480

LA GAZETTE DE L’ETAT

[26 July 2011

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G. O. Rt. No. 129/AIL/Lab./J/2011, dated 5th July 2011)

NOTIFICATION

Whereas, the Award in I.D.No.13/2008, dated 31-1-2011

of the Labour Court, Puducherry in respect of the industrial

dispute between the management of M/s. Anglo-French

Textiles, Puducherry and Thiru R. Sadasivam 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 23-5-91, 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.

Monday, the 31st day of January 2011

I.D. No. 13/2008

R. Sadhasivam .. Petitioner

Verses

The Managing Director,

Anglo-French Textiles,

Pondicherry. .. Respondent

This industrial dispute coming on 27-1-2011 for

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

Thiru T. Gunasegaran, advocate for the petitioner and

Thiru B. Mohandass, advocate for the respondent,

upon hearing both sides, upon perusing the case

records, after having stood over for consideration till

this day, this court passed the following:

AWARD

This industrial dispute arises out of the reference

made by the Labour Department, Government of

Pondicherry vide G.O. Rt. No.91/AIL/Lab/J/2008

dated 6-6-2008 for adjudicating the following:-

(1) Whether the dispute raised by Thiru R. Sadasivam

against the management of Anglo-French Textiles,

Puducherry over his non-employment is justified or not?

(2) To what relief Thiru R. Sadasivam 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 an employee in the

respondent mill in Printing Section of Dye House

Department for past several years. On 5-2-2004 during

the day shift, the petitioner mixed several chemicals

and colours and at that time chemical gas was formed

and it attacked him and he became unconscious and

his mind was also affected. This is an accident, which

happened within the premises of the respondent mill

and it has to be recorded as accident. Unfortunately

the management employees have not done so.

One of the co-employees brought the petitioner

to the mill dispensary and the mill doctor referred him

to Psychiatric Department, General Hospital,

Pondicherry and he got treatment there and also in

ESI Hospital. The petitioner got medical treatment for

more than six months with medical leave and now the

petitioner was shifted to some other category.

In the meanwhile the respondent management of

AFT has given a suspension notice to the petitioner

by stating that he has stolen some cloth from the

respondent mill on 5-2-2004. Since he was active in

trade union activities, the management has

suspended him by saying false allegation against

him. The domestic enquiry conducted by the

respondent management was not fair and proper and

he was not given fair opportunity to defend the

above charge. The respondent management insisted

with the help of some vested interest forced the

petitioner to give resignation letter and finally they

obtained his signature in a resignation letter prepared

by some employees in a hurried manner. Hence, this

industrial dispute is filed to reinstate the petitioner

into service.

3. In the counter statement, the respondent has

stated as follows:

It is true that the petitioner was an employee of

the respondent mills, the petitioner was issued a

charge sheet, dated 5-2-2004 for committing theft of

mill property and he was placed under suspension

pending enquiry. The petitioner initially submitted a

letter, dated 12-2-2004 denying the charges.

Subsequently he submitted a letter, dated 17-2-2004

accepting the fact that the mill cloth found under his

pant was taken away by him and stated that he

committed the misconduct due to family reasons.

481

26 July 2011]

LA GAZETTE DE L’ETAT

A domestic enquiry was conducted and the

petitioner was given fair chance to defend him. The

petitioner participated in the enquiry and in the

enquiry proceedings, the petitioner submitted a

letter, dated 26-2-2004 admitting the commission of

misconduct of theft which was recorded in the

enquiry proceedings. The Enquiry Officer in his

findings dated 3-3-2004 has held the worker to be

guilty of the charges framed. In the meanwhile,

fearing, major penalty for grave misconduct of theft,

the petitioner submitted a letter, dated 28-2-2004

admitting his guilt and requesting the respondent

management to accept his resignation and settle his

terminal benefits in lieu of further disciplinary action

for the proved misconduct. On considering the

application of the petitioner, the petitioner was

relieved from service through letter, dated 18-3-2004

and settled his terminal benefits. Hence, they pray

for dismissal of the industrial dispute.

4. On the side of the petitioner, the petitioner was

examined as P.W.1 and P.W.2 and Ex.P1 to Ex.P8 were

marked. On the side of the respondent, no oral evidence

was adduced and Ex.R1 to Ex.R22 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:

The contention of the petitioner is that he was

working as an employee in the respondent mill and

since he was very active in trade union activities, he

was issued with the suspension notice by saying false

allegation that he committed theft of cloth from the mill

and subsequently he was relieved from the service by

forcibly obtained a resignation letter from him.

7. Per contra, the contention of the respondent is

that the petitioner committed theft of cloth from the mill

and he was caught red handed by Security Guard and

the domestic enquiry was conducted and during the

enquiry proceedings, he admitted his guilt by

submitting a letter, dated 26-2-2004 and subsequently

he submitted a letter dated 28-2-2004 requesting the

respondent management to accept his resignation and

based on the said resignation letter, instead of

dismissing him from service, he was relieved from

service by settling terminal benefits.

8. In order to prove his case, the petitioner was

examined himself as PW.1. PW.1 in his evidence has

stated that he was working in the respondent mill for

several years in Printing Section of Dye House

Department and on 5-2-2004 during the day shift, he

mixed several chemicals and colours and at that time,

the chemical gas was formed and the same was attacked

him and he became unconscious and the said incident

was happened while he was on duty and hence the same

has to be recorded as accident, but the respondent

employees has done so. PW.1 further stated that he was

taken to Mill Dispensary, from where he was referred

to

Psychiatric

Department,

General

Hospital,

Pondicherry. In order to prove his claim, PW.1 has

marked the OPD slip issued by Mill Dispensary as Ex.P1.

A perusal of Ex.P1 reveals that the petitioner took

treatment at the Mill Dispensary and from where he was

referred to General Hospital, Pondicherry for further

treatment. Ex.P2 is the OPD slips, issued by General

Hospital, Pondicherry, which would show that PW.1

took treatment at General Hospital, Pondicherry on

various dates. Ex.P3 is the leave certificate issued by

E.S.I. authorities for taking treatment at E.S.I. Hospital.

9. On the side of the petitioner, his co-employee by

name Alexander was examined as PW.2. PW.2 has

corroborated the evidence of PW.1. He further stated

that the petitioner got medical treatment for more than

six months with medical leave and it is usual for the

employees to meet chemical accident during the course

of employment at the dying and printing department.

The evidence of PWs.1 and 2 would clearly prove that

there was an accident on 5-2-2004 in which the

petitioner was affected with the chemical gases and for

which, he took treatment in General Hospital,

Pondicherry and E.S.I. Hospital, Pondicherry for more

than six months by taking medical leave, which was

granted by the E.S.I. authorities.

10. On the side of the respondent, the learned

counsel for the respondent would submit that the

petitioner was apprehended by the mill Security at the

workers main gate at about 11.30 a.m. on 5-2-2004 while

he was truing to pilfer pink colour cloth of about 169 cms.

in length and 220 cms. in breadth costing about ` 112

wrapped under his pant and immediately on seeing that,

the security persons submitted a complaint to the

respondent management and the petitioner made a

statement in writing on 5-2-2004 itself admitting the

commission of misconduct and tendering apology. The

learned counsel for the respondent would further

submit that the petitioner initialy submitted a letter,

dated 12-2-2004 denying the charges, subsequently, he

submitted a letter, dated 17-2-2004 accepting the fact

and hence a domestic enquiry was conducted and the

Enquiry Officer found the petitioner guilty. The learned

482

LA GAZETTE DE L’ETAT

[26 July 2011

counsel for the respondent would further submit that

the petitioner submitted a letter, dated 28-2-2004

admitting his guilty and requesting the respondent

management to accept his resignation and settle his

terminal benefits and the respondent management

accepted his resignation and relieved him from service.

11. In order to prove his contention, on the side of

the respondent, Ex.R1 to Ex.R22 were marked. Ex.R1

is the letter submitted by the petitioner to the

respondent management admitting about commission of

the theft of cloth. Ex.R2, Ex.R3 and Ex.R4 are the

complaints given by the Security Guards to the Security

Officer about commission of theft by the petitioner.

Ex.R5 is the complaint given by the Security Officer to

the respondent management for taking action

against the petitioner. A perusal of Ex.R1 to Ex.R5

reveals that on 5-2-2004 the petitioner committed theft

of cloth belonging to the respondent mill, which was

wrapped in his pant and he was caught red handed by

the Security Guards.

12. The learned counsel for the petitioner would

submit that the domestic enquiry conducted by the

respondent was partial and biased and during the

proceedings of the domestic enquiry, the petitioner was

not given a fair opportunity to represent his side.

13. The learned counsel for the respondent would

submit that they have followed the principles of natural

justice while charging the delinquent and conducting

the domestic enquiry by a neutral Inquiry Officer.

During the course of enquiry, the petitioner admitted

the offence.

14. At this stage when we peruse the domestic

enquiry proceedings, Ex.R8 relating to the petitioner, we

can understand that the petitioner has participated in

the enquiry and during the course of enquiry, he

admitted his offence and requested the Enquiry Officer

to close the enquiry. A perusal of Ex.R8 and Ex.R11

further reveals that the petitioner has submitted a letter

admitting the offence and requested the respondent

management to treat the said letter as his resignation

letter and relieve him from service. Ex.R9 and Ex.R10 are

the apology letter submitted by the petitioner, wherein

he admitted the offence and tendered apology. These

documents are not challenged by the petitioner. Hence,

the contention of the petitioner that he was forced to

obtain the resignation letter by the respondent

management cannot be accepted.

15. On the side of the respondent, the enquiry report

submitted by the Enquiry Officer was marked as Ex.R12,

wherein the Enquiry Officer found the petitioner guilty

of the offence. Since the petitioner has admitted his

offence and requested the respondent management to

relieve him from service, they relieved the petitioner

from the service vide letter, dated 18-3-2004, which has

been marked as Ex.R13.

16. Consequent to relieve him from service, the

petitioner received his gratuity amount of ` 83,863 in

full and final settlement on 19-5-2004 and ` 47,851

towards other benefits as could be seen from the

petitioners own documents under Ex.P5 and Ex.P6.

Hence, the respondent has properly conducted the

domestic enquiry and as the petitioner admitted the

offence, the respondent admitted his request on

humanitarian ground and accepted his resignation and

relieved him from service, though the charges levelled

against him was proved. Therefore, this court comes to

the conclusion that the petitioner has been relieved

from his service based on his own resignation letter

submitted by him and the respondent has not violated

the principles of natural justice.

17. As stated earlier, the petitioner has proved the

accident, which he has met during the course of his

employment, for which a monetary compensation has

to be paid to him. Accordingly, this point is answered.

18. In the result, the petitioner is not entitled for

reinstatement and back wages. However, the respondent

is directed to pay a sum of ` 40,000 to the petitioner

towards the monetary compensation. 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 the petitioner:

PW1

—

29-9-2010 —Sadhasivam.

PW2

— 17-8-2010 —Alexander.

List of witnesses examined for the respondent: Nil

List of exhibits marked for the petitioner:

Ex.P1

— OPD slips issued by Mill Dispensary

Ex.P2

— OPD slips issued by G.H., Pondicherry

Ex.P3

— Medical

leave

granted

by

E.S.I.

Corporation

Ex.P4

— Copy of benefit payment slip

Ex.P5 — N o t i c e o f p a y m e n t o f g r a t u i t y,

dated 18-5-2004.

483

26 July 2011]

LA GAZETTE DE L’ETAT

Ex.P6 — R e c e i p t f o r r e c o v e r y o f D F T

dated 19-5-2004.

Ex.P7

— Copy of payment slip, UCO Bank,

Pondicherry.

Ex.P8

— Savings bank book of the petitioner

List of exhibits marked for the respondent:

Ex.R1 — Letter, dated 5-2-2004 by the petitioner

to the respondent.

Ex.R2 — Letter, dated 5-2-2004 from the Security

Guard Thanganath Sharma.

Ex.R3 — Letter, dated .5-2-2004 from the Security

Guard Chelladurai.

Ex.R4 — Letter, dated 5-2-2004 from Supervisor

Govindasamy to Security Officer.

Ex.R5 — Complaint, dated 5-2-2004 sent by the

Security Officer.

Ex.R6 — Charge sheet, dated 5-2-2004 sent to the

petitioner.

Ex.R7 — Enquiry notice, dated 12-2-2004 sent by

the respondent.

Ex.R8 — Enquiry proceedings, dated 17-2-2004 and

29-2-2004.

Ex.R9 — Letter, dated 17-2-2004 from the petitioner

Ex.R10 — Letter, dated 26-2-2004 from the petitioner

Ex.R11 — Resignation, letter by the petitioner,

dated 28-2-2004.

Ex.R12 — Enquiry report, dated .3-3-2004

Ex.R13 — Letter, dated 18-3-2004 from the respondent

Ex.R14 — Grievance leaflet published by the

petitioner.

Ex.R15 — Letter, dated 1-11-2005 by petitioner to the

Labour Officer.

Ex.R16 — Reply, dated 15-11-2006 by the respondent

Ex.R17 — Re-joinder dated 6-3-2007 by the petitioner

to the Labour Officer.

Ex.R18 — Letter, dated 4-4-2007 submitted by the

petitioner to the Labour Officer.

Ex.R19 — Failure

report

of

the

conciliation

proceedings, dated 13-3-2008.

Ex.R20 — Charge sheet, dated 13-10-2009 given by

the respondent.

Ex.R21 — Enquiry proceedings, dated 19-10-2009

Ex.R22 — Letter, dated 7-12-2009 sent by the respondent

T. MOHANDASS

II Additional District Judge,

Presiding Officer,

Labour Court, Pondicherry.

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 130/AIL/Lab./J/2011, dated 5th July 2011)

NOTIFICATION

Whereas, the Award in I.D.No.17/2004, dated 27-1-2011

of the Labour Court, Puducherry in respect of the

industrial dispute between the management of

M/s. Pondicherry Spinners Limited, Puducherry and

Thiru S. Sakthivel 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 PONDICHERRY

Present :

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

II Additional District Judge,

Presiding Officer, Labour Court,

Pondicherry.

Thursday, the 27th day of January 2011

I.D. No. 17/2004

Sakthivel, S/o. Sengulathan,

2, Main Road, Eripakkam,

Nettapakkam Commune,

Pondicherry.

. .

Petitioner

Versus

Pondicherry Spinners Limited,

Siruvanthadu Road,

Madukarai, Pondicherry.

. . Respondent

This industrial dispute coming on 24-1-2011 for final

hearing before me in the presence of Thiru R. Mugundhan,

advocate for the petitioner and Thiru A.V. Ramalingam,

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:

484

LA GAZETTE DE L’ETAT

[26 July 2011

AWARD

This industrial dispute arises out of the reference

made by the Labour Department, Government of

Pondicherry vide G.O. Rt. No.53/2004/Lab./AIL/J,

dated 23-3-2004 for adjudicating the following:-

(1) Whether t h e n o n - e m p l o y m e n t o f

Thiru S. Sakthivel against the management of

M/s. Pondicherry Spinners 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 has joined the service of the

respondent as Operator on 1-8-1995 and his

last drawn wages was ` 75 per day and the said wage

was paid on monthly basis. During November 2002,

he went on leave for ten days, since he became ill

due to cotton dust. When he was joined duty after

completion of the said leave period, he was not given

employment. The termination of service of the

petitioner amounts to retrenchment within the meaning

of section 2(oo) of Industrial Disputes Act, 1947.

The petitioner was neither issued any notice nor

given

any

compensation

before

effecting

retrenchment. Further without conducting any

domestic enquiry, he was terminated from the service.

The respondent management has not followed the

procedure laid down for retrenchment under the

Industrial Dispute Act. Hence, the retrenchment is

illegal and unjustified. Therefore, the industrial dispute,

is filed for reinstatement with continuity of service,

back wages and other attendant benefits.

3. In the counter statement, the respondent has

stated as follows:-

The petitioner was initially joined as Casual

Labourer in the year 1995 and from that date of his

employment, he was irregular in his employment.

The petitioner had unnecessary quarrel with

the co-workers and had confrontation and used

unparliamentary words with the colleagues.

The petitioner was warned for such activities in past,

but he could not mend his behaviour. There are also

many complaints from the co-workers about the

misbehaviour of the petitioner. Further the continuous

unauthorised absence was not with sufficient reasons

and no proper explanation was received from the

petitioner for such absenteeism. Preceding his

termination, the petitioner was not in continuous

employment and he had just worked for 148 days for

the whole year. The unauthorised absence was

without any justification and more over no prior

permission was obtained from the management which

amounts to unauthorised absence. The dispute was

raised nearly after a lapse of 12 months which is not

within the stipulated time under the act. Hence,

they pray for dismissal of the industrial dispute.

4. On the side of the petitioner, the petitioner was

examined as PW1 and Ex.P1 to Ex.P4 were marked. On

the side of the respondent, RW1 was examined and

Ex.R1 to Ex.R11 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:

The contention of the petitioner is that he was an

employee under the respondent company from 1-8-1995

and during the month of November 2002, he went on

leave for ten days and when he wanted to join the duty,

he was refused employment by the management.

7. Per contra, the contention of the respondent is

that the petitioner was a Casual Labourer and he was

not regular in attending the duty and he was given

opportunity by way of notices seeking explanation for

his unauthorised absence and in the reply given by the

petitioner, he admitted his unauthorised absence. The

respondent would further submit that the petitioner

made unnecessary quarrel with the co-workers and used

unparliamentary words with the colleagues.

8. To prove the contention of the petitioner, he

examined himself as PW1 and through him, Ex.P1 to

Ex.P4 were marked. Ex.P1 is a copy of the letter sent to

the Conciliation Officer dated 11-7-2003. Ex.P2 is the

copy of the Failure Report dated 19-12-2003. Ex.P3 is

the certificate issued by the respondent company to the

petitioner. Ex.P4 is the copy of the E.S.I. slips.

9. On the side of the respondent, RW1 was examined

and through him, Ex.R1 to Ex.R11 were marked. In order

to prove that the petitioner was a Casual Labourer, the

respondent has marked the copy of the Wage Register

for the period from September 2001 to October 2002 as

Ex.R1 and the copy of Register of Muster Roll as Ex.R2.

A perusal of Ex.R1 and Ex.R2 reveals that the petitioner

was a Casual Labour under the respondent management

and he was getting wages on daily basis. Ex.R1 and

Ex.R2 would further reveal that in most of the days, the

petitioner was absent.

10. 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

485

26 July 2011]

LA GAZETTE DE L’ETAT

him to get prior sanction from his employer and then to

proceed on leave. In this case, the respondent has not

sanctioned any leave to the petitioner.

11. On the side of the respondent, the apology letter

submitted by the petitioner was marked as Ex.R4. On

perusal of Ex.R4, it is seen that the petitioner has

admitted his unauthorised absent and assurance was

given to the respondent management that he will not

take any leave without getting prior permission from

them. Ex.R5 is another apology letter, in which the

petitioner has admitted his unauthorised absent and

requested the respondent management to join duty.

Ex.R10 is the notice issued to the petitioner and some

other workers working in the respondent management,

informing about their unauthorised absent and calling

for explanation about the same. These documents are

not challenged by the petitioner and all these

documents would clearly prove that the petitioner was

unauthorised absent for many days and no reasonable

explanation was submitted by him for the same. Hence,

this court comes to the conclusion that the petitioner

was not regular in attending the work.

12. It is the further contention of the respondent that

the petitioner had unnecessary quarrel with the

co-workers

and

had

confrontation

and

used

unparliamentary words with the colleagues and he was

warned for such activities but he could not mend his

behaviour and there are many complaints from the

co-workers about the misbehaviour of the petitioner. In

order to prove the said contention, the respondent has

marked Ex.R6, Ex.R7 and Ex.R8, the complaints given by

the workers of the respondent management. On perusal

of Ex.R6 to Ex.R8, it is evident that the petitioner has

scolded the co-workers in a filthy language in the office

hours. Ex.R3 is the show cause notice issued to the

petitioner calling for explanation for the misbehaviour

of the petitioner. Ex.R9 is the apology letter submitted

by the petitioner to the respondent management,

admitting his mishaviour in the factory premises and

requested the management to join duty. The said

documents are also not challenged by the petitioner.

Hence, the respondent has proved through the said

documents that the petitioner made unnecessary quarrel

with the co-workers and used unparliamentary words

with the colleagues and for the said act, he was warned.

13. The contention of the learned counsel for the

petitioner is that the domestic enquiry has not been

conducted by the Inquiry Officer. He further submitted

that the termination of service of the petitioner amounts

to retrenchment and the management had not followed

the procedure laid down for retrenchment under the

Industrial Dispute Act and therefore the retrenchment

is illegal and unjustified.

14. On the other hand, the learned counsel for the

respondent

would

submit

that

there

was

no

retrenchment and since the petitioner was unauthorised

absent for many days, he was terminated from his

service.

15. It is true that there is no domestic enquiry

conducted by the respondent before terminating the

service of the petitioner. But as already stated that the

respondent has proved the misconduct committed by

the petitioner and his unauthorised absent through oral

and documentary evidence. Hence, there is no need to

conduct the domestic enquiry, as the petitioner himself

has admitted his misconduct.

16. Eventhough the petitioner was dismissed by the

respondent management on 29-7-2002, this industrial

dispute is raised by the petitioner during the year 2004.

The petitioner is a poor litigant without any

employment. The Labour Courts are established to

enforce the rights and privileges of the employees, who

are the weaker section of the society. Their rights

should not be curtailed or suppressed. At the same time,

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

by employer and employee. 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, considering the facts and circumstances of the

case, this court inclined to award compensation to meet

the ends of justice. The petitioner has joined duty in

the respondent management in the year 1995 and

dismissed in the year 2002. Considering the continuous

service of more than seven years and considering the

facts and circumstances of the case and the family

conditions of the petitioner, a sum of ` 25,000 towards

compensation of award can be passed to meet the ends

of justice. Accordingly, this point is answered.

486

LA GAZETTE DE L’ETAT

[26 July 2011

17. In the result, the industrial dispute is partly

allowed and the petitioner is not entitled for

reinstatement with back wages and other benefits.

However, taking into consideration of the facts and

circumstances and the family conditions of the

petitioner, the respondent is hereby directed to pay the

monetary compensation of ` 25,000 to the petitioner.

No costs.

Typed to my dictation, corrected and pronounced

by me in the open court on this the 27th day of

January 2011.

T. MOHANDASS,

II Additional District Judge,

Presiding Officer, Labour Court,

Pondicherry.

————

List of witnesses examined for the petitioner :

PW1 — 11-3-2010 - Sakthivel

List of witnesses examined for the respondent :

RW1 — 18-11-2010 - Ananda Baskar

List of exhibits marked for the petitioner :

Ex.P1 — Letter by the petitioner to the Conciliation

Officer, dated 11-7-2003.

Ex.P2 — Failure Report, dated 19-12-2003

Ex.P3 — Certificate by the management, dated 13-5-2003

Ex.P4 — Provident fund receipts 4 in Nos.

List of exhibits marked for the respondent :

Ex.R1 — Copy of the Wage Register for the period

from September 2001 to October 2002.

Ex.R2 — Copy of the Register of Muster Roll

September 2001 to October 2002.

Ex.R3 — Notice calling for explanation, dated 27-7-1999

Ex.R4 — Apology letter submitted by the petitioner

Ex.R5 — Apology letter, dated 26-4-2002

Ex.R6 — Explanation given by Vibushnan

Ex.R7 — Explanation given by L. Sankar

Ex.R8 — Explanation given by A. Moorthy

Ex.R9 — Apology letter, dated 7-4-2000

Ex.R10 — Notice issued to the petitioner, dated 4-8-2000

Ex.R11— Termination order, dated 29-7-2002

T. MOHANDASS,

II Additional District Judge,

Presiding Officer, Labour Court,

Pondicherry.

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G. O. Rt. No. 131/AIL/Lab./J/2011, dated 5th July 2011)

NOTIFICATION

Whereas, the Award in I. D. No. 11/2007, dated 31-1-2011

of the Labour Court, Puduchcrry in respect of the

industrial dispute between the management of

M/s. M.R.F. Limited, Puducherry and Thiru T. Ariputhiran

(Emp. No. 90101) 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 Deportment’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,

Pondicherry.

Monday, the 31st day of January 2011

I. D. No. 11/2007

T. Ariputhiran (Emp. No. 90101)

S/o. M. Thirumal,

Mandagapattu Post,

Villupuram.

. . 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

487

26 July 2011]

LA GAZETTE DE L’ETAT

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. 49/2007/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 Mr. T. Ariputhiran

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 designated 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 E.S.I. coverage

or the benefits of Provident Fund 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 workload 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 ITI 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 WP. No. 20270/2001 and WP 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 WP. 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 to

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

WP. 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

factory on 9-6-2000 orally and subsequently order of

appointment was given on 4-12-2000 designating him as

“Apprentice” for a period of 6 months. Though he was

orally designated as “Apprentice” he was actually

doing the work of production as any other workers.

In fact, all workers were given orders on the expiry of

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 the M.R.F. Thozhilalar Sangam, no written

order was issued on being reinstated under the orders

of Hon’ble High Court order dated 10-6-2002.

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

488

LA GAZETTE DE L’ETAT

[26 July 2011

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 M.R.F. 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

factory 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 memo

dated 6-1-2004. The petitioner’s request for its Tamil

translation through his letter dated 13-1-2004 and he

was issued the Tamil translation and the petitioner

refused the charges through his letter dated 1-3-2004.

The petitioner was suspended and the petitioner was

issued a show cause notice on 23-1-2004 and an

additional show cause memo was issued on 25-1-2004,

for which petitioner replied through reply letter. The

petitioner was issued an enquiry notice dated 24-2-2004

stating that the enquiry would be held on 1-3-2004

wherein it was stated that the petitioner's reply was not

satisfactory and the management had appointed

Mr. S. Karthikeyan as an Enquiry Officer and instituted

an enquiry. After completion of enquiry, the Enquiry

Officer gave his findings on 9-12-2003 accepting the

management witnesses deposition and holding it

against the petitioner for not examining any witness on

his behalf. The management not accepting the

petitioner’s explanation issued an order of dismissal

dated 4-5-2004 to the petitioner. Against the said order

of dismissal, the petitioner raised an industrial dispute

under section 2(A) of the Industrial Disputes Act. The

management filed its counter statement and the

Conciliation Officer issued the conciliation failure report

on 9-10-2006 resulting in the present reference. The

impugned dismissal of the petitioner dated 15-6-2004 is

illegal and unjustified. Hence, the petitioner prays to

pass an order directing the respondent-management to

reinstate the petitioner in service with back wages,

continuity of service and other consequential benefits

and award costs.

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

factory at Pondicherry commenced trial production in

the year 1998 and manufactured various radial tyres. The

factory 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

E.S.I. and Provident Fund coverage. As soon as the E.S.I.

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 factory

premises for the purpose 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 M.R.F.

Thozhilalargal Sangam had filed Writ Petition in WP. No.

20270/2001 and WP. No. 20591/2001 and the respondent

had filed Writ Appeals against the orders passed in the

Writ Petitions in WA. No. 2043/2002 and WA. 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

489

26 July 2011]

LA GAZETTE DE L’ETAT

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 alongwith 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 grounds (1) to (6)

mentioned in the petition are all vague and a detailed

reply has been submitted in the Conciliation

Proceedings which may be treated as part and parcel of

this counter statement. Grounds (7) that the reliance on

the past records are baseless and without enquiry and

hence the past records are to be rejected is stoutly

denied by the respondent management. With regard to

grounds (8) to (10), the respondent management has its

own certified standing orders and the accusation of

victimisation does not at all arise even remotely to the

fact and circumstances of the case as no prejudice has

been passed to the claim petitioner till date. 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 5-6-2004 and to the past record

of the claim petitioner which can be proved through

documentary evidence.

4. Now the point for determination is :

“Whether the non-employment of Mr. T. Ariputhiran

by the management of M/s. M.R.F. Limited,

Puducherry?”

5. On the point:

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 WP. No. 20270/2001

and WP. 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 WP. 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

WP. 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.

6. 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 WP. No. 20270/2001,

WP. No. 20591/2001 and WP. 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 WA. No. 2043 and 2044/2002 was pleased to

m o d i f y t h e o r d e r i n WP. N o . 2 0 5 9 1 / 2 0 0 1 a n d

WP. 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

WA. Nos. 2043 and 2044/2008 of Hon’ble High Court,

Madras was preferred by the M.R.F. Thozilalargal

Sangam and the Hon'ble Supreme Court by its record of

proceedings dismissed the S.L.P. on 12-5-2009.

7. 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

490

LA GAZETTE DE L’ETAT

[26 July 2011

absence of sufficient records, this court is not in a

position to accept the contention of either the petitioner

or the respondent.

8. The contention of the petitioner is that he joined

the service of the Opposite Party management on 9-6-2000

and he was employed without any written order of

appointment being given to him and the oral order of

appointment was given on 4-12-2000 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.

9. 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.

10. 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.... ....”

11. 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 in the appointment order that

training 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.

12. 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.

13. 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.

491

26 July 2011]

LA GAZETTE DE L’ETAT

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

Departmental 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.

492

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[26 July 2011

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.

14. In order to prove the misconduct of the

petitioner, the respondent has marked the complaints

received from the Production Supervisor and Shift

Foreman as Ex.R3 to Ex.R5 and the warning letters

issued to the petitioner as Ex.R14 and Ex.R16. Ex.R3 to

Ex.R5 would show that he prevented the workers from

making tyres and left the work spot without obtaining

permission from his superiors. Ex.R14 and Ex.R16

warning letters were issued to the petitioner for leaving

the work spot without getting permission. The said

documents are not challenged by the petitioner.

15. 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.

16. 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.

17. At this stage when I peruse the domestic enquiry

report which has been marked as Ex.R8, 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, four 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. The enquiry was closed and on the side of

the petitioner, the argument was submitted on 28-5-2004.

On the same day, on the side of respondent, the

argument was submitted. The enquiry was completed on

28-5-2004 and based on the evidence available on

493

26 July 2011]

LA GAZETTE DE L’ETAT

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.R9 calling for his explanation. The

petitioner submitted his written explanation under Ex.R10

and since the explanation submitted by the petitioner

was not satisfactory, the respondent management

dismissed from service.

18. Hence on perusal of Ex.R8 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.

19. 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.

20. The above orders state that on completion of the

apprenticeship period, the petitioners’ 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 on

accepting the above terms and conditions of the order

of respondent company he has joined as apprentice and

during the period of apprentice, he had committed

misconducts such as indiscipline, insubordination

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.

21. 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 him 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 family 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.

22. 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 the petitioner :

PW1 — 22-10-2010

T. Ariputhiran

List of witnesses examined for the respondent : Nil.

List of exhibits marked for the petitioner:

Ex.P1 — 23-1-2004

Suspension pending enquiry

Ex.P2 — 25-1-2004

Additional Show cause notice

Ex.P3 —

-

Explanation given by the

petitioner.

Ex.P4 — 24-2-2004

Enquiry notice

Ex.P5 —

7-6-2004

Second show cause notice

Ex.P6 — 12-6-2004

Explanations given by the

petitioner.

494

LA GAZETTE DE L’ETAT

[26 July 2011

Ex.P7

— 15-6-2004 Dismissal order

Ex.P8

— 14-3-2007 Failure report issued by the

Labour Officer (Conciliation),

Pondicherry.

List of exhibits marked for the respondent by consent:

Ex.R1

— 6-1-2004 Show cause notice with its

Tamil translation, marked by

consent.

Ex.R2

— 1-3-2004 Written explanation, marked by

consent.

Ex.R3

— 22-1-2004 Complaint from the Production

Supervisor, marked by consent.

Ex.R4

— 22-1-2004 Complaint from the Shift

Foreman, marked by consent.

Ex.R5

— 22-1-2004 Complaint from the Production

Supervisor, marked by consent.

Ex.R6

— 25-1-2004 Additional show cause notice

marked by consent.

Ex.R7

— 19-2.2004 Written explanation marked by

consent.

Ex.R8

— 5-6-2004 Enquiry report, marked by

consent.

Ex,R9

— 7-6-2004 Second show cause notice

marked by consent.

Ex.R10 — 12-6-2004 Written explanation, marked by

consent.

Ex.R11 — -

Petition filed under Section 2A

before the Labour Officer

(Conciliation), Puducherry,

marked by consent.

Ex.R12 — 24-7-2006 Counter statement filed by the

respondent/management, marked

by consent.

Ex.R13 — -

Relevant Tamil version of the

Certified Standing Orders,

marked by consent.

Ex.R14 — 2-11-2003 Warning notice marked by

consent.

Ex.R15 —19-11-2003 Copy of the unclaimed RPAD

cover sent to the petitioner,

marked by consent.

Ex.R16 — 5-1-2004 Severe warning letter, marked

by consent.

Ex.R17 — 6-1-2004 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

FINANCE DEPARTMENT

(G. O. Ms. No. 36/F2/A2/2011, dated 11th July 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 ,

Tmt. Surya Prabha Prakash, Junior Accounts Officer, Office

of the Deputy Director (Sports and Youth Services),

Education Department, Puducherry, is admitted into

retirement on the afternoon of 31-7-2011.

(By order)

R. SMITHA,

Joint Secretary to Government (Finance).

————

GOVERNMENT OF PUDUCHERRY

DEPARTMENT OF PERSONNEL AND

ADMINISTRATIVE REFORMS (PERSONNEL WING)

No. A-34012/14/2008-DP&AR (Exam.).

Puducherry, the 13th July 2011.

NOTIFICATION

The following candidates are declared to have passed

the Common General Departmental Test for Ministerial

Staff held on 9-10-2010.

N.B. : (i) Names are given in alphabetical order.

(ii) Requests from unsuccessful candidates as to

the cause of failure or revaluation of answer

papers will not be complied with.

Sl.

Name, designation and official

No.

address of the candidate

(1)

(2)

Thiru/Tmt./Selvi :

1 Adhiseshan, A., Stenographer Grade-III, Chief

Secretariat, Puducherry.

2 Albert, N., Lower Division Clerk, Legal Services

Authority (State Authority), Puducherry.

3 Amudha Rani, C., Lower Division Clerk, Office

of the Executive Engineer-V, Electricity Department,

Karaikal.

4 Anandalakshmi, S., Stenographer Grade-III,

Adi-Dravidar Welfare Department, Puducherry.

5 Arokia Jayaseelan, S., Stenographer Grade-III,

Planning and Research Department, Karaikal

(On deputation to Pondicherry Power Corporation

Limited, Karaikal).

6 Arokiamary, A., Stenographer Grade-III,

Directorate of Health and Family Welfare Services,

Puducherry.