612

LA GAZETTE DE L’ETAT

[25 June 2013

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 86/Lab./AIL/J/2013,

dated 7th June 2013)

NOTIFICATION

Whereas, an award in I.D. No. 22/2011, dated 15-2-2013

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 Marie Lucien,

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 15th day of February 2013

I.D. No. 22/2011

Marie Lucien

. .

Petitioner

Versus

The Managing Director,

. .

Respondent

Hindustan Unilever Limited,

Puducherry.

This industrial dispute coming on 7-2-2013 before

me for final hearing in the presence of Thiru Durai

Arumugam,

representative

for

the

petitioner

Thiruvalargal L. Sathish, N. Krishnamurthy, T. Pravin

and V. Veeraragavan, 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

This industrial dispute arises out of the reference

made by the Government of Puducherry vide

G.O. Rt. No. 145/AIL/Lab./J/2011, dated 9-8-2011 of the

Labour Department, Puducherry to resolve the

following dispute between the petitioner and the

respondent, viz.,

(1) W h e t h e r t h e d i s p u t e r a i s e d b y

T h i r u A. Marie Lucien against the management of

M/s. Hindustan Unilever Limited, Detergent Factory,

Vadamangalam, Puducherry, over non-employment is

justified?

(2) If justified, to 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 petition has stated as

follows:

The petitioner was working as a permanent

employee in the respondent company from 1-6-1996

and he was the active member of Hindustan Unilever

Employees’ Union and his last pay was ` 12,000

per month. On 17-11-2008, the respondent issued a

charge sheet containing false charges against the

petitioner that on 16-11-2008 in the Family Day

Function, he threatened and damaged the shirt of

one Ramamoorthy and also assaulted one Ganesan,

who was the H.R. Officer. On 16-11-2008, the

respondent celebrated the Family Day Function and

his union instructed all the employees not to

participate in the said function with their family and

treat the said function as ‘Black Day’. In the said

function, there was shortage of food and the same

was asked and argued by the petitioner's union with

the said Ganesan. Hence, the said Ganesan,

constructed the evidence and built a story against

the petitioner. Then the enquiry was conducted

against the petitioner and the domestic enquiry was

one side and biased one and the Enquiry Officer has

acted against the principles of natural justice and

submitted the enquiry report by coming to the

conclusion that the petitioner was the guilty of the

charges framed against him and then terminated him

from service. There was a victimisation of the

petitioner on false and concocted charges. Hence,

the petitioner moved the Conciliation Officer for

remedy and he conducted the conciliation and since

the conciliation proceedings ended in failure, the

Labour Officer reported failure of conciliation.

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 petitioner was employed as unskilled worker

from 1-9-1996 and he always exhibited his

aggressive, subversive and temperamental character

and would pick up unnecessary quarrels and duel

with his shift supervisors, Plant in-charge and other

officers of the company. Initially, the officers of the

respondent orally warned him.

613

25 June 2013]

LA GAZETTE DE L’ETAT

On 7-4-2007, the petitioner abused one Vijay Kumar,

the then H.R. Officer and threatened him in a filthy

language and he was charge sheeted on 17-4-2007

and the domestic enquiry was conducted and he

was found guilty of the misconduct levelled against

him by the Enquiry Officer and he was suspended

for ten working days and kept him in probation for

the next one year.

When the petitioner was in his probation period,

on 16-11-2008 while the Family Day celebration of

the factory was in progress, the petitioner went to

the food distribution counter and without any

provocation, pushed one Ramamourthy, Commercial

Executive, tore his T-shirt and threatened him of dire

consequences. Then the petitioner went to the

snacks distribution counter and slapped one

Kanessane, H.R. Executive and threatened him with

dire consequences. Hence, the petitioner was charge

sheeted on 17-11-2008 and the enquiry was

conducted. The Enquiry Officer conducted the

enquiry in utmost fairness and by adhering to the

essential principles of natural justice. The Enquiry

Officer submitted his detailed report on 22-2-2010

by coming to the conclusion that charges against

the petitioner were proved. The respondent issued

a second show cause notice along with the enquiry

report to the petitioner on 20-10-2010 and the

petitioner did not choose to reply. The respondent

thereafter passed an order of termination on 9-11-2010.

Since the misconduct committed by the petitioner

was very grave in nature, the respondent had to

impose the maximum punishment of dismissal.

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.P7 were marked. On the side

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

to Ex.R.14 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 was

working as a permanent employee in the respondent

company from 1-6-1996 and he was the active member

of Hindustan Unilever Employees’ Union and on

17-11-2008 the respondent issued a charge sheet

containing false charges against him that on 16-11-2008

in the Family Day Function, he threatened and

damaged the shirt of one Ramamoorthy and also

assaulted one Ganesan, who was the H.R. Officer.

The petitioner further contended that on 16-11-2008

the respondent celebrated the Family Day Function

and his union instructed all the employees not to

participate in the said function with their family and

treat the said function as ‘Black Day’ and in the said

function, there was shortage of food and the same was

asked and argued by his union with the said Ganesan

and hence, the said Ganesan constructed the evidence

and built a story against him and there was a

victimisation against him on false and concocted

charges.

7. In order to prove his contention, the petitioner

examined himself as PW.1 and marked Ex.P1 to Ex.P7.

Ex.P1 is a bit notice issued by Hindustan Unilever

Employees’ Union, asking the employees to celebrate

the Family Day Function as Black day. Ex.P2 is the

warning letter issued by the management to the said

union.

8. Per contra, the contention of the respondent is

that on 7-4-2007 the petitioner abused one Vijay Kumar,

the then H.R. Officer and threatened him in a filthy

language and he was charge sheeted on 17-4-2007 and

the domestic enquiry was conducted and he was found

guilty of the misconduct levelled against him by the

Enquiry Officer and he was suspended for ten working

days and kept him in probation for the next one year.

The respondent further contended that when the

petitioner was in his probation period, on 16-11-2008

while the Family Day celebration of the factory was in

progress, the petitioner went to the food distribution

counter and without any provocation, pushed one

Ramamourthy, Commercial Executive, tore his T-shirt

and threatened him of dire consequences and then the

petitioner went to the snacks distribution counter and

slapped one Kanessane, H.R. Executive and threatened

him with dire consequences and hence, the petitioner

was charge sheeted on 17-11-2008 and the enquiry was

conducted. The learned counsel for the respondent

relied upon the following decisions to support his

case:–

CDJ 2008 SC 670:

Usha Breco Mazdoor Sangh Versus Management

of M/s. Usha Breco Limited and Another:

“Assault, intimidation are penal offences.

A workman indulging in commission of a criminal

offence should not be spared only because he

happens to be a union leader. The act does not

encourage indiscipline. It will be a matter of some

concern if the opinion of the Enquiry Officer can

be totally ignored despite the fact that the

management is precluded from adducing any fresh

evidence before the Labour Court. A union leader

does not enjoy immunity from being proceeded

within a case of misconduct.”.

614

LA GAZETTE DE L’ETAT

[25 June 2013

CDJ 2005 SC 250:

Mahindra and Mahindra Limited Versus

N.B. Naravade:

“In this case all the forums below have held that

the language used by the workman was filthy. We

too are of the opinion that the language used by

the workman is such that it cannot be tolerated by

any civilised society. Use of such abusive language

against a superior officer, that too not once but

twice, in the presence of his subordinates cannot

be termed to be an indiscipline calling for less

punishment in the absence of any extenuating factor

referred to herein above.”.

1999-III-LLJ (Supp) -1455:

Venugopal and Another Versus Management of

Reed Relays and Electronics Limited, Madras and

Another:

"... In our opinion, courts should not encourage

the use of indecorous or indecent and violent

behavior, exhibiting thereby indiscipline. Such

acts on the part of the workmen should be discouraged

at any cost. Since the appellants were terminated

from service for serious misconduct proved and

established before the Labour Court, no interference

is called for in the finding of the Labour Court,

which is based on the evidence let in, in this case..”.

(1990)1 MLJ 355:

The Management of South India Sugars Limited

Versus the Presiding Officer. Additional Labour

Court and Another:

“Thus, the legislature has taken care to

discourage statutorily any riotous of violent

behaviour on the part of the employee. It cannot be

said that when a worker or employee is found guilty

of riotous or violent behaviour, the punishment of

dismissal is extreme or that it is shockingly

disproportionate to his misconduct.”.

9. According to PW.1, on 16-11-2008 the respondent

celebrated the Family Day Function and his union

instructed all the employees not to participate in the

said function with their family and treat the said

function as 'Black day’, in the said function, there was

shortage of food and the same was asked and argued

by the petitioner’s union with the said Ganesan and

hence, the said Ganesan constructed the evidence and

built a story against the petitioner.

10. But RW.1 in his evidence has deposed that

on 16-11-2008 while the Family Day Celebration of their

factory was in progress in Om Sakthi Subiksha Mahal,

the petitioner went to food distribution counter

at 12.30 p.m. and without any provocation,

pushed R. Ramamourthy, Commercial Executive, tore

his T-shirt and also threatened him of dire

consequences and on intervention of one Vijay Kumar,

the then H.R. Executive, the petitioner was moved from

that place and subsequent to that at about 12.45 p.m.

the petitioner went to the snacks distribution counter

and without any provocation, slapped Kanessane,

H.R. Executive, who was standing there and

threatened him with dire consequences and

security officer who was present there, rescued the

said Kanessane and Vijay Kumar, escorted the petitioner

out of Om Sakthi Subiksha Mahal.

11. Admittedly, the place of occurrence is situated

at Tamil Nadu and outside the factory premises and

hence it is the duty of the respondent to lodge a

complaint before the concerned police station in

respect of the said incident. But there is no complaint

filed before the police station by the respondent in

this regard. In fact RW.1 himself has admitted in his

cross-examination that for the Family Day celebration,

Kandamangalam police came for security purpose and

there was no complaint filed before them for the said

incident. The relevant portion of his evidence is as

follows:–

“z|D√ ]™ swVs_ √VmÔV©∏uz >twÔ›]_

c^· Ôı¶\∫ÔÈ›]_ c^· ÔVk_ WÁÈB›]_

÷ÚÕm ÔVk_ mÁ≈l™Ï kÕ>VÏÔ^ ®[≈V_ ƒˆ>V[.

ÔVk_ WÁÈB›]_ ∂∫z ¶Õ> ƒD√kD √u§ AÔVÏ

∞mD ÿÔV|¬Ôs_ÁÈ ®[≈V_ ƒˆ>V[.”.

RW.1 in his evidence has deposed that at the time of

incident,

the

petitioner

tore

the T-shirt

of

Ramamourthy. But the said T-shirt has not been

produced and marked in the domestic enquiry and the

same was admitted by RW.1 in his cross-examination.

The relevant portion of his evidence runs as follows:–

“˛a¬Ô©√‚¶ ΩƒÏ‚Á¶ c^sƒV´Áðl[º√Vm

g¤Ï√|›] z§X| ÿƒFB©√‚¶>V ®[≈V_ ÷_ÁÈ.”.

12. According to RW.1, during the incident,

the petitioner went to the snacks distribution counter

and without any provocation, slapped G. Kanessane,

H.R. Executive, who was standing there and

threatened him with dire consequences. During the

cross-examination, RW.1 in his cross-examination has

stated that the management Medical Officer was

running a clinic at Kandamangalam and the said

Kanessane took treatment with the said Medical

Officer at Kandamangalam, but there is no document

produced in the enquiry to prove that he took

treatment at concerned General Hospital. RW.1 has

also admitted that there is also no document produced

in the enquiry with regard to the telephonic

conversation by the H.R. Executive with the said

management doctor. The relevant portion of his

evidence is as follows:-

615

25 June 2013]

LA GAZETTE DE L’ETAT

“\M> k· º\D√V‚| ∂]ÔVˆ ®]Ï\–>V´Ï WÏkVÔ

\Ú›mkÏ kƒD ÿ>VÁȺ√El_ ÿ>V¶ÏA ÿÔVı¶Á>

z§›> gkð∫Ô^ ®Á>•D c^sƒV´Áðl[

º√Vm

>V¬Ô_

ÿƒFB©√‚¶>V

®[≈V_

>V¬Ô_

ÿƒFBs_ÁÈ.

\M>

k·

∂]ÔVˆ

AmÁkl_

JÈz·›]_ >V[ kE›m kÕ>VÏ ®[≈V_ ƒˆ>V[.

®∫Ô^ WÏkVÔ›][ \Ú›mkÏ Ôı¶\∫ÔÈ›]_ >V[

\Ú›mk\Á™ Ák›m ÷Ú©√>VÔ°D ∂∫z ÿƒ[Æ>V[

E˛flÁƒ ®|›m¬ ÿÔVı¶>VÔ ÿƒV_o•^·VÏ ®[≈V_

ƒˆ>V[. \M> k· ∂]ÔVˆ ∂´∑ \Ú›mk\Á™l_

®m°D E˛flÁƒ ÿƒFm ÿÔVı¶m z§›m gkð∫Ô^

®m°D c^sƒV´Áðl_ >V¬Ô_ ÿƒFBs_ÁÈ ®[≈V_

ƒˆ>V[.”.

13. On the side of the respondent, the copy of the

certificate issued by the management doctor was

marked as Ex.M11 and the prescription issued by him

as Ex.M12 in the enquiry proceedings. But it is nothing

wonder in issuing the said certificate by the

management doctor, as it is quite natural that the

management doctor can act only in favour of the

respondent. Under these circumstances, the document

from any Government hospital would prove the case

of the respondent that the petitioner assaulted the said

Kanessane and sustained injuries. Hence, the

documents under Ex.M11 and Ex.M12, which have

been marked in the enquiry proceedings, are not in any

way helpful to the case of the respondent. In the

above circumstances, this court has come to the

conclusion that the respondent has failed to prove that

the petitioner pushed R. Ramamourthy, Commercial

Executive, tore his T-shirt and also threatened him of

dire consequences and on intervention of one

Vijaykumar, the then H.R. Executive, the petitioner was

moved from that place and subsequent to that at about

12.45 p.m., the petitioner went to the snacks

distribution counter and without any provocation,

slapped Kanessane, H.R. Executive, who was standing

there and threatened him with dire consequences and

consequently, the action taken against him based on

the said incident cannot be sustained.

14. The learned counsel for the petitioner has

submitted that the petitioner was an active member in

Hindustan Unilever Employees’ Union and the said

union raised an issue in respect of service conditions

of the respondent's employees under No. 1458/2009/

LO(C)/AIL and another issue under No. 2563/2010/

LO(C)/AIL in respect of national and festival holidays

and same were pending before the Conciliation Officer

and when the said conciliations were pending before

the Conciliation Officer, the respondent has terminated

the petitioner from service on 9-11-2010 and

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, section 33(2)(b),

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

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

application under section 33(2)(b) seeking approval,

renders order of dismissal inoperative-Dismissal

becomes ineffective from date it was passed -

Employee becomes entitled to wages from date of

dismissal.”.

15. In order to prove that the petitioner was an

active member in the said union, the president of the

said union was examined as PW.2. PW.2 in his evidence

has deposed that the petitioner was a member in

Hindustan Unilever Employees’ Union and his union

raised an issue in respect of service conditions of the

respondent's employees under No. 1458/2009/LO(C)/

AIL and another issue under No. 2563/2010/LO(C)/AIL

in respect of national and festival holidays and same

were pending before the Conciliation Officer and when

the said conciliations were pending before the

Conciliation Officer, the respondent has terminated the

petitioner from service on 9-11-2010. In order to prove

that the petitioner was an active member in the said

union, PW.2 has marked the copy of the admission

application as Ex.P7. PW.1 has marked the copy of the

notice issued to the petitioner and the respondent in

respect of issue of service conditions as Ex.P5 and the

issue in respect of declaration of paid holidays as

Ex.P6. Ex.P5 to Ex.P7 confirm the version of PW.2.

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 has no nexus connection with the

disputes which is pending before the Conciliation

Officer and hence no approval is required from the

Conciliation Officer, since the dispute raised before the

Conciliation Officer was different from the issue under

which the petitioner was dismissed. In order to prove

his contention, 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

616

LA GAZETTE DE L’ETAT

[25 June 2013

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 prosecution of

section 33(2).”.

1992-l-L.L.J.837-Madras :

Rajagopal and Others Versus E.I.D. 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.”.

16. The respondent themselves admitted that there

were two conciliations pending before the Conciliation

Officer, but they stated that the said conciliations are

general dispute and not raised by the petitioner.

Admittedly, the said conciliations were pending before

the Conciliation Officer with regard to the service

conditions of the respondent employees and

declaration of national and festival holidays. When

PW.2 has categorically stated that the petitioner was

an active member in their union and two conciliations

were pending before the Conciliation Officer with

regard to the service conditions of the employees of

the respondent company and declaration of national

and festival holidays at the time of termination of the

petitioner, the said conciliations were also covered with

the petitioner, who was the employee of the

respondent company. In the above circumstance, the

respondent has acted against the abovesaid proviso.

Therefore, the dismissal order passed by the

respondent management is inoperative one.

17. The learned counsel for the petitioner has

submitted that the domestic enquiry conducted

against the petitioner was in violation of principles of

natural justice, as Enquiry Officer did not consider the

deposition of the witness in the enquiry proceedings.

18. Per contra, the contention of the learned

counsel for the respondent is that the enquiry was

conducted in a free and fair manner, giving full

opportunity to the petitioner to contest the charges

on merits and all the essential requisites of a fair trial

were scrupulously followed.

19. On the side of the petitioner, the enquiry

proceedings was marked as Ex.P4. A perusal of Ex.P4

reveals that from charge sheeting the petitioner to

issuing termination order were conducted in Tamil and

the Enquiry Officer gave copies of the documents

as well as the list of witnesses produced by the

respondent to the petitioner and the Enquiry Officer

permitted the petitioner to have defence assistance

and the Enquiry Officer gave sufficient opportunity to

the petitioner and his defense assistant to cross-

examine the respondent's witnesses. A perusal of Ex.P4

further reveals that the petitioner was permitted to

examine his witnesses and as well as to cross-examine

the respondent's witnesses and the enquiry report was

given to the petitioner and then second show cause

notice was given to the petitioner along with the

enquiry report, giving him full opportunity to submit

his explanation on the findings of the Enquiry Officer.

Hence, the enquiry has been conducted in a free and

fair manner after following all the requisite principles

of natural justice. But as already stated when the

respondent has not established the alleged act of the

petitioner, the action taken against him cannot be

sustained.

20. The contention of the learned counsel for the

petitioner has submitted that the alleged incident was

happened only out of factory premises and out of

jurisdiction of Puducherry i.e., at Tamil Nadu and

hence the respondent has no jurisdiction in the place

of Tamil Nadu, which the alleged incident was

happened and also the standing order signed by the

Certifying Officer and as such there is no scope to take

action beyond the extra territorial jurisdiction limit.

21. Per contra, the contention of the respondent is

that it is true that the petitioner had assaulted the

officer of the respondent outside the four walls of

respondent's factory, but that by no means, mitigate

his offence and more importantly, the assault was

intrinsically related to the employment of the petitioner.

The learned counsel for the respondent has submitted

that the petitioner was amongst other charges, charge

sheeted under clause 39(118) of the certified standing

orders of the company, which runs as follows:-

“Commission of any act subversive of discipline

or good behaviour © Outside the company's

premises if it is directly affecting the discipline or

administration of the Company or of its is directly

linked up with the general relationships of the

617

25 June 2013]

LA GAZETTE DE L’ETAT

employer and employees or has a direct connection

with the contentment of the men at work or has a

material bearing on the smooth and efficient working

of the concern or is prejudicial to the interest of the

company.”.

22. There is no dispute that the alleged occurrence

took place outside the factory premises. The said

clause of standing order has not been denied by the

petitioner. The said standing orders of the company

declares any subversive conduct of workers outside

the factory as misconduct provided that it is directly

linked up with general relationships of the employer

and employees. The function was organised by the

respondent for the workers and their family and the

outsiders were strictly prohibited and only because of

the petitioner’s employment, he was allowed to enter

inside the function hall. Admittedly, there was heated

argument between the petitioner and the officers of the

respondent management. Hence, it is directly linked up

with general relationships of the employer and the

employees and the management took action against the

petitioner for the alleged act took place outside the

factory premises, but it has not been established by

them through oral and documentary evidence. In the

above circumstance, the contention of the learned

counsel for the petitioner that the respondent cannot

take action against the petitioner for the alleged

occurrence, took place outside the factory premises,

as there is no jurisdiction, cannot be accepted.

23. For the abovesaid reasons, this court has come

to the conclusion that the order, terminating the

petitioner from service is illegal for the following

reasons:-

(a) The respondent has not established that the

petitioner has pushed one R. Ramamourthy, tore his

T-shirt, slapped the H.R. Executive and threatened

them with dire consequences;

(b) The respondent has acted against section

33(2)(b) of Industrial Disputes Act and therefore, the

dismissal order passed by the respondent

management is inoperative one.

Hence, the termination order issued by the

respondent is liable to be set aside and consequently,

the petitioner is entitled to reinstatement with

continuity of service with back wages and other

attendant benefits. Accordingly, this point is

answered.

24. In the result, the industrial dispute is allowed

and the petitioner is entitled for reinstatement with

continuity of service and with back wages and other

attendant benefits. No costs.

Typed to my dictation, corrected and pronounced

by me in the open court on this the 15th day of

February 2013.

T. MOHANDASS,

Presiding Officer, Labour Court,

Puducherry.

————

List of petitioner’s witnesses :

PW.1 — 27-9-2012 — Marie Lucien

PW.2 — 9-11-2012 — Ezhumalai

List of petitioner exhibits :

Ex.P1

— Bit notice issued by petitioner union

Ex.P2

— Copy of the letter issued by the

respondent to the petitioner union,

dated 17-11-2008.

Ex.P3

— Copy of the termination order issued

to the petitioner.

Ex.P4

— Copy of the enquiry proceedings

Ex.P5

— Copy of the enquiry notice,

dated 14-7-2009.

Ex.P6

— Copy of the enquiry notice,

dated 2-11-2010.

Ex.P7

— Copy of the admission application of

the petitioner, dated 16-3-2008.

List of respondent’s witness :

RW.1

— 21-12-2012 Arokia Berdila Anand, H.R.

Executive.

List of respondent’s exhibits:

Ex.R1 —

Copy of the charge sheet issued to the

petitioner, dated 1-12-2008.

Ex.R2

— Copy of the warning letter,

dated 17-11-2008 issued to the

petitioner.

Ex.R3

— Copy of the charge sheet issued to the

petitioner, dated 17-4-2007.

Ex.R4

— Copy of the postal acknowledgment

Ex.R5

— Copy of Memorandum of Settlement,

&

dated 25-8-2008.

Ex.R6

Ex.R7 — Copy of enquiry proceedings

Ex.R8

— Copy of the enquiry report, dated

22-2-2010.

Ex.R9

— Copy of the acknowledgment card

signed by the petitioner.

Ex.R10 — Copy of the termination order,

dated 9-11-2010.

Ex.R11 — Copy of the notice of enquiry to the

respondent, dated 6-1-2011.

Ex.R12 — Copy of the reply given by the

petitioner to the Labour Officer,

dated 15-2-2011.

618

LA GAZETTE DE L’ETAT

[25 June 2013

Ex.R13 — C o p y o f th e fa i l u r e re p o r t ,

dated 20-5-2011.

Ex.R14 — Copy of the complete set of documents

containing petitioner’s previous similar

conduct.

T. MOHANDASS,

Presiding Officer, Labour Court,

Puducherry.

————

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 89/Lab./AIL/J/2013, dated 13th June 2013)

NOTIFICATION

Whereas, an award in I.D.No. 50/2012, dated

28-11-2012 of the Labour Court, Puducherry in respect

of the industrial dispute between the management of

M/s. Soundararaja Mills Ltd., Karaikal and Soundararaja

Mills Thozhilalar Nala Vazhvu Sangam, Karaikal, over

non-payment of wages for the strike/lockout period

during the year, 2007 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

Karaikal Camp.

Wednesday, the 28th day of November 2013

I.D. No. 50/2012

The President,

Soundaraja Spinning Mills Thozhilalar

Nalavazhvu Sangam,

Nedungadu, Karaikal.

. . Petitioner

Versus

The Management,

Soundararaja Spinning Mills Ltd.,

Nedungadu, Karaikal.

. . Respondent

This industrial dispute coming on 26-11-2012

for final hearing before me in the presence of

Thiru N. Ramar, Representative for the petitioner,

Thiru R. Thambiraj, 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.102/AIL/Lab./J/2010, dated 12-5-2010 of the Labour

Department, Puducherry to resolve the following

dispute between the petitioner and the respondent viz.,

(1) Whether the demand of Soundararaja Mills

Nala Vazhvu Sangam seeking for payment of wages

for the strike/lockout period during 2007 by the

management of M/s. Soundararaja Spinning Mills,

Karaikal is justified or not?

(2) If justified, to what relief the union 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 bonus for the period 2006-2007 was not paid

to the workmen of Soundararaja Mills, Nedungadu.

Hence, the above workmen were unable to celebrate

the Deepavali. It was announced by the management

that the bonus will be paid before one day of

Deepavali i.e. on 7-11-2007. When the workers tried

to get the bonus, the management has not prepared

to pay the bonus uniformly but they tried to pay the

bonus in three type of bonus as 11%, 20% and 35%

by dividing the workers in three categories. But the

workers insisted to pay the same amount of bonus to

all the section of workmen uniformly.

The management has stated that they have

entered into 18(1) agreement with INTUC and LPF

Union. But the petitioners were not informed about

the alleged 18(1) settlement and hence the alleged

settlement is illegal and it will not bind the petitioner's

union. But the management threatened the workers

that they will close the factory, if the bonus was not

received by the workers.

On 7-11-2007 when the workers, those who have

presented their ticket to the timekeeper for the II and

III shift, were not permitted to attend the work within

the campus. After celebrating Deepavali, the workers

went to I shift as usual on 9-11-2007 at 6.30 a.m. But

in order to receive the bonus by the workers as

declared by the management, the management

announced the lockout without any notice and

permission from the government. After the 1st shift

619

25 June 2013]

LA GAZETTE DE L’ETAT

on 7-11-2007 the workers availed Deepavali on

8-11-2007 and further those who attended work for

1st shift on the next day on 9-11-2007 cannot be

deemed to be indulged in strike. It is also equally bad

on the part of the management of saying that those

women workers went to celebrate Deepavali at their

house who were staying in the mill were threatened

and sent by the workers. In the conciliation talks,

held on 9-11-2007 before the Karaikal District

Collector and Labour Officers, the workers showed

their willingness for work. It was advised by the

above officials that the management can lift the

lockout and the bonus talks can be separately held,

but the management wantonly refused to lift the

lockout. The management insisted the workers by

threatening them to receive the bonus as per their

above ratio fixed. Hence, this industrial dispute is

filed directing the respondent to pay the salary and

other benefits for the period of lockout and the

period of refusal of work and other benefits.

3. In the counter statement, the respondent has

stated as follows:-

This petition is baseless and has to be dismissed

in limine. Even as per the Industrial Disputes Act

and the principles laid down by the Hon'ble High

Court and Apex Court, this petition is not

maintainable.

The petitioner has got no right under section 2(F)

of Industrial Disputes Act to prefer this petition. The

INTUC and LPF are the only approved labour unions.

The workers of the respondent management are all

the members of the abovesaid union. Hence, the

abovesaid issues have to be raised at the first

instance as the primary issue and to be decided as

the first instance.

The settlement under section 18(1) of Industrial

Disputes Act was entered on 6-11-2007 between the

management and INTUC and LPF union regarding

bonus pertaining to 2006-2007. On 7-11-2007 about 3.00

p.m. without any reason, the workers were

undergoing internal strike without issuing any notice

to the management. Hence, the management

requested the workers to go back for their work and

warned them that the salary for the eight days will

not be disbursed. But the workers were not yielded

the warning of the management. Notice was given to

the Labour Department. The workers were not only

indulged in illegal strike, but also restrained the

women workers from attending their duty and they

also threatened the women workers to vacate the

hostel. To protect the properties of the company and

the welfare of the workmen in lieu of the internal

illegal strike, the management declared the lockout on

9-11-2007 within the purview of section 24(3) of

Industrial Disputes Act. In the above circumstances,

some of the workers, who indulged in illegal strike

came back to work on 25-11-2007. Hence, the

management lifted the lockout on 25-11-2007.

As per the agreement dated 6-11-2007, it was

decided to issue 8.33% bonus and 2.67% incentive

and the same was agreed by the workers and it is not

correct that the management has announced the

bonus by dividing the workers in three categories, as

stated by the petitioner. The claim of the petitioner's

union that the salary and other benefits to be given

to the workers, who have not attended duty is against

the principles of 'no work, no pay’ and against the

judgments passed by the Hon'ble Apex Court and

High Courts. Hence, the INTUC and LPF unions have

withdrawn the present industrial dispute. as per the

agreement dated 26-8-2008 that for the period of

lockout, there will be no salary and advance given to

the workers. Hence, as per the said agreement dated

26-8-2008, the present industrial dispute. filed by the

petitioner is against the law and therefore, they pray

for dismissal of the industrial dispute.

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

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

respondent, RW1 was examined and Ex.R1 to Ex.R25

were marked.

5. The point for determination is:

Whether the industrial dispute can be allowed?

6. On this point:

The contention of the petitioner is that the

respondent announced the bonus by dividing the

workers in three categories, which was objected by the

workers and on 7-11-2007 the workers went to attend I

and II shift and they were insisted to receive the bonus

as announced by the management and since the workers

refused for the same, they were not permitted to enter

inside the factory. The petitioner further contended that

after celebrating Deepavali, the workers went to

shift on 9-11-2007, the management declared the

lockout without any notice. In order to prove their

contention, one of the employees working in the

respondent factory was examined as PW1. PW1 in his

evidence has deposed as stated in his claim statement.

During the cross-examination, PW1 has denied the

suggestion that they conducted the stay in strike from

7-11-2007.

7. Per contra, the contention of the respondent is

that the workers went on illegal stay in strike against the

18(1) settlement with two unions regarding bonus for

the year 2006-2007 and hence the mill announced the

lockout consequent on the illegal strike by the workers.

In order to prove their claim, the Personnel Manager of

the respondent factory was examined as RW1. RW1 in

his evidence has deposed as stated in their counter.

620

LA GAZETTE DE L’ETAT

[25 June 2013

8. Now this court has to see whether the lockout

announced by the respondent management is legal or not.

9. Section 22(2) of Industrial Disputes Act defines

when the employer can declare lockout. The said section

runs as follows:-

22(2) No employer carrying on any public utility

service shall lockout any of his workmen-

(a) without giving them notice of lockout as

hereinafter provided, within six weeks before locking

out; or

(b) within fourteen days of giving such notice; or

© before the expiry of the date of lockout specified

in any such notice as aforesaid; or

(d) during the pendency of any conciliation

proceedings before a Conciliation Officer and seven

days after the conclusion of such proceedings.

From the above, it can be seen that before declaring

lockout, the employer should have given notice within

six weeks to their workmen. In this case, no such notice

was given to the workers by the respondent

management. Hence, the lockout announced by the

respondent management from 9-11-2007 is illegal.

10. The learned counsel for the respondent has

submitted that on 7-11-2007 about 3.00 p.m. without any

reason, the workers undergoing internal strike without

issuing any notice to the management. But the petitioner

has stated that when the workers went to attend II and

III shift, they were threatened by the respondent

management that if the workers refused to receive the

bonus, as declared by them, they will not be permitted

to work and after celebrating Deepavali festival on

8-11-2007, they went to factory to attend the I shift on

9-11-2007, but the respondent management announced

the lockout without any notice to workers and prior

permission from the concerned authority and mentioned

in the ticket of the workers as SIS (Stay In Strike).

11. On the side of the respondent, the copy of the

failure report dated 6-2-2008 has been marked as Ex.R23.

A perusal of Ex.R23 reveals that during the conciliation,

the management stated that the mill announced the

lockout consequent on the illegal strike by the workers,

but the union denied the statement that they are ready

to work and requested to lift the lockout and the Labour

Officer advised the management to lift the lockout

immediately and the workers to go for work to maintain

industrial peace and also advised the union to file a

separate petition regarding bonus issue, but the lockout

was not lifted by the respondent management. A perusal

of Ex.R23 further reveals that the workers involved in

road roko and it created law and order problem and

hence the Karaikal District Administration intervened in

this matter and the District Collector conducted several

rounds of talks with both parties and the main issue of

the dispute raised by the workers was, wages for the

lockout period, which was denied by the management

and finally an agreement was arrived at between both

parties before the District Collector, Karaikal under

section 18(1) of the Industrial Disputes Act and the

lockout was lifted and the workers resumed work.

12. RW1 has marked the copy of the Settlement under

section 18(1) of Industrial Disputes Act, 1947 and the

point No.7 of the said agreement runs as follows:-

“The management has to deposit a sum of

` 3,00,000 in the name of the District Collector. The

dispute regarding the strike and lockout has to be

referred to the Labour Court for adjudication. The

award of the Labour Court would bind both parties.

They shall not go for appeal in the issue.”

After this settlement, a petition was filed by the

President, Soundararaja Mills Thozhilalargal Nala

Vazhvu Sangam requesting the authority to refer the

dispute of the strike and lockout to the Labour Court for

adjudication as per the 18(1) Settlement, dated 26-11-2007.

13. Ex.R23 is a failure report sent by the Labour

Officer, in whose presence, the conciliation was held and

hence he is a competent person to speak about the

alleged stay in strike by the workers. The union has

denied the statement of respondent management that

the workers went on stay in strike and they are ready to

work and requested to lift the lockout, as mentioned in

Ex.R23 by the Labour Officer. As per the version of

petitioner, the workers were insisted by the respondent

management to receive the bonus as declared by them,

otherwise they will not be permitted to enter into the

factory premises. Hence, the burden is cast upon the

respondent to prove that the workers went on stay in

strike. But the respondent has not examined any witness

or filed any document to prove that the workers went on

stay in strike. In the above circumstances, the lockout

declared by the respondent is illegal and consequently,

the petitioner union is entitled for the salary and other

benefit for the lockout period according to law. This

point is answered accordingly.

14. In the result, the industrial dispute is allowed and

the petitioner union is entitled for salary and other

benefits for the lockout period according to law. No

costs.

Typed to my dictation, corrected and pronounced by me

in the open court on this the 28th day of November, 2012.

T. MOHANDASS,

Presiding Officer, Labour Court,

Puducherry.

————

List of witnesses examined for the petitioner:

PW.1 —

4-1-2011 Mariyappan

List of witnesses examined for the respondent:

RW.1 —

12-3-2012 John Amalraj

621

25 June 2013]

LA GAZETTE DE L’ETAT

List of exhibits marked for the petitioner:

Ex.P1 —

Copy of the bonus slip.

Ex.P2 —

Copy of the letter, dated 11-11-2007 sent

by the petitioner union to the District

Collector.

Ex.P3 —

Copy of the letter, dated 19-11-2007 sent

by the petitioner union to the Labour

Officer.

Ex.P4 —

Copy of the settlement under section 18(1)

of Industrial Disputes Act.

Ex.P5 —

Copy of the public holidays and

restricted holidays.

Ex.P6 —

Copy of the letter, dated 18-6-2008 sent to

Labour Officer by respondent.

Ex.P7 —

Copy of the letter, dated 15-9-2009 sent by

the petitioner union to the Labour Officer.

Ex.P8 —

Copy of the failure report, dated 18-9-2009.

List of exhibits marked for the respondent:

Ex.R1 —

Copy of the settlement under section

18(1) of Industrial Disputes Act.

Ex.R2 —

Copy of the letter, dated 18-6-2008 sent to

the Labour Officer by the respondent

management.

Ex.R3 —

Settlement under section 18(1) of

Industrial Disputes Act, dated 6-11-2007.

Ex.R4 —

Notice dated, 7-11-2007 by the respondent

management.

Ex.R5 —

Copy of the letter sent by the respondent

to the Labour Officer, dated 7-11-2007.

Ex.R6 —

Notice dated, 7-11-2007 sent by the

respondent management.

Ex.R7 —

Copy of the letter, dated 7-11-2007 by the

respondent management to Labour Officer.

Ex.R8 —

Notice, dated 9-11-2007 by the respondent

management.

Ex.R9—

Letter, dated 9-11-2007 sent by the

respondent management to the Labour

Officer.

Ex.R10— Letter, dated 9-11-2007 sent by the

respondent management to the Labour

Office.

Ex.R11— Notice of enquiry, dated 9-11-2007 sent to

both parties.

Ex.R12— Paper cutting, dated 13-11-2007.

Ex.R13— Copy of the notice, dated 16-11-2007.

Ex.R14— Notice

published

by

respondent

management.

Ex.R15— Notice, dated 17-11-2007 by the

respondent management.

Ex.R16— Letter, dated 22-11-2007 sent by the

respondent to Labour Officer.

Ex.R17— Copy of the notice, dated 24-11-2007

by the respondent.

Ex.R18— Copy of the notice, dated 25-11-2007

by the respondent.

Ex.R19— Letter, dated 25-11-2007 by the

respondent to the Labour Officer.

Ex.R20— Notice, dated 26-11-2007 by the

respondent.

Ex.R21— Notice of remarks, dated 27-11-2007

sent by the Labour Officer to the

respondent.

Ex.R22— Copy of the letter, dated 17-12-2007

sent by the respondent to the Labour

Officer.

Ex.R23— Copy of the failure report, dated 6-2-2008.

Ex.R24— Copy of the letter, dated 15-2-2008 sent

by the respondent to the Labour Officer.

Ex.R25— Copy of the failure report, dated 18-9-2009.

T. MOHANDASS,

Presiding Officer, Labour Court,

Puducherry.

————

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 90/AIL/Lab./J/2013, dated 13th June 2013)

NOTIFICATION

Whereas, an award in I.D.No. 24/2012, dated 13-3-2013

of the Labour Court, Puducherry in respect of the

industrial dispute between the Chemcrown Exports and

Suolificio Linea Italia (P) Ltd., Thozhilalargal Sangam

against the management of M/s. Chemcrown Exports

Ltd., Unit-III and Suolificio Linea Italia (India ) Pvt.,

Ltd., Puducherry, over non-employment of 12 employees

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).

622

LA GAZETTE DE L’ETAT

[25 June 2013

BEFORE THE LABOUR COURT AT PUDUCHERRY

Present :

Thiru T. MOHANDASS, M.A., M.L.

Presiding Officer, Labour Court.

Wednesday, the 13th day of March, 2013.

I.D. No. 24/2012

The President,

Chemcrown Exports and Suolificio Linea

Italia (P) Limited, Thozhilalargal Sangam,

Sedarapet, Puducherry.

. . Petitioner

Versus

1.

The Managing Director,

Chemcrown Exports Unit III,

Puducherry.

2.

The Managing Director,

Suolificio Linea Italia (India) (P) Ltd.,

Puducherry.

. . Respondent

This industrial dispute coming on this day for hearing

before me in the presence of Thiru R.T. Shankar,

Advocate for the petitioner, M/s. Law Solvers,

Advocate for the first respondent, Thiru K. Babu and

Thiru C. Arivajagne, Advocates for the second respondent,

upon perusing the case records, 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.114/AIL/Lab./J/2012, dated 13-7-2012 of the Labour

Department, Puducherry to resolve the following

dispute between the petitioner and the respondent, viz.,

(1) Whether the dispute raised by the union

workmen Chemcrown Exports & Suolificio Linea Italia

(P) Ltd. Thozhilalargal Sangam against the

management of M/s. Suolificio Linea Italia (India)

Pvt. Ltd., over non-employment of 12 employees viz.,

1. A. Ravichandran, 2. K. Kaliyamoorthy, 3. A. Subramanian,

4. A. Lakshmanan, 5. E. Selvam, 6. T. Srinivasan,

7. K. Ezhumalai, 8. S. Ramesh, 9. A. Arumaiselvam,

10. R. Murugan, 11. P. Sekar, and 12. S. Magesh are

justified?

(2) If justified, to what relief, the workmen are

entitled to?

(3) Whether the management of M/s. Chemcrown

Exports Ltd., Unit III, Sedarapet, Puducherry is liable

to pay the closure compensation to the above

mentioned employees? If so, to give appropriate

directions?

(4) To compute the relief, if any, awarded in terms

of money, if it can be so computed?

2. M/s. Law Solvers filed Form-F for the first

respondent and Thiru K. Babu and Thiru C. Arivajagne

filed Form-F for the second respondent, but they have

not filed the counter statement in spite of several

opportunities given. Hence, this court ordered for

ex parte evidence and accordingly one Ravichandran

was examined as PW1 and through him, Ex.P1 to Ex.P24

were marked. A perusal of those documents would

clearly prove that the first and second respondents are

one and the same management and hence the second

respondent hereby directed to reinstate the petition

mentioned workmen with continuity of service and full

back wages and other attendant benefits with costs.

Typed to my dictation, corrected and pronounced by

me in the open court on this the 13th day of March 2013.

T. MOHANDASS

Presiding Officer,

Labour Court, Puducherry.

————

List of petitioner’s witness :

PW1 - 13-2-2013-Ravichandran

List of petitioner’s exhibits:-

Ex.P 1

— Notice of closure, dated 21-2-2011

Ex.P2

— Letter sent by the union dated 9-3-2011

Ex.P3

— Conciliation failure report, dated 20-4-2012

Ex.P4

— Reference notification by Government of

Puducherry, dated 13-7-2012

Ex.P5

— Copy of the registration certificate of the

union, dated 26-3-2003

Ex.P6

— Company master details for 1st respondent,

dated 20-11-2011.

Ex.P7

— Company master details for 2nd respondent,

dated 20-11-2011.

Ex.P8 — Appointment order of Sundaramoorthy,

dated 1-7-1998.

Ex.P9

— Appointment order of Karthikeyan,

dated1-8-1996.

Ex.P10 — Transfer order of Karthikeyan, dated

30-3-2000.

Ex.P11 — Appointment order of Ramesh, dated

2-5-1997.

Ex.P12 — Salary bill of Ramesh for the month of

May 2010.

Ex.P13 — Salary bill of Ezhilarasan in 1st and

2nd respondents.

Ex.P14 — Salary bill of Velmurugan for 1 s t and

2nd respondents.

623

25 June 2013]

LA GAZETTE DE L’ETAT

Ex.P15 — Salary bills of Thanasekar for 1st and 2nd

respondents.

Ex.P16 — Salary bills of Sundaramoorthy in 1st and

2nd respondents.

Ex.P17 — Letter dated 25-9-2009 sent by the union

to the 1st respondent.

Ex.P18 — Letter dated 4-10-2010 sent by the union.

Ex.P19 — Letter dated 14-6-2010 sent by the union.

Ex.P20 — Agreement dated15-2-2007 entered into

between the union and both respondents.

Ex.P21 — Agreement dated 28-4-2010 entered into

between the union and both respondents.

Ex.P22 — Reply dated14-9-2012 sent by the Labour

Department under RTA.

Ex.P23 — Copy of licence challenged fron the name

of Chemcrown to Suolificio Linea Italia.

Ex.P24 — Confirmation order, dated 1-7-1994 of

Ravichandran.

List of respondent’s witnesses : Nil

List of respondent’s exhibits : Nil

T. MOHANDASS

Presiding Officer,

Labour Court, Puducherry.

————

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 91/Lab./AIL/J/2013, dated 13th June 2013)

NOTIFICATION

Whereas, an award in I.D. No. 31/2011, dated 8-3-2013

of the Labour Court, Puducherry in respect of the

industrial dispute between the management of

M/s. Sri Sundarakrishna Bus Service, Puducherry

and one Thiru R. Kaliyaperumal over non-

payment of statutory claims and retrenchment

compensation 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 8th day of March 2013

I.D. No. 31/2011

R. Kaliyaperumal

. . Petitioner

Versus

The Managing Director,

Sri Sundarakrishna Bus Service,

Puducherry.

. . Respondent

This industrial dispute coming on this day

for hearing before me in the presence of Thiru

K . Velmurugan, Advocate for the petitioner,

Thiru Elaya Natarajan, Advocate for the

respondent, upon perusing the case records,

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.181/AIL/Lab./J/2011, dated 24-10-2011 of the Labour

Department, Puducherry to resolve the following

dispute between the petitioner and the respondent, viz.,

( 1 ) W h e t h e r t h e d i s p u t e r a i s e d b y

Thiru R. Kaliyaperumal against the management

of M/s. Sundarakrishna Bus Service, Puducherry

over non-payment of statutory claims and retrenchment

compensation is justified?

(2) If justified, to 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. When the above industrial dispute came up for

filing counter, the respondent called absent and no

representation from him. Today the petitioner was

examined as PW.1 and through him, Ex.P1 to Ex.P5 were

marked. The documents under Ex.P1 to Ex.P5 have not

been challenged by the respondent. Claim proved.

Hence, the industrial dispute is allowed with costs and

the respondent is directed to pay the statutory dues,

retirement benefits and retrenchment compensation as

per law from the period from 1969 to 1982.

Typed to my dictation, corrected and pronounced by

me in the open court on this the 8th day of March 2013.

T. MOHANDASS,

Presiding Officer, Labour Court,

Puducherry.

624

LA GAZETTE DE L’ETAT

[25 June 2013

List of petitioner’s witness:

PW.1 —

8-3-2013 Kaliyaperumal

List of petitioner’s exhibits:

Ex.P1 —

Copy of the counter, dated 14-6-2005 filed

by the respondent before Labour Officer

Ex.P2 —

Copy of the letter, dated 21-5-2009 by

petitioner to Labour Officer.

Ex.P3 —

Copy of the legal notice, dated 22-12-2010

by respondents.

Ex.P4 —

Copy of the failure report, dated 10-9-2011

Ex.P5 —

Copy of the letter, dated 24-10-2011 by

Under Secretary to Government.

List of respondent witness: Nil

List of respondent exhibits: Nil

T. MOHANDASS,

Presiding Officer, Labour Court,

Puducherry.

————

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 92/Lab./AIL/J/2013, dated 14th June 2013)

NOTIFICATION

Whereas, an award in I.D. No. 37/2007, dated

15-2-2013 of the Labour Court, Puducherry in respect

of the industrial dispute between the management of

M/s. Superfil Products Limited, Puducherry and its

workman Thiru S. Selvam 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.

Friday, the 15th day of February 2013

I.D. No. 37/2007

Selvam,

S/o. Sowrirajan

2, Thirumoola Nagar,

Mudaliarpet, Puducherry.

. . Petitioner

Versus

Superfil Products Limited,

Rep. by its Managing Director,

Mangalam Post, Puducherry.

. . Respondent

This industrial dispute coming on 14-2-2013

for final hearing before me in the presence of

Thiru P.R. Thiruneelakandan, Advocate for the

petitioner, Thiruvalargal R. Ilancheliyan, R. Thilagavathi,

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

This industrial dispute arises out of the reference

made by the Government of Puducherry, vide G.O. Rt.

No.160/Lab./AIL/J/2008, dated 3-12-2007 of the

Labour Department, Puducherry to resolve the

following dispute between the petitioner and the

respondent, viz.

(1) Whether the dispute raised by the petitioner

Thiru S. Selvam, against the management of

M/s. Superfil Products Limited, Puducherry over

non-employment 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 respondent factory was started in the year

1996 as Swastic Filaments (P) Limited, and later the

said factory was acquired by the present respondent

management. The petitioner is the ITI holder and

he joined in the year 1998 as operator. He was the

President of the trade union in the respondent

management namely Superfil Products Workers

Union. His union raised the charter of demand on

10-3-2004 where the union demanded increase

of wage and other benefits. The respondent

625

25 June 2013]

LA GAZETTE DE L’ETAT

management did not want the petitioner union

activity in insisting the respondent to accede the

charter of demand and they decided to victimise

the petitioner and the office bearer of the union.

The respondent management issued a charge

memo dated 24-3-2005 alleging that the petitioner

slept during the working hours on 14-3-2005. They

issued another charge sheet dated 19-3-2005 for

the above said alleged incident with the same

allegation along with new allegation that the

petitioner assaulted the officials of the respondent

management. They sent another charge sheet

dated 14-3-2005 with colourful allegation against

the petitioner. The petitioner submitted his

explanation for all these charge sheets dated

26-3-2005.

Then the respondent issued the suspension

order dated 14-3-2005 and issued the enquiry

notice dated 29-3-2005, wherein the respondent

stated that the petitioner shall appear before the

Enquiry Officer at T. Nagar, Chennai by letter,

dated 31-3-2005. The petitioner made his objection

to appear before the Enquiry Officer at Chennai

and requested the respondent to conduct the

enquiry at factory premises. Then the respondent

issued enquiry notice, dated 2-4-2005 and the

enquiry was held on 9-4-2005 and on 14-4-2005

thereafter the enquiry was adjourned to 21-4-2005

for further enquiry. The petitioner went to the

respondent factory to attend the enquiry on

21-4-2005, but no enquiry was conducted by the

respondent and he was not even allowed to go

inside the factory premises, where the enquiry was

to be conducted.

The respondent management by adopting unfair

means made an agreement with the General

Secretary of the union on 21-11-2005, wherein the

respondent management insisted the union to get

the resignation from the petitioner to enter into the

Memorandum of Understanding. Since the workers

were under the threat in the hands of the

respondent they have no other way they

consented to the unlawful demand of the

respondent management and entered into the

Memorandum of Understanding. As per the said

understanding,

the

respondent

management

dropped the charge against the other workers, who

placed under suspension for the same allegation.

The

petitioner

approached

the

respondent

management either to conduct the domestic enquiry

or to give employment, but the respondent refused

to give the employment and replied that he was

already orally terminated from service. Hence, he

raised the industrial dispute before the Labour

Officer (Conciliation) and the same was ended in

failure. The respondent management adopted

illegal method of keeping the petitioner under the

suspension from 14-3-2005 without providing the

subsistence allowances. Hence, the present

dispute is filed before this court.

3. The respondent in his counter has stated as

follows :—

The petitioner along with another co-worker

committed act of assault and misbehaviour with

senior officials in the respondent factory on

14-3-2005 when they came inside the factory to

check the alterness of workmen in the night shift.

The officials during the surprise check noticed

some of the workmen sleeping during the duty hour

and the photograph of the same have been taken.

The petitioner along with another co-worker

P. Ayappan on the assumption that the disciplinary

action may be initiated, gheraoed the said two

officials and snatched the camera and exposed the

film role with an ulterior motive of tampering the

evidence. They also indulged in acts of abusing

the officials in the respondent factory in

disrespectful manner. They used vulgar words and

also attempted to assault the executives in the

presence of other workmen. Hence, the petitioner

was placed under suspension with effect from

14-3-2005 pending enquiry.

While the domestic enquiry was pending, the

petitioner was instigating the other workers to

indulge in acts of go slow in the guise of

considering the pending demands. However, the

respondent was prepared to negotiate any issue

regarding revisions of wages and other benefits

and did not come forward to concede the demand

of the union to withdraw the disciplinary

proceeding against the petitioner and another

worker. Since the union was not accepting and also

with a view of giving undue pressure started,

unethical and coercive method within the

premises, the respondent was constrained to

declare lockout to all its workmen from 15-7-2005.

There were several rounds of talks before the

conciliation machinery and in the interest of the

entire workmen, an option was given and in case

the petitioner is interest, he can resign and his

account would be settled so that a positive

atmosphere could be created for lifting of lockout.

The respondent also agreed for upward revision of

wages. The union keeping the option on mutual

interest

negotiated

the

matters

with

the

respondent and entered into a Memorandum of

Understanding

on

21-11-2005

which

was

subsequently converted as a settlement under

626

LA GAZETTE DE L’ETAT

[25 June 2013

section 12(3) of Industrial Disputes Act 1947

before the Labour Officer (Conciliation) on

21-2-2006. However the petitioner neither submitted

his resignation nor came forward to get his

settlement. Therefore the question of termination

by the respondent does not arise. It is well settled

principle in collective bargaining mechanism the

role of the union is vital and any understanding

or settlement arrived at with the union will bind all

its members and in the case of section 12(3)

settlement to the future members also. Therefore,

the petitioner cannot raise the dispute before the

respondent. 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.P11 were marked. On the

side of the respondent, no oral evidence was

adduced, but Ex.R1 to Ex.R7 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 was the

President of Superfil Products Workers Union and

since he raised voice on behalf of the union and in

order to victimise him, the respondent issued a false

charge sheet, dated 24-3-2005 alleging that he slept

during the working hours on 14-3-2005 and without

conducting the enquiry, he was terminated from

service. In order to prove his claim, the petitioner has

examined himself as PW.1. PW.1 has marked the copy

of the suspension order, dated 14-3-2005 as Ex.P1,

copy of the charge sheet, dated 24-3-2005 as Ex.P2,

copy of the charge sheet, dated 19-3-2005 as Ex.P3.

7. Per contra, the contention of the respondent

is that the petitioner along with another co-worker

committed act of assault and misbehaviour with senior

officials in the respondent factory on 14-3-2005 when

they came inside the factory to check the alterness

of workmen in the night shift and snatched the camera

and exposed the film role with an ulterior motive of

tampering the evidence and they also indulged in act

of abusing the officials in the respondent factory in

disrespectful manner and they used vulgar words and

also attempted to assault the executives in the

presence of other workmen and hence, the petitioner

was placed under suspension with effect from

14-3-2005 pending enquiry.

8. In order to support his claim, no oral evidence

was adduced on the side of the respondent. But the

copy of the complaint received from the employee of

respondent by name Mahendran to the Inspector of

Police, Mangalam Police Station was marked as Ex.R1,

copy of the complaint sent by the said Mahendran

to the Vice-President of the respondent company as

Ex.R2 and copy of the complaint received from the

another employee by name Ravikumar to the Inspector

of Police as Ex.R3. On perusal of Ex.R1 to Ex.R3, it is

seen that for an incident, which alleged to have been

taken on 14-3-2005, separate complaints have been

given to the Inspector of Police, Mangalam Police

Station. Further there is no endorsement by the

officer of the respondent company in the complaints

under Ex.R1 and Ex.R3. If really the Ex.R1 and Ex.R3

have been given to the police, there would have been

seal of the police station. But no such endorsement

or seal were found in Ex.R1 and Ex.R3. Apart from the

above, there is no explanation from the respondent

that whether any FIR has been registered based on

the said complaints under Ex.R1 and Ex.R3. Hence,

Ex.R1 to Ex.R3 cannot be taken into consideration, as

the said documents have been created for the

purpose of this case.

9. The learned counsel for the petitioner has

submitted that for the same incident, two different

charge sheets were issued under Ex.P2 and Ex.P3 and

the petitioner submitted his detailed explanation to

the above said charges under Ex.P4 and on receipt

of Ex.P4, the respondent issued the enquiry notice,

dated 29-3-2005 under Ex.P6 asking him to appear

before the Enquiry Officer at Chennai and on receipt

of the said enquiry notice, the petitioner submitted

his objection letter, dated 21-5-2005 under Ex.P6 and

requested the respondent to conduct the enquiry at

Pondicherry and without conducting any enquiry

over the above said charges, orally denied

employment to the petitioner stating that the said

trade union entered into an agreement dated 21-5-2005

under Ex.P7 with the respondent and to which in

clause 6 of the agreement, all the members of the said

trade union unanimously agreed that the petitioner

shall give resignation to the respondent management

and hence the respondent without conducting any

enquiry on the charge levelled against the petitioner,

orally terminated the service of the petitioner and

denied employment.

10. The learned counsel for the respondent would

submit that after suspension, the petitioner indirectly

put pressure to withdraw the disciplinary proceedings

against him and the petitioner along with other office

bearers had several rounds of talks on the wage

revision and other demands before the conciliation

machinery and could not bring into an amicable

settlement and in such a situation majority of the

workmen felt that the settlement could not be arrived

at due to the negative attitude of the petitioner, who

627

25 June 2013]

LA GAZETTE DE L’ETAT

has acting as the President of the trade union and

therefore, they negotiated the issue without presence

of the petitioner and a settlement under section 12(3)

was arrived at and according to the settlement, the

petitioner who was placed under suspension had to

tender his resignation and the management could

relieve him and settle his accounts and it was agreed

by the majority of the union office bearers in the

interest of protecting the industry as a whole and as

far as the said settlement, it binds all the persons,

who were employed at the time and also the future

employees and in such a situation, raising a dispute

under section 2(A) of Industrial Disputes Act is not

only against the principles laid down under the

collective bargaining mechanism and also contrary to

the provisions laid down under the Industrial

Disputes Act.

11. According to the respondent, the charge sheet

was issued under Ex.R5 and the enquiry notice was

sent under Ex.P5 to the petitioner. But as admitted by

the respondent, the enquiry has not been conducted.

The respondent has stated that the settlement under

section 12(3) was arrived at, as per which the

petitioner has to tender his resignation and based on

the said resignation, the respondent would relieve

him and settle his account. When the enquiry was

pending, what is the necessity for the respondent to

include the said clause. This would clearly show that

in order to victimise him, the said clause has been

included in the said settlement.

12. The petitioner was issued with a charge sheet

alleging that he was slept during the working hours

on 14-3-2005 and it is the duty of the respondent to

conduct the inquiry and in the inquiry sufficient

opportunities have to be given to the petitioner and

then only taken action against him based on the

enquiry report submitted by the Enquiry Officer and

before termination, the second show cause notice has

to be issued to the petitioner and after getting

explanation, the respondent has to terminate him from

service. It is pertinent to refer the following decisions,

which are relevant to this case:—

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

State of Uttar Pradesh Versus Presiding Officer,

Labour Court, Agra and another :

“Abandonment of service - Even in the case

of alleged abandonment, it is necessary for

employer to conduct an enquiry, issue a charge

sheet and notice to the workman concerned

informing him that he is continuously absenting

without any sanctioned leave - Admittedly this

having not been done in this case the plea of

employer about abandonment of service by

workman not tenable.”

1988 1 L.L.N. Page 259 :

Gaurishankar Vishwakarma Versus Eagle Soring

Industries (P) Limited and others:

“Industrial dispute - Practice and procedure -

Non-employment of workman - Case of employer

is that workman has abandoned service - Even in

case of abandonment of service employer has to

give notice to workman and hold an enquiry - it is

for employer to prove such abandonment - Labour

Court expected to follow judicial procedure should

not depend on unverified statements to come to

conclusion that it was workman who had refused

to resume work.”

13. Though the respondent has issued a charge

sheet to the petitioner and notice of enquiry, the

enquiry has not been conducted before the

termination of his service, as admitted by him. It is

now well settled that even in the case of the

abandonment of service, the employer has to give a

notice to the workman, calling upon him to resume

his duty and also to hold an enquiry before

terminating his service on that ground. In the present

case, the respondent has done neither. It was for the

employer to prove that the petitioner slept in the

working hours on 14-3-2005. In the absence of any

such evidence, the contention of the learned counsel

for the respondent that the petitioner slept during the

working hours, cannot be accepted. Further the

respondent adopted illegal method of keeping the

petitioner under the suspension from 14-3-2005

without providing the subsistence allowance, which

is against law. In the above circumstances, the

termination of the petitioner is bad in law and the

same is liable to be set aside.

14. The respondent has not even pleaded or

proved that the petitioner is gainfully employed after

his termination. Hence, the petitioner is entitled for

reinstatement with continuity of service and back

wages and other attendant benefits. Accordingly, this

point is answered.

15. In the result, the industrial dispute is allowed

and the petitioner is entitled for reinstatement with

continuity of service with full back wages and other

attendant benefits. No costs.

Typed to my dictation, corrected and pronounced

by me in the open court on this the 15th day of

February, 2013.

T. MOHANDASS,

Presiding Officer,

Labour Court, Puducherry.

628

LA GAZETTE DE L’ETAT

[25 June 2013

List of petitioner’s witnesses :

PW.1 — 29-11-2012 — Selvam

List of petitioner’s exhibits :

Ex.P1

— Copy of the suspension order, dated

14-3-2005.

Ex.P2

— Copy of the charge sheet, dated 24-3-2005

Ex.P3

— Copy of the charge sheet, dated 19-3-2005

Ex.P4

— Explanation given by the petitioner to

the respondent, dated 26-3-2005.

Ex.P5

— Copy of the enquiry notice, dated 29-3-2005

Ex.P6

— Petitioner’s representation to the

respondent, dated 31-3-2005.

Ex.P7

— Settlement, dated 21-11-2005

Ex.P8

— Copy of the claim statement filed by the

petitioner, dated 8-1-2007.

Ex.P9

— Copy of the counter filed by the

respondent, dated 22-1-2007.

Ex.P10 — Rejoinder filed by the petitioner, dated

7-5-2007.

Ex.P11 — Failure report, dated 12-10-2007.

List of respondent’s witnesses : Nil.

List of respondent’s exhibits :

Ex.R1

— Copy of complaint from Mahendran to

Inspector of Police, Mangalam P.S.,

dated 14-3-2005

Ex.R2

— Copy of the complaint from Mahendran

to Vice-President of the respondent

company, dated 14-3-2005.

Ex.R3

— Copy of the complaint from Ravikumar

to Inspector of Police.

Ex.R4

— Copy of the memo issued to the

petitioner, dated 14-3-2005.

Ex.R5

— Copy of the charge sheet, dated 24-3-2005

issued to the petitioner.

Ex.R6

— Copy of Memorandum of Understanding,

dated 21-11-2005.

Ex.R7

— Copy of Memorandum of Settlement,

dated 24-2-2006.

T. MOHANDASS,

Presiding Officer,

Labour Court, Puducherry.

GOVERNMENT OF PUDUCHERRY

ELECTRICITY DEPARTMENT

No. 1/ED/EE-II/JE/F-C/GRF/2013-14.

Puducherry, the 5th June 2013.

NOTIFICATION

The Department of Electricity, Union territory of

Puducherry invites applications from qualified persons

for consideration of appointment for the post of

Chairperson in Consumer Grievance Redressal Forum

(CGRF) for Electricity Department for a period of 3 years.

The candidate shall be less than 65 years of age. The

candidate shall hold office for a term of three years from

the date of appointment or till he attains the age of 65

years whichever is earlier and should possess the

following qualifications:

A person possessing degree in engineering,

preferably in electrical/mechanical and having served

as Executive Engineer in power sector and having at

least 20 years experience in power sector or retired

District Judge/Additional District Judge or retired

Judicial Officer having at least 15 years of experience

in legal/judicial service.

The pay and allowances and other conditions of

service of the member from amongst the serving officers

shall be the same as he shall be otherwise entitled while

in service. The Chairperson selected from all other

category shall be eligible to receive a consolidated

remuneration of ` 50,000 (Rupees fifty thousand only)

per month. He shall also be entitled for 12 days casual

leave in a calendar year.

The eligible candidates who are willing to be

considered for the post shall apply directly to the

Superintending Engineer-I, Electricity Department,

No. 137, Nethaji Subash Chandra Bose Road,

Puducherry–605 001 in plain paper with details,

(i) Name and address, (ii) Attested copies of

educational qualification certificates, (iii) Experience

Certificate and (iv) Birth certificate, so as to reach their

applications on or before 28-6-2013 at 5.45 p.m.

Applications received without proof of educational

qualifications, experience certificate, etc., addressed to

any officer/office other than mentioned above and after

due date and time will not be considered. Candidates

in service shall submit their applications through proper

channel. The details are also available in the department

website: http://electricity.puducherry.gov.in.

SUPERINTENDING ENGINEER-I.