392
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.
393
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
395
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.
396
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.
397
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.