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26 {
No.
52
Poudouchéry
Mardi
26
Decembre
2017 (5 Pausa 1939)
No.
Puducherry
Tuesday
26th
December
2017
1394
LA GAZETTE DE L’ETAT
[26 December 2017
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 169/Lab./AIL/T/2017,
Puducherry, dated 6th November 2017)
NOTIFICATION
Whereas, an Award in I.D (L) No. 78/2012, dated
19-09-2017 of the Labour Court, Puducherry in respect
of the Industrial Dispute between the Management of
M/s. Cannanore Spinning and Weaving Mills (CS & W Mill),
Mahe and Thiru K. Vinodan, Mahe 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 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.
Tuesday, the 19th day of September 2017
I.D. (L) No. 78/2012
K. Vinodan,
Thusharam,
Keloth House,
P.O. Peringadi,
Mahe–673 312.
. . Petitioner
Versus
The General Manager,
Cannanore Spinning and Weaving
Mills, Pallor, Mahe.
. . Respondent.
This industrial dispute coming on 31-08-2017 before
me for final hearing in the presence of M.K. Suresh
Kumar, Advocate, for the petitioner, Thiru Shashi,
D. Nambiar, Advocate for the respondent, upon hearing
both sides, upon perusing the case records, after having
stood over for consideration his day, this Court
passed the following:
AWARD
1. This Industrial Dispute has been referred by the
Government as per the G. O. Rt. No. 108/2007/Lab.
AIL/J/2009, dated 04-07-2007 for adjudicating the
following:-
(i) Whether the termination of Thiru K. Vinodan
by the management of M/s. Cannanore Spinning and
Weaving Mill (CS & W Mill), Mahe is justified or
not?
(ii) To what relief, the petitioner is entitled to?
(iii) To compute the relief, if any awarded in
terms of money, if it can be so computed?
2. It is the case of the petitioner that he had been
working from 1986 at the respondent establishment
and he was a permanent employee and a memo., dated
01-02-2006 was issued by the management to the
petitioner and subsequently he was placed under
suspension pending enquiry on the basis of complaint
of one Mr. Thomas Sebastian, the then Senior
Technical Assistant of the Mill and the allegation
against the petitioner is that the petitioner has
molested the 7 year old child of Mr.Thomas Sebastian
at Mill premises on 01-02-2006 at about 06.00 p.m.,
and the domestic enquiry was conducted against him
and on the basis of the findings of the Enquiry Officer
he was dismissed from service with effect from
31-07-2006 and the entire allegation is only made with
an intent to throw him out from the Mill and during
the petitioner long tenure of service of about 20 years
of service in the Mill he has not given any room for
making any complaint or allegation against him and he
is an active union worker to serve at the interest of the
workmen and Mr.Thomas Sebastian was used as tool
by the management to attain their objective and the
malicious motive of the management is seen reflected
at the very beginning of the episode and the
management denied sufficient opportunities to defend
his part in the domestic enquiry and knowing the fact
that the petitioner have no previous experience or
acquaintance in the domestic enquiry as he is a layman
he is not permitted to conduct the Advocate and while
the domestic enquiry was conducted by the legal
practitioner of the Hon'ble High Court even petitioner
has requested management to allow the petitioner to
avail the assistance of a legal practitioner, his request
was turned out by the Enquiry Officer and the
management also knowing the fact the co-worker who
has been permitted to assist the enquiry to the
petitioner is also an uneducated layman who has only
studied up to 3rd or 4th standard and furthermore the
1395
26 December 2017]
LA GAZETTE DE L’ETAT
statement given by Mr. Thomas Sebastian, the father
of the child is totally contradictory to the statement
given by other witnesses of the management and the
management is enemical towards petitioner on account
of the trade union rivalry and the domestic enquiry
conducted violating all norms of principles of natural
justice and the domestic enquiry is nothing but farce
and the charge sheet has been foisted against him there
is no truth or merit in it and that the enquiry conducted
an Advocate Kuttan was biased and partial and he acted
all along the enquiry proceedings as a man of the
management and he had not given sufficient
opportunity to the petitioner to defend his case.
3. It is contended by the respondent stating that on
01-02-2006 at 6.00 p.m. the petitioner Vinodan has
sexually harassed the 7 year old daughter of the then
Senior Technical Assistant namely Mr. Thomas
Sebastian at the supervisors rest room while he was
served as a watchman and he has riotously and
disorderly behaved with Sri. Santhosh TGB of the Mill
at about 07.30 p.m., on 01-02-2006 and tried to assault
him with a torch and he has also threatened and
showered abuses on Sri. P.T.Valsaraj, on 02-02-2006
over Mill phone and over his mobile phone in filthy
language that he will attack and do physical harm to
him jointly with his friends and men and he will cause
all sorts of trouble to him using his financial position
and he has committed several mis-conducts under the
standing order of the Mill and charge memo was
issued to the petitioner as per memo., dated 01-02-2006
and he was also placed under suspension pending
enquiry on the basis of a complaint filed by then
Senior Technical Assistant and it was reported in the
complaint that on 01-02-2006 at 6.00 p.m. when he
and his wife have gone away from the mill quarters the
watchman on duty, the employee, at the relevant time
molested his 7 years old daughter and since the
explanation submitted by the employee to the charge
levelled against him was unsatisfactory, the management
decided to conduct a domestic enquiry into the
charges levelled against him as per memo of charges
and one Advocate Kuttan was appointed to conduct the
domestic enquiry and after conducting the domestic
enquiry the Enquiry Officer submitted a report
on 08-06-2006 finding that the employee is guilty of all
charges of mis-conduct alleged against him and
thereafter the management has served the copy of the
enquiry report to the petitioner seeking his objection
if, any in respect of the findings of the Enquiry Officer
and on receiving the memo. along with the copy of the
enquiry report the employee has submitted his
explanation on 20-07-2006 and after considering the
explanation it was not satisfactory to the management
and as the Enquiry Officer conducted the enquiry in
accordance with the principles of natural justice by
giving
sufficient
opportunities
to
the
parties
concerned and misconduct committed by the petitioner
is very serious and severe and also which involves
moral turpitude the management has dismissed the
employee from service on 31-07-2006 in accordance
with the law and that therefore, the dismissal of the
employee is legal and fully justified and there is no
illegality in the decision the management to dismiss
the employee from service.
4. In the course of enquiry on the side of the
petitioner RW.l was examined and Ex.Rl to Ex.R5
marked and on the side of the respondent management
the Enquiry Officer PW.l was examined and Ex.M1 was
marked.
5. The point for consideration is:
Whether the termination of petitioner by the
respondent management is justified or not and if
justified what relief the petitioner is entitled to?
6. Both sides are heard. The submission of both the
parties, the evidence let in by either sides and the
exhibits marked on both sides are carefully considered.
On the side of the petitioner written argument was
filed and the same is carefully considered.
7. From the pleadings of both the parties and
the evidence let in on either sides, it is clear that the
following facts are admitted by either sides that the
petitioner was working as watchman at the respondent
establishment and the charge memo was given to him
stating that he has molested the 7 year old child of the
then Senior Technical Assistant Mr.Thomas Sebastian
while he was went away along with his wife leaving his
child, for which the petitioner employee has given an
explanation and thereafter the management has
appointed the domestic Enquiry Officer to conduct the
domestic enquiry and on the foot of the enquiry report
the second show cause notice was given to the
petitioner and thereafter the petitioner was given
explanation and thereafter the management has
terminated the petitioner from service against which
the petitioner has approached the Labour Conciliation
Officer wherein the conciliation was failed and has
referred the matter to this Tribunal for adjudicate
whether the industrial dispute raised by the petitioner
over his termination of service is justified or not.
1396
LA GAZETTE DE L’ETAT
[26 December 2017
8. The respondent management in order to prove
the case examined the Enquiry Officer who conducted
the domestic enquiry as PW.1 and marked Ex.M1.
Ex.M1 is the enquiry report of the Enquiry Officer.
9. To establish his case the petitioner has examined
himself as RW1 and Ex.Rl to Ex.R5 were marked.
Ex.Rl is the certified copy of the Judgment passed in
STR.No. 527/2006 by Judicial Magistrate at Mahe on
29-08-2006. Ex. R2 is the true copy of the complaint
given by the petitioner to the General Manager, CS and W
Mill on 02-01-2006. Ex. R3 is the true copy of the
Gate Register maintained at the respondent Mill
between 31-01-2006 to 02-02-2006. Ex.R4 is the true
copy of the Log Register maintained at the respondent
Mill between 28-01-2006 to 02-02-2006. Ex. R5 is
the true copy of the Rounds book maintained at the
respondent Mill between 31-01-2006 to 01-02-2006.
Ex.R1 would reveal the fact that criminal case which
was registered against the petitioner delinquent
workman was charge sheeted after the investigation
and subsequently this petitioner was acquitted on the
ground that the matter was compromised between the
carries under section 320(2) of Cr.P.C.
10. It is the main contention of the petitioner that
the domestic enquiry was not conducted by
Enquiry Officer fairly and following the principles of
natural justice and that the petitioner was denied the
assistance of legal practitioner though he has
requested the Enquiry Officer to permit him to appoint
an advocate to assist the enquiry and that he has not
been given sufficient opportunities to putforth his case
and the Enquiry Officer has conducted the enquiry in
a biased manner as a man of the management.
11. On the other hand, it is contended by the
respondent management that the allegation against the
petitioner is very serious and severe in nature that on
01-02-2006 at 6.00 p.m. the 7 year old daughter of
Mr. Thomas Sebastian, the then Senior Technical
Assistant was molested by him at supervisors rest
room and apart from the charge he has also been
charged for the misconduct that he has committed
riotous and disorderly manner and the domestic
enquiry was conducted properly and following the
principles of natural justice and that on the foot of the
domestic enquiry report after giving due show cause
notice to the petitioner to submit his comments over
the domestic enquiry report and since the explanation
of the petitioner is not satisfied to the management
the petitioner was dismissed from service.
12. It is learnt from the records that though the
petitioner has pleaded that the domestic enquiry
conducted against the delinquent workman is not fair
and not in accordance with the principles of natural
justice and the said pleading was denied by the
respondent management, the then Presiding Officer of
this Tribunal has not taken the issue as a preliminary
issue and to decide the same at the initial stage.
Now, both the parties have let evidence in support of
their pleadings and particularly the respondent
management has let evidence at the first instance and
the respondent witness was examined as PW1 and
exhibit was marked as Ex.M1 and the delinquent
workman was examined as RW.l and Ex.Rl to Ex.R5
were marked. Since both the parties have let evidence
it is just and necessary to dispose the main industrial
dispute regarding industrial dispute raised by the
petitioner union against the respondent management at
this stage.
13. Now, the issues to be decided before this
Tribunal are whether the domestic enquiry conducted
by the Enquiry Officer who was appointed by the
management to conduct the enquiry against the
petitioner has conducted the enquiry fairly or not and
whether he has given sufficient opportunities to the
petitioner or not and whether the punishment is
proportionate to the charges or not?
14. It is the first main contention of the petitioner
delinquent workman that though he is a watchman and
having no educational knowledge and the Presenting
Officer is the Deputy Engineer of the respondent
company and the charges levelled against the
petitioner delinquent is grave in nature, the domestic
Enquiry Officer has rejected the permission to the
petitioner to appoint a legal practitioner to assist him
in the domestic enquiry which is against the principles
of natural justice and the domestic Enquiry Officer has
conducted the enquiry in a biased manner.
15. As rightly pointed out by the learned Counsel
for the petitioner admittedly the Enquiry Officer who
conducted the domestic enquiry has not permitted the
petitioner to engage an Advocate stating that the
standing order does not permit the workman to engage
an Advocate in the domestic enquiry and it is also
an admitted fact that in the domestic enquiry the
petitioner was permitted only to get assistance of
co-worker and the request of the delinquent workman
was rejected by the Enquiry Officer to permit him to
assist by the legal practitioner. The evidence of the
Enquiry Officer who was examined as PW.l in this case
runs as follows:
1397
26 December 2017]
LA GAZETTE DE L’ETAT
“...............The enquiry was held first on 31-03-2006. The
management was represented by Sreenivasan Deputy
Engineer. I have not specified his qualification etc.,
The disciplinary action started from the first notice
issued by the management basing on the allegations.
The employee submitted explanation to the charge
sheet. If, no explanation is receiving the Management
has to conduct enquiry. The Management has to prove
the charges. Rules of procedure in CPC and Evidence
Act are not applicable. The workman involved in the
dispute has no previous experience in participating in
disciplinary proceedings. I cannot say. In the explanation,
he has stated that he not committed any offence, brief
explanation is submitted. I do not know whether the
workman is having experience in cross examining the
witness. I have given my ruling as an Enquiry Officer
on the engaging lawyer on behalf of the workman.
On that day I have not made up my mind, only in the
next posting only passed orders. The decision was
taken not on the date when the matter was posted but
the order was communicated to him. The standing order
does not provide for procedure for domestic enquiry.
I would not comment upon now. Only after reading the
standing order I can say. No provision was brought to
my notice for appointing of Advocate for defending
workman. When there is no provision the principles of
natural justice, Judgment of Supreme Court shall be
followed. There is no such law that when livelihood of
the workman is at stake he can speak through a lawyer.
If, a lawyer is permitted it will promote the chance of
defending the case property. I admit that if the workman
is permitted to engage a lawyer the management would
not be prejudiced. Except a lawyer there was no
competent person to defend the workman that is why
he requested for engaging the Lawyer, but the same
was not allowed, I deny the suggestion. In page 82 the
employee has requested that one T.K. Surendran may
be allowed to assist him in proceedings. The same is
after rejecting of request made by the employee for
engaging a lawyer. I do no know whether Surendran
has previous experience in defending disciplinary
proceedings.......”
From the above evidence it is clear that the
contention of the Enquiry Officer that the standing
order does not prohibit the delinquent workman to
engage a counsel and it was silent with regard to the
same. While so, it is also clear from the evidence of
PW.l the Enquiry Officer that the Presenting Officer
is the Deputy Engineer of the respondent factory.
While so it is stated by the Enquiry Officer regarding
the educational qualification of the delinquent
workman who is admittedly working as watchman that
he is not having the qualification like the Deputy
Engineer and that therefore, the permission to defend
the case with the assistance of the Advocate is denied
by the Enquiry Officer and therefore, admittedly the
petitioner's requisition was rejected by the Enquiry
Officer to appoint an Advocate to defend his case while
the charge levelled against the petitioner is severe in
nature.
16. Furthermore, as rightly pointed out by the
petitioner's counsel that admittedly the standing order
absolutely was silent as to domestic enquiry and
representation by parties in the domestic enquiry
regarding the representation of the domestic enquiry
proceedings and that there is no provision of standing
order for engage an Advocate for delinquent workman
for defending his case in the domestic enquiry
proceedings. On this aspect the learned counsel also
relied upon the Judgment reported in 1995 ILLJ1011,
1017(Kant). wherein the Hon'ble High Court has
observed that,
"(a) The right to be represented by a legal
practitioner is not an element of principles of
natural justice.
(b) A delinquent will have the right to claim to
be defended by legal practitioner, where the rules
or regulation permit the employee to be represented
by a legal practitioner.
(c) Where the rules or regulation are silent
about representation by a lawyer or vest a discretion
in the disciplinary authority or the inquiry authority,
to permit the employee to be represented by a legal
practitioner or other agent of his choice denial of
such permission a request made by the employee,
would violate the principles of natural justice.
(i) If
the Presenting Officer
is
a
legal
practitioner or a person legally trained or
experienced or
(ii) If the charges are serious and complex
nature.
(d) Where rules or regulations specifically
prohibit the employee from engaging the service of
a legal practitioner, such rules or regulations will
be read down as vesting a discretion in the
disciplinary authority to permit the employee to
engage a legal practitioner, where
(i) The Presenting Officer is a legal practitioner
or legally trained person, or
1398
LA GAZETTE DE L’ETAT
[26 December 2017
(ii) The charges are of a serious and complex
nature if it is not so read down, the rule itself
may have to be held to the invalid as violating
article 14 of the constitution."
From the above observation of the Hon'ble High
Court, it is very clear that absence of provision in the
standing order is not at all a ground for denying the
assistance of the lawyer to the delinquent workman to
defend him in the domestic enquiry proceedings. But,
in this case, the enquiry report itself would clear that
delinquent workman was denied the permission to
appoint the Counsel to assist him in the domestic
enquiry.
17. The learned Counsel for the petitioner relied
upon the Judgment reported in Lord Dening, M.R., in
Pett V. Greyhound Raccing
Association (1968:2
A11.E.R. 545), wherein it was held as follows:
"It is not every man who has the ability to defend
him on his own. He cannot bring out the points in
his own favour or the weakness in the other side.
He may be tongue tied or nervous, confused or
wanting in intelligence. He cannot examine or
cross-examine witnesses. We see it everyday.
A Magistrate says to a man : "You can ask any
question you like", If someone to speak for him.
And who better than a lawyer who has been trained
for the task? I should have thought, therefore that
when a man's reputation or livelihood is at stake, he not
only has a right to speak by his own mouth. He also
has a right to speak by Counsel or Solicitor.”
The learned Counsel for the petitioner has also
relied upon the Judgment reported in Board of
Trustees of port of Bombay and Dilipkumar
Raghavendranath Nadharni and others 1983 LIC
Page 1 (SC), wherein it was held as follows:
"....In the past it could be said that there was an
informal atmosphere before such a domestic
Tribunal and that strict rules of evidence and pitfalls
of procedural law did not hamstring the enquiry by
such a Domestic Tribunal, we have moved far away
from this stage. The situation is where the employer
has on his pay rolls Labour Officers, Legal
Advisors-Lawyers in the gabs of employees and they
are
appointed
as
Presenting-cum-Prosecuting
officers and the delinquent employee pitted against
such a legally trained personnel has to defend
himself. Now, if, the rules prescribed of such an
enquiry did not place an embargo on the right of the
delinquent employee to be represented by a legal
practitioner, the matter would be in the discretion
of the Enquiry Officer, whether looking to the
nature of charges, the type of evidence and complex
or simple issues that may arise in the course of
enquiry the delinquent employee in order to afford
reasonable opportunity to defend himself should
be permitted to appear through a legal practitioners.
Why it is so could be explained? What is the nature
of enquiry, who held it, were it is held and what is
the atmosphere? Domestic enquiry is claimed to be
a managerial function. A man of the establishment
done the robe of a Judge, it is held in the
establishment office or a part of it, can it even be
compared to the adjudication by an impartial
arbitrator or a prosecutor called into one. Witnesses
are generally employees of the employer who
directs and enquiry into misconduct. This is
sufficient to raise serious apprehensions. Add to
this uneven scale the weight of legally trained minds
on behalf of the employer simultaneously denying
that opportunity to delinquent employee. The
weighted scales and tilted balance can only partly
restored of the delinquent is given the same legal
assistance as the employer employs......".
The learned Counsel for the petitioner has also
relied upon the Judgment reported in Indian
Photographic Company Limited Vs. Sumithra Mohan
Kumar, 1984 LIC 42, wherein it was held as
follows:
"Though Court should discourage involvement of
legal practitioner in simple domestic enquiries like
disciplinary enquiries for avoiding complication and
delay. Yet the court cannot ignore the necessity of
such representation in exceptional cases where
refusal of such representation would constitute
failures of the enquiry itself. Principles of natural
justice demand conceding such claim. No general
rule can be laid down in this respect but the issue
must be decided in the light of the facts of each
case. In a case the allegations pertained to
commission of fraud and for Gerry on the part of
the employee. If such allegations has been made in
the court the employee would have a right of
representation by an Advocate." .
The learned counsel for the petitioner has also
relied upon the Judgment reported in Hansila Prasad
Pandy Vs. Bank of India, 1986 (1DLLN525 , wherein
it was held as follows:
"It is true that a charge sheeted employee in a
departmental proceedings is not entitled to the
assistance of the lawyer as a matter of right, but such
assistance in the interest of natural justice should be
1399
26 December 2017]
LA GAZETTE DE L’ETAT
given where the situation demand it. In the instant case,
the petitioner was asked to meet a complicated
question of law which obviously was not possible for
him to meet without the assistance of a lawyer. That
being so the refused of such assistance amounted to
violation of principles of natural justice.".
The learned Counsel for the petitioner has also
relied upon the Judgment reported in K.D. Anpet Vs.
State of Maharashtra, 1989 (1) CLR 244, wherein it
was held as follows:
"Where the accusations levelled against the
delinquent were of such serious nature that even if
the most trifling the allegation is established, the
delinquent would be dismissed from service and the
nature of the accusation was also complicated,
difficult and likely to embarrass the delinquent in
the absence of legal aid, permission to be
represented by a lawyer must be given." .
The learned Counsel for the petitioner has also
relied upon the Judgment reported in K.G. Shenoy Vs.
Disciplinary Authority, 1995 LLR 139 (Kar.HC),
wherein it was held as follows:
"The right to be represented by a Counsel in an
enquiry cannot be claimed as a matter of right.
However, in a case where the delinquent is not in a
position to express himself or his livelihood is in stake
or that his social or financial status are likely to be
ruined or where several complicated questions are
raised which the delinquent is un-able to comprehend,
the question of such delinquent employee being
afforded the assistance of a counsel can be considered.".
From the above observations made in the citations
it is clear that whenever the accusation levelled
against the delinquent is of such serious nature that
even if the most trifling the allegation is established,
the delinquent would be dismissed from service and the
nature of the accusation was also complicated and
difficult and that therefore, the permission to be given
to the delinquent to appoint the lawyer to assist in the
enquiry and furthermore whenever it is impossible to
the delinquent to meet the enquiry without the
assistance of the lawyer, it is just and necessary to
give permission to the delinquent employee to
conduct the enquiry with the help of an Advocate.
In this case, the Presenting Officer is the Deputy
Engineer. While so the delinquent employee the
watchman was not permitted to conduct the domestic
enquiry with the assistance of lawyer and the
requisition of the delinquent employee was rejected by
the Enquiry Officer stating that standing order does not
permit while the charge levelled against the petitioner
is grave in nature and therefore it is clear that the
Enquiry Officer who conducted the domestic enquiry
has not given sufficient opportunity to the delinquent
petitioner workman to get assistance of senior
Advocate though he is a watchman facing grave charges
while the Presenting Officer was a Deputy Engineer
representing the management and therefore the
rejection of permission to the petitioner delinquent to
assist him in the enquiry through legal practitioner is
against the principles of natural justice and that
therefore, the domestic Enquiry Officer has not
followed the principles of natural justice in conducting
the domestic enquiry.
18. Furthermore, the memo of charge was given by
the respondent management to the delinquent workman
on 13-02-2006, in which the charge runs as follows:
"(i) You have sexually harassed the 7 year
daughter of Sri (name omitted), the then Senior
Technical Assistant
(presently
the
Assistant
Spinning Manager) of the mills at about 6.00 p.m., on
01-02-2006 at the supervisors' rest room, while you
were on duty as a watchman.
(ii) You have riotously and disorderly behaved
with Sri Santhosh TGB 133 of the Mills at about
7.30 p.m., on 01-02-2006 and tried to assault him
with a torch.
(iii) You have threatened and showered abuses on
Sri. P.T. Valsaraj, Spg.303, on 02-02-2006 over mill
phone and over his mobile phone in filthy language
that you will attack do physical harm to him jointly
with your friends and men and you will cause all
sorts of trouble to him using your official position.
(iv) You have committed act subversive of
discipline.
(v) You have committed acts unbecoming
of a Watchman of the mills and acted in a manner
in which the mills cannot any long confide in you,
which would constitute misconduct under the
Certified Standing order of the mills (17 (3) (J) and
17 (3) (s) in particular and Model standing orders.
From the above contention of the charge memo it
is clear that the delinquent workman has been charged
for misconduct of (i) sexual harassment of 7 year
girl, (ii) acted in a riotous and disorderly
man n e r, (iii) threatening and showering abuses on
Sri. P.T.Valsaraj, (iv) subversive of discipline &
(v) constitute misconduct under the Certified Standing
order of the mills (17 (3) (J) and 17 (3) (s) in
1400
LA GAZETTE DE L’ETAT
[26 December 2017
particular and Model standing orders. However, on
perusal of records it is learnt to this court that the
Enquiry Officer who conducted the domestic enquiry
in his final report has stated commonly that the
charges leveled against the delinquent workman was
proved. The final report of the Enquiry Officer in the
domestic enquiry runs as follows:
"6.02. In the light of the facts discussed above
I find that all the charges of misconduct alleged
against the delinquent Sri. K. Vinodan, W.W.T.No.15
(under suspension) in the memo. of charges dated
13-02-2006 issued to him by the General Manager
are substantiated in full."
From the above final report of the Enquiry Officer,
it is clear that though the delinquent workman was
charged for 5 charges, the Enquiry Officer has not
dealt with each and every charges levelled against the
delinquent workman. Simply the Enquiry Officer has
stated in his report that the workman Vinodan
committed the acts of misconduct as alleged against
him. The Enquiry Officer has not stated in his
domestic enquiry report that these 5 charges were
proved by the management separately.
19. Furthermore, on receipt of the proceedings and
findings of the Enquiry Officer, the Disciplinary
Authority should forward a copy of the findings of the
Enquiry Officer of the delinquent employee and advise
him to submit his comments on the findings of the
Enquiry Officer within a specific period of time and
on receipt the delinquent employee should submit his
comments and only after expiry of specific period of
time given to delinquent employee to submit his
comments, the Disciplinary Authority should come to
his own conclusion by going through all the papers and
applying his mind dispassionately and he should also
record his view on the Enquiry Officer's findings in
respect of each charge separately. In this case, the
respondent management has stated in their counter that
they have sent a memo to the delinquent workman
along with the copy of the final report of the Enquiry
Officer asking him to submit his comments on the
enquiry report. But, no such notice is exhibited before
this court to prove the same and furthermore, it is also
stated by the respondent management in their counter
that they have given statutory show-cause notice to the
delinquent workman regarding the proposed punishment
before terminating him from service. But no such
notice is exhibited before this court as document on
the side of the respondent management to prove their
contention. Though the respondent management has
stated in their counter that they have issued notice
asking the delinquent workman to submit his
comments regarding the enquiry report and they have
sent a second show cause notice regarding the
proposed of punishment calling upon the petitioner to
give explanation, they have failed to prove the same by
exhibiting the above said notices before this Court.
20. Furthermore, the Disciplinary Authority should
also go into the past record of the employee while
awarding the punishment and when it is favorable to the
employee and the misconduct committed by and
approved against him is of a minor nature, the
Disciplinary Authority may take a lenient view. In case
of adverse past record, it should be disclosed to him
in the show cause notice and he should be given an
opportunity to explain the same. But, in this case no
such notice was exhibited before this Court which was
alleged to have been issued to the delinquent
employee. After considering all the above factors, and
after affording a personal hearing to the employee, the
Disciplinary Authority will issue the final order
reducing or confirming the punishment already
proposed. But in this case the respondent management
has not stated anything about his past records of the
delinquent workman and even a show cause notice
alleged to have been issued by the Disciplinary
Authority to the delinquent workman was not
exhibited before this Court and also no notice
regarding the proposed punishment imposed against
him was exhibited before this Court. These facts would
go to show that the Disciplinary Authority has failed
to follow the principles of natural justice before
awarding the punishment of termination of service to
the delinquent workman.
21. From the above discussions and the fact
that the domestic Enquiry Officer has not followed
the principles of natural justice in conducting the
domestic enquiry by rejecting the requisition of the
petitioner to appoint a legal practitioner to assist the
domestic enquiry while charge against the petitioner
is grave in nature and other circumstances that the
petitioner was acquitted from the case since the
petitioner as well as the complainant the victim
have entered the compromise in the criminal case
under section 320(2) of Cr.P.C. and the fact that the
notice calling upon the petitioner delinquent workman
to submit his comments on the domestic enquiry
report and the second show cause notice have not been
exhibited before this Court and other circumstances
that even according to the respondent management the
petitioner has no past records, it is just and necessary to
hold that the termination of petitioner Thiru K. Vinodan
by the management of M/s. Cannanore Spinning and
Weaving Mill, Mahe is not justified. Since, this Court
1401
26 December 2017]
LA GAZETTE DE L’ETAT
has held that the Industrial Dispute raised by the
petitioner
against
the
respondent
management
regarding the dismissal of his service is justified,
it is also just and necessary to decide the relief which
can be given to the petitioner delinquent workman.
22. On this aspect records and documents are
carefully perused. Though the respondent management
has failed in conducting the domestic enquiry properly
the allegation levelled against the petitioner is grave in
nature that he has sexually harassed the 7 year child
and committed misconduct and that therefore, the
management has lost faith on the workman and that
therefore, they have terminated the workman from the
respondent Industry and in such circumstances, the
relief of order of reinstatement cannot be ordered and
is not a further the petitioner has not stated that he
has not joined in any other establishment, so far he
has not gainfully employed in any other establishment
after his termination and therefore, he is not entitled
for any backwages. Only compensation alone is a
reasonable one to the petitioner delinquent workman.
Further, no monetary benefits were given to him by the
respondent
management.
Since
the
petitioner
delinquent workman was working for more than 20
years as watchman at the respondent management he
is entitled for gratuity and other monetary benefits
while he was terminated from service and that
therefore, considering the long tenure of service of
the petitioner delinquent workman and considering the
other circumstances and fact that the petitioner
delinquent workman could not serve at the respondent
establishment in future since the the management has
lost faith on the workman, this Court has decided that
the petitioner delinquent workman is not entitled for
any reinstatement as claimed by him instead of that he
can be granted compensation as an alternative remedy
to him from the respondent management.
23. In order to fix the compensation the records
and circumstances are carefully considered. The
petitioner has served at the respondent establishment
for about 20 years and thereafter due to the fact that
the incident a l l e g e d t o h a v e b e e n h a p p e n e d
on 01-02-2006 at 6.00 p.m. at factory premises, the
petitioner delinquent workman had not been in service
from 2006 i.e., for more than 11 years. Considering all
other above circumstances, this Court tentatively fix
` 2,00.000 as compensation which is to be paid by
the respondent management to the petitioner and apart
from compensation the petitioner delinquent workman
is entitled for all other retirement benefits as if, he is
in service at this stage such as gratuity and other
benefits.
24. In the result, the petition is partly allowed and
the termination of the petitioner Thiru K. Vinodan by
the management of M/s.Cannanore Spinning and
Weaving Mill, (CS & W Mill), Mahe is not justified
and an Award is passed by directing the respondent
management to pay ` 2, 00,000 (Rupees two lakhs
only) as compensation and also directed the respondent
management to pay retirement benefits such as gratuity
and other benefits to the said Thiru K. Vinodan as if
he is in service at this stage and the claim in respect
of backwages is dismissed. No cost.
Dictated to the Stenographer, transcribed by her,
corrected and pronounced by me in the open Court on
this the 19th day of September, 2017.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-Labour Court,
Puducherry.
————
List of petitioner’s witness:
RW.1 — 24-09-2010 — Vinodan
List of petitioner’s exhibits:
Ex.Rl —29-08-2006 — Certified copy of the
judgment passed in STR
No.
527/2006
by
Judicial Magistrate at
Mahe.
Ex.R2—02-01-2006 — True
copy
of
the
complaint given by the
petitioner to the General
Manager CS & W Mill.
Ex.R3—31-01-2006 — True copy of the Gate
to
Register maintained at
02-02-2006
the respondent Mill.
Ex.R4—28-01-2006 — True copy of the Log
to
Register maintained at
02-02-2006
the respondent Mill.
Ex.R5—31-01-2006 — True copy of the Rounds
to
Book maintained at the
01-02-2006
respondent Mill.
List of respondent’’s witness:
PW1 — 20-07-2010 — Kuttan
List of petitioner’s exhibits:
Ex.M1—
—
Report of enquiry
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-Labour Court,
Puducherry.
1402
LA GAZETTE DE L’ETAT
[26 December 2017
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G. O. Rt. No. 178/Lab./AIL/T/2017, dated 10th July 2017)
NOTIFICATION
Whereas, an Award in I.D (L) No.19/2013, dated
30-10-2017 of the Labour Court, Puducherry in
respect of the industrial dispute between V. Sampath,
Labour Contractor (for M/s Larsen and Tourbo Farm
Work Metal Shop) and V.K. Jesudoss, 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.
(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 30th day of October, 2017
I.D. (L) No. 19/2013
V.K.Jesudoss, s/o. Kuppan,
No.45, Mariamman Koil Street,
Kooteripattu, Tindivanam,
Villupuram District.
. . Petitioner
Versus
1. V. Sampath, Labour Contractor,
(for M/s. Larsen & Toubro Farm
Work Metal Shop),
(Licence No.529/CL/A7/2010),
Sedarapet, Puducherry.
2. The Managing Director,
Larson & Toubro Limited,
Puducherry.
. .
Respondents.
This industrial dispute coming on 11-10-2017 before
me for final hearing in the presence of Thiru R.T.Shankar,
Advocate for the petitioner, Thiru B. Mohandoss, Advocate
for the respondent No. 1, Thiruvalarkal M.Vaikunth,
R.Vikneshraj and R.Ilamparudhi, Advocates for the
respondent No. 2, upon hearing both sides, upon perusing
the case records, after having stood over for consideration
till this day, this Court passed the following:
A W A R D
1. This industrial dispute has been referred by the
Government as per the G.O.Rt.No.31/AIL/LAB/J/2013,
dated 28-02-2013 for adjudicating the following:-
(i) Whether the dispute raised by Thiru V.K.Jesudoss
against one Thiru V. Sambath, a Contractor (for M/s.
Larsen & Toubro Farm Work Metal Shop, Puducherry)
over non-employment is justified or not?
(ii) If justified, what relief the workman is entitled to ?
(iii) To compute the relief if any, awarded in terms of
money if, it can be so computed?
Though the Government has referred this matter to
this Court to decide the industrial dispute raised by the
petitioner against Thiru V. Sambath, a Contractor
(for M/s. Larsen & Toubro Limited) over non-employment
is justified or not, the petitioner has impleaded the 2nd
respondent management in I.A.No.207/2013 which was
allowed by this Court and hence, it is to be decided
whether the industrial dispute raised by the petitioner
over
non-employment against the respondents is
justified or not.
2.
The averments in the claim statement of the
petitioner, in brief, are as follows :
The petitioner had been in service from 15-03-2000
at the 2nd respondent establishment working as Fitter at
Doka Form Metal Shop section along with permanent
workers under the direct control and supervision of the
2nd respondent.
He
had been connected under
Employment Code No.55-13433-64 of ESI Corporation
by 2nd respondent and his name also registered in the ESI
Corporation.
He has been utilised for production
department along with the permanent workers. Since, the
impermanent workers have not been paid salary on par
with the permanent workers even half of the amount of
permanent workers was not paid to them, the petitioner
has claimed for wages and conducted several agitations
against the 2nd respondent with the help of his union
Pattali Thozhirsangam. He has conducted agitation
on 09-02-2011 along with the workers of the 2nd respondent
establishment for which the 2nd respondent management
has accepted to raise ` 70 per day and also give assurance
to regularise them as permanent workers. However, on
1403
26 December 2017]
LA GAZETTE DE L’ETAT
10-08-2011 the petitioner was refused employment by
the 2nd respondent management orally for which he has
sent requisition on 25-11-2011 for reinstatement to the
2nd respondent management which was ended in futile and
no reply was given to him and that therefore, he raised the
industrial dispute on 22-12-2011 and the conciliation was
failed and thereafter, the case has been referred by the
Conciliation Officer to the Government and that therefore,
he is entitled for order of reinstatement with continuity
of service and with full back wages and other benefits.
3. The brief averments in the counter filed by the
1st respondent are as follows :
The 1st respondent stated that as per the
averments made in the claim statement, the petitioner was
orally terminated on 10-08-2011 and it was not punitive
termination and as such the termination referred to in the
claim statement is only retrenchment as contemplated
under section 2(oo) of the Industrial Dispute Act, 1947
and that the matters coming within the Jurisdiction of the
Labour Court have been enumerated in the 2nd Schedule
of the Industrial Disputes Act, 1947 and there are as many
as 6 items contained in the 2nd Schedule referred to above
and that the reliefs claimed in the claim statement do not
find a place in the 2nd Schedule and as such it is plain as
day light that the above reliefs are beyond the purview of
adjudication by this Labour Court and that only the
Industrial Tribunal constituted by the Government under
section 7-A of the Industrial Disputes Act, 1947 has got
jurisdiction to decide the claim made by the petitioner in
the present claim petition and that the matters within the
jurisdiction of Industrial Tribunals have been specified
under items 1 to 11 and the item No.10 specified thereon
is "Retrenchment of workmen" and when the validity of
retrenchment or any other issue relating to retrenchment
can be canvassed only before the Industrial Tribunal and
hence, cannot be adjudicated by the Labour Court, the
relief of reinstatement with back wages after setting aside
the retrenchment is not at all possible and further stated
that averments in the claim statement does not disclose
any cause of action against him and prayed to dismiss the
claim petition.
4. The brief averments in the counter filed by the 2nd
respondent are as follows :
The 2nd respondent stated that the claim made
by the petitioner is not maintainable in law or on facts
and that the 1st respondent is a registered Labour
Contractor under the Industrial Disputes Act and there
exist a contract between the 1st respondent for doing some
work and the petitioner has worked under the said
contractor under Wage basis and 2nd respondent have paid
only the contractual amount to the contractor and not to
the petitioner at any point of time and there is not privity
of contract between the petitioner and the 2nd respondent
and hence, the petitioner should get the claim only from
the 1st respondent and not from the 2nd respondent and
even in the conciliation proceedings the 2nd respondent
have not been arrived as a party and the petitioner has not
sort any prayer against the 2nd respondent in the
conciliation proceedings also and the petitioner is well
aware that he worked only under the 1st respondent and
not under the 2nd respondent at any point of time and that
can be evidenced from G.O. Rt. No.31/AIL/Lab./J/2013
issued by the Labour Department and further stated that
as per the averments made in the claim statement the
petitioner was orally terminated on 10-08-2011 and it was
not punitive termination and as such the termination
referred to in the claim statement is only retrenchment
as contemplated under section 2(oo) of the Industrial
Disputes Act, 1947 and that the matters coming within
the Jurisdiction of the Labour Court have been enumerated
in the 2nd Schedule of the Industrial Disputes Act, 1947
and there are as many as 6 items contained in the 2nd
Schedule referred to above and that the reliefs claimed in
the claim statement do not find a place in the 2nd Schedule
and as such it is plain as day light that the above reliefs
are beyond the purview of adjudication by this Labour
Court and that only the Industrial Tribunal constituted by
the Government under section 7-A of the Industrial
Disputes Act, 1947 has got jurisdiction to decide the claim
made by the petitioner in the present claim petition and
that the matters within the jurisdiction of Industrial
Tribunals have been specified under items 1 to 11 and the
item No. 10 specified thereon is "Retrenchment of
workmen" and when the validity of retrenchment or any
other issue relating to retrenchment can be canvassed only
before the Industrial Tribunal and hence, cannot be
adjudicated by the Labour Court, the relief of
reinstatement with back wages after setting aside the
retrenchment is not at all possible and prayed to dismiss
the claim petition.
5. In the course of enquiry on the side of the petitioner
PW.1 was examined and Ex.W1 to Ex.W8 were marked
and on the side of the respondents RW.1 and RW.2 was
examined and Ex.R1 to Ex.R3 were marked.
6. The point for consideration is:
Whether the dispute raised by the petitioner against
the respondents over non-employment is justified or not
and if justified, what is the relief entitled to the petitioner?
7. Both sides are heard. The pleadings of both the
parties, the evidence let in by either sides and the
exhibits marked on both sides are carefully considered.
In support of his case the learned counsel for the
petitioner has relied upon the Judgment reported in CDJ
1994 SC 294, CDJ 2011 MHC 759, CDJ 2011 SC 832,
CDJ 2008 MHC 941 & CDJ 2001 SC 517.
1404
LA GAZETTE DE L’ETAT
[26 December 2017
8. From the pleadings of both the parties it is learnt
that the main contention of the 1st respondent is that the
petitioner has not been terminated from service and it is
only retrenchment and hence, it can be adjudicated only
before the Labour Court not before the Industrial Tribunal
and that there is no cause of action. On the other hand,
the 2nd respondent contends that the 1st respondent is
the registered labour contractor under the Industrial
Disputes Act and the contract is executed between the
1st respondent and the 2nd respondent for doing some
work and the petitioner has worked under the said
contractor on wage basis and the 2nd respondent has paid
only the contractual amount to the contractor and not to
the petitioner at any point of time and there is no privity
of contract between the petitioner and the 2nd respondent
and even in the conciliation proceedings the 2nd respondent
has not allied as a party and the petitioner was working
only under the contractor, the 1st respondent and the
termination referred in the claim statement is only
retrenchment as contemplated under section 2(oo) of the
Industrial Disputes Act which is under the jurisdiction of
Labour Court not in the Industrial Tribunal and that this
Labour Court has no jurisdiction to adjudicate and to give
reinstatement with back wages after setting aside the
retrenchment is not at all possible.
9. It is the evidence of the PW.1 that he had been in
service from 15-03-2000 at the 2nd respondent
establishment and he had been working as Fitter at Doka
Form Metal Shop section along with permanent workers
under the direct control and supervision of the
2nd respondent and he had been connected under
Employment Code No.55-13433-64 of ESI Corporation
by 2nd respondent and his name also registered in the
ESI Corporation and he has been utilised for Production
Department along with the permanent workers and since,
the impermanent workers have not been paid salary on
par with the permanent workers even half of the amount
of permanent workers was not paid to them, the petitioner
has claimed for wages and conducted several agitations
against the 2nd respondent with the help of his union
Pattali Thozhirsangam and he has conducted agitation on
09-02-2011 along with the workers of the 2nd respondent
establishment for which the 2nd respondent management
has accepted to raise ` 70 per day and also give assurance
to regularise them as permanent workers and however, on
10-08-2011 he was refused employment by the
2nd respondent management orally and he has sent
requisition on 25-11-2011 for reinstatement to the
2nd respondent management which was ended in futile and
no reply was given to him and that therefore, he raised the
industrial dispute on 22-12-2011 against the 2nd
respondent
management over his non-employment
wherein, the 2nd respondent management has refused their
relationship of employer-employee and has stated that the
petitioner is a contractual labour and that therefore, the
1st respondent also has been impleaded in the said
industrial dispute and though the 2nd respondent
establishment has availed the service of the petitioner
directly and contributed ESI and EPF as an employer now
has come with the case that the petitioner is a contractual
labour and there is no relationship of employer-employee
and that though petitioner has served for more than
11 years at the 2nd respondent establishment when he has
asked to regularise his service and for wages with the
support of his union the 2nd respondent has orally refused
his employment as contractual labour as to escape from
the clutches of law to regularise his service as a permanent
workman.
10. In order to prove the case, the petitioner has
exhibited Ex.W1 to Ex.W8. Ex.W1 is the copy of the
letter regarding requesting for job sent by the petitioner
to the 2nd respondent management. Ex.W2 is the
acknowledgment card. Ex.W3 is the copy of the letter
regarding industrial dispute raised by the petitioner.
The Ex.P1 to Ex.P3 would go to show that petitioner has
made requisitions to the 2nd respondent establishment as
an employer to him and thereafter, the petitioner has raised
the industrial dispute before the Conciliation Officer.
Ex.W4 is the copy of the ESIC Card of the petitioner.
Ex.W5 is the copy of ESI account statement of the
petitioner. The Ex.P4 and Ex.P5 would go to show that
2nd respondent establishment is the employer to the
petitioner. Ex.W6 is the information furnished under RTI
Act which would reveal the fact that petitioner has
obtained information under RTI Act from the ESI
corporation that ESI contributions were paid by the 2nd
respondent in the name of the petitioner on various dates
from the year 2002 to 2011 as an employer. Ex.W7 is
the conciliation failure report. Ex.W8 is the notification
of Government of Puducherry. These documents would
go to show that the petitioner was worked under direct
supervision of the 2nd respondent for the period 2002 to
2011. Further, it is noticed from Ex.P7 that allegation of
the petitioner was that petitioner was terminated from
service on 10-08-2011 without any reason and he has
made several representation to the contractor and the
Works Manager of the 2nd respondent management and
further stated that he had been terminated in violation of
principles of natural justice and the contractor Sampath
has stated that the petitioner had never worked under him
and that there is no master and servant relationship
between themselves and the dispute raised against him is
not maintainable and further stated that the contract work
in 2nd respondent Larsen and Toubro Limited has
decreased and hence, he is not in a position to reinstate
the petitioner. However, admittedly, the petitioner was
working under the contractor at the 2nd respondent
industry.
1405
26 December 2017]
LA GAZETTE DE L’ETAT
11. On the other hand, in order to prove the case of
the respondents, RW.1 & RW.2 were examined and Ex.R1
to Ex.R3 were exhibited. Ex.R1 is the copy of the letter
given by the petitioner to V.Sampath, Contractor. Ex.R2
is the copy of the letter given by the petitioner to the
Works Manager, Larsen & Toubro Limited. Ex.R3 is the
copy of the letter given by the petitioner to V.Sampath,
Contractor.
12. The first contention of the 1st respondent as well
as 2nd respondent is that this Labour Court has no
jurisdiction to decide the claim made by the petitioner in
the present claim petition stating that the matter contains
III Schedule of the Act should be decided only by the
Industrial Tribunal and the validity of the retrenchment of
the workmen or any other issue relating to retrenchment
can be canvassed only before the Industrial Tribunal and
hence, it cannot be adjudicated by the Labour Court.
13. In this case, on perusal of the reference it can be
noted that the industrial dispute is raised by the petitioner
over non-employment to him and not against any
retrenchment and furthermore, the claim petition also
does not state that the petitioner was retrenched from
service and has stated that only his employment was
refused by the 2nd respondent management stating that
there is no connection between the 2nd respondent Larsen
& Toubro Limited and the petitioner workman and that
therefore, as the petitioner has not challenged the case as
retrenchment and he has challenged only non-
employment, the contention of the 1st and 2nd
respondents that this Labour Court has no jurisdiction to
deal with the said matter is not sustainable and hence, the
first contention is answered in favour of the petitioner
and against the respondents.
14. The another contention of the respondents is that
this petitioner is not the workman of the 2nd respondent
establishment and he is only a contractual labour worked
under the 1st respondent who has taken contract with the
2nd respondent establishment to produce manpower.
On the other hand, it is stated by the petitioner that he
was working under the direct control and supervision of
the 2nd respondent management as a worker and that he
was permitted to work along with the permanent workers
and he had been in service as an Fitter in the Doka Form
Metal Shop section and he had been connected under
Employment Code No. 55-13433-64 of ESI Corporation
by 2nd respondent.
15. Normally, employer - employee relationship does
not exist between an employer and a contractor and the
servant of an independent contractor, where, however, an
employer retains or assumes control over the means and
method by which the work of a contractor is to be done,
it may be said that an employment relationship exists
between him and the contractor's employees. In such a
situation the mere fact of formal employment by an
independent contractor will not relieve the master of
liability where the servant is, in fact, in his employment.
In that event, it may be held that an independent contractor
is created or is operating as a subterfuge and the employee
will be regarded as the servant of the principal employer.
Where a person is engaged through an intermediary or
otherwise for getting a job done, a question may arise
whether the appointment of an intermediary was merely
sham and nominal or a camouflage. Where a definite plea
is raised before an Industrial Tribunal or a Labour Court,
the Tribunal or Court, as the case may be would be entitled
to pierce the veil and arrive at a finding that the
justification relating to appointment of a contractor is
sham or nominal and in effect and substance there exists
a direct relationship of employer and employee between
the principal employer and the workman. Hence, it is to
be decided by this Court that whether the contractor under
whom the petitioner has served is the registered contractor
to supply the workers to the respondent establishment or
not and whether the 2nd respondent has direct control or
supervision over the petitioner while petitioner was in
service at the 2nd respondent establishment.
16. On this aspect, the evidence of RW.2, the contractor
is carefully considered which runs as follows :
"
L & T
ESI
ESI
L & T-
L & TESI
".
The evidence of the alleged contractor RW.2 would go
to show that he has not exhibited any document before
this Court to prove that contract was entered between him
and the 2nd respondent management and to establish that
he is a licensed contractor he has not filed any contract
1406
LA GAZETTE DE L’ETAT
[26 December 2017
before this Court and RW.2 stated that he has contributed
ESI to the petitioner for which he has not exhibited any
document and even he does not know whether the 2nd
respondent Larson & Toubro Limited has contributed ESI
and PF to the petitioner.
17.
Furthermore, the 2nd respondent Larson &
Toubro Limited has not exhibited any alleged contract
entered between the 1st respondent and 2nd respondent
Larson & Toubro Limited as an exhibit and furthermore,
though the 2nd respondent has stated that there is no
relationship of employer and employee between the 2nd
respondent Larson & Toubro Limited and the petitioner,
the documents exhibited by the petitioner would evident
that ESI and PF contribution were paid by the 2nd
respondent Larson & Toubro Limited and furthermore,
though the 2nd respondent has stated that there is no
primitive of contract between the petitioner and 2nd
respondent and there is no relationship of employer-
employee, the ESI Identity Card issued by the 2nd
respondent management to the petitioner under Ex.P4
which disclose the fact that petitioner is the employee of
the 2nd respondent Larson & Toubro Limited. Further,
the 2nd respondent Larson & Toubro Limited has not
spoken about the said document while the 2nd
respondent has denied the relationship of employer-
employee between them. However, the ESI and EPF
contribution in the name of petitioner was admitted by
RW.2, the witness which was examined on the side of the
2nd respondent. Though they have admitted the said
payment of ESI and EPF contribution they have not come
forward to say for what purpose they have paid the said
contributions in the name of the petitioner as an employer.
Further, though the 2nd respondent Larson & Toubro
Limited has denied the relationship of employer and
employee between the 2nd respondent and the petitioner,
the 2nd respondent management has not spoken about the
above-mentioned documents who issued to the petitioner
as an employer.
18. Further, the 2nd respondent Larson & Toubro
Limited has failed to produce the alleged contract under
which the 1st respondent was engaged before this Court
and furthermore, the 2nd respondent Larson & Toubro
Limited has not at all stated how many persons were
employed at the 2nd respondent establishment through
1st respondent contractor and how much was paid to 1st
respondent contractor for the supply of this contractual
labour and other workmen. No account statement or
receipt of payment made to workers is exhibited before
this Court that any amount was paid to the contractor for
the supply of such workmen as a contractual labour and
that therefore, it is clear that to avoid providing the benefit
of labour laws to the petitioner workman the 2nd
respondent has without
regularising the petitioner
workmen who had been in service from 2000 for about
11 years as a workman and to avoid benefits of labour
laws to the workman has utilised the petitioner in the name
of the 1st respondent contractor as a contract labour
without adopting legal procedure for utilising contractual
labours.
19. Further, it is also not established by the 2nd
respondent that 1st respondent is a licensed contractor
and contract was executed between the 1st respondent and
2nd respondent Larson & Toubro Limited. The evidence
of RW.1, the Assistant Manager of the 2nd respondent
Larson & Toubro Limited runs as follows :
"
Agreement
L
ESI
ESI Contribution
ESI, PF
,
Reference
".
From the above evidence, it is clear that Assistant
Manager of the 2nd respondent Larson & Toubro Limited
has categorically denied that 2nd respondent establishment
has not executed any contract between anybody else for
supply of contractual labourers and he deposed that he
does not know whether the 1st respondent has any licence
to made contract with the 2nd respondent and he admitted
1407
26 December 2017]
LA GAZETTE DE L’ETAT
that petitioner was working at the 2nd respondent
establishment from the year 2003 and they have
contributed ESI and PF to the petitioner from 2003 and
he has admitted the fact that letter was sent by the 2nd
respondent to the Conciliation Officer to remove their
name from the conciliation proceedings and thereafter,
the conciliation failure report was sent to the Government
only against the 1st respondent.
20. Though the 2nd respondent management has denied
the fact that petitioner is the employee of the 2nd
respondent Larson & Toubro Limited, no explanation is
given by the 2nd respondent that why ESI and EPF
contribution was paid and why they have not exhibited the
contract executed between the 1st respondent for the
supply of labourers before this Court. On the other hand,
it is established by the petitioner that he had been in
service at the 2nd respondent Larson & Toubro Limited
as a labour and he has served under the direct control and
supervision of the 2nd respondent and ESI and EPF
contributions were paid by the 2nd respondent. Therefore,
it is to be held that the refusal of employment to the
petitioner by the 2nd respondent without following any
procedure is not justified and hence, the industrial dispute
raised by the petitioner against the respondents over non-
employment is justified and the petitioner is entitled for
the relief of reinstatement as claimed by him in the claim
statement.
21. As this Court has decided that industrial dispute
raised by the petitioner against the respondents over
non-employment is justified, it is to be decided whether
the petitioner is entitled for back wages as claimed by
him. There is no evidence that the said workman is
working so far in any other industry and that there is no
proof exhibited before this Court that he is working
anywhere else. The respondents have not proved that the
petitioner has earned income after his non-employment.
However, the petitioner workman could have served at
anywhere else after his non-employment. Considering
the above circumstances, this Court decides that the
petitioner is entitled only for 30% back wages with
continuity of service and other attendant benefits.
22. In the result, the petition is allowed and the
industrial dispute raised by the petitioner against the
respondents over non-employment is justified and Award
is passed by directing the 2nd respondent management to
reinstate the petitioner in service within one month from
the date of this order and further directed the 2nd
respondent management to pay 30% 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 30th day of October, 2017.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum
Labour Court, Puducherry.
————
List of petitioner’s witness:
PW.1 — 24-11-2015 — V.K. Jesudas
List of petitioner’s exhibits:
Ex.W1— 25-11-2011— Copy of the letter regarding
requesting for job sent by the
petitioner to the 2nd
respondent management.
Ex.W2— 26-11-2010 — Acknowledgment Card.
Ex.W3— 22-12-2011 — Copy of the letter regarding
industrial dispute raised by
the petitioner.
Ex.W4— 5513984059 — Copy of the ESIC Card of the
petitioner.
Ex.W5— 2009-2010 — Copy
of
ESI
account
statement of the petitioner.
Ex.W6— 15-12-2011 — Information furnished under
RTI Act.
Ex.W7— 17-09-2012 — Conciliation failure report.
Ex.W8—28-02-2013 — Notification of Government
of Puducherry.
List of respondent’s witnesses:
RW.1—
31-01-2017 — A. Nepoliyan
RW.2—
12-06-2017 — V. Sampath
List of respondent’s exhibits:
Ex.R1— 22-12-2011 — Copy of the letter given by
the petitioner to V.Sampath,
Contractor.
Ex.R2— 25-11-2011 — Copy of the letter given by
the petitioner to the Works
Manager, Larsen & Toubro
Limited.
Ex.R3— 16-11-2011 — Copy of the letter given by
the petitioner to V.Sampath,
Contractor.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
1408
LA GAZETTE DE L’ETAT
[26 December 2017
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 179/Lab./AIL/T/2017,
Puducherry, dated 27th November 2017)
NOTIFICATION
Whereas, the Award in I.D.(L)No.23/2013, dated
30-10-2017 of the Labour Court, Puducherry in
respect of the industrial dispute between K. Durairaj,
Villupuram and K. Kumar, Labour Contractor
(for M/s. Larsen & Tubro Limited) 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).
————
BEFORE THE INDUSTRIAL TRIBUNAL-CUM-
LABOUR COURT AT PUDUCHERRY
Present : Thiru G. THANENDRAN, B.COM, M.L.,
Presiding Officer,
Monday, the 30th day of October, 2017
I.D. (L) No. 23/2013
K. Durairaj,
S/o. Kesavan,
No. 14, Kanniyam Village,
Thazhudhali Post,
Tindivanam Taluk,
Villupuram.
. . Petitioner
Versus
1.
D. Kumar, Labour Contractor,
(for M/s. Larsen & Toubro Limited),
Mylam Road, Sedarapet.
Puducherry.
2.
The Managing Director,
M/s. Larsen & Toubro Limited,
Puducherry.
. . Respondent
This industrial dispute coming on 11-10-2017 before
me for final hearing in the presence of Thiru R. T. Shankar,
Advocate for the petitioner, Thiru B. Mohandoss, Advocate
for the respondent No. 1, Thiruvalargal M.Vaikunth,
R.Vikneshraj & R. Ilamparudhi, Advocates for the
respondent No. 2, 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. 54/AIL/LAB/J/
2013, dated 16-4-2013 for adjudicating the following:-
(i) Whether the dispute raised by Thiru K. Durairaj
against Thiru D. Kumar, a Contractor (for M/s. Larsen &
Toubro Limited), Puducherry over non-employment is
justified or not?
(ii) If justified, what relief the workman is entitled to ?
(iii) To compute the relief if any, awarded in terms of
money if, it can be so computed?
Though the Government has referred this matter to this
Court to decide the industrial dispute raised by the petitioner
against Thiru D. Kumar, a Contractor (for M/s. Larsen &
Toubro Limited) over non-employment is justified or not, the
petitioner has impleaded the 2nd respondent management in
I.A. No. 100/2013 which was allowed by this Court and hence,
it is to be decided whether the industrial dispute raised by the
petitioner over non-employment against the respondents is
justified or not.
2. The averments in the Claim Statement of the
petitioner, in brief, are as follows:-
The petitioner stated that he had been in service at
the 2nd respondent establishment at Doka Form Metal
Shop section through 1st respondent contractor from
01-07-2007 and he had been working as Electrician
under the contract supervision of 2nd respondent at
production department along with permanent workers
and he had been connected under Employment Code
No. 55-13433-64 of ESI Corporation by 2nd
respondent and that he had been in service under the
direct control of Larsen & Toubro and the petitioner
has received Rs.185/- as wages per day and further
stated that he had met with an accident during the course
of employment on 15-07-2009 and he sustained
injuries on his left hand finger for which he had
undergone plastic surgery and the Larsen & Toubro
limited has submitted report to the ESI Corporation and
that in the report it was mentioned that Larsen & Toubro
Limited is the employer of the petitioner and further
1409
26 December 2017]
LA GAZETTE DE L’ETAT
stated that he was receiving Rs.185 as daily wages
while he asked to regularize his post through his Pattali
Thozhirsangam and made a demand before the
management of Larsen & Toubro limited, the
management
without
giving
intimation
refused
employment to the petitioner on 07-11-2010 and he
made a representation on 26-11-2010 to reinstate him
in service and after negotiation between the
management of Larsen & Toubro limited and the Pattali
Thozhirsangam the petitioner was given employment to
the petitioner on 21-12-2010 and the petitioner was
assigned work in TLT Division in which also the
petitioner has completed the work, however his salary
was reduced to Rs.110 from Rs.185 by the respondent
management and when it was questioned by the
petitioner the respondent management has without
giving any notice to the petitioner has terminated, the
petitioner from service on 01-01-2011 and thereafter
the petitioner has not been permitted to enter, the
premises of the respondent Industry and thereafter the
petitioner has submitted a letter to the respondent
establishment stating his family circumstances and
asked for the salary of Rs.185 per day but the
respondent management has not given employment
though the association has made a requisition on 01-
02-2011 to the respondent management and that
therefore, the petitioner has raised the industrial
dispute before the Conciliation Officer and also against
the 1st respondent contractor and the conciliation was
failed and thereafter the case has been referred by the
Conciliation Officer to the Government and that
therefore, he is entitled for order of reinstatement with
continuity of service and with full back wages and other
benefits.
3. The brief averments in the counter filed by the
1st respondent are as follows :
The 1st respondent stated that as per the averments
made in the claim statement the petitioner was orally
terminated on 07-11-2010 and it was not punitive
termination and as such the termination referred to in
the claim
statement
is
only
retrenchment
as
contemplated under section 2(oo) of the Industrial
Disputes Act, 1947 and that the matters coming within
the Jurisdiction of the Labour Court have been
enumerated in the 2nd schedule of the Industrial
Disputes Act, 1947 and there are as many as 6 items
contained in the 2nd schedule referred to above and that
the reliefs claimed in the claim statement do not find a
place in the 2nd Schedule and as such it is plain as day
light that the above reliefs are beyond the purview of
adjudication by this Labour Court and that only the
Industrial Tribunal constituted by the Government under
section 7-A of the Industrial Disputes Act, 1947 has
got jurisdiction to decide the claim made by the
petitioner in the present claim petition and that the
matters within the jurisdiction of Industrial Tribunals
have been specified under items 1 to 11 and the item
No.10 specified thereon is “Retrenchment of workmen”
and when the validity of retrenchment or any other issue
relating to retrenchment can be canvassed only before
the Industrial Tribunal and hence cannot be adjudicated
by the Labour Court, the relief of reinstatement with
back wages after setting aside the retrenchment is not
at all possible and further stated that averments in the
claim statement does not disclose any cause of action
against him and prayed to dismiss the claim petition.
4. The brief averments in the counter filed by the
2nd respondent are as follows :
The 2nd respondent stated that the claim made
by the petitioner is not maintainable in law or on facts
and that the 1st respondent is a registered Labour
Contractor under the Industrial Dispute Act and there
exist a contract between the 1st respondent for doing
some work and the petitioner is worked under the said
contractor under wage basis and 2nd respondent have
paid only the contractual amount to the contractor and
not to the petitioner at any point of time and there is
not privity of contract between the petitioner and the
2nd respondent and hence, the petitioner should get the
claim only from the 1st respondent and not from the
2nd respondent and even in the conciliation proceedings
the 2nd respondent have not been arrived as a party and
the petitioner has not sort any prayer against the 2nd
respondent in the conciliation proceedings also and the
petitioner is well aware that he worked only under the
1st respondent and not under the 2nd respondent at any
point of time and that can be evidenced from G.O. Rt.
No.54 dated 16-04-2013 issued by the Labour
Department and further stated that as per the averments
made in the claim statement the petitioner was orally
terminated on 07-11-2010 and it was not punitive
termination and as such the termination referred to in
the claim
statement
is
only
retrenchment
as
contemplated under section 2(oo) of the Industrial
Disputes Act, 1947 and that the matters coming within
the Jurisdiction of the Labour Court have been
enumerated in the 2nd Schedule of the Industrial
Disputes Act, 1947 and there are as many as 6 items
contained in the 2nd schedule referred to above and that
the reliefs claimed in the claim statement do not find a
place in the 2nd Schedule and as such it is plain as day
light that the above reliefs are beyond the purview of
1410
LA GAZETTE DE L’ETAT
[26 December 2017
adjudication by this Labour Court and that only the
Industrial Tribunal constituted by the Government under
section 7-A of the Industrial Disputes Act, 1947 has
got jurisdiction to decide the claim made by the
petitioner in the present claim petition and that the
matters within the jurisdiction of Industrial Tribunals
have been specified under items 1 to 11 and the item
No.10 specified thereon is “Retrenchment of workmen”
and when the validity of retrenchment or any other issue
relating to retrenchment can be canvassed only before
the Industrial Tribunal and hence, cannot be adjudicated
by the Labour Court, the relief of reinstatement with
back wages after setting aside the retrenchment is not
at all possible and prayed to dismiss the claim petition.
5.
In the course of enquiry on the side of the
petitioner WW1 was examined and Ex. W1 to Ex.W12
were marked and on the side of the respondents RW1
& RW2 was examined and Ex. R1 to Ex.R3 were marked.
6. The point for consideration is:
Whether the dispute raised by the petitioner against
the respondents over non-employment is justified or
not and if justified what is the relief entitled to the
petitioner?
7. Both sides are heard. The pleadings of both the
parties, the evidence let in by either sides and the
exhibits marked on both sides are carefully considered.
In support of his case the learned Counsel for the
petitioner has relied upon the Judgment in CDJ 1994
SC 294, CDJ 2011 MHC 759, CDJ 2011 SC 832, CDJ
2008 MHC 941 & CDJ 2001 SC 517.
8. From the pleadings of both the parties it is learnt
that the main contention of the 1st respondent is that
the petitioner has not been terminated from service and
it is only retrenchment and hence it can be adjudicated
only before the Labour Court not before the Industrial
Tribunal and that there is no cause of action. On the
other hand, the 2nd respondent contends that the 1st
respondent is the registered labour contractor under
the Industrial Disputes Act and the contract is executed
between the 1st respondent and the 2nd respondent for
doing some work and the petitioner has worked under
the said contractor on wage basis and the 2nd
respondent has paid only the contractual amount to the
contractor and not to the petitioner at any point of time
and there is no privity of contract between the petitioner
and the 2nd respondent and even in the conciliation
proceedings, the 2nd respondent has not allied as a party
and the petitioner was working only under the
contractor, the 1st respondent and the termination
referred in the claim statement is only retrenchment
as contemplated under section 2(oo) of the Industrial
Disputes Act which is under the jurisdiction of Labour
Court not in the Industrial Tribunal and that this Labour
Court has no jurisdiction to adjudicate and to give
reinstatement with backwages after setting aside the
retrenchment is not at all possible.
9. It is the evidence of the WW1 that he had been in
service at the 2nd respondent establishment through 1st
respondent contractor from 01-07-2007 and he had
been working as Electrician at production department
along with permanent workers and he had been
connected under Employment Code No.55-13433-64
of ESI Corporation by 2nd respondent and that he had
been in service under the direct control of Larsen &
Toubro and he has received Rs.185 as wages per day
and he had met with an accident during the course of
employment on 15-07-2009 and he sustained injuries
on his left hand finger for which he had undergone
plastic surgery and 2nd respondent Larsen & Toubro
limited has submitted report to the ESI Corporation in
which it was mentioned that Larsen & Toubro Limited
is the employer of the petitioner and further deposed
that he was receiving Rs.185/- as daily wages while he
asked to regularize his post through his Pattali
Thozhirsangam and made a demand before the
management of Larsen & Toubro limited, the
management
without
giving
intimation
refused
employment to the petitioner on 07-11-2010 and he
made a representation on 26-11-2010 to reinstate him
in service and after negotiation between the
management of Larsen & Toubro limited and the Pattali
Thozhirsangam, the petitioner was given employment
on 21-12-2010 and though the petitioner was assigned
work in TLT Division, his salary was reduced to Rs.110
from Rs.185 by the respondent management and when
it was questioned by the petitioner the respondent
management has without giving any notice to the
petitioner has terminated him from service on 01-01-
2011 and thereafter he has not been permitted to enter
the premises of the respondent Industry and thereafter, he
has submitted a letter to the respondent establishment
stating his family circumstances and asked for the
salary of Rs.185 per day and though the association has
made a requisition on 01-02-2011 to the respondent
management the respondent management has not given
employment and that therefore, the petitioner has raised
the industrial dispute before the conciliation officer
and also against the 1st respondent contractor.
1411
26 December 2017]
LA GAZETTE DE L’ETAT
10. In order to prove the case, the petitioner has
exhibited Ex.W1 to Ex.W12 Ex.W1 is the Letter
regarding requesting for job sent by the petitioner to
the 2nd respondent management. Ex.W2 is the
Acknowledgment card. Ex.W3 is the Letter regarding
requesting for job to the petitioner sent by the
petitioner sangam to the 2nd respondent management.
Ex.W4 is the Letter regarding industrial dispute raised
by the petitioner. The Ex.P1 to Ex.P4 would go to show
that petitioner has made requisitions to the 2nd
respondent establishment as an employer to him and
thereafter, the petitioner has raised the industrial
dispute before the Conciliation Officer. Ex.W5 is the
copy of the ESI Corporation card of the petitioner
which would reveal the fact that it was issued by the
2nd respondent establishment. Ex.W6 is the Copy of
the accident report submitted by the 2nd respondent
management to the ESI Corporation in which the 2nd
respondent has stated that they are the employer of the
petitioner. Ex.W7 is the medical leave and receipts
regarding treatment undergone by the petitioner.
Ex.W8 is the Information furnished under RTI Act which
would reveal the fact that petitioner has obtained
information under RTI Act from the ESI Corporation
that ESI contributions were paid by the 2nd respondent
in the name of the petitioner on various dates from the
year 2007 to 2010 as an employer. Ex.W9 is the reply
given by the 2nd respondent management before the
Labour Officer (Conciliation). Ex.W10 is the details
regarding overtime job done by the petitioner. Ex.W11
is the conciliation failure report. Ex.W12 is the
notification of Government of Puducherry. These
documents would go to show that the petitioner has
worked under direct supervision of the 2nd respondent
for the period 2007 to 2011. Further, it is noticed from
Ex. P11 that allegation of the petitioner was that
petitioner was reemployed and his wage was reduced
from Rs.185 to Rs.110 and the contractor insisted him
to approach the respondent management and he has
made representation to the respondent management on
27-10-2011 and 01-02-2011 in this regard and the
respondent management has refused employment to him
without any reason or notice to him and that contractor
is not a licensed contractor and he had not obtained
any licence from the Government of Puducherry
during his period of service from 01-12-2007 and
hence, it is deemed that the petitioner had worked under
the management of 2nd respondent for which the
respondent management has stated that they have
engaged
various contractors
like civil
works,
mechanical works and electrical works and contractors
engaged for the purpose of fulfilling the contractual
obligations at the premises of the company and the 1st
respondent is one of the contractor who has done the
electrical, wiring, repairing & cable laying works, etc.,
and the petitioner had worked under him and the
employer and workman relationship existed only
between the contractor and petitioner and that there is
no relationship of employer and employee between the
2nd respondent and the petitioner and that he was
engaged only by the contractor, the 1st respondent as a
casual workman. However, admittedly, the petitioner
was working under the contractor at the 2nd respondent
industry.
11. On the other hand, in order to prove the case of
the respondents, RW1 & RW2 were examined and Ex. R1
to Ex.R3 were exhibited. Ex. R1 is the marriage
invitation card of the petitioner. Ex. R2 is the letter
given by the petitioner to the Works Manager, Larsen
& Toubro Limited. Ex. R3 is the letter given by the
petitioner to Srinivasa Perumal, Contractor.
12. The first contention of the 1st respondent as well
as 2nd respondent is that this Labour Court has no
jurisdiction to decide the claim made by the petitioner
in the present claim petition stating that the matter
contains III Schedule of the Act should be decided only
by the Industrial Tribunal and the validity of the
retrenchment of the workmen or any other issue
relating to retrenchment can be canvassed only before
the industrial tribunal and hence, it cannot be
adjudicated by the Labour Court.
13.
In this case, on perusal of the reference it can
be noted that the Industrial dispute is raised by the
petitioner over non-employment to him and not against
any retrenchment and furthermore, the claim petition
also does not state that the petitioner was retrenched
from service and has stated that only his employment
was refused by the 2nd respondent management stating
that there is no connection between the 2nd respondent
establishment and the petitioner workman and that
therefore, as the petitioner has not challenged the case
as retrenchment and he has challenged only non-
employment, the contention of the 1st and 2nd
respondents that this Labour Court has no jurisdiction
to deal with the said matter is not sustainable and hence,
the first contention is answered in favour of the
petitioner and against the respondents.
1412
LA GAZETTE DE L’ETAT
[26 December 2017
14. The another contention of the respondents is that
this petitioner is not the workman of the 2nd respondent
establishment and he is only a contractual labour
worked under the 1st respondent who has taken contract
with the 2nd respondent establishment to produce man
power. On the other hand, it is stated by the petitioner
that he was working under the direct control and
supervision of the 2nd respondent management as a
worker and that he was permitted to work along with the
permanent workers and he had been in service as an
electrician in the production department from July,
2007 and he had been connected under Employment
Code No. 55-13433-64 of ESI Corporation by 2nd
respondent and 2nd respondent management has
admitted themselves as employer of the petitioner while
he was met with an accident on 15-07-2009 for which
the
2nd
respondent
management
has
sent
a
communication to the ESI corporation on 16-07-2009
stating that the 2nd respondent establishment is the
employer of the petitioner.
15. Normally, employer-employee relationship does
not exist between an employer and a contractor and the
servant of an independent contractor, where, however,
an employer retains or assumes control over the means
and method by which the work of a contractor is to be
done, it may be said that an employment relationship
exists between him and the contractor's employees. In
such a situation the mere fact of formal employment
by an independent contractor will not relieve the master
of liability where the servant is, in fact, in his
employment. In that event, it may be held that an
independent contractor is created or is operating as a
subterfuge and the employee will be regarded as the
servant of the principal employer. Where a person is
engaged through an intermediary or otherwise for
getting a job done, a question may arise whether the
appointment of an intermediary was merely sham and
nominal or a camouflage. Where a definite plea is
raised before an industrial tribunal or a Labour ourt,
the Tribunal or Court, as the case may be would be
entitled to pierce the veil and arrive at a finding that
the justification relating to appointment of a contractor
is sham or nominal and in effect and substance there
exists a direct relationship of employer and employee
between the principal employer and the workman.
Hence, it is to be decided by this Court that whether
the contractor under whom the petitioner has served is
the registered contractor to supply the workers to the
2nd respondent establishment or not and whether the
2nd respondent has direct control or supervision over
the petitioner while petitioner was in service at the 2nd
respondent establishment.
16.
On this aspect, the evidence of RW1, the
contractor is carefully considered which runs as follows
“
L&T contract
L&T
contract licence
contract ESI
Number
Provident Fund
L&T
PF
retrenchment
contract
”
The evidence of the alleged contractor RW1 would
go to show that no documents is exhibited before this
Court to prove that he is the contractor and has taken
contract at the 2nd respondent Larson & Toubro Limited
and he admitted that there is no contract between the
2nd respondent Larson & Toubro Limited to him and
he has not obtained any licence from the Government
of Puducherry and that he has not assigned ESI number
and Provident fund number and even he does not know
whether the 2nd respondent Larson & Toubro Limited
has contributed ESI and PF to the petitioner.
17. Furthermore, the 2nd respondent Larson & Toubro
Limited has not exhibited any alleged contract entered
between the 1st respondent and 2nd respondent Larson
& Toubro Limited as an exhibit and furthermore, though
the 2nd respondent has stated that there is no
relationship of employer and employee between the 2nd
respondent Larson & Toubro Limited and the petitioner,
the documents exhibited by the petitioner would evident
that ESI and PF contribution were paid by the 2nd
respondent Larson & Toubro Limited and furthermore,
the 2nd respondent has submitted the accidental report
to the ESI corporation stating that they are the principal
1413
26 December 2017]
LA GAZETTE DE L’ETAT
employer of the petitioner Durairaj who sustained
injuries in the accident at the respondent establishment
and furthermore, the petitioner has exhibited the ESI
identity card issued by the 2nd respondent Larson &
Toubro Limited as Ex.P5 which would disclose the fact
that petitioner is the employee of the 2nd respondent
Larson & Toubro Limited. In such circumstances
though the 2nd respondent Larson & Toubro Limited
has denied the relationship of employer and employee
between the 2nd respondent and the petitioner, the 2nd
respondent management has not spoken about the
above-mentioned documents who issued to the
petitioner as an employer.
18. Further, the 2nd respondent Larson & Toubro
Limited has failed to produce the alleged contract under
which the 1st respondent was engaged before this Court
and furthermore the 2nd respondent Larson & Toubro
Limited has not at all stated how many persons were
employed at the 2nd respondent establishment through
1st respondent contractor and how much was paid to
1st respondent contractor for the supply of this
contractual labour and other workmen. No account
statement or receipt of payment made to workers is
exhibited before this Court that any amount was paid
to the contractor for the supply of such workmen as a
contractual labour and that therefore, it is clear that to
avoid providing the benefit of labour laws to the
petitioner workman, the 2nd respondent has without
regularizing the petitioner workmen who had been in
service from 2007 for about 5 years as a workman and
to avoid benefits of labour laws to the workman has
utilized the petitioner in the name of the 1st respondent
contractor as a contract labour without adopting legal
procedure for utilizing contractual labours.
19. Further, it is also not established by the 2nd
respondent that 1st respondent is a licensed contractor
and contract was executed between the 1st respondent
and 2nd respondent Larson & Toubro Limited. The
evidence of RW2, the Assistant Manager of the 2nd
respondent Larson & Toubro Limited runs as follows :
“
L
ESI
ESI contribution
ESI
ESI, PF
”
From the above evidence, it is clear that Assistant
Manager of the 2nd respondent Larson & Toubro
Limited has categorically denied that 2nd respondent
establishment has not made any contract between
anybody else for supply of contractual labourers and it
is also admitted by him that they have not obtained any
permission from the Government to utilize the
contractual labourers and he admitted that petitioner
was working at the 2nd respondent establishment from
the year 2007 and they have contributed ESI and PF to
the petitioner from 2007 and that they have admitted
the fact that they have submitted the accidental report
to the ESI corporation as an employer and he has also
admitted the fact that in the accident report the 2nd
respondent has not stated that the petitioner workman
is a contractual labour under the 1st respondent.
20.
Though the 2nd respondent management has
denied the fact that petitioner is the employee of the
2nd respondent Larson & Toubro Limited, no
explanation is given by the 2nd respondent that why ESI
and EPF contribution was paid and why report was
submitted to the ESI Corporation as an employer and
why they have not exhibited the contract entered
between the 1st respondent for the supply of labourers
before this Court. On the other hand, it is established
by the petitioner that he had been in service at the 2nd
respondent Larson & Toubro Limited as a labour and
he has served under the direct control and supervision
of the 2nd respondent establishment. Therefore, it is
to be held that the refusal of employment to the
petitioner by the 2nd respondent without following any
procedure is not justified and hence, the industrial
dispute raised by the petitioner against the respondents
over non-employment is justified and the petitioner is
entitled for the relief of reinstatement as claimed
by him.
1414
LA GAZETTE DE L’ETAT
[26 December 2017
21.
As this Court has decided that industrial dispute
raised by the petitioner against the respondents over
non-employment is justified, it is to be decided whether
the petitioner is entitled for backwages as claimed by
him. There is no evidence that the said workman is
working so far in any other industry and that there is no
proof exhibited before this Court that he is working
anywhere else. The respondents have not proved that
the petitioner has earned income after his non-
employment. However, the petitioner workman could
have served at anywhere else after his non-employment.
Considering the above circumstances, this court
decides that the petitioner is entitled only for 30%
backwages at the rate of Rs.185/ per day with continuity
of service and other attendant benefits.
22.
In the result, the petition is allowed and the
industrial dispute raised by the petitioner against the
respondents over non-employment is justified and
Award is passed by directing the 2nd respondent
management to reinstate the petitioner in service within
one month from the date of this order and further
directed the 2nd respondent management to pay 30%
back wages at the rate of Rs.185/ per day 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 30th day of October, 2017.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-Labour Court,
Puducherry.
————
List of petitioner’s witness:
WW.1 — 09-12-2015 — Durairaj
List of petitioner’s exhibits:
Ex.W1 — 27-01-2011 — L e t t e r
r e g a r d i n g
requesting for job sent by
the petitioner to the 2nd
respondent management.
Ex.W2 — 01-12-2010 — Acknowledgment card.
Ex.W3 — 01-02-2011 — Letter regarding requesting
for job to the petitioner
sent by the petitioner
s a n g a m t o t h e 2 n d
respondent management.
Ex.W4 — 25-04-2011 — L e t t e r r e g a r d i n g
industrial dispute raised
by the petitioner.
Ex.W5 — 5516072144 — Copy of the ESIC card of
the petitioner.
Ex.W6 — 16-07-2009 — Copy of the Accident
report
submitted
by
the
2nd respondent
management to the ESI
Corporation.
Ex.W7 — 13 Nos. —
Medical
leave
and
receipts
regarding
treatment undergone by
the petitioner.
Ex.W8 — 30-05-2011 — Information
furnished
under RTI Act.
Ex.W9 — 07-06-2011 — Reply given by the 2nd
respondent management
before the Labour Officer
(Conciliation).
Ex.W10—26-04-2010 — D e t a i l s
r e g a r d i n g
overtime job done by the
petitioner.
Ex.W11—24-09-2010 — Co nci liatio n fa ilure
report.
Ex.W12—16-04-2013 — N o ti fi c a ti o n
o f
Government of Puducherry.
List of respondent’s witnesses:
RW1
— 21-03-2016 — Kumar
RW2
— 21-03-2016 — Nepoliyan
List of respondent’s exhibits:
Ex.R1 —
Marriage invitation card
of the petitioner.
Ex.R2 — 27-01-2011 — Letter given by the
petitioner to the Works
Manager,
Larsen
&
Toubro Limited.
Ex.R3 — 19-02-2011 — Letter given by the
petitioner
to Srinivasa
Perumal, Contractor.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-Labour Court.