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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

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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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LA GAZETTE DE L’ETAT

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

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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

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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