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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.
9
Poudouchéry
Mardi
1
Mars
2022 (10 Phalguna 1943)
No.
Puducherry
Tuesday
1st
March
2022
ÿ√VÚ·¶¬ÔD
SOMMAIRES
CONTENTS
√¬ÔD
Page
Page
ÿ>Va_ ¿]\[≈› yÏ©AÔ^ ..
144
Sentence arbitr al du Travail
.. 144
Award of the Labour Court .. 144
de Tribunal.
∂´∑ ∂§s¬ÁÔÔ^
..
152
Notifications du Gouvernement
.. 152
Government Notifications
.. 152
Œ©√ ∂§s©AÔ^
..
161
Avis d’ appel d’ offres
.. 161
Tender Notice
.
161
g√›>V™ WÆk™∫Ô^
..
163
Etablissements dangereux
.. 163
Dangerous Establishments
..
163
ƒVu≈§¬ÁÔÔ^
..
164
Annonces
.. 164
Announcements
..
164
144
LA GAZETTE DE L’ETAT
[1 March 2022
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 7/Lab./AIL/T/2021,
Puducherry, dated 07th January 2022)
NOTIFICATION
Whereas, an Award in I.D (L) No. 50/2017, dated
26-11-2021 of the Industrial Tribunal-cum-Labour Court,
Puducherry, in respect of the Industrial Dispute
between Tmt. Vijayalakshmi, Nithiya, Devaki, Monika,
Malathi and Thulasiyammal, against the Management
of M/s. Rane (Madras) Limited, Thirubuvanai,
Puducherry, over reinstate the petitioners with full back
wages, continutity 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. 50/2017
in
C.N.R. No. PYPY060000852017
Selvi/Tmt.
1. Vijayalakshmi,
No. 25, Mariamman Koil Street,
Ramji Nagar, Madukarai,
Puducherry.
2. Nithiya,
No. 24, Mariamman Koil Street,
Sorappoor, Veeranam and Post,
Villupuram, Tamil Nadu.
3. Devaki,
No. 72, Main Road,
Sorappoor, Veeranam and Post,
Villupuram, Tamil Nadu.
4. Monika,
No. 39, Main Road,
Sorappoor, Veeranam and Post,
Villupuram, Tamil Nadu.
5. Malathi,
No. 8, First Cross Street,
Ramji Nagar, Madukarai,
Puducherry.
6. Thulasiyammal,
No. 3/5, Puthu Nagar,
Kongampattu Village,
Rampakkam Post,
Villupuram, Tamil Nadu.
. . 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 is a petition 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.
2. Brief averments made in the claim Statement of
the petitioner:
The petitioners namely, Selvi/Tmt. Vijayalakshmi
Nithya, Devaki, Monika, Malathi and Thulasiyammal,
were joined with the respondent company on 15-11-2007,
10-06-2010, 01-04-2013, 01-06-2010, 21-11-2007 and
01-04-2011 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 15-09-2015 the respondent
management has not permitted the petitioner to do their
145
1 March 2022]
LA GAZETTE DE L’ETAT
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 4 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
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 2007. 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 instructed, 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
service which is against the principles 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 averment in the counter filed by the
respondent are as follows:
The petitioners were appointed as temporary
operators by order, datd 01-06-2011. The petitioner
Tmt. Vijayalakshmi, was clearly put on notice that her
temporary employment will not confer any right or
entitlement for claiming absorption against any
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 14-09-2015 on the own
volition. Hence, the question of paying retrenchment
comensation 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 15-09-2015 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 Vijayalakshmi was examined
as PW.1 and through her proof affidavit was filed, Ex.P1
to Ex.P22 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 PW.1, she has deposed herself
and other petitioners were employed by the respondent
management from the year 2007 to 2012 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
146
LA GAZETTE DE L’ETAT
[1 March 2022
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
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 15-09-2015 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 petitioners 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, P8 and P17 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, P9, P11, P14, P18 and P21. 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 operetor 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 conducted domestic enquiry. Moreover,
according to the respondent the petitioners are only
temporary employee. The learned Counsel for the
petitioners have 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 others 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 Judgment 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 call 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
147
1 March 2022]
LA GAZETTE DE L’ETAT
petitioners are engaged in production Department and
their work was managed and supervised by the
respondent from beginning to end.
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
workers who are not possessing adequate technical
qualification. Whether an employee is a worker or a
trainee has to be determined by the nature of work
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 of 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 work 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 vs. 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 petitioners submit
that the respondent management without regularising
the services of the petitioners have simply thrown away
them from the services of the respondent management
without following the provisions of section 25(F) of the
148
LA GAZETTE DE L’ETAT
[1 March 2022
Indusrial 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 vs. Municipal Council, Sananur), 2015
(6) SCC 321 (Ajaypal Singh vs. Haryana Warehousing
Corporation) and 2009 (8) SCC 556 (Maharashtra State
Road Transport Corporation and another vs. 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 petitioners have invited this Court
attention to the Judgment rendered by Hon’ble Apex
Court reported in 2003(4) LLN 425 SC (Uttar Pradesh
Drugs and Pharmaceuticals Company Limited vs.
Ramanuj Yadav and others relied on by the Counsel 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 petitioners have
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 ‘retrenchment’ defined by section 2(oo)
and held in para 71 at page 716 that “analysing the
definition of retrenchment in section 2(oo) 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
subserves 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 at page 722 this Court concluded that the
definition in section 2 (oo) of the Act of retrenchment
149
1 March 2022]
LA GAZETTE DE L’ETAT
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 vs. Shri N. Sundara
Money; Delhi Cloth and General Mills Limited vs.
Shamblu Nath Mukherjee and Hindustan Steel
Limited vs. Presiding Officer, Labour Court and two
Benches of two Judges in L. Robert D’Souza vs.
Executive Engineer, Southern Railway and H.D. Singh
vs. 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 “retrenchment” 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
petitioners have 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 15-09-2015, but, they have filed petitioner
for conciliation before the Labour Officer (Conciliation)
on 26-10-2015. 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
15-09-2015. The respondent has not initiated any
disciplinary action against the petitioners since, they
are only temporary workers. After 15-09-2015 for the first
time, the petitioners straight away raised the dispute
before the Labour Officer (Conciliation).
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
15-09-2015. 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 15-09-2015, 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
discipline do not convert the apprentice, to a regular
employee under the employer. Such a person remains
a learner and is not an employee.
150
LA GAZETTE DE L’ETAT
[1 March 2022
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 service 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
workman 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 petitioner worked with the respondent
management for more than 5 years. Though, initially
they were employed as temporary operator trainee for a
limited period their service were periodically extended
up to 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. vs. 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’, ‘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
151
1 March 2022]
LA GAZETTE DE L’ETAT
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 25-F 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 makes 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 the 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
Vijayalakshmi
List of petitioner’s exhibits:
Ex.P1
— 02-11-2016
X e r o x c o p y o f t h e
&
Conciliation call letters sent
05-12-2016
by the Labour Officer to the
petitioners.
Ex.P2 —
Xerox copy of the Identity
Card issued by the respondent
to the 1st petitioner valid till
29-12-2010.
Ex.P3 —
Xerox copy of the Identity
Card issued by the ESIC to
the 1st petitioner vide I.P.
No. 5518805109.
Ex.P4
— 01-06-2011 Xerox
copy
of
the
Appointment order issued
by the respondent management
to the 1st petitioner.
Ex.P5 —
Xerox copy of the various
Salary Bills (12 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 01-05-2012.
Ex.P7 —
Xerox copy of the Identity
Card issued by the ESIC to
the 2nd petitioner vide I.P.
No. 5518705909.
Ex.P8
— 01-06-2011 Xerox
copy
of
the
Appointment order issued
by the respondent management
to the 2nd petitioner.
152
LA GAZETTE DE L’ETAT
[1 March 2022
Ex.P9 —
Xerox copy of the various
Salary Bills (6 Nos.) issued
by the respondent management
to the 2nd petitioner.
Ex.P10 —
Xerox copy of the Identity
Card issued by the ESIC to
the 3rd petitioner vide I.P.
No. 5518968760.
Ex.P11 —
Xerox copy of the various
Salary Bills (3 Nos.) issued
by the respondent management
to the 3rd petitioner.
Ex.P12 —
Xerox copy of the Identity
Card issued by the respondent
to the 4th petitioner valid till
01-06-2012.
Ex.P13 —
Xerox copy of the Identity
card issued by the ESIC to
the 4th petitioner vide I.P.
No. 5518705907.
Ex.P14 —
Xerox copy of the various
Salary Bills (4 Nos.) issued
by the respondent management
to the 4th petitioner.
Ex.P15 —
Xerox copy of the Identity
Card (2 Nos.) issued by
the respondent to the
5th petitioner valid till
20-11-2008 and 30-03-2011.
Ex.P16 —
Xerox copy of the Identity
Card issued by the ESIC to
the 5th petitioner vide I.P.
No. 17501708.
Ex.P17 — 01-06-2011 Xerox
copy
of
the
Appointment Order issued
by the respondent management
to the 5th petitioner.
Ex.P18 —
Xerox copy of the various
Salary Bills (6 Nos.) issued
by the respondent management
to the 5th petitioner.
Ex.P19 —
Xerox copy of the Identity
Card
issued
by
the
respondent
to
the
6th
petitioner
valid
till
31-03-2012.
Ex.P20 —
Xerox copy of the Identity
Card issued by the ESIC to
the 6th petitioner vide I.P.
No. 5518828197.
Ex.P21 —
Xerox copy of the various
Salary Bills (2 Nos.) issued
by the respondent management
to the 6th petitioner.
Ex.P22 — 26-10-2015 Dispute raised by the
petitioners
before
the
Labour Officer (Conciliation),
(6 Nos.).
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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