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La Gazette de L' État de Poudouchéry

The Gazette of Puducherry

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2017 }

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25 {

No.

30

Poudouchéry

Mardi

25

Juillet

2017 (3 Sravana 1939)

No.

Puducherry

Tuesday

25th

July

2017



SOMMAIRES

CONTENTS



Page

Page

.. 742

Sentence arbitral du travail

.. 742

Award of the Labour Court .. 742

de tribunal.



.. 751

Notifications du Gouvernement

.. 751

Government Notifications .. 751



.. 755

Avis d’Adjudications

.. 755

Tender notices

.. 755



.. 756

Annonces

.. 756

Announcements

.. 756

[ 741 ]

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 : 25-7-2017

Price : ` 14-00

742

LA GAZETTE DE L’ETAT

[25 July 2017

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 94/Lab./AIL/T/2017,

Puducherry, dated 15th June 2017)

NOTIFICATION

Whereas, the Award in I.D.(T) No. 07/2013, dated

24-4-2017 of the Labour Court, Puducherry in respect

of the Industrial Dispute between the Management of

M/s. Larsen & Toubro Limited, ECC Division, Sederapet,

Puducherry and Larsen & Toubro Employees Union,

Puducherry over non-payment of an additional

increase of @ ` 3,000 in One-Time Lump Sum Amount

paid during the year 2010-2011 to the employees of

all Grades 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 23-5-1991, 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. THANENDRAN, B.com, M.L.,

Presiding Officer.

Monday, the 24th day of April 2017

I.D. (T) No. 07/2013

R.Karthikeyan, President,

Larsen & Toubro Employees Union,

(RTU 1627/2010),

No. 14, Kurinji Street,

Kamarajar Nagar, Gorimedu,

Puducherry.

. . Petitioner

Versus

Works Manager,

Larsen & Toubro Limited,

Sederapet,

Puducherry.

. . Respondent

This industrial dispute coming up before me for

final hearing on 27-3-2017 in the presence of Thiru

Durai Arumugam, Representative of the petitioner and

Thiruvalargal

M.Vaikunth,

R.Vikneshraj

and

R. Elamparudhi, Counsels for the respondent, upon

hearing both sides, upon perusing the case records,

after having stood over for consideration till this day,

this Court passed the following:-

AWARD

1. This industrial dispute has been referred by the

Government as per the G.O. Rt. No. 226/AIL/Lab./J/

2012, dated 20-12-2012 for adjudicating the following:-

(i) Whether, the dispute raised by Larsen &

Toubro Employees Union against the management

of M/s. Larsen & Toubro Limited, ECC Division,

Puducherry over non-payment of an additional

increase @ ` 3,000 in One-Time Lump Sum Amount

paid during the year 2010-2011 to the employees

of all Grades is justified?

(ii) If justified, to what relief the union workmen

are entitled to?

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

terms of money, if it can be so computed?

2. The fact of the case as follows:

The petitioner is a union and the members of the

union are working in the respondent establishment of

Larsen & Toubro Limited and they have raised the

industrial dispute before the Conciliation Officer for

One-Time Lump Sum Amount for the year 2010-2011

and the respondent establishment had been paying 20%

bonus along with One-Time Lump Sum Amount to the

employees for every year from 2005 and it was paid

by the company to the workmen of the respondent

establishment from 2005-2006 to 2009-2010 and the

respondent has paid One-Time Lump Sum Amount of

` 1,000 for the year 2005-2006, ` 1,500 for the year

2006-2007, ` 2,000 and ` 2,100 for grade I to III and

grade IV respectively for the year 2007-2008, ` 2 ,000

for the year 2008-09 and ` 2,500 for the year 2009-2010.

But, for the year 2010-2011, the company has not paid

the One-Time Lump Sum Amount without giving any

notice u/s 9-A of the Industrial Dispute Act. Though

the One-Time Lump Sum Amount has been paid by the

respondent company for every year continuously for

six years the respondent management has not paid the

One-Time Lump Sum Amount for the year 2010-2011

without giving any notice and without negotiating with

the Trade Union and has violated the provision u/s 9-A

of the Industrial Dispute Act and hence, it is the

743

25 July 2017]

LA GAZETTE DE L’ETAT

customary right of the employees to get One-Time

Lump Sum Amount from the respondent establishment

and whenever, the respondent has effect any change in

the condition of service of the employees i.e., to stop

the payment of One-Time Lump Sum Amount, a notice

has to be issued to the employees u/s 9-A of the

Industrial Dispute Act and that therefore, the non-

payment of One-Time Lump Sum Amount for the

period of 2010-2011 is in violation of section 9-A of

the Industrial Dispute Act and is illegal and therefore,

the employees of the union are entitled for One-Time

Lump Sum Amount for the year 2010-2011.

3. The respondent in his counter has stated as

follows:-

(i) The petition filed by the petitioner is not true

or just and the petitioner is not entitled to any relief

and that every year, particularly before Diwali Festival'.

One-Time Lump Sum Amount has been paid to the

employees under the Payment of Bonus Act without

any reference to the profit or loss to the respondent

company, with regard to the quantum of One-Time Lump

Sum Amount, every year the Trade Union demanded

increase after negotiation the respondent every year

announced a reasonable hike in the One-Time Lump

Sum Amount.

(ii) For the year 2006-2007 after the demand of

the petitioner union the respondent negotiated with the

petitioner union, and then announced an increase a sum

of ` 1,500 from the last year, likewise till 2009, the

respondent considered the demand of the petitioner

trade union and gave increase reasonable amount in the

One-Time Lump Sum Amount, the details of payment

of One-Time Lump Sum Amount and its year-wise

increase all given below in Tabular column.

Last 5 years OTLS amount details:

Year

Grade

Existing

OTLS

Total OTLS

increase

amount

(1)

(2)

(3)

(4)

(5)

2005-

Grade-

10,400

1,000

11,400

2006

I to III

Grade-IV

11,000

1,000

12,000

2006-

Grade-

11,400

1,500

12,900

2007

I to III

Grade-IV

12,000

1,500

13,500

2007-

Grade-

12,900

2,000

14,900

2008

I to III

Grade-IV

13,500

2,100

15,600

2008-

Grade-

14,900

2,000

16,900

2009

I to III

Grade-IV

15,600

2,000

17,600

2009-

Grade-

16,900

2,500

19,400

2010

I to III

Grade-IV

17,600

2,500

20,100

2010-

Grade-

19,400

No

2011

I to III

increase

Grade-IV

20,100

No

increase

(iii) The respondent paid One-Time Lump Sum

Amount for the year 2010-2011 and also credited the

same to the petitioner union members bank account,

in that regard, the petitioner trade union. At the time

petitioner kept quiet and take the amount and spend the

same without any objection. In addition to that

petitioner not disclosed the amount maximum bonus

20% i.e., ` 8,400 paid every year to petitioner by the

management, it is handful amount to meet the festival

requirement.

(iv) It is clearly admitted by the petitioner by

himself the payment of One-Time Lump Sum Amount

is only goodwill gesture not a statutory requirement

or any rules governed by a State/The Bonus payable

under the Bonus Act, 1965 management or giving

One-Time Lump Sum Amount and not under any

provisions of law in force. So, giving a One-Time

Lump Sum Amount payment is only based on discretion

of the company and not under any law, since it is clear

that the petitioner cannot ask for prayer which totally

question of policy of the company and in other way

putting the company under threat and trying to get the

means by illegal method which is not permissible under

any law. So, on that grounds itself, the petition deserves

dismissal without any consideration.

(v) The fact setforth in the application are merely

repetition of pleading without any legal base. But, the

averments in the petition clearly claim the prayer to

pay One-Time Lump Sum for the year 2010-2011 with

an increase from the payment made in the previous

year 2009-2010 for ` 2,500 for all grades from the

period 2010-2011 interest is totally unknown to law.

Hence, the petition should be dismissed with limine.

4. On the side of the petitioner, P.W.l was examined

and Ex.P1 to Ex.P6 were marked. On the side of the

respondent, R.W1 was examined and no exhibit was

marked.

(1)

(2)

(3)

(4)

(5)

744

LA GAZETTE DE L’ETAT

[25 July 2017

5. The point for consideration is that whether the

petitioner union members being the employees of all

cadres of the respondent establishment are entitled

for the One-Time Lump Sum Amount of ` 3,000 for

the financial year 2010-2011.

6. Both sides are heard. Records are perused. The

petitioner has filed a written argument, wherein, they

have stated that the respondent management has failed

to pay the One-Time Lump Sum Amount of ` 3,000 for

the year 2010-2011 while they have paid the One-Time

Lump Sum Amount for every year from 2005-2006 till

2009-2010 apart from bonus. Since, the respondent

management has paid the One-Time Lump Sum Amount

from the year 2005-2006 till 2009-2010 it cannot be

stopped without giving notice under section 9-A of the

Industrial Disputes Act or made any negotiation with

the union and as the One-Time Lump Sum Amount are

paid for about-six years, it is the customary right of

the employees to get the One-Time Lump Sum Amount

and as such if, there is any change of service condition,

a notice u/s. 9A of the Industrial Disputes Act must be

sent to the workers of the establishment and therefore,

they are entitled for the full One-Time Lump Sum

Amount of ` 3,000 for the period 2010-2011.

7. In support of his contention, the representative

of the labour union has relied upon the Judgment

reported in 2003-III-LLJ, High Court of Rajasthan in

Director, State Farms Corporation of India Limited Vs.

Judge, Industrial Tribunal and Labour Court, Bikaner

and others. The learned Counsel for the respondent has

argued that One-Time Lump Sum Amount is not a wage

and it is paid in addition to the bonus and it is the

discretion of the management to grant such an

One-Time Lump Sum Amount and hence, no notice

u/s. 9-A of the Industrial Disputes Act is required to

stop the payment of One-Time Lump Sum Amount.

8. From the averment of the claim petition and the

averment of the counter, it is clear that both the parties

have admitted the fact that the workers of the

respondent management have been granted One-Time

Lump Sum Amount of ` 1,000 for the year 2005-2006

to all the cadre of workmen, ` 1,500 was granted for

the year 2006-2007, ` 2,000 and ` 2,100 was given

to the grade 1 to III & grade IV respectively for

the year 2007-2008 and ` 2,000 was granted for

the year 2008-2009 and ` 2,500 was granted for the

year 2009-2010 and the respondent management has

failed to pay the amount for the year 2010 - 2011 and

it is not disputed by the respondent that One-Time

Lump Sum Amount was given in addition to the bonus

to the workers for the period 2005-2006 to 2009-2010

at the above stated rates and admittedly in the

year 2010-2011, no such One-Time Lump Sum Amount

was given to the workers by the respondent

management and it is also an admitted fact that the

respondent management has not given any notice

to the workers or the union members that they are

going to stop the payment of lump sum amount for the

period 2010-2011 u/s. 9A of the Act as required

under the fourth Schedule of the Act while change of

service condition of the workmen and the decision of

stopping the One-Time Lump Sum Amount for the

period 2010 to 2011 was taken by the management

without negotiating the same with the union members

and the decision of the management in stopping the

One-Time Lump Sum Amount is unilateral. To prove

his contention, the petitioner has exhibited the copy

of the circular for the year 2005-2006 as Ex.P1 which

would evident that the respondent management has paid

One-Time Lump Sum Amount to the permanent

workmen of the respondent establishment. Ex.P2 and

Ex.P3 are the minutes of the meeting held by the

respondent management for increase in giving

One-Time Lump Sum Amount for the period 2006-2007

and 2007-2008. Ex.P4 is the letter given by the

respondent management for the payment of One-Time

Lump Sum Amount for the financial year 2008-2009.

Ex.P5 would reveal the fact that the respondent

management has given One-Time Lump Sum Amount to

the employees for the period 2009-2010 to the tune

of increase of ` 2,500 than the last year. Ex.P6 is the

letter given by the respondent management that they

have deposited the respective bonus amount in the

account of the petitioner union members which would

reveal the fact that the management has not paid the

One-Time Lump Sum Amount of ` 3,000 and instead

of that the management deposited only the previous

year amount without any increase of One Time Lump

Sum Amount. These documents would go to show that

the respondent management has been paid the

One-Time Lump sum Amount for the period from

2005-2006 to 2009-2010 with some increase.

9. It is the only contention of the petitioner that the

abovesaid One-Time Lump Sum Amount has to be paid

as customary right and the stoppage of One-Time

Lump Sum Amount in addition to the bonus is a change

of service condition and it is also a customary right

of the workers to get the One-Time Lump Sum

Amount since, they have received it for the past 6 years

from 2005-2006 till 2009-2010.

745

25 July 2017]

LA GAZETTE DE L’ETAT

10. On the other hand, the respondent has though

admitted the fact that they have paid One-Time Lump

Sum Amount for the period 2005-2006 to 2009-2010,

it is stated by the respondent management that this

amount has been paid to the employees in addition to

the bonus without any reference to the profit or loss

of the respondent company and from the year 2006-

2007, after the demand of the petitioner union, the

respondent management negotiated with the petitioner

union and announced the increase of sum of

`2,500

till 2009-2010 but that One-Time Lump Sum has not

been given under any provisions of law in force and it

is paid only on the basis of discretion of the company

and not under any law and the petitioner cannot ask the

said Lump Sum Amount as a matter of right without any

legal base.

11. Though the respondent has contended that they

have not paid the One-Time Lump Sum Amount for the

period 2010-2011 and that they have not increased the

said amount for the period 2010-2011 to all the

cadres, it is stated in the para.- 5 of the counter that,

“The respondent paid One-Time Lump Sum

Amount for the year 2010-2011 and also credited

the same to the petitioner union members bank

account, in that regard the petitioner trade union.

At the time petitioner kept quiet and take the

amount and spend same without any objection. In

addition to that petitioner not disclosed the amount

maximum bonus 20% i.e., ` 8,400 paid every year

to petitioner by the management, it is handful

amount to meet the festival requirement.”

In the above paragraph, the respondent have stated

that they have credited the One-Time Lump Sum

amount in the account of workmen and workers have

taken the same and spend it without any objection. But,

they have not stated how much amount was credited in

the account of union members as a lump sum amount

for the period 2010-2011 and no documents is

exhibited before this Court to prove the same.

12. This Court finds that the respondent has stated

contradictory contentions. One is that they have

credited the lump sum amount in the Bank account of

union members for the period 2010-2011 and another

contention is that the petitioners are not entitled for

the One-Time Lump Sum Amount and they have not

paid the same to the workers for the period 2010-2011.

As stated by the respondent in para 5 of the counter

if, the amount is credited in the account of the

members of the union, the respondent has to produce

the sufficient proof with documents before this Court

to establish that they have paid the One-Time Lump

Sum Amount for the period 2010-2011. The RW.l also

has stated in the cross examination, that they have paid

One-Time Lump Sum Amount for the period 2010-2011

and that they have some documents to prove the same

but no document is filed by the respondent management

to prove that they have paid such One-Time Lump Sum

Amount for the period of 2010-2011.

13. The proviso of section 9A of the Industrial

Disputes Act runs as follows :

Notice of change. - No, employer, who proposes

to effect any change in the conditions of service

applicable to any workman in respect of any matter

specified in the Fourth Schedule, shall effect such

change,-

(a) without giving to the workmen likely to be

affected by such change a notice in the prescribed

manner of the nature of the change proposed to be

effect; or

(b) within twenty-one days of giving such notice :

Provided that no notice shall be required for

effecting any such change -

(a) where the change is effected in pursuance of

any 2[settlement or award]; or

(b) where the workmen likely to be affected by

the change are persons to whom the Fundamental

and

Supplementary

Rules,

Civil

Services

(Classification, Control and Appeal) Rules, Civil

Services (Temporary Service) Rules, Revised Leave

Rules, Civil Service Regulations, Civilians in

Defence Services (Classification, Control and

Appeal) Rules or the Indian Railway Establishment

Code or any other rules or regulations that may be

notified in this behalf

by the

appropriate

Government in the Official Gazette, apply.

From the above provision, it is clear that if, any

employer propose to any change in service of condition

applicable to any workmen in respect of any matter

specified in Fourth Schedule would not give such

change without giving any notice to the workmen in the

prescribed manner of the nature of change proposed

to be affected and whenever, an employer unilaterally

proposes to effect any change in respect of any of the

matters specified in the Fourth Schedule he ought to

give notice to the workmen as mandated by this

section. The provision safeguards the interest of the

employees; in that it prohibits an employer from taking

any action in the specified matters without giving due

notice u/s. 9 of the Act.

746

LA GAZETTE DE L’ETAT

[25 July 2017

14. The main contention of the respondent

management is that no notice u/s. 9 A of the Act is

required to stop the payment of One-Time Lump Sum

Amount for the period 2010-2011 since, the said

amount is not wages and there is no change of service

condition as stated in the Fourth Schedule of the Act

and it is also a further contention of the respondent

that though they have paid the One-Time Lump Sum

Amount for the period from 2005-2006 to 2009-2010,

the petitioner cannot claim the said One-Time Lump

Sum Amount as a customary right. On this aspect, it

is to be decided whether the petitioner's claim of

One-Time Lump Sum Amount as a customary right is

sustainable or not and it is also to be decided whether

the stoppage of One-Time Lump Sum Amount for the

period 2010-2011 required any notice u/s.A of the

Industrial Disputes Act and.

15. The fourth schedule of the Act requires that a

notice is to be given to the employee for change of

service condition wages and withdrawal of any

compensatory allowance or any allowances or any

contribution payable by the employer to any provident

fund or pension fund or for the benefit of the workmen

under any law for the time being in force and

particularly withdrawal of any customary concession

or privilege or change in usage.

16. It is to be decided whether the petitioner union

has established that they have got a customary right

to get such One-Time Lump Sum Amount from the

respondent management. They have received the

One-Time Lump Sum Amount from the respondent

management for the past 6 years from the year

2005-2006 till 2009-2010 apart from the bonus.

Admittedly, the respondent management has paid the

One-Time Lump Sum Amount for the period 2005-2006

to 2009-2010 with gradual increase at the rate of

` 1,000 to ` 2,500 apart from bonus. On this aspect,

the Supreme Court of India in Workmen of Kettlewell

Bullen and Co. Limited Versus Kottiewell Bullen and

Co. Limited, has held that,

“On the basis of payment during 1965 to 1973

at the uniform rate of 10.5% of the salary or wages,

it could be said, ignoring the first few years that the

payment-was made at a uniform rate for an unbroken

period of nine years from 1965 to 1973 which was

a sufficiently long period and the Tribunal could

have reasonably drawn as inference that the said

payment was customary or traditional bonus on the

occasion of Pooja festival”.

From the above observation, it is clear that whenever

an amount is being paid by the employer to the

employees for some years it can be treated as

customary right. In this case, admittedly the petitioner

has been paid the One-Time Lump Sum Amount from

the period 2005-2006 till 2009-2010 with gradual

increase at the rate apart from bonus and hence, it is

held by this Court that the petitioners are having the

customary right of getting One-Time Lump Sum

Amount from the respondent management apart from

bonus. In the light of the Judgment reported in AIR

1975, SC 1856 in Management of Indian Oil

Corporation Limited Versus Workmen, the Hon’ble

High Court has held that concession of paying

allowance to workmen may become an implied

condition of service so as to attract the mandatory

provisions of section 9-A of the Act. Once the payment

of allowance becomes a part of the conditions of

service of workmen, it cannot be withdrawn at the will

of the employer, even if, the payment is made

voluntarily and as a temporary measure out of

sympathy for workers. It is needless to state that

unilateral withdrawal of voluntary payment as a

concession in the condition of service would

materially and adversely affect the workmen for all

time to come. It amounts to a change in the conditions

of service and the management is bound to follow the

procedure in section 9-A of the Act.

17. The petitioner has contended in its application

since the employer has paid the lump sum amount

from the year 2005-2006 to 2009-2010 for about six

years and to stop such customary right, the employer

has to give notice u/s. A of the Act but, they have not

given any notice to stop the One-Time Lump Sum

Amount and has violated, the provision of act and

therefore, they cannot stop the One-Time Lump Sum

payment for the period 2010-2011 and the members

of the union sought for the order of granting such

One-Time Lump Sum Amount in the application and in

support of his case, the representative of the

petitioner has relied upon a judgment reported in

2003-III-LLJ(Pg.No.81) of High Court of Rajasthan

pronounced in Director, State Farms Corporation of

India Limited Versus Judge, Industrial Tribunal and

Labour Court, Bikaner and others, wherein, it has been

held that,

“Moreover we are informed by the learned

Counsel for the parties that amenities extended to

workmen, which is now used as shield to defend the

action of management in unilateral reduction of

project allowance from 10% to 8%, had already

come into existence long before the unilateral

747

25 July 2017]

LA GAZETTE DE L’ETAT

reduction of the allowance and for long workmen

were receiving project allowance at 10% in addition

to amenities made available to them. Thus, no nexus

between the reductions in project allowance as quid

pro quo for extending additional benefits in lieu

thereof is discernible. The reduction in project

allowance undoubtedly results in reduction of

wages as defined in section 2(rr) of the Industrial

Disputes Act, 1947 and falls within 'conditions of

service for change of which notice is to be given'

under items 1 and 3 of Schedule IV appended to

the Act which attracted operation of section 9-A of

the said Act, which has been held to be mandatory

requirement before any such alteration can be

effected. For the foregoing reasons, we hold that

the view of the learned single Judge that the change

in the rate of project allowance adversely affected

the conditions of service of the employees working

in project and they were required to be given notice

under section 9-A of the Act, which the appellant

failed to do cannot be faulted and must be

sustained. We order accordingly. The appeal,

therefore, fails and is hereby dismissed.”

From the above observation of the the Hon’ble High

Court, it is clear that if, the employer propose bo

change any condition of service applicable to any

workmen, section 9A of the Act would come into

operation, the moment when the employer propose to

change any condition of service and to effect such

a change, a notice is to be given u/s. 9A of the Act and

if, such notice was not given, the withdrawal or the

payment, of One-Time Lump Sum Amount cannot be

stopped and furthermore, the Hon’ble High Court has

observed in the case that even project allowance is part

of the condition of the workmen and the notice is

mandatory u/s. 9A of the Act for effecting the change

of reduction of project allowance but, in this case

admittedly the respondent has not arrived at any

settlement with the members of the petitioner union

and furthermore, the petitioners workmen have not

given any consent for stoppage of payment of

One- Time Lump Sum Amount to the workers.

18.

As an employer, the respondent management

who has admittedly stopped the payment of One-Time

Lump Sum Amount for the period of 2010-2011 to the

employees and changed the condition of service of the

workmen by withdrawing the payment of One-Time

Lump Sum Amount to the employees described in

item-8 of the 4th Schedule of the Act before effecting

the change, the respondent management, must have

complied with the section 9A of the Act, notice has

to he issued for the stoppage of payment of One-Time

Lumpsum Amount to the employees under the customary

right. In such circumstances, the respondent management

ought to have given notice u/s. 9A of the Act for

stoppage of the said amount to the workers but, the

respondent management has failed to give such notice

to the petitioner union and that therefore, it is clear

that the petitioner union members are entitled for the

One-Time Lump Sum Amount of ` 3,000 for the period

2010-2011 since they have received ` 2,500 for the

year 2009-2010, with some increase in addition to

the bonus given to

the workmen as claimed by

the petitioner and that therefore, the dispute raised

by the Larsen and Toubro Employees Union against

the management of Larsen and Toubro Limited,

ECC Division, Puducherry over non-payment of an

additional increase of One-Time Lump Sum Amount

for the year 2010-2011 to the employees is justified

and hence, the petition is liable to be allowed.

19. In the result, the petition is allowed and the

respondent is directed to pay ` 3,000 as One-Time

Lump Sum Amount for the period 2010-2011 to the

members of the petitioner union who have been

received the One-Time Lump Sum Amount till

2009-2010. No cost.

Dictated to Stenographer, transcribed by her,

corrected and pronounced by me in the open Court

on this the 24th day of April, 2017.

G. THANENDRAN,

Presiding Officer,

Industrial Tribunal,

Puducherry.

————

List of petitioner’s witness:

PW1

—13-03-2015 — D. Ramesh

List of petitioner’s exhibits:

Ex.Pl — Copy of the circular for the year

2005-2006, dated 16-10-2006.

Ex.P2 — Copy of the minutes of meeting for the

year 2006- 2007, dated 31-10-2007.

Ex.P3 — Copy of the minutes of meeting for the

year 2007-2008, dated 14-10-2008.

Ex.P4 — Copy of the bonus receipt for the year

2008-2009.

Ex.P5 — C o p y o f t h e c i rc u la r fo r t h e yea r

2009-2010 dated 1-11-2010.

748

LA GAZETTE DE L’ETAT

[25 July 2017

Ex.P6 — Copy of the letter by the respondent

Works Manager for the year 2010-2011,

dated 24-10-2011.

List of respondent’s witness:

RW1— 8-1-2016 — A. Nepoliyan

List of Respondent’s exhibits :

Nil.

G. THANENDRAN,

Presiding Officer,

Industrial Tribunal,

Pondicherry.

————

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 95/Lab./AIL/T/2017,

Puducherry, dated 15th June 2017)

NOTIFICATION

Whereas, the Award in I.D. (L) No. 22/2014, dated

6-4-2017 of the Labour Court, Puducherry in respect

of the Industrial Dispute between the Management

of M/s. A.F.T., Puducherry and Puduvai Mill

Thozhilalar Sangam over continuity of service of the

petitioner Thiru.M. Chandrasekaran with effect from

5-9-1980 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 23-5-1991, 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,

Additional Secretary to Government (Labour).

————

BEFORE THE INDUSTRIAL TRIBUNAL-CUM-

LABOUR COURT AT PUDUCHERRY

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

Presiding Officer.

Thursday, the 6th day of April 2017

I.D. (L) No. 22/2014

M. Chandrasekaran,

S/o. Manickam,

Puducherry.

. . Petitioner

Versus

The Management of Anglo French Textiles,

(A.F.T-P.C), Mudaliarpet,

Puducherry.

. . Respondent.

This industrial dispute coming on 22-2-2017

before me for final hearing in the presence of Thiru

Durai Arumugam, Representative for the petitioner

and Thiru.B. Mohandoss, Counsel for respondent,

upon hearing both sides, upon perusing the case

records, after having stood over for consideration

till this day, this Court passed the following:

AWARD

1. This Industrial Dispute arises out of the reference

made by the Government of Pondicherry, vide G.O. Rt.

No. 66/AIL/Lab./J/2014, dated 21-4-2014 of the Labour

Department, Pondicherry to resolve the following dispute

between the petitioner and the respondent, viz.,

(i) Whether the dispute raised by Puduvai Mill

Thozhilalar Sangam against the management of

M/s. A.F.T., Puducherry over continuity of service,

of the petitioner Thiru M. Chandrasekaran with

effect from 5-9-1980 is justified ? If justified,

what relief, he is entitled to?

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

terms of money if, it can be so computed?

2. It is the case of the petitioner that the workman

one Chandrasekar has appointed as Fitter in the

respondent mill on 5-9-1980 and he has also

contributed the ESI and the management declared the

closure of the mill in the year 1984 and subsequently

reopened the factory in the year 1986 and provided

employment to some of the workers and retrenched

nearly 2000 workmen and the said Chandrasekar was

also given employment by the management but, failed

to provide continuity of service with effect from 1980

to 1989 and the management has refused to provide

continuity of service for the period of nine years and

that therefore, the petitioner has raised an individual

industrial dispute and issued notice against the

management on 17-7-2013 regarding the continuity of

service of the petitioner.

3. The management has filed a counter denying all

the allegations made against the management and has

stated that the said Chandrasekar was appointed as

Casual substitute with effect from June, 1986 and he

was initially for three months from 28-6-1986 and

thereafter, he was engaged again as Casual on

31-9-1986, after the completion of three months and

749

25 July 2017]

LA GAZETTE DE L’ETAT

that his employment was renewed as Casual Labour with

the gap of two or three days, sometimes one week

depending on the availability of work every time after

completion of three months and he was engaged as

Casual labour till 12-5-1989 and thereafter, he was

confirmed as regular substitute from 1-6-1989 as per

the order of the management, dated 26-6-1989 and

therefore, the date of appointment was considered as

1-6-1989 by the management similar to the other

workmen of the respondent mill and that the Casuals

are regularized as regular substitute depending on the

regular vacancies in the mill and he was regularized as

a substitute only on 1-6-1989.

4. On the side of the petitioner,

WW1 was

examined and Ex.W1 to Ex.W4 were marked. On the

side of the respondent, RWl was examined and Ex.R1

to Ex.R3 were marked.

5. The point for consideration is that whether the

dispute raised by Puduvai Mill Thozhilalar Sangam

against the respondent management over continuity of

service of the petitioner with effect from 5-9-1980 is

justified?

6. From the pleading of the claimant and the

respondent, it is clear that both the parties have

admitted that the petitioner was in service at the

respondent mill as a workman and has initially

appointed on 5-9-1980 and the mill was closed in the

year 1983 by the earlier management and it was

reopened in the year 1986 by the new management

under the Anglo French Textiles Limited (Acquisition

and Transfer of Textiles undertaking) Act, 1986 and

the petitioner was once again appointed in the year

1986 when it was reopened and the management was

refused to give regularization from 1980 to the

petitioner.

7. It is the case of the petitioner that he has served

as a workman from 1980 to 1984 and the respondent

factory has retrenched 2000 workmen including the

petitioner since, it was closed from 1984 to 1985 and

subsequently, he was once again appointed as a

workman when the respondent establishment was

reopened in the year 1986 and that therefore, he has

asked for the regularization from 1980 to 1989 and the

refusal of the management to regularize the petitioner

which is against the provisions laid down under the

11(1)

of

the Anglo

French

Textiles

Limited

(Acquisition and Transfer of Textiles undertaking)

Act, 1986.

8. On the other hand, the respondent has stated that

the petitioner was initially appointed on 5-9-1980 as

casual substitute labour and the mill was closed in the

year 1983 by the earlier management and it was

reopened in the year 1986 by the new management

under the Anglo French Textiles Limited (Acquisition

and Transfer of Textiles undertaking) Act, 1986 and

the petitioner was initially appointed for three months

from 28-6-1986 and he was engaged again as Casual

substitute on 31-9-1986 and after the completion of

three months and his employment was renewed as

casual substitute with the gap of two or three days

sometimes one week depending on the availability of

work every time after completion of three months and

he was engaged as Casual substitute labour till

12-5-1989 and the employment given to the petitioner

as Casual Labour did not give the right to hold the post

and the daily rated Casuals would be engaged only

based on needs and their engagements is on day to day

basis without any assurance for continuity of

employment and that therefore, it is to be decided

whether the petitioner has established that he was

working as a regular employee from 1980 or he was

working as Casual Labour from 1980 till 1-6-1989.

9. The respondent management has stated that the

petitioner workman was confirmed as regular

substitute only from 1-6-1989 by virtue of office

order, dated 26-6-1989 and he was engaged only as a

Casual substitute Labour till 12-5-1989 and his

employment was renewed as a Casual with the gap of

two or three days, sometimes one week depending on

the availability of the work every time after completion

of three months and the petitioner never worked as

regular substitute till the period of 12-5-1989.

10. On this aspect, the evidence of both the parties

and exhibits marked on their side are carefully

considered. The petitioner has exhibited the copy of

the ESI card as Ex.Wl which would evident that the

petitioner has entered into employment on 5-9-1980.

Ex.W2 is the National Trade Certificate issued by the

Government of India in favour of the petitioner. Ex.W3

is the letter given by the petitioner to the respondent

management asking the respondent management to add

the service period from 1980 to 1989 as a continuous

service and he has also exhibited the reference sent by

the Government to this Court as Ex.W4. While so, the

respondent has exhibited the copy of the petition given

by the union on 17-7-2013 to the Labour Officer as

Ex.Rl, the reply given by the management, dated

7-10-2013 as Ex.R2, the failure report of the

Conciliation as Ex.R3. These documents would go to

indicate that the petitioner was in service from 1980

and he was regularized only on 12-5-1989 and he was

asked for regularization for the period from 1980 to

1989 with the respondent management which was

refused by the management from 1980.

750

LA GAZETTE DE L’ETAT

[25 July 2017

11. On perusal of those documents, it can be noted

from Ex.W3 – the letter given by the petitioner to the

management that he was working from 1980 as a daily

rated employee initially for the wage of ` 5 per day

and subsequently at ` 8 per day and ` 10 per day and

he was permitted to work for a period of ninety days

and he has served upto 1½ years and subsequently, the

mill was closed for three years and it was reopened

after three years and he was given regularization only

from 1989. The evidence of the petitioner in his cross

examination runs as follows:





Casual substitute 

June

-











Casual

substitute card system





Casual

substitute









 Casual substitute

 Card

system





Regular

substitute



 Casual substitute

 Card system



Card system

 Regular substitute



 regular 



 Casual substituteRegular substitute

Regular service

Regular substitute



 Regular vacancy

 Casual substitute Regular

substitute

From the above evidence, it is clear that it was

admitted by the petitioner that the factory was closed

in the year 1983 by the earlier management and it was

reopened in the year 1986 by the new management and

it is also admitted by the petitioner that when the

factory was reopened in the year 1986, he has been

given employment as Casual substitute during June,

1986 and he has further admitted that while calculating

the period for regularization of service, the period of

casual substitute will not be considered and only the

period of regular substitute alone has been considered

by the management and therefore, from the evidence

of the petitioner, it is also clear that the management

has to considered in the regularization of employment,

the period of service as a Casual substitute will not be

counted and only the period of regular substitute can

be taken into consideration for regularization.

12. Section 11 (1) of the Anglo French Textiles

Limited (Acquisition and Transfer of Textiles undertaking)

Act, 1986 runs as follows :

“Where services of a person who is a workman

within the meaning of the Industrial Disputes Act,

1947, and who has been immediately before the

appointed day, employed in the textile undertaking,

are in the opinion of the Corporation necessary

having regard to the requirements of the units of the

Corporation formed as a result of reorganization and

reconstruction of the textile undertaking, he shall

become, from the date of his appointment by the

Corporation, an employee of the Corporation and

shall hold office or service in the Corporation with

the same rights and privileges as to pension, gratuity

and other matters as would have been admissible to

him if, the rights in relation to such textile

undertaking had not been transferred to, and vested

in the Corporation, and continue to do so unless and

until his employment in such Corporation is duly

terminated or until his remuneration and terms and

conditions of employment are duly altered by the

Corporation :

(a) the Government or the Corporation shall not

be liable to any person who has become an

employee of the Corporation under this sub-section

for payment of any gratuity or any arrears of wages

for the period commencing from the day on which

the textile undertaking in which he was employed

was closed and ending on the day on which he

becomes

an

employee

of

the

Corporation,

irrespective of whether such closure was in

accordance with the provisions of the Industrial

Disputes Act, 1947 (Central Act 14 of 1947) or not,

From the above observation, it is clear that the

workman who shall hold office or service in the

Corporation with the same rights and privileges as to

pension, gratuity and other matters as would have been

admissible to him if, the rights in relation to such

textile undertaking had not been transferred to, and

vested in the Corporation, and continue to do so unless

and until his employment in such Corporation is duly

terminated has not been transferred. But, in this case,

751

25 July 2017]

LA GAZETTE DE L’ETAT

the petitioner has been in service as a Casual Labour

from 1980 to 1983 and the textile mill was closed in

the year 1983 and subsequently, it was reopened in the

year 1986 and that there was break in service for three

years and furthermore, even after, the reopening of the

textile mill by the new management, he had been

appointed as Casual substitute and only in the year 1989,

he has been appointed as a Regular substitute and that

therefore, even prior to the closure of the textile and

after reopening of the textile mill, he had been in

service as a Casual substitute. As admitted by him in

the evidence, no Casual Labour would be given

regularization and that therefore, they sought for the

regularization after 24 years and furthermore, the

industrial dispute raised by the petitioner after 24

years is not maintainable and furthermore, being

worked as a Casual substitute, he has not entitled for

any order of regularization in the said period and

admittedly, he was posted as a Casual substitute only

in the year 1989, he cannot be granted regularization

for the period 1980 to 1989 since that there was a

break in service for three years and as a casual labour,

he has not entitled for any order of regularization as

prayed and that therefore, the petition is liable to be

dismissed.

13. In the result, the petition is dismissed. No cost.

Dictated to the Stenographer, transcribed by her,

corrected and pronounced by me in the Open Court on

this the 06th day of April, 2017.

G. THANENDRAN,

Presiding Officer,

Industrial Tribunal-cum-Labour Court,

Puducherry.

————

List of

petitioner’s witness:

WW1 — 19-2-2016 —

M. Chandrasekaran

List of petitioner’s exhibits:

Ex.Wl— Copy of the ESI Identity card of the

petitioner.

Ex.W2— Copy of Nation Trade Certificate issued

by the Government of India to the

petitioner.

Ex.W3— Copy of letter given by the petitioner to

the management.

Ex.W4— Copy

of

reference

sent

by

the

Government to this Tribunal.

List of

respondent’s witness:

RWl —25-1-2017 —

B. Pragatheeswaran

List of respondent’s exhibits:

Ex.Rl — Copy of the petition, dated 17-7-2013

submitted by Puduvai Mill Thozilalar

Sangam

to

the

Labour

Officer

(Conciliation), Puducherry.

Ex.R2— Copy

of

Reply,

dated

7-10-2013

submitted

by

the

respondent

management to the

Labour Officer

(Conciliation), Puducherry.

Ex.R3— Copy of the failure report, dated

11-3-2014 submitted by the Labour

Officer (Conciliation) to the Secretary

to Government (Labour), Puducherry.

G. THANENDRAN,

Presiding Officer,

Industrial Tribunal-cum-Labour Court,

Puducherry.







}|{

















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