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SOMMAIRES

CONTENTS

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404

Procédure du Magistrate de District .. 404

Procedings of the District

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Magistrate

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407

Sentence arbitral du Travail

.. 407

Award of the Labour Court .. 407

de Tribunal.

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412

Notifications du Gouvernement .. 412

Government Notifications

.. 412

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415

Notices du Gouvernement

.. 415

Government Notices

.. 415

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416

Annonces

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Announcements

416

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

®ı

Amﬂºƒˆ

ÿƒÀkVF¬˛wÁ\

2023 }

º\ |

16 {

No.

Poudouchéry

Mardi

Mai

2023 (26 Vaisakha 1945)

No.

Puducherry

Tuesday

16th

May

2023

407

16 May 2023]

LA GAZETTE DE L’ETAT

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 53/AIL/Lab./T/2023,

Puducherry, dated 25th April 2023)

NOTIFICATION

Whereas, an Award in I.D (L) No. 14/2018, dated

09-03-2023 of the Industrial Tribunal-cum-Labour Court,

Puducherry, in respect of industrial dispute

between M/s. Deccan Enterprises, Puducherry and

Thiru S.A. Rahamadullah, Villupuram, over non-payment

of legal dues 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. 20/9/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)

P. RAGINI,

Under Secretary to Government (Labour).

408

LA GAZETTE DE L’ETAT

[16 May 2023

BEFORE THE INDUSTRIAL TRIBUNAL-CUM-

LABOUR COURT AT PUDUCHERRY

Present :Tmt. V. SOFANA DEVI, M.L.,

Presiding Officer.

Thursday, the 9th day of March 2023.

I.D. (T) No. 14/2018

CNR. No. PYPY06-000052-2018

S.A. Rahamadullah,

No. 36/205, Singara Thoppu,

Villupuram,

Tamil Nadu.

. . Petitioner

Versus

The Managing Director,

M/s. Deccan Enterprises,

Vazhudavour Road,

Kurumbapet,

Puducherry.

. . Respondent

This industrial dispute coming on 07-03-2023

before me for final hearing in the presence of

Thiru T.H. Nizamudeen, Counsel for the Petitioner,

Thiruvalargal George K. Rajan, R. Balaji and S. Bagavathi,

Counsels for the Respondent and after hearing the both

sides and perusing the case records, this Court

delivered the following:

AWARD

This Industrial Dispute arises out of the reference

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

No. 63/AIL/Lab./T/2018, dated 11-04-2018 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 S.A. Rahamadullah, Villupuram against the

Management of M/s. Deccan Enterprises, Puducherry,

over non-payment of legal dues 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?

2. Brief facts of the case of the Petitioner averred

in the claim petition:

The Petitioner had joined in the Respondent’s

company as a Tailor in the readymade dress

manufacturing Unit which is an Export Company

registered before the Registrar of Companies under

Factories Act. The Petitioner was appointed in the

Respondent’s company on 19-02-2007 as “Line

Supervisor” vide his Identity Card No. 986 and the

petitioner worked in the Respondent’s company very

sincerely and out of his hard work, the Petitioner was

appreciated by the Respondent Company and

consequently he was promoted to the post of Final

Checker and in the year 2014, he was once again

promoted as Finishing In-charge.

(ii) Though the Petitioner was promoted to the

higher post, the Petitioner was not paid more salary

for the works he carried on in the Respondent’s

company. He was paid minimum wages of ` 2,363 in

the beginning and finally ` 6,183 for the post of

Finishing In-charge. Inspite of his repeated demands

and requests made with the Respondent Company,

his request was not considered by the Respondent

Company. The Petitioner has to travel in the bus from

Villupuram to the Respondent Company for the work,

so, he incurred ` 1,500 per month for travel expenses.

Whereas, the Respondent advised the petitioner to

resign himself and to rejoin in the Respondent’s

Company and as such the Petitioner resigned his job

on 17-06-2014 believing the false assurance that was

given by the Respondent Management.

(iii) Further, the Petitioner was refused to induct

in his job which he was doing in the Respondent

Management, whereas, the Respondent Management

did not accept his demand and came forward to pay

any more wages along with the perks and incentives

and the Petitioner faces more loss of gratuity, balance

of wages for layoff period to him after resigning his

job and even the Respondent company remitted the

ESI Contribution for him as assured by the

Respondent Management. The Petitioner was forced

to approach the Conciliation Authority to intervene

in this matter and to take appropriate action against

the Management of the Respondent Management so

as to enable him to get gratuity amount, balance

amount of layoff period, ESI benefits and all other

perks which the Petitioner legally entitled to.

(iv) The Conciliation enquiry held on various

dates and negotiations were held for an amicable

solution and settlement in this matter but, there was

no response on the Respondent Management.

Hence, the Petitioner prays to direct the Respondent

to pay the gratuity, balance of wages for layoff period

to him after resignation, ESI benefits and all other

legal dues and work to the Petitioner. Hence, the

petition.

3. The brief averments of the counter filed by the

Respondents are as follows:

The Respondent Company is an export garment

manufacturer. Due to global recession in the garment

industry and consequently no further orders the

Respondent was forced to downsize the factory and

409

16 May 2023]

LA GAZETTE DE L’ETAT

doing job work orders. The Respondent denies that

the Petitioner was appointed in the Respondent

Company as Line Supervisor and he was joined in

the factory as a Tailor and later given the post of

Finishing In-charge. The Petitioner’s last drawn

(basic) wages was ` 3,615 and allowance (conveyance)

` 2,025 per month.

(ii) The Petitioner was in service for the period of

7 years as per the Respondent’s records. Petitioner

resigned his job on 16-06-2014 by submitting his

resignation letter, dated 16-06-2014 voluntarily and

left his work on his own volition. The Petitioner

never approached the management nor submitted his

present address and Bank details for settling his

legal dues. Instead of approaching the Respondent

Management for his legal dues, approached the

Labour Officer and filed a false representation against

the Respondent Management. The Petitioner was

never advised to resign his job nor rejoin the work

and no such assurances given by the Respondent

Management. Further, the Respondent Management

gives annual increments to workers based on

performance and not by any assurance to worker.

The Respondent Management requested the Labour

Officer (Conciliation) to advice the Petitioner to

accept the legal dues offered by the Respondent

Management which was not accepted by the

Petitioner, since the Petitioner demanded ` 50,000 and

not willing to accept the legal settlement the

Conciliation ends with failure and the amicable

settlement could not be reached. Hence, prayed for

dismissal of the claim petition.

4. Additional Counter statement filed by the

Respondent Management as follows:

The Petitioner was holding the post of Finishing

In-charge, which is supervisory in nature and the

Petitioner has no scope to file this petition as he

does not come under the scope of workman under

section 2(s) of the Industrial Disputes Act, 1947.

Hence, prays for dismissal of this petition.

4. Point for determination:

Whether the Petitioner Employee is entitled for

the reliefs as claimed in the claim petition?

5. On Point:

Petitioner, himself was examined as PW1 and

Ex.P1 to P11 were marked. On Respondent side

Mr. K.S. Madhusudhana Rao, Manager of the

Respondent Management was examined as RW1.

No exhibits were marked on the side Respondent.

No written arguments were filed on either side.

6. On the point:

The first and foremost defence taken by the

Respondent Management is that the Petitioner herein

was working as Finishing In-charge at the time, he

was resigning his job from the Respondent

Management i.e., 17-06-2014. Therefore, Petitioner

who was holding the post of Finishing In-charge,

which is Supervisory in nature, does not come under

definition of workmen under section 2(s) of Industrial

Disputes Act 1947. Therefore, this industrial dispute

at the threshold to be rejected on this Count.

7. On the other hand, learned Counsel appearing for

Petitioner would contend that initially the Petitioner was

appointed as Line Supervisor on 19-02-2007 and thereafter,

got promoted to the post of Finishing In-charge with

the salary of ` 6,183 per month. To substantiate his last

drawn salary, the Petitioner relied upon Ex.P5 Pay details

for the month May 2014. He resigned in June 2014.

Further, he would rely upon details of Pay for the month

of February 2011 (Ex.P3) wherein, it is mentioned as the

Petitioner as Tailor; Pay details for November 2013

(Ex.P4) wherein, the Petitioner was shown as Line

Supervisor. Further, the learned Counsel appearing for

the Petitioner would also rely upon Ex.P2 the Identity

card issued to the Petitioner by the Respondent

Management, wherein, date of his joining mentioned as

19-02-2007.

8. As the category of the Petitioner is disputed, it

is necessary to decide first the issue before going into

the other issues. Whether the employee concerned in

the proceeding is covered under the ambit of

“Workman” as per provisions of I.D. Act? As per

section 2(s) of Industrial Disputes Act 1947 when the

category of the work is Supervisory in nature and the

salary for the said Supervisory work is above ` 10,000

then the said person cannot be categorized under the

“workmen” under the Industrial Disputes Act. Further,

it is settled proposition that the nature of work should

be decide whether he is placed out of the definition

under section 2(s) of Industrial Disputes Act. The

designation of an employee is not of much importance

and what is important is a nature of duties being

performed by the employee the determinative factor is

the main duties of the employee concern and not some

works incidentally done. In other words, what is, in

substance, the work which employee does or what in

substance, he is employed to do. Viewed from this

angle, if, the main work is of manual, clerical or of

technical nature, the mere fact that some supervisory

or other work is also done by the employee incidentally

or only a small fraction of working time is devoted to

some supervisory work, the employee will come within

410

LA GAZETTE DE L’ETAT

[16 May 2023

the purview of “workmen” as defined in section 2(s) of

Industrial Disputes Act. Furthermore, his salary is

undisputedly below ` 10,000, i.e., ` 6,183 per month.

Though, the Respondent Management raised a plea that

he is not a workmen as defined under section 2(s) of

the Act 1947, no piece of evidence either oral or

documentary in nature placed to rebutt the evidence

adduced on the side of the Petitioner in this regard. It

is also pertinent to mention here that Respondent

Management had not raised such plea of “not a

workman” initially in its counter as well as in the

conciliation proceedings held. This abovesaid point of

defence has been raised before this Court for the very

first time by way of an additional counter.

9. On consideration of evidence placed before this

Court, I find that, Management has failed to show that

Finishing In-charge is work of supervisory nature. Be

that as it may, the salary of the Petitioner at that time

of resigning was only ` 6,183. Therefore, from all angles,

I do not have any hesitation to decide this issue in favour

of the Petitioner to the effect that he comes under the

category of workmen as defined under section 2(s) of

Industrial Disputes Act.

10. Next limb of the arguments placed before this

Court is about layoff compensation. The case of the

Respondent Management is that the Petitioner himself

resigned his work from the Respondent Management on

17-03-2014 on his own volition. Resigning himself from

the service does not amount to layoff by the

Respondent Management. When there is no layoff, the

claim of compensation for layoff also does not arise.

Hence, the Respondent Management submitted that it

is no way liable to pay any compensation. So, the

Petitioner is not entitled for any layoff compensation

as claimed in his claim petition.

11. By way reply, the learned Counsel appearing for

the Petitioner would say that only on believing the false

assurances of better job offer given by the Respondent

Management the Petitioner resigned his job. It is totally

false to state that the Petitioner has resigned on his

own volition. Therefore, it should be treated as layoff

and the Petitioner is entitled for the layoff compensation

as provided under section 25(A) of the Industrial

Disputes Act.

12. Layoff refers to the removal of employees by the

employer for reasons other than the employee’s fault.

A layoff is temporary in nature and it indicates the

incapability of an employer to continue the employment

of the workers for a short period. Section 2 (kkk) of

Industrial Disputes Act 1947 defines the term “layoff”

as the inability, failure, or refusal of the employer to

provide employment to a workman whose name is

mentioned in the muster roll of his Industrial

Establishment and who is not retrenched due to the lack

of power, coal, raw materials, accumulation of stocks,

break down of machinery or natural calamity for any

other relevant reason.

13. As per section 25 (A) of the Industrial Disputes

Act 1947, the compensation accrued from the layoff

provisions mentioned in the said Act shall not apply

with workman himself resigned his services from the

Management. Here, in the present case, the Petitioner

workman himself resigned his service and the same has

been admitted categorically by the workmen in various

occasions. It is the bounden duty of the person to

prove what he alleges/pleads before the Court. The

workman, who pleads that only on the assurance given

by the Respondent Management of better job, he

resigned his service, has to prove the same before this

Court. But, the Petitioner workman failed to prove that

it was done by the Petitioner on assurance/compulsion

inflicted upon by the Respondent Management. Therefore,

this Court holds that once he resigned from service, the

workman cannot ask for any compensation much less

than lay off compensation as it did not amount to layoff.

14. The third contention made on the side of the

Respondent Management is that amount of ` 23,412

towards the gratuity lying in the hands of the

Respondent Management and it is ready to pay the said

amount to the Petitioner workman. The said fact has

been fairly conceded even during the Conciliation

proceeding and the same has been mentioned and found

placed in the Failure Report. For the non-disbursement

of said gratuity amount till date, the reasons stated by

the Respondent Management is that “the petitioner

having resigned his job never approached the

Management nor submitted his present address and

Bank details for settling his legal dues. The Petitioner

instead of approaching the Management for his legal

dues, approached the Labour Office and filed a false

representation against the Respondent Management”.

15. Gratuity is payable to an employee on the

termination of his employment after he has rendered

continuous service under the conditions mentioned in

section 4(1) of the Payment of Gratuity Act, 1972. The

term “continuous service” has been defined in section

2(c) to mean uninterrupted service and includes service

which is interrupted, among others, by leave or

cessation of work not due to any fault of the employee

concerned. Explanation-I to this section provides that

an employee, who is not in uninterrupted service for

one year, shall be deemed to be in continuous service,

if, he has been actually employed by an employer during

411

16 May 2023]

LA GAZETTE DE L’ETAT

the twelve months immediately preceding the year for

not less than 240 days except when he is employed in a

seasonal establishment. Explanation-II provides that an

employee of a seasonal establishment shall be deemed

to be in continuous service if, he has actually worked

for not less than 75% of the number of days on which

the establishment was in operation during that year.

16. On close and careful perusal of documents

available in this Court, I find that the Respondent

Management offered before the Labour Officer

(Conciliation) to pay ` 23,412 to the Petitioner workman

being payment of gratuity and other legal dues. During

cross-examination PW1, the Petitioner Workman herein

has admitted that he had received other dues. The

Failure Report has been marked as Ex.P10. Ex.P2 is the

Photocopy of Identity Card of Petitioner workman

issued by the Respondent Management. In Ex.P2, the

Residential address of the Petitioner Workman has been

mentioned as “No. 36/25, Singarathoppu, Villupuram”.

From the claim statement it could be seen that the

Petitioner still resides in the same address. Therefore,

the contention of the Respondent Management that the

address of the Petitioner Workman was not available and

thus, it could not able to settle the legal dues of the

Petitioner Workman is totally untenable. No steps have

been shown to be taken on the side of the Respondent

Management for disbursing the amount due to the

Petitioner. It is contended that Management has

tendered cheque to the Petitioner workman during the

conciliation proceeding held before the Labour Officer

(Conciliation). But, there is no such mention about the

cheque in the failure report. During cross-examination

also, PW1 has categorically denied the questions put

by the Respondent Management Counsel in this regard.

Hence, the factum that the Respondent was ready to

pay the arrears amount due to the Petitioner workman

remains unproved. Mere pleadings that the Management

is ready to pay the arrears due to the Petitioner does

not help in any way to decide in its favour. Management

could have adopted any mode of payment of arrears due

to the petitioner Employee such as Bank Transfer,

Demand Draft or Cheque through Post. But, the

Respondent Management did not avail any such mode

for making payments for the reason best known to it.

Withholding the arrear amount due for more than 4 years,

cannot be brush aside as such. The inconvenience

caused due to the non-payment of such arrear due

should be compensated in terms of money.

17. Admittedly, the Petitioner Workman resigned his

service on 16-06-2014. Till date, his legal dues have not

been paid by the Respondent Management. Considering

the length of time, this Court finds that it is just and

necessary to order for payment of gratuity of ` 23,412

and any other legal dues if, any lying with the

Respondent Management to the Petitioner Workman by

the Respondent Management with the interest at the

rate of 12% from the date of due till the date of this

Award and thereafter 6% from the date of Award till the

date of realization. As the point with regard to layoff is

decided as against the Petitioner Workmen, no layoff

compensation is ordered. Thus, the point for

determination is answered accordingly.

18. In the result, reference is justified and the

Industrial Dispute is partly allowed to the effect that

the Respondent Management is liable to pay the legal

dues of ` 23,412 (Rupees twenty three thousand four

hundred and twelve only) (gratuity amount) and any

other legal dues if any lying with the Respondent

Management to the Petitioner Workman with the interest

at the rate of 12% from the date of his resignation till

the date of this Award and thereafter 6% from the date

of the Award till the date of realization by the Petitioner

Workman. Though, no compensation is ordered as

Layoff compensation, ` 5,000 is ordered to be paid by

the Respondent Management to the Petitioner Workmen

for the inconvenience caused due to the delay in

making the arrears payment. With regard to other reliefs

the Industrial Dispute is dismissed. With costs.

Dictated to the Stenographer, directly typed by

him, corrected and pronounced by me in open Court

on this 9th day of March, 2023.

V. SOFANA DEVI,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.

List of petitioner’s witness:

PW.1

— 06-10-2021

Thiru S.A. Rahamathullah

List of petitioner’s exhibits:

Ex.P1

— 27-05-2013

Photocopy of the Aadhaar

Card of the Petitioner.

Ex.P2

— 19-02-2007

Photocopy of the Identity

Card of the Petitioner issued

by the Deccan Enterprises.

Ex.P3

— February

Pay Bill of the Petitioner.

2011

Ex.P4

— November

Pay Bill of the Petitioner.

2013

Ex.P5

— May 2014

Pay Bill of the Petitioner.

Ex.P6

— 18-08-2015

Complaint given by the

Petitioner to Labour

Department.

412

LA GAZETTE DE L’ETAT

[16 May 2023

Ex.P7

— 23-01-2016

Notice of Remarks to the

Respondent

Labour

Officer

(Conciliation),

Puducherry.

Ex.P8

— 02-03-2016

Notice

Enquiry/

Conciliation sent by the

Labour Officer to the

Petitioner.

Ex.P9

— 17-10-2016

Notice

Enquiry/

Conciliation sent by the

Labour Officer to the

Petitioner.

Ex.P10 — 31-01-2018

Conciliation Failure

Report by Labour

Officer

(Conciliation),

Puducherry.

Ex.P11 — 11-04-2018

G.O. Rt. No. 63/AIL/Lab./T/

2018, Gazette Notification

by Labour Department,

Puducherry.

List of respondent’s witness:

RW1

— 20-01-2023

Thiru K.S. Madhusudhana

Rao,

Manager

the

Respondent Management.

List of respondent’s exhibits: Nil

V. SOFANA DEVI,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.

GOVERNMENT OF PUDUCHERRY

FINANCE DEPARTMENT

(G.O. Ms. No. 127/F2/2022-23,

Puducherry, dated 31st March 2023)

NOTIFICATION

Tmt. R. Chitra, Joint Director of Economics and

Statistics, Directorate of Economics and Statistics,

Puducherry, is atmitted into retirement with effect from

the afternoon of 31-03-2023 on attaining the age of

superannuation.

(By order)

K. GOVINDARAJAN,

Under Secretary to Government (Finance).

GOVERNMENT OF PUDUCHERRY

FINANCE DEPARTMENT

(G.O. Ms. No. 08/FD/F2/A2/2023-24,

Puducherry, dated 28th April 2023)

NOTIFICATION

On acceptance of the notice of voluntary retirement

given under rule 48 (1) (a) of Central Civil Service

(Pension) Rules, 1972 by Tmt. N. Vasanthi, Junior

Accounts Officer, Rajiv Gandhi Government Women and

Children Hospital, Puducherry, she is admitted into

voluntary retirement from service with effect from the

afternoon of 30-04-2023.

(By order)

RATNAGHOSH KISHOR CHAURE,

Deputy Secretary to Government

(Finance).

————

GOVERNMENT OF PUDUCHERRY

LAW DEPARTMENT

(G.O. Ms. No. 14/2023-LD,

Puducherry, dated 28th April 2023)

NOTIFICATION

The Lieutenant-Governor, Puducherry, is pleased to

appoint the below mentioned Advocate(s) for appearance

on behalf of the Government of Puducherry, before the

Courts Subordinate to the Hon’ble High Court, Madras,

with effect from the date of assumption of charge,

temporarily until afresh selection is made. However, in

respect of Thiru N. Vinayagam, his tenure shall be as

per G.O. Ms. No. 27 /2022-LD, dated 14-12-2022 of the

Law Department, Government of Puducherry.

Sl.

Name of the

Designation and name of the

No.

Advocates

Court allotted

(1)

(2)

(3)

1 Thiru K. Ranganathan

Additional Public

Prosecutor (III ADJ).

2 Thiru N. Vinayagam

Additional Public Prosecutor

(II ADJ)-cum-Special Public

Prosecutor – NDPS Act, 1985

(III ADJ).

3 Thiru P. Kumarasan

Special Public Prosecutor –

POC Act, 1988 (PDJ) and

SC/ST (POA) Act, 1989

(II ADJ).