La Gazette de L' État de Poudouchéry
The Gazette of Puducherry
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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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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.