management and the proprietary has

been transferred and changed cannot be accepted.

16. The respondent in his counter has stated that

even before and after raising the dispute before this

court, the said Vadivelu was employed in different

institutions and getting salaries and he is getting salary

from Self Mutual Benefit Trust and Sarvodaya Vazhvu

Aathara Self-help Group. Further, the learned counsel

for the respondent has submitted that Vadivelu came to

the office on 30-8-2011 stating that he wants to apply

for work somewhere and obtained a certificate from their

proprietor K. Sathyanarayana. But, no evidence was

produced on the side of the respondent to prove the

said aspect. Further, there is no mention in Ex.P1

Certificate that the certificate is issued for the purpose

of getting job from some other company. In the above

circumstances, the said contention of the respondent

cannot be accepted.

17. From the above discussion, this court has come

to the conclusion that the respondent has failed to prove

the petitioner has unauthorised absent from 30-8-2011 by

sending a notice calling upon him to resume duty and

by conducting the domestic enquiry. Though the

respondent has sent a letter, dated 26-9-2001 to the

petitioner to resume duty within seven days, it has been

sent after sending a letter by the petitioner for his

reinstatement and strike notice by the trade union. The

petitioner has proved that he was working under the

respondent company from the year 1993 till 2001. Hence,

it was necessary to have given opportunity to the

workman by sending notice immediately or conducting

enquiry. Neither no such opportunity was given to the

workman Vadivelu, nor principles of natural justice have

been complied with. Hence, the non-employment of the

workman Vadivelu bad in law and consequently, he is

entitled for reinstatement with continuity of service.

18. The next issue before me is: Whether the

petitioner is entitled to get full back wages. This issue

must be determined keeping in view the aforementioned

background of the case. There can, however, be no

doubt whatsoever that there has been a shift in the

approach of this court in regard to payment of back

wages. Back wages cannot be granted almost

automatically upon setting aside an order of termination.

The Hon'ble Apex Court and High Courts in a number of

decisions opined that grant of back wages is not

automatic. The burden of proof that he remained

unemployed would be on the workmen keeping in view

the provisions contained in section 106 of the Evidence

Act 1972. This court in the matter of grant of back

wages has laid down certain guidelines stating that

therefore several factors are required to be considered

including the nature of appointment; the mode of

recruitment; the length of service.

19. It is also trite that for the purpose of grant of back

wages, conduct of the concerned workman also plays a

vital role. Each decision, as regards grant of back wages

or the quantum thereof, would, therefore, depend on the

fact of each case. It cannot be claimed as a matter of

right. In the case on hand, admittedly though the

respondent was ready and willing to provide

employment and duly intimated the same under Ex.R2

and Ex.R6 dated 5-4-2003, the said Vadivelu without

coming to work, is claiming back wages without any

bona fide reasons. When the respondent management

offered employment, the workman ought to have

resumed his duty immediately. But, the workman evaded

to resume his duty. Apart from the above, the present

industrial dispute was filed in the year 2004, but, the

workman Vadivelu filed his claim statement only in the

year 2007. There is no plausible explanation from the

petitioner for the delay in filing the chief proof affidavit.

Hence, considering the facts and circumstances of this

case, this court comes to the conclusion that the

workman Vadivelu is not entitled to get the back wages

and other benefits. The point is decided accordingly.

20. In the result, the industrial dispute is partly

allowed and the workman Vadivelu is entitled for

reinstatement with continuity of service. However, he is

not entitled for back wages and other statutory benefits.

No costs.

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[8 April 2014

Typed to my dictation, corrected and pronounced by me

in the open court on this the 5th day of September, 2013.

T. MOHANDASS,

Presiding Officer, Labour Court,

Puducherry.

————

List of witness examined for the petitioner:

PW.1

—

12-11-2009 - Vadivelu

List of witness examined for the respondent:

RW.1

—

9-7-2013 - Shanmugam

List of exhibits marked for the petitioner:

Ex.P1

— Photocopy of the certificate issued by

the respondent, dated 30-8-2001.

Ex.P2

— Copy of the letter sent by the petitioner,

dated 6-9-2001.

Ex.P3

— Acknowledgment card.

Ex.P4

— Copy of Notice(Form L) sent by the

President CITU.

Ex.P5

— Letter sent by the petitioner to the

respondent, dated 26-9-2001.

Ex.P6

— Copy of the letter sent by the petitioner

to the respondent, dated 1-10-2001.

Ex.P7

— Original letter, dated 5-4-2001 sent by

the respondent to the petitioner.

Ex.P8

— Copy of the letter sent by the petitioner,

dated 15-4-2003.

List of exhibits marked for the respondent:

Ex.R1

— Letter of authorization, dated 6-7-2013.

Ex.R2

— Letter, dated 26-9-2001 sent by the

respondent to L.O.

Ex.R3

— Acknowledgment cards 2 in Nos.

Ex.R4

— Letter sent to the respondent by CITU

Ex.R5

— Failure report, dated 26-8-2003.

Ex.R6

— Letter by the respondent to Vadivelu,

dated 5-4-2003

Ex.R7

— Copy of the letter of change ownership

dated 18-7-2003.

Ex.R8

— Copy of the licence of possession of the

D.C. Excise, dated 23-4-2013.

Ex.R9

— Death certificate of Sathiyanarayana,

dated 20-12-2002.

Ex.R10 — Reconstruction deed, dated 1-1-2012.

Ex.R11 — Reconstruction deed, dated 14-2-2012.

T. MOHANDASS,

Presiding Officer,

Labour Court, Puducherry.

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 41/Lab./AIL/J/2014, dated 7th March 2014)

NOTIFICATION

Whereas, an award in I.D. (T) No. 6/2008, dated 3-1-2013

of the Industrial Tribunal, Puducherry in respect of the

industrial dispute between the General Manager,

M/s. Bharathi Mills, Puducherry and represented

by Bharathi Mills Pondicherry Thozhilalar Urimai

Padukappu Sangam, Puducherry over regularisation

of services of Thiru P. Mannankatti 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 INDUSTRIAL TRIBUNAL AT

PONDICHERRY

Present : Tmt. S. MARY ANSELAM, M.A., M.L.,

Presiding Officer,(FAC),

Industrial Tribunal.

Friday, the 3rd day of January 2013

I.D. (T) No. 6/2008

P. Mannagati,

Rep. by the President/Secretary,

Sri Bharathi Mills Pondicherry

Thozhilalar Urimai Padukappu Sangam,

Puducherry.

. . Petitioner

Versus

The General Manager,

Sri Bharathi Mills, Puducherry.

. . Respondent

This industrial dispute coming on this day before

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

filed vakalat for the petitioner and Thiru K. Ravikumar,

Advocate for the respondent, upon hearing both sides,

upon perusing the case records, after having stood over

till this day, this court passed the following:

229

8 April 2014]

LA GAZETTE DE L’ETAT

AWARD

The petitioner union has raised an industrial dispute

before the Labour Officer (conciliation), Puducherry

in respect of the regularisation of service of Mrs. Mannagati,

wife of Purushothaman (late) by the respondent

management. Since the parties presented their view, and

had divergent views in front of the conciliation table,

the conciliation ended in failure and the Labour Officer

(Conciliation) submitted their failure report on 24-1-2008,

following which the Government of Puducherry through

the Labour Department, has made the reference of the

dispute to the Industrial Tribunal, Puducherry, through

No. 445/2006/LO(C)/AIL.

Whether it is possible to pass an award directing

the respondent to confirm the services of the petitioner

with retrospective effect and to give her the back wages,

continuity of services and all attendant benefits?

2. The petitioner in this petition has stated as

follows:

One employee named Mrs. Mannagati was

working in the respondent management for past 13

years who joined in the company on 2-10-1995 on the

basis of death of her confirmation employee Mr.

Purushothaman who was working for 26 years in the

respondent company in the category Scavenger as

Sweeper for monthly salary and died on 26-6-1995.

The petitioner was appointed by the respondent

company on 2-10-1995 on the same category of

Scavenger as Sweeper on which her husband for the

daily wages of ` 25 per day and the monthly salary

is ` 650. The petitioner was working continuously

for 240 days in each and every year in the same

category for the past 13 years. Though the

petitioner was working continuously for 280 days

in 2 years and in the same category from the date of

joining (2-10-1995), the management is liable to make

the employee regularisation in daily allowances as

permanent employee according to Industrial Disputes

Act. But the management failed to make such

privilege for the petitioner employee. The petitioner

continued her job in the same category along with

the increment of daily wages for the past 13 years

by signing the voucher of the respondent company

from the date of joining up to till date.

In the first stage from 2-10-1995 to 31-12-1996, the

petitioner was working in the category of Scavenger

in daily wages for ` 25 per day and for the month

of ` 650. In the second stage from 1-1-1997 to 31-

12-1998, due to her continuous working for about 280

days, she was given an increment for about ` 35 per

day and for month of ` 910. In the third stage,

though the petitioner was working more equally to

the regularisation employee, the management gave

an increment for about ` 50 per day and for month

of ` 1,300. In the fourth stage, 1-1-2004 to 10-6-2003

she gave an increment by the management for about

` 70 per day and for a month of ` 1,830. In the fifth

stage, from 11-6-2008 to till now, the petitioner is

getting daily wages up to ` 100 per day and for the

month of ` 2,600 were also signing the voucher of

the respondent management.

Though the petitioner's husband died while he

was an employee in the respondent management

company for about 26 years, the petitioner was

appointed directly by the management based upon

the legal heirs of the worked employee, she

approached for her confirmation of job as an

regularisation employee. Though the petitioner was

basically an illiterate and was not aware of the

benefits and privilege she continued her job for the

past 13 years. As a result of oral approach, the

respondent promised the petitioner to make her

confirmation employee with all her benefits according

to the Industrial Disputes Act. Then, the petitioner

approached the respondent with the help of the union

sangam for her regularisation on many negotiations

were also held between the management and the

union sangam which ended in failure. So the

petitioner approached the (conciliation) Labour Office

on 6-3-2006 stating all her facts and along with her

ESI Card for her regularisation of job. The

Conciliation Officer issued an notice on 10-3-2006.

The management gave an reply with false allegation

against the petitioner after four months on 31-7-2006

stating that the petitioner was not appointed by the

management, based on her husband death and her

request for employment she was appointed in the mill

as Scavenger. She was engaged on casual worker

daily wages basis and it has does not mean on regular

worker of the management. It is further stated she

was working under a contractor on the job of contract

basis and getting payment from the contractor

directly. The conciliation ended in failure, though

the petitioner approached this court seeking

necessary relief.

3. The respondent in this counter has stated as

follows:

Though the petitioner union is a recent factor and

is not having any representative character with

sufficient membership of workers in the mills to raise

an industrial dispute and so the petition is liable to

be dismissed. The respondent submits that this is

Mannagati approached the respondent requesting to

do casual work such as sweeping, cleaning and

gardening etc. She was permitted to the respondent

mills whenever required to do the above kind of

casual job which are not regular in nature and

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[8 April 2014

which does not form part of mills routine and category

work. This opportunity was given to her for the reason

that her husband Mr. Purushothaman has worked in

their mills and died while and in the services of the

mills. Mrs. Mannagati was given the chance of

employment clearly on humanitarian ground. The

work offered to her casual in nature and the mills had

not engaged her continuously in any specific job

only on humanitarian ground. She was permitted to

be covered under the provisions of the ESI Act but

it does not mean that she is appointed as regular

worker of the mills. From January 2004 onwards the

petitioner is not engaged by the mills directly but she

is working with a contractor on job contract basis

and getting payment from the contractor directly.

As per section 2 (S) of the Industrial Disputes Act

she is not employee and hence cannot raise

industrial dispute. The respondent submits that

those workers who are casual cannot claim

regularisation and continuity of job under the

present statutes especially under the Industrial

Disputes Act and as per Mills Standing Orders. It is

further stated that since there was ban in the

recruitment in the mills as per the direction received

from Government of India there was no recruitment

at all in the Mills. So she gave a false statement that

she was appointed in the Mills from 2-10-1995. The

respondent mill does not have any approved vacancy

in the post of Scavenger. So the petition deserves

to be dismissed.

5. The point for consideration is:

Whether the industrial dispute can be allowed?

6. On the point :

It is admitted by the respondent that the petitioner

is doing work in the mills after the death of her husband

Mr. Purushothaman who was the employee under the

mill for the past 26 years. The appointment order, dated

2-10-1995 is not filed on the side of the petitioner. But,

it is admitted by the respondent that she is working in

the mills from 2-10-1995 as a casual labourer. On the

side of the petitioner, the PW.1 to PW.3 were examined

and exhibit P1 to P9 were marked. On the side of the

respondent, RW.1 was examined and no document was

marked. The ESI card which was given to the petitioner

was also marked in this case. So from the evidence of

PW.1 to PW.3 it is clear that Mrs. Mannagati working

in the respondent mill from 2-10-1995 onwards.

According to the petitioner she is getting salary by

putting signature in the voucher. According to RW.1

since she is casual employee, her signature is not

obtained in the attendance register and the acquittance

by the respondent before court. So, it is not proved

that she is not putting her signature in attendance

salary.

As per CDJ 2005 MHC 1735

It is held that a person should not be kept in a

temporary or ad hoc status for long. Where a

temporary or ad hoc appointment is continued for

long the court presumes that there is need and

warrant for a regular post and accordingly directs

regularisation. In such circumstances, the services

of the first respondent have to be regularised from

the date of her initial appointment, when the date of

appointment is not disputed and the appointment is

regular and there is no violation of any rules in such

appointment, the court cannot postpone the date of

regularisation from the date of actual appointment to

the date of filing of the writ petition or to any other

date. In view of the above, the services of the first

respondent have to be regularised from the date of

her initial appointment. In the present case also the

appointment of the petitioner is 2-10-1995 according

to the petitioner as well as the respondent.

According to the petitioner she was doing the

scavenger work in the mill for the period of 13 years.

As per the above judgment a person should not be

kept in temporary job for a long period. So, accepting

the above decision, it is decided that the services of

the petitioner have to be regularised from the date

of her initial appointment on 2-10-1995.

As per CDJ 2013 MHC 4341

Having regard to the undisputed fact the first

respondent was appointed in 1995 on compassionate

ground due to the demise of his father, who was a

postman and he is continuing in service as on date,

we are of the view the tribunal has rightly allowed

the application filed by the first respondent. It is

made clear that the first respondent is to be

regularised on the same terms and conditions on

which the 202 similarly placed persons were granted

regularisation within four weeks from the date of

receipt of copy of this order. In the present case also

the petitioner was given employment after the death

of her husband who was the employee of the

respondent management for a period of 26 years. So,

her

appointment

also

the

basis

compassionate ground but this aspect was not

admitted by the respondent mill. But she was given

employment after her husband's death on 2-10-1995

is admitted by RW.1. She is doing work from 2-10-1995

till now. So she is in continuous service for the

period of 13 years. So, accepting the above

decision the petitioner is to be regularised on the

terms and conditions of the work of a Scavenger.

231

8 April 2014]

LA GAZETTE DE L’ETAT

As per CDJ 2013 MHC 4369

In service jurisprudence, no post can be treated

permanently as temporary. Temporary means only for

a certain limited period. When a post being held by

a person continues to be held for more than a certain

limited period, it cannot be said that it is a temporary

post. Such continuance, in a certain post, automatically

takes away the character of temporary and takes the

character of permanent. So, in this case also the

petitioner is appointed temporarily and she is doing

from same work for the period of 13 years and so it

cannot be said that it is temporary post. The

continuance service for the period of 13 years

automatically takes away the character of temporary

and takes the character of permanent. So, it is

decided that the petitioner is a permanent employee

of the respondent mill.

7. It is argued on the side of the respondent that she

is casual labourer and she is getting salary from the

contractor, but no record is filed to prove it. But RW.1

clearly admits that she is employee in the mill on 2-10-1995

to do the scavenger work after the death of her

husband.

8. It is admitted by the respondent that the petitioner

is working in the company as a casual labourer so they

have not filed any document. It is stated on the side of

the respondent that there is some prohibition with

regard to the new appointment by the Government and

no order was filed to prove it. According to PW.1 there

was no prohibition to appoint new employees by the

Government. PW.1 further admits that Mannagati had

ESI coverage.

9. RW.1 admits in his evidence as follows:

\ıðV∫Ô‚Ω ®[≈ ÿ>VaÈVπ >uº√VmD ®∫Ô^

∑\VÏ 7 ∂_Èm 8 kÚ¶∫Ô·VÔ \–>V´Ï \ıðV∫Ô‚Ω,

ºkÁÈlÚÕ>V_

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ÿƒFkVÏ.

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ÿ√Ú¬zD ºkÁÈ ÿƒFkVÏ. \–>V´Ï \ıðV∫Ô‚Ω

®[√kˆ[ ÔðkÏ AÚº≠V›>\[ ®[√kÏ ∞uÔ™ºk

®∫Ô^ t_o_ √Ë ÿƒF>VÏ. ®∫Ô^ t_o_ ÿ√Ú¬z√kÏ

√>s ÔVoBVÔ c^·m ®[≈V_ ƒˆ>V[. Œº´ ŒÚ

ÿ√Ú¬z√kÏ

√>s

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c^·m.

\ıðV∫Ô‚Ω √Ë ÿƒFm kÕ> ∏ˆs_ c^· engineer

\ıðV∫Ô‚Ω ÷®¸n ∏Ω›>D �ÆD ∂Õ>ﬂ ƒKÁÔ

ÿ>VaÈVπ ®[√>uz gkðD >V¬Ô_ ÿƒFBs_ÁÈ.

®∫Ô^ t_o_ BVÁ´•D WBt¬Ô¬ Ì¶Vm ®[Æ >Á¶

∂Õ> >Á¶ c›>´° >uº√Vm ∂xo_ c^·>V? ®[≈V_

ÿ>ˆBVm.

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ÂÔ_

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ÿƒFBs_ÁÈ.

So, from the evidence of RW.1, it is clear that

Mannagati is working in the company after her

husband's death. The Government order with regard to

the prohibition of employment is not filed before court.

Further, according to RW.1, one Scavenger post is kept

vacant. Since she is working in company continuously

for the past 13 years the argument that she is casual

labourer is not a correct one. She is working under the

contractor is also not proved through records. Due to

the long passing of years of service her job became a

permanent one and so her service is to be regularised

on the same terms and conditions similarly placed

persons were granted. So the service of the petitioner

has to be regularised from the date of her initial

appointment namely 2-10-1995 because the date of

appointment is not disputed. Taking into consideration

of all the above said aspects, the petition filed by the

petitioner is allowed. The respondent is directed to

confirm the services of the petitioner with retrospective

effect and to give her the back wages, continuity of

services and all attendant benefits.

10. In the result, the industrial dispute is allowed.

However in the circumstances of the case, there is no

order as to costs.

Typed to my dictation, corrected and pronounced

by me in the open court on this the 3rd day of

January 2014.

S. MARY ANSELAM,

Presiding Officer,

Industrial Tribunal.

————

List of witnesses examined for the petitioner:

PW.1 —

8-2-2012 — K. Mohandoss

PW.2 — 21-6-2013 — J. Vincent

PW.3 — 21-6-2013 — B. Kannadasan

List of witness examined for the respondent:

RW.1 —

6-8-2013 — M. Sugumaran

List of exhibits marked for the petitioner:

Ex.P1

— Copy of the ESI Card of the Petitioner,

dated 3-2-2004.

Ex.P2

— Copy of the identity card of deceased

Purushothaman issued by the respondent

management.

Ex.P3

— Death certificate of Purushothaman, dated

8-3-2006.

Ex.P4

— Copy of the letter given by the petitioner

union to the Labour Officer (Conciliation),

dated 6-3-2006.

Ex.P5

— Copy of the reply submitted by the

respondent management to the Labour

Officer (Conciliation), dated 31-7-2006.

232

LA GAZETTE DE L’ETAT

[8 April 2014

Ex.P6

— Copy of the failure report submitted by

the Labour Officer (Conciliation) to

the Secretary to Government (Labour),

dated 24-1-2007.

Ex.P7

— Copy of the notification issued by the

Government of Puducherry, dated 13-3-2008.

Ex.P8

— Copy of the Employment Identity Card

of J.Vincent issued by the General

Manager, Sri Bharathi Mills, Puducherry.

Ex.P9

— Copy of the Employment Identity Card of

B. Kannadasan issued by the General

Manager, Sri Bharathi Mills, Puducherry.

List of exhibits marked for the respondent: Nil

S. MARY ANSELAM,

Presiding Officer,

Industrial Tribunal.

GOVERNMENT OF PUDUCHERRY

OFFICE OF THE CHIEF EDUCATIONAL OFFICER

No. 3818/CEO/KKL/E3(Exam.)/2014.

Karaikal, the 27th March 2014.

NOTIFICATION-I

It is hereby notified that the original H.S.C. Mark

Certificates, under Register Number 522081 and 938038

respectively bearing Serial Number 4481875 and TMR

Code No. G451123 respectively March 2009 and March

2010 sessions both in respect of A. Sabarimalai Nathan,

an ex-pupil of VOC Higher Secondary School,

Kottucherry, Karaikal are reported to have been lost

beyond the scope of recovery and it is proposed to

issue duplicate certificates. If the original certificates

are to be found by anybody they should be sent to

the Secretary, Board of Secondary Examinations,

College Road, Chennai-6 for cancellation, as they are

no longer valid.

V. MARIMUTHU,

Chief Educational Officer.

————

NOTIFICATION-II

It is hereby notified that the original H.S.C. Mark

Certificate under Register Number 573917 bearing Serial

Number 5976236 of March 2011 session in respect of

S. Prabhuganesh, an ex-pupil of VOC Higher

Secondary School, Kottucherry, Karaikal is reported

to have been lost beyond the scope of recovery and

it is proposed to issue a duplicate certificate. If the

original certificate is to be found by anybody, it

should be sent to the Secretary, Board of Secondary

Examinations, College Road, Chennai-6 for

cancellation, as it is no longer valid.

V. MARIMUTHU,

Chief Educational Officer.

————

NOTIFICATION-III

It is hereby notified that the original S.S.L.C. Mark

Certificate under Register Number 566604 bearing Serial

Number 6985378 of March 2009 session in respect of

S. Prabhuganesh, an ex-pupil of Karaikal Ammaiyar

Government Aided High School, Karaikal is reported to

have been lost beyond the scope of recovery and it is

proposed to issue a duplicate certificate. If the

original certificate is to be found by anybody, it should

be sent to the Director of Government Examinations,

Chennai-6 for cancellation, as it is no longer valid.

V. MARIMUTHU,

Chief Educational Officer.

————

NOTIFICATION-IV

It is hereby notified that the original S.S.L.C. Mark

Certificate under Register Number 476080 bearing Serial

Number SEC 0577825 of March 2003 session in respect

of N. Sathish, an ex-pupil of NSC Bose Government

Higher Secondary School, Thalatheru, Karaikal is

reported to have been lost beyond the scope of recovery

and it is proposed to issue a duplicate certificate . If

the original certificate is to be found by anybody, it

should be sent to the Director of Government

Examinations, Chennai-6 for cancellation, as it is no

longer valid.

V. MARIMUTHU,

Chief Educational Officer.

————

NOTIFICATION-V

It is hereby notified that the original S.S.L.C. Mark

Certificate under Register Number 412970 bearing Serial

Number 1389916 of April 2001 session in respect of

R. Selvi, an ex-pupil of Annai Theresa Government

Girls’ Higher Secondary School, Karaikal is reported

to have been lost beyond the scope of recovery and

it is proposed to issue a duplicate certificate . If the

original certificate is to be found by anybody, it

should be sent to the Director of Government

Examinations, Chennai-6 for cancellation, as it is no

longer valid.

V. MARIMUTHU,

Chief Educational Officer.