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[19 April 2011
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 78/AIL/Lab./J/2011, dated 5th April 2011)
NOTIFICATION
Whereas, the Award in I. D. No. 14/2005,
dated 21-12-2010 of the Labour Court, Puducherry in
respect of the industrial dispute between the management of
M/s. Unicorn (Bangalore) Private Limited, Puducherry
and Thiru. S. Sivarasu 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.
Tuesday, the 21st day of December 2010
I. D. No. 14/2005
S. Sivarasu,
37, Perambai Road, Arasur,
Villianur Post,
Pondicherry.
. . Petitioner
Versus
The Managing Partner,
Unicorn (Bangalore) Private Limited,
Mettupalayam, Pondicherry.
. .
Respondent
This industrial dispute coming on 20-12-2010
for final hearing before me in the presence of
Thiru R.S. Zivanandam, advocate for the petitioner and
Thiruvalargal K.V. Shanmuganathan and L. Vivekananthan
and M/s. V. Vaijayanthimala, 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. 2/2005/Lab./J, dated 3-1-2005
for adjudicating the following :—
1. Whether the non-employment of Thiru S. Sivarasu by
the management of M/s. Unicorn (Bangalore) Private
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:
The petitioner is an Executive Committee Member
and an active functionary of the unit of the Industrial
Estate Workers Union functioning in the respondent
industry. The petitioner was Grade-I Operator of the
respondent industry for the past ten years with
satisfactory and unblemished service records.
While so, the respondent management had
derecognised the industrial estate workers union in
which the petitioner is a member. Consequently, the
members of the union to which the petitioner
belongs, were threatened and insisted by the
respondent to leave the trade union activities. As
part of the series of threats unleashed by the
respondent management, the members of the union to
which the petitioner belongs, were verbally denied
employment. The dismissed workers were on
continuous hunger fast in front of the premises of the
respondent industry obtaining prior permission from
the Police Department and the petitioner also one
among them.
In these circumstances, the petitioner received an
order, dated 13-2-2004 from the respondent
dismissing him from service for the charge of
physically preventing a contract worker from entering
the factory premises of the respondent management.
The order of dismissal was given without holding
any domestic enquiry or issuing show cause notice,
which is against natural justice. No such incident as
alleged by the respondent management had taken
place. Aggrieved by the dismissal order of the
respondent, the petitioner raised an industrial
dispute before the Labour Officer (Conciliation) over
the wrongful dismissal by the respondent.
3. In the counter statement, the respondent has
stated as follows :—
The petitioner had unauthorisedly absented
himself from work for 46 days from January 2002 to
December 2002. Again he had absented himself from
work from January 2003 to May 2003. In this regard,
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a show cause notice was issued on 5-6-2003. However,
the petitioner refused to receive the same. By absenting
unauthorisedly, the petitioner has caused dislocation
of work. As a result, the respondent had suffered
loss to the tune of ` 1,60,506. The respondent
issued a show cause notice in this regard. However,
the petitioner has refused to receive the same.
On 29-1-2004 during the third shift, at about 5.00 a.m.
the petitioner was found sleeping while on duty by
the Manager of the respondent. The petitioner was
castigated by the Manager in the presence of Shift
Supervisor then and there. In this regard, a show
cause memo. was issued to the petitioner. However,
he has not only refused to receive the same but also
left the work spot unauthorisedly along with the other
workmen, who were in the third shift. This act of the
petitioner has adversely affected the management.
Hence, a show cause notice was issued to the
petitioner on 2-2-2004, which was also refused to
receive the same by the petitioner. Therefore, the
past record of the petitioner is not clean.
Further the petitioner along with his colleagues,
indulged in the misconduct of riotous and unruly
behaviour in front of main gate of the petitioner unit
at about 8.15 a.m. on 9-2-2004 and prevented a
contract worker from entering the company premises.
Again, the petitioner accompanied by his colleagues,
attempted to assault the Joint Managing Director of
the respondent. They also abused him using filthy
language. In this regard, the petitioner was placed
under suspension on 10-2-2004. When the
respondent attempted to serve the suspension order
on the petitioner on 10-2-2004, he had refused to
receive the same. Having left with no other go, the
petitioner was dismissed from service for his riotous
and unruly behaviour. The misconduct committed by
the petitioner is grave one. It has adversely affected
the discipline and control among the work force.
Hence, they prayed for dismissal of the industrial
dispute.
4. On the side of the petitioner, PW.1 was examined
and no documents were marked. On the side of the
respondent, RW.1 was examined and Ex. R1 to Ex. R9
were marked.
5. The point for determination is:
Whether the petitioner can be considered for
reinstatement in service with back wages and other
benefits?
6. On the point :
It is an admitted fact that the petitioner was an
employee in the respondent company. The main
contention of the petitioner is that he was an Executive
Committee Member in the union of the Industrial Estate
Workers functioning in the respondent company and
since he was involved in the union activities, he along
with some other workers were denied employment and
the dismissed workers were in continuous hunger
fasting in front of the premises of the respondent
company and in these circumstances, he received an
order, dated 13-2-2004 dismissing him from service for
the charge of physically preventing the contract workers
from entering into the factory premises. In order to
prove the same, the petitioner was examined as PW.1
and PW.1 in his evidence has deposed the said version,
but no documents were marked on his side.
7. Per contra, the contention of the respondent is
that the petitioner had unauthorisedly absent himself
from work for 46 days from January 2002 to December 2002
and again he had absented himself from work
from January 2003 to May 2003 and hence, a show cause
notice was issued on 5-6-2003 to the petitioner, but he
had refused to receive the same. The respondent has
further submitted that due to the said unauthorised
absent of the petitioner, the respondent had suffered a
loss to the tune of ` 1,60,506 and in this regard, a show
cause notice was also issued to the petitioner, but the
same was also not received by him. On the side of the
respondent, the learned counsel for the respondent
relied upon the following decisions :-
2005(2) L.LN. 661 :-
“Misconduct - Insubordination - Acts subversive
of discipline - Punishment of dismissal from service-
Validity -Workman charged for misconduct of
gheraoing senior officers of company for long hours-
During gherao one of the officers received injuries-
Evidence of management witness and documentary
evidence established chare against workman - Order
of dismissal from service not interfered with.”
AIR 2005 S.C.1993 :-
“Misconduct - Order of punishment - Reduction -
In absence of factors like punishment being
disproportionate
or
any
other
mitigating
circumstances or past conduct of workman -Labour
Court cannot by way of sympathy alone exercise
power under S.11 -A and reduce punishment.”
2006(1) L.LN.874 :-
“Domestic enquiry - Principles of natural justice -
Things admitted, held, need not be proved - Further,
in this case, besides admission of abusing superior
in filthy language witnesses were also examined for
proving the charges.”
8. In order to prove the contention of the
respondent, Ex. R1 to Ex. R9 were marked. Ex. R1 is a
show cause notice, dated 5-6-2003 wherein the petitioner
was advised to give the explanation for unauthorised
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[19 April 2011
absent. Ex. R2 is the attendance particulars of the
petitioner, which would show that the petitioner has
taken leave for 116 days from January 2002 to May 2003.
Ex.R3 is the particulars of production loss in the
respondent company for the period from 1-1-2003
to 31-5-2003. But the petitioner has denied Ex.R1 to
Ex.R3 and he has stated in his cross-examination that he
has not taken leave for 46 days from January 2002
to December 2002 and January 2003 to May 2003. When
the petitioner has denied about the unauthorised
absent, it is the duty of the respondent to examine any
of their employees before this court to prove the
misconduct of the petitioner. But except RW. 1, no other
witnesses were examined on the side of the respondent.
Ex. R2 can also not be taken into consideration, since it
is not supported by the attendance register maintained
by the respondent company. Further when the petitioner
has refused to receive Ex. R1, it is for the respondent
who has to send the same through a registered post with
acknowledgment due and the said acknowledgment card
has to be filed before this court to prove that the
petitioner was refused to receive Ex.R1. But in this case,
Ex.R1 has not been sent to the petitioner through the
registered post.
9. According to the respondent, the petitioner was
unauthorised absent for 46 days from January 2002
to December 2002. But during the said period, no action
was taken against the petitioner for the said
unauthorised absent and the show cause notice was
issued only on 5-6-2003. There is no plausible
explanation on the side of the respondent for the same.
Hence, the contention of the respondent that the
petitioner was unauthorisedly absent for 46 days from
January 2002 to December 2002 and again from January
2003 to May 2003 is not properly proved.
10. It is the further contention of the respondent
that the petitioner was sleeping while he was on duty
on 29-1-2004 and hence a show cause notice was issued
on 2-2-2004 to him calling for explanation, but the
petitioner has refused to receive the same.
11. In order to prove the same, the respondent
has marked the show cause notices, dated 31-1-2004
as Ex. R4 and dated 2-2-2004 as Ex. R5, Ex. R6 is the
apology letter submitted by the petitioner to the
respondent management admitting the misconduct of
sleeping while on duty on 29-1-2004 during the third shift.
Though PW.1 during his cross-examination has admitted
about Ex. R6, he denied the said misconduct of sleeping
while he was on duty on the said day. As per Ex. R4, the
said incident was noticed by one M.S. Vasan, who was
the shift in charge on that day. But the said Vasan has
not been examined as a witness before this court.
12. The learned counsel for the petitioner would
submit that the order of dismissal was given without
holding any domestic enquiry or issuing show cause
notice is against the law of labour legislations and
principles of natural justice.
13. On the other hand, the learned counsel for the
respondent
would
submit
that
the
petitioner
accompanied by his colleagues, attempted to assault the
Joint Managing Director of the respondent and they
also abused him using filthy language and hence the
petitioner was placed under suspension on 10-2-2004
and when the respondent attempted to serve the
suspension order on the petitioner on 10-2-2004, he had
refused to receive the same and having left with no
other go, the petitioner was dismissed from service for
his riotous and unruly behaviour. The learned counsel
for the respondent would further submit that since the
petitioner had indulged in grave misconduct against the
Joint Managing Director of the respondent, the
respondent could not hold domestic enquiry.
14. On perusal of records, it is seen that the
respondent has not conducted any domestic enquiry for
the misconducts of the petitioner, as alleged by the
respondent. In this case, the respondent has not proved
any misconducts of the petitioner through oral or
documentary evidence. According to the respondent,
the petitioner along with some others was attempted to
assault the Joint Managing Director and they also used
filthy language against him. But in this regard, though
a police complaint Ex. R7 was filed against the petitioner
and others, no F.I.R. was registered against them.
15. The respondent being an employer, has to
safeguard the interest of their employees. When the
petitioner has committed misconducts of sleeping
while he was on duty and attempted to assault the
Joint Managing Director, they have to conduct the
domestic enquiry and in the enquiry, opportunity has to
be given to the petitioner to peruse the records and
cross-examine the management witnesses and after
complying all the formalities only, they have to take
action against him. In this case, the respondent, without
conducting the domestic enquiry, has taking action
against the petitioner directly by dismissing him from
service and hence the respondent has violated the
principles of natural justice. Hence, this court comes to
a conclusion that the non-employment of the petitioner
from service is not justified. In this case, no evidence
has been produced against the petitioner for the alleged
misconducts, for which he has been dismissed from
service. But it does not mean that the petitioner has not
involved to commit the said misconducts. Considering
the family circumstances of the petitioner, who is jobless
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19 April 2011]
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from 2004 without earning he has to be reinstated
without back wages and continuity of service in the
interest of justice. Hence, considering the facts and
circumstances of the case, the petitioner is ordered to
be reinstated but not entitled for continuity of service
and back wages. Accordingly, this point is answered.
14. In the result, the industrial dispute is partly
allowed and the respondent management is hereby
directed to reinstate the petitioner into service.
However, he is not entitled for continuity of service and
back wages. No costs.
Typed to my dictation, corrected and pronounced by me
in the open court on this the 21st day of December 2010.
T. MOHANDASS,
II Additional District Judge,
Presiding Officer, Labour Court,
Pondicherry.
————
List of witnesses examined for the petitioner :
PW.1 — 25-3-2010
Sivarasu
List of witnesses examined for the respondent :
RW.1— 23-9-2010
P. Gnanagurupatham
List of exhibits marked for the petitioner : Nil.
List of exhibits marked for the respondent :
Ex. R1 — Memo. dated 5-6-2003 issued by the
management to the petitioner.
Ex. R2 — Attendance register period from January 2002
to May 2003.
Ex. R3 — Loss of pay statement
Ex. R4 — Memo. dated 31-1-2004 issued by the
management to the petitioner.
Ex. R5 — Memo. dated 2-2-2004 issued by the
management to the petitioner.
Ex. R6 — Letter, dated 4-2-2004 submitted by the
petitioner.
Ex. R7 — Petition, dated 9-2-2004 issued by the
management to Sub-Inspector of Police.
Ex. R8 — Suspension order, dated 10-2-2004 issued
by the management.
Ex. R9 — Dismissal order, dated 13-2-2004.
T. MOHANDASS,
II Additional District Judge,
Presiding Officer, Labour Court,
Pondicherry.
GOVERNMENT OF PUDUCHERRY
DEPARTMENT OF INDUSTRIAL DEVELOPMENT (PORT)
(G. O. Ms. No. 1, dated 30th March 2011)
ORDER
In continuation to the extension of the provisions
of the Indian Ports Act, 1908 to the Karaikal Port vide
G. O. Ms. No. 1, dated 17-3-2005 issued by this
department and the orders issued vide G. O. Ms. No.2,
dated 21-1-2006 issued by this department approving
the execution of Concession Agreement between
Government
of
Puducherry
and
M/s.
Marg
Constructions Limited, Chennai and the concessionaire
having developed Phase-I of the Karaikal Port in terms
of the Concession Agreement, dated 25-1-2006 as duly
certified by the expert appointed under the said
Concession Agreement, in the light of the request of
Karaikal Port Private Limited made vide Letter
No. KPPL/COD/GOP/5/2009, dated 13-1-2011 of
M/s. Karaikal Port Private Limited for declaring the
commercial operations date for Phase-I of the Karaikal
Port in terms of the said Concession Agreement, the
approval of the Lieutenant-Governor, Puducherry is
hereby accorded declaring 1st June 2009 as the date on
which the commercial operations shall be deemed to
have been commenced in respect of Phase-I of Karaikal Port.
(By order of the Lieutenant-Governor)
S. ALPHONSE,
Under Secretary to Government.
————
GOVERNMENT OF PUDUCHERRY
DEPARTMENT OF INDUSTRIAL DEVELOPMENT (PORT)
(G.O. Ms. No. 2, dated 30th March 2011)
NOTIFICATION
In exercise of the powers conferred by sub-section (1)
of section 7 of the Indian Ports Act, 1908 (Central Act
15 of 1908), the Lieutenant-Governor, Puducherry
hereby appoint M/s. Marg Constructions Limited,
Chennai, represented by Karaikal Port Private Limited,
Karaikal, a company incorporated under the Companies
Act, 1956 (Central Act 1 of 1956) as Conservator of the
Karaikal Port in Union territory of Puducherry subject
to the said Act until further orders.
(By order of the Lieutenant-Governor)
S. ALPHONSE,
Under Secretary to Government.