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La Gazette de L' État de Poudouchéry

The Gazette of Puducherry

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2017 }

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11 {

No.

15

Poudouchéry

Mardi

11

Avril

2017 (21 Chaitra 1939)

No.

Puducherry

Tuesday

11th

April

2017



SOMMAIRES

CONTENTS



Page

Page

.. 286

Sentence arbitral du travail

.. 286

Award of the Labour Court .. 286

de tribunal.



.. 296

Notifications du Gouvernement

.. 296

Government Notifications .. 296



.. 301

Avis d’Adjudications

.. 301

Tender Notices

.. 301



.. 304

Annonces

.. 304

Announcements

.. 304

[ 285 ]

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Dated : 11-4-2017

Price : ` 18-00

286

LA GAZETTE DE L’ETAT

[11 April 2017

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 30/Lab./AIL/T/2017,

Puducherry, dated 15th March 2017)

NOTIFICATION

Whereas, the Award in I.D. No. 37/2013, dated

4-1-2017 of the Industrial Tribunal-Cum-Labour Court,

Puducherry in respect of the Industrial Dispute

between the management of M/s. Pondicherry

Industrial Promotion Development and Investment

Corporation Limited, Puducherry and Thiruvalargal

T. Gopu and B. Arul Jothy over regularisation has been

received;

Now, 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. 20/9/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.

Wednesday, the 4th day of January 2017.

I.D. No. 37/2013

1. T. Gopu

2. B. Arul Jothy

. . Petitioners

Versus

The Managing Director,

Pondicherry Industrial Promotion

Development and Investment

Corporation Limited,

No. 60, Romain Rolland Street,

Pondicherry.

. . Respondent

This industrial dispute coming on 16-12-2016 for final

hearing before me in the presence of Thiruvalargal

T. Gunasekaran, B. Baskaran and A. Arokia Dass,

Advocates for the petitioners, Thiruvalargal A. Kanniappan

and K. Balaji, Advocates 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

1. The petitioners have filed the petition u/s.33 of

Industrial Disputes Act, praying to reinstate them with

backwages, unpaid wages from August 2012 till date,

to direct the respondent to regularize them and also

to direct the respondent not to commit such kind of

unfair labour practice in future.

2. The petitioners in their petition have stated as

follows:-

The petitioners have joined as Daily Rated Casual

Labour in the respondent office on 1-6-2005 for the

emolument as per the revision of pay maintained by

the Government of Puducherry. The nature of work

assigned to the petitioners is assistance for the land

survey, serving notices, data entry works in the office,

preparation of section 30 reference notices in the land

acquisition proceedings, general civil election duties,

census and related works, cyclone relief works, etc.,

The petitioners further stated that the 1st petitioner

has served from 1-6-2005 to 18-9-2012 and the 2nd

petitioner has served from 1-6-2015 to 209-10-2012

in the respondent office without any break. The

petitioners gave representations to the respondent

office for regularization in several dates i.e., dated,

19-9-2007, 26-8-2008, 15-12-2008, 23-7-2009,

31-5-2010, 2-2-2011, 2-3-2012 and 21-6-2012. But,

there was no response from the respondent office.

However, in the RTI answer, the respondent office

replied that they have not taken any action.

The petitioners further stated that they got their pay

at ` 316 per day for 30 days per month from 1-6-2005

to 1-7-2012. While so in the month of August, 2012,

Thiru.

Murugesan,

Senior

Manager,

PIPDIC

(Administrator) demanded a sum of ` 1,50,000 as

bribe for regularization of the petitioners. The

petitioners refused to give the said amount. Hence, the

said Murugesan stopped the salary of the petitioners

from the month of August, 2012. Further, the said

Murugesan shouted on the petitioners in filthy

language and instructed that the petitioners will not be

permitted to work and then orally intimated to the

petitioners that they were terminated from their

service.

287

11 April 2017]

LA GAZETTE DE L’ETAT

The respondent office is required the human

resources (Personnel) for the recovery divisions and

other works. Though they are in need of the manpower

services, they are refused to pay the salaries of the

petitioner and to regularize the petitioners. The

PIPDIC is extracted services from the petitioners from

the past eight years and they are trying to throw away

the petitioners in overnight. The petitioners cannot be

thrown away gr terminate as per the G.O. Ms. No. 22/

2009 dated 27-2-2009 issued by, the Department of

Personnel and Administrative Reforms (Personnel

Wing) for framed a scheme called “The Government

of Puducherry Casual Labourers (Engagement and

Regularisation) Scheme 2009”. The respondent has

terminated the petitioners without any notice, which

is illegal and unlawful against the labour policy. The

PIPDIC management started retrenchment without just

cause and failed to comply the principles of natural

justice.

The petitioners further stated that they have filed

representations before the Labour Conciliation

Officer, Puducherry on 24-10-2012 and 1-11-2012

respectively

and

on

21-1-2013,

the

PIPDIC

Management has filed their counter statement stating

that they will not give the job. Based on the said

version, on 8-5-2013, the Labour Conciliation Officer

issued a failure report. Hence, the petitioners pray

before this Court to reinstate them with backwages,

unpaid wages from August 2012 till date, to direct the

respondent to regularize them and also to direct the

respondent not to commit such kind of unfair labour

practice in future.

3. The respondent in his counter has stated as

follows:-

The respondent corportion has been incorporated

under the Companies Act with the main object to

acquire lands in the Union territory of Puducherry and

convert the same into Industrial Plots and allot the

same to the needy entrepreneurs and extending

financial assistance. The corporation accorded

approval to create a Land Acquisition Cell to acquire

land for SEZ projects at Sedarapet and Karasur village,

on the basis of the requisition of the Additional

Secretary

(Revenue),

Revenue

Department,

Government of Puducherry vide its order No.1-11017/

5/2003-lNDIA dated, 13-6-2003. Accordingly, the

Land Acquisition Cell, after having acquired the land,

has to hand over the same to PIPDIC without

encumbrances within a period of three months. The

employees of the cell have been deputed from the

Revenue Department on deputation basis and

expenditure like pay and allowances to those

employees are to be met from the funds created for

the development of SEZ projects and the Corporation

was solemnized only as Nodal agency for the project.

The respondent further states that six officials from

the Revenue Department, who were sent on deputation

for Land Acquisition Cell were utilized and three

casual labourers including the petitioners were

engaged by the Revenue Department itself suo moto

due to urgency and need basis. The pay and allowance

were disbursed by PIPDIC from the project fund to all

the deputation staff and casual labourers engaged on

daily rated basis based on attendance certified by the

Revenue Department from the inception of the Cell till

the date of winding-up of the Land Acquisition Cell.

After winding-up of the cell, the staff, who worked on

deputation, were sent back to the parent department and

the service of the petitioners, who are only casual

labourers engaged by the Revenue Department

exclusively for the purpose of land acquisition for

SEZ projects came to an end in vies of the closing of

the project. Therefore, in the light of the said facts,

the petitioners are not entitled under law to claim

continuity of service as they are not the employees of

the respondent corporation. Further, they are also not

entitled under law to claim for reinstatement as sought

for in the petition.

It is an admitted fact that the project namely the

SEZ Cell has been extended periodically. It is also an

admitted fact that the said SEZ project which has been

created for the particular purpose of fulfilling the

project has come to an end and they had been working

on temporary basis under the said projects on

deputation from the Revenue Department. Since, the

project has been wound up' in March 2012, the

petitioners are not entitled under law to claim the

regularization of their alleged services as the same is

contrary to the settled law declared by the Hon'ble

Supreme Court.

The respondent further stated that after winding up

of the project, the petitioners were engaged as CLRs

in this corporation from 13-8-2012 only on

humanitarian ground. But, the petitioners have not

turned up to work as CLR after 30-9-2012 and have

not even turned up to collect the wages for one month

period during which they worked. Since, the petitioners

have not at all worked more than 240 days in the

respondent corporation as alleged by them, they are

not falling within the definition of workmen and are

288

LA GAZETTE DE L’ETAT

[11 April 2017

not entitled to claim any relief as sought for by them

in the petition. Hence, the respondent prays for

dismissal of the petition with costs.

4. On the side of the petitioners, PW1 & PW2 were

examined and Ex.P1 to Ex.P29 were marked. On the

side of the respondent, RW1 was examined and Ex.R1

to Ex.R6 were marked.

5. The point for consideration is::

(1) Whether the petitioners are the workmen

under the respondent?

(2) Whether the termination of the petitioners

are invalid?

(3) Whether the petitioners are entitled to the

relief of reinstatement, continuous of service and

backwages?

6. Both side arguments were heard. On the side of

both sides, written arguments were filed and the same

is carefully considered. In support of his case, the

learned Counsel for the petitioners relied upon the

following decisions:-

(2003) 0 Supreme (SC 376):

S.M. Nilajkar Vs. Telecom District Manager,

Kamataka:

“Industrial Disputes Act 1947-section 2(oo) r/w

25F, 25FFF or 2(bb)-Retrenchment or termination

of service as result of non-renewal of contract of

employment after its expiry-Status of project or

scheme employees in telecom circle-Whether the

workmen recruited for discharging temporary job

under a project insist on compliance of section 25F

of ID Act if, their services are dispensed with on

the project coming to an end-Single Judge holding

section 25F is attracted-D.B holding to the contrary

Appeal to Supreme Court- Whether termination of

service of appellants amounted to retrenchment?

(Yes) which provision will govern their case section

25F or section 25FFF (the later) ~ Appeal allowed

accordingly.

(2015) 6 Supreme Court cases 321:

Ajaypal Singh Vs. Haryana Warehousing

Corporation:

“Labour Law-Industrial Disputes Act 1947-Ss.25-F,

25-7”, 11-A and Sch. V Item 5- Retrenchment-

Condition precedent is compliance with S. 25-F-

Non-compliance-Unfair labour practice by employer-

Relief-Reinstatement-Public Sector employment-

Ground of initial appointment being in violation of

Arts. 14 and 16 of Constitution-Stage at which to

be raised”.

(2015) 0 Supreme (SC) 432:

Prem Ram Vs. Managing Director, Uttarakhand

Pey Jal & Nirman Niqam, Dehradun and ors:-

“Service law-Dally wager employee and work-

charged employee-No qualitative difference except

that wages of work-charged employees borne from

out of the allocation for the concerned project

while in case of daily wagers there is no such

specific allocation of funds-No criteria for

engaging a person as work-charged or daily

wager-Authorities having

absolute discretion-

Classification wholly unsatisfactory- Court treating

daily-wagers and work-charge employees on the

same footing in the matter of granting regularization.

(2004) 0 Supreme (Mad) 386:-

The Management of Tamil Nadu Civil Supplies

Vs. The Presiding Officer and Another:-

The petitioner herein has terminated the services

of the second respondent without holding a

domestic enquiry and the Labour Court has rightly

held that such termination is illegal and passed an

Award reinstating the second respondent without

backwages and giving liberty to the petitioner

management to take disciplinary action for the

unauthorized absence.”

(2005) 0 Supreme (Raj) 680:-

Block Development Officer & Anr Vs. Chhactan

La/ & Anr.

“Industrial Disputes Act 1947, sec.25-F, G & H-

Appointed on daily wages basis Termination of

service by verbal order without serving any notice

prior to termination of service and without paying

any compensation - Worked for more than 240 days

whether can be treated as workman-Held-

Respondent was a workman as he was worked for

7-8 hours regularly - Neither notice nor salary in

lieu of notice or retrenchment compensation was

given-Reinstated with compensation of ` 7,500.

(2003) 0 Supreme (Raj) 500:

Chanan

Ram

Vs.

Registrar,

Rajasthan

Agricultural University:

289

11 April 2017]

LA GAZETTE DE L’ETAT

“Service matters-Termination of Services-On

expiry of project terminated services after 12 years-

Appointed for particular project as skilled helper on

ad hoc basis on a fixed pay-No notice was issued-

Held-If, a person possessing requisite qualifications

is allowed to continue in service for fairly long

period, his appointment cannot be said to be ad hoc-

Employer cannot follow a policy of ad hocism for

a long period-It is not a sound personnel policy and

would lead to breach of Arts. 14 and 16 of the

Constitution-Infringed legal right-Violation of

natural justice-Directed to take back in service.

7. On the other hand, the learned Counsel for the

respondent relied upon the following citations in

support of his case:-

2003 (7) SBR 39:

Surendra Kumar Sharma Vs. Vikas Adhikari &

Anr.

“When posts temporarily created for fulfilling

the needs of a particular project or scheme limited

in its duration comes to an end, person employed

in such scheme cannot claim regularization of

service.”

2003(5-6) SBR 366:

M.D. U.P. Land Development Corporation &

Anr. Vs. Amar Singh & Ors.

“When employees are recruited for a particular

project and when the project comes to an end,

services of the employees also come to an end.

The High Court was not right in giving the direction

to regularize them.”

2004(9) SBR 511:

Municipal Corporation, Faridabad Vs. Sin

Niwas:-

“Burden is upon workman to show that he had

completed 240 days in work in preceding year

of his alleged retrenchment.”

2002(3) SBR 148:

The Range Forest Officer Vs. S.T. Hadimani:

“Respondent claimed that he had worked for

240 days-No proof of receipt of salary or wages for

240 days or order or record of appointment or

engagement for this period produced by workman-

Filing of affidavit is only his own statement in his

favour-That cannot be regarded as sufficient

evidence for any Court or Tribunal to come to

conclusion that a workman had, in fact, worked for

240 days in a year”

(2007) 1 Supreme Court cases 257:-

State of U.P. and others Vs. Desh Raj:-

“Service Law-Regularisation-Right to regularization-

Daily wager-Not recruited in terms of provisions of

Recruitment Rules framed under proviso to Art. 309

of the Constitution-Held, could not have been

directed to be considered for regularization under

the regularization rules in question - Such

appointment made in violation of the constitutional

scheme of equality as enshrined under Arts. 14 and

16 of the Constitution would be illegal and, thus,

void ab

initio-Question of regularization of

employees by reason of any policy decision

adopted by State is impermissible in law ~ No

regularization rules could have been made by State

concerned

in

derogation

of

statutory

or

constitutional scheme - Constitution of India,

Arts.16, 14, 309 proviso and 162”.

8. Discussion and Decision on Point No.1:

This petition has been filed u/s.33 of Industrial

Disputes Act 1947 seeking for the relief of

reinstatement with continuity of service and backwages

instead of section 2A (2) of Industrial Disputes Act

1947. Though the petitioners have quoted a wrong

provision, this alone cannot be a reason for rejecting

the case of the petitioners and if, the petitioners are

entitled for the relief, it can be granted u/s.2 A (2) of

Industrial Disputes Act, 1947.

9. It is the case of the petitioners that they have

been appointed as Daily Rated Casual Labourers by the

respondent corporation on 1-6-2005 and they had been

in service for about 7 years and 8 months and they had

made several representations to the PIPDIC for their

regularizations of service on several dates and their

services have not been regularized by the respondent

corporation and that they had received salary from the

respondent from 1-6-2005 to 1-7-2012 and in the

month of August 2012, their salary was stopped by the

Senior Manager, PIPDIC, Pondicherry, who alleged to

have been demanded a bribe of ` 1,50,000 from the

petitioners and the respondent has refused to pay the

salary to the petitioners and to regularize them. It is

the further case of the petitioners that without giving

any notice and not following the principles of natural

justice, they have been terminated from service by the

290

LA GAZETTE DE L’ETAT

[11 April 2017

respondent corporation and that this matter was taken

up by the Labour Conciliation Officer, Pondicherry

wherein on 21-1-2013, the respondent corporation has

filed their counter statement that they will not

reinstate them.

10. On the other hand, it is contended by the

respondent that these petitioners have not been

appointed by them and they have been deputed from

the Revenue Department, Pondicherry for the specific

purpose of Land Acquisition Cell for setting up of a

special economic zone at Sedarapet, Pondicherry. The

petitioners were working in the Land Acquisition Cell

from 1-6-2005 till March 2012, when the project was

closed by the Government and the salaries were paid

out of fund allocated by the Government for the said

project and the petitioners have not worked for more

than 240 days and that the petitioners could not be

treated to be the employees of the respondent

corporation and therefore they cannot seek any

remedy against them under the Industrial Disputes Act.

11. In order to prove the case of the petitioners, the

first petitioner has been & examined as PW1 and the

revenue official has been examined as PW2 and

through them, Ex.P1 to Ex.P29 were marked. Ex.P1 is

the Copy of G.O. 81/2005 issued by Revenue

Department, Pondicherry. Ex.P2 is the Copy of letter

No. 9502/REV/Estt./A1/2005 issued by Revenue

Department, Pondicherry. Ex.P3 is the Copy of letter

Note No. 9502/RE/Estt/A1/2007 issued by Revenue

Department, Pondicherry. Ex.P4 is the Copy of letter

No. Admin/2003/220G/3331 issued by PIPDIC to

Secretary to Government, Revenue Department,

Pondicherry. Ex.P5 is the Copy of letter No. 875/LAC/

SEZ/2005 issued by Deputy Collector Revenue

(South), Pondicherry. Ex.P6 is the Copy of letter Note

No. 9502/REV/Estt/A1/2007 issued by Revenue

Department, Pondicherry. Ex.P7 is the Copy of letter

Note No. PIPDIC/BILLS/660/3576 issued by PIPDIC.

Ex.P8 is the Copy of letter No.009/DCRS/SEZ/2012

issued by Deputy Collector Revenue (South),

Pondicherry. Ex.P9 is the Copy of letter No.9502/

REV/Estt/A1/2011 issued by Revenue Department,

Pondicherry. Ex.P10 is the Copy of letter Note

No. F-1-69-Admin/2003/220G/3209 issued by PIPDIC

to the Secretary to Government, Revenue Department,

Pondicherry. Ex.P11 is the Copy of letter No.169/

Admin/2003/220/3940 issued by PIPDIC to the

Special Officer, Revenue Department, Pondicherry.

Ex.P12 is the Copy of letter Note No. 9502/Rev-Estt/

A1/2007 issued by Revenue Department to PIPDIC,

Puducherry. Ex.P13 is the Copy of representation given

by the petitioners to PIPDIC. Ex.P14 is the Copy of

RTl No. F29/35/2005/Admn./248/G/8/2314 given by

PIO, PIPDIC. Ex.P15 is the Copy of experience

certificate issued by Dy. Collector, Revenue

Department, Pondicherry. Ex.P16 is the Copy of

experience certificate issued by Sub-Collector,

Revenue Department, Pondicherry. Ex.P17 is the Copy

of experience certificate issued by Sub-Collector,

Revenue Department, Pondicherry. Ex.P18 is the Copy

of experience certificate issued by Deputy Collector,

Revenue Department, Pondicherry. Ex.P19 is the Copy

of experience certificate issued by Deputy Collector,

Revenue Department, Pondicherry. Ex.P20 is the Draft

Recruitment Rules for the post of Peon of PIPDIC.

Ex.P21 is the Copy of G.O. Ms. No. 22/2009 issued

by Department of Personnel and Administrative

Reforms. Ex.P22 is the Copy of G.O.Ms. No. 66/F3/

2008 issued by Finance Department, Pondicherry.

Ex.P23 is the Copy of complaint given to the Secretary

Government of Puducherry by the petitioners. Ex.P24

is the Copy of reply statement filed by the PIPDIC.

Ex.P25 is the Copy of failure report sent by Labour

Commissioner. Ex.P26 is the Copy of Authorization

letter given by Deputy Collector. (Revenue) South,

Pondicherry. Ex.P27 is the Copy of the Order passed

by Regional P.F. Commissioner-II. Ex.P28 is the Copy

of letter in G.O. Ms. No. 94/2009/F3 issued by Under

Secretary to Government Finance Department. Ex.P29

is the Copy of letter sent by Dy. Collector to Member

Secretary, PIPDIC, Pondicherry. On the other hand, to

disprove the case of the respondent, the respondent

has been examined as RW1 and through him, Ex.R1 to

Ex.R6 were marked. Ex.R1 is the Copy of order by

Under Secretary to Government. Ex.R2 is the True

extract of minutes. Ex.R3 is the Copy of Special

Economic Zone-Creation of Land Acquisition Cell-

Ratification. Ex.R4 is the Copy of ID note by

Additional Secretary (Revenue). Ex.R5 is the Copy of

letter by Dy. Collector (Rev) South. Ex.R6 is the Copy

of letter by PIPDIC to Sub-Collector (Rev) South.

12. From these pleadings of both sides, it is clear

that it is admitted by both parties that the petitioners

have served as Daily Rated Labourers from 1-6-2005

to 1-7-2012 and the said posts were sanctioned by the

Government by an order of Lieutenant-Governor of

Pondicherry and these petitioners were working as

Peon and they have received salary from the respondent

corporation. It is also admitted by both parties that the

petitioners have not been permitted to continue their

service as Peon of PIPDIC from the month of August

2012. It is a specific case of the petitioners that the

respondent has not issued any order or notice for their

291

11 April 2017]

LA GAZETTE DE L’ETAT

termination, which has not been denied by the

respondent in their counter. The petitioners have been

stopped to work in the respondent corporation orally

without giving any termination notice or without

following the procedures as laid down in the Industrial

Disputes Act. Now it is main contention of the

respondent that the petitioners were not the employees

of the respondent corporation and that they were

working only under the Land Acquisition Cell for the

purpose of setting up a special economic zone and that

they have been deputed by the Revenue Department,

Pondicherry and that they are not the employees of

PIPDIC/Respondent corporation. On this aspect, the

evidence let in either side and the documents exhibited

are carefully considered.

13. Further, main contention of the respondent is

that the petitioners have not been completed the period

of 240 days within a period of one year preceding to

their termination as contemplated under sub-section 2

of 25 of Industrial Disputes Act and that therefore,

they are not falling within the purview of workmen and

consequently they are not entitled to claim any relief

sought by them under the industrial Disputes Act.

14. Admittedly, these petitioners have served from

1-6-2005 till the month of August 2012. The

respondent though has pleaded that the petitioners have

not completed 240 days in the year preceding to their

termination, they have not filed any document to prove

their contention that the petitioners have not worked

for 240 days in the year preceding to their

termination. On the other hand, it is admitted by the

respondent that the petitioners were paid salary from

the funds sanctioned by the Government for the

purpose of creating Special Economic Zone for the

period from 1-6-2005 till the month of August 2012.

This admission would go to show that the petitioners

have been in service for about 7 years and 8 months

and they have been paid salary by the respondent

corporation for the said period. The evidence of RW1

runs as follows:-

c a s u a l l a b o u r



Ex.A21-G.O.-







unauthorized absent 

Casual labour 92.

G.O. Finance Department,

Ex.A28









pay

commission









Revenue

Department





Ex.A29 

daily wages 

Deputy Collector

Ex.A29 

Ex.A29



SEZ fund



Ex.A3 Deputy Collector, PIPDIC

Ex.A3

para “the three posts of peon have been filled

up PIPDIC by their own staff” 

Ex.A3 



15. The respondent has not disputed that these

petitioners were appointed as Peon as per the order of

Lieutenant-Governor, who has sanctioned the said post

and subsequently, the petitioners along with one

another were appointed as Peon in the respondent

corporation and they have been served from 1-6-2005

till 2012 on the over all supervision of the respondent

and the salary was paid by the respondent to the

petitioners. Further more, RW1 has clearly admitted

that the employment of the petitioners is a continuous

one and their services were terminated after 7 years

and the petitioners have completed 240 days in a year

and that therefore, they become the permanent

employees of the respondent.

16. The Hon’ble High Court held in its judgment

reported in 5980 of 2004 in Lakshmi Vs. Chief

Engineer, dated 3-8-2012 has held that any workman

completed 240 days of continuous service, the work

should be treated as permanent workman, eventhough

their services were not regularized. So, this Court can

rightly hold that the petitioners have worked directly

under the control of the respondent and they have

received their salary only from the respondent and

therefore, they are deemed to be the permanent

workmen of the respondent and hence, they are

entitled for the statutory benefit under the Industrial

Disputes Act. Further more, in the case of “Bengal

Nagpur Cotton Mills” case reported in (2011) 1 SCC

635, the Hon'ble Apex Court has held as follows:-

292

LA GAZETTE DE L’ETAT

[11 April 2017

“In this case, the industrial Adjudicator has granted

relief to the first respondent in view of its finding

that he should be deemed to be a direct employee

of the appellant. The question for consideration is

whether the said finding was justified. It is now well

settled that the industrial Adjudicator finds that the

contract between the principal employer and the

contractor to be sham and nominal are merely

camouflage to deny the employment benefits to the

employee and that there was in fact a direct

employment, it can grant relief to the employee by

holding that the workman is a direct employee of

the principal employer. Two of well recognized tests

to find out whether the contract employers are the

direct employees of the principal are—

(1) Whether the principal employer pays salary

instead of contractor; and

(2) Whether the principal employer controls and

supervises the work of the employee.

In this case, the Industrial Court answered the

questions in the affirmation and as a consequences

held that the first respondent is a direct employee

of the appellant.

17. By applying the two tests as mentioned in the

above citation, this Court finds that the petitioners are

under the direct employment and control of the

respondent and the salaries were also directly paid by

the respondent to the petitioners and therefore, it can

be held that the petitioners are the workmen of the

respondent and they are entitled to the protection and

privilege of the Industrial Disputes Act. Accordingly,

this point is answered.

18. On point No. 2:

Next contention raised by the respondent is that the

petitioner cannot claim any relief of reinstatement,

since the purpose for which they have been appointed

has come to an end i.e. the work of Land Acquisition

Cell for creation of Special Economic Zone at

Sedarapet was completed and the project was closed

by the Government after March 2012 and therefore,

the appointment of the Casual Labourers including the

petitioners, who were appointed for the Land

Acquisition Cell created for setting up of a Special

Economic Zone project came to an end and the project

was wound up by the government. In support of the

case, the respondent has relied upon the following

decision:

2003(5-6) SBR 366:

M.D. U.P. Land Development Corporation &

Anr. Vs. Amar Singh & Ors.

“When employees are recruited for a particular

project and when the project comes to an end,

services of the employees also come to an end, The

High Court was not right in giving the direction to

regularize them.

19. From the above decision, it has been held that

whenever the employees are recruited for a particular

project and the said project comes to an end, the

service of the employees also comes to an end. But,

in this case, the petitioners were orally terminated and

they were stopped from the work in the month of

August 2012. But, on perusal of the evidence as well

as the documents, the Government has extended the

said project till March 2013 and that therefore, when

the project is also pending till 2013, the petitioners

have been terminated from service without giving

notice in the month of August 2012 and that therefore,

the citation relied on by the respondent would not

support his case. Further more, though it is stated by

the respondent that these petitioners have been

appointed for the purpose of a particular project,

Ex.A3 letter has been sent by the Deputy Collector to

the respondent corporation mentioning that the

petitioners along with one another Peon are the own

staff of the respondent PIPDIC. As already stated,

RW1 has admitted that the respondent has also not

made representation to the Deputy Collector, who sent

the said letter ExA3 Further more, the respondent

corporation has paid the EPF contribution for 92

Casual Labourers including the petitioners herein. This

fact has been admitted by RW1 in his cross

examination. While so the petitioners have to be

terminated as per the procedure laid down under

Industrial Disputes Act or otherwise as per the rules

framed under Government of Pondicherry Casual

Labourers. (Engagement and Regularisation) Scheme

2009, which has been marked as Ex.P21. But,

admittedly the respondent has not stated anything as

to whether he issued notice to the petitioners or

issued any written intimation for their termination. On

the other hand, it is pleaded that by the petitioners that

they have been orally stopped from the work by the

Senior Manager of PIPDIC. Under such circumstances,

the respondent has not let in any evidence or produced

any document to show that the termination was

properly done. Therefore, it is clear from the evidence

of the petitioners that no written intimation was given

to the petitioners and no payment was made to the

petitioners.

293

11 April 2017]

LA GAZETTE DE L’ETAT

20. Under 25 F of Industrial Disputes Act, the

retrenchment on the employer right, who retrenched

the workmen lays down that no workman employed in

an industry, who has been continuous service for not

less than one year under a employer shall be

retrenched, until he has been given one month in

writing intimating the reasons for retrenchment and

the period of notice has expired or he has been paid

wages for a period of notice and he has also been paid

retrenchment compensation equivalent to 15 days

average pay for every completed period of continuous

service. In this case, no such procedure was adopted

by the respondent/PIPDIC corporation and without

adopting any procedure, orally instructed the

petitioners to stop their work and as such it can be

held that the termination of the petitioners by the

respondent is invalid and illegal and the same is liable

to be set aside.

21. On point No.3:-

As this Court has already held that the termination

of the petitioners is invalid and illegal and the same

is liable to be set aside, it is to be seen that whether

the petitioners are entitled for the relief of

reinstatement with continuity of service and back

wages is the difficult question, which involves number

of factors. The Hon’ble Apex Court in a case of

“Assam Oil Company Ltd., Vs. its Workmen”, “M/s.

Hindustan Steel Limited, Rourkela Vs. A.K Roil and

other”, “Ruby General Insurance Limited Vs. P.T.

Chopra”, “Assistant Engineer, Rajasthan Vs. Geetham

Singh” held that eventhough the termination was

illegal and is liable to be set aside, it would not be

granted an order of reinstatement. Further, the Hon’ble

Apex Court in several decisions has clearly laid down

that the order of retrenchment in violation of section

25 F of Industrial Disputes Act may be set aside that

the Award of reinstatement should not be passed. The

Hon’ble Apex Court clearly distinguishes the case

between the daily rater, who does not hold their post

in the permanent employee. But, in this case, the

petitioners were found as permanent workmen and

their work is an essential one and they have hold a post

of Peon and the co-worker, who has been appointed

along with the petitioners has been in service without

any termination. RW1 has also admitted that the co-

worker, who has been appointed along with these

petitioners is still in service in the respondent

corporation as a Peon and therefore, these petitioners

have to be given reinstatement. Hence, it can be held

that the petitioners are entitled for an order of

reinstatement with continuity of service.

22. However, in this case, for the grant of relief of

back wages, this court has to consider the source of

employment, method of recruitment, terms and

conditions of the employment, contract of service,

quantum of wages, mode of payment and the period of

service. In this case, it is clear that the petitioners

themselves have not stated that how they have been

selected and whether through employment or selected

on merits after giving due advertisement by the

employment or by the respondent corporation.

Furthermore, the petitioners have not stated regarding

their way in which they have been selected for the post

of peon and also they have not stated that they have

not joined in any other establishment so far even after

their retrenchment. Furthermore, there is no rule of

thumb that in every case where the Industrial Tribunal

gives a finding that the termination service was in

violation of section 25-F of the Act, entire back wages

should be awarded. A host of factors like the manner

and method of selection and appointment i.e., whether

after proper advertisement of the vacancy or inviting

applications from the employment exchange, nature

of appointment, namely whether ad hoc, short-term,

daily wage, temporary or permanent in character, any

special qualification required for the job and the like

should be weighed and balanced in taking a decision

regarding award of back wages. One of the important

factors, which has to be taken into consideration, is

the length of service, which the workman had rendered

with the employer. If, the workman has rendered a

considerable period of service and his services are

wrongfully terminated, he may be awarded full or

partial back wages keeping in view the fact that at his

age and qualification possessed by him. Another

important factor, which requires to be taken into

consideration is the nature of employment. A regular

service of permanent character cannot be compared

to short or intermittent daily-wage employment

though, it may be for 240 days in a calendar year.

23. In Kendriya Vidyalaya Sangathan Vs. S.C.

Sharma reported in 2006-I-LLJ-“753: it has been

held that

“16. ....... When the question of determining the

entitlement of a person to back wages is concerned,

the employee has to show that he was not gainfully

employed. The initial burden is on him. After and

if, he places materials in that regard, the employer

can bring on record materials to rebut the claim. In

the instant case, the respondent had neither pleaded

nor placed any material in that regard.”

294

LA GAZETTE DE L’ETAT

[11 April 2017

24. In U.P. State Brassware Corporation Ltd., Vs.

UdaiNarain Pandev, reported in 2006-a-LLJ-496 at

page 506,: it has been held that

“65. It is not in dispute that the respondent did

not raise any plea in his written statement that he

was not gainfully employed during the said period.

It is now well settled by various decisions of this

Court that although earlier this Court insisted that

it was for the employer to raise the aforementioned

plea but, having regard to the provisions of section

106 of the Evidence Act or the provisions analogous

thereto, such a plea should be raised by the

workman.”

25. 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, the

above citations are squarely applicable to this case and

as such these petitioners are not entitled for full back

wages. However, considering the facts and circumstances

of the case, this Court finds that these petitioners

were illegally terminated from their service by the

respondent all of a sudden without giving any notice

and hence, they have 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 petitioners have earned income after

their termination from service. In the above

circumstances, this Court does not find any reasonable

cause to grant full back wages to the petitioners and

consequently, this Court is inclined to grant partial

back wages of 30% to the petitioners till their

reinstatement. Accordingly, this point is answered.

26. In the result, the petition is partly allowed and

the petitioners No.1 and 2 are entitled for the

reinstatement with continuity of service and 30% of

back wages till their reinstatement.

Dictated to the Stenographer, transcribed by

him, corrected and pronounced by me in the Open

Court on this the 4th day of January, 2017.

G. THANENDRAN,

Presiding Officer, Industrial Tribunal,

Pondicherry.

List of

petitioner’s witnesses:

PW.1 — 20-12-2013—Gopu

PW.2 — 21-2-2014 —H.V. Vimalan

List of petitioner’s exhibits:

Ex.P1—12-7-2005 — Copy of G.O. 81/2005

i s s u e d b y R e v e n u e

Department, Pondicherry.

Ex.P2—14-7-2005 — Copy of letter No.9502/

R E V / E s t t . / A 1 / 2 0 0 5

issued

by

Revenue

Department, Pondicherry.

Ex.P3—15.02.2007— Copy of letter Note No.

9502/RE/Estt/A1/2007

issued

by

Revenue

Department, Pondicherry.

Ex.P4—16.05.2007— Copy

of

letter

No.

Admin/2003/220G/3331

issued by PIPDIC to

Secretary to Government,

Revenue

Department

Pondicherry.

Ex.P5—12-7-2010 — Copy of letter No. 875/

LAC/SEZ/2005

issued

by

Deputy

Collector

Revenue (South), Pondicherry.

Ex.P6—2-6-2011

— Co p y o f let ter No te

No. 9502/REV/Estt/A1/

2007 issued by Revenue

Department, Pondicherry.

Ex.P7—21-7-2011 — C o p y o f l e t t e r N o t e

No. PIPDIC/BILLS/660/

3576 issued by PIPDIC.

Ex.P8—3-3-2012

— Copy of letter No. 009/

DCRS/SEZ/2012 issued

by

Deputy

Collector

Revenue

(South),

Pondicherry.

Ex.P9—10-4-2012 — Copy of letter No. 9502/

R E V / E s t t / A 1 / 2 0 1 1

issued

by

Revenue

Department, Pondicherry.

Ex.P10—14-6-2012— C o p y o f l e t t e r N o t e

No. F-1-69-Admin/2003/

220G/3209

issued

by

PIPDIC to the Secretary

to Government, Revenue

Department, Pondicherry.

Ex.P11—17-7-2012— Copy of letter No.169/

Admin/2003 /220/3 940

issued by PIPDIC to.the

Special Officer, Revenue

Department, Pondicherry.

295

11 April 2017]

LA GAZETTE DE L’ETAT

Ex.P12—8-8-2012 — Co p y o f let ter No te

No. 9502/Rev-Estt/A1/

2007 issued by Revenue

Department to PIPDIC,

Puducherry.

Ex.P13—19-9-2007— Copy of representation

given by the petitioners

to PIPDIC.

Ex.P14—23-4-2012— Copy of RTI No. F29/35/

2 0 0 5 /Ad mn. /2 4 8 / G/ 8 /

2314. Given by PIO,

PIPDIC.

Ex.P15—10-11-2008— Copy

of

experience

certificate

issued

by

Deputy Collector, Revenue

Department, Pondicherry.

Ex.P16—11-1-2010— Copy

of

experience

certificate

issued

by

Sub-Collector, Revenue

Department, Pondicherry.

Ex.P17—31-5-2010— Copy

of

experience

certificate

issued

by

Sub-Collector, Revenue

Department, Pondicherry.

Ex.P18—9-2-2012 — Copy

of

experience

certificate

issued

by

Deputy Collector, Revenue

Department, Pondicherry.

Ex.P19—13-8-2012— Copy

of

experience

certificate

issued

by

Deputy Collector, Revenue

Department, Pondicherry.

Ex.P20—

—

Draft Recruitment Rules

for the post of Peon of

PIPDIC.

Ex.P21—27-2-2009 — Copy of G.O. Ms. No.

22/2009

issued

by

Department of Personnel

and

Administrative

Reforms.

Ex.P22—24-10-2008—Copy of G.O. Ms. No.66/

F3/2008,

issued

by

Finance

Department,

Pondicherry.

Ex.P23—22-10-2012— Copy of complaint given

and 30-10-2012

to the

Secretary to Government of

Puducherry

by

the

petitioners.

Ex.P24—21-1-2013— Copy of reply statement

filed by the PIPDIC.

Ex.P25— 8-5-2013

— Copy of failure report

sent

by

Labour

Commissioner.

Ex.P26—20-2-2004— Copy of Authorization

letter given by Deputy

Collector

(Revenue)

South, Pondicherry.

Ex.P27—10-3-2014— Copy of the order passed

by

Regional

P.F.

Commissioner-ll.

Ex.P28—5-5-2009 — Copy of letter in G.O.

Ms.

No.

94/2009/F3

issued

by

Under

Secretary to Government

Finance Department.

Ex.P29—10-4-2006— Copy of letter sent by

Deputy

Collector

to

Member

Secretary

PIPDIC, Pondicherry.

List of

respondent’s witnesses:

RW.1 — 18-12-2015—Lakshmi

Narayanan,

Deputy Manager (Legal),

PIPDIC.

List of respondent’s exhibits:

Ex.R1—13-6-2003 — Copy of order by Under

Secretary to Government.

Ex.R2—15-3-1993 — True extract of minutes

Ex.R3—28-6-2005 — Copy

of

Special

Economic Zone-Creation

of Land Acquisition Cell

Ratification.

Ex.R4—14-7-2005 — Copy of ID note by

Additional

Secretary

(Revenue).

Ex.R5—28-9-2005 — Copy of letter by Deputy

Collector

(Revenue)

South.

Ex.R6—12-3-2012 — Copy

of

letter

by

PIPDIC to Sub-Collector

(Revenue) South.

G. THANENDRAN,

Presiding Officer,

Industrial Tribunal-cum-Labour Court.