632
LA GAZETTE DE L’ETAT
[26 August 2014
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 115/Lab./AIL/J/2014, dated 13th August 2014)
NOTIFICATION
Whereas, an award in I.D. (L) No. 11/2012, dated
11-7-2014 of the Labour Court, Puducherry in respect
of the industrial dispute between the Managing Director,
M/s. Pond’s Exports Limited, Villupuram and
Thiru K. Muralidharan, over non-employment has been
received;
Now, therefore, in exercise of the powers conferred by
sub-section (1) of section 17 of the Industrial Disputes
Act, 1947 (Central Act XIV of 1947) read with the
notification issued in Labour Department’s G.O.Ms. No.
20/91/Lab/L, dated 23-5-1991, it is hereby directed by
Secretary to Government (Labour) that the said award
shall be published in the official gazette, Puducherry.
(By order)
S. THAMMU GANAPATHY,
Under Secretary to Government (Labour).
————
BEFORE THE LABOUR COURT AT PONDICHERRY
Present : Tmt. S. MARY ANSELAM, M.A., M.L.,
Presiding Officer (FAC),
Labour Court.
Friday, the 11th day of July 2014
I.D. (L) No. 11/2012
K. Muralidharan
. . Petitioner
Versus
The Managing Director,
M/s. Pond’s Exports Limited,
Tamil Nadu.
. . Respondent
This industrial dispute coming on 27-6-2014 for final
hearing before me in the presence of Thiruvalargal
N. Baptiste Augustin, P.V. Jagatish, B. Vasantha Kumar
and S. Prabu, Counsel for the petitioner and
Thiruvalargal L. Sathish, T. Pravin, S. Velmurugan,
V. Veeraragavan and P. Rajesh, 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. 43/AIL/Lab./J/2012, dated 19-3-2012 for
adjudicating the following:
( 1 ) W h e t h e r
t h e
d i s p u t e
r a i s e d
b y
Thiru K. Muralidharan against the management of
M/s. Pond’s Exports Limited, over non-employment is
justified?
(2) If justified, to what relief the petitioner is
entitled to?
(3) To compute the relief in terms of money, if it
can be so computed?
2. The facts giving rise to this industrial dispute as
stood exposited from the claim petition runs thus:-
The petitioner worked with respondent for nearly
15 years. He has been continuously employed for
13 years. His wife was sick from 20-12-2007 to
31-1-2008. Hence, he took leave on those days.
He sent letter through Govindan to respondent seeking
extension of leave from 1-2-2008 to 28-2-2008.
No charge sheet was framed against or furnished to
petitioner which amounts to denial to natural justice.
He was not intimated about the name of Enquiry Officer,
the date, time and place of enquiry and copy of enquiry
proceedings, dated 26-4-2008. He was not furnished with
dismissal order, dated 13-10-2008. He is entitled to back
wages from 1-1-2008 to till date. There was a bias in the
enquiry conducted by Enquiry Officer. The charges against
the petitioner were not proved because of non-examination
of management representative. He was forced to accept the
content of 1st show cause notice by the Enquiry Officer.
The Enquiry Officer had obtained any confession
statement during the course of enquiry and the letter of
petitioner, dated 13-5-2008 admitting the charges against
him is violative of Article 20(3) of Indian Constitution.
The written statement, dated 13-5-2008 was made by him
against his own free will and is violative of human rights.
EPF and ESI benefits were denied to the petitioner. The
termination of petitioner is an act of victimisation. His
termination amounts to retrenchment within the meaning
of section 2 (oo) of Industrial Disputes Act and it is void.
3. Per contra, traversing the averments the claim
statement, the respondent filed the counter with the
averments which runs thus:
The petitioner was unauthorised absentee. He was
charge sheeted under charge sheet, dated 21-3-2008.
Since, he did not receive 1st show cause notice-cum-
charge sheet, dated 21-3-2008 was published in the
Tamil daily Thinamalar on 17-4-2008. He has acknowledged
633
26 August 2014]
LA GAZETTE DE L’ETAT
the paper publication and he participated in the enquiry
proceedings without any protest. Respondent’s representative
was examined in the enquiry proceedings and even
marked exhibits in the presence of present petitioner. The
petitioner himself has admitted the charges levelled
against him and he gave a letter to that effect which were
marked in the enquiry proceedings by the Enquiry
Officer. The enquiry was conducted in a free and fair
manner giving full opportunity to the petitioner to disprove
the charges. The petitioner was given copies of all the
proceedings, documents, list of witnesses, enquiry reports
and show cause notices in the course of enquiry and only
after taking into consideration his chronic absenteeism he
was dismissed from services. The enquiry report was sent
to his new address furnished by him in the enquiry
proceedings but, the same was returned. The same was
again published in the Dinamalar newspaper on 28-9-2008.
The respondent had suspended its activities since
October 2008. The Voluntary Retirement Scheme was
announced by respondent on 21-10-2008 for the workers
who were then working, but, the petitioner was dismissed
from service on 27-9-2008 itself. The activities in the
company have already suspended due to unviability of
the company. Therefore, there is no scope for
reinstatement. The petitioner does not deserve any other
relief. Therefore, this present industrial dispute must be
dismissed.
4. On the side of the petitioner, PW1 was examined
and Ex.P1 to Ex.P14 were marked. During cross-examination
of PW1, Ex. R1 to R3 were marked through PW1. On
the side of the respondent, RW1 was examined, and
Ex. R4 to Ex. R11 were marked.
5. The point for consideration is:
Whether the indistrial dispute can be allowed?
6. On this point :
It is admitted by the respondent that the leave
applied by the petitioner from 20-12-2007 to 31-1-2008
was granted. Then the petitioner intended to extent the
leave from 1-2-2008 till 28-2-2008 in order to look after
his ailing wife. According to the petitioner this letter
was sent through one Govindan who is also an
employee in the management. But, the letter was not
received by the respondent. So, the petitioner sent the
leave letter through the registered post that was
received by the management and reply, dated 26-2-2008
was posted on 28-2-2008 it is marked as Ex. P3. So, the
extension of leave was not granted by the management.
According to the management, the absence of petitioner
from 1-2-2008 to 21-3-2008 is unauthorised and the said
act is misconduct. So, the management sent a show cause
notice to the petitioner and is marked as Ex. P2.
According to the petitioner, no proper charge sheet was
framed against him. It is further stated that the notice
of enquiry should be sent to the petitioner. Further, the
management's representative Mr. Mahadevan was not
examined. So, the petitioner was unable to cross-examine
him. So, the enquiry was not conducted in proper manner
is the argument of the petitioner. According to the
respondent, the first show cause notice, dated 21-3-2008
containing the charges levelled against the petitioner and
it is show cause notice-cum-charge-sheet. Since, the
petitioner did not receive the show cause notice which
was published in the Dinamalar newspaper. The petitioner
himself had admitted that he has seemed the paper
publication and thereafter participated in the enquiry. So,
the argument that the show cause notice was not sent to
him and the place of enquiry was not informed to him is
not a correct one because, he has participated in the
enquiry.
7. It is further stated on the side of the petitioner that
he has changed his residence and all communications
were sent to earlier address. In this regard PW1 deposed
as follows:
EWS 592, Housing Board,
No. 18, First Cross Street, Savuri Nagar, Tharmapuri
So, from the evidence of PW1, it is
clear he is still living in the old address.
8. It is further stated on the side of the petitioner that
the representative of the management was not examined
and so, he was unable to cross-examine him. The
petitioner
appeared
in
person
on
26-4-2008
at 11.00 a.m. for the enquiry. The representative of
respondent was also present in the enquiry proceeding.
For the first time, petitioner revealed his new address
which was promptly recorded. The Enquiry Officer
explained in detail about the procedure to be adopted by
him both in case of admission and in case of denial of
charges. The Enquiry Officer opted for defense
assistance and he posted the enquiry on 13-5-2008.
On 13-5-2008, petitioner as well as respondent’s
representative
were
present.
The
respondent’s
representative was examined in the presence of petitioner
and Ex. M1 to M3 were marked. Thereafter, the
petitioner was specifically questioned on charges levelled
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LA GAZETTE DE L’ETAT
[26 August 2014
against him. The petitioner specifically admitted the same
and gave written letter. His statement was also recorded
by the Enquiry Officer on the same day.
The statement of petitioner was marked as Ex. W1 and
the letter is marked was Ex.W2. So, the domestic enquiry
was not conducted in proper manner is not a correct one.
The enquiry report was sent to the petitioner to his new
address along with the second show cause notice, dated
16-9-2008. The second show cause notice was also
returned as unserved, so it was published in the local
Tamil daily Dinamalar on 28-9-2008. Furthermore, with
regard to the sickness of his wife he has not produced
any documentary evidence. So, the extension of leave
was rejected by the management is a correct one. Even
after the rejection of his requests for extension of leave
and directed him to resume duty, the petitioner never did.
Even after receiving the enquiry notice, the petitioner
never expressed his desire to resume duty. He remained
absent throughout the period of enquiry and never offered
to join duty. So, he has abandoned his duty. The VRS was
introduced after his dismissal from service.
9. It was not a case of the management that the
petitioner was in the habit of taking leave without getting
prior permission. In the present case also he has applied
for leave and the leave was also granted and the
extension of leave alone was not granted by the
management. So, the termination of the worker is nothing
but an act of victimisation on the part of the management.
The petitioner has been continuously in the respondent
company without any break for the period of 13 years.
It is further stated on the side of the petitioner that the
Enquiry Officer had obtained a confession statement from
the petitioner and it is violative of Article 20(3) of the
Indian Constitution. On the side of the management
Ex.R1 and R2 which are the hand-written letters given
by PW1 to the Enquiry Officer is marked. Ex.R9 also
another hand-written letter given by the petitioner to the
respondent after completion of domestic enquiry. Now,
the petitioner has stated that those letters were obtained
from him by the Enquiry Officer forcibly. While the
domestic enquiry is going on, there is no necessity for the
Enquiry Officer to get a letter from the delinquent which
is a confession statement. Ex.R1, R2 and R9 are obtained
while the enquiry is pending. So, there is no possibility
to give any importance to Ex.R1, R2 and R9 and this
vitiates the enquiry. On perusal of records, it is found that
the petitioner was absent from duty unauthorisedly from
1-2-2008 till 28-2-2008. The earlier leave taken by him
from 20-12-2007 till 31-1-2008 was granted by the
management. There is no record to show that he was in
the habit of taking unauthorised leave often. So, the
action taken by the management is too much. On the side
of the respondent it is stated that the respondent had
suspended work from 21-10-2008 and it is stated on the
side of the management that some of the workers went
on VRS and some other workers are transferred to
various 7 units. So, the present petitioner is entitled for
back wages and continuity of service and all other
attendant benefits and costs.
10. On the side of the management, it is stated that
the petitioner had voluntarily admitted the charges. The
voluntary admission is obtained, while the disciplinary
proceeding is pending. Those statements are considered
to be a confession and so there is no possibility to give
much importance to those voluntary admissions of
charges. So, the judgments filed on the side of the
respondents are not fitting with the facts of the present case.
On the side of the petitioner (2012) 4 MLJ 595 (SC) is
pressed into service as per the above decision
unauthorised absence - Impugned order of dismissal -
appeal - Failure on part of the Disciplinary Committee
to prove that absence was willful -Absence not amounting
to misconduct - Impugned order set aside - Appeal
allowed. It is argued on the side of the petitioner that the
enquiry conducted by the respondent is not a fair one.
Because, subsistence allowance was not given to him
during the enquiry period. As per the (2011) 7 MLJ 1275
- Subsistence allowance - Denial of subsistence
allowance - When respondent intended to hold fresh
enquiry subsistence allowance has to be paid first as it
is a mandatory condition to proceed with valid enquiry -
Respondent directed to pay the petitioner as claimed.
11. It is argued on the side of the petitioner that no
proper procedure was followed before passing order of
termination. The obtaining of confession statement from
the petitioner by the Enquiry Officer is a violation of
procedure as per (2012) 4 MLJ 284 - Allegation of
unauthorised absence - No proper procedure followed
before passing order of termination - The respondents are
bound to frame regular charges and call for explanation
- Impugned order cannot be sustained and set aside.
Taking into consideration of all the abovesaid judgments
and the documents and evidence available before this
court, this court is inclined to allow this petition.
12. In the result, the claim petition is allowed with
costs.
Typed to my dictation, corrected and pronounced by
me in the open court on this the 11th day of July 2014.
S. MARY ANSELAM,
Presiding Officer,
Labour Court (FAC), Pondicherry.
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26 August 2014]
LA GAZETTE DE L’ETAT
List of petitioner’s witness:
PW.1 —
9-7-2013 — K. Muralidharan
List of respondent witness :
RW1 — 13-8-2013 — C.S. Youvarajan
List of petitioner’s exhibits :
Ex.P1 — Photocopy of the letter of offer of
contractual employment, dated 13-12-1993.
Ex.P2 — Photocopy of the letter of offer of
contractual employment, dated 11-2-1994.
Ex.P3 — Photocopy of the letter of offer of
contractual employment, dated 3-5-1994.
Ex.P4 — Photocopy of the agreement between the
petitioner and the respondent, dated 1-8-1994.
Ex.P5 — Photocopy of the letter of offer of
employment on Probation, dated 1-2-1996.
Ex.P6 — Photocopy of the letter of offer of
confirmation given to the petitioner, dated
31-7-1996.
Ex.P7 — Photocopy of the reply letter given by the
respondent, dated 26-2-2008.
Ex.P8 — Photocopy of the letter of show cause
notice for unauthorised absence to the
petitioner, dated 21-3-2008.
Ex.P9 — Photocopy of the letter sent by the
respondent to the D. Mahadevan, appointed
as the Domestic Enquiry Officer, dated
21-4-2008.
Ex.P10 — Photocopy of the deposition given by the
petitioner during enquiry, dated 13-5-2008.
Ex.P11 — Letter sent by the petitioner to the Enquiry
Officer, dated 13-5-2008.
Ex.P12 — Photocopy of the order passed by the
Enquiry Officer, dated 20-5-2008.
Ex.P13 — Photocopy of the letter of show cause
notice given by the respondent to the
petitioner, dated 16-9-2008.
Ex.P14 — Photocopy of the conciliation report given
by the Labour Officer (Conciliation), dated
10-2-2012.
List of respondent’s exhibits:
Ex.R1 — Photocopy of the letter issued by the
petitioner to the respondent.
Ex.R2 — Photocopy of the enquiry report.
Ex.R3 — Photocopy of the letter issued by the
petitioner to the respondent, dated 5-2-2008.
Ex.R4 — Original copy of letter of authorisation to
Mr. Youvarajan, dated 13-8-2013.
Ex.R5 — Photocopy of the paper publication in
Dinamalar news daily effected by respondent
intimating the petitioner about the date of
enquiry, dated 17-4-2008.
Ex.R6 — Photocopy of the findings of Enquiry
Officer in English and in Tamil, dated
20-5-2008.
Ex.R7 — Photocopy of the second show cause notice
given by respondent to the petitioner, dated
16-9-2008.
Ex.R8 — Photocopy of the paper publication in
Dinamalar news daily effected by respondent
intimating the petitioner 2nd show cause
notice, dated 16-9-2008.
Ex.R9 — Copy of letter addressed by petitioner to
respondent in response to 2nd show cause
notice, dated 29-9-2008.
Ex.R10 — Photocopy of the dismissal order issued by
respondent to the petitioner, dated 13-10-2008.
Ex.R11 — Photocopy of the letter given by respondent
to the petitioner with RPAD slip,
dated 18-11-2008.
S. MARY ANSELAM,
Presiding Officer,
Labour Court (FAC), Pondicherry.
————
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 118/Lab./AIL/J/2014, dated 13th August 2014)
NOTIFICATION
Whereas, an award in I.D.(L) No. 33/2010, dated
6-6-2014 of the Labour Court, Puducherry in respect of
the industrial dispute between the management of
M/s. Delta Power Solutions (India) Ltd., Puducherry
and Delta Power Solutions (India) Ltd. Thozhilalar
Sangam, over non-employment of 216 employees has
been received;
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LA GAZETTE DE L’ETAT
[26 August 2014
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.
Friday, the 6th day of June 2014
I.D. (L) No. 33/2010
T. Jayakumar,
Delta Power Solutions (India) Pvt. Ltd.
Thozhilalar Sangam,
Puducherry.
. . Petitioner
Versus
(1) The Managing Director,
Delta Power Solutions (India) Pvt. Ltd.
(2) Sooriya,
M/s. Sri Enterprises.
(3) G. Gnanasegar,
M/s. Saraswathy Agency
. . Respondent
This industrial dispute coming on 30-5-2014 for final
hearing before me in the presence of Thiruvalargal
S. Nagarajan, Raja and A.P. Ilangovan, Counsel for
the petitioner, Thiruvalargal L. Sathish, T. Pravin,
S. Velmurugan and V. Veeraragavan, Counsel for the
1st respondent, Respondent No. 2 and 3 called absent and
set ex parte, 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. 195/ AIL/Lab./J/2010, dated 27-9-2010 for
adjudicating the following :
(1) Whether
any
employer
and
employee
relationship exists between the 216 workers (as
mentioned in the Annexure) belongs to M/s. Delta
Power Solutions (India) Pvt. Ltd. Thozhilalar Sangam
and the management of M/s. Delta Power Solutions
(India) Pvt. Ltd., Thirubuvanai Village, Puducherry?
(2) If exists, whether the dispute raised by the
Delta Power Solutions (India) Pvt. Ltd. Thozhilalar
Sangam, over charter of demands such as wage
revision, transport allowance, canteen facilities and
refusal of employment is justified or not?
(3) If justified, what relief the workers are entitled to?
(4) To compute the relief, if any, awarded in terms
of money, if it can be so computed?
2. The facts giving rise to this industrial dispute as
stood exposited from the claim petition runs thus :
The petitioner employees (206 in strength) had placed
a charter of demands during June 2009 to the
1st respondent management such as wage revision, free
canteen, free transport and other fundamental
requirements but the 1st respondent management was
utter disregard with the above demands and was blindly
refused them. The 1st respondent management was with
an implied threat to every employee if he who extent
co-operation to emerge an existence of a trade union
should meet a dire consequence of termination
of employment without any cause and reason.
The 1st respondent management was engaged more than
500 employees to the functional and operational process
per day. The petitioner employees are permanent and so
directly appointed and engaged to employment by the
1st respondent management herein. The 1st respondent
management was utter failure in compliance with the
statutory obligations under Factories Act.
The 1st respondent management was with occult
handling of the slavery and bonded labour elements in
treating the petitioner employees since from its
commencement of its production. The 1st respondent
management was not even provide appropriate drinking
water facility, toilet facility to its employees and in fact
there were more than 300 women employees were
engaged in production every day. All the petitioner
employees were not paid on salary day with proper wage
receipt. No ESI protection and PF securities to the
employees were provided. Apart from the above the
safety measures to the employees were not in practice
and hence abrupt accidents are lot frequently.
Also working hours, leave, weekly off, yearly bonus,
ex gratia etc. The 1st respondent management having
known of forming trade union by petitioner employees
started to victimise them and lest to care their charter
637
26 August 2014]
LA GAZETTE DE L’ETAT
of legal demands. So, the 1st respondent management
decided to exploit to petitioner employees by not
providing employment to them but with different kinds of
tortures. The petitioner union had lodged a series of
complaints to the police officials and Labour Department
on time and against the atrocities of 1st respondent
management. The 1st respondent management was
brought an utter lie abruptly that it was not an employer
to the petitioner employees as they had been employed
by 2nd and 3rd respondent herein. In fact the petitioner
employees had never seen 2nd and 3rd respondents
anywhere in any way under the 1st respondent
management. There were few employees were employed
indirectly through some contractors but the fact is that
petitioner employees were never employed or engaged
through the 2nd and 3rd respondent herein.
The 1st respondent management herein is with the
utter lie to defeat the ends of justice to the petitioner
employees through the abuse of process of law and
behavior. The petitioner employees (206 in strength)
have lost their regular employment with the
1st respondent management but with the only impeccable,
insolent and irretrievable attitude of the 1st respondent
management. The lives of the petitioner employees is in
stake and dark due to non-employment by the
1st respondent management without valid reason.
The 1st respondent management is a miscreant to the life
of the petitioner employees and failed to be a qualified
employer against the labour welfare measurements and
protection in a civilised society. Also it has taken the laws
in hand to destruct the valuable life of the petitioner
employees shall be punished with the iron limbs of the
law to strike a moral teach to the society. Also to ensure
a fare legal force against victimisation of labour it is
necessary to pass an order of reinstatement of the
employment of the petitioner employees (206 in strength)
under 1st respondent management as regular employees
with the back wages with continuity of service subject
to periodical increments was in force from time to time
along with the other benefits and early benefits to
petitioner employees.
3. Per contra, traversing the averments the claim
statement, the respondent filed the counter with the
averments which runs thus of first respondent, R2 and
R3 remain ex parte.
The claim petition also does not reveal the date of
joining of 206 workers, the date from which they are
working in 1st respondent’s factory; their respective
employment number; their length of service with respondents;
their date of termination; 1st respondent commenced its
production in Puducherry in November 2007 after strictly
complying with all the statutory requirements. It obtained
necessary licence from licensing authorities to engage
contractors for such activities. The 2nd and 3rd
respondents are registered manpower agencies in
Pondicherry. They are direct employers of many workers
and supply manpower to various companies in Puducherry.
They have huge number of workers in their rolls. The 1st
respondent entered into periodical contracts for supply of
manpower for its peripheral activities with 2nd and 3rd
respondents herein. 2nd and 3rd respondent had also
obtained licences for supplying contract workers to 1st
respondent vide their contract licence on 22-10-2008.
The 2nd and 3rd respondents had separate ESI and EPF
code and contributions for their workers were paid
directly by them to ESI and EPF authorities. Separate
attendance register and muster rolls were maintained by
them and salaries were paid directly by them, which were
supervised by this respondent as per the Contract Labour
(Regulation and Abolition) Act, 1972.
All the 206 workers mentioned in the reference by
Government were direct employees of 2nd or 3rd
respondents and they were never in direct employment
with 1st respondent. Appointment orders for each of the
workers covered in this dispute were issued directly by
either 2nd or 3rd respondent and their service conditions
were regulated by 2nd and 3rd respondents in accordance
with their appointment letters and policies of 2nd and 3rd
respondents respectively. On 20-7-2009 a group of
contract workers engaged themselves in illegal flash
strike demanding wage hike leading to civil suit in
OS No. 708/2009 for injunction, registration of FIR at
Thirubuvanai Police Station under section 151 of Cr. P.C.
and ultimately cancellation of contract licence of 2nd and
3rd respondents. The petitioner union raised conciliation
with Labour Officer (Conciliation) where 1st respondent
made is abundantly clear that none of the members of
petitioner union were ever engaged by it and they were
only contract workers 2nd and 3rd respondent and
therefore there is absolutely no industrial dispute between
this respondent and the petitioner union.
The 2nd and 3rd respondent also appeared before
Conciliation Officer and submitted their representations
on 16-11-2009 and 20-11-2009 admitting that the members
of petitioner union were their employees and they were
willing to give them employment at some other company.
All the members involved in dispute were the employees
of either 2nd or 3rd respondent, which is also fully known
638
LA GAZETTE DE L’ETAT
[26 August 2014
to them from their appointment order, salary slips and the
identity card issued to them. The workers involved in this
industrial dispute are also the members of ESI and EPF
under their respective contractors and they signed their
muster rolls and wage registers maintained by the
contractors. The dispute is essentially between the
petitioner and 2nd and 3rd respondents and 1st
respondent has absolutely nothing to be said in the
dispute. There is absolutely no direct relationship of
employer and employee between the petitioner and this
respondent and therefore no reliefs can be claimed by
against this respondent.
4. On the side of the petitioners, P.W.1 was examined,
and the side of the respondent R.W.1 was examined.
On the petitioners side Ex.P1 to Ex.P20 were marked.
On the side of the respondent, Ex.R1 to Ex.R30 were
marked.
5. The point for consideration is:
Whether the industrial dispute can be allowed?
6. On this point:
The dispute is with the reference to the non-employment
of the member by R1. The prayer is for reinstatement
of 206 employees under R1 as regular employees with
backwages, with continuity of service and other benefits
and a just compensation of ` 5,00,000 for mental agony.
According to the petitioners they were appointed by the
first respondent company and he engaged them in the
manufacture of various telecom equipments and other
electronic components ever since of its commencement
of production in Puducherry. Admittedly, since from 2008
the petitioners were admitted in the manufacturing
process of the R1 company and thereby they got their
regular service under the R1 management. The R1 was
not in the habit of issuing in the letter of appointment and
appointment order in any of the petitioners. During 2009,
the petitioners submitted their charter of demands for
revision of wages, welfare measures, canteen facilities
and other measures before R1 company. But no response
from R1, so the petitioners started a legal strike, the
dispute was taken to the conciliation and other labour
officials. The first respondent made a representation that
the petitioners belong to R2 and R3. Hence, the industrial
dispute arose.
7. According to the petitioner, they are the employees
of R1 from 2008. RW.1 claims that all the petitioners
were under the contractors and they were engaged into
for loading and unloading, cleaning machinery and
housekeeping activities and so on. RW.1 deposed that
they employed approximately 150 employees per day to
the manufacturing. RW1 clearly admits that the
petitioners are engaged for loading and unloading cleaning
machineries and so on. The appointment order, salary slip
and identity card shows that the petitioners are under
direct employment with the R2 and R3. They were
members of ESI and EPF under R2 and R3 and they
signed the muster rolls and wage registers maintained by
the contractors. The ESI and PF contribution application
forms submitted by each individual workers disclosed the
name of the employer. There is absolutely no relationship
between the employees and R1 as employer and
employee. PW.1 in his evidence deposed as follows:
E x . P 1 7 -
R1
R1
Further, it is stated on the side of the respondent that
PW.1 is not competent to depose and file claim
statement. So, admittedly no record was filed on the side
of the petitioner to prove that they are the employees
under R1.
8. According to the respondent R1 entered into
periodical contracts for supply of manpower with R2 and
R3. The contracts were periodically renewed. Both R2
and R3 had separate ESI and EPF code and contributions
for their workers were paid directly by two contractors.
Separate muster rolls and attendance register were
maintained by the contractors and the salaries was paid
to the contractors. All the 206 employees were direct
employees of R2 and R3. Appointment orders were
directly issued by their respective contractors. So, the 206
employees had no direct relationship with R1. The
agitating contract labourers filed O.S. 708/2009 before
Principal District Munsif, Puducherry, for other reliefs
including injunction. It was transferred to Additional
Sub-Judge and is still pending. The agitating contract
labourers became violent and R1 was compelled to lodge
series of complaints. F.I.R was registered at
Thirubuvanai Police Station under section 151 of Cr.P.C.
R1 asked the respondent not to send the agitating
workers to its factory. So they had withdrawn them from
R1’s factory. The petitioners raised conciliation with the
Labour Officer Conciliation failed and matter was
referred to Labour Court.
639
26 August 2014]
LA GAZETTE DE L’ETAT
9. The list of persons of R1 employees are marked as
Ex.P16. The petitioners are expected to prove their case.
They have not proved the point that they are the direct
employees under R1. The muster roll of R2 is marked.
EPF was paid by R2 for all the workers. Ex.R1 and R2
are the appointment orders. It is argued on the side of
the respondent that PW1 is not competent to give
evidence and to file the claim petition. It is deposed by
PW1 as follows:
R1
Ex.R1 and R2
R2
Ex.R2-
R2
R1
So, in this case Kalaiventhan is the competent person
to give evidence on behalf of the 206 workers and PW.1
is not a competent person. Ex.R1 and R2 marked through
PW1 is the wage slip of Mr. Kalaiventhan, the President
of petitioner union, which is issued by R3 as a contractor.
The said slip was acknowledged by him admitting himself
to be the employee of R3. R4 is the licence given to R1,
permitting to engage R2 and R3 as contractors under
section 7(2) of Contract Labour (Regulation and
Abolition) Act. As per Ex.R4 with effect from 23-9-2008,
R1 was permitted to engage 170 and 130 workers
respectively through R2 and R3 as contract workers for
the purpose of “loading of finished goods and unloading
raw materials, cleaning outside manufacturing process,
housekeeping and gardening”. Ex.R9 and R15 are the
contract licences of R2 and R3 respectively under
section 12 of CLRA, permitting to supply manpower to R1
for the purposes of “loading of finished goods and unloading
raw materials, cleaning outside manufacturing process,
housekeeping and gardening”. Ex.R10 and R16 are the
legal and valid contracts for manpower supply between
R1 and R2 and R3. Ex.R11 is the ESI contribution paid
by R2 from April to September 2009 for its 338 workers
including some of the workers referred in the dispute.
10. Ex.R12 is EPF contribution paid by R2 for all 613
workers employed by them at various organisations
including at R1’s factory. The names listed in the
reference of present dispute is also found in Ex.R12.
Ex.R13 is the muster roll from February 2009, April 2009
maintained by R2 for contract workers engaged in
R1’s factory. Ex.R14 is the appointment order of
D. Kalaivendan, the President of petitioner union issued by
R2, confirming that he was in direct employment with R2.
Ex.R30 is the wage slip given by R3 to one of its worker
namely Kanniyappan, who is also one of the referred
employee in the present case. Ex.R19 is the returns
submitted by R3 to ESI Corporation for its 544 workers
from April to September 2009 out of whom hardly 150
workers were employed as contract workers in R1's
factory. The names listed in the reference of present
dispute are also found in Ex.R19. Similarly Ex.R29 is the
PF contribution paid by workers in its own name
whereby majority of workers listed in the reference
in dispute are found. Ex.R27 is the bill dated
19-7-2010 submitted by R3 to R1 for the contract amount
as per contract agreement, which was utilised for
payment of salary to the petitioner workers. Ex.R28 is
the letter given by R1 to R2 and R3 cancelling the
manpower supply contract. So, the above mentioned
documents clearly prove that the 206 workers are
employees under R2 and R3 and not the direct employees of R1.
11. The Government of Puducherry has not issued any
notification prohibiting engagement of contract labour in
the areas of loading of finished goods and unloading raw
materials, cleaning outside manufacturing process,
housekeeping and gardening that is why appropriate
licences were given to R1, R2 and R3 by the Labour
Department.
12. The first and second respondent had necessary
licences to hire contract workers and supply contract
workers. Labour Court cannot decide on abolition of
contract labour but they can decide on genuineness of
contract labour. If a contract for supply of manpower is
bona fide and genuine and complies with all the
requirements under Contract Labour (Regulation and
Abolition) Act, such contract workers cannot be deemed
to be regular employees of the principal employer. In the
present case, it is the case of the petitioner that they are
the direct employees under R1. It is not their case that
the contract between principal employer and contractor
was a sham and nominal contract. The records filed on
the side of the respondents clearly prove that the 206
employees are the employees under R2 and R3 and not
under R1. Further R1 has clearly proved his contract
with the R2 and R3 and that contract is bona fide and
genuine. So there is no employer and employee
relationship between the petitioner under R1, it is
submitted on the side of the first respondent that during
the pendency of present dispute R1 has closed his unit
at Pondicherry and obtained necessary permission of
Labour Department which is also admitted by the
petitioner. Ex.P18 is the letter submitted by R1 seeking
permission of closure application in Puducherry. So the
640
LA GAZETTE DE L’ETAT
[26 August 2014
factory is not functioning in Puducherry now. Taking into
consideration of all the above said aspects, it is decided
that there is no direct relationship of employer and
employee between the petitioner and first respondent and
so claim petition filed by the petitioner is dismissed.
13. 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 6th day of June 2014.
S. MARY ANSELAM,
Presiding Officer,
Labour Court (FAC), Pondicherry.
————
List of petitioner’s witness:
PW.1
— 30-11-2012 — Jayakumar
List of respondent’s witness:
RW.1 — 11-1-2013
— Nandan Kumar Baranwal
List of petitioner’s exhibits:
Ex.P1 — Copy of resolution for formation of
petitioner union, dated 26-6-2009.
Ex.P2 — Copy of complaint by petitioner to
Women’s Police Station, dated 22-7-2009.
Ex.P3 — Copy of complaint by petitioner to Senior
Superintendent of Polic, dated 23-7-2009.
Ex.P4 — Copy of complaint forwarded by
petitioner to Human Rights Commissioner,
dated 23-7-2009.
Ex.P5 — Copy of application for registration of
petitioner union, dated 23-7-2009.
Ex.P6 — Copy of complaint by petitioner to Labour
Commissioner, dated 23-7-2009.
Ex.P7 — Copy
of
letter
by
petitioner
to
Superintendent of Police, dated 28-7-2009.
Ex.P8 — Copy of complaint by petitioner to the
Secretary, Labour Department, dated
29-7-2009.
Ex.P9 — PF contribution information from PF
Commissioner, dated 29-7-2009.
Ex.P10— Copy of information from Ministry of
Corporate Affairs, dated 29-7-2009.
Ex.P11— Copy of information from Public Works
Department, dated 29-7-2009.
Ex.P12— Copy of remainder letter to Labour
Commissioner, dated 6-8-2009.
Ex.P13— Notice by Labour Officer (Conciliation),
dated 17-9-2009.
Ex.P14— Copy of certificate of registration of
petitioner union, dated 24-11-2009.
Ex.P15— Copy of complaint to Conciliation Officer,
dated 26-3-2010.
Ex.P16— Conciliation failure report, dated 27-7-2010.
Ex.P17— Reference order of Labour Department,
dated 27-9-2010.
Ex.P18— Objection by petitioner against closure
application, dated 9-5-2012.
Ex.P19— Copy of complaint by present employees
to Labour Commissioner, dated 3-5-2012.
Ex.P20— Copy of identity card of Nandan Kumar
Baranwal in Delta Power Solutions (India)
Pvt. Ltd. (RW1 Cross), dated 25-3-2013.
List of respondent’s exhibits:
Ex.R1 — Form - 2 in nomination and declaration
form (PW1 Cross), dated 5-8-2008.
Ex.R2 — Form-XVII in register of wages for the
month of April 2009, dated 21-12-2012.
Ex.R3 — Photocopy of the certified standing orders
of 1st respondent, dated 26-3-2010.
Ex.R4 — Photocopy of the contract labour
registration certificate of 1st respondent
with amendment, dated 24-9-2008.
Ex.R5 — Photocopy of the ESI registration certificate
of 1st respondent, dated 22-7-2008.
Ex.R6 — Photocopy of the EPF registration
certificate of 1st respondent, dated 8-1-2008.
Ex.R7 — Photocopy of letter written by ESIC to
2nd respondent, dated 28-2-2006.
Ex.R8 — Photocopy of letter written by ESIC
allotting separate code to 2nd respondent,
dated 22-7-2008.
Ex.R9 — Photocopy of the licence issued to 2nd
respondent under CL (R & A) Act, 1970
along with its renewal dated 22-10-2008.
Ex.R10— Photocopy of the contract for manpower
services between 1st respondent and 2nd
respondent, dated 1-4-2009.
Ex.R11— Photocopy of ESI returns submitted by
2nd respondent for contribution period
from April 2009 to September 2009 in
Employer’s code No. 51-55446-101/BO/
PDY, dated 18-12-2009.
641
26 August 2014]
LA GAZETTE DE L’ETAT
Ex.R12— Photocopy of EPF contribution submitted by
2nd respondent from April 2009 to March
2010 for all its employees under code
No. PC/1711.
Ex.R13— Photocopy of register of muster rolls
maintained by 2nd respondent from
February 2009 to April 2009.
Ex.R14— Photocopy
of
joining
form
and
appointment order of D. Laaovemdam
issued by 2nd respondent, dated 5-8-2008.
Ex.R15— Photocopy of the licence issued to 3rd
respondent under CL (R&A) Act, 1970
along with its renewal, dated 22-10-2008
to 2-11-2009.
Ex.R16— Photocopy of the contract for manpower
services between 1st respondent and 3rd
respondent, dated 31-3-2009.
Ex.R17— Photocopy of letter written by ESIC to
3rd respondent, dated 17-8-2004.
Ex.R18— Photocopy of letter written by EPF to
3rd respondent, dated 15-9-2004.
Ex.R19— Photocopy of ESI contribution made by
3rd respondent from April 2009 to
September 2009 in Employer’s code
No.
55-00-042102-1001/BO/PDY,
dated 15-6-2010.
Ex.R20— Photocopy of the letter written by
1st respondent to Labour Officer (Conciliation),
dated 28-10-2009.
Ex.R21— Photocopy of the FIR registered by 1st
respondent against the contract workers,
dated 25-8-2009.
Ex.R22— Photocopy of the information laid by
SHO, Thirubuvanai to Subdivisional
Magistrate (South), Villianur, Puducherry
on the illegal strike by contract workers,
dated 25-8-2009.
Ex.R23— Photocopy of the representations
given by the 1st respondent to the
Lieutenant-Governor of Puducherry,
Minister of Labour and Chief Minister,
Puducherry regarding illegal strikes by
contract workers, dated 14-8-2009.
Ex.R24— Photocopy of the complaint lodged by the
1st respondent to Labour Commissioner,
Labour Department, Puducherry regarding
illegal strike by contract workers,
dated 26-8-2009.
Ex.R25— Photocopy of the complaint lodged by the
1st respondent to SHO, Thirubuvanai
regarding illegal strike of contract
workers along with the letters given by
some of its workers, dated 25-8-2009.
Ex.R26— Photocopy of the complaint given by the
1st respondent to the SHO, Thirubuvanai,
Circle Inspector, Nettapakkam, Superintendent
of Police (Rural), dated 21-7-2009.
Ex.R27— Photocopy of the bills submitted by the
3rd respondent to the 1st respondent
towards payment of salary for its staffs,
dated 19-7-2010.
Ex.R28— Photocopy of letter written by 1st
respondent to 2nd and 3rd respondent
informing them about their illegal strike
of their workers (4 Nos.), dated 21-7-2009.
Ex.R29— Photocopy of the PF contribution paid by
3rd respondent, dated 9-9-2009.
Ex.R30— Photocopy of the salary slip given by 3rd
respondent to one Kanniappan, dated
April 2009.
S. MARY ANSELAM,
Presiding Officer,
Labour Court (FAC), Pondicherry.
————
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G. O. Rt. No. 116/AIL/Lab./J/2014, dated 13th August 2014)
NOTIFICATION
Whereas, the Government is of the opinion that an
industrial dispute has arisen between the management of
M/s. TTK Protective Devices Limited and Packwell
Packaging Products Limited and United Labour
Federation, over charter of demands in respect of the
matter mentioned in the Annexure to this order;
And whereas, in the opinion of the Government, it is
necessary to refer the said dispute for adjudication;