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SOMMAIRES
CONTENTS
Page
Page
.. 1134
Sentence arbitral du travail
.. 1134
Award of the Labour Court .. 1134
de tribunal.
.. 1145
Notifications du Gouvernement .. 1145
Government Notifications .. 1145
.. 1155
Avis d’Adjudications
.. 1155
Tender notices
.. 1155
.. 1158
Etablissements dangereux
.. 1158
Dangerous Establishments
.. 1158
.. 1163
Annonces
.. 1163
Announcements
.. 1163
[ 1133 ]
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| 17 {
No.
42
Poudouchéry
Mardi
17
Octobre
2017 (25 Asvina 1939)
No.
Puducherry
Tuesday
17th
October
2017
1134
LA GAZETTE DE L’ETAT
[17 October 2017
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 133/Lab./AIL/T/2017,
Puducherry, dated 22nd August 2017)
NOTIFICATION
Whereas, the Award in I.D. (L)No. 30/2013, dated
28-6-2017 of the Industrial Tribunal-cum-Labour Court,
Puducherry in respect of the Industrial Dispute
between Thiru. R. Devakumar, S/o. Radhakrishnan,
Ariyur Post, Puducherry against the management of
M/s. Hindustan Unilever Limited, Personal Product
Factory, Vadamangalam, Puducherry over to reinstate
the petitioner with full back wages, continuity of
service and all other attendant benefits, 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. 20/9/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.
Wednesday, the 28th day of June 2017
I.D. (L) No. 30/2013
R. Devakumar,
S/o. Radhakrishnan,
No. 2, Mariyamman Koil Street,
Ariyur and Post,
Puducherry.
. . Petitioner
Versus
The Managing Director,
M/s. Hindustan Unilever Limited,
Personal Product Factory,
Vadamangalam,
Puducherry.
. . Respondent.
This industrial dispute coming up before me for
final hearing on 18-5-2017 in the presence of
Thiru R.T. Shankar, Advocate for the petitioner and
Thiruvalargal L. Sathish, T. Pravin, S. Velmurugan,
V. Veeraragavan and P. Rajesh, Advocates 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:
1. This is a petition filed by the petitioner under
section 2-(A) of the Industrial Disputes Act praying to
pass an order to direct the respondent management to
reinstate the petitioner with full back wages, continuity
of service and all other attendance benefits.
2. The petitioner has filed a claim statement and
the respondent management has filed a counter
statement and in the course of enquiry on the side of
the petitioner PW1 and PW2 was examined and Ex.Pl
to Ex.P9 were marked and on the side of the
respondent RWl was examined and Ex.Rl to Ex.R7
were marked. On perusal of records, it is found that
two documents were marked as Ex.R1. The order
passed in W.P.No.29409 of 2013 was marked as Ex.Rl
in the cross examination of PW2 and another
document, the authorization letter was marked once
again as Ex.Rl which was now marked as Ex.RlA.
3. Both sides are heard. In support of his argument,
the learned Counsel for the petitioner has relied upon
the Judgment reported in CJD-2011-MHC-759 &
CJD-2015-SC-285. On the other hand, the learned
Counsel for the respondent management has filed a
written argument and he has also relied upon the
following Judgments : CDJ 2011 SC 622, CDJ 2009
SC 986, CDJ 2006 SC 958, CDJ 2006 SC 196, CDJ
2006 SC 982, CDJ 2007 SC 139, CDJ 2006 SC 611,
CDJ 2006 SC 1238, CDJ 2005 SC 604, CDJ 2001 SC
363, CDJ 2000 SC 1888, CDJ 1992 SC 118, CDJ 2002
MHC 811, CDJ 2001 MHC 502, CDJ 2016 BHC 1370,
CDJ 2015 DHC 882, 2014 III LLJ 329, CDJ 2013
DHC 1750, CDJ 2012 DHC 2073, 2009 1 LLJ 96 AP,
2009 2 LLJ 121 HP HC, CDJ 2005 DHC 999, CDJ
2001
BHC
485,
India
Tourism
Development
Corporation Vs. Poonam Rai (DEL), Mahesh Kumar
Vs. M/s. Fruit and Vegetable Projects.
4. The point for consideration is that whether the
industrial dispute raised by the petitioner against the
respondent management over his non-employment is
justified or not and whether the petitioner is entitled
for reinstatement with back wages, continuity of
service and all other attendance benefits.
1135
17 October 2017]
LA GAZETTE DE L’ETAT
5. It is the case of the petitioner that he has joined
as a casual labour in the respondent establishment in
the year 2008 and after completion of six months, the
respondent management had used to avail his service
with break of the period of three months once in six
months for about 5 years and he had been in service
from the year 2008 to 2012 and thereafter, he has not
given
appointment
order
by
the
respondent
management and he was issued only training order on
28-2-2012 and he had done his performance towards
the job from 2008 and the respondent management
cunningly acted against the petitioner and the
management illegally terminated his service which is
illegal one and he has been designated as trainee
though he had been working at the production
department as an Operator and done the perennial nature
works with other permanent workers and the
respondent management terminated his service without
any notice and without any compensation in violation
of Section 25-F of Industrial Disputes Act and his
service was terminated by the respondent management
at the end of the alleged training periods only with a
view to deny permanent status and in the last year from
7-3-2012 to 5-3-2013 he has served for the period of
365 days with continuous employment and that
therefore, he has prayed for reinstatement with full
back wages, continuity of service and all other
attendance benefits. In order to prove his case, the
petitioner has examined himself as PW1 and he has
stated all the above facts in his evidence and in support
of the case the petitioner has also examined Ethirajulu,
President of the Union as PW2 and he has reiterated
the evidence of PWl and in support of the oral
evidence of PWl and PW2 they have marked Ex.Pl to
Ex.P9. The copy of the termination letter issued by the
respondent to the petitioner.
6. It is the case of the respondent management that
they are having 3 manufacturing units in Puducherry in
which 2 are in Vadamangalam village which is manufacturing
soaps, detergents, personal care products and 3rd one
at Kirumambakkam Village in which they are blending
and packing of tea and that the respondent factory was
established in the year 1985 and 219 permanent
workers, 18 officers and 3 managers are working in the
unit and since, there is always fluctuation in demands
for products depending on various factors and when
there is a sudden spurt in demands in Indian Market, the
respondent finds it extremely difficult to extract
additional production from the regular workers and
therefore, the respondent engaged temporary workers
and the petitioner was one amongst those temporary
workers on the basis of depending upon escalating
production demands with a clear understanding that
such engagement was only for the specific period and
that therefore, the petitioner cannot make any claim for
permanent employment in the respondent factory and
that the petitioner was engaged as trainee after an
interview on 23-3-2012 by order of appointment,
dated 28-2-2012. Such training was to take effect
from 7-3-2012. The petitioner had understood each
and every term of his appointment which was explained
to him in his local language and only after accepting
such terms, he joined respondent’s organisation as a
trainee and that the petitioner was trying to mislead the
facts before this Hon’ble Court by stating that he was
a Casual workman and that the petitioner- served his
training period from 7-3-2012 to 5-3-2013. His
performance
was
reviewed
periodically
and
assessments of his senior were also shared with
petitioner. But, petitioner's performance was not
satisfactory and hence, the respondent served a letter,
dated 5-3-2013 informing him that he was relieved
from training with effect from 6-3-2013, which was
also received by him without any demur and the
petitioner was therefore, only a trainee engaged for a
specific period of 1 year and his training expired by
efflux of time on completion of one year. Hence the
claim petition filed by petitioner is devoid of merits,
lacks bona fide and the same is liable to be dismissed.
7. The respondent management has examined one
Kanessane,
HR
Executive
of
the
respondent
establishment as RWl and he has stated the averments
of the counter in his oral evidence and has exhibited
Ex.Rl to Ex.R7. The respondent management has
exhibited the standing order as Ex.R2 which would
evident that the apprentice trainees are engaged
essentially in learning any skilled work provided that
the period of such learning shall not exceed one year
for those with prescribed technical qualification and
three years for others and Ex.R2 further evident that
the temporary workers are appointed for a limited
period of work which is of an essentially temporary
nature, or who is employed temporary as an additional
workman in connection with temporary increases in
work of a permanent nature or probationer. The copy
of the pay slips of the petitioner for the month of
January-2010, September-2010 and February-2011 are
exhibited as Ex.R3 from which it can be noted that the
petitioner Devakumar was received ` 3,060 as gross
salary for the month of January-2010, ` 4,900 as gross
salary for the month of September-2010 ` 3,760 as
gross salary for the month of February-2011. Ex.R4
1136
LA GAZETTE DE L’ETAT
[17 October 2017
is the vital document which was given by the respondent
management to the petitioner employee Devakumar as
a letter of offer for temporary work in PP Division on
7-7-2009 and 12-4-2011. Ex.R5 is the copy of the
petitioner’s progress report which reveals that Shift
Officers have made a remark on the petitioner that the
working knowledge and the skill level of the petitioner
and his involvement in work are very poor and his
attendance are not good and using mobile phone non-
stoppingly while working hours. The approval of the
factory was exhibited as Ex.R6. The respondent
management has also filed a Form 3A of the
Employees Provident Fund Scheme, 1952 for the year
2007-2008, 2008-2009, 2010-2011 and 2011-2012
was exhibited as Ex.R7 in which it stated that they have
paid contribution to EPF and also made payment on
employment pension scheme.
8. From the pleadings and evidence of the
petitioner and the respondent it is clear that the
following facts are admitted by both the parties that
the respondent management is doing business in
manufacturing soaps, detergents, personal care
products at Vadamangalam and Kirumambakkam
villages and the petitioner Davakumar was working at
the respondent management from the year 2008 and the
respondent management has paid the contribution of
EPF and employees pension scheme for the financial
year 2007-2008 to 2011-2012 and the petitioner has
served till 6-3-2013 at the respondent establishment
and the respondent has given letter of offer for
temporary employment to the petitioner on 7-7-2009
and 12-4-2011 and now the petitioner is not in the
service at the respondent establishment and the
petitioner employee has raised the industrial dispute
before the Conciliation Officer.
9. It is the main contention of the petitioner that
he was working as a casual labour from the year 2008
and he was served without any remarks for the period
of 6 months and subsequently he was stopped from
service on the ground of service break for the period
of 3 months and after 3 months the petitioner has again
joined in the employment and the respondent
management had used to avail his service of the
petitioner with break of 3 months once in six months
for the past 5 years and only on 28-2-2012, the
respondent management had issued a training order as
a trainee though the petitioner has been directly
working in the Production Department as an Operator
doing perennial nature of work with other parmanent
workers and the petitioner workman have been in
service for a long period from 2008.
10. On the other hand, it is the main contention of
the respondent management that the petitioner was
appointed only as a temporary workman and the
respondent management has solely appointed him as
trainee on 28-2-2012 for the training period of one
year and due to his non-performance and the
petitioner’s learning is found as very poor, the
management has not extended the training period and
hence, the respondent management has relieved him
from training with effect from 6-3-2013. Therefore,
it is to be decided whether the petitioner was working
as a casual labour with the continuity of service not
less than 240 days in a year or whether he was only
appointed as a trainee and he was relieved from
service for his non-performance on 6-3-2013.
11. On this aspect, the Judgments relied upon by the
learned Counsel for the petitioner and the learned
Counsel for the respondent are carefully considered.
The learned Counsel appeared for the petitioner relied
upon the following Judgments:
(i) CDJ 2011 MHC 759 - Larsen and Toubro
Limited, Pondicherry Vs. The Presiding Officer and
Others, wherein, the Hon’ble High Court has held
that,
“......... 2nd Respondet - Workmen were taken
as trainees and based upon their performance
appraisal, the 2nd respondent - workmen were
unsuccessful and they were relieved as per the
terms of the Act. According to petitioner -
management, one of the important features of the
contract was that the training period of two years
will automatically come to an end and no pay or
retrenchment compensation will be payable to the
trainees. It is seen from the documents Exs.B11
to B14 in I.D. No. 59/2001 and Ex.B5 to B36 in
I.D.No. 54/2001, no training measures seen to
have been imparted to the 2nd respondent -
workmen. But, the performance appraisal would
clearly show that the 2nd respondent - workmen
were doing the works of permanent nature. Based
upon the materials available on record, Labour
Court has rightly held that offer of training was
only a device to summarily terminate the 2nd
respondent - workmen without assigning any
reason ................ High Court cannot interfere
with the same and that the finding of the Labour
Court is based upon the evidence and materials
on record warranting no interference. Petitioner
- Management has not made out any valid ground
to set aside the Award of the Labour Court and
1137
17 October 2017]
LA GAZETTE DE L’ETAT
the Writ Petitions are liable to be dismissed. 34.
In the result, these Writ Petitions are dismissed.
Consequently, connected M.Ps are closed. No
costs”.
(ii) CDJ 2015 SC 285 - umrala Gram Panchayat
Vs. The Secretary, Municipal Employees Union and
Others, wherein, the Hon’ble Supreme Court of
India has held that,
“......... Supreme Court found that they are
working for more than 240 days in a calendar
year from the date of their initial appointment,
which is clear from the evidence on record.
Therefore, not making their services permanent
by the appeilant-panchayat is erroneous and also
amounts to error in law. Court directed the
appellants to treat the services of the concerned
workmen as permanent employees, after five
years of their initial appointment as daily wage
workmen
till
they
attain
the
age
of
superannuation for the - purpose of granting
terminal benefits to them..........32. The power
given to the industrial and Labour Courts under
section 30 is very wide and the affirmative action
mentioned
therein
is
inclusive
and
not
exhaustive. Employing badlis, casuals or
temporaries and to continue them as such for
year, with the object of depriving them of the
status and privileges of permanent employees is
an unfair labour practice on the part of the
employer under item 6 of Schedule IV. Once such
unfair labour practice on the part of the employer
is established in the complaint, the Industrial and
Labour
Courts
are
empowered
to
issue
preventive as well as positive direction to an
erring employer .........In view of the reasons
stated Supra and in the light of the facts and
circumstances of the present case, we hold that
the services of the concerned workmen are
permanent in nature, since they have worked for
more than 240 days in a calendar year from the
date of their initial appointment, which is clear
from the evidence on record. Therefore, not
making their services permanent by the appellant-
Panchayat is erroneous and also amounts to error
in law. Hence, the same cannot be allowed to
sustain in law”.
From the above citations it is clear that whenever
the workman is permitted to do the work permanent in
nature and he was allowed to work for more than 240
days in a calendar year from the date of his initial
appointment, he has to be treated as a permanent
workman. In this case, it is the contention of the
petitioner that the petitioner was working continuously
for about 365 days with continuous employment for
the period 7-3-2012 to 5-3-2013 and that therefore,
he has been treated as a permanent workman. On the
other hand, the learned Counsel for the respondent
management argued that the petitioner has accepted
the appointment as a trainee in his employment and he
was designated as a trainee with effect from
28-2-2012 to 5-3-2013 and hence, he cannot entitle
for regular employment and in support of his
contention the learned Counsel relied upon the
Judgment reported in CDJ 2011 SC 622 - Union of
India and Anr Vs. Arulmozhi Iniarasu, wherein, the
Hon'ble Supreme Court has held that,
“When a person enters a temporary employment
or get engagement as a contractual or casual worker
and the engagement is not based on a proper
selection as recognized by the relevant rules or
procedure, he is aware of the consequences of the
appointment being temporary, casual or contractual
in nature.....................Therefore, the theory of
legitimate expectation cannot be successfully
advanced by temporary, contracutal or casual
employees. It cannot also be held that the State has
held out any promise while engaging these persons
either to continue them where they are or to make
them permanent. The State cannot constitutionally
make such- a promise. It is also obvious that the
theory cannot be invoked to seek a positive relief
of being made permanent in the post”.
From the above observation, it is clear that the
workman who has accepted the terms of the
appointment and aware of the consequence of the
appointment being as a trainee, cannot invoke the
theory of legitimate expectation for being confirmed
in the post. But, in this case admittedly the petitioner
has served from the year 2008 in the same
establishment as workman and admittedly he has been
appointed as a casual labour in the year 2008 and he
has served till 2012 with break . and subsequently he
was appointed as a trainee for one year and relieved
from training with effect from 6-5-2013 and the
respondent management has not stated anything about
the fact that why he was appointed as a trainee after
five years of his service in the same establishment as
workman. Further, the learned Counsel also relied upon
the following Judgments :
(i) CDJ 2006 SC 958 - National Small Industries
Corporation Limited
Vs. V. Lakshminarayanan,
wherein the Hon’ble Apex Court has held that,
1138
LA GAZETTE DE L’ETAT
[17 October 2017
“From the aforesaid documents it would be
evident that even if the respondent had been
working on a daily-wage basis prior to his
appointment as Apprentice Trainee (Shop Assistant),
at least from 3rd May, 1990 till 2nd May, 1992
he was working as an apprentice on a
consolidated salary and the respondent himself
was conscious of such fact since, he had requested
the corporation and its authorities to absorb his
services on a permanent basis purportedly on the
basis of a promise held out at the time when he
was interviewed for appointment to the post of
Apprentice Trainee(Shop Assistant).”
(ii) CDJ 2016 BHC 1370 - M/s. Rohini S. Kurghode
and others Vs. M/s. E. Merck (I) Limited and
Another, wherein, the Hon’ble Bombay High Court
has held that,
“The complaints are also now stopped from
challenging their appointments oil the basis of
the contracts entered into from time to time as
the complainants by accepting such appointments
have acquiesced in them and have waived their
right for seeking the reliefs which they have not
sought vide the instant complaints”.
(iii) CDJ 2015 DEC 882 - Raj Kumar Rastogi
Vs. P.O., Labour Court-X and Anr., wherein, the
Hon’ble Delhi High Court has held that,
“10.............It is also apparent that his
appointment as a trainee was extended from time
to time on the same terms and conditions
contained in his initial appointment letter and at
no stage, he raised any objection to showing him
as a trainee, but, continued to work with the
respondent. He was very well aware of the terms
and conditions of his appointment since, the copy
of the appointment letter was in his possession
as he had produced and proved the same before
the Labour Court. If, he actually was working as
a full time worker and not as a trainee, nothing
precluded him from raising such objections
during his tenure...... ......... .....14. ......In the
present case also, the petitioner had been
appointed as a trainee. Under the terms of the
contract, his training period was extended from
time to time. The petitioner being a trainee is not
a workman within the meaning of Section 2(s)....”
From the above citations, it is clear that whenever
the employee is appointed initially as a trainee and
subsequently his training period was extended from
time to time then the said training cannot seek any
relief as a workman. In this case while considering the
whole service of the petitioner it is learnt that he was
not initially appointed as a trainee and his training
period was not extended from time to time but, he was
initially appointed as a temporary workman and that'
therefore, the above citations relied upon by the
respondent management cannot be applied to this case.
12. Furthermore, on this aspect, the evidence
and records are carefully perused. The evidence of
RWl runs as follows :
“
temporary
performance
training
ordertrainee
vacancytrainee
trainee order
performancereview
trainee
performance
trainee orderEx.P7, Ex.P7,
trainee
period
closeEx.P1
Ex.P7Ex.P1
performance
ESI and
PF
HR
executive
Shift Officer
performance
Shift Officer
leave
1139
17 October 2017]
LA GAZETTE DE L’ETAT
”
From the above evidence of the respondent
management RW1, it is clear that this petitioner has
initially joined in the respondent management as an
employee in the year 2008 and he was in service till
2012 and thereafter, he has been appointed as a trainee
by the respondent management for the period of one
year and the petitioner has served for about 5 years and
in the training period without any complaint. The above
evidence would go to show that even a memo has not
been issued to the petitioner that he has committed any
misconduct or misbehavior in his service and
particularly, so far even till the period of completion
of the training he has not been given any show cause
notice for any defective performance in his work to
the petitioner. While so, it is clear that all on a sudden
after completion of training, his employment was
refused
by
the
management
telling
that
his
performance is not satisfied. The document filed by the
respondent as Ex.R7 - the annual contribution Form
3A(in the name of the petitioner, the respondent
management has paid EPF contribution for the period
of April - 2007 to March - 2008, April - 2008 to March
- 2009, April - 2010 to March - 2011, April - 2011 to
March - 2012. These facts would go to show that in
the name of the petitioner, the annual contribution of
EPF was paid by the respondent management for the
financial year 2007 - 2008, 2008 - 2009, 2010 -
2011, 2011 - 2012.
13. Now, the case of the respondent is that the
petitioner has been appointed as a trainee for the
period of one year on 28-2-2012 and that therefore, he
cannot be treated as workman of the respondent
management. But, the respondent management is very
silent to state that for the period of 2007 - 2008, 2008-
2009, 2010 - 2011, 2011 - 2012 that whether the
petitioner was working as a trainee or regular
employee and if, he was a trainee then what prevented
the respondent management to place the records before
this Court to state that the petitioner was working only
as a trainee for the said period. The documents Ex.P6,
Ex.P8 - pay slips for the period of 2008 - 2011 and
March, 2012 to February, 2013 would go to show that
the respondent management has paid salary to the
petitioner but, the said pay slip does not contain his
designation as trainee and particularly, he has not
worked as a trainee for the period of 2008 - 2012 but,
in the year 2012 - 2013 pay slips of the petitioner
which is exhibited as Ex.R3 would go to show that he
has been paid salary as a trainee. If, any employee is
appointed at the first instance in a factory he could
have been appointed as a trainee to the Industry. But,
in this case, he was permitted to work as a temporary
workman for the period of 2007 - 2008, 2008 -
2009 and subsequently, he was in service for the period
of 2010 - 2011, 2011 - 2012 and only in the year 2012
- 2013 he has been appointed as a trainee and the
training order has been given to him. The petitioner as
an employee of the respondent establishment, he
cannot refuse to sign any such appointment order
against the management while he was working for the
previous past 4 years as an employee of the respondent
establishment. Though he has known the above facts
that he has been appointed as a trainee to keep his job
he cannot insist the respondent management to avoid
such appointment as the trainee of the establishment.
14. This Court finds that though the respondent
management has admitted the fact that the petitioner
employee was working in the establishment from the
year 2008 and that they have paid EPF and other
statutory contribution in the name of the petitioner
from the year 2007 - 2008 as stated in Ex.R7 for the
period of 2007 - 2008, 2008 - 2009, 2010 - 2011,
2011 - 2012, the respondent management does not
come forward to say and establish that the petitioner
was working only as a trainee for the said period. The
burden is cast upon the respondent management that
so far the petitioner was only working as a trainee or
an apprentice for the period from 2008 about 5 years
and finally he was appointed as a trainee under Ex.P7
and furthermore, it is learnt from the Ex.R4 that the
petitioner was appointed only as a temporary
workman on 7-7-2009 itself for the period of six
months and thereafter, he was appointed as a temporary
workman, from 12-4-2011 to 11-10-2011. As
admittedly, the petitioner was appointed as temporary
workman in the factory from 2008, it is the duty cast
upon the respondent management then why the
workman, who was in service in the factory as a
temporary workman from 2008 for about 5 years has
been appointed as a trainee in the year 2012-2013
after he has served as a temporary workman and what
circumstances insisted the respondent management
to appoint such workman the petitioner who has
1140
LA GAZETTE DE L’ETAT
[17 October 2017
worked as a temporary workman of the factory for
about 5 years and the respondent management has
failed to state whether the training has been given to
him for the requirement of any technical qualification
or what the work was. allotted to him for the period
from 2008 - 2012 for the past 5 years to the petitioner
without
any
training.
Though
the
respondent
management has admitted the fact that the petitioner
was working for about 5 years in the factory but, the
management is silent what the work was allotted to the
said workman for the past 5 years and why the
respondent management has decided to give such a
training to the petitioner for the period 2012-2013
under Ex.P7. These above facts would create doubt that
only to avoid the benefit of regular employee which
is to be given by the management under the statutory
laws to the petitioner and the respondent management
has appointed the petitioner workman as a trainee and
subsequently without any allegation in the name
of deficiency in performance of the petitioner
wantonly has refused employment by telling that his
performance was unsatisfactory.
15. The learned Counsel appearing for the
respondent management has stated that the standing
order would permit them to appoint any temporary
workers and they have obtained permission from the
Government. It is not disputed by the petitioner that
the respondent management have appointed a temporary
workers and they have been permitted to avail the work
from the temporary workers. But, in this case,
admittedly, the petitioner was working as an employee
in the establishment in the year 2008 and was in
service for the past about 5 years and thereafter, he has
been given appointment as a trainee for the period of
one year on
28-2-2012 and subsequently, the
respondent management has refused employment to the
petitioner from service stating that his performance
was unsatisfactory. These facts would go to show that
the respondent management has given the appointment
to the petitioner as a trainee and used as a device to
summarily terminate the petitioner workman without
assigning any reason and that therefore, as rightly
pointed out by the petitioner’s Counsel, it is clear that
the respondent management has not established any valid
ground to refuse the employment to the petitioner and
that therefore, the refusal of employment to the
petitioner after he has served as a workman for
about 5 years and subsequently given training to him
would go to show that the respondent management has
offered the training to the petitioner was only a device
to summarily terminate the service of the petitioner
from the respondent management and that therefore,
it is clear that though the petitioner was nominated as
a trainee and permitted to do the work of permanent
in nature and the petitioner has served through out the
year from 7-3-2012 to 8-3-2013 for about 365 days
continuously i.e., more than 240 days in a year, the
workman has to be treated as a permanent one and that
therefore, he is entitled for all the benefit of the
labour laws and hence, the dispute raised by the
petitioner against the respondent management over his
non-employment is justified and the petitioner is
liable to be allowed and the petitioner is entitled for
the order of reinstatement as claimed by him.
16. As this Court has decided that the industrial
dispute raised by the petitioner against the respondent
management over his non-employment is justified, it
is to be decided whether the petitioner is entitled for
backwages with continuity of service as claimed by the
petitioner. In the light of the Judgment reported in U.P,
State Brassware Corporation Ltd., Vs. Uday Narain
Pandey (Supra), wherein, the Bench has observed that:
26. “No precise formula can be laid down as to
under what circumstances payment of entire back
wages should be allowed. Indisputably, it depends
upon the facts and circumstances of each case. It
would, however, not be correct to contend that it is
automatic. It should not be granted mechanically
only because on technical grounds or otherwise an
order of termination is found to be in contravention
of the provisions of Section 6-N of the U.P.
Industrial Disputes Act................27. The Court also
reiterated the rule that the workman is required to
plead and prima facie prove that he was not
gainfully employed during the intervening period”.
and that therefore, it is clear that the petitioner has
to prove the fact that he has not employed gainfully
during the intervening period. But, in this case,
nothing is before this Court that the petitioner was not
working anywhere else and that therefore, he cannot
be given full backwages. However, it is not the case
of the respondent that the petitioner is working
anywhere else and hence considering all the above
facts and circumstances and the above foregoing reasons,
this Court finds that the petitioner is entitled for only
part of backwages and hence, this Court tentatively fix
that the petitioner is entitled only for 25% backwages.
1141
17 October 2017]
LA GAZETTE DE L’ETAT
17. In the result, the petition is partly allowed and
the industrial dispute raised by the petitioner over the
non-employment is justified and an Award is passed by
directing the respondent to reinstate the petitioner in
service with continuity of service and further directed
the respondent management to pay 25% of backwages
to the petitioner from the date of non-employment till
the date of reinstatement with other attendant benefits.
No cost.
Dictated to the stenographer, transcribed by her,
corrected and pronounced by me in the open Court on
this the 28th day of June, 2017.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
————
List of petitioner’s witnesses :
PW1 — 25-3-2015 —
R. Devakumar
PW1 — 8-2-2016
—
Ethirajulu
List of petitioner’s exhibits :
Ex.Pl— 5-3-2013 — Termination letter issued
by the respondent to the
petitioner.
Ex.P2— Emp.
— Copy of the New Identity
No. 250.
C a r d i s s u e d b y t h e
respondent management to
the petitioner.
Ex.P3— Emp.
— Copy of the old Identity Card
No. 10163.
issued by the respondent
management to the petitioner.
Ex.P4— I.P. No.
— Copy of the New ESI - I.P
5518618199.
Card issued by the ESIC to
the petitioner.
Ex.P5— 23-3-2013 — Details Various I.P. No’s
issued by the ESIC to the
petitioner.
Ex.P6— 2008-2011— Pay slips issued by the
respondent to the petitioner
(13 Nos.).
Ex.P7— 28-2-2012 — Alleged Training Order
issued by the respondent
to the petitioner.
Ex.P8— March,
— Pay slips issued by the
2012 to
respondent to the petitioner
February,
(12 Nos.).
2013.
Ex.P9— 27-3-2013 — D i s p u t e r a i s e d b y t h e
petitioner before the Labour
Officer, (Conciliation),
Puducherry.
List of respondent’s witness :
RW1 — 3-3-2016 — G. Kanessane
List of respondent’s exhibits :
Ex.Rl— 28-3-2014 — Copy of order passed in
W.P. No. 29409 of 2013.
Ex.R1A—11-1-2016— Letter of Authorization of
Ms. Resma Jacob.
Ex.R2— —
— Copy of relevant portions
of respondent’s standing
order.
Ex.R3— January,
— Office copies of pay slips
2010
of petitioner.
September,
2010,
February,
2011.
Ex.R4— 7-7-2009
— Original letters of Offer for
and
Temporary Employment to
12-4-2011.
petitioner in respondent’s
factory.
Ex.R5— March to
— C o p y o f p e t it i o n e r ’s
November,
progress report (2 Nos.).
2012.
Ex.R6— —
— Self Attested copy of the
Approval (Form No. 11)
gi ve n b y I n s p e c to r o f
Factories for the period of
work for adult workers,
permitting the respondent to
engage temporary workers.
Ex.R7— —
— Self Attested copy of
Annual Contribution Card
(Form No. 3A) of petitioner
towards EPF for the years
April 2007 to March 2008,
April 2008 to March 2009,
April 2010 to March 2011,
April 2011 to March 2012.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
1142
LA GAZETTE DE L’ETAT
[17 October 2017
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G. O. Rt. No. 139/AIL/Lab./T/2017
Puducherry, dated 13th October 2017)
NOTIFICATION
Whereas, the Award in I.D. (L)No.53/2012, dated
20-7-2017 of the Labour Court, Puducherry in respect
of the Industrial Dispute between the Management of
M/s. Sri Kannabiran Roadways, Karaikal and Thiru
P. Murugesan, Karaikal over non-settlement of service
benefits has been received;
Now, therefore, in exercise of the powers conferred
by sub-section (1) of Section 17 of the Industrial
Disputes Act, 1947 (Central Act XIV of 1947,) read
with the Notification issued in Labour Department's
G.O.Ms.No. 20/91/Lab/L, dated 23-5-91, it is hereby
directed by Secretary to Government (Labour) that the
said Award shall be published in the Official Gazette,
Puducherry.
S. MOUTTOULINGAM,
Under Secretary to Government, (Labour).
————
BEFORE THE INDUSTRIAL TRIBUNAL-CUM-
LABOUR COURT AT PUDUCHERRY
(Camp Court sitting at Karaikal)
Present : Thiru G.THANENDRAN,B.COM., M.L.,
Presiding Officer,
Thursday, the 20th day of July, 2017
I.D. (L) No. 53/2012
P.Murugesan,
. . Petitioner
No.5, Keezhatheru,
Sellur, Thirunallar,
Karaikal.
Versus
The Management of,
M/s. Kannabiran Roadways,
Karaikal.
. . Respondent
This industrial dispute coming on 23-2-2017 before
me for hearing, Thiru A.Thirumal Valavan, Counsel for
the petitioner and Thiru A. Veerapandian, Counsel for
the respondent management, both remained absent and
no representation having been made on their behalf,
upon perusing the case records, after having stood
over for consideration till this day, this Court passed
the following:
AWARD
1. This Industrial Dispute has been referred as per
the G. O. Rt. No. ll/AIL/LAB/J/2011, dated 25-1-2011
for adjudicating the following:-
(a) Whether
the
dispute
raised
by
Thiru P. Murugesan against the management of
M/s. Kannabiran Roadways, Karaikal, over non-
settlement of service benefits is justified or not?
(b) If justified, what relief the petitioner is
entitled to?
(c) To compute the relief if any, awarded in
terms of money if, it can be so computed?
The above reference originally taken on file by the
District Court at Karaikal which was being functioned
as Labour Court in ID.No. 1/2011 and subsequently
when this Industrial Tribunal-cum-Labour Court
established in the year 2012, the case has been
transferred to this Court and this case was taken on file
by renumbering it in I.D (L). No. 53/2012.
2. The brief averments of the Claim Statement filed
by the petitioner are as follows:-
The petitioner stated that he was working regularly
as "Bus Conductor" with the respondent management
on all week days from 1996 to 2005 and he was not
brought under the Labour beneficial Acts such as P.F.
Act, E.S.I. Act and other Insurance benefits and he was
not given weekly holidays, festival holidays overtime
work wages, festival bonus and other welfare benefits
provided under the Labour Acts and while he requested
the respondent management to raise his wages and to
provide all other benefits provided under the various
Labour Acts, without giving any prior notice and valid
reasons he was terminated from the service and
thereafter, he had approached the respondent's
management with a request to pay all the benefits to
him for rendering service for the period of ten years
in the respondent's Transport but, he had received no
positive response from the respondent and then the
petitioner had approached the Conciliation Officer,
Karaikal with a petition by requesting the Labour
Officer to enquire into the matter and to get all the
benefits from the respondent's transport for the
services rendered by him and in the conciliation
proceedings, the respondent stated that the petitioner
had not been terminated from the service and he was
left the job without intimation and he had not
performed his duty in a rightful manner and hence, the
conciliation was failed.
1143
17 October 2017]
LA GAZETTE DE L’ETAT
The petitioner further stated that though the
petitioner is entitled for reinstatement with back
wages he had requested only for the benefits available
to him under various enactments which are in force for
the service he had rendered with the respondent for ten
years and further stated that he is eligible to get
8.33% bonus and further stated that he was not
terminated on the allegation of misconduct and his
removal from the employment was not based on the
punishment by way of disciplinary action and he has
not committed mistakes while he was doing his bus
Conductor work and therefore, he is very well entitled
to claim all the benefits entitled to a labour such as
PF, EPF and other benefits.
3. The brief averments of the counter statement
filed by the respondent are as follows:-
The respondent stated that this Court has no
jurisdiction to claim any gratuity under the provisions
of the Payment of Gratuity Act, 1972 by way of an
industrial dispute under the provisions of the
Industrial Disputes Act before a Labour Court and if, at
all the claim for gratuity was entitled, it should have
been applied in the prescribed Form "I" u/s 8 of the Act
before the Controlling Authority under rule 19 of the
Payment of Gratuity (Central) Rules, 1972 and not
before a Labour Court, vide reported judgment in the
State of Punjab Vs. Labour Court, Jullander & others
[55 FJR 468. 1981 (I) LLJ 354] and therefore, this
Court lacks jurisdiction to entertain the claim of the
alleged gratuity.
The respondent further stated that the petitioner
was not employed as regular worker, but, worked as
acting worker in the event of leave vacancy usually
given not more than 5 to 6 days in a month. Therefore,
the petitioner left the job voluntarily and he
has no continuous service and the claim itself is less
than 10 years as the establishment itself came to be
owned by 1995 only and the petitioner refused to come
to work when the job was offered to him by his
employer including before the Conciliation Officer,
Karaikal and before this Court, the requirement or
qualification to claim bonus and gratuity does not
exists. Hence, the claim of gratuity does not arise.
If, the Controlling Officer refused to order gratuity, an
appeal under rule 19 of the Central Payment of
Gratuity Rules, 1972 alone was permissible and not a
proceeding under the Industrial Disputes Act before a
Labour Court. Provident funds, ESI are not applicable
to the petitioner as he was not in continuous service
and no claims on the above grounds are sustainable.
No relief can be prayed as there was no coverage of
ESI and provident fund. If, they are entitled, the
tribunals set up for the specific purpose under the said
Acts alone can be claimed before the competent
authority set up under the respective Act and not under
the Industrial Disputes Act and before a Labour Court.
The claim of weakly holidays, over time salary, festival
holidays, OT wages, festival bonus and other benefits
are not entitled by the petitioner as he has
performed it, not in continuous service, duty time
salary was paid as and when due, and even if they are
allegedly due, they are not under any contract and they
are barred by limitation.
The petitioner is not the employee/worker in
continuous service and not entitled to anything. The
claim of benefits after voluntarily stopping to come to
service, not entitled to anything when the claims are
levied after 5 years. This shows lack of bona fides,
latches and bar of limitation. Even during the leave
duty/acting duty time also, he has not performed his
duties perfectly and there were repeated complaints of
negligence and caused loss to the respondent and they
are accepted by the letters of the petitioner. While he
was refusing to work when the job was offered to him
without any valid reason, all the claims of the
petitioner were liable to be rejected.
4. In the course of the enquiry on the side of the
petitioner PWl was examined and no documents were
exhibited and on the side of the respondent no oral
evidence was let in and no documents were exhibited.
5. The point for consideration is:
Whether the dispute raised by the petitioner against
the respondent management over non-settlement of
service benefits is justified or not and whether the
petitioner is entitled to claim any relief?
6. In this case, after the examination of the PW1 in
the enquiry he was fully cross-examined by the
respondent
management
and
subsequently
the
respondent management has not produced any witness
on their side even after granting number of
opportunities and hence this Court has closed the
evidence of the respondent side and posted the case
for
arguments
even
after
giving
sufficient
opportunities both the parties have not appeared before
this Court to put-forth their arguments and that
therefore this Court has closed the arguments and
posted the case for orders with a liberty to file written
argument if any, but, even then no argument was filed
by either side.
1144
LA GAZETTE DE L’ETAT
[17 October 2017
7. This industrial dispute is raised by the petitioner
over the non-settlement of service benefits to the
petitioner by the respondent management. It is the
evidence of PW1 that the petitioner-was working as a
bus Conductor in the respondent transport for the
period from 1996 to 2005 and no benefit of the
Labour Laws was given to the petitioner by the
respondent management and he has not given weekly
holidays, festival holiday's overtime work wages,
festival bonus and other benefits provided under the
various Labour Laws and since, the petitioner has
requested the respondent management to raise his
wages and to provide all other legal benefits provided
under the various Labour Laws, without any valid
reason or prior notice the petitioner was terminated
from the service.
8. In support of his oral evidence, the petitioner has
not at all exhibited any documents. On the other
hand, the respondent management has contended
in the counter statement that the petitioner was
not
the
regular
employee
of
the
respondent
establishment and he was worked as a acting worker in
the event of leave vacancy usually given not more than
5 or 6 days in a month and the petitioner has
voluntarily left the job and he has no continuous
service at any time and further that this Court has no
jurisdiction to pass any order under the Payment of
Gratuity Act and no relief can be given under the
Industrial Disputes Act for getting any gratuity and P.F.,
E.S.I, are not applicable to the petitioner as he is not
in continuous service at the respondent establishment
and that therefore, the petitioner is not the employee
in continuous service and hence he is not entitled for
benefits of the Act.
9. Though the petitioner has stated that he was
working as bus Conductor in the respondent
establishment for the period from 1996, he has not at
all filed any documents to establish that he had been in
continuous service till 2005. Since, no documents
were exhibited while the respondent has contended that
the petitioner employee is not a regular workman and
he was only acting worker in the event of leave vacancy
usually given work not more than 5 or 6 days in a
month. In such circumstances, no such pay slips
or ID card given by the respondent establishment
or payment of contributions of E.S.I, and P.F. have not
been exhibited and filed before this Court. As a
petitioner he has to establish the prima-facie case that
he was working in the respondent establishment as a
regular worker from the year 1996 and was working till
2005 by exhibiting the documents but in this case the
petitioner though examined himself as PWl no
document was exhibited on his side.
10. Further more, the petitioner PW1 admits that he
has not filed any documents to prove the fact that he
had been in continuous service at the respondent
establishment. The evidence of the petitioner PWl runs
as follows;
“
”
From the above evidence it is clear that the
petitioner has admitted the fact that he has not
exhibited any documents to prove the fact that he was
in continuous service at the respondent establishment
and further he admits that he has voluntarily left his
employment from the respondent establishment and he
has not asked the respondent establishment to give any
job to him.
11. Further more, the petitioner has not at all
exhibited any documents to prove the fact that he had
been in service from the year 1996 while it is stated by
the respondent management that the respondent
1145
17 October 2017]
LA GAZETTE DE L’ETAT
establishment itself is started only in the year 1995
and therefore, the petitioner has failed to establish the
fact that he was working as permanent employee in the
respondent establishment as bus Conductor from the
year 1996 as stated by him.
12. Further more, though the petitioner has filed the
claim statement, he has not at all stated the particulars
of the due which is to be recovered from the
respondent management in the name of P.F., E.S.I.,
insurance and other benefits while he admits in his
evidence that he has received bonus for every year
from the respondent management but, the particulars of
the amount how much he has been received the bonus
for every year and how much is given to him arrear of
bonus has not at all stated by the petitioner and that
therefore, the petitioner has utterly failed to prove his
case by filing all the documentary evidence like pay
slip, E.S.I, or ID card or any other communication
between the respondent and the petitioner workman or
any other document to prove the fact that he is a
permanent employee of the r esp o nd ent
establishment and that therefore, the dispute raised by
the petitioner before the Conciliation Officer over
non-settlement of dues is not justified and as such the
petitioner is not entitled for any relief as claimed by
him and hence, the claim petition is liable to be
dismissed,
13. In the result, the petition is dismissed. No cost.
Dictated to Stenographer, transcribed by her,
corrected and pronounced by me in the open Court on
this the 20th day of July, 2017.
G. THANENDRAN,
Presiding Officer
Industrial Tribunal-cum-Labour Court
Puducherry.
————
List of petitioner’s witness:
PW. 1— 21-11-2012 - Murugesan
List of petitioner’s exhibits: Nil
List of respondent’s witnesses: Nil
List of respondent’s exhibits: Nil
G. THANENDRAN,
Presiding Officer
Industrial Tribunal-cum-Labour Court
Puducherry.
}|{
(Assistant Line
Inspector, Electricity Department, Neravy, Karaikal)