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[ 345 ]
2020 }
|
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).