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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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31 May 2016]

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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).