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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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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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[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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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).