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La Gazette de L' État de Poudouchéry

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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]

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| 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







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