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[31 May 2016
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 34/Lab./AIL/T/2016, dated 6th May 2016)
NOTIFICATION
Whereas, an award in I.D. (L) No.15/2014, dated
31-3-2016 of the Labour Court, Puducherry in respect
of the industrial dispute between the management of
M/s. Abirami Soap Works, Sembiapalayam Village,
Puducherry and its workman Thiru E. Arun 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 the Secretary to Government (Labour), that the said
award shall be published in the Official Gazette,
Puducherry.
(By order)
E. VALLAVAN,
Commissioner of Labour-cum-
Additional Secretary to Government (Labour).
————
BEFORE THE LABOUR COURT AT PONDICHERRY
Present : Thiru N. SIVAKUMAR, B.A., M.L.,
Presiding Officer, Labour Court.
Thursday, the 31st day of March 2016
I.D. (L) No. 15/2014
E. Arun,
S/o. Elumalai,
4th Cross Street,
Thirumalai Nagar, Mangalam Post,
Mangalam, Pondicherry.
. . Petitioner
Verses
The Managing Director,
M/s. Abirami Soap Works,
R.S. N0. 93/1A1 B2,
Sembiapalayam village,
Korkadu Post, Pondicherry.
. . Respondent.
This industrial dispute coming on 17-3-2016 for final
hearing before me in the presence of Tvl. S. Asokumar,
P. Sam Japa Singh and A. Sakthivel, Counsel for the
petitioner, Tvl. R. Ilancheliyan and R. Thilagavathi,
Counsel for the respondent and upon hearing both
sides, perusing the case records and having stood over
till this day for consideration, this Court delivered the
following:
AWARD
This industrial dispute has been referred as per the
G.O. Rt. No. 33/ AIL/Lab./J/2014, dated 5-3-2014 for
adjudicating the following:-
(1) Whether the dispute raised by Thiru E. Arun
against the management of M/s. Abirami Soap Works,
Sembiapalayam village, Korkadu Post, Puducherry
over his non-employment is justified? If justified,
what relief he is entitled to?
(2) To compute the relief, if any awarded in terms
of money, if it can be so computed?
2. The averments made in the claim statement are
briefly stated as follows:-
2(i) The petitioner namely, E. Arun, has been working
with the respondent company for the last six years and
he rendered service with utmost sincerity. During the
course of his employment, the petitioner did not give
any room for any wrong things. There is a union,
namely, Abirami Soap Works Thozhilalar Viduthalai
Munnai functioning in the factory. The subscription
amounts of the members regularly collected and paid
to the office bearers, namely, Thavamani, Santhamoorthy,
Thirumurugan and Selvam of the said trade union and
they used to spend the amount for their lavish
expenses. When the petitioner questioned about the
activities of the office bearers of the said sangam they
scolded and abused the petitioner and his family
members in foul language and also threatened him with
dire consequences. So, the petitioner lodged a complaint
before the Mangalam Police Station. As the petitioner
asked about the illegalities of the executive member of
the said trade union, a false police complaint on 29-10-2011
was lodged against the petitioner and with a view to
harass him some charges were framed and departmental
enquiry commenced. Without giving opportunity to the
petitioner to offer his explanation, he was suspended
temporarily by the management. No committee has been
formed in the industry, so, as to resolve the issues
arising among the labourers. During Departmental
enquiry proceedings the management did not permit the
petitioner to cross examine the witnesses of management
side. No opportunity was given to examine petitioner
side witness. The final statement of the petitioner was
not received by the disciplinary committee. The principle
of the natural justice was denied to the petitioner and
the findings of the disciplinary committee is one sided
and the same was against the petitioner. The letter,
dated 12-10-2012 sent by the petitioner was rejected,
and, on 22-10-2012 the petitioner was dismissed from
service. Only by stating false allegation the enquiry was
conducted and on the basis of the finding, the petitioner’s
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service has been terminated. So, the petitioner prays for
setting aside the report on failure of Conciliation, dated
3-2-2014 and consequently to the dismissal order, dated
2-10-2012 passed by the respondent management, and
also to direct the respondent management to reinstate
the petitioner with all backwages, attendant benefits
and thus render justice.
3. The averments made in the counter are briefly
stated as follows:-
3(i) On 19-10-2011 the petitioner without instruction
from his Supervisor directed to his co-worker Thiru
Santhamoorthy to do some other work. When the
co-worker Thiru Santhamoorthy refused to attend the
call on the petitioner, he abused him in foul language.
When the co-worker Thiru Santhamoorthy complained
to the Supervisor, the petitioner in the presence of
Supervisor again abused him in filthy language. Further,
on 22-10-2011 the petitioner along with his associates
went to the house of Thiru Santhamoorthy and
threatened him and his wife with dire consequences.
Further, the petitioner, on 29-10-2011 declined to do the
work allotted to him and also scolded and abused the
Manager by using foul language. The petitioner was
disobedient and never obeyed commands of his
Supervisors. So, on the basis of the complaint charges
were framed against the petitioner, and the neutral
person was appointed as the Enquiry Officer and he
conducted enquiry in a fair manner and submitted a
detailed report. The petitioner was given due
opportunity to participating enquiry proceedings and
put forth his case. As the charges framed against the
petitioner were proved and taking into accounts the
gravity of the charges the petitioner was terminated from
his service. There is no motivation and victimisation in
conducting enquiry against the petitioner and
consequently passing an order of termination. Petitioner
without taking part in the domestic enquiry has falsely
contended that the enquiry was not fairly conducted
and he was not given due opportunity. The petitioner
had indulged in gross-violation and misconduct and
intimated
co-worker
and
caused
reduction
of
production. The attitude and behavior of the petitioner
in the presence of female workers was indecent and
condemnable. Only on the basis of the enquiry report
the petitioner was dismissed from service. The petitioner
is not entitled to claim reinstatement with backwages
and other attendant benefits. The claim of the petitioner
is devoid of merits and liable to be dismissed.
4. On the side of the petitioner Thiru E. Arun
(Petitioner) has been examined as PW.1 and Ex.P1 to P62
were marked. Thiru O.P. Sanjay Madan, General Manager
of the respondent management has been examined as
RW.1 and Ex.R1 to R18 were marked.
5. The point for consideration:
(1) Whether the departmental enquiry proceeding
against the petitioner was not conducted in a fair and
proper manner by observing principles of natural
justice?
(2) Whether the service of the petitioner has been
terminated illegally and unjustifiably by the
management? If so, what relief he is entitled to and
what directions are necessary in this respect?
6. On this point:
The petitioner Thiru E. Arun was appointed as a
labour in the respondent management, namely, Abirami
Soap Works. The respondent is engaged in manufacturing
of washing soaps, detergents and detergent powder,
etc., Admittedly, the petitioner was working as a permanent
employee in the respondent industry.
7. On 19-10-2011 at about 10.00 a.m. when the
co-worker of the petitioner, namely, Thiru Santhamoorthy
engaged in duty the petitioner asked him to leave his
work and to accompany him to do some other work.
When the said Thiru Santhamoorthy declined to accompany
the petitioner he scolded the co-worker in foul language
with dire consequences. The matter was reported to
Supervisor Thiru M. Rajendiran who enquired both
workers and submitted Ex.P1 (Ex.R1) report, dated
19-10-2011 to the management to take necessary action
against the petitioner.
8. In consequence of the quarrel with Thiru
Santhamoorthy, the petitioner along with his associates
went to Santhamoorthy's house on the evening of
22-10-2002 and scolded and abused him in filthy
language and also intimated his wife. The said Thiru
Santhamoorthy has lodged Ex.P2 (Ex.R2) complaint, dated
22-10-2002 management for initiating necessary action
against the petitioner. So, the management issued Ex.P3
(Ex.R3) show cause notice, dated 29-10-2011 calling for
explanation from the petitioner. The petitioner after
getting extension of time submitted Ex.P6 (Ex.R5)
explanation, dated 7-11-2011 denying all the complaints
levelled against him. As the explanation submitted by
the petitioner was not satisfactory, the respondent
management issued Ex.P7 memo., dated 15-11-2011
stating that departmental enquiry would be initiated
against the petitioner. Thereafter, the petitioner has sent
Ex.P8 complaint, dated 19-12-2011 against the some of
the co-workers and also he preferred Ex.P9 complaint,
dated 21-12-2011 before the Sub-Inspector of Police,
Karaikal Police Station. The management appointed
Thiru R. Mugundhan, Advocate and Notary Public as
the Enquiry Officer and informed the same to the
petitioner as per Ex.P11 memo.
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[31 May 2016
9. On 29-12-2011, during second shift a new machine
was installed and started for trial running and at the
time Supervisor S. Ramesh Kumar directed the petitioner
and other workers to do alternative work since they
had no work in the production department. At the time
the petitioner in utter disobedience refused to attend
the alternative work and argued with his supervisor and
also scolded him. So, Supervisor S. Ramesh Kumar
submitted Ex.P12 report to the management narrating
the events. The co-workers of the petitioner have also
signed in another report prepared by Supervisors
S. Ramesh Kumar and copy of the same is marked as
Ex.P13 (Ex.R7). As the petitioner blatantly disobedient
the order of the Supervisor, a fine of ` 5 was imposed
on him and he paid the fine amount and the copy of
the fine register is marked as Ex.P15. As the petitioner
was disobedient and misbehaved with his Supervisor
and co-workers, he was placed under suspension with
effect from 19-1-2002 and the copy of the suspension
under, dated 18-1-2012 is produced as Ex.P16 (Ex.R8).
Ex.P17 (Ex.R9), dated 21-1-2012, Ex.P18 (Ex.R10), dated
25-1-2012 are the representations of the petitioner
seeking extension of time for submitting explanation.
As per Ex.P19 (Ex.R11) memo., dated 27-1-2012 time to
submit explanation by the petitioner was extended by
five days. The petitioner has denied the charges leveled
against him and sent Ex.P20 (Ex.R12) letter, dated
30-1-2012 to the General Manager. The explanation
offered by the petitioner was not satisfactory, so, the
management was decided to proceed enquiry against
him and accordingly Ex.P21 (Ex.R13) charge-sheet,
dated 6-2-2012 was prepared and sent to the
petitioner's address. In the meantime, the petitioner sent
Ex.P22, dated 9-2-2012 and Ex.P23, dated 10-2-2012
letters seeking for payment of subsistence allowance.
The respondent has sent Ex.P23 reply, dated 10-2-2012
stating that his subsistence allowance is available in
the office and he may collect it at any time.
10. The Enquiry Officer has sent Ex.P24 notice, dated
8-3-2012 to the petitioner stating that it was proposed
to conduct the departmental enquiry on 17-3-2012
at 10.30 hours in the first floor of the building bearing
Door No. 34 at 100 feet road, Ellaipillaichavady, Puducherry
and the petitioner was required to appear for the
enquiry without fail. The petitioner has sent Ex.P26
letter, dated 15-3-2012 stating that his grandmother was
on death bed, so, he could not appear for enquiry, dated
17-3-2012. Ex.P27 is the receipt issued at the burial
ground to show that petitioner's grandmother died on
17-3-2012. The Enquiry Officer adjourned the enquiry
proceedings to 7-4-2012 and issued notice to the
petitioner to appear on the hearing date. On 7-4-2012,
the petitioner appeared before the Enquiry Officer and
he was questioned regarding the charges levelled against
and the petitioner denied all the charges. As the
petitioner represented that he did not know the enquiry
proceedings, the enquiry officer explained him about the
departmental enquiry proceedings in detail. The enquiry
was posted to 14-4-2012 for production of documents
and list of witnesses by both sides. Again the enquiry
was adjourned to 21-2-2012 and on that day the
petitioner had submitted a requisition seeking permission
to appoint a Lawyer to defend him. It was objected by
the representative of the respondent, namely, Thiru
Suresh by stating that as he was not a Lawyer nor law
graduate, so the worker (petitioner) should not be
permitted to engage a Lawyer and this position was
explained to the worker. So, the Enquiry Officer decided
not to permit the petitioner to engage a Lawyer to defend
the petitioner.
11. The respondent management as a delinquent
authority submitted 12 documents marked as Ex.M1 to
M12 during the enquiry proceedings. Thereafter, the
enquiry was adjourned to 5-5-2012 for cross-examination
of witnesses. The petitioner did not appear before the
Enquiry Officer on 5-5-2012. According to the petitioner
as he was not doing well he could not participate in the
enquiry proceedings. So, the Enquiry Officer with a view
to give a chance to the petitioner, to adduce oral
evidence of management side witnesses in his presence
adjourned the enquiry proceedings to 14-5-2012. On
14-5-2012, five witnesses, namely, (1) Santhamoorthy, (2)
Rajendiran, (3) S. Ramesh Kumar, (4) R. Sivakumar and
(5) M. Subramanian were examined as MW.1 to MW5
respectively on respondent side and their statements
were recorded. The enquiry was adjourned to 16-5-2012
for cross-examination of management side witnesses by
the petitioner.
12. On 16-5-2012 the above said five witnesses were
present but, the petitioner did not appear, so the Enquiry
Officer adjourned the proceedings to 23-5-2012 as last
chance for cross-examination of the management
witnesses by the petitioner. On 23-5-2012 the petitioner
submitted an application seeking permission to cross-
examine the representative of the respondent management,
namely, Thiru G. Suresh but, the request was declined by
the Enquiry Officer. Further, the petitioner submitted
another application seeking for copy of the certified
standing order. On the next hearing, date on 28-5-2012
the copy of the certified standing order was furnished to
the petitioner and the enquiry was adjourned to 19-6-2012.
In the meantime the petitioner sought for Tamil translated
copy of the certified standing orders, so, on 9-6-2012,
the certified standing order translated in Tamil was
furnished to the petitioner, but, he refused to receive
the same. So, the Enquiry Officer directed to send the
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certified standing order in Tamil language to the
petitioner by registered post and adjourned the enquiry
to 15-6-2012. As the petitioner represented that certified
copy in Tamil was not received time, in another copy
was furnished to him on the same day. The witnesses
examined on the side of the management were present
on 15-6-2012 but, the petitioner was not ready to cross-
examine the witnesses again the enquiry was adjourned
to 26-12-2012, for cross-examination of management side
witnesses. On 23-1-2012, the petitioner insisted for
cross-examination of the representative of the
management, but, it was not accepted by the Enquiry
Officer. The petitioner was stubborn in cross-examining
representative of the management as his request was
turn down by the Enquiry Officer. The petitioner did
not cross-examine the witnesses of the management. So,
the Enquiry Officer recorded that cross-examination of
management side witnesses was closed and posted the
enquiry to 30-6-2012 for recording the evidence of
petitioner side. On 30-6-2012 the petitioner did not
appear on time and informed that he would come late
since his two wheeler punctured but, the petitioner did
not appear again so the enquiry was adjourned to 7-7-2012.
In the meantime, the petitioner had sent a letter, dated
30-6-2012 alleging that the Enquiry Officer was unfair
and biased and not properly recording the evidence.
The enquiry officer has recorded his explanations in the
proceedings, dated 7-7-2012 for all the allegations raised
by the petitioner. The petitioner assured that he would
bring his witnesses on the next hearing, so the enquiry
was adjourned to 14-7-2012. On 14-7-2012 the
documents produced by the petitioner were marked as
Ex.W1 to W7, and the petitioner represented that the
co-workers afraid of victimisation if they come forward
to depose on behalf of him. So, the petitioner sought
for an undertaking from the management that no worker
would be victimized if they depose in his favour. The
representative of the management submitted that no
worker would be penalised or victimised if he deposed
in any departmental enquiry. So, the enquiry was
adjourned to 21-7-2012 for production of petitioner side
witnesses, but, on 21-7-2012 the petitioner was absent
and failed to produce his witnesses. So, the Enquiry
Officer was no other option except to close recording
evidence. The copy of the enquiry proceedings is
marked as Ex.P51 (Ex.R14).
13. The learned Counsel for the petitioner vehemently
argued that the departmental enquiry was not conducted
in a fair and proper manner and the Enquiry Officer
violated the principles of natural justice. The petitioner
was not given due opportunity to cross-examine the
witnesses of management side and also to adduce his
side witness. Despite repeated requests made by the
petitioner the Enquiry Officer blatantly refused to the
permission to engage a Lawyer to defend him. The
Enquiry Officer conducted the proceedings in biased
manner, so the enquiry report is vitiated. Further, the
punishment of dismissal from service imposed on the
petitioner is disproportionate to the charges levelled
against him.
14. Per contra, the learned Counsel for the respondent
management submitted that the petitioner was working
as a daily rated employee and he was in the habit of
committing various misconducts. With a view to spoiling
the industrial harmony and peace, on 19-10-2011, the
petitioner instructed his co-worker Thiru Santhamoorthi
to share his work without obtaining any permission from
the Supervisor. When, the co-worker refused, the
petitioner scolded him in foul language. When, the
Supervisor interfered and advised the petitioner he
started to abuse and quarrel with the co-worker in front
of the Supervisor. So, a complaint from the co-worker
and a report of the Supervisor were submitted to the
management. When, the show cause notice was issued
to the petitioner, he sent a reply and it was found
unsatisfactory, so, he was placed under suspension. After
framing charges (Ex.P21) Advocate Thiru R. Mugundan
a neutral person was appointed as the Enquiry Officer
who conducted the enquiry by strictly observing the
principles of natural justice. During enquiry, the
petitioner unnecessarily asked to cross-examine the
representative of the management. Thiru G. Suresh who
was not at all examined as a witness on management
side. Despite several adjournments, made at the request
of the petitioner he was not ready to cross-examine the
management side witnesses and intentionally, prolonged
the proceedings. The petitioner levelled some
allegations against the Enquiry Officer who has
recorded explanations in the enquiry proceedings.
Further, the petitioner failed to examine any witness his
side. After considering the materials and evidence
placed on record by either side the Enquiry Officer has
found the charges stands proved. Thereafter, explanation
was called for from the petitioner and considering the
gravity of misconduct and misbehavior of the petitioner
he was dismissed from service.
15. Thiru Santhamoorthi, co-worker of the petitioner
lodged the complaint marked as Ex.P2 (Ex.R1) narrating
the occurrence that the petitioner scolded him in foul
language when, he refused to obey his commands. In
this regard, Supervisor M. Rajendiran has sent Ex.P1
Report. Further, the petitioner along with his associates
had gone to the house of co-worker Thiru Santhamoorthi
on the evening 22-10-2011 and threatened him and
his wife with dire consequences. If the co-worker
Thiru Santhamoorthy submitted Ex.P2 complaint to
the respondent for taking necessary action against the
petitioner.
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[31 May 2016
16. The management took serious note of the
misconduct of the petitioner and called for explanation
under Ex.P3 notice. The petitioner got extension of time
and finally submitted his explanation, Ex.P4 by denying
such an incident. The petitioner used to send several
complaints against his co-workers such as Ex.P8 and
Ex.P9 to the management. Further, he has lodged Ex.P10
and Ex.P11 Police complaint in Karikkalampakkam Police
Station against some of his co-workers (Executive
Member of Trade Union).
17. On 29-12-2011 during second shift when, the
petitioner was directed by the Supervisor to attend some
alternative work he blatantly refused and abused his
Supervisor. So, Ex.P12 report was sent to the management.
Further, the other co-workers who were on duty at the
time jointly submitted, Ex.P13 representation to the
management explaining the misbehavior of the petitioner.
It appears the petitioner was fined for his misbehavior
and Ex.P15 is the copy of the fined receipt. On considering
serious misconduct and misbehavior, he was placed
under suspension as per Ex.P16 suspension order.
Ex.P21 is the charge sheet, dated 6-2-2012, wherein,
seven specific charges have been framed against the
petitioner. The first charges relating to misbehavior of
the petitioner with his co-worker Santhamoorthi
on 19-10-2011. In furtherance of the same Act, the
Petitioner abused the said co-worker Santhamoorthi by
using filthy language is the second charge. The third
charge is that on 22-10-2011 the petitioner along with
his associates had gone to Santhamoorthi's house and
threatened him and his wife. The fourth charge is that
on 29-12-2011, the petitioner refused to do the
alternative work allotted to him by the Supervisor. The
fifth charge is that the petitioner abused his Supervisor
by using foul language. The sixth charge is that the
petitioner refused to do the work allotted to him and
remained idle and the seventh charge is that the
petitioner refused to obey the order of his Supervisors.
18. Admittedly, Thiru R. Mugundhan, Advocate and
Notary Public has been appointed as the Enquiry Officer.
During the course of departmental enquiry proceedings,
the petitioner has submitted several letters such as
Ex.P26, dated 15-3-2012, Ex.P31, dated 21-4-2012, Ex.P32,
dated 5-5-2012 and Ex.P48, dated 21-7-2012, Ex.P36,
dated 15-5-2012 seeking adjournment without any valid
reasons. Further, the petitioner has presented representations
such as Ex.P35, dated 15-5-2012, Ex.P37, dated 21-5-2012,
Ex.P39, dated 23-5-2012, Ex.P33, dated 7-5-2012 stating
that the Enquiry Officer was not properly conducting the
enquiry and alleging that he was biased in favour of
the management. The petitioner sought for cross-examination
of Thiru G. Suresh, Representative of the management
as per Ex.P39. The said G. Suresh is not a witness of
management side and he was presenting the case, on
behalf of the management. So, the Enquiry Officer
turned down the request of the petitioner to cross-examine
Thiru G. Suresh, representative of the management.
19. The petitioner sought for copy of the certified
standing order by presenting Ex.P39, dated 23-5-2012 to
the Enquiry Officer. Initially, the copy of the certified
standing order in English was furnished to the
petitioner. The petitioner by submitting Ex.P39
representation sought for copy of the certified standing
order and accordingly it was furnished. As the certified
standing order was in English again the petitioner
submitted Ex.P40, dated 30-5-2012 and sought for Tamil
version of certified standing order. Accordingly, the
copy of the certified standing order translated into
Tamil was given to the petitioner. The petitioner has
sent Ex.P43, dated 11-6-2012 to the General Manager of
the respondent alleging that the Enquiry Officer was not
conducting enquiry properly, and his request to examine
the representative of the management was refused
without any reason, and as the Enquiry Officer was
biased in favour of the management, he should be
changed and some other Enquiry Officer to be appointed.
Further, the petitioner has sent Ex.P44, dated 19-6-2012,
Ex.P45, dated 30-6-2012, Ex.P46, dated 7-7-2012
representations to the Enquiry Officer levelling some
allegations against the Enquiry Officer. But, the Enquiry
Officer has recorded his explanations in the enquiry
proceedings as seen from Ex.P51.
20. The petitioner represented that his co-workers
afraid of the management initiating proceedings against
them if they depose in favour of the petitioner before
the Enquiry Officer so they did not come forward to
depose on his behalf. Further, the petitioner sought for
management's assurance that no action will be taken
against the workers who come forward to testify by
petitioner's side. But, the petitioner has not given list
of witnesses to be examined on his side. As the
petitioner prolonged the matter without examining his
side witnesses recording evidence of petitioner side was
closed.
21. The Enquiry Officer on carefully perusing the
records and materials placed during the course of
enquiry and submitted his report, dated 11-9-2012
marked as Ex.P52 (Ex.R15) wherein, he has given finding
that all the charges framed against the petitioner stands
proved. In pursuance of the enquiry report, the
management issued Ex.P53 (Ex.R16) explanation notice,
dated 22-9-2012 from the petitioner again the petitioner
sought for time to submit his explanation by sending
Ex.P54 letter, dated 1-10-2012. Thereafter, the petitioner
submitted Ex.P56 (Ex.R17) explanation, dated 12-10-2012
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stating that the enquiry was not conducted in fair and
transparent manner, and the principles of natural justice
have been violated, and the enquiry report has been
prepared in biased manner and he did not commit any
misconduct. Not satisfying with the explanation offered
by the petitioner, he was dismissed from service by
order, dated 22-10-2012 marked as Ex.P57 (Ex.R18).
Thereafter, the petitioner has raised industrial dispute
before the Conciliation Officer by filing Ex.P59
representation, dated 28-1-2013 and the reply submitted
by the management is marked as Ex.P60, dated 25-2-2013.
As the conciliation ended in failure, Ex.P61 report, dated
3-2-2014 on failure of conciliation has been submitted
and consequently the reference has been sent to this
court for adjudication.
22. The learned Counsel for the petitioner submitted
the ruling reported in the case of Avinash Chandra
Sanjar Vs. Divisional Superintendent reported in (1962)
ILJ 7 Allahabad, "In support of his contention that if
the enquiry is not conducted in a fair manner by
observing the principles of natural justice the enquiry
report cannot be accepted".
But, the facts and circumstances discussed in the
above referred authority is not applicable to the case
in hand.
23.
Per Contra, the learned
Counsel for the
respondent management invited attention of this Court
that the petitioner's misbehavior with his co-worker and
his disobedience of superior's orders amounts to cross
misconduct and it is proved by the enquiry report, so,
he has been terminated from service. In support of his
contention he invited attention of this Court to the
following authorities:-
(1) 2015 LLR 464 Sh. Mohd. Azim Vs. Sarv UP
Gramin Bank:
"Refusal to obey the lawful instructions of
superior(s) is a serious and grave misconduct
justifying punishment of removal or dismissal from
service".
(2) 2016 LLR 72 Mani Lal Vs. Matchless Industries
of India:
Meaning of the word "misconduct on the basis of
dictionary meaning is 'improper behaviour’ i.e.,
intentional wrong doing or deliberate violation of a
rule of standard behavior"............
"Any conduct by an employee, inconsistent with
the faithful discharge of his duties towards his
employer, would be a misconduct"...............
"When the evidence on record reveals, that
domestic enquiry, by an Enquiry Officer, appointed
by the Disciplinary Authority of the employer, has
been conducted by adhering to the principles of
natural justice, interference by the Court, in the
enquiry finding, is not called for to substitute the
finding already concluded"................
(3) 2007 LLR 166 High Polymer Laboratories Vs.
Jagdish Chand and Anr.:
"Discipline at a work place in an organisation is a
sine quo non for the efficient working of the
organisation".................
"When an employee willfully disobeys the orders
of the supervisor and the employer terminates his
services, it is not open to a Labour Court or an
Industrial Tribunal to take the view that the
punishment awarded is shockingly disproportionate
to the charges proved".
24. The petitioner used to quarrel with his co-
workers and intentionally disobeyed orders of his
superiors and without stopping that the petitioner had
gone to his co-workers to Thiru Santhamoorthi house and
threatened him and his wife with dire consequences. The
learned Counsel for the petitioner pointed out that
Thiru Santhamoorthi has not lodged any police
complaint in respect of that incident that allegedly
occurred on 19-10-2011 and in fact he presented Ex.P2
complaint before the management only on 24-10-2011.
So, the belated complaint of Thiru Santhamoorthi i.e.,
Ex.P2 has been created and it cannot be taken into
account. In fact Thiru Santhamoorthi has been examined
as a witness (MW.1) during the departmental enquiry
and he has deposed about the occurrence and the
misbehavior of the petitioner in detail. Further, when the
petitioner disobeyed the order of his Supervisor and
abused him in the presence of some of the workers they
signed as witness in Ex.P13 report submitted by the
concerned superior, namely, S. Ramesh Kumar. Already
the petitioner was fined for his disobedience of his
superior's orders as seen from Ex.P15 fine receipt. Further,
the petitioner has sent several complaints against his
co-workers to the management and also lodged a police
complaint. As the petitioner's attitude behavior and
temperament was resulted in spoiling the industrial
harmony and peace and as his explanations were not
satisfactory, the management decided to conduct
departmental enquiry by appointing Thiru G. Mugundhan,
Advocate as the Enquiry Officer.
25. During the course of enquiry, the petitioner
sought several adjournments and insisted for cross
examination of the representative of the management
Thiru G. Suresh who was not at all examined as a
386
LA GAZETTE DE L’ETAT
[31 May 2016
witness. Further, the petitioner sought for copy of
certified standing order translated into Tamil and it was
also furnished. The management examined five witnesses
and produced seven documents. The petitioner though
participated in the proceedings, did not choose to
cross-examine the witnesses, and the petitioner failed
to produce his side witnesses for many hearings. The
petitioner has levelled some allegations against the
Enquiry Officer as if he did not conduct enquiry
proceedings in a fair manner by observing the principles
of natural justice. A perusal of Ex.P51 enquiry proceedings
would clearly demonstrate that the Enquiry Officer has
given reasonable chance and opportunity to the petitioner
to participate in the enquiry and to cross- examine
the witnesses examined by the management and also to
adduce his side evidence. But, the petitioner by adopting
delay tactics prolonged the enquiry and intentionally
failed to cross-examine the witnesses of the
management side and also not let in his side witnesses.
The Enquiry Officer has no other option except to
conclude the enquiry with available material placed on
record and carefully perusing them and submitted
Ex.P52 enquiry report, dated 11-9-2012 by holding that
all the charges formulated against the petitioner stands
proved. The respondent management taking into
account the gross misbehavior and gravity of the
misconduct committed by the petitioner and on the
basis of enquiry report decided to dismiss and
accordingly Ex.P57 dismissal order, dated 22-10-2012
was issued. The contention of the petitioner counsel
that the enquiry was not conducted in a fair manner and
the Enquiry Officer was biased in favour of the
management cannot be accepted. The petitioner has
levelled unreasonable and unbelievable allegations
against the Enquiry Officer but the Enquiry Officer has
submitted his explanations for such allegations in
enquiry proceedings (Ex.P51).
26. As the misbehavior and misconduct of the
petitioner spoiled the industrial harmony and resulted
in unrest among the workers, the management framed
charges against him, and conducted the enquiry.
Accordingly the enquiry has been conducted by the
Enquiry Officer in fair and proper manner and he has
submitted his report, (Ex.P52) by concluding that all the
charges against the petitioner stands proved. So, I hold
that the enquiry has been conducted in a fair manner
and the petitioner who participated throughout the
enquiry has deliberately failed to cross examine the
management side witnesses and also to examine his side
witnesses. Under such circumstances, I conclude that
the Enquiry Officer has conducted the enquiry in a fair
and proper manner by giving adequate opportunity to
the petitioner to participate in the enquiry proceedings
and also to record his side evidence. Hence, I answer
that the enquiry has been conducted in a fair and proper
manner by strictly observing the principles of natural
justice and nothing on record to hold that the enquiry
report is vitiated.
27. The learned Counsel for the petitioner argued that
the punishment of dismissal of service is shockingly,
disproportionate to the charges levelled against the
petitioner so, the punishment of dismissal may be
modified, to a lesser punishment. Strongly objecting to
interfere with the punishment imposed on the petitioner
by the management the learned counsel for the
respondent management argued that when, the enquiry
was conducted in a proper and fair manner this Labour
Court need not interfere with the punishment imposed
on the delinquent worker. In this regard the Counsel for
the respondent invited attention of this Court to ruling
reported in 2016 LLR 72 the case of Mani Lal Vs.
Matchless Industries of India that "This Court's power
to interfere with the punishment imposed on the
delinquent employee has become subject-matter of
scrutiny in large number of cases. The terms and phrases
like arbitrary, unreasonable, unconscionable and
shockingly disproportionate are often used by the
Advocates representing the delinquent employees who
seek intervention of the Court for invalidation of the
order of punishment. The doctrine of proportionality
and wednesbury rule have also been pressed into
service for persuading the Courts to interfere with the
employers' prerogative to punish the employee. But, the
Courts have to constantly remain guard against
adopting a populist approach in such matters and refrain
from interfering with the punishment imposed by the
employer on a delinquent employee. The power of
judicial review in such cases should be exercised with
a great care and circumspection. Only in exceptional
cases, the Court may interfere with the punishment, if
it is shockingly disproportionate to the misconduct
found proved. For determining this, the Court has to
take into consideration the factors like length of service
of the delinquent, the nature of duties assigned to him,
sensitive nature of his posting and job requirement,
performance norms, if any laid down by the employer,
the nature of charges found proved, the past conduct
of the employee and the punishment, if any, imposed
earlier. The Court has also to keep in mind the
paramount requirement of maintaining discipline in the
services and the larger public interest."...............
"The
Court
would
not
interfere
with
the
administrator's decision unless it was illegal or suffered
from procedural impropriety or was irrational - in the
sense tha't it was in outrageous defiance of logic or
moral standards"..........
387
31 May 2016]
LA GAZETTE DE L’ETAT
"It is also trite law that where a departmental enquiry
is held to be fair and proper and the findings of the
Enquiry Officer are also held to be legal, proper and not
perverse, the Management is invested with the
discretion to impose appropriate punishment keeping in
view the magnitude and gravity of misconduct."..........
"The Court/Tribunal in its power of Judicial review
does not act as appellate authority to re-appreciate the
evidence and to arrive at its own independent findings
on the evidence"............
"It is well-settled proposition of law that a Court
sitting in judicial review against the quantum of
punishment imposed in the disciplinary proceedings will
not normally substitute its own conclusion on penalty
is not in dispute."
28. In the instant case, there is proved misconduct
and an act of insubordination disobedience by the
petitioner workman. When the employee willfully
disobeys the order of the Supervisor the employer
terminated his services. It is not open to the Labour
Court to consider the punishment awarded is shockingly
disproportionate to the charges. Under such circumstances,
I hold that the punishment of dismissal from service
inflicted on the petitioner/workman cannot be termed as
shockingly disproportionate wants interference by this
Court. Accordingly, 1 hold that the petitioner is not
entitled to claim any relief, in this industrial dispute and
it is liable to be dismissed. Accordingly, this industrial
dispute is dismissed.
29. In the result, this industrial dispute is dismissed.
No costs.
Dictated to the Stenographer transcribed by her,
corrected and pronounced by me in open Court on this
the 31st day of March, 2016.
N. SIVAKUMAR,
Presiding Officer,
Labour Court, Pondicherry.
————
List of petitioner's witness:
PW.1— 12-2-2015 — E. Arun
List of respondent's witness:
RW.1— 26-11-2015 — O.P. Sanjay Madan
List of petitioner’s exhibits:
Ex.P1
— Copy of the complaint letter issued by
M. Rajendiran (Supervisor) to the
respondent management, dated 19-10-2011.
(Photocopy)
Ex.P2
— Copy of the complaint letter issued by
V. Santhamoorthi (Co-worker) to the
respondent management, dated 24-10-2011.
(Photocopy)
Ex.P3
— Copy of the show cause notice issued
by the respondent management to the
petitioner, dated 29-10-2011. (Photocopy)
Ex.P4
— Copy of the letter for extension of time
issued
by
the
petitioner
to
the
respondent management, dated 31-11-2011.
(Photocopy)
Ex.P5
— Copy of the memo. issued by the
respondent management to the petitioner,
dated 11-11-2011. (Photocopy)
Ex.P6
— Copy of the complaint letter issued by
the petitioner to the respondent
management, dated 7-11-2011. (Photocopy)
Ex.P7 — Copy of the memo. issued by the
respondent management to the petitioner,
dated 15-11-2011. (Photocopy)
Ex.P8
— Copy of the complaint letter issued by
the
petitioner
to
the
respondent
management, dated 19-12-2011. (Photocopy)
Ex.P9
— Copy of the complaint petitions and
postal receipt issued by the petitioner
to the Sub-Inspector, Karikkalampakkam
Police Station, Karikkalampakkam,
Puducherry, dated 21-12-2011. (Photocopy)
Ex.P10 — Copy of the letter issued by the
petitioner to the respondent management,
dated 21-12-2011. (Photocopy)
Ex.P11 — Copy of the memo. raising industrial
dispute before the Labour Officer
(Conciliation), Labour Department,
Puducherry, dated 21-12-2011. (Photocopy)
Ex.P12 — Copy of the complaint letter issued by
S. Ramesh Kumar (Supervisor) to the
respondent management, dated 29-12-2011.
(Photocopy)
Ex.P13 — Copy of the letter issued by S. Ramesh
Kumar (Supervisor) to the respondent
man a ge men t wi th s ig n ed b y hi s
co-workers, dated 29-12-2011. (Photocopy)
Ex.P14 — Copy of the complaint letter issued by
the petitioner to the respondent management,
dated 29-12-2011. (Photocopy)
388
LA GAZETTE DE L’ETAT
[31 May 2016
Ex.P15 — Copy of the Register of Fines (Form
No.1). (Photocopy)
Ex.P16 — Copy of the show cause notice/
Suspension Order issued by the
respondent management to the petitioner,
dated 18-1-2012. (Photocopy)
Ex.P17 — Copy of the letter for extension of time
issued
by
the
petitioner
to
the
respondent management, dated 21-1-2012.
(Photocopy)
Ex.P18 — Copy of the letter for extension of time
issued
by
the
petitioner
to
the
respondent management and postal
receipt, dated 25-1-2012. (Photocopy)
Ex.P19 — Copy of the memo. issued by the
respondent
management
to
the
petitioner, dated 27-1-2012. (Photocopy)
Ex.P20 — Copy of the explanation letter issued by
the petitioner to the respondent
management, dated 30-1-2012. (Photocopy)
Ex.P21 — Copy of the charge-sheet issued by the
respondent
management
to
the
petitioner, dated 6-2-2012. (Photocopy)
Ex.P22 — Copy of the complaint letter issued by
petitioner to the respondent management,
dated 9-2-2012 (Photocopy)
Ex.P23 — Copy of the memo issued by the
respondent
management
to
the
petitioner, dated 10-2-2012 (Photocopy)
Ex.P24 — Copy of the enquiry report issued by
R. Mugundhan, Advocate and Notary
Public to the petitioner, dated 8-3-2012
(Photocopy)
Ex.P25 — Copy of the objection letter issued by
the
petitioner
to
the
respondent
management, dated 9-3-2012. (Photocopy)
Ex.P26 — Copy of the letter and postal receipt
issued by the petitioner to R. Mugundhan,
Advocate and Notary Public, dated
15-3-2012. (Photocopy)
Ex.P27 — Copy of the Funeral Ceremony issued by
Villianur Commune Panchayat, Villianur,
dated 17-3-2012. (Photocopy)
Ex.P28 — Copy of the memo. issued by the
respondent
management
to
the
petitioner, dated 20-3-2012. (Photocopy)
Ex.P29 — Copy of the letter for Subsistence
Allowance issued by the petitioner to
the respondent management, dated
24-3-2012. (Photocopy)
Ex.P30 — Copy of the letter issued by G. Suresh
(representative of the respondent) to the
petitioner, dated 14-4-2012. (Photocopy)
Ex.P31 — Copy of the enquiry report issued by the
petitioner to R. Mugundhan, Advocate
and Enquiry Officer, dated 21-4-2012.
(Photocopy)
Ex.P32 — Copy of the enquiry report issued by the
petitioner to R. Mugundhan, Advocate
and Enquiry Officer, dated 5-5-2012.
(Photocopy)
Ex.P33 — Copy of the letter issued by the
petitioner to the Disciplinary Authority,
dated 7-5-2012. (Photocopy)
Ex.P34 — Copy of the memo. issued by the
respondent
management
to
the
petitioner, dated 11-5-2012. (Photocopy)
Ex.P35 — Copy of the letter issued by the
petitioner to the disciplinary authority
with postal receipt, dated 15-5-2012.
(Photocopy)
Ex.P36 — Copy of the letter issued by the
petitioner to R. Mugundhan, Advocate
and Domestic Enquiry Officer with postal
receipt, dated 15-5-2012. (Photocopy)
Ex.P37 — Copy of the letter issued by the
petitioner to the Disciplinary Authority
with postal receipt, dated 21-5-2012.
(Photocopy)
Ex.P38 — Copy of the letter issued by the
management of Human Rights Commission
S. Sakthipriya to R. Mugundhan, Domestic
Enquiry
Officer,
dated
23-5-2012.
(Photocopy)
Ex.P39 — Copy of the explanation letter issued by
the petitioner to the Domestic Enquiry
Officer, dated 23-5-2012. (Photocopy)
Ex.P40 — Copy of the explanation letter issued
by the petitioner to the Domestic
Enquiry Officer with postal receipt,
dated 30-5-2012. (Photocopy)
Ex.P41 — Copy of the letter issued by the
petitioner to the Branch Manager,
Villianur
Branch
Post
Office,
Puducherry, dated 4-6-2012. (Photocopy)
Ex.P42 — Copy of the letter issued by the
petitioner to the Domestic Enquiry
Officer, dated 9-6-2012. (Photocopy)
389
31 May 2016]
LA GAZETTE DE L’ETAT
Ex.P43 — Copy of the letter issued by the
petitioner to the General Manager with
postal
receipt,
dated
11-6-2012
(Photocopy)
Ex.P44 — Copy of the letter issued by the
petitioner to the Domestic Enquiry Officer
with postal receipt, dated 19-6-2012.
(Photocopy)
Ex.P45 — Copy of the letter issued by the
petitioner to the Domestic Enquiry Officer
with postal receipt, dated 30-6-2012.
(Photocopy)
Ex.P46 — Copy of the letter issued by the
Petitioner to the Domestic Enquiry Officer
with postal receipt, dated 7-7-2012.
(Photocopy)
Ex.P47 — Copy of the letter issued by the
petitioner to the Domestic Enquiry Officer
with postal receipt, dated 14-7-2012.
(Photocopy)
Ex.P48 — Copy of the letter issued by the
petitioner to the Domestic Enquiry Officer
with postal receipt, dated 27-1-2012.
(Photocopy)
Ex.P49 — Copy of the letter issued by the
petitioner to the Domestic Enquiry
Officer, dated 30-12-2012. (Photocopy)
Ex.P50 — Copy of the letter issued by the
petitioner to the Disciplinary Authority
with postal receipt, dated 6-8-2012.
(Photocopy)
Ex.P51 — Copy
of
the
Domestic
Enquiry
Proceeding, dated From 17-3-2012 Till
21-7-2012. (Photocopy)
Ex.P52 — Copy of the Enquiry Report of Domestic
Enquiry Officer, dated 11-9-2012.
(Photocopy)
Ex.P53 — Copy of the show cause notice issued
by the respondent management to the
petitioner, dated 22-9-2012. (Original)
Ex.P54 — Copy of the letter issued by the
petitioner to the respondent management,
dated 1-10-2012 (Photocopy)
Ex.P55 — Copy of the memo. issued by the
respondent
management
to
the
petitioner, dated 4-10-2012. (Original)
Ex.P56 — Copy of the reply letter issued by the
petitioner to the respondent management,
dated 12-10-2012. (Photocopy)
Ex.P57 — Copy of the Termination Order issued by
the respondent management to the
petitioner, dated 22-10-2012. (Original)
Ex.P58 — Copy of the explanation letter issued
by the petitioner to the respondent
management with postal receipt, dated
30-10-2012.(Photocopy)
Ex.P59 — Copy of the 2(A) petition filed by the
petitioner
against
the
respondent
management raising industrial dispute
before the Labour Officer (Conciliation),
Labour Department, Puducherry, dated
28-1-2012. (Photocopy)
Ex.P60 — Copy of the reply letter issued by the
respondent
management
to
the
petitioner raising industrial dispute,
dated 25-2-2012. (Photocopy)
Ex.P61 — Copy of the failure report of Labour
Officer Original (Conciliation), Labour
Department, Puducherry, dated 3-2-2012.
(Original)
Ex.P62 — Copy of the Notification under G.O.
Rt. No. 33/AIL/Lab./J/2014, in Labour
Department, Puducherry, dated 5-3-2014.
(Original)
List of respondent’s exhibits:
Ex.R1 — Copy of the complaint letter issued by
M. Rajendiran (Supervisor) to the
respondent management, dated 19-10-2011.
(Photocopy)
Ex.R2 — Copy of the complaint letter issued by
V. Santhamoorthi (Co-worker) to the
respondent management, 24-10-2012.
(Photocopy)
Ex.R3 — Copy of the show cause notice issued
by the respondent management to the
petitioner, dated 29-10-2011.(Photocopy)
Ex.R4 — Copy of the letter for extension of time
issued
by
the
petitioner
to
the
respondent management, dated 31-10-2011.
(Photocopy)
Ex.R5 — Copy of the complaint letter issued by
the
petitioner
to
the
respondent
management,
dated
7-11-2011.
(Photocopy)
390
LA GAZETTE DE L’ETAT
[31 May 2016
Ex.R6 — Copy of the letter issued by the
petitioner to the respondent management,
dated 21-12-2011. (Photocopy)
Ex.R7 — Copy of the letter issued by S. Ramesh
Kumar (Supervisor) to the respondent
manag ement with signed b y his
co-workers, dated 29-12-2011. (Photocopy)
Ex.R8 — Copy of the show cause notice/
suspension
order issued by the
respondent
management
to
the
petitioner, dated 18-1-2012. (Photocopy)
Ex.R9 — Copy of the letter for extension of time
issued
by
the
petitioner
to
the
respondent management, dated 21-1-2012.
(Photocopy)
Ex.R10 — Copy of the letter for extension of time
issued
by
the
petitioner
to
the
respondent management and postal
receipt, dated 25-1-2012. (Photocopy)
Ex.R11 — Copy of the letter issued by the
respondent management to the petitioner,
dated 27-1-2012. (Photocopy)
Ex.R12 — Copy of the explanation letter issued
by the petitioner to the respondent
management, dated 30-1-2012. (Photocopy)
Ex.R13 — Copy of the charge-sheet issued by the
respondent
management
to
the
petitioner, dated 6-2-2012. (Photocopy)
Ex.R14 — Copy of the Domestic Enquiry Proceedings.
From
17-3-2012
till
21-7-2012.
(Photocopy)
Ex.R15 — Copy of the enquiry report of Domestic
Enquiry Officer, dated 11-9-2012.
(Photocopy)
Ex.R16 — Copy of the show cause notice issued
by the respondent management to the
petitioner, dated 22-9-2012. (Photocopy)
Ex.R17 — Copy of the reply letter issued by the
petitioner to the respondent management,
dated 12-10-2012. (Photocopy).
Ex.R18 — Copy of the termination order issued by
the
respondent management, to the
petitioer, dated 22-10-2012. (Photocopy).
N. SIVAKUMAR,
Presiding Officer,
Labour Court, Pondicherry.
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 37/AIL/Lab./T/2016, dated 13th May 2016)
NOTIFICATION
Whereas, the Government is of the opinion that an
industrial dispute has arisen between the management
of M/s. Hidesign India Private Limited, Puducherry and
Tmt. R. Vijaya over non-employment;
And whereas, in the opinion of the Government, it is
necessary to refer the said dispute for adjudication;
Now, therefore, by virtue of the authority delegated
vide G.O. Ms. No. 20/91/Lab./L, dated 23-5-1991 of the
Labour Department, Puducherry to exercise the powers
conferred by clause (d) of sub-section (1) of section 10
of the Industrial Disputes Act, 1947 (Central Act XIV
of 1947), it is hereby directed by Secretary to
Government (Labour) that the said dispute be referred
to the Labour Court, Puducherry for adjudication. The
Labour Court, Puducherry shall submit the award within
3 months from the date of issue of reference as
stipulated under sub-section (2-A) of section 10 of the
Industrial Disputes Act, 1947 and in accordance with
rule 10-B of the Industrial Disputes (Central) Rules,
1957. The party raising the dispute shall file a statement
of claim complete with relevant documents, list of
reliance and witnesses to the Labour Court, Puducherry
within 15 days of the receipt of the order of reference
and also forward a copy of such statement to each one
of the opposite parties involved in the dispute.
ANNEXURE
(a) Whether the dispute raised by Tmt. R. Vijaya
against the management of M/s. Hidesign India Private
Limited, Puducherry over her non-employment is
justified or not? If justified, what relief the petitioner
is entitled to?
(c) To compute the relief, if any awarded in terms
of money, if it can be so computed?
E. VALLAVAN,
Commissioner of Labour-cum-
Additional Secretary to Government
(Labour).