La Gazette de L' État de Poudouchéry
The Gazette of Puducherry
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SOMMAIRES
CONTENTS
Page
Page
.. 396
Sentence arbitral du Travail
.. 396
Award of the Labour Court
.. 396
de Tribunal.
.. 406
Notifications du Gouvernement .. 406
Government Notifications
.. 406
.. 421
Avis d’Adjudications
.. 421
Tender Notices
.. 421
.. 423
Etablissements Dangereux
.. 423
Dangerous Establishments
.. 423
.. 424
Annonces
.. 424
Announcements
.. 424
.. 4 3 2
Corrigendum
.. 4 3 2
Corrigendum
.. 4 3 2
[ 395 ]
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2018 }
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27 {
No.
13
Poudouchéry
Mardi
27
Mars
2018 (6 Chaitra 1940)
No.
Puducherry
Tuesday
27th
March
2018
396
LA GAZETTE DE L’ETAT
[27 March 2018
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 10/Lab./AIL/T/2018
Puducherry, dated 5th February 2018)
NOTIFICATION
Whereas, an Award
in
Industrial Dispute (L)
No. 23/2014, dated
28-12-2017 of the Labour Court,
Puducherry in respect of the Industrial Dispute between the
Management of M/s. Supreme Automech (India) Private
Limited, Puducherry, R. Vijayaragavan, M/s. Supreme
Automech (India) Private Limited, Puducherry and
R. Natesan, Cuddalore 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.
Thursday, the 28th day of December, 2017.
I.D. (L) No. 23/2014
R. Natesan,
No. 40, Mariamman Koil Street,
Thukanampakkam Post,
Cuddalore-607 402.
. . Petitioner
Versus
The Managing Director,
M/s. Supreme Automech (India) Pvt. Ltd.
R.S. No. 74/2B, Madukarai Road,
Villianur Commune,
Mangalam Post, Puducherry.
R. Vijayaragavan,
S/o. Ramalingam,
M/s. Supreme Automech (India) Pvt. Ltd.
Puducherry.
. . Respondent
This Industrial Dispute coming on 30-11-2017 before
me for final hearing in the presence of Thiru A. Sakthivel,
Advocate for the petitioner and M/s. Law Solvers,
Advocates for the 1st respondent, Thiru S. Balaji,
Advocate for the 2nd respondent on record and
subsequently, the 2nd respondent called absent and set
ex parte, 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. 65/AIL/Lab./J/2014,
dated 21-04-2014 for adjudicating the following:-
(i)
Whether the dispute raised by Thiru R. Natesan
against the management of M/s. Supreme Automech
(India) Pvt. Ltd., Puducherry over his non- employment
is justified? If justified, what relief, he is entitled to?
(ii) To compute the relief if any, awarded in
terms of money if, it can be so computed?
2. The averments in the claim statement of the
petitioner, in brief, are as follows:
The petitioner is working with the respondent
company as a contract labourer for the last 2 years
with utmost sincerity. The petitioner had done his level
best in the course of his employment. The respondent
has not obtained any proper permission from the
Government authorities to give employment to the
contract labourers. The respondent did not give any
right of ESIC and PF. The respondent failed to provide
necessary equipment for the welfare of the labourers.
In the respondent's factory totally 80 labourers are
working this includes both permanent and contract
labourers. On 06-02-2013 during the course of the
petitioner's job, his right hand was injured and the
respondent did not made any arrangement to take
the petitioner to the Hospital, but, only after 3 hours,
the petitioner was taken to the Hospital. Due to the
long delay in giving treatment to the petitioner, the
petitioner's middle finger was totally removed. In the
ring finger plate was fixed. Soon when the petitioner
was injured the respondent did not even cared for least.
The respondent acted as if, they do not know the
petitioner. In connection to this the petitioner
approached the Labour Officer and the Labour Officer
found that the petitioner worked in the respondent
factory. After that the respondent has given a sum of
` 64,000 before the Commissioner, Labour towards
compensation for the petitioner. For the medical
397
27 March 2018]
LA GAZETTE DE L’ETAT
treatment itself, the petitioner has spent ` 24,000.
In this situation the respondent's pittance amount
could not help any way to the petitioner. Hence, the
petitioner
preferred
a
complaint
before
the
Commissioner, Labour Officer and the same is
pending. Since, the petitioner preferred a complaint
against the respondent the respondent did not permit
the petitioner to continue with the job. The act of the
respondent is highly illegal and not followed the
principles as laid down in law. Due to this, the petitioner
had suffered a lot both mentally and financially. Hence,
the petitioner request this Court to intervene in the
issue and direct the respondent to take the petitioner
for work and also direct the respondent to pay all the
backwages and other benefits. On 02-04-2013, the
petitioner filed a petition before the Labour Offficer
and the respondent filed the counter denying the
allegations and the counter containing several
allegations but, there are no documents to show and
prove for the purpose and wantonly filed the counter.
The counter filed by the respondent is not valid in the
eye of law. The Labour Officer conducted the enquiry
and issued the failure report on 07-03-2012. The
petitioner prayed this Court to set aside the report on
failure of conciliation No. 714/LO(C)/AIL/2013
Government of Puducherry, Office of the Labour
Officer (Conciliation), dated 10-03-2014 and also
direct the respondent management to reinstate the
petitioner into service with all back wages, attendance
benefits and monetary benefits from 06-02-2013.
3. The brief averments in the counter filed by the
1st respondent are as follows :
The 1st respondent denied all the allegations
contained in the claim petition except those that are
specifically admitted and stated that the 1st
respondent company is engaged in manufacturing
automobile components and for its day to day
manufacturing activities recruited employees directly
in the pay rolls of the company. While it was so, during
the month of January 2013 the 1st respondent had
given drilling work by way of job work contract to the
2nd respondent and the 2nd respondent had engaged the
petitioner as his helper to carry out the aforesaid job
work within the factory premises of the 1st respondent.
In this circumstance, the petitioner met with an
accident inside the premises of the 1st respondent
management on 06-02-2013 at about 09.30 a.m., the
injured petitioner was immediately given medical
treatment at Government General Hospital and later
PIMS, Kalapet and inspite of best efforts to save,
petitioner lost two phalanges and was amputated and
ring finger was fractured and thereby the petitioner had
suffered partial permanent disablement and the 2nd
respondent had taken care of petitioner and paid a sum
of ` 5,000 towards food and medical expenses and also
borne the total medical expenses of `13,600. The 2nd
respondent informed the 1st respondent that 2nd
respondent had deposited compensation for partial
disablement benefit of ` 65,326 before the Additional
Commissioner for Employee's Compensation by way
of Demand Draft as provided under Employee’s
Compensation Act. The petitioner after recovering
from the injury without any basis raised an industrial
dispute before the Labour Officer (Conciliation) and
the 1st respondent filed its objection and sought for
impleading the contractor in the conciliation, the
conciliation authority did not considered the prayer of
this 1st respondent forwarded failure report to the
appropriate Government which had culminated into a
reference for adjudication of the Industrial Dispute
before this Court.
It is further stated that the 1st respondent thereafter
moved an application in I.A. No. 216/2014 for
impleading the contractor R. Vijayaragavan and this
Court was pleased to allow the aforesaid application
and the contractor R. Vijayaragavan, the 2nd respondent
was impleaded as a necessary party as Immediate
employer in the above proceedings for proper
adjudication of the industrial dispute. The concept of
master and servant relationship never existed between
the petitioner and the 1st respondent and the 2nd
respondent had undertaken to provide job work to the
1st respondent for drilling as and when required in the
premises of the 1st respondent. The petitioner has not
filed any documentary proof to establish the claim that
the petitioner was engaged by the 1st respondent as
contract labour. The petitioner was only engaged by the
2nd respondent as his helper for few days for the job
work undertaken by the 2nd respondent. The 1st
respondent had covered its work force under the social
security legislations like ESI and EPF and complying
with all the statutory formalities. Hence, the claim of
the petitioner for reinstatement with full back wages
and other benefits does not arise. There is absolutely
no master and servant relationship between the
petitioner and the 1st respondent and the petitioner is
not at all entitled to any relief as against the 1st
respondent and therefore, prayed to dismiss the claim
petition.
4. In the course of enquiry on the side of the
petitioner PW.1 was examined and Ex.P1 to Ex.P13
were marked and on the side of the respondent RW.1
was examined and Ex.Rl to Ex.R4 were marked.
398
LA GAZETTE DE L’ETAT
[27 March 2018
5. The point for consideration is:
Whether the dispute raised by the petitioner against
the respondent management over his non-employment
is justified or not and if justified, what is the relief
entitled to the petitioner?
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 both sides, written arguments were filed and the
same were carefully considered. In order to prove his
case the petitioner 'has examined himself as PW.1 and
he has deposed that he was working with the 1st
respondent company as a contract labourer for about
2 years and while he was working there the 1st
respondent has not paid ESI and PF and also has not
provided necessary equipment for the welfare of the
labourers and that on 06-02-2013 during the course of
his employment his right hand was injured and both the
respondents have not made any arrangement to take
him to the Hospital and only after 3 hours he was taken
to the Hospital and due to the delay in giving treatment
his middle finger was totally removed and his ring
finger was fractured for which plate was fixed and
since the respondents did not take care of the
petitioner while he sustained injuries and therefore, the
petitioner approached the Labour Officer (Conciliation)
and after that the 1st respondent paid ` 64,000 before
the Commissioner of Labour towards compensation for
him and out of which ` 24,000 has been spent for
medical expenses and that therefore, he preferred a
complaint before the Commissioner of Labour Office
for which the 1st respondent did not permit him to
continue with the employment and that therefore, he
raised the industrial dispute before the Conciliation
Officer on 02-04-2013 and on failure of conciliation,
the case has been referred to this Court for
adjudication and he prayed for reinstatement with all
back wages, attendance benefits and monetary benefits.
7. In support of his evidence the petitioner PW.1
has exhibited Ex.Pl to Ex.Pl3. Ex.Pl is the copy of the
discharge summary issued by Puducherry Institute of
Medical Sciences. Ex.P2 is the copy of out patient
record. Ex.P3 is the copy of medical receipts. Ex.P4
is the copy of the letter issued to the Head of the
Department by the Government of Puducherry, Office
of the Assistant Director. Ex.P5 is the copy of the
letter issued to the Additional Commissioner for
Employees compensation by the Govt. of Puducherry,
Office of the Assistant Director. Ex.P6 is the copy of
the petition before the Labour Officer. Ex.P7 is the copy
of the reply issued by the respondent management to
the Labour Officer (Conciliation). Ex.P8 is the copy of
the letter sent by the petitioner before the Labour
Officer, Puducherry. Ex.P9 is the copy of the letter
sent by the petitioner before the Labour Officer,
Puducherry. Ex.P10 is the letter sent by the petitioner
before the Labour Officer, Puducherry. Ex.P11 is the
copy of petition preferred before the Labour Officer
by the petitioner. Ex.P12 is the copy of medical bills.
Ex.P13 is the copy of report on failure of conciliation.
These documents would go to show that the petitioner
Natesan has sustained injuries at his right hand in an
accident and admitted at the PIMS Hospital on 06-02-2013
and his right hand middle finger was totally amputated
and sustained commuted fracture middle phalanx ring
finger and he was discharged on 09-02-2013 and he
was referred to Indira Gandhi Government General
Hospital, Puducherry to assess the percentage of
disability and the Hospital authorities also has sent a
medical report to the Additional Commissioner for
Employee's Compensation, Labour Department and
that the petitioner has raised the industrial dispute
before the Labour Officer (Conciliation) against the
respondent management that he has not been given
employment after the accident for which the
respondent establishment has given a reply to the
Conciliation Officer stating that he has been engaged
only by the 2nd respondent Vijayaragavan, Contractor
who was doing the job work of drilling operations at
their factory and wherein, it is admitted by the
respondent management that on 06-02-2013 at about
09.30 a.m., the employee Natesan met with an accident
at their premises in the course of his employment and
it is stated by them that 2nd respondent Vijayaragavan
has deposited the compensation amount of ` 65,000
to the employee as provided the Employee's Compensation
Act and it is also stated by them that there is no
relationship of master and servant between the
petitioner and the 1st respondent management.
8. On the other hand, in order to prove their case,
the 1st respondent has examined RW.1 and he has
deposed that the petitioner has been engaged only by
the 2nd respondent as his helper to carry out the job
work within the factory premises of the 1st respondent
and that the petitioner met with an accident inside the
premises of the 1st respondent management on 06-02-2013
at about 09.30 a.m., and sustained injuries and that
immediately he was taken to Government General
Hospital for treatment and later he was taken to
PIMS, Kalapet and inspite of best efforts to save,
petitioner lost two phalanges and was amputated and
ring finger was fractured and thereby, the petitioner
had suffered partial permanent disablement and the
399
27 March 2018]
LA GAZETTE DE L’ETAT
2nd respondent had taken care of petitioner and paid a
sum of ` 5,000 towards food and medical expenses and
also borne the total medical expenses of ` 13,600 and
that the 2nd respondent had also informed the 1st
respondent that he had deposited compensation for
partial disablement benefit of ` 65,326 before the
Additional Commissioner for Employee's Compensation
by way of Demand Draft as provided under Employee’s
Compensation Act and that without any basis the
petitioner has raised the industrial dispute before the
Labour Officer (Conciliation) against the 1st respondent
management and that there is no relationship of master
and servant existed between the petitioner and the
1st respondent at any time and that the 2nd respondent
alone had undertaken to provide job work to the
1st respondent for drilling as and when required in the
premises of the 1st respondent and that the petitioner
has not filed any documentary proof to establish
the claim that the petitioner was engaged by the
1st respondent as contract labour and that the
petitioner was only engaged by the 2nd respondent
as his helper for few days for the job work undertaken
by the 2nd respondent and that therefore, they have not
paid ESI and EPF to the petitioner and that the claim of
the petitioner for reinstatement with full back wages
and other benefits does not arise.
9. In support of their contention the respondent has
exhibited Ex.Rl to Ex.R4. Ex.Rl is the copy of the
letter sent by the respondent management to the
Inspector of Factories. Ex.R2 is the copy of the letter
sent by the respondent management to the Labour
Officer (Conciliation). Ex.R3 is the copy of the letter
sent by the 2nd respondent to the Deputy Commissioner
of Labour-cum-Additional Commissioner for Employees'
Compensation. Ex.R4 is the copy of few job work
invoices, goods receipt note and job work challan by
respondent management to the 2nd respondent for the
period from 2011 to 2015.
10. From the evidence of both sides and documents
exhibited by them it can be noticed that the following
facts are admitted by either sides that the petitioner
was working as a labour on 06-02-2013 and he met
with an accident at 09.30 a.m. in the premises of
the 1st respondent establishment and he sustained
injuries wherein, his right hand middle finger was
amputated and ring finger was sustained fracture and he
was taken to Hospital and treatment was given till
09-02-2013 at PIMS Hospital and thereafter, he has
been discharged and he has raised the industrial dispute
before the Labour Officer (Conciliation) against the
1st respondent management stating that he is the
contractual labour working at the 1st respondent
establishment for about 2 years and he sustained
injuries and he was refused employment and the
conciliation was failed and the matter has been
referred to this Court.
11. The contention of the petitioner is that he was
working with the 1st respondent establishment for about
2 years and he met with an accident on 06-02-2013
at about 09.30 a.m. at the premises of the 1st respondent
establishment and the 1st respondent did not take
immediate steps to take him to the Hospital and he was
taken to Hospital only after 3 hours of the accident and
he had no relationship with the 2nd respondent
Vijayaragavan and the relationship of master and
servant is existing only between the 1st respondent and
the petitioner. On the other hand, it is contended by
the 1st respondent that they have a contractor for doing
job work with regard to drilling and the same was given
to the 2nd respondent contractor and that contractor
Vijayaragavan has engaged the petitioner as a helper to
his job work which was done at the 1st respondent
premises and that there is no relationship of master
and servant between the 1st respondent and the
petitioner.
12. On this aspect evidence and records are
carefully considered. Though, the petitioner has stated
that he was working in the 1st respondent establishment
for about 2 years, no document is exhibited before this
Court to prove the fact that the petitioner was working
at the 1st respondent establishment for about 2 years.
However, it is an admitted fact that he was working at
the premises of the 1st respondent establishment on
06-02-2013 and he met with an accident in the course
of his employment on the same day at 09.30 a.m, and
thereafter, he was taken to the Hospital and he sustained
injuries wherein, his right hand middle finger was
amputated and ring finger was sustained fracture and
the petitioner has raised the industrial dispute before
the Labour Officer (Conciliation) against the 1st respondent
management. In such circumstances, it is established
by the petitioner that he was working with the 1st respondent
establishment on 06-02-2013 and he sustained injuries
in the course of his employment.
13. The main contention of the 1st respondent is
that the petitioner was working only under the 2nd
respondent. But, the 1st respondent has not filed any
document regarding the contract executed between the
1st respondent management and the 2nd respondent.
They have exhibited the copy of the letter sent by the
respondent management to the Inspector of Factories
as Ex.Rl, the copy of the letter sent by the respondent
400
LA GAZETTE DE L’ETAT
[27 March 2018
management to the Labour Officer (Conciliation) as
Ex.R2, the copy of the letter sent by the 2nd respondent
to the Deputy Commissioner of Labour-cum-Additional
Commissioner for Employees Compensation as Ex.R3,
the copy of few job work invoices, goods receipt note
and job work challan by respondent management to the
2nd respondent for the period from 2011 to 2015 as
Ex.R4. These documents does not disclose the fact
that when the contract is entered between the 1st respondent
management and the 2nd respondent and whether the
2nd respondent is a licensed member and whether the
contract is approved by the Labour Department or not
and whether the engagement of contract labourers has
been permitted by the Government or not. It is the only
contention of the 1st respondent management that
Ex.R4 - series of documents would reveal the fact that
the 2nd respondent had undertaken job work of drilling
to carry out the job work in the 1st respondent
premises. The said Ex.R4, would go to show that various
job work vouchers have been given by Vijay Fabrics.
But, the said Vijay Fabrics is not added party to the
proceedings. Further to prove the reliability of
vouchers exhibited under Ex.R4 the 1st respondent has
not filed account statement to establish that the said
vouchers has been paid by 1st respondent management
on the respective dates. Since, such account statement
are not exhibited, this self serving documents cannot
be relied upon and these documents can be prepared by
anybody else and further the said Ex.R4 would also not
establish the facts that the 2nd respondent is the owner
of the said Vijay Fabrics and the allegation of the
1st respondent that there is a contract existed between
1st respondent and 2nd respondent.
14. Furthermore, except the abovesaid documents,
no document is exhibited before this Court by the
1st respondent management to establish that the 2nd
respondent engaged the petitioner as his employee and
to prove the fact that there was contract entered
between the 1st respondent and 2nd respondent to do
the job work. On the other hand, it is established by the
petitioner and it is admitted by the 1st respondent that
petitioner was doing work at the 1st respondent
premises and accident was occurred in the course of
his employment. This fact itself would speak that the
petitioner was working at the 1st respondent
establishment and it is to be presumed that he was in
service at the 1st respondent establishment. Further, it
is learnt from Ex.P13 - the conciliation failure report
that the Conciliation Officer has advised the 1st respondent
management and insisted them to produce registration
certificate under, Contract Labour Act and the list of
contractor. But, the management has not produced the
same which would go to show that the 2nd respondent
is not the contractor and therefore, the registration
certificate of the contractor has not been produced and
no contract agreement entered between the 1st respondent
management and 2nd respondent. Further, it is also
learnt from Ex.P13 that the 1st respondent management
has not obtained licence to engage contract labour in
the factory and licence has also not been produced.
Non-production of alleged contract entered between
the 1st respondent management and the 2nd respondent
and non-production of licence to engage contract
labourers before this Court by the 1st respondent
management would go to show that there could not be
any contract and the 2nd respondent has not engaged
this petitioner as his worker to do his job work at the
1st respondent establishment. While facts are so, it
can be inferred from the facts and circumstances of
this case that this petitioner is working at the
1st respondent establishment and while in the course
of employment on 06-02-2013 he met with an
accident and sustained injuries. Hence, it is clear that
only with an intention to escape from the clutches of
law, the petitioner has not given due receipt of payment
and due order of appointment to engage him in the
factory and that therefore, it is held that the petitioner
is an employee of the 1st respondent establishment
and he sustained injuries in the course of his
employment and he has taken treatment for some time
and that therefore, it can be held that the industrial
dispute raised by the petitioner against the 1st respondent
management over his non-employment is justified and
as such the petitioner is entitled for reinstatement as
claimed by him.
15. As this Court has decided that industrial dispute
raised by the petitioner against the 1st respondent 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 1st respondent has
not proved the fact that the petitioner has been working
in any other establishment after the refusal of
employment. However, the petitioner workman could
have served at any other industry after the refusal of
employment.
Considering
the
above-facts
and
circumstances, this Court decides that the petitioner is
entitled only for 30% back wages with continuity of
service and other attendant benefits.
401
27 March 2018]
LA GAZETTE DE L’ETAT
16. In the result, the petition is allowed and the
industrial dispute raised by the petitioner against the
1st respondent management over his non-employment
is justified and Award is passed directing the 1st respondent
management to reinstate the petitioner in service
within one month from the date of this order and
further directed the 1st respondent management to pay
30% back wages from the date of industrial dispute
raised by the petitioner before the Labour Conciliation
Officer 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 28th day of December, 2017.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
————
List of petitioner’s witness:
PW.1 —12-05-2017 — R. Natesan
List of petitioner’s exhibits:
Ex.P1 —09-02-2013 — Copy of the discharge
su mmar y i ssu ed b y
Puducherry Institute of
Medical Sciences.
Ex.P2 —22-08-2013 — Copy of out patient record.
Ex.P3 —22-08-2013 — Copy of medical receipts.
Ex.P4 —26-12-2013 — Copy of the letter issued to
the Head of the Department
by the Government of
Puducherry, Office of the
Assistant Director.
Ex.P5 —12-02-2014 — Copy of the letter issued to
the Additional Commissioner
for EmployeesCompensation
by the Govt. of Puducherry
Office of the Assistant
Director.
Ex.P6 —02-04-2013 — Copy of the petition
before the Labour Officer.
Ex.P7 —12-08-2013 — Copy of the reply, issued by
the respondent management
to the Labour Officer
(Conciliation).
Ex.P8 —18-02-2013 — Copy of the letter sent by
the petitioner before the
Labour Officer, Puducherry.
Ex.P9 —17-09-2013 — Copy of the letter sent
by the petitioner before
the
Labour
Officer,
Puducherry.
Ex.P10 —25-09-2013 — Letter sent by the petitioner
before the Labour
Officer, Puducherry.
Ex.P11—25-10-2013 — Copy of petition preferred
before the Labour Officer
by the petitioner.
Ex.P12— 09-02-2013 — Copy of medical bills.
Ex.P13—10-03-2014 — Copy of report on failure of
conciliation.
List of respondent’s witness:
RW.1 —07-11-2017 — S. Anbu
List of respondent’s exhibits:
Ex.Rl —26-04-2013 — Copy of the letter sent by
the respondent management
to
the
Inspector
of
Factories.
Ex.R2 —12-08-2013 — Copy of the letter sent by
the respondent management
to the Labour Officer
(Conciliation).
Ex.R3—06-03-2013 — Copy of the letter sent
by the 2nd respondent to
the Deputy Commissioner
of Labour-cum-Additional
Co mmissioner
for
Employees' Compensation.
Ex.R4 —
Various — Copy of few job work
dates
invoices, goods receipt
note and job work challan
by respondent management
to the 2nd respondent for
the period from 2011
to 2015.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
402
LA GAZETTE DE L’ETAT
[27 March 2018
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G. O. Rt. No. 11/Lab./AIL/T/2018,
Puducherry, dated 5th February 2018)
NOTIFICATION
Whereas, an Award in I.D (T) No.17/2012, dated
08-12-2017 of the Industrial Tribunal, Puducherry in
respect
of
the
Industrial
Dispute
between
the
management of M/s. DXN Herbal Manufacturing (India)
Private Limited, Puducherry and DXN Labour Union,
Puducherry over non-payment of bonus @ 20% and
ex gratia @ 20% of wages for the year 2009-10 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.
Friday, the 08th day of December 2017
I.D. (T) No. 17/2012
The Secretary,
DXN Labour Union,
No.471, First floor,
Bharathi Street,
Puducherry-605 001.
. . Petitioner
Versus
The Managing Director,
M/s. DXN Herbal Manufacturing (India)
Private Limited,
R.S. Nos. 141/4 and 142/5, Whirlpool Road,
Thiruvandarkoil,
Mannadipet Commune,
Puducherry-605 102.
. . Respondent
This industrial dispute coining on 05-12-2017 before
Pre-negotiation sitting for hearing in the presence of
Thiru M. Ganapthy, Advocate for the petitioner and
Tmt.
Indra Josephine Shakila, Advocate for the
respondent, upon hearing both sides, upon perusing the
case records, after having stood over for consideration
till this day, this Court passed the following:
AWARD
1. This Industrial Dispute has been referred by the
Government as per the G.O. Rt. No. 116/AIL/Lab./J/2012,
dated 17-07-2012 for adjudicating the following: -
(a) Whether the dispute raised by the DXN
Labour Union against the management of M/s. DXN
Herbal Manufacturing (India) Pvt. Ltd., Puducherry
over non-payment of bonus @ 20% and ex gratia
@ 20% of wages for the year 2009-10 is justified?
If so, to give appropriate directions?
(b) (i) Whether the suspension of 17 employees
and illegal deduction of wages is justified? If so, to
give appropriate directions?
(ii) Whether the termination of 17 employees
viz., (1) R. Pugazhenthi, (2) N. Vettrivel, (3) A.
Raja, (4) D. Dayalane, (5) D. Mahalakshmi, (6)
R. Sarala, (7) R. Umadevi, (8) V. Rajeswari, (9)
S. Banu, (10) K. Hemamalini, (11) P. Sudha, (12)
P. Lakshmi, (13) R. Devaki, (14) V. Vani, (15)
P. Maheswari, (16) N. Malathi and (17) J.
Omsakthi and illegal deduction of wages is
justified? If so, to give appropriate directions.
(iii) Whether the allegation of the union that
the management contravened the provision of
section 33(i) (b) of the Industrial Disputes Act
by terminating all the 17 workmen during the
pendency of conciliation is justified? If justified,
to what other relief the workmen are entitled to ?
(c) To compute the relief if any, awarded in
terms of money if, it can'be so computed?
2. The averments in the claim statement and
additional claim statement filed by the petitioner, is
as follows :
The petitioner union and the management entered
into a settlement under section 12(3) of the
Industrial Disputes Act regarding the production of
the goods. As per this settlement total 28 employees
have to produce 3500 bottles of finished goods per
403
27 March 2018]
LA GAZETTE DE L’ETAT
day. The production may vary according to the total
number of workers employed on a particular day.
The production of 3500 bottles of finished goods
per day is a collective work of all the employees.
The management without following this aspect
issued individual charge to a section of the
employees alleging that each of the employees has
not produced 3500 bottles of finished goods.
The management infact alleged nil production also
for some of the working days without proper
verification of records. Some of the employees
were dismissed on the false allegation and without
following any procedure. The alleged domestic
enquiry has also not been conducted in a fair manner
and no opportunity was given to the employees in
this regard during the alleged enquiry. The Enquiry
Officer has simply accepted the version of the
management and handed over a report to the
management and there are gross violations in this
regard. On the date of dismissal the conciliation
proceedings were pending against all these
dismissed employees and the respondent without
following the provisions of the Industrial Disputes
Act dismissed all the employees. The petitioner
union requested the respondent to furnish audited
balance sheet of the company for the year 2009-
2010 for arriving a just bonus to the employees by
way of a letter, dated 17-09-2010 for which the
respondent neither replied nor furnished the balance
sheet for the year 2009-2010. Hence, the petitioners
have sent another letter on 14-10-2010 demanding
20% bonus and 20% ex gratia since there was a
huge profit to the respondent in the said financial
year. For getting the balance sheet they have
submitted an application before the Labour Officer
(Conciliation) also and even before the Conciliation
Officer, the respondent had not produced the balance
sheet inspite of repeated demands of the Conciliation
Officer. On the contrary, the respondent disputed the
very authority of the Conciliation Officer for
furnishing the copy of the balance sheet in a very
arbitrary manner. The respondent had sent a letter
on 14-10-2010 stating that they will furnish the
balance sheet in due course but, till date they have
not furnished the balance sheet. The respondent is
behaving in an authoritative manner with its
employees without respecting the beneficial labour
legislations. The respondent is not following the
provisions of the Payment of Bonus Act and acting
to their whims and fancies. The employees has
worked to their best and produced maximum
quantity of production and this can be verified by
perusing the work-sheet of the company. Obviously
for this reason only the respondent is willfully and
wantonly refusing to furnish the balance sheet as
requested by the petitioners. Since, there was
surplus profit over and above the ceiling limit of
bonus, the petitioners have demanded 20% bonus
and 20% ex gratia. This is the usual practice
followed in all companies where there was surplus
profit over the bonus limit. The respondent by their
letter, dated 18-11-2010 has made a false
representation
before
the
Labour
Officer,
Conciliation that the bonus was paid to all its
employees as per rules and this is an utter false
statement and virtually this will amount to unfair
labour practice by the respondent. The management
has followed different methods for each employee
and paid the bonus to them by making difference
among them. The management without following any
rule deducted the salary of the employees.
Therefore, the petitioner union prayed this Court to
pay an Award for the payment of bonus at 20% and
ex gratia at 20% to the employees and to direct the
management to pay the deducted wages to the
employees and to pass an Award for the
reinstatement of the dismissed employees as per the
reference with back wages with continuity of
service and other attendant benefits.
3. The averments in the counter and additional
counter filed by the respondent is as follows :
The respondent denied all the averments except
which are specifically admitted by them and stated
that the petitioners and the respondent management
entered into a settlement under section 12(3) of the
Industrial Disputes Act is true. As per the settlement
total 28 employees are to produce 3500, bottles
of finished goods per day is true. The production
may vary according to the total number of workers
employed on a particular date is not correct. It is a
collective work to be done by the employees is true.
Without reaching the agreed target of 3500, the
employees indulged in the mal practices like
gherao, go slow and adopting cunning method of
preventing other employees not to reach the norms
and target to be reached as agreed and caused all
types of hurdles and also preventing other genuine
employees not to do their work at the required rate
and there by caused “Nil production” and in
404
LA GAZETTE DE L’ETAT
[27 March 2018
consequence of it the petitioner union paralyzed the
administration and kept the respondent management
in stands still. Since, the atrocities caused by the
petitioners went beyond control, the respondent
management gave notices time and again and asked
the petitioners to do the work at the agreed rate.
But, the petitioners were so indifferent and indulged
in the practice of causing unbearable loss to the
respondent management. An independent enquiry was
ordered by giving due opportunities to the
petitioners and based upon the report so collected
the respondent management decided to dismiss the
some of the employees. Bonus for the period 2009
and 2010 required bonus at the rate of 8.33 and
ex gratia was paid at the rate of 11.67. Due to the
act of the petitioners the respondent management
suffered like anything and so some of the
employees were terminated, some of the employees
were retrenched, some of the employees were
transferred to Himachal Pradesh. So, persons were
available
to
participate
in
the
conciliation
proceedings. The respondent management already
given the bonus and ex gratia at the rate what the
petitioners are eligible. The petitioner union
entered into a settlement under section 12(3) of
Industrial Disputes Act before the Labour Officer
(Conciliation) on 29-03-2009 for a period of 3 years
in which both the parties agreed for payment of
Bonus to their employees as per provisions of the
Payment of Bonus Act, 1972 and amendments made
thereunder and thus the union is debarred from
raising any fresh demands now and on the score also
the petition is liable to be rejected. The prayer for
asking payment of bonus at the rate of 20% and
ex gratia payment at the rate of 20% to the
employees is rather untenable and they do not
deserve for such award of reinstatement of the
dismissed employees with back wages since, the
petitioners in the name of union as caused
irreparable loss and taken away the life of the
management beyond recovery and in the absence of
the existence of the company and that the
respondent company has paid the bonus as per the
percentage so allowed in accordance with the
Payment of Bonus Act and the suspension as well the
termination of the 17 workers are done in accordance
with Industrial Disputes Act, and there was no illegal
deduction of wages to these 17 workers and there
is no convention of section 33(1) (b) of the ID Act
and hence, the claim made by the petitioner union
are virtually untenable and illegal in nature and
therefore, prayed to dismiss the claim petition.
4. In the course of enquiry on the side of the
petitioner PW.l was examined and Ex.W1 to Ex.W4
were marked and on the side of the respondent RW.1
was examined and Ex.Rl to Ex.Rl8 were marked.
5. The point for consideration is:
(i) Whether the dispute raised by the petitioner
union against the respondent management over
non-payment of bonus @ 20% and ex gratia @ 20%
of wages for the year 2009-10 is justified or not.
(ii) Whether the suspension of 17 employees and
illegal deduction of wages and the termination of
17 employees viz., (1) R.Pugazhenthi, (2) N. Vettrivel,
(3) A. Raja, (4) D. Dayalane, (5) D. Mahalakshmi,
(6) R. Sarala, (7) R. Umadevi, (8) V. Rajeswari,
(9) S. Banu, (10) K. Hemamalini, (11) P. Sudha,
(12) P. Lakshmi, (13) R. Devaki, (14) V. Vani,
(15) P. Maheswari, (16) N. Malathi and (17) J. Omsakthi
and illegal deduction of wages are justified or not.
(iii) Whether the allegation of the union that
the management contravened the provision of
section 33(i) (b) of the Industrial Disputes Act, by
terminating all the 17 workmen during the pendency
of conciliation is justified or not.
6. Argument heard. In order to prove their case, the
petitioner union has examined PW.1 and marked Ex.Wl
to Ex.W4. On the other hand, the respondent
management has examined RW.1 and marked Ex.Rl to
Ex.R18. While the matter was posted for cross
examination of RW1, this case has been referred to the
Lok Adalat for amicable settlement wherein, the parties
have amicably settled the matter and that they have
entered into the memorandum of settlement under
section 12(3) of the Act in which the respondent
management has agreed to reinstate all the reference
mentioned employees of the petitioner union into
service at their establishment and as per the terms and
conditions of memorandum of settlement under
section 12(3) of the Act arrived at between the parties,
the respondent management has also agreed to
pay ` 40,000 as one-time compensation amount for
all the past service of the reference mentioned
employees of the petitioner union and also agreed to
reinstate all the reference mentioned employees of
the petitioner union who agreed the memorandum of
settlement under section 12(3) of the Act and
thereafter, the petitioner union and the respondent
management has filed a Joint Compromise Memo,
wherein, it is stated that the matter has been settled
405
27 March 2018]
LA GAZETTE DE L’ETAT
out of the Court and they have sought this Tribunal to
pass an Award on the basis of Joint Compromise Memo
and therefore, it is just and necessary to record the
joint compromise memo and the Award is to be passed
in terms of memorandum of settlement and a copy of
the memorandum of settlement is to be attached as
part and parcel of the Award.
7. In the result, the petition is allowed and the
Award is passed in terms of the Memorandum of
settlement arrived at between the parties on
04-12-2017 and the same is recorded and the
respondent management is directed to reinstate all the
reference mentioned employees of the petitioner
union and also directed to give ` 40,000 as one-time
compensation amount to all the reference mentioned
employees of the petitioner union as per the terms and
conditions of the memorandum of settlement entered
between them and the said memorandum of settlement
shall be attached as part and parcel of the Award. No
cost.
Dictated to the Stenographer, transcribed by her,
corrected and pronounced by me in the open Court, on
this the 08th day of December 2017.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
————
List of petitioner’s witness:
PW.1
— 28-10-2014 Pugazhenthy
List of petitioner’s exhibits:
Ex.Wl —17-09-2010 Copy of the letter given by
the petitioner union to the
respondent management.
Ex.W2 — 01-10-2010 Copy of the industrial
dispute raised by the
petitioner union before
the
Labour
Officer
(Conciliation).
Ex.W3 — 14-10-2010 Copy
of
the
letter
given by the petitioner
union to the respondent
management.
Ex.W4 — 18-11-2010 Copy of the reply given by
the respondent management
to the Labour Officer
(Conciliation).
List of
respondent’s witness:
RW1 —22-04-2015 Thomas Arokiaraj
List of respondent’s exhibits:
Ex.Rl — Copy of bonus paid by the management
to their employees for the period
2009-2010.
Ex.R2 — Copy of Domestic enquiry report of
S. Vani (6002).
Ex.R3 — Copy of Domestic enquiry report of
G. Maheshwari (6003).
Ex.R4 — Copy of Domestic enquiry report of
R. Umadevi (6004).
Ex.R5 — Copy of Domestic enquiry report of
P. Lakshmi (6006).
Ex.R6 — Copy of Domestic enquiry report of
P. Sudha (6007).
Ex.R7 — Copy of Domestic enquiry report of
J. Omsakthi (6012).
Ex.R8 — Copy of Domestic enquiry report of
V. Rajeswari (6014).
Ex.R9 — Copy of Domestic enquiry report of
D. Mahalakshmi(6015).
Ex.R10— Copy of Domestic enquiry report of
K. Hemamalini (6017).
Ex.R11— Copy of Domestic enquiry report of
S. Sarala (6018).
Ex.R12— Copy of Domestic enquiry report of
S. Banu (6019).
Ex.R13— Copy of Domestic enquiry report of
N. Malathy (6020).
Ex.R14— Copy of Domestic enquiry report of
R. Devagi (6023).
Ex.R15— Copy of Domestic enquiry report of
N. Vetrivel (6024).
Ex.R16— Copy of Domestic enquiry report of
R. Pugazhenthy (6025).
Ex.R17— Copy of Domestic enquiry report of
D. Dhyalan (6026).
Ex.R18— Copy of Domestic enquiry report of
A. Raja (6027).
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.