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.