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2020 }

| 8 {

No.

Poudouchéry

Mardi

Septembre

2020 (17 Bhadra 1942)

No.

Puducherry

Tuesday

8th

September

2020

570

LA GAZETTE DE L’ETAT

[8 September 2020

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 76/AIL/Lab./T/2020,

Puducherry, dated 15th July 2020)

NOTIFICATION

Whereas, an Award in I.D. (T) No. 05/2020, dated

10-02-2020 of the Industrial Tribunal-cum-Labour Court,

Puducherry in respect of the Industrial Dispute between the

management of M/s. Pondicherry Institute of Medical

Sciences, Kalapet, Puducherry and the Union Workmen

represented by Puduvai Maruthuva Vingana Niruvana

Desiya Thozhilalar Sangam-INTUC, Puducherry, over

charter of demands 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 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 V. PANDIARAJ, B.SC., LL.M.,

Presiding Officer.

Monday, the 10th day of February 2020

I.D. (T) No. 05/2020

The Secretary,

Puduvai Maruthuva Vingana Niruvana

Desiya Thozhilalar Sangam-INTUC,

No. 28, Saint Therese Street,

Puducherry.

. . Petitioner

Versus

The Managing Director,

M/s. Pondicherry Institute of Medical

Sciences, Kalapet,

Puducherry.

. . Respondent.

This Industrial Dispute coming on this day

before me for hearing, in presence of Thiruvalargal

L. Sathish, S. Ulaganathan, T. Pravin, S. Velmurugan,

V. Veeraragavan and E. Karthik, Counsels for the

respondent, on record, the petitioner remained absent,

no representation have been made on his behalf, up on

perusing the records, this Court passed the following:

AWARD

This Industrial Dispute arises out of the reference

made by the Government of Puducherry vide G.O. Rt.

No. l43/AIL/Lab./T/2019, dated 03-12-2019 of the Labour

Department, Puducherry, to resolve the following dispute

between the petitioner and the respondent, viz.,-

(i) Whether this dispute raised by the Union

Workmen represented by Puduvai Maruthuva

Vingana Niruvana Desiya Thozhilalar Sangam-

INTUC, Puducherry against the management of

M/s. Pondicherry Institute of Medical Sciences,

Kalapet, Puducherry, over charter of demands such

as to revise the basic wages by ` 10,000 to grant an

Annual Increment of ` 3,000 to grant promotion to

employees who have completed 10 years of service

with an increment of ` 2,000 to provide Canteen

facilities at subsidized rates and other allowances,

etc., are justified or not? If justified, what relief the

Union Workmen are entitled to?

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

of money if, it can be so computed?

2. Today, when the case came up for hearing,

petitioner not present even after service of notice.

No representation for the petitioner. Hence, this

reference is closed for default. No cost.

Written and pronounced by me in the open Court,

on this the 10th day of February, 2020.

V. PANDIARAJ,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.

————

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 83/Lab./AIL/T/2020,

Puducherry, dated 16th July 2020)

NOTIFICATION

Whereas, an Award in I.D (L) No. 43/2013 dated

10-03-2020 of the Industrial Tribunal-cum-Labour Court,

Puducherry in respect of the Industrial Dispute between

the management of M/s. Marg Karaikal Port Private

Limited, T.R. Pattinam, Karaikal and M/s. Akash

Dredging & Marine Services (P) Ltd., Visakapattinam

and its workmen Thiru D. Nagappan & 9 others over

illegal transfer, back wages and other charter of demand

have been received;

571

8 September 2020]

LA GAZETTE DE L’ETAT

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 23-5-91, it is hereby directed by

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.

Tuesday, the 10th day of March, 2020.

I.D. (L) No. 43/2013

1. D. Nagappan

2. M. Sekar

3. P. Balamurugan

4. V. Vijayabalan

5. P. Ramesh Kumar

6. M. Murugesan

7. R. Muthukumarasamy

8. R. Murugesan

9. U. Ramamoorthy

10. K. Sudakar

. . Petitioners/

Workmen

Versus.

1. Marg Karaikal Port Private Limited,

Rep. by its Managing Director,

Kheezhavanjoor Village,

T.R. Pattinam, Karaikal.

2. M/s. Akash Dredging &

Marine Services (P) Ltd.,

Rep. by its Managing Director,

No.106, Lakshya 48-1-34/7,

Srinagar, Visakapattinam.

. . Respondents/

Management

This Industrial dispute coming on 27-02-2020

before me for final hearing in the presence of

Thiruvalargal P.R. Thiruneelakandan and A. Mithun

Chakkaravarthy, Counsels for the petitioners and

Thiruvalargal K. Babu and C. Arivajagne, Counsel for

the 1st respondent and Thiru R. Soupramanien, Counsel

for the 2nd respondent, upon hearing, 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 of Puducherry as per the G.O. Rt. No. l59/AIL/

Lab./J/2013, dated 31-10-2013 for adjudicating the following:-

(a) Whether the dispute raised by the petitioners,

Thiruvalargal 1. D. Nagappan, 2. M. Segar,

3. P. Balamurugan, 4. V. Vijayabalan, 5. P. Ramesh

Kumar, 6. M. Murugesan, 7. R. Muthukumarasamy,

8. R. Murugeasan, 9. U. Ramamoorthy and 10. K. Sudhagar

over the issues of illegal transfer, charter of demands,

pay of back wages against the management of

M/s. Marg Karaikal Port Private Limited, Karaikal and

M/s. Akash Dredging & Marine Services Private

Limited, Visakapattinam is justified or not? If

justified, what relief they are entitled to?

(b) 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;–

(i) The petitioners have lost their livelihood as their

agriculture field and fisheries farms were acquired by the

1st respondent for the establishment of its port trust in

Karaikal. Since, these petitioners were severely affected

by that acquisition, they were employed by the 1st

respondent in its establishment on the basis of their

demand. Accordingly, these petitioners were employed

during the year 2007 by the 1st respondent in its

dredging ship by name “Marg Cauvery” in the 1st

respondent port at Karaikal. Further, it has engaged the

2nd respondent by name M/s. Akash Dredging & Marine

Services Pvt. Ltd., for its dredging activity in its port.

These petitioners were not served with appointment

order at the time their initial appointment. However, the

1st respondent deducted the PF contribution from the

salary of 1 to 4 petitioners and remitted the same before

the EPF authorities in the name of 2nd respondent. With

respect of other petitioners no such deduction was made

by the 1st respondent from their salary. From the year

2007, they were not given confirmation order, despite

their work is perennial in nature. During February

2013 these petitioners joined together and demanded the

1st respondent to increase their salary, to confirm their

service and other allowances. Hence, from 01-01-2013

onwards, the 1st respondent denied employment to

these petitioners, stating that the dredging ship Marg

Cauvery has undergone repair and maintenance work.

Even then these petitioners demanded the 1st

respondent to provide continues employment in Marg

Cauvery or in the 1st respondent port and they went on

strike for the same. After that, at the instance of the 1st

572

LA GAZETTE DE L’ETAT

[8 September 2020

respondent, the 2nd respondent issued transfer order,

dated 22-02-2013, to these petitioners and thereby

transferred them to the Naliya in State of Gujarat as if

they were employed by the 2nd respondent. These

petitioners did not accept the same and once again they

demanded their employment in the 1st respondent port.

Hence, the 1st respondent denied the employment to

these petitioners on 15-03-2013. Therefore, these

petitioners approached the Conciliation Officer, Karaikal

on 26-03-2013 for their charter of demands such as wage

increase, confirmation of service at Karaikal Port and

back wages etc., against the 1st respondent. The transfer

order issued by the 2nd respondent was mala fide,

illegal, against the standing order, and against section

25 F of Industrial Dispute Act 1947. The issuance of

transfer order is a case of unfair labour practice to

victimize these petitioners, as there is no provision to

transfer the service of these petitioners either in their

appointment order or in the certified standing order. The

industrial workers cannot be transferred to other states

during the lay off period as per the Industrial Dispute

Act. The denial of employment to these petitioners is a

clear violation of section 25 F of Industrial Dispute Act

and provisions of the model standing orders. The

transfer orders issued by the 2nd respondent as mala

fide, unfair and against the law. Further, they have to be

reinstated into the 1st respondent port at Karaikal as

permanent workers with continuity of service, back

wages and all other attendant benefits and hence, this

industrial dispute has to be allowed.

3. The brief averment of the counter filed by the

1st respondent:–

(i) This respondent denied all the allegations made in

the petition as false except those are specifically

admitted. The reference made by the Government of

Puducherry is bad in law, it is not maintainable and hence,

it has to be rejected in limine. There is no relationship

exists as employer-employee between this respondent

and the petitioners, as they were not at all employed by

this respondent. The petitioners wrongly mentioned the

name of these petitioners as Marg Karaikal Port Pvt. Ltd.

These petitioners were employed by the 2nd respondent

and hence, these petitioners have not locus standi to

raise any dispute against this respondent. These

petitioners misconceived and filed his application and

hence, this petition has to be dismiss in limine. These

petitioners misused the process of law and unnecessarily

added this respondent in the industrial dispute. This

respondent has never acquired the lands and farmlands

of these petitioners and in turn it has not given any

employment to the petitioners. This petition is filed with

mala fide intention to harvest illegal grain from this

respondent. This respondent never gave job assurance

this petitioner in Karaikal Port. The allegations against

this respondent regarding the deduction of EPF, was also

denied by this respondent as false, as these petitioners

approached this Court with uncleaned hands. This

respondent had engaged the 2nd respondent as a

contractor for manning, maintenance and operation of

its dredger by name Marg Cauvery at its Port. The 2nd

respondent/contractor used to engage its own labour to

carryout the contract work agreed between the 1st and

2nd respondent. These petitioners were allotted jobs by

the 2nd respondent only and not by the 1st respondent

as alleged in the claim petition. The 1st respondent is

having valid Registration Certificate and the 2nd

respondent is having valid license issued under the

contract labour (Regulation and Abolition) Act 1972. As

per the knowledge of this respondent, the contract with

the 2nd respondent came to an end on the completion

of reclamation contract work. The contractor/2nd

respondent issued transfer orders on 22-02-2013 and also

sent to the reminder letters on 19-03-2013 to these

petitioners. The workman by name K. Murugesan is

working under the 2nd respondent as per transfer order

and the other employee by name K. Sudhakar, left his

service or his own after the transfer order. This

respondent vehemently denied that these petitioners has

not been gainfully employed any where in

any

establishment and hence, this petition has to be

dismissed.

4. The brief averment of the counter filed by the

2nd respondent;-

This respondent denied all the allegations made in the

petition as false except those are specifically admitted

in this counter. This respondent is not a necessary party

to this case and hence, the petition is bad for misjoinder

of parties. These petitioner themselves stated that they

have not been recruited by the 1st respondent and no

relationship of employer-employee exists between this

respondent and the petitioners. The 2nd respondent is

only a dredging operator to carry out marine services

and dredging work in the Port at Karaikal. The claim of

these petitioners is not at all against this respondent and

therefore, this petition has to be dismissed against this

respondent.

5. Brief of the reply statement filed by the petitioners:

The 1st respondent is called as Marg Karaikal Port

Pvt. Ltd. only, but, it has stated its name as Karaikal Port

Pvt. Ltd., in its counter wrongly and as such it is

frivolous. The change in the name of the 1st respondent

will not affect the merits of this case. These petitioners

were not employed by the 2nd respondent. The contract

between the 1st and 2nd respondent is sham and

nominal and it has been made by the 1st respondent for

the name shake to deceive and deny various labour

welfare benefits to these workers in collusion of the 2nd

respondent.

573

8 September 2020]

LA GAZETTE DE L’ETAT

These petitioners were under the control of the 1st

respondent and also carried out their work in this

dredging ship namely Marg Cauvery. The 2nd

respondent is only a dredging operator to carry out the

marine services and dredging services in Karaikal port

and they have not recruited these petitioners. The

counter filed by the 1st respondent is contra to the

counter filed by the 2nd respondent, which is evident

that the counter of the 1st respondent as false. Since,

these petitioners were employed for more than 6 years

continuously in the 1st respondent management, they

shall be considered as permanent employees and the

denial of employment is illegal and it is violation of

section 25 (F) of Industrial Dispute Act. Hence, this

industrial dispute has to be allowed.

6. Brief of the additional counter filed by the 1st

respondent:

One M/s. KSR Marine Services Pvt. Ltd., has filed

the counter and alleged that it is the 2nd respondent,

and formally known as Akash Dredging and Marine

Services Pvt. Ltd., without any supporting documents

and the counter was filed without any sanction or leave

from this Court and hence, it has to be rejected in total.

M/s. KSR Marine Services Pvt. Ltd., has to produce all

the relevant documents, of their undertaking of the 2nd

respondent. The 2nd respondent appeared before the

Conciliation Officer and admitted that these petitioners

were their own employees and in support of that they

have produced the document before the Conciliation

Officer. Further, the 1st respondent denied the

employment of these petitioners in its establishment.

Further, the 2nd respondent agreed before the Labour

Officer to provide employment to these petitioners at

their site in Gujarat and further agreed that if, the

petitioners are not ready, then they are ready to provide

settlement to these petitioners for the service rendered

by them. The said fact was mentioned in the failure report

itself. The 1st respondent entered into contract with the

2nd respondent on 21-08-2009 for operation, manning,

repairs and maintenance of “CSD Marg Cauvery”. In the

said contract the 2nd respondent agreed to deploy man

power as per the annexure in the clause V as per the

terms of agreement.

“Man Power: For the questions, the operator (2nd

respondent) shall deploy suitably qualified and

experience two Dredge Masters, one Chief Engineer and

required number of technicians, deck helpers, engine

mechanics, electrical and mechanical engineers, cooks

and such other crewpersonnel as required for operating

and maintaining the Dredger, as per statutory and

operations requirements.

For pipeline and reclamation management, suitable

personnel including supervisors shall be deployed.

The works are to be rendered on 24 hours basis and

hence, sufficient number of personnel to be deployed

on shift basis. It is expected that about 60 nos. of

personnel may be required for operations of this nature.

The complete list of personnel and credentials of key

people and Chief Engineer in the form of their resume

shall be submitted for approval before commencement

of works.

On-whore accommodation facilities and other

boarding and lodging requirements for the personnel are

to the account of the operator.

The operator shall undertake to comply with

provisions of Contract Labour, Workmen Compensation

and other personnel/labour related laws of the country.

The operator shall also comply with all statutory

requirements including PF, ESI and Professional Tax etc.

As this arrangement is on principal to principal basis,

the operator and its personnel engaged on board the

Dredger are not considered to be Agents) or Employee(s)

for all commercial, legal and statutory purposes. KPPL

is not responsible for any liability towards the crew/

personnel on board the Dredger and it is the sole

responsibility of

the operator to engage, pay,

compensate and provide, in all respects, lor the crew/

personnel engaged on board the Dredger.

The operator shell indemnify and keep indemnified

KPPL against any claims, damages, loss actions etc., in

this regard”.

These petitioners were employed by the 2nd

respondent and the 2nd respondent has paid PF

contributions to these petitioners vide the Code No.

GRVSP0055406000 and the 2nd respondent has also

insured these petitioners and it has taken group

insurance special policy also. Further, the 2nd respondent

has also issued appropriate Port entry pass to these

petitioners. The Government of Puducherry has not

issued any notification in hs Official Gazette as on date

to prohibit the employment of contract labour under

section of the Contract Labour (Regulation and

Abolition) Act, 1972. These petitioners raised their

dispute directly with the principle employer and hence,

the claim petition under section 2K of the Industrial

Dispute Act 1947 is not maintainable. The document

such as muster role, wage register and other documents

are available with the 2nd respondent only and hence,

they have to be produce by the 2nd respondent before

this Court. Hence, this industrial dispute has to be

dismissed.

7. On the side of the petitioner only witness was

examined and Ex.P1 to Ex.P24 was marked. On the side of

the respondent only one witness was examined and Ex.R1

to Ex.R65 were marked.

574

LA GAZETTE DE L’ETAT

[8 September 2020

8. The petitioner side Counsel argued that these

petitioners were employed by the 1st respondent during

the year 2007 itself. The contract between the 1st

respondent and 2nd respondent was with effect from

25-03-2009 only as per Ex.R2 and therefore the plea of the

1st respondent that these petitioners were employed by 2nd

respondent became untrue and false. It is further argued

that, as per Ex.P5 to P14, these petitioners were shown as

the employees of 1st respondent and the 1st respondent

alone deducted the contributions towards the ESI

Corporation from the salary of these petitioners and

therefore, they have to be considered as the employees

under the 1st respondent. It is further argued that the Port

Entry pass, marked as Ex.R57 to Ex.R65 on the side of the

respondent itself shows these petitioners are the employees

of the 1st respondent, It is further argued that the

agreement between 1st respondent and 2nd respondent is

nothing but camouflage and these petitioners were illegally

transferred by 2nd respondent on 22-02-2013 at the instance

of 1st respondent and therefore, the Transfer orders have

to be declared as invalid and reinstatement has to be

ordered in the 1st respondent port with all other monetary

benefits.

9. The 1st respondent side Counsel argued that these

petitioners were never employed under the 1st respondent

and they were employed under the 2nd respondent only

and therefore, the prayer made in this Industrial Dispute

cannot be granted against this respondent and therefore,

he prays to dismiss the claim application. Further, he argued

the 1st respondent established the Karaikal Port during the

year 2006 and it has entered into contract agreement with

the 2nd respondent during the year 2009 and it has

terminated its contract during the year 2013, as its dredging

ship by name “Marg Cauvery” was sent for repairing work.

It is further argued that these petitioners failed to produce

the document to show their relationship of employment with

this respondent and therefore, he prayed to dismiss this

application. It is further argued that dredging work has to

be performed by skilled persons and as the 2nd respondent

is the expert in this field, it has contract agreement with the

2nd respondent. It is further argued that as per the contract

agreement the 2nd respondent has full responsibility over

the petitioners/employees and therefore-they cannot be

treated as workman under the 1st respondent. It is further

argued that even as per Ex.P5 to P11, these petitioners were

employed under the 2nd respondent only. It is further

argued that the 1st respondent is having so many contract

workers, who supply manpower to the 1st respondent port

and 2nd respondent is one such contractors among them

and he supplied manpower to the 1st respondent for

dredging and reclamation work. It is further argued that as

per clause 5 in Ex.R42 these petitioners can be treated under

the employment of 2nd respondent only. It is argued that

the salary slip is marked as Ex.P17 also proves the factum

of employment under the 2nd respondent. It is further

argued that the 2nd respondent alone paid the EPF

contribution as per Ex.P18 and it also proved the facts that

these petitioners are under the employment of the 2nd

respondent. In support of the argument the 2nd respondent

filed the written argument. In fine, he prayed to dismiss the

claim application.

10. Points for consideration:

Whether the dispute raised by these petitioners,

over the issues of illegal transfer, charter of demands,

pay of back wages against the 1st and 2nd

respondent is justified or not.

11. On the Point:

The petitioners pleaded that they were employed by

1st respondent and they were not employed by the 2nd

respondent. Per contra, the 1st respondent has pleaded

and deposed that, the petitioners were not employed by

the 1st respondent and their employment is with the 2nd

respondent only. He further deposed that the 2nd

respondent is one of his contractor, who was engaged

on contract agreement to carry out the work of Dredging

in their port vide its dredging ship “Marg Cauvery” and

the contract was made for the purpose of manning and

reclamation work subject to the terms and conditions of

the contract. It is further deposed that these petitioners

were employed by the 2nd respondent and therefore,

they cannot claim anything against this respondent and

therefore this petition has to be dismissed for mis-joinder

of parties. RW.1 further deposed that these petitioners

were under the direct control and supervision of the 2nd

respondent. It is further deposed by the RW.1 that these

petitioners were insured by the 2nd respondent and the

EPF contributions were also deducted and paid by the

2nd respondent. Therefore, this Court has to analyse the

oral and document evidences produced on both sides

to decide who is the employer for these petitioners.

12. The petitioners have pleaded that they have lost

their agricultural land and fishing farm due to the land

acquisition by the 1st respondent and in consideration of

that, they were employed by the 1st respondent in their port,

in the dredging ship namely Marg Cauvery. To substantiate

this part of pleadings, PW.1 has filed the proof affidavit of

chief examination, wherein, in a single line, he has simply

stated that the pleadings in the claim statement have to be

taken as part and parcel of his evidence. It is just a formal

proof affidavit filed for the sake of the case. He has not

narrated or deposed all the facts pleaded in his claim

statement. The abovesaid deposition was not sufficient

enough to hold that these petitioners have proved their

pleading by oral evidence. Therefore, on that score itself

i.e., for the lack of detailed explanation of their pleadings

in the proof affidavit, this Court was not able to come to

the conclusion that these petitioners proved their pleadings

by oral evidence. But, in the interest of justice, this Court

575

8 September 2020]

LA GAZETTE DE L’ETAT

has taken that formal proof affidavit as a full pledged one

and analyse the documents and the cross-examination of

PW.1 to weigh the case of the petitioners. As per the

pleadings they were employed by the 1st respondent. But,

to substantiate this part of evidence they have not produced

the appointment order issued by the 1st respondent.

Therefore, that itself shows that these petitioners failed to

prove their employment under the 1st respondent. Further,

these petitioners produced Ex.P5 to P14. the port entry

permit card to show them as the employee of the 1st

respondent. On perusal of Ex.P5 to P14, this court was able

to found that, the abovesaid Identity Card/Port entry Permit

Card was issued by the 1st respondent Karaikal Port Pvt.

Ltd. But, on careful perusal of the abovesaid Identity Card/

Port entry Permit Card, it is found that these petitioners

company name was mentioned as “Akash Dredging” i.e.,

the 2nd respondent. Therefore, from Ex.P5 to P14, this Court

was able to come to the conclusion that these petitioners

are not employed under the 1st respondent, rather these

petitioners are employees of the 2nd respondent only.

Further more, these petitioners produced Ex.P15 and P16.

On perusal of Ex.P15 the transfer order and Ex.16 the

reminder letter, this Court was able to come to a conclusion

that these petitioners were employed by the 2nd respondent

and therefore, they were subjected to transfer. Further, in

Ex.P15 and P.16. nowhere it is stated that they are the

employees of the 1st respondent. Thus, on analyzing Ex.P15

and P16 also, this Court was not able to come to the

conclusion that they were employed under the respondent.

Ex.P17 to P19 would goes to show that these petitioners

were employed under the 2nd respondent and the salary

was also given by the 2nd respondent only. The documents

such as Ex.P20 to P24 are the Transfer letters and reminder

letters issued by the 2nd respondent, wherein, the 2nd

respondent has stated that the terms and conditions of

these petitioners appointment will remains unaltered.

Furthermore, in the

abovesaid document, the 2nd

respondent company decided to accommodate these

petitioners for their ongoing project at Naliya in Gujarat

State. In the abovesaid document also, nowhere it is stated

that these petitioners were employed under the 1st

respondent. Thus, on perusal of Ex.P1 to P24, this Court

was able to come to the conclusion that these petitioners

failed to prove their employment with the 1st respondent.

At this juncture, the argument advanced by the petitioner

Counsel, that, the poor petitioners/employees were unable

to get their appointment order from the employer i.e., from

the 1st respondent as the employer is the massive force

from whom these petitioners could not get same. Even for

the argument sake, if it is taken as true, they can very well

produce the land acquisition document to show their bona

fideness of their pleadings. But, that was also not produced.

It also goes to shows that these petitioners failed to prove

their employment with the 1st respondent.

13. Now, let us pass on the oral and documentary

evidence produced one the 1st respondent side. RW.1 has

deposed that the 2nd respondent is one of the contractors

who was engaged for the purpose of Manning and

Reclamation work and also in the dredging work in their

port. It was admitted by the petitioners and by the 2nd

respondent. To substantiate this part of evidence RW.l has

produced Ex.R5 Agreement. On perusal of Ex.R5, it is found

that there was a contract of agreement between the 1st and

the 2nd respondent in respect of manning and dredging

work in the 1st respondent port. As per Ex.R6 - R10, the

abovesaid agreement was extended for various period of

time.

14. RW.l has deposed that the EPF contributions were

paid by the 2nd respondent only in their sub code

No. GRESP0055406000. To substantiate this part of

evidence, Ex.R34 - Ex.R36 were marked. On perusal of Ex.R34

to R36, this Court was able to found out that these

petitioners were employed in the 2nd respondent only and

the contributions were also paid in the name of the 2nd

respondent company-only. Thus Ex.34 to 36, speaks in

volume that these petitioners were employed by the 2nd

respondent only.

15. Further, RW.1 has deposed that 2nd respondent

has taken group insurance policy for these petitioners.

To substantiate this evidence, Ex.R38 the copy of group

personnel accident policy certificate was marked in this

case. On perusal of Ex.R38 it seems that the 2nd

respondent has taken that policy for the welfare of these

petitioners. Thus from the Ex.R38 also this Court was

able to found that these petitioners were employed

under the 2nd respondent only.

16. Further, RW1 has deposed that these petitioners were

under the direct supervision and under the control of the

2nd respondent. To substantiate this part of evidence

Ex.R50 to 56 were marked. Ex.R50 to R56 were nothing but,

the letter issued by the 2nd respondent to the 1st

respondent requesting to issue Port entry pass/Identity Card

to these employees/petitioners The abovesaid letters were

accepted by the 1st respondent company and it has

permitted to issue the port entry pass card to these

petitioners. In the abovesaid letters, the 2nd respondent has

mentioned that it has verified the conduct, character and

antecedent of these petitioners and thereafter, it has also

taken responsibility for all the activities of these petitioners

inside the port. All these documents would goes to shows

that these petitioners were employed by the 2nd respondent

and they were under the control and supervision of the 2nd

respondent only. It shows that the plea of these petitioners

as a false one. If, at all these petitioners are really employed

under the 1st respondent, then it is not necessary for the

2nd respondent to write such an assurance letter to the 1st

respondent vide Ex.R50 to R56. So, this Court was able to

come to the conclusion that these petitioners were employed

and under the 2nd respondent only.

576

LA GAZETTE DE L’ETAT

[8 September 2020

17. Further, RW.l has deposed that these petitioners

worked under the 2nd respondent management and they

were not at all employed by the 1st respondent. To

substantiate this part of evidence Ex.57 to 65 were

marked. Ex.R57 to R65 is nothing but the document

showing the in and out attendance of these petitioners,

wherein, also these petitioners were shown as

employees of the 2nd respondent namely, Akash

Dredging Pvt. Ltd. Therefore, from Ex.R57 to R65, also

this Court was able to come to the conclusion that these

petitioners were employed under the 2nd respondent

only.

18. Furthermore, RW.1 has deposed that one of the

petitioners by name Mr. Murugesan is working under the

2nd respondent in the newly transferred place. He further

deposed that one of the petitioners by name K. Sudhakar,

left his job on his own. These pleadings were not at all

denied by these petitioners. It also goes to shows that these

petitioners are not employees under the 1st respondent as

alleged in the claim petition.

19. Further, RW.1 has deposed that these petitioners

are under the employment of the 2nd respondent. To

substantiate this part of evidence, the transfer orders issued

by 2nd respondent were marked as Ex.R12 to R18 and the

reminder letters issued by the 2nd respondent were marked

as Ex.R19 to R25. On perusal of Ex.R12 to R25 it seems that

the petitioners were transferred and reminder letters were

also issued to them by the 2nd respondent. It clearly

established that 2nd respondent is having direct control

over these petitioners and therefore, it has issued such kind

of transfer orders and reminder letters. These documents

also speak in volume that these petitioners are employees

of the 2nd respondent only.

20. In the reminder letter Ex.R19 to R25 the 2nd

respondent has mentioned that in the interest of these

petitioners and in mark of good gesture, it is giving the

reminder letter to them. It reveals that these petitioners are

the employees of the 2nd respondent.

21. Furthermore, in the abovesaid reminder letters, the

2nd respondent has stated that, if, these petitioners are not

interested to continue their employment in the 2nd

respondent company, it will remove their names from the

muster roll of the company. The exact words of the very

particular aspect was given below as if, in the reminder

letters “As a special case, one month time i.e., up to

20-04-2013 is given to enable you to join duty at our above

Naliya site, failing which, it is deemed that you are no more

interested to continue employment with the company and

your name will be removed from the rolls of the company.”

Thus it is very clear that these petitioners are not employed

under the 1st respondent/management, whereas it clearly

shows and establishes that these petitioners were employed

under the 2nd respondent only.

22. In the reply statement filed by the petitioner, it has

been contended that the contract between the 1st and 2nd

respondent is purely sham and nominal and it has been

made by the 1st respondent for the name sake of deceive

and deny the various labour welfare benefits to the

workman. To substantiate this part of evidence he has not

adduced any oral evidence before the Court. Therefore, the

abovesaid pleading become, unproved in limine. However,

the petitioner side counsel filed the judgment rendered by

the Hon’ble Madras High Court on 03-12-2010 rendered in

the case of Elangovan and others Vs. the Central

Government, Industrial Tribunal-cum-Labour Court and

others. In the abovssaid judgment workman who were

employed as Lift operators in Airport Authority Limited and

they were taken into service through the 3rd respondent/

agent by name Sai Elevators. In the abovesaid case, the

workman contended that providing lift facility to the

passengers is part of the function of the Airport Authority

and the engagement of the petitioners through, agency is

sham and nominal. In the abovesaid case, the 2nd

respondent namely Sai Elevators the contractors produce

the Attendance register and Duty roaster register. Based

on the abovesaid registers the Labour Court has concluded

that the workmen were under the control of the 2nd

respondent and directed the Airport Authority to reinstate

them. The abovesaid finding was challenged before the

Hon’ble High Court in the above said writ petitions. The

Hon’ble High Court has held that the Labour Court has to

find out whether the employer-employee relationship is in

existence. For which the Court is required to consider the

following tests;

(a) Who is the appointing authority

(b) Who is the pay matter

(d) How long alternative service lasts

(e) The external control and supervision

(f) Nature of job (skilled/unskilled/professional)

(g) Nature of establishment

(h) Right to reject

23. Further, it is held that to find out the employee-

employer relationship, the Court has to find out whether

the engagement of contract employees for statutory duty

or unstatutory duty. In the abovesaid case, four workmen

were employed as regular employees for lift operation. But,

for the very same lift operation the Airport Authority has

employed the workman through the contract agency, the

2nd respondent. It is further held in the abovesaid case,

their employment is perennial in nature. Thus, it has held

that the workman were direct employees of the Airport

Authority. But, here, in this case, these petitioners were not

at all engaged for the statutory obligation/duty. There was

577

8 September 2020]

LA GAZETTE DE L’ETAT

no parallel appointment of others as permanent employees

by the 1st respondent which is similar to that of these

petitioners. Therefore, the benefit of the abovesaid

judgment was not applicable to the petitioner’s in the

present case.

24. Further, RW.l has deposed that 1st respondent is a

valid Registration Certificate owner the 2nd respondent is

having valid license to engage contrite employees. To prove

this part of evidence Ex.Rl, the Registration Certificate of

the 1st respondent and Ex.R2 the License issued in favour

of 2nd respondent was produced. Further, he has deposed

that there is no notification in the Official Gazette of the

Puducherry Government as on date prohibiting the

employment of contract labour under section 10(l) of the

Contract Labour (Regulation and Abolition) Act, 1972.

It was not denied by the petitioners. As per the agreement

between the 1st and 2nd respondent, these petitioners were

employed for the works of Dredging and Reclamation at

the Karaikal Port under the contractor. Further, the

engagement of these petitioners by the 2nd respondent for

dredging and reclamation work by the 2nd respondent was

not at all prohibited by the Government of Puducherry

under section 10(1) of CLRA Act: 1972. Therefore, it seems

that the contract was not sham and nominal or camouflage,

hence, the pleading raised by the petitioners that the

contract is sham and nominal is nothing, but, a bald

allegation only. As the petitioners failed to prove the

contract as sham and nominal, the transfer orders cannot

be decided as illegal. Furthermore, the transfer orders were

not at all issued by the 1st respondent and therefore, these

petitioners cannot seek the relief of the declaration to

declare the transfer orders as illegal against the 1st

respondent.

25. The petitioner side Counsel argued that the counter

filed by 2nd respondent has to be rejected in total as it was

filed by one KSR Marine Services Pvt. Ltd., which is not a

party to this case. The 2nd respondent side Counsel argued

that at present, the Akash Dredging company was taken

over by KSR Marine Services Pvt. Ltd., and therefore,

it has the right to contest the case. Similarly, the 1st

respondent side Counsel argued that the name of the 1st

respondent is Karaikal Port Pvt. Ltd. and not Marg Karaikal

Port Pvt. Ltd. as stated in the claim applications. Though

there was some differences in the name of the R1 and R2 in

the cause title of the claim petition it was not of much

importance as it has not affecting the very decision of this

case. Therefore, the arguments advanced in the abovesaid

aspect has been decided as “not much importance” and

hence, rejected. At this juncture the 1st respondent side

counsel argued that these petitioners are under the

employment of 2nd respondent and he prayed to consider

the Ex.R31 marked on the side of the 1st respondent. When

we go through the abovesaid document Ex.R31, which is

nothing, but, the reply given by the 2nd respondent before

the Conciliation Officer, wherein, also the 2nd respondent

clearly contended that these petitioners are their workman

and they were transferred to Naliya in Gujarat State as the

contract between with 1st respondent was up to 30-03-2013

only. Further, in the abovesaid document, the 2nd

respondent clearly mentioned that it is ready to pay the final

settlement dues to these petitioners and it has also

mentioned that no wage dues are pending towards this

petitioners/workman. It is further mentioned in the

abovesaid document that the 2nd respondent has paid the

wages up to the period of 2013 and also the bonus on

08-04-2013. Thus, it is clear from Ex.R31 that these

petitioners were employed under the 2nd respondent and

therefore they were subjected to transfer orders as the 2nd

respondent was empowered to pass such transfer order.

Thus it is clear that these petitioners are employees under

the 2nd respondent and not under the 1st respondent and

therefore, the transfer orders issued by the 2nd respondent

cannot be found fault with and the claim made by these

petitioners against the 1st respondent as a false one.

26. At this juncture, the 1st respondent side Counsel

produced the citation reported in 2015 LLR 635, wherein, it

is clearly held that “contractors registered with the EPF

department, having independent code number are to be

treated as independent employer.” Here, in this case also,

the 2nd respondent has paid the ESI contributions to the

Corporation through its separate ESI code number.

Therefore, even as per the citation the 2nd respondent alone

is the employer to these petitioners/claimants.

27. Hence, this Court comes to the conclusion that these

petitioners are not employees under the 1st respondent and

they are the employees under the 2nd respondent and

therefore, these petitioners cannot claim anything against

the 1st respondent. Hence, the industrial dispute raised

by these petitioners against the 1st respondent over their

transfer order and back wages was decided as unjustified.

28. These petitioners filed this industrial dispute with

a prayer to pass an Award holding that denial of the

employment and the transfer of these petitioners service

as mala fide, unfair labour practice and illegal and direct

the respondents to reinstate these petitioners into their

service ni the 1st respondent port. In the earlier paragraph

this Court has decided that these petitioners are the

employees under the 2nd respondent and not under the 1st

respondent and as per Ex.R31 and as per Ex.P12 to P18 these

petitioners were transferred to Naliya in the State of Gujarat

as the 2nd respondent has completed its contract work

herein the 1st respondent port at Karaikal. The transfer

orders seems to be genuine and based on reasonable

grounds as it has completed its work and it has not renewed

its contract with the 1st respondent. Further, the 2nd

578

LA GAZETTE DE L’ETAT

[8 September 2020

respondent has transferred these petitioners to the place

at Naliya in the State of Gujarat where they are having their

work. But, these petitioners alone refused to go to the newly

transfer place for the reasons known to them best.

Therefore, the transfer orders cannot be decided as illegal

one, hence the industrial dispute raised against the 2nd

respondent for their reinstatement in the 1st respondent port

is also found to be unreasonable and unacceptable.

29. In the result, this industrial dispute raised by these

petitioners against the 1st and 2nd respondent over their

transfer, reinstatement, back wages and other monetary

benefits is decided as unjustified and hence, the claim of

the petitioners is dismissed. No cost.

Dictated to Stenographer, transcribed by him, corrected

and pronounced by me in the open Court on this the 10th

day of March, 2020.

V. PANDIARAJ,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.

List of Petitioner Witness:-

PW.1

— 29-08-2017

D. Nagappan

List of petitioner’s exhibits:-

Ex.P1

— 26-03-2013

Copy of claim statement filed

the petitioners

before

Labour Officer (Conciliation).

Ex.P2

— 08-05-2013

Respondent’s reply.

Ex.P3

— 25-07-2013

Failure Report.

Ex.P4

— 12-11-2013

Government Reference.

Ex.P5

—

Copy of the ID card of the 1st

petitioner.

Ex.P6

—

Copy of the ID card of the

2nd petitioner.

Ex.P7

—

Copy of the ID card of the 3rd

petitioner.

Ex.P8

—

Copy of the ID card of the 4th

petitioner.

Ex.P9

—

Copy of the ID card of the 5th

petitioner.

Ex.P10

—

Copy of the ID card of the 7th

petitioner.

Ex.P11

—

Copy of the ID card of the 8th

petitioner.

Ex.P12

—

Copy of the ID card of the 9th

petitioner.

Ex.P13

—

Copy of the ID card of the

10th petitioner.

Ex.P14 — 09-01-2010

Copy of the ID card of the 1st

petitioner.

Ex.P15 — 20-02-2013

Copy of Transfer order of 1st

petitioner.

Ex.P16 — 19-03-2013

Copy of Reminder Transfer

order of 1st petitioner.

Ex.P17 — 2010

Copy of Pay slip of 1st

petitioner.

Ex.P18 — 2008-2009

Copy of PF slip of 3rd

petitioner.

Ex.P19 — 2010-2011

Copy of PF slip of 3rd

petitioner.

Ex.P20 — 20-02-2013

Copy of Transfer order of 4th

petitioner.

Ex.P21 — 20-02-2013

Copy of Transfer order of 2nd

petitioner.

Ex.P22 — 19-03-2013

Copy of Reminder Transfer

order of 2nd petitioner.

Ex.P23 — 20-02-2013

Copy of Transfer order of 5th

petitioner.

Ex.P24 — 19-03-2013

Copy of Reminder Transfer

order of 5th petitiioner.

List of Respondent’s Witness:-

RW.1

— 04-04-2018

N. Kandasamy

List of Respondent’s exhibits:-

Ex.R1

— 21-04-2008

Photocopy of details of

Amendment

the

Registration

Certificate

issued by the Registering

Officer under the Contract

Labour (R & A) Act, 1970 to

the 1st respondent.

Ex.R2

— 05-06-2008

Photocopy of Licence issued

to 2nd respondent by the

Licensing Officer under the

Contract Labour (R & A) Act,

1970.

Ex.R3

— 07-05-2013

Photocopy of Form VI-B-

Notice of completion of

Contract Work.

Ex.R4

— 12-11-2014

Photocopy of Form VI-B-

Notice of completion of

Contract Work.

579

8 September 2020]

LA GAZETTE DE L’ETAT

Ex.R5

— 25-03-2009

Photocopy of the Agreement.

Ex.R6

— 22-04-2009

Photocopy of Addendum

No. 1 to work order dated

30-01-2008.

Ex.R7

— 26-05-2009

Photocopy of Addendum

No. 2 to work order dated

30-01-2008.

Ex.R8

— 01-04-2010

Photocopy of Work Order.

Ex.R9

— 28-03-2013

Photocopy of Addendum

No. 3 to work order dated

01-04-2010.

Ex.R10 — 30-03-2012

Photocopy of Addendum

No. 2 to work order dated

01-04-2010.

Ex.R11 — 29-03-2020

Photocopy of letter issued by

2nd

respondent

1st

respondent.

Ex.R12 — 20-02-2013

Photocopy

letter

Transfer

issued by 2nd

respondent to P. Balamurugan.

Ex.R13 — 20-02-2013

Photocopy

letter

Transfer

issued

2nd

respondent to V. Vijayabalan.

Ex.R14 — 20-02-2013

Photocopy

letter

Transfer

issued

2nd

respondent to D. Nagappan.

Ex.R15 — 20-02-2013

Photocopy

letter

Transfer

issued

2nd

respondent to M. Sekar.

Ex.R16 — 20-02-2013

Photocopy

letter

Transfer

issued

2nd

respondent to P. Ramesh

Kumar.

Ex.R17 — 20-02-2013

Photocopy

letter

Transfer

issued

2nd

respondent to Muthukumar

Samy.

Ex.R18 — 20-02-2013

Photocopy

letter

Transfer

issued

2nd

respondent to R. Murugesan.

Ex.R19 — 20-02-2013

Photocopy

letter

Transfer

issued

2nd

respondent to U. Rammurthy.

Ex.R20 — 19-03-2013

Photocopy of letter of Transfer-

Remainder issued by 2nd

respondent to P. Balamurugan.

Ex.R21 — 19-03-2013

Photocopy of letter of Transfer-

Remainder issued by 2nd

respondent to V. Vijayabalan.

Ex.R22 — 19-03-2013