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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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
593
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