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LA GAZETTE DE L’ETAT

[23 April 2013

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 45/AIL/Lab./J/2013, dated 5th April 2013)

NOTIFICATION

Whereas, an award in I. D. No. 4/2011, dated 10-1-2012

of the Labour Court, Puducherry in respect of the

industrial dispute between the Managing Director,

Supreme Industries Limited, Puducherry and Thiru Karunakaran,

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.

Thursday, the 10th day of January 2013

I.D. No. 4/2011

Karunakaran

. .

Petitioner

Versus

The Managing Director,

Supreme Industries Limited,

Sanyasikuppam, Thirubuvanai,

Puducherry.

. .

Respondent

This industrial dispute coming on 5-1-2013 for

final hearing before me in the presence of

Thiru S. Nagarajan, Advocate for the petitioner,

Thiru K. Parthiban, 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. 29/AIL/Lab./J/2011, dated 7-2-2011 of the Labour

Department, Puducherry to resolve the following

dispute between the petitioner and the respondent, viz.,

(1) Whether the dispute raised by Thiru

R. Karunakaran against the management of

M/s. Supreme Industries Limited, Sanyasikuppam,

Puducherry, over non-employment 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:

The petitioner was working as Operator in the

respondent management from October 1997 and he

was the President of Supreme Labour Union. The

attitude of the respondent management towards the

petitioner was unfair in all respects and including his

self-respect. On 8-12-2005, the respondent management

terminated him from service without any basis. The

respondent management issued a charge sheet with

false allegations. The enquiry was conducted and in

the enquiry, the petitioner was not afforded a

reasonable opportunity to prepare and present his

claim. Hence, the termination of the petitioner is

purely illegal and the same is liable to be set aside.

Therefore, the industrial dispute is filed for the

reinstatement of the petitioner with other benefits.

3. In the counter statement, the respondent has

stated as follows:-

The petitioner was appointed as trainee on

27-10-1997 in the respondent company as Operator.

Then the petitioner started forming a group among

the workers and started threatening the respondent

management under the pretext that he is the leader to

solve the problems of the workers. The petitioner

behaved indifferently and did not obey the order of

the superiors. He never attended his duty sincerely

and when the superior asked him to do the duty, he

threatened the superiors and executives and loitered

in the working place unnecessarily with other

workers, who are attending the work sincerely. The

respondent management warned the petitioner

several times, but the petitioner did not change his

attitude. Due to the petitioner's atrocious acts under

the pretext of the so called leader of some group of

employees, the other workers and staff and

executives apprehended unsafely for their life as the

petitioner used to threaten them with dire

consequences stating that if they come out from the

factory, he will do away with their life. Further the

petitioner often absented in his duty without due

permission or leave. Hence, the management faced

with administrative hardships and production loss

and hence the respondent management took steps to

conduct domestic enquiry against the petitioner.

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23 April 2013]

LA GAZETTE DE L’ETAT

Having come to know about the same, in order to

blackmail the respondent management, the petitioner

had obtained signatures from two workers namely,

Gandhivaradhan and R.S. Sivakumar and filed a false

complaint before the PCR Cell against one Murali,

who was the Deputy General Manager, one Mangala

Kounder, who was the Senior Manager (Production),

as if they have scolded the said workers by using

their caste. Since the petitioner’s atrocities and

harassment were not tolerable, the respondent issued

a show cause notice to the petitioner on 5-7-2005 and

since the explanation given by the petitioner was not

satisfactory, the management conducted domestic

enquiry against him. In the domestic enquiry fair

opportunity was given to the petitioner and having

come to know that the evidence was not helpful for

him, the petitioner wantonly failed to participate

in the enquiry and left the enquiry proceedings.

The Enquiry Officer having conducted fair and just

enquiry in accordance with law by adopting the

principles of natural justice, had given the findings

that the petitioner was guilty of the charges and

based on the enquiry report, the petitioner was

terminated from service with effect from 3-12-2005.

Since the termination of the service of the petitioner

is based on the proved misconducts, the petitioner

deserves nothing except dismissal of the above

petition. Hence, they pray for dismissal of the

industrial dispute.

4. On the side of the petitioner PW.1 was examined

and marked exhibits P1 to P18. On the side of the

respondent, RW.1 was examined and exhibits R1 to R32

were marked.

5. Now the point for determination is :

“Whether the petitioner is entitled for the relief

sought for?”

6. On this point :

The main contention of the petitioner is that since he

became the President of the M/s. Supreme Labour

Union-II, which was started against the wishes of the

respondent management, he was terminated from service

on the alleged ground that he has caused serious

misconduct of giving false complaint before PCR Cell as

against the Deputy General Manager and Senior

Manager (Production) of the company by obtaining

signature in blank papers from his own union members

namely, Gandhivaradhan and R.S. Sivakumar, who

belong to scheduled caste community, stating that the

said managers of the respondent company had scolded

them by using their caste and due to the false and

malicious complaint, the said managers had faced with

unnecessary police harassment and torture for no fault

on them.

7. In order to disprove the abovesaid allegations, the

petitioner examined himself as PW.1 and in his evidence

he has deposed that he worked sincerely and rendered

his service to the utmost satisfaction of the superiors

and gained good reputation among workers and his

trade union is a major one in the respondent

management by the strength of the voluminous of the

employees and the attitude of the respondent

management was unfair in all respects and including his

self-respect but the management had terminated him

from the service through its callous attitude with

ultimate victimisation and his termination is purely

illegal and against the norms and procedures and

natural justice. He also deposed that he was issued a

namesake charge sheet without any basis and

conducted the domestic enquiry without adhering to the

principles of natural justice and the Enquiry Officer is

also a flea of management and he was not offered a

reasonable opportunity to present his claim and he was

forced and misguided by the Enquiry Officer tacitly and

the respondent management has terminated him without

any basis and evidence against him and he was not

supplied with any copies of the document during the

course of enquiry and the witnesses were put under

threat and no proper enquiry was conducted and that

the respondent management prepared and designed the

enquiry report with the collusion of the Enquiry Officer

without partaking of himself and failed to supply the

report of the enquiry. He further deposed that the act of

the management is sheer abuse of process of natural

justice and he was victimised by the respondent

management.

8. In order to support his claim, PW.1 marked exhibits

P1-Copy of complaint by petitioner before Conciliation

Officer, P2 -Copy of charter of demands by the petitioner

to respondent, P3- Edition of Puducherry Gazette

Notification, P4 -Copy of Letter by petitioner to

Superintendent of Police, P5- Letter by respondent to

the petitioner, P6 - Copy of letter by petitioner to

respondent, P7 - Show cause notice by respondent to

the petitioner, P8 - Copy of reply to show cause by

petitioner, P9 - Suspension order by respondent to the

petitioner, P10 - Letter by respondent to the petitioner,

P11 - Copy of letter by petitioner to Enquiry Officer,

P12 - Copy of complaint by petitioner to Conciliation

Officer, P13 - Reply by respondent before Conciliation

Officer, P14 - Copy of counter reply by petitioner before

Conciliation Office, P15 - Failure report by Consolation

Officer, P16 - Industrial dispute reference order by

Labour Department, P17 - Inspection notice by Labour

Officer (Enforcement) and P18 - Xerox copy of the

Standing Order.

9. Per contra, the respondent contended that the

petitioner was appointed as trainee on 27-10-1997 and

soon after confirmation of service, he started forming a

394

LA GAZETTE DE L’ETAT

[23 April 2013

group among the workers and started threatening the

supervisor, staffs, executives and officials of the

company under the pretext that he is the President of the

trade union and behaved indifferently without obeying

the order of the superiors and instead of attending the

duty, threatened the supervisors and executives and

loitered in the working place talking unnecessarily and

persistently indulged in riotous and disorderly

behaviour during his duty and did not obey the orders

of the superiors in spite of warning for several times

and also threatened the other workers, supervisors,

staffs and executives with dire consequences due to that

they apprehended unsafety. He further contended that

the petitioner also absented in his duty without due

permission or leave and in the said circumstances the

management took steps to conduct domestic enquiry

against him and having come to know about the

proposal of conducting domestic enquiry, the petitioner

in order to blackmail the management, had obtained

signatures in two blank papers from two workers namely,

Gandhivaradhan and R.S. Sivakumar, who were

associated with him in his union activities and misused

the same to give a false police complaint before the PCR

Cell, against Mr. Murali, the Deputy General Manager

and Mr. Mangala Kounder, the Senior Manager (Production)

of the company as if they have scolded them by mentioning

their caste and therefore, a due domestic enquiry was

conducted upon the charge sheet, dated 5-7-2005 and

the petitioner was given fair opportunity to defend him

in the enquiry, the petitioner also participated and upon

the proved misconduct, the petitioner was terminated

from service with effect from 3-12-2005 as per law.

10. In order to prove the contentions, the

respondent himself examined as RW.1 and assertively

stated the said contentions in his deposition and in

support of the same marked the exhibits R1 to R 32.

Exhibit R1 is the certified true copy of the Board

Resolution, Ex.R2 Power of attorney deed, Ex.R3 Copy

of the letter, dated 17-7-2005 sent by the respondent to

the petitioner, Ex.R4 is the list of witnesses, Ex.R5 is the

list of documents submitted for domestic enquiry, Ex.R6

is the enquiry postponed letter, dated 19-8-2005, Ex.R7

is the postal acknowledgment, dated 26-8-2005, Ex.R8 is

the envelope cover of the French Express Courier, Ex.R9 is

the copy of the letter, dated 25-7-2005 sent by the

petitioner to the enquiry office, Ex.R10 is the copy of the

letter, dated 27-6-2005 sent by one Subramanian to the

respondent, Ex.R11 is the copy of the letter, dated

27-6-2005 sent by one Gandhi to the respondent,

Ex.R12 is the copy of the letter, dated 5-7-2005 sent by

the respondent to the petitioner, Ex.R13 is the copy of

the letter, dated 9-7-2005 sent by the petitioner to the

respondent, Ex.R14 is the copy of the letter, dated

11-7-2005 sent by the respondent to the petitioner,

Ex.R15 is the acknowledgment card, Ex.R16 is the copy

of the intimation letter, dated 15-7-2005 sent by the

respondent to the Enquiry Officer, Ex.R17 is the enquiry

proceedings, Ex.R18 is the enquiry report, Ex.R19 is the

letter, dated 8-11-2005 sent by the Security Officer to the

respondent, Ex.R20 is the letter, dated 9-11-2005 sent by

the respondent to the petitioner, Ex.R21 is the paper

publication, Ex.R22 is the copy of the letter, dated

23-5-2006 sent by the respondent to petitioner, Ex.R23 is

the copy of the letter, dated 18-4-2007 sent by the

respondent to the petitioner, Ex.R24 is the copy of the

deposit slip, Ex.R25 is the confirmation letter, dated

1-1-2000 sent by the respondent to the petitioner, Ex.R26

is the warning letter, Ex.R27 is the letter, dated 21-7-1998

sent by the petitioner to the respondent, Ex.R28 is the

letter, dated 11-11-1998 sent by the petitioner to the

respondent, Ex.R29 is the letter, dated 17-2-1999 sent by

the petitioner to the respondent, Ex.R30 is the letter,

dated 1-4-1999 sent by the petitioner to the respondent,

Ex.R31 is the letter, dated 2-6-1999 sent by the petitioner

to the respondent, Ex.R32 is the certified copy of the

order passed in I.D. No. 8/2005, dated 3-8-2009.

11. On the perusal of the exhibits Ex.R1 to R32,

particularly, the Ex.R17 which is the proceedings of the

enquiry, it is evident that the domestic enquiry was

conducted in respect of the show cause-cum-charge

sheet i.e., Ex.R12, and the petitioner was given fair

opportunity to participate and defend in the enquiry.

Further, the perusal of the enquiry proceedings reveals

that the petitioner participated in the enquiry

proceedings and cross-examined the management

witness namely, Gandhivaradhan. But the petitioner has

stated before this court that he was not given

reasonable opportunity in the enquiry proceedings. It is

also found that the Enquiry Officer has followed the

principles of natural justice while conducting the

enquiry and therefore the allegations of the petitioner is

not justifiable. Though the petitioner has claimed that

the punishment is not proportionate to the misconduct

attributed by him, the version of RW.1 as to the

unnecessary police harassment faced by the superior

management staffs due to false PCR Cell complaint and

threat to the workers and staff which are evidenced by

the exhibits of the respondent particularly by Ex.R12,

R17 and R18, the management would not have imposed

minimum punishment as the proved misconduct was of

serious nature which resulted in loss of confidence on

the petitioner. Considering the above aspects, this court

feels that an independent domestic enquiry was

conducted in respect of Ex.R12, the charge sheet, dated

5-7-2005, by the management and in the domestic

enquiry fair opportunity was given to the petitioner by

permitting him to engage a co-worker to assist him in the

enquiry, allowing him to cross-examine the management

witnesses to defend him and the independent Enquiry

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23 April 2013]

LA GAZETTE DE L’ETAT

Officer having conducted a fair and proper enquiry in

accordance with law by adopting the principles of

natural justice had concluded that the petitioner is

guilty of the charges levelled against him by Ex.R18, the

enquiry report, dated 20-9-2005 and hence it was not

against the principles of natural justice. Since the

management apprehended unsafety due to the serious

misconducts of the petitioner more particularly due to

the false complaint with the PCR Cell by obtaining

signature of co-union members of the petitioner trade

union, the respondent has lost confidence on the

petitioner, as the act of the petitioner is detrimental to

the discipline and security of the establishment.

Therefore, the above situation created a ground for loss

of confidence and hence this court feels that the

petitioner has lost the right of reinstatement in this

case. It is pertinent to refer the following decision which

is relevant to this case.

2001 3 CLR Page 592 :

“Substantial contention on the merits of the case

by the employer in these appeals is that the finding

of loss of confidence in the employee by the Labour

Court has been reversed in appeal by the Industrial

Court on unreasonable grounds. What must be

pleaded and proved to invoke the aforesaid principle

is that (i) the workman is holding a position of trust

and confidence; (ii) by abusing such position, he

commits acts which results in forfeiting the same; and

(iii) to continue him in service would be embarrassing

and inconvenient to the employer or would be

detrimental to the discipline or security of the

establishment. All these three aspects must be

present to refuse reinstatement on ground of loss of

confidence. Loss of confidence cannot be subjective

based upon the mind of the management. Objective

facts which would lead to a definite inference of

apprehension in the mind of the management

regarding trustworthiness or reliability of the

employee must be alleged and proved. Else, the right

of reinstatement ordinarily available to the employee

will be lost”.

12. According to the petitioner, he joined the service

from October 1997 as Operator and continued as

Operator till 3-12-2005 in the respondent company.

Eventhough the petitioner was terminated from service

for the proved misconduct, his family should not get

suffered. In view of the same, the petitioner can be

awarded any monetary compensation, which would meet

ends of justice. The point is answered accordingly.

13. In the result, this industrial dispute is partly

allowed and the petitioner is not entitled for

reinstatement with other benefits. However the

petitioner is entitled to the monetary compensation of

` 1,10,000 (Rupees one lakh and ten thousand only).

No costs.

Typed to my dictation, corrected and pronounced by me

in the open court on this 10th day of January, 2013.

T. MOHANDASS,

Presiding Officer,

Labour Court, Puducherry.

————

List of witnesses examined for the petitioner:

PW.1 —

25-10-2012 — Karunakaran

List of witnesses examined for the respondent:

RW.1 —

26-2-2012 — Ilakis Tendril, Executive

HR of respondent company.

List of exhibits marked for the petitioner:

Ex.P1 — Copy of complaint by petitioner before

Conciliation Officer, dated 6-1-2005.

Ex.P2 — Copy of charter of demands by the

petitioner to respondent, dated 12-1-2005.

Ex.P3 — Edition

of

Puducherry

Gazette

Notification, dated 24-5-2005.

Ex.P4 — Copy

of

letter

by

petitioner

to

Superintendent of Police, dated 18-5-2005.

Ex.P5 — Letter by respondent to the petitioner,

dated 11-6-2005.

Ex.P6 — Copy of letter by petitioner to respondent,

dated 16-6-2005.

Ex.P7 — Show cause notice by respondent to the

petitioner, dated 5-7-2005.

Ex.P8 — Copy of reply to show cause by petitioner,

dated 9-7-2005.

Ex.P9 — Suspension order by respondent to the

petitioner, dated 11-7-2005.

Ex.P10 — Letter by respondent to the petitioner,

dated 11-7-2005.

Ex.P11 — Copy of letter by petitioner to Enquiry

Officer, dated 30-7-2005.

Ex.P12 — Copy of complaint by petitioner to

Conciliation Officer, dated 3-11-2008.

Ex.P13 — Reply by respondent before Conciliation

Officer, dated 26-4-2010.

Ex.P14 — Copy of counter reply by petitioner before

Conciliation Officer, dated 8-6-2010.

Ex.P15 — Failure report by Consolation Officer,

dated 10-12-2010.

Ex.P16 — Industrial dispute reference order by

Labour Department, dated 7-2-2011.

Ex.P17 — Inspection notice by Labour Officer

(Enforcement), dated 14-1-2004.

Ex.P18 — Xerox copy of the standing order.

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LA GAZETTE DE L’ETAT

[23 April 2013

List of exhibits marked for the respondent:

Ex.R1 — Certified true copy of the Board

resolution, dated 25-1-2012.

Ex.R2 — Power of attorney deed, dated 10-4-2012

Ex.R3 — Copy of the letter, dated 17-7-2005 sent by

the respondent to the petitioner.

Ex.R4 — List of witnesses, dated 3-8-2005

Ex.R5 — List of documents submitted for domestic

enquiry, dated 3-8-2005.

Ex.R6 — Enquiry postponed letter, dated 19-8-2005

Ex.R7 — Postal acknowledgment, dated 26-8-2005

Ex.R8 — Envelope cover of the French Express

Courier, dated 26-8-2005.

Ex.R9 — Copy of the letter, dated 25-7-2005 sent by

the petitioner to the Enquiry Officer.

Ex.R10 — Copy of the letter, dated 27-6-2005 sent by

one Subramanian to the respondent.

Ex.R11 — Copy of the letter, dated 27-6-2005 sent by

one Gandhi to the respondent.

Ex.R12 — Copy of the letter, dated 5-7-2005 sent by

the respondent to the petitioner.

Ex.R13 — Copy of the letter, dated 9-7-2005 sent by

the petitioner to the respondent.

Ex.R14 — Copy of the letter, dated 11-7-2005 sent by

the respondent to the petitioner.

Ex.R15 — Acknowledgment card

Ex.R16 — Copy of the intimation letter, dated 15-7-2005

sent by the respondent to the Enquiry

Officer.

Ex. R17— Enquiry proceedings

Ex.R18 — Enquiry report, dated 20-9-2005

Ex. R19— Letter, dated 8-11-2005 sent by the

Security Officer to the respondent.

Ex.R20 — Letter, dated 9-11-2005 sent by the

respondent to the petitioner.

Ex.R21 — Paper publication, dated 8-12-2005

Ex.R22 — Copy of the letter, dated 23-5-2006 sent by

the respondent to the petitioner.

Ex.R23 — Copy of the letter, dated 18-4-2007 sent by

the respondent to the petitioner.

Ex.R24 — Copy of the deposit slip

Ex.R25 — Confirmation letter, dated 1-1-2000 sent by

the respondent to the petitioner.

Ex.R26 — Warning letter, dated 1-3-2004

Ex.R27 — Letter, dated 21-7-1998 sent by the

petitioner to the respondent.

Ex.R28 — Letter, dated 11-11-1998 sent by the

petitioner to the respondent.

Ex.R29 — Letter, dated 17-2-1999 sent by the

petitioner to the respondent.

Ex.R30 — Letter, dated 1-4-1999 sent by the

petitioner to the respondent.

Ex.R31 — Letter, dated 2-6-1999 sent by the

petitioner to the respondent.

Ex.R32 — Certified copy of the order passed in I.D.

No. 8/2005, dated 3-8-2009.

T. MOHANDASS,

Presiding Officer,

Labour Court, Puducherry.

————

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 47/AIL/Lab./J/2013, dated 8th April 2013)

NOTIFICATION

Whereas, an award in I.D. No. 42/2012, dated

26-10-2012 of the Labour Court, Puducherry in respect

of the industrial dispute between one Thiru Dhanapal

and (1) The Proprietor, Prathit Erection and

(2) The General Manager, Chemplast Sanmar Limited,

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)

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 26th day of October 2012

I.D. No. 42/2012

Dhanapal

. . Petitioner

Versus

(1) Prathit Erection,

Rep. by its Proprietor,

No. 21/1, 5th Cross Street,

R.V. Nagar, Chennai.

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23 April 2013]

LA GAZETTE DE L’ETAT

(2) Chemplast Sanmar Limited,

Rep. by its General Manager,

Melavanjore, T.R. Pattinam,

Karaikal.

. . Respondents

This industrial dispute coming on 17-10-2012 for

final hearing before me in the presence of

Thiru P. Muthukrishnan, Advocate for the petitioner,

Thiru A.V.J. Selva Muthukumaran, Advocate for

the first respondent, Thiru R. Thambiraj, Advocate for

the second 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.77/AIL/Lab./J/2008, dated 7-4-2008 of the Labour

Department, Puducherry to resolve the following

dispute between the petitioner and the respondents,

viz.,

(1) Whether the dispute raised by the petitioner

seeking employment in the labour contract

of M/s. Prathit Erection, Maintenance Services,

Chennai in the establishment of Chemplast Sanmar

Limited, Melavanjore, T.R. Pattinam, Karaikal is

justified or not?

(2) If justified, what relief he is entitled to?

(3) To compute the relief, if any, awarded in

terms of money, if it can be so computed?

2. The petitioner, in his claim statement, has

averred as follows:

The petitioner was working as a Mechanical

Fitter in the contract of first respondent’s

company, who registered the contract with the

second respondent's company from 1992 to 2004

and his monthly salary was ` 2,700 and ` 450 as

mess allowance. He was terminated from service on

15-5-2004 without any notice or assigning any

reason. The petitioner made several request to

reinstate him into service with the both

respondents, but his request was not considered.

Hence, he has given a complaint before the Labour

Officer and during the conciliation, both the

respondents were rigid in their stand and amicable

settlement was not arrived. Hence, the Labour

Officer sent a failure report to the Government

on 9-4-2007. Therefore, this industrial dispute

is filed for his reinstatement with backwages.

3. In the counter statement, the first respondent

has stated as follows:

In 1995/1996 Kothari Petrochemicals Limited,

Chennai acquired land in Karaikal to put up an

Alkali Chlorine Plant and the plant put up by

Kothari commenced operation in the year 1997. The

first respondent was awarded the contract for

undertaking break down maintenance, filling liquefied

chlorine in cylinders and cylinder maintenance and

testing. The petitioner was appointed for doing the

contract job and he was engaged for attending to

manual errands of the plant technicians. His job

was mainly to assist the technicians in attending

to break down maintenance.

In August 2003, when the second respondent

purchased the plant from Kothari Petrochemical

Ltd., the second respondent requested the first

respondent to continue the contract for break down

maintenance, chlorine filling and cylinder testing.

In May 2004, the second respondent withdrew the

job of break down maintenance and cylinder

testing. Hence, the first respondent offered the

petitioner job in chlorine filling. He was not

interested in doing that job. The maintenance

contract was given to Meera Fabricator and the

petitioner was being engaged by the said Meera

Fabricator. Hence, the first respondent is no longer

the contractor of the second respondent for

maintenance and therefore the question of

considering the petitioner for employment does not

survive for consideration. Hence, they pray for

dismissal of the industrial dispute.

3. In the counter, the second respondent has

stated as follows:

As the petitioner was a Fitter, the first

respondent engaged him as a casual labour for

attending to repairs and maintenance of the

pipelines in the plant of the second respondent.

However, for his own reasons, the first respondent

did not evince interest in the contract of

mechanical maintenance and the contract was put

an end to on 15-5-2004. In fact, the said job was

given on a contract to another contractor by name

Meera Fabricator. After the cessation of the

contract between the first and second respondent

and the emergence of Meera Fabricator as a

contractor, the petitioner had worked under Meera

Fabricator for some time. To the knowledge of the

second respondent, after working with Meera

Fabricator for some time, the petitioner left the job

in his own volition and started pursuing an

independent occupation as a real-estate agent.

Hence, they pray for dismissal of the industrial

dispute.

398

LA GAZETTE DE L’ETAT

[23 April 2013

4. On the side of the petitioner, he examined

himself as PW.1 and Ex.P1 to Ex.P5 were marked. On

the side of the respondents, RW.1 was examined and

Ex.R1 to Ex.R11 were marked.

5. The point for determination is:

Whether the petitioner can be considered for

reinstatement in service with accrued benefits?

6. On the point:

The contention of the petitioner is that he was

working as a Mechanical Fitter in the contract of first

respondent's company, who registered the contract

with the second respondent's company from 1992 to

2004 and he was terminated from service on 15-5-2004

without any notice or assigning any reason and he

made several request to reinstate him into service with

the both respondents, but his request was not

considered. In order to prove his claim, he examined

himself as PW.1.

7. The contention of the first respondent is that

the petitioner was appointed for doing the contract

job and he was engaged for attending to manual

errands of the plant technicians and his job was

mainly to assist the technicians in attending to break

down maintenance and in August 2003, when the

second respondent purchased the plant from Kothari

Petrochemical Limited the second respondent

requested the first respondent to continue the

contract for break down maintenance, chlorine filling

and cylinder testing and in May 2004, the second

respondent withdrew the job of break down

maintenance and cylinder testing and hence, the first

respondent offered the petitioner job in chlorine

filling and he was not interested in doing that job and

the maintenance contract was given to Meera

Fabricator and the petitioner was being engaged by

the said Meera Fabricator and hence, the first

respondent is no longer the contractor of the second

respondent for maintenance and therefore the

question of considering the petitioner for employment

does not survive for consideration.

8. The contention of the second respondent is that

as the petitioner was a Fitter, the first respondent

engaged him as a casual labour for attending to

repairs and maintenance of the pipelines in the plant

of the second respondent, however, for his own

reasons, the first respondent did not evince interest

in the contract of mechanical maintenance and the

contract was put an end to on 15-5-2004 and in fact,

the said job was given on a contract to another

contractor by name Meera Fabricator and after the

cessation of the contract between the first and

second respondent and the emergence of Meera

Fabricator as a contractor, the petitioner had worked

under Meera Fabricator for some time and to the

knowledge of the second respondent, after working

with Meera Fabricator for some time, the petitioner

left the job in his own volition. In order to prove his

claim, the Joint Manager of the second respondent

company was examined as RW.1.

9. Now this court has to see whether the petitioner

was employee under the first respondent or the

second respondent.

10. PW.1 in his evidence has deposed that he was

working as Fitter under the first respondent and he

was getting salary of ` 2,700 and ` 450 as mess

allowance. During the cross-examination, PW.1 has

admitted that he prayed relief only as against the first

respondent and not against the second respondent.

Though the first respondent has stated that they are

no longer the contractor of the second respondent

for maintenance and therefore the question of

considering the petitioner for employment does not

survive for consideration, no witness was examined

and no document was marked on their side. In fact

the first respondent has admitted that the petitioner

was working under them and when the second

respondent withdrew the job of break down

maintenance and cylinder testing, they offered the

petitioner job in chlorine filling and he was not

interested in doing that job. This would clearly show

that the petitioner was an employee under the first

respondent.

11. Apart from the above, the petitioner as PW.1

has marked the copy of the application for gratuity

by an employee as Ex.P4. As per Ex.P4, the petitioner

was working under the first respondent company from

18-4-1999 to 15-5-2004 and for the said period, he has

claimed gratuity of `13,500. Ex.P4 has not been

challenged by the first respondent by cross-examining

PW.1.

12. On the side of the second respondent, the copy

of the Muster Rolls were marked as Ex.R2, Ex.R3,

Ex.R5, Ex.R6, Ex.R7 and copy of Earnings and

Deductions Report as Ex.R4 and Ex.R8 by RW.1.

On perusal of the said documents, it is seen that the

name of the petitioner is not found place as employee

under the second respondent. RW.1 has also marked

the copy of the Certificate of Registration, which

proves that the second respondent has been

registered as a Principal Employer and that the first

respondent has been shown as one of the contractors

of the second respondent. In the above circumstances,

this court has come to the conclusion that the

petitioner was an employee under the first respondent

and there is no employer-employee relationship

between the petitioner and the second respondent.

399

23 April 2013]

LA GAZETTE DE L’ETAT

13. The contention of the petitioner is that he was

terminated from service by the first respondent

without any notice.

14. On the other hand, the first respondent has

stated that in May 2004, the second respondent

withdrew the job of break down maintenance and

cylinder testing and hence, they offered the petitioner

job in chlorine filling and he was not interested in

doing that job and the maintenance contract was

given to Meera Fabricator and the petitioner was

being engaged by the said Meera Fabricator and

hence, the first respondent is no longer the contractor

of the second respondent for maintenance and

therefore the question of considering the petitioner

for employment does not survive for consideration.

15. As already stated, in order to prove their

contention, no oral or documentary evidence was

adduced on the side of the first respondent. In fact

the first respondent was called absent and set

ex parte.

16. The first respondent has set up his case that

it is admitted that the petitioner was an employee

under them, but since has absented himself without

any notice, it will be presumed that he has

abandoned the employment, it is pertinent to refer the

following decisions, which are relevant to this case:

2002(4) L.L.N. 850

State of Uttar Pradesh Versus Presiding Officer,

Labour Court Agra and another:

“Abandonment of service - Even in the case

of alleged abandonment, it is necessary for

employer to conduct an enquiry, issue a charge

sheet and notice to the workman concerned

informing him that he is continuously absenting

without any sanctioned leave - Admittedly this

having not been done in this case the plea of

employer about abandonment of service by

workman not tenable.”.

1988 1 L.L.N. Page 259

Gaurishankar Vishwakarma Versus Eagle

Spring Industries (P) Limited and others:

“Industrial dispute - Practice and procedure -

Non-employment of workman - Case of employer

is that workman has abandoned service - Even in

case of abandonment of service employer has to

give notice to workman and hold an enquiry - It is

for employer to prove such abandonment - Labour

Court expected to follow judicial procedure should

not depend on unverified statements to come to

conclusion that it was workman who had refused

to resume work.”.

17. Admittedly, the first respondent has not given

any notice to the petitioner either calling upon him

to resume the duty or asking him to show cause as

to why his services should not be terminated for his

failure to resume his duties. No wonder, therefore,

that there was no enquiry held before the termination

of his service. The case of the respondent is that the

petitioner had abandoned the service by refusing to

come and to resume the work. It is difficult to accept

this case. It is now well settled that even in the case

of the abandonment of service, the employer has to

give a notice to the workman, calling upon him to

resume his duty and also to hold an enquiry before

terminating his service on that ground. In the present

case, the respondent has done neither. It was for the

employer to prove that the workman had abandoned

the service. Hence, the termination of the petitioner

from service is illegal, which is liable to be set aside.

18. As far as the back wages are concerned, it is

the duty of the petitioner to prove that he was not

gainfully employed during the period of termination.

The second respondent in his counter statement has

stated that the petitioner was doing real-estate

business. This version of the second respondent has

not been denied or admitted by the petitioner. In the

above circumstances, this court has come to the

conclusion that the petitioner is not entitled to get

the back wages. Accordingly, this point is answered

19. In the result, the industrial dispute is partly

allowed and the petitioner was an employee under the

first respondent and hence the first respondent is

directed to reinstate the petitioner into service with

continuity of service and other attendant benefits.

However, the petitioner is not entitled for back

wages. The industrial dispute against the second

respondent is dismissed. No costs.

Typed to my dictation, corrected and pronounced

by me in the open court on this the 26th day of

October, 2012.

T. MOHANDASS,

Presiding Officer, Labour Court,

Puducherry.

————

List of witnesses examined for the petitioner :

PW.1 — 20-11-2010 Dhanapal

List of witnesses examined for the respondent :

RW.1 —

18-7-2011 Chandramohan

List of exhibits marked for the petitioner :

Ex.P1 — Copy of the letter, dated 8-2-2006 sent

by the petitioner to Labour Officer.

400

LA GAZETTE DE L’ETAT

[23 April 2013

Ex.P2 — Copy of the letter sent by the petitioner

to Labour Officer, dated 27-10-2006 .

Ex.P3 — Copy of the first respondent to Labour

Officer, dated 5-12-2006.

Ex.P4 — Copy of the application for gratuity by

an employee, dated 4-1-2007.

Ex.P5 — Copy of the Failure Report, dated 9-4-2007.

List of exhibits marked for the respondent :

Ex.R1 — Letter of Authorisation, dated Nil

Ex.R2 — Copy of the Wage Register for the

month of July 2004.

Ex.R3 — Copy of the Wage Register for the

month of April 2004.

Ex.R4 — Copy of the earnings and deductions for

the month of October 2005.

Ex.R5 — Copy of the Wage Register for the

month of September 2003.

Ex.R6 — Copy of the Wage Register for the

month of January 2004.

Ex.R7 — Copy of the Wage Register for the

month of August 2003.

Ex.R8 — Copy of the earnings and deductions for

the month of November 2004.

Ex.R9 — Copy of the Certificate of Registration,

dated 12-3-2004.

Ex.R10 — Letter, dated 11-3-2006 sent by 1st

respondent to Labour Officer.

Ex.R11— Letter sent by 1st respondent to the

Labour Officer.

T. MOHANDASS,

Presiding Officer, Labour Court,

Puducherry.

————

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 48/AIL/Lab./J/2013, dated 9th April 2013)

NOTIFICATION

Whereas, an award in I.D. No. 9/2011, dated 30-11-2012

of the Labour Court, Puducherry in respect of the

industrial dispute between the Managing Director,

Hindustan Unilever Limited Detergent Factory,

Puducherry

and

one

Thiru

Mohan,

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.

Friday, the 30th day of November 2012

I.D. No. 9/2011

Mohan,

S/o. Mahalingam,

Vadalur.

. .

Petitioner

Versus

The Managing Director,

Hindustan Unilever Limited

Detergent Factory,

Puducherry.

. .

Respondent

This industrial dispute coming on 26-11-2012 for

final hearing before me in the presence of

Thiru R.T. Shankar, Advocate for the petitioner,

Thiruvalargal L. Sathish and D. Dayanithi, 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

The petitioner has filed a case before the

Conciliation Officer as against the dismissal order

passed by the respondent and since the said case has

not been disposed off within 45 days, this industrial

dispute is filed by the petitioner before this court

under section 2A of Industrial Disputes (Amendment)

Act, 2010 (24 of 2010).

2. The petitioner, in his claim statement, has

averred as follows :

The petitioner was working as permanent

employee in the respondent company from

16-3-1998 and he was a member in the Hindustan

Unilever Employees Union and his last pay was

` 13,000 per month.

401

23 April 2013]

LA GAZETTE DE L’ETAT

On 18-9-2008, the petitioner was issued with a

charge sheet, wherein it has been stated that

from 1-5-2008 to 15-9-2008 he has taken leave

without approval from the management and

the enquiry was conducted, for which, the

H.R. Manager was appointed as Enquiry Officer.

The Enquiry Officer has not conducted the enquiry

in a fair manner and had acted as management

representative and had conducted the enquiry in

biased manner. Further in the enquiry, the

petitioner was threatened to accept the charges in

writing by the Enquiry Officer. In the enquiry, the

Enquiry Officer had refused to give sufficient

opportunity to the petitioner and had refused to

mark even a single document on the part of the

petitioner. The petitioner was also not permitted to

examine even a single witness on his side. Based

on the report of the Enquiry Officer, the petitioner was

dismissed from service from 11-7-2009. The dismissal

of the petitioner is in violation of principles of

natural justice and contrary to the provisions of

Industrial Disputes Act.

Further on the date when he was terminated, two

conciliation proceedings concerning him were

pending before the Conciliation Officer. Hence, the

respondent management has not followed section

33(2)(b) of Industrial Disputes Act. In the above

circumstances, the present industrial disputes is

filed for his reinstatement along with other

benefits.

3. In the counter statement, the respondent has

stated as follows :

The petitioner was employed as general worker

with effect from 25-9-1997. The petitioner was a

chronic

absentee

taking

leave

without

authorisation. The petitioner continued to be

erratic

in

his

attendance

and

remained

unauthorisedly absent on various dates from

1-5-2008 onwards. When the petitioner did not turn

up for employment till 15-9-2008, the respondent

issued a detailed charge sheet, which was

unclaimed by the petitioner. Then the enquiry was

conducted and in the enquiry proceedings, the

petitioner categorically admitted the fact that he

had remained unauthorisedly absent from

1-5-2008 to 15-9-2008 and even thereafter. The

Enquiry Officer submitted his detailed report on

24-11-2008 by coming to the conclusion that the

petitioner was guilty of the charges levelled

against him. The respondent immediately issued a

second show cause notice along with the Enquiry

report to the petitioner on 1-6-2009 and the

petitioner submitted his reply to the same on

17-6-2009, admitting his chronic absence and citing

various unsubstantiated reasons for such absence

without any evidence. Since the reply was not

satisfactory, the petitioner was issued the

termination order on 11-7-2009. The petitioner was

removed from the services for a grave misconduct

of chronic, habitual absenteeism, which was

admitted by him in an independent and impartial

domestic enquiry. Hence, the dismissal of the

petitioner from service is fully justified. Therefore,

the respondent prays for dismissal of the industrial

disputes.

4. On the side of the petitioner, PW.1 and PW.2

were examined and Ex. P1 to Ex. P9 were marked. On

the side of the respondent, RW.1 was examined and

Ex. R1 to Ex. R10 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 :

According to the petitioner, he was working as

permanent employee in the respondent company from

16-3-1998 and on 18-9-2008 he was issued with a

charge sheet, wherein it has been stated that from

1-5-2008 to 15-9-2008 he has taken leave without

approval from the management and the enquiry was

conducted, for which, the H.R. Manager was

appointed as Enquiry Officer and the Enquiry Officer

has not conducted the enquiry in a fair manner and

had acted as management representative and had

conducted the enquiry in biased manner and in the

enquiry, he was threatened to accept the charges in

writing by the Enquiry Officer. In order to prove his

contention, the petitioner was examined as PW.1.

7. Per contra, the contention of the respondent

is that the petitioner was a chronic absentee taking

leave without authorisation and he continued to be

erratic in his attendance and remained unauthorisedly

absent on various dates i.e., 199 days from January 2007

to February 2008, 254 days from January 2008 to

December 2008 and 105 days from May 2008 to

September 2008 and hence they issued a detailed

charge sheet, which was unclaimed by the petitioner

and then the enquiry was conducted and in the

enquiry proceedings, the petitioner categorically

admitted the fact that he had remained unauthorisedly

absent from 1-5-2008 to 15-9-2008 and based on the

report of the Enquiry Officer, he was dismissed from

service. In order to prove his contention, the

HR Executive was examined as RW.1.

8. In order to prove his claim, RW.1 has marked

the copy of the attendance record for the period from

January 2007 to June 2009 as Ex. R9 and the

computerised statement of overall percentage of

402

LA GAZETTE DE L’ETAT

[23 April 2013

authorised and unauthorised absenteeism from

January 2007 to September 2012 as Ex. R10.

A perusal of Ex. R10 reveals that the percentage of

both authorised and unauthorised absenteeism as

on September 2012 is 26.49%.

9. In this regard, the learned counsel for the

petitioner has submitted that in the year 2002, a long-

term settlement was signed by the trade unions, it has

been agreed by both the parties that the

computerised time attendance system will be

implemented

and

therefore

the

respondent

management introduced a time attendance system in

the year of 2003 and after that in the year 2005, the

respondent management without consultation of any

union's or any terms of employment or leave rules or

standing order clause unilaterally introduced the

attendance/automatic lock/reject system and this was

disputed by the trade union. The learned counsel for

the petitioner further submitted that the petitioner

union filed a writ petition before the Hon'ble High

Court, Madras and the Hon'ble High Court dismissed

the said petition stating that they can raise the said

dispute before the Industrial Tribunal for remedy.

10. On the side of the petitioner, the President of

the Hindustan Unilever Employees Association was

examined as PW.2. PW.2 in his evidence has deposed

that he was working as Skilled Operator in the

respondent company and the petitioner is the member

of his association and Ex. P5 is the application given

by the petitioner for joining his association. PW.2

further deposed that the respondent company

introduced computerised time attendance system and

whenever the workmen registered their names, it was

programmed that registration will be directly rejected

and utilising the said programme and with a view to

victimise the workers, the registration was locked and

the petitioner complained that his presence was not

registered in the computer and the same was

complained to the Inspector of Factories under Ex.P6

and since he has not taken any steps, the union filed

a writ petition before the Hon'ble High Court, Madras

and Ex. P9 is the copy of the judgment given by the

Hon’ble High Court, Madras. A perusal of Ex. P9

reveals that the petitioner's union complained about

introduction of computerised time attendance system

and the Hon'ble High Court, Madras after discussing

all the material aspects, dismissed the writ by stating

follows:-

“The union have agreed for the introduction of

TAS system of attendance by a settlement.

Therefore, it is too late for the petition to question

the same ... ... ... Therefore, it cannot be said that

the action of the second respondent is illegal and

without the authority of law. Even otherwise, under

section 111A of the Factories Act, 1948, every

workman employed in the factory is entitled to

obtain from the occupier the information relating

to workers' health and safety at work. As per

section 111A (iii), he can also represent to the

Inspector directly or through his representative

the matter of inadequate provision for protection

of his health and safety in the factory. Therefore,

in case of violation of any of the provisions of the

Factories Act or Rules made thereunder, it was

always open to the workmen or through their

representative to complain to the appropriate

authority and seek redressal.”

The Hon’ble High Court, Madras in Ex. P9 has

given direction to the petitioner’s union to

approach appropriate authority for their relief. The

petitioner or his union should approach the

concerned authority for their remedy or should

prefer the appeal as against the judgment of the

Hon’ble High Court, Madras. In the above

circumstances, Ex. P9 becomes final and it binds

the petitioner's union and consequently, the

contention of the learned counsel for the petitioner

that the introduction of attendance/automatic lock/

reject system is illegal, cannot be accepted. Hence,

the respondent has proved through Ex. R9 and

Ex. R10 that the petitioner has unauthorisedly

absent for 199 days from January 2007 to

February 2008, 254 days from January 2008 to

December 2008 and 105 days from May 2008 to

September 2008.

11. The contention of the learned counsel for the

petitioner is that the petitioner has been working

under the respondent company for the past 12 years,

but in the enquiry proceedings, without granting

sufficient time, the respondent has finished the entire

enquiry proceedings within two hours and closed it

and therefore with intention to victimise the

petitioner, the respondent management has been

acted against the petitioner and hence, the enquiry

was not conducted fair and proper manner.

12. On the other hand, the contention of the

learned counsel for the respondent is that the enquiry

was conducted in a free and fair manner by giving

full opportunity to the petitioner to disprove the

charges and there is absolutely no lacuna in the

enquiry proceedings and it has been conducted in a

free and fair manner after following all the requisite

principles of natural justice. He further submitted that

the petitioner during the enquiry proceedings

admitted the charges and based on his admission, the

petitioner was found guilty of the charges.

13. RW.1 has marked the copy of the enquiry

proceedings as Ex. R3. On perusal of Ex. R3, it is seen

that the entire proceedings beginning with charge

sheeting the petitioner to issuing 2nd show cause

403

23 April 2013]

LA GAZETTE DE L’ETAT

notice to him were done in Tamil, the Enquiry Officer

explained the entire proceedings in detail to the

petitioner in Tamil, the Enquiry Officer offered

permission to the petitioner to engage defense

assistance of his choice and in the enquiry

proceedings, the petitioner has categorically admitted

the fact that he had remained unauthorisedly absent,

as stated in the charge sheet and then the petitioner

himself requested the Enquiry Officer to close the

enquiry after recording his admission. The relevant

portion of the enquiry proceedings is as follows:-

“zu≈D ƒV‚¶©√‚¶ ÿ>VaÈVπ ]Ú. º\VÔ[

∂kÏÔπ¶D ÷Õ> sƒV´Áðl[ >[Á\, ÂÁ¶ÿ√ÆD

s>D, ∂kÚ¬z ∂π¬Ô©√‚|^· xø kVF©A �ÆD

÷BuÁÔ ¿] xÁ≈l_ ÷Õ> sƒV´Áð ÂÁ¶ÿ√ÆD

®[Æ s·¬˛ Ì≈©√‚¶m. º\KD ÷Õ> sƒV´Áð¬z

∂kÚ¬z c>sBVÔ ƒÔ ÿ>VaÈVπ BVº´–D Ák›m¬

ÿÔV^·ÈVD ®[Æ Ì≈©√‚¶m. ®M–D ÷Õ>

sƒV´Áð >™¬z ƒÔ ÿ>VaÈVπ BVÚD ºkı¶VD

®[Æ Ì§™VÏ. ÷>Á™B|›m ÷Õ> sƒV´Áðl_

WÏkVÔD c∫Ô^ *m ∑\›>©√‚|^· zu≈flƒV‚|ÔÁ·

∞u˛SÏÔ·V ∂_Èm \Ƭ˛SÏÔ·V ®[Æ ºÔ‚¶>uz,

>V[ zu≈∫ÔÁ· xø \™m¶[ ∞u˛º≈[ ®[Æ

̧™VÏ. º\KD ÷Õ> sƒV´ÁðÁB ÷›m¶[ xΩ›m¬

ÿÔV^”\VÆD ºÔ‚|¬ ÿÔVı¶VÏ.”

The petitioner signed in the enquiry proceedings

to that effect. Hence, the petitioner was found guilty

of the charges and based on the enquiry report, the

second show cause notice was issued under Ex. R5

intimating the punishment of dismissal, for which the

petitioner has submitted his explanation under Ex. R6

and since the explanation given by the petitioner was

not satisfactory, the dismissal order under Ex. R7 was

sent to the petitioner.

14. The learned counsel for the petitioner has

submitted that in the enquiry proceedings, the

H.R. Executive had prepared all the charges and

commanded and demanded this petitioner to obtain

his signature over the same, but on the first day of

the said enquiry, the petitioner contested the same

effectively but there is no opportunity for the same,

whereas, on 23-9-2012 the said H.R. Executive

threatened the petitioner and obtained signature over

the said prepared charges forcibly, such act is

absolutely illegal and violation of principles of natural

justice.

15. But, the petitioner has not produced any

evidence to show that his signature was obtained in

the enquiry proceedings forcibly. Further after

sending the second show cause notice under Ex. R5,

the petitioner has sent his explanation under Ex. R6

and in Ex. R6, the petitioner has not stated anything

about the alleged threat made by the H.R. Executive

during the course of enquiry proceedings. In fact, the

petitioner in his explanation under Ex. R5 admitted

about the unauthorised absence and prayed leniency

before the respondent management. In the above

circumstances, the said version is only an after-

thought, which cannot be accepted.

16. The contention of the learned counsel for the

petitioner is that the general procedure at the enquiry

would normally be the appointment of Enquiry Officer

has to be informed to the petitioner by the

respondent

management

but

the

respondent

management neither inform nor appoint any Enquiry

Officer for conducting the enquiry, but the H.R.

Executive himself acted as an Enquiry Officer and

conducted the domestic enquiry without following

the principles of natural justice.

17. It is true that the H.R. Executive of the

respondent management was acted as Enquiry Officer.

When the petitioner himself admitted the charges

framed against him, this court cannot see the

other aspects. Hence, there is nothing wrong in

conducting the domestic enquiry by the H.R.

Executive of the respondent management.

18. The further contention of learned counsel for

the petitioner is that the respondent had not followed

section 33(2)(b) of Industrial Disputes Act, 1947 and

had dismissed the petitioner unlawfully and as per the

said section, the employer may pass an order of

dismissal or discharged and at the same time make an

application for approval of the action taken by him

and if the approval is not granted under section 33

(2)(b) of Industrial Disputes Act, 1947, the order of

the dismissal becomes ineffective from the date it was

passed and failure to make application under the said

section would render the order of dismissal

inoperative. In order to support his claim, he relied

upon the following decision:—

2002(1) L.L.N. 639 :

Jaipur Zila Sahakari Bhoomi Vikas Bank Limited

Vs. Ram Gopal Sharma and Others :—

“Industrial Disputes Act, 1947, Section 33(2)(b),

Proviso (as amended in 1956) - If approval is not

granted under Section 33(2)(b) or failure to make

application under Section 33(2)(b) seeking

approval, renders order of dismissal inoperative -

Dismissal becomes ineffective from date it was

passed - Employee becomes entitled to wages from

date of dismissal.”

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

respondent has submitted that the petitioner is not a

member of Hindustan Unilever Employees Union and

the petitioner has no nexus or connection with the

disputes which is pending before the Conciliation

Officer and the industrial dispute was raised in

individual capacity of the petitioner under

section 2 A of Industrial Disputes Act.

404

LA GAZETTE DE L’ETAT

[23 April 2013

20. PW.2, the President of the Hindustan Unilever

Employees Association in his evidence has deposed

that the petitioner was a member in their association

and the copy of the admission application was

marked through him as Ex. P5. As per Ex. P5 the

petitioner was a member in Hindustan Unilever

Employees Union from 6-3-2008.

21. The learned counsel for the respondent has

submitted that the petitioner has not produced any

receipt for payment of subscription of annual

membership to prove that he was the member in

Hindustan Unilever Employees Union. He further

submitted that PW.2 the Union Leader was

extensively cross-examined on the membership of the

petitioner and his attention was brought to

non-production of certified register containing names

of the members of union as required in Trade Unions

Act, the non-production of audited balance sheet of

the union with full details on subscription collected

from its members and PW.2 could not give any

convincing answers to these questions in cross-

examination.

22. It is true that the receipt of payment of

subscription of annual membership, register

containing names of the members of the union and

the audited balance sheet of the union have not been

produced on the side of the petitioner. But PW.2 in

his cross-examination has stated that they are

maintaining the said registers and they are ready to

produce the same, if required. On the side of the

respondent no petition has been filed to produce the

said document before this court. Hence, the petitioner

has not proved through the oral evidence of PW.2

and the documentary evidence of Ex.P5 that he was

the member in the Hindustan Unilever Employees

Union from 2008.

23. The learned counsel for the respondent has

submitted that the petitioner has never pleaded and

proved as to what was the dispute that was involved

in the other two references to the conciliation and

how the petitioner is connected to the said dispute.

He further submitted that the present dispute is only

an individual dispute under section 2A of Industrial

Disputes Act unsupported and unsponsored by any

union, whereas, the two conciliation proceedings

referred to by the petitioner were industrial disputes

raised by the unions under section 2(k) concerning

general working conditions of all the workers.

He further submitted that the disputes raised in the

previous conciliation proceedings by Hindustan

Unilever Employees Union had absolutely no nexus

or connection with the petitioner. In order to support

his claim, he relied upon the following decisions:-

CDJ 1962 SC 016

Digwadih Colliery Vs. Ramji Singh :

“The respondent's case set out in this

application appears to be that, because there was

Reference No. 60 of 1959 pending between the

appellant and some of its employees, section 33(2)

applied, but, unless it is known as to what was the

nature of the dispute pending in the said

reference, it would plainly be impossible to decide

whether the respondent is a workman concerned

within the meaning of section 33(2). In his

application, the respondent has made no averment

about the nature of the said dispute; and so the

tribunal was clearly in error in holding that the

broad construction of section 33(2) automatically

led to, the conclusion that the respondent was the

workman concerned and could, therefore, claim the

protection of Section 33(2).”

1992 I LLJ 837 Madras

Rajagopal and Others Vs. EDI Party Limited, and

Another :

“10. In the instant case, even assuming that the

first petitioner was a member of the union which

had sponsored the dispute, the first petitioner was

not bound by the award that was passed; nor was

he directly connected with the dispute already

pending before the Labour Court. In view of the

aforesaid reasoning that the first petitioner cannot

be construed as the workman concerned and if the

first petitioner happened to be the workman not

concerned with the dispute for the reasons stated

above, there was no need for the employer to seek

permission as contemplated under section 33(2)(b)

of the Act. Simply because the first petitioner

happened to be the member of the union, which

sponsored the dispute, the petitioner cannot claim

that he is a workman concerned with reference to

the dispute which was then pending unless there

is some other common feature in the disputes

which were pending and the claim of the

petitioner.”

24. It is true that the present industrial dispute

was filed by an individual name of the petitioner. If

the conciliation has not been completed within 45

days, the individual can file the claim statement

directly before the Labour Court as per amended

section 2-A of Industrial Disputes Act, 1947.

Accordingly, the petitioner has filed the present

industrial dispute before this court. Hence, I find

nothing wrong in filing the present industrial dispute

by the petitioner individually.

25. Further the learned counsel for the respondent

himself has admitted that there were two conciliation

proceedings pending at the time of termination of the

405

23 April 2013]

LA GAZETTE DE L’ETAT

petitioner, but his only defence is that the disputes

raised in the previous conciliation proceedings by the

union had absolutely no nexus or connection with

the petitioner.

26. In this regard, the learned counsel for the

petitioner has submitted that the dispute was raised

for charter of demands in I.D. No. 1065/2008/LO(C)/AIL

and the another dispute was raised for changing of

service condition, since the respondent management

without giving 9-A notice to the union changed their

service condition including the petitioner herein in

I.D. No. 1458/2009/LOC/AIL. In order to prove the

same, PW.1 has marked the copy of the notice of

enquiry sent to the respondent management as Ex. P3.

The petitioner has not proved that he is a member of

Hindustan Lever Employees Union. Hence, Ex. P3

would not support the case of the petitioner. The

learned counsel for the respondent has not

challenged the document under Ex. P3. In the above

circumstances, when the Conciliation Officer has

conducted the conciliation in respect of the issues

with regard to the service conditions of the employees

and charter of demands pertaining to the respondent

management, this court has to see whether approval

under section 33(2)(b) of Industrial Disputes Act in

this case is legally required or not. Eventhough the

petitioner is an employee under the respondent

management, he has not proved that he is a member

in Hindustan Unilever Employees Union, who has

raised the said issues. Hence, section 33(2)(b) of

Industrial Disputes Act is not applicable to the

petitioner, as such the respondent management has

rightly decided that they need not pay the wages for

one month and need not file an application to the

authority before which the proceeding is pending for

approval of the action taken by them.

27. The learned counsel for the respondent

submitted that the issue of chronic absenteeism has

become a very serious issue in the respondent's

factory, crippling its production and productivity and

disturbing its work schedules and man power

allotment and the high percentage of unauthorised

absenteeism clearly indicates that workers are taking

their employment casually and the leniency shown by

the respondent in the past in not taking stringent

disciplinary action was also an encouraging factor.

The learned counsel for the respondent relied upon

the following decisions to support his claim:-

CDJ 2009 SC 1194 :

Union of India Vs. Others Vs. Bishamber Das

Dogra :—

“Admittedly, the respondent employee has not

completed the service of six years and had been

imposed punishment three times for remaining

absent from duty. On the fourth occasion when he

remained absent for 10 days without leave, the

disciplinary proceedings were initiated against him.

... ...

... There is nothing on record to show any

explanation for such repeated misconduct or

absenteeism. The Court/Tribunal must keep in

mind that such indiscipline is intolerable so far as

the disciplined force is concerned. The respondent

was a guard in CISF. No attempt had ever been

made at any stage by the respondent - Employee

to explain as to what prejudice has been caused

to him by non-furnishing of the enquiry report.

... ... Appeal filed by the respondent employee

was decided by the Statutory Appellate Authority

giving cogent reasons. The facts of the case did

not present special features warranting any

interference by the court in limited exercise of its

powers of judicial review. In such a fact situation,

we are of the view that the High Court should

not have interfered with the punishment order

passed by the disciplinary authority on such

technicalities.”

CDJ 2007 MHC 3398 :

G. Vijayan Vs. The Presiding Officer, Labour Court,

Salem and Another :—

“This is a classic instance wherein misplaced

sympathy has been shown by the Labour Court,

having found that the domestic enquiry was

conducted in a fair manner. This practice of

showing misplaced sympathy or generosity or

compassionate ground to review the quantum of

punishment is held to be impermissible by

hierarchy of judgments of the apex court. It is also

clear that the apex court has held that only in cases

where the punishment awarded is shockingly

disproportionate to the charge proved, the court

can interfere to reduce the punishment. ... ... ...

The award of the labour in ordering reinstatement

of the appellant with service benefits, however,

without back wages is not on proper and sound

reasoning as found by the learned single Judge.

In view of the same, the writ appeal fails and the

same is dismissed.”

2006-1-LLJ-55 (Madras) :

O. Krishnan

Vs.

Management

of

Dheeran

Chinnamalai Transport Comoration :—

“In the present case, however, apart from

unauthorised absence for which disciplinary

proceedings were being initiated, the disciplinary

authority has relied upon the fact that on previous

occasions also the petitioner had remained

unauthorisedly absent. The disciplinary authority

406

LA GAZETTE DE L’ETAT

[23 April 2013

had also considered the fact that there has been

several other punishments imposed upon the

petitioner on numerous occasions and considering

all these aspects, the disciplinary authority had

come to the conclusion that the person was to be

dismissed. The Labour Court on independent

consideration has also come to the very same

conclusion and has held that punishment of

dismissal was justified in the peculiar facts and

circumstances of the case. In the absence of any

patent illegality in such orders, it is difficult for

the High Court to come to any different conclusion

and to interfere with the punishment.”

2010-4-LLJ 245:

Indian Coffee Board Vs. The Presiding Officer :—

“Not only has no evidence/document whatsoever

of illness has been produced but no particulars of the

serious prolonged illness, if any, suffered by the

respondent No. 2 workman have been stated. ... ... ...

Court recently in Union of India Vs. Bishamber Das

Dogra MANU/SC/0887/2009 has reiterated that

absenteeism is a gross violation of discipline. It goes

without saying that such absenteeism of a workman

can paralyse the working/functioning of the

employer. The Labour Court ignored the facts which

starte one in the face in the facts of the present case.”

28. Now we have to see whether the punishment

of dismissal is proportionate to the charges levelled

against the petitioner for unauthorised absence. The

petitioner in the disciplinary proceedings has admitted

the charges and prayed leniency for the unauthorised

absence. Apart from the above, according to the

respondent, the petitioner was an employer under

them from 25-9-1997 and he was chronic absentee

from January 2007 only. Prior to 2007, there was no

remarks or misconduct by the petitioner. Of course

the history sheet of the workman shows that the

period of absence from 2007 to 2008 are very much

long period of absence, which cannot be considered

leniently. About three spells of unauthorised leave

taken by the petitioner were admitted by the

petitioner, which were also warned in time and he was

also dismissed once for the unauthorised leave taken

from May 2008 to September 2008 (105 days). These

lapses are very serious in nature and hence

considering the habit of long unauthorised absence,

I feel that he cannot be reinstated into service.

However, the punishment of dismissal from the

service is disproportionate one, but I am of the

opinion that he can be awarded the monetary

compensation to him and his family members in the

circumstances of the case. Hence, I feel that the

monetary compensation only will be the better

solution in this case to settle this disputes between

the parties, which would meet the ends of justice.

Considering the service of the petitioner and starving

family members depending the workman for

livelihood, he can be awarded a sum of ` 2,00,000 in

lump sum towards compensation. Accordingly, this

point is answered.

29. In the result, the industrial dispute is partly

allowed and the petitioner is not entitled for

reinstatement and the other benefits. However, he is

entitled for ` 2,00,000 (Rupees two lakhs only)

towards monetary compensation. No costs. Time for

three months.

Typed to my dictation, corrected and pronounced

by me in the open court on this 30th day of

November, 2012.

T. MOHANDASS,

Presiding Officer,

Labour Court, Puducherry.

————

List of witnesses examined for the petitioner :

PW.1

— 4-10-2012 – Mohan

PW.2

— 12-10-2012 – Ezhumalai

List of witnesses examined for the respondent :

RW.1

— 25-10-2012 – Arokia Berdila Anand

List of exhibits marked for the petitioner :

Ex. P1

— Copy of the dismissal order, dated 11-7-2009

Ex. P2

— Copy of the enquiry proceedings

Ex. P3

— Copy of the notice sent by the

Conciliation Officer to the respondent,

dated 24-7-2008.

Ex. P4

— Copy of the failure report, dated 14-7-2009

Ex. P5

— Copy of the admission application for

joining in the union, dated 6-3-2008.

Ex. P6

— Copy of the letter, dated 20-2-2008 sent

to the Inspector of Factories.

Ex. P7

— Copy of the conditions of service for

change, dated 21-10-2010.

Ex. P8

— Copy of the letter sent to the

respondent, dated 13-5-2008 by the

union.

Ex. P9

— Copy of the judgment of Hon'ble High

Court, dated 8-6-2010.

List of exhibits marked for the respondent :

Ex. R1

— Authorisation letter, dated 24-10-2012

Ex. R2

— Copy of the advise letter given by the

respondent.

407

23 April 2013]

LA GAZETTE DE L’ETAT

Ex. R3

— Copy of the enquiry proceedings,

dated 3-11-2008.

Ex. R4

— Copy of the enquiry report, dated 24-11-2008

Ex. R5

— Copy of the second show cause

notice, dated 1-6-2009.

Ex. R6

— Copy of the reply by the petitioner,

dated 17-6-2009.

Ex. R7

— C o p y o f t h e p u n i s h m e n t o r d e r,

dated 11-7-2009.

Ex. R8

— Copy of the letter given by the

petitioner, dated 20-7-2009.

Ex. R9

— Copy of the extract of computerised

muster roll.

Ex. R10 — Computerised statement of overall

percentage

of

authorised

and

unauthorised absenteeism.

T. MOHANDASS,

Presiding Officer,

Labour Court, Puducherry.

GOVERNMENT OF PUDUCHERRY

DIRECTORATE OF SCHOOL EDUCATION

NO. 353-359/DSE/EC/C/2013.

Puducherry, the 3rd April 2013.

NOTIFICATION

It is hereby informed that the following candidates have lost their original Higher Secondary

Examinations Mark Certificates beyond the scope of recovery and necessary steps have been taken to issue

duplicate certificates. If any one finds the original Mark Certificates, they may be sent to the Secretary, State

Board of Secondary Examinations, College Road, Chennai – 600 006, for cancellation as they are no longer valid.

Sl.

Name and address of the

Register No.,

Sl. No. of the

School in which

No.

applicant

session and

mark

studied last

year

certificate

(1)

(2)

(3)

(4)

(5)

Thiru/Tmt./Selvi :

1

Devika, M.

434462

HSG 0871073

Manimegalai Government Girls’

March 2004

Higher Secondary School,

Puducherry.

2

Najumudheen, L.

545740

HSG 5138902

Senthil Matriculation Higher

March 2010

Secondary School, Puducherry.

213925

HSG 5478038

Private study

June 2010

3

Pushparaj, D.

484249

—

J e e v a n a n d a m G o v e r n m e n t

March 2008

Higher Secondary School,

Karamanikuppam Puducherry.

4

Raja Dit Benjamin

800574

AB 0964815

Calve College Government Higher

March 1994

Secondary School, Puducherry.

913310

AB 1195128

Private study

September 1994

5

Ramesh, S.

473531

2929492

Government Higher Secondary

March 2007

School, Korkadu, Puducherry.

6

Sundar Singh, J.

761878

HSG 1208547

Petit Seminaire Higher Secondary

March 2001

School, Puducherry.

7

Vijayalakshmi, R.

474701

2934513

Kalaignar Karunanidhi Government

March 2007

Higher Secondary School,

Kalitheerthalkupam, Puducherry.

J. KRISHNARAJU,

Joint Director.