La Gazette de L' État de Poudouchéry
The Gazette of Puducherry
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2017 }
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9 {
No.
19
Poudouchéry
Mardi
9
Mai
2017 (19 Vaisakha 1939)
No.
Puducherry
Tuesday
9th
May
2017
SOMMAIRES
CONTENTS
Page
Page
.. 404
Sentence arbitral du travail
.. 404
Award of the Labour Court .. 404
de tribunal.
.. 413
Notifications du Gouvernement
.. 413
Government Notifications .. 413
.. 427
Avis d’Adjudications
.. 427
Tender notices
.. 427
.. 429
Etablissements dangereux
.. 429
Dangerous Establishments
.. 429
.. 432
Annonces
.. 432
Announcements
.. 432
[ 403 ]
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WPP No. TN/PMG(CCR)/WPP-88/2015-17
Dated : 9-5-2017
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404
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
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;
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
Kunchithapatham,
. . Petitioner
Puducherry.
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.
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
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:-
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
405
9 May 2017]
LA GAZETTE DE L’ETAT
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:-
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 and
hence, the operations of the company 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
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
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
406
LA GAZETTE DE L’ETAT
[9 May 2017
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.
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 the
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.
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
407
9 May 2017]
LA GAZETTE DE L’ETAT
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.
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
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
Municip al Service P rivate Limited, o ver his
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
* 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.
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 respoudent, it
will be appropriate to pass an order of reinstatement
in the 2nd respondent company to the petitioner and
408
LA GAZETTE DE L’ETAT
[9 May 2017
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,
(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:
P.W. 1— 5-9-2014 – Kunjithapadam
List of petitioner’s exhibits:
Ex.P1— Copy of Identity Card issued by the 1st
respondent to the petitioner.
Ex.P2— Copy
of
employment
agreement
entered between the petitioner and the
1st respondent, dated 2-5-2011.
Ex.P3— Copy of
certificate issued by the
S.H.O., Mudaliarpet to the petitioner,
dated 22-4-2011.
List of respondent’s witness:
R.W. 1—3-12-2014 – 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 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. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
————
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 51/Lab./AIL/T/2017,
Puducherry, dated 10th April 2017)
NOTIFICATION
Whereas, the Award in I.D. (L) No. 38/2013,
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 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
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 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).
409
9 May 2017]
LA GAZETTE DE L’ETAT
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
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
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:
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 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:
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 and hence, the operations of the company
410
LA GAZETTE DE L’ETAT
[9 May 2017
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.
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 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
411
9 May 2017]
LA GAZETTE DE L’ETAT
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.
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 2011, ` 7,307 for the month of
September 2011 and
` 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.
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
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
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.
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
412
LA GAZETTE DE L’ETAT
[9 May 2017
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.
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
* 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 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.
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
petitioner suffered great injuries monetarily
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.
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.
413
9 May 2017]
LA GAZETTE DE L’ETAT
(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.
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