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996

Sentence arbitral du travail

..

996

Award of the Labour Court

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1008

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Dangerous Establishments

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Annonces

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Announcements

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31 {

No.

53 Poudouchéry

Mardi

31

Décembre

2019 (10 Pausa 1941)

No.

Puducherry

Tuesday

31st

December

2019

996

LA GAZETTE DE L’ETAT

[31 December 2019

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 128/AIL/Lab./T/2019,

Puducherry, dated 6th December 2019)

NOTIFICATION

Whereas, an Award in I.D (L) No. 15/2018, dated

28-8-2019 of the Industrial Tribunal-cum-Labour Court,

Puducherry, in respect of the industrial dispute between

the management of M/s. Jothi Chlorate Limited, Karaikal

and Thiru M. Srinivasan, Karaikal, over reinstatement

with back wages 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

AT PUDUCHERRY

Present : Thiru V. PANDIARAJ, B.SC., L.L.M.,

Presiding Officer,

Wednesday, the 28th day of August, 2019

I.D. (L) No. 15/2018

M. Srinivasan,

S/o. Mohan,

No. 7, Odhi Chetty Street,

T.R. Pattinam,

Karaikal.

. . Petitioner

Versus

The Manager,

M/s. Jothi Chlorate Limited,

R.S. No. 56/3, Polagam Village,

T.R. Pattinam,

Karaikal.

. .

Respondent.

This industrial dispute coming on 22-08-2019 before

me for final hearing in the presence of Thiru N. Ramar,

representative for the petitioner, the respondent being

called absent and set ex parte, upon hearing the

petitioner and perusing the case records, this Court

passed the following:

A W A R D

1. This Industrial Dispute has been referred by the

Government as per the G.O. Rt. No. 30/AIL/Lab./T/2018,

dated 06-03-2018 for adjudicating the following:-

(a) Whether the dispute raised by the petitioner

Thiru M. Srinivasan, Karaikal, against the management

of M/s. Jothi Chlorate Limited, Karaikal, over

reinstatement with back wages are justifiable or not?

If justified, what is the relief entitled to?

(b) To compute the relief, if any, awarded in terms

of money, if it can be so computed?

2. The notice for the respondent has been duly served

to the respondent, even then this respondent has not

appeared before this Court and hence, he was set

ex parte on 08-05-2018 itself.

3. In the course of enquiry, the petitioner by name

Srinivasan was examined in ex parte as PW.1 on 01-02-2019

and Ex.P1 to Ex.P12 were marked.

4. The point for determination is :

(a) Whether the dispute raised by the petitioner

Thiru M. Srinivasan against the management of

M/s. Jothi Cholrate Limited, Karaikal, over reinstatement

with back wages are justifiable or not? If justified,

what is the relief entitled to?

(b) To compute the relief if, any awarded in terms

of money if, it can be so computed?

5. Heard the petitioner side and the records were

perused. It is the case of the petitioner that he joined as

Lab Chemist in the respondent company on 01-08-2008,

with monthly salary of ` 12,000 and the respondent

company has paid a sum of ` 4,200 through Bank and the

remaining amount was paid in cash directly to the

petitioner and the respondent company failed to comply

the benefits under the provisions of Labour Act to its

workers and it has failed to give Restricted Holidays,

National Holidays, Weekly Holidays, casual leave, earned

leave to its employees. Further, it has been stated that

the respondent company failed to get the subscription

amount from its employees under the Scheme of PF and

ESI. The company has not provided the abovesaid

benefits, even though, it was requested by this

petitioner. Further, it has deducted one and half day

salary from its employees to those who has availed more

than 3 days leave. In the meanwhile, this petitioner has

availed ESI leave from 17-09-2016 to 30-09-2016. The

respondent company has failed to sign the ESI leave

application and refused to give sanction to get the

benefits under ESI leave Scheme. Therefore, this

petitioner met the office bearers of the respondent

company and he was threatened by the company officials

997

31 December 2019]

LA GAZETTE DE L’ETAT

and thereby it has directed this petitioner that ‘he should

not to come to the company’. Therefore, this petitioner

has raised the Industrial Dispute before the Conciliation

Officer on 13-02-2017. Further, it is stated that the

respondent company has filed a false reply, stating that

this petitioner was irregular in service and not coordinate

with the company and thereby causing loss to the

respondent company. It was also replied by the company

that this petitioner has availed a hand loan of ` 1,00,000

from the company for his marriage proposals. This

petitioner has made suitable reply for the abovesaid

contentions also. The respondent company has obtained

the signature from this petitions during the year 2013 to

provide the benefits of the ESI and PF benefits. Even

though, those benefits were not given to this petitioner

by the company, this respondent company has

conveniently used the abovesaid signature to create a

forged document as if, this petitioner has availed a hand

loan of ` 1,00,000 from the company. The Conciliation

Officer has conducted several rounds of Conciliation.

Finally, it has filed its negative report. Since, the

respondent company has adopted unfair labour practices

and it was brought to the knowledge of the Conciliation

Officer, the respondent company has removed this

petitioner from service. This petitioner has not stopped

his service from the company on his own volition and he

was removed from his service from the respondent

company without following the procedure enumerated

in the labour legislation. This petitioner is facing much

hardship due to non-employment for the past 2 years

and hence, the prayers made in the claim statement has

to be awarded in favour of this petitioner.

6. This petitioner has deposed as PW.1 Ex.P1 is the

certificate issued by this respondent. It shows that the

petitioner was appointed on 01-08-2008. Ex.P2 shows that

he has worked in respondent company as Lab Chemist.

Ex.P3 shows that his name was entered in ESI Corporation

as an employee of the respondent company and he has

availed the ESI leave from 17-09-2016 to 30-09-2016. Ex.P5

shows that this petitioner has raised the industrial dispute

against the respondent company for its unfair Labour

Practices before the Conciliation Officer on 13-02-2017.

As per the reply filed by the respondent company before

the Conciliation Officer, this petitioner has joined duty

during the year 2013, whereas, no documents was

produced before the Conciliation Officer in this aspect.

But, the petitioner has filed Ex.P1, which shows that he

was appointed on 01-08-2008 itself. Therefore, the plea

of this petitioner that he was an employee from 01-08-2008

stands proved. At the same time, the plea raised by the

respondent company before the Conciliation Officer

stands failed. This petitioner has deposed that the

document, dated 27-09-2017 was a fabricated one. The

abovesaid document was marked as Ex.P11 in this case.

As per the plea taken by the respondent company before

the Conciliation Officer, this petitioner was appointed in

the year 2013. If, it is true, definitely it may not provide

the hand loan of `1,00,000 during the year 2014, i.e.,

within a short span of one year it may not offer such a

hand loan. Therefore, the plea taken by the respondent

company before the Conciliation Officer, that this

petitioner has taken the hand loan of ` 1,00,000 was

also found to be baseless. Further, the respondent

company has not given its sanction to this petitioner, to

get his benefit under the provision of ESI Act, for the

leave period from 17-09-2016 to 30-09-2016. Further, this

petitioner was terminated from service during the

pendency of conciliation proceedings. Thus, this

petitioner has produced oral and documentary evidences

to prove the plea taken in this petition. Whereas, the

respondent company has not come forward to conduct

this case, even after the service of the notice. From and

out of the unchallenged oral evidence of PW1 and the

documents, this Court found that the respondent

company has adopted the unfair labour practices against

this petitioner/worker and violated the provisions of the

abour legislation, over his non-employment and hence,

this Court held that this petitioner is entitled for

reinstatement with back wages and all other benefits as

claimed by him.

7. In the result, this petition is allowed and it is held

that the respondent/management has adopted the unfair

labour practices against this petitioner by violating the

provisions of labour legislation, Industrial Disputes Act,

over the illegal termination of this petitioner is justified

and an Award is passed directing the respondent to

reinstate this petitioner in its company within one month

from the date of this order with full back wages,

continuity of service and all other monetary benefits to

which this petitioner is entitled.

Dictated to Stenographer, transcribed by him,

corrected and pronounced by me in the Open Court on

this the 28th day of August, 2019.

V. PANDIARAJ ,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.

List of petitioner’s witness:

PW.1 — 01-02-2019

Srinivasan

List of petitioner’s exhibits:

Ex.P1 — 11-01-2009

Experience

Certificate

given by the respondent

management

to

the

petitioner.

Ex.P2 —

Copy of Indian Overseas

Bank Statement.

998

LA GAZETTE DE L’ETAT

[31 December 2019

Ex.P3 —

Copy of ESI medical

records from 17-09-2016 to

30-09-2016.

Ex.P4 — 24-08-2017

Cop y of Pud ucherry

Gazette Publication.

Ex.P5 — 13-02-2017

Copy

of

requisition

submitted

before

the

La b o ur D e p a r tme n t ,

P u d uc h e r r y

b y

t h e

petitioner to reinstate him.

Ex.P6 — 10-08-2017

Copy of Conciliation report

issued by the

labour

Officer (Conciliation),

Puducherry.

Ex.P7 — 31-08-2017

Copy of letter submitted by

the

petitioner

to

the

Lab o ur

De p artment,

Puducherry.

Ex.P8 — 02-11-2017

Copy of letter submitted by

the

petitioner

to

the

Lab o ur

De p artment,

Puducherry.

Ex.P9 — 08-12-2017

Copy of letter submitted

b y

t h e

r e s p o n d e n t

management to the Labour

Department, Puducherry.

Ex.P10 — 11-11-2014

Copy of failure report

submitted by the Labour

Officer (Conciliation),

Puducherry to Government

of Puducherry.

Ex.P11 — 27-09-2017

Copy of forged document

created by the respondent

management for sum of

` 1,00,000 obtained by the

petitioner from respondent

management.

Ex.P12 — 16-11-2015

Copy of notification issued

by the Government of

Puducherry to refer the

industrial

dispute

to

Labour Court, Puducherry

for adjudication.

List of respondent’s witnesses: Nil

List of respondent’s exhibits: Nil

V. PANDIARAJ ,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 129/AIL/Lab./T/2019,

Puducherry, dated 6th December 2019)

NOTIFICATION

Whereas, an Award in I.D (T) No. 7/2018, dated

29-10-2019 of the Industrial Tribunal, Puducherry, in

respect of the

industrial

dispute

between the

management of M/s. Larsen and Toubro Private Limited,

Sedarapet, Puducherry and

Larsen and Toubro

Thozhilalar Sangam, 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

AT PUDUCHERRY

Present : Thiru V. PANDIARAJ, B.SC., L.L.M.,

Presiding Officer ,

Tuesday, the 29th day of October, 2019

I.D. (T) No. 07/2018

The Secretary,

Larsen and Toubro Thozilalar Sangam,

No. 14, Kurinji Nagar,

Kamarajar Nagar,

Gorimedu, Puducherry.

. . Petitioner

Versus

The Managing Director,

M/s. Larsen and Toubro Private Limited,

Sedarapet, Puducherry.

. . Respondent

This industrial dispute coming on 30-09-2019 before

me for final hearing in the presence of Thiru Durai

Arumugam, representative for the petitioner, the

respondent being called absent and set ex parte, upon

hearing the petitioner and perusing the case records,

this Court passed the following:

999

31 December 2019]

LA GAZETTE DE L’ETAT

AWARD

1. This Industrial Dispute has been referred by the

Government as per the G.O. Rt. No. 23/AIL/Lab./T/2018,

dated 15-02-2018 for adjudicating the following:-

(a) Whether the dispute raised by the petitioner

union Larsen and Toubro Employees Union,

Puducherry against the management of M/s. Larsen

and Toubro Private Limited, situated at ECC Division,

Mylam Road, Sedarapet, Puducherry, over the transfer

of Thiru N. Thandapani, Technical/Commercial

Supervisor from Puducherry to Raipur are justifiable

or not? If justified, what is the relief entitled to?

(b) To compute the relief, if any, awarded in terms

of money, if it can be so computed?

2. The notice for the respondent has been duly served

to the respondent, even then this respondent has not

appeared before this Court and hence, he was set ex parte

on 13-06-2018 itself.

3. Brief of the petition:

The respondent establishment is functioning at

Sedarapet Industrial Estate at Puducherry for the past

30 years and it is having more than 72 permanent

employees in its factory in TLT section. The petitioner

trade union has filed a charter of demands before the

Conciliation Officer on 02-12-2011. During the

pendency of abovesaid charter of demands before the

Conciliation Officer the respondent has threatened the

office bearers of the trade union to prevent their

effective functioning for the welfare of the employees.

In these circumstances, the respondent management

has transferred the workman/office bearer of the trade

union by name Mr. Thandapani on 04-01-2012 and he

was directed to attend duty in the factory at Raipur in

the State of Chattisgarh. It is a total violation of

provision under 33 (1) (a), 33 (2) (a), 33 (3) (a) of the

Industrial Disputes Act. The abovesaid Thandapani

was transferred due to vengeance by the management.

Further, the petitioner trade union has also raised an

industrial dispute before the Conciliation Officer

on 19-01-2012 regarding the denial of OTLS. (One time

lumpsum grant) and regarding the transfer of

Mr. Thandapani. In order to help the abovesaid

process the Conciliation Officer also conducted the

proceedings of conciliation in a delayed manner.

The petitioner trade union has app roached

the Hon’ble High Court regarding the transfer of

Mr. Thandapani and finally, it has observed that the

petitioner trade union has to approach the Industrial

Tribunal for its grievance. The respondent management

has transferred Mr. Thandapani unnecessarily and

against the standing order, though there exists

shortage of labours at Puducherry Factory. Hence,

this petition has been filed against the respondent

management with a prayer to cancel the transfer order

and to place him in the original place at Sedarapet

Factory with subsequent monetary benefit.

4. In the course of enquiry, the Secretary of the trade

union by name Kolanjinathan was examined in ex parte

as PW1 on 10-04-2019 and Ex. P1 to Ex. P10 were marked.

Thereafter, he was again recalled and re-examined on

20-09-2019 and Ex. P11 and Ex. P12 were also marked on

the date.

5. The point for determination is :

(a) Whether the dispute raised by the petitioner

trade union against the management of M/s. Larsen

and Toubro Private Limited, situated at ECC Division,

Mylam Road Sedarapet, Puducherry, over, the transfer

of Thiru N. Thandapani, Technical/Commercial

Supervisor from Puducherry to Raipur is justifiable or

not? and if justified, what is the relief entitled to?

(b) To compute the relief, if any awarded in terms

of money if, it can be so computed?

6. The Trade Union Secretary by name, Kolanjinathan

examined himself as PW.1, wherein, he has deposed that

Mr. Thandapani was an active member of the Trade Union

and he was executive member of the Trade Union and he

has been transferred to Raipur from Puducherry as a

measure of victimization by the management and it was

done during pendency of the Industrial Dispute with

respect to the charter of demands, dated 02-12-2011.

He has further, deposed that the act of the respondent

management is nothing but, a pure victimization act in

order to prevent the active participation of the abovesaid

Thandapani in trade union activities. The petitioner has

produced the Ex. P2 to show that there was a charter of

demands filed by the trade union on 02-12-2011 before

the Conciliation Officer, based on which an Industrial

Dispute was raised. The abovesaid charter of demands

was kept pending by the Conciliation Officer from

02-12-2011. The abovesaid Thandapani was transferred

on 04-01-2012 as per Ex. P4. The exhibits P2 and P4 would

goes to shows that during the pendency of conciliation

proceedings, the workman/office bearer of the trade

union by name, Mr. Thandapani was transferred against

the provision under section 33 (1) (a) of the Industrial

Disputes Act. As per section 33 (1) (a) of the Industrial

Disputes Act, no employee shall be transferred

during the pendency of proceeding before Conciliation

Officer, Industrial Tribunal and National Tribunal.

1000

LA GAZETTE DE L’ETAT

[31 December 2019

Further, as per section 33 (3) (a) of the Industrial Disputes

Act, the protected workman cannot be transferred

without prior permission of the respective authorities.

Here, in this case, also while the proceedings regarding

the charter of demands were pending before the

Conciliation Officer from 02-12-2011, the workman/office

bearer, by name, Thandapani the protected workman has

been transferred on 04-01-2012. Therefore, it becomes

clear violation of section 33 (3) (a) of the Industrial

Disputes Act by the management. Further, he has been

transferred as per Ex. P5. On perusal of Ex. P5 it was found

that no reasons was adduced for his transfer.

Furthermore, there was nothing mentioned under which

standing order he has been transferred to the Factory at

Raipur in Chattis. Hence, this Court found that the

transfer order was not on any genuine reason or on the

basis of any valid standing order of the management.

Hence, the prayer for cancellation of the transfer order

and to place him in the original position at Puducherry

factory, and seeking the monetary benefits from the date

of transfer becomes justifiable one. The respondent has

not come forward to justify his action of transfer. Further,

it has not come forward to deny the allegations levelled

against the management and it has not come forward

to rebut the allegations levelled against the management.

The unchallenged version of the petitioner was also

supported by the documentary evidences such as Ex.P2,

Ex. P4 and Ex. P5. Hence, considering the unchallenged

oral evidence of PW1 supported by the Ex. P2, Ex. P4 and

Ex. P5 this Court come to the conclusion that the transfer

order to the abovesaid Thandapani was not a justifiable

one and the prayer made by the petitioner trade union

against the respondent management found to be

justifiable one. Therefore, the industrial dispute raised

by this petitioner trade union is found justifiable and it

is ordered that the workman by name Thandapani was

entitled for all the monetary benefits from the date of his

transfer order and he was entitled to be placed in his

original position as Technical/Commercial Supervisor at

Sedarapet Factory in Puducherry from the date of this

order.

7. In the result, this petition is allowed. No cost.

Dictated to Stenographer, transcribe by him, corrected

and pronounced by me in the open Court on this the

29th day of October, 2019.

V. PANDIARAJ ,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.

List of petitioner’s witness:

PW.1

— 10-04-2019

Kolanjinathan

List of petitioner’s exhibits:

Ex.P1

— 01-03-2010

Copy of the certificate of

Registration of Trade Union.

Ex.P2

— 02-12-2011

Copy of the charter of

demand with copy of L Form.

Ex.P3

— 19-01-2012

Copy of the petition filed

before the Conciliation

Officer regarding the

transfer of Mr. Dhandapani.

Ex.P4

— 19-01-2012

Copy of the letter submitted

to the Conciliation Officer

regarding OTLS.

Ex.P5

— 04-01-2012

Copy of the transfer order of

the Mr. Dhandapani.

Ex.P6 — 20-10-2016

Copy of the order in W.A.

No. 1189/12.

Ex.P7

— 28-02-2012

Copy of the order in W.P.

No. 4611/12.

Ex.P8

— 09-02-2017

Copy of letter submitted by

the petitioner union to the

Conciliation Officer regarding

Transfer of Mr. Dhandapani.

Ex.P9 —

Copy of the shift schedule in

TLT - fabrication section.

Ex.P10 — 24-12-2018

Copy of the letter regarding

the details of the office

bearers of the trade union.

Ex.P11—

07-12-2011

Notice of the enquiry from

the Conciliation Officer to

the trade union.

Ex.P12—

07-08-2013

Failure report submitted by the

Labour Officer (Conciliation),

Puducherry to Government

of Puducherry regarding the

charter of demand, dated

02-12-2011.

List of respondent’s witnesses: Nil.

List of respondent’s exihibits: Nil.

V. PANDIARAJ ,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.