Amflºƒˆ \VWÈ ∂´E>µ
La Gazette de L' État de Poudouchéry
The Gazette of Puducherry
∂]ÔV´D ÿ√u≈ ÿkπX|
Publiée par Autorité
Published by Authority
Registered with the Registrar
of Newspapers for India
under No. 10410
Registered No. PY/44/2021-23
[607]
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Amflºƒˆ
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2022 }
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16 {
No.
33
Poudouchéry
Mardi
16
Août
2022 (25 Sravana 1944)
No.
Puducherry
Tuesday
16th
August
2022
ÿ√VÚ·¶¬ÔD
SOMMAIRES
CONTENTS
√¬ÔD
Page
Page
ÿ>Va_ ¿]\[≈› yÏ©AÔ^..
608
Sentence arbitral du travail
.. 608
Award of the Labour Court
.. 608
de tribunal.
∂´∑ ∂§s¬ÁÔÔ^
..
613
Notifications du Gouvernement
.. 613
Government Notifications
.. 613
g√›>V™ WÆk™∫Ô^
..
618
Etablissements dangereux
.. 618
Dangerous Establishments
..
618
ƒVu≈§¬ÁÔÔ^
..
619
Annonces
.. 619
Announcements
..
619
608
LA GAZETTE DE L’ETAT
[16 August 2022
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 118/AIL/Lab./T/2022,
Puducherry, dated 28th July 2022)
NOTIFICATION
Whereas, an Award in I.D. (L) No. 48/2018, dated
25-02-2022 of the Industrial Tribunal-cum-Labour Court,
Puducherry, in respect of the industrial dispute
between Thiru S. Murugaraj, No. 17, Mari Street, Keezha
Nedungadu, Karaikal, against the management of
M/s. Soundararaja Spinning Mills Limited, Nedungadu,
Karaikal, over reinstatement of the petitioner 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 23-5-1991, it is hereby directed by
the Secretary to Government (Labour) that the said
Award shall be published in the Official Gazette,
Puducherry.
(By order)
P. MUTHU MEENA,
Under Secretary to Government (Labour).
————
BEFORE THE INDUSTRIAL TRIBUNAL-CUM-
LABOUR COURT AT PUDUCHERRY
Present :Thiru R. BHARANIDHARAN, M.L.
Presiding Officer.
Friday, the 25th day of February, 2022.
I.D. (L) No. 48/2018
in
C.N.R. No. PYPY060000952018
S. Murugaraj,
No. 17, Mari Street,
Keezha Nedungadu, Karaikal.
. . Petitioner
Versus
The Management,
Soundararaja Spinning Mills Limited,
Nedungadu, Karaikal.
. . Respondent
This Industrial Dispute coming on 16-02-2022 before me
for final hearing in the presence of Thiru N. Ramar,
Representative for the petitioner and Thiruvalargal
G. Jagadharaj, C. Malathi Jagadharaj and N. Gopinath,
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 petitioner with full back wages, continuity
of service and all other attendant benefits.
2. Brief averments made in the claim Statement of
the petitioner:
The petitioner employee joined in the service of
the respondent establishment on 01-03-2013 and
worked in guarding section. He was paid salary of
` 6,500 per month. On 23-04-2018 as usual the
petitioner went to the company, but, the management
refused to give employment to him without assigning
any reasons. The petitioner represented to the
management for several times, but, the management
refused to give employment. Hence, the petitioner
raised industrial dispute before the Labour
Department on 09-08-2018. The Labour Department
has not taken any steps till date regarding
conciliation. The petitioner worked with respondent
management for more than 5 years. The respondent
management without any charges or enquiry or notice
refused employment to the petitioner which is
against section 25F of Industrial Disputes Act. The
petitioner is suffering without any employment to run
his family. The respondent management is duty
bound to reinstate the petitioner with continuity of
service and back wages.
3. The brief averments in the counter filed are as
follows :
The petitioner is a daily labourer and there is no
employer and employee relationship between the
petitioner and respondent. The petitioner was not
employed in respondent concern from 01-03-2013 as
stated by him. After, 2005 he worked as daily
labourer and attend duty then and there. He was not
a regular daily labour also. The petitioner is
permanently running glass works at Nedungadu
town. Domestic enquiry and dismissal order are not
mandatory to the petitioner since, he was daily
labourer. If, the petitioner would have regularly
attended duty, his services would have been
regularized. He was not even employed as temporary
worker. He is not a skilled worker. Since, the petitioner
was absent for about a month as a daily labourer, he
was not permitted to attend duty. Due to financial
609
16 August 2022]
LA GAZETTE DE L’ETAT
constraints and loss in the business, even permanent
employees are without any employment. Section 25-F
of the Industrial Dispute Act, will come into play only
in respect of permanent employee. The petitioner filed
the present petition when the conciliation
proceedings are pending and hence, the petition is
not maintainable.
4. Points for consideration :
Whether,
the
petitioner
is
entitled
for
reinstatement with back wages, continuity of service
and other attendant benefits in the respondent
organisation?
5. The petitioner Thiruvalar Murugaraj was examined
as PW.1 and his chief affidavit was filed before this
Court through PW.1 and Ex.P1 to Ex.P9 was marked.
In the evidence of PW.1, he has deposed that, he has
joined in the respondent Mills in guarding section on
01-03-2013 and has received a sum of ` 6,500 per month.
On 23-04-2018, when the petitioner went to attend third
shift in the respondent Mills, he was prevented from
attending the work without assigning any reasons. The
representations given by the petitioner was not
considered by the respondent management and he has
preferred a complaint dated 09-08-2018 before the
Labour Officer and thereby raised an industrial dispute.
Since, the Labour Officer has not taken any steps, the
petitioner has filed a complaint before this Court by
following the amended rule 2(A) of the Industrial
Disputes Act after the completion of 45 days. The
petitioner further submitted that he has worked for more
than 5 years in the respondent management sincerely
and without blemish. If at all, the petitioner was irregular
in attending his job certainly the management would
have taken disciplinary action against him. There is no
complaint against the petitioner in the respondent
management he further deposed that the respondent
management has given attendance card to the petitioner
in the year 2013. Since, the income from the calendar
frame shop is very meager the petitioner has obtained
loan from the Bank and he has received notice of
demand from the Banks for the repayment of loan
amount, since, the petitioner could not repaid the loan
amount within time. The respondent management has
not regularized the services of any employee for the
past six years hence, prayed for reinstatement with
continuity of service and back wages.
6. On the respondent side Thiruvalar S. Kamaraj,
Administrative H.R. Manager of the respondent
management, was examined as RW.l. The chief affidavit
of the RW.l was filed before this Court. Through him
Ex.R1 to R8 were marked. In the evidence of RW.1, he
has deposed that the petitioner was not joined in the
services of the respondent from 01-03-2013. He attended
the company after 2015 only as a casual labour with too
long intervals. The petitioner was very irregular in
attending the company. The petitioner services was not
regularized by the management and he was not a
permanent employee since, the petitioner is only a
casual labour. There is no need to conduct domestic
enquiry or to issue notice to him. RW.l further, deposed
that the petitioner is not a skilled labour and he does
not posses any special skill. The petitioner has not
attended the duty for more than one month and since he
was casual labour, he was orally terminated from
attending the duty. The company has huge loss and
financial crunches. In such a situation does not
encourage to stop the services of the casual labours.
The petitioner is only a casual labour and hence, he is
not entitled for the any benefits under the provisions of
section 25-F of the Industrial Disputes Act, 1947. The
petitioner has filed the petition to gain an illegal profit
from the management. The petition was filed by the
petitioner before the Conciliation report was given by
the Labour Officer. The petition was filed during the
pendency of Conciliation proceedings and the same is
not maintainable and the petitioner is not entitled to any
benefits as claimed in the petition.
7. The representative appeared for the petitioner in
his vibrant arguments submitted that on 01-03-2013, the
petitioner was appointed in guarding section of the
respondent management for a monthly salary ` 6,500 per
month. Without any justifiable reasons on 23-04-2018
the respondent management refused employment to the
petitioner. The petitioner raised an industrial dispute
before the Labour Officer, Karaikal, on 09-08-2018 and
thereafter, filed the case before this Court on 08-10-2018.
It was argued on the petitioner side that the petitioner
has joined the services of the respondent management
in the month November, 2013. Ex.P2 tickets No.0523 was
issued by the respondent management in which it was
mentioned that the petitioner attended duty for about
21 days. In Ex.P3 ESI Card the ESI Corporation has
mentioned the date of appointment of the petitioner as
01-07-2016. In Ex.P4 EPF member Passbook wherein,
opening balance was updated on 31-03-2015. The
representative for the petitioner further submitted that
Ex.P3 and Ex.P4 ESI Card and EPF Passbook would
clearly establish the fact that the petitioner was
employed as a regular worker with the respondent
management even before 31-03-2015.
8. The representative for the petitioner further
submitted that the petitioner was managing a small glass
photo frame shop at Nedungadu Village and he would
attend the shop during his leisure times. The petitioner
never compromised his duty with the respondent
management. It would be come to light from the
evidence attendance produced by the respondent.
610
LA GAZETTE DE L’ETAT
[16 August 2022
It is not correct to say that the petitioner was a regular
absentee and he attended his job for less than ten days
in a month. The petitioner was not gainfully employed
anywhere except looking after his mothers glass frame
work shop at his leisure time and only to pay the debts
arose out of managing the shop, the petitioner has
obtained loan from the Puducherry Bharathiya Grama
Bank, the Bank has also issued notice for recovery of
` 23,000 for the repayment of SME term Loan. Ex.P8
would go to show the notice issued by the Lok Adalat
for the settlement of ` 1,00,592 pending with Indian
Overseas Bank, Nedungadu. The representative for the
petitioner submit that the petitioner is directly working
in the management of the respondent in guarding
section. The respondent management has got
supervisor and control all the work of the petitioner and
he has directly received a salary from the respondent
management which clearly establish the employer and
employee relationship between the petitioner and the
respondent.
9. The learned Counsel for the petitioner submit that
the respondent management has employed the
petitioner for a period of 4 years and extracted maximum
work from the petitioner. After, exploiting the youthful
period of the petitioner has terminated in order to avoid
payment of higher wages to him. In this respect, the
learned Counsel for the petitioner invited the attention
of this Court to the Judgment of Hon'ble Apex Court
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 statutes 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.
This Court cannot countenance such practices any
more. Globalization/Liberalization in the name of growth
cannot be at the human cost of exploitation of workers".
10. The representative for the petitioner submitted
that the petitioner has worked with the respondent
management for a period of 240 days in each calendar
year for a period of more than 5 years and hence, the
petitioner is a workmen as a section 2(s) of the
Industrial Disputes Act and he is entitled to benefits of
section 25(F) of the Industrial Disputes Act as against
the respondent management.
11. The learned Counsel for the respondent submit
that at any stretch of imagination the petitioner cannot
be termed as employee of the respondent management.
He is only a casual labour attended the company at long
intervals without any regularity as per the Standing
Orders of the respondent company, if, a labour is absent
for more than one month his services can be
discontinued without assigning any reasons. The
learned Counsel for the respondent submit that since,
the petitioner is a casual labour is not entitled to any
benefits under section 25(F) of the Industrial Disputes
Act. The respondent is duty bound to pay ESI and EPF
contribution for casual labour also. The petitioner
cannot claim that he is a permanent employee of the
respondent management only on the basis of Ex.P3 ESI
Card and Ex.P4 EPF member passbook. The petitioner
was not provided with any appointment order and there
is no terms of agreement between the petitioner and the
respondent. Since, the petitioner was irregular and
warnings given by the management. The respondent has
decided to engage him as a casual labour thereafter.
12. The learned Counsel for the respondent submit
that the petitioner is running a profitable photo frame
shop in the name and style of Pushpa Glass Works and
the petitioner has admitted his signature in Ex.R1 and R2
receipts. The petitioner is in the habit of regularly attend
his glass frame business and only attend the
respondent company during his leisure time. The
respondent has clearly established that the petitioner
was in gainful employment, he is not entitled for any
benefits under the Industrial Disputes Act.
13. This Court has carefully considered the rival
submission that the petitioner stated that he was
attending the respondent company from 01-03-2013 but,
the respondent management submitted that the
petitioner was in employment only after 2015. On the
petitioner side the Token No. 0523 issued by the
respondent management was filed as Ex.P2 which was
issued during November, 2013. The issuance of Ex.P2
card was not denied by the respondent. Ex.P3 ESI Card
was registered on 10-08-2016 in which the date of his
appointment was mentioned as 01-07-2016. Ex.P4 EPF
member passbook was updated up to 31-03-2015
wherein, EPF subscription was continuously paid for
the year 2015-2016, 2016-2017 and 2017-2018 up to the
period of May, 2018. Ex.P3 and P4 documents go to
show that the petitioner was in regular services of the
respondent management.
14. The respondent has raised objection that during
the pendency of Conciliation proceedings the petitioner
has filed petition before this Court and hence, not
maintainable. In this respect, the Gazette Publication of
Puducherry, dated 11-03-2011 was marked as Ex.P5
wherein, section 2(A) stands amended "Section 2A of
the principal Act shall be numbered as sub-section (1)
thereof and after sub-section (1) as so numbered, the
following sub-sections shall be inserted, namely:–
611
16 August 2022]
LA GAZETTE DE L’ETAT
(2) Notwithstanding anything contained in
section 10, any such workman as is specified in
sub-section (I) may, make an application direct to the
Labour Court or Tribunal for adjudication of the
dispute referred to therein after the expiry of
forty-five days from the date he has made the
application to the Conciliation Officer of the
appropriate Government for conciliation of the
dispute and in receipt of such application the Labour
Court or Tribunal shall have powers and jurisdiction
to adjudicate upon the dispute, as if, it were a dispute
referred to it by the appropriate Government in
accordance with the provisions of this Act and all the
provisions of this Act shall apply in relation to such
adjudication as they apply in relation to an industrial
dispute referred to it by the appropriate Government.
(3) The application referred to in sub-section (2)
shall be made to the Labour Court or Tribunal before
the expiry of three years from the date of discharge,
dismissal, retrenchment or otherwise termination of
service as specified in sub-section". The above
amendment to 2(A) of the Industrial Disputes Act
empowers the petitioner to file the petitioner before
this Court even before the culmination of Conciliation
Proceedings, if, 45 days from the date of raising
industrial dispute before the Labour Officer is over.
The petitioner in his evidence deposed that he was
employed in guarding section of the respondent
management and he well versed with machinery which
was taught by the respondent management. Though,
the petitioner does not possess any technical
qualification he was all along work in the respondent
management in the guarding section. The petitioner
has established that he has received sum of ` 6,500
as monthly salary from the respondent management.
The respondent has denied the receipt of monthly
salary of ` 6,500 by the petitioner.
15. The evidence of respondent clearly established
that the petitioner has worked under the direct
supervision of the respondent officials and he worked
under the control of the respondent. The petitioner
though termed as casual labour by the respondent he
was in the services of the respondent management from
2013 till the date of his termination. The available
records shows that the nature of employment is
perennial in nature and the services of the petitioner
was regularly and continuously utilised by the
respondent management for several years. Having
utilised the services of the petitioner the respondent
deliberately sent him out of employment without any
justifiable reasons. There was no notice of irregularity
or mis-behaviour or mis-conduct served by the
respondent management and no department enquiry was
conducted as against the petitioner. The nature of
employment clearly established that the petitioner is an
employee under the respondent company. In the Ex.P9
Standing Orders which came into force from 1966
describes only five types of workers. Under rule-II of
the Standing Orders does not describe engagement of
casual labours to attend the work of the respondent
management as such the services of the petitioner
cannot be termed as casual labours.
16. From the discussions above made this Court is of
the considered opinion that the services of the
petitioner was abruptly terminated by the respondent
management without any justifiable reason. From the
date of termination the petitioner is without job in any
other establishment. This Court is also taken into
consideration the glass frame shop run by the petitioner
and the loan amount obtained by the petitioner from the
Puducherry Bharathiyar Grama Bank and Indian
Overseas Bank, Nedungadu. This Court is of the further
opinion that looking after a glass frame shop with lot of
debts would not come under the purview of gainful
employment.
17. This Court is of the considered opinion that
since, the nature of job attended by the petitioner is
perennial in nature, there is difficulty for the respondent
to reinstate him with continuity of service. The financial
loss faced by the respondent management cannot be a
justifiable reason to terminate the services of the
petitioner who was in the employment of the respondent
management continuously for a long period. The
sudden termination of his employment would certainly
affects the right to livelihood as enshrined under
Article 21 of the Constitution. Since, the petitioner was
terminated by the respondent abruptly, this Court is
inclined to pay 50% of the back wages to the petitioner
which would serve his cause.
18. In the result, the petition is partly allowed. The
respondent is directed to reinstate the petitioner into
service of the respondent management with continuity
of service within a period of eight weeks from the date
of this Award. The respondent management is further
directed to pay 50% of back wages to the petitioner
from the date of termination of his service till the date
of reinstatement into service. No costs.
Dictated to Stenographer, transcribed by him,
corrected and pronounced by me in the Open Court, on
this 25th day of February, 2022.
R. BHARANIDHARAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
612
LA GAZETTE DE L’ETAT
[16 August 2022
List of petitioner’s witness:
PW.1
— 28-08-2019 Murugaraj
List of petitioner's exhibits:
Ex.P1
— 09-08-2018
Copy of the petition given
by the petitioner to the
L a b o u r
O f f i c e r
(Conciliation).
Ex.P2
— Nov-2013
Copy of the petitioner’s
Identity Card issued by
t h e
r e s p o n d e n t
m a n a g e m e n t
t o
t h e
petitioner.
Ex.P3
— 17-10-2016
Copy of the ESI Card and
Receipt of the petitioner.
Ex.P4
— 17-08-2018
Copy of the EPF Member
Pass book of the petitioner.
Ex.P5
— 11-03-2011
Gazette Publication of the
G o v e r n m e n t
o f
Puducherry.
Ex.P6
— 22-11-2018
Copy of Notice of enquiry
issued by the Labour
Officer, Karaikal.
Ex.P7
— 07-02-2019
Copy of notice issued by
the Puduvai Bharathiyar
Grama
Bank
to
the
Petitioner.
Ex.P8
—
–
Copy of notice sent by the
Legal Services Authority to
the petitioner to appear
before the Lok Adalat.
Ex.P9
— 01-09-1966
Standing Orders of the
respondent management.
List of respondents witness:
RW.1
— 01-10-2019
Kamaraj
List of respondents exhibits:
Ex.R1
— 31-08-2018
Receipt of Pushpa Glass
house.
Ex.R2
— 01-09-2018
Receipt of Pushpa Glass
house.
Ex.R3
— 09-08-2018
Copy of letter given by the
petitioner to the Labour
Officer, Karaikal.
Ex.R4
— 27-08-2018
Copy of Notice of Remarks
sent by the Labour Officer,
Karaikal.
Ex.R5
— 05-09-2018
Copy
of
the
reply
submitted
by
the
respondent management to
the
Labour
Officer
(Conciliation), Karaikal.
Ex.R6
— 24-09-2018
Copy of Notice of Enquiry
sent by the Labour Officer,
Karaikal to the respondent
management.
Ex.R7
— 22-11-2018
Copy of Notice of Enquiry
(2nd notice) sent by the
Labour Officer, Karaikal,
to
the
respondent
management.
Ex.R8
— 08-10-2018
Copy of notice sent by
this
Court
to
the
respondent management.
R. BHARANIDHARAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
————
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 119/AIL/Lab./T/2022,
Puducherry, dated 28th July 2022)
NOTIFICATION
Whereas, an Award in I.D (L) No. 36/2018, dated
21-03-2022 of the Industrial Tribunal-cum-Labour Court,
Puducherry, in respect of the industrial dispute between
the management of M/s. ICICI Bank Limited,
Needarajapayar Street, Puducherry and M/s. IRIS
Facility Management Global Services LLP, Hyderabad,
Telangana and Tmt. S. Hema, Veerampattinam,
Puducherry, over non-employment has been received;
Now, therefore, in exercise of the powers conferred
by sub-section (1) of section 17 of the Industrial
Disputes Act, 1947 (Central Act XIV of 1947), read with
the notification issued in Labour Department’s G.O. Ms.
No. 20/91/Lab./L, dated 23-05-1991 it is hereby directed
by the Secretary to Government (Labour) that the said
Award shall be published in the Official Gazette,
Puducherry.
(By order)
P. MUTHU MEENA,
Under Secretary to Government (Labour).
613
16 August 2022]
LA GAZETTE DE L’ETAT
BEFORE THE INDUSTRIAL TRIBUNAL-CUM-
LABOUR COURT AT PUDUCHERRY
Present :Thiru R. BHARANIDHARAN, M.L.
Presiding Officer.
Monday, the 21st day of March, 2022.
I.D.(L). No. 36/2018
in
C.N.R. No. PYPY06-000073-2018
Tmt. S. Hema
. . Petitioner
Versus
1.
The Manager,
M/s. ICICI Bank Limited,
No. 164, Needarajapayar Street,
Puducherry-605 001.
2.
The Managing Director,
M/s. IRIS Facility Management Global
Services LLP,
No. 302, Ranjani Krishna Reddy Plaza,
Lakshmi Nagar, Attaur,
Hyderabad-500 048.
. . Respondent
This Industrial Dispute coming on this day before me
for hearing, in the presence of Thiruvalargal Ilango
Krishnamoorthy and H. Sendhilkumar, Counsels, for the
petitioner and Thiru A. Viveganandane, Counsel, for the
respondent, upon 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. 125/AIL/Lab./T/2018, dated 23-08-2018 of the Labour
Department, Puducherry, to resolve the following dispute
between the petitioner and the respondent, viz., -
(i) Whether there exists any employer – employee
relationship between the management of M/s. ICICI
Bank Limited, Needarajapayar Street, Puducherry,
M/s. IRIS Facility Management Global Services
LLP, Hyderabad, Telangana and Tmt. S. Hema,
Veerampattinam, Puducherry? If so, to give
appropriate directions?
(ii) Whether the dispute raised by the petitioner
Tmt. S. Hema, Veerampattinam, Puducherry, against
the management of M/s. ICICI Bank Limited,
Needarajayapar Street, Puducherry, M/s. IRIS Facility
Management Global Services LLP, Hyderabad,
Telangana, over non-employment is justified or not?
If justified, what relief the petitioner is entitled to?
(iii) 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 called absent. No representation for the
petitioner. Petition is pending for ex parte arguments
for a long time. There is no progress. Hence, the
reference is closed for non prosecution.
Written and pronounced by me in the open Court,
on this 21st day of March, 2022.
R. BHARANIDHARAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
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