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La Gazette de L' État de Poudouchéry

The Gazette of Puducherry

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Publiée par Autorité

Published by Authority

Registered with the Registrar

of Newspapers for India

under No. 10410

Registered No. PY/44/2021-23

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No.

Poudouchéry

Mardi

Février

2022 (3 Phalguna 1943)

No.

Puducherry

Tuesday

22nd

February

2022

ÿ√VÚ·¶¬ÔD

SOMMAIRES

CONTENTS

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Page

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116

Sentence arbitr al du Travail

.. 116

Award of the Labour Court .. 116

de Tribunal.

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124

Notifications du Gouvernement

.. 124

Government Notifications

.. 124

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131

Avis d’ appel d’ offres

.. 131

Tender Notice

131

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135

Etablissements dangereux

.. 135

Dangerous Establishments

135

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139

Annonces

.. 139

Announcements

139

116

LA GAZETTE DE L’ETAT

[22 February 2022

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 6/Lab./AIL/T/2021,

Puducherry, dated 07th January 2022)

NOTIFICATION

Whereas, an Award in I.D (L) No. 03/2018, dated

26-11-2021 of the Industrial Tribunal-cum-Labour Court,

Puducherry, in respect of the Industrial Dispute

between Tmt. Sarala, Nirmala, Vasanthi and Kowsalya

against management of M/s. Rane (Madras) Limited,

Thirubuvanai, Puducherry, over reinstate the petitioners

with full back wages, continuity of service and all other

attendant benefits 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)

D. MOHAN KUMAR,

Under Secretary to Government (Labour).

————

BEFORE THE INDUSTRIAL TRIBUNAL -CUM-

LABOUR COURT AT PUDUCHERRY

Present :Thiru R. BHARANIDHARAN, M.L.

Presiding Officer.

Friday, the 26th day of November 2021.

I.D. (L) No. 03/2018

C.N.R. No. PYPY060001002018

Tmt.

1. Sarala

No. 4/66A, Thiroupathiamman Koil Street,

Pallicheri, Lingareddipalayam,

Villupuram, Tamil Nadu.

2. Nirmala,

Mettu Street, Rampakkam and Post,

Villuppuram, Tamil Nadu.

3. Vasanthi,

Thirukkanur Salai,

Kalitheerthalkuppam,

Puducherry.

4. Kowsalya,

No. 7, Punithavathi Nagar,

Nettapakkam and Post,

Puducherry.

. . Petitioners

Versus

The Managing Director,

M/s. Rane (Madras) Limited,

No. 77, Thirubuvanai Main Road,

Thirubuvanai,

Puducherry.

. . Respondent

This Industrial Dispute coming on 16-11-2021 before

me for final hearing in the presence of Thiruvalargal

R.T. Shankar, A. Ashok Kumar, L.K. Saravanan,

B. Balamurugan and P. Suresh, Counsels for the petitioners

and Thiruvalargal K. Babu and S. Karthikeyan,

Counsels for the respondent, upon hearing both sides,

perusing the case records, after having stood over for

consideration till this day, this Court delivered the

following:

AWARD

This petition is filed by the petitioners under section

2-(A) of the Industrial Disputes Act praying to pass an

Award to direct the respondent management to reinstate

the petitioners with full back wages, continuity of

service and all other attendant benefits.

Brief averments made in the claim statement of

the petitioner:

The petitioners namely, Tmt. Sarala, Nirmala,

Vasanthi and Kowsalya, were joined with the

respondent company on 04-11-2005, 01-01-2008,

04-06-2010 and 20-11-2007 respectively and continued

their work with the respondent management without

any remarks. The respondent Rane Madras Limited,

is a Public Limited Company, in which 750 employees

are working. However, only 85 employees are

permanent employees. The respondent management

involved in the manufacturing of gear and steering

for Automobile industry and running profitably.

On 10-09-2015, the respondent management has not

permitted the petitioner to do their normal work and

stopped them at the main gate with ulterior motive

without issuing any statutory notice or termination

order. All the petitioners are working with the

respondent management for more than 5 years with

lesser wages. The petitioners were doing full time

work i.e., 8 hours per day in all working days in a

month and the petitioners have been directly working

in the production Department as an operator and was

doing perennial in nature of work. The respondent

117

22 February 2022]

LA GAZETTE DE L’ETAT

management has extended the benefits of ESI and

EPF to the petitioners on par with permanent

employees and the petitioners workmen were having

requisite experience and qualification since, they are

working for a long period from the year 2005. The

petitioners have been directly working in the

production Department of OBJ and IBJ section as an

operator and doing the perennial in nature of work

along with other permanent workers and the

respondent instruct, manage and control the

petitioners and control extent to all stages of

operation from the beginning to end. All the

petitioners have worked more than 240 days within

a period of 12 calendar months and they are deemed

to be permanent workmen and their services has to

be regularized by the respondent management. The

respondent management instead of regularization the

services of the petitioners has orally terminated the

services which is against the principle, of natural

justice and violation of section 25-F of the Industrial

Disputes Act. The petitioners are not gainfully

employed in any establishment and their family are

facing untold hardships without employment and

earnings. The respondent has not paid any money

from the date of illegal termination till pending

disposal of the proceedings before the Labour Court.

The petitioners prays for reinstatement with

continuity of service, back wages and other attendant

benefits.

3. The brief averments in the counter filed by the

respondent are as follows:

The petitioners were appointed as temporary

operators by order, dated 04-11-2005. The petitioner

Sarala was clearly put on notice that her temporary

employment will not confer any right or entitlement

for claiming absorption against an regular vacancy.

The petitioners were informed that they are

temporary employee and not entitled for any benefits

or privileges extended to the regular employees of

the organisation. All the petitioners has accepted the

terms and conditions in the appointment order

without any dispute. Considering the fact that the

petitioners were temporary and did not have any Lien

over the employment. The respondent management

was under the bona fide impression that the

petitioners were not interested in offering their

temporary services any more. However, the

petitioners falsely raised a dispute stating that their

services were terminated without issue of any charge-

sheet and conducting enquiry are by paying

retrenchment compensation. The petitioners stopped

offering the services from 10-09-2015 on the own

volition. Hence, the question of paying retrenchment

compensation will not arise. The petitioners have not

approached the Conciliation Officer immediately to

get relief there was undue delay in approaching the

Conciliation Officer. All the petitioners stopped

reporting for duty on their own and there is no overt

Act of termination on the part of the respondent

management. The respondent denied that the

petitioners were working in full time and working in

a perennial natural of job. The claim of the petitioners

that they have been directly working in the

production Department as operators and doing

permanent job is totally false. The ESI and EPF

benefits are mandatory given for temporary

employees. The respondent management denied that

the petitioners are working in the production

Department of OBJ and IBJ section operators. The

respondent management denied the allegations that

the petitioners have worked for more than 240 days

in a period of 12 months and therefore, they are

deemed to be permanent employees on par with

regular employees. The respondent management

denied the allegation that the respondent stopped the

petitioner at the main gate on 10-09-2015 without any

termination order and without any statutory notice.

The respondent management denied the allegation

that they have committed an act in violation of

provisions of section 25-F of the Industrial Disputes

Act. The respondent reiterates that the petitioners

on their own stopped offering their services. The

respondent prays for dismissal of the petition.

4. On the petitioner side Vasanthi was examined as

PW1 and through her proof affidavit was filed, Ex.P1 to

Ex.P14 were marked. On the respondent side it is

represented that there is no oral evidence.

5. Points for consideration:

Whether the petitioners are entitled for

reinstatement with full back wages, continuity of

service and all other attendant benefits in the

respondent management?

6. In the evidence of PW1, she has deposed herself

and other petitioners were employed by the respondent

management from the year 2005 to 2010 and they

continued to work with the respondent management to

the entire satisfaction of the management. They have

worked in full time i.e., 8 hours in a day and their work

is perennial nature. The petitioners were working in the

production Department as an operators and was doing

perennial nature of work along with other permanent

workers. The respondent management is extended the

ESI and EPF benefits to the petitioners on par with

118

LA GAZETTE DE L’ETAT

[22 February 2022

permanent employees. The petitioners have been

directly working in the production Department of OBJ

and IBJ section as operators. The respondent instruct,

manage and control the petitioners and their supervision

and control extend to all stages of the operations from

beginning to end. The petitioners have worked more

than 240 days of service within a period of 12 calendar

months and hence, the petitioners are deem to be

permanent workman. The petitioners were in the service

of the respondent management for more than 5 years

and they have done the same work which was done by

the permanent employees and the petitioners are

entitled for regularization. The respondent management

without considering to regularize the petitioners has

stopped them at main gate on 10-09-2015 without

issuing any statutory notice or termination order. The

respondent management has acted in violation of

section 25-F of the Industrial Disputes Act and also

against the principles of natural justice. The respondent

management has utilized the service of the petitioners

for a long time and has not considered the welfare of

the employees and extended the benefits enumerated

under the labour laws. The petitioners are not gainfully

employed in any establishment and their families are

facing untold hardships without any employment and

earnings. The petitioners are prays for reinstatement

with back wages and other attendant benefits.

7. The learned Counsel for the petitioner submitted

that the petitioners were employed by the respondent

management in the services of the Rane Madras Limited.

The DGM (operations) of the respondent management

has issued Ex.P4, P7 and P14 appointment orders to the

petitioners. The petitioners were also provided with ESI

and EPF benefits on par with other permanent

employees. In the appointment order issued by the

respondent management it is mentioned that they were

appointed as temporary operator trainee. It is further

stated in the appointment orders that after the

completion of training period, the employment will

automatically comes to an end. All the petitioners were

given monthly salary slips and the salary slips were

marked as Ex.P5, P8, P10 and P13. All the petitioners

were worked for 8 hours per day in all working days

and they have completed 240 days of work in each year

ever Since, the date of their appointment. All the

petitioners were put in more than ten years of service

in the respondent management and they were working

in the production Department of OBJ and IBJ section

as operator and doing the perennial nature of work. The

respondent management has continuously engaged

them even after the initial period of training and they

were engaged in doing the routine work as done by the

permanent employees. The respondent management is

in effective control of the petitioners work from the

beginning till the end and their exists employer and

employee relationship.

8. The learned Counsel for the petitioner submit that

the petitioners were stopped at the main gate without

issuance of statutory notice or without conducting any

domestic enquiry. It is further contended that the

respondent management has falsely alleged that the

petitioners on their own volition has left the services

of the respondent management and hence, the

respondent management has not issued any statutory

notice or domestic enquiry. Moreover, according to the

respondent the petitioners are only temporary employee.

The learned Counsel for the petitioner has invited this

Court attention to the definition of workman under

section 2(s) of the Industrial Disputes Act “workman”

means any person (including an apprentice) employed

in any industry to do any manual, unskilled, skilled

technical, operational, clerical or supervisory work for

hire or reward, whether the terms of employment be

express or implied and for the purposes of any

proceeding under this Act in relation to an industrial

dispute, includes any such person who has been

dismissed, discharged or retrenched in connection with,

or as a consequence of that dispute, or whose

dismissal, discharge or retrenchment has led to that

dispute.

9. In S.K. Mani vs. Corona Sahu Company Limited

and other our Hon’ble Apex Court held “the designation

of an employee is not of much importance and what is

important is the nature of duties being performed by

him. The above Judgment of Hon’ble Apex Court was

confirmed by the later Judgments of Hon’ble Apex

Court in Ananda Bazaar case “If we accept the

contention of the Learned Senior Counsel for the

appellant that once a persons accepts an appointment

order he cannot challenge the designation mentioned

in that order then the employer can always exploit the

workers by giving them designation as apprentice

though in fact taking regular work from them. This

would be contrary to the whole approach of Industrial

Law and hence, we cannot accept this submission”.

10. The learned Counsel for the petitioner further

submit that whether employee is a permanent employee

or temporary employee has to be decided by the nature

of duty performed by such employee. It is submitted

by the learned Counsel for the petitioner that the

petitioners are engaged in production Department and

their work was managed and supervised by the

respondent from beginning to end.

119

22 February 2022]

LA GAZETTE DE L’ETAT

11. The learned Counsel for the petitioner submit

that there was no training imparted to the petitioners

in their long services with the respondent. There was

also no Trade Apprentices Training available in the

respondent factory. It is further contended that the

respondent management has not given licence or

permission to impart training to the non-technical

worker who are not possessing adequate technical

qualification. Whether, an employee is a worker or a

trainee has to be determined by the nature of works

attended by the employee as well as from the control

of the employer from time to time over the work of the

employee. In this respect the learned Counsel for the

petitioner has invited the attention of this Court to the

Judgment of Hon’ble High Court, Gujarat reported in

2002 (1) LLN 1090 in which the Hon’ble Gujarat High

Court held “if the agreement of the apprentice of

lineman as contract of apprenticeship was not registered

and no training was obtained by the apprentice, then

he has been considered as the workman within the

meaning of section 2 (s) of the I.D. Act, 1947 and

non-observance of the mandatory provisions of section

25-F of the Act makes the termination illegal. She also

submitted that the Labour Court has rightly held that

section 25-F has not been complied with by the

petitioner and therefore, the workman entitled to

benefits under section 25-F and that is how the order,

of termination rightly held to be illegal and void ab initio

and therefore, the Labour Court has not committed error

and hence, no interference of this Court is called for

the interest of justice”.

12. The learned Counsel for the petitioner submit

that the employees are not equal bargaining position

that the employer and the employees are unable to

withstand to the various tactics adopted by the

management. The learned Counsel for the petitioner has

invited this Court attention to the Judgment of Hon’ble

Supreme Court of India reported in CDJ 2011 SC 832

“Labour statutes were meant to protect the employees/

workmen because, it was realized that the employers

and the employees are not on an equal bargaining

position. Hence, protection of employees was required

so that they may not be exploited. However, this new

technique of subterfuge has been adopted by some

employers in recent years in order to deny the rights of

the workmen under various labour statues by showing

that the concerned workmen are not their employees,

but, are the employees/workmen of a contractor, or that

they are merely daily wage or short term or casual

employees when in fact they are doing the work of

regular employees”.

13. All the petitioners were unanimously contended

that they were stopped at the main gate by the

respondent management without issuance of statutory

notice and without following the principles of natural

justice. On the other hand, the respondent has

contended that the petitioners left the services of the

company and their own and the respondent is nothing

to do with the absence of the petitioners, the petitioners

were served in the respondent company for more than

5 years. In such a situation it is duty of the respondent

to prove abandonment. In this respect, the learned

Counsel for the petitioner has invited the attention of

this Court to the Judgment of Hon’ble High Court of

Bombay reported in CDJ 1987 Bombay High Court 472

held “what strikes us more is the reasoning of the

Labour Court. Since, it is the case of the respondent

No. 1 company that the workman had abandoned the

service, it was for the company to prove that there was

such abandonment. However, the Labour Court has

argued that since, the workman had not given any notice

to the company after his alleged removal, it should be

held that it was he who had refused to join the service,

and that he had no intention to worh in the factory. We

have therefore, no hesitation in holding that the finding

recorded by the Labour Court is prima-facie bad in law

and the order of the Labour Court should be set aside”.

14. The respondent management has initially

appointed the petitioners as temporary operator training

for a specific period. However, the employment of the

petitioners were extended beyond the period of training

and they were in the services of the respondent

management for more than 5 years. The learned Counsel

for the petitioner contended that the termination of the

petitioners is nothing but retrenchment within the

meaning of section 2(oo) of the Industrial Disputes Act

and the respondent ought to have followed the

mandatory requirements of the section 25(F) of the

Industrial Disputes Act. In this respect, it is appropriate

to quote the decision of the Hon’ble Supreme Court

reported in 2011 (3) LLJ (SC) 1 : 2011 (LAB (IC) 2799

(Devinder Singh v. Municipal Council, Sananur)

“wherein, the Hon’ble Supreme Court held that the

source of employment, the method of recruitment, the

terms and conditions of the employment/contract of

service, quantum of wage/pay and the mode of payment

are not at all relevant for deciding, whether or not a

person is a workman within the meaning of section 2(S)

of the Act”.

15. The learned Counsel for the petitioner submit

that the respondent management without regularising

the services of the petitioner has simply thrown away

them from the services of the respondent management

120

LA GAZETTE DE L’ETAT

[22 February 2022

without following the provisions of section 25(F) of the

Industrial Disputes Act. In this respect, the learned

Counsel for the petitioner has invited this Court

attention to the decision reported in 2011-III-LLJ-1 (SC)

(Devinder Singh v. Municipal Council, Sananur), 2015

(6) SCC 321 (Ajaypal Singh v. Haryana Warehousing

Corporation) and 2009 (8) SCC 556 (Maharashtra State

Road Transport Corporation and another v. Casteribe

Rajya Parivahan Karmchari Sanghatana). The important

observations, made in the later cited judgments read

thus;

“The Industrial Disputes Act, 1947 is a beneficial

legislation enacted with an object for settlement of

industrial disputes and for a certain other purpose.

If, any part of the provisions of section 25F is

violated and the employer thereby, resorts to unfair

trade practice with the object to deprive the workman

with the privilege as provided under the Act, the

employer cannot justify such an action by taking a

plea that the initial appointment of the employee was

in violation of Articles 14 and 16 of the Constitution

of India.

“We have noticed that Industrial Disputes Act is

made for settlement of industrial disputes and for

certain other purposes as mentioned therein. It

prohibits unfair labour practice on the part of the

employer in engaging employees as casual or

temporary employees for a long period without giving

them the status and privileges of permanent

employees”.

16. All the petitioners were worked for more than 240

days in each calendar year ever since, date of entry into

service hence, they have the protection under section

25-F of the Industrial Disputes Act. The learned Counsel

for the petitioner has invited this Court attention to the

Judgment rendered by Hon’ble Apex Court reported in

2003(4) LLN 425 SC (Uttar Pradesh Drugs and

Pharmaceutical Company Limited vs. Ramanuj Yadav and

others relied on by the Counse1 for the management is

extracted hereunder:

“The decision in the case on Mohan Lal does not

lay down that if, a workman had worked for more than

240 days in any number of years and if, during the

year of his termination, he had worked for the said

number of days, he would not be entitled to the

benefit of S.25 B. The question with which we are

concerned was not under consideration in Mohan Las

case. If, the view-point propounded by the management

is accepted, then in every year the workman would

be required to complete more than 240 days. If, in

anyone year the employer gives him actual work for

less than 240 days, the service of the workman can

be terminated without compliance of S.6N of the UP

Act, despite his having worked for number of years

and for more than 240 days in each year except the

last. Such, an intention cannot be attributed to the

UP Act.”

“From the above decision, the Apex Court makes

it clear that Section 25-B(2)(a) of the I.D. Act protects

the workman who rendered more than 240 days of

service in any of the years preceding the 12 months

from the date of the termination, but, failed to render

240 days of service in the last 12 months preceding

the date of termination”. “I have therefore, no

hesitation to hold that the termination of the

petitioner is illegal and void ab initio. The Award of

the Labour Court holding otherwise is erroneous and

is liable to be set aside.

17. The learned Counsel for the petitioner has invited

the Court attention to the judgment of Constitution

Bench of Hon’ble Apex Court in D.K. Yadav vs. J.M.A.

Industries Limited reported in 1993 (3) SCC 259. Para 4

of the said Judgment is extracted hereunder:

4. In Punjab Land Development and Reclamation

Corporation Limited vs. Presiding Officer, Labour

Court the Constitution Bench considered the scope

of the word “retrenchrnent” defined by Section 2(oo)

and held in para 71 at page 716 that “analysing the

definition of retrenchment in Section 2(00) we find

that termination by the employer of the service of a

workman would not otherwise have covered the cases

excluded in clauses (a) and (b) namely, voluntary

retirement and retirement on reaching the stipulated

age of retirement or on the grounds of continued ill

health. There would be no violational element of the

employer. Their express exclusion implies that those

would otherwise have been included”. In para 77 at

page 719 it was further held that right of the employer

and the contract of employment has been effected

by introducing Section 2(oo). The contention of the

management to terminate the service of an employee

under the certified standing orders and under the

contracts of employment was negatived holding that

the right of the management has been affected by

introduction of Section 2 (oo) and Section 25-F of

the Act. The second view was that the right as such

has not been affected or taken away, but, only an

additional social obligation has been imposed on the

employer to abide by the mandate of Section 25-F of

the Act to tide over the financial difficulty which

subseres the social policy. This Court relied on the

maxim-Stat pro ratione valuntas populi; the will of the

people stands in place of a reason. In paragraph 82

121

22 February 2022]

LA GAZETTE DE L’ETAT

at page 722 this Court concluded that the definition

in Section 2 (00) of the Act of retrenchment means

“the termination by the employer of the service of a

workman for any reason whatsoever except those

expressly excluded in the section”. Same view was

taken by three Benches of three Judges of this Court

in State Bank of India v. Shri N. Sundara Money;

Delhi Cloth & General Mills Limited v. Shamblu Nath

Mukherjee and Hindustan Steel Ltd. V. Presing

Officer, Labour Court and two Benches of two Judges

in L. Robert D’Souza v. Executive Engineer, Souther

Railway and H.D. Singh v. Reserve Bank of India

took the same view. Therefore, we find force in the

contention of Shri R.K. Jain, the learned Senior

Counsel for the appellant that the definition

“retrenchmen” in Section 2 (oo) is a comprehensive

one intended to cover any action of the management

to put an end to the employment of an employee for

any reason whatsoever”.

18. The learned Counsel for the respondent submit

that the petitioners were all temporary workers of the

respondent management. The petitioners working in the

respondent management for a long period of time would

not entitled them for confirmation of their employment.

It was the contention of the petitioners that the

petitioner has terminated the services of the petitioners

but, in fact the petitioners left the services of the

respondent on their own. The petitioners contended that

the respondent orally terminated the services on

10-09-2015, but, they have filed petitioner for

conciliation before the Labour Officer (Conciliation) on

07-08-2017 which is almost after 2 years. The petitioners

failed to file the failure report submitted by the Labour

Officer (Conciliation), since, the same was not favour

of them. In the appointment order of the petitioners it

is clearly stated that the nature of appointment is

temporarily in nature and the same did not confer any

right or entitlement for claiming absorption against any

regular vacancy. All the petitioners stopped offering the

temporary service from 10-09-2015. The respondent has

not initiated any disciplinary action against the

petitioners since, they are only temporary workers. After

10-09-2015 for the first time, the petitioner traight away

raised the dispute before the Labour Officer

(Conciliation) on 07-08-2017 after the delay of 2 years.

19. The learned Counsel for the respondent argued

that the petitioners have not produced any material

before this Court to substantiate in the claim of

regularization. The petitioners were only appointed as

temporary worker and they possess no right of

reinstatement. In this respect, the Learned Counsel for

the respondent has invited the attention to the Court

in the judgment of Hon’ble Apex Court reported in 2005

(11) SCC Page 229-Chief Engineer (Construction) and

Keshava Rao (Dead) by Legal Representatives and

relevant portions are Para No. 15 and 16 is as follows:

“We are of the view that this appeal should be

allowed. The Labour Court recorded two crucial

findings of fact namely, that the respondent was

engaged as a casual labourer in connection with

project work and secondly, that he had abandoned

his services and the allegation that he was

prevented from joining his duties on 01-11-1977 was

not true. These were findings of fact recorded by the

Tribunal on the basis of evidence on record. The

muster-roll, no doubt, supported the case of the

appellant that after 01-11-1977 he did not report for

duty. We cannot lose sight of the fact that thereafter

till 04-04-1979 the respondent did nothing to assert

his right of reinstatement. The delay of a year and 5

months in issuing a notice appears to us to be

significant. Apart from this no evidence was led by

the respondent-workman that he had made any effort

to seek reinstatement that he had made any effort to

seek reinstatement or complained against the action

of the management to anyone. There is no material

whatsoever to suggest that he had made a grievance

about it before any authority or before the workers

Union”.

20. The learned Counsel for the respondent submit

that the petitioners miserably failed to prove that the

respondent orally terminated their services on

10-09-2015. The petitioners has not written any letter

seeking regularization by the management. Only legal

contention of the petitioners are that they have put in

240 days of services in a year and therefore, they are

deemed to be permanent as per the provisions of

Industrial Disputes Act any person who completed the

240 days in a year is only entitled for retrenchment

compensation as mentioned in section 25(F) of the

Industrial Disputes Act. Since, the petitioners stopped

reporting duty from 10-09-2015, the question of

regularization of their services and paying retrenchment

compensation does not arise.

21. The learned Counsel for the respondent invited

the attention of this Court to the Judgment of Hon’ble

Apex Court in Employees’ State Insurance Corporation

v. Tata Engg. & Co. reported in 1976-I-LLJ-81 wherein,

the Hon’ble Apex Court held “The heart of the matter

in apprenticeship is therefore, the dominant object and

intent to impart on the part of the employer and to

accept on the part of the other person learning under

certain agreed terms. That certain payment is made

during the apprenticeship, by whatever name called,

and that the apprentice has to be under certain rules of

122

LA GAZETTE DE L’ETAT

[22 February 2022

discipline do not convert the apprentice, to a regular

employee under the employer. Such a person remains a

learner and is not an employee.

To my mind, the aforesaid observations, clearly lay

down the foundation of the relationship between the parties.

In my view, whether the trainee is a mere trainee under

the personal contract (de hors the Apprentices Act) or

is an apprentice within the meaning of the said Act,

makes no difference. So long as a trainee is engaged

by the employer for the purpose of imparting training,

this dominant purpose and object, and the basis

intention behind such an engagement, cannot be

frustrated by refusal of registration of a contract under

the said Act”.

22. The learned Counsel for the respondent has

invited this Court attention to the Judgment of Hon’ble

Apex Court reported in (2008) 2 Supreme Court Cases

552 Chandra Shekhar Azad Krishi Evam Prodyogiki

Vishwavidyalaya vs. United Trades Congress and

Another held “A feeble attempt, however, was made by

the Learned Counsel appearing on behalf of respondent

2 to state that he had been appointed against a

permanent vacancy. In his written statement, he did not

raise any such contention. It does not also appear from

the records that any offer of appointment was given to

him. It is inconceivable that an employee appointed on

a regular basis would not be given an offer of

appointment or shall not be placed on a scale of pay.

We therefore, have no hesitation in proceeding on the

premise that Respondent-2 was appointed on daily

wages. The Industrial Court in passing the impugned

Award proceeded on the premise that Respondent-2 had

been working for more than 240 days continuously from

the date of his engagement. It is now trite that the same

by itself does not confer any right upon a workman to

be regularized in service. Working for more than 240

days in a year was relevant only for the purpose of

application of Section 6-N of the U.P. Industrial

Disputes Act, 1947 providing for conditions precedent

to retrench the workmen. It does not speak of

acquisition of a right by the workman to be regularized

in service”.

23. The learned Counsel for the respondent submit

that the petitioners were abandoned the services of the

respondent without any intimation. The respondent

need not issue statutory notice nor proceed with

domestic enquiry since, the services are purely

temporary in nature. In this respect the learned Counsel

for the respondent has invited this Court attention to

the judgment of Hon’ble Delhi High Court in 2000 (3)

L.L.N. 960 Kanda Swamy and another vs. Presiding

Officer, Industrial Tribunal III, and another held “In so

far as the question of abandonment is concerned, the

workmen alleged that their services were terminated. On

the other hand, it was stated by the management

witness that after a particular date, as mentioned above,

these workmen did not report for duties. It is also stated

by him that these workmen did not submit any leave

application nor medical certificate on the dates on which

they remained absent and their names are not entered

into the muster-rolls prepared by the management. Their

names, according to witness, do not appear in the

muster-roll with effect from 14 November 1988 and 14

October 1988 respectively. It is stated by him in his

evidence that as per the practice on a date when a

particular daily-rated muster-roll employee does not turn

up, his name is not entered into muster-roll when the

muster-roll is commenced. After discussing the

respective evidence of both the parties in the impugned

Award, the Labour Court has accepted the version of

the MCD. There is no reason to hold that the finding

of the Labour Court in this respect is perverse.

Although, it was not required to do so strictly, still I

summoned the record and went through the evidence.

I, observed that the view taken by the learned Labour

Court is a possible view which could be taken after

analysing the evidence of both the parties”.

24. This Court has carefully considered the rival

submissions. The petitioners worked with the

respondent management for more than 5 years. Though

initially the were employed as temporary operator

trainee for a limited period, their services were

periodically extended upto the date of termination.

Since, the nature of job is a perennial nature. The claim

of the petitioners that they were worked in the

production Department and engaged in production work

along with other permanent employees was not

negatived by the management by production of relevant

records. There was no records produced by the

respondent management for offering training to all the

petitioners who were not technically qualified. The

petitioners have contended that the work was monitored

and supervised by the respondent management from the

beginning till the end and one can easily understand

the existing relationship of employer and employee

between the respondent and the petitioners.

25. In Mcleod and Co. v. Sixth Industrial Tribunal,

West Bengal. 1958 AIR Calcutta 273 wherein, the Hon’ble

Calcutta High Court held “whether a person was a

workman within the definition of the Industrial Disputes

Act would be the very foundation of the jurisdiction of

the Industrial Tribunal. The Court further observed that

in order to determined the categories of service

indicated by the use of different words like ‘supervisor’,

123

22 February 2022]

LA GAZETTE DE L’ETAT

‘managerial’ and ‘administrative’, it was not necessary

to import the notions of one into the interpretation of

the other. The words such as ‘supervisory’, ‘managerial’

and ‘administrative’ are advisedly loose expressions

with no rigid frontiers and too much subtlety should

not be used in trying to precisely define where

supervision ends and management begins or

administration starts. For that would be theoretical and

not practical. It has to be broadly interpreted from a

common sense point of view where tests will be simple

both in theory and in their application. The learned

Judge further observed that a supervisor need not be a

manager or an administrator and a supervisor can be a

workman so long as he did not exceed the monetary

limitation indicated in the section and a supervisor

irrespective of his salary is not a workman who has to

discharge function mainly of managerial nature by

reasons of the duties attached to his office or of the

powers vested in him”.

26. A perusal of definition workman shows that it

makes no difference between permanent employee and

a temporary employee or a casual employee. The said

view has gain support from the Judgment, Chief

Engineer (Irrigation) Chepauk vs. N. Nadesan, 1973 II

LLJ 446 and Management of Crompton Engineering &

Co. vs. Presiding Officer, Additional Labour Court,

reported in 1974 I LLJ 459 (Madras). It is clear that even

if a person is a casual employee they will be entitled to

the benefit of the provision of section 25F of the

Industrial Disputes Act, 1947, if he satisfies the

requirements of this provision.

27. All the petitioners were worked for more than 240

days in a year ever since, their date of appointment and

their work is perennial in nature. Hence, all the

petitioners are entitled to be protected as per the

mandatory provisions of section 25(F) of the Industrial

Disputes Act. All the petitioners concretely come under

the purview of workmen as defined under section 2 (S)

of the Industrial Disputes Act as such the termination

of the petitioners without following the principles of

natural justice and the mandatory provisions of section

25(F) of the Industrial Disputes Act, is contrary to law.

The evidence of PW.1 make clear that the petitioners

are not in gainful employment in any other

establishment from the date of termination till date.

28. From the discussion above made, this Court is

of the considered opinion that the non-employment of

the petitioners in the respondent management is not

justified. The petitioners were not in gainful employment

from the date of their termination till this date. This

Court deem it fit to direct the respondent to reinstate

the petitioners with 50% of back wages from the date

of their termination till date of their reinstatement.

29. In the result, the petition is partly allowed. The

respondent is directed to reinstate the petitioners within

a period of 6 weeks from the date of this Award. The

respondent is further directed to pay 50% of the back

wages with other attendant benefits to the petitioners

within a period of 6 weeks from the date of this Award.

No costs.

Dictated to Stenographer, transcribed by him,

corrected and pronounced by me in the open Court, on

this 26th day of November, 2021.

R. BHARANIDHARAN,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.

List of petitioner’s witness:

PW.1

— 01-10-2019

Vasanthi

List of petitioner’s exhibits:

Ex.P1

— 07-08-2017 Xerox copy of the letter

submitted by the petitioners

before the Labour Officer

Conciliation.

Ex.P2

— 01-04-2010 Xerox copy of the Identity

Card issued by the respondent

to the 1st petitioner valid till

01-04-2010.

Ex.P3 —

Xerox copy of the identity

card issued by the ESIC to

the 1st petitioner vide I.P.

No. 5517500264.

Ex.P4

— 04-1l-2005 Xerox

copy

the

Appointment order issued by

the respondent management

to the 1st petitioner.

Ex.P5 —

Xerox copy of the various

Salary Bills (4 Nos.) issued by

the respondent management

to the 1st petitioner.

Ex.P6 —

Xerox copy of the Identity

Card issued by the respondent

to the 2nd petitioner valid

till 30-12-2010.

Ex.P7

— 01-06-2011 Xerox

copy

the

Appointment Order issued by

the respondent management

to the 2nd petitioner.

124

LA GAZETTE DE L’ETAT

[22 February 2022

Ex.P8 —

Xerox copy of the Salary Bill

issued by the respondent

management to the 2nd

petitioner.

Ex.P9 —

Xerox copy of the Identity

Card issued by the ESIC to

the 3rd petitioner vide I.P.

No. 5518706682.

Ex.P10 —

Xerox copy of the Salary Bill

issued by the respondent

management to the 3rd

petitioner.

Ex.P11 —

Xerox copy of the Identity

Card issued by the respondent

to the 4th petitioner valid till

19-11-2008.

Ex.P12 —

Xerox copy of the Identity

Card issued by the ESIC to

the 4th petitioner vide I.P.

No. 5517501713.

Ex.P13 —

Xerox copy of the various

Salary Bills (2 Nos.) issued by

the respondent management

to the 4th petitioner.

Ex.P14 — 0l-06-2011 Xerox

copy

the

Appointment Order issued by

the respondent management

to the 4th petitioner.

List of respondent’s witnesses: NIL

List of respondent’s exhibits: NIL

R. BHARANIDHARAN,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.

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