290
LA GAZETTE DE L’ETAT
[10 May 2011
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 93/AIL/Lab./J/2011, dated 25th April 2011)
NOTIFICATION
Whereas, the Award in I.D. No.14/2008, dated
17-12-2010 of the Labour Court, Puducherry in respect
of the industrial dispute between the management of
M/s. Ajantha Cycle Parts Industry, Puducherry and
Thiru A. Arul 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 the Secretary to Government (Labour) that
the said Award shall be published in the official gazette,
Puducherry.
(By order)
N. APPA RAO,
Under 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 17th day of December 2010
I. D. No. 14/2008
A. Arul,
No.19, 2nd Street, Pudupet,
Koodapakkam, Pondicherry
. .
Petitioner
Vs.
The Managing Partner,
Ajantha Cycle Parts Industry,
Thattanchavady, Pondicherry.
. .
Respondent
This industrial dispute coming on 13-12-2010 for final
hearing before me in the presence of Thiru P. Sankaran,
advocate for the petitioner and Thiru C. Jagadeesan,
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. 93/2008/AIL/Lab./J, dated
6-6-2008 for adjudicating the following :-
1. Whether the dispute raised by Thiru A. Arul
against the management of M/s. Ajantha Cycle Parts
Industries, Pondicherry over his non-employment 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 Jointing Man from
October 1998 in the respondent company to the
utmost satisfaction of the company. From 21-11-2005
he went on leave and when he reported for duty on
30-11-2005, the respondent company refused to give
the employment. The respondent management,
without conducting any domestic enquiry, have
dismissed him from service, which is against the
labour law. The petitioner was working for ten years
in the respondent company and since the union was
started, they took revenge against him. Hence, this
industrial dispute is filed for reinstatement with
continuity of service, back wages and other benefits.
3. In the counter statement, the respondent has
stated as follows :-
The petitioner was absent for duty from 3-10-2005
onwards without applying any leave or prior
intimation. Hence on 21-11-2005 the respondent sent
a letter to the petitioner, calling explanation for his
unauthorised absence from 3-11-2005. The petitioner
received the said letter, but failed to report for duty.
On 15-11-2005 the respondent once again sent a letter
to report for duty on or before 22-12-2005, but the
said letter returned with an endorsement “Refused
return to the sender”. On 28-2-2006 the respondent
further sent a letter advising him to join duty within
ten days from the date of receipt of the said letter.
The petitioner received the said letter, but failed to
report for duty. Hence, the petitioner is not entitled
for any relief under any circumstances for his
unauthorised absence and voluntarily withdrew from
his employment, even after repeated reminders sent
to him. Hence, he prays for dismissal of the industrial
dispute.
291
10 May 2011]
LA GAZETTE DE L’ETAT
4. No oral evidence was adduced on either side and
Ex.P1 to Ex.P8 were marked on the side of the petitioner
and Ex.R1 to Ex.R6 were marked on the side of the
respondent.
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:
The contention of the petitioner is that he was
working as Jointing Man from October 1998 in the
respondent company to the utmost satisfaction of the
company and from 21-11-2005 he went on leave and
when he reported for duty on 30-11-2005, the
respondent company refused to give the employment.
He further submitted that the respondent management,
without conducting any domestic enquiry, have
dismissed him from service, which is against the labour
law and the petitioner was working for ten years in the
respondent company and since the union was started,
they took revenge against him.
7. Per contra, the contention of the respondent is
that the petitioner was absent for duty from 3-10-2005
onwards without applying any leave or prior intimation
and hence on 21-11-2005 they sent a letter to the
petitioner, calling explanation for his unauthorised
absence from 3-11-2005. It is further stated by the
respondent that the petitioner received the said letter,
but failed to report for duty and on 15-11-2005 they
once again sent a letter to report for duty on or before
22-12-2005, but the said letter returned with an
endorsement “Refused return to the sender” and on 28-2-2006
they further sent a letter advising him to join duty within
ten days from the date of receipt of the said letter and
the petitioner received the said letter, but failed to
report for duty and hence, the petitioner is not entitled
for any relief under any circumstances for his
unauthorised absence.
8. It is an admitted fact that the petitioner was an
employee in the respondent company. The main
contention of the petitioner is that he went on leave from
21-11-2005 and when he reported for duty on 30-11-2005,
he was not permitted to work by the respondent
company. On the other hand, the respondent would submit
that the petitioner was absent for duty from 3-10-2005
without applying any leave or prior intimation.
9. On perusal of records, it is seen that the petitioner
has not produced any documentary evidence to show
that he went on leave after getting prior permission from
the respondent management. The petitioner is an
employee under the respondent company and it is for
him to get prior sanction from his employer and then to
proceed on leave that too when he proceeded on long
leave. In this case, the respondent has not sanctioned
any leave to the petitioner.
10. According to the respondent, since the
petitioner was absent for duty from 3-10-2005 onwards
without applying any leave or prior intimation, on 21-11-2005
they sent a letter advising him to join duty on or before
30-11-2005 and he received the said notice but he
continued to be absent. In order to prove his
contention, the respondent has marked the letter Ex. R1
dated 21-11-2005 wherein the respondent has informed
the petitioner that he has to join duty on or before 30-11-2005
otherwise his name will be deleted from the company
records. The petitioner received the said letter under
acknowledgment card Ex.R2. Ex.R3 is another letter
dated 15-12-2005 sent to the petitioner by the
respondent wherein they informed that since the
petitioner has not joined duty, he has to give
explanation for the same and also he has to join duty on
or before 22-12-2005. Ex. R3 has been returned with an
endorsement “Refused return to sender” which has been
marked as Ex.R4. Ex.R5 is another letter dated 28-2-2006
sent by the respondent to the petitioner dismissing him
from service and the said letter has been received by the
petitioner under acknowledgment card Ex. R6. From the
documents filed on the side of the respondent, it is seen
that in spite of several opportunities given by the
respondent, the petitioner has not joined duty and he
has also not given any explanation for his continuous
absent and hence this court comes to the conclusion
that the petitioner has unauthorisedly absent and he
went on leave without obtaining prior permission from
the respondent management. Though on the side of the
petitioner, Ex.P1 to Ex.P8 were marked, the said
documents are not in any way helpful to his case.
11. The contention of the petitioner is that without
giving opportunity to him and without conducting any
domestic enquiry, he was dismissed from service by the
respondent, which is against labour legislations.
12. On perusal of records, it is seen that the
respondent has not conducted any domestic enquiry for
the alleged misconduct of the petitioner. In this case,
since the petitioner was absent from 3-10-2005, the
respondent sent a letter Ex. R1 informing the petitioner
to join duty on or before 30-11-2005 and since the
petitioner has not joined duty, another two letters have
been sent to him to give explanation for his
unauthorised absence and since there is no response
from the petitioner, he was dismissed from service vide
letter, dated 28-2-2006 Ex.R5.
292
LA GAZETTE DE L’ETAT
[10 May 2011
13. The respondent being an employer, has to
safeguard the interest of their employees. When the
petitioner is continuously absent without getting any
prior sanction, he has 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 has not conducted any
domestic enquiry and has violated the principles of
natural justice. When the petitioner is not of a habitual
absentee, the punishment imposed by the respondent
management is disproportionate. In this regard, it is
pertinent to refer the decision, which is relevant to this case:-
2009 (III) LLJ 373 (SC) Jagdish Singh Vs. Punjab
Engineering College and Others:-
“When the Court and Tribunals are satisfied that
the punishment imposed by the disciplinary
authority is shockingly disproportionate, the
decision of the disciplinary authority can be
interfered. Therefore, when the delinquent employee
is not of a habitual absentee and seems to have a
good track record, and also the alleged misconduct of
unauthorised absence is not of gross violation of
discipline, the major punishment of dismissal can be
interfered”
In this case, the respondent has not raised any serious
misconduct prior to the present absenteeism. Hence,
the misconduct that is alleged would definitely amounts
to violation of discipline that is expected of an
employee to maintain in the establishment, but may not
fit into the category of gross violation of
discipline. Hence, this court comes to a conclusion that
the non-employment of the petitioner from service is
not justified. But at the same time the available records
would clearly prove that the petitioner was proceeding
on leave without getting prior permission from the
respondent. Therefore, considering the facts and
circumstances of the case, the petitioner is entitled for
reinstatement in service with continuity of service but
not entitled for back wages. Accordingly, this point is
answered.
14. In the result, the industrial dispute is partly
allowed and the petitioner is entitled for reinstatement
with continuity of service. However, he is not entitled
for back wages and other benefits. No costs.
Typed to my dictation, corrected and pronounced by me
in the open court on this the 17th day of December 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 12-11-2005 sent to the
respondent.
Ex.P2 — Letter, dated 21-11-2005 sent to the petitioner
by the respondent.
Ex.P3 — Letter, dated 7-1-2006 sent by the
petitioner to the respondent.
Ex.P4 — Copy of the letter, dated 23-2-2006 sent by
the petitioner to the respondent.
Ex.P5 — Letter, dated 28-2-2006 sent by the
respondent to the petitioner.
Ex.P6 — Copy of the letter, dated 24-5-2006 sent by
the petitioner to the Conciliation Officer.
Ex.P7 — Copy of the letter, dated 24-6-2007 sent
to Secretary to Government (Labour).
Ex.P8 — Copy of the notification dated 6-6-2008.
List of exhibits marked for the respondent:
Ex.R1 — Copy of the letter, dated 21-11-2005
sent to the petitioner.
Ex.R2 — Acknowledgment card
Ex.R3 — Copy of the letter, dated 15-12-2005 sent
to the petitioner.
Ex.R4 — Returned postal cover
Ex.R5 — Copy of the letter, dated 28-2-2006 sent
to the petitioner.
Ex.R6 — Acknowledgment card.
T. MOHANDASS,
II Additional District Judge,
Presiding Officer, Labour Court,
Pondicherry.
————
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 94/AIL/Lab./J/2011, dated 25th April 2011)
NOTIFICATION
Whereas, the Award in I.D. No.8/2008, dated 17-12-2010
of the Labour Court, Puducherry in respect of the
industrial dispute between the management of
M/s. Ajantha Cycle Parts Industry, Puducherry and
Thiru Kulanthaiperumal over non-employment has been
received;
293
10 May 2011]
LA GAZETTE DE L’ETAT
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)
N. APPA RAO,
Under 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 17th day of December 2010
I. D. No. 8/2008
Kulanthaiperumal,
552, Pudhu Nagar,
Thirukkanur, Pondicherry
. .
Petitioner
Versus
The Managing Partner,
Ajantha Cycle Parts Industry,
Thattanchavady, Pondicherry.
. .
Respondent
This industrial dispute coming on 13-12-2010 for final
hearing before me in the presence of Thiru P. Sankaran,
advocate for the petitioner and Thiru C. Jagadeesan,
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.62/2008//AIL/Lab./J, dated
25-3-2008 for adjudicating the following :—
1. Whether the dispute raised by
Thiru Kulanthaiperumal against the management of
M/s. Ajantha Cycle Parts Industries, Pondicherry over
his non-employment 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 Washingman from 1995
in the respondent company to the utmost satisfaction
of the company. From 6-10-2005 he went on leave
and when he reported for duty on 31-10-2005, the
respondent company refused to give the employment.
On 16-11-2005 the respondent management informed
the petitioner through a letter that his name was
deleted from the company records and by way of letter,
dated 1-12-2005, the petitioner was dismissed from
service with effect from 19-11-2005. The respondent
management, without conducting any domestic
enquiry, have dismissed him from service, which is
against the labour law. The petitioner was working
for eight years in the respondent company and since
the union was started, they took revenge against
him. Hence, this industrial dispute is filed for
reinstatement with continuity of service, back wages
and other benefits.
3. In the counter statement, the respondent has
stated as follows :—
The petitioner was absent for duty from 3-10-2005
onwards without applying any leave or prior
intimation. Hence on 25-10-2005 the respondent sent
a letter advising the petitioner to join duty on or
before 31-10-2005. The petitioner received the said
notice and joined duty on 31-10-2005 only and
continued to be absent from 1-11-2005. Again on
16-11-2005 the respondent sent a letter informing him
that he himself terminated his service voluntarily and
advising him to receive the emoluments due to him
till 19-11-2005. On 1-12-2005 the respondent sent
another letter to remind him to receive the
emoluments due to him in the office of the factory
unit during the working hours. The petitioner
received the said letter and gave evasive reply and
failed to join duty. Hence, on 17-1-2006 the
respondent sent a letter to the petitioner informing
him to receive the arrears of salary and other
benefits, but the petitioner did not comply with.
Hence, he prays for dismissal of the industrial
dispute.
4. No oral evidence was adduced on either side and
Ex.P1 to Ex.P7 were marked on the side of the petitioner
and Ex.R1 to Ex.R10 were marked on the side of the
respondent.
5. The point for determination is:
Whether the petitioner can be considered for
reinstatement in service with back wages and other
benefits?
294
LA GAZETTE DE L’ETAT
[10 May 2011
6. On the point:
The contention of the petitioner is that he was
working as Washingman from 1995 in the respondent
company to the utmost satisfaction of the company and
from 6-10-2005 he went on leave and when he reported
for duty on 31-10-2005, the respondent company
refused to give the employment. The petitioner further
submitted that on 16-11-2005 the respondent
management informed him through a letter that his name
was deleted from the company records and by way of
letter, dated 1-12-2005, he was dismissed from service
with effect from 19-11-2005 and the respondent
management, without conducting any domestic enquiry,
have dismissed him from service, which is against the
labour law.
7. Per contra, the contention of the respondent is
that the petitioner was absent for duty from 3-10-2005
onwards without applying any leave or prior intimation
and hence on 25-10-2005 they sent a letter advising the
petitioner to join duty on or before 31-10-2005 and the
petitioner received the said notice and joined duty on
31-10-2005 only and continued to be absent from 1-11-2005
and again on 16-11-2005 they sent a letter informing him
that he himself terminated his service voluntarily and
advising him to receive the emoluments due to him till
19-11-2005.
8. It is an admitted fact that the petitioner was an
employee in the respondent company. The main
contention of the petitioner is that he went on leave
from 6-10-2005 and when he reported for duty on
31-10-2005, he was refused to work by the respondent
company. On the other hand, the respondent would
submit that the petitioner was absent from duty from
3-10-2005 without applying any leave or prior intimation.
9. On perusal of records, it is seen that the petitioner
has not produced any documentary evidence to show
that he went on leave after getting prior permission from
the respondent management. The petitioner is an
employee under the respondent company and it is for
him to get prior sanction from his employer and then to
proceed on leave that too when he proceeded on long
leave. In this case, the respondent has not sanctioned
any leave to the petitioner.
10. According to the respondent, since the
petitioner was absent for duty from 3-10-2005 onwards
without applying any leave or prior intimation on
25-10-2005 they sent a letter advising him to join duty
on or before 31-10-2005 and he received the said notice
and joined duty on 31-10-2005 only and continued to
be absent from 1-11-2005. In order to prove his
contention, the respondent has marked the letter Ex.R1,
dated 25-10-2005 wherein the respondent has informed
the petitioner that he has to join duty on or before
31-10-2005 otherwise his name will be deleted from the
company records. Ex.R3 is the another letter, dated
16-11-2005 sent to the petitioner by the respondent
wherein they informed that since the petitioner has not
joined duty, his name has been deleted from the
company records and informed him to receive the
balance arrears of amount. Both Ex.R1 and Ex.R3 letters
have been received by the petitioner under
acknowledgment cards Ex.R2 and Ex.R4. From the
documents filed on the side of the respondent, it is seen
that the petitioner has unauthorisedly absent and he
went on leave without obtaining prior permission from
the respondent management. Though on the side of the
petitioner, Ex.P1 to Ex.P7 were marked, the said
documents are not in any way helpful to his case.
11. The contention of the petitioner is that without
giving opportunity to him and without conducting any
domestic enquiry, he was dismissed from service by the
respondent, which is against labour legislations.
12. On perusal of records, it is seen that the
respondent has not conducted any domestic enquiry for
the misconduct of the petitioner. In this case, since the
petitioner was absent from 3-10-2005, the respondent
sent a letter Ex.R1 informing the petitioner to join duty
on or before 31-10-2005 and since the petitioner has
joined duty only on 31-10-2005 and subsequently he
was absent, the respondent sent another letter Ex.R3,
dated 16-11-2005 informing the petitioner that his name
has been deleted from the company records.
13. The respondent being an employer, has to
safeguard the interest of their employees. When the
petitioner is continuously absent without getting any
prior sanction, he has 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 has not conducted any
domestic enquiry and has violated the principles of
natural justice. When the petitioner requested the
respondent for his employment through a letter Ex.R7,
dated 9-1-2006, his request was refused by the
respondent vide his letter, dated 17-1-2006. When the
petitioner is not of a habitual absentee, the punishment
imposed
by
the
respondent
management
is
disproportionate. In this regard, it is pertinent to refer
the decision, which is relevant to this case:-
2009 (III) LLJ 373 (SC) Jagdish Singh Vs. Punjab
Engineering College and Others:—
“When the Court and Tribunals are satisfied
that the punishment imposed by the disciplinary
authority is shockingly disproportionate, the
decision of the disciplinary authority can be
295
10 May 2011]
LA GAZETTE DE L’ETAT
interfered. Therefore, when the delinquent employee
is not of a habitual absentee and seems to have a
good track record, and also the alleged misconduct
of unauthorised absence is not of gross violation of
discipline, the major punishment of dismissal can be
interfered”.
In this case, the respondent has not raised any
serious misconduct prior to the present absenteeism.
Hence, the misconduct that is alleged would definitely
amounts to violation of discipline that is expected of
an employee to maintain in the establishment, but may
not fit into the category of gross violation of discipline.
Hence, this court comes to a conclusion that the non-
employment of the petitioner from service is not
justified. But at the same time the available records
would clearly prove that the petitioner was proceeding
on leave without getting prior permission from the
respondent. Therefore, considering the facts and
circumstances of the case, the petitioner is entitled for
reinstatement in service with continuity of service but
he is not entitled for back wages. Accordingly, this
point is answered.
14. In the result, the industrial dispute is partly
allowed and the petitioner is entitled for reinstatement
with continuity of service. However, he is not entitled
for back wages and other benefits. No costs.
Typed to my dictation, corrected and pronounced by
me in the open court on this the 17th day of
December 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 16-11-2005 sent to the
petitioner.
Ex.P2 — Letter, dated 1-12-2005 sent to the
petitioner.
Ex.P3 — Copy of the letter, dated 29-12-2005 sent
by the petitioner to respondent.
Ex.P4 — Copy of the letter, dated 17-1-2006 sent to
the petitioner.
Ex.P5 — Copy of the letter, dated 23-2-2006 sent by
the petitioner to respondent.
Ex.P6 — Copy of the letter, dated 24-5-2006 sent by
the petitioner to Conciliation Officer.
Ex.P7 — Copy of the letter, dated 25-9-2007 sent to
the respondent.
List of exhibits marked for the respondent :
Ex.R1 — Copy of the letter, dated 25-10-2005 sent
to the petitioner.
Ex.R2 — Acknowledgment card.
Ex.R3 — Letter, dated 16-11-2005 sent to the
petitioner.
Ex.R4 — Acknowledgment card.
Ex.R5 — Copy of the letter, dated 1-12-2005 sent to
the petitioner.
Ex.R6 — Acknowledgment card.
Ex.R7 — Letter, dated 9-1-2006 sent by the petitioner
to the respondent.
Ex.R8 — Copy of the letter sent to the petitioner,
dated 17-1-2006.
Ex.R9 — Acknowledgment card.
Ex.R10— Copy of the letter, dated 23-2-2006 sent by
the petitioner to the respondent.
T. MOHANDASS,
II Additional District Judge,
Presiding Officer, Labour Court.
Pondicherry.
————
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 95/AIL/Lab./J/2011, dated 25th April 2011)
NOTIFICATION
Whereas, the Award in I. D. No. 35/2007, 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 J. Rajganesh 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 )
N. APPA RAO,
Under Secretary to Government (Labour).
296
LA GAZETTE DE L’ETAT
[10 May 2011
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. 35/2007
J. Rajganesh.
21, Puducherry Theru,
Sanarapet, Muthirapalayam,
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 Mrs. 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.152/2007/Lab./AIL/J, dated 12-11-2007
for adjudicating the following :-
1. Whether the non-employment of Thiru J. Rajganesh
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 was an employee as Machine
Operator from 27-5-1999. The workers formed a trade
union. Therefore the management did not allow the
entire work force to work exactly 60 members from
February 2004 and hence the union raised industrial
disputes with the management and also before the
Labour Officer (Conciliation). Before the Labour
Officer (Conciliation), the management did not heed
the request of the petitioner. Therefore, an industrial
dispute has been referred to the court. In the
reference, the name of the petitioner has been left
out and hence he raised a separate dispute on 1-6-2006
and on 27-11-2006. wherein which the management
alleged that the petitioner has done a serious
misconduct of habitual absence without leave. The reply
made by the management dated 13-2-2006 admitting
the petitioner’s capacity and denying the culpabilities
of the management in not allowing the workers to
work after starting the trade union. Therefore, the
management wants to remove the petitioner from the
rolls of the company. Since the petitioner has
involved in the union activities, he was dismissed
from service without conducting any domestic
enquiry and therefore it has violated the principal of
natural justice. Hence, this industrial dispute is filed.
3. In the counter statement, the respondent has
stated as follows:-
The petitioner was appointed as trainee in the
respondent company on 27-5-1999 and during the year
2001, the management of the respondent company
was taken over by the present management.
The petitioner was on probation when the present
management took over the respondent company.
While the petitioner was on probation, he did not
evince any interest in his work. He had abstained
from work with effect from 7-2-2004. He did not apply
for leave. The petitioner was only a probationer and
he had no lien on any post. The petitioner did not
make any representation to the respondent seeking
for reinstatement immediate after the so called
termination on 9-2-2004. The petitioner has raised the
present dispute only to make wrongful gain from the
management. Hence, they pray for dismissal of the
industrial dispute.
4. On the side of the petitioner, PW1 was examined
and Ex.P1 to Ex.P4 were marked. On the side of the
respondent. RW1 was examined and Ex.R1 and Ex.R2
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
subsequently he was dismissed from service without
holding any domestic enquiry. In order to prove the
same, the petitioner was examined as PW1 and PW1 in
his evidence has deposed the said version and Ex.P1
to Ex.P4 were marked.
297
10 May 2011]
LA GAZETTE DE L’ETAT
7. Per contra, the contention of the respondent is
that he was on probation when the present management
took over the respondent company and he had
abstained from work with effect from 7-2-2004 and he
did not apply for leave. In order to prove the same, the
Manager of the respondent company was examined as
RW1, who has stated the said facts and Ex.R1 and Ex.R2
were marked.
8. Heard both sides. Perused the case records. The
main contention of the petitioner is that he joined as
trainee in the respondent company and the action was
being taken by the management to place him as
probationer after take over by Acc Technology Group,
bonus was paid at 8.33 % by the new management
and also stopped other privileges and placing on
probation and he was not allowed inside the factory by
the security on 9-2-2004 without charges and not called
for any explanation from him. Per contra, the contention
of the respondent is that the petitioner was employed
as trainee/probationer till January 2004 and after
7-2-2004 he did not turn up for work continuously and
absented himself without any prior intimation or leave
and the management informed that in the interest of
administration, it had made alternate arrangements and
treated the petitioner abandoned his job on his own and
treated his case as “left”. But the respondent has not
produced any document to show that the petitioner had
abstained from work on his own or continuously
absented for a long time without any intimation. If the
contention of the respondent is true, they would have
issued memo to the petitioner and taken action against
him. But no such memo has been filed by the
respondent to prove the said contention. RW1 in his
evidence has also admitted that he did not send any
show cause notice for the unauthorised absent of the
petitioner. The relevant portion of his evidence runs as
follows:-
“\–>V´Ï √ˬz ÿ>V¶ÏÕm k´V>]™V_ *ı|D
∂§s©A ÔΩ>D ÿÔV|›º>V\V ®[≈V_ ÿÔV|¬Ôs_ÁÈ”
Hence, the respondent has failed to prove that the
petitioner was absent unauthorisedly.
9. 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 which is against the natural justice.
10. 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 and it is evident that on oral instruction
given by the respondent, the petitioner was dismissed
from service.
11. The respondent being an employer, has to
safeguard the interest of their employees. When the
petitioner was continuously absent without getting any
prior sanction or sleeping while he was on duty, the
respondent has 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, no domestic enquiry was conducted by the
respondent and they dismissed the service of the
petitioner on verbal instruction. When the petitioner
was working in the respondent company for more than
five years without any interruption, it was necessary
to have given opportunity to the petitioner before
terminating him from service. Neither no such
opportunity was given to the petitioner, nor principles
of natural justice have been complied with. Therefore,
the termination of service of the petitioner was bad in
law. When the petitioner is not of a habitual absentee,
the
punishment
imposed
by
the
respondent
management is disproportionate. In this regard, it is
pertinent to refer the decision, which is relevant to this
case:-
2009(III) LLJ 373 (SC)
“When the Court and Tribunals are satisfied
that the punishment imposed by the disciplinary
authority is shockingly disproportionate, the decision
of the disciplinary authority can be interfered.
Therefore, when the delinquent employee is not of a
habitual absentee and seems to have a good track
record, and also the alleged misconduct of
unauthorised absence is not of gross violation of
discipline, the major punishment of dismissal can be
interfered”
In this case, the respondent has not raised any
serious misconduct against the petitioner prior to
misconduct of unauthorised absent from 7-2-2004.
Hence, the misconduct that is alleged would definitely
amount to violation of discipline that is expected of an
employee to maintain in the establishment, but may not
fit into the category of gross violation of discipline.
Hence, this court comes to a conclusion that the
non-employment of the petitioner from service is not
justified. Hence, he has to be reinstated into service.
But considering the facts and circumstances of the
case, the petitioner is not entitled for continuity of
service and back wages. Accordingly, this point is
answered.
298
LA GAZETTE DE L’ETAT
[10 May 2011
12. 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:
PW1
— 25-3-2010 - Rajganesh
List of witnesses examined for the respondent :
RW1
— 23-9-2010 - P. Gnanagurupatham
List of exhibits marked for the petitioner:
Ex.P1 — Copy of the letter, dated 27-11-2006 sent by
the petitioner to the Conciliation Officer.
Ex.P2 — Letter, dated 13-9-2006 sent by the
respondent to Conciliation Officer.
Ex.P3 — Copy of the failure report, dated 8-8-2007
Ex.P4 — Copy of the notification, dated 12-11-2007
List of exhibits marked for the respondent:
Ex.R1 — Copy of the letter, dated 27-11-2006 sent by
the petitioner to the Conciliation Officer.
Ex.R2 — Copy of the letter, dated 1-6-2006 sent by
the petitioner to the Conciliation Officer.
T. MOHANDASS,
II Additional District Judge,
Presiding Officer, Labour Court,
Pondicherry.
GOVERNMENT OF PUDUCHERRY
OFFICE OF THE CHIEF EDUCATIONAL OFFICER
No. 3818/CEO/KKL/E3(Exam.)/2010/1595.
Karaikal, the 18th April 2011.
NOTIFICATION
It is hereby notified that the original H.S.C.
Mark Certificate, under Register Number 696761, bearing
Serial No. AB 2508569 of March 1998 session in respect
of Parimala, R., an ex-pupil of Annai Theresa
Government Girls’ Higher Secondary School, Karaikal,
is reported to have been lost beyond scope of
recovery and it is proposed to issue a duplicate
certificate. If the original certificate is to be found by
anybody, it should be sent to the Secretary, State Board
of Secondary Examinations, College Road, Chennai-6,
for cancellation, as it is no longer valid.
G. SUBRAMANIAN,
Chief Educational Officer.
————
GOVERNMENT OF PUDUCHERRY
DEPARTMENT OF PERSONNEL AND
ADMINISTRATIVE REFORMS (PERSONNEL WING)
(G..O.Ms. No. 18/DPAR-SSII(1), dated 26th April 2011)
NOTIFICATION
O n a t t a i n i n g t h e a g e o f s u p e r a n n u a t i o n ,
the following Superintendents shall retire from service
with effect from the afternoon of 30-4-2011.
1.
Thiru R. Parthasarathy, Superintendent,
Directorate of Accounts and Treasuries,
Puducherry.
2.
Thiru S. Balaguru, Superintendent,
Directorate of School Education, Puducherry.
[By order of the Special Secretary (Personnel)]
GIDDI MRUTHYUNJAYA DURGA RAO,
Under Secretary to Government (DP&AR).
————
GOVERNMENT OF PUDUCHERRY
DIRECTORATE OF SCHOOL EDUCATION
NO. C/236-244/EC/DSE/2011.
Puducherry, the 27th April 2011.
NOTIFICATION
It is hereby informed that the original computer Mark Certificates of Higher Secondary Examination of
the following candidates have been reported to be lost beyond the scope of recovery and necessary steps
have been taken to issue duplicate certificates to the candidates. If any one finds the original Mark
Certificates, they may be sent to the Secretary, State Board of Secondary Examinations, College Road,
Chennai – 600 006, for cancellation as they are no longer valid.