512
LA GAZETTE DE L’ETAT
[2 August 2011
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 132/AIL/Lab./J/2011, dated 5th July 2011)
NOTIFICATION
Whereas, the Award in I.D.No. 9/2007, 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 G. Sathyakumar
(Emp. No. 90031) 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,
Pondicherry.
Monday, the 31st day of January 2011
I.D. No. 9/2007
G. Sathyakumar (Emp. No. 90031),
S/o. K.Govindasamy,
No. 20, Vasantha Nagar,
Villianur Post, Pondicherry-605 110. . . 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. 46/2007/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. G. Sathyakumar
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 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
I.T.I. qualification were paid ` 50 per day. The workers
were not given the benefits of E.S.I. 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 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 I.T.I., qualification were issued orders placing
them on probation. The management did not have
certified standing 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 Appeals Nos. 2043 and 2044 of 2002 against the said
petitions, which is still pending.
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2 August 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
factory on 17-11-1998 and he was employed without any
written order of appointment being given to him and
was paid the rate of ` 40 per day. The oral order of
appointment was given on 19-5-2000 designating the
petitioner as Apprentice for a period of six months.
Though he was orally designated as Apprentice he was
actually doing the work of production as any other
worker. In fact, all the workers were given written orders
of appointment on the expiry of first six months period
except four 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 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. in English dated 21-1-2004 by which he
was suspended and the p e t i t i o n e r w a s i s s u e d a
show cause notice on 23-1-2004, for which petitioner
replied through reply letter, dated 19-2-2004. The
petitioner was issued an enquiry notice, dated 19-2-2004
stating that the enquiry would be held on 16-2-2004
wherein it was stated that the petitioner’s reply was not
satisfactory and the management had appointed
Mr. K. Babu as an Enquiry Officer and instituted an
enquiry. The Enquiry Officer gave his findings on
26-5-2004 stating that the charges framed against the
petitioner are proved. The respondent management issued
a second show cause notice, dated 3-6-2004 proposing
dismissal of the petitioner from service. The petitioner
gave his explanation in 9-6-2004 objecting to the report.
On refusal of the explanation given by the petitioner, the
respondent management issued an order of dismissal,
dated 11-6-2004 to the petitioner. Against order of
dismissal of petition of industrial dispute under
section 2A of the Industrial Disputes Act. The impugned
dismissal of the petitioner, dated 11-6-2004 is illegal and
unjustified.
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 PF
coverage. As soon as the ESI notification was given all
the employees including the Trainees/Apprentices. The
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LA GAZETTE DE L’ETAT
[2 August 2011
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
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
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
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
21-1-2004 in contemplation of disciplinary proceedings
and the petitioner was issued with a show cause notice
on 23-1-2004 followed by an enquiry. After receipt
of enquiry report, dated 9-12-2003, 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 26-5-2004 with an observation that the
charges framed against the petitioner are proved beyond
reasonable doubt. The second show cause notice was
issued on 3-6-2004 to the petitioner along with enquiry
report and the petitioner has submitted his explanation
on 9-6-2004. 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 11-6-2004.
4. On the side of the petitioner, no oral evidence was
adduced on both sides. Ex.P1 to Ex.P8 were marked on
the side of the petitioner. Ex.R1 to Ex.R25 were marked
on the side of the respondent.
5. Now the point for determination is:
“Whether the non-employment of Mr. G. Sathyakumar
by the management of M/s. M.R.F. Limited Puducherry”
is justified or not?
6. On 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 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
“MRF 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. Thozilalargal
Sangam and the Hon’ble Supreme Court by its record of
proceedings dismissed the S.L.P. on 12-5-2009.
515
2 August 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 or the
respondent.
9. The contention of the petitioner is that he joined
the service of the respondent 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 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 above said 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 11 A,
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.
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LA GAZETTE DE L’ETAT
[2 August 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 :
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 premise 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 lockouts - 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
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2 August 2011]
LA GAZETTE DE L’ETAT
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.
2001 LLR 1154(SC) :
.. in such an event if the appellant -Corporation
losses 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 LLR1237 (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 and Shift
Foreman as Ex.R1 to Ex.R3 and the warning letters
issued to the petitioner as Ex.R12, Ex.P13, Ex.P15, Ex.P16,
Ex.P17, Ex.P19, Ex.R21, Ex.R22, Ex.R24. Ex.R1 to Ex.R3
would show that he prevented the workers from making
tyres and left the work spot without obtaining
permission from his superiors. Ex.R12, Ex.P13, Ex.P15
to Ex.P17, Ex.P19, Ex.R21, Ex.R22 and Ex.R24 warning
letters were issued to the petitioner for leaving the work
spot without getting 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.R6, 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
518
LA GAZETTE DE L’ETAT
[2 August 2011
respondent four witnesses were examined and they were
cross-examined by the petitioner. On the side of the
petitioner, no witnesses were examined and no
documents were marked. Then the enquiry was closed
and 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.R7 calling
for his explanation. The petitioner submitted his written
explanation under Ex.R8 and since the explanation
submitted by the petitioner was not satisfactory, the
respondent management dismissed from service.
19. Hence on perusal of Ex.R6 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 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 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.
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 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.
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
February 2011.
T. MOHANDASS,
II Additional District Judge,
Presiding Officer,
Labour Court, Pondicherry.
————
List of witnesses examined for the petitoner: Nil.
List of witnesses examined for the respondent: Nil.
List of exhibits marked for the petitioner:
Ex.P1 — 21-1-2004 Photocopy of suspension order.
Ex.P2 — 23-1-2004 Show cause notice.
Ex.P3 —
–
Explanations given by the
petitioner.
Ex.P4 — 19-2-2004 Enquiry notice.
Ex.P5 —
3-6-2004 Second show cause notice.
Ex.P6 —
9-6-2004 Explanations given by the
petitioner.
Ex.P7 — 11-6-2004 Dismissal order.
Ex.P8 —18-10-2006 Failure report, dated 18-10-2006
issued by the Labour Officer
(Conciliation), Pondicherry.
519
2 August 2011]
LA GAZETTE DE L’ETAT
List of exhibits marked for the respondent by consent:
Ex.R1 — 21-1-2004 Copy of the complaint received
from the Supervisor.
Ex.R2 — 21-1-2004 Copy of the complaint received
from the Supervisor.
Ex.R3 — 21-1-2004 Copy of the complaint received
from Supervisor.
Ex.R4 — 23-1-2004 Copy of the show cause notice
issued to petitioner.
Ex.R5 — 19-2-2004 Explanation of the petitioner
Ex.R6 —
–
Copy of the enquiry report.
Ex.R7 —
3-6-2004 Copy of Second show cause
notice issued to petitioner.
Ex.R8 —
9-6-2004
Copy of written explanation of
the petitioner
Ex.R9 — 27-2-2006 Copy of the petition filed before
the Labour Officer.
Ex.R10— 24-7-2006 Copy of counter statement filed
by the respondent.
Ex.R11— –
Copy of Tamil version of
Standing Order.
Ex.R12— 23-1-2003 Copy of the warning letter
issued to the petitioner.
Ex.R13—31-3-2003 Warning letter issued to the
petitioner.
Ex.R14— –
Copy of unclaimed RPAD
cover sent to the petitioner.
Ex.R15—
9-9-2003
Copy of warning letter,
dated 9-9-2003.
Ex.R16—16-10-2003
Copy of warning letter.
Ex.R17—17-10-2003
Copy of warning letter issued
to the petitioner.
Ex.R18—18-10-2003 Copy of unclaimed RPAD.
Ex.R19—20-10-2003 Copy of warning letter issued to
the petitioner.
Ex.R20— 22-10-2003 Copy of unclaimed RPAD.
Ex.R21—25-10-2003 Copy of warning letter issued to
the petitioner.
Ex.R22— 2-11-2003 Copy of warning letter issued to
the petitioner.
Ex.R23—19-11-2003 Copy of unclaimed RPAD.
Ex.R24—20-11-2003 Copy of warning letter issued to
the petitioner.
Ex.R25— 16-12-2003 Copy of unclaimed RPAD.
T. MOHANDASS,
II Additional District Judge,
Presiding Officer,
Labour Court, Pondicherry.
————
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 133/AIL/Lab./J/2011, dated 6th July 2011)
NOTIFICATION
Whereas, the Award in I. D. No.14/2007, 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 R. Azhagan
(Emp.No.70000) 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,
Pondicherry.
Monday, the 31st day of January 2011
I.D. No. 14/2007
R. Azhagan (Emp. No. 70000),
S/o. T.Rangapashyam,
No.18, P.S. Nallur Road,
Kalmandapam,
Pondicherry-605 106.
. .
Petitioner
Versus
The Management of M.R.F. Limited,
P.B. No.1, Eripakkam Village,
Nettapakkam Commune,
Pondicherry-605 106.
. .
Respondent
520
LA GAZETTE DE L’ETAT
[2 August 2011
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.
51/2007/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 R. Azhagan 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 I.T.I. qualification were paid ` 50 per
day. The workers were not given the benefits of E.S.I.
coverage or the benefits of P.F. 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 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 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 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
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 11-9-1997 and he was employed without any
written order of appointment being given to him and was
paid the rate of ` 45 per day. On 30-5-1998 the respondent’s
factory had given a first written order of appointment
designating the petitioner as “Apprentice” for a period
of 6 months. On the expiry of 6 months period set out
in the aforesaid order, he was again issued a second
order, dated 1-5-1999 again designating him as an
“Apprentice” for another period of 6 months. Further,
after expiry of another 6 months, the petitioner was again
issued another order, dated 1-11-1999 designating him
as “Apprentice”. On 1-5-2000 again another order was
issued designating him as "Apprentice”. 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 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
521
2 August 2011]
LA GAZETTE DE L’ETAT
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 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 a suspension pending enquiry
order, dated 30-1-2004 and the petitioner was issued a
show cause notice on 1-2-2004, after 4 days of issuing
the suspension order. The petitioner sent his reply
through registered post with acknowledge due, dated
7-2-2004. Thereafter, the petitioner was issued an
enquiry notice stating that the enquiry would be held
on 13-3-2004. The Enquiry Officer after completing the
enquiry proceedings, found that the charges framed
against the petitioner were proved. Hence, the
management issued a second show cause notice, dated
3-6-2004 proposing dismissal of the petitioner from
service and accepting the findings of the Enquiry
Officer. The petitioner gave his explanation on
8-6-2004 objecting the report and the management's
decision is not giving him an opportunity to show cause
against such allegation. The impugned dismissal of the
petitioner, dated 11-6-2004 is illegal and unjustified. Hence,
he 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 P.F.
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 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
31-1-2004 in contemplation of disciplinary proceedings
and the petitioner was issued with a show cause notice
on 1-2-2004 followed by an enquiry. After receipt of
enquiry report, dated 26-5-2004, the respondent
management completely perused the report and was
522
LA GAZETTE DE L’ETAT
[2 August 2011
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 26-5-2004 with an observation that the
charges framed against the petitioner are proved beyond
reasonable doubt. In strict adherence to natural justice,
the second show cause notice, dated 3-6-2004 was
issued to the petitioner along with enquiry report, for
which the petitioner submitted his reply on 8-6-2004. On
perusal of the past records, enquiry report and
explanation given by the petitioner, the respondent
management had arrayed to a conclusion to dismiss the
petitioner and therefore passed an order of dismissal,
dated 11-6-2004. Hence, they pray for dismissal of the
industrial dispute.
4. Now the point for determination is:
“Whether the non-employment of Mr. R. Azhagan by
the management of M/s. M.R.F. Limited, Puducherry is
justified or not?”
On point:
5. 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.
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 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. 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
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 respondent management on 11-9-1997
without any written order and the first written order of
appointment was given on 30-5-1998 designating him as
Apprentice for a period of six months, he was again
issued a second order, dated 1-5-1999 for another period
of six month designating as Apprentice and on the expiry
of next period of six months, he was again issued
another order once again designating as apprentice for
a further period of six months on 1-11-1999 and he was
again issued another order designating him as
Apprentice, dated 1-5-2000 and the model standing
orders, which applies to him states that a worker cannot
be kept as a trainee beyond six months.
9. In order to prove his claim, the petitioner was
examined himself as PW.1, who has stated about the said
facts and through him, Ex.P1 to Ex.P9. Ex.P1 is the first
appointment order, dated 30-5-1998 issued to him
designating as Apprentice, Ex.P2 is the second order,
dated 1-5-1999, Ex.P3 is the third order, dated 1-11-1999
and Ex.P4 is the fourth order, dated 1-5-2000.
10. On the side of the respondent, it is submitted that
clause 3 of the certified standing orders of respondent
company speaks about the classification of workman and
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
523
2 August 2011]
LA GAZETTE DE L’ETAT
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 and accordingly, the respondent company
issued Ex.P1 to Ex.P3 to the petitioner. Hence, there is
no violation of standing orders by the respondent
company in issuing the appointment order to the
petitioner, as stated by the petitioner.
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 ULR 600 :
Industrial Disputes Act, 1947 - Section 11 A,
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.
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 premise 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.
524
LA GAZETTE DE L’ETAT
[2 August 2011
(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 lockouts - 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 passangers 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.
2001 LLR 1154 (SC) :
.. in such an event if the appellant -corporation
losses 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.
525
2 August 2011]
LA GAZETTE DE L’ETAT
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 complaint
received from the Production Supervisor as Ex.R1 and
from the Engineering Supervisor as Ex.R2 and warning
letters issued to the petitioner as Ex.R12 to Ex.R14. A
perusal of Ex.R12 and Ex.P14 reveals that the petitioner
was issued warning notices for his absent from work
without information. Ex.R1 and Ex.R2 were received from
the staff of the respondent management for the
misbehaviour committed by the petitioner during the
office hours. Those 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.R5, relating to the
petitioner, we can understand that the petitioner was
advised to participate in the enquiry, which was
scheduled to be conducted from 13-3-2004 to 13-5-2004
and the petitioner has participated in the enquiry
proceedings. On the side of the respondent, three
witnesses were examined and they were cross-examined
by the petitioner. On side of the petitioner, no oral and
documentary evidence was adduced, though sufficient
opportunity was given to him. On 13-5-2004 the enquiry
was closed. The enquiry officer based on the evidence
of the witnesses and the documents available on
records, 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.R6 calling for his
explanation. The petitioner submitted his written
explanation under Ex.R7 and since the explanation
submitted by the petitioner was not satisfactory, the
respondent management dismissed the petitioner
from service.
18. Hence on perusal of Ex.R5 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 under Ex.P1 to
Ex.P4, 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.
526
LA GAZETTE DE L’ETAT
[2 August 2011
(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 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 on
accepting the above terms and conditions of the order
of respondent company, 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.
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 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.P7 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.
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:
PW.1 — 22-2-2010
R. Azhagan
List of witnesses examined for the respondent: Nil
List of exhibits marked for the petitioner:
Ex.P1 — 30-5-1998 Apprenticeship order
Ex.P2 —
1-5-1999 Apprenticeship order
Ex.P3 — 1-11-1999 Apprenticeship order
Ex.P4 —
1-5-2000 Apprenticeship order
Ex.P5 —
1-2-2004 Show cause notice
Ex.P6 — 11-6-2004
Dismissal order
Ex.P7 — 18-10-2006 Failure report, issued by
the Labour Officer (Conciliation),
Pondicherry.
List of exhibits marked for the respondent by consent:
Ex.R1 — 29-1-2004 Complaint from Production
Supervisor marked by consent.
Ex.R2 — 29-1-2004 Complaint from the Engineering
Supervisor marked by consent.
Ex.R3 —
1-2-2004 Show cause notice issued by
respondent
management,
marked by consent.
Ex.R4 — 19-2-2004 Written explanation of the claim
petitioner, marked by consent.
Ex.R5 —26-5-2004 Enquiry report with regard to
show cause notice, marked by
consent.
Ex.R6 —
3-6-2004 Second show cause notice
marked by consent.
Ex.R7 —
8-6-2004 Written explanation of the claim
petitioner, marked by consent.
Ex.R8 —
7-6-2006 Petition, dated filed under section
2A before the Labour Officer
(Conciliation), Puducherry.
Ex.R9 — 23-8-2006
Counter statement, filed
by the respondent management
before the Labour Officer
(Conciliation), Puducherry.
527
2 August 2011]
LA GAZETTE DE L’ETAT
Ex.R10— 23-8-2006 Counter statement, filed by
the
respondent
management
before the Labour Officer
(Conciliation), Puducherry.
Ex.R11—
1-5-1999 Apprenticeship order of the
claim petitioner, dated marked
by consent.
Ex.R12 — 1-11-2003 Warning notice issued to the
claim petitioner, marked by
consent.
Ex.R13— –
Copy of the unclaimed RPAD
cover sent to the petitioner,
marked by consent.
Ex.R14—26-12-2003 Severe warning letter issued to
the claim petitioner, marked by
consent.
Ex..R15— –
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
LABOUR DEPARTMENT
(G. O. Rt. No. 135/AIL/Lab./J/2011, dated 7th July 2011)
NOTIFICATION
Whereas, the Award in I.D. No.15/2007, 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 S. Bharathiraja
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,
Pondicherry.
Monday, the 31st day of January 2011
I.D. No. 15/2007
S. Bharathiraja (Emp. No. 6),
S/o. M. Singaram,
Vadhanur Post, Main Road,
Thirukanur Via,
Puducherry-605 501
. . Petitioner/
Workman.
Versus
The Management of M.R.F. Limited,
P.B. No.1, Eripakkam Village,
Nettapakkam Commune,
Puducherry-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. 52/2007/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 S. Bharathiraja
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 I.T.I. qualification were paid ` 50
per day. The workers were not given the benefits of
E.S.I. coverage or the benefits of PF coverage. After six
528
LA GAZETTE DE L’ETAT
[2 August 2011
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 I.T.I, qualification, were issued orders placing
them on probation. The management did not have
certified standing 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 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. 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 25-3-1998 and he was employed without any
written order of appointment being given to him and
was paid the rate of ` 40 per day. On 1-1-1999 the
respondent's company had given a first written order
of
appointment
designating
the
petitioner
as
“Apprentice” for a period of 6 months. On the expiry of
6 months period set out in the aforesaid order, he was
again issued a second order, dated 1-7-1999 again
designating him as an ‘Apprentice’ for another period
of 6 months. Further, after expiry of another 6 months,
the petitioner was again issued another order, dated
1-1-2000 designating him as “Apprentice”. On 1-7-2000
again another order was issued designating him as
“Apprentice”. 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 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 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
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 31-1-2004. He was issued a show cause memo.
dated 1-2-2004 in English and the petitioner gave his
explanation through an undated letter on 17-2-2004. The
petitioner was given the subsistence allowance. Later
on 29-2-2004 an enquiry notice was issued to the
529
2 August 2011]
LA GAZETTE DE L’ETAT
petitioner wherein it was stated that the petitioner's
explanation was not satisfactory and the management
had appointed Mr. K. Babu as an Enquiry Officer and
instituted an enquiry. The Enquiry Officer gave his
findings on 26-5-2004 by stating that the charges
framed against the petitioner were proved. The
respondent management issued a second show cause
notice, dated 3-6-2004 proposing dismissal of the
petitioner from service. Against the said order of
dismissal, the petitioner raised an industrial dispute under
section 2(A) of the Industrial Disputes Act. The
impugned dismissal of the petitioner, dated 15-6-2004
is illegal and unjustified. Hence, he 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
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 E.S.I. and PF
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 company 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 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
31-1-2004 in contemplation of disciplinary proceedings
and the petitioner was issued with a show cause notice on
1-2-2004 followed by an enquiry. After receipt of enquiry
report, dated 26-5-2004, 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 26-5-2004
with an observation that the charges framed against the
petitioner are proved beyond reasonable doubt. The
second show cause notice was issued on 3-6-2004 to the
petitioner alongwith enquiry report and the petitioner
has submitted his explanation on 9-6-2004. 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 11-6-2004.
The petitioner has no locus standi to claim
reinstatement and hence, they pray for dismissal of the
industrial dispute.
4. Now the point for determination is:
Whether the non-employment of Mr. S. Bharathiraja
by the management of M/s. M.R.F. Limited, Puducherry
is justified or not?
On point :
5. 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,
530
LA GAZETTE DE L’ETAT
[2 August 2011
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.
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 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. 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 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 respondent management on 25-3-1998
without any written order and the first written order of
appointment was given on 1-1-1999 designating him as
Apprentice for a period of six months, he was again
issued a second order, dated 1-7-1999 for another period
of six months designating as apprentice and on the
expiry of next period of six months, he was again issued
another order once again designating as Apprentice for
a further period of six months on 1-1-2000 and he was
again issued another order designating him as
Probationary, dated 1-7-2000 and the model standing
orders, which applies to him states that a worker cannot
be kept as a Trainee beyond six months.
9. In order to prove his claim, the petitioner was
examined himself as PW.1, who has stated about the
said facts and through him, Ex.P1 to Ex.P10. Ex.P1 is the
first appointment order, dated 1-1-1999 issued to him
designating as Apprentice, Ex.P2 is the second order,
dated 1-7-1999 and Ex.P3 is the third order, dated 1-7-2000
designating him as Probationary.
10. On the side of the respondent, it is submitted that
clause 3 of the certified standing orders of respondent
company speaks about the classification of workman
and 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 and accordingly, the respondent company
issued Ex.P1 to Ex.P3 to the petitioner. Hence, there is
no violation of standing orders by the respondent
company in issuing the appointment order to the
petitioner, as stated by the petitioner.
531
2 August 2011]
LA GAZETTE DE L’ETAT
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.
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
532
LA GAZETTE DE L’ETAT
[2 August 2011
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.
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 Production Supervisor and Shift Foreman
as Ex.R1 and Ex.R2 respectively. Ex.R1 and Ex.R2 were
received from the staff of the respondent management
for the misbehaviour committed by the petitioner during
the office hours. Those 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.
533
2 August 2011]
LA GAZETTE DE L’ETAT
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.R5, relating
to the petitioner, we can understand that the petitioner
was advised to participate in the enquiry, which was
scheduled to be conducted from 13-3-2004 to 27-4-2004.
On the side of the respondent, four witnesses were
examined and they were cross-examined by the
petitioner. On side of the petitioner, no oral and
documentary evidence was adduced, though sufficient
opportunity was given to him. On 27-4-2004 the enquiry
was closed. The Enquiry Officer based on the evidence
of the witnesses and the documents available on
records, 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.R6 calling for his
explanation. The petitioner submitted his written
explanation under Ex.R7 and since the explanation
submitted by the petitioner was not satisfactory, the
respondent management dismissed the petitioner from
service.
18. Hence on perusal of Ex.R5 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 under Ex.P1 to
Ex.P3, 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, 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.
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 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.P10 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.
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.
534
LA GAZETTE DE L’ETAT
[2 August 2011
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:
PW.1 — 22-10-2010 S. Bharathiraja
List of witnesses examined for the respondent: Nil
List of exhibits marked for the petitioner:
Ex.P1 —
1-1-1999
Apprenticeship order
Ex.P2 —
1-7-1999
Apprenticeship order
Ex.P3 —
1-7-2000
Probation appointment order
Ex.P4 —
1-2-2004
Show cause notice
Ex.P5 —
–
Written explanation given by
the petitioner.
Ex.P6 —
29-2-2004 Enquiry notice
Ex.P7 —
3-6-2004
Second show cause notice
Ex.P8 —
–
Written explanation given by
the petitioner.
Ex.P9 — 11-6-2004 Dismissal order
Ex.P10—
9-10-2006 Failure report issued by the
Labour Officer (Conciliation),
Pondicherry.
List of exhibits marked for the respondent by consent :
Ex.R1 —
30-1-2004 Complaint from the Production
Supervisor, marked by consent.
Ex.R2 —
30-1-2004 Complaint from the Shift
Foreman, marked by consent.
Ex.R3 —
1-2-2004 Show cause notice, marked by
consent.
Ex.R4 —
–
Written explanation given by
the petitioner, marked by
consent.
Ex.R5 —
26-5-2004 Enquiry report, marked by
consent.
Ex.R6—
3-6-2004
Second show cause notice,
issued
to
the
petitioner,
marked by consent.
Ex.R7 —
9-6-2004 Written explanation marked by
consent.
Ex.R8 —
27-2-2006 Petition filed under section 2A
before the Labour Officer
(Conciliation),
Puducherry,
marked by consent.
Ex.R9 —
24-7-2006 Counter statement filed by the
r e s p o n d e n t / m a n a g e m e n t ,
marked by consent.
Ex.R10 — –
Relevant Tamil Version of the
Certified Standing Orders,
marked by consent.
T. MOHANDASS,
II Additional District Judge,
Presiding Officer,
Labour Court, Pondicherry.
————
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G. O. Rt. No. 136/AIL/Lab./J/2011, dated 7th July 2011)
NOTIFICATION
Whereas, the Award in I. D. No. 7/2007, 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 K. Sivakumar
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,
Pondicherry.
Monday, the 31st day of January 2011
I. D. No. 7/2007
K.Sivakumar (Emp. No. 70090)
S/o.G.Krishnamoorthy
No. 19, Pillaiyar Koil Street,
Sooramangalam, Pallineliyanur Post,
Pondicherry-605 107
. . Petitioner
Versus
The Management of M.R.F. Limited,
P.B. No. 1, Eripakkam Village,
Nettapakkam Commune,
Pondicherry-605 106.
. . Respondent
535
2 August 2011]
LA GAZETTE DE L’ETAT
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. 44/2007/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 K. Sivakumar
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 I.T.I. 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 I.T.I. qualification, were issued orders placing
them on probation. The management did not have
certified standing 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 a n d 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. 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 17-11-1998 and he was employed without any
written order of appointment being given to him and was
paid the rate of ` 40 per day. On 1-7-1999 the
respondent’s factory had given a first written order of
appointment designating the petitioner as “Apprentice”
for a period of 6 months. On the expiry of 6 months
period set out in the aforesaid order, he was again issued
a second order, dated 1-1-2000 again designating him as
an ‘Apprentice’ for another period of 6 months. Further,
after expiry of another 6 months, the petitioner was again
issued another order, dated 1-7-2000 designating him as
“Apprentice”. On 1-1-.2001 again another order was
issued designating him as “Apprentice”. 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 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
536
LA GAZETTE DE L’ETAT
[2 August 2011
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 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 a
suspension pending enquiry order, dated 16-9-2002 and
the petitioner was issued a show cause notice on 20-9-2002,
after 4 days of issuing the suspension order.
The petitioner was issued an enquiry notice, dated 25-10-2002
stating that the enquiry would be held on 31-10-2002
wherein it was stated that the petitioner’s reply was not
satisfactory and the management had appointed
Ms.Usha as an Enquiry Officer and instituted an enquiry.
On 31-10-2002, the petitioner denied the charges before
the Enquiry Officer and stated that he had already sent
an explanation on 1-10-2002 through a registered letter.
In the enquiry that was held on 18-11-2002, one
Mr. S. Bharathi, Senionr Production (Tyre curing) was
examined as PW.1 and his report was marked as Ex.P1.
On 2-12-2002 Mr. Sam John, Production Supervisor was
examined as PW.2 and Mr.Ilamparithi, Quality Assurance
Supervisor was examined as PW.3. The attendance
register, dated 16-9-2002 was marked as Ex.P2. The letter
and report of the Quality Supervisor Mr.llamparithi were
marked as Ex.P3 and P4. Mr.P.Oulaganathan, Primary
Inspector was examined as PW.4 and T. V. Prakash, Tyre
Construction Assistant was examined as PW.5 and his
report was marked as Ex.P5. On 28.12.2002 the petitioner
was examined as RW.1 and marked as Ex.R1. On 4-1-2003,
the petitioner examined witness on his behalf namely
Mr. Mahadevan and Mr. G. Gopal as RW.2 and RW.3
respectively. In the deposition of RW.2 Mr. Mahadevan
has stated that the petitioner spoke with Mr.Sam John,
Supervisor about something. During the examination,
RW.2 has no where stated about the alleged incident in
the charge sheet. Further RW.3 Mr.Gopi has clearly stated
that Mr.Sam John, Supervisor was awling the tyres and
he used to train the trainees about awling the tyres. The
enquiry proceedings were concluded on 4-1-2003.
The very non-mentioning of the name of PW.1 in the
show cause memo, dated 20-9-2002 and non-furnishing
of his alleged report, which is clearly shows that the
exhibit P1 was fabricated for the case and PW.1 is not
really a witness to the alleged charges but a doctored
and tutored witness. The petitioner having studied only
up to 11th standard and having no previous experience
in cross-examination obviously had his own limitation
and denial of assistance of a co-employee by not
informing the petitioner of his right to such assistance,
is clearly a denial of reasonable opportunity for the
petitioner to defend himself. 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 disputes 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 18-10-2006 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 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. 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
537
2 August 2011]
LA GAZETTE DE L’ETAT
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 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 petitioner was suspended from service on 16-9-2002
in contemplation of disciplinary proceedings and the
petitioner was issued with a show cause notice on 20-9-2002
followed by an enquiry. After receipt of enquiry report,
dated 9-12-2003, 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 9-12-2003 with an
observation that the charges framed against the
petitioner are proved beyond reasonable doubt. The
petitioner was paid stipend at the rate of ` 75 per day.
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 9-12-2003 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. K. Sivakumar
by the management of M/s. M.R.F. Limited,
Puducherry is justified or not?”
On point :
5. 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.
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 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. 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 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 respondent management on 17-11-1998
without any written order and the first written order of
appointment was given on 1-7-1999 designating him as
apprentice for a period of six months, he was again
issued a second order, dated 1-1-2000 for another period
of six months designating as apprentice and on the
expiry of next period of six months, he was again issued
538
LA GAZETTE DE L’ETAT
[2 August 2011
another order once again designating as apprentice for
a further period of six months on 1-7-2000 and he was
again issued another order designating him as
apprentice, dated 1-1-2001 and the model Standing
Orders, which applies to him states that a worker cannot
be kept as a trainee beyond six months.
9. In order to prove his claim, the petitioner was
examined himself as PW1, who has stated about the said
facts and through him, Ex. P1 to Ex. P9. Ex. P1 is the first
appointment order, dated 1-7-1999 issued to him
designating as apprentice, Ex.P2 is the second order,
dated 1-1-2000 and Ex. P3 is the third order, dated 1-7-2000.
10. On the side of the respondent, it is submitted that
clause 3 of the Certified Standing Orders of respondent
company speaks about the classification of workman and
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 and accordingly, the respondent company issued
Ex.P1 to Ex.P3 to the petitioner. Hence, there is no
violation of Standing Orders by the respondent
company in issuing the appointment order to the
petitioner, as stated by the petitioner.
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.
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.
539
2 August 2011]
LA GAZETTE DE L’ETAT
(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.
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
540
LA GAZETTE DE L’ETAT
[2 August 2011
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 warning letters
issued to the petitioner as Ex.R12 to Ex.R14.
A perusal of Ex.R12 and Ex.P13 reveals that the
petitioner was issued warning notices for his absent from
work without information. Ex.R15 Warning notice has
been issued to the petitioner for causing damage to the
tyre belonging to the respondent company. Ex.R12 to
Ex.R14 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.R3, relating to the
petitioner, we can understand that the petitioner was
advised to participate in the enquiry, which was scheduled
to be conducted from 31-10-2002 to 4-1-2003 and the
petitioner was not present in two hearings and then he
participated in the enquiry proceedings. On the side of
the respondent, five witnesses were examined and they
were cross-examined by the petitioner and posted to
18-12-2002 for examination of witnesses on the side of
the petitioner. Since the petitioner was not appeared on
18-12-2002, the enquiry was adjourned to 28-12-2002 and
on that day, he was examined and two others and they
were cross-examined by the respondent. On 4-1-2003 the
enquiry was completed. The Enquiry Officer based on
the evidence of the witnesses and the documents
available on records, 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.R4 calling for his explanation. The petitioner
submitted his written explanation under Ex.R5 and since
the explanation submitted by the petitioner was not
satisfactory, the respondent management dismissed from
service.
18. Hence on perusal of Ex.R3 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 under Ex.P1 to
Ex.P3, 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.
541
2 August 2011]
LA GAZETTE DE L’ETAT
(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, 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 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.P9 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 — 30-9-2010
K. Sivakumar
List of witnesses examined for the respondent : Nil
List of exhibits marked for the petitioner:
EX.P1 —
1-7-1999
Apprenticeship order
Ex.P2 —
1-1-2000
Apprenticeship order
Ex.P3 — 1-7-2000
Apprenticeship order
Ex.P4 — 1-10-2002
Explanations given by the
petitioner.
Ex.P5 —
—
Enquiry notice
Ex.P6 —
7-5-2004
Explanations given by the
petitioner.
Ex.P7 —
4-5-2004
Dismissal order
Ex. P8 —18-10-2006
Failure report dated issued by
the Labour Officer (Conciliation),
Pondicherry.
Ex. P9 —
—
Photocopy of letter given by
the petitioner to the Enquiry
Officer.
List of exhibits marked for the respondent by consent:
Ex.R1 — 16-9-2002
Complaint from Production
Supervisor, marked by consent.
Ex.R2 — 16-9-2002
Complaint from the Quality
Supervisor marked by consent.
Ex.R3 — 16-9-2002
Complaint from Technical
Department marked by consent.
Ex.R4 — 20-9-2002
Show cause notice, marked by
consent.
Ex.R5 —
1-1-2002
Written explanation of the
claim
petitioner, marked by
consent.
Ex.R6 —
9-1-2003
Enquiry report with regard to
show cause notice, marked by
consent.
Ex.R7 — 26-4-2004
Second show cause notice
marked by consent.
Ex.R8 —
7-5-2004
Written explanation of the
claim petitioner, marked by
consent.
Ex.R9 —
—
Petition filed under section 2A
before the Labour Officer
(Conciliation), Puducherry.
Ex.R10— —
Counter statement filed by the
respondent management before
the Labour Officer (Conciliation),
Puducherry.
Ex.R11 —
1-7-1999
Apprenticeship order of the
claim petitioner, marked by
consent.
Ex.R12 — 18-3-2002
Warning notice issued to the
claim petitioner, marked by
consent.
542
LA GAZETTE DE L’ETAT
[2 August 2011
Ex.R13 —
7-8-2000
Advisory note issued to the
claim petitioner, marked by
consent.
Ex.R14 — 10-9-2002
Warning letter issued to the
claim petitioner, marked by
consent.
T. MOHANDASS
II Additional District Judge,
Presiding Officer, Labour Court,
Pondicherry.
GOVERNMENT OF PUDUCHERRY
CHIEF SECRETARIAT (HOUSING)
[G.O. Ms. No. 18/2011-Hg., dated 13th July 2011]
ORDER
The Ministry of Housing and Urban Poverty
Alleviation has evolved a framework for a State Level
Mechanism viz., “Third Party Inspection and
Monitoring Agency (TPIMA)” to keep track of the
physical and financial progress of the housing projects
executed under JNNURM scheme, enable achievement
of better quality of projects, cost and time control,
improved planning, budgeting and measurement of
impact under JNNURM. The agency will also ensure
periodic feedback to all key stakeholders. As per the
guidelines of the Ministry of Housing and Urban
Poverty Alleviation, a Third Party Inspection and
Monitoring Agency (TPIMA) has to be appointed by
the State Level Nodal Agency for reviewing and
reporting to the Ministry of Housing and Urban
Poverty Alleviation about the housing projects executed
under JNNURM scheme in the Union territory of
Puducherry.
2. As per the guidelines published by the said
Ministry, the Town and Country Planning Department,
Puducherry which has been notified as the State Level
Nodal Agency for the JNNURM scheme has called for
request for proposals from the empanelled consultants
of the said Ministry. The Evaluation Committee
constituted vide G.O.Ms.No.4/2008-Hg., dated 3-3-2008
of the Chief Secretariat (Housing), Puducherry
evaluated the proposals received by the State Level
Nodal Agency and the Committee has chosen to
a p p o i n t ‘‘M/s. Mahindra Acres Consulting Engineers
Limited, Chennai’’ as the Third Party Inspection and
Monitoring Agency (TPIMA) for the Union territory of
Puducherry by adhering to the guidelines of the
Ministry of Housing and Urban Poverty Alleviation,
Government of India.
3. The Central Sanctioning and Monitoring Committee
of Ministry of Housing and Urban Poverty Alleviation,
Government of India has also approved the proposal to
appoint M/s. Mahindra Acres Consulting Engineers
Limited, Chennai as the TPIMA for Puducherry at the
following fees:-
Desk review of all
:
` 81,596 (Rupees eighty-one
project documents
t h o u s a n d f i v e h u n d r e d
(BSUP).
and ninety-six only)
Desk review of all
:
` 81,596 (Rupees eighty-one
projec documents
thousand five hundred
(IHSDP).
and ninety-six only)
On-site visit (BSUP) :
` 31,732 (Rupees thirty-one
thousand seven hundred
a n d th i r t y -t w o o n l y )
(per visit)
On-site visit (IHSDP):
` 31,732 (Rupees thirty-one
thousand seven hundred
a n d th i r t y -t w o o n l y )
(per visit)
4. Approval of the Lieutenant-Governor of
Puducherry is conveyed for appointing ‘‘M/s. Mahindra
Acres Consulting Engineers Limited, Chennai’’ as the
Third Party Inspection and Monitoring Agency (TPIMA)
for Union territory of Puducherry at the abovesaid fees
for the projects approved by the Ministry of Housing
and Urban Poverty Alleviation under JNNURM scheme.
The State Level Nodal Agency will enter into a contract
with M/s. Mahindra Acres Consulting Engineers Ltd.,
Chennai to act as the Third Party Inspection and
Monitoring Agency (TPIMA) for the projects approved
in accordance with the guidelines issued by the
Ministry of Housing and Urban Poverty Alleviation.
5. The Third Party Inspection and Monitoring
Agency (TPIMA) will become functional from the date
of entering the contract and will review, monitor and
report to the State Level Nodal Agency, State Level Steering
Committee and Ministry of Housing and Urban Poverty
Alleviation as per the terms of reference of the contract.
6. The Urban Local Bodies, the Parastatals and the
Project Executing Agencies concerned with the
execution of projects approved by the Ministry of
Housing and Urban Poverty Alleviation under the
Jawaharlal Nehru National Urban Renewal Mission
(JNNURM) scheme will extend, cooperate and furnish all
necessary documents, provide access to project sites,
provide time and enable interactions with officials,
consultants, contractors and all other support required
for TPIMA to carry out its mandate as per the terms of
reference of contract.
7. The cost incurred towards the meeting the
expenditure involved in the functioning of Third Party
Inspection and Monitoring Agency (TPIMA) as above
will be met from the state funds provided under the
Jawaharlal Nehru National Urban Renewal Mission
(JNNURM) scheme and the State Level Nodal Agency
will get the expenditure reimbursed from the Ministry of
Housing and Urban Poverty Alleviation by submitting
the claims.