GOVERNMENT OF PUDUCHERRY LABOUR DEPARTMENT
(G.O. Rt. No. 106/Lab./AIL/J/2014, dated 1st July 2014)
NOTIFICATION
Whereas, the award in I. D. (T) No. 8/2008, dated 13-6-2014 of the Industrial Tribunal, Puducherry in respect of the i n d u s t r i a l d i s p u t e b e t w e e n t h e ma n a gement o f M/s. Alagulakshmi Industry, Puducherry and Puducherry Manila Pattali Thozhil Sangam, Puducherry, over closure of the unit 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 t h e no t i f i c a t i o n i s s u e d i n L a b o u r D e p a r t m e n t '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).
————
(a) Whether the dispute raised by the Puducherry Manila Pattali Thozhil Sangam against the management of M/s. Alagulakshmi Industry, Puducherry over closure of the unit is justified or not?
(b) To what relief, the workmen are entitled to?
(c) 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 respondent company is manufacturing calcium-carbide from 1999 onwards 15 male and 15 female are working there for nine years. Similar company was in Karaikal and i.e. its branch. The workers tried to start a union. So on 2-5-2007 onwards production was temporarily stopped. It is an unfair labour practice. While, the dispute was under enquiry. Palani, Devaraj, Senthilkumar and Venkatesan were punished under false charges, after conducting an enquiry which is against natural justice. So the dismissal order of those workers are to be cancelled, so the temporary stoppage of production is to be declared as illegal and gave continuity of service to all workers with back wages and work.
3. The respondent in this counter has stated as follows:
BEFORE THE INDUSTRIAL TRIBUNAL AT
PONDICHERRY
Present : Tmt. S. MARY ANSELAM, M.A., M.L., Presiding Officer (FAC), Industrial Tribunal.
Friday, the 13th day of June 2014
I.D. (T) No. 8/2008
The President, Puducherry Manila Pattali Thozhil Sangam, Puducherry.
. . Petitioner
Versus
The Managing Director, M/s. Alagulakshmi Industry, Nettapakkam, Puducherry. . . Respondent This industrial dispute coming on this day before me for hearing in the presence of Thiru Durai Arumugam, Counsel for the petitioner and Thiru L. Vinoba, 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:
AWARD
The industrial dispute arises out of the reference made by the Government of Puducherry vide G.O. Rt. No. 105/AIL/Lab./J/2008, dated 30-6-2008 of the Labour Department, Puducherry to resolve the following dispute between the petitioner and the respondent, viz., Respondent company is a small scale industry manufacturing a chemical called calcium-carbide from 1999 till April 2007. Due to the threats of disruption and destruction made by some of the workers, production came to a halt. During the last week of April 2007 namely on 25-4-2007 a local person by name Purushothaman demanded money from them which was refused by the management. So, on his instigation some of the workers tried to form a union, respondent informed to the Labour Commissioner by a representation, dated 25-4-2007. Then, some workers poured water in the lorry which carried the stock and thereby attempted to cause huge loss from the management. Respondent knowing it immediately gave a complaint on 2-5-2007 requesting action and demanding protection to the company. It prevented damage to the production. So, the management suspend the production for time being. They gave a written representation to the Labour Commissioner. On 3-5-2007 Purushothaman along with Pandurangan and four other co-workers Devaraj, Subrayalu, Venkatesan, Senthilkumar and Palani entered into the company premises and attempted to assault Arivalagan of the respondent company and shouted by using filthy language. Arivalagan gave a written representation on 3-5-2007 addressed to the Manager. He gave a complaint to the Police. Then, management issued show cause notice to the four workers. Since, their reply was not satisfactory, domestic enquiry was conducted. In that enquiry finding was given on22 July 2014] LA GAZETTE DE L'ETAT 531 22-10-2007 and all four workers were found guilty. It was brought to the knowledge of Labour Officer (Conciliation) on 15-11-2007 for approval. The company employed 17 workers muster roll proves it. Further no woman worker was employed at any point of time. Respondent had no branch at Karaikal. Petitioner is not a recognised trade union petitioners union was dissolved by its parent body prior to the filing of this petition. So, the so called president is no more holding his office and no locus standi to raise a dispute under the Industrial Disputes Act. 4. On the side of the petitioner, PW1 was examined, and the side of the respondent RW1 was examined. On the petitioners side Ex.P1 to Ex.P5 were marked. On the side of the respondent, Ex.R1 to Ex.R21 were marked.
and casual leave. So, the petitioner 's case that the respondent did not maintain proper records is proved to be a false one.
7. It is stated on the side of the respondent that the petitioner union is not a recognised trade union and in fact the petitioner organisation has been dissolved by its parent body prior to the filing of this petition before this court. Therefore, the so called President who is representing the petitioner is no more holding this office and as such he has no locus standi to raise a dispute under the Industrial Disputes Act. In this regard PW1 in his cross-examination deposed as follows:
▪ ➢ 5. The point for determination is—
Whether the industrial dispute can be allowed?
6. On the point:
According to the petitioner 15 men and 15 women workers are working in the respondent industry. As per claim statement but, as per the proof affidavit filed by PW1 20 men and 10 women workers are working in the industry. According to the respondent only 17 persons are working in the industry and no women worker are working in the industry. So, the total number of workers working in the respondent factory is to be proved by the petitioner. With regard to that aspect no document was filed on the side of the petitioners. But, on the side of the respondent the copy of the muster roll is marked as Ex.R6. As per Ex.R6 only 17 workers are employed in the respondent factory and no women worker was employed in their factory. So, the case of the petitioner that more than 30 members are working in the factory is not proved in this case.
In this regard PW1 in his cross-examination deposed as follows:
➢ ➢ ➢ ➢ ▪ It is further stated on the side of the petitioner that the respondent did not maintain attendance register and has not provided E.S.I., E.P.F., E.L., C.L. and minimum wages to the workers. But, the respondent has proved beyond the reasonable doubt that proper attendance register was maintained and ESI contribution was made through Ex.R5 and R21. The order passed in I.A 123/2013 would establish that E.S.I. contribution was made by the respondent right from 2002 till temporary suspension. Since the respondent did not employ sufficient number of employees to subject itself within the purview of the Employees Provident Fund and Miscellaneous Provisions Act, 1952, its employees are not eligible for the benefits under the Act. The muster roll are marked as Ex.R6 would establish that the employees are availing earned leave So, it is clear that the petitioner union is not a registered one and so, the respondent who is representing the petitioner has no locus standi to raise a dispute under the Industrial Disputes Act. Further, the petitioner did not furnish the list of employees on whose behalf, it is agitating the present claim. The list of employees is not found in the claim petition as well as in the proof affidavit also. So, the claim petition filed by the petitioner is devoid of material particulars, such as the name of the employee, the year of employment etc. On this ground also the claim petition is not bona fide.
8. It is stated on the side of the petitioners that the suspension of work, dated 2-5-2007 is illegal because no requisition was given to the Government and the copy of it is not sent to the workers and the union. It is stated on the side of the respondent that with regard to the suspension of work, representation was given to Labour Commissioner on 2-5-2007 itself and it is marked as Ex.R3. Further, if the number of workers employed in the factory is less than 100, there is no necessity to obtain the permission of the Government with regard to the closure of factory.
As per 1963 3 SCR 130 closure cannot give rise to an industrial dispute. In the present case the production in the company came to a grinding halt with the threats of disruption and destruction held by some of the workers. The disruption and destruction threats made by the workers is proved by the representation sent to the Deputy Labour Commissioner, Puducherry, through a representation, dated 25-4-2007. Likewise, with regard to the attempt to cause destruction to the company properties complaint was sent to the Superintendent of Police, Rural, Puducherry, dated 2-5-2007. Due to that only the production was suspended for the time being. With regard to the criminal trespass made by one Purushothaman and other company labourers, co-worker Arivalagan gave a complaint on 3-5-2007 addressed to the Manager, on the basis of that representation police complaint was given for taking appropriate action. Afterwards, the management issued show cause notice532 LA GAZETTE DE L'ETAT [22 July 2014
List of exhibits marked for the respondent:
to all the four labourers. Then, domestic enquiry was conducted and all the four labourers were found guilty of the charges. The order passed by the Enquiry Officer was brought to the knowledge of the Labour Officer (Conciliation) through a representation, dated 15-11-2007 for approval. Under section 33(2)(b) of the Industrial Disputes Act. All the above facts were suppressed by the petitioner in his claim petition. So, the temporary suspension of work announced by the factory is not an illegal one. As per 1979 (3) SCC 762 closure-propriety of or justification for the closure of business, in fact and truly effected, cannot raise an industrial dispute as contemplated by the State and Central Acts. So, in the present case also for the closure of the business there are justifiable grounds in support of the management.
Further PW1 admits in his evidence as follows:
➢ ➢ MRF ➢ ➢ ➢ Jothi Engineering
So, the persons who have faced to the domestic enquiry and who were removed from the service of the respondent, joined duty in some other places. Taking into consideration of all the above said aspects, it is decided that the closure of the unit by the management is justified. All the affected employees have joined in some other places, since the closure is justifiable one, the industrial dispute is not maintainable.
9. In the result, the claim petition is dismissed.
No costs.
Typed to my dictation, corrected and pronounced by me in the open court on this the 13th day of June 2014.
S. MARY ANSELAM, Presiding Officer, Industrial Tribunal, Puducherry.
————
Ex.R1 — Copy of the letter addressed to the Deputy Labour Commissioner, dated 25-4-2007.
Ex.R2 — Copy of the letter addressed to the Superintendent of Police, Rural, Puducherry, dated 2-5-2007.
Ex.R3 — Copy of the letter addressed to the Labour Commissioner, dated 2-5-2007.
Ex.R4 — Copy of the complaint given by Arivalagan addressed to the Manager, dated 3-5-2007.
Ex.R5 — Copy of the complaint addressed to the Inspector of Police, dated 3-5-2007.
Ex.R6 — Original copy of muster roll for the month of April 2007.
Ex.R7 — Copy of the covering letter addressed to the Labour Officer (Conciliation) for approval of petition for G. Palani, dated 15-11-2007.
Ex.R8 — Copy of the covering letter addressed to the Labour Officer (Conciliation) for approval of petition for S. Devaraj, dated 15-11-2007.
Ex.R9 — Copy of the covering letter addressed to the Labour Officer (Conciliation) for approval of petition for K. Senthilkurnar, dated 15-11-2007.
Ex.R10 — Copy of the covering letter addressed to the Labour Officer (Conciliation) for approval of petition for R. Venkatesan, dated 15-11-2007.
Ex.R11 — Copy of the petition for approval for G. Palani, addressed to the Labour Officer (Conciliation), dated 15-11-2007.
List of witness examined for the petitioner:
PW. 1 — 7-2-2011 — Rajamanickam
Ex.R12 — Copy of the petition for approval for S. Devaraj, addressed to the Labour Officer (Conciliation), dated 15-11-2007.
List of witness examined for the respondent:
RW. 1 — 28-3-2012 — Murali
Ex.R13 — Copy of the petition for approval for K. Senthilkumar, addressed to the Labour Officer (Conciliation), dated 15-11-2007.
List of exhibits marked for the petitioner:
Ex.A1 — Photocopy of the letter to Labour Officer, dated 24-4-2007.
Ex.A2 — Photocopy of the letter to Labour Officer, dated 4-5-2007.
Ex.A3 — Photocopy of the letter to Labour Officer, dated 7-5-2007.
Ex.A4 — Photocopy of the letter to Labour Officer, dated 16-5-2007.
Ex.A5 — Photocopy of the letter to Conciliation Officer, dated 17-5-2007.
Ex.R14 — Copy of the petition for approval for R. Venkatesan, addressed to the Labour Officer (Conciliation), dated 15-11-2007.
Ex.R15 — Copy of the charge sheet issued to Palani, dated 7-5-2007.
Ex.R16 — Copy of the charge sheet issued to Senthilkumar, dated 7-5-2007.
Ex.R17 — Copy of the domestic enquiry final report against Palani, dated 22-10-2007.
Ex.R18 — Copy of the domestic enquiry final report against Senthilkumar, dated 22-10-2007.
22 July 2014] LA GAZETTE DE L'ETAT 533Ex.R19 — Copy of the domestic enquiry final report against Devaraj, dated 22-10-2007.
Ex.R20 — Copy of the domestic enquiry final report against Venkatesan, dated 22-10-2007.
Ex.R21 — Form 6, dated 10-11-2008
S. MARY ANSELAM, Presiding Officer, Industrial Tribunal, Puducherry.
————
GOVERNMENT OF PUDUCHERRY This industrial dispute coming on 11-4-2014 for final hearing before me in the presence of Tvl. K. Sudalaikannu, K. Krishnamoorthy and A. Bhaskaran, Counsel for the petitioner, Tvl. Gupta and Ravi and S. Karthikeyan, Counsel 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 has been referred as per the G.O. Rt. No.124/ AIL/Lab./J/2010, dated 9-6-2010 for adjudicating the following:
LABOUR DEPARTMENT
(G.O. Rt. No. 107/Lab./AIL/J/2014, dated 4th July 2014)
NOTIFICATION
Whereas, an award in I.D.(L) No. 24/2010, dated 28-4-2014 of the Labour Court, Puducherry in respect of the industrial dispute between the Managing Director, M/s. G. E. India Industrial Pvt. Ltd., Puducherry and Branch Secretary, United Labour Federation, Tindivaname, over charter of demands and lock-out 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).
————
(a) Whether the dispute raised by the workmen affiliated to the United Labour Federation against the management of M/s. G.E. India Industrial Pvt. Ltd., Sedarapet, Puducherry, over charter of demands such as increase of basic pay, dearness allowance, production incentive, HRA and medical allowance, etc., is justified or not? If justified, what relief the workmen are entitled to?
(b) To compute the relief, if any, awarded in terms of money, if it can be so computed?
(c) Whether the dispute raised by the workmen affiliated to the United Labour Federation against the management of M/s. G.E. India Industrial Pvt. Ltd., Sedarapet, Puducherry regarding the lock-out declared by the management is legal is justified or not?
(d) If not, to what relief the workmen are entitled to?
(e) Or in the alternative plea made by the management that it was a case of closure is justified and legal?
(f) In this case, there is no lock-out it is only closure and the closure declared by the management is legal and justified?
BEFORE THE LABOUR COURT AT PONDICHERRY
Present :Tmt. S. MARY ANSELAM, M.A., M.L., Presiding Officer (FAC), Labour Court.
2. The facts giving rise to this industrial dispute as stood exposited from the claim petition runs thus:
Monday, the 28th day of April 2014
I.D. (L) No. 24/2010
R. Mari, Branch Secretary, United Labour Federation, Tindivanam.
. . Petitioner
Versus
The Managing Director, M/s. G.E. India Industrial Pvt. Ltd., Sedarapet, Pondicherry.
. . Respondent It is stated in the claim statement that since more than 100 workers are working in the respondent factory. The Industrial Dispute Act Schedule V-B is applicable to the respondent with regard to the closure of the factory no permission was obtained from the Pondicherry Government. So, the industry has filed to obtain permission under section 25 (O) of the Act. So, even as per the closure of the factory as per section 25 (O) (6) the workers are entitled for all benefits. The factory at Puducherry belonging to the respondent was not closed, its manufacturing was continued at 42/1 and 45/14, Electronics City, Phase-II, Bangalore. So, the case of the respondent that the factory at Pondicherry was closed wrong, but, in fact in the name of closure they have534 LA GAZETTE DE L'ETAT [22 July 2014 done illegal lock-out since the labourers asked for have remuneration. The lock-out was made by the respondent so all the labourers are expected to be reinstated into service and till then they are entitled for wages and other benefits. The agreement, dated 31-8-2006 came to an end on 31-7-2009 so, the petitioners gave a requisition to the respondent, the petitioners asked for the common relief from 1-8-2009 onwards.
The general demands are as follows:
➢ ➢ ➢ ➢ ▪ `▪ ▪ ➢ ➢ ➢ ` ▪ (Dearness Allowance) ➢ ▪ ➢ ➢ ➢ ▪➢ ➢ ▪ ➢ ➢ ➢ ➢ ➢➢➢
➢ • ` ` ▪ ▪ ➢ ➢ ➢ ` ` ▪ ➢ ▪↔ ➢
▪➢ ➢ General Electric ▪ ▪ ➢ ➢ T.T.K., M.R.K., Sundaram Fastners, Larsan & Tourbo ➢ ➢
➢ ➢ ▪ ➢ ➢ ➢ ➢Larson & Toubro Limited, Pondicherry ▪ ➢ ▪➢ Ex. W. 27.
So, the pettioners wants the Labour Court to pass an award directing the management to grant benefits and demands as per the petitioner's charter of demands, dated 9-7-2009 and to compute the benefits of the relief in terms of money and to hold that the lock-out declared by the respondent management as illegal and lift the lock-out and reinstate the workers with continuity of service, back wages and other benefits and to hold that the plea of the management that it was a case of closure that it was not legal.
3. Per contra, traversing the averments the claim statement, the respondent filed the counter with the averments which runs thus:
The petitioner federation has no locus standi to initiate any conciliation proceedings or raise any dispute as against this respondent. The petitioner federation appears to be the Apex Body of other unions and it has no membership at any time during the existence of the respondent's factory at Puducherry. The respondent were the members of the said federation during the period in which the factory was working. The ex-workmen of the factory appear to have become members of the petitioner federation only after their services had been terminated consequent to closure of the factory and all their dues had been settled by the respondent. The respondent's unit at Puducherry was set up in the year 1998 for manufacture of air circuit breakers, switches and spares. There were only 38 permanent workmen worked in the Puducherry unit. Due to downturn in the market during the latter half of 2008, there has been a drop in the sales of the products manufactures at the Puducherry unit. Several customers of the products manufactured at the plant delayed their projects or cancelled the projected orders. The utilisation of capacity came down drastically to 50% during the 12 months preceding the closure and under utilisation of capacity has resulted in high operational costs and it was difficult to run the plant profitably. 7 workmen were kept under suspension pending enquiry into the misconduct committed by them.
22 July 2014] LA GAZETTE DE L'ETAT 5355. The point for consideration is:
The respondent factory at Puducherry has been duly surrendered to the Inspector of Factories, Government of Puducherry due to the permanent closure of the factory. Similarly the Registration Certificate under the Contract Labour (Regulation and Abolition) Act has been duly surrendered to the Deputy Labour Commissioner, Labour Department, Government of Puducherry who is the Registering Officer under the said Act. The closure is real, bona fide and genuine; factual and irrevocable and complete with effect from 5-10-2009. The respondent management was informed on 20-3-2009 of the workmen joining the petitioner union the management suspended 6 workers on false allegations and that they are union activists are vehemently denied and the petitioner is put to strict proof of the same. There was no closure at all and it was really a lock-out as a counter measure against the raising of the industrial dispute for revision of wages are purely invention and imagination of the petitioner for the purpose of making out a case. The respondent management shifted the machinery and other materials from its factory at Puducherry to its factory at Electronics City, Bangalore and was continuing to carry on its manufacturing activity there through a labour force who are designated as trainees and also through workers who are paid through intermediaries and that the customers of the factory at Puducherry are continued to be supplied with the items manufactured in its factory at Electronics City, Bangalore.
The allegation of the petitioner that the reasons stated in the closure notice that orders are not available was not true and that the company continues to execute orders through its factory at Electronics City at Bangalore and that the petitioner union even on 1-10-2009 denied the stand of the management that it has no orders and that the management was doing work on leave days with trainees, temporary workers and contract labour are stoutly denied by this respondent and submits that these contentions of the petitioner union are highly untenable and does not have any value for consideration. The factory at Bangalore and Puducherry are two different and independent units and they are neither functionally integrated nor dependent on each other for existence. In fact, the factory licence, etc., had been surrendered which will prove that the factory has been permanently closed. The contentions of the petitioner union including any demand for wage revision survive for consideration. The employees have been paid compensation in accordance with the provisions of the law and they have already accepted the payment and hence the entire issued has attained finality.
4. During the enquiry of the petitioner side, PW.1 was examined and Ex.P1 to Ex.P29 were marked. On the side of the respondent RW.1 to RW.3 were examined and Ex.R1 to Ex. R47 were marked and C1 series were marked.
Whether the industrial dispute can be allowed?
6. On this point:
The first point was decided in this industrial dispute is whether the respondent announced closure or lock-out. According to the management it is a closure and according to the workers it is a lock-out. To determine the aspect, whether it is closure or lock-out the total number of workers are to be proved. So, the petitioners are expected to prove that the workers employed at Puducherry are more than 100. They have not proved it through oral and documentary evidence. But on the side of the respondent Ex.R11, dated 6-10-2009 was marked. As per Ex.R11 only 26 workers have signed in it. Ex.R22 was sent to 38 workers. Ex.R33 to R37 is the returns from October 2008 to March 2009. The total labourers is 43 and those who are not covered under the ESI -17. So, the number of workers is 60. Ex.R36, page 16 to 78 contains the total number of workers as 37. As per Ex.R37 also the total number of workers R38. So, it is clearly proved on the side of the respondent that the number of workers who are employed in the Puducherry factory is less than 60 and the permanent workers are 38. If the total number of workers are less than 100 then, it will attract only closure of the business. With regard to the closure, R4 to R9 notice were marked. It refers to closure. R15 notice also refers to closure. R16 surrender of factory licence, R17 surrender of Registration Certificate, R18 cancel of code No. R23 with regard to payment, R24 series full and final settlement refers that it is a closure of business. PW.1 clearly admits in his cross-examination that on 5-10-2010 no manufacturing work was done in the factory at Puducherry, so, the manufacturing factory at Puducherry was closed on 5-10-2010 is clearly proved in this case.
7. If it is a lock-out the business will be continued at some other place, so, the next aspect to be decided is after closure whether some manufacturing business was continued in the Bangalore factory. If it is continued, then there is lock-out. In this regard PW.1 deposed as follows:
➢ ▪ ➢ ➢ ➢➢ ▪ ➢ ▪ ➢ ➢ 536 LA GAZETTE DE L'ETAT [22 July 2014 ➢➢ ➢ ▪ ➢ ➢ ➢ ➢ ➢
In this regard RW.2 deposed as follows:
Air circuit breakers are manufactured at Bangalore factory also.
According to the respondents only one item is similar and that production was also stopped after closure of the factory at Puducherry. So, the manufacturing of air circuit breakers is continued at Bangalore is not a correct one. So, closure is clearly proved in this case. In this case, there is no dispute about the charter of demand. In this regard PW.3 deposed as follows:
Charter of demand- conciliation ▪ In this regard PW.1 deposed as follows:
▪ ▪
So, with regard to the charter of demands, raising of salary, no adjudication can be raised now.
8. It is argued that no prior notice was given to the Puducherry Government with regard to the closure of business by the respondent.
In this regard RW.1 clearly deposed in his cross- examination as follows:
➢ ➢ ➢ ➢ ▪ 6,7 apprentice dispute at all. As per 1968 3 SCR 130 Closure cannot give rise to an industrial dispute. As per 1971 3 SCC 495 the reasoning behind the argument was that if the industry itself disappeared any adjudication with regard to a dispute which had arisen in the past would be a fruitless errand and any award made on the reference thereafter would be ineffective.
11. In the present case also the industry was closed permanently at Puducherry. So, with regard to the dispute which had arisen in the past or any award made on the reference thereafter would be ineffective because the industry itself disappeared. As per 1979 (3) SCC 762 industrial dispute-closure - Propriety or Justification for the closure of business, in fact and truly effected cannot raise an industrial dispute as contemplated by the State and Central Acts. So, in the present case also the factory was closed once for all and it is clearly proved that there is no lock-out. So, the closure cannot raise an industrial dispute. In this case, it is clearly stated by the petitioner that there was no conciliation with regard to the charter of demands. It is further the case of the petitioner that there is no demand with regard to the salary before the Conciliation Officer. So, with regard to the charter of demands and raising of salary no adjudication can be raised now. Taking into consideration of all above such aspects, the industrial dispute preferred by the petitioner is dismissed.
12. In the result, the claim made by the petitioner is dismissed. No costs.
Typed to my dictation, corrected and pronounced by me in the open court on this the 28th day of April, 2014.
S. MARY ANSELAM, Presiding Officer,
Labour Court (FAC), Puducherry.
————
List of petitioner's witness:
PW.1 — 8-12-2011 — R. Mari
In this case it is very clearly proved that only 38 permanent workers worked at Puducherry. So, there is no necessity to give prior notice to the Puducherry Government and obtained its permission, with regard to the closure of the factory.
List of respondent's witnesses:
RW.1 — 30-7-2012 — Glen D'Souza
RW.2 — 1-7-2013 — Ashok Vishwakarma RW.3 — 20-12-2013 — V. Shkoundala.
List of petitioner's exhibits:
9. In the present case, it is very clearly proved that the respondent company was closed and there was no lock-out. As per 1963 3 SCR 540 if the action taken by the appellant is not a lock-out but, is a closure bona fide and genuine, the dispute which the respondents may raise in respect of such a closure is not an industrial dispute at all. Closure indicates the final and irrevocable termination of the business itself, lock-out indicates the closure of place of the business and not the closure of business itself.
10. In this case, it is clearly proved that there is a closure and the business was terminated, it is not a closure of place of business. So, since the act done by the respondent is the closure, it is not an industrial Ex.P1 — Certificate issued by the respondent company to Mr.P. Nellaiappan, J. Karthikeyan and K. Kumar, dated December 2008.
Ex.P2 — Pay slip s o f K. Kumar, R. Mari and K. Ramamoorthy, respectively, dated October 2008, March 2009, September 2009.
Ex.P3 — Suspension order issued to the 6 workers, dated 18-3-2009.
22 July 2014] LA GAZETTE DE L'ETAT 537Ex.P4 — Letter sent by the petitioner union to the respondent/management, dated 20-3-2009.
Ex.P5 — Letters sent by the Respondent/ Management to R.Mari, with regard to his subsistence allowance, dated 2-4-2009, 2-4-2009 and 2-5-2009.
Ex.P6 — Invoice of the Sri Venkateswara Precision Co mp o n e n t s t o t h e re s p o n d e n t , dated 2-5-2009.
Ex.P7 — D o m e s t i c e n q u i r y p r o c e e d i n g s relating to Mr. R. Mari (at Page No.47), dated 26-6-2009.
Ex.P8 — Notice terminating the earlier settlement and seeking new wage revision, dated 9-7-2009.
Ex.P9 — Charter of demand given to the respondent management by the petitioner union, dated 9-7-2009.
Ex.P10 — Notice of closure under section 25-FF- A of Industrial Disputes Act to the Secretary to Pondicherry Government, dated 25-7-2009.
Ex.P21 — Conciliation failure report issued by the Labour Officer (Conciliation), dated 22-12-2009.
Ex.P22 — G.O. Rt. No. 28/AIL/Lab./J/2010, dated 17-2-2010.
Ex.P23 — Affidavit and petition in W.P. No. 4204 of 2010, dated 23-2-2010.
Ex.P24 — Order in W.P. No.4204 of 2010, dated 13-4-2010.
Ex.P25 — Packing slip for air circuit breaker and test certificate, dated 21-5-2010.
Ex.P26 — G. O . R t . N o . 2 8 / A I L / L ab./ J / 2 0 1 0 , dated 9-6-2010.
Ex.P27 — Pay slip of Mr. N. Murugan for the month of September 2011 working in the management of Larsen & Toubro Limited, Pondicherry, dated September 2011.
Ex.P28 — Identity card of R. Sankar.
Ex.P29 — Subsistence Allowance for the month of September 2009 issued by the respondent to the petitioner, dated 5-10-2009.
List of respondent's exhibits:
Ex.P11 — Letter given by the union to the management and the Chief Inspector of Factories (regarding leave announced by the management on 13th July 2009, 29th August 2009, 5th September 2009 and 3rd August 2009), dated 1-10-2009.
Ex.P12 — Alleged closure notice, dated 5-10-2009.
Ex.P13 — Email sent by Mr. Ananth Ramaswami, President and CEO of the respondent company, dated 5-10-2009.
Ex.P14 — Letter sent by the respondent/ management to R. Mari, with regard to his subsistence allowance, dated 5-10-2009.
Ex.P15 — Termination order issued by the management to the workers (26), dated 5-10-2009.
Ex.P16 — Email sent by Mr. S.N. Sharma, Marketing Leader-India Region of the respondent company, dated 7-10 2009.
Ex.P17 — Industrial dispute raised by the petitioner union before the Labour Officer (Conciliation), dated 9-10-2009.
Ex.P18 — Invoice of the Sri Venkateswara Precision Co mp o n e n t s t o t h e r e s p o n d e n t , dated 6-11-2009.
Ex.P19 — Statement of objection filed by the respondent before the Labour Officer (Conciliation), dated 17-11-2009.
Ex.P20 — Purchase order sent by respondent company to Sri Venkateswara Precision Components, dated 23-11-2009.
Ex.R1 — Notice of Closure issued to the Secretary (Labour), Government of Puducherry, dated 25-7-2009.
Ex.R2 — N o t i c e o f c l o s u r e o f f a c t o r y, dated 5-10-2009.
Ex.R3 — Notice of closure of factory (Tamil version), dated 5-10-2009.
Ex.R4 — Letter by respondent to the Secretary (Labour), Government of Puducherry, dated 5-10-2009.
Ex.R5 — Letter by respondent to the Labour Commissioner, Government of Puducherry, dated 5-10-2009.
Ex.R6 — Letter by respondent to the Inspector of Factories, Government of Puducherry, dated 5-10-2009.
Ex.R7 — Letter by respondent to the Member- Secretary, Pondicherry Pollution Control Committee, dated 5-10-2009.
Ex.R8 — Letter by respondent to the Assistant Provident Fund Commissioner, Employees Provident Fund Office, Puducherry, dated 5-10-2009.
Ex.R9 — Letter by respondent to the Deputy Director, Regional Office, Employees State Insurance Corporation, Puducherry, dated 5-10-2009.
Ex.R10— Notice of enquiry/conciliation issued by the Labour Officer (Conciliation), dated 7-10-2009.
538 LA GAZETTE DE L'ETAT [22 July 2014Ex.R11 — Statement of United Labour Federation, dated 9-10-2009.
Ex.R12 — Statement of objection filed by the respondent before the Labour Officer (Conciliation), dated 17-11-2009.
Ex.R13— Notice of enquiry/conciliation issued by the Lab our Officer ( Co nciliatio n) , dated 18-11-2009.
Ex.R14 — Complaint letter by respondent to the Station House Officer, Moolakulam Police Station, Puducherry, dated 1-12-2009.
Ex.R15 — Letter by respondent to the Assistant Executive Engineer, PIPDIC Industrial Estate, Sedarapet, Puducherry, dated 5-10-2009.
Ex.R16 — Letter by respondent to the Inspector of Factories, Government of Puducherry s u r r e n d e r i n g F a c t o r y L i c e n c e , dated 6-11-2009.
Ex.R17 — Letter by respondent to the Deputy Labour Commissioner, Government of Puducherry surrendering Registration Certificate issued under the Contract Labour (Regulatio n and Abolition) Act, 1970, dated 5-11-2009.
Ex.R18 — Letter by respondent to the Assistant Provident Fund Commissioner, Employees Provident Fund Office, Puducherry, dated 5-2-2010.
Ex.R19 — R e p o r t o f f a i l u r e o f co n c i l i a t i o n , dated 22-12-2009.
Ex.R20 — First notification issued by Labour Department vide G.O. Rt. No. 28/AIL/ Lab./J/2010, dated 17-2-2010.
Ex.R21 — First notification issued by Labour Department vide G.O.Rt. No.124/AIL/ Lab./J/2010, dated 9-6-2010.
Ex.R22 — Letter of termination of service consequent to closure issued by the respondent to 38 of its employees along with copy of respective cheques issued to them (38 Nos.), dated 5-10-2010.
Ex.R23 — Gratuity payment letters along with copy of respective cheques issued by the respondent of 38 of its employees, dated 26-10-2009.
Ex.R24 — Full and final settlement letters issued by the respondent to 38 of its employees along with respective full and final s e t t l e me n t a n d c o p y o f c h e q u e s , dated 27-10-2009.
Ex.R25 — Statement of account of the respondent issued by State Bank of India, Thattanchavady Branch, Puducherry showing the encashment particulars of closure compensation and full and final settlement compensation by the concerned workmen (26 pages).
Ex.R26— Standard Chartered Bank Account Statement of the respondent, showing the encashment particulars of gratuity amounts by the concerned workmen (7 Pages).
Ex.R27 — Letter by the respondent to the Inspector of Factories, Puducherry along with annual returns, dated 29-1-2009.
Ex.R28 — Letter by the respondent to the Inspector of Factories, Puducherry submitting annual return in Form-D as per payment of Bonus Act, dated 29-12-2008.
Ex.R29 — Letter by the respondent to the Conciliation Officer, Puducherry, dated 31-8-2006.
Ex.R30 — Minutes of concluding meeting r e g a r d i n g w a g e n e g o t i a t i o n s , dated 29-8-2006.
Ex.R31— Muster roll of the respondent factory for the period from August 2008 to August 2009.
Ex.R32— Pay register extract of the respondent factory for the period from June 2008 to July 2009.
Ex.R33— Letter from the respondent to the Regional Director, Regional Office (Puducherry) Employee's State Insurance Corporation along with half-yearly return in Form-5 (October 2008 to March 2009), dated 11-5-2009.
Ex.R34 — Letter from the respondent to the Regional Provident Fund Commissioner, Sub-Regional Office-Employees Provident Fund Organisation along with provident fund monthly returns for the month of September 2009, dated 26-10-2009.
Ex.R35 — Letter from the respondent to the Regional Provident Fund Commissioner, Sub-Regional Office-Employee's Provident Fund Organisation along with provident fund monthly returns for the month of October 2009, dated 26-10-2009.
Ex.R36 — Muster roll of Employees - Form 23, dated March 2007 to September 2009.
Ex.R37 — Register of national and festival holidays-Form VII.
Ex.R38 — Standing order.
Ex.R39 — Invoices raised by Pondicherry plant.
22 July 2014] LA GAZETTE DE L'ETAT 539Ex.R40 — The catalogue of products manufactured at Pondicherry.
BEFORE THE INDUSTRIAL TRIBUNAL
AT PONDICHERRY
Ex.R41 — The catalogue of products manufactured in Bangalore factory.
Present : Tmt. S. MARY ANSELAM, M.A., M.L., Presiding Officer (FAC), Industrial Tribunal.
Friday, the 9th day of May 2014
Ex,R42 — The catalogue of spectronic S air circuit breakers manufactured both in Bangalore and Pondicherry.
I.D. (T) No. 3/2008
Ex.R43 — The new range of spectronics GTU range of air circuit breakers manufactured in Bangalore.
Ex.R44 — The letter from the MEPZ Chennai to the respondent, dated 27-12-2001.
Ex.R45 — The letter from MEPZ Chennai to GE India Exports Pvt. Ltd., dated 12-8-2005.
The President, Swadeshi Panchalai Thozhilalargal Urimai Padukkappu Sangam, Puducherry . . Petitioner
Versus
Ex.R46 — The closure report issued by GE India Exports Pvt. Ltd., to the Inspector of Factories, Puducherry, dated 24-12-2007.
Ex.R47 — The Excel sheet showing details of ACB production output from 2006 to 2009.
The General Manager, Swadeshi Cotton Mills, Puducherry.
. . Respondent List of court exhibits:
Ex.C1 series — F i l e pr o d u c e d b y t h e L a b o u r Officer, Conciliation, Puducherry, dated 20-12-2013.
S. MARY ANSELAM, Presiding Officer,
Labour Court (FAC), Puducherry.
————
GOVERNMENT OF PUDUCHERRY This industrial dispute coming on this day before me for hearing in the presence of Thiru K. Velmurugan, Counsel 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:
AWARD
LABOUR DEPARTMENT
The industrial dispute arises out of the reference made by the Government of Puducherry as per the Conciliation Failure Report, dated 30-1-2007. The Government of Puducherry made a reference to the Labour Court, Puducherry through G.O. 340/2006/LO(C)/AIL.
(G.O. Rt. No. 108/Lab./AIL/J/2014, dated 9th July 2014)
NOTIFICATION
Whereas, the award in I.D.(T) No. 3/2008, dated 9-5-2014 of the Industrial Tribunal, Puducherry in respect of the industrial dispute between the General Manager, Swadeshi Cotton Mills, Puducherry and the Swadeshi Panchalai Thozhilalargal Urimai Padukkappu Sangam, Puducherry over correction of the date of confirmation of 8 workmen 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 t h e n o ti f i ca t i o n i ss u e d i n La b o u r De p a r t me nt '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).
2. The petitioner in this petition has stated as follows:
The petitioner union had raised the industrial dispute for correction as to the date of confirmation of eight workmen of Swadeshi Cotton Mills, Puducherry. The employee namely C. Anthonisamy, S/o. Chinnappan was appointed by the management of Swadeshi Cotton Mills, Pondicherry through interview on 15-1-1979. He was appointed in the Spinning Department and he was trained for three months. The management paid the amount of ` 8 per day. On the completion of the service for the period on 9-4-1979, the employee achieved the production target fixed by the management, the management regularised the employee with dearness allowance in his pay and ESI medical treatment facilities issuing the Identity Card No. 1458641 and also recovered the amount from the employee pay towards the Employees Contribution of Provident Fund vide P.F. No. 5405 which granted the employee the facilities of casual leave, holiday, weekly off and bonus etc. The employee was also issued a computerised pay slip in which the management has entered the date of joining of the employee as 16-2-1982 instead of entering the540 LA GAZETTE DE L'ETAT [22 July 2014 No. 5394 which granted the employee the facilities of casual leave, holiday, weekly off and bonus etc. The employee was also issued a computerised pay slip in which the management has entered the date of joining of the employee as 16-2-1982 instead of entering the confirmation date 9-4-1979 on which the employee was regularised with dearness allowance pay scale.
confirmation date 9-4-1979 on which the employee was regularised with dearness allowance pay scale. The employee namely N. Jagateesan, S/o. Nadesan was appointed by the management of Swadeshi Cotton Mills, Pondicherry through interview on 13-4-1979. He was appointed in the Spinning Department and he was trained for four months. The management paid the amount of ` 8 per day. On the completion of the service for the period on 28-8-1979, the employee achieved the production target fixed by the management, the management regularised the employee with dearness allowance in his pay and E.S.I. medical treatment facilities issuing the Identity Card No. 1449807 and also recovered the amount from the employee pay towards the employees contribution of Provident Fund vide P.F. No. 5490 which granted the employee the facilities of casual leave, holiday, weekly off and bonus etc. The employee was also issued a computerised pay slip in which the management has entered the date of joining of the employee as 16-2-1982 instead of entering the confirmation date 28-8-1979 on which the employee was regularised with dearness allowance pay scale.
The employee namely M. Soundararajan, S/o. Manikiaraj was appointed by the management of Swadeshi Cotton Mills, Pondicherry through interview on 16-11-1978. He was appointed in the Spinning Department and he was trained for six months. The management paid the amount of ` 8per day. On the completion of the service for the period on 1-4-1979, the employee achieved the production target fixed by the management, the management regularised employee with dearness allowance in his pay and ESI medical treatment facilities issuing the Identity Card No. 1458821 and also recovered the amount from the employee pay towards the employees contribution of Provident Fund vide P.F. No. 5482 which granted the employee the facilities of casual leave, holiday, weekly off and bonus etc. The employee was also issued a computerised pay slip in which the management has entered the date of joining of the employee as 16-2-1982 instead of entering the confirmation date 1-4-1979 on which the employee was regularised with dearness allowance pay scale. The employee namely S. Periasamy @ Ponnusamy, S/o. Sengani was appointed by the management of Swadeshi Cotton Mills, Pondicherry through interview on 15-5-1979. He was appointed in the Spinning Department and he was trained for eight months. The management paid the amount of ` 8 per day. On the completion of the service for the period on 16-2-1980, the employee achieved the production target fixed by the management, the management regularised the employee with dearness allowance in his pay and ESI medical treatment facilities issuing the Identity Card No. 1458825 and also recovered the amount from the employee pay towards the employees contribution of Provident Fund vide P.F. No. 5475 which granted the employee the facilities of casual leave, holiday, weekly off and bonus etc. The employee was also issued a computerised pay slip in which the management has entered the date of joining of the employee as 16-2-1982 instead of entering the confirmation date 16-2-1980 on which the employee was regularised with dearness allowance pay scale.
The employee namely P. Ramalingam, S/o. Perumal was appointed by the management of Swadeshi Cotton Mills, Pondicherry through interview on 1-12-1978. He was appointed in the Spinning Department and he was trained for four months. The management paid the amount of ` 8 per day. On the completion of the service for the period on 7-4-1979, the employee achieved the production target fixed by the management, the management regularised the employee with dearness allowance in his pay and ESI medical treatment facilities issuing the Identity Card No. 1458628 and also recovered the amount from the employee pay towards the employees contribution of Provident Fund vide P.F. No. 5387 which granted the employee the facilities of casual leave, holiday, weekly off and bonus etc. The employee was also issued a computerised pay slip in which the management has entered the date of joining of the employee as 16-2-1982 instead of entering the confirmation date 7-4-1979 on which the employee was regularised with dearness allowance pay scale. The employee namely I. Augustine Lagard, S/o. Issac Lagard was appointed by the management of Swadeshi Cotton Mills, Pondicherry through interview on 15-12-1979. He was appointed in the Spinning Department and he was trained for four months. The management paid the amount of ` 8 per day. On the completion of the service for the period on 9-4-1979, the employee achieved the production target fixed by the management, the management regularised the employee with dearness allowance in his pay and E.S.I. medical treatment facilities issuing the Identity Card No. 1458649 and also recovered the amount from the employee pay towards the employees contribution of Provident Furnd vide P.F.
The employee namely T. Manogaran, S/o. Thillaigovindan was appointed by the management of Swadeshi Cotton Mills, Pondicherry through interview on 17-2-1978. He was appointed in the Cone Winding Department and he was trained for twelve months. The management paid the amount of ` 8 per day. On the completion of the service for the period on 23-5-1979, the employee achieved the production target fixed by the management,22 July 2014] LA GAZETTE DE L'ETAT 541 3. The respondent in his counter has stated as
follows:
the management regularised the employee with dearness allowance in his pay and ESI medical treatment facilities issuing the Identity Card No. 1458712 and also recovered the amount from the employee pay towards the employees contribution of Provident Fund vide P.F. No. 5411 which granted the employee the facilities of casual leave, holiday, weekly off and bonus etc. The employee was also issued a computerised pay slip in which the management has entered the date of joining of the employee as 16-2-1982 instead of entering the confirmation date 23-5-1979 on which the employee was regularised with dearness allowance pay scale. The employee namely N. Johnphilomin Raja, S/o. Nallappan was appointed by the management of Swadeshi Cotton Mills, Pondicherry through interview on 20-2-1979. He was appointed in the Cone Winding Department and he was trained for four months. The management paid the amount of ` 8 per day. On the completion of the service for the period on 5-6-1979, the employee achieved the production target fixed by the management, the management regularised the employee with dearness allowance in his pay and E.S.I. medical treatment facilities issuing the Identity Card No. 1458721 and also recovered the amount from the employee pay towards the employees contribution of Provident Fund vide P.F No. 5446 which granted the employee the facilities of casual leave, holiday, weekly off and bonus etc. The employee was also issued a computerised pay slip in which the management has entered the date of joining of the employee as 16-2-1982 instead of entering the confirmation date 5-6-1979 on which the employee was regularised with dearness allowance pay scale.
The respondent states that all the above eight employees have time and again accepted that the date of joining of each of them is as mentioned in the pay slip. In the individual service identification forms filled and filed by all the employees, they have mentioned the date of joining as mentioned by the management and not as claimed by the petitioners. In the gratuity nomination forms filled and filed by all the employees they have mentioned date of appointment as mentioned by the management. The very basic details such as Name, Department, Category, Token No., 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 of such pay slip of each workmen. This practice is found in all the NTC mills in case of discrepancy or clerical error, the same may be rectified immediately. The petitioners who have raised the dispute have put in service of more than thirty years and they have received and checked and have been satisfied with the entries in their respective pay slips for all these years. So the petitioners are stopped from raising any dispute over the entries made in the pay slip. Further, the petitioners have not mentioned what are the records that they wish to correct. Their own service and identification agreements and gratuity nominations are also part of the records of the respondent mills, in which they themselves they have given their particulars. It is not case of the employee that those particulars were not given by them or those particulars were obtained under duress.
The eight employees joined the services of Swadeshi Cotton Mills from the year 1978-1979. They were appointed in different dates in different department, they giving them training from the period of their months. The eight employees were appointed by the management in regular and interview and their attending eligibility. The employees were issued E.S.I. Identity Card and Provident Fund, the eight employees were declared as confirm regular employees by dearness allowance from the management since the year 1979. The management had wrongly entered date of confirmation during the year 1982 instead of the year 1979. Thus the services of the eight employees were reduced purposely for three years. When, it was known to the employees they approached the management for seeking remedy. It was not rectified by the management so the employees approached by the Labour Officer Conciliation on 20-2-2006. The conciliation ended failure, so the petitioner approached this court seeking for necessary reliefs. The petitioner prays for an order directing the respondent to correct date of confirmation on 16-2-1982 in the official record about the 8 employees who has been regularised by dearness allowance in the year 1979.
It is further stated that the petitioners will have to submit service and identification agreement and gratuity nomination. Each of the petitioners have signed and submitted service identification agreements and gratuity nominations. Only based on the information given by the petitioners themselves, the entries have made in the respondent mills records. The petitioners have not claimed that they have given the date of entry wrongly. As per section 38 of the E.S.I. Act all employees shall be insured as per section 2 (9) of the E.S.I. Act employees include casual labourers, contract labourers and temporary employees. Hence as per the E.S.I. Act all the employees including permanent employees, temporary employees, casual employees, employees receiving monthly wages, employees receiving weekly wages, employees receiving wages on hourly basis, piece rated employees, contract labourers, paid apprentice, paid trainee and paid probationers will have to be brought under the purview of the Act and are given coverage under the Act in order to protect their interests. All the above mentioned employees were given ESI cards by the E.S.I. Corporation in which the date of entry into542 LA GAZETTE DE L'ETAT [22 July 2014 the mill is given as per the information provided by the management. The respondent denies that the date of entry as the E.S.I. identity card is liable to be taken as the date of confirmation. As per section 2(f) of the EPF Act employees include even casual labourers, contract labourers and temporary employees and they were given coverage under the Act. All the employees were made permanent are given individual code Nos. and from the date on which they are made permanent PF contributions are deducted. The definition of employee as per the EPF Act is completely different from the one defined in Industrial Disputes Act. The petitioners are claiming the date of entry mentioned in the E.S.I. card as the date of confirmation from all other purposes and records. The respondent states that the E.S.I. card 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 respondent submits that as per the practice and standing orders of the mills any person can be employed as a casual employee and then become a temporary also employee and then only can confirm. In cases all the above petitioners, they have been casuals and then temporary and then only confirmed. Hence, the date of entry as shown in the E.S.I. on which they had entered into the mills as casuals and not their date of confirmation.
4. On the side of the petitioners, PW.1 was examined, and the side of the respondent RW1 and RW.2 were examined. On the petitioners side Ex.A1 to Ex.A36 were marked. On the side of the respondent, Ex.R1 to Ex.R4 were marked.
➢ ▪ ➢ ➢ ➢ ➢ ➢ ➢➢ ➢ ➢ ➢ In this regard RW.1 deposed as follows:
The E.S.I. card is also issued to the casual labourers also. E.S.I. number given to the employee is maintained throughout his service. If there is break in service, the same number is continued no new number is given. The date of entry, date of coverage and the date of appointment can differ. In the E.S.I. card there is no mention about the nature of work, namely, whether it is a casual labour or permanent labour.
In this regard RW.2 deposed in his cross-examination as follows:
5. The point for determination is:
Whether the industrial dispute can be allowed?
6. On the point:
Whether the date of entry in the E.S.I. card is the date of confirmation of service is the first point is to be decided in this case the date of entry in the E.S.I. card is 9-4-1979.
In this regard PW.1 in his cross-examination deposed as follows:
➢ ➢ ➢ ➢ ➢ ▪ ➢ ▪ ➢ ▪ ➢ ➢▪ •▪▪ ➢ ➢ ➢ ▪ ➢ ➢ ➢▪• ➢➢• ➢➢ ➢Ex.R2 date of appointment ▪➢ ➢Date of joining and date of appointment ➢ ▪ Ex.R3- date of joining- ▪ ➢ ▪ Ex.R4 ▪company-standing order- date of confirmation pay slip- ▪ ➢ ▪ ➢▪
So, from the available evidence it clear that the date of initial entry in the service and the date of confirmation of service and relieved date from service and date of issue of ESI card are different. It is admitted by the witnesses that the 8 employees were employed in the mill as casuals and then temporary and thereafter their services were confirmed as permanent. The date of entry into the service is in the year 1979 but the service was regularised during the year 1982. This aspect is clearly proved by the evidence of PW.1, RW.1 and RW.2.
7. According to the management the date of confirmation is 16-2-1982 and it is find in all the relevant records which were filled up and filed by the eight employees.
22 July 2014] LA GAZETTE DE L'ETAT 543In this regard PW.1 deposed as follows:
➢ ➢ ▪ ▪ ➢ ➢▪ ➢➢ ➢ ➢ ➢ ▪ ▪ ▪
In this regard RW2 deposed as follows:
➢ ↔ ➢ ➢➢➢ ▪ ➢ ➢ E.S.I. date of entry ▪ pay slipdate of entry ▪ 8. The copies of the gratuity, nomination forms of eight employees are marked as Ex.R1. The copies of service and identification forms of eight employees are marked as Ex.R2. The basic detail such as name, department, category, token No., father's name, date of birth and date of entry of each and every workmen of the respondent mills are reproduced each pay slip of such workmen. The copies of the pay slips of eight employees are marked as Ex.R3. The eight employees were put in service of more than 30 years and they have received and checked the pay slips but they have raised the question of wrong entry only in the year 2005. So, the petitioners are estopped from raising such dispute over the entries made in the pay slips now.
9. The petitioners have not mentioned what are the records they wish to correct the details and identification agreements and gratuity nominations are also part of the records of the respondent mills. In those records, the employees have given their particulars the date of service mentioned in those documents differs from the date of entry in the E.S.I. card. In such circumstance what are the documents in which the date of entry is to be corrected is clearly to be stated by the petitioners, it was not clearly stated.
10. The citations, 1989(1) SCC 244 and 2008(2) LLJ737 filed by the counsel for the petitioner are not fitting with the facts of the case.
11. So, the date of confirmation is different from the date of issuing of the ESI card is clearly proved by the respondent. It is admitted by the petitioner that ESI card are issued to casual employees, temporary employees, permanent employees and employees receiving monthly wages, employees receiving weekly wages, employees receiving wages on hourly basis, piece rated employees, contract labourers, paid apprentice, paid trainee and paid probationers. So, there is no possibility to take the date of entry in the ESI card as the date of confirmation of service of the employees.
In this regard PW.1 deposed as follows:
▪ ➢ ➢ ➢ ▪▪➢ In this regard RW.1 deposed that it is not mentioned in the ESI card whether the employees is the casual labourer or permanent labourer. In this regard RW.2 deposed as follows:
Date of joining and date of appointment ➢ ▪ Ex.R3- date of joining- ▪
He admits that the date of entry in the ESI differs from the date of entry in the pay slip. So from the available records, it is clear that the date of entry in the ESI card is different from the date of confirmation of service of the employees.
12. According to the petitioners, the management had wrongly entered in the date of confirmation during the year 1982 instead of the year 1979 so their service is reduced purposely for three years. It is proved through records on the side of the management that the date of confirmation is during the year 1982 and the date of entry into the mill as casual labourer is in the year 1979. The gratuity nomination form is marked as Ex.R1. The date of appointment is mentioned in it as 16-2-1982. Service identification form is marked as Ex.R2. The pay slips are marked as Ex.R3. In the pay slips also the date of appointment is mentioned as 16-2-1982. Admittedly, the employees are under the service for the period of more than 30 years but they have raised this question in a belated stage. So, they were stopped from raising this question now. It is clearly proved on the side of the management the date of entry into the mill as casual labourer is different from the date of appointment, it is also clearly proved through oral and documentary evidence that the date of issue of ESI card is different from the date of appointment. The date of appointment is mentioned in every month pay slips but no objection was raised in the appropriate time by the employees. So, there is no possibility to correct it now. Further what are the records in which the date of appointment is to be corrected is not specifically stated by the employees. So, there is no possibility to correct the date of appointment in the registers which are maintained by the management. Taking into consideration of all the above said aspects, the petition filed by the petitioner is dismissed.
13. In the result, the petition filed by the petitioner is dismissed. No costs.
Typed to my dictation, corrected and pronounced by me in the open court on this the 9th day of May 2014.
S. MARY ANSELAM, Presiding Officer, Industrial Tribunal, Puducherry.
544 LA GAZETTE DE L'ETAT [22 July 2014List of witness examined for the petitioner:
PW.1 — 6-9-2011 — K. Mohandoss
Ex.A16— Photocopy of the E.S.I. card of Augustin Lagard.
List of witnesses examined for the respondent:
RW.1 — 10-1-2014 — Aadil Shamim
RW.2 — 28-2-2014 — Sridher
Ex.A17— Photocopy of the annual statement of Provident Fund of employee Augustin Lagard.
List of exhibits marked for the petitioner:
Ex.A1 — Photocopy of the petition submitted by employee Antonisamy to the Labour Officer (Conciliation), dated 20-2-2006.
Ex.A2 — Photocopy of the E.S.I. card of Antonisamy.
Ex.A3 — Photocopy of the letter submitted by the employee Antonisamy to the General Manager, Swadeshi Mills Ltd., dated 5-1-2005.
Ex.A4 — Photocopy of the pay slip of the employee Antonisamy.
Ex.A5 — Photocopy of the petition submitted by employee Jagateesan to the Labour Officer (Conciliation), dated 20-2-2006.
Ex.A6 — Photocopy of the letter submitted by the employee Jagateesan to the General Manager, Swadeshi Mills Ltd., dated 5-1-2005.
Ex.A7 — Photocopy of the E.S.I. card of Jagateesan.
Ex.A8 — Photocopy of the pay slip of the employee Jagateesan.
Ex.A9 — Photocopy of the annual statement of Provident Fund of employee Jagateesan.
Ex.Al0 — Photocopy of the petition submitted by employee Ramalingam to the Labour Officer (Conciliation), dated 20-2-2006.
Ex.A11— Photocopy of the letter submitted by the employee Ramalingam to the General Manager, Swadeshi Mills Ltd., dated 5-1-2005.
Ex.A12— Photocopy of the E.S.I. card of Ramalingam.
Ex.A13— Photocopy of the annual statement of Provident Fund of employee Ramalingam.
Ex.A14— Photocopy of the petition submitted by em p l o y e e A u g u s t i n L a g a r d t o t h e L a b o u r O f f i c e r ( C o n c i l i a t i o n ) , dated 20-2-2006.
Ex.A15— Photocopy of the letter submitted by the employee Augustin Lagard to the General Manager, Swadeshi Mills Ltd., dated 5-1-2005.
Ex.A18— Photocopy of the petition submitted by employee Soundararajan to the Labour Officer (Conciliation), dated 20-2-2006.
Ex.A19— Photocopy of the letter submitted by the employee Soundararajan to the General Manager, Swadeshi Mills Ltd., dated 5-1-2005
Ex.A20— Photocopy of the annual statement of Provident Fund of employee Soundararajan.
Ex.A21— Photocopy of the petition submitted by employee Periyasamy @ Ponnusamy to the Labour Officer (Conciliation), dated 20-2-2006.
Ex.A22— Photocopy of the E.S.I. card of Periyasamy @ Ponnusamy.
Ex.A23— Photocopy of the letter submitted by the employee Periyasamy @ Ponnusamy to the General Manager, Swadeshi Mills Ltd., dated 5-1-2005.
Ex.A24— Photocopy of the pay slip of the employee Periyasamy @ Ponnusamy.
Ex.A25— Photocopy of the legal notice issued by the employee Periyasamy @ Ponnusamy through his advocate to the respondent dated 17-1-2001.
Ex.A26— Photocopy of the petition submitted by employee Manogaran to the Labour Officer (Conciliation), dated 20-2-2006.
Ex.A27— Photocopy of the E.S.I. card of Manogaran.
Ex.A28— Photocopy of the letter submitted by the employee Manogaran to the General Manager, Swadeshi Mills Ltd., dated 5-1-2005.
Ex.A29— Photocopy of the pay slip of the employee Manogaran.
Ex.A30— Photocopy of the annual statement of Provident Fund of employee Manogaran.
Ex.A31— Photocopy of the petition submitted by em p l o y e e J o h n P h i l o m i n R a j a t o t h e L a b o u r O f f i c e r ( C o n c i l i a t i o n ) , dated 20-2-2006.
Ex.A32— Photocopy of the E.S.I. card of John Philomin Raja.
22 July 2014] LA GAZETTE DE L'ETAT 545List of exhibits marked for the respondent:
Ex.R1 — Copies of the gratuity nomination forms
of 8 petitioner workmen.
Ex.A33— Photocopy of the letter submitted by the employee John Philomin Raja to the General Manager, Swadeshi Mills Ltd., dated 5-1-2005.
Ex.R2 — Copies of the service and identification
forms of 8 petitioner workmen.
Ex.A34— Photocopy of the pay slip of the employee John Philomin Raja.
Ex.R3 — Copies of the pay slips of 8 workmen
pertaining to March 2011.
Ex.R4 — Copy of the standing orders pertaining Ex.A35— Photocopy of the annual statement of Provident Fund of employee John Philomin Raja.
to the respondent's mills.
Ex.A36— Photocopy of failure report submitted by the Labour Officer (Conciliation) to the Secretary to Government (Labour).
S. MARY ANSELAM, Presiding Officer, Industrial Tribunal, Puducherry.
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