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[27 August 2013

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 115/Lab./AIL/J/2013, dated 12th August 2013)

NOTIFICATION

Whereas, an award in I.D. No. 20/2011, dated 24-4-2013 of

the Labour Court, Puducherry in respect of the

industrial dispute between the Management of

M/s. Ajantha Cycle Parts Industry, Puducherry and

Cycle Parts Jananayaga Thozhilalar Sangam, over

non-employment of Thiruvalargal M. Janarthanan,

G. Devaraj and K. Moorthy has been received;

Now, therefore, in exercise of the powers conferred by

sub-section (1) of section 17 of the Industrial Disputes

Act, 1947 (Central Act XIV of 1947) read with the notification

issued in Labour Department’s G. O. Ms. No. 20/91/Lab./L,

dated 23-5-1991, it is hereby directed by Secretary to

Government (Labour) that the said award shall be published

in the official gazette, Puducherry.

(By order)

S. THAMMU GANAPATHY,

Under Secretary to Government (Labour).

————

BEFORE THE LABOUR COURT AT PUDUCHERRY

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

Presiding Officer, Labour Court.

Wednesday, the 24th day of April 2013

I.D. No. 20/2011

The President,

Cycle Parts Jananayaga Thozhilalar

Sangam, (AICCTU), Puducherry.

. . Petitioner

Versus

The Managing Director,

M/s. Ajantha Cycle Parts Industry,

Thattanchavady, Puducherry.

. . Respondent

This industrial dispute coming on 19-4-2013 for final

hearing before me in the presence of Thiru M. Ganapathy,

Advocate for the petitioner, Thiru C. Jagadeesan,

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.127/AIL/Lab./J/2011, dated 27-6-2011

of the Labour Department, Puducherry to resolve the

following dispute between the petitioner and the

respondent, viz.,

(1) Whether the dispute raised by Cycle Parts

Jananayaga Thozhilalar Sangam affiliated with

AICCTU against the management of M/s. Ajantha

Cycle Parts Industry, Puducherry, over their

non-employment of Thiruvalargal M. Janarthanan,

G. Devaraj and K. Moorthy is justified?

(2) If justified, to what relief they are entitled to?

(3) To compute the relief in terms of money, if it

can be so computed?

2. The petitioner, in his claim statement, has averred

as follows:

One Devaraj, Janarthanan and Murthy are the

employees of the respondent for more than 30 years.

Devaraj and Janarthanan were working as Pressman

and Murthy was working as Spot Welding and

Finishing Man. Except the management staff, the

workers are paid production linked piece-rate.

Initially, the respondent had supplied adequate raw

materials to the employees for their eight hours work

and the normal production was carried out.

Subsequently the respondent has not provided

adequate raw materials for the eight hours work on

piece-rate. Therefore, the employees of the

respondent demanded monthly wages without basing

on piece-rate. This demand created an aversion in the

mind of the respondent against the employees.

In order to have fair and better negotiation with

the management, the employees of the management

started a trade union under the name and style of

Cycle Parts Jananayaga Thozhilalar Sangam in the

year 2005 and registered with the Registrar of Trade

Unions, Puducherry and the said Janarthanan was

Secretary, Devaraj was Vice-President and Murthy

was Treasurer of the said union. This genuine trade

union activities infuriated the respondent and the

respondent has decided to take a revenge against

them under guise of some misconduct. The

respondent on this backdrop started to issue a show

cause notice on 16-4-2008 to all the three employees

on some alleged misconduct. Subsequently, without

following any rule of law and natural justice, the

respondent had removed the said three employees

from the service without any justification or reason.

Now, the petitioner has come to know that the

Enquiry Officer has produced a report to the

management arbitrarily without any evidence or basis

and according to whims and fancies of the

management. Without responding to their request,

a domestic enquiry was ordered and on the basis of

the alleged domestic enquiry report, the petitioners

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LA GAZETTE DE L’ETAT

were dismissed from service from 15-4-2009. In reality,

no enquiry was conducted on the alleged dates as

informed by the Enquiry Officer. Hence, the

petitioners were dismissed from service according to

the whims and fancies of the respondent without

following any rule of law or procedure. Hence, this

industrial dispute is filed to reinstate the said

employees with other benefits.

3. The respondent in their counter has stated as

follows:-

Cycle Parts Jananayaga Thozhilalar Sangam

(AICCTU) is not a registered trade union under Trade

Union Act, 1926. The petitioner trade union has not

authorised to file the above petition by virtue of a

resolution adopted by a majority of the members at

a meeting. The so-called President of AICCTU is not

an employee or employer in any industry or trade.

The respondent has every right to adopt the

system of payment of wages in his industrial unit

and pay the same out of any one method of payment

of wages as prescribed by the Payment of

Wages Act i.e. (1) Wages for time work or

(2) Wages for piece work. The respondent adopts

the payment of wages for piece work eversince they

started industrial unit depends upon the nature of

work and to maintain production. The payment of

wages for piece work has been fixed from time to time

as mutually agreed upon by the employees and the

employer. Similar practice is adopted by all other

cycle parts manufacturers across the country. No

trade union or any employee has right to compel the

management of any industrial unit to convert the

system of payment of wages from one system to

another, when the management is permitted to fix the

wages as per law. If an employee feels that the piece-rate

is not sufficient, he may request the management to

revise the rate as mutually agreed upon but no

otherwise by claiming to convert the system of

payment from one to another.

The President of so-called Cycle Parts Jananayaga

Thozhilalar Sangam (AICCTU) is advised the

employees to resort in unlawful activities by refusing

to receive their salary and bonus whenever it

becomes due and stop work or slow down the work

inside the industrial unit to go for unlawful strike to

restrain the other employees, staff and management

to enter into the industrial units unlawfully with a

view to harass the management to meet the demands

for the employees and its so-called President for his

own benefit.

When some of the employees refused to receive

the salary due to them, they were advised to receive

the salary, bonus and other emoluments and the

respondent sent letters to their respective address

to advise them to receive the salary by registered

post. The registered post sent to them, were returned

to the respondent with the endorsement “refused.

returned to the sender”. Then the respondent filed a

petition to deposit the salary and other dues to the

workers, who refused to receive before the authority

under the Payment of Wages Act, but the said

authority returned the petitions pointing out that

there is no provision in the Payment of Wages Act.

Then the respondent filed a case before the

Pondicherry State Legal Authority against the

employees, who refused to receive their dues. But

the said employees evaded to receive the salary. The

respondent is paying the wages as fixed by the

Minimum Wages Act and the cost of living index as

per the order of Government of Puducherry.

The said three employees were terminated from

service after issue of show cause notice and

conducting domestic enquiry only. They were not

dismissed from service all of a sudden. Hence, they

pray for dismissal of the petition.

4. In order to prove the case, PW.1 was examined on

the side of the petitioner and Ex.P1 to Ex.P45 were

marked through him. On the side of the respondent,

neither oral nor documentary evidence was adduced.

5. The point for consideration is:

Whether the industrial dispute can be allowed?

6. On this point:

The contention of the petitioner is that one Deveraj,

Janarthanan and Murthy are the employees of the

respondent for more than 30 years and they were paid

the wages on piece-rate and therefore, the employees

of the respondent demanded monthly wages without

basing on piece-rate and this demand created an

aversion in the mind of the respondent against the

employees and in order to have fair and better

negotiation with the management, the employees of the

management started a trade union under the name and

style of Cycle Parts Jananayaga Thozhilalar Sangam in

the year 2005 and registered with the Registrar of Trade

Unions, Puducherry and the said Janarthanan was

Secretary, Devaraj was Vice-President and Murthy was

Treasurer of the said union and this genuine trade

union activities infuriated the respondent and the

respondent has decided to take a revenge against them

under guise of some misconduct and the respondent on

this backdrop started to issue a show cause notice on

16-4-2008 to all the three employees on some alleged

misconduct and subsequently without following any

rule of law and natural justice, the respondent had

830

LA GAZETTE DE L’ETAT

[27 August 2013

removed the said three employees from the service

without any justification or reason. The petitioner

further contended that no enquiry was conducted on

the alleged dates as informed by the Enquiry Officer.

7. In order to prove the case of the petitioner, the

President of the petitioner trade union was examined as

PW.1. PW.1 in his evidence has deposed as stated in

the claim statement.

8. Per contra, the contention of the respondent is

that the said three employees were terminated from

service after issue of show cause notice and conducting

domestic enquiry only and they were not dismissed

from service all of a sudden.

9. When the petitioner has stated that there is no

enquiry conducted in this case, the burden is cast upon

the respondent to prove that the enquiry was conducted

in a fair and proper manner after giving sufficient

opportunity to the said workmen. As there is no oral or

documentary evidence was produced on the side of the

respondent, this court has to decide the said issue

based upon the oral and documentary evidence adduced

on the side of the petitioner.

10. PW.1 has marked the copy sent by the respondent

to the said Janarthanan as Ex.P1. In Ex.P1 it has been

stated that the said Janarthanan, Devaraj and Murthy

have involved in an illegal strike and also insisted and

threatened the other employees to participate in the said

strike and called for an explanation for the said act. Ex.P3

is the copy of the letter sent by the respondent

management to the said Janarthanan informing that one

Ilango is the Enquiry Officer, who will conduct the

enquiry on 19-11-2008 at 3.30 p.m. at Chinna

Subrayapillai Street. Ex.P4 is the copy of the letter sent

by the said Janarthanan to the respondent, wherein, it

has been stated that the place, time and date of enquiry

will be intimated only by the Enquiry Officer and not

by the respondent as stated in Ex.P3 and in the above

circumstances, the said Enquiry Officer cannot act

independently and hence he requested the respondent

management to change the Enquiry Officer.

11. It is settled law that normally the Enquiry Officer

only fix the time, date and place of enquiry and intimate

the same to the charged employee. But in this case, it

is surprisingly to note that the respondent management

themselves sent a letter under Ex.P3 informing the said

Janarthanan about the enquiry, which is against labour

law. Further on the side of the respondent, no enquiry

proceedings or enquiry report was filed to prove that

they have conducted the enquiry in a proper manner.

In fact the respondent themselves have admitted that

since the petition mentioned workmen did not

participate in the enquiry proceedings, they conducted

the ex parte enquiry proceedings. Generally sufficient

opportunity has to be given to the workmen in the

enquiry proceedings to defend their case and then only,

the management has to conduct the enquiry in ex parte

manner. In this case, the respondent has fixed the

enquiry on 19-11-2008, which was objected by the

petition mentioned workmen under Ex.P4 by stating that

the Enquiry Officer only fix the date, time and place of

enquiry and then the Enquiry Officer sent a letter, dated

16-12-2008 under Ex.10 giving another opportunity to

them on 22-12-2008 to participate in the enquiry and

since they have not participated in the enquiry, the

respondent sent dismissal order to the petition

mentioned workmen under Ex.P13. From the above, it

can be seen that the respondent has not given

sufficient opportunities to the petition mentioned

workmen to defend their case in the enquiry

proceedings in a hurried manner and hence the

dismissal orders under Ex.P15, Ex.P30 and Ex.P45,

passed by the respondent based on the ex parte enquiry

proceedings is liable to be set aside.

12. The contention of the respondent is that Cycle

Parts Jananayaga Thozhilalar Sangam (AICCTU) is not

a registered trade union under Trade Union Act, 1926

and the petitioner trade union has not authorised to file

the above petition by virtue of a resolution adopted by

a majority of the members at a meeting and the so-called

President of AICCTU is not an employee or employer

in any industry or trade. The respondent further

contended that the petitioner has not furnished the

detail of which the trade union is affiliated with which

trade union and the authority for so doing and therefore,

the claim of the affiliation is not under any law.

13. On perusal of records, it is seen that a letter,

dated 15-5-2008 addressed to All General Secretaries of

Central Trade Union Organisations and Central Employers

Organisation, in which the particulars of membership of

trade unions affiliated to Central Trade Union

Organisations is mentioned, as per which the All India

Central Council of Trade Unions (AICCTU) is affiliated

with the Central Trade Union Organisations. A perusal

of records would further reveal that Cycle Parts

Jananayaga Thozhilalar Sangam has been registered

with Registrar of Trade Union, Puducherry as per letter,

dated 9-4-2009 sent by the Registrar of Trade Union to

the President/Secretary, Cycle Parts Jananayaga

Thozhilalar Sangam. But the said documents have not

been marked as exhibits on the side of the petitioner.

However, PW.1 in his cross-examination has stated that

Cycle Parts Jananayaga Thozhilalar Sangam (AICCTU)

has been registered with the Registrar of Labour

Department and though the registration certificate has

not been marked, he is ready to produce the same as

required. The learned counsel for the respondent has

not filed any petition to direct the petitioner to produce

the said registration certificate. The burden is cast upon

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27 August 2013]

LA GAZETTE DE L’ETAT

the respondent to disprove the contention of the

petitioner through oral and documentary evidence. But

as already stated, the respondent has not examined any

witness or filed any document to prove their case. In

the absence of sufficient evidence, the said contention

of the learned counsel for the respondent cannot be

accepted.

14. PW.1 in his evidence has deposed that the

employees of the respondent management had been

engaged in piece-rate without implementing the

minimum wages and hence they demanded the monthly

wages without basing on piece-rate and in order to have

fair and better negotiation with the management, the

employees of the management started a trade union

under the name and style of Cycle Parts Jananayaga

Thozhilalar Sangam in the year 2007 and the petition

mentioned workmen namely, Janarthanan, G. Devaraj and

K. Murthy are the Secretary, Vice-President and

Treasurer respectively and in order to take vengeance

against them, they have been removed from service

without following any rule of law and natural justice.

The respondent has also admitted about the dispute

between them and the petitioners with regard to

implementation of minimum wages, but denied that in

order to take vengeance against them, they have been

removed from service.

15. It is to be pointed out that the Government has

referred this case only to decide whether the

non-employment of the petitioners is justified or not.

Hence, this court has to answer only for the said

question and there is no need to decide other aspect

i.e. whether the petitioners are entitled for the salary

under Minimum Wages Act or not. As stated earlier, the

respondent has failed to prove that the domestic enquiry

was conducted in a fair and proper manner by giving

sufficient opportunity to them. In fact the respondent in

his counter has stated that non-participation and

non-co-operation in the enquiry, the Inquiry Officer has

decided the dispute on merit based on the available

materials and the documents and imposed the

punishment of dismissal of service on them. No

documents placed before this court that the witnesses

were examined in the domestic enquiry to prove the

charges. No documents filed before this court to show

that before passing final orders, the second show cause

notice was issued to the workmen. Hence, this court has

come to the conclusion that the respondent has not

conducted the domestic enquiry in a fair and proper

manner and hence the dismissal order of the petitioners

based on the said enquiry is liable to be set aside and

they are entitled for reinstatement and with other

benefits. But considering the facts and circumstances

of the case, the petitioners are entitled to 50% of back

wages only. Accordingly, this point is answered.

16.

In the result, the industrial dispute is partly

allowed and the respondent is directed to reinstate the

petition mentioned workmen namely, M. Janarthanan,

G. Devaraj and K. Murthy into service with 50% of back

wages, continuity of service and other benefits. No

costs.

Typed to my dictation, corrected and pronounced by

me in the open court on this 24th day of April 2013.

T. MOHANDASS,

Presiding Officer,

Labour Court, Puducherry.

————

List of petitioner’s witness:

PW.1 — 25-10-2012 - Balasubramanian

List of petitioner’s exhibits:

Ex.P1 — Copy of the letter, dated 16-4-2008 sent by

the respondent to Janarthanan.

Ex.P2 — Copy of the reply sent by Janarthanan to

the respondent, dated 5-5-2008.

Ex.P3 — Copy of the letter sent by respondent to

Janarthanan, dated 8-11-2008.

Ex.P4 — Copy of the reply sent by Janarthanan to

respondent, dated 14-11-2008.

Ex.P5 — Copy of the letter from petitioner to

respondent, dated 8-12-2008.

Ex.P6 — Copy of the letter from Janarthanan to the

respondent, dated 8-12-2008.

Ex.P7 — Copy of the letter sent by Janarthanan to

respondent, dated 11-12-2008.

Ex.P8 — Copy of the unsigned letter of respondent

to Janarthanan, dated 15-12-2008.

Ex.P9 — Copy of the letter from Janarthanan to

respondent, dated 15-12-2008.

Ex.P10 — Copy of the letter from Enquiry Officer to

respondent, dated 16-12-2008.

Ex.P11 — Copy of the letter from Janarthanan to

respondent, dated 19-12-2008.

Ex.P12 — Copy of the letter from Janarthanan to

respondent, dated 19-12-2008.

Ex.P13 — Copy of the letter from Janarthanan to

Enquiry Officer, dated 19-12-2008.

Ex.P14 — Copy of the letter from Janarthanan to

respondent, dated 19-3-2009.

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LA GAZETTE DE L’ETAT

[27 August 2013

Ex.P15 — Copy of the dismissal order of Janarthanan,

dated 15-4-2009 sent by respondent.

Ex.P16 — Copy of the letter received from

respondent to Murthy, dated 16-4-2008.

Ex.P17 — Copy of the reply from Murthy to the

respondent, dated 5-5-2008.

Ex.P18 — Copy of the letter from the respondent to

Murthy, dated 8-11-2008.

Ex.P19 — Copy of the reply from Murthy to

respondent, dated 14-11-2008.

Ex.P20 — Copy of the letter from the petitioner to

the respondent, dated 8-12-2008.

Ex.P21 — Copy of the letter from Murthy to

respondent, dated 8-12-2008.

Ex.P22 — Copy of the letter from Murthy to the

respondent, dated 11-12-2008.

Ex.P23 — Copy of the unsigned letter from

respondent to Murthy, dated 15-12-2008

Ex.P24 — Copy of the letter from Murthy to

respondent, dated 15-12-2008.

Ex.P25 — Copy of the letter from Enquiry Officer to

the respondent, dated 16-12-2008.

Ex.P26 — Copy of the letter from Murthy to

respondent, dated 19-12-2008.

Ex.P27 — Copy of the letter from Murthy to Enquiry

Officer, dated 19-12-2008.

Ex.P28 — Copy of the letter from the respondent to

Murthy, dated 17-2-2009.

Ex.P29 — Copy of the letter from Murthy to the

respondent, dated 19-3-2009.

Ex.P30 — Copy of the dismissal order of Murthy,

dated 15-4-2009.

Ex.P31 — Copy of the letter from the respondent to

Devaraj, dated 16-4-2008.

Ex.P32 — Copy of the reply from Devaraj to

respondent, dated 5-5-2008.

Ex.P33 — Copy of the letter from the respondent to

Devaraj, dated 8-11-2008.

Ex.P34 — Copy of the reply from Devaraj to

respondent, dated 14-11-2008.

Ex.P35 — Copy of the letter from the petitioner to

the respondent, dated 8-12-2008.

Ex.P36 — Copy of the letter from Devaraj to

respondent, dated 8-12-2008.

Ex.P37 — Copy of the letter from Devaraj to the

respondent, dated 11-12-2008.

Ex.P38 — Copy of the unsigned letter from

respondent to Devaraj, dated 15-12-2008.

Ex.P39 — Copy of the letter from Devaraj to

respondent, dated 15-12-2008.

Ex.P40 — Copy of the letter from Enquiry Officer to

the respondent, dated 16-12-2008

Ex.P41—

Copy of the letter from Devaraj to

respondent, dated 19-12-2008.

Ex.P42 — Copy of the letter from Devaraj to Enquiry

Officer, dated 19-12-2008.

Ex.P43 — Copy of the letter from the respondent to

Devaraj, dated 17-2-2009.

Ex.P44 — Copy of the letter from Devaraj to the

respondent, dated 19-3-2009.

Ex.P45 — Copy of the dismissal order of Devaraj,

dated 15-4-2009.

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. 116/Lab./AIL/J/2013, dated 12th August 2013)

NOTIFICATION

Whereas, an award in I. D. No. 19/2011, dated 24-4-2013 of

the Labour Court, Puducherry in respect of the industrial

dispute between the management of M/s. Ajantha Cycle

Parts Industry, Puducherry and Thiruvalargal K. Sekar and

R. Janagaraj, 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).

833

27 August 2013]

LA GAZETTE DE L’ETAT

BEFORE THE LABOUR COURT AT PUDUCHERRY

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

Presiding Officer, Labour Court.

Wednesday, the 24th day of April 2013

I.D. No. 19/2011

(1) K. Sekar

(2) R. Janagaraj

. . Petitioners

Versus

The Managing Director,

Ajantha Cycle Parts Industry,

Thattanchavady, Puducherry

. . Respondent

This industrial dispute coming on 19-4-2013 for final

hearing before me in the presence of Thiru M. Ganapathy,

Advocate for the petitioner, Thiru C. Jagadeesan,

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.126/AIL/Lab./J/2011, dated 27-6-2011 of the Labour

Department, Puducherry to resolve the following

dispute between the petitioner and the respondent, viz.,

(1) Whether the dispute raised by the petitioners

viz., Thiruvalargal R. Janagaraj and K. Sekar, against

the management of M/s. Ajantha Cycle Parts Industry,

Puducherry, over their non-employment is justified ?

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

entitled to?

(3) To compute the relief in terms of money, if it

can be so computed.

2. The petitioners, in their claim statement, have

averred as follows:

The first petitioner was joined as Typist on 18-5-1983

and the second petitioner was joined as Clerk on

1-4-1988 in the respondent’s company. Both the

petitioners have worked to the satisfaction of the

management for the past 30 years without any

blemish or remarks. Without justification, the

management suspended both the petitioners from

discharging their duties from 27-12-2007. Subsequently

after a lapse of 16 months, the charge sheets have

been served on the petitioners for an alleged

misconduct in a very vague manner. Immediately the

petitioners have requested the management to furnish

photocopy of the records referred in the charge

sheets for submitting a due and proper explanation.

Without responding to their request, a domestic

enquiry was ordered and on the basis of the alleged

domestic enquiry report, the petitioners were dismissed

from service from 11-12-2009. The enquiry was not

conducted in a fair and proper manner. Hence, this

industrial dispute is filed to reinstate them into

service with back wages and other benefits.

3. The contention of the respondent is that the

petitioners were dismissed from service after the

domestic enquiry was conducted. In the domestic

enquiry, none of the petitioners participated and

cooperated to conduct the enquiry by the Enquiry Officer.

Because non-participation and non-cooperation in the

enquiry, the Inquiry Officer decided the dispute on merit

based on the available materials and documents and

imposed the punishment of dismissal of service on them.

During the proceedings pending before the

authorised officer under the payment of wages, the

arrears of wages, suspension allowance, etc. were fully

paid and nothing is due. Hence, they pray for dismissal

of the industrial dispute.

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

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

respondent, though the proof affidavit was filed by

RW.1, subsequently it was not pressed by the learned

counsel for the respondent. Joint memo. was filed to

record that Ex.P1 to Ex.P45 were marked in I.D.

No. 20/2011 may be treated as documents filed and

marked as respondent’s side documents. The memo. is

recorded.

5. The point for consideration is:

Whether the industrial dispute can be allowed?

6. On this point :

The contention of the petitioners is that the first

petitioner was joined as Typist on 18-5-1983 and the

second petitioner was joined as Clerk on 1-4-1988 in the

respondent's company and they have worked to the

satisfaction of the management for the past 30 years

without any blemish or remarks and without

justification, the management suspended both them

from discharging their duties from 27-12-2007 and

subsequently after a lapse of 16 months, the charge

sheets have been served on them for an alleged

misconduct in a very vague manner and immediately

they have requested the management to furnish

photocopy of the records referred in the charge sheets

for submitting a due and proper explanation and

without responding to their request, a domestic enquiry

was ordered and on the basis of the alleged domestic

enquiry report, they were dismissed from service from

11-12-2009.

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LA GAZETTE DE L’ETAT

[27 August 2013

7. In order to prove his case, the first petitioner was

examined as PW.1. PW.1 in his evidence has deposed

as stated in the petition. During the cross-examination,

PW.1 has stated that without conducting the domestic

enquiry, he was dismissed from service. PW.1 has

marked the letter received from the Inquiry Officer as

Ex.P1, copy of the letter received from the first

petitioner to Inquiry Officer, dated 25-11-2009 as Ex.P2,

letter of dismissal of the first petitioner as Ex.P3, reply

letter to the management by the first petitioner for the

dismissal as Ex.P4, letter received from the Enquiry

Officer, dated 16-11-2009 as Ex.P5, Copy of the letter

from the second petitioner to the Enquiry Officer as

Ex.P6, letter of dismissal of the second petitioner as

Ex.P7 and the reply sent by the second petitioner as

Ex.P8.

8. Per contra, the contention of the respondent is

that the petitioners were dismissed from service for their

misconduct committed by them which was proved

through the domestic enquiry. In order to prove his

claim, the managing partner of the respondent's firm was

examined as RW.1. RW.1 in his evidence has desposed

that the petitioners have involved in dharnas and pasted

wall posters showing their protests and participated in

bandh and hence the payment of subsistence allowance

was stopped from the month of May 2008 and they

stated that they did not prefer to participate in the

domestic enquiry.

9. According to the respondent, the petitioners were

dismissed from service for their misconduct committed

by them, which was proved through the domestic

enquiry. But the petitioners have stated that the enquiry

was not conducted in a fair and proper manner. Hence,

the duty is cast upon the respondent to prove their

contention through oral and documentary evidence. In

this case, the enquiry proceedings is a vital document

to decide whether the enquiry was conducted in a fair

and proper manner by the respondent management. But

on the side of the respondent, no oral or documentary

evidence was adduced.

10. As per the evidence of PW.1, after a lapse of

16 months, the charge sheets have been served on the

petitioners for an alleged misconduct in a very vague

manner and immediately he requested the management

to furnish photocopy of the records referred in the

charge sheets for submitting a due and proper

explanation and without responding to his request,

a domestic enquiry was ordered and on the basis of the

alleged domestic enquiry report, he and the second

petitioner were dismissed from service on 11-12-2009.

PW.1 further stated that in reality, no enquiry was

conducted on the alleged dates as informed by the

Enquiry Officer and they have received a notice from

the Enquiry Officer informing that they should appear

before him on 25-11-2009 at about 3.30 p.m. by

mentioning the venue also and accordingly, they went

to the enquiry place, but neither the Enquiry Officer nor the

management appeared there up to 5.30 p.m. on that day.

11. In order to prove his contention, PW.1 has

marked the copy of the letters sent by the Enquiry

Officer to the petitioners as Ex.P1 and Ex.P5, as per

which, the Enquiry Officer has informed the petitioners

that the enquiry will be conducted on 25-11-2009

at 3.30 p.m. PW.1 has also marked the letters,

dated 25-11-2009 and 16-11-2009 as Ex.P2 and Ex.P6

respectively. In Ex.P2 and Ex.P6, both petitioners have

stated that they went to the place, where the enquiry

was

scheduled

to

be

conducted,

but

the

Enquiry Officer or the representative from the

respondent management have not appeared till 5.30 p.m.

and they have returned home with disappointment.

Ex.P6 was sent by the second petitioner under certificate

of posting to prove that it was sent to the respondent.

On the side of the respondent, no reply was sent to the

petitioners for Ex.P2 and Ex.P6. If really, the respondent

has conducted the enquiry on the scheduled date as

mentioned in Ex.P1 and Ex.P5, they would have sent

reply to the petitioners, denying the facts mentioned in

Ex.P2 and Ex.P6. Hence, the contention of the

respondent that the petitioners did not participate in the

domestic enquiry and they have not cooperated with

the enquiry proceedings are all false and cannot be

accepted. Further in the dismissal order of the first and

second petitioners under Ex.P3 and Ex.P7 respectively,

the respondent has stated that in the suspension period,

both the petitioners have continued to make dharnas

and street shows as against the company and paste

wall posters showing their protest and hence there is

no need to conduct any further enquiry as their act

elucidates that they are guilty of the charges made in

the show cause notice, dated 15-4-2009. The said version

of the respondent itself would clearly prove that the

enquiry was not conducted in a proper manner by giving

sufficient opportunity to the petitioners.

12. In the dismissal orders under Ex.P3 and Ex.P7, the

respondent has stated that they have received a

complaint from one Senthil Kumaran, S. Kaalimuthu @

Chandru and Durairaj stating that the petitioners are

disturbing the workers towards entering into the

premises of management and threatening them by

uttering filthy language and they blocked them in front

of the gate and the said Senthil Kumaran came out, the

first petitioner had slapped him and both of them tried

835

27 August 2013]

LA GAZETTE DE L’ETAT

to provoke violence uttering with filthy languages not

to go for work in the company. But the said persons

have not been examined as witnesses in the domestic

enquiry or before this court to prove the said aspect.

Further no police complaint has been filed before this

court to prove the threat made by the petitioners on the

said persons and for slapping on the said Senthil

Kumaran. Mere contention will not in any way helpful

to the case of the respondent.

13. The petitioners in their claim statement have

stated that the employees of the respondent

management had been engaged in piece-rate without

implementing the minimum wages and hence they

demanded the monthly wages without basing on

piece-rate and in order to have fair and better

negotiation with the management, the employees of the

management started a trade union under the name and

style of Cycle Parts Jananayaga Thozhilalar Sangam in

the year 2007 and one Janarthanan, G. Devaraj and

K. Murthy, who are the petition mentioned workmen in the

connected I.A. No. 20/2011, as Secretary, Vice-President

and Treasurer respectively and they are the members

in the said association and in order to take vengeance

against them, they have been removed from service

without following any rule of law and natural justice.

The respondent has also admitted about the dispute

between them and the petitioners with regard to

implementation of minimum wages, but denied that in

order to take vengeance against them, they have been

removed from service.

14. It is to be pointed out that the Government

has referred this case only to decide whether the

non-employment of the petitioners is justified or not.

Hence, this court has to answer only for the said

question and there is no need to decide other aspect

i.e., whether the petitioners are entitled for the salary

under Minimum Wages Act or not, As stated earlier, the

respondent has failed to prove that the domestic enquiry

was conducted in a fair and proper manner by giving

sufficient opportunity to them. In fact the respondent

in his counter has stated that non-participation and

non-cooperation in the enquiry, the Inquiry Officer has

decided the dispute on merit based on the available

materials and the documents and imposed the

punishment of dismissal of service on them. But the

petitioners in their letters have clearly stated that they

went to the place, where the enquiry was scheduled to

be conducted and waited up to 5.30 p.m. on that day

and as the Enquiry Officer and any representative from

the respondent management did not come, they

returned home with disappointment, for which no reply

was sent by the respondent management. Hence, this

court has come to the conclusion that the respondent

has not conducted the domestic enquiry in a fair and

proper manner and hence the dismissal order of the

petitioners based on the said enquiry, is liable to be set

aside and they are entitled for reinstatement and with

other benefits. But considering the facts and

circumstances of the case, the petitioners are entitled

to 50% of back wages only. Accordingly, this point is

answered.

15. In the result, the industrial dispute is partly

allowed and the respondent is directed to reinstate the

petitioners into service with 50% of back wages,

continuity of service and other benefits. No costs.

Typed to my dictation, corrected and pronounced by

me in the open court on this 24th day of April 2013.

T. MOHANDASS,

Presiding Officer,

Labour Court, Puducherry.

————

List of petitioner’s witness:

PW.1 — 10-10-2012 - Sekar

List of petitioner’s exhibits:

Ex.P1 — Letter received from the Inquiry Officer,

dated 16-11-2009.

Ex.P2 — Copy of the letter from the first petitioner

to Inquiry Officer, dated 25-11-2009.

Ex.P3 — Letter of dismissal of the first petitioner,

dated 11-12-2009.

Ex.P4 — Reply letter to the management by the first

petitioner, dated 15-2-2010.

Ex.P5 — Letter received from the Inquiry Officer,

dated 16-11-2009.

Ex.P6 — Copy of the letter from the second petitioner

to Inquiry Officer, dated 25-11-2009.

Ex.P7 — Letter of dismissal of the second

petitioner, dated 11-12-2009.

Ex.P8 — Reply letter to the management by the

second petitioner.

List of respondent’s witnesses : Nil

List of respondent’s exhibits : Nil.

T. MOHANDASS,

Presiding Officer,

Labour Court, Puducherry.