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LA GAZETTE DE L’ETAT
[12 March 2013
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 24/AIL/Lab./J/2013, dated 26th February 2013)
NOTIFICATION
Whereas, an Award in I.D. No. 27/2010, dated
28-9-2012 of the Labour Court, Puducherry in respect
of the industrial dispute between the Managing Director,
MRF Limited, Puducherry and one Thiru S. Gnanamani,
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. 20/90/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)
S. THAMMU GANAPATHY,
Under Secretary to Government (Labour).
————
BEFORE THE LABOUR COURT AT PUDUCHERRY
Present : Thiru T. MOHANDASS, M.A., M.L.,
Presiding Officer, Labour Court,
Puducherry.
Friday, the 28th day of September 2012.
I.D. No. 27/2010
S. Gnanamani
. . Petitioner
Versus
The Managing Director,
MRF Limited, Eripakkam,
Puducherry.
. . Respondent
This industrial dispute coming on 24-9-2012 for final
hearing before me in the presence of Thiru H.D. Kumaravelu,
Advocate for the petitioner, Thiruvalargal L. Swaminathan
and I. Ilankumar, Advocates for the respondent, upon
hearing both sides, upon perusing the case records,
after having stood over for consideration till this day,
this court passed the following:
AWARD
This industrial dispute arises out of the reference
made by the Government of Puducherry, vide G.O. Rt.
No. 158/AIL/Lab./J/2010, dated 15-7-2010 of the Labour
Department, Puducherry to resolve the following
dispute between the petitioner and the respondent, viz.,
(1) Whether the dispute raised by Thiru S.
Gnanamani against the management of M/s. MRF
Limited, Eripakkam, Puducherry, over non-
employment is justified or not?
(2) If justified, what relief the petitioner is entitled to?
(3) To compute the relief, if any, awarded in terms
of money, if it can be so computed?
2. The petitioner, in his claim statement, has averred
as follows:
The petitioner had worked in the respondent factory
from 1-8-2001 and he was terminated from service
without any reason. The management according to their
whims and fancies obtained the signature of the
petitioner under threat. The only intention of
management is to keep persons, who are dancing
according to the tunes of management and the persons
like the petitioner, who too worked for the uplift of the
company, is being penalised for no fault and the
petitioner was not guilty of the gross misconduct. The
petitioner was not irregular in his attendance is an
unadulterated pucca falsehood. The order of termination
by the respondent is ultra vires, illegal and without any
reasoning. The disciplinary proceeding alleged by the
management is the concocted documents. No fair
proceedings were conducted against the petitioner by
the management. Hence, this industrial dispute is filed
to reinstate the petitioner into service with back wages.
3. In the counter statement, the respondent has
stated as follows:
The petitioner was offered an appointment as
apprentice through apprenticeship order, dated 1-1-2002
followed by probationary appointment order, dated 1-2-2003.
The petitioner was in the habit of remaining unauthorisedly
absent from duty on various occasions in the calendar
years 2003 and 2004 for which warning letters to the
petitioner were issued by the respondent on 29-6-2003,
9-9-2003, 15-10-2004 and 8-11-2004. As the petitioner had
totally ignored the warning issued by the respondent,
continued to remain absent from duty with effect from
8-5-2005 onwards. The respondent management
issued a show cause notice, dated 21-5-2005 intimating
the petitioner about remaining unauthorisedly absent
for nearly 62 days during October 2004 to April 2005
and again from 8-5-2005 and directed him to submit his
written explanation within 48 hours. The petitioner
submitted his written explanation, dated 23-5-2005
admitting the charges of the show cause notice.
Eventhough the petitioner had admitted the charges,
the respondent in order to be fair and just, had ordered
for an enquiry and on 3-6-2005 during the enquiry
proceedings, the petitioner had admitted the charges
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12 March 2013]
LA GAZETTE DE L’ETAT
mentioned in the show cause notice, dated 21-5-2005 by
confessing that the charges levelled against the
petitioner as true. The Enquiry Officer had submitted the
enquiry report, dated 23-6-2005 by holding that the
charges against the petitioner are proved.
Before any action could be initiated on the said
enquiry report, the petitioner was again unauthorisedly
absent for seven days in August 2005, for which the
respondent has issued a warning letter, dated 30-8-2005
and in spite of it, the petitioner had again absented from
duty from 7-9-2005 onwards and hence another show
cause notice, dated 28-9-2005 was issued calling upon
him to submit his explanation and he submitted his
explanation, dated 3-10-2005 admitting the charges found
in the said show cause notice and after receipt of the
said explanation, the petitioner was imposed with the
punishment of suspension for a period of four days from
5-10-2005 to 8-10-2005. In spite of punishment of
suspension, the petitioner again remained unauthorisedly
absent. Hence, the petitioner was issued a show cause
notice, dated 16-9-2006 by the respondent and the
petitioner submitted his own hand written explanation,
dated 16-9-2006, admitting the charges contained in the
said show cause notice. Then the enquiry was
conducted and during the enquiry proceedings, the
petitioner admitted the charges and the Enquiry Officer
held that the petitioner was guilty of the misconduct
and the charges stand proved against him. Then the
second show cause notice, dated 12-2-2007 was issued
to the petitioner along with the copy of the enquiry
report and called upon him to submit his written
explanation and then the petitioner was unauthorisedly
absent from 8-5-2007 for which also the enquiry
proceedings was conducted and in the enquiry, the
petitioner admitted the charges found in the show cause
notice. Hence, the respondent had totally lost
confidence against the claim petitioner as in all the three
enquiry proceedings it could be seen that the petitioner
had accepted the charges of unauthorised absence.
Hence, the respondent had issued a order of termination
dated 20-6-2007 to the petitioner. Thus it is an appropriate
case, where the respondent had patiently waited by
taking lenient views on earlier occasions and the
manner of punishment of termination from service is in
consonance with the attitude of the petitioner and no
sympathy can be bestowed even to a slightest extent.
Hence, they pray for dismissal of the industrial dispute.
4. On the side of the petitioner, PW.1 to PW.3 were
examined and Ex.P1 to Ex.P21 were marked. On the side
of the respondent, RW1 was examined and Ex.R1 to
Ex.R31 were marked.
5. The point for determination is:
Whether the industrial dispute can be allowed?
6. On the point:
The contention of the petitioner is that he had
worked in the respondent factory from 1-8-2001 and he
was terminated from service without any reason and the
management according to their whims and fancies
obtained the signature of the petitioner under threat and
the only intention of management is to keep persons,
who are dancing according to the tunes of management
and the persons like the petitioner, who too worked for
the uplift of the company, is being penalised for no fault
and the petitioner was not guilty of the gross
misconduct. In order to prove his claim, the petitioner
examined himself as PW1.
7. Per contra, the contention of the respondent is
that the petitioner was in the habit of remaining
unauthorisedly absent from duty on various occasions
and hence he was terminated from service. The learned
counsel for the respondent relied upon the following
decisions to support the claim of the respondent:
2004(2) LLJ 543 (SC):
“Treating unauthorised absence from duty as
leave without pay, not the same as sanctioned leave.
Absence without obtaining leave in advance, such
being requirement under the relevant Standing
Orders held amounted to misconduct and therefore
termination is justified”.
2008II LLJ 645 (SC):
“Once it is found that all the procedural
requirements have been complied with, Courts would
not ordinarily interfere in the quantum of punishment
imposed upon a delinquent employee. If the decision
of the employer is found to be within the legal
parameters, jurisdiction would ordinarily not be
invoked when the misconduct stands proved.”.
2002 LLR 220:
“The misconduct of habitual absenting of the
petitioner without obtaining leave on nearly five
occasions has been proved on its own merits and in
spite of imposition of minor punishments, the
petitioner had not mend his ways. The Labour Court
found as a matter of fact that the petitioner is guilty
of unauthorised and unjustified absence. Such a
finding of fact cannot be brushed aside or interfered
with particularly in the facts and circumstances of
the case”.
(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
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LA GAZETTE DE L’ETAT
[12 March 2013
the charge of habitual absence of the employee was
not grave. Such order of the CAT is clearly erroneous
and liable to be set aside”.
2009(5) CTC 160:
“In the light of the above decisions of the
Supreme Court, it is now well settled that desertion
in a disciplined force is a serious lapse, which cannot
be treated lightly. It is the categorical findings of the
Enquiry Officer that the previous punishment imposed
on the petitioner did not give the desired effect of
correction. But he had repeated the act of desertion
for which he has been dismissed from service”.
In order to prove the claim of the respondent, the
Senior Officer of the respondent company was examined
as RW1. RW1 in his evidence has deposed that the
petitioner was in the habit of remaining unauthorisedly
absent from duty on various occasions in the calendar
years 2003 and 2004 for which warning letters to the
petitioner were issued on 29-6-2003, 9-9-2003,
15-10-2004 and 8-11-2004 under Ex.R1, Ex.R3 to Ex.R5
and as the petitioner had totally ignored the said
warning letters, continued to remain absent from duty
with effect from 8-5-2005 onwards and the respondent
issued a show cause notice, dated 21-5-2005 under Ex.R6
intimating the petitioner about remaining unauthorisedly
absent for nearly 62 days during October 2004 to April
2005 and again from 8-5-2005 and directed him to submit
his written explanation and the petitioner submitted his
written explanation admitting the charges of the show
cause notice and then the enquiry was conducted and
in the enquiry proceedings, the petitioner has admitted
the charges mentioned in the show cause notice and
the Enquiry Officer submitted his report under Ex.R10
by holding that the charges against the petitioner were
proved, but the respondent has not taken any action
against the petitioner.
8. RW1 further deposed that again the petitioner was
unauthorisedly absent for seven days from duty in
August 2005 to which the respondent issued warning
letter, dated 30-8-2005 under Ex.R11 and in spite of
issuance of warning letter the petitioner had again
absented from duty from 7-9-2005 onwards and hence a
show cause notice, dated 28-9-2005 under Ex.R12 was
issued calling upon to submit his explanation and
the petitioner submitted his written explanation,
dated 3-10-2005 under Ex.R13 admitting the charges to
the said show cause notice and after receipt of the said
explanation, the respondent issued a memo., dated
4-10-2005 under Ex.R14 and in order to afford another
opportunity, a lenient view was taken by the respondent
and the petitioner was imposed with the punishment of
suspension for four days from 5-10-2005 to 8-10-2005.
RW1 further deposed that again the petitioner was
remained unauthorisedly absent in May 2006 for nine
days, in June 2006 for 8 days and in July 2006 for 3 days
to which warning letter, dated 19-5-2006, 15-7-2006 and
12-8-2006 under Ex.R15 to Ex.R17 respectively were
issued to him and then a show cause notice under
Ex.R18 was issued to the petitioner calling for his
explanation and the petitioner submitted his written
explanation under Ex.R19 admitting the charges and then
they had initiated domestic enquiry proceedings and the
Enquiry Officer after completion of enquiry proceedings
had submitted his enquiry report under Ex.R21 by
holding that the petitioner is guilty of the misconduct
and after receipt of the said report, they had taken a
lenient view by issuing only an order of suspension
under Ex.R22 with effect from 13-10-2006 to 27-10-2006.
9. RW1 further deposed that the petitioner had again
unauthorisedly absent with effect from 2-11-2006
onwards and they issued a phonogram, dated 21-11-2006
under Ex.R23 to report for duty and the petitioner did
not report for duty in spite of receipt of phonogram and
hence they issued a show cause notice under Ex.R24
calling upon him to submit his written explanation and
he submitted his written explanation, dated 18-12-2006
under Ex.R25, admitting the charges to the said show
cause notice and then enquiry was conducted and in
the enquiry, the petitioner had admitted the charges of
unauthorised absence and the Enquiry Officer submitted
his enquiry report under Ex.R27 holding that the charges
levelled against the petitioner are proved and they
issued a show cause notice, dated 12-2-2007 under
Ex.R28 with copy of the enquiry report and the
petitioner was called upon to submit his explanation and
the petitioner submitted his explanation, dated 17-2-2007
admitting the charges of the unauthorisedly absent from
duty and hence they terminated him from service under
Ex.R29.
10. The above oral evidence of RW1 and the
documents as mentioned above are clearly established
that the petitioner had unauthorisedly absent from duty
on four occasions, which has been admitted by the
petitioner himself during the enquiry proceedings.
Hence, the contention of the petitioner that he was
terminated from service without any reason cannot be
accepted.
11. Now this court has to see whether the
punishment imposed by the respondent management is
disproportionate or not.
12. The charge against the petitioner is that he was
in the habit of remaining unathorisedly absent from duty
on various occasions. The petitioner has admitted the
said charge during the enquiry proceedings. On the side
of the petitioner, the copy of the letter, dated 18-12-2009
addressed the respondent company was marked as
209
12 March 2013]
LA GAZETTE DE L’ETAT
Ex.P11. In Ex.P11 the petitioner has admitted about the
absent from duty during the year 2005, 2006 and 2007
and due to his family circumstances and since his
mother was not well, he was unable to attend the duty
and during the year 2007, his mother condition was very
worst, he could not report for duty and then he was
terminated from service. On the side of the petitioner,
the cytology report from FNAC and body fluids of his
mother, dated 6-4-2006 was marked as Ex.P19 and the
certificate dated 18-10-2004, issued by the Medical Officer
was marked as Ex.P20. Ex.P19 and Ex.P20 would prove
that the mother of the petitioner was not well during
the year 2004 and 2006. In the above circumstances,
I feel that the petitioner has not reported for duty
wantonly, but due to the health condition of his mother
was not well, he was absent for various occasions and
hence the charge levelled against the petitioner cannot
be taken as a serious one. Further there is nothing
record to show that any previous adverse remark
against the petitioner had been taken into consideration
by the management for awarding the extreme penalty of
dismissal from service to the petitioner. In fact, RW1 in
his cross examination has admitted that except the
present unauthorised absent, there is no adverse
remarks as against the petitioner. The relevant portion
of his evidence runs as follows:
“\–>V´Ï º√ˆ_ s|©Á√ >s´ ºkÆ ®Õ> zu≈flƒV‚|D
÷_ÁÈ ®[≈V_ ƒˆ>V[”.
When the petitioner has stated about the reason for
absent from duty in Ex.P11 and the same has been
established through Ex.P19 and Ex.P20, the dismissal
order issued by the respondent to the petitioner is
disproportionate. Hence, I am therefore of the opinion
that the punishment awarded to the petitioner is
shockingly disproportionate and consequently, the
dismissal order passed by the respondent management
is liable to be set aside.
13. The learned counsel for the respondent
submitted that they had totally lost confidence as the
petitioner was found guilty of unauthorised and
unjustified absence amounting to grave misconduct and
the present gravity of charges and the past records of
misconduct would clearly spell out that the petitioner
is not a fit person to be allowed to continue in service
and they cannot take the risk of allowing the petitioner
to continue as a workman as it would set a wrong
precedent.
14. It is pertinent to refer the following decision,
which is relevant to this case:
(2006) 5 Supreme Court Cases 173:
"Ss. 11-A, 25-F and 25-B - Relief under S. 11-A -
Nature of, and preconditions for grant of reinstatement
- Relief under S.11-A, held, discretionary - Hence,
should be granted not automatically but after
considering the peculiar facts of each case including
the nature and purpose of the appointment, the
duration/tenure of the work and the question whether
the post was a sanctioned one - that it is lawful to grant
reinstatement with back wages does not mean that the
same should be granted automatically- In the present
case, the appointment of the respondent workman was
not in a sanctioned post and was made at the instance
of a Minister dehors the rules and in violation of Arts.
14 and 16 while the employer Municipal Council was a
‘State’ within the meaning of Art. 12 - Hence, the said
appointment, held, void- Therefore, for termination of
his service without complying with S.25-F, held, the
appropriate relief was grant of monetary compensation
(` 50,000 in this case) and not reinstatement with back
wages”.
15. This court has already come to the conclusion
that the termination of petitioner from service is
disproportionate and the same is liable to be set aside.
Under these circumstances, if any order passed by this
court to reinstate the petitioner into service, there will
not be any smooth relationship between the petitioner
and the respondent, as the respondent has lost
confidence, since the petitioner was found guilty of
unauthorised and unjustified absence. Hence, being
guided by the Hon'ble Supreme Court in the above
decision, instead of reinstate the petitioner into service,
he can be given monetary compensation.
16. On the side of the petitioner, one Muralidaran,
Subramanian and Arulpragasam were examined as PWs.2
to 4. According to them, they were working in the
respondent company from 2002 to 2009 and since they
were participated in the strike conducted in their
company, they were terminated from service by the
respondent and they raised a dispute before the
Conciliation Officer and on interference by the
Conciliation Officer, it is decided to reinstate them into
service, but the respondent without reinstate them,
settled their accounts by paying a sum of ` 4,50,000
each to them.
17. The services of the petitioner were confirmed
on 1-8-2003 as could be seen from the order of
confirmation under Ex.P1 and he was terminated from
service on 20-6-2007 under Ex.P2. Considering the age
and the services rendered in the respondent company
and considering the evidence of PWs.2 to 4, a sum of
` 2,00,000 is awarded to the petitioner towards
monetary compensation. Accordingly, this point is
answered.
18. In the result, the industrial dispute is partly
allowed and the petitioner is not entitled for
reinstatement. However, he is entitled for monetary
compensation of ` 2,00,000 (Rupees two lakhs only)
from the respondent. No costs.
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LA GAZETTE DE L’ETAT
[12 March 2013
Typed to my dictation, corrected and pronounced by
me in the open court on this the 28th day of
September, 2012.
T. MOHANDASS,
Presiding Officer, Labour Court,
Puducherry.
————
List of witnesses examined for the petitioner :
PW1 — 16-2-2012 — Gnanamani.
PW2 — 26-7-2012 — Muralidharan.
PW3 — 26-7-2012 — K. Subramanian.
PW4 — 26-7-2012 — Arulpragasam.
List of witness examined for the respondent :
RW1 — 24-8-2012 — C. Rajadurai.
List of exhibits marked for the petitioner :
Ex.P1
— Copy of order of confirmation, dated
1-8-2003.
Ex.P2
— Order, dated 20-6-2007 issued to the
petitioner.
Ex.P3
— Letter, dated 11-7-2008 by petitioner to
Labour Officer.
Ex.P4
— Reply filed by management, dated
17-1-2009.
Ex.P5
— Counter statement, filed by the petitioner
Ex.P6
— Letter, dated 13-11-2008, issued by the
Labour Officer.
Ex.P7
— Notice, dated 2-3-2009 by the Labour
Officer to both parties.
Ex.P8 — Notice, dated 9-6-2009 by the Labour
Officer to the petitioner.
Ex.P9
— Letter, dated 1-10-2009 to the Labour
Officer by the petitioner.
Ex.P10 — Letter, dated 4-11-2009 by the General
Secretary to Labour Officer.
Ex.P11 — Letter, dated 18-12-2009 by the petitioner
to the respondent.
Ex.P12 — Failure report, dated 16-6-2010
Ex.P13 — Government Order, dated 5-7-2010,
issued by Joint Secretary (Labour).
Ex.P14 — Reply filed by respondent, dated
1-6-2009.
Ex.P15 — Reply filed by the petitioner 1-6-2009.
Ex.P16 — Letter,
dated
29-7-2009
by
the
respondent to Labour Officer.
Ex.P17 — Pay slip of the petitioner.
Ex.P18 — D i s c h a r g e s u m m a r y i s s u e d b y
Sri Manakula Vinayagar Medical
College, dated 29-7-2009.
Ex.P19 — Cytology report from FNAC and body
fluids.
Ex.P20 — Medical Certificate, issued by Dr. A.S. Palsami,
dated 18-10-2004.
List of exhibits marked for the respondent :
Ex.R1
— Warning letter, dated 29-6-2003 to the
petitioner.
Ex.R2
— Order of confirmation, dated 1-8-2003 to
the petitioner.
Ex.R3
— Warning letter, dated 9-9-2003 to the
petitioner.
Ex.R4
— Warning letter, dated 15-10-2003 to the
petitioner.
Ex.R5
— Warning letter, dated 8-11-2004 to the
petitioner.
Ex.R6
— Show cause notice, dated 21-5-2005
issued to the petitioner.
Ex.R7
— Explanation of the petitioner, dated
23-5-2005.
Ex.R8
— Enquiry notice, dated 31-5-2005
Ex.R9
— Daily order proceedings, dated 3-6-2005
Ex.R10 — Enquiry report, dated 23-6-2005
Ex.R11 — Warning letter, dated 30-8-2005
Ex.R12 — Show cause notice, dated 28-9-2005
Ex.R13 — Explanation of the petitioner, dated
3-10-2005.
Ex.R14 — Memo., dated 4-10-2005 issued by the
respondent to the petitioner.
Ex.R15 — Warning letter, dated 19-5-2006
Ex.R16 — Warning letter, dated 15-7-2006
Ex.R17 — Warning letter, dated 12-8-2006.
Ex.R18 — Show cause notice, dated 16-9-2006.
Ex.R19 — Explanation submitted by the petitioner,
dated 16-9-2006.
Ex.R20 — Daily order proceedings, dated 12-10-2006.
Ex.R21 — Enquiry report, dated 12-10-2006.
Ex.R22 — Suspension order, dated 13-10-2006.
Ex.R23 — Phonogram, dated 21-11-2006.
Ex.R24 — Show cause notice, dated 14-12-2006.
Ex.R25 — Explanation, dated 18-12-2006 given by
the petitioner.
Ex.R26 — Daily order proceedings, dated 5-1-2007.
Ex.R27 — Enquiry report, dated 22-1-2007.
211
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LA GAZETTE DE L’ETAT
Ex.R28 — Memo., dated 12-2-2007 issued by the
respondent.
Ex.R29 — Order of termination, dated 20-6-2007.
Ex.R30 — Pay slip of the petitioner.
Ex.R31 — Register of leave with wages of the
petitioner.
T. MOHANDASS,
II Additional District Judge,
Presiding Officer, Labour Court,
Puducherry.
————
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 25/AIL/Lab./J/2013, dated 26th February 2013)
NOTIFICATION
Whereas, an Award in I.D. No. 15/2011, dated 25-10-2012 of
the Labour Court, Puducherry in respect of the industrial
dispute between the Pondicherry Co-operative Milk
Producers Union Li m i t e d, Puducherry and one
Thiru J. Anthonisamy, 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. 20/90/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 )
S. THAMMU GANAPATHY,
Under Secretary to Government (Labour).
————
BEFORE THE LABOUR COURT AT PUDUCHERRY
Present : Thiru T. MOHANDASS, M.A., M.L.,
Presiding Officer, Labour Court,
Puducherry.
Thursday, the 25th day of October 2012.
I.D. No. 15/2011
J. Anthonisamy
. .
Petitioner
Versus
The Managing Director,
Pondicherry Co-operative Milk
Producers’ Union Limited,
Puducherry.
. .
Respondent
This industrial dispute coming on 19-10-2012 for final
hearing before me in the presence of Thiru P. Sankaran,
M/s. Law Solvers, Advocate for the petitioner,
Thiruvalargal L. Swaminathan and I. Ilankumar,
Advocates for the respondent, upon hearing both sides,
upon perusing the case records, after having stood over
for consideration till this day, this court passed the
following:
AWARD
This industrial dispute arises out of the reference
made by the Government of Puducherry, vide G. O. Rt.
No. 107/AIL/Lab./J/2011, dated 26-5-2011 of the Labour
Department, Puducherry to resolve the following
dispute between the petitioner and the respondent, viz.,
(1) Whether the dispute raised by Thiru J. Anthonisamy
against the management of M/s. Pondicherry
Co-operative Milk Producers’ Union Limited,
Puducherry over his dismissal from service is illegal
is justified?
(2) If justified, to what relief the petitioner is
entitled to?
(3) To compute the relief, if any, awarded in terms
of money, if it can be so computed?
2. The petitioner, in his claim statement, has averred
as follows :
The petitioner was joined as casual workman in the
respondent industry on 1-11-1969 and confirmed as
permanent employee on 1-3-1970. On 28-5-2004 the
respondent management suspended the petitioner from
service all of a sudden without any prima facie with an
ulterior motive to victimise him. Then the respondent
issued a show cause notice to the petitioner, for which
the petitioner has given proper reply. The respondent
management without considering his reply has caused
to issue a false and imaginary charge-sheet to the
petitioner, dated 29-7-2004 without enclosing the
necessary copy of the complaint, list of witnesses, etc.,
for which the petitioner has given a suitable explanation
in time.
Then the enquiry was conducted against him and the
Enquiry Officer without adopting the rules of natural
justice, gave report suiting to the requirements of the
respondent management, dated 26-11-2004 which is
vitiated, void, illegal and unjust. The respondent
postponed the suspension till 7-2-2005 and again
extended for 90 days and proposed punishment of
dismissal disproportionate to the charges levelled
against the petitioner inhumanly ignoring all his past
services and his family on an imaginary and unproved
charge which is against law and natural justice. The
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LA GAZETTE DE L’ETAT
[12 March 2013
petitioner submitted his reply, dated 11-2-2005 to the
proposed punishment and the respondent ignored the
same and imposed the punishment of dismissal with
effect from 17-2-2005. He was 57 years old completing 35
years of clean service at the time of imposing the grave
punishment of dismissal on purely imaginary and
speculative charges. Hence, this industrial dispute is
filed to declare that the petitioner is deemed to be
continued in service till the date of superannuation and
to declare that he is entitled for back wages till the date
of superannuation.
3. In the counter statement, the respondent has
stated as follows:
The petitioner was employed as Plant Operator in
the respondent administration and he was suspended
from service with effect from 28-5-2004 in contemplation of
the disciplinary proceedings. The respondent has
issued a show cause notice, dated 9-7-2004 calling upon
the petitioner to submit his explanation and he submitted
his explanation on 12-6-2004 denying the contents of
the show cause notice. As the respondent was not
satisfied with the explanation, the petitioner was issued
with a charge-sheet, dated 29-7-2004 and the petitioner
submitted his explanation, dated 4-8-2004 and requested
for reinstatement. As the said reply was not satisfactory,
an enquiry was ordered and the Enquiry Officer after
conducting the enquiry, had submitted his enquiry
report, dated 26-11-2004 by holding that the charges
framed against him were proved. Then the respondent
served a show cause memorandum, dated 7-2-2005 to the
petitioner calling upon him to submit his explanation and
he submitted his written explanation, dated 11-2-2005 by
stating that on account of his family circumstances, he
walked out of the enquiry proceedings on 3-11-2004.
Since the charges are very serious in nature, the
petitioner was dismissed from service through order,
dated 17-2-2005.
The Enquiry Officer conducted the enquiry in strict
observance of principles of natural justice and afforded
all possible opportunities to the petitioner and had held
that the charges under charge-sheet, dated 29-7-2004 as
proved and then the Disciplinary Authority had fully
concurred with the findings of the Enquiry Officer.
Eventhough, the petitioner was dismissed from
service, the petitioner had been effected with full
gratuity amount up to the date of dismissal and has also
received the entire P.F. dues which is normally not paid
to a employee, who is dismissed from service on
account of proven misconduct. Having received the
gratuity amount and provident fund dues, the petitioner
is estopped from challenging the order of dismissal,
dated 17-2-2005 as he had accepted the payments
in lieu of the order of dismissal without any remorse.
Hence, they pray for dismissal of the industrial disput.
4. On the side of the petitioner, PW.1 was examined
and Ex.P1 to Ex.P14 were marked. On the side of the
respondent, no oral evidence was adduced and Ex.R1 to
Ex.R25 were marked.
5. The point for determination is:
Whether the petitioner can be considered for
reinstatement in service with accrued benefits?
6. On the point :
The contention of the petitioner is that he joined as
casual workman on 1-11-1969 and confirmed as
permanent employee on 1-3-1970. Though there is no
document produced on the side of the petitioner, the
said fact has not been denied by the respondent.
7. Further, contention of the petitioner is that
on 28-5-2004 the respondent management suspended
him from service all of a sudden without any prima facie
with an ulterior motive to victimise him. In order to
prove his claim, he examined himself as P.W.1. P.W.1.
further stated that he was serving for the development
of the industry from the very inception of it, but at the
same time, he used to fight for his individual and
collective rights jointly and severally without any
compromise and thereby the respondent management
was always looking for an opportunity to victimise him.
8. Per contra, the contention of the respondent is
that on 19-5-2004 the petitioner has not opened the
chilled water valve during pasteurisation of milk during
his day shift duty, which might have resulted in huge
quantity of milk getting spoiled, if it was not noticed in
time by the superior and hence he was issued with a
show cause notice, dated 9-7-2004 under Ex.R6 and the
explanation submitted by the petitioner was not
satisfied, the petitioner was issued with a charge-sheet
dated 29-7-2004 under Ex.R8 and the petitioner through
his letter, dated 31-7-2004 under Ex.R9 had sought 15
days time for submission of his reply statement and after
getting explanation, dated 4-8-2004 from the petitioner
under Ex.R7, an enquiry was conducted and the Enquiry
Officer conducted the enquiry and submitted his
enquiry report, dated 26-11-2004 and after receipt of the
enquiry report, the respondent served a show cause
memorandum, dated 7-2-2005 under Ex.R3 to the
petitioner calling upon him to submit his explanation and
the petitioner submitted his written explanation, dated
11-2-2005 stating that only on account of his family
circumstances, he walked out of the enquiry
proceedings on 3-11-2004 and based on the enquiry
report and the written explanation of the petitioner,
dated 11-2-2005, he was dismissed from service under
Ex.R14. In order to support his claim, he relied upon the
following decisions:
213
12 March 2013]
LA GAZETTE DE L’ETAT
2011 LLR 634 :
“In the matter of disciplinary proceedings, the
court cannot act as an appellate court to reassess the
evidence produced in the domestic enquiry besides
that it cannot interfere with the ground that any view
is possible on the basis of material on record.
As and when the punishment has been imposed
upon the employee after holding of an enquiry, the
courts have restricted powers only when the findings
are perverse or based on no evidence, there has been
violation of principles of natural justice or statutory
regulations.”.
2011 LLR 637:
“Reinstatement with consequential benefits
should not have been granted to a person employed
for a fixed-term of service hence back wages also will
not be allowed because of bad financial status of the
appellant-corporation.”.
2010 LLR 744 :
“Dismissal from service - After enquiry of
petitioner misconduct - Enquiry held found fair and
proper - Findings of Enquiry Officer not perverse or
biased - Dismissal of petitioner after following all due
process of law - Interference with order of dismissal
not required.”.
9. On the side of the respondent, Ex.R1 copy of the
enquiry proceedings was marked. A perusal of Ex.R1
reveals that the enquiry was commenced on 7-10-2004
and on periodical adjournments, the enquiry was posted
to 3-11-2004 and on the said day, the management
witness by name Murugan Babu was examined and he
has stated that the petitioner has not opened the chilled
water valve during pasteurisation of milk and he
directed him to open it and then the petitioner has
opened it and in case if it was not noticed in time, huge
quantity of milk getting spoiled and thereby incurred a
loss of ` 60,000 to the respondent management.
Then the petitioner was asked to cross examine the said
witness, but he walked out of the enquiry proceedings.
A perusal of Ex.R1 further reveals that the Enquiry
Officer completed the enquiry and submitted his
enquiry report to the respondent management by
holding that the charges levelled against the petitioner
were proved.
10. From the documentary evidence of Ex.R1, it can
be seen that the petitioner was given fair opportunity in
the enquiry and he was also required to cross examine
the management witness, but he failed to utilise the said
opportunity. On the side of the petitioner, Ex.P1 to
Ex.P14 were marked. But the said documents are not in
any way helpful to the petitioner to prove that he was
dismissed from service without any reason. In the
above circumstances, I feel that the enquiry was
conducted in a fair manner by giving sufficient
opportunities to the petitioner and consequently, this
court has come to the conclusion that the enquiry
conducted by the respondent management is fair and
proper.
11. Now, this court has to see whether the
punishment of dismissal imposed by the respondent
management is disproportionate or not.
12. There is no dispute that the petitioner has
completed 35 years of service. According to the
respondent, the petitioner has not opened the chilled
water valve during pasteurisation of milk and he
directed him to open it and then the petitioner has
opened it and in case if it was not noticed in time, huge
quantity of milk getting spoiled and thereby incurred a
loss of ` 60,000 to the respondent management. As per
the own version of respondent, the petitioner has
obeyed the order of his superior after noticing the
defect by him. Further there was no loss incurred by the
respondent management due to the said act of the
petitioner. It is not the case of the respondent that the
petitioner was regularly committed the above said
misconduct and he has not performed his duty to their
satisfaction. Hence, the punishment of dismissal from
service imposed by the respondent is disproportionate
one and the same is liable to be set aside and it is
declared that the petitioner is deemed to be continued
in service till the date of superannuation and
consequently the petitioner is entitled for back wages
for the said period. It is admitted by both parties that
the petitioner has received the gratuity amount and the
provident fund dues up to the date of dismissal i.e.,
17-2-2005. Since the misconduct committed by the
petitioner has been proved in the enquiry proceedings,
he is not entitled for full back wages, but he is entitled
only 75% from the date of dismissal i.e., 17-2-2005 till the
date of superannuation. The petitioner is also entitled
for the provident fund, gratuity and other benefits for
the said period for 75% of back wages, as per rules.
Accordingly, this point is answered.
13. In the result, the industrial dispute is partly
allowed and the Dismissal Order, dated 17-2-2005 passed
by the respondent management is set aside and it is
declared that the petitioner is deemed to be continued
in service from the date of dismissal till the date of
superannuation and consequently the petitioner is
entitled to get 75% of back wages for the said period.
However, in the circumstances of the case, there is no
order as to costs.
Typed to my dictation, corrected and pronounced by
me in the open court on this the 19th day of
October, 2012.
T. MOHANDASS,
Presiding Officer,
Labour Court, Puducherry.
214
LA GAZETTE DE L’ETAT
[12 March 2013
List of witness examined for the petitioner:
PW1 —
26-7-2012 — Antonisamy
List of witnesses examined for the respondent: Nil
List of exhibits marked for the petitioner:
Ex.P1 — Suspension order, dated 28-5-2004.
Ex.P2 — Show cause notice, dated 29-6-2004
Ex.P3 — Reply letter by the petitioner, dated 12-7-2004
Ex.P4 — Charge-sheet issued to the petitioner,
dated 29-7-2004.
Ex.P5 — Letter by the petitioner, dated 31-7-2004
Ex.P6 — Explanation given by the petitioner,
dated 4-8-2004.
Ex.P7 — Memorandum issued to the petitioner,
dated 22-9-2004.
Ex.P8 — Enquiry proceedings, dated 7-10-2004
Ex.P9 — Enquiry proceedings, dated 29-10-2004
Ex.P10 — Enquiry report, dated 26-11-2004
Ex.P11—
Show cause notice, dated 7-2-2005
Ex.P12 — Memorandum issued to the petitioner,
dated 7-2-2005.
Ex.P13 — Reply by the petitioner, dated 11-2-2005
Ex.P14 — Dismissal order, dated 17-2-2005
List of exhibits marked for the respondent:
Ex.R1 — Copy of enquiry proceedings, dated 29-7-2004
Ex.R2 — Show cause memorandum, dated 7-2-2005
Ex.R3 — Written explanation, dated 11-2-2005 by
petitioner.
Ex.R4 — Complaint of Technical Superintendent,
dated 20-5-2004.
Ex.R5 — Order of suspension, dated 28-5-2004
Ex.R6 — Show cause notice, dated 9-7-2004
Ex.R7 — Written explanation of petitioner, dated
12-7-2004.
Ex.R8 — Charge-sheet issued to the petitioner,
dated 29-7-2004.
Ex.R9 — Letter of petitioner, dated 31-7-2004
Ex.R10 — Memorandum of the respondent, dated
31-7-2004.
Ex.R11 — Written explanation, dated 4-8-2004 of the
petitioner.
Ex.R12 — Memorandum, dated 22-9-2004 to the
petitioner.
Ex.R13 — Letter of the petitioner to the M.D., dated
2-11-2004.
Ex.R14 — Order of dismissal, dated 17-2-2005
Ex.R15 — Final order, dated 17-6-2005 of Hon’ble
High Court.
Ex.R16 — Appeal preferred by the petitioner,
dated 6-7-2005.
Ex.R17 — Final order dated 26-7-2005 of Hon’ble
High Court.
Ex.R18 — Disposal of appeal, dated 6-7-2005
preferred by the petitioner.
Ex.R19 — Final order, dated 22-10-2009 of Hon’ble
High Court, Madras.
Ex.R20 — Disposal of the appeal, dated 9-12-2009
preferred by petitioner.
Ex.R21 — Industrial dispute raised by the petitioner,
dated 2-8-2010.
Ex.R22 — Counter statement of respondent, dated
29-11-2010.
Ex.R23 — Failure report, dated 11-3-2011
Ex.R24 — Abstract of the gazette notification, dated
26-5-2011.
Ex.R25 — Letter, dated nil by the petitioner
T. MOHANDASS,
Presiding Officer,
Labour Court, Puducherry.
————
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 26/AIL/Lab./J/2013, dated 27th February 2013)
NOTIFICATION
Whereas, an Award in I. D. No. 2/2010, dated 10-10-2012 of
the Labour Court, Puducherry in respect of the
industrial dispute between the Managing Director,
M/s. Leo Fasteners Unit-II, Puducherry and one
Thiru R. Joseph Raj, 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. 20/90/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)
S. THAMMU GANAPATHY,
Under Secretary to Government (Labour).
215
12 March 2013]
LA GAZETTE DE L’ETAT
BEFORE THE LABOUR COURT AT PUDUCHERRY
Present : Thiru T. MOHANDASS, M.A., M.L.,
Presiding Officer, Labour Court,
Puducherry.
Wednesday, the 10th day of October 2012.
I.D. No. 2/2010
R. Joseph Raj
. .
Petitioner
Versus
The Managing Director,
Leo Fasteners Unit-II,
Puducherry.
. .
Respondent
This industrial dispute coming on 3-10-2012 for final
hearing before me in the presence of Tvl. M. Veerappan
and S. Lenindurai, Advocates for the petitioner,
M/s. Vrintha Mohan, Advocate for the respondent,
upon hearing both sides, upon perusing the case
records, after having stood over for consideration till
this day, this court passed the following:
AWARD
This industrial dispute arises out of the reference
made by the Government of Puducherry vide G. O. Rt.
No.19/AIL/Lab./J/2010, dated 3-2-2010 of the Labour
Department, Puducherry to resolve the following
dispute between the petitioner and the respondent, viz.,
(1) Whether the dispute raised by Thiru R. Joseph Raj
against the management of M/s. Leo Fasteners Unit-II,
Puducherry, over refusal to provide work, change of
service conditions and unfair labour practice is
justified or not?
(2) If justified, to what relief the petitioner is
entitled to?
(3) To compute the relief, if any, awarded in terms
of money, if it can be so computed?
2. The petitioner, in his claim statement, has averred
as follows:
He was the regular employee of the respondent
company ever since 15-3-2006 and he was appointed as
Electrician based on his qualification. Though he was a
member of the Employees Trade Union, he had not
participated in any strike including the strike held on
19th to 24th March 2009. On 20-9-2008 when he entered
into the work place, he had seen a snake went into the
working spot and he reported the same to the
management through his superior. No attempt was made
to find out the snake by the respondent management,
but he was issued with a memo on 17-10-2008 by the
respondent as if he made a false complaint.
In an act of vindictive action, the respondent refused
to allow him into the factory premises and carry out his
routine work, instead he was asked to sit before the
factory premises on 16-5-2005 onwards and he was
given the job of scrap coil cutting in waste yard and the
said work was continued for sometime and then no work
was given to him. However, he was made to sit in front
of the factory premises.
The petitioner approached the Conciliation Officer,
who advised the respondent management to take him
back to the factory. But the respondent instead of
following the advise of the Conciliation Officer, all of a
sudden asked him to go to the land situated at
Moratandi to work in the said place. However, no office
order was given to him. He went to the said spot and
found that it is a burial ground and there is no symptom
of working place in the said area.
Since the respondent failed to follow the advise of
the Conciliation Officer, he filed a Writ Petition
No. 20386/2009 before the Hon’ble High Court, Madras
and an order was passed to grant interim injunction
restraining the respondent company and also directed
them not to alter the service condition of the petitioner
as Electrician. On the basis of M.P. No.1 of 2009 in W.P.
No. 20386/2009, an order was passed on 24-2-2010 stating
that an order of interim injunction to remain in force
regarding not to discontinue the service of the
petitioner from the respondent, however the respondent
did not obey the order of Hon’ble High Court. In view of
the difficulty faced by the petitioner, the Hon’ble High
Court directed to respondent to pay the last drawn
wages to the petitioner and the respondent paid the
arrears of pay to him through cheque for
` 43,595 however the respondent did not give the
employment so far to him. Hence, this industrial dispute
is filed for his reinstatement with other benefits.
3. In the counter statement, the respondent has
stated as follows :
The petitioner was assigned his usual job of an
electrical work involved in the helping of setting up of
the electrification of the respondent's new land of
company at Moratandi. The petitioner went to the site
from 27th August 2009 to 1st September 2009 and due
to exigency of service, in the evening of 1-9-2009 the
petitioner was intimated in writing to report to his work
directly to the site and also mark his attendance there
for the purposes of evading the time wastage in
reporting to the petitioner’s place of work and then
travelling to the new site at Moratandi. The petitioner
had not reported to work from 2-9-2009, instead he had
sent a false telegram stating that he has been prevented
from entering the factory. The respondent has sought for
a clarification with the petitioner as to in which site he
has reported to work for which no reply was
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LA GAZETTE DE L’ETAT
[12 March 2013
forthcoming from the petitioner. The respondent had
issued a letter dated 9-9-2009 urging the petitioner to
report for work without further delay. In spite of receipt
of the said letter, the petitioner chose neither to report
to duty nor to give any reasonable explanations.
Then on 19-9-2009 the respondent issued a show cause
notice asking him to show cause for his unauthorised
absence from 2-9-2009 for which the petitioner
restrained from giving any reply with ulterior motives.
The petitioner having permanently abandoned the
employment with the respondent without any justifiable
or reasonable cause the petitioner had concealed all the
material facts and had preferred with W.P. No. 20386/
2009 before the Hon’ble High Court, Madras. Hence, he
prays for dismissal of the industrial dispute.
4. On the side of the petitioner, PW.1 was examined
and Ex.P1 to Ex.P47 were marked. On the side of the
respondent, RW.1 was examined and Ex.R1 was marked.
5. The point for determination is:
Whether the petitioner can be considered for
reinstatement in service with accrued benefits?
6. On the point:
The main contention of the petitioner is that the
respondent management refused to allow him to carry
out his regular work of electrician and he was asked to
sit before the factory premises from 16-5-2005 onwards
and he was given the job of scrap coil cutting in waste
yard and then he was directed to work at Moratandi
village and he went to the said place and found that the
said place was a burial ground and then he approached
the Hon’ble High Court, Madras and as directed by
them, he was paid the last drawn wages, but till date the
respondent did not given employment to him. In order
to support his claim, the petitioner was examined as PW.1.
7. Per contra, the contention of the respondent is
that the petitioner was directed to work at the new land
of the company at Moratandi and he went to the said
site from 27th August 2009 to 1st September 2009 and
thereafter he did not turn up for work and hence he was
issued with the show cause notice on 19-9-2009 for his
unauthorised absence from 2-9-2009. In order to support
the said claim, the Co-ordination Manager was examined
as RW.1.
8. There is no dispute that the petitioner was an
employee under the respondent company. On the side of
the petitioner, the appointment letter, dated 15-3-2006
was marked as Ex.P1 and confirmation letter,
dated l5-7-2008 as Ex.P2. Ex.P1 and Ex.P2 would prove
that the petitioner was appointed as an Electrician in the
respondent company and he joined duty on 15-3-2006
and then his service was confirmed on 15-7-2008. The
respondent has not challenged these two documents
under Ex.P1 and Ex.P2.
9. RW.1 in his evidence has deposed that the
petitioner has induced the company employees for strike
and he has helped finance the striking employees by
giving them a loan against property documents and
hence, he was issued with a memo calling for his
explanation. The said memo was marked on the side of
the petitioner as Ex.P4. The petitioner has submitted his
written explanation under Ex.P5 denying all the
allegations contained in Ex.P4. When the respondent
has contended that the petitioner has induced the
employees for strike and help the finance for strike
employees, it is their duty to get a complaint from the
concerned supervisor and based on which, the memo
under Ex.P4 should have been issued to the petitioner.
But on the side of the respondent, no such complaint
has been received and marked as exhibit.
10. PW.1 in his evidence has deposed that he was
advised to go to the land situated at Moratandi to work
in the said place and he went to the said place and
found that it is a barren land with a burial ground
adjacent to the area and there is no symptom of working
place or factory premises in the said area and there is no
existence of factory and there is no symptom of working
men, no supervisor.
11. But RW.1 in his evidence has deposed that
on 1-9-2009 the petitioner was intimated in writing to
report to his work directly to the Moratandi site and also
marked his attendance there for the purposes of evading
the time wastage in reporting to the petitioner's place of
work and then travelling to the new site at Moratandi
and the petitioner received this letter under protest, but
the petitioner has not reported to work from 2-9-2009
and instead had chosen to send a false telegram stating
that the petitioner has been prevented from entering the
factory and their company had sought for a clarification
with the petitioner as to in which site he has reported
to work for which, no reply was forthcoming from the
petitioner and then their company had issued a office
letter dated 9-9-2009 urging the petitioner to report for
work without further delay and in spite of receipt of their
letter, the petitioner chose neither to report to duty nor
to give any reasonable explanations for the management
letter and then on 19-9-2009 their management issued a
show cause notice, asking him to show cause for his
unauthorised absence from 2-9-2009.
12. In order to prove his claim, PW.1 has marked the
photos of the said land as Ex.P43. On perusal of Ex.P43,
it is seen that there is a barren land with a burial ground
and there is no building in the said area. Though the
said photos are not proved the identity of the location,
as stated by the respondent, the respondent has not
challenged the said photos under Ex.P43. When the
petitioner has contended that there is no such factory
217
12 March 2013]
LA GAZETTE DE L’ETAT
exists at Moratandi as stated by the respondent, it is the
duty of the respondent to prove that they are having
factory in the said place by producing the documentary
evidence. Admittedly, no documents were produced to
prove their claim. Further in some of the letters sent by
the respondent company, which have been marked on
the side of the petitioner, there is no mention about the
Moratandi Branch. PW.1 has marked the copy of the
transfer order sent to the petitioner as Ex.P11. But Ex.P11
did not contain any name of the designating officer, to
whom the petitioner should contact, travelling to the far
off area from the head office contemplate conveyance
allowance and travelling allowance to be paid to the
employee was also not stated in the said order and to
whom the attendance register was available was also not
specifically indicated in the said order, as rightly
pointed out by the learned counsel for the petitioner.
Hence, I feel that the respondent has failed to establish
that there is a plant and the preliminary work was carried
out at Moratandi Branch, as stated by them and in the
above circumstances, this court has come to the
conclusion that it is a open space and no one of the
employee expected to be put in the adverse atmosphere
of location and the respondent with an ulterior motive
only shifted the petitioner to an isolated place without
mentioning any job in the said order.
13. The learned counsel for the petitioner has
submitted that as per D. No. 38, dated 27-11-2009, the
Conciliation Officer had dealt various points raised by
the petitioner and the respondent company replied and
as per the point dealt by the authority, it is stated that
there is no building and no factory in the said Moratandi
land and no one was there as designating officer in the
said area and therefore the conciliation authority
advised the respondent management to give the job of
Electrician as per the office order and the respondent
has admitted before the authority as found in the
conciliation failure report that the management has
given the alternative work temporarily to the
petitioner and it would rectify the same shortly.
The learned counsel for the petitioner further submitted
that even after the advise given by the conciliation
authority, the respondent continued their motivated
action and refused employment to the petitioner without
any valid reason and justification and hence the
petitioner was forced and compelled to approach the
Hon’ble High Court, Madras through Writ Petition
No. 20386/2009 and the Hon’ble High Court has ordered
the respondent not to terminate the service of the
petitioner and allowed the interim stay in favour of the
petitioner that he should not be removed from service
and again the interim stay order was continued as per
the order, dated 8-10-2009 in the said writ petition and
it was ordered that the respondent has to give arrears
of pay treating the petitioner deemed to be continuing
in the job as per his last drawn pay from
8-10-2009 till this court takes up the matter for
adjudication and accordingly the respondent has
paid the arrears of pay of ` 43,595 vide cheque,
dated 21-10-2011.
14. In order to prove the said claim, PW.1 has marked
the copy of the interim injunction order passed by the
Hon'ble High Court as Ex.P31, copy of the stay
extension as Ex.P36, copy of the order passed in W.P.
No.20386/2009, dated 24-2-2010 as Ex.P40 and copy of
the order in W.P. No.20386/2009 and M.P. No. 1 of 2009
as Ex.P44 to Ex.P47. The above documents would clearly
prove the above claim. The respondent though has
admitted the above facts, submitted that the petitioner
had concealed all the material facts and had preferred
with mala fideness a Writ Petition No. 20386/2009 on
2-10-2009 before the Hon'ble High Court, Madras and
had obtained an interim stay order. Mere oral evidence
of RW.1 will not in any way helpful to the defence taken
by the respondent. In fact except Ex.R1, no documents
were filed on the side of the respondent to disprove the
case of the petitioner.
15. According to RW.1, the prayer by the petitioner
for a direction to offer the same employment to the
petitioner with the continuity of service with increased
salary and a direction to pay the back wages is unjust
and illegal, since the question of reinstatement would
not arise as the petitioner himself had voluntarily
abandoned the service with the respondent and had
also chosen not to avail the opportunities extended by
the respondent requesting the petitioner to come and
join the employment.
16. On the other hand, the petitioner had submitted
that he obeyed the transfer order dated 1-9-2009 Ex.P11
and went to the said land and found that no one was
there and therefore he went back to the head office to
inform the same, but he was stopped by the security in
the gate and he was not allowed to meet the Manager
and he requested the security to inform the said officer,
but he was neither allowed to meet the officer
concerned nor the official called him to get the fact
regarding the visit to the Moratandi vacant land and
hence he immediately sent telegrams from 2-9-2009 to
5-9-2009 under Ex.P15 and Ex.P19 to Ex.P21 to the
respondent informing the said fact. In the said
documents, it has been stated that when he came for
duty, the security has not allowed him inside the
factory. Though RW.1 in his evidence has admitted the
documents under Ex.P15 and Ex.P19 to Ex.P21, stated
that the reason stated therein is false. Even if the reason
stated in the said documents is taken as false and the
petitioner himself has abandoned his service as stated
by the respondent, it is the duty of the respondent to
conduct the enquiry and in the said enquiry, sufficient
218
LA GAZETTE DE L’ETAT
[12 March 2013
opportunities have to be given to the petitioner and
based on the enquiry report of the Enquiry Officer the
action should have taken against him. But in this case,
as admitted by the respondent, no enquiry was
conducted. At this stage, it is pertinent to refer the
following decision, which is relevant to this case :
2002(4) L.L.N. 850 :
State of Uttar Pradesh Vs. Presiding Officer,
Labour Court, Agra and another :
“It is settled that even in the case of alleged
abandonment, it was necessary for the employer to
have conducted an enquiry, issue a charge sheet and
notice to the workman concerned informed him that
he is continuously absenting without any sanctioned
leave though admittedly have not been done.”.
As per the above decision, even in the case of alleged
abandonment, it is necessary for the employer to have
conducted an enquiry. As already stated, there is no
enquiry conducted in this case. Hence, this court has
come to the conclusion that the non-employment of the
petitioner was bad and consequently, he is entitled for
reinstatement with continuity of service, other attendant
benefits and full back wages. Accordingly, this point is
answered.
17. In the result, the industrial dispute is allowed
and the award is passed to the effect that the
non-employment of the petitioner and his dismissal from
service is unjustified and is illegal and therefore it is
hereby set aside. The respondent company/management
shall reinstate the petitioner into service with continuity
of service and back wages and other attendant benefits.
However in the circumstances of the case, there is no
order as to costs.
Typed to my dictation, corrected and pronounced by me
in the open court on this the 10th day of October, 2012.
T. MOHANDASS,
Presiding Officer,
Labour Court, Puducherry.
List of witness examined for the petitioner:
P.W.1 —
23-8-2012 — Joseph Raj
List of witness examined for the respondent:
P.W.1 —
12-9-2012 — Krishnan
List of exhibits marked for the petitioner:
Ex.P1 — Appointment letter of the petitioner, dated
15-3-2006.
Ex.P2 — Copy of the confirmation letter, dated
15-7-2008.
Ex.P3 — Copy of service standing orders
Ex.P4 — Copy of show cause notice issued to
petitioner, dated 1-4-2009.
Ex.P5 — Copy of the reply by the petitioner, dated
2-4-2009.
Ex.P6 — Copy of letter by petitioner, dated 30-6-2009
Ex.P7 — Copy of the objection, dated 14-7-2009
Ex.P8 — Copy
of
the
application
before
Conciliation Officer, dated 16-7-2009.
Ex.P9 — Copy of the reply, dated 21-7-2009
Ex.P10 — Copy of the letter by petitioner, dated 22-7-2009
Ex.P11 — Copy of transfer order, dated 1-9-2009
Ex.P12 — Copy of the reply by petitioner, dated 2-9-2009
Ex.P13 — Copy of the reply by petitioner, dated 2-9-2009
Ex.P14 — Copy of the reply by petitioner, dated 2-9-2009
Ex.P15 — Copy of the telegram by the petitioner,
dated 2-9-2009.
Ex.P16 — Copy of the letter by the petitioner, dated
3-9-2009.
Ex.P17 — Copy of the reply, dated 3-9-2009
Ex.P18 — Copy of the reply, dated 3-9-2009
Ex.P19 — Copy of the telegram by petitioner, dated
3-9-2009.
Ex.P20 — Copy of the telegram by petitioner, dated
4-9.2009.
Ex.P21 — Copy of the telegram by petitioner dated
5-9-2009.
Ex.P22 — Copy of letter by respondent, dated 5-9-2009
Ex.P23 — Copy of the letter by respondent, dated 9-9-2009
Ex.P24 — Copy of reply by respondent, dated 12-9-2009
Ex.P25 — Copy of reply by petitioner, dated 15-9-2009
Ex.P26 — Copy of letter by petitioner, dated 15-9-2009.
Ex.P27 — Copy of show cause notice by respondent,
dated 19-9-2009.
Ex.P28 — Copy of reply by petitioner, dated 23-9-2009
Ex.P29 — Copy of reply by petitioner, dated 23-9-2009
Ex.P30 — Copy of writ petition, dated 2-10-2009
Ex.P31 — Copy of interim injunction order from
Hon’ble High Court, dated 8-10-2009.
Ex.P32 — Copy of reply by petitioner, dated 3-11-2009
Ex.P33 — Copy of letter by petitioner, dated 3-11-2009
Ex.P34 — Copy of letter of petitioner, dated 3-11-2009
Ex.P35 — Copy of letter by respondent, dated 4-11-2009
Ex.P36 — Copy of stay extension by Hon'ble High
Court, dated 12-11-2009.
219
12 March 2013]
LA GAZETTE DE L’ETAT
Ex.P37 — Copy of reply by petitioner, dated 16-11-2009
Ex.P38 — Copy of failure report, dated 27-11-2009
Ex.P39 — Copy of reference letter by Labour
Department, dated 3-2-2010.
Ex.P40 — Copy of order in W.P. No. 20386/2009,
dated 24-2-2010.
Ex.P41 — Copy of contempt petition, dated 13-7-2010
Ex.P42 — Original pay bill of petitioner
Ex.P43 — Photos
Ex.P44 — Copy of order in W.P. No. 20386/2009 in
M.P. No.1/2009, dated 8-10-2009.
Ex.P45 — Copy of order in W.P. No.20386/2009 in
M.P. No. 1/2009, dated 12-11-2009.
Ex.P46 — Copy of order in W.P. No.20386/2009 in
M.P. No. 1/2009, dated 24-2-2010.
Ex.P47 — Copy of order in W.P. No.20386/2009 in
M.P. No. 1/2009, dated 17-8-2011.
List of exhibits marked for the respondent:
Ex.R1 — Board Resolution, dated 10-9-2012.
T. MOHANDASS,
Presiding Officer,
Labour Court, Puducherry.
GOVERNMENT OF PUDUCHERRY
LOCAL ADMINISTRATION SECRETARIAT
(G.O. Ms. No. 36/LAS/2013, dated 21st February 2013)
NOTIFICATION
In pursuance of clause (e) of sub-section (1) of
section 2 of the Information Technology Act, 2000
(Central Act 21 of 2000), the Lieutenant-Governor,
Puducherry has been pleased to direct that the birth
and death certificates required to be issued to an
applicant under rule 8 of the Puducherry Registration
of Birth and Death Rules, 1999 may also be issued in
the following manner, namely:–
(i) The birth and death certificates of the Yanam
Municipality of Union territory of Puducherry will
be issued through online in the form of the
electronic record by the Common Service Centre
located in the Union territory of Puducherry;
(ii) The birth and death certificates issued
through online in the form of electronic record
should be digitally signed by the concerned
Registrar of Birth and Death who holds the
requisite “Digital Signature Certificate” as defined
under clause (q) of sub-section (1) of section 2
of the said Central Act 21 of 2000;
(iii) The birth and death certificates may be
issued to any applicant in respect of the Yanam
Municipality of the Union territory of Puducherry
by Common Service Centre on payment of fee
prescribed under rule 8 of the said rules with such
other incidental charges as prescribed by the
Director of Local Administration Department,
Puducherry;
(iv) Where an applicant obtains the birth and
death certificates issued through online in the form
of electronic record instead of the method
prescribed therein for issue of such certificates,
he can verify such electronic record;
(v) Where the authenticity of the computer
generated birth and death certificates issued by the
Common Service Centre is sought to be verified
by an applicant, he can do verification by logging
on to viz., https://www.puduvaisevai.gov.in by
using the reference number and security code.
2. The birth and death certificates of Yanam
Municipality may be issued by Common Service
Centre through online in respect of any year
commencing from the year indicated below:–
Sl.
Name of the
Year of entry
No.
Municipality
Birth
Death
(1)
(2)
(3)
1
Yanam Municipality
2000
2000
(By order of the Lieutenant-Governor)
N. SUMATHI,
Joint Secretary to Government.
————
GOVERNMENT OF PUDUCHERRY
CHIEF SECRETARIAT (HOUSING)
(G.O. Ms. No. 3/2013-Hg, dated 22nd February 2013)
ORDER
In the G. O. Ms. No. 11/99/Hg., dated 28-6-1999 of the
Chief Secretariat (Housing), Puducherry, certain
reservation criteria has been specified by the
Government in respect of all housing schemes
implemented by the Town and Country Planning
Department, Puducherry and Puducherry Housing
Board, Puducherry. The Puducherry Housing Board,
Puducherry has constructed 24 LIG flats at Valatheru,
Karaikal based on the approval of Government vide
G.O. Ms. No. 8/2001/Hg., dated 16-3-2001 and despite
best efforts taken by the Board, 21 out of 24 LIG flats
remained without takers. In this connection the