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The Gazette of Puducherry

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2020 }

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26 {

No.

21

Poudouchéry

Mardi

26

Mai

2020 (5 Jyaistha 1942)

No.

Puducherry

Tuesday

26th

May

2020



SOMMAIRES

CONTENTS



Page

Page

..

346

Sentence arbitral du travail

.. 346

Award of the Labour Court

.. 346

de tribunal.



..

350

Notifications du Gouvernement

.. 350

Government Notifications

.. 350



..

353

Avis d’ appel d’ offres

.. 353

Tender Notices

.. 353



..

356

Vente publique

.. 356

Auction notice

.. 356



..

357

Annonces

.. 357

Announcements

..

357

346

LA GAZETTE DE L’ETAT

[26 May 2020

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 40/AIL/Lab./T/2020,

Puducherry, dated 17th March 2020)

NOTIFICATION

Whereas, an Award in I.D. (L) No. 06/2011, dated

30-01-2020 of the Industrial Tribunal-cum-Labour Court,

Puducherry, in respect of the Industrial Dispute

between the management of M/s. Larsen Toubro Ltd.,

Sedarapet, Puducherry and Thiru S. Mani (died), Rep.

by his Legal heir Selvajothi, Tamil Nadu, over

non-employment has been received;

Now, therefore, in exercise of the powers conferred

by sub-section (1) of section 17 of the Industrial

Disputes Act, 1947 (Central Act XIV of 1947), read with

the notification issued in Labour Department’s G.O. Ms.

No. 20/91/Lab./L, dated 23-05-1991, 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., LL.M.,

Presiding Officer.

Thursday, the 30th day of January, 2020.

I.D. (L) No. 06/2011

S. Mani (died),

Rep. by his Legal heir Selvajothi,

No. A-378, Main Road,

Vanur Post and Taluk,

Tamil Nadu.

. . Petitioner

Versus

The Managing Director,

M/s. Larsen Toubro Ltd.,

Sedarapet, Puducherry.

. . Respondent

This industrial dispute coming on 21-01-2020 before

me for final hearing in the presence of Thiruvalargal

M. Veerappan and William Jerone Vincent, Counsels for

the petitioner, and Thiruvalargal M. Vaikunth, S. Kamalini,

R. Vikineshraj and R. Elamparuthi, Counsels for the

respondent, up on hearing, up on 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 of Puducherry as per the G.O. Rt. No. 46/

AIL/Lab./J/2011, dated 03-04-2011 for adjudicating the

following:-

(a) Whether any employer and employee relationship

exists between Thiru S. Mani and the management

of M/s. Larsen and Toubro Ltd., Puducherry?

(b) If exists, whether the dispute raised by

Thiru S. Mani, over non-employment is justified or

not?

(c) If justified, what relief the petitioner is entitled

to?

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

of money if, it can be so computed?

2. The brief averment of the petition filed by the

petitioner:-

This petitioner Selvajothi is the daughter of the

deceased employee by name Mani. The deceased

employee by name Mani joined the service in the

respondent company on 31-05-1993 as Office Boy.

Since, he was appointed as Casual Labour, no order

of appoint was given to him. During 1996 he has been

posted as Telephone Operator to attend the incoming

and outgoing calls. He attended the dispatch work

and courier works in the Office. While so, on

23-05-2009 he was called by the then Manager

Thiru B.P. Reddy (Personnel) Department and

informed that he was dropped from his service due

to his diabetic problem. He has performed his duty

from 1993 to 2009 continuously for more than 15 years

to the satisfaction of the respondent management and

there was no adverse remark against him. Though he

was appointed as Casual Labour, he was paid ` 6,500

per month as salary on regular basis and he has

received periodical bonus also. His position can be

ascertained from the muster role and attendance

register maintained by the company. Though he seek

a copy of the same, the management refused to give

the copy of the abovesaid documents and hence, the

abovesaid documents were unable to be produced

before this Court. He had worked under the

various General Managers namely, Thiru Warrior,

Thiru Naklir, Thiru Dada Guptha, Thiru Amrudeen,

Thiru Balachandar and Thiru B.M. Karunanithi.

He was a regular employee of the respondent

company. His PF Account No. PC/393/3777. He has

paid ESI contribution also and availed the ESI

benefits such as, ESI leave and medical treatment.

347

26 May 2020]

LA GAZETTE DE L’ETAT

He has rendered more than 15 years unblemished service.

He was discharged from service abruptly and refused

employment on health ground against the provisions of

Labour Laws and also against the principles of natural

justice and also against the Standing Orders of the

company. The act of the respondent management is unfair

labour practice. He has been discharged from service

without any memo, show cause notice and without any

enquiry. The management failed to comply the provisions

of the ID Act, 1947. The deceased employee by name

Mani made several representations to the respondent

management. He has made personal request also. He has

met the Manager of the respondent management on several

occasions, but, the respondent management acted in an

autocracy manner, without following the rule of law and

the principles of natural justice. He has made a

representation on 19-08-2009 before the Conciliation

Officer, Puducherry. The Conciliations proceedings also

ended in failure and the report was sent to this Court.

The act of the respondent management is against the law.

Since, the employee by name Mani and his wife died

during the pending proceedings, this petitioner impleaded

herself and seeks a compensation of ` 10,00,000 in lieu

of the original claim of reinstatement and backwages with

all other attendance benefits.

3. The brief averment of the counter filed by the

respondent:-

(i) The allegations levelled by the petitioner/claimant is

denied as false and vexatious. The deceased petitioner/

employee by name Mani was not a permanent employee of

the respondent company from 31-05-1993 as alleged in

the claim petition. The allegation of denial of duty on

25-03-2009 was also denied as false. The respondent

company engaged in the manufacture of Transmittance Line

Tower parts. It has so many permanent employees and

contract employees also the name of this petitioner was

not find place in the list of permanent employees. He was

never ever treated and recognize as employee of permanent

nature. One Mr. Radhakrishnan is one of the private

contractors engaged by this respondent. This petitioner

worked under him and he was not at all employee under

the company at any point of time or date. He was a casual

worker under the abovesaid Radhakrishan and he carried

out the sundry work within the premises of the

respondent company, and as such this respondent

deposited PF and ESI contributions only as a matter of

welfare measure and it was complied as a matter of

statutory mandate. The payment of contribution would

not entitle the deceased petitioner by name Mani to claim

any right against this respondent and he cannot be termed

as permanent employee of the respondent company.

The deceased petitioner by name Mani has availed

ESI leave from 19-02-2009 to 26-02-2009 for his

alleged sickness. Even then he worked on these days

and received the wages from the contractor by name

K. Radhakrishnan as a daily wages casual workmen.

The abovesaid contractor by name Radhakrishnan

getting aggrieved over the fraudulent act of the

deceased petitioner by name Mani, quit him from his

daily work on his own accord. Further, the contractor

found the deceased petitioner by name Mani

sleeping several times during the working hours.

Further, the contractor was warned this petitioner

Mani for his irregularity, lethargic and negligent

attitude, misbehaviors and for misdeeds with his

superiors and fellow Casual Labours. There is no

question of refusal of employment and discharged of

employment, as there is no permanency in service

with the respondent management. This respondent

need not give any employment or backwages to the

deceased petitioner Mani and no such question

would arise as he was not under the employment with

the respondent management. This petition is fit for

dismissal for non-joinder of necessary parties. This

petitioner can claim anything only against the

contractor by name Radhakrishnan and he cannot

made any claims against this respondent. Since, the

original petitioner by name Mani expired, a right of

claim also goes out under the legal maxim “Actio

Personalis Moritur-cum-Persono”. The claim of

compensation made by this petitioner is not

maintainable. The implement of this petitioner by

name Selvajothi is also against the law and hence,

this petition has to be dismissed.

4. On the side of the petitioner only witness was

examined and Ex.P1 to Ex.P20 was marked. On the side

of the respondent only one witness was examined no

documents were marked.

5. The petitioner side Counsel argued that the

present petition is nothing but, the daughter of the

deceased employee by name Mani. It is argued by the

petitioner

Counsel that the deceased Mani was

employed in the respondent management on 31-05-1993

and he was denied to attend the work on and from

26-03-2009 by the management. It is argued by the

petitioner Counsel that the denial of work to this

petitioner is nothing, but, unfair labour practice and

therefore, this petitioner has to be suitably compensated

with sum of ` 10,00,000 and with all other benefits.

6. The respondent side Counsel failed to appear and

put forth his case on behalf of the respondent

management.

348

LA GAZETTE DE L’ETAT

[26 May 2020

7. Points for consideration:

Whether any employer and employee relationship

exists between Thiru S. Mani and the management

of M/s. Larsen and Toubro Ltd., Puducherry?

If exists, whether the dispute raised by Thiru S. Mani

over non-employment is justified or not? If justified,

what relief the petitioner is entitled to? To compute

the relief if any, awarded in terms of money if, it can

be so computed?

8. On the Point:

The petitioner (PW1), the daughter of the

deceased petitioner Mani, has deposed that her

father was employed in the respondent management

on 31-05-1993 and he has been discharged from his

service on and from 26-03-2009, on the ground of

diabetic problem. She further deposed that her father

was discharged from his service without any memo,

notice and without any enquiry. She has further

deposed that the refusal of work to her father on

25-03-2009 by the then Manager without any valid

ground is nothing but, an arbitrary exercise of

autocracy by the management against her father. She

further deposed that she was entitled for

compensation as a legal heir of her father in lieu of

the original claim of reinstatement with full

haclcwages, bonus and all other attendant benefits.

Per contra, RW1 Assistant Manager, (Industrial

Relations) of the respondent management deposed

that the deceased Mani was a contact labour under

the contractor K. Radhakrishnan and he was not an

employee of the company at any point of time.

Therefore, this Court has to find out whether the

deceased petitioner by name Mani was an employee

or not under the respondent management?.

9. To substantiate the evidence of PW1, the

petitioner has marked Ex.P1 to Ex.P20. On perusal of

Ex.P1 to P14 it is found that the petitioner by name Mani

has paid ESI contribution from 1993-1994 to 2007-2008

to the ESI Corporation for the abovesaid period. Further,

it is also found that the employer has also paid their

share of contributions to the ESI Corporation. Thus, the

Ex.Pl to P14, this Court was able to find out that ESI

contributions were paid by the employer as well as

employee. The contribution has to be paid for each and

every employee under the provisions of ESI Act., either

by the principle employer or by the contractor.

Furthermore, as per the provision, even if, the contractor

failed to pay contributions towards the contract

employees, the principal employer/company has to pay

the contributions and it has to deduct the same from

the salary of the relevant employee and if not, it will be

subjected to penal prosecution for failure of

non-payment of contribution under the ESI Act.

Therefore, the payment of contribution by the

management cannot be considered as a document to

show the relationship of employee and employer

between this petitioner and the respondent. Therefore,

this Court was not able to come to the conclusion that

he was an employee under the respondent management.

10. PW1 has deposed that her father was employed

under the respondent management from 31-05-1993 to

25-03-2009 and he has received the wages and bonus

periodically. If, this part of evidence adduced by PW1

is true, then definitely she could very well produce the

salary receipts and bonus receipts, before this Court,

from which this Court can come to the conclusion that

he was an employee of the respondent management.

But, she has not produced the same. Furthermore, she

has failed to produce the copy of the attendance register

or muster role registers. Further, she has failed to get

the same from the company and failed to produce the

same before this Court. Above all, she has not taken

any steps before this Court to produce the same by

filing call for documents petition from the respondent.

Furthermore, on perusal of Ex.P15 to Ex.P20, this Court

was not able to come to the conclusion that the

deceased petitioner Mani was an employee under the

respondent management. Above all, this petitioner

(PW1) herself has admitted that she has failed to

produce any document to show that the employment of

her father under the respondent management. All these

things would goes to shows that she has failed to prove

her case.

11. Furthermore, RW1 has deposed that the deceased

petitioner Mani was a contract employee under the

contractor K. Radhakrishnan and the deceased petitioner

Mani has performed sundry works only. To deny the

same, this petitioner has to take steps to implead the

so called contractor by name K. Radhakrishnan. But,

this petitioner failed to take any steps to implead the

so called contractor by name Radhakrishnan. The

failure of this petitioner in this regard, would also goes

to shows that the case of the petitioner as false one.

Thus, from the abovesaid evidences and documents,

this Court was able to come to the conclusion that there

was no relationship of employee-employer between this

petitioner and the respondent management.

12. At this juncture, this Court inclined to go through

the verdict given in the following citation 2016 LLR 1081

(Madras High Court) in

M/s. Enoest Pumps India Private Limited

Vs.

Deputy Director,

Industrial Safety and Health and others.

349

26 May 2020]

LA GAZETTE DE L’ETAT

Wherein, the Hon’ble High Court has held that

employer-employee relationship has to be decided first

by the industrial adjudicator and then he has to proceed

with other issues. Furthermore, the Hon’ble High Court,

Madras held that “the onus of proof for existence of

relationship of employer-employee lies on person

setting plea on its existence”, in the case of

N. Veerappan

Vs.

Chairman and Managing Director,

Punjab and Sind Bank,

New Delhi and others reported in 2014 LLR 151

13. Therefore, as per the abovesaid citation this

petitioner/claimant here in this case has to establish the

abovesaid relationship by producing documents and

evidences. But, here in this case, this petitioner has not

filed the appointment order, to show the relationship of

employer-employee. Further, he has not produce the

termination order issued by the respondent/management.

If at all, the deceased petitioner Mani was employed by

the management he could very well produce the same.

Since, he has failed to produce the same, this Court

comes to the conclusion that this petitioner has failed

to prove the existence of employer-employee relationship.

Furthermore, this Court has gone through the judgment

rendered by the Hon’ble Jarkhand High Court in the

case of

Their Workmen, Bihar Colliery Kamgar Union

Appellant

Vs.

M/s. Bharat Coking Coal Ltd. and another

wherein, in the 13th paragraph runs as follows:

“It is now well settled that if, the industrial

adjudicator finds the contract between the principal

employer and the contractor to be a sham, nominal

and merely a camouflage to deny employment

benefits to the employee and that there was in fact a

direct employment, it can grant relief to the employee

by holding that the workman is the direct employee

of the principal employer. Two of the well-recognized

tests to find out whether the contract labourers are

the direct employees of the principal employer are:

(i) whether the principal employer pays the salary

instead of the contractor; and (ii) whether the

principal employer controls and supervises the work

of the employee. In this case, the Tribunal answered

both the above questions in affirmative and held that

the workmen are direct employees of the management.

We are of the view that the Tribunal ought to have

examined the matter in the light of the above

well-settled principles. On careful consideration of

the evidence and materials on record, we are of the

view that the Industrial Tribunal committed a serious

error in arriving at the finding that because of

non-registration of establishment under section 7 of

the CLRA Act and non-possession of licence under

section 12 of the said Act, the contract labour system

was a sham or camouflage”.

14. Furthermore, the 20th paragraph runs as follows

“Before the Tribunal, the sponsoring Union filed an

application to direct the management to produce the

attendance register of the concerned persons. Since, the

management did not produce the attendance register,

the Tribunal drew the adverse inference against the

management that the management has withheld the same

because if, the attendance register had been produced

then the claim of the concerned persons of having

worked for more than 240 days would have been clearly

established. Such an inference drawn by the Tribunal

is erroneous in the light of the decision of Hon’ble

Supreme Court rendered in the case of Manager, RBI,

Bangalore v. S. Mani & Ors. [(2005) 5 SCC 100].

15. As per the abovesaid citation the workmen has

to prove that he was in regular employment of the

management. But, here in this case, the petitioner failed

to prove the same. As per the abovesaid citation this

Court cannot adverse inference against the management

as this petitioner has not taken any steps to call for the

documents from the respondent and he has not taken

any steps to produce the same before this Court.

Furthermore, as per the abovesaid citation he has not

produced sufficient evidence to get pass in the well

recognized test to find out the relationship of employer-

employee. Thus from the abovesaid analysis and

consideration, this Court comes to the conclusion that

this petitioner failed to prove the existence of employer-

employee relationship between the deceased petitioner

and the respondent. Hence, this Court comes to the

conclusion that this petitioner failed to prove her case

and therefore, it was decided that she was not entitle

for any relief as prayed in the claim petition.

16. In the result, the industrial dispute raised by this

petitioner against the respondent management, over the

non-employment of Mani is decided as unjustified.

No cost.

Dictated to Stenographer, transcribed by him,

corrected and pronounced by me in the open Court,

on this the 30th day of January, 2020.

V. PANDIARAJ,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.

350

LA GAZETTE DE L’ETAT

[26 May 2020

List of petitioner’s witness:

PW1

— 03-10-2019 Selvajothi

List of petitioner’s exhibits:

Ex.P1 —

1993-1994 Original copy of the A/c.

No. PC/393/377 of Employees

Provident Fund Scheme.

Ex.P2 —

1994-1995 Original copy of the A/c.

No. PC/393/377 of Employees

Provident Fund Scheme.

Ex.P3 —

1995-1996 Original copy of the A/c.

No. PC/393/377 of Employees

Provident Fund Scheme.

Ex.P4 —

1996-1997 Original copy of the A/c.

No. PC/393/377 of Employees

Provident Fund Scheme.

Ex.P5 —

1997-1998 Original copy of the A/c.

No. PC/393/377 of Employees

Provident Fund Scheme.

Ex.P6 —

1998-1999 Original copy of the A/c.

No. PC/393/377 of Employees

Provident Fund Scheme.

Ex.P7 —

1999-2000 Original copy of the A/c.

No. PC/393/377 of Employees

Provident Fund Scheme.

Ex.P8 —

2000-2001 Original copy of the A/c.

No. PC/393/377 of Employees

Provident Fund Scheme.

Ex.P9 —

2001-2002 Original copy of the A/c.

No. PC/393/377 of Employees

Provident Fund Scheme.

Ex.P10 —

2002-2003 Original copy of the A/c.

No. PC/393/377 of Employees

Provident Fund Scheme.

Ex.P11 —

2004-2005 Original copy of the A/c.

No. PC/393/377 of Employees

Provident Fund Scheme.

Ex.P12 —

2005-2006 Original copy of the A/c.

No. PC/393/377 of Employees

Provident Fund Scheme.

Ex.P13 —

2006-2007 Original copy of the A/c.

No. PC/393/377 of Employees

Provident Fund Scheme.

Ex.P14 —

2007-2008 Original copy of the A/c.

No. PC/393/377 of Employees

Provident Fund Scheme.

Ex.P15 — 31-05-1993 Copy of ESI, Identity Card

issued to the Employee/

petitioner.

Ex.P16 — 29-05-2009 Copy of the representation

given to the management by

the petitioner.

Ex.P17 — 19-08-2009 Copy of the representation

given to the Labour Officer

(Conciliation) by the petitioner.

Ex.P18 — 07-05-2010 Copy of the representation

given to the Labour Officer

(Conciliation)

by

the

petitioner.

Ex.P19 — 29-01-2010 Letter address to M/s. Larson

and Toubro Ltd., by the

employees State Insurance

Corporation Branch Office,

Gandhi Nagar, Puducherry.

Ex.P20 — 02-12-2010 Copy of the failure report

issued by the Conciliation

Officer.

List of respondent’s witness:

RW1

— 18-11-2019

R. Kannan

List of respondent’s exhibits: Nil

V. PANDIARAJ,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Ms. No. 02/Lab./SW/A3/2020,

Puducherry, dated 08th May 2020)

NOTIFICATION

Thiru J. Vijayakumar, Assistant Director (Training),

Labour Department, Puducherry, is admitted into

retirement on attaining the age of superannuation from

Government Service with effect from the afternoon of

31-05-2020.

(By order)

S. MOUTTOULINGAM,

Under Secretary to Government

(Labour).