652
LA GAZETTE DE L’ETAT
[2 September 2014
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 120/Lab./AIL/J/2014, dated 18th August 2014)
NOTIFICATION
Whereas, the award in I.D.(L) No. 34/2012, dated
27-6-2014 of the Labour Court, Puducherry in respect of
the industrial dispute between the management of
M/s. Sri Bharathi Mills, Puducherry and Thiru K. Ezhumalai
represented by Panjalai Thozhirsanga Congress,
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 (FAC),
Labour Court.
Friday, the 27th day of June 2014
I.D. (L) No. 34/2012
K. Ezhumalai, represented by Secretary,
Panjalai Thozhirsanga Congress,
Puducherry.
. . Petitioner
Versus
The Managing Director,
M/s. Sri Bharathi Mills,
Puducherry.
. . Respondent
This industrial dispute coming on 20-6-2014 for final
hearing before me in the presence of Thiru V. Govindaradjou,
Counsel for the petitioner, Thiru K. Ravikumar, Counsel
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. 134/ AIL/Lab./J/2012, dated 23-8-2012 for
adjudicating the following:
(1) Whether the dispute raised by Panjalai
Thozhirsanga Congress against the management
of M/s. Sri Bharathi Mills, Puducherry, over
non-employment of Thiru K. Ezhumalai is justified?
(2) If justified, what relief the petitioner is
entitled to ?
(3) To compute the relief, if any, awarded in terms
of money, if it can be so computed?
2.The facts giving rise to this industrial dispute as stood
exposited from the claim petition runs thus:
The petitioner is a workman employed in the
respondent/management mill in the finished warehouse
section. Due to affliction with chicken pox, he was not
able to report for duty in the first week of July 2004. But,
however, he has sent the leave letter for 10 days through
his co-worker by name Thiru Parangusam. When he has
reported for duty after 10 days, the respondent refused
to allow him to work stating that he has been suspended
for his absence and has further stated that he would
receive show cause notice in this regard in due course.
But, however, he has not received either the suspension
order or the show cause notice till this day. While so, on
26-3-2005 he received the order, dated 6-12-2004 from
the management intimating that he was demoted as a
Badli worker. The said order, dated 6-12-2004 is not
valid since the respondent/management has not followed
the principles of natural justice. On receiving the order,
dated 6-12-2004 on 26-3-2005, the petitioner has reported
for duty and requested the respondent/management to
permit him to do his work. But, the respondent/
management has refused to provide employment to the
petitioner. On 8-1-2009, the respondent/management has
made a publication in “Daily Thanthi”, a Tamil daily
newspaper stating that from 27-3-2005 the petitioner has
been continuously absent on his own accord without any
intimation and thus the petitioner has violated the
Employment Standing Order and therefore an enquiry
would be conducted on 23-1-2009 at 10.30 a.m. in the
Personal Department of the respondent's mill premises.
After seeing the publication in the newspaper, dated
8-1-2009, the petitioner has appeared before the Enquiry
Officer on 23-1-2009 at 10.30 a.m. and received the copy
of the notice, dated 4-3-2008. The enquiry was conducted
on 4-2-2009 and the petitioner was not served the notice
653
2 September 2014]
LA GAZETTE DE L’ETAT
of the date of hearing of the subsequent enquiry. He had
received the information from his co-workers that the
enquiry will be conducted by a new officer by name
Thiru G. Krishnan and the enquiry were posted
on 19-9-2009. So the petitioner has participated in the
enquiry proceedings and had denied the charges that
levelled against him. The Enquiry Officer has also
directed the respondent/management to furnish the copies
of the documents that were relied upon by the
respondent/management. But the management has not
furnished the same till this day. The enquiry was
conducted on various dates. On 6-5-2010, the respondent/
management has expressed that they are ready to give
employment provided is willing to report for duty. The
petitioner has immediately expressed his consent and
readiness to report for duty and in fact he has also joined
the duty and worked subsequently in the mills.
Subsequently, the petitioner has received a second
show cause notice, dated 28-4-2010 stating that the
enquiry was completed and he was found guilty by the
Enquiry Officer and therefore the respondent/
management sought for the petitioner's explanation on
their proposal of imposing the penalty of discharge from
the service of the petitioner as a punishment for the
alleged absenteeism. The petitioner in his reply dated,
5-5-2009 has stated that without providing him any
opportunity the Enquiry Officer has hurriedly without
following the principles of natural justice. Thereafter, in
his order, dated 2-8-2010 the respondent/management
would discharging the petitioner from service. Aggrieved
by the order of discharge issued by the respondent/
management, the petitioner filed this claim petition.
3. Per contra, traversing the averments the claim
statement, the respondent filed the counter with the
averments which runs thus:
The respondent states that the petitioner was
unauthorisedly absent from duty from 3-7-2004 to
14-7-2004. As per the clause No. 15(a) of the Standing
Orders of the respondent mills, any worker who is
unauthorisedly absent from duty for more than 8 days is
construed to have voluntarily left service and the
respondent is empowered to remove such worker's name
from the muster rolls. The respondent had on 15-7-2004
issued a show cause notice to the petitioner.
The petitioner had received the notice, but, no reply was
sent to the respondent. Appointedly, Personal Officer
Mr. Muniyandi as Enquiry Officer and had fixed the date
of enquiry on 28-7-2004. The enquiry notice to the
petitioner on 22-7-2004 through registered post returned
with the endorsement “unclaimed”. In order to give the
petitioner another opportunity, the respondent had fixed
the date of enquiry on 11-8-2004 and the enquiry notice
was issued on 2-8-2004. The petitioner had received the
notice in person on 3-8-2004. But he had not appeared
before the Enquiry Officer on 11-8-2004. In order to give
one more opportunity to the petitioner, the respondent had
fixed the date of enquiry on 21-8-2004 and issued the final
enquiry notice to the petitioner through registered post.
On 14-8-2004 this notice was returned to the
endorsement “unclaimed”. So, the Enquiry Officer was
conducted on 21-8-2004 and the Enquiry Officer had
examined the representative of respondent and after due
enquiry, the Enquiry Officer had posted the matter for
orders.
The petitioner was again unauthorisedly absent from
duty from 6-9-2004 to 14-9-2004. On 15-9-2004, the
petitioner had come to work but, he was not permitted
to work, the petitioner shouted at the Time Keeper and
he was placed under suspension vide order, dated
15-9-2004. On 15-9-2004 the respondent issued a show
cause notice-cum-suspension order to the petitioner
through registered post. The petitioner had received it
and issued a vague reply on 27-9-2004. On 28-9-2004
the respondent passed an order till 28-9-2004 as the
charges, dated 15-9-2004 stood proved. The petitioner
was directed to join duty on 29-9-2004. During this time,
the Enquiry Officer Mr. Muniyandi, had presented his
findings, holding that the charges in the show cause
notice, dated 15-7-2004 stood proved. The petitioner was
again unauthorisedly absent from duty 17-10-2004 to
12-11-2004. On 12-11-2004, a show cause notice was
issued to the petitioner, the petitioner had received the
notice but, no reply was sent. The respondent states that on
15-11-2004, another show cause notice, dated 15-7-2004
was sent. With a direction to submit his explanation
within 48 hours that notice was returned with an
endorsement on 15-11-2004. So, on 6-12-2004, the
respondent had issued an order demoting the petitioner
to Badli and had directed the petitioner to report for
duty from 7-12-2004. The order was also refused by
the petitioner and the same was returned with
endorsement “unclaimed”.
The petitioner came to the mill on 26-3-2005 and had
personally received the order, dated 6-12-2004 and on
26-3-2005 issued a letter to the respondent requesting him
to permit him to work. The respondent had permitted him
to join duty as per the order, dated 6-12-2004, the
respondent had not come back to work. So, the petitioner
was not interested or intended to rejoin duty with the
respondent. So, on 4-3-2008, the respondent issued a
show cause notice, through registered post. The notice,
dated 4-3-2008 and the same was returned with
endorsement “No such addressee”. So, publication was
654
LA GAZETTE DE L’ETAT
[2 September 2014
made in a local daily on 8-1-2005. On seeing the paper
publication, dated 8-1-2009. The petitioner had not appeared
before the respondent, but on 23-1-2009 issued a letter
to the respondent asking for an extension of time of one
week to reply to the enquiry. Since, the Enquiry Officer
Mr. Muniyandi had retired from service on 31-1-2009,
Mr. G. Krishnan was appointed as Enquiry Officer. But,
appointing was informed to the petitioner through a letter,
dated 25-7-2009. The petitioner letter was received by
the petitioner that there was no reply from him.
The Enquiry Officer issued an enquiry notice to the
petitioner fixing the enquiry on 12-8-2009. The letter was
received by the petitioner. He did not appear before the
Enquiry Officer on 12-8-2009. On 18-8-2009 another
notice was sent fixing the enquiry on 26-8-2009.
On 26-8-2009, if he had issued to the Enquiry Officer
asking for an adjournment. The enquiry was posted to
12-9-2009 and the matter was adjourned to 23-10-2009.
Then the petitioner had issued several letters to the
respondent asking for employment. The Enquiry Officer
was again on 22-2-2010 issued an enquiry notice to the
petitioner fixing an enquiry on 3-3-2010. The letter was
issued by the petitioner, but did not appear. So, on 23-4-2010,
the Enquiry Officer Mr. Krishnan had submitted his
enquiry report, that the findings as per show cause notice,
dated 4-3-2008 has been proved. On 28-4-2010, in order
to give the petitioner another final opportunity to render
his explanation to the earlier show cause notice, dated
4-3-2008, the respondent had issued a second show cause
notice and had granted 48 hours to give an explanation.
For that the petitioner had given a vague reply, dated 5-5-2010.
The respondent had issued a detailed reply, dated 6-5-2010
to the petitioner’s reply and the same was served on the
petitioner. So, on 2-8-2010 the respondent had issued an
order discharging the petitioner from service.
The respondent had refused to receive the order and the
same was returned with endorsement “unclaimed”.
So, publication was issued on 2-9-2010. The petitioner had
issued letter, dated 2-9-2010 asking the respondent to
submit all the papers. The respondent had issued detailed
reply dated 15-9-2010. In this reply, the respondent
clearly stated has already been handed over to the
petitioner. The respondent had given all the papers to
the trade union leader Mr. Kuppusamy and had
acknowledged the same vide his letter, dated 11-2-2011.
The enquiry conducted by the Enquiry Officer is valid as
per law and it is followed the principles of natural justice.
So, the claim petition is to be rejected.
4. On the side of the petitioner, PW.1 was examined,
and the side of the respondent RW.1 was examined, on
the petitioner’s side Ex.P1 to Ex.P20 were marked. On
the side of the respondent, Ex.R1 to Ex.R52 were marked.
5. The point for consideration is:
Whether the industrial dispute can be allowed?
6. On this point:
The dispute is with the reference to the non-employment
of one Ezhumalai. The prayer is to set aside the order
of discharge, dated 2-8-2010 passed by the respondent
against the petitioner and direct the respondent to
reinstate the petitioner with continuity of service, back
wages and other benefits.
PW1 in his cross-examination stated as follows:
Ex.R3-ø 29-9-2004-ø À½¢Â¢ø §ºÃ§ÅñÎõ ±É
¯ò¾Ã×. ¿¡ý ¦ºý§Èý. §Å¨Ä ¾ÃÅ¢ø¨Ä. ¸¡Ã½õ
§¸ðÌõ notice-«ÛôÀ¢ÂÀ¢ÈÌ ±ý¨É À¾Å¢ þÈì¸õ
¦ºö¾¡÷¸û ±ýÈ¡ø º¡¢¾¡ý. 6-12-2004-ø À¾Å¢
þÈì¸õ ¦ºö¾À¢ÈÌ 'À¾Ä¢’ §Å¨Ä ¦ºö§¾ý. 4-3-2010-ø
¦¸¡Îò¾ show cause notice-ý ÀÊ ¾¢Õ. ¸¢Õ‰½ý
Å¢º¡Ã¨½ ¿¼ò¾¢É¡÷. 6-5-2010-ø §Å¨ÄìÌ 'À¾Ä¢'-
¡¸ §º÷ó§¾ý. ¬Ú Á¡¾õ §Å¨Ä ¦ºö§¾ý.
In order to prove that he was not allowed to work on
29-9-2004 the petitioner has not examined any witness.
Further, according to him in the year 2004 he was absent
for ten days and the reason given for him is that he is
affected by chicken pox. No medical records was filed
to prove his sickness.
3-7-2004 Ó¾ø 16-7-2004 Ũà ¿¡ý À½¢Â¢ø
§Å¨Ä
¦ºö¡Áø þÕó§¾ý.
¸õ¦ÀÉ¢ ¿¢¨Ä
¬¨½ôÀÊ 8 ¿¡ð¸ÙìÌ §Áø Óý «È¢Å¢ôÀ¢ýÈ¢
À½¢ìÌ ÅáÁø þÕó¾¡ø ¿¼ÅÊ쨸 ±Îì¸ôÀÎõ
±ýÈ¡ø º¡¢¾¡ý. 11 ¿¡ð¸û Óý«È¢Å¢ôÀ¢ýÈ¢
Åá¾¾¡ø Å¢º¡Ã¨½ ¿¼ò¾ Å¢º¡Ã¨½ «¾¢¸¡¡¢
¾¢Õ. Óɢ¡ñÊ ¿¢ÂÁ¢ì¸ôÀð¼¡÷. À½¢Â¢ø §ºÕõ§À¡Ð
þÕó¾ address-ø þÕóÐ §ÅÚ address Á¡È¢Â¾¡¸
¸Ê¾õ ²Ðõ ¾ÃÅ¢ø¨Ä.
According to the petitioner he has joined duty. He has
again joined duty in the respondent/management on
6-5-2010 and he continued the work of ‘Badli’ for the
period of six months. He has not produced any
documents or any oral evidence to prove it. According
to the respondent sufficient opportunity was given to the
petitioner to join duty. From the evidence of RW1 it is
clear that the petitioner was in the habit of absconding
from duty often. The petitioner was unauthorisedly absent
from duty for the period of ten days in the first week of
July 2004. Again the petitioner was unauthorisedly
absent from duty from 3-7-2004 to 14-7-2004. Clause
No. 15(a) of the Standing Orders of the respondent mills,
clearly states that any worker who is unauthorisedly
absent from duty for more than 8 days is construed to
655
2 September 2014]
LA GAZETTE DE L’ETAT
have voluntarily left service and the respondent is
empowered to remove such worker’s name from his
muster rolls. It is stated on the side of the petitioner that
principles of natural justice was not followed by the
respondent. But, each and every time show cause notice
was issued to the petitioner and he refused to receive the
notice and they were returned as unclaimed.
The returned postal covers containing the show cause
notice were marked in this case. Since, the petitioner
has not co-operated with the Enquiry Officer, after
following the procedures only the Enquiry Officer has
submitted his final report. It is further stated on the side
of the respondent that the petitioner
was again
unauthorisedly absent from duty from 6-9-2004 till
14-9-2004. Then, he came to work on 15-9-2004 and he
was not permitted to work. Since, he has shouted at the
Time Keeper, the Time Keeper Nagarajan had given a
complaint and is marked as Ex.R22. So, as per the rules
and regulations of the respondent mills, the petitioner was
placed under suspension as per the order, dated
15-9-2004. So, from the available records, it is clear that
the petitioner was in the habit of absconding from duty
and his conduct was also not good. After placing him
under suspension, the show cause
notice-cum-
suspension order Ex.R23 was sent to the petitioner.
It is received by the petitioner and the acknowledgment
card is marked as Ex.R1. The findings of the Enquiry
Officer Mr. Muniyandi is marked as Ex.R24.
7. The petitioner was again unauthorisedly absent
from duty from 17-10-2004 to 12-11-2004. For that also
the show cause notice was sent and was returned with
endorsement “unclaimed”. Since, the petitioner was
unauthorisedly avoiding the service of notice of letter,
publication was made in the local daily. So, the argument
that the principles of natural justice was not followed is
not a correct statement. From the available records, it
is clear that sufficient opportunity was given to the
petitioner to render his explanation and he has not
submitted any explanation. After following all the
procedures only the respondent had issued order of
discharge, dated 2-8-2010 and this discharge order is
marked as Ex.R47. That the order was sent to the
petitioner through registered post. He has refused to
receive the order, dated 2-8-2010 and the same was
returned with an endorsement “unclaimed”. The postal
cover is marked as Ex.R48. So, the publication was
made on 2-9-2010, the copy of the publication is marked
as Ex.R49. So, the proper enquiry report was sent to the
petitioner and the orders were also sent to the petitioner
but, he had unauthorisedly refused to receive them.
So, there is no possibility to set aside the order of the
discharge dated 2-8-2010 passed by the respondent
against the petitioner. The petitioner was in the habit of
absconding from duty is clearly proved in this case and
so, there is no possibility to give a direction to the
respondent to reinstate the petitioner with continuity of
service and back wages and other benefits. The non-
employment of Ezhumalai is justified through oral and
documentary evidence. Taking into consideration of all
the above said aspects, the claim petition filed by the
petitioner is dismissed.
8. In the result, the claim petition is dismissed.
No costs.
Typed to my dictation, corrected and pronounced by
me in the open court on this the 27th day of June 2014.
S. MARY ANSELAM,
Presiding Officer,
Labour Court (FAC), Pondicherry.
————
List of petitioner’s witness:
PW.1 — 29-5-2013 — Ezhumalai
List of respondent’s witness:
RW.1 — 21-8-2013 —Sugumaran
List of petitioner’s exhibits:
Ex.P1 — Copy of order passed by the respondent
against the petitioner, dated 6-12-2004.
Ex.P2 — Copy of representation given by the
petitioner to the respondent to provide
employment, dated 26-3-2005.
Ex.P3 — Copy of representation given by the
petitioner to the respondent to provide
employment, dated 4-8-2005.
Ex.P4 — Copy of representation given by the
petitioner’s
brother-in-law
viz.
A. Balachandran to the respondent,
dated 29-11-2005.
Ex.P5 — Copy of letter given by the petitioner to
the Personal Officer, respondent mill,
dated 30-9-2006.
Ex.P6 — Copy of publication in Daily Thanthi
newspaper, dated 8-1-2009.
Ex.P7 — Copy of notice issued by the respondent
through registered post, dated 4-3-2008.
Ex.P8 — Copy of letter sent by the respondent to
the petitioner stating that they were
ready to give employment to the
petitioner, dated 6-5-2010.
Ex.P9 — Form No. 25-B-Time Card, dated August 2010.
Ex.P10— Copy of proceedings of the Enquiry
Officer, dated 23-1-2009 to 3-3-2010.
656
LA GAZETTE DE L’ETAT
[2 September 2014
Ex.P11— Copy of enquiry report of the Enquiry
Officer, dated 23-4-2010.
Ex.P12— Copy of second show cause notice issued
by the respondent, dated 28-4-2010.
Ex.P13— Copy of reply given by the petitioner to
second show cause notice, dated 5-5-2009.
Ex.P14— Copy of publication in Daily Thanthi
Tamil daily, dated 2-8-2010.
Ex.P15— Copy of discharge order, dated 2-8-2010.
Ex.P16— Copy of letter sent by the petitioner to
the respondent mill, dated 2-9-2010.
Ex.P17— Copy of letter sent by the petitioner's
union to Conciliation Officer, Labour
Department, Puducherry, dated 30-8-2011.
Ex.P18— Copy
of
reply/counter
to
the
representation, dated 30-8-2011 by
Panjalai Thozhirsangam Congress in
respect of the petitioner, dated 9-12-2011.
Ex.P19— Copy of re-joinder given by the petitioner’s
union to Conciliation Officer, Labour
Department, Puducherry, dated 20-4-2012.
Ex.P20— Copy of failure report given by the
Conciliation Officer, dated 24-5-2012.
List of respondent’s exhibits:
Ex.R1 — Postal acknowledgment card.
Ex.R2 — Copy of the letter issued by the petitioner
to the respondent, dated 27-9-2004.
Ex.R3 — Copy of the order issued by the
respondent to the petitioner, dated 28-9-2004.
Ex.R4 — Copy of the letter issued by the petitioner
to the respondent, dated 26-3-2005.
Ex.R5 — Copy of the letter issued by the petitioner
to the respondent, dated 23-1-2009.
Ex.R6 — Postal acknowledgment card.
Ex.R7 — Copy of the letter issued by the petitioner
to the respondent, dated 26-8-2009.
Ex.R8 — Copy of the letter issued by the respondent
to the petitioner, dated 23-10-2009.
Ex.R9 — Copy of the letter issued by the petitioner
to the respondent, dated 9-1-2010.
Ex.R10— Postal acknowledgment card.
Ex.R11— Postal acknowledgment card.
Ex.R12— Copy of the letter issued by the petitioner
to the respondent, dated 5-5-2009.
Ex.R13— Copy of the letter issued by the petitioner
to the respondent, dated 2-9-2010.
Ex.R14— Copy of show cause notice, dated 15-7-2004.
Ex.R15— Returned postal cover containing the
show cause notice.
Ex.R16— Copy of enquiry notice, dated 22-7-2004.
Ex.R17— Returned postal cover containing the
enquiry notice.
Ex.R18— Copy of 2nd enquiry notice, dated 2-8-2004.
Ex.R19— Copy of 3rd enquiry notice, dated 14-8-2004.
Ex.R20— Returned postal cover containing the
3rd enquiry notice.
Ex.R21— Copy of proceedings of the Enquiry
Officer, dated 21-8-2004.
Ex.R22— Copy of complainant given by the said
Nagarajan, dated 15-9-2004.
Ex.R23— Copy of show cause notice-cum- suspension
order, dated 15-9-2004.
Ex.R24— Copy of findings of the Enquiry Officer.
Ex.R25— Copy of the notice, dated 12-11-2004.
Ex.R26— 2nd show cause notice, dated 15-11-2004.
Ex.R27— Returned postal cover containing the
2nd show cause notice, dated 15-11-2004.
Ex.R28— Order dated 6-12-2004.
Ex.R29— Returned postal cover containing the
order, dated 6-12-2004.
Ex.R30— Copy of show cause notice, dated 4-3-2008.
Ex.R31— Copy of show cause notice, dated 4-3-2008.
Ex.R32— Copy of paper publication, dated 8-1-2009.
Ex.R33— Copy of letter, dated 25-7-2009.
Ex.R34— Copy of the enquiry notice, dated 4-8-2009.
Ex.R35— Copy of the post acknowledgment card.
Ex.R36— Copy of the enquiry notice, dated 18-8-2009.
Ex.R37— Copy of the reply issued by the postal
department, dated 4-9-2009.
Ex.R38— Copy of the enquiry notice, dated 3-9-2009.
Ex.R39— Copy of the post acknowledgment card.
Ex.R40— Copy of the letter, dated 28-11-2009.
Ex.R41— Copy of the letter, dated 31-12-2009.
Ex.R42— Copy of the letter, dated 22-2-2010.
Ex.R43— Copy of the enquiry report, dated 23-4-2010.
Ex.R44— Copy of the notice, dated 28-4-2010.
Ex.R45— Copy of the letter, dated 6-5-2010.
Ex.R46— Postal acknowledgment card.
Ex.R47— Copy of the discharge order, dated 2-8-2010.
Ex.R48— Returned postal cover.
Ex.R49— Copy of the publication, dated 2-8-2010.
Ex.R50— Copy of the letter, dated 15-9-2010.
Ex.R51— Postal acknowledgment card.
Ex.R52— Copy of letter, dated 11-2-2011.
S. MARY ANSELAM,
Presiding Officer,
Labour Court (FAC), Pondicherry.