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.
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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
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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.