504

LA GAZETTE DE L’ETAT

[4 June 2013

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 68//Lab./AIL/J/2013, dated 17th May 2013)

NOTIFICATION

Whereas, an award in I.D.No. 13/2012, dated 24-1-2013 of

the Labour Court, Puducherry in respect of the industrial

dispute between the Managing Director, M/s. Pondy

Die Castings (P) Ltd., Puducherry and its workman

Thiru N. Kathirvelu, over his 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.

Thursday, the 24th day of January, 2013.

I.D. No. 13/2012

N. Kathirvelu

. . Petitioner

Vs.

The Managing Director,

Pondy Die Castings (P) Limited.

Puducherry.

. . Respondent

This industrial dispute coming on 18-1-2013 before me for

final hearing in the presence of Thiru R.T. Shankar,

Advocate for the petitioner, Tvl. T.S.P. Sridhar Babu and

S. Jayachandiran, 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

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 2 A of Industrial Disputes (Amendment)

Act, 2010 (24 of 2010).

2. The petitioner in his petition has stated as follows:-

The petitioner was working as Accounts Assistant in

the respondent company from 27-10-2003. The

petitioner demanded a good salary for his livelihood, but

the respondent management refused to increase his salary

and they have taken steps to remove him from service.

As such the petitioner was transferred from the Accounts

Department to Dispatch Department. But the petitioner

without any protest worked in the Dispatch Department.

At this stage, the respondent sent an enquiry letter No.1

stating that the management is suspected that he has

involved in the commission of theft and in order to find out

the truth, they decided to conduct the domestic enquiry

and he has suspended from 22-7-2010. In the said letter,

there are no particulars with regard to the following aspects:

1. From whom the complaint was received with regard

to the alleged theft.

2. When and where the petitioner has committed theft.

3. Who is the eye-witness for the said alleged theft?

4. Why the said theft material has been seized by the

security person from the petitioner?

5. Whether any complaint has been given to the police

station with regard to the said theft?

6. No reason was stated in the alleged notice for the

delay in taking steps against the petitioner?

After receiving the said notice, the petitioner sent several

letters to the respondent, asking about various particulars,

(for which the respondent had sent reply formally only to

escape from the clutches of law). Then as requested by the

petitioner, the enquiry was conducted by appointing one

Suresh as enquiry officer and the enquiry has been

completed only for the period of one day. In the enquiry

there is no witness appeared before the enquiry officer and

no documents were marked to prove the alleged theft.

Further the enquiry officer has not furnished the enquiry

report even after several demands made by the petitioner.

Hence, the enquiry conducted by the enquiry officer is

against the principles of natural justice. Hence, this

industrial dispute is filed by the petitioner for his

reinstatement along with other relief.

3. The respondent in his counter has stated as follows:

On 17-11-2004 the petitioner was placed in Grade -IV

for a monthly salary of ` 3,079. The petitioner was irregular

in his service without prior information of his absence to

the respondent. Hence, on 27-11-2008 the respondent has

suspended the petitioner for seven days from 27-11-2008

to 3-12-2008 and called for his explanation. The petitioner

gave his explanation on 3-12-2008 and assured that in future

it will not happen and prior intimation will be given through

leave letter.

505

4 June 2013]

LA GAZETTE DE L’ETAT

Again the petitioner's performance was not satisfied by

the respondent and he was allocated with certain jobs on

10-2-2010, but he did not accurate in the said job. Hence,

the respondent called for his explanation on 6-4-2010 about

his non-performance of the work timely and taking more

leave by neglecting the work. The petitioner submitted his

explanation on 9-4-2010 by admitting that his frequent leave

taking because of his health condition. Hence, the petitioner

was suspended from 14-4-2010 to 16-4-2010 for three days.

Then the petitioner was transferred to Dispatch

Department from 4-5-2010 due to his poor performance.

The complaints were received from the employees namely

Anandan and Sakthivel that they have seen the petitioner

carrying casting in his tiffin box on 6-7-2010 and one

J.P. Prakash G.D.A. has also informed the respondent about

commission of theft made by the petitioner. Therefore, the

respondent issued the suspension order on 22-7-2010 and

informed about conducting the domestic enquiry to find

out the truth. On 28-12-2010 the respondent issued a charge

sheet and on 12-2-2011 one Suresh, Advocate was

appointed as enquiry officer to conduct the enquiry and

on repeated adjournments, the enquiry was conducted on

12-3-2011 and the respondent examined one Anandan and

the petitioner examined one Velan and both witnesses were

cross examined by the respondent and the petitioner

respectively. On 16-3-2011 the enquiry officer submitted

his report stating that the charges were proved and

on 11-4-2011 the respondent issued a show cause notice

to the petitioner. On 23-4-2011 the petitioner gave his

explanation and finally on 3-5-2011 the respectively

terminated the petitioner from service with effect

from 2-5-2011. Therefore, all the proceedings were done as

per law and hence the respondent prays for dismissal of

the industrial dispute.

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

Ex.P1 to Ex.P15 were marked. On the side of the respondent,

RW.1 was examined and Ex.R1 to Ex.R27 were marked.

5. The point for consideration is:

Whether the industrial dispute can be allowed?

6. On the point:

The contention of the petitioner is that he was working as

Accounts Assistant in the respondent company from

27-10-2003 and he demanded a good salary for his livelihood,

but the respondent management refused to increase his salary

and they have taken steps to remove him from service and as

such he was transferred from the Accounts Department to

Dispatch Department and then the respondent sent an enquiry

letter No.1, stating that the management is suspected that he

has involved in the commission of theft and in order to find

out the truth, they decided to conduct the domestic enquiry.

In order to prove his claim, the petitioner examined himself as

PW.1. PW.1 in his evidence has deposed as stated in the claim

statement.

7. Per contra, the contention of the respondent is that on

17-11-2004 the petitioner was placed in Grade-IV for a monthly

salary of ` 3,079 and he was irregular in his service without

prior information of his absence to the respondent and hence,

on 27-11-2008 they have suspended the petitioner for seven

days from 27-11-2008 to 3-12-2008 and called for his explanation

and the petitioner gave his explanation on 3-12-2008 and

assured that in future it will not happen and prior intimation

will be given through leave letter. The respondent further

contended that again the petitioner's performance was not

satisfied by them and he was allocated with certain jobs on

10-2-2010, but he did not accurate in the said job and hence,

they called for his explanation on 6-4-2010 about his non-

performance of the work timely and taking more leave by

neglecting the work and the petitioner submitted his

explanation on 9-4-2010 by admitting that his frequent leave

taking because of his health condition and hence, the petitioner

was suspended from 14-4-2010 to 16-4-2010 for three days

and then the petitioner was transferred to Dispatch

Department from 4-5-2010 due to his poor performance.

8. In order to prove his claim, the H.R. Manager of the

respondent company was examined as RW.1. RW.1 has marked

the letter submitted by the petitioner to the respondent as

Ex.R1. A perusal of Ex.R1 reveals that for suspension of seven

days from 27-11-2008 to 3-12-2008, he gave explanation stating

that out of five days leave, he informed three days leave

through oral communication to his HRD and Director over

phone and for two days leave, he could not inform the

management, since his wife was admitted in the hospital. Ex.R2

is the authorisation letter. Ex.R3 is the copy of the suspension

order for seven days from 27-11-2008 to 3-12-2008. Ex.R4 is the

copy of the acknowledgment card signed by the petitioner.

Ex.R5 is the copy of the warning letter issued by the respondent

to the petitioner for his non-performance. Ex.R6 is the copy of

the explanation for Ex.R5 submitted by the petitioner to the

respondent. Ex.R7 is the copy of the suspension order issued

to the petitioner for his misbehaviour with the Finance

Manager. Ex.R8 is the copy of the apology letter submitted by

the petitioner for his misbehaviour with the said Finance

Manager. Ex.R9 is the copy of the transfer order issued to the

petitioner. Ex.R1 to Ex.R9 would confirm the version of RW.1

as stated above. But it is the duty of the respondent to give

9-A notice to the petitioner before transferring him to some

other department. But in this case, though the respondent

has not issued notice under section 9-A of Industrial Dispute

Act to the petitioner, he obeyed the order of the respondent

and worked in the transferred place and the same was admitted

by RW.1 in his cross-examination. The relevant portion of his

evidence runs as follows:

“√Ë \Vu≈D ÿƒFk>uz x[A 9á∞ ∂§s©A ÔΩ>D

®m°D ÿÔV|¬Ôs_ÁÈ. √Ë \Vu≈D ÿƒF>∏≈z \–>V´Ï

∂∫zD √Ë ÿƒFm kÕ>VÏ. ®[≈V_ ƒˆ>V[.”

9. The reason for terminating the petitioner, as per the

version of RW.1 is that the complaints were received from the

employees namely Anandan and Sakthivel that they have seen

506

LA GAZETTE DE L’ETAT

[4 June 2013

the petitioner carrying casting in his tiffin box on 6-7-2010 and

one J.P. Prakash G.D.A. has also informed the respondent

about commission of theft made by the petitioner and therefore,

the respondent issued the suspension order on 22-7-2010 and

informed about conducting the domestic enquiry to find out

the truth and on 28-12-2010 the respondent issued a charge-

sheet and on 12-2-2011.

10. The charge-sheet, dated 22-7-2010 issued to the

petitioner was marked as Ex.P1 on the side of the petitioner

and Ex.R10 on the side of the respondent. In Ex.P1 and Ex.R10,

it has been stated that the management is suspected that the

petitioner has involved in the commission of theft on 6-7-2010

and in order to find out the truth, the management is decided

to conduct the domestic enquiry and he was suspended with

effect from 22-7-2010 and he was directed to give the

explanation within 24 hours, failing which action will be taken

based on the evidence. The contents of Ex.P1 and Ex.R10 are

as follows:-

“>V∫Ô^ Ô¶Õ> 6-7-2010 ∂[Æ ]Ú‚| ÿƒBo_

~|√‚¶>VÔ WÏkVÔ› >´©∏_ >∫Ô^º\_ ƒÕº>ÔD

®øÕm^·m. º\KD Â\m ÿ>VauƒVÁÈl_ ∞uÔ™ºk

÷m \V]ˆ zu≈∫Ô^ Â¶Õm, ∂>uz WÏkVÔD Â¶kΩ¬ÁÔ

®|›m^·m ®[√Á> ¿Ï ∂§TÏ. ÷ÚÕmD ¿Ï ÷m

º√V[≈ Â¶kΩ¬ÁÔÔπ_ ~|√‚|^CÏ.

º�√Ω >∫Ô^ *m ∑\›>©√‚|^· zu≈ﬂƒV‚|Ôπ[

cıÁ\ WÁÈÁB ∂§B c^sƒV´Áð Â¶›>

c›º>E¬Ô©√‚|^·m.

÷>uÔVÔ 22-7-2010 ∂[Æ x>_ >∫ÔÁ· >uÔVoÔ

√Ë ¿¬ÔD ÿƒFB©√‚|, º�ÿÔVı| c∫Ô”Á¶B

s·¬ÔD ÷Õ> ÔΩ>D ÿ√uÆ 24 \Ë ºÂ´›]uz^ ®ø›m

JÈD >´ºkı|D ®[Æ ºÔV´©√|˛≈m. ∂ÀkVÆ

>kÆD

√‚ƒ›]_

ÁÔl_

c^·

gkð∫Ôπ[

∂Ω©√Á¶l_ º\_ Â¶kΩ¬ÁÔ ®|¬Ô©√|D ®™

∂§B°D.”

From the above contents, it can be seen that there are no

particulars with regard to the name of the person, who informed

about commission of theft by the petitioner, name of the

product, theft by the petitioner, what time and where the

petitioner has committed theft. RW.1 in his cross-examination

has admitted the said facts as follows:-

\.ƒV.g.1_ \–>V´Ï ®[™ zu≈D AˆÕ>VÏ ? BVÏ

∂Õ>¬

zu≈›]Á™

√VÏ›m

ÿƒV[™VÏÔ^

®[Æ

z§©∏¶©√‚|^·>V ®[≈V_ ÷_ÁÈ.

Further as per Ex.P1 (Ex.R10), the alleged theft was

committed by the petitioner on 6-7-2010, whereas the

charge-sheet has been issued on 22-7-2010. There is no

plausible explanation from the respondent with regard to delay

in taking action against the petitioner. As per the version of

RW.1, they were informed about commission of theft by the

petitioner through the employees namely Anandan, Sakthivel

and Prakash. But the names of any such persons have been

mentioned in Ex.P1 (Ex.R10). Hence, the charge sheet under

Ex.P1 (Ex.R10) is vague and devoid of necessary particulars.

11. Further contention of learned counsel for the petitioner

is that the enquiry officer did not conduct the enquiry in

accordance with law and principles of natural justice and the

enquiry officer acted in a biased manner and the concept of

fair opportunity of hearing was grossly violated.

12. Per contra, the contention of the learned counsel for

the respondent is that the enquiry officer has meticulously

followed the principles of natural justice in conducting the

enquiry but for reasons best known to him, the petitioner has

not made use of the reasonable and adequate opportunities

afforded to him by the enquiry officer.

13. On the side of the respondent, the docket sheet of the

enquiry proceedings was marked as Ex.R 21 and the copy of

the enquiry report was marked as Ex.R 22. A perusal of Ex.R 21

reveals that on 26-2-2011 both the petitioner and the

representative of the respondent were appeared before the

enquir officer and requested time for enquiry and hence the

enquiry was adjourned to 5-3-2011 and on 5-3-2011 both the

petitioner and the said representative requested time for

enquiry and hence the enquiry was adjourned to 12-3-2011

and on 12-3-2011 the enquiry was conducted and one Anandan

was examined on the side of the respondent. The said Anandan

told that he has given a letter to the management on 10-7-2010

stating that the petitioner has committed theft of aluminium

castings in his tiffin box and he was cross examined by the

petitioner. On the side of the petitioner, one Velan was examined

and he has stated that the charges levelled against the

petitioner are false and on the same day, the enquiry was

concluded by the enquiry officer.

14. In the enquiry, the management witness Anandan has

stated that he has given letter to the respondent about

commission of theft made by the petitioner. But the said letter

has not been produced and marked in the enquiry. Further the

respondent has stated that they came to know about

commission of theft made by the petitioner through one

Sakthivel and J.P. Prakash. But the said Sakthivel and

J.P. Prakash have not been examined as witnesses in the said

enquiry. Further the enquiry officer conducted the enquiry

only one day and no opportunity was given to the petitioner

to examine the further witnesses on his side. The enquiry

officer has come to the conclusion only based on their only

witness without marking any documents that the charges

levelled against the petitioner were proved, which is not quite

reasonable. The enquiry officer has not furnished the enquiry

report even after several demands made by the petitioner and

the second show cause notice has also not been sent to the

petitioner, before terminating him from service and the same

has been admitted by RW.1 in his cross-examination.

The relevant portion of his evidence is as follows:-

“P.11-_

sƒV´Áð

∂§¬ÁÔ

ÂÔ_

\–>V´Ï

ºÔVˆlÚÕ>VÏ. sƒV´Áð ∂]ÔVˆ•D ∂Õ> sƒV´Áð

z§©A ÂÔÁÈ >´s_ÁÈ. . . . . . .

507

4 June 2013]

LA GAZETTE DE L’ETAT

. . . sƒV´Áð z§©AÔÁ· √ÈxÁ≈ ºÔ‚|D

>´V>>V_ ƒ‚¶ sº´V>\VÔ ÿƒB_√‚º¶VD ®[≈V_ ƒˆB_È

. . . . . . . . .

º\KD ÷´ı¶Vkm ÔV´ðD ºÔVÚD ∂§¬ÁÔ•¶[

sƒV´Áð

z§©A,

sƒV´Áð

∂]ÔVˆl[

xΩ°

g˛BkuÁ≈•D >´V>m ƒ‚¶ sº´V>D ®[≈V_ ƒˆB_È.”

From the above evidence of RW.1, it is clearly proved by

the petitioner that the respondent has failed to send the

enquiry report to the petitioner even after several demands

made by him and they also not send the second show cause

notice before terminating him from service, which is against

the labour law. In this regard, the learned counsel for the

petitioner has submitted that when the respondent has failed

to give sufficient opportunity to the petitioner in the enquiry

and send the enquiry report to him, the impugned order

passed by the respondent, terminating him from service is

liable to be set aside. In order to support his claim, he relied

upon the following decision:-

2009(4) MLJ Page 1216:

“Tamil Nadu Cooperative Societies Rules (1988), rule

149 (18) (b) - Dismissal from service - Impugned order

passed in Writ Petition - Writ Appeal 2nd respondent has

neither furnished copy of enquiry officer's report nor

afforded an opportunity for personal hearing to the

appellant to defend himself as required under rule - Said

rules substantive in nature and not procedural - Not

furnishing of copy of enquiry officer's report and failure to

afford personal hearing would have certainly caused

serious prejudice - Impugned order set aside - Writ Appeal

allowed.”

As already stated the respondent has not furnished the

enquiry report, which had resulted in miscarriage of justice

decision making process was not only fault but biased and

established that the decision was predetermined and hence

the said enquiry is not fair and proper.

15. The learned counsel for the petitioner has also

submitted that as per section 3 of Subsistence Allowance Act,

the respondent has not paid the subsistence allowance to the

petitioner, which is illegal and against the Subsistence

Allowance Rules.

16. As per section 3 of Payment of Subsistence Allowance

Act, an employee, who is placed under suspension, shall during

the period of such suspension be entitled to receive, payment

from the employer as subsistence allowance, an amount equal

to fifty-percent of the wages, which the employee was drawing

immediately before his suspension, for the first ninety days

reckoned from the date of such suspension, provided that

where the period of suspension exceeds ninety days, but does

not exceed one hundred and eighty days, the employee shall

be entitled to receive, after the said period of ninety days, a

subsistence allowance equal to seventy five percent of the

wages, which the employee was drawing immediately before

his suspension. But in this case, the respondent has not filed

any document to prove that they have, paid the subsistence

allowance as per the above provision of law. In fact RW.1 in

his cross examination has admitted that they have paid 50%

of subsistence allowance for six months only. The relevant

portion of his evidence is as follows:-

“√ËlÁ¶ ¿¬Ô ÔVÈ›]_ 6 \V> ÔVÈD 50%

∏Áw©Ø]BD \‚|º\ \–>V´Ú¬z ÿÔV|›m^º·VD

®™≈V_ ƒˆ>V[.”

RW.1 has also admitted in his cross examination that they

have deducted ` 1,000 from the said 50% of subsistence

allowance. The relevant portion of his evidence is as follows:

“∂Õ> 50% ∏Áw©Ø]B›]KD ∂kÏ ÿ√u≈ x[

√ð›]uz ®[Æ \V>D ` 1,000 ∏Ω›>D ÿƒFº>VD ®™≈V_

ƒˆ>V[.”

As per sub-rule (ii) of rule 3 of Subsistence Allowance

Rules, the subsistence allowance payable under the Act shall

be paid in full subject to the restrictions under the act and it

shall not be liable for any deductions. The respondent has

not filed any document to prove that the petitioner has availed

the advance from the respondent and that they have deducted

` 1,000 per month from the said subsistence allowance. It is

pertinent to refer the following decision, which is relevant to

this case:-

2002(3) L.L.N. 327 :

Management Medical Superintendent, Christian

Mission Hospital, Madurai Vs. Presiding Officer,

Labour Court, Madurai and another:

“Domestic enquiry - Attender in hospital, served with

charge memo - No subsistence allowance paid to him till

final order was passed about 10 years later - He went before

concerned authority under Payment of Subsistence

Allowance Act -Though a direction was given to employer

to pay subsistence allowance, nothing came to be paid - It

is also admitted position that against that order an appeal

was filed and the appeal was dismissed and yet no

subsistence allowance was paid - Held, the whole enquiry

is vitiated and rendered non est as per the established law

laid down by Apex Court - The workman's civil suit was

pending has got nothing to do with payment of subsistence

allowance.”

As per the above decision, when no subsistence allowance

is paid by the employer, the whole enquiry is vitiated. In this

case, as already stated, the respondent has not acted in

accordance with law in paying the subsistence allowance to

the petitioner. Hence, the order of termination issued by the

respondent is bad in law and is liable to be set aside and

consequently he is entitled for reinstatement with continuity

of service. However, considering the facts and circumstances

of the case, the petitioner is entitled for 50% of back wages

and other attendant benefits. Accordingly, this point is

answered.

508

LA GAZETTE DE L’ETAT

[4 June 2013

17. In the result, the industrial dispute is partly allowed and

the respondent is directed to reinstate the petitioner into

service with continuity of service and with 50% of back wages

and other attendant benefits.

Typed to my dictation, corrected and pronounced by me in

the Open Court on this the 24th day of January, 2013.

T. MOHANDASS

Presiding Officer,

Labour Court, Puducherry.

————

List of petitoner’s witness:

PW.1 - 19-10-2012 - N. Kathirvelu

List of petitioner’s exhibits:

Ex.P1

— Enquiry letter No.1 issued to the petitioner,

dated 22-7-2010.

Ex.P2

— Copy of the letter sent by the petitioner to the

respondent, dated 28-7-2010.

Ex.P3

— Enquiry letter No.2 issued to the petitioner,

dated 30-7-2010.

Ex.P4

— Enquiry letter No.3 issued to the petitioner,

dated 24-8-2010.

Ex.P5

— Copy of the letter sent by the petitioner to the

respondent, dated 3-9-2010.

Ex.P6

— Charge sheet, dated 28-12-2010 issued to the

petitioner.

Ex.P7

— Copy of the letter, dated 7-1-2011 sent by the

petitioner to the respondent.

Ex.P8

— Letter, dated12-2-2011 sent by the respondent

to the petitioner.

Ex.P9

— Enquiry Notice, dated 19-2-2011 sent to the

petitioner.

Ex.P10 — Letter, dated 9-4-2011 sent by the respondent

to the petitioner.

Ex.P11 — Copy of the letter, dated 23-4-2011 sent by the

petitioner to respondent.

Ex.P12 — Termination order, dated 3-5-2011.

Ex.P13 — Letter, dated 20-5-2011 sent by the petitioner

to the respondent.

Ex.P14 — Letter, dated 1-6-2011 sent by the petitioner to

the respondent.

Ex.P15 — Notice of enquiry, dated 24-6-2011

List of respondent’s witness :

RW1

— 6-12-2012 - R. Sivaraj, HR Manager

List of respondent’s exhibits:

Ex.R1

— Letter, dated 3-12-2008 sent by the petitioner.

Ex.R2

— Authorisation letter, dated 5-12-2012

Ex.R3

— Copy of the letter issued by the respondent

to the petitioner, dated 27-11-2008.

Ex.R4

— Copy of the acknowledgment card

Ex.R5

— Copy of the letter by the respondent to the

petitioner dated 6-4-2010.

Ex.R6

— Copy of the letter issued by the petitioner,

dated 9-4-2010.

Ex.R7

— Copy of the letter issued by the respondent,

dated 13-4-2010.

Ex.R8

— Copy of the letter issued by the petitioner,

dated 14-4-2010.

Ex.R9

— Copy of the letter issued by the respondent,

dated 30-4-2010.

Ex.R10 — Copy of the letter issued by the respondent,

dated 22-7-2010.

Ex.R11 — Copy of the letter issued by the petitioner,

dated 28-7-2010.

Ex.R12 — Copy of the letter sent by the respondent,

dated 31-7-2010.

Ex.R13 — Copy of the acknowledgment card

Ex.R14 — Copy of the letter sent by the respondent,

dated 26-8-2010.

Ex.R15 — Copy of the letter sent by the petitioner, dated

3-9-2010.

Ex.R16 — Copy of the charge-sheet issued to the

petitioner, dated 30-12-2010.

Ex.R17 — Copy of the acknowledgement card

Ex.R18 — Copy of the letter sent by the respondent,

dated 12-2-2011.

Ex.R19 — Copy of the acknowledgement card

Ex.R20 — Copy of the letter sent by the Enquiry Officer,

dated 19-2-2011.

Ex.R21 — Copy of the enquiry officer's docket sheet

Ex.R22 — Copy of the enquiry report, dated16.3.2011

Ex.R23 — Copy of the letter sent by the respondent,

dated 11-4-2011.

Ex.R24 — Copy of the acknowledgement card

Ex.R25 — Copy of the letter issued by the respondent,

dated 3-5-2011.

Ex.R26 — Copy of the acknowledgement card

Ex.R27 — Copy of the letter issued by the petitioner,

dated 8-11-2010.

T. MOHANDASS,

Presiding Officer,

Labour Court, Puducherry.

509

4 June 2013]

LA GAZETTE DE L’ETAT

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 69/Lab./AIL/J/2013, dated 17th May 2013)

NOTIFICATION

Whereas, the award in I.D. No. 19/2012, dated 31-1-2013

of the Labour Court, Puducherry in respect of the

industrial dispute between the Managing Director,

M/s. SISCO Latex (Private) Limited, Puducherry and its

workman R. Suganthi over her 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

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.

Thursday, the 31st day of January 2013

I.D. No. 19/2012

R. Suganthi

. . Petitioner

Versus

The Managing Director,

SISCO Latex (Private) Limited,

Puducherry.

. . Respondent

This industrial dispute coming on 24-1-2013

for final hearing before me in the presence of

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

Thiru J.A.S. Satish Kumar, 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

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 her petition has stated as follows:-

The petitioner was working as permanent

employee in the respondent company since 3-3-2008.

She is an active member in SISCO Latex

Thozhilalargal Sangam. The respondent management

sent a vague letter to the petitioner, dated 13-1-2012

for the alleged absent from 9-1-2012 to 13-1-2012 for

five days. But the petitioner availed the medical leave

from 29-12-2011 to 5-1-2012 and accordingly she

submitted the same under ESI form.

After receiving the said letter, dated 13-1-2012,

the petitioner went to the respondent company to

meet the Personnel Manager and requested him to

extend the leave for further one week, but the said

Personnel Manager shouted her by stating that he

will not give any leave and he terminated her from

service from today itself. On the next day, the

petitioner went to the office with fear, but she was

not permitted to enter into the factory premises and

hence she returned back to her house. Then on

24-1-2012, the respondent sent a dismissal order to

the petitioner. The order of dismissal is invalid and

unlawful, since no show cause notice and charge

sheet issued to the petitioner and also no enquiry

was conducted. The respondent has also not sent

the second show cause notice before terminating her

from service. Hence she filed the present industrial

dispute.

3. The respondent in his counter has stated as

follows:-

The petitioner was on leave from 27-12-2011 till,

8-1-2012, but she submitted the ESI leave from only

on 7-1-2012 that too for the period from 29-12-2011 to

5-1-2012. She stated that she would join duty on 8-1-2012.

Though she was supported to have reported for duty

at least on 9-1-2012, she failed to join on that date.

The petitioner never reported for duty after that and

remained absent. Hence, they issued a show cause

notice, dated 13-1-2012 to the petitioner calling upon

her to submit her explanations for her unauthorised

absence from 9-1-2012 within two days from the date

of receipt of that notice. In pursuance of the said

show cause notice, there was no response from

the petitioner. After having waited for ten days

on 24-1-2012, the termination order was sent to the

petitioner with effect from 24-1-2012 for her

unauthorised absence from 9-1-2012.

This respondent deny that the act of the

management in terminating the petitioner is in

contravention of section 33(2)(b) of Industrial

Disputes Act. It is a fact that a dispute regarding

revision of wages, annual increment and several

other demands was raised by SISCO Latex Employees’

510

LA GAZETTE DE L’ETAT

[4 June 2013

Union before the Labour Conciliation Officer,

Puducherry in I. D. No.2766/11/LO(C)/AlL. However

the petitioner can under no circumstances be

construed as a workman concerned in the dispute

within the meaning of section 33 in order to sustain

this petition. The features of the dispute raised by

the union and the features of the present dispute

raised by the petitioner in this petition are not

common. Hence, section 33(2)(b) of Industrial

Disputes Act is not applicable to this case. In the

above circumstance, this petition is frivolous, not

maintainable and deserves to be dismissed in limine.

4. On the side of the petitioner, PW1 & PW2 were

examined and Ex.P1 to Ex.P7 were marked. On the side

of the respondent, RW1 & RW2 were examined and

Ex.R1 to Ex.R3 were marked.

5. The point for consideration is:

Whether the industrial dispute can be allowed?

6. On this point:

The contention of the petitioner is that she was

working as permanent employee in the respondent

company since 3-3-2008 and she was an active member

in SISCO Latex Thozhilalargal Sangam and the

respondent management sent a vague letter to her, dated

13-1-2012 for the alleged absent from 9-1-2012 to 13-1-2012

for five days, but she availed the medical leave from

29-12-2011 to 5-1-2012 and the leave application for the

said period was sent to the respondent management.

The petitioner further contended that after receiving the

said letter, dated 13-1-2012, she went to the respondent

company to meet the Personnel Manager and requested

him to extend the leave for further one week, but the

said Personnel Manager shouted her by stating that he

will not give any leave to her and he terminated her from

service from today itself and then on 13-2-2012

the respondent sent a dismissal order to her.

7. In order to prove her case, the petitioner examined

himself as PW.1. PW.1 has deposed before this court

as stated in her claim statement and marked Exs. P1 to

Ex.P7.

8. Per contra, the contention of the respondent is

that the petitioner was on leave from 27-12-2011 till

8-1-2012, but she submitted the E.S.I. leave from only

on 7-1-2012 that too for the period from 29-12-2011

to 5-1-2012 and she stated that she would join duty

on 8-1-2012 and though she was supposed to have

reported for duty at least on 9-1-2012, she failed to join

on that date and she never reported for duty after that

and remained absent and hence, they issued a show

cause notice, dated 13-1-2012 to the petitioner calling

upon her to submit her explanations for her

unauthorised absence from 9-1-2012 within two days

from the date of receipt of that notice and in pursuance

of the said show cause notice, there was no response

from the petitioner and after having waited for ten days

on 24-1-2012 the termination order was sent to the

petitioner with effect from 24-1-2012 for her unauthorised

absence from 9-1-2012. RW.1 has marked the letter sent

by them to E.S.I. Corporation as Ex.R1 and the reply sent

by the E.S.I. Corporation to the respondent as Ex.R2.

As per Ex.R2, the petitioner has not submitted any

medical-cum-leave certificate after 9-1-2012 to their

office.

9. There is no dispute the petitioner was an employee

under the respondent company and she has taken

medical leave from 29-12-2011 to 5-1-2012, as could be

seen from the copy of the E.S.I. benefit payment docket

under Ex.P7. Ex.P1 is the show cause notice, dated 13-1-2012

issued by the respondent to the petitioner. As per Ex.P1,

the petitioner has been given notice of show cause as

to why disciplinary action should not be taken against

her for the unauthorised absent from 9-1-2012.

10. According to PW.1, on receipt of the show cause

notice under Ex.P1, she went to the respondent

c o m p a n y a n d m e t t h e P e r s o n n e l M a n a g e r

Thiru Sakthivel and requested him for her extension of

medical leave for further one week, but the said

Sakthivel has not given the leave and stated that

he terminated her from service.

11. The learned counsel for the respondent that at

no point of time, the petitioner met the Personnel

Manager Thiru Sakthivel as stated by the petitioner and

hence, the contention of the petitioner that he shouted

the petitioner by using filthy language is falsehood. In

support of the said contention, the security officer of

the respondent company was examined as RW.2. RW.2

in his evidence has deposed that there is one main

entrance which is used by all workers and visitors,

entering the factory premises of the respondent

company and on perusal of visitors note regarding

entries of the visitors/workers, it is seen that the

petitioner has not entered the factory premises from

1-1-2012 to 28-2-2012 and the relevant pages of the

visitors note has been marked as Ex.R3. A perusal of

Ex.R3 confirms the version of RW.2.

12. The respondent has set up his case that it is

admitted that the petitioner was an employee under them

and she availed medical leave from 29-12-2011 to 5-1-2012

and though she was supposed to have joined duty

on 9-1-2012, she failed to join on that date and her

medical leave was not extended and no certificate for

such alleged extension was ever submitted and since

she has absented herself from 9-1-2012 without any

notice or information or legal sanctioned leave, it will

be presumed that she has abandoned the employment

and subsequently they issued a show cause notice

dated 24-1-2012 calling upon her to submit her

511

4 June 2013]

LA GAZETTE DE L’ETAT

explanation for her unauthorised absence from 9-1-2012.

The learned counsel for the respondent would point out

section 14 (3) (e) of Industrial Employment (Standing

Orders) Central Rules, 1946 and argued that when an

employee is habitual absence without leave or absence

without leave for more than ten days, it would amount

to misconduct and the disciplinary action can be taken

against the said employee for such misconduct. The

said section runs as follows:-

14. Disciplinary action for misconduct:

(1) ...

(2) ...

(3) The following acts and omissions shall

be treated as misconduct:

(a) ...

(b) ...

(d) ...

(e) habitual absence without leave or absence

without leave for more than 10 days.

13. At this juncture, it is pertinent to refer the

following decisions, which are relevant to this case:-

2002(4) L.L.N. 850:

State of Uttar Pradesh Vs. 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 LLN. Page 259:-

Gaurishankar Vishwakarma Vs. 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”.

14. In this case, though the respondent has sent a

show cause notice to the petitioner calling upon her

explanation for her unauthorised absence from 8-1-2012

failing which disciplinary proceedings would be initiated

against her. Admittedly, the respondent has not

conducted any enquiry before the termination of her

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 her to resume his

duty and also to issue the charge sheet for her

unauthorised absence and to hold an enquiry before

terminating her service on that ground. In the present

case, the respondent has done neither and it was for

the employer to prove that the workman had abandoned

the service by holding the domestic enquiry.

15. The learned counsel for the petitioner

has submitted 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”.

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

respondent has submitted that the petitioner is not a

member of SISCO Latex Thozhilalargal Sangam and the

petitioner has no nexus connection with the disputes

which is pending before the conciliation officer and

hence no approval is required from the conciliation

officer, since the dispute raised before the conciliation

officer was different from the issue under which the

petitioner was dismissed. The learned counsel for the

respondent relied upon the following decisions

to support his claim:-

AIR 2002 SC 643:-

"The mere contravention of section 33 by the

employer will not entitle the workman to an order of

reinstatement because inquiry under section 33-A is

512

LA GAZETTE DE L’ETAT

[4 June 2013

not confined only to the determination as to the

contravention of section 33, but even if such

contravention is proved, the Tribunal has to go

further and deal also with the merits of the order of

discharge or dismissal".

A.I.R. 1978 SC 995:-

The first issue which is required to be decided in

a complaint filed by an aggrieved workman under

section 33A is whether order of discharge or

dismissal made by the employer is in contravention

of section 33. The foundation of the complaint under

section 33A is contravention of section 33 and if the

workman is unable to show that the employer has

contravened section 33 in making the order of

discharge or dismissal, the complaint would be liable

to be rejected. But if the contravention of section 33

is established, the next question would be whether

the order of discharge or dismissal passed by the

employer is justified on merits.

17. On the side of the petitioner, one Sundaramoorthy

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

deposed that he was the General Secretary of Labour

Union and the petitioner was the active member of his

union and at the time of termination of the petitioner i.e.,

on 24-1-2012 there was a conciliation pending before the

conciliation officer with regard to the wage revision of

the employees of the respondent company and he has

marked the charter of demands as Ex.P5 and the enquiry

call letter sent by conciliation officer to the SISCO Latex

Thozilalargal Sangam as Ex.P6. A perusal of Ex.P5

reveals that the said union has sent a letter to the

conciliation officer intimating one day strike for the

demands of wage revision and service conditions of the

employees of their union. As per Ex.P6, the notice of

enquiry was sent to the respondent company and to the

union with regard to the charter of demand.

The respondent themselves have admitted that there

was a conciliation in I.D. No.2766/2011/LOC/AIL

pending before the conciliation officer, but they stated

that the said conciliation is a general dispute and not

raised by the petitioner. Admittedly, the said conciliation

was pending before the conciliation officer with regard

to the wage revision of the employees of the

respondent. When PW.2 has categorically stated that

the petitioner was an active member in their union and

the another conciliation was pending before the

conciliation officer with regard to the wage revision of

the employees of the respondent company at the time

of termination of the petitioner, the said conciliation is

also covered with the petitioner, who was the employee

of the respondent company. In the above circumstance,

the respondent has acted against the abovesaid

proviso. Therefore, the dismissal order passed by the

respondent management is inoperative one. In the above

circumstances, the termination of the petitioner is bad

in law and the same is liable to be set aside and

consequently, the petitioner is entitled for reinstatement

with continuity of service and with full back wages and

other attendant benefits. Accordingly, this point is

answered.

18. In the result the industrial dispute is allowed with

costs and the respondent is directed to reinstate the

petitioner into service with continuity of service and

with full back wages and other attendant benefits.

Typed to my dictation, corrected and pronounced

by me in the open court on this the 31st day of

January 2013.

T. MOHANDASS,

Presiding Officer, Labour Court,

Puducherry.

————

List of petitioner’s witnesses:

PW.1

—

10-10-2012-Suganthi

PW.2

—

2-11-2012 - Sundaramoorthy

List of petitioner exhibits:

Ex.P1

—

Show cause notice issued to the

petitioner, dated 13-1-2012.

Ex.P2

—

Termination order, dated 24-1-2012 sent

to the petitioner.

Ex.P3

—

Dispute raised by the union before the

conciliation officer.

Ex.P4

—

Copy of the notice enquiry, dated 26-3-2012

Ex.P5

—

Dispute raised by the union before the

conciliation officer, dated 13-12-2011.

Ex.P6

—

Copy of the notice of enquiry, dated 29-12-2011

Ex.P7

—

Copy of the E.S.I. certificate of the

petitioner.

List of respondent’s witnesses:

RW. 1 —

17-11-2012-Sakthivel, Personnel Manager

of the respondent company.

RW.2

—

7-12-2012 - Ranganathan

List of respondent’s exhibits :

Ex.R1 —

Copy of the letter, dated 25-3-2012 sent

to the E.S.I Corporation.

Ex.R2 —

Letter, dated 27-3-2012 sent to the

respondent company.

Ex.R3 —

Copy of the visitors register.

T. MOHANDASS,

Presiding Officer, Labour Court,

Puducherry.

513

4 June 2013]

LA GAZETTE DE L’ETAT

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 70/Lab./AIL/J/2013, dated 17th May 2013)

NOTIFICATION

Whereas, an award in I.D. No. 18/2012, dated 31-1-2013

of the Labour Court, Puducherry in respect of the

industrial dispute between the Managing Director,

M/s. SISCO Latex (P) Limited, Puducherry and its

workman Tmt. Neelavathy, over her 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.

Thursday, the 31st day of January 2013.

I.D. No. 18/2012

Neelavathy

. .

Petitioner

Vs.

The Managing Director,

. .

Respondent

SISCO Latex (P) Limited,

Puducherry.

This industrial dispute coming on 24-1-2013

before me for final hearing in the presence of

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

Thiru J.A.S. Satish Kumar, 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

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 2 A of Industrial Disputes (Amendment)

Act, 2010 (24 of 2010).

2. The petitioner in her petition has stated as follows:

The petitioner was working as permanent

employee in the respondent company since 8-4-2004.

She is an active member in SISCO Latex

Thozhilalargal Sangam. The respondent management

sent a vague letter to the petitioner, dated 24-1-2012

for the alleged absent from 18-1-2012 to 24-1-2012 for

seven days. But the petitioner took the maternity

leave and after expiring the said leave, since she

needed rest, she applied for ESI leave and the said

leave was submitted to the respondent management.

After receiving the said letter, dated 24-1-2012, the

petitioner went to the respondent company to meet

the Personnel Manager, but the said Personnel

Manager abused her in a filthy language and shouted

her that she will be removed from the service and

sent her out from the room. On the next day, the

petitioner went to the office with fear, but she was

not permitted to enter into the factory premises and

hence she returned back to her house. Then

on 13-2-2012 the respondent sent a dismissal order

to the petitioner. The order of dismissal is invalid and

unlawful, since no show cause notice and charge sheet

issued to the petitioner and also no enquiry was

conducted. The respondent has also not sent the

second show cause notice before terminating her

from service. Hence she filed the present industrial

dispute.

3. The respondent in his counter has stated as

follows:

The petitioner was on leave from 5-1-2012 without

informing the management. The petitioner submitted

the ESI leave form only on 7-1-2012 at the time of

receiving her salary and that too for two days i.e.,

on 5-1-2012 and 6-1-2012. Though she stated that she

would join duty on 9-1-2012, she failed to join on that

date. The petitioner never reported for duty after that

and remained absent. Hence, they issued a show

cause notice, dated 13-1-2012 to the petitioner calling

upon her to submit her explanations for her

unauthorised absence from 9-1-2012 within two days

from the date of receipt of that notice. In pursuance

of the said show cause notice, there was no response

from the petitioner. After having waited for ten days,

on 24-1-2012 the termination order was sent to the

petitioner with effect from 24-1-2012 for her

unauthorised absence from 9-1-2012.

This respondent deny that the act of the

management in terminating the petitioner is in

contravention of section 33(2)(b) of Industrial

Disputes Act. It is a fact that a dispute regarding

revision of wages, annual increment and several

other demands was raised by SISCO Latex Employee's

514

LA GAZETTE DE L’ETAT

[4 June 2013

Union before the Labour Conciliation Officer,

Puducherry in I.D. No.2766/11/LO(C)/AIL. However,

the petitioner can under no circumstances be

construed as a workman concerned in the dispute

within the meaning of section 33 in order to sustain

this petition. The features of the dispute raised by

the union and the features of the present dispute

raised by the petitioner in this petition are not

common. Hence, section 33(2)(b) of Industrial

Dispute Act is not applicable to this case. In the

above circumstance, this petition is frivolous, not

maintainable and deserves to be dismissed in limine.

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

examined and Ex.P1 to Ex.P8 were marked. On the side

of the respondent, RW.1 and RW.2 were examined and

Ex.R1 to Ex.R3 were marked.

5. The point for consideration is:

Whether the industrial dispute can be allowed?

6. On this point :

The contention of the petitioner is that she was

working as permanent employee in the respondent

company since 8-4-2004 and she was an active member

in SISCO Latex Thozhilalargal Sangam and the

respondent management sent a vague letter to her dated,

24-1-2012 for the alleged absent from 18-1-2012

to 24-1-2012 for seven days, but she took the maternity

leave and after expiring the said leave, since she needed

rest, she applied for ESI leave and the said leave was

submitted to the respondent management. The petitioner

further contended that after receiving the said letter,

dated 24-1-2012, she went to the respondent company

to meet the Personnel Manager, but the said Personnel

Manager abused her in a filthy language and shouted

her that she will be removed from the service and sent

her out from the room and then on 13-2-2012 the

respondent sent a dismissal order to her.

7. In order to prove her case, the petitioner examined

himself as PW.1. PW.1 has deposed before this court

as stated in her claim statement and marked Ex.P1

to Ex.P8.

8. Per contra, the contention of the respondent is

that the petitioner was on leave from 5-1-2012 without

informing the management and she submitted the ESI

leave form only on 7-1-2012 at the time of receiving her

salary and that too for two days i.e.. on 5-1-2012 and

6-1-2012 and though she stated that she would join duty

on 9-1-2012, she failed to join on that date and she

never reported for duty after that and remained absent

and hence, they issued a show cause notice, dated

13-1-2012 to the petitioner calling upon her to submit

her explanations for her unauthorised absence

from 9-1-2012 within two days from the date of receipt

of that notice and in pursuance of the said show cause

notice, there was no response from the petitioner and

after having waited for ten days, on 24-1-2012 the

termination order was sent to the petitioner with effect

from 24-1-2012 for her unauthorised absence

from 9-1-2012. RW.1 has marked the letter sent by them

to ESI Corporation as Ex.R1 and the reply sent by the

ESI Corporation to the respondent as Ex.R2. As per

Ex.R2, the petitioner has not submitted any

medical-cum-leave certificate after 18-1-2012 to their

office.

9. There is no dispute the petitioner was an employee

under the respondent company and she gave birth a

female, for which she admitted in the Rajiv Gandhi

Government Women Hospital, Puducherry from

26-10-2011 to 1-11-2011 and she has taken maternity

leave from the ESI Corporation from 26-10-2011 to

17-1-2012, as could be seen from the copy of the ESI

Maternity Benefit Certificate under Ex.P7. Ex.P8 is a

copy of the Discharge Slip, issued by Rajiv Gandhi

Government Women and Children Hospital, Puducherry,

which would also confirm that the petitioner was

admitted in the hospital from 26-10-2011 and 7-11-2011

for delivery. Ex.P1 is the show cause notice, dated

24-1-2012 issued by the respondent to the petitioner.

As per Ex.P1, the petitioner has been given notice of

show cause as to why disciplinary action should not

be taken against her for the unauthorized absent

from 18-1-2012.

10. According to PW.1, on receipt of the show cause

notice under Ex.P1, she went to the respondent

company and met the Personnel Manager Thiru Sakthivel

and requested him for her extension of maternity leave

for further one week, but the said Sakthivel abused her

with a filthy language and shouted her to go out of the

room.

11. The learned counsel for the respondent that at

no point of time, the petitioner met the Personnel

Manager Thiru Sakthivel as stated by the petitioner and

hence, the contention of the petitioner that he shouted

the petitioner by using filthy language is falsehood. In

support of the said contention, the Security Officer of

the respondent company was examined as RW.2. RW.2

in his evidence has deposed that there is one main

entrance which is used by all workers and visitors,

entering the factory premises of the respondent

company and on perusal of visitors note regarding

entries of the visitors/workers, it is seen that the

petitioner has not entered the factory premises from 1-1-2012

to 28-2-2012 and the relevant pages of the visitors note

has been marked as Ex.R3. A perusal of Ex.R3 confirms

the version of RW.2.

12. The respondent has set up his case that it is

admitted that the petitioner was an employee under them

and she availed maternity leave from 26-10-2011 to

515

4 June 2013]

LA GAZETTE DE L’ETAT

17-1-2012 and through she was supposed to have joined

duty on 18-1-2012, she failed to join on that date and

her maternity leave was not extended and no certificate

for such alleged extension was ever submitted and

since she has absented herself from 18-1-2012 without

any notice or information or legal sanctioned leave, it

will be presumed that she has abandoned the

employment and subsequently they issued a show

cause notice, dated 24-1-2012 calling upon her to submit

her explanation for her unauthorised absence from

18-1-2012. The learned counsel for the respondent

would point out section 14 (3) (e) of Industrial

Employment (Standing Orders) Central Rules, 1946 and

argued that when an employee is habitual absence

without leave or absence without leave for more than

ten days, it would amount to misconduct and the

disciplinary action can be taken against the said

employee for such misconduct. The said section runs

as follows:-

Disciplinary action for misconduct:

(1) .........

(2) .........

(3) The following acts and omissions shall be

treated as misconduct:

(a) .........

(b) .........

(d) .........

(e) habitual absence without leave or absence

without leave for more than 10 days.

13. At this juncture, it is pertinent to refer the

following decisions, which are relevant to this case:-

2002(4) L.L.N. 850:

State of Uttar Pradesh Vs. 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 Vs. 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.”.

14. In this case, though the respondent has sent a

show cause notice to the petitioner calling upon her

explanation for her unauthorised absence from 18-1-2012

failing which disciplinary proceedings would be initiated

against her, admittedly, the respondent has not

conducted any enquiry before the termination of her

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 her to resume his

duty and also to issue the charge sheet for her

unauthorised absence and to hold an enquiry before

terminating her 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 by holding the domestic enquiry.

15. The learned counsel for the petitioner has

submitted 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 Dispute Act, 1947, S33(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.”.

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

respondent has submitted that the petitioner is not a

member of SISCO Latex Thozhilalargal Sangam and the

petitioner has no nexus connection with the disputes

which is pending before the Conciliation Officer and

hence no approval is required from the Conciliation

Officer, since the dispute raised before the Conciliation

516

LA GAZETTE DE L’ETAT

[4 June 2013

Officer was different from the issue under which the

petitioner was dismissed. The learned counsel for the

respondent relied upon the following decisions to

support his claim.

AIR 2002 SC 643:

“The mere contravention of section 33 by the

employer will not entitle the workman to an order of

reinstatement because inquiry under section 33-A is

not confined only to the determination as to the

contravention of section 33, but even if such

contravention is proved, the Tribunal has to go

further and deal also with the merits of the order of

discharge or dismissal.”.

AIR 1978 SC 995:

“The first issue which is required to be decided

in a complaint filed by an aggrieved workman under

section 33A is whether order of discharge or dismissal

made by the employer is in contravention of

section 33. The foundation of the complaint under

section 33-A is contravention of section 33 and if the

workman is unable to show that the employer has

contravened section 33 in making the order of

discharge or dismissal, the complaint would be liable

to be rejected. But if the contravention of section 33

is established, the next question would be whether

the order of discharge or dismissal passed by the

employer is justified on merits.

17. On

the

side

the

petitioner,

one

Sundaramoorthy was examined as PW.2. PW.2 in his

evidence has deposed that he was the General Secretary

of Labour Union and the petitioner was the active

member of his union and at the time of termination of

the petitioner i.e., on 13-2-2012, there was a conciliation

pending before the conciliation officer with regard to

the wage revision of the employees of the respondent

company and he has marked the charter of demands as

Ex.P5 and the enquiry call letter sent by conciliation

officer to the SISCO Latex Thozilalargal Sangam as Ex.P6.

A perusal of Ex.P5 reveals that the said union has sent

a letter to the conciliation officer intimating one day

strike for the demands of wage revision and service

conditions of the employees of their union. As per Ex.P6,

the notice of enquiry was sent to the respondent

company and to the union with regard to the charter of

demand. The respondent themselves have admitted that

there was a conciliation in I.D. No.2766/2011/LOC/AIL

pending before the conciliation officer, but they stated

that the said conciliation is a general dispute and not

raised by the petitioner. Admittedly, the said conciliation

was pending before the conciliation officer with regard

to the wage revision of the employees of the

respondent. When PW.2 has categorically stated that

the petitioner was an active member in their union and

the another conciliation was pending before the

conciliation officer with regard to the wage revision of

the employees of the respondent company at the time

of termination of the petitioner, the said conciliation is

also covered with the petitioner, who was the employee

of the respondent company. In the above circumstance,

the respondent has acted against the above said

proviso. Therefore, the dismissal order passed by the

respondent management is inoperative one. In the above

circumstances, the termination of the petitioner is bad

in law and the same is liable to be set aside and

consequently, the petitioner is entitled for reinstatement

with continuity of service and with full back wages and

other attendant benefits. Accordingly, this point is

answered.

18. In the result the industrial dispute is allowed with

costs and the respondent is directed to reinstate the

petitioner into service with continuity of service and

with full back wages and other attendant benefits.

Typed to my dictation, corrected and pronounced by

me in the open court on this the 31st day of January, 2013.

T. MOHANDASS,

Presiding Officer,

Labour Court, Puducherry.

————

List of petitioner’s witnesses :

PW.1 — 10-10-2012

— Neelavathy

PW.2 —

2-11-2012

— Sundaramoorthy

List of petitioner’s exhibits :

Ex.P1 — Show cause notice issued to the petitioner,

dated 24-1-2012.

Ex.P2 — Termination order, dated 13-2-2012 sent to

the petitioner

Ex.P3 — Dispute raised by the union before the

conciliation officer

Ex.P4 — Copy of the notice of enquiry, dated 26-3-2012.

Ex.P5 — Dispute raised by the union before the

conciliation officer, dated 13-12-2011.

Ex.P6 — Copy of the notice of enquiry, dated

29-12-2011.

Ex.P7 — Copy of the ESI certificate of the petitioner

Ex.P8 — Copy of the discharge slip

List of respondent’s witnesses:

RW.1 —

17-11-2012

—

Sakthivel, Personnel

M a n a g e r o f t h e

respondent company.

RW.2 —

7-12-2012

—

Ranganathan

517

4 June 2013]

LA GAZETTE DE L’ETAT

List of respondent’s exhibits:

Ex.R1 — Copy of the letter, dated 25-3-2012 sent to

the ESI Corporation.

Ex.R2 — Letter dated 27-3-2012 sent to the

respondent company.

Ex.R3 — Copy of the visitors register.

T. MOHANDASS,

Presiding Officer,

Labour Court, Puducherry.

————

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 71/Lab./AIL/J/2013, dated 17th May 2013)

NOTIFICATION

Whereas, an award in I.D. No. 20/2012, dated 31-1-2013

of the Labour Court, Puducherry in respect of the

industrial dispute between the Managing

Director, M/s. SISCO Latex (P) Limited, Puducherry and

its workman Tmt. Gomathi over her 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

Thursday, the 31st day of January 2013

I.D. No. 20/2012

S. Gomathi

. . Petitioner

Vs.

The Managing Director,

SISCO Latex (P) Limited,

Puducherry.

. . Respondent

This industrial dispute coming on 24-1-2013

before me for final hearing in the presence of

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

Thiru J.A.S. Satish Kumar, 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

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 2 A

of Industrial Disputes (Amendment) Act, 2010 (24 of 2010).

2. The petitioner in her petition has stated as follows:-

The petitioner was working as permanent

employee in the respondent company since 26-8-2009.

She is an active member in SISCO Latex

Thozhilalargal Sangam. The respondent management

sent a vague letter to the petitioner, dated 13-1-2012

for the alleged absent from 9-1-2012 to 13-1-2012 for

five days. But the petitioner availed the medical leave

on 5-1-2012 and on 6-1-2012 and accordingly she

submitted the same under E.S.I. Form.

After receiving the said letter, dated 13-1-2012, the

petitioner went to the respondent company to meet

the Personnel Manager and requested him to extend

the leave for further one week, but the said Personnel

Manager shouted her by stating that he will not give

any leave and he terminated her from service from

today itself. On the next day, the petitioner went to

the office with fear, but she was not permitted to

enter into the factory premises and hence she returned

back to her house. Then on 24-1-2012 the respondent

sent a dismissal order to the petitioner. The order of

dismissal is invalid and unlawful, since no show

cause notice and charge-sheet issued to the

petitioner and also no enquiry was conducted. The

respondent has also not sent the second show cause

notice before terminating her from service. Hence

she filed the present industrial dispute.

3. The respondent in his counter has stated as

follows:-

The petitioner was on leave from 5-1-2012 without

informing the management. The petitioner submitted

the E.S.I. leave from only on 7-1-2012 that too for the

period from 5-1-2012 to 6-1-2012. She stated that she

would join duty on 9-1-2012. Though she was

supported to have reported for duty at least on 9-1-2012,

she failed to join on that date. The petitioner never

reported for duty after that and remained absent.

518

LA GAZETTE DE L’ETAT

[4 June 2013

Hence, they issued a show cause notice dated 13-1-2012

to the petitioner calling upon her to submit her

explanations for her unauthorised absence

from 9-1-2012 within two days from the date of

receipt of that notice. In pursuance of the said show

cause notice, there was no response from the

petitioner. After having waited for ten days, on 24-1-2012

the termination order was sent to the petitioner with

effect from 24-1-2012 for her unauthorised absence

from 9-1-2012.

This respondent deny that the act of the

management in terminating the petitioner is in

contravention of section 33(2)(b) of Industrial

Disputes Act. It is a fact that a dispute regarding

revision of wages, annual increment and several

other demands was raised by SISCO Latex Employee's

Union before the Labour Conciliation Officer,

Puducherry in industrial disputes No.2766/11/LO(C)/AIL.

However, the petitioner can under no circumstances

be construed as a workman concerned in the dispute

within the meaning of section 33 in order to sustain

this petition. The features of the dispute raised by

the union and the features of the present dispute

raised by the petitioner in this petition are not

common. Hence, section-33(2)(b) of Industrial

Disputes Act is not applicable to this case. In the

above circumstance, this petition is frivolous, not

maintainable and deserves to be dismissed in limine.

4. On the side of the petitioner, PW1and PW2 were

examined and Ex.P1 to Ex.P7 were marked. On the side of

the respondent, RW.1 and RW.2 were examined and

Ex.R1 to Ex.R3 were marked

5. The point for consideration is:

Whether the industrial disputes can be allowed?

6. On this point:-

The contention of the petitioner is that she was

working as permanent employee in the respondent

company since 26-8-2009 and she was an active member

in SISCO Latex Thozhilalargal Sangam and the

respondent management sent a vague letter to her

dated 13-1-2012 for the alleged absent from 9-1-2012

to 13-1-2012 for five days, but she availed the medical

leave on 5-1-2012 and 6-1-2012 and the leave application

for the said period was sent to the respondent

management. The petitioner further contended that after

receiving the said letter, dated 13-1-2012, she went to

the respondent company to meet the Personnel Manager

and requested him to extend the leave for further one week,

but the said Personnel Manager shouted her by stating

that he will not give any leave to her and he terminated

her from service from today itself and then on 13-2-2012

the respondent sent a dismissal order to her.

7. In order to prove her case, the petitioner examined

himself as PW1. PW.1 has deposed before this court as

stated in her claim statement and marked Ex.P1 to Ex.P7.

8. Per contra, the contention of the respondent is

that the petitioner was on leave from 5-1-2012 without

informing the management and the petitioner submitted

the E.S.I. leave form only on 7-1-2012 that too for

two days i.e. on 5-1-2012 and 6-1-2012 and she stated on

7-1-2012 that she would join duty on 9-1-2012 and

though she was supposed to have reported for duty

at least on 9-1-2012, she failed to join on that date and

she never reported for duty after that and remained

absent and hence they issued a show cause notice

dated 13-1-2012 to the petitioner calling upon her to

submit her explanations for her unauthorised absence

from 9-1-2012 within two days from the date of receipt

of that notice and in pursuance of the said Show Cause

Notice, there was no response from the petitioner and

after having waited for ten days, on 24-1-2012 the

termination Order was sent to the petitioner with effect

from 24-1-2012 for her unauthorised absence from 9-1-2012.

RW.1 has marked the letter sent by them to E.S.I.

Corporation as Ex.R1 and the reply sent by the E.S.I.

Corporation to the respondent as Ex.R2. As per Ex.R2,

the petitioner has not submitted any medical-cum-leave

certificate after 9-1-2012 to their office.

9. There is no dispute the petitioner was an employee

under the respondent company and she has taken

medical leave on 5-1-2012 and 6-1-2012, as could be

seen from the copy of the fitness certificate issued by

the E.S.I. Corporation under Ex.P7 and the petitioner has

stated that she will join duty on 9-1-2012. A perusal of

Ex.P7 reveals that the petitioner was fit to join duty

on 7-1-2012. Ex.P1 is the show cause notice dated 13-1-2012

issued by the respondent to the petitioner. As per Ex.P1,

the petitioner has been given notice of show cause as

to why disciplinary action should not be taken against

her for the unauthorised absent from 9-1-2012.

10. According to PW.1, on receipt of the show cause

notice under Ex.P1, she went to the respondent

c o m p a n y a n d m e t t h e P e r s o n n e l M a n a g e r

Thiru Sakthivel and requested him for her extension of

medical leave for further one week, but the said

Sakthivel has not given the leave and stated that he

terminated her from service.

11. The learned counsel for the respondent that at no

point of time, the petitioner met the Personnel Manager

Thiru Sakthivel as stated by the petitioner and hence,

the contention of the petitioner that he shouted the

petitioner by using filthy language is falsehood. In

support of the said contention, the security officer of

the respondent company was examined as RW.2. RW.2

in his evidence has deposed that there is one main

519

4 June 2013]

LA GAZETTE DE L’ETAT

entrance which is used by all workers and visitors,

entering the factory premises of the respondent

company and on perusal of visitors note regarding

entries of the visitors/workers, it is seen that the

petitioner has not entered the factory premises from

1-1-2012 to 28-2-2012 and the relevant pages of the

visitors note has been marked as Ex.R3. A perusal of

Ex.R3 confirms the version of RW.2.

12. The respondent has set up his case that it is

admitted that the petitioner was an employee under them

and she availed medical leave on 5-1-2012 and 6-1-2012

and she stated to them on 7-1-2012 that she will join

duty on 9-1-2012 and though she was supposed to have

joined duty on 9-1-2012, she failed to join on that date

and her medical leave was not extended and no

certificate for such alleged extension was ever submitted

and since she has absented herself from 9-1-2012

without any notice or information or legal sanctioned

leave, it will be presumed that she has abandoned the

employment and subsequently they issued a show

cause notice dated 24-1-2012 calling upon her to submit

her explanation for her unauthorised absence from

9-1-2012. The learned counsel for the respondent would

point out Section 14 (3)(e) of Industrial Employment

(Standing Orders) Central Rules, 1946 and argued that

when an employee is habitual absence without leave or

absence without leave for more than ten days, it would

amount to misconduct and the disciplinary action can

be taken against the said employee for such

misconduct. The said section runs as follows:-

14. Disciplinary action for misconduct:

(1) ...

(2) ...

(3) The following acts and omissions shall be

treated as misconduct:

(a) ..

(b) ..

(d) ..

(e) habitual absence without leave or absence

without leave for more than 10 days.

13. At this juncture, it is pertinent to refer the

following decisions, which are relevant to this case:-

2002(4) L.L.N. 850:-

State of Uttar Pradesh Vs. 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 Vs. 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.”

14. In this case, though the respondent has sent a

show cause notice to the petitioner calling upon her

explanation for her unauthorised absence from 9-1-2012

failing which disciplinary proceedings would be initiated

against her. Admittedly, the respondent has not

conducted any enquiry before the termination of her

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 her to resume her

duty and also to issue the charge sheet for her

unauthorised absence and to hold an enquiry before

terminating her service on that ground. In the present

case, the respondent has done neither and it was for the

employer to prove that the workman had abandoned the

service by holding the domestic enquiry.

15. The learned counsel for the petitioner has

submitted 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:—

520

LA GAZETTE DE L’ETAT

[4 June 2013

“Industrial Dispute Act section 1947, S33(2)(b),

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

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

application under S.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.”

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

respondent has submitted that the petitioner is not a

member of the SISCO Latex Thozhilalargal Sangam and

the petitioner is no nexus connection with the disputes

which is pending before the conciliation officer and

hence no approval is required from the conciliation

officer, since the dispute raised before the conciliation

officer was different from the issue under which the

petitioner was dismissed. The learned counsel for the

respondent relied upon the following decisions to

support his claim:-

AIR 2002 SC 643:-

“The mere contravention of section 33 by the

employer will not entitle the workman to an order of

reinstatement because inquiry under section 33-A is

not confined only to the determination as to the

contravention of section 33, but even if such

contravention is proved, the Tribunal has to go

further and deal also with the merits of the order of

discharge or dismissal.”

AIR 1978 S.C 995:-

“The first issue which is required to be decided in

a complaint filed by an aggrieved workman under

section 33A is whether order of discharge or

dismissal made by the employer is in contravention

of section 33, The foundation of the complaint under

section 33A is contravention of section 33 and if the

workman is unable to show that the employer has

contravened section 33 in making the order of

discharge or dismissal, the complaint would be liable

to be rejected. But if the contravention of section 33

is established, the next question would be whether

the order of discharge or dismissal passed by the

employer is justified on merits.

17. On the side of the petitioner, one Sundaramoorthy was

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

he was the General Secretary of labour union and the

petitioner was the active member of his union and at the

time of termination of the petitioner i.e. on 24-1-2012, there

was a conciliation pending before the conciliation officer

with regard to the wage revision of the employees of the

respondent company and he has marked the charter of

demands as Ex.P5 and the enquiry call letter sent by

conciliation officer to the SISCO Latex Thozilalargal Sangam

as Ex,P6. A perusal of Ex.P5 reveals that the said union has

sent a letter to the conciliation officer intimating one day

strike for the demands of wage revision and service

conditions of the employees of their union. As per Ex.P6,

the notice of enquiry was sent to the respondent company

and to the union with regard to the charter of demand. The

respondent themselves have admitted that there was a

conciliation in I.D. No.2766/2011/LOC/AIL pending before

the conciliation officer, but they stated that the said

conciliation is a general dispute and not raised by the

petitioner. Admittedly, the said conciliation was pending

before the conciliation officer with regard to the wage

revision of the employees of the respondent. When PW.2

has categorically stated that the petitioner was an active

member in their union and the another conciliation was

pending before the conciliation officer with regard to the

wage revision of the employees of the respondent company

at the time of termination of the petitioner, the said

conciliation is also covered with the petitioner, who was

the employee of the respondent company. In the above

circumstance, the respondent has acted against the above

said proviso. Therefore, the dismissal order passed by the

respondent management is inoperative one. In the above

circumstances, the termination of the petitioner is bad

in law and the same is liable to be set aside and

consequently, the petitioner is entitled for reinstatement

with continuity of service and with full back wages and

other attendant benefits. Accordingly, this point is

answered.

18. In the result the industrial dispute is allowed with

costs and the respondent is directed to reinstate the

petitioner into service with continuity of service and with

full back wages and other attendant benefits.

Typed to my dictation, corrected and pronounced by

me in the open court on this the 31st day of January 2013.

T. MOHANDASS,

Presiding Officer, Labour Court,

Puducherry.

————

List of petitioner’s witnesses :

PW.1 — 10-10-2012 S. Gomathi

PW.2 —

2-11-2012 Sundaramoorthy

List of petitioner’s exhibits :

Ex.P1 —

Show cause notice issued to the petitioner,

dated 13-1-2012.

Ex.P2 —

Termination order, dated 24-1-2012 send to

the petitioner.

Ex.P3 —

Dispute raised by the union before the

conciliation officer.

Ex.P4 —

Copy of the notice enquiry, dated 26-3-2012

Ex.P5 —

Dispute raised by the union before the

conciliation officer, dated 13-12-2011.

Ex.P6 —

Copy of the notice enquiry, dated 29-12-2011

Ex.P7 —

Copy of the E.S.I. certificate of the

petitioner.

521

4 June 2013]

LA GAZETTE DE L’ETAT

List of respondent’s witnesses :

RW.1 —

17-11-2012 — Sakthivel, Personnel

M a n a g e r o f t h e

respondent company.

RW.2 —

7-12-2012 Ranganathan

List of respondent’s exhibits :

Ex.R1 —

Copy of the letter, dated 25-3-2012 sent to

the E.S.I. Corporation.

Ex.R2 —

Letter, dated 27-3-2012 sent to the

respondent company.

Ex.R3 —

Copy of the visitors register

T. MOHANDASS,

Presiding Officer, Labour Court,

Puducherry.

————

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 72/Lab./AIL/J/2013, dated 17th May 2013)

NOTIFICATION

Whereas, an award in I.D. No. 2/2012, dated 30-11-2012

of the Labour Court, Puducherry in respect of the

industrial dispute between the Managing Director,

M/s. Hindustan Unilever Limited, Detergent Factory,

Puducherry and its workman Thiru R. Azhagappan 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. 20/9/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. 2/2012

R. Azhagappan

. . Petitioner

Versus

The General Manager,

Hindustan Unilever Limited,

Detergent Factory, Puducherry-605 102 . . Respondent

This industrial dispute coming on 26-11-2012 for final

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

R. I. 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 2 A of

the 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 8-4-1996

and he was an active member in the Hindustan

Unilever Employees Union.

The respondent management raised a false

complaint against the petitioner that he has taken

leave without approval from the management from

1-3-2008 to 30-6-2008 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 on 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 their union was

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 dispute 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 8-4-1996. The petitioner was a

chronic absentee taking leave without authorisation.

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[4 June 2013

The petitioner continued to be erratic in his

attendance and remained unauthorisedly absent on

various dates from March 2008. When the petitioner

did not turn up for employment, the respondent

issued a detailed charge sheet, which was not

received 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 July 2008.

The Enquiry Officer submitted his detailed report on

26-10-2008 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 23-6-2009. 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

dispute.

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

examined and Exs.P1 to Ex.P12 were marked. On the side

of the respondent, RW.1 was examined and Exs.R1 to

Ex.R22 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

8-4-1996 and the respondent raised a false allegation

against him that from 1-3-2008 to 30-6-2008 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 a 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., 70 days from January 2003 to 15-5-2003,

333.5 days from January 2003 to 18-2-2004, from

23-9-2004 to 10-10-2004, 107.5 days from 1-5-2006 to

30-11-2006, 81 days from 18-2-2007 to 22-6-2007, from

27-11-2007 to 28-2-2008, January 2008 to December 2008

and 103 days from March 2008 to June 2008 and hence

they issued a detailed charge sheet, which was not

received by him and then the enquiry was conducted

and in the enquiry proceedings, though the petitioner

initially denied the charges, during the course of

enquiry, he categorically admitted the fact that he had

remained unauthorisedly absent and based on the

report of the Enquiry Officer, he was dismissed from

service. In order to prove his contention, the H.R.

Executive was examined as RW.1.

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

copy of the letter, dated 9-10-2002 issued to the

petitioner by the respondent as Ex.R2. A perusal of

Ex.R2, dated 9-10-2002 reveals that the petitioner has

been issued a letter for unauthorised absent from

12-9-2002 till issue of the said letter and directed to

submit his explanation for the same. Ex.R3 is the

explanation given by the petitioner admitting about the

said unauthorised absent due to stomach problem. Ex.R4

is the copy of the caution letter issued to the petitioner

for the said unauthorised absent and directed him not

to take any such leave in future. Ex.R5 is the copy of

the caution and wise counsel letter for unauthorised

absent from 10-1-2003 till 3-2-2003. Ex.R6 is the copy of

the charge sheet for the unauthorised absent for 21 days

in January 2003, 12 days in February 2003, 25 days in

April 2003 and 12 days up to 15th May 2003. Ex.R7 is

the copy of the letter sent by the father of the petitioner

and Ex.R8 is the copy of the letter sent by the brother

of the petitioner, stating that since his son (petitioner)

was mentally affected and since he took treatment with

the doctor, he could not report for duty and prayed the

respondent management not to report for duty and also

not to appear for the enquiry proceedings. Ex.R9 is the

copy of the charge sheet for unauthorised absent for

333.5 days from January 2003 to 18-2-2004. Ex.R10 is the

copy of the warning letter issued to the petitioner for

his unauthorised absent from 23-9-2004 to 10-10-2004.

Ex.R11 is the copy of the punishment order, as per

which, the petitioner was suspended for six days from

4-4-2005 to 9-4-2005. Ex.R12 is the copy of the charge

sheet for unauthorised absent of the petitioner for 107.5

days from May 2006 to 30-11-2006. Ex.R13 is the copy

of the charge sheet for unauthorised absent for 81 days

from 18-2-2007 to 22-6-2007. Ex.R14 is the copy of the

punishment order, dated 17-7-2007, suspending the

petitioner for two days on 25-7-2007 and 26-7-2007.

Ex.R15 is the copy of the warning letter sent to the

petitioner directing him to report for duty, as he has not

reported for duty in any of the day during the year 2008.

Ex.R16 is the copy of the apology letter sent by the

petitioner admitting his unauthorised absent from

27-11-2007 to 28-2-2008. All the above documents have

523

4 June 2013]

LA GAZETTE DE L’ETAT

been marked on the side of the respondent on objection.

Apart from the above, RW.1 has marked the

computerised statement of overall percentage of

authorised and unauthorised absenteeism from January

2007 to September 2012 as Ex.R21 and the copy of the

attendance record for the period from January 2007 to

February 2008 as Ex.R22. A perusal of Ex.R21 reveals that

the percentage of both authorised and unauthorised

absenteeism as on December 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.P1 is the receipt issued by the

union and Ex.P7 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.P10 and since he has

not taken any steps, the union filed a writ petition

before the Hon'ble High Court, Madras and Ex.P11 is

the copy of the judgment given by the Hon'ble High

Court, Madras. A perusal of Ex.P11 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.P11 has given

direction to the petitioner's union to approach

appropriate authority for their relief. The petitioner has

not filed any document to prove that his union

approached the concerned authority for their remedy or

preferred the appeal as against the judgment of the

Hon’ble

High

Court,

Madras.

the

above

circumstances, Ex.P11 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.R21 and Ex.R22 that the

petitioner has unauthorised absent as mentioned above.

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 taking sufficient time,

the respondent has finished the entire enquiry

proceedings and closed it and therefore with intention

and motivation, 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 requisites of 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.R17. On perusal of Ex.R17, it is seen

that the entire proceedings beginning with charge

sheeting the petitioner to issuing 2nd show cause

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[4 June 2013

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 he had remained

unauthorisedly absent, as stated in the charge-sheet

and he himself requested the enquiry officer to close

the enquiry after recording his admission. 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.R19 intimating the punishment of

dismissal and the petitioner gave his reply to the second

show cause notice, dated 23-6-2009 under Ex.R20 and

since his reply was found unsatisfactory, the dismissal

order 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.R19, the petitioner has sent

his explanation under Ex.R20 and in Ex.R20, 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.R20 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 need not see the other aspects. Hence,

there is nothing wrong in conducting the domestic

enquiry by the H.R. Executive of the respondent management.

In the above circumstances, I find that the enquiry

conducted by the respondent management is fair and

proper.

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 is no nexus connection with the disputes

which is pending before the conciliation Officer and the

industrial dispute was raised individual capacity of the

petitioner under section 2-A of Industrial Disputes Act.

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.P7. As per Ex.P7 the petitioner was a

member in Hindustan Unilever Employees’ Union from

6-3-2008. The petitioner as PW.1 has marked the receipt

issued by Hindustan Unilever Employees’ Union as

Ex.P1, dated 1-5-2009. On perusal of Ex.P1, it is seen

that the date ‘1-5-2009’ has been corrected manually.

21. The learned counsel for the respondent has

submitted that the receipt, dated 7-1-2011 issued in I.D.

No.3/2012 bears the receipt No.554, but the receipt,

dated 4-1-2011 issued in I.D. No. 5/2012 bears the receipt

number 597 and the genuine receipts can only be in

ascending order and not be in descending order from

525

4 June 2013]

LA GAZETTE DE L’ETAT

597 on 4-1-2001 to 554 on 7-1-2011 and a closer look at

those subscription slips issued by the said union to the

petitioner as well as the petitioners in I.D. No.3/2012

and I.D. No.5/2012 will expose the fabrication of those

receipts and will lead to an irresistible conclusion that

they have been forged.

22. On perusal of the receipt No.597 filed in

I.D. No. 5/2012, which was marked as Ex.P1 reveals that

originally the receipt was issued on 12-1-2011 and

subsequently, it has been changed as 4-1-2011 and if

the date was 12-1-2011, definitely the receipt can be in

ascending order i.e., receipt No. 554, dated 7-1-2011 (I.D.

No.3/2012) and the receipt No. 597, dated 12-1-2011. The

manual correction in Ex.P1 will not be in any way helpful

to the case of the petitioner, even PW.2, the President

of the Hindustan Unilever Employees’ Union himself

has appeared before this court and deposed that PW.1

was a member in their union, but PW.2 has failed to

explain properly about the said contradictions.

23. The learned counsel for the respondent has

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 certified

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.

24. It is true that the 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. Eventhough 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,

when the membership of the petitioner is challenged by

the respondent, it is the duty of the petitioner to

produce the above documents before this court. But the

petitioner has not taken any serious steps to produce

the abovesaid documents. In the above circumstances,

the oral evidence of PW.2 and the documentary

evidence of Ex.P1 and Ex.P7 is not in anyway helpful to

the case of the petitioner that he was the member in the

Hindustan Unilever Employees’ Union from 2008.

25. 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 2-A 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 Versus 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.L.L.J. 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."

26. 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.

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[4 June 2013

27. Further the learned counsel for the respondent

himself has admitted that there were two conciliation

proceedings pending at the time of termination of the

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.

28. 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 and Ex.P4. It is

already decided that the petitioner has not proved that

he is a member of Hindustan Lever Employees’ Union.

Hence, Ex.P3 and Ex.P4 would not support the case of

the petitioner. The learned counsel for the respondent

has not challenged the documents under Ex.P3 and

Ex.P4. 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.

29. The learned counsel for the respondent

submitted that the issue of chronic absenteeism has

become a very serious issue in the respondent's factor,

crippling its production and productivity and disturbing

its work schedules and manpower 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 S.C. 1194:

Union of India Vs. Others Versus 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

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-L.LJ-55 (Madras) :

O. Krishnan Vs. Management of Dheeran

Chinnamalai Transport Corporation:

“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 pevious

occasions also the petitioner had remained

527

4 June 2013]

LA GAZETTE DE L’ETAT

unauthorisedly absent. The disciplinary authority

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 stated one in the face in the

facts of the present case.”.

30. 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 8-4-1996 and he was chronic absentee from

January 2002 only. Prior to 2002, there was no remarks

or misconduct by the petitioner. Of course the history

sheet of the workman shows that the period of absence

from 2002 to 2008 are very much long period of absence,

which cannot be considered leniently. About nine spell

of unauthorised leave taken by the petitioner were

admitted by the petitioner, which were also warned in

time and he was also suspended once on 29-3-2005.

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 monetary compensation 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.

32. 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 the 30th day of November 2012.

T. MOHANDASS,

Presiding Officer, Labour Court,

Puducherry.

————

List of witnesses examined for the petitioner :

PW.1 — 28-9-2012 —

R. Azhagappan

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

— Receipt for admission in the union,

dated 1-5-2009.

Ex.P2

— Copy of the punishment order,

dated 11- 7-2009.

Ex.P3

— Copy of notice sent by the conciliation

officer, dated 10-12-2008.

Ex.P4 — Copy of the notice sent by the conciliation

officer, dated 14-7-2009.

Ex.P5

— Dispute raised by the petitioner before

the conciliation officer, dated 8-11-2011.

Ex.P6

— Copy of the notice of enquiry sent to

the respondent, dated 6-12-2011.

Ex.P7

— Copy of the admission application for

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

Ex.P8

— Copy of the letter, dated 13-7-2009 sent

by the petitioner to respondent.

Ex.P9

— Copy of the conditions of service for

change, dated 21-10-2010.

Ex.P10 — Copy of the letter, dated 20-2-2009 sent

by the petitioner to the Inspector of

Factories.

Ex.P11 — Copy of the judgment of Hon'ble High

Court, dated 8-6-2010.

Ex.P12 — Copy of the letter, dated 13-5-2008 sent

to the respondent by union.

528

LA GAZETTE DE L’ETAT

[4 June 2013

List of exhibits marked for the respondent :

Ex.R1

— Authorisation letter, dated 24-10-2012

Ex.R2

— Copy of the show cause notice to

petitioner, dated 9-10-2002.

Ex.R3

— Copy of the apology letter given by the

petitioner, dated 12-10-2002.

Ex.R4

— Copy of the caution letter sent by the

respondent, dated 15-10-2002.

Ex.R5

— Copy of the show cause notice sent to

the petitioner, dated 3-2-2003.

Ex.R6

— Copy of the charge sheet issued to the

petitioner, dated 15-5-2003.

Ex.R7

— Copy of the letter given by the

petitioner’s father, dated 26-6-2003.

Ex.R8

— Copy of the letter given by petitioner’s

brother to Enquiry Officer, dated 8-1-2004.

Ex.R9

— Copy of the charge sheet, dated 25-2-2004

Ex.R10 — Copy of the warning letter given to the

petitioner, dated 24-11-2004.

Ex.R11 — Copy of the punishment order,

dated 29-3-2005.

Ex.R12 — Copy of the charge sheet given to the

petitioner, dated 1-12-2006.

Ex.R13 — Copy of the charge sheet given to the

petitioner, dated 23-6-2007.

Ex.R14 — Copy of the punishment order,

dated 17-7-2007.

Ex.R15 — Copy of the advise letter given to the

petitioner.

Ex.R16 — Copy of the letter given by the

petitioner admitting the charges,

dated 29-2-2008.

Ex.R17 — Copy of the enquiry proceedings

Ex.R18 — Copy of the domestic enquiry in Tamil,

dated 26-10-2008.

Ex.R19 — Copy of the second show cause notice,

dated 1-6-2009.

Ex.R20 — Copy of the reply given by the

petitioner, dated 23-6-2009.

Ex.R21 — Computerised statement of percentage

authorised

and

unauthorised

absenteeism.

Ex.R22 — Copy of the extract of computerised

muster roll from January 2007 to July 2009.

T. MOHANDASS,

Presiding Officer, Labour Court,

Puducherry.

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 73/Lab./AIL/J/2013, dated 17th May 2013)

NOTIFICATION

Whereas, an award in I.D. No. 3/2012, dated 30-11-2012

of the Labour Court, Puducherry in respect of the

industrial dispute between the Managing Director,

M/s. Hindustan Unilever Limited, Detergent Factory,

Puducherry and its workman Thiru N. Krishnan, over

his 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.

Friday, the 30th day of November 2012.

I.D. No. 3/2012

N. Krishnan

. . Petitioner

Vs.

The Managing Director,

Hindustan Unilever Limited,

Detergent Factory,

Puducherry-605 102.

. . 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

529

4 June 2013]

LA GAZETTE DE L’ETAT

dispute is filed by the petitioner before this court

under section 2-A 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 25-9-1997

and he was a member in the Hindustan Unilever

Employees Union.

The respondent raised a false allegation against

the petitioner that from 1-3-2009 to 18-2-2010 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 17-3-2011. 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 their union

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

dispute 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

his

attendance

and

remained

unauthorisedly absent on various dates from the

year 1999 onwards frequently and continued to be

erratic

his

attendance

and

remained

unauthorisedly absent on various dates from

March 2009. When the petitioner did not turn up

for employment till 18-2-2010, the respondent

issued a detailed charge sheet on 19-2-2010, which

was received by the petitioner, but he failed to

submit any reply. Then the enquiry was conducted

and in the enquiry proceedings, the petitioner

categorically admitted the fact that he had

remained unauthorisedly absent from March 2009

to 18-2-2010. The enquiry officer submitted his

detailed report on 19-7-2010 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

11-1-2011, which was received by him, but he did

not give any reply for the second show cause

notice. Hence, the respondent terminated the

petitioner vide order dated 17-3-2011, which was

received by the petitioner. 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 industiral

dispute.

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

were examined and Ex.P1 to Ex.P11 were marked. On

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

Ex.R1 to Ex.R9 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

25-9-1997 and the respondent raised a false allegation

against him that from 1-3-2009 to 18-2-2010 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. 101.5 days in 1999, 149 days

in 2000, 68.5 days from January 2001 to May 2001,

93 days from June 2001 to December 2001, 169.5 days

in 2002, 151 days in 2003, 159.5 days from January 2004

530

LA GAZETTE DE L’ETAT

[4 June 2013

to December 2004, 117.5 days from January 2005 to

August 2005, from 26-9-2005 to 24-10-2005, 203.5 days

from January 2006 to December 2006, 53.5 days from

January 2006 to December 2006, 245.5 days from

January 2007 to March 2008, 206.5 days from January

2008 to December 2008 and hence they issued a

detailed charge sheet, which was received by him, but

he failed to reply for the same and then the enquiry

was conducted and in the enquiry proceedings, the

petitioner categorically admitted the fact that he had

remained unauthorisedly absent from March 2009 to

18-2-2010 and based on the report of the enquiry

officer he was dismissed from service. In order to

prove his contention, the H.R 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 March 2011 as Ex.R7 and the

computerised statement of overall percentage of

authorised and unauthorised absenteeism from

January 2007 to Septmber 2012 as Ex.R8. A perusal of

Ex.R8 reveals that the percentage of both authorised

and unauthorised absenteeism as on December 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.P7 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.P10 and since he has not taken any steps,

the union filed a writ petition before the Hon'ble High

Court, Madras and Ex.P11 is the copy of the Judgment

given by the Hon’ble High Court, Madras. A perusal

of Ex.P11 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 111-A 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 11-A (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.P11 has

given direction to the petitioner's union to approach

appropriate authority for their relief. The petitioner

has not filed any document to prove that his union

approached the concerned authority for their remedy

or preferred the appeal as against the judgment of the

Hon'ble High Court, Madras. In the above

circumstances, Ex.P11 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.R7 and Ex.R8 that

the petitioner has unauthorised absent as stated

above.

11. The contention of the learned counsel for the

petitioner is that the petitioner has been working

under the respondent company for the past 13 years,

but in the enquiry proceedings, without taking

sufficient time, the respondent has finished the entire

enquiry proceedings and closed it and therefore with

531

4 June 2013]

LA GAZETTE DE L’ETAT

intention and motivation, 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 petitioner 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 requisites

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.R4. On perusal of Ex.R4, it is seen

that the entire proceedings beginning with charge sheeting

the petitioner to issuing 2nd show cause notice to

the 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 he requested the

enquiry officer to close the enquiry. 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.R6 intimating the

punishment of dismissal and since the petitioner did

not submit any reply, the dismissal order under Ex.R9

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, 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. 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

informed nor appointed 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 need not see the other

aspects. Hence, there is nothing wrong in conducting

the domestic enquiry by the H.R. Executive of the

respondent management. In the above circumstances,

I find that the enquiry conducted by the respondent

management is fair and proper.

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, S33(2)(b), Proviso

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

under section 33(2)(b) or failure to make

application under S33(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 is no nexus connection with the

disputes which is pending before the conciliation

officer and the industiral dispute was raised individual

capacity of the petitioner under section 2-A of Industiral

Disputes Act.

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.P7. As per Ex.P7 the

petitioner was a member in Hindustan Unilever

Employees Union from 6-3-2008. The petitioner as

PW.1 has marked the receipt issued by Hindustan

Unilever Employees Union as Ex.P1, dated 7-1-2011.

On perusal of Ex.P1, it is seen that the original date

has been strike off and corrected as 7-1-2011

manually.

532

LA GAZETTE DE L’ETAT

[4 June 2013

21. The learned counsel for the respondent has

submitted that the receipt dated 7-1-2011 issued in

this case bears the receipt No. 554, but the receipt

dated 4-1-2011 issued in I.D. No. 5/2011 bears the

receipt number 597 and the genuine receipts can only

be in ascending order and not be in descending order

from 597 on 4-1-2001 to 554 on 7-1-2011.

22. On perusal of Ex.P1 reveals that originally the

receipt was issued on 12-1-2011 and subsequently, it

has been changed as 7-1-2011 and if the date was

12-1-2011, indefinitely the receipt can be in ascending

order i.e. receipt No.554 dated 12-1-2011 (in this case)

and the receipt No.597 dated 12-1-2011. The manual

correction in Ex.P1 will not be in any way helpful to

the case of the petitioner, even PW2, the President

of the Hindustan Unilever Employees Union himself

has appeared before this court and deposed that PW.1

was a member in their union and PW.2 also failed to

explain properly the above contradictions.

23. The learned counsel for the respondent has

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

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.

24. It is true that the 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. Eventhough, 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, when the membership

of the petitioner is challenged by the respondent, it

is the duty of the petitioner to produce the above

documents before this court. But the petitioner has

not taken any serious steps to produce the above

said documents. In the above circumstances, the oral

evidence of PW.2 and the documentary evidence of

Ex.P1 and Ex.P7 is not in anyway helpful to the case

of the petitioner that he was the member in the

Hindustan Unilever Employees Union from 2008.

25. 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 2-A 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, S 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 S33(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 S33(2) automatically led to, the

conclusion that the respondent was the workman

concerned and could, therefore, claim the

protection of S33(2).”.

1992 ILLJ 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.”.

533

4 June 2013]

LA GAZETTE DE L’ETAT

26. 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 Dispute 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.

27. Further the learned counsel for the respondent

himself has admitted that there were two conciliation

proceedings pending at the time of termination of the

petitioner, but his only defence is that the dispute

raised in the previous conciliation proceedings by the

union had absolutely no nexus or connection with

the petitioner.

28. In this regard, the learned counsel for the

petitioner has submitted that the 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/LO(C)/AIL. and

the another dispute was raised for declaration of paid

holidays in violation of 12(3) settlement in I.D.

No.2563/2010/LO(C)/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 and

Ex.P4. It is already decided that the petitioner has not

proved that he is a member of Hindustan Lever

Employees Union. Hence, Ex.P3 and Ex.P4 would not

support the case of the petitioner. The learned

counsel for the respondent has not challenged the

documents under Ex.P3 and Ex.P4. 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 declaration of paid holidays pertaining to the

respondent management, this court has to see whether

the approval under section 33(2)(b) 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.

29. 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 manpower

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

534

LA GAZETTE DE L’ETAT

[4 June 2013

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 Corporation :

“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 pevious

occasions also the petitioner had remained

unauthorisedly absent. The disciplinary authority

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 paralyze 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.”.

30. 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 1999 only. Prior to 1999, there was no remarks

or misconduct by the petitioner. Of course the history

sheet of the workman shows that the period of

absence from 1999 to 2009 are very much long period

of absence, which cannot be considered leniently.

More than ten spells of unauthorised leave taken by

the petitioner were admitted by the petitioner, which

were also warned in time and he was also suspended

for five times. 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

monetary compensation 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.

31. 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 the 30th day of

November, 2012.

T. MOHANDASS,

Presiding Officer, Labour Court,

Puducherry.

————

List of witnesses examined for the petitioner :

PW.1 — 28-9-2012 —

N. Krishnan

PW.2 — 12-10-2012 — Ezhumalai

List of witness examined for the respondent :

RW.1 — 25-10-2012 — Arokia Berdila Anand

List of exhibits marked for the petitioner :

Ex.P1 — Receipt for admission in the union,

dated 4-1-2011.

Ex.P2

— Copy of the dismissal order, dated

17-3-2011.

Ex.P3

— Copy

notice

sent

the

Conciliation Officer, dated 14 -7-2009.

Ex.P4

— Copy of the notice sent by the

Cociliation Officer, dated 2-1-2010.

Ex.P5

— Dispute raised by the petitioner

before the Conciliation Officer, dated

8-11-2011.

535

4 June 2013]

LA GAZETTE DE L’ETAT

Ex.P6

— Copy

enquiry

sent

the

respondent, dated 6-12-2011.

Ex.P7

— Copy of the admission application for

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

Ex.P8

— Copy of the letter dated 13-5-2008

sent to the Inspector of Factories.

Ex.P9

— Copy of the conditions of service for

change, dated 21-10-2010.

Ex.P10 — Copy of the letter sent to the Inspector

of Factories, dated 20-2-2008 by the

union.

Ex.P11 — Copy of the judgment of Hon’ble

High Court, dated 8-6-2010.

List of exhibits marked for the respondent :

Ex.R1

— Copy of the charge sheet, dated

19-2-2010

Ex.R2

— Copy of the enquiry proceedings

marked through PW.1 in cross

Ex.R3

— Authorisation letter, dated 24-10-2012

Ex.R4 —

Copy of the domestic enquiry

proceedings

Ex.R5

— Copy of the enquiry report, dated

19-7-2010

Ex.R6 — Copy of the second show cause

notice to petitioner, dated 1-1-2011.

Ex.R7

— Copy of the extract of computerised

muster roll.

Ex.R8

— Computerised statement of overall

percentage

authorised

and

unauthorised absenteeism.

Ex.R9

— Copy of the punishment order,

dated 31-10-2006.

T. MOHANDASS,

Presiding Officer, Labour Court,

Puducherry.

GOVERNMENT OF PUDUCHERRY

CHIEF SECRETARIAT (WORKS)

(G.O. Ms. No. 17, dated 21st May 2013)

NOTIFICATION

On attaining the age of superannuation,

Thiru D. Sundaram, Assistant Engineer, Public Health

Division, Public Works Department, Puducherry is

admitted into retirement with effect from the

afternoon of 31-5-2013.

(By order)

N. SUMATHI,

Joint Secretary to Government (Works).

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 74/Lab./AIL/J/2013, dated 22nd May 2013)

NOTIFICATION

On the recommendations of the High Court of

Judicature at Madras and in exercise of the powers

conferred by sub-sections (1) and (2) of section 7A

and by sub-section (2) of section 7 of the Industrial

Disputes Act, 1947 (Central Act 14 of 1947) read with

rule 5 of the Industrial Disputes (Central) Rules, 1957

and in supersession of the notifications issued in G.O.

Ms. No. 9/AIL/Lab./J/2012, dated 10th August 2012 of

the Labour Department, Government of Puducherry and

published in the Official Gazette No. 35, dated

28th August 2012 and G.O. Ms. No. 6/AIL/Lab./

J/2012, dated 23rd January 2013 of the Labour

Department, Government of Puducherry and all other

notifications issued in this behalf, save as respects

things done or omitted to be done before such

supersession, the Lieutenant-Governor, Puducherry has

been pleased to appoint Thiru T. Mohandass, Presiding

Officer of the Labour Court, Puducherry as the Presiding

Officer of the Industrial Tribunal-cum- Labour Court

for the whole of the Union territory of Puducherry for

the purposes of the said Act, with immediate effect.

2. This notification shall come into force with effect

from the date of publication in the official gazette,

Puducherry.

(By order of the Lieutenant-Governor)

S. THAMMU GANAPATHY,

Under Secretary to Government (Labour).

————

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 75/Lab./AIL/J/2013, dated 22nd May 2013)

NOTIFICATION

In exercise of the powers conferred by sub-sections (1)

and (2) of section 7A and by sub-section (1) of section 7

of the Industrial Disputes Act, 1947 (Central Act 14

of 1947) read with rule 5 of the Industrial Disputes

(Central) Rules, 1957 and in supersession of the

notifications issued in G.O. Ms. No. 24/AIL/Lab./J/2011,

dated 16th November 2011 of the Labour Department,

Government of Puducherry and published in the Official

Gazette No. 48, dated 29th November 2011 and

G.O. Ms. No. 6/AIL/Lab./J/2012, dated 23-1-2013 of

the Labour Department, Government of Puducherry and

all other notifications issued in this behalf, save as

respect things done or omitted to be done before such

supersession, the Lieutenant-Governor, Puducherry has

been pleased to reconstitute and redesignate the Labour