240

LA GAZETTE DE L’ETAT

[15 April 2014

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 44/Lab./AIL/J/2014, dated 12th March 2014)

NOTIFICATION

Whereas, an award in I.D. No. 39/2001, dated 31-1-2014

of the Labour Court, Puducherry in respect of the industrial

dispute between the managemment of M/s. Sri Bharathi

Mills, Puducherry and Thiru R. Dhanasekaran

represented by Puduvai Mill Thozhilalar Sangam,

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 PONDICHERRY

Present : Tmt. S. MARY ANSELAM, M.A., M.L.,

Presiding Officer, Labour Court.

Friday, the 31st day of January 2014

I.D. No. 39/2001

President,

Puduvai Mill Thozhilalar Sangam,

Puducherry.

. . Petitioner

Versus

The General Manager,

Sri Bharathi Mills, Puducherry

. . Respondent

This industrial dispute coming on 24-1-2014

for final hearing before me in the presence of

Thiru Durai Arumugam, Advocate for the petitioner,

Thiru K. Ravikumar, 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 has been referred as per the

G.O. Rt. No. 143/2001/AIL/L, dated 26-7-2001 for

adjudicating the following:-

( 1 ) W h e t h e r t h e n o n - e m p l o y m e n t o f

Thiru R. Dhanasekaran by the management of

M/s. Sri Bharathi Mills, Pondicherry is justified or not?

(2) To what relief the said workman is entitled to?

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

of money, if it can be so computed?

2. The facts giving rise to this industrial dispute as

stood exposited from the claim petition runs thus:

The worker Dhanasekaran was working in the

Colour Ware House for 15 years in the respondent

mill. Initially, the respondent mill as having about

1500 workers but subsequently it was reduced and

it was taken over by National Textile Corporation and

the workers strength came down to the level of 400.

The officials of the respondent management

exploited the situation and transferred the workers

at their whims and fancies. Some workers were

transferred to the jobs where there were light works.

The worker Dhanasekaran was demanded a sum of

` 10,000 as bribe by the Personnel Officer Gajendiran

for allowing Dhanasekaran to be in his original post

itself. Leave was granted in favour of Dhanasekaran

so as to enable him to arrange for bribe money.

Dhanasekaran objected for illegal activities of the

said officer. Thereupon, the said Dhanasekaran was

prevented from entering into the mill premises by

instructing the security staff. He also declared that

for 18 consecutive days Dhanasekaran absented

himself, to that effect notice was displayed on the

board. Thereupon, the worker Dhanasekaran issued

his advocate notice. On that, Dhanasekaran was

permitted to enter into the respondent mill. The

domestic enquiry was conducted against Dhanasekaran

against the principles of natural justice and also

against the standing officer turned out the worker

Dhanasekaran from the enquiry without giving

opportunity to participate in the enquiry. The enquiry

officer also told the petitioner Dhanasekaran that the

result of the enquiry would be against him.

3. Dhanasekaran was charge sheeted as though he

abused his superior officer Palani and also he refused

to perform work as directed by Palani. However, the

statement of Palani was not recorded. The worker

Dhanasekaran was also previously terminated from

services and through court order he was reinstated in

service. Accordingly, the petitioner prayed for

reinstatement in service with back wages.

4. Per contra, traversing the averments the claim

statement, the respondent filed the counter with the

averments which run thus:

The worker Dhanasekaran joined the respondent

mill on 12-7-1983 in the Finished Ware House

Department. He was known for his riotous and unruly

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15 April 2014]

LA GAZETTE DE L’ETAT

behavior towards his co-workers. For his indiscipline

behavior, he was suspended for 10 days also. He

intimidated and threatened the General Manager of

mill as the management took disciplinary action and

terminated him from service. However, by the

order of the Labour Court in I.D. No. 3/1991,

he was reinstated in service with effect from 3-8-1994.

Even thereafter he did not mend his ways. On 3-1-1997

he indulged in indiscipline activities and scolded the

Personnel Officer, Labour Welfare Officer and

Spinning Master in filthy languages. The respondent

mill is a sick mill and at present there are only 420

workers. The strength of the workers in the Ware

House Department and is 112 and he was working

only in that department. The management owing to

shortage of grey cloths for process decided to run

only one shift in the said department instead of two

shifts. Thereupon, 16 workers were found in the

department as surplus and they were transferred to

the Spinning Department in a phased manner

according to seniority. At the first instance five

workers were transferred and at the second instance

11 workers including Dhanasekaran was transferred.

Those transferred employees at the Spinning

Department were given wage protection and given

training for 3 to 6 months without affecting their

wages. Except Dhanasekaran all other workers joined

Spinning Department and started getting training.

The said Dhanasekaran instead of joining duty there

at the Spinning Department agitated as against the

transfer order. The petitioner along with some other

persons started a trade union “Sri Bharathi Mills

Thozhilalar Nala Urimai Padukappu Sangam" and in

which he was the treasurer. Eventhough, Dhanasekaran

was transferred with effect from 9-12-1997 to the

Spinning Department he did not join duty. He applied

for medical leave for some time and he was on E.S.I

leave for some time so as to avoid joining duty in

the Spinning Department. However, he finally joined

the Spinning Department during the end of January 1997.

He did not learn the work properly but he was

roaming around the mill premises. On 3-2-1997 when

the Supervisor of the department questions him

about it he misbehaved with him and threatened him

with dire consequences. Thereupon, Dhanasekaran

was suspended with effect from 4-2-1997. Charges

were framed as against him. The domestic enquiry

was conducted by an advocate. Due opportunities

were given for the worker to defend himself. The

enquiry officer held the worker guilty of charges.

After giving second show cause notice, dated 7-7-1998

and obtaining reply, dated 29-8-1998, he was

terminated from service by the respondent's order,

dated 14-9-1998. The allegations that Gajendiran,

Personnel Officer demanded bribe etc. are all false.

5. The

worker

was

continuously

absentee

unauthorisedly with effect from 1-1-1997 for which

notice was sent on 23-1-1997 to his last known address

by RPAD instructing him to join duty but he

continuously absented from duty with effect from 1-1-1997

till 18-1-1997 and for that the copy of which was

exhibited in the notice board. There is no necessity to

stop Dhanasekaran at the entrance gate. The enquiry

officer did not act against the principles of natural

justice and he did not misbehave in any way or acted

unbecoming of an enquiry officer as alleged in the claim

statement. Accordingly, the respondent prayed for

dismissal of the industrial dispute.

6. During enquiry on the petitioner's side, on

consent Ex.P1 to P8 were marked and on the respondent

side on the consent Ex.R1 to R12 were marked. No oral

evidence was adduced on either side.

7. The point for consideration is:

Whether the industrial dispute can be allowed?

8. On this point:

After hearing both sides the Labour Court has

passed an award, dated 6-3-2003 as against the award

an Writ Petition No.19439 of 2003 was filed and the

Hon'ble High Court of Madras has passed an order,

dated 11-1-2013. The High Court has allowed the writ

petition and the matter is remanded back to the Labour

Court to apply section 11A of the Industrial Disputes

Act to the facts of the case and to decide as to whether

the punishment of dismissal from service imposed on

the petitioner was justified and warranted in the facts

and circumstances of the case. Such exercise shall be

completed by the Labour Court, within a period of three

months from the date of receipt of a copy of this order.

So, I.D.(L) No. 39/2001 was again taken on file on 5-8-2013.

Now, the only issue to be decided by the Labour Court

is whether the Labour Court ought to have suo moto

exercised jurisdiction under section 11-A and examined

as to whether the punishment of dismissal was

proportionate to the charge. According to the High

Court Question IV relates to the power of the Labour

Court under section 11A of the Act. When section has

been incorporated a Labour Court functioning under the

Act is bound to apply the amendments from time to time

in respect of any plea raised pertaining to its jurisdiction

and after the introduction of section 11A, the Labour

Court has to exercise the jurisdiction enjoined upon it

under the provisions of the Act and it is not for the

workman to plead an incidental and consequential relief

made available to him under the statute. In the present

case, the Labour Court framed the question as to

whether the domestic enquiry was in accordance with

the principles of natural justice or not. The subsidiary

question was if not in accordance with the principles

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LA GAZETTE DE L’ETAT

[15 April 2014

of natural justice, whether the petitioner is entitled for

reinstatement with back wages. The Labour Court

holding that there is no infirmity in the domestic enquiry

and held that the petitioner is not entitled for

reinstatement also. The Labour Court did not address

the question as to whether the punishment was justified

and whether the Labour Court should exercise or refuse

to exercise its power under section 11-A of the Act. So,

it was the duty cast upon the Labour Court to consider

the question as to the proportionality of the

punishment. This has not been done by the Labour

Court in the impugned award. The High Court has

raised six issues, except issue No.4 and then all the five

issues have been decided against the petitioner.

9. So this court has framed an issue as follows:-

Whether the punishment imposed on the

petitioner by the Labour Court is proportionate to the

act done by him. Duty which was caused upon the

Labour Court was to consider the question as to the

proportionate of the punishment.

Section 11(A) of the industrial Disputes Act, 1947

states as follows:-

Where an industrial dispute relating to the

discharge or dismissal of a workman has been

referred to a Labour Court, Tribunal or National

Tribunal for adjudication and, in the course of the

adjudication proceedings, the Labour Court, Tribunal

or National Tribunal, as the case may be, is satisfied

that the order of discharge or dismissal was not

justified, it may, by its award, set aside the order of

discharge or dismissal and direct reinstatement of

the workman on such terms and conditions, if any,

as it thinks fit, or give such other relief to the

workman including the award of any lesser

punishment in lieu of discharge or dismissal as the

circumstances of the case may require:

In any proceeding under this section the Labour

Court, shall rely only on the materials on record and

shall not take any fresh evidence in relation to the

matter.

10. According to the petitioner he was working at

the Colour Ware House in the mill and he was dismissed

from service. During 1991 he was working in the Colour

Ware House for 15 years. It is argued on the side of

the petitioner that insubordination to the officer and

abusing him in the meeting are the charges of the

specific charges levelled against the petitioner. Both

the charges are not severe to the extent of awarding

punishment of dismissal from service. On the side of

the petitioner the judgment passed by the Madras High

Court in W.P.No.15233/1995, dated 19-12-2002 was

pressed into the service. That case is also dismissal

from service of employee for using abuse language to

the Superior. It is held that on facts, dismissal severe

and it is proportionate and choice of reinstatement of

fifty per cent back wages of lump sum compensation of

little over four lakhs of rupees left to employer. In that

case also the petitioner women employee worked in the

mill for about 16 years, in that case also it is stated the

Labour Court is expected to consider the same

independently in order to assess as to whether the

punishment was appropriate. In that case, the High

Court come to the conclusion that the penalty of

dismissal was not warranted. If the employee is

reinstated in service, it is sure to cause embarrassment

to his superiors and it may result in the other workers

resorting to such misconduct. So, the awarding of

compensation instead of ordering reinstatement is

justified. Now, in the present case also the charge

against the petitioner that he has abused the superior

in the meeting and he is insubordination to the superior

officer. It is clearly proved so, in the present case also

the awarding of compensation instead of ordering

reinstatement is justified. So, accepting the above

decision this court came to the conclusion that the

dismissal order imposed to the petitioner is highly

excessive to the charges levelled against him. But, if

he was reinstated, into service it will create some other

problems. So, in the present case also the petitioner is

entitled only for compensation.

11. The age of the petitioner is 56 as per the proof

affidavit filed by him, he was dismissed from service

on 17-9-1998 onwards. This court is inclined to hold

that ends of justice would be met by directing the

respondent to pay a sum of ` 5,40,000 as just

compensation in lieu of the petitioner being directed

to be reinstated in service. The conduct of the

petitioner and the words occurred by him certainly

disentitled the petitioner to be taken back for

employment. Therefore the amount due cannot be

calculated merely on the basis of the quantum of salary

he would be receiving as on date, making deduction for

the said reasons, it would be just and proper that the

monthly salary of ` 3,000 per month and on that basis

the amount due for 15 years have to be calculated. The

past period has to be disentitled for the reason that he

has not rendering any work to the respondent

calculation on basis of ` 3,000 per month and for

the period of 15 months. The petitioner would be

entitled to ` 5,40,000.

12. In the result, this industrial dispute is partly

allowed and the petitioner is not entitled for

reinstatement with other benefits. However the

petitioner is entitled to the monetary compensation of

` 5,40,000 (Rupees five lakhs and forty thousand only).

No costs.

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15 April 2014]

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Typed to my dictation, corrected and pronounced by

me in the open court on this the 31st day of January 2014.

S. MARY ANSELAM,

Presiding Officer,

Labour Court, Puducherry.

————

List of petitioner’s witness:

PW.1 — 2-9-2013 — R. Dhanasekaran

List of respondent’s witness: Nil

List of petitioner’s exhibits:

Ex.P1 — Copies of the token relating to leave

availed on four spells by the petitioner

Dhanasekaran, dated 9-12-1996.

Ex.P2 — Copy of the standing orders of the

respondent mill, dated 10-2-2003.

Ex.P3 — Copy of the representation given by the

worker Dhanasekaran to the enquiry

officer, dated 9-3-1998.

Ex.P4 — Copy of the enquiry proceedings of the

enquiry officer.

Ex.P5 — Copy of the Official Gazette of Puducherry

bearing No. 22, dated 31-5-1994.

Ex.P6 — Copy of the gate entry details of the

respondent mill on 4-1-1997 at 1st shift.

Ex.P7 — Copy of the advocate's notice sent by the

petitioner to the respondent, dated 25-1-1997.

Ex.P8 — One other copy of Ex.A7 with

acknowledgment card.

List of respondent’s exhibits:

Ex.R1 —

Leave

application

of

the

worker

Dhanasekaran to the respondent along

with the medical certificate, dated 31-12-1996.

Ex.R2 — Letter, dated 1-1-1997 of the petitioner to

the respondent.

Ex.R3 — Copy of the complaint, dated 3-1-1997

lodged with the Sub-Inspector of Police,

Mudaliarpet Police Station by the

respondent

against

the

worker

Dhanasekaran.

Ex.R4 — Copy of the notice sent to the petitioner

by the respondent calling upon him to join

duty, dated 23-1-1997.

Ex.R5 — Acknowledgment card signed by the

petitioner Dhanasekaran, dated 27-1-1997.

Ex.R6 — Copy of the show cause notice, dated

4-2-1997 issued by the respondent to the

petitioner.

Ex.R7 — Copy of the reply given by the petitioner

to the respondent, dated 8-2-1997.

Ex.R8 — Copy of the enquiry proceedings of the

enquiry officer.

Ex.R9 — Copy of the enquiry report of the enquiry

officer, dated 25-6-1998.

Ex.R10 — Copy of the dismissal order, dated 14-9-1998

by the respondent of the petitioner from

the service.

Ex.R11— Copy of second show cause notice to the

petitioner by the respondent.

Ex.R12 — Copy of the enquiry report of the enquiry

officer in Tamil version.

S. MARY ANSELAM,

Presiding Officer,

Labour Court, Puducherry.

GOVERNMENT OF PUDUCHERRY

FINANCE DEPARTMENT

(G.O. Ms. No. 64/F2/2014, dated 29th March 2014)

NOTIFICATION

Whereas, orders were issued to six Public Sector

Banks for collection of tax, fees and other amounts

pertaining to Commercial Taxes Department, Government

of Puducherry through e-payment mode vide G.O. Ms.

No. 28/F2/2011, dated 10-5-2011 of the Under Secretary

to Government, Finance Department, Puducherry;

And whereas, the Ministry of Finance, Department

of Revenue, State Taxes Division, Government of India,

has requested the State Governments to rope in more

number of banks to facilitate e-payment of Commercial

Taxes vide their letter F.No.S.31012/2/2009-SO(ST),

dated 14th September 2010;

Now, therefore, in exercise of the powers conferred

by rule 67 of the Puducherry Value Added Tax Rules, 2007,

the Lieutenant-Governor, Puducherry has been pleased

to direct that the tax revenue, fees and any other amount

required to be paid to the Commercial Taxes Department

in the Union territory of Puducherry may also be paid

by e-payment mode through the Bank of India, in

addition to the banks already authorised. The other

terms, conditions and procedures prescribed in the said

Government order is applicable for e-payment mode

through Bank of India also.

(By order of the Lieutenant-Governor)

CHANDRAKER BHARTI, I.A.S.,

Development Commissioner-cum-

Secretary to Government (Finance).