La Gazette de L' État de Poudouchéry
The Gazette of Puducherry
Publiée par Autorité
Published by Authority
` 17-00
Prix : ` 17-00
Price :
` 17-00
SOMMAIRES
CONTENTS
Page
Page
.. 1172
Sentence arbitral du travail
.. 1172
Award of the Labour Court .. 1172
de tribunal.
.. 1181
Notifications du Gouvernement .. 1181
Government Notifications .. 1181
.. 1186
Avis d’Adjudications
.. 1186
Tender notices
.. 1186
.. 1186
Vente publique
.. 1186
Auction notice
.. 1186
.. 1188
Etablissements dangereux
.. 1188
Dangerous Establishments
.. 1188
.. 1190
Annonces
.. 1190
Announcements
.. 1190
.. 1193
Corrigendum
.. 1193
Corrigendum
.. 1193
.. 1194
Erratum
.. 1194
Erratum
.. 1194
[ 1171]
Registered with the Registrar
of Newspapers for India under
No. 10410
Registered No. SSP/PY/44/2015-17
WPP No. TN/PMG(CCR)/WPP-88/2015-17
Dated : 24-10-2017
Price : ` 17-00
2017 }
| 24 {
No.
43
Poudouchéry
Mardi
24
Octobre
2017 (2 Kartika 1939)
No.
Puducherry
Tuesday
24th
October
2017
1172
LA GAZETTE DE L’ETAT
[24 October 2017
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 140/Lab./AIL/T/2017
Puducherry, dated 3rd October 2017)
NOTIFICATION
Whereas, the Award in I.D. (L) No. 31/2014, dated
07-07-2017 of the Labour Court, Puducherry in respect
of the industrial dispute raised by Thiru Koruvada
Krishna, Yanam against the management of M/s. Hi-Tech
Engineering Limited, Yanam over non-employment 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 the 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
Present : Thiru G. THANENDRAN, B.COM.,M.L.,
Presiding Officer,
Friday, the 7th day of July, 2017
I.D. (L) No. 31/2014
Koruvada Krishna,
. . Petitioner
S/o. Durgayya,
No. 1-440, H.1-13-13-122/A,
IV Street, Gopal Nagar,
Yanam-533 464.
Versus
The Managing Director,
M/s. Hi-Tech Engineering Limited,
Yanam-533 484.
. . Respondent
This industrial dispute coming on 05-07-2017
before me for final hearing in the presence of Thiru
R.S. Zivanandam, Advocate for the petitioner and Tvl.
A. Karthikeyan and A. Pazhanisamy, Advocates for the
respondent on record and subsequently, when the case
was posted for filing of counter, the respondent being
called absent and set ex parte, upon hearing the
petitioner and perusing the case records, this Court
passed the following:
AWARD
1. This industrial dispute arises out of the reference
mad e b y the Go vernmen t o f P ud ucherry vi d e
G. O. Rt. No. 79/AIL/Lab./J/2013, dated 02-05-2014
of the Labour Department, Puducherry to resolve the
following dispute between the petitioner and the
respondent, viz.,
(a) Whether the dispute raised by Thiru Koruvada
Krishna against the management of M/s. Hi-Tech
Engineering Limited, Yanam over non-employment
is justified?
(b) If justified, what relief he is entitled to?
(c) To compute the relief, if any, awarded in
terms of money, if it can be so computed?
2. The brief averments of the claim statement
filed by the petitioner are as follows :
The petitioner was working as an Operator from the
year 2002 in the respondent's company and discharged
his duties unblemishing in his entire service and in the
year 2010 due to severe back pain he availed ESI leave
from 28-12-2010 to 21-07-2011 and after 21-07-2011
he availed medical leave as and when required and it
was admitted by the respondent and after availing the
leave on 02-04-2012, the petitioner went to join duty
but, the petitioner was not allowed to enter inside the
factory and the petitioner was phoned to the Director
of the respondent C.V. Ramaroa for cause of
prevention and that the said Managing Director
instructed him to join on 03-04-2012 in "C" shift and
when the petitioner went on 03-04-2012 at 07.30 p.m.
again the petitioner was prevented to enter into the
factory and when the petitioner phoned to said Managing
Director C.V. Ramaroa, he abruptly replied that not to
come to factory hereafter and on 04-04-2012, the
petitioner made a complaint about the facts of non-
employment to the Assistant Inspector of Labour at
Yanam and subsequently, on 10-04-2012 a show
cause notice has been sent by the
respondent
mentioning unauthorized absence from 11-03-2012
for the duty and on 13-04-2012 the petitioner has sent
a reply to the show cause notice and on 02-04-2013 in
the conciliation proceedings the respondent agreed for
reinstatement of service with pre-condition not
claiming any demand or any increment during the
service and the conciliation ended in failure and
therefore, the petitioner prays for reinstatement with
back wages from 02-04-2012 and for increments on
parity with other co-workers during the pendency
10 years of his service.
1173
24 October 2017]
LA GAZETTE DE L’ETAT
3. Though the Counsel for the respondent filed
vakalat, despite several opportunities, no counter was
filed on behalf of the respondent and hence, the
respondent was set ex parte.
4. In the course of enquiry, the petitioner himself
examined as PW.1 and Ex.P1 to Ex.P10 were marked.
5. The point for determination is:
Whether the dispute raised by the petitioner
against the respondent management over his
non-employment is justified or not?
6. Heard. It is the evidence of the petitioner that he
had been in service at the respondent establishment
from the year 2002 and during the year 2010 due to his
back pain the petitioner has availed leave from
28-12-2010 to 21-07-2011 and thereafter, the
petitioner has availed medical leave as and when
required by him and on 10-03-2012 he submitted a
medical fitness certificate to join duty from 02-04-2012
but, the respondent management has not allowed him to
enter into the factory and on 10-04-2012, the
respondent management has issued a show cause
notice to the petitioner mentioning unauthorized
absence from 11-03-2012 for duty and he raised a
Industrial Dispute before the Conciliation Officer and
this reference has been sent to this Court for proper
adjudication.
7. In support of his case, the petitioner PW.1 has
exhibited Ex.P1 to Ex.P10. Ex.P1 is the salary receipt
issued by the respondent to the petitioner. Ex.P2 is the
salary receipt issued by the respondent to the
petitioner. Ex.P3 is the copy of the letter sent by the
petitioner to Labour Inspector, Yanam which is in
Telugu language along with English translation copy of
the said letter. Ex.P4 is the show cause notice issued
by the respondent along with the registered cover.
Ex.P5 is the notice sent by the Inspector of Labour,
Yanam to the respondent. Ex.P6 is the copy of the
reply for the show cause notice. Ex.P7 is the copy of
the counter application by the respondent before the
Inspector of Labour, Yanam. Ex.P8 is the copy of the
counter reply by the petitioner before the Inspector of
Labour, Yanam. Ex.P9 is the copy of the notification
in G. O. No. 79/AIL/Lab./J/2013. Ex.P10 is the failure
report by Inspector of Labour, Yanam. These documents
would go to show that the petitioner was working in the
respondent concern and the respondent has paid salary
to him and a show cause notice was issued to the
petitioner by the respondent mentioning unauthorized
absence and subsequently without enquiry the
petitioner has been terminated from service and he has
raised a industrial dispute before the Labour (Conciliation)
and on failure, the case was referred to this Court for disposal.
8. It is clearly established through the petitioner
evidence and records that the petitioner was working in
the respondent concern and he has been terminated
from service without following any procedure laid
under the Industrial Disputes Act by the respondent for
which he has raised the industrial dispute before the
Conciliation Officer and the conciliation proceedings
were failed and that therefore, this reference has been
made to this Court to decide whether the dispute raised
by the petitioner over non-employment is justified or not.
9. On the other hand, though the respondent Counsel
filed vakalat for respondent, he does not file any
counter and subsequently, due to his absence, the
respondent was set ex parte. Considering the fact that
the petitioner has established his case that he was
working in the respondent concern and he has been
terminated from service without following any
procedure laid down under the Industrial Disputes Act
by the respondent, it is to be held that the petitioner is
entitled for the claim as prayed by him and hence, the
dispute raised by the petitioner against the respondent
management over his non-employment is justified and
the petition is liable to be allowed and the petitioner
is entitled for the order of reinstatement as claimed by him.
10. 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
back wages with continuity of service as claimed by
the petitioner. In the light of the Judgment reported
in U.P. State Brassware Corporation Limited 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, in the light of the above
observation, 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,
1174
LA GAZETTE DE L’ETAT
[24 October 2017
he cannot be given full back wages. 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 50% backwages with continuity of
service and other attendant benefits.
11. 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
within one month from the date of this order and to pay
50% back wages from the date of termination till the
date of reinstatement with continuity of service and
other attendant benefits. No cost.
Dictated to Stenographer, transcribed by her,
corrected and pronounced by me in the Open Court on
this the 07th day of July, 2017.
G. THANENDRAN,
Presiding Officer
Industrial Tribunal-cum-Labour Court
Puducherry.
————
List of petitioner’s witness:
PW.1 — 14-06-2017 — Koruvada Krishna
List of petitioner’s exhibits:
Ex.P1 — August, 2008 — Salary receipt issued
by the respondent to
the petitioner.
Ex.P2 — July, 2010
—
Salary receipt issued
by the respondent to
the petitioner.
Ex.P3 — 04-04-2012 —
Copy of the letter
sent by the petitioner
to Labour Inspector,
Ya n a m wh i c h i s i n
Telugu language along
with English translation
copy of the said letter.
Ex.P4 — 04-04-2012 —
S h o w c a u s e n o t i c e
i s s u e d b y t h e
respondent along with
the registered cover.
Ex.P5 — 05-04-2012 —
Notice sent by the
Inspector of Labour,
Y a n a m t o t h e
respondent.
Ex.P6 — 13-04-2012 —
Copy of the reply for
the show cause notice.
Ex.P7 — 30-04-2012 —
Copy of the counter
application by the
respondent before the
Inspector of Labour,
Yanam.
Ex.P8 — 16-05-2012 —
Copy of the counter
reply by the petitioner
before the Inspector, of
Labour, Yanam.
Ex.P9 — Undated
—
Copy of the notification
G. O. No.79/AIL/Lab./
J/2013.
Ex.P10 — 28-03-2013— Failure report by
Inspector of Labour,
Yanam.
List of respondent’s witnessess : Nil
List of respondent’s exhibits: Nil
G. THANENDRAN,
Presiding Officer
Industrial Tribunal-cum-Labour Court
Puducherry.
————
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 141/Lab./AIL/T/2017,
Puducherry, dated 4th October 2017)
NOTIFICATION
Whereas, the Award in I.D.(L)No. 29/2015,
dated 6-7-2017 of the Labour Court, Puducherry in
respect of the industrial dispute between the
Management of Sri Ram Charitable Trust, Puducherry
and Thiru D. Vadivelu, Puducherry through the India
Thozhirsanga Maiyam(CITU), Puducherry over
non-employment 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.
S. MOUTTOULINGAM,
Under Secretary to Government (Labour).
1175
24 October 2017]
LA GAZETTE DE L’ETAT
BEFORE THE INDUSTRIAL TRIBUNAL -CUM-
LABOUR COURT AT PUDUCHERRY
Present :Thiru G. THANENDRAN, B.COM., M.L.,
Presiding Officer.
Thursday, the 6th day of July 2017.
I.D. (L) No. 29/2015
D. Vadivelu,
No.42, Cuddalore road,
Barathi Mill Thittu, Mudaliarpet,
Puducherry - 605 004.
. . Petitioner
Versus
The Managing Director,
M/s. Sriram Charitable Trust,
No.54, I Cross Street Extension,
Brindavanam, Saram,
Puducherry - 605 013.
. . Respondent
This industrial dispute coming up before me for
final hearing on 29-6-2017 in the presence of
Thiru S. Sivakumar, representative for the petitioner,
Thiruvalargal K. Babu and C. Arivajagne, 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:
AWARD
1. This industrial dispute has been referred by the
Government as per the G. O. Rt. No. 53/AIL/Lab./J/2015,
dated 18-6-2015 for adjudicating the following:-
(i) Whether the industrial dispute raised by
Thiru D. Vadivelu against the management of
M/s. Sri Ram Charitable Trust, Puducherry over his
non-employment is justified ? If justified ? what
relief he is entitled to ?
(ii) To compute the relief if any, awarded in
terms of money if, it can be so computed?
2. The averments in the claim statement of the
petitioner, in brief, are as follows:
It is stated that the petitioner was in service for the
past five years in the respondent management and
rendered his service up to the satisfaction of the
management and while so, that on 1-10-2012, the
management refused employment to the petitioner
without any information and while questioning, the
management not provided any reason for the refusal of
the work and on the next day also the management
refused employment to the petitioner and though
the petitioner daily approached for employment, the
management not allowed to work and that the
respondent management assured that they will
provide employment from January-2013, when the
petitioner approached the respondent management and
the said management not provided any employment on
January-2013
and
also
not
replied
for
the
representations, dated 10-4-2013 and 23-4-2013
sent through registered post by the petitioner and that
due to refusal of employment without any reason by
the respondent management, the petitioner suffered
a lot without income and that the act of the respondent
is against the legal provisions and natural justice and
hence, the petitioner made a requisition through the
union before the Labour (Conciliation) Officer on
10-5-2013 for reinstatement with full back wages and
all other benefits and that the conciliation ended in
failure and further stated that as per section 2(J) of
Industrial Disputes Act, 1947, the respondent Sriram
Charitable Trust is an Industry and as per section 2(S)
of Industrial Disputes Act, 1947, the petitioner is a
workman
and
there
exist
employer-employee
relationship between the petitioner and the respondent
management and therefore, the refusal of employment
without any reason by the respondent management is
an unfair labour practice and against the Industrial
Disputes Act and therefore, prays for reinstatement
with continuity of service and back wages.
3. The brief averments in the counter filed by the
respondent are as follows:
(i) The respondent denied all the allegations made
by the petitioner in the claim petition and stated that
the allegations contained in the claim petition are
baseless, vexatious, imaginary and made out for a
case and does not bear any iota of truth and not
maintainable either in law or on facts and further
stated that the designation as referred to as
“Managing Director” in the respondent’s column in
the cause title is totally misleading and there is no
such designation and the respondent trust is
managed by the “Managing Trustee” and that the
petitioner was not an employee of the respondent
Trust at any point of time and there does not exist
any employee-employer relationship between the
petitioner and the respondent Trust and that the
respondent Charitable Trust is not an Industry and
it is not covered under the definition of “Industry”
under the Industrial Disputes Act, 1947 and does not
come under the purview of Industrial Disputes
Act, 1947.
1176
LA GAZETTE DE L’ETAT
[24 October 2017
(ii) It is further stated that as a part of the social
services rendered for the public, the respondent
used to organize free eye care camps at various
villages and the petitioner had participated in such
camps held between May, 2008 and September, 2012
as a volunteer and later the petitioner approached
the respondent Trust and requested to issue a
certificate for the services rendered by him
representing that he needs the same for his future
career and in order to appreciate the efforts and
support extended by the petitioner for the social
cause and obliging his request, the respondent
Trust issued him a certificate, dated 6-4-2013 and
the said certificate will itself categorically reveal
that it is not a service or employment certificate
and it is only a certificate issued to the petitioner
for the voluntary services rendered by him
through the respondent organization and it will also
clarify the petitioner was not an employee of the
respondent organization at any point of time and that
apart from these social activities the petitioner was
not connected with the respondent Trust at any point
of time and that the claim made by the petitioner
was purely a bogus claim which was made as an after
thought, after receiving an appreciation certificate,
dated 6-4-2013 from the respondent Trust.
(iii) The respondent also denied that the
representative of the respondent requested the
petitioner to come for bilateral discussion and
also stated that in the proceeding held on
20-2-2014, the petitioner has realized his mistake and
that of his wrong complaint requested the respondent's
representative for some amount on compassionate
ground
which
refused
by
the
respondent’s
representative and expressed the Trust’s inability to
consider the request of the petitioner and it is further
stated that the petitioner had wantonly concealed all
these facts and had concocted a new story just to grab
some money from the Trust by illegal means and to
give undue hardship and further stated that the
petitioner has no locus standi to seek reinstatement
with attendant benefits or any other claim from the
respondent Trust and that the issue will not come as a
dispute under the said Act and their Trust is not a
Industry under the said Act and therefore, prays this
Court to dismiss this industrial dispute.
4. In the course of enquiry on the side of the
petitioner, WW.l was examined and Ex.Wl to Ex.W18
were marked and no evidence has been let in by the
respondent and however, on the side of the respondent
Ex.Rl to Ex.R8 were marked.
5. The point for consideration is:
Whether the dispute raised by the petitioner against
the respondent management over his non-employment
is justified or not and whether the petitioner is entitled
for the relief as claimed by him?
6. Both sides are heard. The submission of both the
parties, the evidence let in by the side of petitioner and
the exhibits marked on both sides are carefully
considered. In support of his contention, the learned
representative for the petitioner has filed a written
argument and also filed a reply argument and has also
relied upon the Judgment in Bangalore Water Supply
and Sewerage Board, etc., Vs. R. Rajappa and others.
On the other hand, the learned Counsel appearing for
the respondent management has also filed a written
argument and in support of his case the learned
Counsel for the respondent has relied upon the
Judgment reported in (2008) 2 LLJ 550.
7. It is the evidence of the petitioner that he had
been in service of five years at the respondent
establishment and he has worked for the development
of the respondent establishment and when he was
going to work on 1-10-2012, the respondent
management has not permitted him to work and no
reason was assigned by the management and though he
had been regularly attending the establishment, his
employment was refused by the management and it was
told by the management that he would be joined in the
employment on 1-1-2013 and on the said date also the
respondent management has not permitted him to enter
into the establishment and therefore, he has got not
earnings from 1-10-2012 due to non-employment and
hence, he sent a letter to the respondent management
on 10-4-2013 and a remainder on 23-4-2013 asking
for employment with back wages to the respondent
and on 10-5-2013, he raised a dispute before the
Conciliation
Officer,
wherein,
the
respondent
management
has
stated
that
the
respondent
establishment is not an Industry and there is no
relationship of employee-employer between the
petitioner and the respondent establishment and further
that he has been terminated from service without
following any procedure and against the principles of
natural justice and without any notice the petitioner
was terminated from service and that therefore, he
was prayed for reinstatement with continuity of
service and back wages.
8. In support of his case the petitioner has exhibited
Ex.Wl to Ex.Wl8. On perusal of documents, Ex.Wl is
the copy of the letter given by the petitioner to the
respondent management on 10-4-2013. Ex.W2 is the
1177
24 October 2017]
LA GAZETTE DE L’ETAT
copy of the letter given by the petitioner to the
respondent management on 23-4-2013. Ex.W3 is the
copy of the petition filed by the petitioner before the
Labour Officer (Conciliation), Puducherry. Ex.W4 is
the copy of the reply submitted by the respondent
management before the Labour Officer(Conciliation),
Puducherry. Ex.W5 is the copy of the reply given by
the petitioner against the reply, dated 30-8-2013 of the
respondent management before the Labour Officer
(Conciliation), Puducherry. Ex.W6 is the copy of
the reply given by the respondent management against
the reply, dated 10-10-2013 of the petitioner before
the Labour Officer (Conciliation), Puducherry. Ex.W7
is the copy of the reply given by the petitioner against
the reply, dated 19-12-2013 of the respondent
management before the Labour Officer (Conciliation),
Puducherry. Ex.W8 is the copy of the letter given by
the petitioner to the respondent management on
1-7-2014. Ex.W9 is the Copy of the letter given by
the petitioner to the Labour Officer (Conciliation);
Puducherry. Ex.Wl0 is the copy of the letter given by
the respondent management at the time of enquiry.
Ex.Wll is the copy of the reply given by the petitioner
against the reply, dated 16-9-2014 of the respondent
management. Ex.W12 is the copy of the failure report
submitted by the Labour Officer (Conciliation) to the
Secretary to Government, Puducherry. Ex.W13 is the
copy of the notification given by the Labour
Department, Puducherry. Ex.W14 is the copy of the
certificate issued by the respondent management to the
petitioner. Ex.Wl5 is the copy of the letter given by
the respondent management to the Trust, DIG,
Puducherry. Ex.WI6 is the copy of the letter regarding
requisition of loan given by the respondent
management to Branch Manager, Puduvai Bharathiar
Grama Bank, Bahour, Puducherry. Ex.Wl7 is the copy
of the Bank Account book of Sri Ram Women Small
Industries Society, Bahour, Puducherry. Ex.Wl8 is the
Original visiting card of Sriram Rural Women
Development Society, Production Center.
9. From these documents, it is clear that there is a
communication between the petitioner and the
respondent establishment and the petitioner has raised
the industrial dispute before the Conciliation Officer
wherein, the respondent management has stated that
there is no relationship of employee and employer
between the petitioner and the respondent and that
therefore the Conciliation Officer has submitted a
failure report to the Government and the reference has
been sent to this Court and that the respondent
management has issued a certificate to the petitioner
on 6-4-2013 and that the respondent management is
functioning as Trust and they have applied a loan for
the Women Self Help Group in a Bank and requested
for the loan to be given to the Women Self Help
Group and further the petitioner has exhibited Ex.W14
which is a vital document would evident that the
respondent management has issued a certificate to the
petitioner Vadivelu on 6-4-2013 stating that the
petitioner was associated with organizing our Eye
Camp conducted by them from the year May, 2008 to
September, 2012.
10. On the other hand, it is stated by the respondent
management that the petitioner was not an employee
of the respondent Trust at any point of time and there
does not exist any employee-employer relationship
between the petitioner and the respondent Trust and
that the respondent is a charitable Trust and not an
Industry and it is not functioning for any profit and has
rendering only social service and that therefore, the
petitioner cannot seek any remedy from the
respondent establishment as a worker and in support
of the case, the respondent has exhibited. Ex.Rl to
Ex.R8. Ex.Rl is the acknowledgment of certificate
issued by the respondent management to the petitioner.
Ex.R2 is the copy of the proceedings of Conciliation
Officer, Puducherry. Ex.R3 is the letter of the
petitioner to the respondent management. Ex.R4 is the
copy of the letter of the petitioner to the respondent
management. Ex.R5 is original bills and copy of
payment voucher. Ex.R6 is the copy of proposal for
education aid for petitioner's son with its enclosures.
Ex.R7 is the copy of the Cheque No. 528539. Ex.R8
is the true copy of deed of Sriram Charitable Trust.
These documents would go to show that the
respondent management has issued a certificate to the
petitioner Vadivelu on 6-4-2013 stating that the
petitioner was associated with organizing our Eye
Camp conducted by them from the year May, 2008 to
September, 2012 and the petitioner has raised the
industrial dispute before the Conciliation officer,
Puducherry and on failure this reference has been
made by the Government to this Tribunal and the
petitioner has sent an application to the respondent
Trust stating that he is very poor and request to sponsor
cycle and computer for his two children and the
respondent management has also sanctioned annual
school fee of ` 20,030 to the son of the petitioner
on 20-7-2012.
1178
LA GAZETTE DE L’ETAT
[24 October 2017
11. From the pleadings and evidence, it is
clear that the respondent management has contended
that the petitioner is not an employee of the
respondent trust and furthermore, the respondent
trust is not an industry and that therefore, the
petitioner cannot claim anything under the Industrial
Disputes Act. On this aspect, records and documents
are perused. As pleaded by the petitioner that he is the
employee of the respondent establishment and had
been in service from 2008 to 2012 and only on 1-10-2012,
the respondent management has refused employment
to the petitioner and since, the respondent has denied
the averment of the petitioner that he is the employee
of the respondent establishment it is the duty cast
upon the petitioner to prove the relationship of
employee-employer between the petitioner and the
respondent before this Court, The petitioner has not
filed any document for their date of employment and
the salary particulars and other particulars whether he
was working as permanent worker or temporary or
casual or any communication of the respondent
management with him and he has also failed to file any
document to prove the fact that he has served at the
respondent management and worked as a workman for
about 240 days in the year preceding their termination
to infer that he is the permanent worker of the
respondent management and even he has not stated
anywhere in his claim statement that how much he was
given as a salary and how much was lastly drawn by
him. The petitioner has only filed a certificate issued
by the respondent establishment as Ex.W14 which
runs as follows:
“Mr. D. Vadivelu, S/o. Dharmalingam, residing
at No. 22, Library Street, Kuruvinatham, Bahour
Commune, Puducherry-607 402, was associated
with organizing our Eye Care Camps in rural areas
in and around Puducherry between May, 2008 to
September, 2012. We appreciate his sincere efforts
and support extended for the social cause”,
From the above content of the Ex.Pl4, it is clear that
the respondent management has certified that the
petitioner Vadivelu was associated with the organizing
Eye Care Camps in rural areas in and around
Puducherry from May, 2008 to September, 2012 and
the respondent management has further, appreciated his
sincere efforts and support extended by him for the
social cause and nowhere in the letter, the respondent
management has stated that the said Vadivelu is
working at this establishment as clerk or labour or in
any capacity and therefore, from this document alone,
it cannot be presumed that the petitioner is an
employee of the respondent Trust. Further, the
petitioner has stated in his evidence that his
employment was orally refused on 1-10-2012 while he
was attending duty at the respondent establishment
except the oral statement of the petitioner nothing is
before this Court in support of his case.
12. In Judgment reported in AIR 2004 SC 1639-
Workmen of Nilgiri Co-operative Marketing Society
Limited, Vs. State of Tamil Nadu and others, the
Hon’ble Supreme Court has held 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...”
and the Judgment in Gopal Vs. Bharat Sanchar
Nigam Limited the Hon’ble Delhi High Court has held
that,
“.....We agree with the respondent that the onus
to prove the relationship of employer-employee was
on the appellant as held by the Supreme Court in
Workmen of Nilgiri Co-operative Marketing Society
Limited Vs. State of Tamil Nadu (Supra). The
appellant could not produce appointment letter or
any other document to show the relationship of
employer and employee..”
From the above observations of the Hon’ble
Supreme Court and the Hon'ble High Court, it is clear
that the onus to prove the relationship of employer-
employee is only on the petitioner who has pleaded
that he is the employee of the respondent
establishment. But, in this case, the petitioner has not
exhibited any documents to prove the fact that he is
working at the respondent establishment as an
employee and nothing is before this Court to prove the
fact that he was working at the respondent
establishment as an employee. Furthermore, he has not
stated in his claim statement on which date he has
joined in the respondent establishment whether he has
made an application for his appointment or has
attended any interview at the respondent establishment
and whether he was appointed as a permanent workman
or temporary or casual labour and therefore, the
petitioner has utterly failed to establish that he had
been in service at the respondent establishment as an
employee.
1179
24 October 2017]
LA GAZETTE DE L’ETAT
13. Percontra, the respondent has exhibited two
letters given by the petitioner-Ex.R3 and Ex.R4.
Ex.R3 is a letter given by the petitioner to the
respondent trust asking help for their two children
which runs as follows:
“
N.S.S.
“”
From the above content of the letter, it is clear that
the petitioner has admitted the fact that he has been
working in a private establishment as a Field Officer
and he has not stated in that letter that he was working
at the respondent establishment and further Ex.R4 also
the letter addressed to the respondent trust by the
petitioner in which also the petitioner has stated
himself was working in a private establishment and he
was not stated that he was working at the respondent
establishment.
14. Further, the learned representative of the
petitioner has filed a reply argument stating that the
respondent management has issued a experience
certificate under Ex.W14 to the petitioner on 6-4-2013
for the service rendered by the petitioner in the
respondent establishment for the period of May, 2008
to September, 2012. But, the alleged Ex.W14
is not the experience certificate given by the
respondent and as above discussed the certificate was
issued by the respondent management to the
petitioner for as he has associated with organizing the
respondent eye care camps in the rural areas in and
around Puducherry and for the support extended by
him for the social cause and that therefore, the
certificate issued by the respondent management which
is marked as Ex.Wl4 would not evident that the
petitioner was in service as an employee or workman
in the respondent trust and further, it is stated by the
representative of the petitioner in his reply argument
that the petitioner has applied for education
scholarship for his son to the respondent management
and a cheque of ` 12,000 was given to him as he had
been in service at the respondent establishment. But,
the said application given by the petitioner to the
respondent management asking help for his son's
education would evident that he was working in the
private establishment and has earned only low income
in the said private establishment and he requested
educational help for his son from the respondent
establishment and that therefore, a cheque has been
issued by the respondent establishment and as a
beneficiary he has received it and hence, the
application given by the petitioner for the said
scholarship and a cheque issued by the respondent to
the petitioner for his son education would not prove
the allegation that the petitioner was working at the
respondent establishment.
15. Apart from that though the petitioner has
exhibited Ex.Wl & Ex.W2-letters which alleged to
have sent to the respondent management under the
registered
post
are
not
supported
by
any
acknowledgment of the receipt of the respondent
and the petitioner has not stated why he has not
exhibited the postal receipt or acknowledgment card
to prove the said communication under Ex.Wl and
Ex.W2 and that therefore, though the petitioner has
exhibited Ex.Wl to Ex.W18, he has utterly failed to
establish the fact that he was working at the respondent
establishment as an employee. As already discussed
by this Court that the onus to prove the relationship
of employee-employer is on the petitioner who has
claimed the relief and has pleaded that he was the
employee of the respondent establishment and since,
the petitioner has failed to prove the prima facie case
for the relationship of employee-employer, on the
score alone the petitioner is not entitled for any relief
as claimed by him.
16. Further, the another contention of the
respondent is that their establishment is not an industry
and it is only a charitable trust and in support of the
case they have relied upon the Judgment reported in
(2008) 2 LLJ 550. But, the petitioner has stated that
the respondent establishment is an industry and the
industrial dispute can be raised against the respondent
management and that therefore, the another issues to
be decided is whether the respondent establishment is
an industry or not. However, from the above
discussion, as this Court has already held that the
petitioner has failed to even establish the case that he
was a workman or an employee of the respondent trust,
it is not necessary or required to decide the said issue
whether the respondent establishment is an industry or
not since even if, it is decided as an industry
1180
LA GAZETTE DE L’ETAT
[24 October 2017
the petitioner is not entitled for any relief as the
workman as he has not established the relationship of
employee-employer and hence, the petitioner is not
entitled for any relief and as such the petition is liable
to be dismissed.
17. In the result, the petition is dismissed. No cost.
Dictated to the stenographer, transcribed by her,
corrected and pronounced by me in the open Court on
this the 06th day of July, 2017.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
————
List of pettitioner’s witness:
WW.1 — 22-02-2016— D. Vadivelu
List of pettitioner’s exhibits:
Ex.W1 — 10-04-2013 —Copy of the letter given
by the petitioner to. the
respondent management.
Ex.W2 — 23-04-2013 —Copy of the letter given
by the petitioner to the
respondent management.
Ex.W3 — 10-05-2013 —Copy of the petition
filed by the petitioner
before
the
Labour
Officer(Conciliation),
Puducherry.
Ex.W4 — 30-08-2013 —Copy
of
the
reply
submitted
by
the
respondent management
before
the
Labour
Officer(Conciliation),
Puducherry.
Ex.W5 — 10-10-2013 —Copy of the reply given
by the petitioner against
t h e r e p l y , d a t e d
30-08-2013
of
the
respondent management
before
the
L a b o u r
Officer (Conciliation),
Puducherry.
Ex.W6 — 19-12-2013 —Copy of the reply given
by
the
respondent
management against the
reply, dated 10-10-2013
of the petitioner before
the
Labour
Officer
( C o n c i l i a t i o n ) ,
Puducherry.
Ex.W7 — 20-02-2014 —Copy of the reply given
by the petitioner against
the
reply,
dated
19-12-2013
of
the
respondent management
before
the
Labour
Officer (Conciliation),
Puducherry.
Ex.W8 — 01-07-2014 —Copy of the letter given
by the petitioner to the
respondent management.
Ex.W9 — 28-07-2014 —Copy of the letter given
by the petitioner to the
L a b o u r
O f f i c e r
( C o n c i l i a t i o n ) ,
Puducherry.
Ex.W10— 16-09-2017 —Copy of the letter given
by
the
respondent
management at the time
of enquiry.
Ex.W11— 08-10-2014 —Copy of the reply given
by the petitioner against
the
reply,
dated
16-09-2014
of
the
respondent management.
Ex.W12— 28-01-2015 —Copy of the failure
report submitted by
the
Labour
Officer
(Conciliation) to the
S e c r e t a r y
t o
G o v e r n m e n t ,
Puducherry.
Ex.W13— 18-06-2015 —Copy of the notification
given by the Labour
Department, Puducherry.
Ex.W14— 06-04-2013 —Copy of the certificate
issued by the respondent
management
to
the
petitioner.
Ex.W15— 25-09-2009 —Copy of the letter given
by
the
respondent
management
to
the
Trust, DIG, Puducherry.
1181
24 October 2017]
LA GAZETTE DE L’ETAT
Ex.W16— 07-06-2010 —Copy
of
the
letter
regarding requisition of
loan
given
by
the
respondent management
to Branch Manager, Puduvai
Bharathiar Grama Bank,
Bahour, Puducherry.
Ex.W17— 24-08-2010 —Copy
of
the
Bank
Account book of Sri
Ram
Women
Small
Industries
Society,
Bahour, Puducherry.
Ex.W18— —
— Original visiting card of
Sriram Rural Women
Development Society-
Production Center.
List of respondent’s witness: Nil
List of respondent’s exhibits:
Ex.R1 — 06-04-2013 —Acknowledgment of
certificate issued by the
respondent management
to the petitioner.
Ex.R2 — 10-02-2014 —Copy of the proceedings
and
of Conciliation Officer,
20-02-2014
Puducherry.
Ex.R3 — 02-11-2010 —Letter of the petitioner
to
the
respondent
management.
Ex.R4 — 08-07-2012 —Copy of the letter of
the petitioner to the
respondent management.
Ex.R5 — 20-11-2010 — (i) Original bills.
01-12-2010— (ii) Co p y o f p ayment
voucher.
Ex.R6 — 20-07-2012 —Copy of proposal for
education
aid
for
petitioner’s son with its
enclosures.
Ex.R7 — 23-07-2012 —Copy of the Cheque
No.528539.
Ex.R8 — —
— True Copy of deed of
Sriram Charitable Trust.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
}| {
P
T
S
S
K. S