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 ]
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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.
[(iii)-]
H.
A.
Ca.
C
C