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SOMMAIRES
CONTENTS
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Sentence arbitral du travail
.. 250
Award of the Labour Court
.. 250
de tribunal.
.. 259
Notifications du Gouvernement .. 259
Government Notifications
.. 259
.. 270
Avis d’Adjudication
.. 270
Tender notice
.. 270
.. 273
Etablissements dangereux
.. 273
Dangerous Establishments
.. 273
.. 276
Annonces
.. 276
Announcements
.. 276
[249]
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20 {
No.
8
Poudouchéry
Mardi
20
Février
2018 (1 Phalguna 1939)
No.
Puducherry
Tuesday
20th
February
2018
250
LA GAZETTE DE L’ETAT
[20 February 2018
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 197/Lab./AIL/T/2017,
Puducherry, dated 29th December 2017)
NOTIFICATION
W hereas, an Award in I.D (L) No .1 3 /2 0 1 7
dated 28-11-2017 of the Labour Court, Puducherry in
respect of the industrial dispute between the
management of M/s. R.K. Guest House, Sellur, Karaikal
and Thiru G. Ravi, Karaikal, 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)
E. VALLAVAN,
Commissioner of Labour-cum-
Additional 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 28th day of November 2017.
I.D. (L) No. 13/2017
G. Ravi,
No. 4, East Street,
Sellur, Thirunallar,
Karaikal.
. . Petitioner
Versus
The Managing Director,
M/s. R.K. Guest House,
Sellur, Thirunallar,
Karaikal.
. . Respondent
This industrial dispute coming on 17-11-2017
before me for final hearing in the presence of Thiru
N. Ramar, Representative for the petitioner, the
respondent being called absent and set-ex parte, upon
hearing the petitioner and perusing the case records,
this Court passed the following:
AWARD
1. This industrial dispute arises out of the reference
made by the Government of Puducherry, vide G.O.
Rt. No. 34/AIL/Lab./T/2017, dated 05-04-2017 of the
Labour Department, Puducherry to resolve the
following dispute between the petitioner and the
respondent, viz.,
(i) Whether the dispute raised by the petitioner
Thiru G. Ravi, Karaikal against the management of
M/s. R.K. Guest House, Sellur, Thirunallar, Karaikal
over non-employment is justified or not? If justified,
what relief the petitioner is entitled to?
(ii) To compute the relief if any, awarded in
terms of money if, it can be so computed?
2. The averments in the claim statement of the
petitioner, in brief, are as follows :
The petitioner stated that he had been in service at
the respondent guest house from the year 2004 and he
had served for 24 hours at the respondent guest house
and no casual leave, festival leave and weekly leave
have been granted to the petitioner and no overtime
wages were given to him and only he has received
` 4,000 as salary per month and when it was
questioned by the petitioner, the respondent has
granted ` 50,000 for petitioner son’s marriage and
` 3,000 for purchase of two wheeler and while so, the
respondent refused employment to the petitioner on
03-03-2015 and that therefore, the petitioner has
raised the industrial dispute before the Conciliation
Officer on 20-04-2015 and enquiry was conducted on
02-07-2015 wherein, the proprietor of the respondent
guest house appeared and stated that the petitioner has
not properly maintained the garden and guest house and
has committed theft of coconuts and mangoes and sold
the same and on several occasions he misused the
property and hence, he was terminated by him and it
is also stated by the respondent that while leaving the
job the petitioner received ` 60,000 for his son’s
marriage and ` 10,000 for purchase of vehicle as
service benefits and also stated that the petitioner was
paid more than the amount entitled to him, against
which the petitioner stated that he has not committed
any theft as stated by the respondent and he had been
in service very sincerely at the respondent guest house
and he has not been settled legally and since, the
management deny employment, the respondent has to
pay compensation and while so, the respondent has sent
251
20 February 2018]
LA GAZETTE DE L’ETAT
Advocate notice to the petitioner stating that to refund
the amount given by him as loan for which the
petitioner has sent a reply stating that no amount has
to be given to him and only with the intention to
degrade the industrial dispute the said notice was sent
by the respondent and the conciliation was failed
before the Conciliation Officer and the Conciliation
Officer has submitted a failure report on 27-01-2017
to the Government and that therefore, the petitioner
was not terminated by following the procedure laid
down under the Act and hence, the petitioner prayed
fo r reinstatement with continuity o f service,
back wages, leave salary and overtime salary.
3. Though, the respondent appeared before this Court
at the first hearing and subsequently despite several
opportunities, the respondent did not turn up before
this Court and hence, the respondent was set-ex parte.
In the course of enquiry, on the side of the petitioner
no evidence has been let in by the petitioner and only
Ex.P1 to Ex.P7 were marked.
4. The point for consideration is:
Whether the dispute raised by the petitioner against
the respondent management over his non-employment
is justified or not and if justified, what is the relief
entitled to the petitione.
5. Heard. It is the case of the the petitioner that he
was working at the respondent guest house and had
been in service for about 10 years. Though he had been
in service for about 10 years he has been terminated
from service on 03-03-2015 and that therefore, he has
raised the industrial dispute before the Conciliation
Officer and on failure, the Government has referred
this matter to this Court. In support of his case, the
petitioner has exhibited Ex.P1 to Ex.P7. Ex.P1 is the
copy of the dispute raised by the petitioner before the
Conciliation Officer on 20.04.2015. Ex.P2 is the copy
of the letter given by the respondent to the petitioner
on 02-07-2015. Ex.P3 is the copy of the letter given
by the petitioner to the Labour Officer (Conciliation)
on 17-07-2015. Ex.P4 is the copy of the letter given
by the respondent to the Labour Officer (Conciliation)
on 23-09-2015. Ex.P5 is the copy of the letter given
by the respondent to the Labour Officer (Conciliation)
on 14-12-2015. Ex.P6 is the copy of the letter given
by the petitioner to the Labour Officer (Conciliation)
on 29-02-2016. Ex.P7 is the copy of the conciliation
failure report on 27-01-2017.
6. As per the claim statement and records, it is
clearly established by the petitioner that he was
working in the respondent guest house for more than
10 years and he has been terminated from service
without following any procedure laid down under the
Industrial Disputes Act by the respondent for which he
has raised the industrial dispute before the
Conciliation Officer and the conciliation proceedings
were failed and that therefore, this reference has been
made to this Court to decide whether the dispute raised
by the petitioner over non-employment is justified or not.
7. In this case, though, the respondent appeared
before this Court and subsequently, despite several
opportunities, the respondent did not turn up before
this Court and hence, due to their absence, the
respondent was set-ex parte. Considering the fact that
the petitioner has established his case that he was
working in the respondent guest house and he has been
terminated without following any procedure laid down
under the Industrial Disputes Act by the respondent, it
is to be held that the industrial dispute raised by the
petitioner against the respondent management over his
non-employment is justified and the petition is liable
to be allowed and as such, the petitioner is entitled for
the order of reinstatement as claimed by him.
8. As this Court has decided that the industrial
dispute raised by the petitioner against the respondent
management over his non-employment is justified, it
is to be decided whether the petitioner is entitled for
back wages with continuity of service, leave salary and
overtime salary as claimed by the petitioner. The
petitioner has not produced any documents with regard
to casual leave, festival leave and weekly leave and it
is not established by the petitioner that he has worked
in holidays. Though, the petitioner has stated in his
evidence that he had served for more than 8 hours in a
day at the respondent guest house, it is not
corroborated by any other witness and documents and
further, the petitioner has not summoned from the
respondent to prove the fact that the petitioner was
working for more than 8 hours and furthermore,
nothing is before this Court to decide that he had done
the overtime works as stated by him in his oral
evidence and therefore, no relief can be granted for
leave salary and overtime wages. Further, the
petitioner could have served at anywhereelse after his
termination from the respondent establishment and
therefore, this Court does not find any reasonable
cause to grant full back wages to the petitioner and
consequently, this Court decides to grant partial back
wages of 50% to the petitioner till his reinstatement.
252
LA GAZETTE DE L’ETAT
[20 February 2018
9. In the result, the petition is partly allowed and
the industrial dispute raised by the petitioner against
the respondent over non-employment is justified and
an Award is passed by directing the respondent to
reinstate the petitioner within one month from the date
of this order and to pay 50% backwages from the date
of termination till the date of reinstatement with
continuity of service and other attendant benefits.
No cost.
Dictated to Stenographer, transcribed by her,
corrected and pronounced by me in the open Court
on this the 28th day of November, 2017.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
————
List of pettitioner’s witness: Nil
List of pettitioner’s exhibits:
Ex.Pl — 20-04-2015 — Copy of the dispute
raised by the petitioner
before the Conciliation
Officer.
Ex.P2 — 02-07-2015 — Copy of the letter given
by the respondent to
the
Labour
Officer
(Conciliation).
Ex.P3 — 17-07-2015 — Copy of the letter given
by the petitioner to
the
Labour
Officer
(Conciliation).
Ex.P4 — 23.09.2015 — Copy of the letter given
by the respondent to
the
Labour
Officer
(Conciliation).
Ex.P5 — 14-12-2015 — Copy of the letter given
by the respondent to
the
Labour
Officer
(Conciliation).
Ex.P6 — 29-02-2016 — Copy of the letter given
by the petitioner to
the
Labour
Officer
(Conciliation).
Ex.P7 — 27-01-2017 — Copy of the conciliation
failure report.
List of respondent’s witness: Nil
List of respondent’s exhibits: Nil
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 198/Lab./AIL/T/2017
Puducherry, dated 29th December 2017)
NOTIFICATION
Whereas, an Award in Industrial Dispute (L) No. 46/
2012, dated 23-11-2017 of the Labour Court,
Puducherry in respect of the industrial dispute between
the management of M/s. Soundraraja Mills Limited,
Nedungadu, Karaikal and D.Kamaraj, No.166, First
Floor, Bharathiar Road, Karaikal, over final settlement
on par with other Badli workers settled during 2004
for his total service have 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)
E. VALLAVAN,
Commissioner of Labour-cum-
Additional Secretary to Government (Labour).
————
BEFORE THE INDUSTRIAL TRIBUNAL-CUM-
LABOUR COURT AT PUDUCHERRY
Present : Thiru G. THANENDRAN, B.COM., M.L.,
Presiding Officer.
Thursday, the 23rd day of November, 2017
I.D. (L) No. 46/2012
D. Kamaraj,
No.166, First Floor,
Bharathiar Road,
Karaikal.
. . Petitioner
Versus
The Management,
M/s. Soundararaja Mills Limited,
Nedungadu,
Karaikal.
. . Respondent
This industrial dispute coming on 07-11-2017 before
me for final hearing in the presence of Tvl. N. Muthukumaran
and J. Ganesan, Counsel for the petitioner, Thiru. Jegadharaj,
Counsel for the respondent and subsequently, when the
253
20 February 2018]
LA GAZETTE DE L’ETAT
case is posted for argument the petitioner called
absent and no representation and upon hearing the
respondent, 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. l32/AIL/
Lab./J/2009, dated 1-09-2009 for adjudicating the
following:-
(i) Whether the dispute raised by Thiru D. Kamaraj,
Driver against the management of M/s. Soundararaja
Mills Limited, Karaikal seeking final settlement on
par with other Badli workers settled during 2004 for
his total service is justified or not?
(ii) If justified, 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?
The above reference originally taken on file by the
District Court at Karaikal which was being functioned
as Labour Court in Industrial Dispute No.11/2009 and
subsequently, when this Industrial Tribunal-cum-Labour
Court established in the year 2012, the case has been
transferred to this Court and this case was taken on file
by renumbering it as Industrial Dispute (L). No.46/2012.
2. The petitioner in his claim statement has stated
as follows :
The petitioner was appointed at the respondent
establishment on the basis of paper publication given
by the respondent on 31-01-2001, after examination
of his skill and perusal of his driving licence by the
respondent and initially he was earning `1,800-00 per
month and while at the time of appointment, the
respondent management has obtained his signature in
several papers and that he was appointed as Badli
worker on 01-02-2005 and he had been given ` 2,769-23
as monthly wages and the respondent management has
deducted ` 332 towards GPF and ` 49 for ESI and in
the month of April-2008 and May-2008, the respondent
management has committed lock out and the petitioner
has been paid wages only for the month of April after
deduction, he has received ` 2,945 and in the month of
June-2008 and July-2008 he had been on ESI leave and
he has worked from 01-08-2008 to 13-08-2008 and he
has received the salary for the said period and he has
worked at the respondent establishment for about
43 months and he had paid salary and though, he had
been served for about 12 hours per day it was
accounted only for 8 hours and salary was given only
for the said period and that he had not resigned his job
at any time at respondent establishment and alleged
resignation letter, dated 19-09-2008 is not written by
him and that the respondent management has created
the resignation letter by utilising his signature and
they have subsequently accepted the said resignation
and that in the negotiation held before the District
Collector at the time of lock out of the respondent
establishment the respondent management has accepted
to pay ` 1,50,000 to the permanent workers and based
on that 156 permanent workers have given consent to
Voluntary Retirement Scheme and hence, he also has
claimed ` 1,50,000 as if, he is a permanent worker and
that the respondent management has refused to pay the
same and also not accepted to confirm his service as
permanent and that as the settlement given to Badli
workers in the year 2004 at the rate of ` 35 per day by
the respondent management, the petitioner requested
that he has to be given settlement at the rate of ` 35
per day and he has to be permitted to serve as daily
wage basis and the respondent management has denied
the same and therefore, the petitioner has raised a
dispute before the Labour Officer on 24-09-2008 and
on failure of the conciliation the Labour Officer has
submitted a failure report on 14-07-2009 and further
stated that his wife, his elder daughter who is studying
10th standard and his younger son who is studying 5th
standard depends on him and he is not having own
house and land and that his wife is not working
anywhere and therefore, prayed this Court to direct the
respondent management to reinstate him in service as
a permanent worker and for arrears of wages.
3. The respondent management in their counter
has stated as follows :
The claim petition filed by the petitioner is not
maintainable since the petitioner has already raised the
industrial dispute for gratuity and the same was
rejected by the Labour Officer (Conciliation) stating that
industrial dispute cannot be raised under Industrial
Disputes Act with regard to the gratuity and it can be
claimed only under the Gratuity Act and that therefore,
the Labour Officer (Conciliation) who has sent the
failure report and the reference of the Government is
also not maintainable and the claim statement filed by
the petitioner on the foot of the reference sent to this
Tribunal is also not at all sustainable and that petitioner
was working as temporary Driver at the respondent
254
LA GAZETTE DE L’ETAT
[20 February 2018
management from 01-02-2005 and he has taken leave
for the period from 01-09-2008 to 03-09-2008 and
that the petitioner is unauthorisedly absent from
04-09-2008 to 18-09-2008 without any intimation to
the respondent management and while he returned on
19-09-2008 he has given a resignation letter to the
management which was accepted on the same day and
thereafter, he had been in service at some other
establishment and on the instigation of somebody else,
the petitioner has raised the industrial dispute
on 24-09-2008 before the Conciliation Officer for
which the respondent management has submitted their
reply on 13-01-2009 denying all the particulars stated
by the petitioner and however, the Conciliation
Officer without rejecting the plea of the petitioner
submitted failure report to the Government for which
the reference has been sent to this Court and that
therefore, the reference itself is not maintainable
under the Industrial Disputes Act.
The respondent management further stated that the
allegation stated by the petitioner that he was
appointed under the paper publication and that he has
been examined and selected on perusal of his driving
licence as a Driver for the wage of ` 1,800 per month
in which ` 69.70 has been deducted for one day leave
was denied as false and that as per records, the
petitioner was appointed at the respondent establishment
on 01-02-2005 and the averment that he had been in
service from 31-01-2001 is utterly false and it is
true that the petitioner had been in service from
01-02-2005 to 19-09-2008 and other averments that
the petitioner had been served for 12 hours instead of
8 hours is totally false and the petitioner has not stated
anything about the period of service and averment that
petitioner has not resigned his job and the resignation
letter, dated 19-09-2008 is not written by him is also
utterly false since the resignation letter has been
written at his own handwriting and therefore, the
allegation of the petitioner that the resignation letter
was fabricated by the respondent management is also
utterly false.
The respondent management further stated that other
allegations of the petitioner that in the negotiation held
before the District Collector at the time of lockout
the respondent management has accepted to give
` 1,50,000 to permanent workers for which the
permanent workers were given consent to Voluntary
Retirement Scheme and that therefore, the petitioner
has claimed ` 1,50,000 as a permanent worker to the
respondent management for which the respondent
management has refused to pay the same to the
petituoner is false and other allegation of the
petitioner is that the petitioner claimd in the year 2008
for settlement to him at the rate ` 35 per day as it was
given by the management to the Badli workers in the
year 2004 and the respondent management has denied
the same is also false and another alegation that
without resigning his job on
24-09-2008, the
petitioner raised a dispute before the Labour Officer
and on failure of the conciliation, the Labour Officer
has submitted a failure report on 14-07-2009 is also
utterly false.
The respondent management further stated that only
with the intention to get the money from the
respondent establishment the petitioner has filed this
application and that the petitioner is not the party to
the settlement entered between the respondent
management and the Badli workers since the petitioner
is not a badli worker and that in the year 2004, the
petitioner was not in service and that therefore, the
petitioner cannot get the benefits of the settlement
entered in the year 2004 and other reasons stated by
the petitioner that his wife, his elder daughter who is
studying 10th standard and his younger son who is
studying 5th standard depends on him and he is not
having own house and land, and that his wife is not
working anywhere and claimed relief on that ground is
not sustainable and against the truth and order of the
Government, dated 11-09-2009 and further stated that
the petitioner has accepted the fact that he had been in
service in some other establishment while he was
working at the respondent establishment and that the
petitioner has not claimed any permanent work in his
letter, dated 24-09-2008 and that non-employment of
petitioner by respondent or adjudicate regarding the
same was not mentioned in the Government order,
dated 11-09-2009 and that the claim sought by the
petitioner in his claim statement is against law and
therefore, prayed to dismiss the claim petition.
4. In the course of enquiry on the side of the
petitioner PW1 & PW2 was examined and Ex.P1 to
Ex.Pl0 were marked and on the side of the respondent
RW1 was examined. While perusing the records for
passing of Award, it is learnt that the respondent has
exhibited Ex.Rl and Ex.R2 in the cross examination of
PW1 and subsequently examined their witness as RW1
wherein, instead of marking the documents as Ex,R3 to
Ex.R8, once again it is wrongly mentioned in docket
sheet as Ex.Rl to Ex.R8 and hence, this Court has
rectified the same and the documents were exhibited as
Ex.R8 to Ex.R8. Furthermore, the evidence of RW1 has
not been challenged since RW1 was not cross
examined by the petitioner side, though, several
opportunies were given. Further, to putforth the
argument of the petitioner several opportunities were
255
20 February 2018]
LA GAZETTE DE L’ETAT
given to the petitioner on 15-09-2017, 13-10-2017,
27-10-2017 and 07-11-2017. But, no argument was
putforth on the side of the petitioner and the petitioner
was also not turned up before this Court and hence, the
argument of the petitioner side was closed and the
argument of the respondent was heard and the case was
posted for orders.
5. The point for consideration is:
Whether the dispute raised by the petitioner against
the management seeking final settlement on par with
other Badli workers settled during 2004 for his total
service, is justified or not and if justified, what is the
relief entitled to the petitioner?
6. The pleadings of the parties, the evidence let in
by either sides and the exhibits marked on both sides
are carefully considered. On the side of the respondent
written argument was filed and the same is carefully
considered.
7. In order to prove the case of the petitioner, the
petitioner was examined as PW1 and he has deposed
all the facts which are stated in the claim statement and
reiterated the same in his evidence. To corroborate the
evidence of PW1, one Manickam was examined as
PW2 and he has stated in his evidence that he was
conducting travels in the name of Thangam Tavels and
that for the period of 18-09-2008 to 23-09-2008, the
petitioner was engaged by him to drive the vehicle
bearing Reg. No. PY 02 E 7227 from Karaikal to
Tirupathi for which the trip sheet was sealed by
Renigunda (RTO) checkpost at Andhra and root permit
also has been submitted and that the petitioner Kamaraj
was working under him on contract. In support of his
case the petitioner has exhibited Ex.P1 to Ex.Pl0.
Ex.Pl is the copy of the letter given by the petitioner
to the Labour Officer, Karaikal on 24-09-2008 which
would reveal the fact that petitioner has submitted a
letter on 24-09-2008, wherein, he has stated that he has
joined in the year 2001 at the respondent establishment
as a Badli workman and had been in service till
31-05-2008 as a Driver and that in the year 2004 the
Badli workers of the respondent establishment have
been settled by calculating at the rate of 35 per day for
the period from the date of joining till the date of
relieving and that he has asked the same from the
respondent establishment. Ex.P2 is the copy of the
letter given by the petitioner to the Labour Officer,
Karaikal on 22-01-2009, wherein, he has stated that he
had been in service at the respondent establishment from
January-2001 to May-2008. Nedungadu Post Office
savings passbook of petitioner is exhibited as Ex.P3
which would reveal the fact that the petitioner has
deposited ` 200 per month for the period of five years from
11-02-2002 till 04-01-2007. Lakshmi Vilas Bank
savings pass book of petitioner is exhibited as Ex.P4
which would reveal the fact that the petitioner had an
account at Lakshmi Vilas Bank, Karaikal. Ex.P5 is the
copy of reply given by the respondent management to
the Labour Officer (Conciliation), Karaikal on 13-01-2009.
These documents would go to show that the petitioner
has an account at Nedungadu Post Office and has
deposited a recovery deposit of ` 200 per month for
the period from 2002 till 2007 and he has got savings
bank account at Lakshmi Vilas Bank at Karaikal and the
respondent management has submitted a reply on 13-01-2009
before the Conciliation Officer for the industrial
dispute raised by the petitioner, dated 24-09-2008.
8. Further, Ex.P6 is the copy of reply given by the
respondent management to the Labour Officer
(Conciliation), Karaikal on 04-06-2009, wherein, it has
been stated by the respondent management that this
petitioner has claimed gratuity under the Industrial
Disputes Act instead of Payment of Gratuity Act, 1972.
Nedungadu Dispensary referral slip, dated 02-07-2008.
Copy of benefit payment slip of ESIC, dated 16-08-2005.
Copy of accident report along with Form ESIC-32
given by respondent management in respect of
petitioner, dated 13-08-2005 are exhibited as Ex.P7.
Ex.P8 is the ESI family card of the petitioner. Ex.P9 is
the ISI card of the petitioner for the month of March,
May & August-2008. These documents would reveal
the fact that the petitioner was paid ESI, GPF by the
management till August-2008. Further, the letter given
by Velumanickam to the Labour Officer, Karaikal,
dated 20-01-2009, Trip sheet for contract carriage,
dated 19-09-2008, Trip sheet for contract carriage,
dated 17-09-2008, Form P.sp- Special permit in
respect of a contract carriage, dated 16-09-2008,
Form P.sp -Special permit in respect of a contract
carriage, dated 18-09-2008 are exhibited as Ex.P10
which would go to show that this petitioner was
working as a Driver with one Velumanickam and he had
been engaged by him from 16-09-2008 to 19-09-2008.
9. On the other hand, in order to prove the case of
the respondent, RW1 was examined and he has
reiterated the averment of the counter in his evidence
and in support of his case the respondent management
has exhibited Ex.Rl to Ex.R8. Ex.Rl is the copy of
nomination and declaration Form given by the
petitioner to the respondent management, dated
19-03-2005. Ex.R2 is the signature of petitioner in letter
regarding acceptance of resignation of petitioner by
respondent management, dated 19-09-2008. Ex.R3 is
the copy of resignation letter given by petitioner, dated
19-09-2008. Ex.R4 is the copy of letter regarding
acceptance of resignation of petitioner by respondent
256
LA GAZETTE DE L’ETAT
[20 February 2018
management, dated 19-09-2008. Ex.R5 is the copy of
notice of remarks by Labour Officer (Conciliation)
along with complaint given by petitioner, dated 24-09-2009.
Ex.R6 is the copy of reply given by respondent
management before the Labour Officer (Conciliation),
dated 13-01-2009. Ex.R7 is the copy of reply given by
the petitioner before the Labour Officer (Conciliation),
dated 22-01-2009. Ex.R8 is the copy of reply given by
respondent management before the Labour Officer
(Conciliation), dated 04-06-2009.
10. The above documents would go to show that
petitioner has given an application for Employees
Provident Fund scheme on 19-03-2005 to nominate his
wife as a nominee stating that he has got one daughter
and son and that petitioner has submitted an
application to the respondent management that he has
to resign his job on 19-09-2008 and the same was
accepted by the respondent management on the same
day in which the petitioner has also signed and
endorsed the same and the respondent management has
submitted a reply to the Conciliation Officer, wherein,
the respondent management has stated that petition
submitted by the petitioner over the payment of
gratuity is not maintainable.
11. From the pleadings of both the parties, it is clear
that the respondent management has admitted the fact
that petitioner was working from 01-02-2005 as a
Driver at the respondent establishment and according
to the respondent the petitioner was unauthorisedly
absent from 04-09-2008 to 18-09-2008 without any
intimation to the respondent management though, he
has been granted leave for the period from 01-09-2008
to 03-09-2008 and when he returned to duty on
19-09-2008 the petitioner has submitted a resignation letter
which was accepted on the same day and it is the case
of the respondent management that thereafter he had
served at somewhere else and only on the instigation
of somebody else he has raised the industrial dispute
on 24-09-2008 for which the respondent management
has submitted their reply on 13-01-2009 denying all
the averments of the petitioner.
12. It is the first contention of the respondent that
petitioner has claimed gratuity under the Industrial
Disputes Act which is not sustainable since, it can be
claimed only under the Payment of Gratuity Act, 1973
and hence, the industrial dispute cannot be raised under
such Act for the payment of Gratuity Act. However, on
perusal of reference made by the Government, it is
clear that the industrial dispute is raised by the
petitioner seeking final settlement on par with other
Badli workers settled during 2004 for his total service
and therefore, the contention raised by the respondent
management is not sustainable and the industrial
dispute referred by the Government can be adjudicated
by this Tribunal to decide whether the dispute raised by
the petitioner against the respondent management
seeking final settlement on par with other Badli
workers settled during the year 2004 for his total
service as a Badli worker. Now, it is to be decided by
this Tribunal, whether this petitioner is entitled for any
settlement as claimed by him on par with other Badli
workers settled during the year 2004. On this aspect,
the evidence and records are carefully perused.
13. It is the main contention of the respondent
management that petitioner was unauthorisedly absent
from 04-09-2008 to 18-09-2008 and subsequently, the
petitioner appeared on 19-09-2008 with the
resignation letter which was accepted by the
management and the petitioner was intimated regarding
the acceptance of the resignation and also advised to
the petitioner to get the monetary benefits if any, from
the respondent establishment and it is the further
contention of the respondent management that
petitioner is not working as Badli worker at any time
and he is not entered with any agreement to the
management accepting Voluntary Retirement Scheme
and that since the petitioner is not working in the year
2004, he cannot claim any benefit under the settlement
made in the year 2001.
14. The PW1 in his cross examination has stated
as follows :
“
257
20 February 2018]
LA GAZETTE DE L’ETAT
.
’’
From the above evidence, it is clear that petitioner
had admitted the fact that he joined in the respondent
establishment only in the month of February-2005 and
the petitioner has admitted that the signature in the
Ex.R2 - alleged acceptance of resignation letter is of
himself. But, he has stated that he has not given any
resignation letter. No evidence is let in by him that he
has signed in several papers while he was appointed. It
is not the case of the petitioner that he has given
consent to Voluntary Retirement Scheme to the
respondent management and entered settlement with
the respondent establishment.
15. The documents filed on the side of the
petitioner do not disclose that petitioner had been in
service in the year 2004, though, the petitioner has
pleaded that he had been in service at the respondent
establishment from the year 2001. The petitioner has
not established the fact that he had joined at the
respondent establishment prior to 2005 and the
petitioner has admitted that he has joined only in the
year 2005 in his evidence and hence, he could not have
been in service at the respondent establishment in the
year 2004 as a Badli worker and he could not have
accepted the Voluntary Retirement Scheme announced
in the year 2004 as a Badli worker and hence, he cannot
claim compensation as if, he was in service as badli
worker in the year 2004 which was given by the
management to 156 workers for Voluntary Retirement
Scheme.
16. It is the contention of the petitioner that he has
not given any resignation letter to the respondent
management and the respondent management has
prepared the resignation letter from several signatures
obtained in the blank paper by the management at the
time of appointment and to prove the same he has let
evidence through PW2 that he was a driver in a trip
from Karaikal to Tirupathi from 16-09-2008 to 19-09-2008
and has exhibited trip sheet and other documents. The
evidence of PW2 in his cross examination runs as
follows :
“
.’’
From the above evidence, it is clear that even prior
to the trip the petitioner has asked job to the PW2
Manickam stating that he has left his service from the
Mill and it is also admitted by PW2 that permit was
given to his vehicle which was alleged to have been
driven by the petitioner only for the period 16-09-
2008 to 19-09-2008 and he has stated that he could
not say when the petitioner returned from Tirupathi.
The evidence of PW2 would go to show that PW2 also
has not denied the fact that petitioner could not be
present
on
19-09-2008
at
the
respondent
establishment. Therefore, the evidence of PW2 is not
supported the evidence of the petitioner PW1.
17. Further, the trip sheet can be created as if, the
petitioner had driven the vehicle though somebody
would have driven the vehicle on the said date and that
this trip sheet document alone is not sufficient to
prove that the petitioner was actually engaged by PW2
and actually driven the vehicle to Tirupathi on the said
date and furthermore, the petitioner has admitted the
signature in the resignation acceptance letter which
was exhibited under Ex.R2 and the signature in the
resignation letter which was exhibited as Ex.R3 and
that these documents would go to show that the
petitioner has resigned his job and left the respondent
establishment and subsequently, he has raised the
industrial dispute before the Conciliation Officer.
18. Furthermore, on perusal of reference, it is clear
that the reference has been made to this Tribunal to
decide whether the petitioner is entitled for the wages
on par with other Badli workers settled during 2004.
But, the petitioner has claimed reinstatement and
backwages in his claim statement and he has not asked
any wages on par with the Badli workers settled during
2004 in his claim statement. Therefore, the relief of
reinstatement with backwages prayed by the petitioner
is not sustainable and as such, the relief cannot be
granted to the petitioner as prayed in the claim
statement. Furthermore, it is an admitted fact that
258
LA GAZETTE DE L’ETAT
[20 February 2018
petitioner has stated in his evidence that he had been
in service from 01-02-2005 till 18-08-2008 i.e., for
43 months and hence, he is not entitled for any gratuity
since for entitlement of gratuity the worker has to be
in service not less than 5 years and that therefore, it is
to be held that the industrial dispute raised by the
petitioner against the respondent management seeking
final settlement on par with other Badli workers settled
during 2004 for his total service is unjustified and as
such, the petition is liable to be dismissed.
19. In the result, the petition is dismissed and
industrial dispute raised by the petitioner against the
respondent management seeking final settlement on
par with other Badli workers settled during 2004 for
his total service is unjustified. No cost.
Dictated to the Stenographer, transcribed by her,
corrected and pronounced by me in the open Court on
this the 23rd day of November, 2017.
G. THANENDRAN,
Presiding Officer
Industrial Tribunal-cum-
Labour Court, Puduhcerry.
————
List of petitioner’s witnesses:
PW.1 —26-10-2010— Kamaraj
PW.2 —19-12-2011 — Manickam
List of petitioner’s exhibits:
Ex.Pl —24-09-2008 — Copy of the letter given
by the petitioner to the
Labour Officer, Karaikal.
Ex.P2 —22-01-2009 — Copy of the letter given
by the petitioner to the
Labour Officer, Karaikal.
Ex.P3 —11-02-2002 — Nedungadu Post Office
Savings Bank Passbook
of petitioner.
Ex.P4 —10-02-2003 — Lakshmi Vilas B ank
Savings Bank Passbook
of petitioner.
Ex.P5 —13-01-2009 — Copy of reply given by the
respondent management to
t h e
L a b o u r Of f i c e r
(Conciliation), Karaikal.
Ex.P6 —04-06-2009 — Copy of reply given by the
respondent management to
t h e
L a b o u r Of f i c e r
(Conciliation), Karaikal.
Ex.P7 —02-07-2008 —(i) Nedungadu Dispensary
referral slip.
—16-08-2005—(ii) C o p y o f b e n e f i t
payment slip of ESIC.
—13-08-2005—(iii) Cop y of accid ent
report
along
with
form ESIC-32
given
b y
r e s p o n d e n t
management in respect
of petitioner.
Ex.P8 —01-02-2005 — ESI family card of the
petitioner.
Ex.P9 — March, May — ISI card of the petitioner.
& August-2008
Ex.P10—20-01-2009—(i) Letter given b y
Valumanickam
to the
Labour Officer, Kraikal.
—19-09-2008 —(ii) Trip sheet for contract
carriage.
—17-09-2008 —(iii)Trip sheet for contract
carriage.
—16-09-2008 —(iv) F o r m
P. s p -S p e c i a l
permit in respect of as
contract carriage.
18-09-2008 —(v) Form P. s p - S p e c i a l
permit in respect of as
contract carriage.
List of respondent’s witness:
RW1 —12-12-2012— John Amalraj
List of respondent’s exhibits:
Ex.R1— 19-3-2005 — Copy of nomination and
declaration Form given
by the petitioner to the
respondent management.
Ex.R2—19-09-2008— Signature of petitioner in
l e t t e r
r e g a r d i n g
acceptance of resignation
of
petitio ner
by
respondent management.
Ex.R3—19-09-2008 —Copy of resignation
letter given by petitioner.
259
20 February 2018]
LA GAZETTE DE L’ETAT
Ex.R4 —19-09-2008— C o p y
o f
l e t t e r
regarding acceptance
o f
resign atio n
o f
petitioner by respondent
management.
Ex.R5—24-09-2009— Copy
of
notice
of
remarks
b y
La b o ur
Officer
(Conciliation)
along
with
complaint
given by petitioner.
Ex.R6—13-01-2009— Copy of reply given
by respondent management
before
the
Labour
Officer (Conciliation).
Ex.R7— 22-01-2009— Copy of reply given by
the petitioner before
the
Labour
Officer
(Conciliation).
Ex.R8— 04-06-2009— Copy of reply given b y
respondent management
before
the
Labour
Officer (Conciliation).
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puduhcerry.
}| {
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