530
LA GAZETTE DE L’ETAT
[22 July 2014
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
industrial dispute between the management of
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
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 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.,
(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:
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 on
531
22 July 2014]
LA GAZETTE DE L’ETAT
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.
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
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:
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 notice
532
LA GAZETTE DE L’ETAT
[22 July 2014
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. MARYANSELAM,
Presiding Officer,
Industrial Tribunal, Puducherry.
————
List of witness examined for the petitioner:
PW. 1 —
7-2-2011 — Rajamanickam
List of witness examined for the respondent:
RW. 1
— 28-3-2012 — Murali
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.
List of exhibits marked for the respondent:
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.
Ex.R12 — Copy of the petition for approval for
S. Devaraj, addressed to the Labour
Officer (Conciliation), dated 15-11-2007.
Ex.R13 — Copy of the petition for approval for
K. Senthilkumar, addressed to the Labour
Officer (Conciliation), dated 15-11-2007.
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.
533
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LA GAZETTE DE L’ETAT
Ex.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. MARYANSELAM,
Presiding Officer,
Industrial Tribunal, Puducherry.
————
GOVERNMENT OF PUDUCHERRY
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).
————
BEFORE THE LABOUR COURT AT PONDICHERRY
Present :Tmt. S. MARY ANSELAM, M.A., M.L.,
Presiding Officer (FAC), Labour Court.
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
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:
(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?
2. The facts giving rise to this industrial dispute as
stood exposited from the claim petition runs thus:
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 have
534
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.
535
22 July 2014]
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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.
5. The point for consideration is:
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
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.
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
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. MARYANSELAM,
Presiding Officer,
Labour Court (FAC), Puducherry.
————
List of petitioner’s witness:
PW.1 — 8-12-2011 — R. Mari
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:
Ex.P1 — Certificate issued by the respondent
company to Mr.P. Nellaiappan, J. Karthikeyan
and K. Kumar, dated December 2008.
Ex.P2 — Pay slips of 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.
537
22 July 2014]
LA GAZETTE DE L’ETAT
Ex.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
Components to the
respondent,
dated 2-5-2009.
Ex.P7 — Do me st ic
e nq ui ry
p r o c ee d i ng 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.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
Components to the respondent,
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.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.Rt. No. 28/AIL/Lab./J/2010,
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.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 fa 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 2014
Ex.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 Labour Officer(Conciliation),
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
surrendering
Factory
Licence,
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 (Regulation 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 — Report of failure of conciliation,
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
settlement and copy of cheques,
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
regarding
wage
negotiatio ns,
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.
539
22 July 2014]
LA GAZETTE DE L’ETAT
Ex.R40 — The catalogue of products manufactured
at Pondicherry.
Ex.R41 — The catalogue of products manufactured
in Bangalore factory.
Ex,R42 — The catalogue of spectronic S air circuit
breakers
manufactured
both
in
Bangalore and Pondicherry.
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.
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.
List of court exhibits:
Ex.C1 series — Fi le pro d uce d b y t he Lab o ur
Officer, Conciliation, Puducherry,
dated 20-12-2013.
S. MARYANSELAM,
Presiding Officer,
Labour Court (FAC), Puducherry.
————
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(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
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 9th day of May 2014
I.D. (T) No. 3/2008
The President,
Swadeshi Panchalai Thozhilalargal
Urimai Padukkappu Sangam,
Puducherry
. . Petitioner
Versus
The General Manager,
Swadeshi Cotton Mills,
Puducherry.
. . Respondent
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
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.
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 the
540
LA GAZETTE DE L’ETAT
[22 July 2014
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 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.
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.
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 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,
541
22 July 2014]
LA GAZETTE DE L’ETAT
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 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.
3. The respondent in his counter has stated as
follows:
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.
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 into
542
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.
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:
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:
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.
543
22 July 2014]
LA GAZETTE DE L’ETAT
In 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. MARYANSELAM,
Presiding Officer,
Industrial Tribunal, Puducherry.
544
LA GAZETTE DE L’ETAT
[22 July 2014
List of witness examined for the petitioner:
PW.1 — 6-9-2011 — K. Mohandoss
List of witnesses examined for the respondent:
RW.1 — 10-1-2014 — Aadil Shamim
RW.2 — 28-2-2014 — Sridher
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
employee Augustin Lagard to the
Labour Officer (Conciliation),
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.A16— Photocopy of the E.S.I. card of Augustin
Lagard.
Ex.A17— Photocopy of the annual statement of
Provident Fund of employee Augustin
Lagard.
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
employee John Philomin Raja to
the Labour Officer (Conciliation),
dated 20-2-2006.
Ex.A32— Photocopy of the E.S.I. card of John
Philomin Raja.
545
22 July 2014]
LA GAZETTE DE L’ETAT
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.A34— Photocopy of the pay slip of the
employee John Philomin Raja.
Ex.A35— Photocopy of the annual statement of
Provident Fund of employee John
Philomin Raja.
Ex.A36— Photocopy of failure report submitted by
the Labour Officer (Conciliation) to the
Secretary to Government (Labour).
List of exhibits marked for the respondent:
Ex.R1 — Copies of the gratuity nomination forms
of 8 petitioner workmen.
Ex.R2 — Copies of the service and identification
forms of 8 petitioner workmen.
Ex.R3 — Copies of the pay slips of 8 workmen
pertaining to March 2011.
Ex.R4 — Copy of the standing orders pertaining
to the respondent’s mills.
S. MARYANSELAM,
Presiding Officer,
Industrial Tribunal, Puducherry.