588

LA GAZETTE DE L’ETAT

[18 June 2013

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 83/Lab./AIL/J/2013, dated 29th May 2013)

NOTIFICATION

Whereas, an award in I. D. No. 21/2008, dated 18-1-2013

of the Labour Court, Puducherry in respect of the

industrial dispute between the Managing Director,

M/s. Chemfab Alkalis Limited, Puducherry and the

workman Thiru V. Kannaiyan, Puducherry 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. 21/2008

V. Kannaiyan

. .

Petitioner

Versus

The Managing Director,

M/s. Chemfab Alkalis Limited,

Puducherry.

. .

Respondent

This industrial dispute coming on 5-1-2013 for final

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

T h i r u 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. 100/AIL/Lab./J,

dated

19-6-2008

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 V. Kannaiyan against the management of

M/s. Chemfab Alkalis Limited, Puducherry over non-

employment is justified or not?

(2) To what relief Thiru V. Kannaiyan 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 joined as driver in the respondent

company on 12-4-1990 and he discharged his duties

in a very sincere and honest manner and without any

black mark. Originally he was transferred by the

respondent management to the marketing office,

Chennai with the oblique motive of victimising him

for his legitimate trade union activities. He was

forced to work at three different places without any

official order.

On 26-5-2006 the respondent issued a charge

sheet to the petitioner. The charges are vague and

devoid of necessary particulars like what defamatory

statements and what false statements were made by

the petitioner and the names and descriptions of the

officers of the respondent company against whom

the petitioner has made the false/defamatory

statements etc. On account of the vagueness of the

charges, the petitioner was not in a position to

defend the charges properly and he was kept in dark

in this regard. Under such circumstances, the

petitioner could not avail proper opportunity to

defend the charges framed against him, resulting in

gross violation of the principles of natural justice.

On the basis of the charge sheet, the domestic

enquiry was conducted. The Enquiry Officer did not

conduct the enquiry in accordance with law and

principles of natural justice. The Enquiry Officer

submitted his enquiry report, dated 27-9-2006 finding

him guilty of the charges and the respondent

terminated him from the service through orders, dated

6-11-2006. The objections raised by the petitioner for

the report of the Enquiry Officer as well as the

proposed penalty was not at all considered

objectively by the respondent. The extreme

punishment of dismissal from service is excessive

one. 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:-

The respondent has issued a charge sheet,

dated 26-5-2006 to the petitioner for his refusal to

discharge his normal work as driver and for wasting

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18 June 2013]

LA GAZETTE DE L’ETAT

time by remaining idle and for writing letters,

dated 3-5-2006, 6-5-2006 and 13-5-2006 deliberately

making false, abusive, disrespectful and sullying

imputation against the company and its officers. After

receiving the charge sheet, he has not come forward

to submit his explanation to the charges levelled

against him and eventhough the management was

with in its right to take appropriate disciplinary action

for non-submission of his explanation, the

management in order to afford an opportunity to him,

has appointed Thiru Rajesh Krishna as Enquiry Officer

to conduct the enquiry. The enquiry was conducted in

a fair manner and in accordance with the principles of

natural justice. The Enquiry Officer has submitted his

enquiry report dated 27-9-2006 with a finding that the

charges levelled against the petitioner has been

proved in the enquiry. Then the management sent the

notice of proposed punishment dated 16-10-2006 to

the petitioner and the petitioner after receiving the

said notice, has failed to submit his written

representation as against the proposed punishment

of dismissal and the management was left with no

other alternative than to terminate the services of the

petitioner by notice of termination, dated 6-11-2006.

The petitioner was terminated from the services of

the company on proved misconduct by meticulously

following the legal procedures and the petitioner was

also given reasonable opportunities in accordance

with the principles of natural justice to defend himself

in the enquiry. Hence, they pray 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.P15 were marked. On the side

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

Ex.R24 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 12-4-1990 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

marketing office, Chennai 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

he was forced to work at three different places at

Chennai without any official order and during his

transfer period i.e., from 3-6-2005 to 19-4-2007,

he was not even given any T.A., D.A., etc. PW.1 has

marked copy of the transfer order, dated 3-6-2005 issued

by the respondent to the petitioner as Ex.P1, copy of the

letter, dated 24-6-2005 sent by the respondent to the

petitioner, informing him to report for duty at the

transferred place as Ex.P2, copy of the letter, dated

18-4-2006 sent to the petitioner, transferring him to

Vandalur Branch, copy of the letter, dated 28-4-2006 sent

by the petitioner to the respondent requesting to cancel

the said transfer order, copy of the letter, dated 2-5-2006

sent to the petitioner, transferring him to Adayar depot

of the respondent company. Ex.P1 to Ex.P5 would

confirm the version of the petitioner that he was

transferred at three different places at Chennai.

7. 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.

8. The learned counsel for the respondent has

contended 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 learned

counsel for 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, as

could be seen from Ex.P1, 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 the

place nearer to his native place. But the petitioner sent

various letters under Ex.P4, Ex.P6 and Ex.P7 to the

respondent harshly stating that he has been transferred

to Chennai to victimise him for his legitimate trade union

activities. Hence, the act of the petitioner as employee

paves way to affect the entire administration of the

respondent management.

9. 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

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LA GAZETTE DE L’ETAT

[18 June 2013

management has issued a charge sheet, dated 26-5-2006

to the petitioner for his refusal to discharge his

normal work as driver and for wasting time by remaining

idle. In order to prove his claim, he has marked the copy

of the telegrams sent by the employee of the respondent

company as Ex.R3, Ex.R5 and Ex.R22, wherein, it has been

informed to the respondent company that when the

petitioner has been instructed to take the vehicle, he

refused the same on various dates. The petitioner has

not challenged the documents under Ex.R3, Ex.R5 and

Ex.R22. Hence, the respondent has proved through the

said documents that the petitioner has not performed

his duty properly in the transferred place, which

amounts to insubordination and dereliction of duty.

10. The learned counsel for the petitioner has

submitted that the charges framed against the petitioner

are extremely vague and devoid of necessary particulars

and on account of the vagueness of the charges, he was

not in a position to defend the charges properly.

11. On the side of the respondent, the charge sheet

issued to the petitioner was marked as Ex.R7. A perusal

of Ex.R7 reveals that the petitioner has been issued

charges that he refused to discharge his normal work as

driver and for wasting time by remaining idle and for

writing letters, dated 3-5-2006, 6-5-2006 and 13-5-2006

deliberately making false, abusive, disrespectful

imputation against the company and its officers. But in

Ex.R7 there is no mention about what defamatory

statements and what false statements were made by the

petitioner and the names of the officers of the

respondent company against whom, he had made the

false/defamatory statements. Hence, the charges are

vague and devoid of necessary particulars.

12. 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. The learned counsel for the petitioner

relied upon the following decisions to support his

claim:-

2002(1) L.L.N. 58

Factory Manager, Gwalior Sugar Company

Limited Versus Kanhaiyalal Agarwal and Others:

“Loss of confidence - Appellants herein were

charged with misconduct of misappropriation of

funds and dismissed after enquiry - Industrial

Tribunal ordered reinstatement with back wages -

Respondents have challenged the award of

reinstatement on grounds of loss of confidence -

Held, for loss of confidence, proof based on

objective fact is necessary - In this case employees

were charged for making payments for sugarcane not

actually brought into mills - Evidence showing that

workmen had not followed prescribed procedure and

were negligent - No evidence to show that workmen

had misappropriated the money - Conclusion of loss of

confidence cannot be drawn.

2006 S.C. Cases (L and S) 919:

M.V. Bijlani Versus Union of India and Others:

"Departmental enquiry - Nature of - Standard of

proof required - Held, disciplinary proceedings being

quasi-criminal in nature, there should be some

evidence to prove the charge - Though proof beyond

all reasonable doubt as required in criminal trial is not

necessary in departmental proceedings, charges in

said proceedings has to be proved by preponderance

of probability - Constitution of India, Article 311”.

2002 S.C. Cases (L and S) 1028:

Sher Bahadur Versus Union of India and Others:

“The mere fact that the Enquiry Officer has noted

in his report, “in view of oral, documentary and

circumstantial evidence as adduced in the enquiry”,

would not in principle satisfy the rule of sufficiency

of evidence. The finding of the Enquiry Officer that

in view of the oral, documentary and circumstantial

evidence, the charge against the appellant for

securing the fraudulent appointment letter was

proved, is erroneous. It is clearly a case of finding the

appellant guilty of the charge without having any

evidence to link the appellant with the alleged

misconduct. Therefore, the order of the disciplinary

authority, under challenge, cannot be sustained”.

13. 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. The learned counsel for the

respondent relied upon the following decisions in

support of his claim :-

2005(1) SLJ 227 SC :

Divisional Controller, KSRTC (NWKRTC) Versus

A.T. Mane:

“As a person is found guilty of misappropriating

corporation’s fund, there is nothing wrong in the

corporation losing confidence or faith in such a

person and awarding a punishment of dismissal

direction given for restoration of dismissal order by

disciplinary authority.

591

18 June 2013]

LA GAZETTE DE L’ETAT

(2008) 4 SCC 517:

Workmen

of

Balmadies

Estates

Versus

Management Balmadies Estate and Others:

“It is fairly well settled now that in view of the

wide power of the Labour Court it can, in an

appropriate case, consider the evidence which has

been considered by the domestic tribunal and in a

given case on such consideration arrive at a

conclusion different from the one arrived at by the

domestic tribunal. The assessment of evidence in a

domestic enquiry is not required to be made by

applying the same yardstick as a civil court could do

when a lis is brought before it. 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.”

AIR 2008 SC 1162:

Employer’s Management West Bokaro Colliery of

TISCO Limited, Versus Concerned Workman, Ram

Pravesh Singh:

“While the standard of proof in a criminal case is

proof beyond all reasonable doubt, the standard of

proof in a departmental proceeding is preponderance

of probabilities - Where two views are possible on

the evidence on record, then the industrial tribunal

should be very slow in coming to a conclusion other

than the one arrived at by the domestic tribunal by

substituting its opinion in place of the opinion of the

domestic tribunal - Labour Court fell into the factual

as well as legal error in setting aside the findings

recorded by the domestic tribunal - Impugned order

set aside - Appeal allowed.”

AIR 1971 SC 2414:

Francis Klein and Co (P) Limited Versus Their

Workmen and Another:

“Held, when an employer loses confidence in his

employee particularly in respect of a person who is

discharging an office of trust and confidence there

could be no justification for directing his

reinstatement - Post of a Durwan in an industrial

concern where valuable property both manufactured

goods and assets required to be guarded, is such a

post and when one of his colleagues calls on him to

assist him in apprehending a thief the refusal to do

so is certainly an act which justified the employer in

losing confidence in him -Award set aside - Appeal

allowed.”

1998 IIAD (SC) 291:

M.H. Devendrappa Versus The Karnataka State

Small Industries Development Corporation:

“Appellant made direct public attack on head of

his organisation - His conduct was detrimental to

proper functioning of organization - Appellant

making public statement against head of organisation

amounted to lowering prestige of organisation -

Disciplinary action under rule 22 against appellant

valid.”

2006(2) JCR 24 (SC):

Hombe Gowda Educational Trust and Another

Versus State of Karnataka and Others:

“This court has come a long way from its earlier

view points. The recent trend in the decisions of this

court seek to strike a balance between the earlier

approach of the industrial relation wherein only the

interest of the workmen was sought to be protected

with the avowed object of fast industrial growth of

the country. 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 therefore. 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.”

2008(4) AWC 3842 (SC):

Talwara Cooperative Credit and Services Society

Limited Versus Sushil Kumar:

“Where order of termination is found to be illegal

then grant of relief of reinstatement with full back

wages is not automatic as the same is a discretionary

relief and burden of proof as regards gainful

employment after termination of service is on the

workman and not on the employer.”

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LA GAZETTE DE L’ETAT

[18 June 2013

14. On the side of the respondent, the enquiry

proceedings was marked as Ex.R12. On perusal of

Ex.R12, it is seen that the enquiry has been commenced

on 8-7-2006 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 but the petitioner has brought one

Alwin Maria Susai as co-worker and since he was not a

co-worker, the Enquiry Officer has not granted

permission to act the said Maria Susai as defence

assistant. A perusal of Ex.R12 further reveals that one

Raju was examined as a witness on the side of the

respondent and he was cross-examined by the petitioner

partly and then he has avoided to continue with the

cross-examination, inspite of opportunities granted by

the Enquiry Officer and then the Enquiry Officer closed

the enquiry proceedings and submitted his report,

dated 27-9-2006 by coming to the conclusion that the

petitioner was found guilty of the charges and then

notice of proposed punishment, dated 16-10-2006 under

Ex.R14. Hence, the respondent has conducted the

enquiry in a fair manner and there was no violation of

principles of natural justice.

15. The charge against the petitioner is that he has

not performed his duty as driver in the transferred place

and he also wasted time by remaining idle. As already

stated, the respondent has proved that the petitioner

has not performed his duty properly in the transferred

place. Now this court has to see whether the punishment

imposed by the respondent management is

disproportionate or not.

16. Admittedly, the petitioner was the office-bearer

of the union and he has been transferred to Chennai,

where he has been transferred the various units of

respondent company in three times. Of course the

employee can be transferred to any of their unit by the

management according to their administrative

convenience. But the reason for transferring three times

in various units within a short spell of time is best

known to the management, because the petitioner

happens to be an office-bearer of the union, he should

not be victimised three times by transfer within a short

period. The petitioner has sent a letter under Ex.P4,

requesting the respondent management to transfer him

to his native place and since his request has not been

considered by the respondent, he has not performed his

duty properly. In the above circumstances only, the

petitioner has been issued a charge sheet for dereliction

of duty, which has been proved in the enquiry

proceedings. Hence, I feel that the charge levelled

against the petitioner cannot be taken as a serious one.

Further the petitioner was working in the respondent

from the year 1990 and there is nothing on record to

show that any previous adverse remark against the

petitioner had been taken into consideration by the

management for awarding the extreme penalty of

dismissal from service to the petitioner. Hence, I am of

the opinion that the punishment awarded to the

petitioner is shockingly disproportionate and

consequently, the dismissal order passed by the

respondent management is liable to be set aside and

consequently, the petitioner is entitled for reinstatement

with continuity of service.

17. As already stated, the respondent has established

through oral and documentary evidence that the

petitioner has not performed his duty in the transferred

place and in the above circumstances, the petitioner is

not entitled for back wages and other benefits.

Accordingly, this point is answered.

18. 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 — Kannaiyan

PW.2—

25-6-2012 — Sundararajan

List of petitioner’s exhibits:

Ex.P1 — Transfer order, dated 3-6-2005 issued to

the petitioner.

Ex.P2 — Letter, dated 24-6-2005 sent by the

respondent to the petitioner..

Ex.P3 — Transfer order dated 18-4-2006 issued by

the respondent to the petitioner.

Ex.P4 — Letter, dated 28-4-2006 by the petitioner

to the respondent.

Ex.P5 — Letter, dated 2-5-2006 sent by the

respondent to the petitioner.

Ex.P6 — Representation, dated 12-5-2006 sent by

the petitioner to the respondent.

Ex.P7 — Reminder letter, dated 13-5-2006 sent by

the petitioner.

Ex.P8 — Reminder letter, dated 22-5-2006 sent by

the petitioner to the respondent.

Ex.P9 — Charge sheet-cum-suspension, dated 26-5-2006

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18 June 2013]

LA GAZETTE DE L’ETAT

Ex.P10 — Representation dated 29-5-2006 submitted

by the petitioner to respondent.

Ex.P11 — Medical certificate, dated 9-11-2006 submitted

by the petitioner.

Ex.P12 — Medical prescriptions

Ex.P13 — Medical prescriptions

Ex.P14 — Letter, dated 20-11-2006 sent by the

petitioner to the respondent.

Ex.P15 — Representation, dated 10-6-2005 sent by

Alwin Maria Susai to respondent.

List of respondent’s witness:

RW.1—

24-8-2012 — Daniel Rajanayagam

List of respondent’s exhibits:

Ex.R1 — Letter, dated 3-5-2006 by the petitioner to

the respondent.

Ex.R2 — Copy of the letter by the petitioner to the

respondent, dated 6-5-2006.

Ex.R3 — Copy of the complaint against the

petitioner, dated 19-5-2006.

Ex.R4 — Letter of complaint against the petitioner,

dated 22-5-2006.

Ex.R5 — Letter of complaint, dated 23-5-2006

against the petitioner.

Ex.R6 — Copy of the exhibits marked in the

domestic enquiry.

Ex.R7 — Charge sheet issued to the petitioner

Ex.R8 — Letter by the petitioner to the Enquiry

Officer, dated 8-7-2006.

Ex.R9 — Presenting offer of appointment letter,

dated 15-7-2006.

Ex.R10 — Reply letter, dated 15-7-2006 by the

respondent.

Ex.R11— Letter, dated 19-8-2006 by the petitioner to

the Enquiry Officer.

Ex.R12 —Enquiry proceedings

Ex.R13 —Enquiry report submitted by the Enquiry

Officer.

Ex.R14 —Show cause notice, dated 16-10-2006

Ex.R15—Letter, dated 24-10-2006 sent by the

respondent.

Ex.R16 —Telegram sent by the petitioner to the

respondent.

Ex.R17 — Notice of termination, dated 6-11-2006

Ex.R18 — Letter, dated 5-7-2007 by the petitioner to

the Labour Officer.

Ex.R19 — Reply letter, dated 24-1-2008

Ex.R20 — Letter, dated 25-3-2008 by the petitioner to

the Labour Officer.

Ex.R21 — Letter, dated 22-4-2008 by the respondent

to the Labour Officer.

Ex.R22 — Failure report, dated 22-5-2008

Ex.R23 — Copy of the extract of the resolutions

passed.

Ex.R24 — Copy of the extract of the resolutions

passed on 6-7-2012.

T. MOHANDASS,

Presiding Officer,

Labour Court, Puducherry.

GOVERNMENT OF PUDUCHERRY

OFFICE OF THE CHIEF EDUCATIONAL OFFICER

No. 650/CEO/Exam.Cell/2012-13.

Puducherry, the 27th May 2013.

NOTIFICATION

It is hereby notified that the original S.S.L.C. Mark

Certificate, bearing Serial Number AA 06323276

under Register Number 369156 of March 1999 in

respect of A. Mayan, an ex-pupil of Government Higher

Secondary School, Sedarapet 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 found by anybody,

it should be sent to the Director of Government

Examinations, Chennai-6 for cancellation, as it is no

longer valid.

R. KALAISELVAN,

Chief Educational Officer.

————

GOVERNMENT OF PUDUCHERRY

OFFICE OF THE CHIEF EDUCATIONAL OFFICER

No. 650/CEO/Exam.Cell/2012-13.

Puducherry, the 27th May 2013.

NOTIFICATION

It is hereby notified that the original S.S.L.C. Mark

Certificate, bearing Serial Number SEC 3583344

under Register Number 508528 of March 2006 in