La Gazette de L' État de Poudouchéry
The Gazette of Puducherry
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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 ]
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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 substituteRegular 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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