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LA GAZETTE DE L’ETAT
[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
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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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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).
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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.