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SOMMAIRES
CONTENTS
Page
Page
.. 1102
Sentence arbitral du travail
.. 1102
Award of the Labour Court .. 1102
de tribunal.
.. 1114
Notifications du Gouvernement .. 1114
Government Notifications .. 1114
.. 1117
Avis d’Adjudications
.. 1117
Tender notices
.. 1117
.. 1119
Etablissements dangereux
.. 1119
Dangerous Establishments
.. 1119
.. 1122
Annonces
.. 1122
Announcements
.. 1122
[ 1101 ]
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No.
41
Poudouchéry
Mardi
10
Octobre
2017 (18 Asvina 1939)
No.
Puducherry
Tuesday
10th
October
2017
1102
LA GAZETTE DE L’ETAT
[10 October 2017
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G. O. Rt. No. 132/Lab./AIL/T/2017,
Puducherry, dated 21st August 2017)
NOTIFICATION
Whereas, an Award in I.D (L) No. 36/1999,
dated 30-6-2017 of the Labour Court, Puducherry in
respect of the industrial dispute between the management
of M/s. Curio Centre, Puducherry and the Secretary,
Curio Centre Worker’s Union, Mudaliarpet, Puducherry
over reinstatement of 32 workers 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 the Secretary to Government
(Labour) that the said Award shall be published in the
Official Gazette, Puducherry.
(By order)
A. RAJARATHINAM,
Under Secretary to Government (Labour).
————
BEFORE THE INDUSTRIAL TRIBUNAL -CUM-
LABOUR COURT AT PUDUCHERRY
Present :Thiru G. THANENDRAN, B.COM., M.L.,
Presiding Officer.
Friday, the 30th day of June 2017.
I.D. (L) No. 36/1999
Secretary,
Curio Centre Workers’ Union,
Bharathi Mill Thittu,
Mudaliarpet, Puducherry.
. . Petitioner
Versus
The Manager,
Curio Centre,
No. 26, Romain Rolland Street,
Puducherry.
. . Respondent
This industrial dispute coming up before me for
final hearing on 14-6-2017 in the presence of
Thiru R.T. Shankar, Counsel for the petitioner,
Thiru P. Rabindran, 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. l40/99/LAB/L/1999,
dated 2-11-1999 for adjudicating the following:-
(i) Whether the demand of the Curio Centre
Workers' Union that the workers mentioned
hereunder should be reinstated by the management
of Curio Centre, Pondicherry is justified? If so, to
give appropriate directions.
Thiruvalargal:
(1)
R. Damodaran
(2)
Sakthisivam
(3)
A. Elumalai
(4)
Desingu
(5)
Murugesan
(6)
Manimaran
(7)
Tamil Selvan
(8)
Karunagaran
(9)
Manivannan
(10)
B. Velmurugan
(11)
Dhandapani
(12)
Ariputhri
(13)
D. Baskar
(14)
N. Baskar
(15)
Suresh
(16)
Raja
(17)
Murugan
(18)
Palani
(19)
Arulprakasam
(20)
Sankar
(21)
Mani
(22)
Kumaran
(23)
A. Xavier
(24)
T. Mohan
(25)
Sandanaraj
(26)
Anbazhagan
(27)
Elangovan
(28)
Ramamurthy
(29)
Vinayagam
(30)
Anand
(31)
Raji
(32)
Raja
1103
10 October 2017]
LA GAZETTE DE L’ETAT
(ii) To compute the relief if any, awarded in
terms of money if, it can be so computed?
2. In this case, already the enquiry was conducted
by this Tribunal and no oral evidence was let in by
either sides and however on the side of the petitioner
Ex.Al to Ex.A22 were marked on consent and on the
side of the respondent Ex.Rl to Ex.27 were marked on
consent and after the enquiry and hearing the argument
of both sides, an Award has been passed by this
Tribunal on 5-3-2003 in favour of the petitioner
union against which the respondent management has
filed a Writ petition in W.P.M.P. No. 26423 of 2004
and W.V.M.P.No. l027 of 2005 and the Hon’ble High
Court as pleased to set aside the order of this Court
and remanded this case to this Tribunal reconsider the
claim of the workmen afresh as per law and with
instruction to the petitioner to let in oral evidence and
if, there is no documentary evidence or documentary
evidence is insufficient, since no oral evidence was
adduced on behalf of the petitioner as well as the
respondent on the earlier enquiry conducted before
this Court.
3. As per the order of the Hon’ble High Court, the
case has been remanded back to this Tribunal and
additional claim statement was filed by the petitioner
with the permission of this Court for which additional
counter was filed by the respondent management and
posted for taking evidence of both sides, on the side
of the petitioner PW.1 and PW.2 were examined and
Ex.Al to A59 were marked and on the side of the
respondent RW.l was examined and Ex.B28 to Ex.B54
were marked.
4. The point for consideration is-
whether the dispute raised by the petitioner union
against the respondent management over their
non-employment is justified or not and whether the
petitioners are entitled for the relief as claimed by them?
5. Both side arguments were heard. The submission
of both the parties, the claim statement and additional
claim filed by the petitioner and the counter statement
and additional counter statement filed by the
respondent, the evidence let in by either sides and the
exhibits marked on both sides are carefully considered.
The learned Counsel for the petitioner has filed the
written argument and in support of his case the learned
Counsel for the petitioner has relied upon the
judgment in Civil Appeal No. 2585/2006 wherein, the
Hon’ble Supreme Court has observed that,
“.......in the present case that is not the question
at all. Here the finding of fact of the Labour Court
is that the respondents were not the contractor’s
employees but, were the employees of the appellant.
The SAIL judgment (Supra) applies were the
employees were initially employees of the
contractor and later claim to be absorbed in the
service of the principal employer. That judgment
was considerating the effect of the notification
under section 10 of the Act. That is not the case
here. Hence, that decision is clearly distinguishable.”
The learned Counsel for the respondent has filed the
written argument and in support of his case the learned
Counsel for the respondent also has relied upon the
following judgments:
(i) AIR 2004 SC 1639 wherein, the Hon'ble
Supreme Court of India has observed that,
“.......It is a well-settled principle of law that the
person who sets up a plea of existence of
relationship of employer and employee, the burden
would be upon him.
(ii) In N.C. John Vs Secretary, Thodupuzha Taluk
Shop and Commercial Establishment Workers’
Union and others (1973 Lab IC 398), wherein, the
Kerala High Court held that,
“the burden of proof being on the workmen to
establish the employer-employee relationship an
adverse inference cannot be drawn against the
employer that if, he were to produce books of
accounts they would have proved employer-
employee relationship.”
(iii) In Swapan Das Gupta and others Vs The First
Labour Court of West Bengal and others (1976 Lab
IC 202) it has been held:
“where a person asserts that he was a workman
of the Company, and it is denied by the Company,
it is for him to prove the fact. It is not for the
Company to prove that he was not an employee of
the Company but of some other person..........The
question whether the relationship between the
parties is one of the employer and employee is a
pure question of fact and ordinarily the High Court
while exercising its power of judicial review
shall not interfere therewith unless the finding is
manifestly or obviously erroneous or perverse.”
“.............having regard to the aforementioned
findings, we are of the opinion, the High Court has
rightly affirmed the Award of the Industrial Tribunal.
The Tribunal as also the High Court further rightly
arrived at a finding to the effect that the concerned
workmen were not able to discharge their burden of
proof that they were employed by the Society.”
1104
LA GAZETTE DE L’ETAT
[10 October 2017
(iv) In Gopa Vs. Bharat Sanchar Nigam Limited,
on 3-7-2014, wherein, the Hon'ble Delhi High Court
has observed that,
“..........the first question which arises for
consideration is whether there was employer-
employee relationship between the appellant and the
respondent? The appellant claims to have joined the
respondent in July 1994 at the post of the Guard but
has no proof of appointment such, as appointment
letter, salary slip, etc. The respondent disclosed in
its written statement that BSNL was not even
created in 1994. Despite that the appellant disposed
in his evidence by way of affidavit that he joined
in July 1994 which is not possible. However, in
cross-examination, the appellant stated that he
joined in 1996. The appellant has also not given the
particulars of the places of posting from 1994
to 2002. The respondent being a Government
Corporation cannot appoint any person without
issuing proper appointment letters and cannot make
payments without a salary slip. We, therefore, hold
that there was no employer-employee relationship
between the appellants and the respondent.”
(v) In AIR 2005 SC 2179, wherein, the Hon'ble
Supreme Court of India has observed that,
“........the initial burden of proof was on the
workmen to show that they had completed 240 days of
service”.
“..........in Range Forest Officer Vs. S.T. Hadimani
(2002) 3 SCC 25, It was stated ...... in our opinion the
Tribunal was not right in placing the onus on the
management without first determining on the basis of
cogent evidence that the respondent had worked for
more than 240 days in the year preceding his
termination. It was the case of the claimant that he had
so worked but, this claim was denied by the appellant.
It was then for the claimant to lead evidence to show
that he had in fact worked for 240 days in the year
preceding his termination. Filing of an affidavit is only
his own statement in his favour and that cannot be
regarded as sufficient evidence for any Court or
Tribunal to come to the conclusion that a workman had,
in fact, worked for 240 days in a year. No proof of
receipt of salary or wages for 240 days or order of
record of appointment or engagement for this period
was produced by the workman. On this ground alone,
the Award is liable to be set aside.”
(vi) In 2002(2) Supreme 58, wherein, the Hon’ble
Supreme Court of India has observed that
“.......in our opinion the Tribunal was not right in
placing the onus on the Management without first
determining on the basis of cogent evidence that the
respondent had worked for more than 240 days in
the year preceding his termination. It was the case
of the claimant that he had so worked but, this claim
was denied by the appellant. It was then for the
claimant to lead evidence to show that he had in fact
worked for 240 days in the year preceding his
termination. Filling of an affidavit is only his own
statement in his favour anf that cannot be regarded
as sufficient evidence for any Court or Tribunal to
come to the conclusion that a workman had, in fact,
worked for 240 days in a year. No proff of receipt
of salary or wages for 240 days or order or record
of appointment or engagement for this period was
produced by the workman. On this ground along, the
Award is liable to be set aside.”
6. It is learnt from the records that this case has
been disposed by this Tribunal on 5-3-2003 and an
Award has been passed in favour of the petitioner and
against which the Writ application has been filed by
the respondent management before the Hon’ble High
Court in which the Award passed by this Tribunal
on 5-3-2003 was set aside and the case has been
remanded back before this Court for disposal by taking
evidence of both parties afresh.
7. It is the case of the petitioner union that the
respondent management is engaged in the business of
buying and selling the wooden articles by renovating
the old articles and has engaged in various places such
as at Door No.27, Kamaraj Salai, 33rd Cross street at
Rainbow Nagar, Door No.9, 8th Cross, Rainbow Nagar
and also at Pappanchavady. The workers engaged by
the respondent were more than 100. They formed a
trade union vnder the name and style of Curio Centre
Workers Union and applied for registration. Sensing
the formation of the trade union, the workers who were
working at Door No.27, Kamaraj Salai were made to
face non-employment and hence, the petitioner have
raised the industrial dispute before the Conciliation
Officer on 3-6-1996 by sending a telegram and on the
intervention of the Conciliation Officer the unit which
was closed was reopened with effect from 11-3-1996
and the Secretary of the trade union Damodaran was
not given re-employment and other workers, the
petition mentioned employees were also not given
re-employment and they have been orally terminated
and the act of the respondent management is in
violation of the section 33(l)(a)(b) of the Industrial
1105
10 October 2017]
LA GAZETTE DE L’ETAT
Disputes Act and that they have been terminated from
the service while the industrial dispute was pending
before the Conciliation Officer which is a clear
violation of provisions of the Industrial Disputes Act
and it is the further case of the petitioner that the
respondent management has denied them as workers of
the respondent establishment and that the trade union,
was properly registered oefore the registration of
trade union and that therefore, they have sought
for the order of reinstatement of the workers and
in support of the contention, the petitioner have
marked Ex.Al to Ex.A59.
8. On perusal of documents exhibited by the
petitioner, Ex.Al is the copy of the telegram sent by
the petitioner trade union to the Labour Officer
(Conciliation) with the telegraphic receipt. Ex.A2 is
copy of the notice of enquiry of the Labour Officer
(Conciliation) to the petitioner trade union. Ex.A3
is the copy of the representations of the workers
namely, R. Velmurugan, S. Natarajan and K. Ramadoss
for reinstatement in service to the respondent. Ex.A4
is the copy of the respresentation of the petitioner
trade union to the respondent. Ex.A5 is the copy of the
failure report of the Labour Officer (Conciliation).
Ex.A6 is the copy of the enquiry proceedings. Ex.A7
is the copy of notification. The above Exs.Al to A7
would reveal the fact that there was some industrial
dispute raised by the petitioner union before the
Conciliation Officer and the union has made some
representations before the respondent management for
their reinstatement and the trade union has made
some demand with the respondent and the fact that the
conciliation was failed after due enquiry and
subsequently the reference has been made to this
Court. Further, Ex.A8 is the copy of the advertisement
published in the Daily Thanthi given by the respondent
Calling for applications from carpenters and carpenter
helpers. Ex.A9 is the copy of the Article published in
Dina Malar Daily, regarding the arrest of the
petitioners along with the union leaders. Ex.A10 is the
copy of the Form-A application for registration of
trade union. Ex.All is the copy of Certificate of
registration of the petitioner trade union. Ex.Al2 is the
copy of the letter of the petitioner trade union
informing elected Office Bearers to the respondent
management. Ex.A13 is the copy of the letter of the
petitioner trade union to the respondent. The Exs.A8
to A13 would go to show that the said trade union
was registered under the Trade union Act and it was
informed by the trade union regarding the elected
Office Bearers to the respondent management and that
there was an advertisement in Dina Thanthi
Newspaper calling applications from the carpenters
and helpers. Further, Ex.A14 is the copy of the three
nos. of letters and three nos. of covers addressed to
certain employees by the respondent management.
Ex.Al5 to Ex.A21 are the copy of the Interview card
sent to the workers P. Balaramanan, A. Asokan
S. Aridass on 27-6-1996 and to N. Krishnan and to
A. Asokan on 11-12-1997 and to K. Purushothaman
on 4-12-1997 and to A. Asokan on 23-12-1997 by the
respondent. Ex.A22 is the copy of the p ositive
print photograph of M/s. Sree Saiji Exports Private
Limited. Ex.A23 is the copy of the letter issued by
the respondent. Ex.A24 is the copy of the letter issued
by the Labour Department. Ex.A25 is the copy of the
resolution passed by the General Body meeting.
Ex.A26 is the copy of the Annual returns for the year-
2014. Ex.A27 is the copy of the Annual returns for the
year-2015. Ex.A28 is the current letter head for the
petitioner trade union. Ex.A29 is the copy of
Registration Certificate of Petitioner trade union.
Ex.A30 is the copy of Affiliation Certificate of the
petitioner trade union. Ex.A31to Ex.A41 are the copy
of Aadhar Card of Sakthisivam, Elumalai, Desingu @
Arumugam, Velankanni @ Manimaran, Tamilselvan,
Karunakaran, Manivannan, Murugan @ Velmurugan,
Dhandapani, Ariputhiri, D. Baskar respectively, Ex.A43
to Ex.A47 are the copy of Aadhar card of Suresh, Raja,
Murugan,
Palani
@
Pazanivel,
Arulprakasam
respectively, Ex.A50 to Ex.A52 are the copy of Aadhaar
carcl of Kumaran, Xavier @ Francis Xavier and Mohan
respectively, Ex,A54 to Ex.A59 are the copy of Aadhaar
Card
of Anbazhagan,
Elangovan
@
Elango,
Ramamurthy, Vinayagam, Raji @ Susaimaryanathan,
Raja @ Krishnan respectively. Ex.A42 is the copy of
Voter Identity Card of Baskar @ Sukumaran. Ex.A48
is the copy of Voter Identity Card of Sankar @
Ravichandran. Ex.A49 is the copy of Voter Identity
Card of Mani @ Dhandapani. Ex.A53 is the copy of
Voter Identity Card of Sandanaraj. The Ex.A3l to
Ex.A59 is the copies of the Aadhaar Card and Voter
Identity Card of the reference mentioned workers.
9. It is the case of the respondent management that
they have not engaged any workers directly for
furniture works and the said work was done through the
labour contractors and the reference mentioned
workers are not the workers of the respondent
establishment. The one of the worker Vairakannu
referred in the claim petition is not a workman in the
respondent establishment but, he is a workman in
M/s. Shree Saiji Exports Private Limited, a sister
concern of the respondent management and the said
Vairakannu has raised an another industrial dispute
1106
LA GAZETTE DE L’ETAT
[10 October 2017
which was pending in I.D.No.11/2001 separately and
the respondent establishment is only a proprietary
concern and the sister concern M/s. Shree Saiji
Exports Private Limited is a private limited company
in which the sons of the Proprietor of the
respondent establishment are the Directors and the
respondent management has not committed any
violation under section 33(l)(a) of the Industrial
Disputes Act and the workmen are not the employees
of the respondent establishment and that they have not
committed any unfair labour practice as alleged by
the petitioner union and it is the further
contention of the respondent that the workers involved
in the dispute were not the workers of the respondent
Curio Centre and they were strangers and the
respondent management has used to be entrusted to a
worker on job-work basis and that there is no master
and servant relationship between the respondent and
the members of the petitioner union and that therefore,
the dispute raised for the non-employment by the
members of the petitioner union is not sustainable and
that the members of the union gave strike notice
and also threatened the conduct of the business by
the respondent and hence, a suit in O.S.No. 1677/
1996 was filed before the IADM Court against one
Damodaran and 6 others, the union office bearers for
permanent injunction and that there is no truth
that the respondent has terminated the service of
Damodaran on 10-3-1996 and he is also not the
employee of the respondent and this respondent has
even contended in the conciliation proceedings that
the petitioners were not the workers of the respondent
establishment Curio Centre and that therefore, since
the members of the union were not the workers of the
respondent establishment and there is no
employer-employee relationship between them and
there is no termination of their service by the
respondent management at any time and that therefore,
the application is liable to be dismissed and in support
of the contention the respondent have marked Ex.Bl to
to B54.
10. On perusal of documents exhibited by the
respondent, Ex.Bl is the copy of the register of
Employment relating to the respondent organization.
Ex.B2 is the copy of the attendance of the respondent
firm. Ex.B3 is the copy of the Registration Certificate
or renewal thereof relating to respondent firm with
the
Labour
officer(Enforcement),
Pondicherry.
Ex.B4 is the copy of the certificate of registration
with the Central Sales Tax Office. Ex.B5 is the copy
of the Certificate of Registration in form-Dl issued by
the Deputy Commercial Tax Officer, Pondicherry.
From Exs. Bl to B5, it is learnt to this Court that in
the respondent management only three persons were
working and they have maintained attendance register
and their business was registered under State and
Central Sales Taxes and their licence were renewed
then and there with the Labour Enforcement Officer.
Further, Ex.B6 is the copy of the complaint given by
the respondent before the D’Nagar Police Station,
Pondicherry. Ex.B7 is the copy of the complaint given
by the respondent before the Odiansalai Police
Station, Pondicherry. Ex.B8 is the copy of the letter
given by the petitioner trade union to the respondent
seeking reinstatement to service. Ex.B9 is the copy
of complaint given by the respondent management
to the Superintendent of Police (North). Ex.Bl0 is
the copy of the complaint given by the respondent
before the Grand Bazaar Police Station, Pondicherry.
The Exs.B6 to 10 would reveal the fact that there was
some complaint made by the respondent management
against some of the members of the union that they are
causing nuisance to them. Further Ex.Bll is the copy
of the letter given by the respondent management to
the Labour Officer (Conciliation). Ex.B12 is the copy
of the letter given by the respondent management to
the Labour Officer (conciliation). Ex.B13 is the copy
of the failure report. Ex.B14 is the copy of the plaint
filed by the respondent management before the IADM
Court, Pondicherry in O.S. No. 1677/1996. Ex.B15
is the copy of the certificate of Incorporation of the
company Shree Saiji Exports Private Limited with the
Registrar of Companies, Pondicherry. Ex.B16 is the
copy of the Permanent Registration Certificate
issued by the Industries Department Pondicherry in
favour of Shree Saiji Exports Private Limited Ex.B17
is the copy of certificate issued by the Industries
Department, Government of Pondicherry in favour of
Shree Saiji Exports Private Limited, Ex.Bl8 is the
copy of Form-I issued by the Pondicherry Municipality
of Shree Saiji Exports Private Limited, Ex.B19 is the
copy of Certificate of Registration in Form-B by the
commercial Tax Office in favour of Shree Saiji Exports
Private Limited, Ex.B20 is the copy of certificate of
registration in Form-Dl by the Commercial Tax Office
in favour of Shree Saiji Exports Private Limited,
Ex.B21 is the copy of the register showing the
members of the ESI of the respondent firm. Ex.B22
is the copy of the register of wages of the respondent
firm from December, 1995 to November, 1996.
Ex.B23 is the copy of the work order issued by the
respondent to one R. Lakshmanan. Ex.B24 is the copy
of the work order issued by the respondent to one
1107
10 October 2017]
LA GAZETTE DE L’ETAT
R. Lakshmanan. Ex.B25 is the copy of the work order
issued by the respondent to one Durai. Ex.B26 is the
copy of the work order issued by the respondent to
one Pitchai. Ex.B27 is the copy of the work order
issued by the respondent to one Durai. Ex.B28 is the
copy of the Award in I.D.No.11/2001.
Ex.B29 is the
copy of the Judgment in O.S. No.23/2007, Ex.B30 is
the copy of the Decree in O.S. No. 23/2007. Ex.B31
is the copy of letter to Registrar of Trade Union.
Ex.B32 is the copy of Register of Wages. Ex.B33 to
Ex.B37 is the copy of work orders on various dates.
Ex.B38 to Ex.B54 is the copy of work orders from
the year 2000 to 2016. Among the above documents,
Ex.B28 is the vital document which is the copy of
an Award passed in I.D. No. 11/2001 by this Tribunal
which would reveal the fact that while this union has
raised the industrial dispute before the Conciliation
Officer, one Vairakannu has also raised the industrial
dispute before the Conciliation Officer and the
reference was made
by the Government to this
Tribunal in I.D. No. 11/2001 and after the enquiry the
same was dismissed by this Tribunal that the said
Vairakannu has not established the employee-employer
relationship against the respondent management and
furthermore, Ex.B29 is also a vital document-copy
of the Judgment in O.S.No. 23/2007 and Ex.B30 is
the copy of the decree of the said suit which would
evident that the Court has granted permanent
injunction against the Secretary of the union
restraining them from causing nuisance to the
respondent establishment by conducting picketing and
demonstration in the premises of the respondent
establishment.
11. The main contention of the petitioner union is
that they were working at the respondent establishment
as carpenters and their employment was orally
terminated by the respondent management since they
have formed a trade union in the name of Curio Centre
Workers’ Union. On the other hand, it is the main
contention of the respondent that the members of
the petitioner union are not the workers of the
respondent establishment and that there is no
employee-employer
relationship
between
the
petitioner and the respondent management and that they
have one sister concern in the name of M/s. Sree Saiji
Exports Private Limited and they have done their work
through the labour contractors and the respondent
management is only the proprietary concern and the
Directors of the M/s. Sree Saiji Exports Private
Limited are the sons of the proprietor of the
respondent establishment and the contract between the
respondent establishment and the said Sree Saiji
Exports Private Limited is sham and nominal.
12. On perusal of the records, it is learnt to this
Court that even prior to the conciliation proceedings
several complaints were lodged to the police and the
Suit was filed before the IADM Court which would go
to show that from the beginning of the industrial
dispute raised by the petitioner even before the
conciliation proceedings it is stated by the respondent
management that these petitioners are the strangers
and they have not engaged these petitioners in their
establishment as workers. To establish their case the
petitioners though have exhibited Ex.Al to Ex.A59 they
have not filed their appointment orders or salary slips
or EPF slips or Identity Cards issued by the
respondent management to the petitioners or any other
communication
made
between
the
respondent
establishment and the petitioner proving the fact that
they were working at the respondent management at
any point of time or any documents to prove that the
petitioners have been in service of the respondent
management. But it is established by them that they
have formed a trade union and registered the same and
that they have raised the industrial dispute before the
Conciliation Officer and the conciliation was failed
and on the recommendation of the Conciliation Officer
the reference has been made by the Government to this
Tribunal and it is also established by the petitioners
that they have conducted several agitations and
“tharnas” against the respondent management for their
non-employment but, the documents filed by the
petitioners do not evident that the petitioners were in
service at the respondent establishment.
13. However, the petitioners have exhibited Ex.A14
which runs as follows :
“Sir, Greetings, we are sending our carpenter
Damodaran to you as you wished with regards”
The above content of the letter reveals the fact that
the respondent management has sent a letter to one of
their customer stating that they are sending one
Damodaran, their carpenter to do some work as the
wishes of the customer. Ex.A15 to Ex.A21 are the
postal cards which would evident that the postal cards
has been addressed to 1. P. Balaraman, 2. A. Asokan,
3. S. Aridass, 4. N. Krishnan, 5. K. Purushothaman by
M/s. Sree Saiji Exports Private Limited asking them
to appear in a place on various dates for an interview
as they have applied. These documents would evident
that those persons were asked to appear for an
interview by M/s. Sree Saiji Exports Private Limited
and Sai Restoring Centre. But, these documents would
not evident that the petitioner union members were
1108
LA GAZETTE DE L’ETAT
[10 October 2017
working at the respondent establishment of Curio
Centre and further it is learnt from Ex.A15 to Ex.A21
that the abovesaid persons are not the reference
mentioned employee of the respondent establishment
since this industrial dispute was raised even long prior
to the said interview and hence, it is clear that Ex.A15
to Ex.A21 is not in any way related to the reference
mentioned employees and therefore, these documents
are not connecting the reference mentioned workers
with the respondent management. Further, Ex.A22 is
the photograph of M/s. Sree Saiji Exports Private
Limited, Ex.A23 is the copy of the letter issued by the
respondent management which is copy of Ex.A14.
The other documents Ex.A31 to Ex. A59 are the copy
of Aadhaar Card and Voter Identity Card of the
reference mentioned workers. But, these documents
would not prove the fact that the petitioners were
working at the respondent establishment.
14. Except Ex.A14 - letter, nothing is before this
Court that the reference mentioned petitioner union
members were working at the respondent management
and Ex.Al4 also does not reveal the fact that except the
said Damodaran, others were working at the
respondent management and furthermore, though the
said Damodaran was mentioned as their carpenter that
alone is not sufficient to prove that he was working at
the respondent Curio Centre and hence, it is clear that
the petitioners have totally failed to establish their
claim that the petitioner union members were working
at the respondent establishment for about two years
as claimed by them and furthermore except the name
of Damodaran no other document is exhibited before
this Court by the petitioner union members that they
have been in service at the respondent establishment
at any point of time and further even in the claim
petition they have failed to state what is the date of
their appointment of each and every one and when each
and every one have been terminated. No piece of
evidence is before this Court to decide that these 32
workers were working at the respondent establishment
as stated by them. Further, the evidence of PW.1 in his
cross examination runs as follows :
“
Ultra marine company-
boat
Ex.W23
Ex.A23-Damodharan carpenter-
Ex.W23
Ex.W23-
Ex.B10
Grand
Bazaar Police Station-complaint
Odiansalai
complaint
ESI,
PF
Writ petition 21081/
2004
Writ petition 21081/2004
Ex.W15 to W21
Ex.W15
to
W21
”
From the above evidence of PW.l, it is also clear
that on the side of the petitioner no documents have
been exhibited to prove the fact that they were the
workers of the respondent establishment and it is also
learnt from above evidence that the respondent
management has contended that the union members of
the petitioner union are not the workers of the
respondent management.
15. Further, the evidence of PW.2 in his cross
examination runs as follows:
“
1109
10 October 2017]
LA GAZETTE DE L’ETAT
”
From the above evidence, it is clear that the
reference mentioned workers have not been, given any
appointment order and they have not filed any
documents to prove the fact that they had been
working at the respondent establishment.
16. The respondent management has stated that one
Vairakannu was the worker of the Sree Saiji Exports
Private Limited, the sister concern of the respondent
management, has raised the industrial dispute before
the conciliation which was referred to this Court and
the enquiry was conducted in I. D.No. 11/2001 in which
this Tribunal has decided that the said Vairakannu has
failed to establish that he was an employee of the
respondent management Curio Centre and hence, his
claim petition was dismissed by this Tribunal and the
said dismissal order was exhibited as Ex.B28 before
this Tribunal which would reveal the fact that after the
enquiry this Tribunal has decided that the said
Vairakannu who has raised the industrial dispute
before the conciliation at the same time of
industrial dispute raised by the petition mentioned
employees, as the employee of the respondent
establishment in the year 1996 seeking an order of
reinstatement with backwages was dismissed by this
Court. Furthermore the respondent management have
accepted that they have one sister concern as Sree Saiji
Exports Private Limited who alleged to have done the
work of the respondent management as a
contract. These petitioner union members even
failed to establish that they have been served at the said
Sree Saiji Exports Private Limited as a workers and no
document is exhibited before this court that they had
been in service at the said Sree Saiji Exports Private
Limited as a contractual workers to do the work of the
respondent establishment and no document is exhibited
that these reference mentioned workers were working
at the said Sree Saiji Exports Private Limited and
furthermore, since the petitioner have not filed any
document for their date of employment and the salary
particulars and other particulars whether they were
working as permanent worker or temporary or casual
and they have also failed to even prove the fact
that they have served at the respondent
management and worked as a workmen for about 240
days in the year preceding their termination to infer
that they are the permanent workers of the respondent
management and therefore the petitioner union has
totally failed to establish that the reference mentioned
members of the petitioner union are the workers of the
respondent management as well as the sister concern
of the respondent.
17. Furthermore, the learned counsel for the
petitioner pointed out that the respondent has utilized
the said M/s. Sree Saiji Exports Private Limited for
getting work of the employees as the contractual
labours and the said contract is sham and nominal and
that therefore, as the respondent establishment is
the principal employer, the respondent management
is liable to give employment to the members of the
petitioner union. On this aspect the documents and
evidence are perused which would go to show that
absolutely there is no piece of evidence that the
members of the petitioner union were in service also
at the said Sree Saiji Exports Private Limited and
hence, the plea of the petitioners that the contract
between the respondent establishment and the said
Sree Saiji Exports Private Limited is sham and nominal
is not sustainable. On the other hand, it is established
by the respondent that only three persons were
employed at their concern by filing their attendance
registers and registers mentioned under the ESI Act and
that therefore, the petitioner union has failed to
establish their case that they have been terminated
from service while they were in employment at
the respondent establishment and hence, it is just and
necessary to hold that the industrial dispute raised by
the petitioner union before the Conciliation Officer
over the non-employment is to be declared as
unjustified and no relief can be granted to the
petitioner union and hence, the claim petition filed by
the petitioner union is liable to be dismissed.
1110
LA GAZETTE DE L’ETAT
[10 October 2017
18. In the result, the industrial dispute raised by the
petitioner union is dismissed. No cost.
Dictated to the stenographer, transcribed by her;
corrected and pronounced by me in the open court on
this 30th day of June 2017.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
————
List of pettitioner’s witnessess:
PW.1
— 17-03-2016— R. Damodaran
PW.2
— 22-03-2017 —R. Manivannan
List of pettitioner’s exhibits:
Ex.A1 — 03-06-1996 —Copy of the Telegram
sent by the petitioner
trade union to the Labour
Officer
(Conciliation
with
the
telegraphic
receipt.
Ex.A2 — 04-06-1996— Copy of the notice of
enquiry of the Labour
Officer (Conciliation)
to the petitioner trade
union.
Ex.A3 — 02-07-1996 —C o p y
o f
t h e
representations of the
workers R. Velmurugan,
S . N a t a r a j a n a n d
K . R a m a d o s s
f o r
reinstatement in service
to the respondent.
Ex.A4 — 19-07-1996 — C o p y o f t h e
representation of the
petitioner trade union to
the respondents.
Ex.A5 — 06-12-1996 — Copy of the failure
report of the Labour
Officer (Conciliation).
Ex.A6 — —
— Copy of the enquiry
proceedings.
Ex.A7 — 22-11-1999— Copy of the notification.
Ex.A8 — 02-06-1996— C o p y
o f
t h e
advertisement appeared
in the Daily Thanthi
given by the respondent
calling for applications
from
carpenters
and
carpenter helpers.
Ex.A9 — 07-08-1996— Copy of the article
appeared in Dina Malar
Daily,
regarding
the
arrest of the petitioners
along with union leaders.
Ex.A10— — —
Copy of the Form-A
application
for
registration
of
trade
union.
Ex.A11— —
— Copy of the Certificate
of Registration of the
petitioner trade union.
Ex.A12— 23-05-1996— Copy of the letter from
the
petitioner
trade
union informing elected
office bearers to the
respondent management.
Ex.A13— 28-05-1996— Copy of the letter of the
petitioner trade union to
the respondent.
Ex.A14— —
— Copy of the three nos.
of letters and three nos.
of covers addressed to
certain employees by
the
respondent
management.
Ex.A15— 27-06-1996— Copy of the Interview
card sent to the worker
P. Balaraman by the
respondent.
Ex.A16— 27-06-1996— Copy of the Interview
Card sent to the
worker A. Asokan by the
respondent.
Ex.A17— 27-06-1996— Copy of the Interview
Card sent to the
worker S. Aridass by the
respondent.
Ex.A18— —
— Copy of the Interview
Card sent to the worker
N. Krishnan by the
respondent.
Ex.A19— 11-12-1997— Copy of the Interview
Card sent to the worker
A. Asokan
by
the
respondent.
1111
10 October 2017]
LA GAZETTE DE L’ETAT
Ex.A20— 04-12-1997— Copy of the Interview
Card sent to the worker
K. Purushothaman by the
respondent.
Ex.A21— 23-12-1997 — Copy of the Interview
Card sent to the worker
A.
Asokan
by
the
respondent.
Ex.A22— —
— Copy of the positive
print photograph of
M/s. Sree Saiji Exports
Private Limited.
Ex.A23— 26-12-1995 — Copy of the letter
issued
by
the
respondent.
Ex.A24— 05-11-1996 — Copy of the letter issued
by
the
Labour
Department.
Ex.A25— 26-02-2007— Copy of the
resolution passed by
the
General
body
meeting.
Ex.A26— 31-08-2015 —Copy of the Annual
returns for the year-
2014.
Ex.A27— 16-12-2016— Copy of the Annual
returns for the year-
2015.
Ex.A28— —
— Current letter head
for the petitioner
trade union.
Ex.A29—05-07-1996 — Copy of Registration
Certificate of Petitioner
trade union.
Ex.A30— —
— Copy of Affiliation
Certificate
of
the
petitioner trade union.
Ex.A31— —
— Copy of Aadhar Card of
Sakthisivam.
Ex.A32— 07-08-2011 — Copy of Aadhaar Card of
Elumalai.
Ex.A33— 18-12-2011— Copy of Aadhaar Card of
Designu @ Arumugam.
Ex.A34— 27-12-2011— Copy of Aadhaar Card of
Velankanni @ Manimaran.
Ex.A35— 17-08-2011 — Copy of Aadhaar Card of
Tamilselvan.
Ex.A36— 08-03-2011 —Copy of Aadhaar Card of
Karunakran.
Ex.A37— 05-08-2011— Copy of Aadhaar Card of
Manivannan.
Ex.A38— 24-10-2000 — Copy of Aadhaar Card of
Murugan @ Velmurugan.
Ex.A39— —
— Copy of Aadhaar Card of
Dhandapani.
Ex.A40— 01-09-2013— Copy of Aadhaar Card of
Ariputhiri.
Ex.A41— 02-02-2013— Copy of Aadhaar Card of
D. Baskar.
Ex.A42— 29-03-2001— Copy of Voter ID Card of
Baskar @ Sukumaran.
Ex.A43— 20-11-2011 — Copy of Aadhaar Card
of Suresh.
Ex.A44— 18-08-2011— Copy of Aadhaar Card of
Raja.
Ex.A45— 18-08-2011— Copy of Aadhaar Card of
Murugan.
Ex.A46— 19-07-2011 —Copy of Aadhaar Card of
Palani @ Pazanivel.
Ex.A47— 19-07-2011 — Copy of Aadhaar Card of
Arulprakasam.
Ex.A48— 10-11-1994— Copy of Voter I.D Card of
Sankar @ Ravichandran.
Ex.A49— 10-11-1994— Copy of Voter I.D Card
of Mani @ Dhandapani.
Ex.A50— 19-12-2011— Copy of Aadhaar Card of
Kumaran.
Ex.A51— 29-11-2011 — Copy of Aadhaar Card of
Xavier @ Francis Xavier.
Ex.A52— 23-09-2011— Copy of Aadhaar Card of
Mohan.
Ex.A53— 16-11-1994 — Copy of Voter I.D Card
of Sandanaraj,
Ex.A54— 04-01-2012— Copy of Aadhaar Card of
Anbazhagan.
Ex.A55— 08-11-2011— Copy of Aadhaar Card of
Elangovan @ Elango.
1112
LA GAZETTE DE L’ETAT
[10 October 2017
Ex.A56— 08-08-2011— Copy of Aadhaar Card of
Ramamurthy.
Ex.A57— 23-09-2011— Copy of Aadhaar Card of
Vinayagam.
Ex.A58— 19-07-2016 — Copy of Aadhaar Card of
Raji @ Susaimaryanathan.
Ex.A59— 11-11-2011 — Copy of Aadhar Card of
Raja @ Krishnan.
List of respondent’s witness:
RW.1 — 04-05-2017— L. Muthukumaran
List of respondent’s exhibits:
Ex.B1 — July, 1996 — Copy of the register
May, 1998
of employment May, 1998.
relating to the respondent
organization.
Ex.B2 — April, 2000 — Copy of the attendance
December, 2000 of the respondent firm.
Ex.B3 — 11-06-1998 — Copy of the registration
certificate or renewal
thereof
relating
to
respondent firm with the
Labour
Officer
( E n f o r c e m e n t ) ,
Pondicherry.
Ex.B4— — —
Copy of the certificate
of registration with the
Central Sales Tax Office.
Ex.B5— — —
Copy of the certificate
of registration in Form-
D1 issued by the Deputy
Commercial Tax Officer,
Pondicherry.
Ex.B6— — —
Copy of the complaint
given by the respondent
before the D'Nagar Police
Station, Pondicherry.
Ex.B7— — —
Copy of the
complaint given by
the respondent before
the Odiansalai police
station, Pondicherry.
Ex.B8 — 01-08-1996— Copy of the letter given
by the petitioner trade
union to the respondent
seeking reinstatement to
service.
Ex.B9 — 01-08-1996 —Copy of complaint given
b y the resp ond ent
management to the
Superintendent of
Police (North).
Ex.B10— 01-08-1996— Copy of the complaint
given by the respondent
before the Grand Bazaar
Police
Station,
Pondicherry.
Ex.B11— 20-08-1996— Copy of the letter given
by
the
respondent
management to the Labour
Officer (Conciliation).
Ex.B12— 26-08-1996— Copy of the letter given
by
the
respondent
management to the Labour
Officer (Conciliation).
Ex.B13— 06-12-1996 — Copy of the failure
report.
Ex.B14— —
— Copy of the plaint filed
by
the
respondent
management before the
IADM
Court,
Pondicherry in O.S. No.
1677/1996.
Ex.B15— — — Copy of the certificate
of Incorporation of the
company Shree Saiji
Exports Private Limited
with the registrar of
companies, Pondicherry.
Ex.Bl6— — — Copy of the
p
e
r
m
a
n
e
n
t
Registration certificate
issued by the Industries
D e p a r t m e n t ,
Pondicherry in favour of
Shree
Saiji
Exports
Private Limited.
Ex.Bl7— — — Copy
of
certificate
issued by the Industries
D e p a r t m e n t ,
Government
of
Pondicherry in favour of
Shree
Saiji
Exports
Private Limited.
1113
10 October 2017]
LA GAZETTE DE L’ETAT
Ex.B18— — —
Copy of Form-I issued
by
the
Pondicherry.
Municipality of Shree
Saiji Exports Private
Limited.
Ex.Bl9— —
— Copy of certificate of
registration in Form-B
by the Commercial Tax
Office in favour of
Shree
Saiji
Exports
Private Limited.
Ex.B20— — —
Copy of certificate of
registration in Form- Dl
by the Commercial Tax
Office in favour of
Shree
Saiji
Exports
Private Limited.
Ex.B21— — —
Copy of the register
showing the members of
the ESI of the respondent
firm.
Ex.B22— — —
Copy of the register
of wages of the
respondent firm from
December,
1995
to
November, 1996.
Ex.B23— 13-04-1996— Copy of the work order
issued by the respondent
to one R. Lakshmanan.
Ex.B24— 25-04-1996— Copy of the work order
issued by the respondent
to one R. Lakshmanan.
Ex.B25— 02-05-1996— Copy of the work order
issued by the respondent
to one Durai.
Ex.B26— 13-05-1996— Copy of the work order
issued by the respondent
to one Pitchai.
Ex.B27— 15-05-1996— Copy of the work
order issued by the
respondent to one Durai.
Ex.B28— 14-02-2003— Copy of the Award in
ID. No. 11/2001.
Ex.B29— 14-07-2008 — Copy of the Judgment in
O.S. No. 23/2007.
Ex.B30— 14-07-2008— Copy of the Decree in
O.S. No. 23/2007.
Ex.B31— 01-08-1996— Copy
of
letter
to
Registrar of Trade Union.
Ex.B32— Dec.1995- — Copy of Register of
1996.
Wages.
Ex.B33—13-04-1996 — Copy of Work Order.
Ex.B34—25-04-1996 — Copy of Work Order.
Ex.B35—13-05-1996 — Copy of Work Order.
Ex.B36—02-05-1996 — Copy of Work Order.
Ex.B37—15-05-1996 — Copy of Work Order.
Ex.B38— 2016
— Statement under
Form-I & V.
Ex.B39— 2015
— Statement under
Form-I & V.
Ex.B40— 2014
— Statement under
Eorm-I & V.
Ex.B41— 2013
— Statement under
Form-I & V.
Ex.B42— 2012
— Statement under
Form-I & V.
Ex.B43— 2011
— Statement under
Form-1 & V.
Ex.B44— 2010
— Statement under
Form-I & V.
Ex.B45— 2009
— Statement under
Form-I & V.
Ex.B46— 2008
— Statement under
Form-I & V.
Ex.B47— 2007
— Statement under
Form-I & V.
Ex.B48— 2006
— Statement under
Form-I & V.
Ex.B49— 2005
— Statement under
Form-I & V.
Ex.B50— 2004
— Statement under
Form-I & V.
Ex.B51— 2003
— Statement under
Form-I & V.
Ex.B52— 2002
— Statement under
Form-I & V.
Ex.B53— 2001
— Statement under
Form-I & V.
Ex.B54— 2000
— Statement under
Form-I & V.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.