La Gazette de L' État de Poudouchéry
The Gazette of Puducherry
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SOMMAIRES
CONTENTS
Page
Page
.. 958
Sentence arbitral du Travail
.. 958
Award of the Labour Court
.. 958
de Tribunal.
.. 969
Notifications du Gouvernement .. 969
Government Notifications
.. 969
.. 985
Avis d’Adjudications
.. 985
Tender Notices
.. 985
.. 989
Etablissements dangereux
.. 989
Dangerous Establishments
.. 989
.. 992
Annonces
.. 992
Announcements
.. 992
Registered with the Registrar
of Newspapers for India under
No. 10410
Registered No. PY/44/2018-20
WPP No. TN/PMG(CCR)/WPP-88/2018-20
Dated : 7-8-2018
Price : ` 32-00
2018 }
| 7 {
No.
32
Poudouchéry
Mardi
7
Août
2018 (16 Sravana 1940)
No.
Puducherry
Tuesday
7th
August
2018
[ 957 ]
958
LA GAZETTE DE L’ETAT
[7 August 2018
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 66/Lab./AIL/T/2018,
Puducherry, dated 11th April 2018)
NOTIFICATION
Whereas, an award in I.D. (L) No. 01/2007, dated
28-02-2018 of the Labour Court, Puducherry in
respect of the industrial dispute between the management
of M/s. Somkan Marine Foods Limited, Yanam and
Thiru K.S.B.S. Ramalingam, 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. 01/2007
K.S.B.S. Ramalingam,
(Maintenance Asst.),
S/o. K. Nageswararoa,
Kalla Lane, 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 Thiruvalargal 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. 5/2007/Lab./AIL/J,
dated 08-01-2007 for adjudicating the following:-
(i) W h e t h e r
t h e n o n - e m p l o y m e n t
o f
Thiru K.S.B.S. Ramalingam by the management of
M/s. Somkan Marine Foods Limited, Yanam is justified
or not ?
(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 claim statement of the
petitioner, in brief, are as follows:
The petitioner worked from 19-05-2001 as a
Maintenance Assistant at the first respondent factory.
As the petitioner questioned the respondent for his
unfair labour practice the first respondent having
developed animosity against the petitioner and is
awaiting for an opportunity to cause irreparable loss
to this petitioner. From 9th June to 11th June 2005, the
petitioner not attend for his regular duties for three
days and on 4th day i.e., 12th June 2005 was Sunday
his weekly holiday due to fever after duly informed the
same to the Management. In the line of achieving their
malicious goal of wreak vengeance on 13th June, the
petitioner stopped by the Security personnel while he
is prepared for joining duty and avoid meeting the
management cleverly. Then the petitioner sends one
representation by Certificate of posting on 14th June
stating the reason for his absent and for reinstatement.
There was no reply from the management. At a last
resort the petitioner raised one industrial dispute
before the Conciliation Officer at Yanam which was
ended in failure. The petitioner have not been
informed that he was a Causal labour or Contract labour
959
7 August 2018]
LA GAZETTE DE L’ETAT
of the respondent Company. However, the discharge of
work carried by the petitioner to the satisfaction of the
Management. The petitioner was removed from service
on 13-06-2005 without any rhyme or reason which is
against natural justice. Therefore, the petitioner has to
be reinstated with back wages. The contention made
by the management in their representations, dated
28-12-2005, 08-02-2006 that the worker absents
himself since 09-06-2005 to establish a Hotel and did
not report for work for 167 days hereby denied.
The worker was detained by the Security personnel on 13th
June 2005, while he prepared for joining duty. He also
submitted one representation dated 14-06-2005 in this
regard. Therefore, the contention of the management
in contrary to weight of evidence. The management
has taken two different strategies before Conciliation
Officer through their representations, dated 28-12-2005,
08-2-2006 that the worker was Causal worker and in
their representation dated 03-03-2006 that the worker
was Casual workman on a temporary causal basis under
contractor. However, the management did not produced
any evidence to prove in this respect of the above-
contention even asked to produce such records for
verification by the Conciliation Officer through his
letters dated 21-02-2006,17-04-2006, 29-05-2006,
03-07-2006 of 2006. Therefore, the contention of the
management does not merit acceptance. All the
considerations specified in clauses (a) to (d) of
sub-section (2) of the section 10 of the Contract Labour
Act, 1970 prevents the management to engage contract
labour. Therefore, the petitioner was the regular
employee of the respondent company. The management
issued one service certificate on 18-07-2005 stating
that K.S.B.S. Ramalingam was working as maintenance
in their organization since 19-05-2001. Therefore, the
petitioner was regular employee of the first
respondent company and cannot be simply terminated.
The certificate issued by the Management proves the
fact that the petitioner was not a causal workman and
he worked continuously under the status of permanent
workman u/s. 25(B) of I.D. Act 1947. The worker
submitted representation on 14-06-2006 for his
reinstatement.
Instead
of
replying
to
his
representation the management with deliberate
intention kept mum to destroy the employment that the
worker kept dark by the management. If, the contention
of the first respondent that the petitioner was absent
from duty since, 09-06-2005 till date was correct the
management ought to have calling for an explanation
for his absent. No charges were framed in this regard.
No enquiry was initiated. The acts of the Management
arbitrary, illegal and void ab initio and liable to be set
aside.
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
never raised any demands with this respondent.
The alleged letter, dated 14-06-2005 was never sent by
petitioner and was neither received by respondent. The
respondent came to know about the dispute only when
it received notice from the Conciliation Officer
regarding industrial dispute. It was premature for the
petitioner to have approached the Conciliation Officer
without raising an industrial dispute with the
respondent. Hence, the entire conciliation proceedings,
the reference made by Government of Puducherry and
the present claim are liable to be rejected and
answered in favour of the respondent. The petitioner
was not a permanent employee of the first respondent.
The certificate, dated 18-07-2005, which is very
heavily relied on by the Petitioner to claim status of
regular employee, appears to have been fabricated and
forged by the petitioner for the purpose of this case.
The petitioner has not whispered any thing about the
certificate in conciliation proceedings and has not
produced the same, which raise strong suspicion about
the genuineness of the certificate. The incumbent who
has allegedly signed the said certificate has no
authority to issue any certificate of the nature claimed
to have been executed. Only the Managing Director/
Factory Manager of the company has the right and
powers to issue employment/conduct certificate and
therefore, the alleged certificate, dated 18-07-2005
cannot confer any right to the petitioner to claim any
status of regular employee. The petitioner was
engaged by its company as a casual worker on
temporary basis from 19-05-2005 to 09-06-2005.
The petitioner never completed 240 days in any year.
In the month of June 2005, the petitioner had informed
the officers of respondent that he is starting a hotel
by name Lakshmi Ganapathy Vegetarian Hotel near
Durga Temple, Thyagaraya Street, Yanam and therefore,
will leave the job by the 2nd week of June 2005.
Accordingly, he left the job since 09-06-2005 out of
his own volition to concentrate on his hotel business
and subsequently, his water servicing business in Padma
Balaji complex near new bus stand, Yanam. Since he
had left the job for better prospects and since he was
only a temporary workmen the respondent did not
insist on his resignation letter. However, the petitioner
was never prevented from reporting to duty as is
claimed by him. Since, the petitioner never turned back
for job and had actually started a hotel, the respondent
discharged his services with effect from 09-06-2005.
The petitioner lost his lien over the job not only
960
LA GAZETTE DE L’ETAT
[7 August 2018
because of his long abstinence but, was also because,
of the fact that he had actually left the services of
respondent for better prospects. Though the petitioner
claims that he was prevented from joining the duty on
13-06-2005, he had approached the Conciliation
Officer only on 23-11-2005, i.e., after a period of
167 days. The petitioner left the job of respondent for
starting a hotel but, since he burnt his fingers in the
business he thought it fit to claim back his job albeit
through the judicial forums with an avarice to claim
back wages also which cannot be entertained. The
petitioner has admitted in categorical terms in his
letter, dated 23-11-2005 addressed to the Conciliation
Officer that he was only a temporary worker and his
services were no t made regular (permanent).
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 petitioner 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 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.
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.P16
were marked and on the side of the respondent RW.1
and RW.2 were examined and Ex.R1 to Ex.R28 were
marked. Both sides are heard. The pleadings of the
parties, the evidence let in by either sides and the
961
7 August 2018]
LA GAZETTE DE L’ETAT
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 2006 SC 958, CDJ 2005 SC 604,
CDJ 2002 SC 162, CDJ 1963 SC 212, CDJ 2008 MHC
3631, CDJ 2009 Kar HC 442, CDJ 1990 Kar HC 368,
CDJ 2016 Raj HC 380, CDJ 1974 SC 277, CDJ 2009
SC 1839 and CDJ 2007 MHC 1328.
7.The learned Counsel appearing for the petitioner
has relied upon the Judgment reported in 2013 LAN
I.C Page No.2073 wherein, it was stated that section
25.FF comes in to 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 names 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 him.
9. It is the case of the petitioner that he was working
at the first respondent establishment from 19-05-2001
as Maintenance Assistant 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 13-06-2005
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 23-11-2005
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.P16. Ex.P1 is the representation in Telugu made
by the petitioner along with postal receipt and
translation, dated 04-10-2005. Ex.P2 is the copy of
representation to Conciliation Officer, dated 23-11-2005.
Ex.P3 is the notice of Conciliation Officer, dated
24-11-2005. Ex.P4 is the notice of Conciliation Officer,
dated 23-12-2005. Ex.P5 is the copy of representation
submitted by the management, dated 28-12-2005.
Ex.P6 is the copy of representation submitted by worker,
dated 25-01-2006. Ex.P7 is the copy of service certificate
issued by the management on 18-07-2005. Ex.P8 is the
notice of Conciliation Officer, dated 03-02-2006.
Ex.P9 is the copy of representation by the management
on 08-02-2006. Ex.P10 is the notice of the
Conciliation Officer on 21-02-2006. Ex.P11 is the
copy of representation made by the management on
03-03-2006. Ex.P12 is the notice of the Conciliation
Officer, dated 17-04-2006. Ex.P13 is the notice of
the Conciliation Officer, dated 29-05-2006. Ex.P14 is
the notice of the Conciliation Officer, dated 03-07-2006.
Ex.P15 is the failure report, dated 14-07-2006.
Ex.P16 is the notification, dated 08-01-2006. These
documents would go to show that the workers of the
first respondent establishment including this petitioner
had made a complaint against the first respondent
management for the non-enrolment of the Provident
Fund account to the workers and on the complaint the
Commissioner of the Provident Fund has taken action
against the first respondent management and 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.
Further, Ex.P7 would go to show that the management
has certified that the petitioner was working as a
Maintenance Assistant in the first respondent
organization from 19-05-2001 and further it is evident
from Ex.P11 that in the conciliation it was stated by
the respondent management that the petitioner was
casual worker on a temporary casual basis and he
voluntarily left employment to start a full-time
business of his own therefore, it is clear that the
petitioner had been working at first respondent
establishment and he had been in service at first
respondent establishment for about five years.
962
LA GAZETTE DE L’ETAT
[7 August 2018
11. It is the main contention of the first respondent
that petitioner is not a permanent employee of the first
respondent company and he is only a temporary worker
and his service was not made regular and he has not
been victimized and the certificate, dated 18-07-2005
filed by the petitioner that he was working for about
five years is a fabricated and forged one for the
purpose of this case and the same was not produced
before the Conciliation Officer and he has not been
stopped by the management on 13-06-2005 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 never raised any demands with the
first respondent management and that the petitioner in
his letter, dated 23-11-2005 to the Conciliation Officer
had admitted that he was only a temporary worker and
his service was not made permanent and that the
alleged certificate dated 18-07-2005 is fabricated and
concocted by the petitioner for the purpose of this
case and that the petitioner was engaged as a casual
worker on temporary basis by the first respondent
management and he has not served about 5 years as
stated by him and he never completed 240 days of
continuous services in any of the year he worked and
that the petitioner has not been terminated from
service and the petitioner has voluntarily left the job
of the first respondent establishment for starting a
hotel and hence, the petitioner is not entitle for any
reinstatement or back wages as claimed by him since
he was only a casual worker on temporary basis under
contract and was never completed 240 days of service.
14. In support of their evidence the first respondent
management has exhibited Ex.R1 to Ex.R17. Ex.R1 is
the copy of letter of authorization given to Mr. Arjuna
Babu, Personnel Officer of first respondent company
on 30-04-2014. Ex.R2 is the original pamphlet issued
by petitioner for starting his hotel on 01-07-2005.
Ex.R3 is the letter given by the petitioner to the
Assistant Labour Inspector, Yanam on 23-11-2005.
Ex.R4 is the original newspaper sheet of Eenaadu
newspaper in which the respondent has given advertisement
against P.V. Acharyulu and D. Rajendrakumar on
02-05-2006. Ex.R5 is the xerox copy of the letter
issued by the Assistant Director District Industries
Centre, Yanam to Somkam Marine Foods Limited,
on 19-10-2009. Ex.R6 is the xerox copy of the Possession
notices given by Kotak Mahindra Bank Limited and
Standard Chartered Bank. Ex.R7 is the xerox copy of
the sale notice of Kotak Mahindra Bank in the local
newspaper. Ex.R8 is the xerox copy of the order in
WP. No. 2499/2011 issued by the Hon’ble High Court
of Andhra Pradesh, dated 27-05-2011. Ex.R9 is the
xerox copy of the letter given by IARC to the Kotak
Mahindra Bank intimating about the taking over of
liabilities of first respondent to Standard Chartered
Bank on 06-06-2012. Ex.R10 is the xerox copy of the
wire notice sent by the Registrar of the Hon’ble
High Court at Andhra Pradesh. Ex.R11 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.
E x . R 1 2 i s t h e x e r o x c o p y o f t h e o r d e r i n
WP. No. 14506/2006 before the Hon’ble Andhra Pradesh
963
7 August 2018]
LA GAZETTE DE L’ETAT
High Court, dated 17-07-2006. Ex.R13 is the
xerox copy of the Interim order in WP.No.17714/2006
before the Hon’ble Andhra Pradesh High Court, dated
25-08-2006. Ex.R14 is the xerox copy of the order
in W P. No .1 7 7 1 4 /2 0 0 6 b e fo r e t he Ho n'b le
Andhra Pradesh High Court, dated 11-09-2007. Ex.R15
is the xerox copy of the order in WP. No. 8115/2009
before the Hon’ble Andhra Pradesh High Court, dated
21-04-2009. Ex.R16 is the copy of the orders passed
by EPF Appellate Tribunal New Delhi, dated 17-09-2009.
Ex.R17 is the xerox copy of the orders passed in
WP. No. 22615/2009 by Andhra Pradesh High Court,
dated 22-10-2009.
15. The documents exhibited by the first respondent
would reveal the fact that the petitioner has made
representation to the Assistant Labour Inspector on
23-11-2005 that he was not permitted to enter the gate
and he was not allowed to do his duty and he has asked
to do needful to get his job back and initially the
petitioner has attended the training for the period from
01-11-2003 to 30-01-2004 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
fa c t o r y a s s e t s , t h e f a c t o r y wa s c l o s e d a n d
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.R18 to
Ex.R28. Ex.R18 is the copy of the acknowledgment
of registration of firm certificate of M/s. Image Feeds,
dated 26-09-2014. Ex.R19 is the copy of the
partnership deed entered between the partners of
M/s. Image Feeds, dated 22-09-2014. Ex.R20 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.R21
is the copy of the PAN Card of M/s. Image Feeds.
Ex.R22 is the copy of the licence issued by Yanam
municipality in favour of M/s. Image Feeds on
23-06-2015. Ex.R23 is the copy of the sale certificate
issued by Kotak Mahindra Bank in favour of
M/s. Image Feeds on 25-02-2015. Ex.R24 is the copy
of factory licence of M/s. Image Feeds. Ex.R25 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.R26 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.R27 is
the copy of no objection letter issued by Kotak
Mahindra Bank to Inspector of Factories for
transferring factory licence in favour of M/s. Image
Feeds, dated 02-06-2015. Ex.R28 is the copy of
letter of authorization given to S. Prasad, Asst. Admin
of M/s. Image Feeds, dated 08-11-2017.
18. The documents filed by the 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 above-evidence and documents, it is
clear that the petitioner is the worker of the first
respondent establishment and he had been in service
for about five years for the period from 19-05-2001
to 13-06-2005 for that certificate was also issued by
964
LA GAZETTE DE L’ETAT
[7 August 2018
the first respondent management under Ex.P7. The
respondent stated that the certificate under Ex.P7 is
the fabricated and forged one. But, to prove the same
no evidence has been let in by the first respondent
management. Therefore, since the petitioner had been
in service for about five years it is to be taken that he
is the permanent worker of the first respondent
establishment. It is evident from Ex.P9 the conciliation
failure
report
that
in
the
conciliation
the
representative of the first respondent management has
stated before the Conciliation Officer that the
petitioner was absent from duty from 09-06-2005 on
his own volition to open Hotel at Yanam and they never
prevented him from reporting for duty and he only left
employment to start full time business of his own.
20. As the petitioner is the worker of the first
respondent establishment and it was represented by the
first respondent management before the Conciliation
Officer that this petitioner alone voluntarily left out
the factory to start a business of his own and therefore,
it is clear that no domestic enquiry was conducted
against the petitioner by the first respondent
management and even does not give any show cause
notice for the unauthorized absence. 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 five 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.
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
965
7 August 2018]
LA GAZETTE DE L’ETAT
(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.”
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 J u d gment rep o rt ed in CDJ 2 0 0 9 K ar 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 purchases they had 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 reemployment.
The claim at any rate of the employee in List II as
against the Corporation under Sec.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
966
LA GAZETTE DE L’ETAT
[7 August 2018
compensation in terms of section 25FF 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 reemployment 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
period of service rendered by the petitioner and the
967
7 August 2018]
LA GAZETTE DE L’ETAT
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 his 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— 26-04-2010 —
K.S.B.S. Ramalingam.
List of petitioner’s exhibits:
Ex.P1
— 04-10-2005— Representation in Telugu
made by the petitioner
along with postal receipt
and translation.
Ex.P2
— 23-11-2005— Copy of representation
to Conciliation Officer.
Ex.P3
— 24-11-2005— Notice of Conciliation
Officer.
Ex.P4
— 23-12-2005— Notice of Conciliation
Officer.
Ex.P5
— 28-12-2005— Copy of representation
submitted
by
the
management.
Ex.P6
— 25-01-2006— Copy of representation
submitted by worker.
Ex.P7
— 18-07-2005— Copy
of
service
certificate issued by the
management.
Ex.P8
— 03-02-2006— Notice of Conciliation
Officer.
Ex.P9
— 08-02-2006— Copy of representation
by the management.
Ex.P10 — 21-02-2006— Notice of the Conciliation
Officer.
Ex.P11 — 03-03-2006— Copy of representation
m a d e
b y
t h e
management.
Ex.P12 — 17-04-2006— Notice of the Conciliation
Officer.
Ex.P13 — 29-05-2006— Notice of the Conciliation
Officer.
Ex.P14 — 03-07-2006— Notice of the Conciliation
Officer.
Ex.P15 — 14-07-2006— Failure report.
Ex.P16 — 08-01-2006— Notification.
List of
respondent’s witnessess:
RW.1 — 20-06-2014—
Arjuna Babu.
RW.1 — 08-11-2017 —
S. Prasad.
List of respondent’s exhibits:
Ex.Rl
— 30-04-2014—Copy
of
letter
of
authorization given to
Mr.
Arjuna
Babu,
Personnel
Officer
of
first
respondent
company.
Ex.R2
— 01-07-2005— Original pamphlet issued
by petitioner for starting
his hotel.
Ex.R3
— 23-11-2005— Letter
given
by
the
petitioner
to
the
Assistant
Labour
Inspector, Yanam.
Ex.R4
— 02-05-2006— Original newspaper sheet
of Eenaadu newspaper in
which the respondent has
given
advertisement
against P.V. Acharyulu and
D. Rajendrakumar.
Ex.R5
— 19-10-2009— Xerox copy of the letter
issued by the Assistant
D i r e c t o r ,
D i s t r i c t
Industries Center, Yanam
to
Somkam
Marine
Foods Limited.
Ex.R6
— —
— Xerox
copy
of
the
Possession notices given
by Kotak Mahindra Bank
Limited and Standard
Chartered Bank (2 Nos.).
Ex.R7
— —
— Xerox copy of the sale
notice
of
Kotak
Mahindra Bank in the
local newspaper.
968
LA GAZETTE DE L’ETAT
[7 August 2018
Ex.R8
— 27-05-2011— Xerox copy of the order
in WP. No. 2499/2011
issued by the Hon’ble
High Court of Andhra
Pradesh.
Ex.R9
— 06-06-2012— Xerox copy of the letter
given by IARC to the
Kotak Mahindra Bank
intimating
about
the
taking over of liabilities
of first respondent to
Standard Chartered Bank.
Ex.R10 — —
— Xerox copy of the wire
notice
sent
by
the
Registrar of the Hon’ble
High Court at Andhra
Pradesh
Ex.R11 — 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.R12— 17-07-2006— Xerox copy of the order
in WP. No. 14506/2006
before the Hon’ble Andhra
Pradesh High Court.
Ex.R13 — 25-08-2006— Xerox
copy
of
the
Interim
order
in
W P. N o . 1 7 7 1 4 / 2 0 0 6
before
the
Hon'ble
Andhra Pradesh High
Court.
Ex.R14 — 11-09-2007— Xerox copy of the order
in
WP.No.17714/2006
before the Hon'ble Andhra
Pradesh High Court.
Ex.R15 — 21-04-2009— Xerox copy of the order
in WP. No. 8115/2009
before the Hon’ble Andhra
Pradesh High Court.
Ex.R16 — 17-09-2009— Copy
of
the
orders
passed by EPF Appellate
Tribunal, New Delhi.
Ex.R17 — 22-10-2009— Xerox copy of the orders
passed
in
WP.
No.
22615/2009 by Andhra
Pradesh High Court.
Ex.R18 — 26-09-2014— Copy
of
the
acknowledgment
of
registration
of
firm
certificate of M/s. Image
Feeds.
Ex.R19 — 22-09-2014— Copy of the partnership
deed entered between the
partners of M/s. Image
Feeds.
Ex.R20 — 17-12-2014— Copy of the purchase of
moveable and immovable
mortgaged properties at
Yanam
from
Kotak
M a h i n d r a
B a n k
b y
M/s. Image Feeds.
Ex.R21 — —
— Copy of the PAN Card of
M/s. Image Feeds.
Ex.R22 — 23-06-2015— Copy
of
the
licence
issued
by
Yanam
Municipality in favour of
M/s. Image Feeds.
Ex.R23 — 25-02-2015— Copy
of
the
sale
certificate
issued
by
Kotak Mahindra B ank in
f a v o u r o f M/s. Image
Feeds.
Ex.R24 — —
— Copy of factory licence
of M/s. Image Feeds.
Ex.R25 — 09-03-2015— Copy
of
the
acknowledgment receipt
issued by the Kotak
M a h i n d r a B a n k t o
M/s. Image Feeds for
delivery
of
movable
properties at Yanam.
Ex.R26 — 08-04-2015— C o p y
o f
t h e
acknowledgment receipt
issued by the Kotak
M a h i n d r a B a n k t o
M/s. Image Feeds for
certifying
the
sale
proceeds and handing
over the sale property.
Ex.R27 — 02-06-2015— Copy of the no objection
letter issued by Kotak
Mahindra Bank to Inspector
of
Factories
for
transferring
factory
licence in favour of
M/s. Image Feeds.
Ex.R28 — 08-11-2017— Copy
of
letter
of
authorization given to
S. Prasad, Asst. Admin.
of M/s. Image Feeds.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.