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La Gazette de L' État de Poudouchéry

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.. 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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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.