186

LA GAZETTE DE L’ETAT

[15 March 2011

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 41/AIL/Lab./J/2011, dated 25th February 2011)

NOTIFICATION

Whereas, the Award in I.D.No.5/2007, dated 25-11-2010

of the Labour Court, Puducherry in respect of the

industrial dispute raised by Thiru R. Kumarasamy

against the management of M/s. Servo Packaging

Limited, 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 23-5-1991, it is

hereby directed by Secretary to Government (Labour)

that the said Award shall be published in the official

gazette, Puducherry.

(By order)

G. MALAR KANNAN,

Joint Secretary to Government (Labour).

————

BEFORE THE LABOUR COURT AT PONDICHERRY

Present : Thiru T. MOHANDASS, M.A., M.L.,

II Additional District Judge,

Presiding Officer, Labour Court.

Thursday, the 25th day of November 2010

I. D. No. 5/2007

R. Kumarasamy,

72, School Street,

Kattukuppam, Pondicherry.

. .

Petitioner

Versus

Servo Packaging Limited, represented.

by its Proprietor Suresh Jalan. . .

Respondent

This industrial dispute coming on 10-11-2010

for final hearing before me in the presence of

Tmt. D. Kavitha, advocate for the petitioner and

Thiru K. Parthiban, advocate for the respondent,

upon hearing both sides, upon perusing the case

records, after having stood over for consideration till

this day, this court passed the following:

AWARD

This industrial dispute arises out of the reference

made by the Labour Department, Government

of Pondicherry vide G.O. Rt. No.28/2007/Lab./AIL/J

dated 23-2-2007 for adjudicating the following:-

1. Whether the non-employment of R. Kumarasamy

by the management of M/s. Servo Packaging

Limited, Puducherry is justified or not?

2. To what relief, he is entitled to?

3. To compute the relief, if any, awarded in terms

of money if it can be so computed?

2. The petitioner, in his claim statement, has

averred as follows:

The petitioner was working as Junior

Winder in the respondent company since 1997. On

6-2-1999 the petitioner was working in II Shift and at

about 5.00 p.m. he was drawing tape from the

extruder to the winder and accidently his right

hand upto elbow went between the pressure

roller. He was taken to East Coast Hospital,

Pondicherry and admitted as inpatient for 20

days from 6-2-1999 to 27-2-1999 and then he was

admitted at General Hospital, Chennai from

27-2-1999 to 3-4-1999 and two surgeries including

plastic surgery was done, hence, he was forced to

spend money for his medical treatment from out of

his own pocket, while the accident happened

during the course of his employment.

Then he had taken treatment at E.S.I. Hospital,

Pondicherry and got fitness certificate from

E.S.I. on 3-10-2000 to join duty. As such he joined

as a Junior Winder in the extruder section, but the

management did not allow him and he was

suspended on 16-10-2000 by one of the Directors

of the company. After intervening of the union

labourers, he joined duty on 19-10-2000. Without

any reasonable cause, he was again suspended by

the management with effect from 4-1-2001 is purely

on victimisation. The management paid the

subsistence allowance to him up to the year 2003

and then stopped the said payment. Due to the

injury and without wages, he could not able to run

the life with his family. Then he issued so many

letters to the company, but they did not care about

him. Therefore, the petitioner filed a petition before

the Labour Officer (Conciliation) for reinstatement

with back wages and all consequential benefits,

but the conciliation ended in failure.

He was getting monthly pay of ` 1,350 at the

time of accident and the scope of getting promotion

and employment till he is aged 60 is bright and on

account of permanent disablement, the prospect of

earning for the next 36 years has become nil. The

respondent has not even chosen to show any

sympathy on the petitioner when he went to call

on them for compensation. Hence, the petitioner

is entitled to get the compensation for loss of

income for his permanent disablement, mental

187

15 March 2011]

LA GAZETTE DE L’ETAT

agony and for medical expenses incurred by him.

However on practical consideration, the petitioner

is restricted his claim for reinstatement with back

wages, continuity of service and all other

attendant benefits in the respondent's company.

Hence, this industrial dispute is filed.

3. In the counter statement, the respondent has

stated as follows:-

Since the petitioner has been getting his benefit

under E.S.I. Act, the petition is not maintainable.

Though the accident had occurred only due to the

petitioner's own negligence, the respondent

company had provided the requisite medical

treatment to the petitioner by spending huge

money in this regard. The petitioner, after getting

cured his injury came to the respondent's company

and asked for employment. Eventhough the

petitioner is not fit for any employment, the

respondent on humanitarian consideration, had

given the employment to the petitioner. But the

petitioner without attending the work, loitered

inside the factory and thereby disturbed the other

workers, who were attending from duty. On 18-10-2000

and on 3-1-2001 the petitioner along with 30

henchmen forcibly entered into the factory

premises and stopped the machines and caused

production loss to the respondent company. Since

the petitioner himself left from service voluntarily

and did not turn for duty for years together and

did not utilise

The offer of employment, the respondent was

constrained to presume that the petitioner had

voluntarily abandoned from his service. As per the

company Model Standing Order, any workmen

remained absent without leave or permission for

more than 8 consecutive days including weekly off

and holidays, he shall be deemed to have left the

employment. But in the instant case, the petitioner

has absent from his duty for years together

without leave or permission and hence the

petitioner has ceased his employment on his own

volition. In view of the said facts, the petitioner is

no locus standi to file the present industrial

dispute and hence the respondent prays for

dismissal of the industrial dispute

4. On the side of the petitioner, the petitioner

examined himself as PW.1 and Ex.P1 to Ex.P15 were

marked. On the side of the respondent, RW.1 and

RW2 were examined and Ex.R1 to Ex.R5 were marked.

Ex.C1 was marked as court exhibit.

5. The point for determination is:

Whether the petitioner can be considered for

reinstatement in service with back wages?

6. On the point:

The contention of the petitioner is that he was

working as Junior Winder in the respondent company

since 1997. On 6-2-1999 he was working in II Shift and

at about 5.00 p.m. he was drawing tape from the

extruder to the winder and accidently his right hand

up to elbow went between the pressure roller. He was

taken to East Coast Hospital, Pondicherry and

admitted as inpatient for 20 days from 6-2-1999 to

27-2-1999 and then he was admitted at General

Hospital, Chennai from 27-2-1999 to 3-4-1999 and two

surgeries including plastic surgery was done. Hence,

he was forced to spend money for his medical

treatment from out of his own pocket, while the

accident happened during the course of his

employment. Then he had taken treatment at E.S.I.

Hospital, Pondicherry and got fitness certificate from

E.S.I. on 3-10-2000 to join duty. As such he joined as

a Junior Winder in the extruder section, but the

management did not allow him and he was suspended

on 16-10-2000 by one of the Directors of the company.

After intervening of the union labourers, he joined

duty on 19-10-2000. Without any reasonable cause,

he was again suspended by the management with

effect from 4-1-2001 is purely on victimisation.

7. In order to prove his claim, the petitioner has

marked Ex.P1 to Ex.P15. Ex.P1 is the identity card of

the petitioner, Ex.P2 is the accident report from E.S.I.

Authorities, Ex.P3 is the medical bills, Ex.P4 is the

OPD slip, Ex.P5 is the referral slip. Ex.P6 is the letter

sent by the Superintendent, E.S.I. Hospital to General

Hospital, Chennai, Ex.P7 is the letter sent by the

Deputy Director (ESI) to the Medical Superintendent,

E.S.I. Hospital. Chennai, Ex.P8 is the fitness

certificate, Ex.P9 is the medical certificate issued by

E.S.I. Dispensary, Kirumampakkam, Ex.P10 is the letter

issued by the Medical Superintendent, E.S.I.

Hospital, Pondicherry to the Deputy Director (ESI),

Mudaliarpet, Ex.P11 is the treatment case sheet.

8. It is an admitted fact that the petitioner was the

employee under the respondent company and

on 6-2-1999 while he was on duty, he met with

an accident, in which his right hand upto elbow got

hold between the pressure roller and he took

treatment at East Coast Hospital, Pondicherry and

then at General Hospital, Chennai.

9. It is the further case of the petitioner that after

the accident, he joined as a Junior Winder in the

extruder section, but the management did not allow

him and he was suspended on 16-10-2000 by one of

the Directors of the company. After intervening of the

union labourers, he joined duty on 19-10-2000.

Without any reasonable cause, he was again

suspended by the management with effect from 4-1-2001

188

LA GAZETTE DE L’ETAT

[15 March 2011

is purely on victimisation. The management paid the

subsistence allowance to him up to the year 2003 and

then stopped the said payment and due to the injury

and without wages, he could not able to run his life.

10. Per contra, the contention of the respondent

is that though the accident had occurred only due to

the petitioner's own negligence, the respondent

company had provided the requisite medical treatment

to the petitioner by spending huge money in this

regard. The petitioner, after getting cured his injury

came to the respondent's company and asked for

employment. Eventhough the petitioner is not fit for

any employment, the respondent, on humanitarian

consideration, had given the employment to the

petitioner. But the petitioner without attending the

work, loitered inside the factory and thereby

disturbed the other workers, who were attending from

duty. On 18-10-2000 and on 3-1-2001 the petitioner

along with 30 henchmen forcibly entered into the

factory premises and stopped the machines and

caused production loss to the respondent company.

11. To prove the said contention, one Narayana

Rao was examined as RW.1 and through him Ex.R1

to Ex.R3 were marked. Ex.R1 is the power of attorney,

Ex.R2 is the resolution passed in the meeting of the

Board of Directors and Ex.R3 is the standing order of

respondent company. Though the respondent has

stated that the petitioner along with 30 henchmen

entered into the factory premises and stopped the

machines and caused production to the respondent

company, there is no complaint filed by them against

the petitioner with the police. RW.1 has admitted

in his cross-examination that no police complaint has

been filed against the petitioner with the police with

regard to the said incident. Hence, the said

contention cannot be believed.

12. The petitioner's case is that he was not given

employment from 16-10-2000 and after intervention of

some union leaders, he joined duty on 19-10-2000 and

then he was suspended from 4-1-2001. Admittedly, the

petitioner met with an accident while he was on duty

on 6-2-1999 in which he sustained grievous injuries

on his right hand and in spite of several letters sent

to the respondent, they did not care about him. There

is no misconduct on the part of the petitioner by

the respondent, It is also to be noted that there was no

memo or show cause notice issued to the petitioner

and no domestic enquiry was conducted before

denying the employment to the petitioner by the

respondent.

13. The further contention of learned counsel for

the petitioner is that the petitioner's request citing

health ground that he might be given some light

category work was not only acceded to, but the

management did not give employment to him. When

the health condition of the petitioner is known to the

respondent, it is for the respondent to consider his

request on humanitarian grounds and post him in light

work. It is unfair and unjustified and lacking in

humanitarian consideration on the part of the

management to have denied the employment to the

petitioner despite his health condition. Human life is

precious and loss of human life cannot be

compensated in terms of any benefit. These points

had been totally forgotten by the management before

having ventured to deny the employment to the

petitioner.

14. But on the side of the respondent, it is

contended that eventhough the said accident had

occurred only due to the petitioner's own negligence,

the respondent company had provided the requisite

medical treatment to the petitioner by spending huge

money and the petitioner after getting cured his

injury, came to the respondent's factory and asked

employment and eventhough the petitioner is not

fitting for any employment, the respondent on

humanitarian consideration, had given employment to

the petitioner, but the petitioner without attending

the work, loitered inside the factory and thereby

disturbed the other workers, who were attending their

duty.

15. Though the petitioner has stated that he was

given employment in spite of several letters sent to

the respondent, during the cross-examination, he has

admitted that after the accident, he was posted as

Bobbin Distributor in the respondent mill and

the said employment was on humanitarian grounds.

The relevant portion of his evidence is as follows :-

s√›]uz ∏≈z ÔDÿ√Ml_ √V∏[ Ω¸ΩØ‚¶´VÔ

√Ël_ ∂\Ï›>©√‚º¶[. ... ... ®™¬z¬ ÔÚÁð

∂Ω©√Á¶l_ √V∏[ Ω¸ΩØ‚¶Ï ºkÁÈ ÿÔV|›>VÏÔ^

®[≈V_ ƒˆ>V[.

During the cross-examination, the petitioner has

also stated that he is getting ` 450 per month from

E.S.I. Corporation for the injuries sustained by him.

The relevant portion of his evidence is as follows:-

÷Õ> s√›m ∞u√‚¶][ sÁ·kVÔ ÷. ®¸. n.. l_

÷ÚÕm \V>D ‘√VF 450 ÿ>VÁÔ ÿÔV|¬˛≈VÏÔ^.

From the evidence of PW.1, it is clearly proved that

after the accident, he is getting ` 450 from the E.S.I.

Corporation for the injuries sustained by him and the

respondent has given employment to him.

16. Apart from that, the Asst. Inspector of Labour

was examined as RW.2 and through her, the

conciliation proceedings, which have been conducted

by the Conciliation Officer was marked as Ex.C1.

189

15 March 2011]

LA GAZETTE DE L’ETAT

Perusal of Ex.C1 would reveal that the conciliation

between the petitioner and the respondent was

conducted by the Labour Officer (Conciliation)

on various dates and during the course of

conciliation, the respondent has stated that they are

ready to give the suitable light work to the petitioner,

but the petitioner was not interested to join duty and

demanded for compensation amount in lieu of

reinstatement. From Ex.C1, it is clear that eventhough

the respondent was ready to give employment to the

petitioner, the petitioner refused to work in the

respondent company and demanded for compensation

amount.

17. The learned counsel for the respondent would

argue that eventhough the petitioner was given

re-employment on humanitarian consideration, he has

not chosen to utilise the same but he himself left from

the service voluntarily on his own and did not turn

for duty for years together. He further submitted that

as per Company's Model Standing Order, if any

workman remains absent without leave or permission

for more than eight consecutive days including

weekly off and holidays, he shall be deemed to have

left the employment and in the instant case, the

petitioner has absented from his duty for years

together without leave or permission and hence the

petitioner ceased his employment on his own volition.

18. When the learned counsel for the respondent

pointed out the Company's Model Standing Order

stating that if any workman remains absent without

leave or permission for more than eight consecutive

days, it is for the respondent, who has to issue

charge memo. to the petitioner, calling for his

explanation and after getting explanation, if not

satisfied by them, they have to initiate disciplinary

proceedings and based on the enquiry report, the

action should have been initiated against him. But in

the instant case, the respondent has not followed the

said procedures and they simply stated that the

petitioner has absented from his duty for years

together without leave or permission and hence the

petitioner ceased his employment on his own volition,

which cannot be accepted. It is well settled law that

even for minor penalties, the workman should be

given an opportunity to hear in person before

passing of any order by the management. It is

pertinent to refer the following decision, which is

very relevant to this case:-

2002 SCC (L&S) 188:

O.K. Bhardwaj Vs. Union of India and others:-

“Departmental enquiry - Natural justice-Audi

alteram partem-whether could be dispensed

with in case of minor penalties Supreme Court

agreeing with High Court's first proposition that

withholding increments of pay with or without

cumulative effect is a minor penalty but

declining to accept its second proposition that

giving an opportunity of hearing to the

delinquent employee in case of minor penalties

is not essential- Opportunity of being heard,

held could not be dispensed with even in case

of a minor penalty - Though respondent

contending that the compliance with the

principles of natural justice was adequate but

since High Court not considering the matter

from the said angle, matter remitted to High

Court for disposal with due regard to the

principles of natural justice - Administrative Law

Natural

justice

-

Audi

alteram

partem

Opportunity of being heard, held essential even

in case of minor penalties."

Considering the facts and circumstances of this

case, I feel that this is a fit case for ordering

reinstatement. As far as the back wages are

concerned, I consider that some amount can be

awarded to the petitioner, since the amount directly

awarded by the E.S.I. Corporation is not sufficient for

the injury caused to the petitioner during the course

of employment. But he is not entitled for any

compensation, since he has got number of years of

service in his career. Hence, the respondent is

directed to sympathetically consider the case of the

petitioner and reinstate and post him in a light

category work with continuity of service and 10% of

back wages. Accordingly, this point is answered.

19. In the result, the industrial dispute is allowed

and the respondent is hereby directed to reinstate the

petitioner with continuity of service and 10% of back

wages. However, there is no order as to costs.

Typed to my dictation, corrected and pronounced

by me in the open court on this the 25th day of

November 2010.

T. MOHANDASS,

II Additional District Judge,

Presiding Officer, Labour Court,

Pondicherry.

————

List of witnesses examined for the petitioner :

PW1 — 4-3-2010

R. Kumarasamy

List of witnesses examined for the respondent :

RW1 — 15-4-2010

Narayana Rao

RW2 — 21-10-2010

Anandhi, Assistant Inspector

of Police.

190

LA GAZETTE DE L’ETAT

[15 March 2011

List of exhibits marked for the petitioner :

Ex.P1 — Copy of the identity card of the petitioner

Ex.P2 — Accident report

Ex.P3 — Medical bills

Ex.P4 — OPD slips

Ex.P5 — Referral slip, dated 14-6-1999

Ex.P6 — Letter, dated 16-6-1999 sent by E.S.I.

Ex.P7 — Letter dated 14-6-1999 sent by Deputy

Director, E.S.I. Hospital.

Ex.P8 — Fitness certificate issued by E.S.I.

Ex.P9 — Copy of medical certificate, dated 5-1-2001

ExP10 — Copy of letter dated 14-6-1999 sent by

Deputy Director E.S.I.

Ex.P11— Case sheet

Ex.P12— Taxi bill, dated 27-2-1999

Ex.P13— Bus tickets

ExP14 — Medical bills

ExP15 — Blood bank receipts

List of exhibits marked for the respondent :

Ex.R1 — Power of attorney

Ex.R2 — Copy of board resolution, dated 8-3-2010.

Ex.R3 — Copy of standing order, dated 26-5-2003

Ex.R4 — Letter dated nil sent by Labour Officer

Ex.R5 — Copy of letter, dated 14-9-2006 to

Secretary to Government.

List of court exhibits:

Ex.C1 — Conciliation proceedings.

T. MOHANDASS,

II Additional District Judge,

Presiding Officer, Labour Court,

Pondicherry.

————

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 42/AIL/Lab./J/2011, dated 25th February 2011)

NOTIFICATION

Whereas, the Award in I.D. No. 4/2005,

dated 30-9-2010 of the Labour Court, Puducherry in

respect of the industrial dispute raised by the

Pondicherry Jananayaga Sengal Urpathi Thozhilalargal

Sangam (AICCTU) against the management of

M/s. Pudhuvai Brick Makers Private Limited,

Puducherry over non-employment of 29 workers 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 Secretary to Government (Labour) that

the said Award shall be published in the official gazette,

Puducherry.

(By order )

G. MALAR KANNAN,

Joint Secretary to Government (Labour).

————

BEFORE THE LABOUR COURT AT PONDICHERRY

Present:

Thiru T. MOHANDASS. M.A, B.L., P.G.D.H.R.D.I.

II Additional District Judge,

Presiding Officer, Labour Court.

Thursday, the 30th Day of September 2010.

I.D. No. 4/2005

The President/Secretary,

Pondicherry Jananayaga Sengal Urpathi

Thozhilalargal Sangam,

Pondicherry.

. . Petitioner

Versus

The Managing Director,

Puduvai Brickmakers (P) Ltd.,

Pondicherry .

.. Respondent

This industrial dispute coming on this day for

h e a r i n g b e f o r e m e i n t h e p r e s e n c e o f

Thiru G. Mohan Keerthi Kumar, advocate for the

petitioner, Thiru M. Vaikunth, advocate for the

respondent, upon perusing the case records, this court

passed the following:

AWARD

This industrial dispute arises out of the reference

made by the Labour Department, Government of Pondicherry

vide G.O. Rt. No.156/2004/Lab./AlL/J, dated 20-12-2004

for adjudicating the following:—

(a) Whether the claim of the union for

non-employment of 29 workers listed below against

the management of M/s. Puduvai Brick Makers

Private Limited is justified or not?

1.

T. Subramanian

10. P. Ramasamy

2.

N. Samidurai

11. M. Murthy

3.

R. Kuppusamy

12. M. Rajaveni

4.

V. Muniyandi

13. K. Theepanjan

5.

S. Harikrishnan

14. J. Sundari

6.

K. Mohan

15. R. Indira

7.

K. Jothi

16. T. Rajaveni

8.

T. Iyyappan

17. P. Rajakumari

9.

A. Rangasamy

18. K. Veeramma

191

15 March 2011]

LA GAZETTE DE L’ETAT

19.

R. Vijayalakshmi

25. P, Vasantha

20.

A. Sumathi

26. K. Thavamani

21.

K. Tharaveni

27. V. Mathiyarasan

22.

M.Geetha

28. M. Devi

23.

A. Lalitha

29. Sarasu

24.

S. Sangeetha

(b) To what relief, they are entitled to?

(c) To compute the relief, if any, awarded in terms

of money, if it can be so computed?

2. On the side of the petitioner, the claim statement

was filed and then the matter was posted for filing of

counter by the respondent. In spite of repeated

opportunities, the respondent has not filed the counter.

On the side of the respondent, no representation was

made. Hence, the respondent was called absent and

set ex parte. The petitioner was examined as PW.1 and

Ex.P1 to Ex.P11 were marked. Claim proved. The petition

is allowed as prayed for. No costs.

Typed to my dictation, corrected and pronounced by

me in the open court on this the 23rd day of September 2010.

T. MOHANDASS

II Additional District Judge,

Presiding Officer, Labour Court,

Pondicherry.

————

List of witnesses examined for the petitoner :

PW.1

— 23-09-201 0 - T. Subramanian

List of witnesses examined for the respondent : Nil

List of exhibits marked for the petitioner :

Ex. P1 — Copy of the certificate issued by the

respondent, dated 25-3-1995.

Ex.P2 — Copy of the letter by petitioner - union,

dated 23-10-2002.

Ex.P3 — Copy of the order passed by Principal Sub-

Judge, Pondicherry, dated 25-10-2002.

Ex.P4 — Copy of the letter by respondent,

dated 29-10-2002.

Ex.P5 — Copy of the letter by the respondent,

dated 6-11-2002.

Ex.P6 — Copy of the letter from respondent,

dated 1 1-11-2002.

Ex.P7 —

Copy of the letter from Chief Inspector of

Factories, dated 8-4-2003.

Ex.P8 — Copy of the letter from the petitioner-

union, dated 28-4-2003.

Ex.P9 — Copy of the letter from respondent

company, dated 18-7-2003.

Ex.P10 — Copy of the notification by Government

of Pondicherry, dated 20-12-2004.

Ex.P11 — Copy of the failure report, dated 10-12-2003.

List of exhibits marked for the respondent: Nil

T. MOHANDASS,

II Additional District Judge,

Presiding Officer, Labour Court,

Pondicherry.

————

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 43/AIL/Lab./J/2011, dated 25th February 2011)

NOTIFICATION

Whereas, the Award in I.D.No.2/2009, dated 24-11-2010

of the Labour Court, Puducherry in respect of the

industrial dispute between the management of

M/s. Anglo-French Textiles, Puducherry and

Puducherry Manila Pattali Thozhir Sangam,

Puducherry over non-payment of wages to 3 workers

viz., Thiruvalargal (1) P. Subburayan, (2) C. Jayabalan

and (3) S. Thirugnanam 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 Secretary to Government (Labour) that the

said Award shall be published in the official gazette,

Puducherry.

(By order)

G. MALAR KANNAN,

Joint Secretary to Government (Labour).

————

BEFORE THE LABOUR COURT AT PONDICHERRY

Present : Thiru T. MOHANDASS, M.A., M.L.,

II Additional District Judge,

Presiding Officer, Labour Court.

Wednesday, the 24th day of November 2010

I.D. No. 2/2009

The President,

Puduvai Manila Pattali

Thozhir Sangam, Pondicherry

. .

Petitioner

Versus

The Managing Director,

Anglo-French Textiles.

Pondicherry

. .

Respondent

192

LA GAZETTE DE L’ETAT

[15 March 2011

This industrial dispute coming on 15-11-2010 for

f i n a l h e a r i n g b e f o r e m e i n t h e p r e s e n c e o f

Thiru Durai Arumugam, appearing for the petitioner

and

Thiru

B. Mohandass,

advocate

for

the

respondent, upon hearing both sides, upon perusing

the case records, after having stood over for

consideration till this day, this court passed the

following :

AWARD

This industrial dispute arises out of the reference

made by the Labour Department, Government of

Pondicherry vide G.O. Rt. No.11/AIL/Lab./J/2009,

dated 4-3-2009 for adjudicating the following:-

(1) Whether the demand of the Puducherry

Manila Pattali Thozhir Sangam, Puducherry against

the management of M/s. Anglo-French Textiles (AFT),

Puducherry for payment of wages to 3 workmen

viz., Thiruvalargal P. Subburayan, Code No.5577,

C. Jayabalan, Code No.10004 and S. Thirugnanam,

Code No. 5909 for the work done on 13-8-2007

is justified?

(2) If so, to give appropriate directions?

2 The petitioner, in his claim statement, has averred

as follows:

The workmen by name 1. C. Jayabalan, 10004,

2. S. Thirugnanam 5909 and P. Subburayan 5577

were employees under the respondent mill. The said

workmen, though had attended duty in Ring Frame

on 13-8-2007, the respondent has not given the

wages to them on that day. Hence, the petitioner's

union sent a letter to the respondent and requested

to give the wages to them on that day. But the

respondent have not given proper reply to the

petitioner and hence the petitioner's union

approached the Conciliation Officer, who sent a

letter to the respondent and the respondent replied

that the said three workmen were posted to work

in the Spinning Preparatory section due to

exigencies and requirement and they have refused

to work as instructed and hence refused to work

was marked and they were not paid wages. But the

reply given by the respondent is wrong and the

petitioner's union denied the same. In case if the

workmen refused to work as instructed, the show

cause notice should have been issued to them and

get the explanation from them. But they have not

done so. Hence, this industrial dispute is filed to

cancel the order of “Refused work" issued

on 13-8-2007 by the respondent and direct the

respondent to return the wage on the said date.

3 In the counter statement, the respondent has

stated as follows;-

The notification of Government of Pondicherry

is not maintainable in law and the reference has to

be

returned

to

the

Government

without

adjudication of the issues involved in the

industrial dispute as beyond its competence. The

relief of the petitioner cannot be claimed before

this court as this court has no jurisdiction to grant

the same and the said relief relating to the payment

of wages can be adjudicated only by the Industrial

Tribunal constituted under the Industrial Disputes

Act, 1947 and hence this Labour Court cannot

decide the issue of show cause notice to three

workmen concerned. Further the issue relating to

want of jurisdiction to decide the subject matter

of the dispute has to be taken up as a preliminary

issue and be decided in the first instance. Hence,

he prays for dismissal of the petition.

4. No oral evidence was adduced on either side.

On the side of the petitioner. Ex.P1 to Ex.P6 were

marked. On the side of the respondent, Ex.R1 to Ex.R5

were marked.

5. The point for determination is;

Whether the industrial dispute can be allowed?

6. On the point:

The contention of the petitioner is that the

w o r k m e n b y n a m e 1 . C . J a y a b a la n , 1 0 0 0 4 ,

2. S. Thirugnanam 5909 and P. Subburayan 5577 were

employees under the respondent mill. The said

workmen, though had attended duty in Ring Frame

on 13-8-2007, the respondent has not given the wages

to them on that day. Hence, the petitioner's union sent

a letter to the respondent and requested to give the

wages to them on that day. But the respondent have

not given proper reply to the petitioner and hence the

petitioner's union approached the Conciliation

Officer, who sent a letter to the respondent and the

respondent replied that the said three workmen were

posted to work in the Spinning Preparatory section

due to exigencies and requirement and they have

refused to work as instructed and hence refused to

work was marked and they were not paid wages.

7. In order to prove their claim, Ex.P1 to Ex.P6 were

marked on the side of the petitioner. Ex.P1 is the

notice sent by the petitioner to the respondent

claiming one day wages to the said three workmen.

Ex.P2 is the letter sent by the petitioner to the

Conciliation Officer informing about deduction of one

day wages to the said three workmen. Ex.P3 is the

copy of the letter sent by the respondent management

to the Conciliation Officer. Ex.P4 is the Maistry Hand

Book. Ex.P5 is the Labour Allocation Sheet and

Ex.P6 is the copy of the muster roll.

193

15 March 2011]

LA GAZETTE DE L’ETAT

8 Per contra, the contention of the respondent

is that the said workmen were posted to work in the

Spinning Preparatory section due to exigencies and

requirement, but they refused to work as instructed

and voluntarily worked in the Ring Frame Department

and hence, 'refused to work' was marked on that day

and they were not paid wages, since they had worked

on their own accordingly committing insubordination

and indiscipline.

9. In order to prove his claim, the respondent

has marked Ex.R1 letter, dated 1-9-2007 sent by them

to the petitioner. Ex.R2 is the letter, dated 14-9-2007

sent by the petitioner to the Labour Officer

(Conciliation). Ex.R3 is the reply, dated 7-1-2008 filed

by the respondent to the Labour Officer (Conciliation),

Ex.R4 is the rejoinder filed by the petitioner to the

Labour Officer (Conciliation), dated 4-2-2008. Ex.R5

is the Failure Report, dated 30-1-2009.

10. It is an admitted fact that the workmen by name

1. C. Jayabalan, 10004, 2. S. Thirugnanam 5909 and

P. Subburayan 5577 were the employees under the

respondent mill and on 13-8-2007 they worked in the

respondent mill. But the contention of the petitioner

is that though they were attended duty on 13-8-2007,

they were not paid wage on that day.

11. The respondent has sent a letter to the

Conciliation Officer under Ex.R3 wherein they have

stated as follows:-

"On 13-8-2007 first shift 21 employees were

present in the Ring Frame Department out of

w h i c h , t h r e e j u n i o r e m p l o y e e s n a m e l y

T. Subburayan, 5577, C. Jayabalan, 10004 and

S. Thirugnanam 5909 were posted to work in the

Spinning Preparatory section due to exigencies and

requirement. The abovesaid workers refused to work

as instructed and voluntarily worked in the Ring

Frame Department and in view of this, instead of

the six allotted ring frame machines, the seventh

machine was also run without authorisation. Due

to their refusal to work in the preparatory section,

the machines in blow room, carding and drawing

were stopped which resulted in loss of production.

Due to their refusal and insubordination, loss of

production occurred in the blow room, carding and

drawing sections. Hence, for the abovesaid three

workers "refused to work" was marked on that day

and they were not paid wages since they had

worked

on

their

own

accord

committing

insubordination and indiscipline."

12. But the petitioner in their letter under Ex.R4

denied the said version of the respondent and has

stated that on 13-8-2007 seven ring frame machines

were run and the said fact was known to one

Arumugam, who was the Supervisor in the respondent

mill and if the said Arumugam was examined, the real

truth will come out. But the said Arumugam has not

been examined as a witness on the side of the

respondent. Even there is no oral or documentary

evidence to prove the claim of the respondent.

13. The next contention of learned counsel for the

second respondent is that the notification of

Government of Pondicherry is not maintainable in law

and the reference has to be returned to the

Government without adjudication of the issues

involved in the industrial dispute as beyond its

competence and the relief of the petitioner cannot be

claimed before this court as this court has no

jurisdiction to grant the same and the said relief

relating to the payment of wages can be adjudicated

only by the Industrial Tribunal constituted under the

Industrial Disputes Act, 1947 and hence this

Labour Court cannot decide the issue of claiming

wages to three workmen concerned.

13. The said workmen are the poor litigants. The

Labour Courts are established to enforce the rights

and privileges of the employees, who are the weaker

section of the society. Their rights should not be

curtailed or suppressed. At the same time, there

should not be unlabour practice on both sides i.e.

by employer and employee. This reference was sent

to this court by the appropriate Government for

proper adjudication to render justice to the poor

workman. This court should scrutinise the reference

with balance of convenience. The poor workman

should not be made to run pillar to post to get one

day wages for which they also attended duty. In this

case, as already stated, the respondent has failed to

prove that the said workmen have refused to work as

instructed by the respondent management through

oral or documentary evidence. Under these

circumstances, the above contention cannot be taken

into consideration, as the petitioner has filed number

of document to show that the said workmen have

attended duty on 13-8-2007, for which they were not

paid wage by the respondent.

14. The power envisaged to the Labour Courts

under section 7 of the Industrial Disputes Act were

listed in the second schedule of the above Act. The

sixth item of the above list says that the powers of

this court include all matters other than those

specified in the third schedule. Hence, considering

the circumstances of this case, the argument of the

respondent that the petitioner cannot approach before

this court for the above claim is not hold good.

194

LA GAZETTE DE L’ETAT

[15 March 2011

Therefore, the petitioner has rightly approached

before this court for their relief and the relief of the

petitioner is also genuine one. Accordingly, this point

is answered.

15. In the result, the industrial dispute is allowed

and the respondent is hereby directed to pay

one day wage to the workmen by name 1. C. Jayabal,

2. S. Thirugnanasambandam and 3. T. Subburayan,

which was not paid on 13-8-2007, within one month

from the date of this award. However, there is no

order as to costs.

Typed to my dictation, corrected and pronounced

by me in the open court on this the 24th day of

November, 2010.

T. MOHANDASS,

II Additional District Judge,

Presiding Officer, Labour Court.

Pondicherry.

————

List of witnesses examined for the petitioner : Nil

List of witnesses examined for the respondent : Nil

List of exhibits marked for the petitioner :

Ex.P1— Letter, dated 1-9-2007 sent by the petitioner

to the respondent.

Ex.P2— Letter, dated 14-9-2007 sent by the

petitioner to Conciliation Officer.

Ex.P3— Copy of the letter, dated 7-1-2007 sent by

the respondent to the Conciliation Officer.

Ex.P4— Copy of Maistry Hand Book

Ex.P5— Copy of Labour Allocation Sheet

Ex.P6— Copy of muster roll.

List of exhibits marked for the respondent :

Ex.R1— Letter, dated 1-9-2007 to the respondent

by the petitioner.

Ex.R2— Letter, dated 14-9-2007 by the petitioner

to the Labour Officer.

Ex.R3— Reply, dated 7-1-2008 sent by the

respondent to the Labour Officer.

Ex.R4— Rejoinder filed by the petitioner to the

Labour Officer, dated 4-2-2008.

Ex.R5— Failure report, dated 30-1-2009.

T. MOHANDASS,

II Additional District Judge,

Presiding Officer, Labour Court.

Pondicherry.

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 45/AIL/Lab./J/2011, dated 2nd March 2011)

NOTIFICATION

Whereas, the Award in I.D.No.25/2005, dated 19-11-2010

of the Labour Court, Puducherry in respect of the

industrial dispute raised by Thiru P. Rajagopalan against

the management of M/s. Pondicherry Co-operative

Sugar Mills Limited, 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 23-5-1991, it is hereby directed

by Secretary to Government (Labour) that the said

Award shall be published in the official gazette,

Puducherry.

(By order)

G. MALAR KANNAN,

Joint Secretary to Government (Labour).

————

BEFORE THE LABOUR COURT AT PONDICHERRY

Present :

Thiru T. MOHANDASS, M.A. M.L.,

II Additional District Judge,

Presiding Officer, Labour Court.

Friday, the 19th day of November 2010

I.D. No. 25/2005

P. Rajagopalan

. . Petitioner

Versus.

The Managing Director,

Pondicherry Co-operative Sugar

Mills Limited.

. .

Respondent

This industrial dispute coming on 11-11-2010 for final

hearing before me in the presence of Thiru B. Mohandass,

advocate for the petitioner, Thiru. K. Palaniappan and

Tmt. R. Asvani Palaniappaan, advocates for the respondent,

upon hearing both sides, upon perusing the case records,

after having stood over for consideration till this day,

this court passed the following:

AWARD

This industrial dispute arises out of the reference

made by the Labour Department. Government, of

Pondicherry vide G. O. Rt. No. 158/AIL/Lab./J/2005,

dated 25-8-2005 for adjudicating the following :—

195

15 March 2011]

LA GAZETTE DE L’ETAT

1. Whether

the

n o n - e m p l o y m e n t

o f

Thiru P. Rajagopalan by the management of

M/s. Pondicherry Co-operative Sugar Mills Limited,

Pondicherry is justified or not?

2. To what relief, he is entitled to?

3. To compute the relief, if any, awarded in terms

of money if it can be so computed?

2. The petitioner, in his claim statement, has averred

as follows:

While he was working as Fitter-II in the

respondent mills, the respondent management issued

office order, dated 27-1-1995 granting him leave on

loss of pay for a period of three years with effect

from 28-1-1995. The said order stated that if required,

the leave would be extended for a further period of

two years.

Contrary to the above facts, the respondent

issued a charge sheets, dated 27-3-1998 alleging

unauthorised absence from duty continuously for

more than ten days from 28-1-1998 for which the

petitioner submitted his explanation, dated 11-4-1998.

However without accepting the explanation

submitted by the petitioner, the respondent

proceeded with the disciplinary proceedings against

him and finally dismissed him from service through

letter, dated 21-5-1999. Aggrieved by the same, the

petitioner has approached this court for redressing

his grievances after exhausting the conciliation

process. The Enquiry Officer has not conducted the

enquiry in accordance with law and principles of

natural justice. Hence, this industrial dispute is filed

to declare that the termination of services of the

petitioner by the respondent through order,

dated 22-5-1999 is null and void, to direct the

respondent to reinstate the petitioner in the post of

Fitter-II in the respondent mills with continuity of

service, back wages and consequential benefits and

to grant damages to the tune of ` 2,00,000 for

unlawful termination of services.

3. In the counter statement, the respondent has

stated as follows :—

The petitioner was working as Fitter-II, a post

falling under essential category. The office order, dated

27-1-1995 does not give any vested right to the

petitioner to claim extension of leave, as of right.

While extension was sought for by the petitioner,

having regard to the exigency and circumstances

and also the nature of his services, as essential

service, the leave was not extended. Even the

circular issued by the Joint Commissioner of

Sugar, Tamil Nadu does not apply to the services of

Essential Categories and even otherwise, it would be

a matter of discretion, when the extension is sought.

As the leave was not extended beyond 27-1-1998,

the absence of the petitioner from duty from 28-1-1998

continuously for more than 10 days was an act of

misconduct, in terms of standing orders of the mills.

Therefore, the disciplinary proceedings were initiated

against the petitioner and he was dismissed from

service by the order, dated 29-5-1998 by holding an

enquiry in accordance with the principles of natural

justice.

4. On the side of the petitioner. PW.1 was examined

and Ex. P1 to Ex. P18 were marked. On the side of the

respondent, RW1 was examined and no document was

marked on their side.

5. The point for determination is :

Whether the petitioner can be considered for

reinstatement in service with back wages?

6. On the point :

The contention of the petitioner is that while he

was working as Fitter-II in the respondent mills,

the respondent management issued office order,

dated 27-1-1995 granting him leave on loss of pay for a period

of three years with effect from 28-1-1995. The said order

stated that if required, the leave would be extended for

a further period of two years. Contrary to the

above facts, the respondent issued a charge sheet,

dated 27-3-1998 alleging unauthorised absence from

duty continuously for more than ten days from 28-1-1998

for which the petitioner submitted his explanation, dated

11-4-1998. However without accepting the explanation

submitted by the petitioner, the respondent proceeded

with the disciplinary proceedings against him and finally

dismissed him from service through letter, dated 21-5-1999.

7. Per contra, the contention of the respondent is

that the office order, dated 27-1-1995 does not give any

vested right to the petitioner to claim extension of leave,

as of right. While extension was sought for by the

petitioner, having regard to the exigency and

circumstances and also the nature of his services, as

essential service, the leave was not extended. Even the

circular issued by the Joint Commissioner of Sugar,

Tamil Nadu does not apply to the services of Essential

Categories and even otherwise, it would be a matter of

discretion when the extension is sought.

8. On the side of the petitioner, Ex.P1 to Ex.P18 were

marked. Ex.P1 is a copy of the letter, dated 20-1-1995

submitted by the petitioner to the respondent

requesting leave for a period of five years. The request

of the petitioner was accepted by the respondent and

granted leave for three years vide their letter, dated 18-8-1991

as could be seen from Ex.P2. Ex.P2 would further

disclose that the period of employment abroad shall

normally be three years which can be extended for

196

LA GAZETTE DE L’ETAT

[15 March 2011

a further period of two years. Ex.P3 the office order,

dated 27-1-1995 issued by the respondent to the

petitioner would confirm the said fact. Hence, the

petitioner has proved through Ex.P2 and Ex.P3 that he

was granted leave for three years and if required the

leave will be extended for a further period of two years.

9. The main contention of the petitioner is that in

contrary to the above facts, the respondent issued

a charge sheet, dated 27-3-1998 alleging unauthorised

absence from duty continuously for more than ten days

from 28-1-1998, for which the respondent has stated that

while extension was sought for by the petitioner, having

regard to the exigency and circumstances and also the

nature of his services as essential service, the leave was

not extended and as the leave was not extended beyond

27-1-1998, the absence of the petitioner from duty

from 28-1-1998 continuously for more than ten days was

an act of misconduct, in terms of the standing orders of

the mills.

10. From the evidence of PW.1, it is seen that the

petitioner has applied leave for five years to go to

Brunei for employment purpose and the period of

contract is five years and the respondent has

sanctioned leave for three years, which can be extended

for a further period of two years. PW.1 has further

stated in his cross-examination that before expiry of

leave for three years, the respondent has sent a letter to

him to report for duty and he requested the respondent

management to extend the leave for further period of two

years, but the extension order has not been sent by the

respondent.

11. From the above contentions, it is clear that the

petitioner had left India with sanction of leave by the

respondent. When the petitioner has applied leave for

a period of five years, it is for him to ascertain that the

leave was sanctioned and then to proceed to foreign

to join duty there. But at the same time, perusal of

Ex.P6 notice, dated 12-7-1997 would reveal that the

respondent sent a notice to the petitioner informing that

his leave has not been acceded to as his services were

coming under essentiality and that his absence causes

dislocation of work in the mills. When the leave

application Ex.P1 has been submitted by the petitioner

on 20-1-1995 to the respondent, which is also granted by

the respondent for the period of three years, why they

have sent a notice Ex.P6 to recall the petitioner and

to report for duty within seven days from the date of

receipt of the notice, before expiry of the said period

of three years, is not explained by the respondent,

particularly when the petitioner wanted to go abroad,

which was clearly mentioned in his leave application Ex.P1.

12. Though granting of leave is a discretionary

power on the part of the respondent management, they

should see the circumstances of the employees, in

which they are working. Normally, when a person goes

abroad for any job, he cannot return without completing

the contract period. Hence, the respondent management

should take careful decision firstly before sanctioning

leave and secondly before recalling its employees in the

above circumstances. Initially granting leave and

subsequently recalling them for work, citing essentiality

of service is unfortunate and unfair.

13. The petitioner in his claim statement averred that

the domestic enquiry has not been conducted by the

Inquiry Officer as prescribed by law in a neutral manner.

The Inquiry Officer has conducted the domestic enquiry

in a biased manner without giving any opportunity,

which are entitled for the delinquents as per law as well

as by the principles of natural justice. Moreover the

Inquiry Officer has not heard the contentions of the

petitioner and the enquiry report has also been

submitted with unjustified findings. In fact the

petitioner has not committed any misconduct as alleged

by the respondent. But the management has taken

action by way of issuing show cause notice and by way

of conducting domestic enquiry without following the

principles of natural justice and on wrong conclusion

by the Inquiry Officer the management dismissed the

petitioner.

14. The management filed its counter before this

court that they have followed the principles of natural

justice while charging the delinquent and conducting

the domestic enquiry by a neutral Inquiry Officer and

on proved charges alone, the petitioner had been

dismissed from his services as per the principles of

natural justice. It was stated by the management that

though the petitioner has been given fair chance to

peruse the records as well as to cross-examine the

witnesses who were examined on the side of the

management in the domestic enquiry, he failed to utilise

the same. The Inquiry Officer has decided the enquiry

in an ex parte manner and on considering the

documents as well the evidences of the management

witnesses, he had rightly come to the conclusion that the

charges of the petitioner were proved and on the

conclusion of the report submitted by the Inquiry

Officer, the petitioner has been terminated from his

services by way of punishment for the mistake

committed by them and hence, there is no scope to

intervene the order of this management by the Labour

Court and prays for the dismissal of the reference.

15. The cardinal point that has to be borne in mind

in every case, is whether the person concerned should

have a reasonable opportunity of presenting his case

and the authority should act fairly, justly, reasonably

and impartially. It is not so much to act judicially but is

to act fairly, namely, the procedure adopted must be

just, fair and reasonable in the particular circumstances

197

15 March 2011]

LA GAZETTE DE L’ETAT

of the case. In other words, application of the principles

of natural justice that no man should be condemned

unheard intends to prevent the authority from acting

arbitrarily and affecting the rights of the person

concerned.

16. It is a fundamental rule of law that no decision

must be taken which will affect the right of any person

without first being informed of the case and giving him

an opportunity of putting his case. The duty to give

reasonable opportunity to be heard will be implied from

the nature of the function to be performed by the

authority which has the power to take punitive or

damaging action. They have a duty to proceed in a way

which is free from even the appearance of arbitrariness,

unreasonableness or unfairness. They have to act in a

manner which is patently impartial and meets the

requirements of natural justice and the must take care to

see that justice is not only done but manifestly appears

to be done.

17. Perusal of records would reveal that after receipt

of the letter from the respondent about non-sanctioning

of the leave, he sent letters about his inability to report

for duty. But the respondent proceeded with the

disciplinary action. The petitioner in his letter, dated 24-4-1998

Ex.P4 has stated as follows :—

“..... Though the leave sanction order granted me

leave absolutely for three years with effect from 28-1-1995,

I requested extension of leave for further period of

two years through letter, dated 11-6-1997. In that

letter, I clearly pointed out that I cannot break the

contract of employment before the completion of five

years from my joining the service and if I break the

contract before that period, I will be forced to lose all

benefits as well as heavier compensation. Further my

passport is also with the employer which will not be

handed over to me until completion of the agreed

period. In fact, when the management started enquiry

against me on the ground of unauthorised absence

from duty for more than ten days, I approached my

employer at Brunei for relieving me from duty for the

purpose of coming back to India and to continue my

employment in Pondicherry Co-operative Sugar Mills

Limited, P 315. But my foreign employer refused my

request and through letter, dated 29-12-1997, I was

informed that the request for relief could not be

considered as I have entered a contract to work until

December 1999. ...”

The respondent has not considered the above

material points submitted by the petitioner. Since the

petitioner was abroad, on his behalf one Nallthambi,

Defence Assistant participated in the enquiry. After

adjourning four hearings, the Enquiry Officer came to

the conclusion that since adequate opportunities had

been given to the petitioner, he decided to furnish the

report on the merits of the case. No management

witnesses have been examined and cross-examined. In

the absence of the petitioner, the Inquiry Officer decided

the enquiry against him that the charges framed against

him are proved. The Inquiry Officer should not have

come to a conclusion without giving opportunity to the

petitioner, which shows the biasedness of the Inquiry

Officer against the petitioner.

18. It is the enquiry conducted ex parte and

dismissal of the petitioner's service based on the

ex parte enquiry report is against the principles of natural

justice as well as the labour laws. The labour laws are for

the welfare of the workmen to safeguard them from the

revengeful attitude of the management towards work

force. There is nothing wrong on the part of the

management to conduct the enquiry against the

petitioner, after giving opportunity to him to participate

in the enquiry proceedings and to let in rebuttal

evidence and thereafter arriving at a finding, in this

case, the enquiry had been conducted in an ex parte.

Since it was an ex parte enquiry, we need not go into

the sustainability of the charge. Upon the ex parte

enquiry report alone, the respondent management also

acted to dismiss their employee, which is against the

principles of natural justice.

19. The respondent company has taken action

against the petitioner based on the ex parte enquiry

report and when the respondent has conducted the

domestic enquiry in a biased manner without giving any

opportunity which are entitled for the petitioner as per

law as well as by the principles of natural justice,

the decision of dismissal of the petitioner from the

company by the respondent is an erroneous one and is

also unjustified and hence the petitioner can get the

benefit of reinstatement.

20. The next issue before me is:– Whether the

petitioner is entitled to full back wages. This issue must

be determined keeping in view the aforementioned

background of the case. There can, however, be no

doubt whatsoever that there has been a shift in the

approach of this court in regard to payment of back

wages. Back wages cannot be granted almost

automatically upon setting aside an order of termination.

The Hon’ble Apex Court and High Courts in a number

of decisions opined that grant of back wages is not

automatic. The burden of proof that he remained

unemployed would be on the workmen keeping in view

of the provisions contained in section 106 of

the Evidence Act, 1972. This court in the matter of grant

of back wages has laid down certain guidelines stating

that therefore several factors are required to be

considered including the nature of appointment; the

mode of recruitment; the length of service.

198

LA GAZETTE DE L’ETAT

[15 March 2011

21. It is also trite that for the purpose of grant of

back wages, conduct of the concerned workman also

plays a vital role. Each decision, as regards grant of back

wages or the quantum thereof, would, therefore, depend

on the facts of each case. It cannot be claimed as a

matter of right. The petitioner cannot get two wages

from the two employers for the same period. Considering

the facts and circumstances of this case, this court

comes to the conclusion that the petitioner is not

entitled to get the full back wages, continuity of service

and other benefits. The point is decided accordingly.

22. In the result, the industrial dispute is allowed and

the respondent is hereby directed to reinstate the

petitioner. However, the petitioner is not entitled to get

full back wages, continuity of service and other

benefits. There is no order as to costs.

Typed to my dictation, corrected and pronounced by me

in the open court on this the 25th day of November 2010.

T. MOHANDASS,

II Additional District Judge,

Presiding Officer, Labour Court,

Pondicherry.

————

List of witnesses examined for the petitioner :

PW1

—

4-3-2010 - Rajagopalan

List of witnesses examined for the respondent :

RW1

—

23-9-2010 - Pannerselvam

List of exhibits marked for the petitioner :

Ex.P1 —

Letter, dated 20-1-1995 sent by the petitioner

to the respondent.

Ex.P2 —

Office order, dated 27-1-1995 issued by

the respondent.

Ex.P3 —

Charge memo., dated 27-3-1998

Ex.P4 —

Explanation, dated 24-4-1998 submitted

by the petitioner.

Ex.P5 —

Letter, dated 11-6-1997 submitted by the

petitioner.

Ex.P6 —

Notice, dated 12-7-1997 sent by the

respondent to the petitioner.

Ex.P7 —

Notice of enquiry, dated 8-9-1997 sent

by the Enquiry Officer.

Ex.P8 —

Advocate notice, dated 21-2-1998

Ex.P9 —

Enquiry report, dated 25-2-1999

Ex.P10 —

Show cause notice, dated 6-3-1999

Ex.P11 —

Explanation, dated 14-5-1999 submitted

by the petitioner.

Ex.P12 —

Office order, dated 27-5-1999

Ex.P13 —

Advocate notice, dated 30-6-1999 sent

by the petitioner.

Ex.P14 —

Reply, dated 31-7-1999 sent by the

respondent.

Ex.P15 —

Failure report, dated 31-3-2001

Ex.P16 —

Representation, dated 13-6-1994

Ex.P17 —

Memorandum, dated 10-3-1994 sent by

the respondent.

Ex.P18 —

Standing orders of the respondent

mills.

List of exhibits marked for the respondent : Nil

T. MOHANDASS,

II Additional District Judge,

Presiding Officer, Labour Court,

Pondicherry.

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