446

LA GAZETTE DE L’ETAT

[30 June 2015

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 59/Lab./AIL/J/2015, dated 18th June 2015)

NOTIFICATION

Whereas, the award in I.D. (L) No. 41/2014, dated

24-11-2014 of the Labour Court, Puducherry in respect

of the industrial dispute between the management o f

M/s. Whirlpool of India Limited, Thirubuvanai, Puducherry

and its workman Thiru K. Sivakumar 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)

A. RAJARATHINAM,

Under Secretary to Government (Labour).

————

BEFORE THE LABOUR COURT AT PONDICHERRY

Present : Thiru G. DHANARAJ, B.SC, B.L.,

Presiding Officer, Labour Court.

Monday, the 24th day of November 2014

I.D. (L) No. 41/2014

K. Sivakumar

. . Petitioner

Versus

The Personal Manager,

M/s. Whirlpool of India Limited,

Puducherry.

. . Respondent.

This industrial dispute coming on 17-11-2014 for final

hearing before me in the presence of Thiruvalargal

P. Sam Japa Singh and A. Sakthivel, Counsel for the

petitioner, respondent called absent, set ex parte, 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. 117/ AIL/Lab./J/2014, dated 13-8-2014 for

adjudicating the following:-

(a) Whether the dispute raised by Thiru K. Sivakumar

against the management of M/s. Whirlpool of India

Limited, Puducherry over non-employment is justified?

If justified, what relief the workman is entitled to?

(b) 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 Government of Puducherry has referred the

dispute for adjudication by its order, dated 13-8-2014

bearing G.O. Rt. No. 117/ AIL/Lab./J/2014. The petitioner

is working with the respondent for the past 17 years.

On 5-3-2013 without giving any reason the respondent

did not permit the petitioner to get enter into the

factory of the respondent. In this regard on 9-7-2013

a complaint was initiated and during the course of

talk the respondent promised that the respondent will

give back the job to the petitioner.

On 26-12-2013 the petitioner went to the

respondent’s factory. He was made to wait in the

security room by one Mr.Vedhamaharajan, Human

Resource Officer stating that the union leader

Udayakumar will come and talk to the petitioner.

The petitioner waited for more than 4 hours after

that; the union leader Udayakumar came and ill-treated

the petitioner; by using filthy words against the

petitioner and threatened with dire consequences.

The respondent promised before the Labour

Officer that the petitioner will be given job, but the

respondent failed to keep his words and threatened

the petitioner. The happenings were intimated before

the Labour Officer on 30-12-2013, at that time the

petitioner was asked to give in written about the

happenings. On 21-2-2014 the petitioner has given

a complaint before the Labour Officer to take

appropriate action against the respondent.

The petitioner has filed the petition before the

Labour Officer (Conciliation) on 21-2-2014, based

upon the representation, dated 6-8-2013 conciliation

proceedings were held on 25-9-2013, 7-10-2013,

22-10-2013, 7-11-2013, 18-11-2013, 6-12-2013,

30-12-2013, 21-2-2014 and 11-3-2014. During the

course of conciliation the management representative

were not care to file their reply and assured that they

are ready for bilateral discussion with the petitioner

to arrive amicable settlement and therefore the

447

30 June 2015]

LA GAZETTE DE L’ETAT

conciliation machinery provided many dates and

opportunity to have bilateral, discussion with the

petitioner to arrive amicable settlement.

Whereas the management not ready for the

bilateral discussion as agreed by them and not ready

to settle the issue amicably. The petitioner vide

letter, dated 2l-2-2014 alleged that the management,

threatened the petitioner with the management union

leader and therefore the petitioner was not ready to

prolong the issue for long period and insisted to refer

the dispute for adjudication as the management

violates all the legal provisions under the Act and

violates the principle of natural justice. As the

management not interested for the voluntarily

arbitration and not appeared in spite of repeated

notices and therefore the dispute is ended in failure.

The court may be pleased to set aside the Report

on Failure of Conciliation No. 1691/LO(C)/AIL/2013

Government of Puducherry, Office of the Labour

Officer (Conciliation), dated 30-7-2014 and consequent

to the non-employment from 5-3-2013(not allowed

to enter the factory) by the respondent management

and also direct the respondent management to give

employment to the petitioner into service with all back

wages, attendance benefit and monetary benefits

from 5-3-2013 and pass such further or other orders

as this court may deem fit and proper in the

circumstances of the case and justice be rendered.

3. No counter was filed on behalf of the respondent.

4. On the side of the petitioner, P.W.1 was examined,

and Ex.P1 to Ex.P8 were marked.

5. The point for consideration is:

Whether the industrial dispute can be allowed?

or not?

6. On this point:

Heard. It was submitted by the counsel for the

petitioner that the petitioner was the employee of the

respondent company for the past 17 years. The respondent

company did not permit the petitioner to work as

a employee in the said company without giving any

reason. And the petitioner was not permitted to enter

into the premises of the factory of the respondent

on 5-3-2013. The petitioner gave a complaint on 9-7-2013

and negotiation was initiated during the course of talk

the respondent promised to get back the petitioner as

a employee on 26-12-2013. The petitioner was not

permitted to enter into the respondent factory, the

petitioner was insulted and was threatened by the union

leaders of the said factory. The conciliation was going

on by the conciliation officer. But the conciliation was

failed. Hence this petition.

7. On behalf of the respondent in spite of the

repeated adjournments there was no representation and

was set ex parte.

8. After hearing the petitioner's counsel, records

were perused. On behalf of the petitioner P.W.1 was

examined and Ex.P1 to P8 were marked. On the basis of

the evidence of P.W.1 a perusal of Ex.P1 which was

a photocopy of the pay slip issued in the name of one

K. Sivakumar by the respondent company, the Ex.P2 was

a letter addressed to the Personal Manager of the

respondent company by the petitioner herein for the

reason stated thereon. The said letter was addressed

seeking the employment from the respondent company.

Ex.P3 was also a letter for the very same purpose

addressed to the respondent company by the petitioner.

Ex.P4 was a certificate given by the respondent

company to the petitioner for the good performance of

the petitioner performed in the respondent company.

Ex.P5 was a petition given to the conciliation officer

by the petitioner as mentioned thereon. Ex.P6 was an

another petition given by the petitioner to the conciliation

officer as mentioned thereon. Ex.P7 was a report

given by the concerned conciliation officer regarding

the failure of the conciliation between the parties of this

petition. Ex.P8 was the notification made by the

Government of Puducherry in G.O. Rt. No. 117, dated

13-8-2014 to which the said industrial dispute was

arisen.

9. The cumulative study of the exhibits filed by the

petitioner as stated above would reveal the fact that the

petitioner, namely, K. Sivakumar was an employee in the

respondent company and was non-employed by the said

company. For the non-employment, there was a conciliation

between the petitioner and the respondent company,

through the concerned conciliation officer. The said

conciliation was also filed and the matter was referred

to this forum was clearly established because there was

no rebuttal evidence on behalf of the respondent. Hence

the court decided on a considered view that the

petitioner K. Sivakumar was non-employed by the

respondent company, without any valid reason, was

established by the petitioner and is entitled for the

employment in the respondent company as claimed and

also the petitioner is entitled for the relief as a regular

employee as claimed in the petition. Accordingly it is

ordered that the petitioner should be reinstated to the

employment by the respondent company within three

months from the date of this order.

10. In the result, the petition is allowed. The petitioner

should be given the employment by the respondent

company within three months from the date of this order

with all benefits as claimed in the petition.

448

LA GAZETTE DE L’ETAT

[30 June 2015

Typed to my dictation, corrected and pronounced

by me in the open court on this the 24th day of

November 2014.

G. DHANARAJ,

Presiding Officer, Labour Court,

Pondicherry.

————

List of petitioner's witness:

P.W. 1— 17-11-2014 — K. Sivakumar

List of petitioner's exhibits:

Ex.P1 — Copy of the pay slip for the month of

January 2013 issued by the respondent,

dated January 2013.

Ex.P2 — Copy of the letter sent by the petitioner

to the respondent along with postal

receipt, dated 25-6-2013.

Ex.P3 — Copy of the letter sent by the petitioner

to the respondent along with postal

receipt, dated 1-7-2013.

Ex.P4 — Copy of the Certificate of Appreciation

issued by the respondent, dated 11-1-2013.

Ex.P5 — Copy of the petition before Labour

Officer, dated 5-8-2013.

Ex.P6 — Copy of the petition before Labour

Officer, dated 21-2-2014.

Ex.P7 — Copy of the Report of Failure issued by

the Labour Officer, dated 30-7-2014.

Ex.P8 — Copy of the Government of Puducherry

Notification G.O. Rt. No. 117/AIL/Lab./

J/2014, dated 13-8-2014.

G. DHANARAJ,

Presiding Officer, Labour Court,

Pondicherry.

————

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 60/Lab./AIL/J/2015, dated 18th June 2015)

NOTIFICATION

Whereas, tthe award in I.D.(L) No.7/2006, dated 1-4-2015

of the Labour Court, Puducherry in respect of the

industrial dispute between the management of

M/s. Suja Rubber Industries Private Limited, Puducherry

and Thiru D. Rajendiran represented by Pudhuvai

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)

A. RAJARATHINAM,

Under Secretary to Government (Labour).

————

BEFORE THE LABOUR COURT AT PONDICHERRY

Present : Thiru G. DHANARAJ, B.Sc., B.L.,

Presiding Officer, Labour Court.

Wednesday, the 1st day of April 2015

I.D. (L) No. 7/2006

The President/Secretary,

Pudhuvai Thozhilalar Sangam,

Pondicherry.

. . Petitioner/

Workmen.

Versus

The General Manager,

Suja Rubber Industries Private Limited,

Pondicherry.

. . Respondent/

Employee

This industrial dispute coming on 24-3-2015 for final

hearing before me in the presence of Thiru Durai Arumugam,

Counsel for the petitioner, Thiru V. Govindaradjou,

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. 22/ AIL/Lab./J/2006, dated 7-3-2006 for

adjudicating the following:-

(1) Whether the demand of Puduvai Mill

Thozhilalar Sangam (CITU) over non-employment of

Thiru D. Rajendiran against the management of

M/s. Suja Rubber Industries Private Limited, is

justified or not?

(2) To what relief, he is entitled to?

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

of money, if it can be so computed?

449

30 June 2015]

LA GAZETTE DE L’ETAT

2. The facts giving rise to this industrial dispute as

stood exposited from the claim petition runs thus:-

The petitioner workman by name D. Rajendiran

was working in the respondent company for four

years as machine operator. The respondent company

was earning good profit but they had refused to

implement the E.S.I. and E.P.F. in time. Hence, the

employees, who met with accident, could not claim

the E.S.I. benefits and they have to approach the

Labour Officer in this regard. Since the respondent

failed to act in the welfare of the employees, the said

D. Rajendiran attempted to form a union. On coming

to know the said fact, the respondent company

threatened the said D. Rajendiran not to form the

union. In spite of the said threat, the said Rajendiran

attempted to form the union. Hence, the respondent

union issued a show cause notice by leveling false

allegation and conducted the enquiry and finally

dismissed him from the service. He has conducted

the domestic enquiry in a biased manner without

giving any opportunity which are entitled for the

delinquents as per law as well as by the principles

of natural justice. Hence, he prays for reinstatement

of the petitioner with full back wages.

3. Per contra, traversing the averments the claim

statement, the respondent filed the counter with the

averments which runs thus:—

The petition filed by the petitioner for

reinstatement with continuous service is not

maintainable either in law or on facts and hence liable

to be dismissed in limine.

All the allegations contained in the petition except

those that are specifically admitted herein.

At the outset that the demand raised by the

petitioner/union is not an industrial dispute as

contemplated under section 2(K) of Industrial

Disputes Act, 1947. The dispute has not been

disclosed properly so as to construe that there is

an industrial dispute existing or apprehended.

The petitioner/union does not have any locus standi

to raise any dispute against the management. The dispute

is not supported by substantial section of the

workers of the establishment. The required formalities

in raising an industrial dispute have not been

complied with at all. Neither the petitioner/union nor

the president has any locus standi to raise an

industrial dispute or to sign any statement before the

various fora. In short, the dispute is not an industrial

dispute.

Without prejudice to the above contention

Thiru D. Rajendiran was dismissed from service by the

management by an order, dated 29-9-2004. The facts

and circumstances, which had lead to the dismissal of

Thiru D. Rajendiran are hereunder. Thiru D. Rajendiran

was working as an operator in the establishment run

by the respondent/management. On 23-11-2003 in the

general shift, he was working in the laboratory.

One Thenmozhi another employee was working

in the stores on the same day. At about 11.30 a.m.

Thiru D. Rajendiran went to the stores from the

laboratory without any permission and with mala fide

intention entered into the stores and after closing the

doors of the store room, he has hold the hands of

Thenmozhi, who was alone in the stores and tried to

misbehave with the said Thenmozhi. While she

escaped from his hold and ran out of the stores, he

has threatened her not to say anything about the

incident to anybody. Supervisor Thiru Selvakumar

and Thiru Kulothungan have been seen her weeping

and she has narrated the above incident to them.

Thus Thiru D. Rajendiran has misbehaved with a

female worker in the stores and has threatened her

not to report the incident to anybody.

For the misconduct committed by him, he was

suspended pending enquiry by an order, dated

25-11-2003 and a charge memo, dated 14-1-2004 was

issued and he was directed him to offer his

explanation. He offered his explanation through his

letter, dated 17-1-2004. Since the explanation offered

by the petitioner was not found to be satisfactory,

an enquiry was ordered to be conducted and one

Thiru S. Murugesan B.A.B.L., Advocate was appointed

as ‘Enquiry Officer’. The enquiry was fixed on

28-2-2004 and the same was intimated to him through

enquiry notice, dated 23-2-2004.

On 28-2-2004 he has not appeared for the enquiry,

however the enquiry was adjourned to 20-3-2004.

On 20-3-2004 he appeared before the Enquiry Officer

and submitted a letter requesting to allow one

Thiru Saravanan, his co-worker as his helper and the same

was accepted and Thiru Saravanan has also participated

in the enquiry along with him. Thiru D. Rajendiran

has participated in the enquiry fully understanding

the true sense and significance of the same, with a

co-worker of his choice. The enquiry was held on

various dates at the request of Thiru D. Rajendiran.

On 17-5-2004 the delinquent worker had appeared

before the Enquiry Officer along with his co-worker

and asked for the list of persons going to be

examined as witnesses on the side of the management

and requested to adjourn the enquiry and the same

was considered. Further the enquiry was adjourned

450

LA GAZETTE DE L’ETAT

[30 June 2015

to 18-6-2004. On 18-6-2004 he appeared before the

Enquiry Officer and stated that the enquiry may be

proceeded with his co-worker. The management

witness Thiru Kulothungan was examined in his

presence and he requested for time to cross-examine

the management witness. The

Enquiry Officer

adjourned the enquiry to 26-6-2004. On 26-6-2004, the

delinquent worker has appeared before the Enquiry

Officer and refused to cross-examine the management

witness and walked out from the enquiry. The Enquiry

Officer has explained him that if he walked out from

the enquiry he will be set ex parte. But the delinquent

worker has not responded to the words of the Enquiry

Officer. Hence he was set ex parte and the other

management witnesses were examined and the

enquiry was conducted and completed on the same

day itself.

The Enquiry Officer has given his findings, dated

24-7-2004 wherein he has come to the conclusion that

the charges framed against Thiru D. Rajendiran are

all proved. The management has gone through the

findings as well as the enquiry proceedings and has

also independently come to the conclusion that the

charges held to have been proved by the Enquiry

Officer have all been proved to their satisfaction also.

The management has accepted the findings of the

Enquiry Officer in toto and in all respects. Taking into

consideration of the gravity of the misconduct, the

management has provisionally come to the conclusion

to dismiss the delinquent from service. Accordingly

a second show cause notice, dated 13-8-2004 was

served on him. He has submitted his explanation,

dated 17-8-2004. His explanation was carefully

considered by the management and the same was not

found to be satisfactory. No management would

tolerate such an activity of the delinquent employee,

who has misbehaved with the female worker in the

store room when she was alone and threatened her

not to report same to anybody. The proved charges

are very serious and grave in nature warranting the

punishment of dismissal. Hence he was dismissed

from service by an order, dated 29-9-2004.

The order of dismissal is legal, valid and binding.

The order of dismissal is for the proved misconduct

supported by satisfactory evidence recorded in an

enquiry held for the purpose. The enquiry is fair

and proper. Principles of natural justice were adhered

to scrupulously. For the ex parte enquiry, he alone

is to be blamed.

The allegation of the said Thiru D. Rajendiran that

he was working as an operator in the establishment

for 4 years and he has tried to started one trade

union in the management in which he has worked

with the help of the petitioner/union and hence in

order to victimize him, false charges were framed

against him and an enquiry was held against the

provisions of law and thereby he was dismissed, are

all denied as false. The proof of misconduct is anti-

thesis to the plea of victimization. The management

is not aware of the alleged union activities of the

delinquent and there is no such union in the

management.

The other allegation that there is a tense situation

among the workers in the establishment due to

dismissal of above said Thiru D. Rajendiran is

denied as utter falsehood. The management has not

indulged in any unfair labour practice at any point

of time as alleged. In fact the management has taken

action against the employee who has committed

serious misconduct of misbehaving with a female

co-worker during the working hours in her work

place. The contra allegations in the petition are all

denied as false and the petitioner union is put to

strict proof of the same.

The present move of the petitioner is not

bona fide and is opposed to law.

This court has come to a findings that the enquiry

conducted by the respondent/management is not in

accordance with the principles of natural justice, then

this respondent prays that this court may be pleased

to permit the respondent/management to adduce

evidence before this court and in such circumstances

this respondent prays that this court may be pleased

to decide the validity of the Enquiry Officer

conducted by the enquiry as a preliminary issue and

justice be rendered.

This respondent reserves his right to file additional

reply statement, if necessary.

This court may be pleased to dismiss the petition

with costs.

It is pertinent to note down here that the dispute

in ID(L) No. 7/2006 pending before this court was

already decided and disposed by this Tribunal as per

the order, dated 26-3-2010. A writ petition was filed

by the respondent herein before the Hon’ble High

Court of Chennai in WP No.17270/2010 and M.P.

Nos. 1 to 3 of 2010 as a petitioner thereon. The said

writ petition was disposed by the Hon’ble High Court

of Chennai on 10-9-2014 with the direction, the matter

was remitted back to this court to decide the matter

afresh and the Tribunal was directed to pass order

on merits in accordance with law with the direction

of time framed for disposal as mentioned

thereon. And also the direction was given by the

451

30 June 2015]

LA GAZETTE DE L’ETAT

Hon’ble High Court of Chennai to provide an

opportunity to the respondent herein for leading

evidence and an same. After hearing both the

parties, the matter be decided in accordance with law.

Accordingly, the matter was tried against.

On behalf of the respondent, namely, management

of Suja Rubber Industries Private Limited, RW1 was

examined Ex.R1 to R14 were marked. No witness was

examined after remittance by the petitioner.

5. The point for consideration is:

Whether the industrial dispute can be allowed? or not?

6. On this point:

Both sides heard. It was submitted by the counsel

for the petitioner that the petitioner was the Puduvai

Mill Thozhilalar Sangam, a workman, namely, one

D. Rajendiran was also the member of the said union

and was a employee of the respondent management

organisation. The respondent management organisation

did not provide the benefits of the workman as

prescribed by the law and was evading the responsibility

of a organisation. The subscription to be paid by the

respondent management organisation in the Employees

State Insurance Corporation and the E.P.F. scheme was

not properly done then and there. The workmen of the

respondent organisation had started a process as to

form a union with the help of the said D. Rajendiran who

was the forerunner for forming the union. The

respondent management organisation was threatening

the said Rajendiran stating that if the said Rajendiran

who was the workmen in the respondent management

organisation would not stop the process of formation

of union, he would face the dire consequences. The

respondent management was planning to take revenge

against the said Rajendiran, in order to give a message

to all the workmen that if the workman was interested

in forming the union they would face the dire

consequences. The respondent management had

dismissed the said Rajendiran without following any

natural justice and procedure of law. The dismissal of

the said Rajendiran by the respondent management was

illegal. No witness was examined by the respondent

management as to substantiate their case. Even no

domestic enquiry was conducted by appointing a

Enquiry Officer and no report was filed by any Enquiry

Officer for the charges leveled against the said

Rajendiran. The Tribunal had already decided that the

dismissal order passed against the workman Rajendiran

was illegal and the said Rajendiran was entitled for the

employment as per the order, dated 26-3-2010 of this

court. The respondent management had filed an writ

petition against the order of this court in WP No. 17270/

2010 and M.P. Nos. 1 to 3 of 2010, following which the

matter was remitted back to this court for fresh disposal

as directed thereon. Even after the remittance of this

case to this Tribunal the respondent management did

not adduce any valid document as to substantiate their

case. The witnesses were not examined by any Enquiry

Officer for the charges leveled against the said

Rajendiran. The decision of the respondent management

for dismissing the said Rajendiran was unilateral and

was without any basis. The important witness one

Thenmozhi who was alleged to have been misbehaved

by the said Rajendiran was not at all either produced

before any Enquiry Officer or produced before this court

as to prove the charges against the said Rajendiran.

Even no complaint was given to concerned police for

the misbehavior act of the said Rajendiran. The so

called witnesses, namely, one Kulothungan and other

was not examined either before the Enquiry Officer or

before this court. Hence the case of the respondent

was not established and the order of the dismissal

passed by the respondent management was illegal.

Hence this petition.

7. On behalf of the respondent, it was contended

that the workman, namely, one D. Rajendiran was

working as a machine operator in the respondent

management company. On 23-11-2003, said Rajendiran

was working in the laboratory in the general shift at

about 11.30 a.m. and he went to the store room from

the laboratory without any permission and with

mala fide intention entered into stores and after closing

the doors of the store room, he has held the hands of

one lady worker by name Thenmozhi, who was alone in

the store room and tried to misbehave with the said

worker. She escaped from his hold and ran out of the

stores, he has threatened her not to reveal anything

about the incident to anybody. The supervisors by

name one Selvakumar and one Kulothungan had seen

the said Thenmozhi weeping and they were told about

the incident. The respondent management had issued a

show cause notice to the said workman, namely,

Rajendiran. The said Rajendiran had given a reply

statement denying the incident the action taken by the

respondent management was well within the purview of

the law. Hence the petition is to be dismissed.

8. After hearing both sides. Records were perused.

On perusal of the records which would reveal the fact

that the Industrial Dispute in ID(L) No. 7/2006 was

already heard and decided by this Tribunal as per the

order, dated 26-3-2010. Against the said order a writ

petition was filed before the Hon’ble High Court of

Chennai in WP No.17270/2010 which was disposed by

the Hon’ble High Court of Chennai on 10-9-2014 with

452

LA GAZETTE DE L’ETAT

[30 June 2015

the direction to remit the matter to this court for fresh

disposal as mentioned thereon. After the remittance of

this case, on behalf of the respondent one witness was

examined and Ex.R1 to R14 were marked, whereas, after

remittance no witness was examined, on behalf of the

petitioner and no documents were produced after

remittance but already PW1 was examined. On behalf

of the petitioner Ex.P1 to P5 were marked.

9. On the basis of the submission of the petitioner

counsel that the charges leveled against the petitioner,

namely, one D. Rajendiran was not established either

by the respondent management or by so called victim

Thenmozhi because no witness was examined as to the

allegation leveled against the said Rajendiran either

before any Enquiry Officer or before this Tribunal.

Accordingly, a perusal of the evidence of the RW1 at

the time of cross-examination who would say as follows

(relevant portion):-

“















R













”

A cursory reading of the evidence of RW1 at the time

of cross-examination would reveal the fact that the so

called victim, namely, one Thenmozhi was not at all

examined as a witness before this court and also as

admitted by the RW1, there was no report given to

concerned police station regarding the incident. It was

also the evidence of RW1, at the time of cross-

examination it was not the statement of so called

witnesses one Kulothungan, one Selvakumar and one

Manjini that they had directly witnessed the incident,

namely, the misbehavior of the said Rajendiran with the

said Thenmozhi. Curiously, the above said persons were

also not produced before this court as to depose the

incident which was alleged to have been happened as

alleged by the respondent. It was also the evidence of

RW1 at the time of cross-examination as follows

(relevant portion):-

“

”

The witness RW1 was also admitting the fact that the

said witness Thenmozhi was not enquired by the

concerned Enquiry Officer. Even no Enquiry Officer was

appointed.

10. The Central Civil Services Classification, Control

and Appeal Rules, 1965 vide Swamy’s Manual on

Disciplinary Proceedings Pg.315 says as follows:-

(Digest).

“If the charged officer does not submit his written

defence within the time specified or does not appear

before the Inquiry Officer or otherwise fails or

refuses to comply with the provision of the rules, the

Inquiry Officer may hold the inquiry ex parte,

recording reasons for doing so. For conduct of ex parte

proceedings see instructions contained in Instruction (6)

under Rule 14.

Ex parte proceedings, however, do not mean that

findings should be given without investigation.

Inquiry is still necessary, although it would be in the

absence of the charged officer. It has to be borne in

mind that the Inquiry Officer's job is not at all

affected by the absence of the charged officer. He is

charged with the scrutiny of the evidence, both

verbal and recorded, and then come to a finding

respecting each article of charge. The only difference

is that, the employee has denied himself the

opportunity of cross-examining the prosecution

witnesses and producing and examining his own

witnesses. The absence of the charged officer does

make it a little complicated for the Inquiry Officer to

come to a conclusion in the absence of the

explanation of the charged officer. The Inquiry

Officer has to examine the records and witnesses to

enable him to come to a valid conclusion as to the

culpability of the charged officer based on the

evidence led before him. If the Inquiry Officer has

done all this, the charged officer cannot later on plead

that he was not given reasonable opportunity. Even

in ex parte enquiry, the Inquiry Officer has to fix a

date of hearing and intimate the same to the

defendant. If he absents himself from the inquiry at

one stage, it does not take away his right to attend

the inquiry at any other subsequent stage. The charged

officer should be allowed to participate in the inquiry

at any stage he likes. However, if he does, the ground

already covered will not be repeated. All that the

Inquiry Officer has to ensure is that he comes to a

finding solely on the basis of evidence, both oral and

documentary, produced before him”.

11. It has been held in a case Maganlal Vs. King-

Emperor, (1946) Nag 126 vide Law of Evidence by

Ratanlal and Dhirajlal, 17th edition, Pg.332 as follows:-

453

30 June 2015]

LA GAZETTE DE L’ETAT

“No evidence affecting a party is admissible against

that party unless the latter has had an opportunity

of testing its truthfulness by cross-examination”.

A conjoint reading of the above said rule and above

said ruling, wherein, it has been clearly held no evidence

affecting the party is admissible against that party

unless the latter has had an opportunity of testing his

truthfulness by cross-examination. In the light of the

above said ruling and also above said rule, a perusal of

the records on hand, the court decided on a considered

view, the so called enquiry alleged to have been

conducted by the respondent management were not at

all valid in law and the order of termination passed

against the workman D. Rajendiran as exhibited Ex.R14

was not at all valid in law. For the simple reason, no

proper enquiry was conducted by the respondent

management as to find out the truth for the charges

leveled against the said D. Rajendiran and no witnesses

were examined for establishing the allegation leveled

against the said Rajendiran, even the witnesses, namely,

the said Thenmozhi, Selvakumar, Kulothungan and

Manjini were not produced before this court as to prove

the charges against the said D. Rajendiran. Hence the

court decided on a considered view that the order

passed by the respondent management i.e. the order of

the dismissal passed against the said Rajendiran was

not in accordance with law and the dismissal order was

passed by the said Rajendiran was to be set aside and

the said Rajendiran was entitled for employment with

the respondent management. Accordingly points are

answered.

12. In the result, it is ordered that the dismissal order

passed against the said D. Rajendiran by the respondent

management organisation was ordered to be set aside

and the said D. Rajendiran was entitled for employment

with the respondent management organisation with all

benefits. And there is no order of back wages, in view

of the order of the Hon’ble High Court of Chennai

passed in WP No. 17270/2010, dated 10-9-2014. The said

D. Rajendiran was to be reinstated from the date of

receipt of this order by the respondent management with

all benefits entitled to him. Accordingly it is ordered.

Typed to my dictation, corrected and pronounced by

me in the open court on this the 1st day of April 2015.

G. DHANARAJ,

Presiding Officer,

Labour Court, Pondicherry.

————

List of petitioner’s witness: Nil

List of respondent ‘s witness:

RW.1 — 21-1-2015

— R. Venkatesh

List of petitioner’s exhibits:

Ex.P1 — Copy of the notice of Additional Commissioner

for Workmen’s Compensation, Pondicherry

in W.C. No. 10/2004, dated 8-2-2005.

Ex.P2 — Copy of the dismissal order, dated 29-9-2009

Ex.P3 — Copy of the notice of demand, dated 17-5-2004,

18-6-2004.

Ex.P4 — Copy of the list of witness issued by the

respondent to D. Rajendiran, dated 10-6-2004.

Ex.P5 — Copy of the reply notice issued by the

respondent to D. Rajendiran along with

enquiry proceedings, dated 26-6-2004.

List of respondent’s exhibits:

Ex.R1 — Original copy of the complaint given by

Thenmozhi to the Manager, dated

24-11-2003.

Ex.R2 — Original copy of the letter given by

Kulothungan to the Manager, dated

23-11-2003.

Ex.R3 — Original copy of the letter given

by Selvakumar to the Manager, dated

23-11-2003.

Ex.R4 — Original copy of the letter given by Manjini

to the General Manager, dated 24-11-2003.

Ex.R5 — Original copy of the charge sheet issued

by the management to the workman

D. Rajendiran, dated 20-3-2004.

Ex.R6 — Original copy of the reply given by the

workman to the management, dated 17-1-2004.

Ex.R7 — Original copy of the intimation of

domestic enquiry, dated 30-1-2004.

Ex.R8 — Original copy of the intimation of

domestic enquiry, dated 23-2-2004.

Ex.R9 — Original copy of the intimation of

domestic enquiry, dated 13-3-2004.

Ex.R10 — Original copy of the reply given by

workman to the management, dated 1-3-2004.

Ex.R11 — Original copy of the suspension order,

dated 25-12-2003.

Ex.R12 — Original copy of the second show cause

notice, dated 13-8-2004.

Ex.R13 — Original copy of the reply to second

show cause notice, dated 17-8-2004.

Ex.R14 — Original copy of the termination order

along with acknowledgement, dated

29-9-2004.

G. DHANARAJ,

Presiding Officer,

Labour Court, Pondicherry.

454

LA GAZETTE DE L’ETAT

[30 June 2015

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 61/Lab/AIL/J/2015, dated 19th June 2015)

NOTIFICATION

Whereas, the Award in I.D. (L) No. 21/2012, dated

30-12-2014 of the Labour Court, Puducherry in respect

of the industrial dispute between the management of

M/s. JIPMER Staff Co-operative Thrift and Credit

Society and its workman Thiru A. Neelakandan 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)

A. RAJARATHINAM,

Under Secretary to Government (Labour).

————

BEFORE THE LABOUR COURT AT PONDICHERRY

Present : Thiru G. DHANARAJ, B.SC, B.L.,

Presiding Officer, Labour Court.

Tuesday, the 30th day of December 2014

I.D. (L) No. 21/2012

A. Neelakandan

. . Petitioner

Versus

The Management,

JIPMER Staff Co-operative Thrift

and Credit Society, Puducherry.

. . Respondent

This industrial dispute coming on 17-12-2014 for final

hearing before me in the presence of M/s. Law Solvers,

counsel for the petitioner, Thiru D. Sukumaran, 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 heen referred as per the

G.O. Rt. No. 74/AIL/Lab./J/2012, dated 9-5-2012 for

adjudicating the following:

(1) Whether

the

dispute

raised

by Thiru

A. Neelakandan, against the management o f

M/s. JIPMER Staff Co-operative Thrift and Credit

Society Limited (No. P. 231), Puducherry over

termination of his services is justified?

(2) If justified, to 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 was appointed as an employee of

the respondent management with effect from

14-11-1980. Out of hard work and perseverance the

petitioner rose up to the level of the Secretary of the

respondent society with effect from 25-2-2000.

The petitioner had rendered 28 years of unblemished

service. While it was so, the petitioner was

suspended from service vide suspension order

No. JSCCS/Estt./1/2008, dated 23-7-2008 followed by

a charge sheet dated 27-8-2008 on the basis of the

audit report for the year 2003-2004. The charges

leveled against the petitioner by the respondent

society are as follows:

1. (a) During the year 2003-2004 the society had

spent from the general funds a sum of ` 2,15,632

without the permission of the Registrar of

Co-operative Societies for general body meeting and

the petitioner failed to properly guide the Treasurer/

Board of Directors;

1. (b) The petitioner failed to maintain value of

condemned furniture in stock verification report as

on 31-12-2004 properly;

1. (c) The thrift deposit and thrift fixed deposit

were refunded to the members of the society before

they cease to the member/retirement from the job and

charged officer failed to help the Treasurer to take

a decision in accordance with the bye-laws of the

society;

1. (e) The charged officer failed to abide the loan

rules and misguided the Board of Directors in the

issue of medium-term loans to the members of the

society over and above the eligible limit without

Board resolution;

455

30 June 2015]

LA GAZETTE DE L’ETAT

1. (f) The charged officer during the audit period

2003-2004 over-time wages were paid to the staff of

the society and the charged officer failed to properly

guide the Treasurer and abetted for the lavish

expenditure;

1. (g) The charged officer failed to properly

examine the loan applications and during the year

and medium-term loan were issued to the members of

the society without obtaining the loandhar and the

surety pay certificate and failed to submit remarks to

the Treasurer;

2. The charged officer had unnecessarily disclosed

the information regarding payment of advance to

Amudhasurabi to the representatives of the JIPMER

Employees Union which is also a misinformation;

3. The charged officer had failed to bring to the

notice of the Administrator the circular, dated 27-7-2007

issued by the Registrar of Co-operative societies regarding

the issue of loans and streamlining procedure and

suppressed the receipt of this important circular and

failed to implement the Registrar's instructions in the

society.

4. The charged officer had issued M.T. loans and

consumer loans to Ex-Directors and members of the

society over and above the eligible limit and also issued

loans to members before the clearance of earlier loans

which had resulted in non-recovery of loans.

5. The charged officer had issued NOC before

realisation of the loan amount by cheque and

intentionally failed to safeguard the assets of the

society;

6. The charged officer had failed to effect recovery

of loan amount from the members of the society and the

medium term loans and consumer loans were issued

over and above the eligible limits and failed to examine

the loan applications and arranged for the payment of

the loans which is against the policy decision of the

Board of Directors;

Therefore, the charged officer has committed serious

misconducts such as willful failure in discharge of

duties entrusted to the delinquent, acting prejudicially

against the interest of the society, gross negligence in

the discharge of duties, furnishing false statements,

failure to maintain secrecy regarding society's affairs,

neglect of work, commission of irregularities with regard

to the business of the society, abetment to cause

deficiency to the assets of the society, failure to abide

the rules and bye-laws, failure to maintain true

accounts of the society, dishonest act in connection

with the society's business and failure to maintain

integrity and devotion to duty.

The routine audit report for the year 2003-2004 has

lead to the issue of the aforesaid charge sheet, the audit

report contained rectifiable defects which involved only

procedural lapses and did not contain any allegation of

misappropriation of money or malpractices involving

moral turpitude. The petitioner thereafter submitted his

written explanation, dated 1-9-2008, to the respondent

society and the respondent society not being satisfied

with the explanation appointed Mr. G. Krishnan,

Advocate as the Enquiry Officer to go into the charges

leveled against the petitioner vide order Ref. No. JSCCS/

Estt./1/2008, dated 4-10-2008. In the meantime the

respondent society revoked the suspension order

pending disciplinary action vid e Office Order

No. JSCCS/Estt/1/2008, dated 4-9-2008.

The Enquiry Officer conducted enquiry on different

dates from 5-12-2008 to 17-5–2010 and submitted his

enquiry report to the respondent society vide Enquiry

Report dated 26-6-2010 and given his finding that

charge Nos.1(a), 1(b), 1(c), 1(d), 3, 4, 5 are proved and

the Charge Nos.1(e), 1(f), 1(g), 2, 6 and 7 are not proved.

During the enquiry proceedings the petitioner had

sought for assistance of legally trained personnel to act

as his defence assistance, the enquiring authority has

turned down the request of the petitioner without any

valid reasons. Further, the petitioner has also sought for

examination of the Administrator of the society to

disprove the charges leveled against the petitioner - and

the said request was also refused by the Enquiry Officer

for the reasons best known to the enquiring authority

and thereby caused prejudice to the petitioner. Hence

the principle of natural justice was not followed in the

enquiry proceedings by denying the petitioner to have

defence assistance of his choice and also disallowed

petitioner request to examine the Administrator of the

society to disprove the charges leveled against the

petitioner. Further the enquiring authority without

appreciating the facts and circumstances of the case

and bye-laws of the respondent society in their proper

perspective has mechanically held that the charges were

proved and returned a verdict of guilt that charge

Nos.1(a), 1(b), 1(c), 1(d), 3, 4, 5 are proved and the

Charge Nos.1(e), 1(f), 1(g), 2, 6 and 7 are not proved.

The respondent society was under the management of

a duly constituted Board of Directors and as the

Secretary of the society the petitioner workman was

bound by the decision of the Board of Directors. The

petitioner has been made as a scapegoat for all the

decisions of the Board and also the dereliction of the

other staff members. The petitioner is not a sanctioning

authority in the respondent society and the ultimate

authority vested with the Board of Directors and all the

business activities of the society were ratified by the

General Body and by the Board of Directors time to

time, accordingly the charges leveled against the

petitioner will not survive.

456

LA GAZETTE DE L’ETAT

[30 June 2015

The charges framed against the petitioner were

totally motivated on bias and ill-will and the respondent

society had taken the lapses pointed out by the audit

for which the petitioner could not be held responsible

for such lapses. The petitioner has been victimized on

account of his non co-operation with certain

functionaries of the Board and his refusal to toe their

line to meet their personal ends. The nature of the

charges and the way in which the petitioner has been

held to be lacking in devotion to duty after having

served the society for more than thirty years from

14-11-1980 would eloquently speak that the dismissal of

the petitioner from service is unjustified and is an act of

victimization. It is relevant to point out that the charges

alleged against the petitioner did not involve any

misconduct involving lack of integrity or honesty like

embezzlement and misappropriation of the funds of the

society.

The respondent society forwarded the copy of the

enquiry report together with a show cause memorandum to

the petitioner vide Ref. No.JSCTCS/Estt/(1)/2008, dated

17-7-2010. The disciplinary authority of the respondent

society even without going through the enquiry report

properly had issued the aforesaid memorandum that all

the charges framed under charge sheet, dated 27-8-2008

against the petitioner stands proved will speak extent of

non-application mind while issuing the second show

cause memorandum to the petitioner. Thereafter the

petitioner submitted his detailed written explanation,

dated 30-7-2010 to the show cause memorandum. After

the receipt of the petitioner's explanation the respondent

society passed an order of dismissal from service vide

their Order No. JSCTCS/Estt/(1)/2008, dated 12-8-2010.

In the aforesaid dismissal order the r es p o nd en t

society had also deferred the order in respect of

the charge memorandum, dated 2-9-2009 on account of

imposition of major penalty of dismissal from service.

The petitioner had put in 28 years of service in the

society and one year's audit report pointing out

irregularities not involving misappropriation and things

like that cannot be a ground to dismiss the petitioner.

The

punishment

imposed

is

therefore

quite

disproportionate to the charges leveled against the

petitioner. The appellate authority has not applied his

mind and passed a reasoned order on the grounds of

appeal which is mandatory in law. The order of the

appellate authority which is professed to have been

passed after detailed discussion in the Board meeting is

also not supported by reason. Eventhough the petitioner

workman asked for a copy of the proceedings of the

Board through a lawyer notice, dated 17-3-2011 the

respondent management has not sent a reply to the

notice.

The order of dismissal from service is totally

disproportionate to the charges leveled against the

petitioner and the dismissal order, dated 12-8-2010 was

passed without application of mind by the disciplinary

authority and also by the appellate authority of the

respondent society and the respondent society failed to

follow the principles of natural justice.

For the reasons stated above, it is prayed that this

court may be pleased to pass an award setting aside the

order of dismissal from service, dated 12-8-2010 issued

by the respondent society and further declare that the

petitioner is deemed to be continued in service till the

date of superannuation with full back wages and other

statutory benefits provided under the social welfare

legislation and justice be rendered.

3. Per contra, traversing the averments the claim

statement, the respondent filed the counter with the

averments which runs thus:–

The claim statement filed by the petitioner is not

maintainable either in law or on facts and liable to be

dismissed.

The duties and responsibilities attached to the post

of Secretary of the respondent society would make it

abundantly clear that the Secretary of the society is the

chief executive of the society and functions in a managerial

capacity. The petitioner was holding the post of

Secretary in the respondent society and he is not

a workman within the meaning of section 2(s) of the

Industrial Disputes Act, 1947 and therefore the dispute

raised by him was not a valid dispute as he is not

a workman who is competent to raise a dispute and the

reference is bad in law.

T he ab o ve co ntentio n, it is sub mitted that

Mr. A. Neelakandan, Former Secretary of JIPMER Staff

Co-opeative Thrift and Credit Society Limited, the

petitioner herein was charge sheeted vide charge sheet

No. JSCCS/Estt/1/2008, dated 27-8-2008 by the

management of the respondent society for committing

the misconduct of willful failure in the discharge of

duties entrusted to him, acting prejudicially against the

interest of the society, gross negligence in the discharge

of duties, furnishing false statements, failure to maintain

secrecy regarding society's affairs, neglect of work,

commission of irregularities with regard to the business

of the society, abetment to cause deficiency to the

assets of the society, failure to abide the rules and bye-

laws, failure to maintain the true accounts of the

society, dishonest act in connection with the society's

business and failure to maintain integrity and devotion

to duty.

457

30 June 2015]

LA GAZETTE DE L’ETAT

The petitioner submitted his explanation, dated

1-9-2008 and having not satisfied with his explanation

the management appointed Mr. G. Krishnan, Advocate as

Enquiry Officer to conduct an enquiry into the charges

leveled against the petitioner and submit his report.

The enquiry proceedings commenced on 5-12-2008 and

concluded on 17-5-2010 which itself would establish the

reasonable and sufficient opportunities provided by the

Enquiry Officer to the petitioner to defend himself

in the enquiry. The allegation that the Enquiry Officer

has violated the principle of natural justice is an

allegation created for the purpose of raising dispute

which does not deserve any consideration either

factually or legally.

The Enquiry Officer has meticulously followed the

principles of natural justice at every stages of the

enquiry and he has provided the required opportunities

to the petitioner to cross-examine the management

witnesses, to submit his statement, to examine his

witnesses, to receive the copies of all the documents as

required by him from the management. The Enquiry

Officer has also summoned the witnesses as requested

by the petitioner for his defence, provided the copies of

the enquiry proceedings immediately to the petitioner

and allowed him to file his written submission after

examination of witnesses. Having utilised all these

opportunities provided to defend himself in the enquiry

the petitioner cannot turn around and allege that the

Enquiry Officer has violated the principles of natural

justice.

The allegation that the request of the petitioner to

have the assistance of legally trained personnel as his

defence assistance was turned down by the enquiry

authority without any valid reasons is baseless and

unsustainable. The application filed by the petitioner to

the Enquiry Officer to permit him to engage an

Advocate for the purpose of defence in the enquiry was

not allowed by the Enquiry Officer on the ground that

the Presenting Officer Mr. R. Durai representing the

management was neither a Lawyer nor a legally qualified/

trained person and has no previous experience of

participation in the domestic enquiry and that the

petitioner has also not shown any special reason to

permit an Advocate in the enquiry and that the charges

framed against the petitioner are mainly based on

documents which were handled by the petitioner himself

in the capacity of secretary of the society. The petitioner

has accepted the order of the Enquiry Officer and

subsequently has filed another application to engage

one Mr. Ranganathan for the purpose of defence in the

enquiry but the petitioner himself has admitted during

the enquiry proceedings that the said Ranganathan was

not a co-employee but only a 'B' class member of the

society and hence the said application was also not

considered by the Enquiry Officer.

The Enquiry Officer by enquiry report, dated

26-6-2010 has held that the following charges leveled

against the petitioner were established by the

management in the enquiry.

1. That the charged officer has failed to properly

guide the Board of Director regarding the bye-law

provision No. IX (11) that prior permission should be

obtained from the Registrar for the huge expenditure

of ` 2,15,632 incurred for the General Body meeting

convened on 28-5-2003.

2. That the charged officer has not maintained

properly the furniture account and thus failed to keep

the true account of assets and liabilities of the

society.

3. That the charged officer has failed to abide the

bye-laws of the society and to help the treasurer to

take a decision in accordance with the bye-laws in

respect of the refund to thrift deposit and thrift fixed

deposit.

4. That the charged officer has violated the

subsidiary regulation 15(1).

5. That the charged officer by his letter, dated

9-1-2008 has misinformed the management about the

incident of locking the society on 9-1-2008.

6. That the charged officer has failed to bring to

the notice of the Administrator and suppressed the

receipt of the important circular, dated 27-7-2007

issued by the Registrar of Co-operative Societies

and has also failed to implement the Registrar's

instructions in the society.

7. That the charged officer has willfully failed to

examine the loan applications and failed to ensure

whether they fall within the norms prescribed in the

loan rules and that he has failed to guide the

treasurer in his day-to-day administration and

executive administration of the society.

8. That the charged officer has, shown favoritism

to the member Mr. Iyappan and issued N.O.C. before

realization of the cheque and that he has

intentionally failed to safe guard the assets of the

society.

On careful consideration of the enquiry report it was

found that the Enquiry Officer has properly followed the

principles of natural justice in the enquiry proceedings

by providing the delinquent reasonable opportunities to

appear and defend in the enquiry. A show cause

memorandum, dated 17-7-2010 along with copy of the

enquiry report was issued to the petitioner calling upon

him to submit his written explanation as to why the

458

LA GAZETTE DE L’ETAT

[30 June 2015

enquiry report, dated 26-6-2010 should not be accepted

in its entirety for imposing major penalty. The petitioner

has submitted a written explanation, dated 30-7-2010

wherein, he has prayed for sympathetic consideration of

his case and requested for dropping all the actions

contemplated against him.

The management on thorough perusal of the enquiry

report, enquiry proceedings and the written explanation,

dated 30-7-2010 submitted by the petitioner concurred

fully with the findings of the Enquiry Officer in respect

of the charges leveled against the petitioner in the

charge sheet, dated 27-8-2008 and as the charges were

serious in nature causing loss to the Society on

account of the petitioner misusing his official position

and had acted in a manner unbecoming of an employee

of the society, the confidence imposes on him by the

society was totally lost and the activities of the

petitioner could not be entertained even remotely since

by his proved misconduct he became unfit to hold such

a responsible position in the society.

The management has taken into consideration of the

gravity of the charges and loss of confidence and

decided that the petitioner deserves to be imposed with

a major penalty as contemplated under Chapter VIII rule

29(n) of the Subsidiary Regulation of the JIPMER Staff

Co-operative Thrift and Credit Society Ltd., and

accordingly dismissed him from the service by order of

dismissal, dated 12-8-2010.

The petitioner had acknowledged the receipt of the

order of dismissal and filed an appeal, dated 23-9-2010

under Regulation 32(3) of the JIPMER Staff

Co-operative Thrift and Credit Society Limited,

Employees Service Regulations before the Appellate

Authority (Board) of the JIPMER Staff Co-operative

Thrift and Credit Society Limited. The ground of the

Memorandum of Appeal was discussed by the Board of

Directors in the meeting held on 11-1-2011 and after

detailed discussion of the grounds of Memorandum of

Appeal by the Board the appeal for reinstatement was

declined and the penalty imposes on the petitioner by

the disciplinary authority was upheld and the same was

conveyed to the petitioner by order, dated 4-2-2011.

The allegations made by the petitioner in his claim

statement that the charges framed against him were

totally motivated on bias and ill-will and that he has

been victimized on account of his non-cooperation with

certain functionaries of the Board and his refusal to toe

their line to meet their personal ends and that the order

of dismissal from service is totally disproportionate to

the charges leveled against the petitioner and that the

inquiring authority without appreciating the facts and

circumstances of the case and bye-laws of the

respondent society in their proper perspective has

mechanically held that the charges were proved and

returned a verdict of guilt the charges Nos.1(a), 1(b),

1(c), 1(d), 3, 4, 5 are proved and the Charge Nos.1(e),

1(f), 1(g), 2, 6 and 7 are not proved and that the dismissal

order, dated 12-8-2010 was passed without application

of mind by the disciplinary authority and also by the

appellate authority of the respondent society of the

petitioner are totally false, baseless and unsustainable.

It is not out of place to reproduce the admission of

the petitioner made in his explanation in respect of the

charges leveled against him which reads as follows:

"I am not refuting them but say that they are not

of any serious nature and when compared to any

other society, the points brought out as charges in

our society are too small to be blown to this extent."

The punishment of dismissal from service is

proportionate to the gravity of the misconduct and is

just and fair. The proved misconduct of the petitioner

does not warrant a lenient view except that of dismissal

from the service. The management has lost confidence

in the petitioner who misconducted himself by

committing various acts prejudicial to the interest of the

respondent society which made it unsafe for the

management to retain him in service. The proved

charges are by themselves sufficiently grave warranting

imposition of maximum penalty and hence the reliefs

sought by the petitioner to pass an award setting aside

the order of dismissal from service, dated 12-8-2010

issued by the respondent society and further to declare

that the petitioner is deemed to continue in service till

date of superannuation with full back wages and other

statutory benefits provided under the social welfare

legislation are devoid of merits and do not deserve any

consideration either factually or legally.

All the other allegations which have not been

specifically admitted herein are hereby denied.

4. On the side of the petitioner, P.W.1 was examined,

and the side of the respondent R.W.1 was examined, on

the petitioner side Ex.P1 to Ex.P9 were marked. On the

side of the respondent, Ex.R1 to Ex.R15 were marked.

5.

The point for consideration is:

Whether the industrial dispute can be allowed?

or not?

6. On this point:

5. Both sides heard. It was submitted by the counsel

for the petitioner that the petitioner was appointed as

an employee of the respondent management from the

date of 14-11-1980 as clerk. The petitioner put hard work

in the respondent management organization and was

459

30 June 2015]

LA GAZETTE DE L’ETAT

placed to the level of Secretary of the respondent

society from the date of 25-2-2000. However, the

petitioner was suspended from service from the date of

23-7-2008 and a charge sheet was issued to the

petitioner, dated 27-8-2008, domestic enquiry was

conducted, following the findings of the domestic

enquiry, the petitioner was removed from service.

The action taken by the respondent management

authorities was not valid in law. The petitioner did not

commit any lapses or negligence in his duty as alleged

by the respondent management. The matter was referred

to the conciliation officer, the conciliation was not

fruitful to the petitioner. Hence this petition.

7. It was submitted by the respondent counsel that

the petitioner was working as a Secretary of the

respondent society and was a paid employee and was

responsible for the day-to-day administration of the

society. The petitioner was placed under suspension by

the respondent society for his misconduct pending

domestic enquiry. The concerned Enquiry Officer had

found that the charges leveled against the petitioner

were proved and a report was filed to that effect.

The respondent herein had filed a petition as to find out

the validity of the domestic enquiry report conducted

against the petitioner herein. The said petition was

heard by this Tribunal in IA 52/2013 and the Tribunal

comes to the conclusion that the enquiry conducted by

the respondent management authorities was fair and

proper as decided in the said I.A.52/2013. On the basis

of the enquiry conducted by the respondent management

authorities, the petitioner was found, committed

misconduct as decided by the Enquiry Officer marked as

Ex.P3 and Ex.R7. Hence, the petition is not maintainable

in law. The same is to be dismissed.

8. After hearing both sides, records were perused. On

perusal it comes to light, on behalf of the petitioner

only one witness was examined as P.W.1 and Ex.P1 to P9

were marked. On behalf of the respondent, RW1 was

examined and Ex.R1 to R15 were marked.

9. On the basis of the submission of the counsel for

the respondent that the petitioner was charge sheeted

for his misconduct and the domestic enquiry was

conducted and the charges leveled against the

petitioner was proved, the respondent management had

taken the action of dismissal of the petitioner from his

service, a perusal of the evidence of P.W.1, at the time

of cross-examination who would say as follows (relevant

portion):-

“







I.A. No. 52/2013 





































”.

Accordingly a perusal of the Ex.P3 and R7 would

reveal the fact that the petitioner was subject to the

domestic enquiry and the charges leveled against the

petitioner were proved as found in the enquiry report

filed by the Enquiry Officer which was marked as Ex.P3

and R7 as mentioned thereon. A perusal of the records

would also reveal the fact that the petition was filed by

the respondent management was taken on file by this

Tribunal in I.A. 52/2013, wherein, it has been decided

by this Tribunal that the domestic enquiry conducted

by the management, namely, the respondent management

authorities was fair and proper and also it was admitted

by the petitioner himself that there was no appeal

against the order of this Tribunal passed in I. A. 52/2013,

dated 17-6-2013.

10. It has been held in a case as reported in 2010-III-

LLJ-298 (Allahabad) as follows:-

"Dismissal - From service - Bank Manager dismissed

from service after holding charges proved - Allegations

relate to sanction of loan, violation of bank guidelines

etc., - Disciplinary as well as/appellate authority

found that charges established and punishment

imposed based on proved allegations and charges

commensurate with misconduct - Interference under

judicial review not permissible".

A careful observation of the above said ruling,

wherein, it has been clearly held that dismissal from

service after holding charges proved, disciplinary as

well as/appellate authority found that charges

established, interference under judicial review not

permissible. In the light of the above said ruling,

a perusal of the records on hand, the court decided on

a considered view that the above said proposition of law

laid down by the Hon'ble High Court is also squarely

applicable to the given case. Because, in this case also

the Enquiry Officer and the appellate authority had

concurrently found that the charges leveled against the

petitioner was proved and the petitioner was not

suitable for his service in the respondent management

society for his misconduct. The enquiry report made by

' the concerned Enquiry Officer was also verified by this

Tribunal as decided in I.A.52/2013, dated 17-6-2013.

460

LA GAZETTE DE L’ETAT

[30 June 2015

Hence, the court decided on a considered view, that

there is no reason to interfere with the decision of the

disciplinary authority of the respondent management

society and the petition is not maintainable in law.

The same is to be rejected.

11. In the result the reference made in G.O. 74/2012,

dated 9-5-2012 was to be closed, as Thiru Neelakandan,

who was a petitioner, is not entitled for any relief and

the action taken by the management of M/s. JIPMER

Staff Co-operative Thrift and Credit Society was

justifiable. Accordingly it is ordered.

Typed to my dictation, corrected and pronounced

by me in the open court on this the 30th day of

December, 2014.

G. DHANARAJ,

Presiding Officer, Labour Court,

Pondicherry.

————

List of petitioner's witness:

P.W.1 — 3-7-2013 — A. Neelakandan

List of respondent's witness:

RW1— 28-3-2014 — R. Durai

List of petitioner's exhibits:

Ex.P1 — Photocopy of the charge sheet issued

from the respondent to the petitioner,

dated 27-8-2008.

Ex.P2 — Copy of the reply to charge sheet submitted

by the petitioner to the management, dated

1-9-2008.

Ex.P3 — Copy of the enquiry report submitted by

the Enquiry Officer Mr. G. Krishnan, dated

26-6-2010.

Ex.P4 — Copy of the reply to the enquiry report

submitted by the petitioner to the

management, dated 30-7-2010.

Ex.P5 — Copy of the dismissal order issued from

the respondent to the petitioner, dated

12-8-2010.

Ex.P6 — Photocopy of the memorandum of appeal

before the appellate authority, dated 23-9-2010.

Ex.P7 — Copy of the order of the appellate

authority issued to the petitioner dated

4-2-2011.

Ex.P8 — Copy of the lawyer notice issued on

behalf of the petitioner to the management

dated 17-3-2011.

Ex.P9 — Copy of the reply to lawyer notice issued

by the respondent, dated 29-3-2011.

List of respondent’s exhibits;

Ex.R1 — Copy of the charge sheet issued from the

petitioner to the respondent, dated 27-8-2008.

Ex.R2 — Copy of the explanation submitted by the

respondent/petitioner, dated 1-9-2008.

Ex.R3 — Copy of the enquiry proceedings recorded

from 5-12–2008 to 17-5-2010 (pages 1 to 74).

Ex.R4 — Copy of the deposition as recorded in the

enquiry proceedings.

Ex.R5 — Copy of the written argument submitted by

the petitioner/respondent in the enquiry

proceedings, dated 3-5-2010.

Ex.R6 — Copy of the written argument submitted by

the respondent/petitioner in the enquiry

proceedings, dated 17-5-2010.

Ex.R7 — Copy of the enquiry report submitted by

the Enquiry Officer, dated 26-6-2010.

Ex.R8 — Copy of the show cause memorandum

issued by the petitioner/respondent,

dated 17-7-2010.

Ex.R9 — Copy of the explanation submitted by the

respondent/petitioner, petitioner/respondent,

dated 30-7-2010.

Ex.R10 — Copy of the order of dismissal, dated

12-8-2010.

Ex.R11 — Copy of the appeal filed by the respondent/

petitioner before the appellate authority

dated 23-9-2010.

Ex.R12 — Copy of the order passed in the appeal

dated 4-2-2011.

Ex.R13 — Copy of the audit report for the period from

1997-1998 to 2007-2008 of the respondent

society.

Ex.R14 — Copy of the bye-laws of the respondent

society.

Ex.R15 — Copy of the subsidiary regulations

governing the service conditions of the

employees of the society.

G. DHANARAJ,

Presiding Officer, Labour Court,

Pondicherry.