Registered No. PY/44/2021-23 Registered with the Registrar of Newspapers for India under No. 10410 Amflºƒˆ \VWÈ ∂´E>µ La Gazette de L' État de Poudouchéry The Gazette of Puducherry
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No. 11 Poudouchéry Mardi 14 Mars 2023 (23 Phalguna 1944)
No. Puducherry Tuesday 14th March 2023
ÿ✓VÚ·¶¬ÔD SOMMAIRES CONTENTS
Page ✓¬ÔD Page
\Vk'¶ ¿]✓]BV_ ®|¬Ô©✓|D .. 238 Procédure du Magistrate de District .. 238 Procedings of the District .. 238
Magistrate
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ÿ>Va_ ¿]\[≈› yÏ©AÔ^ .. 244 Sentence arbitral du Travail .. 244 Award of the Labour Court .. 244
de Tribunal.
∂´∑ ∂§s¬ÁÔÔ^ .. 249 Notifications du Gouvernement .. 249 Government Notifications .. 249 g✓›>V™ WÆk™∫Ô^ .. 251 Etablissements dangereux .. 251 Dangerous Establishments .. 251
.. 251 Announcements .. 251 ƒVu≈§¬ÁÔÔ^ .. 251 Annonces
[237]244 LA GAZETTE DE L'ETAT [14 March 2023
GOVERNMENT OF PUDUCHERRY BEFORE THE INDUSTRIAL TRIBUNAL-CUM- LABOUR COURT AT PUDUCHERRY LABOUR DEPARTMENT
Present : Tmt. V. Sofana Devi, M.L.
(G.O. Rt. No. 04/AIL/Lab./T/2022,
Presiding Officer.
Puducherry, dated 05th January 2023)
Monday, the 28th day of November, 2022.
NOTIFICATION
I.D. (L) No. 30/2017
C.N.R. No. PYPY06-000037-2017
Whereas, an Award in I.D (L) No. 30/2017, dated 28-11-2022 of the Industrial Tribunal-cum-Labour Court, Puducherry, the in respect of the Dispute between the M a n a g e m e n t o f M / s PA S I C , P u d u c h e r r y a n d Thiru M. Anandan, Puducherry, over reinstatement with back wages.
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. 20/9/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)
Thiru M. Anandan, No. 13, Illupai Thoppu Street, Veema Nagar, Thilaspet, Puducherry.
. . Petitioner
Vs.
The Managing Director, M/s. Puducherry Agro Service and Industries Corporation LImited (PASIC), Agro House, Thattanchavady, Puducherry.
. . Respondent
P. RAGINI,
Under Secretary to Government (Labour).
This Industrial dispute coming on 09-11-2022 before me for final hearing in the presence of Thiru. P. Sankaran, Counsel, for the Petitioner, Thiruvalargal B. Mohandoss, P. Manivannan, Indrajith, K. Velmurugan, K. Sundarajan, P. Kalirathinam, S. Vijayasanthi, T. Vijayashanthi and K. Manopriya, Counsels, for the Respondent, and after hearing the both sides and perusing the case records, this Court delivered the following:
14 March 2023] LA GAZETTE DE L'ETAT 245A W A R D
This Industrial Dispute arises out of the reference made by the Government of Puducherry vide G.O. Rt. No.74/AIL/LAB/T/2017, dated 02-05-2017 of the Labour Department, Puducherry, to resolve the following dispute between the Petitioner and the Respondent, viz.,
(a) Whether the dispute raised by the Petitioner Thiru M. Anandan against the Management of M/s. Puducherry Agro Service and Industries Corporation Limited (a Government of Puducherry undertaking), Puducherry, over reinstatement with back wages is justified or not? If justified, what relief the Petitioner is entitled to?
(b) To compute the relief if any, awarded in terms of money if, it can be so computed?
(iii) The question of unauthorized absence does not arise since the Petitioner had informed his superior over phone about his ill-health and leave and only because he was not allowed to join duty.
2. Brief facts of the case of the Petitioner averred
in the claim petition:
The Petitioner had joined in service of the Respondent Corporation (PASIC) on 03-08-2007 as voucher paid and subsequently as daily rated labour from 01-07-2009 and was without any remark till he was disengaged from service on 10-05-2014 after nearly 7 years. The Petitioner was indisposed on 09-04-2014 due to fracture and was unable to move anywhere as the Doctor had advised him rest for 30 days from 09-04-2014 and issued fitness from 09-05-2014. The Petitioner has informed his superior Mr. Krishnamoorthy, Farm Supervisor, over phone about his fracture and inability to attend duty. Further, the Petitioner could not join duty as the pain continued even though fitness was given by the Doctor and he had to extend leave up to 22-05-2014.
(iv) That there was no willful unauthorized absence by the Petitioner and it happened by the circumstances beyond his control. There was Medical Certificate also for the proof of condition for the period from 09-04-2014 to 09-05-2014 and so his absence could not be treated as unauthorized absence. The Respondent failed to issue any show cause notice asking for explanation for his absence or intimation about the disengagement from service to the Petitioner except the letter consequent to the representation made the Hon'ble Prime Minister's Grievances Cell rendering the disengagement arbitrary and illegal. The Petitioner w a s f o r c e d to a p p r o a c h t h e L a b o u r O f f i c e r (Conciliation) where the Respondent has alleged other issues like nature of job, status of job and staff service rules, 1988 for which the Petitioner is in no way answerable since the only question to be considered is whether the Petitioner committed unauthorized absence or not.
(v) Respondent is supposed to conduct Domestic Enquiry under the Industrial Employment (Standing Orders) Act, 1946 failure of which amounts to unfair, unjust, biased, arbitrary, unlawful against natural justice rendering the disengagement of the Petitioner to be set aside and the Petitioner is entitled for reinstatement with continuity of service, back wages and all attendant benefits. The Petitioner was working nearly for the past 7 years without any remark and he is the only bread winner of his family with no other source of income for his livelihood as there is no availability of suitable alternative employment also for his survival. Therefore, the petitioner prays to direct the respondent for the reinstatement of the Petitioner with continuity of service, back wages and all other attendant benefits. Hence the Petition.
3. The brief averments of the counter filed by the
Respondent as follows:
(ii) The Petitioner has sent the leave letter along with the Medical Certificate by Registered post to the Respondent Management and reported for duty on 23-05-2014. But, the Petitioner was not allowed to join duty and he was made to wait and approach different authorities including the Respondent Management. Despite his repeated approach and requests over a long period of time, he was constrained to sent representation to the Grievances Cell of the Hon'ble Prime Minister of India, New Delhi, upon which it seems that the same has been transmitted to the Respondent who in turn gave a written reply to the petitioner vide letter No. 6/1/5/4/Pasic/Esst./FTCC/ 2015-2016/8822 dated 05-02-2016 stating that the Petitioner has been disengaged from service with effect from 10-05-2014 due to unauthorized absence and then the Petitioner had been informed by the Officials of the Respondent Corporation accordingly.
The Petitioner was initially engaged as Voucher Paid with effect from 03-08-2007 and was made daily rated labour with effect from 01-07-2009. However, there was no termination of his services by the Respondent Management.
(ii) The Petitioner was only Daily Rated Casual Employee and he was engaged on day-to-day basis depending upon exigencies of work prevailing in the organization. His employment was need based one without any assurance for continuance of employment. The above casual labour were not recruited in a formal246 LA GAZETTE DE L'ETAT [14 March 2023
4. Rejoinder petition filed by the Petitioner
against the Counter Statement:
manner in accordance with Rules and Regulations relating to appointment. Such person employed does not have right to hold the post in PASIC. His conditions of service cannot be equated to regular employees as well as permanent employees appointed in accordance with Recruitment Rules. Under such circumstances, he cannot have any grievance for his non-employment.
(iii) The Petitioner did not report to duty from 09-04-2018 onwards till 09-05-2014 without submitting leave letter or any information regarding his absence. Later, only on 21-05-2014, the Petitioner submitted leave letter on medical grounds for the above period of absence. As the non-employment of Mr. Anandan was by his own absence and as there was not termination of his services, he cannot have any grievance. The question of reinstatement does not arise since he was engaged only to do casual work on account of exigencies of work and as per PASIC Staff Service Rules, 1988 'Employee' means, a person who is in the whole time employment of the Corporation, but, does not include persons employed on daily wages.
(iv) The Petitioner has to prove the allegations in the claim petition that his absence was on medical grounds. He is also obliged to state the reason why he has not communicated to the Management for long for nearly 11/2 months up to 22-05-2014, when he states that he sustained fracture as early as on 09-04-2014 and he got fitness Certificate as early as on 09-05-2014. There is nothing on record to prove that the Petitioner has sought permission for his absent so as to make it authorized one.
The burden of proof lies on the Respondent to define the meaning of refusal of employment or non-employment or disengagement from service or abandonment of service or removal of name of the Petitioner from attendance register for anauthorized absence.
(ii) The Petitioner was only daily rated casual employee and he was engaged on day-to-day basis depending upon exigencies of work whereas, he contradict the same in which he admits the continuous engagement of the Petitioner as daily rated casual for years together which is illegal and cannot come under the definition of casual labour.
(iii) The Respondent does not disclose in what way the petitioner was disengaged or under whatever mode removed from service. In fact, the Petitioner applied for Medical leave with proper Medical Certificate, dated 21-05-2014 for which the Respondent never replied for the same and also that only after the petitioner had sent a representation to the Prime Minister's Grievances Cell vide Letter, dated 20-06-2015 received on 29-06-2015 by the PMO Grievances Cell, the Respondent has given reply, dated 05-02-2016 that is after nearly 2 years which clearly proves the Respondents attitude of ignoring law as a responsible Chief Executive of a Public Undertaking like PASIC. Hence, the Petitioner prayed to direct the Respondent to reinstate the Petitioner with back wages, continuity of service and all other attendant benefits and costs.
5. Point for determination:
(v) The daily rated casual employees cannot claim treatment on par with regular employees. Continuous engagement of daily-rated casuals for years together cannot confer on them right to regularization so as to make them included in their cadre strength. They do not have right to hold the post and hence, cannot claim protection when their services are disengaged by their employer.
(vi) The Petitioner has stated the provisions of the Industrial Employment (Standing Orders) Act, 1946 regarding conducting of Domestic Enquiry. The Respondent has not framed any charge of misconduct against the Petitioner and only for taking disciplinary action against the workmen for misconduct Domestic Enquiry is needed for imposing punishment on the charged official. That there was no punishment imposed by way of termination by the Respondent. As the non-employment of the Petitioner is not by way of termination by the Respondent by continuous absence by the petitioner, there is no question of reinstatement. Hence, prayed for dismissal of the claim petition.
Whether the Petitioner is entitled for an order of reinstatement with back wages and other reliefs as claimed in the claim petition?
5A. On Point:
Petitioner himself examined as PW1 and Ex.P1 to Ex.P9 were marked. On Respondent side, Thiru Sivashanmugam, the Managing Director of the Respondent Management, was examined as RW1 and Ex.R1 marked.
6. On the point:
This present industrial dispute is for reinstatement of the claim Petitioner Mr. M. Anandan, who was disengaged on 10-05-2014. According to the claim Petitioner, he suffered from a bone fracture on 09-04-2014 and he was under medical treatment from 09-04-2014 till 09-05-2014. He informed about his i n a b i l i t y t o a t t e n d t h e w o r k t o h i s s u p e r i o r14 March 2023] LA GAZETTE DE L'ETAT 247 Mr. Krishnamoorthy, Farm Supervisor. He also produced Fitness Certificate on 09-05-2014. Since, he suffered pain, he extended his leave further till 22-05-2014. He joined duty on 23-05-2014 with the Medical Leave Certificate. But the Management did not allow him to join. By way of reply to grievance petition addressed to the Hon'ble Prime Minister, Management gave a reply dated 05-02-2016 that he was disengaged from the service for the reason of his unauthorized absence. The claim Petitioner urged that it was not an unauthorized absence. He duly informed about his inability to work to his Superior. Further, it was contended that no show cause notice issued to him by the Management before his disengagement from services. No domestic enquiry under provisions of Industrial Employment (Standing Orders) Act, 1948 conducted. So, he approached the Labour Officer (Conciliation), Government of Puducherry. The matter failed and the failure report dated 19-02-2016 filed by the Labour Officer (Conciliation), Government of Puducherry.
7. In order to substantiate the averments contained in the claim petition, PW1 the Claim Petitioner himself deposed before this Court and Ex.P1 to Ex.P9 marked. The learned Counsel for Petitioner relied on the case law reported in CDJ 2000 SC 541. On the other hand, the R e s p o n d e n t M a n a g e m e n t h a s c o n t e n d e d t h a t disengagement of the claim Petitioner done only because of his own absence. Since, the claim Petitioner engaged by the Respondent Management only as a daily rated labour for doing causal work, no question of terminating him from the services of the Respondent Management. Consequently, there is no question of reinstatement as claimed. On the side of the Respondent Management it is strongly contended that the claim Petitioner did not inform anybody about his absence orally or in writing. Further, he submitted his leave only on 21-05-2014 on Medical grounds for his absence from 09-04-2014 to 09-05-2014. Thus, he did not intimate the Respondent Management about his leave for 1 and 1/2 months. Thus, he concluded that since he was engaged for doing casual work as daily rated labour and his initial engagement was as voucher paid worker, there is no question of Termination, conducting of Domestic Enquiry, and issuance of Show Cause notices to the petitioner for his unauthorized absence. The learned Counsel for the Respondent Management referred and relied upon the following case-laws during arguments: (i) (2016) 1 SCC (L & S) 186 Vice-Chancellor, Lucknow University Vs. Akhilesh Kumar; (ii) (2019) 2 SCC(L &S) 37; (iii)(2019) 2 SCC(L &S) 98 and iv) (2011) 1 SCC(L&S) 659.
8. Heard both. On perusal of case records it could be seen from Ex.P1 that Medical Certificate, dated 09-04-2014 as well as Medical Fitness Certificate, dated 09-05-2014 issued to the Claim Petitioner are found in a single sheet. But, Medical Certificate for the leave is dated 09-04-2014 whereas, the Fitness issued by the Doctor is dated 09-05-2014. Except Ex.P1 there is no records pertaining to Medical Treatment produced by the Claim Petitioner to prove the genuinity of the reasons stated for his absence during such period. Ex.P2 is a similar Medical Certificate and Fitness Certificate in a single sheet both bear the same date 20-05- 2014. As stated above no medical records shown in this regard to support Ex.P1 and Ex.P2. Ex.P3, dated 21-05-2014, the copy of the leave letter seeking leave from 10-05-2014 to 22-05-2014. Ex.P4 is the photocopy of the acknowledgment card to prove the service of Ex.P3 on Respondent Management. Ex.P5 is the reply given by the Respondent Management to the Claim Petitioner stating the reason for his disengagement. In said Ex.P5 it is clearly mentioned that Petitioner has submitted the leave letter on Medical grounds for the period of his unauthorized absence from 09-04-2014 to 09-05-2014, only on 21-05-2014 (Ex.P3) that is after he has been disengaged from service due to unauthorized absence for a continuous period of nearly one month and due to which the works suffered due to his negligence and dereliction of duty.
9. Ex.P6, the representation given by the claim Petitioner to the Labour Officer (Conciliation), dated 19-02-2016. Ex.P7 is the reply statement dated 09-06-2016 given by the Respondent Management for Ex.P6. Ex.P8 is the Failure Report, dated 22-02-2017. Ex.P9 is the Notification of Failure report. Except this no other oral witnesses or documentary evidences filed to substantiate that the claim petitioner suffered injury and was in need of Medical rest for such period. Further, no proof produced on the side of the Claim Petitioner to show that he duly informed the Respondent Management about his absence in time. Further, there is no reason found any where in the claim petition or in the oral evidence adduced by him about the delay in producing Medical Certificate. In absence of this above evidences or proof, I find that the claim Petitioner was remained absent for a long period that is more than one month without any satisfactory reason for his absence that to without any intimation to his employer about his inability to attend the work, which amounts to unauthorized absence.
10. In Ex.P1 and Ex.P2 the Certificates said to have been issued for the period his absence, the Claim Petitioner's designation is mentioned as DRL that is Daily Rated Labour. It is also the case of the Respondent Management that he was only engaged as daily rated labourer for the day to day work basis depending upon exigencies of work prevailing in the Respondent Management. Therefore, the argument made on the side of the Respondent Management as well as RW1 evidence248 LA GAZETTE DE L'ETAT [14 March 2023 that issuance of Show Cause notice, initiating Domestic Enquiry and issuance of Termination Order not at all required for the daily rated labourer for disengagement for his unauthorized absence, holds good and sustainable.
11. The Hon'ble Supreme Court of India in RBI vs. S. Mani reported in (2005) 5 SCC 100 held that in law 240 days of continuous service by itself does not give right to claim permanence. Further, it has been held by the Hon'ble Supreme Court of India in Himanshu Kumar Vidyarthy vs. State of Bihar reported in 1997 IV ADSC 196 that admittedly they were not appointed to the posts in accordance with the rules, but, were engaged on the basis of need of the work. They are temporary employees working on daily wages. Under these circumstances, their disengagement from service cannot be construed to be a retrenchment under Industrial Disputes Act. The concept of 'retrenchment' therefore, cannot be stretched to such an extent as to cover these employees. Although by way of definition of workman u/s.2(s) of Industrial Disputes Act 'daily wage' worker also falls within the definition of workman it cannot be said that daily wages have all the rights and duties which are available to the regular employee of the Respondent Management. casual workman under Industrial Disputes Act and as such it does not create right to claim for reengagement as claimed in the petition.
14. From the above discussions that no oral witnesses p r o d u c e d n o r d o c u m e n t a r y e v i d e n c e s f i l e d t o substantiate that the claim petitioner suffered injury and was in need of Medical rest for such period. Further, no proof produced on the side of the Claim Petitioner to show that he duly informed the Respondent Management about his absence in time. Further, there is no reason found in the claim petition or in the oral evidence adduced by him about the delay in producing Medical Certificate. In absence of these above evidences or proof, I find that the claim Petitioner was remained absent for a long period that is more than one month without any satisfactory reason for his absence that to without any intimation to his employer about his inability to attend the work, which amounts to un-authorised absence. On the whole, I don't find any justification in the reference made before this Court. Thus, the point for the determination is decided as against the Claim Petitioner.
15. In the result, the reference is decided as unjustified and Industrial Dispute is dismissed. No costs.
Dictated to the Stenographer, directly typed by him, corrected and pronounced by me in open Court, on this the 28th day of November, 2022.
V. SOFANA DEVI, Presiding Officer, Industrial Tribunal-cum- Labour Court, Puducherry.
List of petitioner's witness:
PW1 — 06-02-2019 Thiru Anandan
List of petitioner's exhibits:
12. The same view has been taken by the Hon'ble Supreme Court in State of Haryana vs. Jasmer Singh reported in (2015) 4 SCC 458 that persons who were employed on daily wages cannot be treated as on a par with persons in regular service holding similar posts. Daily rated workers are not required to possess the qualification prescribed for regular workers, nor do they have to fulfill the requirement relating to age at the time of recruitment. They are not selected in the manner in which the regular employees are selected. In other words the requirement for selection are not as rigorous. There are also provisions relating to regular service such as the liability of a member of the service to be transferred, and this being subject to the disciplinary jurisdiction of the authorities as prescribed, which the daily rated workmen are not subjected to. They cannot, therefore, be equated with regular workmen for the purpose for their wages. Nor can they claim the minimum of regular Pay Scale of the regularly employed.
13. In view of the decision in Magarasem vs. State of UP and others reported in 2002 (2) AWC 1712 the daily wagers engaged without any written appointment order could be terminated without any written order. Therefore, daily and casual workers who are engaged in disregard of all rules cannot be allowed to continue when there is no work and their engagement is not required. Daily wagers are deployed on temporary assignment only and not on sanctioned posts and even if, completion of 240 days work by daily wager cannot attribute status of Ex.P1 — 09-04-2014 Photocopy of the Medical & Leave Certificate and 09-05-2014 Medical Fitness Certificate of the Petitioner issued by the I.G.M.C and Research Institute, Puducherry.
Ex.P2 — 20-05-2014 Photocopy of the Medical L e a v e C e r t i f i c a t e a n d Medical Fitness Certificate of the Petitioner issued by the Rani Hospital, Puducherry.
Ex.P3 — 20-05-2014 Photocopy of the Leave
Letter of the Petitioner.
Ex.P4 — 21-05-2014 Photocopy of the Postal
Acknowledgment Card.
14 March 2023] LA GAZETTE DE L'ETAT 249Ex.P5 — 05-02-2016 Photocopy of the letter given by the Respondent Management to the Petitioner.
Ex.P6 — 19-02-2016 Photocopy of the reply letter given by the Petitioner to the Labour Officer (Conciliation), Puducherry.
Ex.P7 — 09-06-2016 Photocopy of the reply letter given by the Respondent to the Labour O f f i c e r (Conciliation), Puducherry.
Ex.P8 — 22-02-2017 Photocopy of the Failure Report given by the Labour O f f i c e r ( C o n c i l i a t i o n ) , Puducherry.
Ex.P9 — 02-05-2017 Photocopy of the Notification of the Labour Department, Puducherry.
for effective implementation of distribution of fortified rice and scaling up of fortification of rice under Integrated Child Development Services (ICDS)/Mid-Day Meals (MDM)/Public Distribution System (PDS).
1. Chief Secretary to Government . . Chairman 2. Secretary to Government (Finance) . . Member 3. Secretary to Government . . Member (Civil Supplies and Consumer Affairs)
4. Secretary to Government . . Member (Health and Family Welfare)
5. Secretary to Government . . Member (School Education)
6. Secretary to Government . . Member (Women and Child Development)
7. Representative of Food Corporation . . Member List of respondent's witnesses:
RW1 — 05-07-2022 Thiru K. Sivashanmugam, Managing Director, PASIC, Puducherry.
of India (FCI) to be nominated by CMD, FCI.
The terms of reference of the Committee shall be
as under:–
List of Respondents's Exhibits:
Ex.R1 — -- Photocopy of the PASIC
(Staff Service) Rules, 1988.
V. SOFANA DEVI, Presiding Officer, Industrial Tribunal-cum- Labour Court, Puducherry.
GOVERNMENT OF PUDUCHERRY (i) To ensure coordination/monitoring with the Line Departments for effective implementation of distribution of fortified rice under ICDS/MDM/PDS.
(ii) To periodically review the progress and provide inputs/suggestions on resolving the challenges/issues that may emerge during the process of implementation of the distribution of fortified rice under ICDS/MDM/PDS.
WOMEN AND CHILD DEVELOPMENT
SECRETARIAT
(iii) To help in scaling up of fortification of rice under ICDS/MDM/PDS across the Union territory of Puducherry through the concerned Departments.
[G.O. Ms. No. 05/2023-WCD(SW-IV)/342,
Puducherry, dated 24th February 2023]
NOTIFICATION
(By order of the Lieutenant-Governor)
P. MUTHU MEENA,
The Lieutenant-Governor, Puducherry, is pleased to constitute a Steering Committee in the Union territory of Puducherry, comprising the following Officers,
————
Under Secretary to Government, (Women and Child Development).
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