La Gazette de L' État de Poudouchéry
The Gazette of Puducherry
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29 {
No.
35
Poudouchéry
Mardi
29
Août
2017 (7 Bhadra 1939)
No.
Puducherry
Tuesday
29th
August
2017
SOMMAIRES
CONTENTS
Page
Page
.. 926
Sentence arbitral du travail
.. 926
Award of the Labour Court .. 926
de tribunal.
.. 930
Notifications du Gouvernement
.. 930
Government Notifications .. 930
.. 940
Avis d’Adjudications
.. 940
Tender notices
.. 940
.. 941
Etablissements dangereux
.. 941
Dangerous Establishments
.. 941
.. 942
Annonces
.. 942
Announcements
.. 942
[ 925 ]
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Dated : 29-8-2017
Price : ` 17-00
926
LA GAZETTE DE L’ETAT
[29 August 2017
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G. O. Rt. No. 114/Lab./AIL/T/2017,
Puducherry, dated 10th July 2017)
NOTIFICATION
Whereas, an Award in I.D (L) No. 18/2014, dated
30-5-2017 of the Labour Court, Puducherry in
respect of the
industrial
dispute between the
management of M/s. Sun Beam Generator Private
Limited, Puducherry and
Yoga S/o. Rangarajan,
Villupuram, 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 . M s . N o . 2 0 / 9 1 / L ab./ L , d a t e d
23-5-1991, it is hereby directed by the Secretary to
Government (Labour) that the said Award shall be
published in the Official Gazette, Puducherry.
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.
Tuesday, the 30th day of May 2017
I.D. (L) No. 18/2014
Yoga, S/o. Rangarajan,
Mariamman Koil Street,
Pallithennal, Sadiyandikuppam,
Villupuram District,
Tamil Nadu.
. . Petitioner
Versus
The Managing Director,
M/s. Sun Beam Generator
Private Limited,
Puducherry.
. . Respondent
This industrial dispute coming up before me for
final hearing on 2-5-2017 in the presence of
Tvl. R.T. Shankar, A. Ashok kumar and P. Suresh,
Counsel for the petitioner and Thiru R. Ilancheliyan,
Advocate 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.51/AIL/Lab./J/2014,
dated 18-3-2014 for adjudicating the following:-
(i) Whether the dispute raised by the petitioner
T hi r u R . Yo ga ag a i ns t t he ma n ag e men t o f
M/s. Sun Beam Generators Private Limited, Puducherry
over non-employment 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. The averments in the claim statement filed by
the petitioner, in brief, are as follows:
(i) The petitioner joined with the respondent
establishment on and from 3-4-2010 and he was
working very sincerely with full dedication after
one year the respondent management extended his
probation period without any valid reason. However
the petitioner performed his duties without any
blemish but, the respondent deliberately lengthens
his
permanent status and that the respondent
management were paid low wages and statutory
benefits were not extended to the employees, most
of the workers are placed as temporary workers
for a long period without making permanent and the
workers are
working beyond working hours
and also during holidays and hence, the employees
were formed one trade union in order to have
collective bargaining and to get their statutory
benefits, under such circumstances, the respondent
management has adopted unfair labour practices
against the office bearers as well as members of the
trade union to deprive the workmen of their
legitimate right created under the labour laws.
(ii) It is further stated that the respondent
management insisted and threatened the petitioner
to quit from the union and to give apology letter to
the management but, the petitioner did not accept the
same therefore, on 6-3-2012, the management
called the petitioner and stated orally that hereafter,
he has no work in the factory and further, the
management has sent a letter, dated 9-3-2012
stating that the petitioner accounts are settled and
amount payable was credited in his bank account.
(iii) It is further stated that the petitioner sent
a request letter on 10-3-2012 to the management
to provide the employment but, the respondent
management refused the same and that previously
927
29 August 2017]
LA GAZETTE DE L’ETAT
the petitioner was working in Shaney Pary Rhones
Company and has got very good experience and with
that experience he joined in this company and
served more than 2 years without any blemish but,
in order to escape from the clutches of law and to
wipe out the trade union from respondent concern
the respondent management adopted all sort of
unfair labour practice like transfer, suspend,
termination, etc., and that the petitioner union was
raised a dispute for job protection as against the
respondent management and the same was pending
before the Labour Officer (Conciliation), Puducherry
under such circumstances the respondent management
has no right or prima facie to terminate the
employees of the petitioner union including the
petitioner and therefore, such act of the respondent
management is a contravention of the provisions of
section 33 of the Industrial Dispute Act and
therefore, as per the provisions under section 33 of
the Industrial Dispute Act during the pendency of
the proceedings the respondent management has to
obtained previous permission from the concern
authority but, the respondent management has
adamantly violated the same in dismissing the
petitioner which is already disputed one.
(iv) It is further stated the petitioner, served
continuous employment for the period of 705 days
but, without any justice or reasons, the respondent
management sue motto and blindly terminated the
petitioner from service which is absolutely against the
labour laws as well as natural justice and therefore, the
said alleged impugned order of the respondent
management is liable to be set aside and prayed this
Court to direct the respondent to provide employment
to the petitioner with full back wages, continuity of
service and all other attendance benefits.
3. The brief averments of the reply statement
filed by the respondent are as follows :
(i) The respondent denied all the averments
made by the petitioner in the claim petition and
stated that the petitioner was appointed as Probationer
by an order, dated 3-9-2010 for a period of one year
with effect from 1-4-2010 and subsequently, the
petitioner happened to be a non-peformer and
therefore, the same was extended for further period
of one year and the petitioner was given due
opportunities to improve himself. However, he could
not reach the benchmark and therefore, as per the
terms of appointment his services were terminated by
an order, dated 6-3-2012 and whatever amount payable
to him was credited in his bank account.
(ii) It is further stated that the petitioner was
terminated for the non-performance and as a
probationer the petitioner can neither challenge his
termination nor claim employment as a matter of right
and the termination made by the management is a valid
termination and therefore, the petitioner is not entitled
for any re-employment, back wages or any other
benefits and prayed for dismissal of claim petition.
4. In the course of enquiry PW.1 and PW.2 was
examined and Ex.P1 to E.x.P11 were marked and on
the side of the respondent RW.1 was examined and
Ex.Rl to Ex.R5 were marked.
5. The point for consideration is:
Whether the petitioner is entitled for the order of
reinstatement with back wages, continuity of service
and all other attendant benefits or not ?
6. Both sides are heard. The submission of both the
parties, the evidence let in by either sides and the
exhibits marked on both sides are carefully considered.
The learned Counsel appearing for the petitioner argued
that the petitioner has not been given full opportunity
in the domestic enquiry and the domestic enquiry has
not been conducted properly by the following
principles of natural justice and in support of his
contention, the learned Counsel has relied upon the
Judgment reported in CDJ 2002 SC 195, Jaipur, Zila
Sahakari Bhoomi Vikas Bank Limited, Vs. Shri Rama
Gopal Sharma and Others. On the other hand, the
learned Counsel appearing for the respondent
management has filed a written argument and he has
also relied upon the following judgments:
* Jaya Raina Vs. Gujarat Livelihood Promotion
Company Limited, and Anr. (Gujarat HC 2015 LLR
193 and 194),
* Continental Construction Limited, Vs. Workmen of
Continental Construction Limited, (Karnataka HC
2013 LLJ 612),
* Hyderabad Industries Limited, Deoghar Vs. State
of Jharkand and Anr, (Jharkand HC 2010 LLR 40),
* Municipal Committee, Sirsa Vs. Munshi Ram [SCC (2)
2005 382],
928
LA GAZETTE DE L’ETAT
[29 August 2017
* Suresh Chand Jain Vs. Director-General and
Anr.(2015 Delhi HC),
* Paramjit
Singh
Jain
Vs.
Dirsctor,
Public
Instructions and Ors (2011 SCC LLR 116),
* Chaitanya Prakash and Anr. Vs. H. Omkarappa
(2010 SCC LLR 225),
7. From the pleadings of both the parties it is clear
that following facts are admitted by both sides that
petitioner was working at the respondent establishment
from 3-4-2010 and the respondent management has
instructed the petitioner that he has no work in their
factory under Ex.P1 - termination letter, dated 6-3-2012
and sent a letter on 9-3-2012 stating that the
petitioner accounts are settled and amount was
credited in the bank account and that he was in
service for about 2 years.
8. It is the case of the petitioner that the respondent
management insisted and threatened him to quit from
the union and to give apology letter to the management
and the petitioner did not accept the same and that
therefore, the respondent has orally instructed that he
has no work at the factory and even after his request
made to the management on 10-3-2012, he has not
been given employment and it is the further case of the
petitioner that the act of the respondent is a
contravention of the provisions of section 33 of the
Industrial Dispute Act. Since, the petitioner union has
raised the industrial dispute before the Conciliation
Officer and while the same was pending the respondent
management has refused to give employment to the
petitioner. In order to prove his case, the petitioner has
examined himself as PW.1 and he has stated all the
above facts in his evidence and in support of the case,
the petitioner has also examined Ramachandiran,
President of the Union as PW.2 and he has reiterated
the evidence of PW.1 and in support of the oral
evidence of PW.1 and PW.2 they have marked Ex.P1
to Ex.P11. The Ex.Pl - the termination letter issued by
the respondent management to the petitioner which
would reveal the fact that the respondent management
has given termination letter to the petitioner stating
that the petitioner was appointed as a probationer on
terms and conditions and after taking all the
considerations, his service was terminated from
immediate effect and for full and final settlement of
`14,883 was transferred to his bank account and other
documents would reveal the fact that he has made a
job request to the respondent management on 10-3-2012
and has raised industrial dispute on 4-9-2012 before
the
Conciliation
Officer
and
the
conciliation
proceedings were taken place and ended in failure for
which the failure report, dated 26-11-2013 was
submitted by the Labour Officer and the reference is
made to this Court and the trade union has been
registered in the year 2012 and some of the employees
were transferred on various dates.
9. On the other hand, it is contended by the
respondent management that the petitioner was
working as a probationer for the period of one year
and due to his non performance his probation period
was extended for further period of one year and the
petitioner was given due opportunities to improve
himself but, the petitioner could not improve him and
that therefore, as per the terms of appointment his
services were terminated by an order, dated 6-3-2012
and amount payable to him was credited in his bank
account and the petitioner was working only as
a probationer and his service has not been confirmed
and that therefore, he cannot claim the status of
permanent employee and his services were terminated
for non performance and as a probationer he cannot
challenge
the
termination
and
cannot
claim
employment as a matter of right and that the
respondent management has no any ulterior motive as
contended by the petitioner in terminating the services
of the petitioner
10. To prove its case, the respondent management
has examined one Sakthi, Assistant Manager - HR of
the respondent management as RW.1 and he has stated
in his evidence that the petitioner employee was
working only as a probationer and not a permanent
workmen and in support of their case the respondent
management has exhibited Ex.R1 to Ex.R5. The
appointment letter given by the respondent
management on 22-6-2009 to the petitioner was
exhibited as Ex.R1 which would reveal the fact that the
petitioner was appointed as a trainee with terms and
conditions that his service can be terminated during
the service without assigning any reason. The
Ex.R2 - the probationer order would reveal the fact
that the petitioner was appointed as a probationer
for a period of one year on 3-4-2010 with terms and
conditions that his service can be terminated during
the service without assigning any reason. The Ex.R3-
probationer period extension order would reveal the
fact that the probation period was further extended
for one year on the same condition that his service can
be terminated during the service without assigning any
929
29 August 2017]
LA GAZETTE DE L’ETAT
reason. The Ex.R4 - Probation termination order
would reveal the fact that on 6-3-2012 the probation
period was not extended and his service was terminated
with immediate effect by the company, one month
notice period. The Ex.R5 - Final settlement details
would reveal the fact that the amount of `14,883 was
settled.
11. From the evidence and exhibits marked on
the side of the respondent, it is clear that the
petitioner was working only as a probationer and
not a permanent employee and further the evidence of
PW.l in the cross-examination runs as follows:
“
probation period-
probation
probation period-
terminate
probation period-
”.
From the above evidence, it is also clear that the
petitioner was appointed as a probationer and he was
in service as a probationer at the time of termination
from the service and even in the claim petitioner, the
petitioner has not claimed himself as a permanent
workman and that therefore, it is established by the
respondent management that the petitioner was
working as a probationer and his service has not been
confirmed by the respondent management till his
termination on 6-3-2012 and that therefore, the
petitioner has no status of permanent workman.
12. The learned Counsel for the respondent relied
upon the Judgment reported in Hyderabad Industries
Limited, Deoghar Vs. State of Jharkand and Anr.
(Jharkand HC 2010 LL.R 40), wherein it has been
held that the probationer can be terminated due to
unsatisfactory performance of the probationer and
service of the probationer can be terminated or
dispensed with during or at the end of the probation
period without assigning any reason and the
probationer cannot acquire any right to hold or
continue to hold such a post during the period of
probation and that therefore, the probationer service
can be terminated at any time or the probation period
can be extended and that therefore, respondent has
established the fact that the petitioner was working
only as a probationer and he has been terminated for
the unsatisfactory performance and he is not entitled
for any order of reinstatement and that therefore, the
petitioner is not entitled for any order of reinstatement
as claimed by him.
13. Furthermore, the petitioner has contended that
he has been terminated while the industrial dispute was
pending. But, on perusal of records, it is established
by the respondent that he is only a probationer and not
having the status of permanent workmen and
furthermore, the records would also reveal the fact
that the petitioner has raised a dispute before the
Conciliation Officer only after the termination and
that therefore, section 33 of the Act would nut attract
and hence, the contention of the petitioner that the
respondent management has violated the provisions
under section 33 of the Act is also not sustainable and
hence, the petitioner is not entitled for any relief as
claimed by him and therefore, the industrial dispute
raised by the petitioner before the Conciliation Officer
over his non-employment is not justified and it is held
that he is not entitled for any relief of reinstatement
and for back wages as claimed by him and hence, the
petition is liable to be dismissed.
14. In the result, the petitioner dismissed. No cost.
Dictated to the stenographer transcribed by her,
corrected and pronounced by me in the open Court on
this the 30th day of May, 2017.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
————
List of petitioner’s witnesses:
PW.1
17-02-2015
R.Yoga
PW.2
06-11-2015
Ramachandiran
List of petitioner’s exhibits:
Ex.P1
06-03-2012
Copy of the termination letter
issued by the respondent
management to the petitioner.
Ex.P2
10-03-2012
Copy of the job request sent
by the petitioner to the
respondent management and
its acknowledgment card.
Ex.P3
04.09.2012
Copy of the dispute raised by
the
petitioner
before
the
Labour Officer (Conciliation),
Puducherry.
930
LA GAZETTE DE L’ETAT
[29 August 2017
Ex.P4
24.09.2012
Call
letter
sent
by
the
Conciliation Officer, Puducherry
to the petitioner.
Ex.P5
23-11-2012
Copy of the reply letter
submitted by the petitioner to
the Labour Officer, Puducherry.
Ex.P6
26-11-2013
Failure report sub mitted
b y t h e L a b o u r
Of f i c e r
(Conciliation), Puducherry.
Ex.P7
18-03-2014
Notification issued b y t h e
Government of Puducherry.
Ex.P8
26-01-2012
Copy of the minutes of the
meeting.
Ex.P9
01-02-2012
Copy of the Trade Union
Registration
Application
submitted before the register
of Trade union, Puducherry.
Ex.P10 27-02-2012
Copy of the intimation letter
submitted by the petitioner
union
to
the
respondent
management.
Ex.P11 Various dates
Copy of the transfer order,
suspended order, dismissal
order
issued
by
the
respondent management.
List of respondent’s witness:
RW.1
15-02-2016
R.Sakthi
List of respondent’s Exhibits:
Ex.R1
22-06-2009
Copy of the training period
extension-cum-revision of
salary order given by the
respondent management.
Ex.R2
03-04-2010
Copy
of
the
probationer
order- cum-revision of wages.
Ex.R3
29-04-2011
Copy of the probationer order
cum revision of wages.
Ex.R4
06-03-2012
Co p y o f th e
p ro b a ti o n
termination order.
Ex.R5
06-03-2012
Copy of the final settlement
details.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
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