544
LA GAZETTE DE L’ETAT
[11 June 2013
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 76/Lab./AIL/J/2013, dated 22nd May 2013)
NOTIFICATION
Whereas, an award in I.D.No. 45/2012, dated 29-11-2012
of the Labour Court Puducherry in respect of the industrial
dispute between the Vinayaga Mission Medical College and
Hospital, Karaikal and its workman Thiru A. Alex Britto,
over non-employment has been received;
Now, therefore, in exercise of the powers conferred by
sub-section (1) of section 17 of the Industrial Disputes
Act, 1947 (Central Act XIV of 1947) read with the notification
issued in Labour Department's G.O. Ms.No. 20/91/Lab./L,
dated 23-5-91, 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 29th day of November 2012.
I.D. No. 45/2012
A. Alex Britto
. .
Petitioner
Versus
The Management,
Vinayaga Mission Medical College and Hospital,
Keezhakasakudymedu,
Karaikal
. . Respondent
This industrial dispute coming on 28-11-2012 for final
hearing before me in the presence of Thiru. P. Muthukrishnan,
Advocate for the petitioner, Thiru R. Ilanchezhian, Advocate
for the respondent, upon hearing both sides, upon perusing
the case records, after having stood over for consideration
till this day, this Court passed the following:
AWARD
This industrial dispute arises out of the reference made
by the Government of Puducherry, vide G.O. Rt. No. 69/AIL/
Lab./J/2009, dated 14-5-2009 of the Labour Department,
Puducherry to resolve the following dispute between the
petitioner and the respondent, viz.,
(1) Whether the dispute raised by Thiru A. Alex Britto
against the management of M/s. Vinayaga Mission
Medical College and Hospital, Keezhakasakudymedu,
Karaikal, over non-employment is justified or not?
(2) If justified, what relief the petitioner is entitled to?
(3) To compute the relief, if any, awarded in terms of
money, if it can be so computed?
2. The petitioner, in his claim statement, has averred as
follows:
The petitioner was appointed as Watchman in the
respondent management on 22-11-1999 on consolidated
basis and his services were regularised on 5-6-2002.
He was discharging his duty to the satisfaction of the
respondent management. On 8-8-2005 he was orally
informed that he was transferred to the respondent
hospital from Stores Department and there is no
written order given to him. When he demanded the written
order, the respondent management refused to issue the
same. Hence, he did not report for duty to the transferred
place. In the attendance register, absent mark was made
in red ink against his name and he was not permitted to
sign in the attendance register. The petitioner approached
the Vice-Principal and on giving permission by him, the
petitioner was permitted to sign in the attendance register.
In the above circumstances, in the transferred place, the
absent mark was made against his name in the attendance
register. Then on 20-8-2008 the petitioner was issued with
a show cause notice stating that he refused to receive
the transfer order and he did not report for duty in the
transferred place. The petitioner sent a reply for the said
show cause notice. Not satisfying with the reply given
by the petitioner, he was suspended by the respondent
management. Then the Enquiry Officer was appointed.
But without conducting the enquiry, the respondent
management sent a show cause notice stating that the
enquiry was completed on 3-7-2008 and asked for his
explanation. Without accepting the explanation given by
the petitioner, he was terminated from service on 17-11-
2008. Hence, he raised a dispute before the Conciliation
Officer and since the conciliation ended in failure, the
dispute was referred to this court.
3. In the counter statement, the respondent has stated
as follows:
On 8-8-2005 the petitioner was transferred to the
hospital of the respondent, which is situated in the same
complex. But the petitioner refused to receive the said
transfer order. But the petitioner went to the transferred
place and signed in the attendance register without
working. When the employees of the respondent asked
for the same, the petitioner scolded them and also
threatened them with the help of outsiders. Hence a show
cause notice was issued to the petitioner and the enquiry
was conducted. But the petitioner criticised the Enquiry
545
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LA GAZETTE DE L’ETAT
Officer and the employees of the respondent management.
Even after giving sufficient opportunity to the petitioner,
he has not utilised the same and dragged on the enquiry
proceedings. Under these circumstances, the petitioner
was terminated from service on 17-11-2008. Hence, they
pray for dismissal of the industrial dispute.
4. On the side of the petitioner, PW.1 was examined and
Ex.P1 to Ex.P21 were marked. On the side of the respondent,
RW.1 was examined and Ex.R1 to Ex.R43 were marked.
5. The point for determination is:
Whether the industrial dispute can be allowed?
6. On the point:
The contention of the petitioner is that he was working
as Watchman in the respondent hospital and on 8-8-2005 he
was orally informed that he was transferred to the respondent
hospital from Stores Department and there is no written order
given to him and when he demanded the written order, the
respondent management refused to issue the same and
hence, he did not report for duty to the transferred place. In
order to prove his claim, the petitioner examined himself as
PW.1 and marked Ex.P1 to Ex.P21.
7. Per contra, the contention of the respondent is that
on 8-8-2005 the petitioner was transferred to the hospital of
the respondent, which is situated in the same complex, but
the petitioner refused to receive the said transfer order and
apart from the petitioner, six other employees have been
transferred in the said transfer order.
8. In order to prove his claim, though there is no oral
evidence adduced, the respondent has marked the copy of
the Transfer Order as Ex.R7. As per Ex.R7, the petitioner has
been transferred to the hospital of the respondent and six
other employees have also been transferred to the various
places of the respondent unit. Further it has been mentioned
in Ex.R7 that the petitioner has refused to receive the order.
Hence, the respondent has proved that they have issued a
transfer order to the petitioner, which was refused by him.
In the above circumstances, the contention of the petitioner
is that since he has not been issued with the transfer order,
he did not report duty to the transferred place cannot be
accepted.
9. The learned counsel for the respondent would submit
that the petitioner has failed to follow the instructions as per
the display made in the notice-board about his transfer
issued to him and he not only disobeyed the office
instructions, but continued to sign in the attendance register
against his name, where his absence in duty was marked in
red ink by the supervisory authorities of the checking of the
attendance marking by various staff of respondent hospital.
10. On perusal of records, it is seen that the petitioner
has deliberately refused to receive and acknowledge his
transfer order issued to him and he started to address the
administration asking clarifications on the text of the letters
addressed to him obstructing to attend enquiry and the
related procedures of disciplinary enquiry. Inspite of his
delayed tactics to assist the process of enquiry, he submitted
that he was not disobedient by his act of refusal of his
transfer orders issued to him.
11. The transfer order to the petitioner was issued in
August 2005. The petitioner has replied in one reply that his
transfer order notified in the notice-board could not be seen,
since the notice-board was destroyed by the tsunami floods.
In this regard, the learned counsel for the respondent has
submitted that the tsunami affecting the buildings occurred
in December 2004 and by August 2005 the notice-board was
re-erected and the transfer order was also communicated in
the notice-board. This version of learned counsel for the
respondent has not been denied by the petitioner. The
petitioner in his evidence has stated that as a Watchman, he
need not look into the notice-board, which cannot be
accepted, since the notice-board is fixed in each and every
office and factory premises in order to communicate the
day-to-day affairs to the workers/ staff. Hence, the said
statement of the petitioner would show his old behaviour
and the abuse of his position towards the management
instructions. Hence, the statement of the petitioner that the
respondent has not issued the original orders of transfer
order for the compliance is untrue. Further nowadays in all
the companies, the computer is set up and the original copies
of any office instructions prepared as a computer print out
and is generated into number of copies by photocopy only.
Hence, the petitioner cannot say that since the original
transfer order has not been issued to him, he refused to
receive the copy of the order. Hence, the action of refusal to
receive the transfer order by the petitioner not only shows
the disobedience, but also the insubordinate behaviour of
the petitioner towards the superior cadre of staff of the
respondent institution.
12. The learned counsel for the respondent has also
submitted that the petitioner has put his initials in the
attendance register, when the column against his name and
the date(s) during which he was unauthorised absent and
the same was marked with ‘red ink’ thereby forging the
official records of the administrative matter and thereby
attempt made for aiming of wages for the unauthorised days
of duty and absence.
13. In this regard, the petitioner has stated in his evidence
that the Vice-Principal of the respondent institution has orally
instructed to sign in the attendance register inspite of the
red marking already recorded for the unauthorised absence
from duty by him. He also deposed that with the permission
of the Vice-Principal given orally to him only, he has signed
in the attendance register. But the said Vice-Principal during
the enquiry has stated that no such oral instructions were
given as alleged by the petitioner. Further the learned
counsel for the respondent has submitted that the statement
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[11 June 2013
of the office staff in-charge of the attendance supervision
and maintenance by name M. Usharani dated 8-6-2005 shows
that she had marked ‘A’ of the petitioner, who was an
unauthorised absence in duty. Hence, it is the duty of the
petitioner to prove that the said Vice-Principal has given
permission to sign in the attendance register. Mere oral
evidence is not in any way helpful to his defence.
14. The learned counsel for the respondent has submitted
that in a letter addressed by some of the office staff namely
Santosh Kumar and Ramesh dated 1-10-2005 and addressed
to Dean of the respondent institution, all have submitted
about the indirect remarks of threatening nature passed
by the petitioner. He further submitted that in a letter dated
17-8-2005 the office establishment staff have submitted that
signing was identified over the already marked ‘A’ in red ink
and asked for the same why he has signed on the already
marked attendance and the petitioner threatened the staff of
undue consequences. But the said persons have not been
examined as witnesses during the course of enquiry. In fact
the enquiry has not been conducted in a fair and proper
manner.
15. A perusal of records would reveal that one
Soundarapandian was appointed as Enquiry Officer and the
date of enquiry was fixed on 15-6-2006. On 15-6-2006 the
petitioner participated in the enquiry and gave his answer
for the charges framed against him and the same were
recorded. Then the office order dated 7-8-2006 was issued
to the petitioner appointing one Dr. Rajaram as Enquiry
Officer. But there is no record filed by the respondent to
prove that the said Rajaram continued the enquiry and gave
his findings. The respondent then sent a show cause notice
dated 9-4-2008 to the petitioner calling for his explanation
on the findings of the said Enquiry Officer Rajaram and sent
the termination order dated 17-11-2008 to him. As there is
no evidence produced to prove that the said Rajaram
continued the enquiry and gave findings, the order of
termination sent by the respondent to the petitioner cannot
be accepted.
16. The respondent framed five charges against the
petitioner, out which, the petitioner has admitted the first
charge that he refused to accept the transfer order issued to
him. As far as the other four charges, it is the duty of the
respondent to prove the same by conducting the enquiry in
a fair and proper manner. But as already stated, the
respondent has not conducted the enquiry by following the
principles of natural justice. In the above circumstances, this
court has come to the conclusion that the respondent has
failed to establish the other four charges framed against
the petitioner.
17. Now this court has to see whether the punishment
imposed by the respondent for the misconduct of refusing
to receive the transfer order by the petitioner is
disproportionate or not. According to the petitioner, since
the respondent has issued the copy of the transfer order, he
refused to receive the same and demanded the original order.
Though the refusal of transfer order would amount to
insubordination, this is not a serious misconduct. Hence, the
punishment of termination from service is disproportionate
one and the same is liable to be set aside.
18. The learned counsel for the respondent has submitted
that instead of attending the enquiry to be conducted on
29-9-2005 by the then Enquiry Officer duly appointed by the
respondent management, the petitioner has raised irrelevant
questions and has passed filthy remarks through his letter
dated 30-9-2005 and has tried his level best to avoid the
attending of the enquiry. He further submitted that inspite
of settlement to be done before the Labour Officer regarding
the delay of disbursement of salary, as alleged by the
petitioner for the month of June 2005 and July 2005, the
petitioner after sending a complaint to the Labour Officer has
lodged and declared a ‘Continuous Fast’ before the Office
of the District Collector of Karaikal on 19-9-2005 and has
displayed banner over a fence before the Office of the
District Collector of Karaikal and when the enquiry process
was in progress, the act of the petitioner displaying a banner
of fast is not only the act of non-assisting of the enquiry
process, but also a shear misbehaviour in public life.
19. On the side of the respondent, the letter sent to the
Inspector of Police, Town Police, Karaikal with photo was
marked as Ex.R19, which proves that the petitioner conducted
a fasting, which was informed to the police with a request to
remove the banner. The learned counsel for the respondent
has submitted that since the management apprehended
unsafely due to the serious misconducts of the petitioner,
the respondent has lost confidence on the petitioner, as the
act of the petitioner is detrimental to the discipline and
security of the establishment. Therefore, the above situation
created a ground for loss of confidence and hence this court
feels that the petitioner has lost the right of reinstatement in
this case. It is pertinent to refer the following decision which
is relevant to this case.
2001 3 CLR Page 592
“Substantial contention on the merits of the case by
the employer in these appeals is that the finding of loss
of confidence in the employee by the Labour Court has
been reversed in appeal by the Industrial Court on
unreasonable grounds. What must be pleaded and proved
to invoke the aforesaid principle is that (i) the workman is
holding a position of trust and confidence; (ii) by abusing
such position, he commits acts which results in forfeiting
the same; and (iii) to continue him in service would be
embarrassing and inconvenient to the employer or would
be detrimental to the discipline or security of the
establishment. All these three aspects must be present to
refuse reinstatement on ground of loss of confidence.
Loss of confidence cannot be subjective based upon the
mind of the management objective facts which would lead
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to a definite inference of apprehension in the mind of the
management regarding trust-worthiness or reliability of the
employee must be alleged and proved. Else, the right or
reinstatement ordinarily available to the employee will be
lost”.
There was misunderstanding between the petitioner and
the respondent management and in the above circumstances,
if any order passed by this court to reinstate him into service,
there will not be any smooth relationship between them.
Hence, I feel that instead of reinstate him into service, he
can be given monetary compensation. There is no dispute
that the petitioner was working in the respondent company
for more than six years and considering the age and the
services rendered in the respondent company, a sum of
`40,000 is awarded to the petitioner towards monetary
compensation.
20. In the result, the industrial dispute is partly allowed
and the petitioner is not entitled for reinstatement. However,
he is entitled for monetary compensation of ` 40,000 (Rupees
forty thousand only) and the respondent is hereby directed
to pay a sum of ` 40,000 (Rupees forty thousand only)
towards monetary compensation. No costs.
Typed to my dictation, corrected and pronounced by me
in the open court on this the 29th day of November, 2012.
T. MOHANDASS,,
Presiding Officer,
Labour Court, Puducherry.
————
List of witness examined for the petitioner:
PW.1—27-6-2011 Alex Britto
List of witness examined for the respondent: Nil
List of exhibits marked for the petitioner:
Ex.P1
— Copy of the show cause notice issued to the
petitioner, dated 20-8-2005.
Ex.P2
— Copy of the letter sent by the petitioner to
the respondent, dated 21-8-2005.
Ex.P3
— Copy of the suspension order, dated 26-8-2005
Ex.P4
— Copy of the letter, dated23-9-2005 sent to
the petitioner informing about conduct
of domestic enquiry.
Ex.P5
— Copy of the statement of petitioner in the
domestic enquiry, dated 6-10-2005.
Ex.P6
— Copy of the letter, dated18-11-2005 sent to
the petitioner.
Ex.P7
— Copy of the questionaire to the petitioner
Ex.P8
— Copy of the letter, dated 26-5-2006 sent to
the petitioner informing about enquiry.
Ex.P9
— Copy of the enquiry proceedings
Ex.P10 — Copy of the office order, dated 7-8-2006
Ex.P11 — Copy of the show cause notice, dated 2-5-2008
sent to the petitioner.
Ex.P12 — Returned cover
Ex.P13 — Copy of the reply, dated 22-5-2008 sent
by the petitioner to the respondent.
Ex.P14 — Copy of the letter, dated 3-7-2008 sent
by the respondent to petitioner.
Ex.P15 — Copy of the reply, dated 11-7-2008 for
Ex.P14 sent by the petitioner.
Ex.P16 — Copy of the memorandum, dated 19-8-2008
with enquiry report.
Ex.P17 — Copy of the reply, dated 6-9-2008 sent
by the petitioner.
Ex.P18 — Copy of the memorandum, dated 3-11-2008
sent by the respondent.
Ex.P19 — Copy of the letter, dated 8-11-2008 sent
by the petitioner to respondent.
Ex.P20 — Copy of the termination order,
dated 17-11-2008 issued to petitioner.
Ex.P21 — Copy of the letter dated 21-11-2008 sent
by the petitioner.
List of exhibits marked for the respondent:
Ex.R1
— Letter from the petitioner, dated 16-7-2005
complaining about Usharani.
Ex.R2
— Letter dated 18-7-2005 explaining the reason
for unauthorised absent by the petitioner.
Ex.R3
— Letter from the petitioner, dated 18-7-2005
Ex.R4
— Joining report of the petitioner, dated 27-7-2005
Ex.R5
— Letter dated 5-8-2005 from the petitioner
Ex.R6
— Explanation, dated 8-8-2005 regarding leave
by the petitioner.
Ex.R7
— Transfer order of the petitioner dated 8-8-2005
Ex.R8
— Letter, dated 11-8-2005 from the petitioner
Ex.R9
— Memo for enquiry, dated 13-8-2005
Ex.R10 — Letter, dated 14-8-2005 on the memo given
to the petitioner.
Ex.R11—Complaint against petitioner by Usharani,
dated 17-8-2005.
Ex.R12 — Complaint against petitioner from establishment
section ,dated 17-8-2005.
Ex.R13 — Copy of the attendance register
Ex.R14 — Formal enquiry proceedings, dated 19-8-2005
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LA GAZETTE DE L’ETAT
[11 June 2013
Ex.R15 — Show cause notice, dated 20-8-2005 given
to the petitioner.
Ex.R16 — Reply dated 21-8-2005 to the show cause notice
Ex.R17 — Letter, dated 21-8-2005 from the petitioner
Ex.R18 — Copy of suspension order, dated 26-8-2005
Ex.R19 — Copy of complaint to the Inspector of Police,
dated 19-9-2005
Ex.R20 — Copy of letter appointing Enquiry Officer,
dated 23-9-2005.
Ex.R21 — Copy of call letter to the petitioner,
dated 23-9-2005.
Ex.R22 — Letter to the respondent by the petitioner,
dated 26-9-2005 .
Ex.R23 — Copy of the call letter to the petitioner,
dated 28-9-2005.
Ex.R24 — Complaint from the employees about the
petitioner, dated 30-9-2005.
Ex.R25 — Letter from the petitioner, dated 30-9-2005
Ex.R26 — Deposition by the petitioner in the enquiry
proceedings.
Ex.R27 — Call letter for enquiry, dated 18-11-2005
Ex.R28 — Deposition by the petitioner in the enquiry
proceedings.
Ex.R29 — Copy of enquiry report
Ex.R30 — Intimation to the petitioner for final enquiry,
dated 6-5-2006.
Ex.R31 — Deposition of Usharani
Ex.R32 — Deposition of the petitioner in the enquiry
proceedings.
Ex.R33 — Statement of Arunprasath
Ex.R34 — Intimation regarding charge of Enquiry Officer
Ex.R35 — Questionaire to the witness Sethumadhavan
Ex.R36 — Disciplinary enquiry, report dated 8-2-2007
Ex.R37 — Copy of the show cause notice, dated 9-4-2008
Ex.R38 — Reminder letter, dated 3-7-2008 to the
petitioner
Ex.R39 — Reply by the petitioner, dated 15-7-2008
Ex.R40 — Letter to the petitioner dated 19-8-2008
Ex.R41 — Letter dated 6-9-2008 by the petitioner
Ex.R42 — Letter to the petitioner dated 3-11-2008
Ex.R43 — Copy of termination order, dated 17-11-2008
T. MOHANDASS,
II Additional District Judge,
Presiding Officer,
Labour Court, Puducherry.
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 77/Lab./AIL/J/2013, dated 22nd May 2013)
NOTIFICATION
Whereas, an award in I.D. No. 4/2012, 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 A. Elango,
Valavanur over non-employment has been received;
Now, therefore, in exercise of the powers conferred by
sub-section (1) of section 17 of the Industrial Disputes
Act, 1947 (Central Act XIV of 1947) read with
the notification issued in Labour Department’s
G. O. Ms. No.20/91/Lab./L, dated 23-5-1991, it is hereby
directed by Secretary to Government (Labour) that the
said award shall be published in the official gazette,
Puducherry.
(By order)
S. THAMMU GANAPATHY,
Under Secretary to Government (Labour).
————
BEFORE THE LABOUR COURT AT PUDUCHERRY
Present : Thiru T. MOHANDASS, M.A., M.L.,
Presiding Officer, Labour Court
Friday, the 30th day of November 2012
I.D. No. 4/2012
Elango, S/o. Annamalai,
Valavanur.
. . Petitioner
Versus
The Managing Director,
Hindustan Unilever Limited,
Detergent Factory, Puducherry.
. . Respondent
This industrial dispute coming on 26-11-2012 for
f i n a l 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
T h i r u R . T.
S h a n k a r, A d v o c a t e
f o r
t h e
p e t i t i o n e r, T v l . 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
549
11 June 2013]
LA GAZETTE DE L’ETAT
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 claim statement, has averred
as follows:
The petitioner was working as permanent
employee in the respondent company from 4-3-1998
and he was a member in the Hindustan Unilever
Employees Union.
The respondent raised a false allegation against
the petitioner that from 1-7-2009 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 him were
pending before the Conciliation Officer. Hence, the
respondent management has not followed
section 33(2)(b) of Industrial Disputes Act. In the
above circumstances, the present industrial disputes
is filed for his reinstatement along with other
benefits.
3. In the counter statement, the respondent has
stated as follows:-
The petitioner was employed as general worker
with effect from 4-3-1998. The petitioner was a
chronic absentee taking leave without authorisation.
The petitioner continued to be erratic in his
attendance and remained unauthorisedly absent on
various dates from 1-7-2009 onwards. When the
petitioner did not turn up for employment till
18-2-2010, the respondent issued a detailed charge
sheet, which was received by the petitioner, but no
reply was sent by him. Then the enquiry was
conducted and in the enquiry proceedings, the
petitioner categorically admitted the fact that he had
remained unauthorisedly absent from July 2010
onwards. The Enquiry Officer submitted his detailed
report on 18-8-2010 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 returned
unserved with an endorsement “not claimed”. The
respondent published the second show cause notice
in Thina Thanthi. The petitioner did not respond to
such publication. Then the petitioner was issued the
termination order on 17-3-2011, which was not
received by the petitioner. The said order was
published in Thina Thanthi Tamil daily on 6-5-2011.
The petitioner was removed from the services for a
grave misconduct of chronic habitual absenteeism,
which was admitted by him in an independent and
impartial domestic enquiry. Hence, the dismissal of
the petitioner from service is fully justified.
Therefore, the respondent prays for dismissal of the
industrial disputes.
4. On the side of the petitioner, PW.1 and PW.2 were
examined and Ex.P1 to Ex.P4 were marked. On the side of
the respondent, RW.1 was examined and Ex.R1 to Ex.R13
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
4-3-1998 and the respondent raised a false allegation
against him that from 1-7-2009 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 PW1.
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., 54.5 days in 2002, 74 days in 2004,
61.5 days from January 2005 to August 2005, 23 days
from January 2006 to April 2006, 146.5 days from
Janaury 2008 to December 2008 and 148 days from
January 2009 to June 2009 and hence they issued a
detailed charge sheet, which was received by the
petitioner and then the enquiry was conducted and in
the enquiry proceedings, the petitioner categorically
admitted the fact that he had remained unauthorisedly
550
LA GAZETTE DE L’ETAT
[11 June 2013
absent from July 2010 onwards 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 RW1.
8. In order to prove his claim, RW1 has marked the
copy of the attendance record for the period from
January 2007 to March 2011 as Ex.R12 and the
computerised statement of overall percentage of
authorised and unauthorised absenteeism from January
2006 to December 2012 as Ex.R13. A perusal of Ex.R13
reveals
that
the
percentage
of
unauthorised
absenteeism as on December 2012 is 26.49%. RW1 has
also marked the copy of the letters sent by the
petitioner as Ex.R2 and Ex.R3. A perusal of Ex.R2 reveals
that the petitioner has admitted the unauthorised
absent. In Ex.R2, the petitioner has also stated that due
to jaundice, he could not report for duty. In Ex.R3
the petitioner has admitted that due to mental torture
and family circumstances, he could not report for duty
and he will attend the duty promptly in future. Ex.R2
and Ex.R3 have been marked on objection by the
petitioner. Though the petitioner has objected those
documents under Ex.R2 and Ex.R3, in the enquiry
proceedings under Ex.R4, the petitioner has admitted the
unauthorised absent and stated that he could not report
for duty due to family circumstances. The petitioner has
not challenged the same in the enquiry, which is proved
through enquiry proceedings under Ex.R4. In the above
circumstances, the respondent has proved that the
petitioner was unauthorised absent for the period
mentioned in the charge sheet.
9. 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 giving sufficient
opportunity, the respondent has closed the entire
enquiry proceedings within two hours and therefore
with intention to victimise the petitioner, the respondent
management has been acted against the petitioner and
hence, the enquiry was not conducted fair and proper
manner.
10. On the other hand, the contention of the learned
counsel for the respondent is that the enquiry was
conducted in a free and fair manner by giving full
opportunity to the petitioner to disprove the charges
and there is absolutely no lacuna in the enquiry
proceedings and it has been conducted in a free and fair
manner after following all the requisite principles of
natural justice. He further submitted that the petitioner
during the enquiry proceedings admitted the charges
and based on his admission, the petitioner was found
guilty of the charges.
11. 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
petitioner 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 then the petitioner himself requested the Enquiry
Officer to close the enquiry after recording his
admission and the petitioner signed in the enquiry
proceedings to that effect. Finally the petitioner was
found guilty of the charges and based on the enquiry
report, the second show cause notice was issued under
Ex.R6, which was not claimed by the petitioner and then
after effecting paper publication of the second show
cause notice, the dismissal order under Ex.R9 was sent
to the petitioner.
12. 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.
13. But the petitioner has not produced any evidence
to show that his signature was obtained in the enquiry
proceedings forcibly. Further before conducting the
enquiry, the petitioner has sent letters under Ex.R2 and
Ex.R3 to the respondent admitting his unauthorised
absence and prayed for leniency. In the above
circumstances, the said version is only an after-
thought, which cannot be accepted.
14. 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.
15. 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.
16. 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
551
11 June 2013]
LA GAZETTE DE L’ETAT
had dismissed the petitioner unlawfully and as per the
said section, the employer may pass an order of
dismissal or discharge 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
Versus Ram Goal Sharma and Others:-
“Industrial Dispute Act 1947, 33(2)(b), Proviso
(as amended in 1956) - If approval is not granted
under section 33(2)(b) or failure to make application
under 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.”
17. The learned counsel for the petitioner further
submitted that at the time of termination of the
petitioner, the dispute raised by his union, was pending
before the Conciliation Officer and hence he claims that
the dispute is to be pending and the procedure
contemplated under section 33(2)(b) of Industrial
Disputes Act.
18. In order to support the said claim, PW.1 has
marked the copy of the dispute raised by Hindustan
Lever Wel's Union before the Conciliation Officer as
Ex.P2. As per Ex,P2, a dispute was pending before the
Conciliation Officer with regard to declaration of paid
holidays in violation of 12(3) settlement.
19. The learned counsel for the respondent has
submitted that the petitioner is no nexus connection
with the dispute which is pending before the
Conciliation Officer and the industrial disputes was
raised individual capacity of the petitioner under
section 2 A of Industrial Disputes Act. The learned
counsel for the respondent has further submitted that
the petitioner has never pleaded and proved as to what
was the dispute that was involved to the conciliation
and how the petitioner is connected to the said dispute.
He further submitted that the dispute raised in the
previous conciliation proceedings by Hindustan
Unilever Wel's 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 Versus 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.”
20. It is true that the present industrial dispute was
filed by the 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 disputesbefore this
court. Hence, I find nothing wrong in filing the present
industrial dispute by the petitioner individually.
21. 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.
22. 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
552
LA GAZETTE DE L’ETAT
[11 June 2013
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.P4. The petitioner has not
proved that he is a member of Hindustan Lever
Employees Union. Hence, Ex.3 would not support the
case of the petitioner. 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.
23. The learned counsel for the respondent submitted
that the issue of chronic absenteeism has become a very
serious issue in the respondent's factory, crippling its
production and productivity and disturbing its work
schedules and man power allotment and the high
percentage of unauthorised absenteeism clearly
indicates that workers are taking their employment
casually and the leniency shown by the respondent in
the- past in not taking stringent disciplinary action was
also an encouraging factor; The learned counsel for the
respondent relied upon the following decisions to
support his claim:-
CDJ 2009 SC1194:
Union of India and Others Versus BishamberDas
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 Versus 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.L.J.-55 (Madras).
O.Krishnan Versus 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 previous
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.”
553
11 June 2013]
LA GAZETTE DE L’ETAT
2010-4-L.L.J. 245:-
Indian Coffee Board Versus 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 Versus 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
stated one in the face in the facts of the present
case.’’
24. 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 4-3-1998 and he was chronic absentee from 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 2009
are very much long period of absence, which cannot be
considered leniently. About eight spells of unauthorised
leave taken by the petitioner were admitted by the
petitioner, which were also warned in time and he was
also suspended once for the unauthorised leave
taken from January 2009 to June 2009 (149 days).
These lapses are very serious in nature and hence
considering the habit of long unauthorised absence, I
feel that he cannot be reinstated into service. However,
the punishment of dismissal from the service is
disproportionate one, but I am of the opinion that he can
be awarded the monetary compensation to him and his
family members in the circumstances of the case. Hence,
I feel that the monetary compensation only will be the
better solution in this case to settle this disputes
between the parties, which would meet the ends of
justice. Considering the service of the petitioner and
starving family members depending the workman for
livelihood, he can be awarded a sum of ` 2,00,000 in
lump sum towards compensation. Accordingly, this
point is answered.
25. In the result, the industrial dispute is partly
allowed and the petitioner is not entitled for
reinstatement and the other benefits. However, he is
entitled for ` 2,00,000 (Rupees two lakhs only) towards
monetary compensation. No costs. Time for three
months.
Typed to my dictation, corrected and pronounced by
me in the open court on this 30th day of November, 2012.
T. MOHANDASS,
Presiding Officer, Labour Court,
Puducherry.
————
List of witnesses examined for the petitioner :
PW.1 —
28-9-2012 — A. Ilango
PW.2 — 12-10-2012 — Ezhumalai
List of witnesses examined for the respondent :
RW.1 —
25-10-2012 Arokia Berdila Anand
List of exhibits marked for the petitioner :
Ex.P1 —
Copy of the dismissal order, dated 17-3-2011
Ex.P2 —
Copy of the dispute raised by the Hindustan
Lever Wel’s Union, dated 22-10-2010.
Ex.P3 —
Copy of the dispute before the Conciliation
Officer, dated 8-11-2011.
Ex.P4 —
Copy of the enquiry notice, dated 6-12-2011
sent to the respondent.
List of exhibits marked for the respondent :
Ex.R1 —
Authorisation letter, dated 24-10-2012.
Ex.R2 —
Copy of the letter given by the petitioner
admitting his unauthorised absent,
dated 4-9-2009.
Ex.R3 —
Copy of the letter given by the petitioner
admitting his unauthorised absent to the
respondent dated 23-10-2009.
Ex.R4 —
Domestic enquiry proceedings
Ex.R5 —
Copy of the enquiry report in Tamil.
Ex.R6 —
Copy of the second show cause notice,
dated 11-1-2011.
Ex.R7 —
Copy of the returned postal cover, dated
12-1-2011.
Ex.R8 —
Copy of the paper publication,
dated 30-1-2011.
Ex.R9 —
Copy of the termination order, dated 17-3-2011.
Ex.R10—
Returned postal cover.
Ex.R11—
Copy of the paper publication,
dated 6-5-2011.
Ex.R12—
Copy of the extract of computerised
muster roll.
Ex.R13—
Computerised
statement
of
overall
percentage of authorised and unauthorised
absenteeism.
T. MOHANDASS,
Presiding Officer, Labour Court,
Puducherry.
554
LA GAZETTE DE L’ETAT
[11 June 2013
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 78/Lab./AIL/J/2013, dated 22nd May 2013)
NOTIFICATION
Whereas, an award in I.D. No. 22/2007, dated 18-1-2013
of the Labour Court, Puducherry in respect of the
industrial dispute between the Managing Director,
Chemfab Alkalis Limited, Puducherry and its workman
Thiru D. Alwin Maria Susai over non-employment has
been received;
Now, therefore, in exercise of the powers conferred
by sub-section (1) of section 17 of the Industrial
Disputes Act, 1947 (Central Act XIV of 1947) read with
the notification issued in Labour Department’s
G. O. Ms. No. 20/91/Lab./L, dated 23-5-1991, it is hereby
directed by Secretary to Government (Labour) that the
said award shall be published in the official gazette,
Puducherry.
(By order)
S. THAMMU GANAPATHY,
Under Secretary to Government (Labour).
————
BEFORE THE LABOUR COURT AT PUDUCHERRY
Present :
Thiru T. MOHANDASS, M.A., M.L.,
Presiding Officer, Labour Court.
Friday, the 18th day of January 2013
I.D. No. 22/2007
D. Alwin Maria Susai
. . Petitioner
Versus
The Managing Director,
M/s. Chemfab Alkalis Limited,
Puducherry.
. . Respondent
This industrial dispute coming on 5-1-2013
for final hearing before me in the presence of
Thiru B. Mohandass, Advocate for the petitioner,
Thiru G. Krishnan, Advocate for the respondent, upon
hearing both sides, upon perusing the case records,
after having stood over for consideration till this day,
this court passed the following :
AWARD
This industrial dispute arises out of the reference
made by the Government of Puducherry, vide G.O.
Rt. No. 87/2007/Lab./AIL/J, dated 3-4-2007 of the
Labour Department, Puducherry to resolve the
following dispute between the petitioner and the
respondent, viz.
(1) Whether t h e d i s p u t e r a i s e d b y
Thiru D. Alwin Maria Susai over non-employment
against the management of M/s. Chemfab Alkalis
Limited, Puducherry is justified or not?
(2) To what relief, he is entitled to?
(3) To compute the relief, if any, awarded in
terms of money, if it can be so computed.
2. The petitioner in his petition has stated as
follows:
The petitioner was appointed as a driver on
casual and daily rated basis in the respondent
company and subsequently he was appointed on
permanent basis on 1-8-1987. The petitioner
discharged his duties in a very sincere and honest
manner and without any black mark. The
relationship between the management and the
petitioner had been cordial for long and later the
attitude of the respondent towards the petitioner
became hostile, consequent to the steps taken by
him to form a trade union. The respondent at first
developed the idea of dispensing with the services
of the drivers including the petitioner and asked
them to submit resignation letters and to settle
their accounts with the management. Subsequently
the respondent management issued a transfer
order to all the members of the union, since they
were not willing to submit the resignation.
Accordingly, the petitioner was served with the
transfer order, dated 3-6-2005, transferring him to
Kanthadu village of Tindivanam T.K. Contrary to
the fact that there was no unit or branch of the
respondent company in that place. The petitioner
reported to duty in the place of transfer on 11-6-2005.
Through letter, dated 10-6-2005, the petitioner
pointed out the illegal and unjustified acts of the
respondent management and requested to withdraw
forthwith the unlawful transfer order and it was
followed by his representation, dated 22-6-2005.
Further the petitioner was constrained to lodge a
complaint to the Inspector of Police, Marakkanam
on 24-6-2005 for the incidents referred to in the
above referred letter, dated 22-6-2005 and also
for other unlawful activities of the staff of
M/s. Padma Chemicals with the connivance of
village people and others set up by the respondent.
The General Manager (HRD) issued a charge
sheet, dated 21-6-2005 to the petitioner alleging
commission of misconduct. As per the said charge
sheet, the petitioner was accused of instigating the
employees against the management on 11-6-2005 at
1.00 p.m. and intimidated them and when the Head
of Department Mr. Gurupandian instructed him not
to indulge in such activities, the petitioner shouted
555
11 June 2013]
LA GAZETTE DE L’ETAT
at him and made malicious statement against the
company management. He submitted explanation,
dated 25-6-2005 pointing out the necessity to recall
the false charges. As the petitioner was not
entrusted with duties commensurate with his
status and qualification as a driver and as there
was no obligation for him to work under Padma
Chemicals or at the Office of the Government Salt
Factory and as there was no guarantee for his life
and dignity he was not in a position to report to
that place for work. By way of retort, the General
Manager (HRD) called upon him to report for duty
immediately and threatened to take appropriate
disciplinary action against him.
On 21-6-2005 a charge sheet was issued against
him based on which the enquiry was conducted by
the Enquiry Officer. The enquiry was not conducted
in accordance with law. The enquiry was
conducted in flagrant violation of the principles of
natural justice and the concept of fair hearing was
not respected by the Enquiry Officer. The Enquiry
Officer submitted his report, dated 12-9-2005
holding the petitioner guilty of all the charges
framed against him. The respondent sent second
show cause notice, dated 20-9-2005 to the petitioner
asking for objections to the proposed penalty of
dismissal from service. The objections submitted
by the petitioner for the Enquiry Officer as well as
for the proposed penalty were not considered in
the proper perspective and the respondent
dismissed the petitioner from service.
The establishment of Padma Chemicals is not a
branch of Chemfab Alkalis Limited, and the above
two
establishments
were
two
independent
establishments and hence for the misconduct
alleged to have occurred in Padma Chemicals, the
respondent management cannot take disciplinary
action against the petitioner. Hence, this industrial
dispute is filed by the petitioner for reinstatement
and with other benefits and monetary compensation
of ` 2 lakhs.
3. The respondent in his counter has stated as
follows:
It is true that the petitioner was working in the
respondent company as driver. The respondent
company intended to transfer the drivers for better
utilisation of their services and on administrative
reasons and exigencies of work. Having come to
know of the transfer which is an incident of
service, the drivers, who have worked at one
station throughout their service career, made a
representation to the then General Manager (HRD)
that they were totally fed up with the monotonous
work which they were doing in the factory for a
quite a long time and their dream was to own a
vehicle and use it for commercial purpose which
would fetch them more income and they could also
concentrate on other works independently and
further represented that their dreams would come
true only with help of the management by paying
them a lump sum as ex gratia apart from terminal
benefits and if the management agree for such
arrangement, though would even submit their
resignation.
The management keeping in view of their long
association with the management, considered the
representation as bona fide and gave clearance to
Michelraj to negotiate with the drivers to arrive at
a reasonable ex gratia payment without laying any
precondition and accordingly, he proceeded with
the negotiation. The management permitted the
drivers to negotiate and finally the petitioner and
other drivers have agreed for the lump sum
ex gratia payment negotiated by the management
taking into consideration of their respective period
of service.
The petitioner by transfer order, dated 3-6-2005
was transferred to the respondent’s salt division
situated at Kanthadu village, Marakkanam with
immediate effect and when the transfer order was
served to him in person, he has refused to receive
it and the same was sent to him by a registered post
with acknowledgment due. Then he received the
transfer order and reported for duty on 11-6-2005. It
was reported that at about 1.00 p.m. during the
working hours, he instigated the employees against
the management and intimidated them and when the
Head of Department Thiru Gurupandian instructed
him, not to indulge in such activities within the
establishment during the working hours, the
petitioner shouted at him and made malicious
statement against the company. The preliminary
enquiry was conducted to ascertain the factual
position and then a charge sheet, dated 21-6-2005
was sent to the petitioner. In order to give a twist
and turn to his commission of misconduct and to
deviate the whole issue, the petitioner out of his
own imagination, has concocted an incidence
and gave a complaint, dated 24-6-2005 to the
Inspector of Police, Marakkanam Police Station.
The management not satisfied with the
explanation, dated 25-6-2005 submitted by the
petitioner to the charges levelled against him,
decided to conduct a domestic enquiry. The
petitioner participated in the enquiry proceedings
and cross-examined the management witnesses, but
thereafter he has deliberately avoided to submit his
documents and statements and made baseless
556
LA GAZETTE DE L’ETAT
[11 June 2013
allegations against the Enquiry Officer. The
Enquiry Officer submitted his report wherein he
has found that the charges levelled against the
petitioner have been proved. Then the management
sent a show cause notice, dated 20-9-2005
regarding the proposed punishment and thereafter
by notice, dated 27-9-2005 the management has
terminated the services of the petitioner. A sum of
` 62,808 towards full and final settlement of
accounts by cheque was sent to the petitioner
which he has received under protest. Hence, they
pray 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.P13 were marked. On
the side of the respondent, RW.1 and RW.2 were
examined and Exs.R1 to Ex.R39 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 he
joined as driver in the respondent company on
casual and daily rated basis and subsequently he
was appointed on permanent basis on 1-8-1987 and
he discharged his duties in a very sincere and
honest manner and without any black mark and he
was transferred by the respondent management to
the respondent’s salt division at Kanthadu Village
of Tindivanam T.K. with the oblique motive of
victimising him for his legitimate trade union
activities. In order to prove his claim, the petitioner
examined himself as PW.1. PW.1 in his evidence has
deposed that the General Manager (HRD) issued a
charge sheet, dated 21-6-2005 to him alleging
commission of misconduct and as per the said
charge sheet, he was accused of instigating the
employees against the management on 11-6-2005 at
1.00 p.m. and intimidated them and when the Head
of Department Mr. Gurupandian instructed him not
to indulge in such activities, he shouted at him and
made malicious statement against the company
management and based on the said charge enquiry
was conducted, but the enquiry was not conducted
in accordance with law and he participated in the
enquiry and then the Enquiry Officer submitted his
report holding that the charges levelled against
him were proved and based on the said report, the
respondent terminated him from service.
7. PW.1 has marked his pay slip as Ex.P1, transfer
order, dated 3-6-2005 as Ex.P2, representation, dated
10-6-2005 sent by him to the respondent for recall of
transfer order as Ex.P3, charge sheet, d a t e d
2 1 - 6 - 2 0 0 5 a s E x . P 4 , r e p r e s e n t a t i o n , dated
22-6-2005 sent by him to the respondent for recall of
transfer order as Ex.P5.
8. On the side of the petitioner, the ex-employee
of the respondent company was examined as PW.2.
PW.2 in his evidence has deposed that he was working
as Assistant Manager in the respondent company and
at that time, he knows the petitioner and the
respondent management had decided to outsource the
work of the drivers of the company to a contractor
but the said proposal of the respondent company was
not accepted by the petitioner. PW.2 further deposed
that the petitioner was transferred to Chennai unit,
where he has not been given any work and then he
was terminated from service by settling his account.
During the cross-examination, PW.2 has admitted that
on 31-3-2010 he was forced to resign the job from the
respondent company and the respondent company
has not given retirement benefit amount as promised
by them.
9. The respondent has admitted that the petitioner
was the driver in their company, but has stated that
the transfer is an incidence of service and the
petitioner knows very well that the transfer order is
lawful and is within the rights of the management.
I agree with the contention of the respondent, as the
transfer is purely on the own discretion of the
employer and it is done only because of reorganising
the business and also due to administrative
convenience. Further PW.2 in his cross-examination
has admitted that the transfer of employees in the
respondent company is routine one. Hence, it is the
duty of the petitioner to obey the order of his master,
but he refused to receive the transfer order, which
amounts to insubordination and dereliction of duty.
If any inconvenience in the transferred place, the
petitioner would have requested the respondent to
transfer him to his native place. But the petitioner
sent various letters under Ex.P3 and Ex.P5 to the
respondent harshly stating that he has been
transferred to salt division at Kanthadu Village to
victimise him for his legitimate trade union activities.
Hence, the said act of the petitioner as employee
paves way to affect the entire administration of the
respondent management.
10. On the side of the respondent, the authorised
representative of the respondent company was
examined as RW.1. RW.1 in his evidence has deposed
that the management has issued a charge sheet
dated 21-6-2005 for his act of instigation, wilful
insubordination, gross neglect of work, disorderly
and disrespectful behaviour and based on the said
charge sheet, the enquiry was conducted against him.
11. The learned counsel for the petitioner has
submitted that the petitioner was found fault with
the commission of misconducts of 1. Instigation,
2. Intimidation, 3. Wilful insubordination, 4. Gross
neglect of work, 5. Disorderly and disrespectful
557
11 June 2013]
LA GAZETTE DE L’ETAT
behaviour and as regards the first charge of
instigation is concerned, the charge sheet accused
the petitioner of instigating the employee against the
management on 11-6-2005 and even if the above
charge is proved, it cannot be a misconduct attracting
disciplinary action against the petitioner and with
regard to the second charge of intimidation, it is very
significant to note that the act of intimidation does
not find a place in the model standing orders, thus
no scope for disciplinary action against the petitioner
and as for as third charge of wilful insubordination
is concerned, item (a) of model standing order refers
to misconduct of wilful insubordination, however the
above misconduct is qualified by the terms “to any
lawful and reasonable order of a superior”, but the
content of the charge sheet which does not make
reference to any lawful and reasonable order of a
superior and hence the said charge against the
petitioner has to fall to the ground. The learned
counsel for the petitioner further submitted that the
fourth charge of gross neglect of work is not a
misconduct under the model standing orders and as
per item (I) of the Model Standing Order 14(3), it is
only “habitual negligence or neglect of work” a
misconduct warranting disciplinary action against the
charged official and it is plain as day-light that it is
not open to the respondent to take disciplinary
action for gross neglect of work and the last charge
of disorderly behaviour constitutes a misconduct as
enumerated under item (h) of Model Standing
Orders 14(3).
12. The learned counsel for the petitioner further
submitted that the charge sheet is devoid of
necessary particulars like what defamatory statements
and what false statements were made by the petitioner
and the names of descriptions of the officers of the
respondent company against whom the petitioner has
made the false/defamatory statement etc. In order to
support his claim, he relied upon the following
decisions:-
(2012) 2 S.C.C. (L&S) 926 :
Anil Gilurker Versus Bilaspur Raipur Kshetrita
Gramin Bank:
“The charges should be specific, definite and
giving details which formed basis of charges and
no enquiry can be sustained on vague charges.”
1984 II L.L.N. :
(Civil Appeal No.1673 of 1982 and W.P. No.4567
of 1982) Ved Prakash Gupta Versus Delton Cable
India (P) Limited, Faridabad :
“The charge against the appellant, namely of
using abusive language is not a serious one and
it is not known how the charge, even if proved,
would result in any, much less total, loss of
confidence of the management in the appellant. The
punishment awarded to the appellant is shockingly
disproportionate regard being had to the charge
framed against him. No responsible employer
would ever impose in like circumstances the
punishment of dismissal and victimisation and
unfair labour practice could well be inferred from
the conduct of the management. Appellant entitled
to be reinstated with full back wages and
continuity of service.”
1983 I L.L.N. (Civil Appeal No. 1531 of 1980)
Rama Kant Misra Versus State of Uttar Pradesh
and Others:—
“When it is said that the language discloses a
threatening posture, it is the subjective conclusion
of the person, who hears the language because
voice modulation of each person in the society
differs and indiscreet, improper, abusive language
may show lack of culture but merely the use of
such language on one occasion unconnected with
any subsequent positive action and not preceded
by any blameworthy conduct cannot permit an
extreme penalty of dismissal from service.
Therefore, the order of dismissal was not justified
in the facts and circumstances of the case.”
1998(4) L.L.N. 884 :
Management of Essorpe Mills (P) Limited,
Coimbatore Versus Presiding Officer, Labour Court,
Coimbatore and Another:-
“Merely because the Labour Court has found
the enquiry to be fair and lawful and the findings
not to be vitiated in any manner, it cannot be said
that it should not have interfered with the order
of termination of service of the respondent in
exercise of its powers under the provisions of
the Act. Once it is found that the Labour Court
has exercised its discretion judicially with regard
to punishment, the same cannot be interfered with
lightly while exercising jurisdiction under
Article 226 of the Constitution of India.”
1984 I L.L.N. (Civil Appeal No. 2911 (NL) of 1981) :
Glaxo Laboratories (India) Limited, Versus
Labour Court, Meerut and Others:—
“Standing Orders 22 and 23 of the company -
Misconducts are enumerated in Standing Order 22
and punishment is prescribed in Standing Order 23
- Misconduct not enumerated in Standing Order is
not punishable merely because employer believes
it to be misconduct ex post facto.”
558
LA GAZETTE DE L’ETAT
[11 June 2013
A.I.R. 1989 S.C. Page 149 :
Scooter India Limited, Lucknow Versus Labour
Court, Lucknow and Others:—
“The Labour Court has taken the view that
justice must be tempered with mercy and that the
erring workman should be given an opportunity to
reform himself and prove to be a loyal and
disciplined employee of the petitioner Company. It
cannot therefore be said that merely because the
Labour Court had found the enquiry to be fair and
lawful and the findings not to be vitiated in any
manner, it ought not to have interfered with the
order of termination of service passed against the
respondent in exercise of its powers under Section
6(2A) of the Act”.
13. To prove the misconduct committed by the
petitioner, RW.1 has marked the complaints received
from the staff of the respondent management as
Exs.R1 to Ex.R5. As per Ex.R1, the petitioner
instigated the employees to join in the association
and intimidated the staff members. In Exs.R2 to Ex.R5,
the staff members has stated the same version. I do
not know in what way, the contents found in Exs.R2
to Ex.R5 constitutes a misconduct as stated by the
respondent. According to the respondent, the
preliminary enquiry was conducted to ascertain the
factual position and thereafter a charge sheet, dated
21-6-2005 was sent to the petitioner and based on the
charge sheet, the enquiry was conducted against the
petitioner. But Exs.R1 to Ex.R5 do not reveal anything
about the said misconducts. Hence, the charges are
vague and devoid of necessary particulars.
14. The learned counsel for the petitioner would
submit that the provident fund code number
mentioned in the pay slip for June 2005 issued by
Padma Chemicals was PC/277A/33, while the
provident fund code number for Chemfab Alkalis
Limited, is PC/277A/138 and moreover in the pay slip
issued by Padma Chemicals, his date of entry into the
service was mentioned as 6-6-2005, while his date of
entry into service of the respondent is 1-8-1987 and
under the circumstances, the establishment of Padma
Chemicals is not a branch of Chemfab Alkalis Limited,
and the above two establishments were two
independent establishments and hence for the
misconduct alleged to have occurred in Padma
Chemicals, the respondent management cannot take
disciplinary action against the petitioner. He further
submitted that as Chemfab Alkalis Limited, cannot
legally transfer the petitioner to Padma Chemicals and
as there was no master servant relationship between
Padma Chemicals and the petitioner, the disciplinary
action cannot be taken by Padma Chemicals against
the petitioner.
15. The learned counsel for the respondent would
contend that the units functioning at different
locations eventhough under the same management,
have to be allotted separate provident code numbers
by the P.F. authorities and hence the entry in respect
of the date of joining of the petitioner would be made
according to his place of work, but this would not in
any way affect the continuity of service of the
petitioner for any statutory benefits. He further
contended that the petitioner knows very well that
Padma Chemicals is the salt division of the
respondent company and hence the respondent
company has every right to take disciplinary action
for the misconduct committed by the petitioner, whilst
is service with Padma Chemicals. In order to prove
his contention, the learned counsel for the
respondent relied upon the following decisions:—
JT 2004(8) S.C. 103 :
Divisional Controller KSRTC Versus A.T. Mane:—
“The domestic tribunal accepted that evidence
and found the respondent guilty. But the courts
below misdirected themselves in insisting on the
evidence of the ticketless passengers to reject the
said finding which, in our opinion, as held by this
court in the case of Rattan Singh (supra) is not a
condition precedent. We may herein note that the
judgment of this court in Rattan Singh’s (supra)
has since been followed by this court in Devendra
Swamy Vs. Karnataka State Road Transport
Corporation.”
2008(2) JCR 107 (SC) :
Workmen of Balmadies Estates Versus Management
Balmadies Estate and Others:—
“The Indian Evidence Act, 1872 (in short the
Evidence Act) is not applicable to the proceeding
in a domestic enquiry so far as the domestic
enquiries are concerned, though principles of
fairness are to apply. It is also fairly well settled
that in a domestic enquiry, guilt may not be
established beyond reasonable doubt and the
proof of misconduct would be sufficient. In a
domestic enquiry, all materials which are logically
probative including hearsay evidence can be acted
upon provided, it has a reasonable nexus and
credibility.”
A.I.R. 1971 SC 2414 :
Francis Klein and Co. (P) Limited, Versus Their
Workmen and Another:—
“Even this direction is not a valid direction
because if once the company has lost confidence
in its employee it is idle to ask them to employ
such a person in another job. What job can there
559
11 June 2013]
LA GAZETTE DE L’ETAT
be in a company which a person can be entrusted
with and which does not entail reposing of
confidence in that person.”
(1991) I L.L.J. 372 Mad. :
Engine Valves Limited, Versus Labour Court,
Madras and Another :—
“A specific finding must be recorded whether it
was expedient and proper to reinstate the employee
or whether award of compensation in lieu of
reinstatement will meet the requirements and ends
of justice of the case concerned. Absence of
reasons to invoke the power and interfere under
provisions of section 11(A) in a particular case
would render the very exercise of powers arbitrary
and perverse and the order consequently would
stand vitiated.”
A.I.R. 1998 S.C. 1064 :
M.H. Devendrappa Versus The Karnataka State
Small Industries Development Corporation :—
“In the present case, the appellant had made
direct public attack on the head of his
organisation. He had also, in the letter to the
Governor, made allegations against various officers
of the corporation with whom he had to work and
his conduct was clearly detrimental to the proper
functioning of the organisation or its internal
discipline. Making public statements against the
head of the organisation on a political issue also
amounted to lowering the prestige of the
organisation in which he worked. On a proper
balancing, therefore, of individual freedom of the
appellant
and
proper
functioning
of
the
Government organisation which had employed him,
this was a fit case where the employer was entitled
to take disciplinary action under rule 22.”
(2006) I L.L.J. 1004 S.C. :
Hombe Gowda Educational Trust and Another
Versus State of Karnataka and Another :—
“In several decisions of this court, it has been
noticed that how discipline at the work places/
industrial undertaking received a set back. In view
of the change in economic policy of the country,
it may not now be proper to allow the employees
to break the discipline with impunity. Our country
is governed by rule of law. All actions, therefore,
must be taken in accordance with law. Law declared
by this Court in terms of Article 141 of the
Constitution of India, as noticed in the decisions
noticed supra, categorically demonstrates that the
tribunal would not normally interfere with the
quantum of punishment imposed by the employers
unless an appropriate case is made out therefor.
The Tribunal being inferior to that of this court
was bound to follow the decisions of this Court
which are applicable to the fact of the present case
in question. The Tribunal can neither ignore the
ratio laid down by this Court nor refuse to follow
the same.”
16. As per the averments of the respondent, Padma
Chemicals and the respondent unit are the same
management. But there is no document produced on
the side of the respondent to prove the said
contention. In the absence of any such evidence, this
court has come to the conclusion both units are not
under the same management. Hence, the transfer of
the petitioner from the respondent unit to Padma
Chemicals is illegal.
17. 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.
18. 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.
19. On the side of the respondent, the enquiry
proceedings was marked as Ex.R22. On perusal of
Ex.R22, it is seen that the enquiry has been
commenced on 16-7-2006 and the petitioner has
participated in the enquiry proceedings and the
Enquiry Officer has permitted the petitioner to have
the assistance of a co-worker and the petitioner
brought one Kannaiyan as defence assistant and the
same was permitted by the Enquiry Officer. A perusal
of Ex.R22 further reveals that on the side of the
respondent management, five witnesses have been
examined and all the five witnesses have been cross-
examined by the petitioner and then the petitioner did
not participate in the enquiry proceedings and then
the enquiry was closed and the Enquiry Officer
submitted his report by holding that the charges
levelled against the petitioner were proved. Then
second show cause notice regarding proposed punishment
under Ex.R24 was sent to the petitioner and the
petitioner submitted his explanation under Ex.R26 and
not satisfying with the explanation sent by the
petitioner, the respondent sent the termination order
under Ex.R27. Hence, the above documents would
clearly proved that the respondent has conducted the
enquiry in a fair manner and there was no violation
of principles of natural justice. But as already stated,
560
LA GAZETTE DE L’ETAT
[11 June 2013
the charges are vague and devoid of necessary
particulars and hence no enquiry can be sustained on
vague charges and consequently, the dismissal order
passed by the respondent management based on the
said enquiry is liable to be set aside.
20. The learned counsel for the respondent has
submitted that the petitioner instead of seeking
redressal of his grievances by lawful methods had
unleashed along with the then drivers, without any
reasonable cause or excuse, vilification campaign
against the company and as a part of such vilification
they have sent complaints to various authorities
making outrageously false, frivolous, vexatious and
baseless allegations against the respondent company
touching upon its status and reputation and a
thorough enquiry and spot verification by the
concerned authorities brought to limelight the falsity
of the allegations made by the petitioner and the
then drivers and hence the respondent company by
advocate notice, dated 18-7-2006 called upon the
petitioner to tender unconditional apology for
defaming the company and apprehending launching
of civil and criminal proceedings against him, the
petitioner has raised an industrial dispute of non-
employment as a counter blast to the said notice and
his attitude and approach have established his
hatred towards the company. He further submitted
that the private complaint in C.C. No. 86/2007
renumbered as C.C. No. 604/2009 filed against the
petitioner is pending on the file of Judicial
Magistrate-II, Pondicherry and the civil suit in O.S.
No. 173/2006 claiming damages of ` 5,00,000 filed
against the petitioner for defaming the company is
pending on the file of Principal Sub-Judge, Pondicherry.
21. In order to prove the said fact, the learned
counsel for the respondent has marked the copy of
the letter sent by the petitioner to the State Ground
Water Unit as Ex.R31, copy of the letter sent by the
petitioner to the Member-Secretary, Department of
Science, Technology and Environment as Ex.R32,
copy of the advocate notice, dated 18-7-2006 sent to
the petitioner as Ex.R33, copy of the complaint filed
before the Judicial Magistrate-II, Pondicherry against
the petitioner and others as Ex.R34, copy of the plaint
in O.S. No.173/2006 on the file of Principal Sub-Judge,
Pondicherry as Ex.R35. Exs.R31 to Ex.R35 prove the
above contents of learned counsel for the respondent.
Admittedly, the petitioner has been terminated from
service on 28-9-2005 and after termination, he sent the
above complaints to the various Government offices,
complaining about the respondent company. When
the petitioner has been terminated by the respondent,
he has to seek redressal of his grievances by lawful
methods. Instead of it, he sent various complaints
about his employer to the various Government
departments and caused mental agony to his
employer, which cannot be tolerated. Hence, the
petitioner cannot expect any back wages from his
employer. In the above circumstances, the petitioner
is not entitled for any back wages and other benefits.
Accordingly, this point is answered.
22. In the result, the industrial dispute is partly
allowed
and
the
petitioner
is
entitled
for
reinstatement with continuity of service. However,
he is not entitled for back wages and other benefits.
No costs.
Typed to my dictation, corrected and pronounced
by me in the open court on this 18th day of
January, 2013.
T. MOHANDASS,
Presiding Officer,
Labour Court, Puducherry.
————
List of petitioner’s witnesses :
PW.1 — 8-8-2011
— Alwin Maria Susai
PW.2 — 25-6-2012
— Sundararajan
List of petitioner’s exhibits :
Ex.P1
— Pay slip of the petitioner
Ex.P2
— Transfer order, dated 3-6-2005 issued to
the petitioner.
Ex.P3
— Representation, dated 10-6-2005 sent by
the petitioner to the respondent.
Ex.P4
— Charge sheet, dated 21-6-2005
Ex.P5
— Representation, dated 22-6-2005 by the
petitioner to the respondent.
Ex.P6
— Complaint, dated 24-6-2005 given by the
petitioner.
Ex.P7
— Copy of the telegraphic message given
by the petitioner on 25-6-2005.
Ex.P8
— Copy of the telegraphic message given
by the petitioner on 25-6-2005.
Ex.P9
— Reply, dated 25-6-2005 by the petitioner
to the respondent.
Ex.P10 — Advocate notice, dated 28-6-2005 sent
by the petitioner to the respondent.
Ex.P11 — Notice of termination, dated 28-9-2005
Ex.P12 — Representation, dated 5-10-2005 sent by
the petitioner.
Ex.P13 — Reply, dated 11-12-2006 submitted by
the petitioner to the respondent.
561
11 June 2013]
LA GAZETTE DE L’ETAT
List of respondent’s witnesses :
RW.1
— 24-8-2012 — Daniel Rajanayagam
List of respondent’s exhibits :
Ex.R1
— Letter of complaint against the petitioner
to
Ex.R5
Ex.R6
— Charge sheet issued to the petitioner,
dated 21-6-2005.
Ex.R7
— Explanation submitted by the petitioner,
dated 25-6-2005.
Ex.R8
— Notice of enquiry issued to the
petitioner, dated 1-7-2005.
Ex.R9
— Returned registered postal cover
Ex.R10 — Exhibits marked in the domestic enquiry.
Ex.R11 — Letter by the petitioner to the Enquiry
Officer, dated 19-7-2005.
Ex.R12 — R e p l y l e t t e r b y t h e r e s p o n d e n t ,
dated 23-7-2005.
Ex.R13 — Letter by the petitioner to the Enquiry
Officer, dated 23-7-2005.
Ex.R14 — Letter by the petitioner to the Enquiry
Officer, dated 27-7-2005.
Ex.R15 — Reply letter, dated 30-7-2005 by the
respondent.
Ex.R16 — Letter by the petitioner to the Enquiry
Officer, dated 13-8-2005.
Ex.R17 — Letter by the petitioner to the Enquiry
Officer, dated 18-8-2005.
Ex.R18 — Letter by the petitioner to the Enquiry
Officer, dated 27-8-2005.
Ex.R19 — Letter by the petitioner, dated 27-8-2005
Ex.R20 — Reply letter by the respondent,
dated 31-8-2005.
Ex.R21 — Letter by the respondent, dated 31-8-2005
to the Enquiry Officer.
Ex.R22 — Enquiry proceedings
Ex.R23 — Enquiry report, dated 12-9-2005
Ex.R24 — Show cause notice sent to the petitioner,
dated 20-9-2005.
Ex.R25 — Tamil version of show cause notice,
dated 20-9-2005.
Ex.R26 — Letter by the petitioner, dated 24-9-2005
Ex.R27 — Notice of termination of service,
dated 28-9-2005.
Ex.R28 — Letter by the petitioner to the Labour
Officer, dated 10-7-2006.
Ex.R29 — Reply letter by the respondent to the
Labour Officer, dated 17-8-2006.
Ex.R30 — Failure report, dated 30-10-2006
Ex.R31 — Copy of the letter sent by Member-Secretary
to the respondent, dated 30-6-2006.
Ex.R32 — Copy of the letter sent by Member-Secretary
to the respondent, dated 11-7-2006.
Ex.R33 — Copy of the Advocate notice,
dated 18-7-2006.
Ex.R34 — Copy of the private complaint in C.C. 86/2007
Ex.R35 — Copy of the plaint in O.S. No.173/2006
Ex.R36 — Copy of the extract of resolution passed
by the respondent.
Ex.R37 — Copy of the extract of resolution passed
by the respondent.
Ex.R38 — Copy of the factory licence issued to
Padma Chemicals.
Ex.R39 — Copy of the factory licence.
T. MOHANDASS,
Presiding Officer,
Labour Court, Puducherry.
————
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 79/Lab./AIL/J/2013, dated 23rd May 2013)
NOTIFICATION
Whereas, an award in I.D. No. 5/2012, 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 A.S. Arokiyanathan, son of Augustin,
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
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).
562
LA GAZETTE DE L’ETAT
[11 June 2013
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. 5/2012
A.S. Arokiyanathan, S/o. Augustin . .
Petitioner
Versus
The Managing Director,
Hindustan Unilever Limited,
Detergent Factory, Puducherry.
. .
Respondent
This industrial dispute coming on 26-11-2012 for final
hearing before me in the presence of Thiru R.T. Shankar,
Advocate for the petitioner, Tvl. 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 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 7-11-1997
and he was a member in the Hindustan Unilever
Employees Union.
The respondent raised a false allegation against
the petitioner that from 19-2-2010 to 30-6-2010 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 8-11-1997. The petitioner was a
chronic absentee taking leave without authorisation.
The petitioner continued to be erratic in his
attendance and remained unauthorisedly absent on
various dates from 12-6-2010 onwards frequently.
When the petitioner did not turn up for employment
till 27-7-2010, the respondent issued a detailed charge
sheet on 28-7-2010, 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
19-2-2010 and even thereafter. The Enquiry Officer
submitted his detailed report on 9-11-2010 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
returned
unserved
with
endorsement “Left”. The respondent published the
second show cause notice in Thina Thanthi Tamil
daily and the petitioner did not respond to such
publication. Then the respondent terminated the
petitioner vide order, dated 17-3-2011 and it was also
not received by the petitioner. The respondent once
again published the petitioner's termination order in
Thina Thanthi Tamil daily. 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 Ex.P1 to Ex.P9 were marked. On the side of
the respondent, RW.1 was examined and Ex.R1 to Ex.R14
were marked.
5. The point for determination is:
Whether the petitioner can be considered for
reinstatement in service with accrued benefits?
563
11 June 2013]
LA GAZETTE DE L’ETAT
6. On the point :
According to the petitioner, he was working as
permanent employee in the respondent company from
7-11-1997 and the respondent raised a false allegation
against him that from 19-2-2010 to 30-6-2010 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., 141 days from 1-1-2009 to 29-6-2009
and 72.5 days from 30-6-2009 to 18-2-2010 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 19-2-2010 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 June 2008 as Ex.R13 and the
computerised statement of overall percentage of
authorised and unauthorised absenteeism from January
2006 to December 2012 as Ex.R14. A perusal of Ex.R14
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 unions or any terms of employment or leave rules
or standing order clause unilaterally introduced the
attendance/automatic lock/reject system and this was
disputed by the trade union. The learned counsel for the
petitioner further submitted that the petitioner union
filed a writ petition before the Hon'ble High Court,
Madras and the Hon'ble High Court dismissed the said
petition stating that they can raise the said dispute
before the Industrial Tribunal for remedy.
10. On the side of the petitioner, the President of the
Hindustan Unilever Employees Association was
examined as PW.2. PW.2 in his evidence has deposed
that he was working as Skilled Operator in the
respondent company and the petitioner is the member of
his association and Ex.P5 is the application given by the
petitioner for joining his association, PW.2 further
deposed that the respondent company introduced
computerised time attendance system and whenever the
workmen registered their names, it was programmed
that registration will be directly rejected and utilising the
said programme and with a view to victimise the
workers, the registration was locked and the petitioner
complained that his presence was not registered in the
computer and the same was complained to the Labour
Officer (Conciliation) under Ex.P8 and since he has not
taken any steps, the union filed a writ petition before
the Hon'ble High Court, Madras and Ex.P9 is the copy
of the judgment given by the Hon'ble High Court,
Madras. A perusal of Ex.P9 reveals that the petitioner's
union complained about introduction of computerised
time attendance system and the Hon'ble High Court,
Madras after discussing all the material aspects,
dismissed the writ by stating follows:
"The union have agreed for the introduction of
TAS system of attendance by a settlement.
Therefore, it is too late for the petitioner 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
111-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.P9 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.P9 becomes final and it binds the
petitioner's union and consequently, the contention of
the learned counsel for the petitioner that the
introduction of attendance/automatic lock/reject system
is illegal, cannot be accepted. Hence, the respondent
has proved through Ex.R13 and Ex.R14 that the
564
LA GAZETTE DE L’ETAT
[11 June 2013
petitioner, has unauthorised absent for 141 days from
1-1-2009 to 29-6-2009 and 72.5 days from 30-6-2009
to 18-2-2010.
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 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.R1. On perusal of Ex.R1, 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 he had remained unauthorisedly
absent, as stated in the charge sheet and he did not want
to say anything. 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.R9 intimating the punishment of dismissal and since
the petitioner did not claim the said notice, the dismissal
order under Ex.R11 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
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,
Versus 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 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".
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, as 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.P5. As per Ex.P5 the petitioner was a
565
11 June 2013]
LA GAZETTE DE L’ETAT
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 4-1-2011. On perusal of Ex.P1, it is seen that
the original date has been corrected as 4-1-2011
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 under Ex.P1 in this case bears the
receipt number 597 and the genuine receipts can only
be in ascending order and not be in descending order
from 597 on 4-1-2011 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 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 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 of certified
register containing names of the members of union as
required in Trade Unions Act, the non-production of
audited balance-sheet of the union with full details on
subscription collected from its members and PW.2 could
not give any convincing answers to these questions in
cross-examination.
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.P5 is not in any way 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, 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 S.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 S.33(2)
automatically led to, the conclusion that the respondent
was the workman concerned and could, therefore, claim
the protection of S.33(2)."
1992 1LLJ 837 Madras
Rajagopal and Others Versus 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".
566
LA GAZETTE DE L’ETAT
[11 June 2013
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.
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
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 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.P2 and Ex.P3. It is already decided
that the petitioner has not proved that he was a member
of Hindustan Lever Employees Union. Hence, Ex.P2 and
Ex.P3 would not support the case of the petitioner. The
learned counsel for the respondent has not challenged
the documents under Ex.P2 and Ex.P3. In the above
circumstances, when the Conciliation Officer has
conducted the conciliation in respect of the issues with
regard to the service conditions of the employees and
declaration of paid holidays pertaining to the
respondent management, this court has to see whether
the 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 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 Versus Ors. Vs. Bishamber Das Doara:-
"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 Versus 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.".
567
11 June 2013]
LA GAZETTE DE L’ETAT
2006-1-LLJ-55 (Madras)
O. Krishnan Versus 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 previous
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 Versus The Presiding Offcer:
"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 Versus
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 8-11-1997 and he was chronic absentee from 2009
only. Prior to 2009 there was no remarks or misconduct
by the petitioner. Of course the history sheet of the
workman shows that the period of absence from 2009 to
2010 are very much long period of absence, which
cannot be considered leniently. More than two spells of
unauthorised leave taken by the petitioner were
admitted by the petitioner, which were also warned in
time, and he was also suspened for two weeks for
unauthorised absent from 30-6-2009 to 18-2-2010.
These lapses are very serious in nature and hence
considering the habit of long unauthorised absence,
I feel that he cannot be reinstated into service. However,
the punishment of dismissal from the service is
disproportionate one, but I am of the opinion that he can
be awarded the monetary compensation 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 dispute 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 petitoner:
PW.1
—
28-9-2012- A.S. Arokiyanathan
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 4-1-2011.
Ex.P2
—
Copy of notice sent by the Conciliation
Officer.
Ex.P3
—
Copy of the notice sent by the
Conciliation Officer, dated 2-11-2010.
Ex.P4
—
Dispute raised by the petitioner before
the Conciliation Officer, dated 9-11-2011.
Ex.P5
—
Copy of the admission application for
joining in the union, dated 6-3-2008.
Ex.P6
—
Copy of the letter, dated 13-5-2008 sent to
the Inspector of Factories.
Ex.P7
—
Copy of the conditions of service for
change, dated 21-10-2010.
568
LA GAZETTE DE L’ETAT
[11 June 2013
Ex.P8
—
Copy of the letter sent to the Inspector of
Factories, dated 20-2-2008 by the union.
Ex.P9
—
Copy of the judgment of Hon'ble High
Court, dated 8-6-2010.
List of exhibits marked for the respondent:
Ex.R1 —
Copy of the enquiry proceedings marked
through PW.1 in cross.
Ex.R2 —
Authorisation letter, dated 24-10-2012
Ex.R3 —
Copy of the show cause notice to
petitioner, dated 10-1-2006.
Ex.R4 —
Copy of the advise letter given by the
respondent, dated 31-1-2006.
Ex.R5 —
Copy of the charge sheet issued to the
petitioner, dated 30-6-2009.
Ex.R6 —
Copy of the letter given by the petitioner,
dated 9-1-2010.
Ex.R7 —
Copy of the enquiry proceedings
Ex.R8
—
Copy of the enquiry report, dated 9-11-2008
Ex.R9 —
Copy of the second show cause notice,
dated 11-1-2011.
Ex.R10 —
C o p y o f t h e p a p e r p u b l i c a t i o n ,
dated 30-1-2011.
Ex.R11 —
C o p y o f t h e t e r m i n a t i o n o r d e r,
dated 6-5-2011.
Ex.R12 —
Copy of the termination order published
in the Thina Thanthi newspaper,
dated 6-5-2011.
Ex.R13 —
Copy of the extract of computerised
muster roll.
Ex.R14 —
Computerised statement of overall
percentage
of
authorised
and
unauthorised absenteeism.
T. MOHANDASS,
Presiding Officer, Labour Court,
Puducherry.
————
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 80/Lab./AIL/J/2013, dated 23rd May 2013)
NOTIFICATION
Whereas, an award in I. D. No. 18/2009, dated 19-2-2013
of the Labour Court, Puducherry in respect of the
industrial dispute between the Managing Director,
M/s. Athiappa Chemicals (P) Limited, Mettupalayam,
Puducherry and Athiappa Chemicals (P) Limited
Employees’ Welfare Union (AEWU) over non- employment
of 34 workers 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.
Wednesday, the 19th day of February 2013
I.D. No. 18/2009
The President,
. .
Petitioner
Athiappa Chemicals (P) Limited
Employees’ Welfare Union,
M.G. Road, Puducherry.
Versus
The Managing Director,
. .
Respondent
Athiappa Chemicals (P) Limited,
Mettupalayam, Puducherry.
This industrial dispute coming on 7-2-2013 for final
hearing before me in the presence of Thiru M. Nakkeeran,
Advocate for the petitioner, Thiru B. Mohandass,
Advocate for the respondent, upon hearing both sides,
upon perusing the case records, after having stood over
for consideration till this day, this court passed the
following:
AWARD
This industrial dispute arises out of the reference
made by the Government of Puducherry, vide
G.O. Rt. No.122/AIL/Lab./J/2009, dated 20-8-2009 of the
Labour Department, Puducherry to resolve the
following dispute between the petitioner and the
respondent, viz.,
(1) Whether the dispute raised by Athiappa
Chemicals (P) Limited Employees’ Welfare Union
(AEWU), Puducherry against the management of
M/s. Athiappa Chemicals Private Limited, Mettupalayam,
Puducherry over non-employment of 34 workers viz.,
1. N. Indirani, 2. P. Kasthuri, 3. M. Ponnusamy,
4. S. James, 5. K. Vinayagam, 6. S. Arumugam,
569
11 June 2013]
LA GAZETTE DE L’ETAT
7. Subramani, 8. K. Pandurangam, 9. S. Subulakshmi,
10. S. Panjavarnam, 11. L. Rejendran, 12. S. Nithiyanandadoss,
13. P. Senthilkumar, 14. Prasannakumar, 15. R. Rani,
16. A. Aravalli, 17. S. Murugan, 18. B. Murugan,
19. B. Bivith Jena, 20. H. Ajay Nayak, 21. G. Sona Thana,
22. S. Samaya Swain, 23. P. Pranap Mohanthi,
24. B. Manmogandoss, 25. C. Meer Kumar, 26. P. Ajay
Kumar Routh, 27. D. Jega, 28. Subadha Jena, 29. A Raman,
30. N. Loganath, 31. Kaladiswain, 32. Duryadhana,
33. S. Periyasamy and 34. M. Chandra Kumar is
justified or not?
(2) If justified, to what relief, the petitioners are
entitled to?
(3) To compute the relief, if any, awarded in terms
of money, if it can be so computed.
2. The petitioner in his petition has stated as
follows:-
The respondent is an industry in existence for
more than 15 years and is engaged in production
of barium carbonate, sodium sulphate and barium
carbonate. The poor workers have been subjected
to occupational hazards like skin irritation, eye
irritation, ulcers, diminishing of vision, hair falling
etc. All the workers, who are working for more than
ten years, have not been provided with E.S.I. and
E.P.F. benefits. The provisions of factories act and
other
labour
welfare
acts
have
not
been
implemented. There is no provision for clean
drinking water, sufficient toilet facilities and seating
arrangements for workers working on standing
position for hours.
In order to safeguard the interest of the workers
and to help them to assert their rights, the petitioner
trade union was formed on 25-5-2006. Hence, the
management had foisted a false criminal case against
the poor workers of Orissa. Various representations
were sent by the petitioner union to the Labour
Department and other authorities about the
victimisation resorted by the management and
requesting enquiry under the payment of wages act
and other provisions of law. The privileges
available to the office-bearers of the union under
the industrial disputes act have not been
considered by the management. On the contrary, the
President, Secretary, Treasurer and other Executive
Committee Members were targeted and charge
sheeted and the enquiries were conducted without
observing the rules of natural justice.
On 10-8-2006, the respondent's factory was
alleged to have discharged toxic effluents in the air,
affecting the environment and also stated to have
affected children and people living in the vicinity
of the factory. Consequently, the respondent
announced lock out from 12-8-2006 without
providing information or issuing notice to the
employees. The respondent laid off 45 workers
working in their industry. The laid off workmen were
not given salary from August 2006 and bonus for
2005 and 2006. They were also not even paid any
compensation.
The respondent reopened the industry from 6-7-2007
subsequent to the order passed by the Hon'ble High
Court on 26-6-2007 in W.P. No.18483 of 2007. But
the respondent failed to employ the workers, who
were laid off and engaged fresh hands in the place
of laid off workers against the law. Hence, the
petitioner union filed an application in M.P. No.3 of
2007 in W.P. No.18483 of 2007 for impleading them
as a party to the writ proceedings and for a direction
to the respondent to engage the erstwhile workers
employed by it pending disposal of the writ petition.
By order, dated 26-9-2007, the Hon’ble High Court has
granted permission to implead the petitioner union
as a party. The respondent management before the
Hon’ble High Court gave assurance to recall the
laid off workmen as soon as the company recommences
its operations. But after recommencement of the
operations, the respondent recalled 10 workmen
only on 26-10-2007 and started production by
engaging new labours. Hence, the petitioner gave
representations repeatedly to the management for
reemployment of all 45 laid off workmen. Since the
respondent failed to reemploy all the said laid off
workers, the dispute was referred to the Labour
Officer (Conciliation) and since the conciliation
proceedings ended in failure, the Labour Officer
reported failure of conciliation on 12-12-2008. In
pursuance, the Government of Puducherry has
referred the said dispute for adjudication before this
court.
3. The respondent in his counter has stated as
follows:-
The respondent company was issued with a
closure order, dated 11-8-2006 by the Department
of Science and Technology without prior notice
based on a report published in the newspaper that
four children had fainted in the vicinity of the
respondent unit. The order of closure was
challenged by the respondent in W. P. No. 18483 of
2007 before the Hon’ble High Court, Madras.
By an interim order, dated 26-6-2007, the industrial
unit of the respondent company was allowed to
commence its operations and the Regional Director,
National Environmental Engineering Research
Institute, Chennai was asked to inspect the unit and
570
LA GAZETTE DE L’ETAT
[11 June 2013
submit a report about the status of air pollution
impact from the respondent unit. The Hon’ble High
Court also observed that the respondent in the above
writ petition were unable to show any material to
sustain the order of closure and that there was not a
shred of evidence to show that the industrial unit had
caused air and water pollution and set aside the order
of Pondicherry Pollution Control Board, dated 4-5-2007.
The petitioner union filed an application in
M.P. No. 3/2007 in the above writ petition to get
itself impleaded as third respondent and the Hon'ble
High Court passed orders on 26-9-2007 allowed the
said application and recorded the submission of the
senior counsel appearing for the respondent
company that due to the closure of the unit, the
employees could not be given any work during last
one year before that date and as the closure order
had been set aside, the company would recommence
its operations and provide employment to the
workers and they would be called in for the work in
batches. Accordingly after taking note of the
prevailing
circumstances
and
administrative
exigencies, the respondent management has offered
work to ten employees and out of ten, one employee
by
name
Chandrakumar
was
returned
to
the management with the postal endorsement
“not claimed”, while others acknowledged the
receipt of the letters. The said nine employees
reported to duty on 1-11-2007. Subsequently on
account of improvement in production and
necessity to meet the demands to the customers,
the management offered employment to 7 other
workers namely 1. N. Devanathan, 2. S. Diwan Routh,
3. M. Ponnusamy, 4. N. Indirani, 5. S. James,
6. K. Ragunathan and 7. S. Radhakrishnan and they
reported duty on 5-1-2008. As regards N. Devanathan,
he reported to duty in the morning of 5-1-2008 and
then he did not turn up for work. The letter sent to
Indirani was returned to the management with the
postal endorsement ‘not claimed’ while the letter
sent to James was returned with postal endorsement
'no such addressee’-Ponnusamy tendered leave
letter seeking leave from 5-1-2008 on account of his
trip to Sabarimala and then he did not turn up for
duty. As such S. Diwan Routh, K. Ragunathan and
S. Radhakrishnan alone reported to duty and continued
their employment.
During the pendency of the industrial dispute
before the Conciliation Officer, the petitioner union
gave strike notice dated 27-12-2007 and in accordance
with the said notice, the workmen, who were
members of the said union resorted to illegal strike
from 10-1-2008 onwards. The Conciliation Officer
took note of the said unlawful strike and has given
show cause notice, dated 25-2-2008.
The Conciliation Officer submitted failure report,
dated 12-12-2008. Subsequently through letter,
dated 2-3-2009, the Conciliation Officer requested
the respondent management to furnish particulars
of persons reemployed and persons not reemployed
to transmit the same to the Labour Commissioner.
Accordingly, the respondent submitted the list of
40 persons originally employed and the list of
17 persons reemployed.
There are some subsequent developments after
the reference of the industrial dispute by the
Government to this court. Lot of changes have taken
place which have got a bearing on the claim made
by the petitioner union for reinstatement with back
wages. The Puducherry Pollution Control Committee
passed order, dated 16-11-2011 for closure of
the industry run by the respondent company.
The respondent company preferred appeal before
the appellate authority at New Delhi. In the above
appeal, the said authority passed orders on 5-7-2012
directing NEERI, Chennai to inspect the petitioner
industry and to submit report regarding air pollution
norms and the appeal is pending. Hence, the non-
employment of the workmen in respect of whom the
petitioner union has raised industrial dispute is not
on account of any voluntary act on the part of the
respondent company. As such the respondent
cannot be found fault with for the non-employment
of the workmen which was on account of the order
of the closure of the industry by the Government
department for no fault of the respondent. Hence,
they pray for dismissal of the industrial dispute.
4. On the side of the petitioner, PW.1 was examined
and no document was marked. On the side of the
respondent, RW.1 was examined and Exs.R1 to Ex.R13
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 on 10-8-2006
the respondent's factory was alleged to have
discharged toxic effluents in the air, affecting the
environment and consequently they announced lock
out from 12-8-2006 as ordered by the Pollution Control
Committee and laid off 45 workers working in their
industry and the respondent reopened the industry
from 6-7-2007 subsequent to the order passed by the
Hon’ble High Court, Madras, but the respondent
failed to employ the workers, who were laid off and
engaged fresh hands in the place of laid off workers
against the law. In order to prove their claim, the
President of Athiappa Chemicals (P) Limited,
Employees’ Welfare Union was examined as PW.1.
571
11 June 2013]
LA GAZETTE DE L’ETAT
7. Per contra, the contention of the respondent is
that the non-employment of the workmen in respect of
whom, the petitioner union has raised industrial
dispute is not on account of any voluntary act on the
part of the respondent company and as such the
respondent cannot be found fault with for the
non-employment of the workmen, which was on
account of the order of the closure of the industry by
the Government Department for no fault of the
respondent. They further contended that only on
account of the steps taken by the respondent before
the Hon’ble High Court, the earlier order of the
Government for closure was set aside and the
workmen were reemployed as per the directions made
in the writ petition. In order to prove their claim, the
manager of respondent company was examined as
RW.1.
8, It is an admitted fact that the petition mentioned
workmen were the employees under the respondent
company announced lock-out from 12-8-2006 as
ordered by the Pollution Control Committee based on
a report published in the newspaper that four children
had fainted in the vicinity of the respondent's unit and
the respondent laid off 45 workers working in their
industry and the order of closure was challenged by
the respondent in Writ Petition No. 18483 of 2007
before the Hon’ble High Court, Madras and by an
interim order, dated 26-6-2007, the industrial unit of
the respondent company was allowed to commence its
operations and the Regional Director, NEERI, Chennai
was asked to inspect the unit and submit a report
about the status of air pollution impact from the
respondent unit and based on the report of NEERI,
Chennai, the Hon’ble High Court, Madras has passed
an order, setting aside the closure order passed by the
Member-Secretary, Department of Science, Technology
and Control Committee, Puducherry. Ex.R1 is the said
order passed by the Hon’ble High Court, Madras.
It is also an admitted fact that the petitioner union filed
an application in M.P. No. 3/2007 in the above writ
petition to get itself impleaded as third respondent
and the Hon'ble High Court passed an order on
26-9-2007, allowing the said petition and recorded the
submission of the senior counsel appearing for the
respondent company that–
“Due to the closure of the unit, the employees
could not be given any work during last one year
before that date and as the closure order had been
set aside, the company would recommence its
operations and provide employment to the workers
and they would be called in for work in batches.”
Ex.R2 is the copy of the order passed by the
Hon’ble High Court, Madras, allowing the impleading
petition filed by the petitioner union.
9. As per the orders of the Hon’ble High Court,
Madras, dated 26-9-2007 in W.P. No. 18483/2007, it is
open to the respondent to provide employment to the
workers by calling them for work in batches. In this
regard, the learned counsel for the petitioner has
submitted that after recommencement of the
operations, the respondent called ten workmen only
on 26-10-2007, whereas even before recalling the said
ten workmen, the management started production by
engaging new labour instead of recalling the laid off
workmen as undertaken before the Hon’ble High Court
and hence the petitioner gave representations
repeatedly to the management for the reemployment of
all the 45 laid off workmen and since the respondent
failed to reemploy all the laid off workers, the dispute
was referred to the Labour Officer by representation,
dated 12-8-2006.
10. On the other hand, the learned counsel for the
respondent has submitted that after taking note of
prevailing circumstances and administrative exigencies,
the respondent management has offered work to ten
employees and the individual call letters were sent to
them asking them to report for duty on 1-11-2007.
11. When the respondent gave undertaking to the
Hon’ble High Court that they will provide employment
to the lay off workmen in batches, as soon as the
company recommences its operations, it is the duty of
the respondent to provide employment to the remaining
workmen also. But the respondent in his letter to the
Conciliation Officer, dated 10-12-2007 under Ex.R5 have
stated as follows:-
“We would like to point out at this juncture that
the union has raised the dispute only in respect
of the workmen, who are their members. But there
are seven other workmen by name Prathab Naik,
Rajkumar
Raj,
Dhirendrakumar,
Akaikumar,
Arivazhagan, Niranjan and Parvathi in respect of
whom dispute was not raised by the union and who
were also employed by the management even prior
to the closure of the industry by the order of the
Pondicherry
Pollution
Control
Committee.
The above persons are seniors to the other
workmen who are members of the union. In addition
to them, the factory had employed some contract
workmen even prior to the closure of the industry
and they were employed for pulverising, cleaning
thermax and filter press operations and the very
same persons supplied by the contractors are
continuing their work, after reopening of the factory.
There is nothing wrong in employing the said seven
persons as well as the contract workers and the
petitioner union cannot have any legal grievance in
this regard."
572
LA GAZETTE DE L’ETAT
[11 June 2013
The contention of the respondent before the
Labour Officer that certain persons who were also
employed by the management prior to the closure and
who are seniors to workmen affiliated to the union,
cannot be accepted, as no evidence has been placed
by the respondent regarding the muster roll of the
persons employed after restarting the factory. Further
the respondent admits about the employment of
persons supplied by the contractors in Ex.R5, which
is total violation of the undertaking given before the
Hon’ble High Court. While the respondent has
engaged and placed nine workmen, who were
reemployed in positions other than those in which
they were employed before the closure, the respondent
could have employed the non-employed workmen in
the place of the contract workers even if the nature of
the work were different.
12. In Ex.R5 the respondent has stated to the
Conciliation Officer that as against three filter press
machines employed earlier (at the time of the closure
industry) at present there is only one filter press
machine employed on account of the fact that the other
two machines have been disposed for scrap value as
they cannot be employed for any further for the normal
production activities and hence the production has
been reduced. In this regard, the learned counsel for
the petitioner has submitted that though the
respondent claims that the production has been
reduced due to the scrapping of the two filter press
machines, the entire process of production still
remains the same and at least 15 workmen per shift is
required to operate all the machineries. This aspect of
learned counsel for the petitioner has not been denied
by the respondent either in the counter or in their
evidence. Hence, there could not be any production
unless the respondent has engaged new hands
denying employment to the workmen under reference.
In the above circumstances, the non-employment of
34 persons under reference is unjustified. The learned
counsel for the respondent has contended that the
respondent cannot be found fault with for the non-
employment of the workmen, which was on account of the
order of the closure of the industry by the Government
for no fault of the respondent. Of course the said
contention may be true, but as per the undertaking
given by the respondent to the Hon’ble High Court, it
is bound and duty of the respondent to provide
reemployment to the petition mentioned workmen.
Hence, the petition mentioned workmen are entitled for
reinstatement with continuity of service and with full
back wages and other attendant benefits. There is no
dispute that the salary from August 2006, the month
on which the lock-out was declared by the respondent,
has not been given to the petition mentioned workmen.
Hence, the petition mentioned workmen are entitled for
full back wages from August 2006.
13. The learned counsel for the petitioner prayed
this court to direct the respondent for compensation
to the non-employed workmen for the period of
closure. But this present industrial dispute has been
referred to this court only to adjudicate whether the
non-employment of 34 workmen is justified or not, for
which this court has already come to the conclusion
that it is unjustified. Hence, this court cannot pass any
order in respect of compensation to the period of
closure, as there is no reference in this regard.
Accordingly, this point is answered.
13. In the result, the industrial dispute is allowed
and the petition mentioned workmen are entitled for
reinstatement with continuity of service and with full
back wages and other attendant benefits. No costs.
Typed to my dictation, corrected and pronounced by
me in the open court on the 19th day of February 2013.
T. MOHANDASS,
Presiding Officer,
Labour Court, Puducherry.
————
List of petitioner’s witnesses :
PW.1 —
8-9-2011
— Chinnappa, President of
petitioner union.
List of petitioner’s exhibits : Nil.
List of respondent’s witnesses:
RW.1 —
6-12-2012
— Sathiswaran, Manager of
respondent company.
List of respondent’s exhibits:
Ex.R1
— Copy of the order in W.P. No. 18483/
2007 of Hon’ble High Court, Madras,
dated 26-9-2007.
Ex.R2
— Copy of the order, dated 26-9-2007 in
M. P. No. 3/2007 of Hon’ble High Court,
Madras.
Ex.R3
— C o p y o f t h e r e p r e s e n t a t i o n ,
dated 10-7-2007 by respondent to
Labour Officer.
Ex.R4
— Copy of the reply, dated 26-7-2007 by
respondent to the Labour Officer.
Ex.R5
— Copy of the letter, dated 10-12-2007 sent
by the respondent to the Labour
Officer.
Ex.R6
— Copy of the letter, dated 27-2-2008 sent
by the respondent to the Labour Officer.
Ex.R7 — Copy of the representation, dated 9-9-2008
sent by respondent to the Labour Officer.
573
11 June 2013]
LA GAZETTE DE L’ETAT
Ex.R8
— Copy of failure report, dated 12-12-2012
Ex.R9
— Copy of letter, dated 2-3-2009 sent by
Labour Officer to the respondent.
Ex.R10 — Copy of list of all employees sent by the
respondent to the Labour Officer.
Ex.R11 — Copy of list of 17 employees who were
offered reemployment sent to the
Labour Officer.
Ex.R12 — Copy of order, dated 5-7-2012 in Appeal
No. 2/2012 by the appellate authority.
Ex.R13 — Copy of the order, dated 16-11-2011
passed by Puducherry Pollution Control
Committee.
T. MOHANDASS,
Presiding Officer,
Labour Court, Puducherry.
GOVERNMENT OF PUDUCHERRY
GENERAL ADMINISTRATION (INFORMATION AND
PUBLICITY) DEPARTMENT
(G.O. Ms. No. 2, dated 15th May 2013)
NOTIFICATION
As per section 11A of the Press and Registration of
Books Act, 1867, all the publishers/printers of the
newspapers/periodicals are required to submit two
copies of their publications regularly at free of cost to
the officers prescribed by the notification issued by the
Government. While submitting their newspapers/
periodicals, it is required to submit their RNI Certificate
in the first instance in order to maintain a full record of
the newspapers/periodicals published in the Union
territory of Puducherry. After submitting the copies of
the newspapers/periodicals of their publications in
duplicate, they can get an acknowledgment from the
nominated officer.
2. If the newspapers/periodicals have not submitted
their editions/publications successively as indicated
below to the nominated officer, then it is treated that
they have discontinued their editions/publications and
the advertisements/facilities/benefits extended by the
Information and Publicity Department in respect of
those defaulted media shall be withdrawn without any
notice:
(a)
Dailies
. .
7 issues successively
(b)
Weeklies
. .
4 issues successively
(c)
Fortnightlies . .
3 issues successively
(d)
Monthlies
. .
2 issues successively
3. The following officers are nominated to receive the
published copies of the newspapers/periodicals as
required under the abovesaid Act:-
Sl.
Name of the officer
Area of
No.
nominated
coverage
(1)
(2)
(3)
1 The Director of Information
Entire Union
and Publicity.
territory of
Puducherry.
2 The District Collector, Puducherry
Puducherry
district.
3 The District Collector, Karaikal
Karaikal
district.
4 The Regional Administrator, Mahe
Mahe
5 The Regional Administrator, Yanam
Yanam
(By order of the Lieutenant-Governor)
GIDDI MRUTHYUNJAYA DURGA RAO,
Under Secretary to Government
(Information and Publicity).
————
GOVERNMENT OF PUDUCHERRY
OFFICE OF THE CHIEF EDUCATIONAL OFFICER
No. 3818/CEO/KKL/E3(Exam.)/2012.
Karaikal, the 20th May 2013.
NOTIFICATION–I
It is hereby notified that the original H.S.C.
Mark Certificate, under Register Number 600131 bearing
Serial Number HSG 6921570 of March 2012 session in
respect of K. Sivasankar, an ex-pupil of Government
Higher Secondary School, T.R. Pattinam, Karaikal is
reported to have been lost and beyond the scope of
recovery and it is proposed to issue a duplicate
certificate. If the original certificate is to be
f o u n d b y a n y b o d y, it should b e s e n t t o t h e
Director of Government Examinations, Chennai-6
for cancellation, as it is no longer valid.
CHIEF EDUCATIONAL OFFICER I/c.
————
NOTIFICATION–II
It is hereby notified that the original H.S.C.
Mark Certificate, under Register Number 760438 bearing
Serial Number 1199321of March 2001 session in respect
of J. Muthukrishnan, an ex-pupil of Thanthai Periyar
Government Higher Secondary School, Kovilpathu,
Karaikal is reported to have been lost and beyond the
scope of recovery and it is proposed to issue a