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La Gazette de L' État de Poudouchéry

The Gazette of Puducherry

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16 {

No.

20

Poudouchéry

Mardi

16

Mai

2017 (26 Vaisakha 1939)

No.

Puducherry

Tuesday

16th

May

2017



SOMMAIRES

CONTENTS



Page

Page

.. 440

Sentence arbitral du travail

.. 440

Award of the Labour Court .. 440

de tribunal.



.. 445

Notifications du Gouvernement

.. 445

Government Notifications .. 445



.. 458

Avis d’Adjudications

.. 458

Tender notices

.. 458



.. 459

Etablissements dangereux

.. 459

Dangerous Establishments

.. 459



.. 461

Annonces

.. 461

Announcements

.. 461



.. 4 6 8

Corrigendum

.. 4 6 8

Corrigendum

.. 4 6 8

[ 439 ]

Registered with the Registrar

of Newspapers for India under

No. 10410

Registered No. SSP/PY/44/2015-17

WPP No. TN/PMG(CCR)/WPP-88/2015-17

Dated : 16-5-2017

Price : ` 21-00

440

LA GAZETTE DE L’ETAT

[16 May 2017

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 52/Lab./AIL/T/2017,

Puducherry, dated 11th April 2017)

NOTIFICATION

Whereas, the Award in I.D.No. 27/2013, dated

27-2-2017 of the Industrial Tribunal-cum-Labour

Court, Puducherry in respect of the industrial dispute

between the President, Centre of Indian Trade

Union (CITU), Puducherry against the managements of

M/s. Pondicherry Municipal Service Private Limited,

over non-employment of 15 employees has been

received;

Now, therefore, in exercise of the powers conferred

by sub-section (1) of section 17 of the Industrial

Disputes Act, 1947 (Central Act XIV of 1947), read

with the notification issued in Labour Department’s

G.O. Ms. No. 20/91/Lab./L., dated 23-5-91, it is

hereby directed by Secretary to Government (Labour)

that the said Award shall be published in the Official

Gazette, Puducherry.

(By order)

E. VALLAVAN,

Commissioner of Labour-cum-Additional

Secretary to Government (Labour).

————

BEFORE THE INDUSTRIAL TRIBUNAL -CUM-

LABOUR COURT AT PUDUCHERRY

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

Presiding Officer.

Friday, the 27th day of February 2017.

I.D. (L) No. 27/2013

The President,

. . Petitioner

Centre of Indian Trade Union (CITU),

Puducherry.

Versus

1.

The Managing Director,

Puducherry Municipal Service,

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. This industrial dispute has been referred as per

the G.O.Rt. No. 64/AIL/Lab./J/2013, dated 13-5-2013

for adjudicating the following:-

(i) Whether the dispute raised by the CITU

against the management of M/s. Pondicherry Municipal

Service Private Limited, in respect of 15 employees

i.e., (1) Ravi, (2) D. Manimaran, (3) P. Rajan,

(4) Vimalraj, (5) P. Annadurai, (6) M. Muthukumaran,

(7) R. Arumugam, (8) S. Selvarasu, (9) B. Govindasamy,

(10) R. Radhakrishnan, (11) M. Balamurugan,

(12) S. Satthuru, (13) A. Rajendiran, (14) D. Ravi

and (15) M. Sampath over their non-employment is

justified ?

(ii) If justified, to what relief, the petitioner is

entitled to ?

(iii) To compute the relief, if any awarded in

terms of money, if it can be so computed?

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 respondent management is

to clean the wastages at places of Puducherry and

Oulgaret Municipalities through tricycles and thereby,

the workers to ride the tricycles were recruited by

conducting job opportunity camp at 1st respondent

management and appointment order for Drivers has

been given to workers including petition mentioned

workers by the 1st respondent management by

obtaining their original Driving licence and that the

workers were serving their service in a most excellent

manner and that one year later, permanent order was

441

16 May 2017]

LA GAZETTE DE L’ETAT

issued to the workers by the 1st respondent management,

while being so, on 1-6-2012 the workers 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 petitioner union

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 petition

mentioned workers and two more 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 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 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 high light the adverse situation

to the workmen held a meeting with them on 11-6-2012

and the petition mentioned workmen have also

participated in the meeting alongwith 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 petition mentioned workmen have also

came forward to submit their resignation but demanded

payment of exorbitant amount towards their full and

final settlement of accounts and having failed in their

unfair attempt they have 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 were 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, PW1. was

examined and Ex.P1 to Ex.P20 were marked. On the

side of the respondent, RWI. 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

union that the 1st respondent, Puducherry Municipal

Services Private Limited have been formed by the joint

venture of 2nd and 3rd respondent, the Kivar Environ

442

LA GAZETTE DE L’ETAT

[16 May 2017

Private Limited and Puducherry Urban Development

Authority and that they have appointed the members of

the petitioner union as Drivers to drive the Auto Tipper

by the 1st respondent Company on 21-2-2011 and the

workers of the petitioner union were stopped from

their work on 1-6-2012 without giving any notice to

them and thereafter, the union 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's union 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

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 union

members have 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 its case, the petitioner union has

examined one R. Radhakrishnan as PW.1 and in support

of his oral evidence, Ex.P1 to Ex.P20 were marked.

Ex.P1 to Ex.P15 would reveal the fact that the

members of the petitioner union have been appointed

as Drivers of the Auto Tipper by the 1st respondent on

21-2-2011and that the members of the petitioner

union and the 1st respondent have entered into the

employment agreement on 25-2-2011 and subsequently

confirmation order was given to the petitioner union

members by the 1st respondent on 1-10-2011. ExP16

would evident that there was some protest made by the

union on 25-9-2012. Ex.P17 would reveal the fact that

petitioner union has raised a industrial dispute before

the Conciliation Officer on 21-8-2012. Ex.P18 would

evident that on 30-7-2012, the 1st respondent

company made a submission before the Labour Officer

(Conciliation) admitting the fact that these employees

have been working under them. Ex.P19 is the failure

report of the Conciliation Officer to the Secretary to

Government (Labour), Puducherry on 4-4-2013 which

discloses that members of the petitioner union asked

for reinstatement with the 1st respondent, the

reference as well as the failure report have been

served to the 1st respondent and the President of the

Petitioner’s union. Ex.P20 is the reference sent by the

Government to this Court.

10. The 1st and 2nd respondents have examined

S. Vaitinadan as RW.I 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 members of the petitioner

union are the workers of them and they have been

serving as Drivers 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

443

16 May 2017]

LA GAZETTE DE L’ETAT

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 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

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 union impleaded the

Puducherry Urban Development Authority as 3rd

respondent, no document is filed either by the

petitioner union 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 union 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 union 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 union 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 union. However, the 2nd respondent has

admitted the fact that 1st respondent company is

belonged to them and the members of the petitioner’s

union 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 union against the management of M/s.

Pondicherry Municipal Service Private Limited, in

respect of 15 employees over their non-employment

is justified.

13. Since, it is decided that the dispute raised by the

petitioner union is justified, it is to be seen that

members of the petitioner union are 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 members of the union 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

444

LA GAZETTE DE L’ETAT

[16 May 2017

company and they have entered into the agreement with

the 3rd respondent municipality, alone are liable to

compensate the members of the petitioner union 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 members of the petitioner union were appointed

at the 1st respondent company and have served for a

period of 14 months without any mistakes committed

by them. Hence, considering the length of the

extraordinary services of the members of the petitioner

union 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 petitioners 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 petitioners and as the

closure is illegal and the petitioners suffered great

injuries monetarily along with their family members.

Furthermore, on perusal of evidence of P.W.1, it is

learnt to this Court that the petitioner have not at all

stated why they have not joined in any other

establishments as Drivers after the closure of the

business of the 1st respondent and that therefore,

though, the petitioner have entitled for reinstatement

in the 2nd respondent company since the 1st

respondent company was closed due to the financial

crisis, they do not entitle for the relief of full back

wages as claimed by them. 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 petitioners mentioned in the reference

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 petitioners mentioned in the

reference.

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 — 2-2-2016—R. Radhakrishnan

List of petitioner’s exhibits:

Ex.P1 — Copy of Appointment order and

confirmation order issued by the 1st

respondent to the petitioner No.1,

dated 1-10-2011.

Ex.P2 — Copy of Appointment order and

confirmation order issued by the 1st

respondent to the petitioner No.2,

dated 1-10-2011.

Ex.P3 — Copy of Appointment order and

confirmation order issued by the 1st

respondent to the petitioner No.3,

dated 1-10-2011.

Ex.P4 — Copy of Appointment order and

confirmation order issued by the 1st

respondent to the petitioner No.4,

dated 1-10-2011.

Ex.PS — Copy of Appointment order and

confirmation order issued by the 1

st respondent to the petitioner No.5,

dated 1-10-2011.

Ex.P6 — Copy of Appointment order and

confirmation order issued by the 1st

respondent to the petitioner No.6,

dated 1-10-2011.

Ex.P7 — Copy of Appointment order and

confirmation order issued by the 1st

respondent to the petitioner No.7,

dated 1-10-2011.

Ex.P8 — Copy of Appointment order and

confirmation order issued by the 1st

respondent to the petitioner No.8,

dated 9-2-2011.

Ex.P9 — Copy of Appointment order and

confirmation order issued by the 1st

respondent to the petitioner No.9,

dated 1-10-2011.

445

16 May 2017]

LA GAZETTE DE L’ETAT

Ex.P10— Copy of Appointment order and

confirmation order issued by the 1st

respondent to the petitioner No.10,

dated 15-6-2011.

Ex.P11— Copy of Appointment ordsr and

confirmation order issued by the 1 st

respondent to the petitioner No. 11.

Ex.P12— Copy of Appointment order and

confirmation order issued by the 1st

respondent to the petitioner No.12,

dated 28-9-2011.

Ex.P13— Copy of Appointment order and

confirmation order issued by the 1st

respondent to the petitioner No.13,

dated 11-5-2011.

Ex.P14— Copy of Appointment order and

confirmation order issued by the 1st

respondent to the petitioner No.14,

dated 1-10-2011.

Ex.P15— Copy of Appointment order and

confirmation order issued by the 1st

respondent to the petitioner No.15,

dated 1-10-2011.

Ex.P16— Copy

of

Newpaper

collections

regarding protest made by the union,

dated 25-9-2012.

Ex.P17— Copy of letter sent by the petitioner

union to the Labour Department,

dated 21-8-2012.

Ex.P18— Copy of reply letter submitted by the

respondent

management

before

Conciliation Officer, dated 30-7-2012.

Ex.P19— Conciliation Failure Report, dated

4-4-2013.

Ex.P20— Reference letter by the Labour

Department, Government of Puducherry,

dated 13-5-2013.

List of

respondent’s witness:

RW.1 — 24-2-2016 — 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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

[(iii)-]





































H.

A.

Ca.





C









C





