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La Gazette de L' État de Poudouchéry

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.. 250

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.







}| {





























































































































(i) 









(ii) 





(iii) 





(iv) 







(v) 

































