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LA GAZETTE DE L’ETAT
[28 March 2017
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 25/Lab./AIL/T/2017,
Puducherry, dated 15th March 2017)
NOTIFICATION
Whereas, the Award in I.D.No. 28/2013, dated
27-1-2017 of the Labour Court, Puducherry in respect
of the industrial dispute between the Managing
Director, Easun-MR Tap Changers (P) Limited,
Puducherry and its workman Thiru. A. Dhanapathy,
Puducherry 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 23-5-91, it is hereby directed by
Secretary to Government (Labour) that the said Award
shall be published in the Official Gazette, Puducherry.
(By order)
R.DJEACOUMAR,
Under Secretary to Government (Labour).
————
BEFORE THE INDUSTRIAL TRIBUNAL -CUM-
LABOUR COURT AT PUDUCHERRY
Present : Thiru G. THANENDRAN, B.COM., M.L.,
Presiding Officer.
Friday, the 27th day of January 2017.
I.D. (L) No. 28/2013
A. Dhanapathy
. . Petitioner
Versus
The Managing Director,
M/s. Easun-MR Tap Changers (P) Limited,
Puducherry.
. . Respondent
This industrial dispute coming on 25-1-2017 for
fi n a l h e a r i n g b e fo r e me i n t h e p r e s e n c e o f
Thiru S. Venkatapathy, Counsel for the petitioner and
Thiru P. Balamurali, Counsel for the respondent on
record and subsequently when the case was posted for
respondent side evidence, the respondent being called
absent and set-ex parte, upon hearing the petitioner
and perusing the case records, after having stood over
for consideration till this day, this Court passed the
following:-
AWARD
1. This industrial dispute has been referred as per
the G.O. Rt. No. 81/AIL/Lab./J/2013, dated 29-5-2013
for adjudicating the following:-
(i) Whether the dispute raised by the petitioner
Thiru A. Dhanapathy against the management of
M/s. Easun-MR Tap Changers (P) Limited, over his
non-employment is justified or not ? If not justified,
what relief he is entitled ?
(ii) 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 stated that he did Diploma in
Electrical and Electronics Engineer and joined the
service of the respondent company i.e., M/s. Easun-
MR Tap Changers (P) Limited, as an employee in
Quality Control Department on 13-10-2011 and he
was not issued any orders towards his employment by
the respondent management but, he was serving his
service without any leave or any unblemished remarks
for the period of more than 1 year i.e., 13-10-2011 to
31-10-2012, while being so, the respondent management
stopped the petitioner from the service/employment
on the ground of service break for the period of 15 days
on 31-10-2012 because of to resist the completion of
the continuous service. When the petitioner sought the
reason for granting leave, the manager of the company
Thiru Gurusankar had replied that due to lack of orders,
the management is in a position to retrench some of
the workers and he was also asked to find a new job
by the management.
The petitioner further stated that he was granted
ESI Card by the respondent management vide
ESI No. 5518870457 and he was working directly
under the control of the respondent management and
he had been serving the respondent management at the
utmost satisfaction of the respondent management and
there is no remarks at all against the petitioner so far
and he was recruited by the respondent management
directly and further, the respondent had exercised full
control over the petitioner and the attendance register
was maintained by the respondent management and the
petitioner had worked not less than 25 days every
month and the petitioner had worked even on all
Sundays in a month and had done overtime work
monthly 15 days.
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28 March 2017]
LA GAZETTE DE L’ETAT
The petitioner further stated that during the
conciliation proceedings the respondent management
has alleged that the petitioner was working under their
contractors M/s. Servocraft HR solutions (P) Limited,
and engaged for supporting services during the period
from October, 2011 to October, 2012 and further, the
management belied that the petitioner didn’t perform
the duty assigned by the Supervisor inspite of verbal
warnings given to him and owing to the same he was
sacked but, the management later in the conciliation
proceedings reported that they are ready to provide
employment in Chennai as there is no vacancy in
Puducherry and the management has taken different
stand at the inspection and later they resiled from their
earlier stands and all these thing shows that the
management has indulged in an unfair labour practice
as against the petitioner and there is no contractor like
Servocraft HR solutions working in the respondent
management.
The petitioner further stated that he have been
offered employment by the respondent management
directly as a regular employee after undergoing a
thorough process of selection and interview and he was
serving at the respondent management from 13-10-2011
to 31-10-2012 without any blemish or remarks
at all and he was serving at the utmost satisfaction of
the respondent management as a regular employee but,
in order to escape from the continuity of service the
respondent management purposely issued break for the
period of 15 days and that the petitioner served for the
period of 365 days with continuous employment and
though without any justice or reasons, the respondent
management sue moto and blindly terminated the
petitioner from the service which is absolutely against
the Labour laws as well as Natural justice and therefore
the said alleged impugned order of the respondent
managements against and violation of sec.25-F of
Industrial Disputes Act, 1947.
The petitioner further stated that the petitioner had
also
approached
before
the
Labour
Officer-
Conciliation at Puducherry on 24-12-2012 but, within
the period 45 days there is no amicable settlement
arrived and therefore, as per the Amended Act, the
petitioner is constrained to file this petition before
this Court for adjudication and prays before this Court
to pass an order for directing the respondent
management to reinstate the petitioner with full back
wages, continuity of service and all other attendance
benefits.
3. Per contra, traversing the averments the claim
statement, the respondent filed the counter with the
averments which runs thus:
The respondent denied all the allegations contained
in the claim statement of the petitioner and stated that
while the case was in the stage of conciliation it was
found that the petitioner was working with one
M/s. Servoraft HR solutions (P) Ltd., RF 4 Galilei
Square, No.27/11, Lakshmi Street, Alagappa Nagar,
Kilpauk, Chennai-10 (Regd. Office), a licensed
contractor working for the respondent and the
respondent had any sort of nexus with the petitioner
directly and there is no Master and Servant relationship
in between the respondent and the petitioner at any
point of time and that the petitioner may arise his
claim with his Employer namely M/s. Servoraft HR
Solutions (P) Limited, and the petitioner claim with
the respondent is not at all maintainable and the
respondent is not the proper party either in law or on
facts and the petitioner suppressed facts and the
petitioner employed through the contractor namely
M/s. Servoraft HR solutions (P) Limited, and there
was no relationship of employer and employee with the
workers employed through contractor and the
petitioner being one them, there was no question of
termination of his services and the petitioner has
failed to produce any document to establish the
relationship of master and servant, and the burden of
proof of the same with the petitioner and the
petitioner was employed as Office Assistant in loading
work in the quality control Department, the work of
loading and unloading was also being carried out by the
contractor and the petitioner was employed through
contractor for loading and unloading of materials was
being done by the petitioner in the respondent
establishment was enstrusted to the petitioner through
contractor and the petitioner has received the salary
from the contractor and the labour supplied by the
contractor will work under directions, supervision and
control of the respondent but would not make the
petitioner a direct employee of the respondent, if, the
salary is paid by a contractor against the attendance
maintained by the contractor, if, the right to regulate
the employment is with the contractor and the ultimate
supervision and control with the contractor and the
petitioner has not eligible to claim anything from the
respondent and that the attendance register of the
petitioner maintained by the contractor, the work which
was being done by the petitioner in the respondent
establishment was carried out through contractor
engaged by the establishment and that the petitioner
mere sent an application for claim without produce any
documents in supporting of his claim and the
petitioner was employed through contractor and not in
direct employee of the respondent establishment and
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[28 March 2017
that the petitioner has not come with clean hand and
the claim of the petitioner against the respondent is
liable to dismiss and the name of the contractor who
was engaged by the respondent is the employer and
prays this Court to dismiss the petition.
4. Despite several opportunities given for the
respondent side evidence, the respondent called absent
and no representation for respondent and he was set
ex parte.
5. On the side of the petitioner, the petitioner
examined himself as WW.1 and Ex.W1 to Ex.W5 were
marked.
6. The point for determination is:
Whether the petition can be allowed or not ?
7. Heard. It is the evidence of the petitioner that he
joined service in the respondent company on
13-10-2011 as an employee in Quality Control
Department and was working there for the period of
more than one year without any remarks from
13-10-2011 to 31-10-2010. Without giving any notice,
the respondent management stopped him from service
and asked him to go on leave for 15 days and that he
has got ESI Card vide ESI No. 5518870457 and he was
working directly under the control of the management
and had been in service to the utmost satisfaction of
the respondent management ad there is no remarks at
all against him and that he was recruited by the
respondent management directly and that they had
exercised full control over him and that attendance
register was maintained by the respondent management
and to escape from the continuity of service, the
respondent management purposely issued break for the
period of 15 days and that he served for the period of
365 days with continuous employment and that
therefore, the respondent management sue motto and
blindly terminated him from the service against the
Labour laws and as well as Natural justice.
8. In support of his evidence he has exhibited copy
of the ESI Card as Ex.W1, Salary slip issued by the
respondent management to him as Ex.W2, letter
submitted by him to the Labour Officer (Conciliation),
Puducherry as Ex.W3, copy of reply submitted by the
respondent to the Labour Officer (Conciliation),
Puducherry as Ex.W4 and copy of failure report
submitted by the Labour Officer (Conciliation) to the
Secretary to Government (Labour), Puducherry as
Ex.W5, These documents would go to show that the
petitioner has served in the respondent management
under the control of the respondent and the respondent
has paid the salary to him and he was under the direct
control of the respondent. On the other hand, though
the respondent has filed the agitation stating that the
petitioner was working with one M/s. Servoraft HR
Solutions (P) Limited, RF 4 Galilei Square, No.27/11,
Lakshmi Street, Alagappa Nagar, Kilpauk, Chennai-10
(Regd. Office), a licensed contractor working for the
respondent and that the respondent had any sort of
nexus with the petitioner directly and that there is no
Master and Servant relationship in between the
respondent and the petitioner at any point of time.
However, the respondent has not let in any evidence
or produced any document to show that M/s. Servoraft
HR Solutions (P) Limited, is the employer of the
petitioner.
9. Hence, from the oral and documentary evidence
of the petitioner, it is clearly established by the
petitioner that he was working with the respondent
management for the period from 13-10-2011 to
31-10-2012 with continuity of service and he was
terminated without any proper notice under the 25F of
the Industrial Disputes Act for entrenchment of the
workman. Without adopting any procedure, orally
instructed the petitioner to stop his work and as such
it can be held that the termination of the petitioner by
the respondent is invalid and illegal and the same is
liable to be set aside. As this Court has already held
that the termination of the petitioner is invalid and
illegal and the same is liable to be set aside, it is to
be seen that whether the petitioner is entitled for the
relief of retrenchment with continuity of service and
back wages. The petitioner was found as workman and
his work is an essential and therefore, the petitioner
has to be given reinstatement. Hence, it can be held
that the petitioner is entitled for an order of
reinstatement with continuity of service.
10. In this case nothing is pleaded by the
petitioners/claimants that they have not joined or
worked in any other establishment or they did not have
any income for their survival and that therefore,
petitioner is not entitled for full back wages. However
considering the facts and circumstances of the case,
this Court finds that the petitioner was illegally
terminated from his service by the respondent all of a
sudden without giving any notice and hence he has
approached before the Labour Conciliation Officer and
subsequently before this Court for challenging the
termination by the respondent. On the other hand, the
respondent has not proved that the petitioner has
earned income after his termination from service.
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28 March 2017]
LA GAZETTE DE L’ETAT
In the above circumstances, this Court does not find
any reasonable cause to grant full back wages to the
petitioner and consequently, considering the other
circumstances in this case, this Court is inclined to
grant partial back wages of 30% to the petitioner till
his reinstatement. Accordingly, this point is answered.
11. In the result, the petition is partly allowed and
the petitioner is entitled for the reinstatement with
continuity of service and 30% of back wages till his
reinstatement.
Dictated to Stenographer, transcribed by her,
corrected and pronounced by me in the Open Court on
this the 27th day of January, 2017.
G. THANENDRAN,
Presiding Officer, Industrial Tribunal,
Puducherry.
List of
petitioner’s witness:
PW.1 — 5-2-2016
— A. Dhanapathi
List of petitioner’s exhibits:
Ex.W1— Copy of the ESI card of the
petitioner.
Ex.W2— Copy of the 8 series of Salary slip
issued by the respondent management
to the petitioner, 2011-2012.
Ex.W3— Copy of the letter submitted by the
petitioner to the Labour Officer
(Conciliation), Puducherry, dated,
24-12-2012.
Ex.W4— Copy of the reply submitted by the
respondent to the Labour Officer
(Conciliation), Puducherry, dated,
5-1-2013.
Ex.W5— Copy of the failure report submitted
by the Labour Officer (Conciliation)
to the Secretary to Government
(Labour), Puducherry, dated, 29-5-2013.
List of
respondent’s witnesses: Nil
List of respondent’s exhibits: Nil
G. THANENDRAN,
Presiding Officer, Industrial Tribunal,
Puducherry.
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