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SOMMAIRES
CONTENTS
Page
Page
.. 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
2018 }
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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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