Puducherry Gazette, No. 19, 09 May 2017

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No. 19 Poudouchéry Mardi 9 Mai 2017 (19 Vaisakha 1939)

No. Puducherry Tuesday 9th May 2017

➢ S OM M A I R E S C O N T E N T S

Page  Page

➢ .. 4 0 4 Sentence arbitral du travail .. 4 0 4 Award of the Labour Court .. 4 0 4

de tribunal.

• .. 4 1 3 Notifications du Gouvernement .. 4 1 3 Government Notifications .. 4 1 3  .. 4 2 7 Avis d'Adjudications .. 4 2 7 Tender notices .. 4 2 7  .. 429 Etablissements dangereux .. 429 Dangerous Establishments .. 429

.. 4 3 2 Announcements .. 4 3 2  .. 4 3 2 Annonces

[ 403 ]40 4 LA GAZETTE DE L'ETAT [9 May 2017 GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G. O. Rt. No. 50/Lab./AIL/T/2017,

Puducherry, dated 10th April 2017)

NOTIFICATION

This industrial dispute coming on 25-1-2017 before me for final hearing in the presence of Thiru R.T. Shankar, Counsel for the petitioner and Thiru G. Krishnan, Counsel for the 1st and 2nd respondents and the 3rd respondent remained ex parte, upon hearing both sides, upon perusing the case records, after having stood over for consideration till this day, this Court passed the following:

AWARD

Whereas, the Award in I.D. (L) No. 39/2013, dated 27-2-2017 of the Industrial Tribunal-cum-Labour Court, Puducherry in respect of the industrial dispute between the management of M/s. Puducherry Municipal Services Private Limited, Puducherry and its workman Thiru Kunchithapatham over reinstatement with full back wages, continuity of service and all other attendance benefits has been received;

1. The petitioner has filed the petition under section 2-A of Industrial Disputes Act, 2010 praying an order to direct the respondent management to reinstate him with full back wages, continuity of service and all other attendance benefits.

2. The petitioner in his petition has stated as

follows:-

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. 20/9/Lab./L, dated 23-5-1991, it is hereby directed by Secretary to Government (Labour), that the said Award shall be published in the Official Gazette, Puducherry.

(By order)

E. VALLAVAN, Commissioner of Labour-cum-Additional Secretary to Government (Labour).

————

BEFORE THE INDUSTRIAL TRIBUNAL-CUM-

LABOUR COURT AT PUDUCHERRY

Present: Thiru G. THANENDIRAN, B.COM.,M.L.,

Presiding Officer.

Monday, the 27th day of February 2017

I.D. (L) No. 39/2013

. . Petitioner

Kunchithapatham, Puducherry.

Versu s

1. The Managing Director,

Puducherry Municipal Services Private Limited, Puducherry-605 005.

2. The Managing Director,

Kivar Environ Private Limited, Karnataka, India.

3. Puducherry Urban Development

The Kivar Environ Private Limited, the 2nd respondent herein and Puducherry Urban Development Authority (PUDA), the 3rd respondent herein, have formed a joint venture Company "Puducherry Municipal Services Private Limited" (PMSPL), the 1st respondent herein, under the Companies Act of 1956 to carry out the integrated solid waste management project at Puducherry and accordingly, they signed the Concession Agreement on 18-10-2010. Based on the agreement, the work of the 1st respondent management is to clean the wastages at places of Pudupherry and Oulgaret Municipality through tricycles and thereby the workers to drive the tricycles were recruited by conducting job opportunity camp at 1st respondent management and that petitioner had completed the interview procedures and was selected as Driver and on 2-5-2011 the appointment order has been given to him by the 1st respondent management by obtaining his original Driving licence and that he was serving his service in a most excellent manner and that one year later, permanent order was issued to him by the 1st respondent management, while being so, on 1-6-2012 the workers including petitioner were orally instructed by the 1st respondent management that they were stopped from their service without giving any notice to them and pursuant to it, the workers raised protest against the 1st respondent management and because of that the 1st respondent management offer an settlement to the workers and some of the workers accepted the settlement offered by the 1st respondent management and that the petitioner and some workers were not accepted the proposal of settlement by the 1st respondent management and they prayed for their job before Conciliation Officer and that 1st respondent Authority, Office of the Town and Country Planning, Puducherry. . . Respondents.

9 May 2017] LA GAZETTE DE L'ETAT 405

management replied that Government of Puducherry has not given any payment towards its work which has caused unprecedented financial crunch to the Company and the operations of the company came to a standstill on 23-4-2012 which position continues till date and the petitioner further stated that due to difference of opinion arose between 2nd respondent and 3rd respondent resulted in termination of workers by the 1st respondent management which is absolutely against the labour laws as well as natural justice and therefore, prays before this Court to pass an order for directing the respondent management to reinstate the petitioner with full back wages, continuity service and all other attendance benefits.

3. The 1st and 2nd respondents in their counter

have stated as follows:-

came forward to submit his resignation but, demanded payment of exorbitant amount towards his full and final settlement of accounts and having failed in his unfair attempt he has raised this industrial dispute on false and imaginary grounds and further stated that the 1st respondent has denied employment to the workmen is totally false and baseless and was created by an after thought for the purpose of making untenable claim against the respondents 1 and 2 and claiming reinstatement with back wages on such false grounds is wholly misconceived and that the petitioner workmen was not terminated or retrenched much less denied employment and hence, the question of reinstatement with back wages did not and could not arise and that the 1st respondent company ceased to function since 25-4-2017 due to circumstances beyond its control and no business transactions or activities had been carried out since then to the knowledge of the petitioner and claiming reinstatement with back wages from a non functioning company is totally unrealistic and incongruous and prays this Court to dismiss the petition.

4. Despite of service of notice to the 3rd respondent and though appeared through counsel, he has failed to file the counter and remains ex parte.

5. On the side of the petitioner, PW.1 was examined and Ex.P1 to Ex.P5 were marked. On the side of the respondent, RW.1 was examined Ex.R1 to Ex.R3 were marked.

6. The point for consideration is:

Whether the industrial dispute can be allowed?

7. Heard both sides. It is the case of the petitioner that the 1st respondent, Puducherry Municipal Services Private Limited have been formed by the joint venture of 2nd and 3rd respondent, the Kivar Environ Private Limited and Puducherry Urban Development Authority and that they have appointed the workers including the petitioner as Drivers to drive the Auto Tipper by the 1st respondent company on 2-5-2011 and the workers including the petitioner were stopped from their work on 1-6-2012 without giving any notice to them and thereafter, the workers raised the protest against the 1st respondent and for which the 1st respondent offers an settlement to the workers and some of the workers accepted the settlement offered by the 1st respondent and that difference of opinion ar o se b etween the 2nd respondent and the 3rd respondent resulted in termination of workers by the 1st respondent which is against the labour laws and prays for reinstatement with full back wages.

The respondents denied the allegations contained in the claim statement of the petitioner and stated that 1st respondent has not yet received any payment from Government of Puducherry from its inception and not even a single bill of this respondent was cleared and it yet to receive the payments from the Municipalities of Puducherry and Oulgaret which has caused unprecedented financial crunch to the company a n d hence, the op erations o f the co mp any came to a standstill on 25-4-2012 which position continues till date and that the question of refusal of employment as alleged by the petitioner would not arise and this allegation is unsustainable and stated further that the petitioner also aware that the management is not at all responsible for the present situation caused by the indifferent attitude of the Government and even in such a non functional situation, the workmen were paid their April-12 and May-12 idle wages also and that the management, in order to highlight the adverse situation to the workmen held a meeting with them on 11-6-2012 and the petitioner has also participated in the meeting along with other workmen and the entire factors right from non payment of even a single bill of the company, financial crisis, inability to pay idle wages, and remote scope of revival were explained to the workmen in detail in a cordial atmosphere and in the said meeting it was made clear to the workmen, without any ambiguity that it would not be possible to continue with the business activities without funds and without work to the huge work force and that stoppage of functioning of the company became inevitable and that subsequently, majority of the workmen having realized the true position of the company have voluntarily came forward with their resignation and made full and final settlement of their accounts. This petitioner has also

8. On the other hand, the respondents have denied the allegations of the petitioner stating that the 1st respondent has not received any payment from the Puducherry Urban Development Authority from the40 6 LA GAZETTE DE L'ETAT [9 May 2017 month of July, 2011, and ` 9,502 for the month of September, 2011 to January, 2012 and it is also revealed from the documents that he has raised industrial dispute before the Conciliation Officer for his employment and for back wages with attendance benefits on 10-6-2013.

inception of the company and no amount was given by the Puducherry Urban Development Authority as agreed by them and no amount has been given by the Municipalities of Puducherry and Oulgaret which has caused unprecedented financial crunch and hence, operations of the company came to a standstill and that even such circumstances of non functional situation, the workmen were paid idle wages for April, 2012 and May, 2012 and that the 1st respondent has held meeting on 11-6-2012 and it was informed by the company that right from the inception of company no single bill payment was made by the Municipalities and for which the work were being done by the employees and inability to pay idle wages, remote scope of revival were explained to the workers in detail in a cordial atmosphere in the meeting and that it was also informed that it would not be possible to continue the activities without funds and without work to the huge work force and that stoppage of functioning of the company became inevitable and majority of the workers having realized the true position of the company have voluntarily came forward with their resignation and made full and final settlement of their accounts and that petitioner union members have also come forward to submit their resignation but, demanded payment of exorbitant amount towards their full and final settlement and that therefore, the 1st respondent has denied the employment to the workmen as stated by the petitioner and that therefore, claiming reinstatement with back wages on such false grounds is wholly misconceived and that petitioner has not terminated or retrenched much less denied employment since, the respondent company ceased to function from 25-4-2012 due to circumstances beyond its control and no business transactions or activities had been carried out.

10. The 1st and 2nd respondents have examined S. Vaitinadan as RW.1 and Ex.R1 to Ex.R3 were marked. Ex.R1 is the the resolution passed by the 2nd respondent company in a meeting held on 17-10-2014 to give evidence to authorizing one Vaitinadan to appear and act on behalf of the company who has been examined as RW.1. Ex.R2 is the copy of Arbitration Petition filed before the Hon'ble High Court of Judicature at Madras. Ex.R3 is the copy of the Advocate Notice. It is the evidence of the RW.1 that 2nd respondent Kivar Environ Private Limited and the 3rd respondent, Puducherry Urban Development Authority have formed a joint venture company to carry out the Integrated Solid Waste Management Project for the urban Agglomeration of Puducherry in the name and style of the 1st respondent "Puducherry Municipal Services Private Limited" and that they signed the agreement on 18-10-2010 and that it is also admitted by them that the petitioner is the worker of them and he has been serving as Driver of auto tipper at the 1st respondent company and it is the only contention of the 1st and 2nd respondent that they could not receive any payment from the Puducherry Urban Development Authority from its inception and not even a single bill of the respondent was cleared by the Puducherry Urban Development Authority and it yet to receive the payments from the Municipalities of Puducherry and Oulgaret which caused financial crisis to the 1st respondent company and they could not do the business transaction of the 1st respondent company from 25-4-2012. It is the further evidence of RW.1 that they conducted a meeting on 11-6-2012 and the workers have been informed regarding non payment of the bill of the company by the Government/Urban Development Authority, financial crisis, inability to pay idle wages and remote scope of revival were explained to the workmen in detail in a cordial atmosphere and also it would not be possible to continue the business activities without funds and majority of the workmen have resigned from the company and made full and final settlement of their accounts and that they have been paid the idle wages for April, 2012 and May, 2012 including the petitioners.

11. The documents and evidence of both PW.1 and RW.1 would go to show that no documents are filed by them to prove the fact that 3rd respondent has 9. To prove his case, the petitioner has examined himself as PW.1 and in support of his oral evidence, Ex.P1 to Ex.P5 were marked. Ex.P1 is the Identity Card issued by the 1st respondent to the petitioner, Ex.P2 is the copy of employment agreement entered between the petitioner and the 1st respondent, dated 2-5-2011, Ex.P3 is the certificate issued by the Station House Officer, Muthialpet Police Station to the petitioner, Ex.P4 is the copy of Pay Slip (8 Nos.) issued by the 1st respondent to the petitioner, Ex.P5 is the copy of letter, dated 10-6-2013 sent by the petitioner to the Labour Department(conciliation). These documents would go to show that the petitioner and the 1st respondent have entered into the employment agreement and the petitioner served as a driver and received a salary of `7,742 for the month of May, 2011, ` 7,733 for the month of June, 2011, ` 7,742 for the9 May 2017] LA GAZETTE DE L'ETAT 407 hence, the closure of the business of the company is illegal and that therefore, the dispute raised by the petitioner against the management of M/s. Pondicherry M u n i c i p a l S e r v i c e P r i v a t e L i m i t e d , o v e r h i s non-employment is justified.

13. Since, it is decided that the dispute raised by the petitioner is justified, it is to be seen that petitioner is entitled for the order of reinstatement with back wages against the 1st and 2nd respondent before granting any relief of reinstatement, the Court has to consider many relevant factors such as:

* Source of Employment.

* Qualification of Workers.

* Length of Service

entered into contract with the 1st and 2nd respondents. The reference also does not disclose whether there is any connection between the 2nd and 3rd respondents with the 1st respondent. Admittedly, though the 1st and 2nd respondents have held a meeting between the workmen and the management and the workers have been paid idle wages, it is a clear fact that they have not given statutory notice for the closure of the business or to give any notice for retrenchment and therefore it is clear that the 1st respondent has failed to give statutory notice for the closure of business and the action of the 1st and 2nd respondents regarding closure of business and non-employment of the workmen is against law and not as per the procedure laid down under section 25F of the Industrial Disputes Act.

* Availability of Post, etc.,

In this case, Admittedly the 1st respondent company has appointed the workmen including the petitioner as Drivers and functioning only for 14 months and subsequently, it could not do its business and stopped its work in the month of June, 2012 due to the financial crisis and held a meeting with the workmen and orally announced the settlement but, it is failed to issue proper notice for a closure of business as a procedure laid down under section 25 of the Industrial Disputes Act and therefore, since the 1st respondent company is in financial crisis the union members cannot be reinstated in the 1st respondent company. However, the 2nd respondent admits that they have formed the 1st respondent company and they have entered into the agreement with the 3rd respondent Municipality alone, are liable to compensate the petitioner since they have not properly issued the closure notice of the 1st respondent company to its workmen as stated by the Act.

12. Absolutely, there is no evidence that whether the 3rd respondent Urban Development Authority, Puducherry has entered any contract with the 1st and 2nd respondents and to prove the same nothing is placed before this Court to construe that joint venture was created. Though the petitioner impleaded the Puducherry Urban Development Authority as 3rd respondent, no document is filed either by the petitioner or by the 1st and 2nd respondents to prove the fact that 3rd respondent have been entered into the contract with the 2nd respondent. Though the petitioner and the 1st and 2nd respondents have stated that there was a contract between the 2nd respondent and 3rd respondent to carry out the integrated solid waste management project for the Urban Agglomeration of Puducherry and formed the 1st respondent and signed the Concession Agreement on 18-10-2010, no such contract or agreement is filed before this Court connecting the 3rd respondent, Puducherry Urban Development Authority with the employees and furthermore, the pleadings of the petitioner is very silent regarding the terms and conditions of the contract laid to have been made between the 2nd and 3rd respondent. Furthermore, the petitioner does not claim that the contract is sham and nominal and that therefore, the relief against the 3rd respondent does not arise and furthermore, the petition as well as claim statement is very silent, against whom the reliefs are asked for by the petitioner. However, the 2nd respondent has admitted the fact that 1st respondent company is belonged to them and the workmen including the petitioner were working under them and they have been given non-employment from May, 2012 without giving any statutory notice for the closure of business and

List of respondent's witness:

R.W. 1— 3-12-2014 – Vaitinadan

List of respondent's exhibits:

that therefore to that effect, the industrial dispute is to be allowed. The respondents appeared before this Court and has not proved any misconduct of the petitioner and as the closure is illegal and the petitioner suffered great injuries monetarily along with his family members. Furthermore, on perusal of evidence of PW.1, it is learnt to this Court that the petitioner had not at all stated why he had not joined in any other establishments as Driver after the closure of the business of the 1st respondent and that therefore, though the petitioner has entitled for reinstatement in the 2nd respondent company since the 1st respondent company was closed due to the financial crisis, he do not entitle for the relief of full back wages as claimed by him. However, considering the facts and circumstances of this case, this industrial dispute is partly allowed and the petitioner is entitled for the reinstatement with 20% back wages.

15. In the result,

(i) the industrial dispute raised by the petitioner is justified and it is partly allowed against the 1st and 2nd respondent and dismissed against the 3rd respondent, Ex.R1— Copy of the resolution passed by 2nd respondent company, dated 17-10-2014.

Ex.R2— Copy of the Arbitration petition in O.P. No. 127 of 2013 on the file of the Hon'ble High Court of Judicature at Madras.

Ex.R3— Copy of the notice issued by the Counsel for 1st respondent company to the Counsel for 3rd respondent.

G. TH ANEN DRA N, Presiding Officer,

Industrial Tribunal-cum- Labour Court, Puducherry.

————

GOVERNMENT OF PUDUCHERRY LABOUR DEPARTMENT

(G.O. Rt. No. 51/Lab./AIL/T/2017,

(ii) the 2nd respondent, the Managing Director, Kivar Environ Private Limited is directed to reinstate the petitioner within one month, and

Puducherry, dated 10th April 2017)

(iii) the 2nd respondent is also directed to pay 20% of back wages from the closure of business till the date of Award to the petitioner.

Dictated to the Stenographer, transcribed by her, corrected and pronounced by me in the Open Court on this the 27th day of February, 2017.

G. TH ANEN DRA N, Presiding Officer, Industrial Tribunal-cum- Labour Court, Puducherry.

————

NOTIFICATION

W her eas, the Awar d in I .D. ( L) No . 3 8 /2 0 1 3 , dated 27-2-2017 of the Industrial Tribunal-cum-Labour Court, Puducherry in respect of the industrial dispute between the management of M/s. Puducherry Municipal Services Private Limited, Puducherry and its workman Thiru S. Chitirasekar over reinstatement with full back wages, continuity of service and all other attendance benefits has been received;

Now, therefore, in exercise of the powers conferred List of petitioner's witness:

P.W. 1— 5-9-2014 – Kunjithapadam

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 23-5-1991, it is List of petitioner's exhibits:

Ex.P1— Copy of Identity Card issued by the 1st respondent to the petitioner.

Ex.P2— C o p y o f employment agreement entered between the petitioner and the 1st respondent, dated 2-5-2011.

Ex.P3— C o p y o f certificate issued by the S.H.O., Mudaliarpet to the petitioner, dated 22-4-2011.

hereby directed by the Secretary to Government (Labour) that the said Award shall be published in the Official Gazette, Puducherry.

(By order)

E. VALLAVAN, Commissioner of Labour-cum- Additional Secretary to Government (Labour).

9 May 2017] LA GAZETTE DE L'ETAT 409

BEFORE THE INDUSTRIAL TRIBUNAL-CUM-

LABOUR COURT AT PUDUCHERRY

Present : Thiru G. THANENDRAN, B.COM., M.L.,

Presiding Officer.

Monday, the 27th day of February 2017

I.D (L) No. 38/2013

Chitirasekar, S/o. Subramanian, Puducherry.

. . Petitioner

Versus

1. The Managing Director,

Puducherry Municipal Services Private Limited, Puducherry-605 005.

2. The Managing Director,

Kivar Environ Private Limited, Karnataka, India.

3. Puducherry Urban Development Authority, Office of the Town and Country Planning, Puducherry.

. . Respondents

AWARD

Concession Agreement on 18-10-2010. Based on the agreement, the work of the 1st respondent management is to clean the wastages at places of Puducherry and Oulgaret Municipality through tricycles and thereby the workers to drive the tricycles were recruited by conducting job opportunity camp at 1st respondent management and that petitioner had completed the interview procedures and was selected as Driver and on 18-4-2011, the appointment order has been given to him by the 1st respondent management by obtaining his original driving licence and that he was serving his service in a most excellent manner and that one year later, permanent order was issued to him by the 1st respondent management, while being so, on 1-6-2012 the workers including petitioner were orally instructed by the 1st respondent management that they were stopped from their service without giving any notice to them and pursuant to it, the workers raised protest against the 1st respondent management and because of that, the 1st respondent management offer an settlement to the workers and some of the workers accepted the settlement offered by the 1st respondent management and that the petitioner and some workers were not accepted the proposal of settlement by the 1st respondent management and they prayed for their job before Conciliation Officer and that 1st respondent, management replied that Government of Puducherry has not given any payment towards its work which has caused unprecedented financial crunch to the Company and the operations of the company came to a standstill on 23-4-2012 which position continues till date and the petitioner further stated that due to difference of opinion arose between 2nd respondent and 3rd respondent resulted in termination of workers by the 1st respondent management which is absolutely against the labour laws as well as natural justice and therefore, 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. The 1st and 2nd respondents in their counter

have stated as follows:

2. The petitioner in his petition has stated as

follows:

5. On the side of the petitioner, PW.1 was examined and Ex.P1 to Ex.P5 were marked. On the side of the respondent, RW.1 was examined and Ex.R1 to Ex.R3 were marked.

6. The point for consideration is:

Whether the industrial dispute can be allowed ?

7. Heard both sides. It is the case of the petitioner that the 1st respondent, Puducherry Municipal Services Private Limited have been formed by the joint venture of 2nd and 3rd respondent, the Kivar Environ Private Limited and Puducherry Urban Development Authority and that they appointed the workers including the petitioner as Drivers to drive the Auto Tipper by the 1st respondent Company on 18-4-2011 and the workers including the petitioner were stopped from their work on 1-6-2012 without giving any notice to them and thereafter, the workers raised the protest against the 1st respondent and for which the 1st respondent offers a settlement to the workers and some of the workers accepted the settlement offered by the 1st respondent and that difference of opinion arose between the 2nd respondent and the 3rd respondent resulted in termination of workers by the 1st respondent which is against the Labour laws and prays for reinstatement with full back wages.

8. On the other hand, the respondents have denied the allegations of the petitioner stating that the 1st respondent has not received any payment from the Puducherry Urban Development Authority from the inception of the company and no amount was given by the Puducherry Urban Development Authority as agreed by them and no amount has been given by the Municipalities of Puducherry and Oulgaret which has caused unprecedented financial crunch and hence operations of the company came to a standstill and that even such circumstances of non functional situation, the workmen were paid idle wages for April, 2012 and May, 2012 and that the 1st respondent has held meeting on 11-6-2012 and it was informed by the company that right from the inception of company no single bill payment was made by the Municipalities and for which the work were being done by the employees and inability to pay idle wages, remote scope of revival were explained to the workers in detail in a cordial atmosphere in the meeting and that it was also informed that it would not be possible to continue the activities without funds and without work to the huge came to a standstill on 25-4-2012 which position continues till date and that the question of refusal of employment as alleged by the petitioner would not arise and this allegation is un-sustainable and stated further that the petitioner also aware that the management is not at all responsible for the present situation caused by the indifferent attitude of the Government and even in such a non-functional situation, the workmen were paid their April-12 and May-12 idle wages also and that the management, in order to highlight the adverse situation to the workmen held a meeting with them on 11-6-2012 and the petitioner has also participated in the meeting along with other workmen and the entire factors right from non payment of even a single bill of the company, financial crisis, inability to pay idle wages, and remote scope of revival were explained to the workmen in detail in a cordial atmosphere and in the said meeting it was made clear to the workmen, without any ambiguity, that it would not be possible to continue with the business activities without funds and without work to the huge work force and that stoppage of functioning of the company became inevitable and that subsequently majority of the workmen having realized the true position of the company have voluntarily came forward with their resignation and made full and final settlement of their accounts. This petitioner has also came forward to submit his resignation but demanded payment of exorbitant amount towards his full and final settlement of accounts and having failed in his unfair attempt he has raised this industrial dispute on false and imaginary grounds and further stated that the 1st respondent has denied employment to the workmen is totally false and baseless and was created by an after thought for the purpose of making untenable claim against the respondents 1 and 2 and claiming reinstatement with back wages on such false grounds is wholly misconceived and that the petitioner workmen was not terminated or retrenched much less denied employment and hence the question of reinstatement with back wages did not and could not arise and that the 1st respondent company ceased to function since 25-4-2012 due to circumstances beyond its control and no business transactions or activities had been carried out since then to the knowledge of the petitioner and claiming reinstatement with back wages from a non functioning company is totally unrealistic and incongruous and prays this Court to dismiss the petition.

9 May 2017] LA GAZETTE DE L'ETAT 411

work force and that stoppage of functioning of the company became inevitable and majority of the workers having realized the true position of the company have voluntarily came forward with their resignation and made full and final settlement of their accounts and that petitioner union members have also come forward to submit their resignation but demanded payment of exorbitant amount towards their full and final settlement and that therefore, the 1st respondent has denied the employment to the workmen as stated by the petitioner and that therefore, claiming reinstatement with back wages on such false grounds is wholly misconceived and that petitioner has not terminated or retrenched much less denied employment since the respondent company ceased to function from 25-4-2012 due to circumstances beyond its control and no business transactions or activities had been carried out.

the 3rd respondent, Puducherry Urban Development Authority have formed a joint venture Company to carry out the Integrated Solid Waste Management Project for the urban Agglomeration of Puducherry in the name and style of the 1st respondent "Puducherry Municipal Services Private Limited" and that they signed the agreement on 18-10-2010 and that it is also admitted by them that the petitioner is the worker of them and he has been serving as Driver of auto tipper at the 1st respondent company and it is the only contention of the 1st and 2nd respondent that they could not receive any payment from the Puducherry Urban Development Authority from its inception and not even a single bill of the respondent was cleared by the Puducherry Urban Development Authority and it yet to receive the payments from the municipalities of Puducherry and Oulgaret which caused financial crisis to the 1st respondent company and they could not do the business transaction of the 1st respondent company from 25-4-2012. It is the further evidence of RW.1 that they conducted a meeting on 11-6-2012 a n d t h e wo r k e r s h a v e b e e n i n f o r me d r e g a r d i n g non-payment of the bill of the company by the Government/Urban Development Authority, financial crisis, inability to pay idle wages and remote scope of revival were explained to the workmen in detail in a cordial atmosphere and also it would not be possible to continue the business activities without funds and majority of the workmen have resigned from the company and made full and final settlement of their accounts and that they have been paid the idle wages for April 2012 and May 2012 including the petitioners.

9. To prove his case, the petitioner has examined himself as PW.1 and in support of his oral evidence, Ex.P1 to Ex.P5 were marked. Ex.P1 is the copy of employment agreement entered between the petitioner and the 1st respondent, dated 2-5-2011, Ex.P2 is the copy of pay slip (6Nos.) issued by the 1st respondent to the petitioner, Ex.P3 is the copy of letter, dated 10-6-2013 sent by the petitioner to the Labour Departrnent (Conciliation), Ex.P4 is the copy of driving license of the petitioner, Ex.P5 is the copy of ESI Card of the petitioner. These documents would go to show that the petitioner and the 1st respondent have entered into the employment agreement and the petitioner served as a Driver and received a salary of ` 7,742 for the month of May 2011, ` 8,000 for the month of July 2 0 11 , ` 7 , 3 0 7 f o r t h e mo n t h o f S e p t e mb e r 2 0 11 a nd ` 9,502 for the month of December 2011 to February 2012 and further it reveals from the document that he filed a petition before the Conciliation Officer for his employment and for back wages with attendance benefits on 10-6-2013.

11. The documents and evidence of both PW.1 and RW.1 would go to show that no documents are filed by them to prove the fact that 3rd respondent has entered into contract with the 1st and 2nd respondents. The reference also does not disclose whether there is any connection between the 2nd and 3rd respondents with the 1st respondent. Admittedly, though the 1st and 2nd respondents have held a meeting between the workmen and the management and the workers have been paid idle wages, it is clear fact that they have not given statutory notice for the closure of the business or to give any notice for retrenchment and therefore, it is clear that the 1st respondent has failed to give statutory notice for the closure of business and the action of the 1st and 2nd respondents regarding closure of business and non-employment of the workmen is against law and not as per the procedure laid down under section 25F of the Industrial Disputes Act. 10. The 1st and 2nd respondents have examined S. Vaitinadan as RW.1 and Ex.R1 to Ex.R3 were marked. Ex.R1 is the resolution passed by the 2nd respondent company in a meeting held on 17-10-2014 to give evidence to authorizing one Vaitinadan to appear and act on behalf of the company who has been examined as RW.1. Ex.R2 is the copy of Arbitration Petition filed before the Hon'ble High Court of Judicature at Madras. Ex.R3 is the copy of the Advocate Notice. It is the evidence of the RW.1 that 2nd respondent Kivar Environ Private Limited and

12. Absolutely, there is no evidence that whether the 3rd respondent Urban Development Authority, Puducherry has entered any contract with the 1st and 2nd respondents and to prove the same, nothing is41 2 LA GAZETTE DE L'ETAT [9 May 2017 its work in the month of June 2012 due to the financial crises and held a meeting with the workmen and orally announced the settlement, but, it is failed to issue proper notice for a closure of business as a procedure laid down under section 25 of the Industrial Disputes Act and therefore, since, the 1st respondent company is in financial crisis, the union members cannot be reinstated in the 1st respondent company. However, the 2nd respondent admits that they have formed the 1st respondent company and they have entered into the agreement with the 3rd respondent Municipality alone are liable to compensate the petitioner since, they have not properly issued the closure notice of the 1st respondent company to its workmen as stated by the Act.

placed before this Court to construe that joint venture was created. Though, the petitioner impleaded the Puducherry Urban Development Authority as 3rd respondent, no document is filed either by the petitioner or by the 1st and 2nd respondents to prove the fact that 3rd respondent have been entered into the contract with the 2nd respondent. Though, the petitioner and the 1st and 2nd respondents have stated that there was a contract between the 2nd respondent and 3rd respondent to carry out the Integrated Solid Waste Management Project for the Urban Agglomeration of Puducherry and formed the 1st respondent and signed the Concession Agreement on 18-10-2010, no such contract or agreement is filed before this Court connecting the 3rd respondent Puducherry Urban Development Authority with the employees and furthermore, the pleadings of the petitioner is very silent regarding the terms and conditions of the contract laid to have been made between the 2nd and 3rd respondent. Furthermore, the petitioner does not claim that the contract is sham and nominal and that therefore, the relief against the 3rd respondent does not arise and furthermore, the petition as well as claim statement is very silent, against whom the reliefs are asked for by the petitioner. However, the 2nd respondent has admitted the fact that 1st respondent company is belonged to them and the workmen including the petitioner were working under them and they have been given non-employment from May, 2012 without giving any statutory notice for the closure of business and hence, the closure of the business of the company is illegal and that therefore, the dispute raised by the petitioner against the management of M/s. Pondicherry Municipal Service Private Limited, over his non-employment is justified.

* Source of Employment

* Qualification of Workers

* Length of Service

14. It is brought to the knowledge of the Court that 2nd respondent company alone has formed the 1st respondent company and it closed the 1st respondent company without following the procedure laid down under section 25F of the Industrial Disputes Act and the petitioner was appointed at the 1st respondent company and has served for a period of 14 months without any mistakes committed by him. Hence, considering the length of the extraordinary services of the petitioner and the unceremonious act of the company in closing down the business of the 1st respondent and considering the appointment and regularization order passed by the 1st respondent, it will be appropriate to pass an order of reinstatement in the 2nd respondent company to the petitioner and that therefore to that effect, the industrial dispute is to be allowed. The respondents appeared before this Court and has not proved any misconduct of the petitioner and as the closure is illegal and the p e t i t i o n e r s u f f e r e d g r e a t i n j u r i e s mo n e t a r i l y alongwith his family members. Furthermore, on perusal of evidence of PW.1, it is learnt to this Court that the petitioner had not at all stated why he had not joined in any other establishments as Driver after the closure of the business of the 1st respondent and that therefore, though, the petitioner has entitled for reinstatement in the 2nd respondent company since, the 1st respondent company was closed due to the financial crisis, he do not entitle for the relief of full back wages as claimed by him. However, considering the facts and circumstances of this case, this industrial dispute is partly allowed and the petitioner is entitled for the reinstatement with 20% back wages.

* Availability of Post, etc.

15. In the result,

(i) the industrial dispute raised by the petitioner is justified and it is partly allowed against the 1st and 2nd respondent and dismissed against the 3rd respondent.

In this case, admittedly, the 1st respondent company has appointed the workmen including the petitioner as Drivers and functioning only for 14 months and subsequently it could not do its business and stopped9 May 2017] LA GAZETTE DE L'ETAT 413 (ii) the 2nd respondent, the Managing Director, Kivar Environ Private Limited is directed to reinstate the petitioner within one month, and

 • → •▪ }|{ (iii) the 2nd respondent is also directed to pay 20% of back wages from the closure of business till the date of Award to the petitioner.

Dictated to the Stenographer, transcribed by her, corrected and pronounced by me in the Open Court on this the 27th day of February, 2017.

G. THANENDRAN, Presiding Officer, Industrial Tribunal-cum- Labour Court, Puducherry.

————



• ➢• ▪          

       

List of petitioner's witness:

PW.1 — 5-9-2014 — Chitirasekar

List of petitioner's exhibits :

Ex.P1 — Copy of employment agreement entered between the petitioner and the 1st respondent, dated 2-5-2011.

Ex.P2 — Copy of pay slip (6Nos.) issued by the 1st respondent to the petitioner.

Ex.P3 — Copy of letter sent by the petitioner to the Labour Department (Conciliation), dated 10-6-2013.

Ex.P4 — Copy of Driving Licence of the petitioner.

Ex.P5 — Copy of ESI Card of the petitioner.

 ▪           ➢• ➢     ➢    • 



 

   ➢ ▪• ➢➢ • 

List of respondent's witness :

RW.1 —3-12-2014 — S. Vaitinadan

 ▪    ➢  ▪➢ • 

 •➢

  ➢ List of respondent's exhibits :

Ex.R1 — Copy of the resolution passed by 2nd respondent company, dated 17-10-2014.

Ex.R2 — Copy of Arbitration Petition in O.P. No. 127 of 2013 on the file of the Hon'ble High Court of Judicature at Madras.

Ex.R3 — Copy of the Notice issued by the Counsel for 1st respondent company to the counsel for 3rd respondent.

G. THANENDRAN, Presiding Officer, Industrial Tribunal-cum- Labour Court, Puducherry.

➢• ▪➢ • 

 

  ➢ ➢ ▪➢ • 

     ➢↔ ▪  