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

ceilingsettlement 



............................

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.