528
LA GAZETTE DE L’ETAT
[14 July 2015
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 77/Lab./AIL/J/2015, dated 2nd July 2015)
NOTIFICATION
Whereas, the award in I.D. (T) No. 3/2010, dated 31-3-2015
of the Industrial Tribunal, Puducherry in respect of the
industrial dispute between the Managing Director,
M/s. Shasun Chemicals and Drugs Limited, Puducherry
and Puducherry Shasun Chemicals and Drugs Niruvana
Thozhilalargal Munnettra Sangam over removal of
ceiling in dearness allowance 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)
A. RAJARATHINAM,
Under Secretary to Government (Labour).
————
BEFORE THE INDUSTRIAL TRIBUNAL
AT PONDICHERRY
Present : Thiru G. DHANARAJ, B.SC, B.L.,
Presiding Officer, Industrial Tribunal.
Tuesday, the 31st day of March 2015
I.D. (T) No. 3/2010
The President,
Puducherry Shasun Chemicals and
Drugs Niruvana Thozhilalargal
Munnettra Thozhil Sangam,
No. 32, Veeran Koil Street,
Periyakalapet, Puducherry-14.
. . Petitioner
Versus
The Managing Director,
M/s. Shasun Chemicals
and Drugs Limited,
Periyakalapet, Puducherry- 14.
. . Respondent.
This industrial dispute coming on 23-3-2015 for final
hearing before me in the presence of Thiruvalargal
V. Ajayakumar, V. Radjasegarane and S. Lenin Durai alias
Kalimuthu, Counsel for the petitioner, Thiru N. Devadass,
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. 110/AIL/Lab./J/2010, dated 21-5-2010 for
adjudicating the following:-
(1) Whether t h e
d i s p u t e
r a i s e d
b y
t h e
Union Puducherry Shasun Chemicals and Drugs
Niruvana Thozhilalargal Munnettra Sangam against the
management of M/s. Shasun Chemicals and Drugs
Limited, Puducherry over removal of ceiling in
dearness allowance in the light of 12(3) settlement
No. 39/2006/LO(C)/AIL, dated 5-10-2006 is justified
or not?
(2) If justified, what relief they are entitled to?
(3) 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 has raised a dispute before the
Labour Officer (Conciliation) in respect of dearness
allowance and for production incentive. The
grievances of the petitioner union were that for
fixation of dearness allowance, a ceiling of ` 4,000
has been fixed which creates serious detriment to the
workers.
The petitioner union is one of the major unions in
the respondent company which is having total of 175
workers out of which the petitioner union is having
more than 34 members in its rolls. Moreover, more
than 120 workers in the respondent company have
signed a representation which was handed over to
the union stating that they are aggrieved by the
fixation of ceiling of ` 4,000 in the case of payment
of dearness allowance, it is true that the union got
registered and is recognised by the respondent.
The management alleges that settlement was
entered to between some of the unions and the
representative of the management on 5-10-2006 under
S.12(3) of the Industrial Disputes Act. The petitioner
union was not a signatory to the said settlement and
as per clause 2(1) of the said settlement, dearness
allowance will be calculated based on Chennai City
Cost of Index - 1960 Base will be continued but with
a ceiling of ` 4,000 per month (Fixed dearness
allowance plus variable dearness allowance). The
details of monthly dearness allowance are also given
in the said clause. The petitioner union and more
than 2/3 of the workers of the respondent company
are aggrieved by the fixation of ceiling of ` 4,000 per
month.
529
14 July 2015]
LA GAZETTE DE L’ETAT
The object of grant of dearness allowance fixed
on the basis of Cost of Living Index is a well known
principle and is well settled principle and so
whenever dearness allowance is fixed, it will be fixed
on the scientific principles which have been proved
to be valid and has been enforced till date. Fixation
of a ceiling of an amount of ` 4,000 will go to the very
root of the object and concept of dearness allowance
which is nothing but detrimental to the entire
working clause. The said ceiling has not been
circulated among the workers nor made known to the
workers till it has been implemented which itself
shows some foul play behind the fixation of ceiling
in dearness allowance.
The management has submitted a reply before the
Conciliation Officer stating that the fixation of ceiling
of dearness allowance is part of 12(3) settlement and
so it cannot be questioned. The said 12(3) settlement
especially fixation of ceiling of dearness allowance
has not been brought to the notice of the workers
and had it been brought to the knowledge of the
workers, the union could not have been allowed to
enter into such an agreement and the same is evident
from the fact that more than 120 workers have signed
a representation and given to the petitioner union for
taking steps for removal of the said ceiling. Hence
clause 2(1) of the above stated settlement cannot
claim any sanctity under S.12(3) settlement. The
demand of the petitioner union cannot be denied
which is the rightful claim of the workers and the
same cannot be rejected by the management by
raising flimcy ground that the union has been
recognised by the management and so the
management cannot reject the claim of the petitioner
union and the demand for more than 120 workers on
the ground that the union has no locus standi to
agitate over the illegal restriction of the payment of
dearness allowance. Dearness allowance is paid to
the workers to meet the expenditure which is caused
by the hike in prices and the cost of living which
cannot be controlled by putting a ceiling and hence
the ceiling fixed on the payment of dearness
allowance under clause 2(1) of the settlement is liable
to be removed and the entire 120 workers who signed
the representation who are not agreeing the
provision under the settlement are entitled to get the
benefit of full dearness allowance on the basis of
index. The management cannot deny the same to the
workmen and if at all the management wants to deny
the same, it cannot be denied only to the remaining
workers and not to the 120 workers who have signed
the memorandum for removal of the ceiling of
dearness allowance.
This Tribunal may be pleased to quash the ceiling
of ` 4,000 fixed on the payment of dearness allowance
as per clause 2(1) of the settlement, dated 5-10-2006 in
the interest of justice and to direct the respondent to
pay the arrears of dearness allowance on the basis of
Chennai City Cost of Living Index - 1960 Base with
interest at a rate of 12% and to pass such other or
further orders and justice be rendered.
3. Per contra, traversing the averments the claim
statement, the respondent filed the counter with the
averments which runs thus:–
The above petition is not maintainable either in
law or on facts and it is liable to be dismissed
in limine litis.
The respondent denies all the allegations found
in the petition, except those that are specifically
admitted hereunder.
At the outset the petitioner has no right to file
the above petition to claim any relief against this
respondent as per the settlement, dated 5-10-2006
since at the time of this petitioner’s union/sangam
was not registered and therefore, ceiling of the
dearness allowance and therefore the above petition
is liable to be rejected or dismissed.
After expiry of the said previous settlement, dated
5-10-2006, another settlement had been convened in
which all other unions including this petitioner’s
union had also participated in which, the said
previous ceiling of salary had been removed in
which, this petitioner union had also signed and
therefore, as per the Act 12(3) of Industrial Disputes
Act, the petitioner has no right or prima facie to
claim any relief against the respondent.
At the time of conciliation, the respondent filed
all the said facts and the same had been admitted by
the petitioner union but sue motto, this petitioner
moved before this court for this alleged claim against
this respondent.
In fact, as per the last settlement, dated 15-6-2011,
this petitioner or any other union has no right to
claim or to press the previous settlement, dated
5-10-2006 since the said settlement was cancelled by
removing the said ceiling of dearness allowance and
therefore the above petition is liable to be dismissed
in limine litis.
Even after well known about the alleged claim
sought against this respondent, purposely raised the
above dispute as against this respondent and
therefore the above petition is liable to be dismissed.
530
LA GAZETTE DE L’ETAT
[14 July 2015
There is no prima facie in the above petition and
therefore the above petition is unsustainable either
in law or on facts and it is liable to be rejected or
dismissed.
The respondent reserves his right to file additional
counter.
This court may be pleased to dismiss the above
industrial dispute with cost and justice be rendered.
4. On the side of the petitioner, PW.1 was examined,
and the side of the respondent RW.1 was examined, on
the petitioner side no exhibits were marked. On the side
of the respondent, Ex.R1 to Ex.R5 were marked.
5. The point for consideration is:
Whether the industrial dispute can be allowed? or not?
6. On this point:
Both sides heard. It was submitted by the counsel
for the petitioner that the petitioner union was being
formed for the employees of the respondent management
organisation in the name and style “Puducherry Shasun
Chemicals
and
Drugs
Niruvana
Thozhilalargal
Munnettra Thozhil Sangam”. The said union was having
a total of 175 workers, the workers of the said union
were having a grievance with the respondent
management regarding the fixation of the ceiling of
` 4,000 to the dearness allowances. The fixation of
ceiling for the dearness allowance was not approved by
any law and the dearness allowances were to be
calculated as per the settled norms and procedure and
also as prescribed by law. The petitioners, namely, the
workers of the petitioner union were entitled for the
appropriate dearness allowances and the arrears amount
which would be decided and calculated. The petitioner
union was having a concrete support of 120 workers
among the 175 workers of the respondent management
organisation. Hence the petitioner union members were
eligible for the dearness allowances as prescribed by
the law and as agreed by both the parties, which was
formed as a settlement during the year 2006. Hence this
petition.
7. On behalf of the respondent, it was contended
that the petitioner union workers were not entitled for
any benefit under the settlement, dated 5-10-2006. The
petitioner union was formed during the month of
January 2007, the petitioner union was not at all existed
on the date of 5-10-2006. Subsequently, a settlement was
made on the date of 15-6-2011, wherein, it was agreed
by the respondent management organisation to remove
the ceiling of dearness allowance of ` 4,000. The
settlement, dated 15-6-2011 was binding the parties
concerned signed by them in the abovesaid settlement,
the claim of the petitioners were not tenable, the
petitioner union was not having 175 workers strength.
The petitioners union did not produce any documentary
evidence as to substantiate their claim before this court.
Hence the petitioner union miserably failed to establish
their case and the same is to be dismissed.
8. After hearing both sides, records were perused.
On perusal it comes to light, on behalf of the petitioner
union a witness was examined as PW.1, but no
documents were produced. On behalf of the respondent,
RW.1 was examined and Ex.R1 to R5 were marked.
9. On the basis of the submission of the counsel for
the respondent that the petitioner union did not exist
on the date of 5-10-2006 which was the claim date by
the petitioner union as mentioned thereon. Originally,
the petitioner union was formed and registered in the
month of January 2007 and also the ceiling attached with
the dearness allowance of the employees respondent
management organisation was removed as per the
settlement, dated 15-6-2011. Accordingly, a perusal of
the evidence of PW.1 at the time of cross-examination
who would say as follows (relevant portion):-
“
............................
............................
”
A cursory reading of the abovesaid evidence of
PW.1, at the time of cross-examination would reveal the
fact that the petitioner union was registered during
the year 2007 and the respondent management
organisation was having a settlement with their
employees including the petitioner union employees on
the date of 15-6-2011 was very much admitted by the
PW.1 himself.
10. A perusal of the evidence of RW.1 at the time of
cross-examination who would say as follows (relevant
portion):-
“
dearness
allowance
ceilingsettlement
............................
settlement
”.
531
14 July 2015]
LA GAZETTE DE L’ETAT
And also a perusal of the evidence of RW.1, who
would say as follows:-
“I humbly submit that all the unions including the
petitioner union have participated in subsequent
settlement on 15-6-2011 wherein it was agreed to
remove the ceiling of dearness allowance of ` 4,000.
The copy of settlement, dated 15-6-2011 is marked
as Ex.R2.”
Accordingly, a perusal of the Ex.R2 which was a
photocopy of the settlement made between the
respondent management organisation authorities and
the workers of the respondent management organisation,
dated 15-6-2011, wherein, it has been mentioned
“Dearness allowance (Chennai Cost of Living Index -
1960 Base).
(FDA)
(VDA)`
(Dearness allowance Based on Chennai City Cost of
Index 1960 Base)
(DA point)
(FDA)x Ps.`
`
(Variable DA)
(Variable DA)
(Average)
Illustration
A careful study of evidence, at the time of
cross-examination and at the time of chief-examination
who would depose that the ceiling attached with the
dearness allowance of `
4,000 was agreed to be
removed and it was also agreed by the parties
concerned that the dearness allowance amounts would
be calculated on the principles of settled law and also
as per the formula as mentioned above.
11. It was also the evidence of PW.1, at the time of
cross-examination that the petitioner union did not
produce any document as to substantiate the case.
A cursory reading of the section 102 of Indian Evidence
Act, which says as follows:-
“Section 102: The burden of proof in a suit or
proceeding lies on that person who would fail if no
evidence at all were given on either side”.
It has been held in a case Sir Sobha Singh Vs. Bihari
Lal Beni Parshad, (1956) Pun 1247 vide Law of Evidence
by Ratanlal and Dhirajlal, 17th edition, Pg. 238 as
follows:-
“When the evidence is all in, and a party
introducing it has not, by the preponderance of
evidence required by law, established his position or
claim, the decision will be against him.
The party on whom the burden of proof lies
begins.
The burden must be strictly discharged; in other
words the plaintiff, in order to succeed, must put the
court in possession of legal and satisfactory
evidence, and it will not suffice to point to matters
of suspicion or even to plausible conjecture”.
A conjoint reading of the abovesaid provision and
above said ruling, wherein, it has been clearly held that
the party on whom the burden of proof lies begins. The
burden must be strictly discharged by the plaintiff, in
order to succeed and must put the court in possession
of legal and satisfactory evidence. In the light of the
abovesaid ruling, a perusal of the records on hand, the
court decided on a considered view that the petitioner
did not establish their case by producing the
satisfactory evidence, especially, documentary evidence.
On the other hand, the respondent had established their
case by producing oral and documentary evidence
rebutting the case of the petitioner. Hence the court
decided on a considered view that the case of the
petitioner was not established by adducing the
documentary evidence of the claim of the petitioner was
not established by the petitioner and the petitioners are
not entitled for any relief as claimed in the petition.
Accordingly the points are answered.
12. In the result, it is ordered the petitioners are not
entitled for any relief as it was not established and the
reference is closed accordingly. Accordingly it is
ordered.
Typed to my dictation, corrected and pronounced by
me in the open court on this the 31st day of March 2015.
G. DHANARAJ,
Presiding Officer,
Industrial Tribunal,
Pondicherry.
DA actuals
(FDA + VDA)
———————
Month days
(Attended days +
Woff + Leave)
= DA payable”
532
LA GAZETTE DE L’ETAT
[14 July 2015
List of petitioner’s witness:
PW.1 — 11-7-2014
— S. Muthusamy
List of respondent’s witness:
RW.1 — 9-2-2015
— S. Ramachandiran
List of petitioner’s exhibits: Nil
List of respondent’s exhibits:
Ex.R1 — Settlement, dated 5-10-2006
Ex.R2 — Settlement, dated 15-6-2011
Ex.R3 — Failure Report, dated 16-2-2010
Ex.R4 — Letter, dated 7-7-2008
Ex.R5 — Letter, dated 23-12-2009
G. DHANARAJ,
Presiding Officer,
Industrial Tribunal,
Pondicherry.
GOVERNMENT OF PUDUCHERRY
DIRECTORATE OF SCHOOL EDUCATION
(SECRETARIAT WING)
(G.O. Ms. No. 18, dated 18th June 2015)
NOTIFICATION
Whereas, the Director of School Education,
Puducherry being the authority who proposed to apply
the fund donated by Tmt. V.P. Mohana, Lecturer (Retired),
Thiruvalluvar Government Girls’ Higher Secondary
School, Puducherry for charitable purposes has applied
for vesting of the funds mentioned in Schedule-A
annexed hereto to the Treasurer of Charitable
Endowments for Puducherry for the settlement of
a scheme for the administration of the said funds;
2. Now, therefore, upon the application for the vesting
of the fund as aforesaid, the Hon’ble Lieutenant-Governor,
Puducherry in exercise of the powers conferred by
sections 4 and 5 of the Charitable Endowments Act, 1890
(Central Act No. IV of 1890) hereby order that the
amount as set out in Schedule ‘A’ annexed hereto shall,
as from the date of publication of this notification, be
vested in the Treasurer of Charitable Endowments for
Puducherry to be held by him and his successors in
office (subject to provisions of the said Act and the
rules made thereunder) and to hold the said amount and
income thereof and accrual thereto in accordance with
the trust and terms as set out in the scheme annexed in
Schedule ‘B’ hereto for the administration of the said funds;
3. And further notified that the scheme as setforth in
Schedule ‘B' annexed hereto has, under sub-section (1)
of section 5 of the said Act, been settled for the
administration of the said funds and under sub-section (3)
of section 5 of the said Act and it is hereby further
ordered that it shall come into force with immediate effect.
SCHEDULE-A
A sum of ` 50,000 (Rupees fifty thousand only)
donated by Tmt. V. P. Mohana, a retired Lecturer of
Thiruvalluvar Government Girls’ Higher Secondary
School, Laporte Street, Puducherry residing at No. B2,
First Floor, No. 50 to 52, Bharathidasan Street,
Muthialpet, Puducherry- 605 003.
SCHEDULE-B
1. The funds shall be known as “Mohana Mohan
Trust” for Thiruvalluvar Government Girls’ Higher
Secondary School, Puducherry - 605 001.
2. The object of the funds shall be to distribute cash
awards from the interest accrued to the students of
Thiruvalluvar Government Girls’ Higher Secondary School,
Laporte Street, Puducherry-605 001, who secure 1st, 2nd
and 3rd rank in the Plus Two Public Examination every
year, provided that:
3. The amount of cash award shall be distributed in
the ratio of 5 : 3 : 2 to the first, second and third rank
students based on the total marks secured in the Higher
Secondary Public Examination in all the 6 subjects, i.e.,
grand total of 1,200 and not for any particular subject or
discipline. If more than one student has secured the
highest percentage of marks, the amount of cash award
shall be divided equally and paid to them.
4. The funds shall be constituted with the amount of
` 50,000 (Rupees fifty thousand only) donated by
Tmt. V.P. Mohana, a retired Lecturer of Thiruvalluvar
Government Girls’ Higher Secondary School, Laporte
Street, Puducherry as mentioned in the Schedule ‘A’
and such other donation and contributions accruing to
the funds including the income from the interest of the
fund.
5. For the management and administration of the
fund, there shall be a General Committee constituted
with the following members, namely:-
(1) The Principal, Thiruvalluvar Government . . Chairman
Girls’ Higher Secondary School, Laporte
Street, Puducherry (in the absence of
the Principal, the Director of School
Education).
(2) The Vice-Principal, Thiruvalluvar . . Secretary
Government Girls’ Higher Secondary
School, Laporte Street, Puducherry.