

La Gazette de L' État de Poudouchéry

The Gazette of Puducherry

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SOMMAIRES

CONTENTS

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Page

.. 1196

Sentence arbitral du travail

.. 1196

Award of the Labour Court .. 1196

de tribunal.



.. 1204

Notifications du Gouvernement .. 1204

Government Notifications .. 1204



.. 1210

Avis d’Adjudications

.. 1210

Tender notices

.. 1210



.. 1213

Etablissements dangereux

.. 1213

Dangerous Establishments

.. 1213



.. 1216

Annonces

.. 1216

Announcements

.. 1216

[1195]

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



2017 }

| 31 {

No.

Poudouchéry

Mardi

Octobre

2017 (9 Kartika 1939)

No.

Puducherry

Tuesday

31st

October

2017

1196

LA GAZETTE DE L’ETAT

[31 October 2017

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 142/Lab./AIL/T/2017,

Puducherry, dated 4th October 2017)

NOTIFICATION

Whereas, the Award in I.D.(L)No. 54/2012, 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 R. Ramayyan, 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 23-5-1991, it is

hereby directed by the Secretary to Government (Labour),

that the said Award shall be published in the Official

Gazette, Puducherry.

(By order)

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. 54/2012

R.Ramaiyan,

No. 37, Madhur Road,

Sethur,

Thirunallar Commune,

Karaikal.

. . Petitioner

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 by the

Government as per the G.O. Rt. No. 10/AIL/Lab./J/2011,

dated 24-1-2011 for adjudicating the following:-

(a) W h e t h e r

t h e

d i s p u t e

r a i s e d

b y

Thiru R. Ramaiyan 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?

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 I.D.No. 02/2011 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.54/2012.

2. The brief averments of the Claim Statement

filed by the petitioner are as follows:-

The petitioner stated that though he had been

working as “Bus Conductor” in the respondent

management from 1987 to 2005, 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

over time work wages, wages, festival bonus and

other welfare benefits provided under the various

Labour Acts and when he requested the respondent

management to raise his wages and to provide all

other benefits provided under the Labour Act, the

management shown a deaf ear to his legitimate

demands and without any valid reasons or prior

notice, the respondent management terminated him

from service and thereafter, he had approached the

respondent management with a request to pay all

the benefits to him for rendering service for 18

years but, the respondent had not given any

response and hence, he had requested the Labour

Officer, Karaikal to enquire into the matter and to

get all the benefits from the respondent transport

and during the conciliation proceedings the

respondent management stated that the petitioner

1197

31 October 2017]

LA GAZETTE DE L’ETAT

had not been terminated from the service and he

alone left the job without intimation and he had not

performed his duty in a rightful manner and hence,

the conciliation ended in failure.

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

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 averment of the counter statement

filed by the respondent is 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 Dispute 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” under section 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

and 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 is

permissible and not

proceeding under the

Industrial Disputes Act before a Labour Court.

Provident funds, E.S.I. 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 is no coverage of

E.S.I. 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,

before a Labour Court. The claim of weakly

holidays, over time salary, festival holidays, OT

wages, festival bonus and other imaginary benefits

are not entitled by the petitioner as he has not

performed it, not in continuous service, duty time

salary is 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 respondent further stated that the petitioner

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 PW.1 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 PW.1

in the enquiry he was fully cross-examined by the

respondent

management

and

subsequently,

the

respondent management has not produced any witness

1198

LA GAZETTE DE L’ETAT

[31 October 2017

on his 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.

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 the PW.1 that the petitioner was

working as a Bus Conductor in the respondent

transport for the period from 1987 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 holidays over time 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 though he has

filed some documents along with the claim petition.

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

Bus

Conductor

the

respondent

establishment for the period from 1987, 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 1987 and was

working till 2005 by exhibiting the documents but, in

this case the petitioner though examined himself as

PW.1 no document was exhibited on his side.

10. Further more, the petitioner PW.1 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 PW.1

runs as follows:

“





































































”

1199

31 October 2017]

LA GAZETTE DE L’ETAT

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 1987 while it is stated

by the respondent management that the respondent

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 1987 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

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

respondent establishment and that therefore, the

dispute

raised

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

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— R. Ramaiyan

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.

————

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 143/Lab./AIL/T/2017, dated 4th October 2017)

NOTIFICATION

Whereas, the Award in I.D.(L)No. 12/2015,

dated 17-07-2017 of the Industrial Tribunal-Cum-

Labour Court, Puducherry in respect of the industrial

dispute between Thiru K. Vellaiyan, S/o. Kaliavaradhan,

Nettapakkam, Puducherry against the management of

M/s. AML Steel Limited, Nettapakkam, 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 23-5-91, it is hereby

directed by Secretary to Government (Labour) that the

said Award shall be published in the Official Gazette,

Puducherry.

(By order)

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,

Monday, the 17th day of July, 2017

I.D. (L) No. 12/2015

Vellaiyan,

S/o. Kaliavaradhan,

No.30, Mariamman Koil Street,

Eripakkam;Nathamedu,

Kariyamanikkam Post,

Nettapakkam, Puducherry.

. . Petitioner

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LA GAZETTE DE L’ETAT

[31 October 2017

Versus

The Managing Director,

AML Steel Limited,

No.33/5, Eripakkam Village,

Nettapakkam, Puducherry.

. . Respondent.

This industrial dispute coming on 10-07-2017

before me for final hearing in the presence of

Thiru R.T. Shankar, Counsel for the petitioner,

Tvl. Malarvizhi Udayakumar,

D. Johnsamuvel,

K. Parthiban & V. Palanikumar, Counsels for the

respondent, upon hearing, upon perusing the case

records, after having stood over for consideration till

this day, this Court passed the following:

AWARD

1. This is a petition filed by the petitioner under

section 2-(A) of the Industrial Disputes (Amendment)

Act, 2010 praying to pass an Award directing the

respondent management to reinstate the petitioner with

full back wages, continuity of service and all other

attendant benefits.

2. The averments in the claim statement

of the petitioner, in brief, are as follows :

The petitioner joined with respondent management

in the month of May, 1996 as Office Assistant/

Attender and discharged his duties without any remarks

and utmost satisfaction of the respondent till last date

of employment and 300 employees have been working

at the respondent establishment out of which most of

the employees are North Indians and Tamils are only

10 nos. from Pondicherry and Tamil Nadu and the

petitioner was paid the total salary of ` 1,500 and

recently the management paid the salary of ` 4,500 per

month and the petitioner requested the management for

the wage increase on par with minimum wages and it

was denied by the management and on 23-10-2013, the

respondent management not allowed the petitioner to

enter the factory and he was informed that he was

terminated orally by the management and further stated

that by an act of victimization and motivation the

management issued an order of transfer to the

petitioner to report duty at Head Office, Chennai with

immediate effect and further, stated that inspite of it

the petitioner reported immediately on the same day

on 25-10-2013 at 12.30 p.m., as directed by the

management at the Chennai Unit and also signed in the

entry note maintained by the Security.

The petitioner further stated that the respondent

management not allowed him to enter inside the

factory and asked to sit outside the factory premises

and thereafter, asked to report him on 26-10-2013 and

as instructed by the management he reported to duty

on 26-10-2013 and again he was not allowed to enter

the factory premises and instructed to go out by the

said management

and further stated

that his

employment was denied by the management and he was

not allowed to enter the factory premises and

therefore, after three days, the petitioner returned to

his original work place at Puducherry unit and further

stated that the management denied employment to the

petitioner and not allowed him to enter the factory and

therefore, the petitioner raised an industrial dispute

against the respondent management over non-employment/

otherwise termination under the Industrial Disputes Act

vide representation, dated 3-12-2013.

The petitioner further stated that the respondent

management by an act of victimization and motivation

denied employment as the petitioner requested for the

salary increase and implement as it was not paid and

bonus was also not paid to him and further stated that

out of 300 employees only 10 employees were on roll

and other employees were engaged on contract system

against the Contract Act and all the said employees

more than 280 workmen belongs to North India and

further stated that the respondent management so far

not extend the benefit of ESI and EPF to their

workmen and also so far the management have not

extended the benefit of leave salary, over time

allowances, weekly holiday, bonus, etc., which are

statutory benefits under the Social Security Acts and

that the respondent management not maintaining any

records such as attendance register, wage register,

leave register, etc., to their workmen and that all the

workmen including the petitioner working for more

than 12 hours per day and no allowances were paid

under the Act.

The petitioner further stated that during the

conciliation proceedings the respondent management

eventhough participated not extended their co-operation

and not submitted the records such as attendance

respondent management not submitted any reply in this

regard and also failed to submit valid reason for denial

employment

the

petitioner

and

during

conciliation proceedings the Conciliation Officer

was advised the respondent management to

provide employment to the petitioner as there is no

valid reason for denial of employment and it was

against the principles of natural justice and Industrial

Disputes Act. But, the same was ended in vain and

further stated that the respondent management has no

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31 October 2017]

LA GAZETTE DE L’ETAT

right to transfer the petitioner to different regions and

hence, the transfer order issued by the respondent

management is arbitrary and illegal one and also

against the Industrial Disputes Act, 1973 and

therefore, the said transfer order is liable to be set-

aside and subsequently the refusal of employment to

the petitioner is illegal and unlawful one and that the

act of the respondent management is attracted an unfair

labour practice under the fifth schedule, Item No.7 of

Indusutrial Disputes Act, 1947 and therefore, the

respondent management found guilty by adopting the

said clause and the respondent management abruptly,

absolutely accountable to be prosecuted under law in

accordance with provision of Industrial Disputes

Act, 1947 and further, that the petitioner had also

approached the Labour Officer-Conciliation, at

Puducherry on 3-12-2013 but, within the period of 45

days, there is no amicable settlement arrived and

therefore, as per the Amended Act (24 of 2010), the

petitioner is constrained to file this petition before

this Court and prayed for reinstatement with full back

wages, continuity of service and all other attendance

benefits.

3. The brief averments in the counter filed by the

respondent are as follows :

The respondent denied the averments made by the

petitioner in the claim petition except those that are

specifically admitted by them in the counter statement

and stated that the petitioner has been working in the

company since 1996 and during October, 2013 as there

was a shortage of staff in the Head Office, Chennai-86

the petitioner being an experienced person was

transferred to the Head Office and communication was

sent to the petitioner on 25-10-2013 informing him

that he is transferred to the Head Office AML Tower,

No. 9, 6th Street, Gopalapuram, Chennai-600 086 due

to administrative reasons and he was granted one week

time with pay for reporting to new station and further

stated that the petitioner though acknowledged their

letter on 25-10-2013 failed to report within the time

granted and did not sent any communication, which

resulted in a lot of confusion and hence, the

respondent was forced to issue a show cause notice,

dated 20-11-2013 directing the petitioner to join duty

immediately failing which disciplinary action would be

initiated for disobedience and no reply was submitted

to the respondent for the show cause notice and

instead, the petitioner went directly to the Labour

Officer, Labour Department, Puducherry on 3-12-2013

with false particulars that work was not given and not

allotted and further stated that the petitioner was not

satisfied with the working condition he would not have

continued to work for 17 long years and proper

records and Register has been maintained and thus, it

is not wrong to transfer a workman, if there is a need

by the management and that this cannot be construed

to be mala fide and there has been no violation any

provisions of Industrial Disputes Act, 1947 and prayed

this Court to dismiss the claim petition.

4. In the course of enquiry on the side of the

petitioner WW.1 was examined and Ex.Wl to Ex.W8

were marked and on the side of the respondent though

the case was adjourned for several hearings, the

respondent has not turned up and no witness was

produced by the respondent and no documents were

marked by them.

5. The point for consideration is:

Whether the petitioner is entitled for the Order of

reinstatement with back wages, continuity of service

and all other attendant benefits or not?

6. The argument was heard. The learned Counsel

appearing for the petitioner has argued that they have

established through oral and documentary evidence

that the petitioner was working at the respondent

establishment for about 15 years as an Office

Assistant/Attender and he was transferred by the

respondent management with a direction to report

before the Head Office AML Tower, No.9, 6th Street,

Gopalapuram, Chennai - 600 086 and as per the Order,

the petitioner has appeared on 25-10-2013 at the

respondent Head Office at Chennai wherein, the

signature of the petitioner was obtained and the

petitioner was asked to sit outside the factory and

thereafter, the petitioner was asked to report on the

next day i.e., 26-10-2013 and on which date also the

petitioner was refused to enter into the factory

premises and after three days the petitioner returned

to the factory from which he was transferred wherein,

also the petitioner was refused to enter the factory by

the respondent management and that therefore, he has

raised the industrial dispute before the Conciliation

Officer. On the side of the respondent though several

opportunities were given to putforth their case no

argument was putforth by the respondent and hence,

with no other option the argument of the respondent

was closed.

7. On careful perusal of claim statement filed by the

petitioner and counter statement filed by the respondent

management it is clear that following facts are admitted

by both the parties that the petitioner was working at the

respondent establishment from the year 1996 and

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LA GAZETTE DE L’ETAT

[31 October 2017

he was transferred to the Head Office at Chennai by the

respondent management on 25-10-2013 and he was

granted one week time with pay for reporting at the

new station and a show cause notice was issued to him

on 20-11-2013 and the petitioner has raised the

industrial dispute before the Conciliation Officer

on 3-12-2013.

8. It is the evidence of the petitioner WW.1 that he

had been in service at the respondent establishment as

an Office Attender from May, 1996 and working for

about 17 years without any remarks and he has been

granted only ` 4,500 as salary by the respondent

management even he has completed 17 years of

service at the respondent office as an Office Assistant

and he has requested for wage increase for which the

management has denied to pay even the minimum

wages to the petitioner and has started all sort of unfair

labour practice against the petitioner and he was

transferred by the respondent management by an Order

dated 25-10-2013 to the Head Office at Chennai with

immediate effect and though he has reported

immediately on the same day on 25-10-2013 at the

respondent Head Office at Chennai and also signed in

the entry note maintained by the Security, the

management has not allowed him to enter inside the

factory and directed him to report on 26-10-2013 and

though the petitioner has reported as directed by the

respondent management on 26-10-2013 again the

petitioner was not allowed to enter the factory

premises and was instructed to go out the factory and

thereafter, he has returned to the original work place

at Puducherry wherein, the respondent management has

denied employment to him by not allowing him to

enter the factory and that therefore, he raised an

industrial disputed before the Conciliation Officer

against the respondent management.

9. In Order to establish the case, the petitioner has

exhibited the copy of the letter of Transfer Order given

by the respondent to the petitioner on 25-10-2013 as

Ex.Wl, the letter of notice given by the respondent

to the petitioner on 20-11-2013 as Ex.W2, the

dispute

raised

the

petitioner

before

the

Labour Officer (Conciliation) on 03-12-2013 as

Ex.W3, the letter given by the petitioner before the

Labour Officer (Conciliation) on 01-07-2014 as

Ex.W4, the failure report submitted by the Labour

Officer - Conciliation, Puducherry on 01-12-2014 as

Ex.W5, the experience letter given by the respondent

to the petitioner on 30-04-2013 as Ex.W6, the copy

of the ESIC Card given by Employee's State Insurance

Corporation to the petitioner on 01-12-2003 as

Ex.W7, the copy of the EPF slip given by the

Employee's Provident Fund to the petitioner for

various financial years of 2001-2002, 2005-2006 and

2006-2007. These documents would go to show that

the petitioner was working at the respondent

management from May, 1996 and he was working for

about 17 years and he has been transferred by the

respondent management on 25-10-2013 to Chennai

Head Office and subsequently on 20-11-2013, he was

directed to report before the respondent management

at Chennai and thereafter, he has raised the industrial

dispute before the conciliation on 03-12-2013 and the

conciliation was failed and the reference has been sent

to this Court and while he was in employment at the

respondent establishment he has been paid ESI

contribution by the respondent management and also

given ESCC Card and he has also been paid EPF for

the financial year 2001-2002, 2005-2006 and 2006-2007.

10. Admittedly the petitioner has been transferred

from Puducherry to Chennai Head Office on 25-10-2013

and it is the case of the petitioner that he appeared on

25-10-2013 at the respondent Head Office at Chennai

as directed by the respondent management under the

Transfer Order, but, he has not been allowed to enter the

factory and he has been asked to appear on the next day

on which day also he was not allowed to enter into the

factory and hence, he has returned to the original

working place at Puducherry wherein, also he has

denied employment. On the other hand, it is the

contention of the respondent management that the

petitioner has not appeared before the respondent

office at Chennai as per the Order of transfer, dated

25-10-2013 and that therefore, he has been given show

cause notice on 20-11-2013 to report before the

respondent Head Office at Chennai and due to the

administrative reason alone he has been transferred for

which he has not obeyed and that therefore, he is not

entitled for the Order of reinstatement.

11. It is not the case of the respondent management

that they have initiated any disciplinary proceedings

against the petitioner workman for the non-appearance

at the Head Office as per the Transfer Order and a

charge memo was served on him and an Enquiry

Officer was appointed and the Enquiry Officer filed

any report before the respondent management finding

any guilty against the petitioner workman and

therefore, he has been terminated from service on the

finding of the Enquiry Officer. As the petitioner is the

permanent workman of the factory since he has served

as an Attender at the respondent management for about

17 years, it is the duty cast upon the respondent to

adopt procedure laid down under the labour laws and

the opportunity ought to have been given to the

petitioner workman to defend his case by conducting

domestic enquiry for his non-appearance at the

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31 October 2017]

LA GAZETTE DE L’ETAT

respondent Head Office at Chennai as directed by them

and to conduct the domestic enquiry by an Enquiry

Officer by taking evidence and marking exhibits by

giving opportunity to the petitioner to defend his case.

But, in this case nothing is done by the respondent

management for terminating the petitioner workman

from the respondent establishment and that therefore,

the refusal of employment to the petitioner without

adopting any proper steps in accordance with law by

following the principles of natural justice which would

go to show that the respondent management has

committed unfair labour practice as stated by the

petitioner and that therefore, the industrial 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.

12. 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 Judgment reported in U.P. State

Brassware Corporation Ltd., Vs. Uday Narain Pandey

(supra), wherein, the Hon'ble 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 Dispute 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, 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% back wages with continuity of

service and other attendant benefits.

13. 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 the stenographer, transcribed by her,

corrected and pronounced by me in the open Court on

this the 17th day of July, 2017.

G. THANENDRAN,

Presiding Officer,

Industrial Tribunal-cum

Labour Court, Puducherry.

————

List of petitioner’s witnesses:

WW.1

—01-02-2016 K. Vellaiyan

List of petitioner’s exhibits:

Ex.Wl — 25-10-2013 Letter of Transfer

Order given by the respondent to

the petitioner.

Ex.W2 —

20-11-2013 Letter of notice given by

the respondent to the petitioner.

Ex.W3 —

03-12-2013 Dispute raised by the

petitioner before the Labour Officer

(Conciliation).

Ex.W4 —

01-07-2014 Letter given by the

petitioner before the Labour Officer

(Conciliation).

Ex.W5 —

01-12-2014 Failure report submitted

by the Labour Officer-Conciliation,

Puducherry.

Ex.W6 —

30-04-2013 Experience letter given

by the respondent to the petitioner.

Ex.W7 —

01-12-2003 Photocopy of the

ESIC Card given by Employee's

State Insurance Corporation to the

petitioner.

Ex.W8 — Several dates photocopy of the

EPF slip given by the Employee's

Provident Fund to the petitioner for

various financial years of 2001-

2002, 2005-2006 and 2006-2007.

List of respondent’s witnesses: Nil

List of respomndent’s exhibits : Nil

G. THANENDRAN,

Presiding Officer,

Industrial Tribunal-cum

Labour Court, Puducherry.