458
LA GAZETTE DE L’ETAT
[19 July 2011
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 128/AIL/Lab./J/2011, dated 5th July 2011)
NOTIFICATION
Whereas, the Award in I.D. No. 20/2007, dated 31-1-2011
of the Labour Court, Puducherry in respect of the
industrial dispute between the management of
M/s. M.R.F. Limited, Puducherry and Thiru V. Sivanantham
(Emp. No. 900032) 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).
————
BEFORE THE LABOUR COURT AT PUDUCHERRY
Present : Thiru T. MOHANDASS, M.A., M.L.,
II Additional District Judge,
Presiding Officer, Labour Court,
Puducherry.
Monday, the 31st day of January 2011
I.D. No. 20/2007
V. Sivanantham (Emp. No. 900032)
S/o. T. Veerappan,
No. 10, Main Road, Chinnapudupattu,
Mandagapattu Post,
Villupuram-605 106.
. . Petitioner/
Workman.
Versus
The Management of M.R.F. Limited,
P.B. No.1, Eripakkam Village,
Nettapakkam Commune,
Pondicherry-605 106.
. . Respondent/
Management.
This petition coming before me for final hearing
on 31-1-2011 in the presence of Thiru T. Gunasegaran,
advocate for the petitioner, Thiruvalargal
L. Swaminathan and I. Ilankumar, advocates for the
respondent, upon hearing both sides, after perusing the
case records and having stood over for consideration
till this day, this court delivered the following;
AWARD
This industrial dispute arises out of the reference
made by the Government of Pondicherry, vide G.O. Rt.
No. 61/2007/Lab./AIL/J, dated 14-3-2007 of the Labour
Department, Pondicherry, to resolve the following
dispute between the petitioner and the respondent, viz.,
1. Whether the non-employment of V. Sivanantham
by the management of M/s. M.R.F. Limited,
Puducherry is justified or not?
2. If not, 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 would aver
that the respondent is a limited company registered
under the Indian Companies Act, which manufactures
tyres of all kinds and started its commercial
production in the year 1998. At the time of starting
its production, all the workers were designed as
“Trainees/Apprentices” for a paltry wage of ` 40 per day
and the workers who had ITI qualification were paid
` 50 per day. The workers were not given the benefits
of ESI coverage or the benefits of PF coverage. After
six months, few workers were given written order of
appointment designating them as “Trainees”. The
management adopted the method of designation as
“Trainees/Apprentices” only to deny the benefits of
labour welfare legislations and utilising the insecurity
in employment, it extracted more than the maximum
possible work-load from the workers. After two years
in or about the year 2001, the workers by name
Thiruvalargal (1) B. Sakthivel, (2) K. Deivasigamani,
(3) V. Balamurugan, (4) S. Jayaprakash, (5) S. Bharathiraja,
(6) P. Anbouradjou, (7) C. Kumaravelan, (8) P. Pachyappan,
(9) A. Sivanandhane, (10) S. Srinivasan and (11) P. Mohan,
who had I.T.I. qualification, were issued orders placing
them on probation. The management did not have
certified standings orders at the time of starting its
production. But after about 3 years on 11-6-2001,
the management handpicked certain workers to come to
the Labour Department to give their consent for the
certification of the draft of their standing orders. At that
time, the workers decided to have a trade union to
protect their rights and they have also started a union
in the name of M.R.F. Thozhilalar Sangam and
Mr.V. Prakash, advocate was selected as a President. On
knowing the fact of formation of union, the management
terminated workers, who joined union, resulting in
filing the W.P. No. 20270/2001 and W.P. No. 20591/
2001 against such termination. The Hon’ble Madras
High Court allowed the writ petitions and the
management’s Writ Appeal Nos. 2043 and 2044 of 2002
against the said petitions, which is still pending.
459
19 July 2011]
LA GAZETTE DE L’ETAT
The management thereafter set up its nominees to
form a trade union and genuine union filing
W.P. No.20/2002 sought for a direction not to register
the union. During the pendency of the said writ petition,
within few days after filing of the same and after notice
was ordered, the management had its outfit registered
under name of the “M.R.F. Employees Union” and a
Writ Petition No. 1769/2002 was filed against the said
registration. In the said Writ Petition, the Hon'ble High
Court ordered the workers to make a representation to
the Registrar of Trade Unions and directed the
Registrar of Trade Unions to enquire and pass orders
thereon. The Registrar of Trade Unions rejected the said
representation against which the petitioner’s union filed
W.P. No. 24183/2005 and the same has been admitted
and is pending. In the meantime, as per the direction,
the management reinstated the workers except 49 for
whose reinstatement, the Division Bench ordered stay
in the writ appeal. The petitioner was one such
reinstated workers, who has been the member of the
M.R.F. Thozhilalar Sangam.
The petitioner joined the service in the respondent’s
company on 19-5-2000 and he was employed without any
written order of appointment being given to him and was
paid the rate of ` 40 per day. The petitioner was
appointed orally on 19-5-2000. In fact, all workers were
given written orders of appointment on the expiry of the
first 6 months period except 4 workmen including the
petitioner. Thereafter no order was communicated to him
and when he was terminated for the first time for his
membership of M.R.F. Thozhilalar Sangam, no written
order was issued on being reinstated under the orders
of the Hon’ble High Court, dated 10-6-2002. The model
of Standing Orders which applies to the petitioner,
states that worker cannot be kept as trainee beyond
6 months.
The management through its handpicked men, having
formed a trade union and having obtained registration
for the same and having affiliated with the INTUC,
the labour wing of the ruling Congress Party in
Pondicherry, entered into a so-called settlement with the
said outfit for certification of the standing orders, which
standing orders do not apply for the petitioner as the
same is as a result of a collusive arrangement with the
handpicked men of the opposite party management and
same is violated by fraud, collusion and is not a
genuine settlement entered into with genuine collective
bargaining agent, truly representing the workers. In any
event the said settlement being one under section 18(1)
of the Industrial Disputes Act, it is not binding on the
union in which the petitioner is a member.
The members of MRF Thozhilalar Sangam having
been subjected to hostile discrimination and ill treatment
and the management unabashedly continuing to flout
labour welfare legislation and employing contract
labours in direct manufacturing process illegally, the said
union decided should sit on a protest fast, to ensure
protection of freedom of association of the workers.
Accordingly Mr.V. Prakash, advocate, the President of
the petitioner's union, sat on a fast at the respondent's
company for consecutive 5 days from 11-2-2004 to
15-2-2004. The petitioner was one among the workers
who was active in the union activities relating to the
fast that took place on 15-2-2004. The petitioner was
issued the suspension pending enquiry memo. in
English, dated 23-1-2004. He was issued a show cause
memo., dated 25-1-2004 in English and the petitioner
gave his explanation through an undated letter on
3-2-2004. The petitioner was given the subsistence
allowance. Later, on 24-2-2004 an enquiry notice was
issued to the petitioner wherein it was stated that the
petitioner’s explanation was not satisfactory and the
management had appointed Mr. Karthikeyan as an
enquiry officer and instituted an enquiry. The
management issued a second show cause notice, dated
7-6-2004 proposing dismissal of the petitioner from
service and accepting the findings of the enquiry officer.
The petitioner gave his explanation on 12-6-2004 objecting
the report. The management not accepting the
pettioner’s explanation issued an order of dismissal,
dated 15-6-2004 to the petitioner. The impugned
dismissal of the petitioner, dated 15-6-2004 is illegal and
unjustified. Hence, this industrial dispute is filed.
3. The respondent filed a common counter statement
and contended that the petition is not maintainable
either on law or on facts. The various allegations and
contentions stated in the claim petition are factually
incorrect and the petitioner only to achieve unlawful
gains through suppression of material facts had
approached the Labour Court with unclean hands. The
company at Pondicherry commenced trial production in
the year 1998 and manufactured various radial tyres.
The company which started with 12 machines has slowly
progressed to install nearly 131 machines as on date.
As the manufacture of radial tyres is highly technical
and is a complicated one and uses logistics control, the
workmen takes time to learn the various skills on each
machine and the workers have been inducted in phases
over the past years. In order to give employment
opportunity to the villagers, the respondent recruited
the persons from nearby village of Puducherry who do
not possess qualification beyond 12th standard. Only
raw hands are recruited as Apprentices. The
respondent denies that allegation with regard to ESI and
PF coverage. As soon as the ESI notification was given
all the employees including the Trainees/Apprentices.
The Assistant Director of Employment and Training
vested with powers convened a meeting of the workmen
on 19-9-2001 at the company premises for the purpose
460
LA GAZETTE DE L’ETAT
[19 July 2011
of electing a Workmen Representative for certification
of standing orders with their comments and corrections.
The respondent management had engaged a maximum
of 258 workmen out of which 16 are probationers,
140 are Apprentices and 102 are Casuals who are kept
under observation to verify their willingness and to
ascertain their basic aptitude. On and from 3-1-2001, an
agitation commenced in the form of various illegal
agitations and undesirable activities. By that time the
probationary period of 6 probationers came to an end
due to efflux of time and the training of 43 apprentices
were determined and with no other alternative 102 casual
services were dispensed with. Only at this backdrop,
the so-called MRF Thozhilalargal Sangam had filed
Writ Petition in W.P. No. 20270/2001 and W.P.
No. 20591/2001 and the respondent had filed writ appeals
against the orders passed in the Writ Petitions in W.A.
No. 2043/2002 and W.A. No. 2044/2002 and the same is
pending. In the said writ appeals, the Hon’ble High
Court, Madras had granted stay of reinstating the
terminated 49 workmen and other workmen were taken
back at their original category and at that time only,
the petitioner herein had been reinstated. The
respondent further denies that the wages paid are less
than the minimum wages. The respondent management
always abides by the labour laws and therefore the
settlement entered with the union which enjoyed
majority cannot be questioned by an isolated person.
The petitioner was suspended from service on 23-1-2004
in contemplation of Disciplinary Proceedings and the
petitioner was issued with a show cause notice
on 25-1-2004 followed by an enquiry. After receipt of
enquiry report, dated 5-6-2004, the respondent
management completely perused the report and was
subjectively satisfied that the enquiry officer had
conducted the enquiry by permitting the petitioner to
examine his two witnesses apart from his own
deposition. The enquiry officer had submitted the
enquiry report on 5-6-2004 with an observation that the
charges framed against the petitioner are proved beyond
reasonable doubt. The second show cause notice was
issued on 7-6-2004 to the petitioner along with enquiry
report and the petitioner has submitted his explanation
on 12-6-2004. Based on the past records and enquiry
report, the management had arrayed to a conclusion that
the petitioner herein is not a fit person to be permitted
to continue in service and therefore passed an order
of dismissal, dated 15-6-2004. The petitioner has no
locus standi to claim reinstatement even remotely as the
respondent management had acted in a fair and
judicious manner based on the outcome of the enquiry
report, dated 26-5-2004 and to the past record of the
claim petitioner which can be proved through
documentary evidence.
4. No oral evidence was adduced on the side of the
petitioner and the respondent. Ex.P1 to Ex.P8 were
marked on the side of the petitioner. Ex.R1 to Ex.R13
were marked on the side of the respondent.
5. Now the point for determination is :
“Whether the non-employment of Mr. V. Sivanantham
by the management of M/s. M.R.F. Limited,
Puducherry is justified or not?”
On point:
6. The contention of the petitioner is that the
workers decided to have a trade union to protect their
rights and they have also started a union in the name
of M.R.F. Thozhilalar Sangam and Mr.V.Prakash,
advocate was selected as a President. On knowing the
fact of formation of union, the management terminated
workers, who joined union, resulting in filing the
W.P. No. 20270/2001 and W.P. No. 20591/2001 against
such termination. The Hon'ble Madras High Court
allowed the writ petitions and the management’s Writ
Appeals Nos. 2043 and 2044 of 2002 against the said
petitions, which is still pending. The management
thereafter set up its nominees to form a trade union and
genuine union filing W.P. No. 20/2002 sought for a
direction not to register the union. During the
pendency of the said writ petition, within few days after
filing of the same and after notice was ordered, the
management had its outfit registered under name of the
“M.R.F. Employees Union” and a Writ Petition
No. 1769/2002 was filed against the said registration.
In the said writ petition, the Hon’ble High Court ordered
the workers to make a representation to the Registrar
of Trade Unions and directed the Registrar of Trade
Unions to enquire and pass orders thereon. The
Registrar of Trade Unions rejected the said
representation against which the petitioner's union filed
W.P. No. 24183/2005 and the same has been admitted
and is pending. In the meantime, as per the direction,
the management reinstated the workers except 49 for
whose reinstatement, the Division Bench ordered stay
in the writ appeal.
7. The contention of the respondent is that the
petitioner had chosen only to elaborate about the
formation of M.R.F. Thozhilalargal Sangam led by its
Union President V. Prakash and more specifically
concentrated about the orders passed by the Hon’ble
High Court, Madras in W.P. No. 20270/2001,
W.P. No. 20591/2001 and W.P. No. 19/2002, dated 10-6-2002,
though the petitioner is not a party to the writ
proceedings. He further submitted that the Division
Bench of Hon’ble High Court, Madras by its order
dated 4-1-2008 in W.A. No. 2043 and 2044/2002 was
pleased to modify the order in W.P. No. 20591/2001 and
W.P. No. 19/2002 to the extent that the dismissed/
terminated employees had to approach the Labour Court
or the Industrial Tribunal. The learned counsel for the
respondent further submitted that in S.L.P. No. 6004-
6006/2009 against the judgment and order, dated 4-1-2008
in W.A. Nos. 2043 and 2044/2008 of Hon’ble High
Court, Madras was preferred by the M.R.F. Thozhilalargal
Sangam and the Hon’ble Supreme Court by its record
of proceedings dismissed the S.L.P. on 12-5-2009.
461
19 July 2011]
LA GAZETTE DE L’ETAT
8. Neither the petitioner nor the respondent has
produced the copies of the said judgments of the
Hon’ble Supreme Court and Hon’ble High Court,
Madras to come to the just decision of the case. In the
absence of sufficient records, this court is not in a
position to accept the contention of either the petitioner
nor the respondent.
9. The contention of the petitioner is that he joined
the service of the opposite party management on 19-5-2000
and he was employed without any written order of
appointment being given to him and the oral order of
appointment was given on 19-5-2000 designating him as
Apprentice for a period of six months. He further
submitted that all the workers were given orders on the
expiry of first six months period, except four workmen
including him and thereafter no order was communicated
to him.
10. On the side of the respondent, it is contended
that the petitioner was a trainee and no order in writing
was issued to him appointing him as a Probationer as
contemplated under the certified standing orders, which
is normally followed after completion of training period
and since the petitioner was a trainee, he cannot have
any say regarding his appointment of trainee and
continuance of trainee which is in conformity with
clause 3.6 of certified standing orders.
11. Clause 3.6 deals with apprenticeship under the
Apprenticeship Act, 1961, which runs as follows:—
“....... Company Training Scheme/Trainee means
a learner who is paid stipend and whose terms and
conditions are governed by the provisions of the
Apprentices Act, 1961 and the amendments thereof
or one who is recruited to undergo apprenticeship
as per company’s scheme either as Production
Apprentice or Engineering Apprentice or Apprentice
for Service Department, The apprenticeship period
will be for 42 months comprising 4 spells, the first
spell is for six months and the remaining 3 spells
each are for one year duration and the company is
not obliged to employ after the conclusion of their
apprenticeship. At the expiry of any spell each
training will be assessed and evaluated and on
satisfactory completion of the training in each spell,
the trainee will be put on to training for next spell.
On completion of the total apprenticeship period the
services will stand automatically terminated.
However, they may be considered for the post of
probationer on satisfactory completion of training by
the company at its discretion depending upon the
exigencies and vacancy position. The status as an
apprentice will not change until it is changed by the
company in writing....”
12. As per clause 3.6 of Apprenticeship under the
Apprenticeship Act, 1961, the apprenticeship period will
be 42 months comprising four spells, the first spell is
six months and the remaining three spells each are for
one year. It is no where stated that the appointment
order is not necessary for the trainees. Hence, the
respondent management should have issued the
appointment order to the petitioner, designating him as
trainee. Since both the petitioner and the respondent
have admitted that the petitioner was trainee at the time
of terminating his service, much importance cannot be
given for the abovesaid point.
13. The next contention of the petitioner is that since
he was active member in the M.R.F. Thozhilalar Sangam
and since he was participated in the activities on the
said union, he was terminated from service by raising
false allegations against him.
14. Per contra, the contention of the respondent is
that during the period of training, the petitioner had
indulged in acts of indiscipline, insubordination, using
filthy and obnoxious language, aiding and abetting the
co-workers to squat, instigating the other workers were
all proved in the enquiry proceedings and hence he was
terminated from service. In order to support his claim,
the learned counsel for the respondent has relied upon
the following decisions:—
2011 LLR 51
Dismissal from service – Of the appellant
Manager (Sales) for threatening and abusing his
superior – He was dismissed from service for
misconduct duly proved in disciplinary enquiry – His
writ petition against punishment was dismissed –
Hence this writ appeal – In view of gravity of charge
against the appellant, the punishment of dismissal
cannot be stated to be disproportionate to the
misconduct – Principles of natural justice were
followed and proper opportunity was given to him –
No ground found to interfere with the order of
dismissal from service as upheld by learned single
Judge.
2010 LLR 600
Industrial Disputes Act, 1947 – Section 11A,
Power of the Labour Court/Industrial Tribunal to give
appropriate relief in cases of dismissal or discharge of
the workman – Well settled law – Power under section 11
is not an appellate power – Exercise only when
punishment imposed is shockingly disproportionate
to charges proved in Departmental Inquiry –
Punishment of putting him six stages down in pay
scale for charge of misappropriation – Not
shockingly disproportionate to the charges proved.
462
LA GAZETTE DE L’ETAT
[19 July 2011
2010 LLR 744
Constitution of India, 1950 – Enquiry – Validity of –
Principles of natural justice have been followed by
the Enquiry Officer – Enquiry cannot be faulted on
any ground and the findings are in no manner,
perverse – No case is made out for interference with
the said orders under Article 226 of the Constitution
of India.
2010 LLR 993
Department proceedings – Judicial review of –
Scope of – Judicial review is matters of disciplinary
proceedings – Is to find out whether the findings are
perverse or unreasonable – Writ court recorded that
there is sufficient evidence to support the charges –
There is no legal or other infirmity in the order under
appeal – Appeal dismissed.
Departmental proceedings – Enquiry report not
furnished – In fact the disciplinary authority has not
given any findings of its own in respect of charges
levelled – Enquiry report annexed with the second
show cause notice - No prejudice caused to appellant.
(2008) 5 MLJ 733
When the charge of habitual absence against the
employee was proved and the competent authority/
employer imposed a proper punishment, it is not
open to the Central Administrative Tribunal to
interfere with the quantum of punishment on the
premises that the charge of habitual absence of the
employee was not grave. Such order of the CAT is
clearly erroneous and is liable to be set aside.
(2008)3 MLJ 959 (SC)
Punishment – Of removal from service – Imposed
on respondent/teacher on ground of misconduct as
he physically assaulted Principal of School – Order
of Tribunal quashing removal order and reducing
punishment as being disproportionate – Same upheld
by High Court in writ petition – Appeal – No good
ground for Tribunal to interfere with punishment of
removal imposed on respondent – Impugned order
of High Court and Tribunal set aside – Appeal
allowed.
2005 (2) CTC 730
..... Workman should have pleaded before employer
at second show cause notice stage that proposed
punishment was harsh and disproportionate to
proved misconduct and that employer acted with
mala fide – (i) Reading of various decisions would
show that the following principles of law is laid
down; The Tribunal is empowered to enquiry as to
whether the enquiry conducted was fair and any
principles of natural justice has been violated in the
conduct of the enquiry; (ii) The Tribunal is
empowered to enquiry as to whether the management
bona fide came to the conclusion that the dismissal
another punishment for the one which is sought to
be meted out except when it finds that action of the
management is shockingly disproportionate.....
Enquiry was fair and proper and charges were proved
and the Tribunal should have approved the action
of the employer in dismissing workman.
2001 LLR 587
Industrial Disputes Act, 1947 – Section 22 –
Prohibition of strikes and lock-outs – Strike in a
hospital where public utility services are rendered
will contravene the provisions of section 22 – Such
a strike would be per se illegal – Strike has been
totally prohibited in utility service by the notification
issued by the State Government – The strike resorted
to by the workmen of the hospital is in contravention
of the said prohibitory orders of the State
Government issued under section 22 of the Industrial
Disputes Act and, therefore, this strike is per se
illegal as it violates the said notification and the
prohibition orders.
Dismissal – Of hospital employees for resorting
to and instigation for illegal strike - Before initiating
disciplinary proceedings, it is not necessary that
such a strike be declared as illegal.
2001 LLR 1213
Dismissal from service of Assistant Branch
Manager – Who was committed various acts of
omission and commission during the period of his
posting as enumerated in charge sheet – Disciplinary
proceedings initiated – Disciplinary authority
dismissed the petitioner from service on the basis of
enquiry report – Appellate authority by a reasoned
order rejected the appeal – Full opportunity is defend
himself given in the enquiry – Hence, no illegality
proceedings or order –Dismissal from service of
petitioner held not illegal.
2001 LLR 401 (MP HC)
Dismissal of bus conductor - Checking staff found
that out of 23 passengers travelling in the bus 6 were
travelling without ticket – The bus has covered 34
kms. From the place wherefrom 6 passengers had
boarded the bus – Enquiry held – Charges proved –
Dismissal of the conductor ordered – Challenged –
Labour Court vitiated enquiry – Ordered reinstatement
without back wages – Industrial Court directed
reinstatement of the conductor with full back wages –
Writ petition by the management – Corporation –
High Court quashed the orders of Labour Court and
Industrial Court – Dismissal as ordered by the
Corporation upheld – A dishonest person could not
be allowed to continue in employment – The
conductor has lost the confidence.
463
19 July 2011]
LA GAZETTE DE L’ETAT
2001 LLR 1154 (SC)
..... In such an event if the appellant – Corporation
loses its confidence vis-a-vis in the employee it will
be neither proper nor fair on the part of the court to
substitute the finding and confidence of the employee
with that of its own by allowing reinstatement – The
misconduct stands proved and in such a situation
by reason of the gravity of the offence the Labour
Court cannot exercise its discretion and alter the
punishment – Also High Court was in error in
dismissing the writ summarily – The termination order
as passed by the Appellant Corporation is restored.
2001 LLR 1237(Kar. HC)
Loss of confidence – When a bus conductor
misappropriates
money
as
collected
–
His
reinstatement as awarded by the Labour Court and
Learned Single Judge – Cannot be sustained.
2010 LLR 913 (Guj. HC)
Dismissal – From service of bus conductor for
misconduct of receiving fare and not issuing tickets –
Challenged by petitioner – Conductor – For proved
misconduct – High Court is of considered opinion
– Punishment of dismissal is not in any way
disproportionate to the charges levelled against the
conductor, particularly taking into account the past
record of service – There cannot be any misplaced
sympathy in such matters.
2009(5)CTC 160
Departmental Proceedings – Punishment – Past
misconduct and record of service – Relevancy of –
No need to mention in notice calling for further
representation.
(2008) 3 SCC 310
Service law – Probation/Probationer – Termination
– Grounds – Unsatisfactory probation – Authority
competent to direct termination in case of – Need to
give reasons/explanation, if any – Held, assessment
of probation has to be made by appointing authority
itself – The authority is however not required to give
reason for termination except to inform employee that
his performance was found unsatisfactory.
15. In order to prove the misconduct of the
petitioner, the respondent has marked the complaints
received from the Production Supervisor as Ex.R1 and
the warning letters issued to the petitioner as Ex.R10
to Ex.R12. Perusal of Ex.R1 would show that the
complaint was submitted by the Production Supervisor
to the respondent management to the effect that the
petitioner was sitting idle and left the work spot without
permission of the superior authorities. Ex.R10 to Ex.R12
have been issued to the petitioner for his unauthorised
absence and for leaving the work spot without
permission. The said documents are not challenged by
the petitioner.
16. The final contention of the learned counsel for
the petitioner is that the domestic enquiry has not been
conducted by the Inquiry Officer as prescribed by law
in a neutral manner and he 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
and moreover the Inquiry Officer has not heard the
contentions of the petitioner and the enquiry report has
also been submitted with unjustified findings and in fact
the petitioner has not committed any misconduct as
alleged by the respondent, but the management had
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.
17. The learned counsel for the respondent would
submit that they have followed the principles of natural
justice while charging the petitioner 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 and even in the domestic enquiry, the
petitioner had been allowed to be assisted by their
co-employee. The petitioner has been given fair chance
to cross-examine the witnesses and the Inquiry Officer
on considering the documents as well the evidences of
the management witnesses, 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
misconduct committed by him and hence, there is no
scope to intervene in the order of this management by
the Labour Court.
18. At this stage when I peruse the domestic enquiry
report which has been marked as Ex.R4, relating to the
petitioner, we can understand that the petitioner was
advised to participate in the enquiry and the petitioner
has participated in the enquiry. On the side of the
respondent, three witnesses were examined and they
were cross-examined by the petitioner. On the side of
the petitioner, one witness was examined and no
document was marked. With this, the enquiry was
closed. Based on the evidence available on records, the
Enquiry Officer found that the charges framed against
the petitioner are proved and accordingly, he submitted
his report to the respondent management. Then based
on the enquiry report, the respondent management
issued a second show cause notice under Ex.R5 calling
for his explanation. The petitioner submitted his written
explanation under Ex.R6 and since the explanation
submitted by the petitioner was not satisfactory, the
respondent management dismissed from service.
464
LA GAZETTE DE L’ETAT
[19 July 2011
19. Hence on perusal of Ex.R4 and other documents
filed on the side of the respondent, it is evident that
the petitioner was given fair opportunity to defend his
case and the respondent has correctly followed the
procedure for conducting the domestic enquiry as
contemplated under labour law. Hence, the enquiry
conducted by the respondent management is fair and
proper.
20. The learned counsel for the respondent has
pointed out the apprenticeship order, which had been
issued to the workers of the respondent management,
which runs as follows:—
(a) You will be subject to the certified standing
orders and regulations as and when become
applicable or amended or extended from time to time.
(b) On completion of the apprenticeship period,
your services with us as an apprentice will stand
automatically terminated.
(c) Should be guilty of any misconduct during the
period of apprenticeship, you will be summarily
dismissed from apprenticeship without notice or
compensation in lieu of notice.
(d) The company does not guarantee any
automatic confirmation in services at the end of
apprenticeship period.
21. The above orders state that on completion of the
apprenticeship period, the petitioner’s services will
stand automatically terminated. Hence, it is the implied
factum that the petitioner cannot claim right over the
appointment since the appointment itself is not a
permanent one or does not guarantee any automatic
confirmation in service. In this case, the petitioner has
joined as Apprentice and during the period of
Apprentice, he had committed misconducts such as
indiscipline, insubordination and aiding and abetting
the co-workers to squat, instigating the other workers,
which were proved in the domestic enquiry conducted
by the respondent management and hence, the
respondent has taken action against the petitioner by
terminating him from service, which is not against law.
22. The misconducts committed by the petitioner
have been proved by way of conducting the enquiry
and the said misconducts are very grave in nature
during the period of apprentice. The respondent
management has rightly taken the decision by
terminating them from service. The decisions cited by
the learned counsel for the respondent are squarely
applicable to the present facts and circumstances of the
case. However, the documents marked under Ex.P1 to
Ex.P8 on the side of the petitioner, are not supported
to his claim. Hence, the petitioner is not entitled for
reinstatement with continuity of service and back
wages. But at the same time, the petitioner has rendered
service in the respondent company for more than three
years. He was hailing from poor families and he had
been walking to this court for the past four years. Hence,
considering the age of the petitioner and his family
circumstances, the respondent is directed to pay a
monetary compensation of ` 10,000 to the petitioner.
Accordingly, this point is answered.
23. In the result, the petitioner is not entitled for
reinstatement with continuity of service and back
wages. However, the respondent is directed to pay a
sum of ` 10,000 towards the monetary compensation
to the petitioner. No costs.
Typed to my dictation, corrected and pronounced by
me in the open court on this the 31st day of January 2011.
T. MOHANDASS,
II Additional District Judge,
Presiding Officer,
Labour Court, Pondicherry.
————
List of witnesses examined for petitioner :
P.W.1 — 22-10-2010 V. Sivanantham
List of witnesses examined for respondent : Nil
List of exhibits marked for the petitioner :
Ex. P1 — 23-1-2004 Suspension pending enquiry
issued to the petitioner.
Ex. P2 — 25-1-2004 Show cause notice issued to the
petitioner.
Ex. P3 — 3-2-2004
Written explanation given by the
petitioner.
Ex. P4 — 24-2-2004 Enquiry notice issued to the
petitioner.
Ex. P5 — 7-6-2004 Second show cause notice issued
to the petitioner.
Ex. P6 —
–
Written explanation given by the
petitioner.
Ex. P7 — 15-6-2004 Dismissal order.
Ex. P8 — 9-10-2006 Failure report issued by the
Labour Officer (Conciliation),
Pondicherry.
List of exhibits marked for the respondent by
consent :
Ex. R1 — 22-1-2004 Complaint from the Production
Supervisor marked by consent.
Ex. R2 — 14-12-2010 Show cause notice marked by
consent.
Ex. R3 — 14-12-2010 Written explanation given by the
petitioner marked by consent.
465
19 July 2011]
LA GAZETTE DE L’ETAT
Ex. R4 — 25-1-2004 Enquiry report marked by consent
Ex. R5 — 7-6-2004
Second show cause notice
issued to the petitioner marked
by consent.
Ex. R6 — 7-6-2004
Written explanation marked by
consent.
Ex. R7 —
–
Petition filed under section 2A
before the Labour Officer
(Conciliation),
Puducherry,
marked by consent.
Ex. R8 — 24-7-2006 Counter statement filed by
the respondent/management
marked by consent.
Ex. R9 —
–
Relevant Tamil version of the
Certified Standing Orders,
marked by consent.
Ex. R10— 9-9-2003
Warning letter issued to the
petitioner, marked by consent.
Ex. R11— 23-10-2003 Warning letter issued to the
petitioner, marked by consent.
Ex. R12— 2-11-2003 Warning letter issued to the
petitioner, marked by consent.
Ex. R13—
–
Copy of the unclaimed RPAD
cover sent to the petitioner,
marked by consent.
T. MOHANDASS,
II Additional District Judge,
Presiding Officer,
Labour Court, Pondicherry.
GOVERNMENT OF PUDUCHERRY
OFFICE OF THE SUB-COLLECTOR (REVENUE)-CUM-
SUB-DIVISIONAL MAGISTRATE
No. 1255/SDM/B4/2009/286.
Karaikal, the 27th June 2011.
PROCEEDINGS OF THE AUTHORISED OFFICER
Present: Thiru J. Ashok Kumar, I.A.S.
Whereas the Station House Officer, Kottucherry
Police Station has informed and furnished a
FIR No. 15/09, dated 17-2-2009 along with two metal
idols, one broken kuduvai and seizure form to this office
on 17-2-2009;
Whereas on perusal of the report as well as the
idol, it was found that the metal idols said to be Lord
Sivan, Ambal and a kuduvai which was found when
digging out of the land for construction of one of
Arulmigu
Adipureeswara
Swamy
Devasthanam,
Keezhakasakudy, Karaikal;
Whereas the two metal idols and broken kuduvai
were deposited in the Treasury Office, Karaikal
vide Letter No. 1255/DCR/B4/2009, dated 27-2-2009.
The same was published in the official gazette of
Puducherry vide Gazette No. 14, dated 7-4-2009;
Whereas the President of Arulmigu Adipureeswara
Swamy Devasthanam , Keezhakasakudy, Karaikal has
claimed the right over the idols and requested to hand
over them vide letter dated 7-8-2009;
Whereas procedure for the grant of owner is
prescribed from section 6 of the Indian Treasure
Trove Act, 1878. In this regard nobody has claimed the
right over the property except the temple authority
which is in possession of the land from where the said
idols were found;
Therefore, I, J. Ashok Kumar, I.A.S., Sub-Collector
(Revenue)-cum-Sub-Divisional Magistrate exercise the
power under section 11 of the Indian Treasure Trove
Act, 1878, hereby order that the two metal idols and
one broken kuduvai may be handed over to the
authorities of the President, Arulmigu Adipureeswara
Swamy Devasthanam, Keezhakasakudy.
J. ASHOK KUMAR, I.A.S.,
Sub-Collector (Revenue)-cum-
Sub-Divisional Magistrate.
————
GOVERNMENT OF PUDUCHERRY
OFFICE OF THE CHIEF EDUCATIONAL OFFICER
No. 650/CEO/SI/(Exam.)/2010-11.
Puducherry, the 30th June 2011.
NOTIFICATION
It is hereby notified that the original S.S.L.C.
Mark Certificates, bearing Serial Numbers SEC 2451266
and 2886025 under Register Numbers 491263 and 357473
o f M a r c h 2 0 0 5 a n d J u l y 2 0 0 5 i n r e s p e c t o f
S. Thamizharasi, an ex-pupil of Kannagi Government
Girls’ Higher Secondary School, Villianur and private
respectively, is reported to have been lost and beyond
scope of recovery and it is proposed to issue duplicate
certificates. If the original certificates are to be found by
anybody, they should be sent to the Director of
Government Examinations, Chennai-6, for cancellation,
as they are no longer valid.
T. ANOUMANDANE,
Chief Educational Officer.