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La Gazette de L' État de Poudouchéry

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Page

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.. 924

Sentence arbitral du Travail

.. 924

Award of the Labour Court

.. 924

de Tribunal.



.. 934

Notifications du Gouvernement .. 934

Government Notifications

.. 934



.. 941

Avis d’Adjudications

.. 941

Tender Notices

.. 941



.. 944

Etablissements dangereux

.. 944

Dangerous Establishments

.. 944



.. 946

Annonces

.. 946

Announcements

.. 946

Registered with the Registrar

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Registered No. PY/44/2018-20

WPP No. TN/PMG(CCR)/WPP-88/2018-20

Dated : 31-7-2018

Price : ` 24-00

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2018 }

|

31 {

No.

31

Poudouchéry

Mardi

31

Juillet

2018 (9 Sravana 1940)

No.

Puducherry

Tuesday

31st

July

2018

[ 923 ]

924

LA GAZETTE DE L’ETAT

[31 July 2018

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 65/Lab./AIL/T/2018,

Puducherry, dated 11th April 2018)

NOTIFICATION

Whereas, an Award in I.D. (L) No. 19/2007, dated

28-02-2018 of the Labour Court, Puducherry in respect

of the Industrial Dispute between Management of

M/s. Somkan Marine Foods Limited, Yanam and

Thiru P. Srinivas Rao, Yanam over non-employment Award

of the Labour Court, Puducherry 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,

Wednesday, the 28th day of February, 2018.

I.D. (L) No. 19/2007

P. Srinivas Rao,

Packing Helper,

C/o. K.S. Chakaravarthy,

Somkan Staff Workers Union,

No.8/321, I Cross Road,

Zicrianagar, Yanam–533 464.

. .

Petitioner

Versus

1. The Managing Director,

M/s. Somkan Marine Foods Limited,

Adavipolam, Yanam.

2. Kotak Mahindra Bank Limited,

Represented by its Authorised

Signatory, Mumbai.

3. The Standard Chartered Bank,

Represented by its Authorised

Signatory, Mumbai–400 001.

4. The Managing Partner,

M/s. Image Feeds,

D.No. 5-1-063, Adavipolam,

Yanam.

. .

Respondent.

This Industrial Dispute coming on 30-01-2018

before me for final hearing in the presence of

Thiru R.S. Zivanandam, Advocate for the petitioner and

Tvl. L. Sathish, S. Ulaganathan, S. Velmurugan,

V. Veeraragavan and E. Karthik, Advocates for the

respondents, 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. 60/2007/Lab../AIL/J,

dated 20-03-2007 for adjudicating the following:-

(i) Whether

the

non-employment

o f

Thiru P. Srinivas Rao, Packing Helper by the

management of M/s. Somkan Marine Foods Limited,

Yanam is justified?

(ii) If not, to what relief he is entitled to?

(iii) To compute the relief, if any, awarded in

terms of money, if, it can be so computed?

2. The averments in the amended claim statement

of the petitioner, in brief, are as follows:

The petitioner was a member of registered union

by name M/s. Somkan and Workers Union Register

No. RTU/1444/2006 and is a worker of first respondent

Factory. The first respondent with arbitrary power kept

the union members at his mercy depriving all the

benefits provided by the Industrial and Labour Acts.

Therefore, all the members of the union had

complained

to

the

Regional

Provident

Fund

Commissioner against the respondent on 20-01-2006

over the non-enrolment. The petitioner is one of the

signatories of the complaint. An enquiry was conducted

by the Commissioner, Provident Fund in this regard and

after found fault on behalf of the management,

Commissioner has ordered first respondent's factory

to debt the determined due amount within 7 days of

receipt of his order. This to cause a termult the first

respondent and the passionate fiery respondent stopped

the petitioner from joining his duty on 22-5-2006.

Therefore, the petitioner raised a conciliation of

industrial

dispute

on

22-5-2006

through

his

925

31 July 2018]

LA GAZETTE DE L’ETAT

representation. On receipt of the representation,

the conciliation was initiated and ended in a failure.

The petitioner is innocent, illiterate and poor and

therefore, unconscious of his rights. He has faith in

respondent but, the respondent break all the

fundamental rights and principles pertaining to the

Industrial and Labour Acts with impurity. However, the

discharge of work carried out by the petitioner since

his joining in duty i.e., 21-3-2003 as a packing helper

to the satisfaction of the management. But, the

respondent make him believes in him and removed on

22-5-2006 without any rhyme or reason which is

against natural justice. Therefore, he has to be

reinstated with back wages. The stand taken by the

management before Conciliation Officer that no such

named person with the given address or otherwise

employed by the Company is the strategy adopted in

this matter as well as the strategy adopted before

Regional Provident Fund Commissioner is identical and

similar. With malicious and willful injury the workers

not were provided appointment letters and pay bills by

the management. The workmen concern left with no

evidence to substantiate their claim. In these

circumstances Enforcement Officer EPF organisation

had collected policy schedule of group JPA policies

issued to respondent Factory by the National Insurance

Company branch at Yanam. The schedule list was

verified with list of employees supplied by the

complaint and their names are shown in the policies.

After

confirmed

the

workmen

authentically

Enforcement Officer submitted

his report to the

Regional Provident Fund Commissioner. The petitioner

was also shown in Enforcement Officer report. The

Enforcement Officer report was positive proof so as

to prove that the petitioner was employee of first

respondent's factory. The first respondent Factory has

failed to produce all the records before Conciliation

Officer so as to prove that the complaint was not

working with them. Therefore, the petitioner was the

regular worker of the management and he cannot be

simply terminated. The act of the management is

arbitrary, illegal and liable to be set aside. The

Enforcement Officer report that the employer is

maintaining records of attendance to whom they have

paid Provident Fund only. Therefore, the petitioner had

a little evidence to prove his employment with

respondents Factory. All this was prosterous procedure

adopted by the Management on the behest of certain

unscrupulous element who advising some industries in

Yanam. "The doctrine of hire and fire" is the principle

involved in the strategy employed by the management.

The Regional Provident Fund Commissioner clearly

stated in his report, dated 20-07-2006 that on 30-06-2006

a copy of the list of the employees submitted by the

Enforcement Officer served both the management

and union. Further, the office has supplied letter,

dated 17-05-2005 given by the Somkan Staff and

Workers Union along with the list of workers to whom

Provident Fund benefits were not extended and other

proofs to Sri. L. Satyanarayana, Personal Officer of the

establishment. The contention of the management that

the Hon'ble High Court of Andhra Pradesh has given

direction to the PF Commissioner to furnish the above

mentioned copy to the management and conduct

enquiry again was a new plea in order to suppress the real

fact. The respondent did not produce any evidence in

respect of the above contention. The service certificate,

dated 20-11-2005 issued by the respondent factory had

authenticated the employment with the first respondent

factory. Therefore, the petitioner prays before this

Court to reinstate him with continuity of service and pay

full back wages from the date of stopped from joining

his duty till the date of reinstatement.

3. The brief averments in the counter and

additional counter filed by the first respondent are

as follows:

The respondent emphatically denied the averments

in the claim petition and stated that the petitioner had

never worked with this respondent, at any point of in

any capacity much less as helper. Taking advantage of

false and erroneous report given by the Enforcement

Officer of the Provident Fund the petitioner is claiming

employment with this respondent. The Enforcement

Officer was suspended on corruption charges which

goes to prove that the claim was filed to gain illegal

gratification and employment on the strength of

disgraced and unreliable report. The report of

Enforcement Officer is challenged by respondent and

said report is subject matter of adjudication before the

Regional Provident Fund Commissioner. The petitioner

can not claim employment on the strength of the

said Enforcement Officer's order because even in the

enforcement order, the name of petitioner is not

substantiated. Even otherwise, the petitioner is bound

to prove his employment with the first respondent by

producing, clinching and cogent evidence. Apart from

that, the petitioner is equally bound to prove the date

till which he worked with this respondent and the day

on which his Service is terminated. The claim petition

does not whisper anything about these vital information

required to claim reinstatement, which clearly proves

that the petitioner is taking undue advantage of false

report given by the Enforcement Officer of EPF.

926

LA GAZETTE DE L’ETAT

[31 July 2018

Further, it is stated that the 1st respondent management

respondent company has become sick and unviable and

it is reeling under the debt borrowed from the Kotak

Mahindra Bank Limited and the Standard Chartered

Bank. The two Banks who have purchased credit

outstanding of this respondent's company from CDC

and SCICI latter changed as ICICI and now the banks

have taken over symbolical possession of the factory

and all the properties of this respondent under the

Sarfesi Act 2002. The said Banks have also issued

publication for auction and sale of this respondent

company in its "as is where is" condition. The Standard

Chartered Bank has since assigned the debts along with

all securities pertaining to this respondent in favour

of International Assets Reconstruction Company

Private limited. This respondent filed an application

under Debt Recovery Tribunal Visakhapatnam in S.A.

193/2010, which granted stay on sale of the factory,

posting the case to be heard on 28 Jun 2011. The order

of the DRT has been suspended by Debt Recovery

Appellate Tribunal, Chennai where an application was

preferred by Kotak Mahindra Bank Limited against the

said order before the Debt Recovery Appeal Tribunal,

Chennai vide N.A. 603/2010 and the same is pending

adjudication. The Writ Petition is also pending before

the AP High Court in W.P. No. 4299/2011. By application

of section 9 and 13 of Sarfasi Act 2002 as well as

section 529 (A) of the Companies Act 1956, it is the

duty of the secured creditor to address to the

grievances of the workers of Debtor Company.

Therefore, the Banks i.e., Kotak Mahindra Bank

Limited and the Standard Chartered Bank are added as

necessary parties as 2nd and 3rd respondents for the

disputes raised by the petitioners. In the unlikely event

of any award being passed by this Court having

monetary implications on this respondent, it shall only

be satisfied by Kotak Mahindra Bank Limited and the

Standard Chartered Bank as secured creditors and no

obligations can be cast upon this respondent.

Therefore, prayed this Court to dismiss the claim

petition against this respondent.

4. The petitioner has raised the industrial dispute

before the Conciliation Officer only against the first

respondent management and as the said establishment

was taken over by Kotak Mahindra Bank Limited and

The Standard chartered Bank, they have been added as

second and third respondent in their claim petition and

the fourth respondent M/s. Image Feeds has purchased

the first respondent in auction held at the Debt

Recovery Tribunal and thereafter, the fourth respondent

was impleaded as party to the proceedings and

subsequently, the case against the second and third

respondent was exonerated by the petitioner and the

fourth respondent was impleaded as party and amended

claim petition was filed by the petitioner.

5. The brief averments in the counter filed by the

4th respondent are as follows:

The fourth respondent denied all the averments

contained in the claim petition except those that are

specifically admitted and stated that the contents of

the counter statement and additional counter statement

filed by the 1st respondent may be treated as part and

parcel of this counter statement and further stated that

it is a partnership firm engaged in the business of sea

food and other allied products. The petitioner cannot

claim reinstatement or back wages against the fourth

respondent because the first respondent company was

never directly purchased by this respondent. The factory

and the other movable and immovable assets of the

first respondent at Yanam had been taken in possession

by consortium of Kotak Mahindra Bank Limited and

the Standard Chartered Bank and all the assets

belonging to first respondent were brought for auction

sale under the Sarfaesi Act. The fourth respondent

purchased only the land, the building and the machinery

of first respondent's factory at Yanam as a

non-functional and inoperative. A sale certificate to that

effect is issued by Kotak Mahindra Bank Limited on

25-02-2015. Therefore, at the time when this

respondent purchased the first respondent's factory

asset, it was a closed and non-functional unit without

any workers, staffs or any manpower. The fourth

respondent never had any agreement with the first

respondent or any other person to employ the workers

of first respondent. The fourth respondent, after

purchasing the land, building and machineries of first

respondent had spent over 1.5-2 crores in upgrading

the equipment and machinery and making the factory

functional. It started its factory operations only from

1st May, 2015. The fourth respondent was and is under

no legal or moral obligation to employ any of the

workers of the erstwhile owners of the factory

purchased by it as this respondent is free to employ

its own manpower and run the factory upon its terms

and conditions. The fourth respondent had therefore,

selected its own workforce, including some workers

who were engaged by first respondent. But, such

employment was purely based on this respondent's

fresh terms and conditions and as fresh recruiters and

not in continuity of their employment with the first

respondent. It is a completely new and independent

entity and it has purchased only the land, building and

machineries of the first respondent and that too from

the Banks, which had taken over possession of the said

assets from the first respondent for non-payment of

their debts under the Sarfaesi Act. The petitioner, who

claims to be the worker under the erstwhile first

927

31 July 2018]

LA GAZETTE DE L’ETAT

respondent management, has no locus standi to make

any claims of employment or even monetary

compensations with the fourth respondent under any

statute, rules, regulations or contract and hence, the

present industrial disputes is liable to be dismissed.

Therefore, prayed this Court to dismiss the claim

petition against the fourth respondent.

6. In the course of enquiry on the side of the

petitioner PW.1 was examined and Ex.P1 to Ex.P7

were marked and on the side of the respondent RW.1

and RW.2 were examined and Ex.R1 to Ex.R26 were

marked. Both sides are heard. The pleadings of 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 also carefully considered. In support of his

contention the learned Counsel for the respondent has

relied upon the Judgments reported in CDJ 2008 SC

218, CDJ 2005 SC 604, CDJ 2002 SC 162, CDJ 1963

SC 212, CDJ 2008 MHC 3631 (DB), CDJ 2009 Kar

HC 442 & CDJ 1990 Kar HC 368. On perusal of the

records it is learnt that the Ex.R1 was marked through

cross examination of PW.1 and subsequently while

RW.1 was examined by the first respondent, instead of

marking documents as Ex.R2 to Ex.R14 it was

mistakenly marked as Ex.R1 to Ex.R14 and hence, the

Ex.R1 which was marked through RW.1 was rectified

and marked as Ex.R1A today for the sake of

convenience to dispose the case.

7. The learned Counsel appearing for the petitioner

has relied upon the Judgment reported in 2013 LAB

I.C Page No. 2073 wherein it was stated that section

25.FF comes into play only in case of transfer of

ownership or management of an undertaking to a new

employer and not limited to some activities of the

undertaking. The learned Counsel appearing for the

respondent managements has filed a written argument

stating that the petitioner is the temporary employee

of the first respondent establishment and the name of

the said worker does not find in the muster roll of the

first respondent establishment and that it is not

established by the petitioner that he had been in

service for more than 240 days in a year though he is

having burden to prove the same the petitioner has

failed to prove the same and the claim has to be

rejected.

8. The point for consideration is:

Whether the industrial dispute raised by the

petitioner over his non-employment against the first

respondent management is justified or not and if,

justified, what is the relief entitled to the petitioner.

9. It is the case of the petitioner that he was working

at the first respondent establishment from 21-03-2003

and all the workers of the first respondent establishment

had complained to the Regional Provident Fund

Commissioner

against

the

first

respondent

management on 20-01-2006 over the non-enrolment

with the Provident Fund account and he was also one

of the signatories of the complaint given by the

workers of the first respondent establishment and the

Commissioner of Provident Fund found fault with the

first respondent management and ordered the first

respondent management to pay the Provident Fund

amount and hence, the first respondent management has

stopped him from attending his duty on 22-05-2006

and he has been terminated from service without any

charge-sheet and without conducting any due enquiry

and therefore, he raised the industrial dispute

on 22-05-2005 before the Conciliation Officer and

conciliation was initiated and ended in failure and

meanwhile the first respondent establishment has been

purchased by the fourth respondent management in a

auction held at Debt Recovery Tribunal and the

purchaser of the first respondent establishment the

fourth respondent management is liable to reinstate the

petitioner and to pay back wages from the date of

termination.

10. In support of his case the petitioner has

examined himself as PW.1 and exhibited Ex.P1 to

Ex.P7. Ex.P1 is the representation to Assistant Inspector

of Labour over non-employment, dated 22-05-2006.

Ex.P2 is the failure report, dated 25-08-2006. Ex.P3

is the copy of representation to EPC Commissioner,

dated 20-01-2006. Ex.P4 is the copy of representation

to EPC Commissioner, dated 24-02-2006. Ex.P5 is the

copy of proceedings

by Regional Provident Fund

Commissioner, dated 31-05-2006. Ex.P6 is the copy of

statement by Regional Provident Fund Commissioner,

Rajahmundry, dated 20-07-2006. Ex.P7 is the copy of

licence issued to M/s. Image Feeds on 23-06-2015.

These documents would go to show that the petitioner

has raised the industrial dispute for his non-

employment before the Labour Conciliation Officer

and the conciliation was initiated and ended in failure

and the name of the petitioner found in the list of

employees submitted by Regional Provident Fund

Commissioner, Rajahmundry under Ex.P6. Therefore,

it is clear from Ex.P3 that this petitioner is also one

of the signatory of the complaint made to the Provident

Fund Commissioner and it is also evident from Ex.P5

and Ex.P6 the report of the Enforcement Officer that

this petitioner was working at the first respondent

establishment.

928

LA GAZETTE DE L’ETAT

[31 July 2018

11. It is the main contention of the first respondent

that the petitioner had never worked with this

respondent at any point of time in any capacity much

less as helper and that taken advantage of false and

erroneous report given by the Enforcement Officer of

the Provident Fund the petitioner is claiming

employment with the first respondent and it is the

further,

contention

that

the

first

respondent

establishment has become sick and unviable and it is

reeling under the debt borrowed from the second and

third respondent Banks who have purchased credit

outstanding of the first respondent company and taken

over symbolical possession of the factory under the

Sarfaesi Act and it was sold by the second and third

respondent in an auction held and the said property

was sold through Debt Recovery Tribunal in which the

first respondent factory was purchased by the fourth

respondent.

12. It is the contention of the fourth respondent

that movable and immovable assets of the first

respondent company alone have been taken by the

fourth respondent management and that the fourth

respondent never had any agreement with the first

respondent or any other person to employ the workers

of the first respondent and that the fourth respondent

started factory operation from 01-05-2015 and that no

legal or moral obligation to employ any of the workers

of the erstwhile owners of the factory purchased by it

as the fourth respondent is free to employ its own man

power and run the factory upon its terms and the fourth

respondent had therefore, selected its own workforce,

including some workers who were engaged by the first

respondent and such employment was purely based on

the fourth respondent's fresh terms and conditions and

not in continuity of their employment with the first

respondent and it is the further, contention of the

fourth respondent that their factory is completely new

and independent entity and it has purchased only the

land, building and machineries of the first respondent

and that too from the Banks which had taken over

possession of the said assets from the first respondent

for non payment of their debts under the Sarfaesi Act

and that therefore, they are not liable to engage the

workers who were in service at the first respondent

establishment after purchasing the same from Debt

Recovery Tribunal i.e., they have no legal or moral

obligation to engage the workers of the first

respondent establishment and not having any liability

on the workers of the first respondent establishment.

13. The RW.1 the Personnel Officer of the first

respondent establishment has stated in his evidence

that the petitioner had never worked with the first

respondent establishment at any point of time in any

capacity much less as helper and that taken advantage

of false and erroneous report given by the

Enforcement Officer of the Provident Fund the

petitioner is claiming employment with the first

respondent establishment and that the petitioner is

bound to prove his employment with the first

respondent company and also bound to prove that he

has worked continuously for 240 days in the year and

hence, the

petitioner

is

not entitle

for

any

reinstatement or back wages at the first respondent as

claimed by him since, he had never worked with the

first respondent establishment.

14. In

support

of

their

evidence

the first

respondent management has exhibited Ex.R1 to

Ex.R14. Ex.R1 is the copy of representation given by

the employees of first respondent company to the

Assistant Labour Inspector, Labour Department, Yanam,

dated 04-10-2005. Ex.R1A is the xerox copy of muster

roll of respondent for the period January-2006 to

August-2006. Ex.R2 is the copy of the reply letter

given by the first respondent to Assistant Inspector

of Labour-cum-Conciliation Officer, Yanam on 03-07-2006.

Ex.R3 is the xerox copy of the order in W.P. No.

14506/2006 before the Hon'ble Andhra Pradesh High

Court, dated 17-07-2006. Ex.R4 is the xerox copy of the

Interim order in W.P. No. 17714/2006 before the Hon'ble

Andhra Pradesh High Court, dated 25-08-2006. Ex.R5 is

the xerox copy of the order in W.P. No.17714/2006

before the Hon'ble Andhra Pradesh High Court, dated

11-09-2007. Ex.R6 is the xerox copy of the order in

W.P. No.8115/2009 before the Hon'ble Andhra Pradesh

High Court, dated 21-04-2009. Ex.R7 is the copy of

the orders passed by EPF Appellate Tribunal New Delhi,

dated 17-09-2009. Ex.R8 is the xerox copy of the

orders passed in W.P. No. 22615/2009 by Andhra

Pradesh High Court, dated 22-10-2009. Ex.R9 is the

xerox copy of possession notice given by second and

third respondent's company, dated 14-05-2010. Ex.R10

is the xerox copy of the sale notice published by second

respondent in the local newspaper, dated 09-08-2010.

Ex.R11 is the xerox copy of the order in Writ Petition

No. 4299/2011 issued by the Hon'ble High Court of

Andhra Pradesh, dated 18-05-2011. Ex.R12 is the

xerox copy of the letter given by IARC to the second

respondent intimating about the taking over of

liabilities of first respondent to third respondent

on 06-07-2012. Ex.R13 is the xerox copy of the writ

notice sent by the Registrar in the Hon'ble High Court

at Andhra Pradesh. Ex.R14 is the xerox copy of the

letter given by IARC to the first respondent intimating

about the taking over of liabilities of 1st respondent

to Standard Chartered Bank on 06-12-2011.

929

31 July 2018]

LA GAZETTE DE L’ETAT

15. The

documents

exhibited

by

the

first

respondent would reveal the fact that the petitioner

has made representation to the Assistant Labour

Inspector and the first respondent management has

given reply to the Assistant Labour Inspector for the

representation of the petitioner stating that no such

named person with the given address or otherwise was

employed by the company at any time and thereafter,

the first respondent was taken by the Bank and they

approached the Hon'ble High Court with regard to the

same.

16. The RW.2 the Assistant Admin of the fourth

respondent has stated in his evidence that they have

purchased the plant and machineries of the first

respondent company in a Bank auction under the

Sarfaesi Act and the first respondent owed huge debt

to consortium of Banks, and the movable and immovable

assets of the first respondent company were taken in

possession by consortium of Banks and all the assets

were brought for auction sale under the Sarfaesi Act

and the fourth respondent has purchased only the land,

the building and the machineries of the first

respondent firm at Yanam as a non-functional and

inoperative unit which remained closed before their

purchase and a sale certificate to that effect was

issued by second respondent Bank on 25-02-2015 and

at the time when they purchased the first respondent's

factory assets, the factory was closed and non-functional

unit without any workers, staffs or any man

power and they have not had any agreement with the

first respondent or any other person to employ the

workers of the first respondent establishment and that

they have started work only from 01-05-2015 and that

they have no legal or moral obligation to employ any

of the workers of the erstwhile owners of first

respondent and that they are free to employ their own

manpower and run the factory upon their terms and

conditions and that the fourth respondent is completely

new and independent entity and they have purchased

only the land, building and machineries of the first

respondent and that too from the consortium of Banks,

which had taken over possession of the said assets from

the first respondent and the petitioner is not in service

while they purchased the factory and machineries and

they have no obligations to employ him in his roll and

pay monetary benefits under any statue, rules,

regulations or contract.

17. In support of their evidence the fourth

respondent management has exhibited Ex.R15 to

Ex.R26. Ex.R15

is the copy of the letter of

authorisation of Mr. S. Prasad, dated 08-11-2017.

Ex.R16 is the copy of the acknowledgment of

registration of firm certificate of M/s. Image Feeds,

dated 26-09-2014. Ex.R17 is the copy of the

partnership deed entered between the partners of

M/s. Image Feeds, dated 22-09-2014. Ex.R18 is the

copy of the purchase of moveable and immovable

mortgaged properties at Yanam from Kotak Mahindra

Bank by M/s. Image Feeds, dated 17-12-2014. Ex.R19

is the copy of the PAN Card of M/s. Image Feeds.

Ex.R20 is the copy of the licence issued by Yanam

Municipality in favour of M/s. Image Feeds, dated

23-06-2015. Ex.R21 is the copy of the sale certificate

issued by Kotak Mahindra Bank in favour of

M/s. Image Feeds, dated 25-02-2015. Ex.R22 is the

copy of factory licence of M/s. Image Feeds. Ex.R23

is the copy of the acknowledge receipt issued by the

Kotak Mahindra Bank to M/s. Image Feeds for delivery

of movable properties at Yanam, dated 09-03-2015.

Ex.R24 is the copy of the acknowledgment receipt

issued by the Kotak Mahindra Bank to M/s. Image Feeds

for certifying the sale proceeds and handing over the

sale property, dated 08-04-2015. Ex.R25 is the copy

of no objection, letter issued by Kotak Mahindra Bank

to the Inspector of Factories for transferring factory

licence in favour of the first respondent, dated 02-06-2015.

Ex.R26 is the copy of loan application submitted

by the Managing Director of the first respondent

company.

18. The documents filed by the fourth respondent

would reveal the fact that the fourth respondent

establishment is a partnership firm registered under

Partnership Act and that the partnership deed was

entered on 22-09-2014 and licence has been issued on

23-06-2015 by Yanam Municipality in favour of the

fourth respondent and sales certificate was issued by

Bank and that the fourth respondent management has

purchased the first respondent establishment from the

second and third respondent Banks.

19. From the evidence and documents, it is established

by the petitioner that he is the worker of the first

respondent

establishment.

However,

the

first

respondent management has stated that they had never

employed the petitioner at the first respondent

establishment. But, to prove the same no evidence has

been let in by the first respondent management by

exhibiting the registers of the first respondent factory.

It is evident from Ex.P5 and Ex.P6 that the

Enforcement Officer has found that the petitioner has

joined and worked at the first respondent establishment.

Therefore, since the petitioner had established that he

had been in service at the first respondent

930

LA GAZETTE DE L’ETAT

[31 July 2018

establishment for about three years it is to be inferred

that the petitioner had been in service at the first

respondent establishment for more than 240 days in a

year and hence he should be treated as the permanent

worker of the first respondent establishment.

20. It is established by the petitioner that he is the

worker of the first respondent establishment and no

domestic enquiry was conducted against the petitioner

by the first respondent management and even does not

give

any

show-cause

notice

before

refusing

employment. Further, the first respondent management

has not followed any procedure and not conducted any

departmental enquiry before discharge him from

service though he had been in service for about three

years. The worker can be removed from service if, he

has committed any misconduct or misbehavior only

after conducting the domestic enquiry. Admittedly, in

this case no domestic enquiry was conducted by the

first respondent management before discharging the

said employee. Therefore, the first respondent

management is liable to reinstate him since, it has not

followed the

principles of natural justice in

terminating the petitioner. Furthermore at the time of

raising the industrial dispute by the petitioner over his

non-employment

against

the

first

respondent

management, the first respondent establishment was

the existing factory and that therefore, it is to be held

that the industrial dispute raised by the petitioner

over his non-employment against the first respondent

management is justified as the first respondent

establishment has not properly terminated the

petitioner in accordance with the principles of natural

justice and hence, the petitioner is entitled for

reinstatement at the first respondent establishment.

However, the first respondent establishment was taken

over by the second and third respondent Banks and sold

to the fourth respondent management and hence, the

petitioner cannot be reinstated in the first respondent

establishment and hence, the petitioner is not entitled

for any order of reinstatement at the first respondent

establishment and hence, an Award cannot be passed

against the first respondent to reinstate the petitioner

into service as employee.

21. As it is held by this Tribunal that the petitioner

is the worker of the first respondent establishment and

he has not been properly terminated by the first

respondent management by conducting domestic

enquiry in accordance with the principles of natural

justice and the industrial dispute raised by the

petitioner over his non-employment against the first

respondent management is absolutely justifiable one,

it is the question to be decided by this Tribunal that

whether the fourth respondent who have purchased the

first respondent establishment at the Debt Recovery

Tribunal is having any legal obligation of giving

employment or giving compensation to the workers of

the first respondent establishment for the service

rendered by them to the first respondent establishment

or not. On this aspect the evidence let in by both sides

and the exhibits marked on both sides and arguments

put forth by either side are carefully considered.

22. It is learnt from the records that while the

Industrial Dispute is pending the first respondent

establishment has been taken away by second and third

respondents and the fourth respondent has purchased

the first respondent factory in the auction sale at Debt

Recovery Tribunal i.e., the ownership and the management

of the first respondent establishment was transferred

due to the purchase and therefore, it is to be decided

whether the fourth respondent management is liable to

pay reinstatement and other benefits to the workers of

the first respondent establishment. On this aspect the

section 25FF of the Industrial Disputes Act has been

referred which runs as follows:

"S.25FF-Compensation to workmen in case of

transfer of undertakings. Where the ownership or

management of an undertaking is transferred,

whether by agreement or by operation of law, from

the employer in relation to that undertaking to a

new employer, every workman who has been in

continuous service for not less than one year in that

undertaking immediately before such transfer shall

be entitled to notice and compensation in

accordance with the provisions of S.25-F, as if, the

workman had been retrenched:

Provided that nothing in this section shall apply to

a workman in any case where there has been a change

of employers by reason of the transfer, if—

(a) the service of the workman has not been

interrupted by such transfer;

(b) the

terms

and

conditions

of

service

applicable to the workman after such transfer are

not in any way less favourable to the workman than

those applicable to him immediately before the

transfer; and

(c) the new employer is, under the terms of such

transfer or otherwise, legally liable to pay to the

workman,

in

the

event

of

his

retrenchment,

compensation on the basis that his service has been

continuous and has not been interrupted by the

transfer."

931

31 July 2018]

LA GAZETTE DE L’ETAT

From the above provision it is clear that management

of an undertaking is transferred whether by agreement

or by operation of law from the employer in relation

to that undertaking to a new employer, every workman

who has been in continuous service for not less than

one year in that undertaking immediately before such

transfer shall be entitled to notice and compensation

in accordance with the provisions of S.25-F, as if the

workman had been retrenched. In this case the

management of the undertaking was transferred by

purchase i.e., by operation of law from the employer

of the first respondent to new employer and hence,

petitioner is entitled for notice and compensation in

accordance with the provisions of the Act. But, no

such notice was issued by the fourth respondent and

no compensation has been given to the worker as he

had been in service at the time of transfer of ownership

to the fourth respondent from the management of first

respondent establishment.

23. It is contended by the fourth respondent that the

fourth respondent cannot be compelled with the

responsibility of reinstatement or payment of any

benefits since they have purchased the plant and

machineries of the first respondent under an auction

purchase on 17-12-2014 from the Banks and hence the

fourth respondent has no legal obligation to employ

any employees of the erstwhile first respondent and

therefore the petitioner absolutely is not entitled for

any

reinstatement

in

the

fourth

respondent

establishment or cannot seek any compensation from

the fourth respondent and in support of his argument

the learned counsel for the first respondent relied upon

the Judgment reported in CDJ 2009 Kar HC 442 -

M. Shashikumar Vs. Management of BPL Limited

wherein the Hon'ble High Court has held that,

"31. In view of the above discussion, as a matter

of fact, neither the first respondent nor the second

respondent company was under any legal obligation

to offer employment to the employees of the

transferor company. In that view of the matter, the

only legal claim they can have access to is

retrenchment compensation………"

The learned Counsel further, argued that as per the

above citation the fourth respondent management has

no legal obligation to offer employment to the

petitioners i.e., the employees of the transferor of

company and they can claim only retrenchment

benefits and that the petitioners are not having any

right to claim of any relief of reinstatement or

compensation either

from the first respondent

management

or

from

the

fourth

respondent

management since the petitioners are the temporary

workers and the first respondent establishment is not

more existences as the company as it had became sick

and completely closed as early as in the year 2012 and

the fourth respondent has purchased only from the

Banks under the Sarfaesi Act and it has purchased only

the plant and machineries of the first respondent

establishment without other liability and none of the

petitioners are the permanent workers of the first

respondent establishment to claim any right of any

re-employment from the fourth respondent and that

therefore, the fourth respondent has no legal

obligation to reinstate the petitioners as claimed by

them.

24. The learned Counsel appearing for the

respondents has further argued that the fourth

respondent establishment as a purchaser transferee

management has no liability to pay any compensation

or to give any employment to the petitioner as they

have purchased the property from the second and third

respondent Banks in an auction held by them and that

the fourth respondent as a purchaser they have no

liability to re-employ the workers of the first

respondent establishment and they will not pay any

compensation under section 25ff of the Act since the

workers are not the employees of the fourth

respondent establishment and in support of his

argument the learned counsel for the respondent has

relied upon the Judgment reported in CDJ 2009 Kar

HC 442 wherein, the Hon'ble Karnataka High Court

has observed that,

"……..18. That being the position in law under

section 25ff, the former employees of the company

who were not absorbed by the Corporation can

hardly make out a claim against the transferee

corporation either for compensation on termination

of their service following the transfer or for

re-employment. The claim at any rate of the

employee in List II as against the Corporation under

section 25ff was clearly misconceived.

19. The learned Counsel Sri. B.C. Prabhakar

appearing for second respondent contends that the

first respondent company cannot manufacture

colour television any more as entire unit of colour

television is transferred to the second respondent,

therefore, it cannot continue any employment to its

employees and had offered compensation in terms

of section 25ff of the Act. He further, contends that

the offering of compensation in terms of section 25ff

932

LA GAZETTE DE L’ETAT

[31 July 2018

of the Act alone was required to the complied with

by the 1st respondent and nothing else. It was also

submitted that 459 employees out

of 496

employees of the first respondent without any

grievance whatsoever have joined the second

respondent company under fresh employment after

receiving

compensation

from

the

first

respondent………".

and further the learned counsel for the respondent

has relied upon the Judgment reported in CDJ 1990

Kar HC 368 wherein the Hon'ble Karnataka High Court

has observed that,

"……..Section 25ff makes a reference to section

25ff for that limited purpose, and therefore, in all

cases to which Section 25ff applies, the only claim

which the employees of the transferred concern can

legitimately make is a claim for compensation against

their employers. No claim can be made against their

employers. No claim can be made against the

transferee of the said concern. (17) The scheme

of the proviso to section 25ff emphasizes the same

policy. If, the three conditions specified in the proviso

are satisfied, there is no termination of service either

in fact or in law, and so, there is no scope for the

payment of any compensation. That is the effect of the

proviso. Therefore, reading section 25ff as a whole,

it does appear that unless the transfer falls under the

transfer falls under the proviso, the employees of the

transferred concern are entitled to claim compensation

against the transferor and they cannot make any claim

for re-employment against the transferee of the

undertaking. Thus, the effect of the enactment of

section 25ff is to restore the position which the

Legislature had apparently in mind when section 25ff

was originally enacted on September 4, 1956.

By amending section 25ff, the Legislature has made it

clear that if industrial undertakings are transferred,

the employees of such transferred undertakings should

be entitled to compensation, unless, of course,

the continuity in their service or employment is not

disturbed and that can happen if, the transfer satisfies

the three requirements of the proviso. ……. (18) In

Central Inland Water Transport Corporation Limited,

Vs. The workmen and another it is reiterated that on a

transfer

of

ownership

or

management

of

an

undertaking, the employment of workmen engaged by

the said undertaking comes to an end and

compensation is made payable because of such

termination. In all cases to which section 25ff applies,

the only claim which the employees of the transferred

concern can legitimately make is a claim for

compensation against their employers. No claim can

be made against the transferee of the said concern.

……… ".

From the above observations of the Hon'ble High

Court, it is clear that the petitioners are entitled to

claim only the compensation from the undertaking

where they have served as workers and they cannot

claim compensation or re-employment at the transferee

undertaking. But, in this case the first respondent

establishment was taken over by the second and third

respondent

Banks

and

subsequently,

the

said

undertaking was sold in an auction held by them and

sales certificate was issued by the Bank and that

therefore, the fourth respondent cannot be compelled

to pay any compensation to the employees of the first

respondent establishment. However, the petitioner is

entitled for compensation from the first respondent

establishment and the management of the first

respondent establishment has to pay retrenchment

compensation to the petitioner under section 25ff of

the Act.

25. Further, the second and third respondent Banks

have taken over the first respondent establishment for

their debt and sold it to the fourth respondent and

hence,

the

petitioner

also

could

claim

the

compensation from the said Banks. But, it is learnt

from the records that the second and third respondent

Banks have been exonerated who have sold the first

respondent establishment in an auction sale and the

sale amount was received by them and the excess

amount if any is kept by the said Banks the petitioner

is having liberty to receive his compensation from the

said Banks by taking appropriate steps against the

Banks and the first respondent management. Even

though this Tribunal cannot pass any Award against the

second and third respondent Banks since, they sold the

first respondent establishment to the fourth respondent

and received the sale consideration and therefore, an

Award has to be passed in favour of the petitioner to

get

compensation

from

the

first

respondent

establishment and the management of the first

respondent establishment is liable to pay retrenchment

compensation to the petitioner by calculating the

period of service and the salary obtained by him from

the date of joining till the date of taken over the

possession of the first respondent establishment by the

second and third respondent Banks and that therefore,

the claim against the fourth respondent is rejected and

hence, the claim petition filed against the fourth

respondent is also liable to be rejected.

26. In the result, the petition is partly allowed and

the industrial dispute raised by the petitioner over his

non-employment

against

the

first

respondent

management is justified and an Award is passed

directing the first respondent management to pay

compensation to the petitioner by calculating the

933

31 July 2018]

LA GAZETTE DE L’ETAT

period of service rendered by the petitioner and the

salary obtained by him from the date of joining till the

date of taken over the possession of the first

respondent establishment by the second and third

respondent Banks and further the petitioner is at

liberty to receive compensation from the second and

third respondent Banks by taking appropriate steps

against the Banks and the first respondent management

and in respect of claim against the fourth respondent

is dismissed. No cost.

Dictated to the Stenographer, transcribed by her,

corrected and pronounced by me in the open Court on

this the 28th day of February, 2018.

G. THANENDRAN,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.

————

List of petitioner’s witness:

PW.1 —28-04-2010 — P. Srinivas Roa

List of petitioner’s exhibits:

Ex.P1 —22-05-2006 — Representation to Assistant

Inspector of Labour over

non-employment.

Ex.P2 —25-08-2006— Failure report.

Ex.P3 — 20-01-2006 — Copy of representation to

EPC Commissioner.

Ex.P4 —24-02-2006 — Copy of representation to

EPC Commissioner.

Ex.P5 —31-05-2006 — Copy of proceedings by

RPFC.

Ex.P6 —20-07-2006 — Copy of statement by

RPFC, Rajahmundry.

Ex.P7 —23-06-2015 — Copy of licence issued to

M/s. Image Feeds.

List of respondent’s witness:

RW.1 — 05-12-2017 — Arjuna Babu

RW.2 — 05-12-2017 — S. Prasad

List of respondent’s exhibits:

Ex.R1 —04-10-2005 — Copy of representation

given by the employees of

first respondent company

to

the Assistant Labour

Inspector,

Labour

Department, Yanam.

Ex.R1A—Jan-2006

— Xerox copy of muster roll

to

of respondent.

August-2006

Ex.R2 —03-07-2006 — Copy of the reply letter

given

by

the

first

respondent to Assistant

Inspector of Labour-cum-

Conciliation

Officer,

Yanam.

Ex.R3 —17-07-2006 — Xerox copy of the order in

W.P.

No.14506/2006

before the Hon'ble Andhra

Pradesh High Court.

Ex.R4 —25-08-2006 — Xerox copy of the Interim

order in WP.No.17714/

2006 before the Hon'ble

Andhra

Pradesh

High

Court.

Ex.R5 —11-09-2007 — Xerox copy of the order in

W.P.

No.

17714/2006

before the Hon'ble Andhra

Pradesh High Court.

Ex.R6 —21-04-2009 — Xerox copy of the order in

WP.No.8115/2009 before

the

Hon'ble

Andhra

Pradesh High Court.

Ex.R7 —17-09-2009 — Copy of the orders passed

by EPF Appellate Tribunal

New Delhi.

Ex.R8 —22-10-2009

Xerox copy of the orders

passed

in

W.P.

No.

22615/2009 by Andhra

Pradesh High Court.

Ex.R9 —14-05-2010 — Xerox copy of possession

notice given by second

and third respondent's

company.

Ex.R10—09-08-2010 — Xerox copy of the sale

notice

published

by

second respondent in the

local newspaper.

Ex.R11—18-05-2011 — Xerox copy of the order in

Writ Petition No. 4299/

2011

issued

by

the

Hon'ble High Court of

Andhra Pradesh.

934

LA GAZETTE DE L’ETAT

[31 July 2018

Ex.R12—06-07-2012— Xerox copy of the letter

given by IARC to the second

respondent intimating about

the taking over of liabilities

of first respondent to third

respondent.

Ex.R13

—

— Xerox copy of the writ

notice sent by the Registrar

in the Hon'ble High Court

at Andhra Pradesh.

Ex.R14—06-12-2011— Xerox copy of the letter

given by IARC to the first

respondent intimating about

the taking over of liabilities

of 1st respondent to Standard

Chartered Bank.

Ex.R15—08-11-2017— Copy of the letter of

authorisation of Mr. S. Prasad.

Ex.R16—26-09-2014— Copy of the acknowledgment

of registration of firm

certificate of M/s. Image

Feeds.

Ex.R17—22-09-2014— Copy of the partnership

deed entered between the

partners of M/s. Image Feeds.

Ex.R18—17-12-2014— Copy of the purchase of

moveable and immovable

mortgaged properties at

Yanam from Kotak Mahindra

Bank by M/s. Image Feeds.

Ex.R19—

— Copy of the PAN Card of

M/s. Image Feeds.

Ex.R20—23-06-2015— Copy of the licence issued

by Yanam municipality in

favour of M/s. Image Feeds.

Ex.R21—25-02-2015— Copy of the sale certificate

issued by Kotak Mahindra

B a n k i n f a v o u r o f

M/s. Image Feeds.

Ex.R22—

— Copy of factory licence of

M/s. Image Feeds.

Ex.R23—09-03-2015— Copy of the acknowledge

receipt issued by the Kotak

Mahindra Bank to M/s.

Image Feeds for delivery of

movable

properties

at

Yanam.

Ex.R24—08-04-2015— Copy of the acknowledgment

receipt issued by the Kotak

Mahindra Bank to M/s. Image

Feeds for certifying the

sale proceeds and handing

over the sale property.

Ex.R25—02-06-2015— Copy of no objection letter

issued by Kotak Mahindra

Bank to the Inspector of

Factories for transferring

factory licence in favour of

the first respondent.

Ex.R26—

— Copy of loan application

submitted by the Managing

Director

of

the

first

respondent company.

G. THANENDRAN,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.

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