La Gazette de L' État de Poudouchéry
The Gazette of Puducherry
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No.
31
Poudouchéry
Mardi
1
Août
2017 (10 Sravana 1939)
No.
Puducherry
Tuesday
1st
August
2017
SOMMAIRES
CONTENTS
Page
Page
.. 762
Sentence arbitral du travail
.. 762
Award of the Labour Court .. 762
de tribunal.
.. 773
Notifications du Gouvernement
.. 773
Government Notifications .. 773
.. 780
Avis d’Adjudications
.. 780
Tender notices
.. 780
.. 781
Etablissements dangereux
.. 781
Dangerous Establishments .. 781
.. 782
Annonces
.. 782
Announcements
.. 782
[ 761 ]
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762
LA GAZETTE DE L’ETAT
[1 August 2017
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 96/Lab./AIL/T/2017,
Puducherry, dated 16th June 2017)
NOTIFICATION
Whereas, the Award in I.D (T) No. 01/2012, dated
18-4-2017 of the Labour Court, Puduchcrry in respect
of the industrial dispute between the management of
M/s. Sri Bharathi Mills, Mudaliarpet, Puducherry and
Thiru V. Devanathan, Puducherry 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,
Additional Secretary to Government (Labour).
————
BEFORE THE INDUSTRIAL TRIBUNAL-CUM-
LABOUR COURT AT PUDUCHERRY
Present : Thiru G. THANENDRAN, B.COM., M.L.,
Presiding Officer.
Tuesday, the 18th day of April, 2017
I.D.(T) No. 01/2012
V. Devanathan,
Representative, by K. Mohandass,
Authorized Representative,
No. 26, 1st Floor, New Street,
Coundanpalayam, Puducherry.
. . Petitioner
Versus
The Managing Director,
M/s. Sri Bharathi Mills,
Mudaliarpet, Puducherry.
. . Respondent.
This industrial dispute coming up before me
for final hearing on 24-3-2017 in the presence
of Thiru K. Velmurugan, Counsel for the petitioner,
Thiru K. Ravikumar, Counsel for the respondent upon
hearing both sides, upon perusing the case records,
after having stood over for consideration till this day,
this Court passed the following:
AWARD
1. This industrial dispute has been referred by the
Government of Puducherry as per the G. O. Rt. No. 22/
AIL/Lab./J/2012, dated 29-2-2012 for adjudicating the
following:-
(a) Whether the dispute raised by the petitioner
Thiru V. Devanathan against the management of
M/s. Sri Bharathi Mills, Puducherry over promotion
is justified?
(b) 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?
2. The brief averments of the claim statement filed
by the petitioner are as follows:
(i) The petitioner Devanathan had joined in the
respondent management on 15-6-1976 and had
discharged his duties in a sincere and honest manner
without any sort of blackmark whatsoever and
from 31-12-2000 onwards he was working as acting
Jobber in the ‘C’ shift in the speed frame
Department for one Subramanian who was also
working in the same ‘C’ shift. The said Subramanian
retired from the service on 6-8-2011 and thereby
the jobber post in the ‘C’ shift was remained vacant.
In the ‘C’ shift, the petitioner Devanathan is the
senior most workmen and he alone is eligible for
the said post according to the customary practices
followed by the mill. Though the petitioner had
given representation, dated 26-7-2011 to the
management and several oral representations for
giving promotion to him to the post of jobber, the
respondent management has not responded to the
representation of the petitioner and remained silent
and hence, the petitioner had raised an industrial
dispute before the Labour Officer (Conciliation) vide
letter, dated 30-9-2011 as against the respondent
management and he had given another representation,
dated 1-10-2011 to the respondent management for
giving him promotion and during the pendency of
the above conciliation proceedings, the management
had
arbitrarily
granted
promotion
to
one
Karunakaran for the jobber post lying vacant with
effect from 5-10-2011, which is prejudice to the
petitioner Devanathan and hence, the petitioner through
his union had given representation, dated 8-10-2011
to the respondent for cancelling the order of
promotion issued to the workmen Karunakaran
and keep the jobber post as vacant till the final
disposal of the industrial dispute pending before the
Labour Officer (Conciliation).
763
1 August 2017]
LA GAZETTE DE L’ETAT
(ii) The management had filed its counter, dated
24-10-2011 before the Labour Officer (Conciliation)
stating that the respondent management is not
following the shift seniority but following overall
seniority procedures in promotion matters. The respondent
management as well as the Swadeshi Cotton Mills
are units under the National Textile Corporation and
thus the rules and regulations governing both the
mills are one and the same and in the Swadeshi
Cotton Mills, the promotions were granted to its
workmen purely based on shift category and not
overall category. The respondent management cannot
formulate a new rule with regard to promotion
since it is a unit of National Textile Corporation and
thus the promotion given to the said Karunakaran is
invalid and void and prayed this Court to pass an
award directing the respondent to pay the petitioner
all the monetary benefits including the arrears of
wages, difference of bonus paid and to fix the last
drawn wage for calculating the gratuity and pension
on that basis and all other attendant benefits which
the petitioner was entitled in the post of jobber, if
promotion is granted to him as early on 7-8-2011.
3. The brief averments of the counter and
additional counter filed by the respondent are as
follows:
There is no customary practice of giving promotion
on the basis of shift seniority followed in the
respondent mill and that the promotions are based only
overall seniority and the promotion would be given
only to the persons who is having overall seniority and
the respondent mill has never followed the shift
seniority from time immemorial in giving the
promotion and that the respondent mill giving
promotions only on the basis of category seniority and
if, there is two or more workmen in the same category,
then the worker who has seniority will be given
priority in promotion and the petitioner Devanathan is
a Junior to Karunakaran who has been promoted to the
post of jobber and he has entered into service on 7-2-1976
but the petitioner Devanathan entered into service on
15-6-1976 and furthermore, the petitioner Devanathan
was superannuated from service on 8-11-2013 and on the
date of amended claim statement, the petitioner was
not in service of the respondent mill and therefore,
the petition is liable to be dismissed.
4. In the course of enquiry, on the side of the
petitioner PW.1 was examined and Ex.P1 to Ex.P9
were marked and on the side of the respondent RW.1
was examined and Ex.R1 to Ex.R4 were marked.
5. The point for consideration is that whether the
petitioner is entitled for the order he prayed for?
6. Both side arguments were heard. From the
pleading and evidence of both the parties, it is clear
that the both parties have admitted the fact that the
petitioner was working in the respondent mill from
15-6-1976 and from 31-12-2000 onwards he was
working as acting jobber in the 'C' shift in the Speed
frame Department for one Subramanian who was also
working in the same 'C' shift and the said Subramanian
was retired from service on 6-8-2011 and the
management has promoted one Karunakaran as jobber
instead of giving promotion to the petitioner
Devanathan and though the petitioner has made
representation to the respondent management, the
respondent management has not responded and
therefore the petitioner has raised the industrial
dispute before the Conciliation Officer on 30-9-2011
and that the conciliation was failed and therefore, the
reference has been made to this Court.
7. The main contention of the petitioner is that he
was working as acting jobber for one Subramanian in
the 'C' shift in the Speed Frame Department and while
the said Subramanian had retired from service on 6-8-2011
in the 'C' shift, the promotion should have to be given
to the petitioner Devanathan as he is the senior most
workmen in the 'C' shift and he alone is eligible for
the said post according to the customary practices
followed by the mill but instead of promoting him, the
respondent management arbitrarily granted promotion
to Karunakaran for the jobber post.
8. On the other hand, it is contended by the
respondent management that the respondent mill has
never followed the shift seniority but, following only
the overall seniority procedure in the promotion
matters and that they are following only seniority in
over all category and not based on the shift seniority
in promotions and as such the promotion given to one
Karunakaran who is having over all seniority in the
category seniority and as he entered into the service
earlier to the petitioner Devanathan and hence, the
promotion given to the said Karunakaran is valid.
9. From the above, it is to be decided whether the
respondent mill was following the procedure of shift
seniority in giving promotions to its workers or on the
basis of overall seniority in the same category and it
is also to be seen whether the petitioner has
established and proved that the respondent mill was only
considering the shift seniority in promotion as stated
by him. Apart from the oral evidence, the petitioner
764
LA GAZETTE DE L’ETAT
[1 August 2017
has exhibited the copy of the Pay Slip of the petitioner
Devanathan for the month of May, 2011 as Ex.P1, the
copy of the representation given by the petitioner
Devanathan on 30-9-2011 to the respondent mill as
Ex.P2, the copy of the another representation given by
the petitioner Devanathan on 8-10-2011 to the
respondent mill as Ex.P3, the copy of the letter given
by the petitioner to the Labour Officer (Conciliation),
Puducherry as Ex.P4, the copy of the counter filed by
the respondent in the conciliation proceedings as
Ex.P5, the copy of conciliation failure report as
Ex.P6, the copy of the 12(3) settlement entered
between the petitioner's union and the respondent as
Ex.P7, the copy of the Tamil Nadu Government Gazette
Notification as Ex.P8 and the copy of the Award
passed by the Special Industrial Tribunal, Puducherry
as Ex.P9.
10. The respondent management has examined
RW.1 and RW.1 has deposed before this Court that
they are following only the line of seniority in the
same category while promoting the workers and in
support of his version, RW.l has exhibited the copy of
the promotion order of Karunakaran as Ex.Rl, the copy
of the 12(3) settlement as Ex.R2, the copy of the
notice of remarks issued by the conciliation officer
as Ex.R3 and the copy of the superannuation order of
the petitioner as Ex.R4 and therefore, it is just and
necessary
to
decide
whether
the
respondent
management has followed the procedure of shift
seniority or line of overall seniority in the same
category while giving promotion to the workers.
11. On this aspect, the evidence of the petitioner
and the exhibits marked by him were considered. The
evidence of PW.1 runs as follows:
“
From the above evidence, it is clear that it is
admitted by the petitioner that petitioner has not filed
any document to prove that he was working as acting
jobber after the retirement of the said Subramanian as
a jobber and furthermore, as stated by the petitioner
in Ex.P1 the Pay Slip does not contain any averment
that the petitioner Devanathan was working as acting
jobber and there is no such endorsement in Ex.P1 that
he was working as acting jobber. Admittedly, except
Ex.P1, no document was filed by the petitioner to
prove the contention that he was working as acting
jobber from 2000 to 2011, but Ex.P1 Pay Slip does not
speak about it and the fact that the said Subramanian
was working as jobber till August 2011 and thereafter
the said Karunakaran was promoted as jobber and it is
also admitted by the petitioner in his evidence that in
the Ex.P7 settlement arrived under section 12(3) of the
765
1 August 2017]
LA GAZETTE DE L’ETAT
act also would reveal that promotion should be given
in the line of seniority not under the shift seniority and
it is also not disputed by the petitioner that
Karunakaran who has been promoted as jobber is senior
to him in the same category of service.
12. It is the only contention of the petitioner that
the respondent mill has followed the customary
practice and promotion should be given only in the
shift seniority basis but nothing is proved before this
Court that the respondent have followed such shift
seniority in the past promotions given by the
respondent mill to any workmen of the respondent mill
and therefore, the petitioner has failed to prove the
contention that some customary practice was followed
by the mill in giving promotions in the shift seniority.
13. On the other hand, the respondent even in the
counter objection filed before the Conciliation Officer
has stated that they are not following any shift seniority
and they are following only overall seniority in the
same category which would be evident from the
petitioner side evidence Ex.P7 settlement arrived at
between the employees of the mill and the
management and the respondent has exhibited the
office order of promotion as Ex.R1, which would
reveal the fact that they have promoted the said
Karunakaran only on the basis of seniority in the same
category and they have also exhibited the settlement
as Ex.R2 which was also exhibited by the petitioner as
Ex.P7, which would evident that they have agreed to
grant promotion under line of seniority to all the
categories and para 10 of the settlement would reveal
that respondent management are following the said line
of seniority in promotion and they have granted
promotions in the line of seniority even prior to 2010
and therefore, it is clear that the respondent has not
followed the customary practice in giving promotion
and they are giving promotion only on the basis of line
of seniority and that they are not giving promotion on
the basis of shift seniority.
14, Furthermore, the Hon'ble Supreme Court, in
Syed Khalid Rizvi and others etc., and Union of India
and other, etc., reported in 1993 I LLJ 887 has
observed that-
"Service Law - Promotion - Chances of
promotion not condition of service - No employee
has right to promotion, but only right to be
considered for promotion as per rules - Chances of
promotion are not conditions of service."
and the Apex Court in State Bank of India and others
and Mohd. Mynuddin reported in 1988 I LLJ 142, has
observed that -
"Court is not competent to decide merit, ability
and competence for promotion - only in cases where
bias or mala fides are proved Court can direct the
management to reconsider the case for promotion
and cannot straightaway direct promotion".
Further the Patna High Court in management of
Bihar State Super Phosphate Factory, Sindri Vs. The
Presiding Officer. Labour Court and others, reported
in 1996 I LLJ 931, has held that-
"Promotion is the matter for management. Court
can
interfere
only
in
case
of
malicious
consideration and unfair labour practice. In the
absence of mala fides, it is for the management to
decide. Labour Court cannot order promotion."
and Allahabad High Court in In U.P. State Cement
Corporation Limited, Vs. Industrial Tribunal I U.P.
Allahabad and another, reported in 1996 II LLJ 953
has observed that-
"A promotion cannot be claimed as of right
and person claiming promotion to the higher post
must hold necessary qualification and eligibility
for promotion."
and furthermore, the Apex Court has held in several
cases that chance of promotion is not a condition of
service and no employee has right to promotion but
only right to be considered for promotion as per rules
and chance of promotion are not condition of service.
From the above judgments, it is clear that this Court
is not competent to decide the case for promotion and
no employee has right to promotion but only right to
be considered for promotion. As per rules, chances of
promotion are not conditions of services and the
promotion is the matter for management and in the
absence of mala fides, it is for the management to
decide the promotion particularly the Labour Court
cannot order for promotion.
15. As the petitioner has failed to establish their
contention that the respondent mill has followed the
customary practice of giving promotion under the shift
seniority as stated by him in the claim statement and
since, the petitioner has failed to establish the same,
he is not entitled for any order in favour of him and it
cannot be declared that promotion given to Karunakran
as invalid and as null void and that therefore, the
petitioner employee could not claim the promotion as
a matter of right and hence, the petitioner is not
entitled for the monetary benefits and all other
attendant benefits and therefore, the petition is liable
to be dismissed.
766
LA GAZETTE DE L’ETAT
[1 August 2017
16. In the result, the petition is dismissed. No
cost.
Dictated to the stenographer, transcribed by her,
corrected and pronounced by me in the open Court
on this the 18th day of April, 2017.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-Labour Court,
Puducherry.
List of petitioner’s witness:
PW. 1— 29-07-2013 — Mohandass
List of petitioner’s exhibits:
Ex.P1 May, 2011
Copy of the Pay Slip of the
petitioner Devanathan issued
by the respondent mill.
Ex.P2 30-09-2011
Copy of the representation
given by the petitioner to
the respondent.
Ex.P3 08-10-2011
Copy of the representation
given by the petitioner to
the respondent.
Ex.P4
–
Copy of the letter given by
the petitioner to the Labour
Officer
(Conciliation),
Puducherry.
Ex.P5 24-10-2011
Copy of the counter filed
by the respondent in the
Conciliation proceedings
held before the Labour
Officer
(Conciliation),
Puducherry.
Ex.P6 26-12-2011
Conciliation Failure report
issued
by
the
Labour
Officer
(Conciliation),
Puducherry.
Ex.P7 24-02-2012
Copy
of
the
12(3)
settlement entered between
the petitioner's union and the
respondent.
Ex.P8 18-03-1987
Copy
of
Tamil
Nadu
Government Gazette.
Ex.P9 13-06-1994
Copy of the Award passed
by the Special Industrial
Tribunal, Puducherry.
List of respondent’s witness:
RW. 1— 20-11-2015 — Sugumaran
List of respondent’s exhibits:
Ex.R1 03-10-2011
Copy of the order for
promoting Karunakaran.
Ex.R2 24-10-2011
Copy
of
the
12(3)
settlement
Ex.R3 03-10-2011
Copy of the notice of
remarks
issued
by
the
Conciliation Officer.
Ex.R4 04-10-2013
Copy of the office order
for
superannuating
the
petitioner.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-Labour Court,
Puducherry.
————
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 106/Lab./AIL/T/2017,
Puducherry, dated 4th July 2017)
NOTIFICATION
Whereas, the award in I.D.(L)No. 12/2014,
dated 12-5-2017 of the Industrial Tribunal-cum-Labour
Court, Puducherry in respect of the industrial dispute
between Thiru K. Santhalingam, son of Krishnan,
Kalithirampattu, Villupuram District
against
the
management of M/s. Pentagon Inorganics Private Limited,
PIPDIC Industrial Estate, Mettupalayam, Puducherry over
to reinstate the petitioner in service with backwages,
continuity of service and all other attendant benefits 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
Dep artment’s G.O. Ms. No. 20/9/Lab./L., dated
23-5-91, 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).
767
1 August 2017]
LA GAZETTE DE L’ETAT
BEFORE THE INDUSTRIAL TRIBUNAL -CUM-
LABOUR COURT AT PUDUCHERRY
Present :Thiru G. THANENDRAN, B.COM., M.L.,
Presiding Officer.
Friday, the 12th day of May 2017.
I.D. (L) No. 12/2014
K. Santhalingam,
S/o. Krishnan,
No. 2/310, Thiruvannamalai Road,
Kalithirampattu,
Chellipattu Post,
Villupuram District,
Pincode-605 102.
. . Petitioner/
workman.
Versus
Pentagon Inorganics Private Limited,
Rep. by its Managing Director,
No. A-120 and 121, PIPDIC Industrial Estate,
Mettupalayam,
Puducherry-605 004.
. . Respondent/
Management.
This industrial dispute coming up before me for
final hearing on 2-5-2017 in the presence of
P.R. Thiruneelakandan and A. Mithun Chakkaravarthy,
Counsel for the petitioner, Thiru B. Mohandoss,
Advocate for the respondent, upon hearing both sides,
upon perusing the case records, after having stood
over for consideration till this day this Court passed
the following:
AWARD
1. This is a petition filed by the petitioner under
section 2-(A) of the Industrial Disputes Act praying to
pass an Award holding that the termination of service
of the petitioner, dated 7-2-2013 is illegal, and to
direct the respondent to reinstate the petitioner in
service with effect from 7-2-2013 as a workman in the
respondent’s factory with continuity of service,
backwages and all other attendant benefits.
2. The averments in the claim statement of the
petitioner, in brief, are as follows:
(i) The petitioner was appointed as workman in
the respondent management in the year 1996 but he
was not given any written appointment order and has
rendered 17 years of service under the said
management and he was paid ` 5,885 as monthly
wages and that the management follows unfair
labour practice and not allowed their workman to
form a trade union and they extracted work for
more than 8 hours per day for which the workers
were not paid overtime wages and that there is no
annual wage increment and other increment and the
management exploits the weaker section by paying
them very meager wage and for the workers who had
been in service for more than 15 years were
only given ` 3,000 to ` 5,000 as monthly wage and
while the petitioner who had been in service for more
than 17 years asked for a wage increment, he was
denied entry into the factory gate on 6-2-2013
stating as late entry and subsequently again on 7-2-2013
he was not allowed to enter into the factory
informing that he was terminated from service. The
petitioner made many requests to the respondent
management to provide him employment but he was
denied and that the termination of service is illegal
as the management not provided sufficient reason
for the termination and it is an unfair labour practice
under schedule-V (1) 5 of the Industrial Dispute Act
and prayed for reinstatement of service with
backwages and all legal benefits.
3. The brief averments in the counter filed by the
respondent are as follows:
(i) The respondent denied all the averments of the
petition and it is true that the petitioner was
appointed as workmen in the respondent factory on
5-11-1995 for which he was not given any
appointment order and the petitioner was paid
` 5,885 per month as wage and he discharged his
duty till 3-12-1998 and thereafter, the petitioner did
not turn up for duty for about 21 months without
seeking leave or giving any information about his
long and continued absence and only on 1-9-2000
the petitioner came to the factory seeking
employment and only on soft corner, the petitioner
was re-employed by the respondent management on
1-9-2000 with a condition that he should report to
duties properly without any black mark and that the
performance of the petitioner was not good and free
from blemish and he was in the habit of coming late
for duty for at least 10 days in a month and on many
occasions, the petitioner used to quarrel with
co-employees and hurt them by using abusive words
against them and on 5-2-2013, the petitioner came
very late for work and when the management asked
the petitioner for his late, the petitioner stated that
he could come only in that manner and proceeded
further and requested to settle his accounts by
pointing out his inability to attend to duty properly in
768
LA GAZETTE DE L’ETAT
[1 August 2017
the presence of his co-employees and therefore, the
management accepted his request and decided to
settle his accounts and accordingly on that day
evening itself i.e., 5-2-2013, the management paid
the wages for the month of January, 2013 to the
petitioner and the petitioner was directed to come
on 9-2-2013 for settling his accounts and that the
petitioner
accepted
the
above
proposal
whole-heartedly and left the factory and that
therefore, the claim made by the petitioner that
declaration of termination as illegal and seeking
reinstatement are not at all sustainable and liable to
be dismissed.
4. In the course of enquiry PW.l was examined and
Ex.P1 to Ex.P6 were marked and on the side of the
respondent RW.1 to RW.3 was examined and Ex.Rl to
Ex.R3 were marked.
5. The point for consideration is:
Whether the petitioner is entitled for the order of
reinstatement with backwages, continuity of service
and all other attendant benefits or not ?
6. Both sides are heard. The submission of both the
parties, the evidence let in by either sides and the
exhibits marked on both sides are carefully considered.
7. It is clear from the pleadings of both the parties
that both the parties have admitted the fact that the
petitioner has joined as workmen in the respondent
factory on 5-11-1995 and for which no appointment
order was given to him and he was in service till 2013
and he has lastly received the salary of ` 5,885 per
month and it is also admitted by both the parties that
now the petitioner was not in service and no domestic
enquiry was conducted against him by the respondent
and so far no compensation was given to him.
8. In order to prove the case, the petitioner has
examined himself as PW.l and exhibited the copy of
the ESI Identity Card of the petitioner as Ex.P1, the
copy of the Identity Card issued by the respondent to
the petitioner as Ex.P2. the petition filed before the
Labour Officer (Conciliation) as Ex.P3, the copy of
the Conciliation notice as Ex.P4, the copy of the letter
sent by the respondent management to the Labour
Officer (Conciliation), Puducherry as Ex.P5 and the
copy of the Conciliation failure report as Ex.P6.
These documents would go to show that the petitioner
was worked as workmen for about 17 years at the
respondent factory and he was given Identity Card and
the respondent management has contributed ESI to the
petitioner and this petitioner has submitted the
application for conciliation before the Conciliation
Officer on 1-5-2013 and the conciliation proceedings
was taken by the Conciliation Officer wherein the
respondent management has sent a letter to the
Conciliation Officer admitting the service of the
petitioner and denied all other averments alleged by
the petitioner and also has admitted the fact that the
petitioner was informed to receive the settlement
service benefits on 9-2-2013 and that the petitioner
himself has not turned up to the work voluntarily and
the conciliation failure report would evident that the
petitioner has raised a dispute on 1-5-2013 before the
Conciliation Officer regarding his non-employment and
in the conciliation proceedings, the management has
also stated that the petitioner has joined as a employee
in the year 1995 and rendered 17 years of service
under the said management and the management paid
` 5,885 as monthly wages to the petitioner and that the
workmen committed several mis-conducts during his
employment and he was a habitually leave taker and he
will often quarrel with the co-workers and on 5-2-2013,
the petitioner came to duty very lately and when the
management questioned the petitioner, the petitioner
openly asked the management to settle the benefits
and he was not interested to continue the service in his
employment and hence, the management stopped his
service and decided to settle his legal dues.
9. On the other hand, in order to prove the case of
the respondent, RW.1 to RW.3 were examined RW.1
A. Nandakumar is the Managing Director of the
respondent establishment, RW.2 - M. Dharmalingam is
the workmen who is working as operator in the
respondent establishment and RW.3- S. Vijayakanth is
the workmen who is working as operator in the
respondent establishment and all of them have stated
in their evidence that the petitioner workmen was in
the habit of coming late for duty for atleast 10 days
in a month and the respondent management has orally
warned him to improve his performance and on many
occasions, the petitioner used to quarrel with the
co-workers and hurt them by using abusive words and
the respondent factory severely warned the petitioner
orally but even then the petitioner did not show any
improvement in his behaviour and in his employment
and came late for employment on 5-2-2013 and the
Managing Director chided the petitioner for his
irresponsible behaviour and habitual mis-conducts and
769
1 August 2017]
LA GAZETTE DE L’ETAT
the petitioner himself has stated that he could came for
employment only in that manner and requested the
management orally to settle his account by pointing
out his inability to attend the duty properly and
subsequently the respondent came forward to settle his
accounts but the petitioner did not attend the work
thereafter and the respondent management also has
exhibited the copy of the complaint submitted by
M. Dharmalingam to the respondent management on
5-11-2013 as Ex.Rl wherein the said Dharmalingam
has filed a complaint against the petitioner , the copy
of the reply given by the respondent to the Labour
Officer (Conciliation), Puducherry as Ex.R2, the copy
of the attendance register of Muster roll of respondent
from January, 2013 to December, 2014 as Ex.R3.
10. From the evidence and exhibits marked on the
side of the respondent, it is clear that it is the
contention of the respondent that they have not
terminated the petitioner from service and the
petitioner himself did not appear for work voluntarily.
But, it is the case of the petitioner that the respondent
management has refused to give work when the
petitioner attend the work on 6-2-2013 and 7-2-2013.
However, it is an admitted fact that the respondent
management has not framed any charge against the
petitioner workmen or conducted domestic enquiry for
the mis-conduct of the petitioner and has not given
termination order and it is also an admitted fact even
a memo or show cause notice has not been issued to
the petitioner for his absence as alleged by the
respondent. Even for the sake of argument, if the
workmen has not voluntarily attended the work it is the
duty of the respondent management to issue a notice
calling upon him to explain for his absence and to give
a memo or show cause notice, that why an action
should not be taken against him for his absence. But,
in this case, though the respondent has stated that the
petitioner did not appear voluntarily for work on
6-2-2013 and 7-2-2013 and has committed several
mis-conducts, no document is filed before this Court
to establish that the respondent management has
issued any show cause notice or conducted enquiry or
issued any memo to the petitioner after his absence and
that therefore, it is clear from the evidence and
documents, that the respondent management has not
established that they have followed a procedure laid
down under the Industrial Disputes Act for the absence
of the workmen and no opportunities was given to the
petitioner workmen to speak about his voluntary
absence.
11. The Hon’ble Supreme Court of India in
D.K.Yadav Vs. J.M.A. Industries Ltd., has observed that
“It is thus well settled law that right to life
enshrined under Art 21 of the Constitution would
include right to livelihood. The order of termination
of the service of an employee/workman visits with
civil consequences of jeopardising not only his/her
livelihood but also career and livelihood of
dependents. Therefore, before taking any action
putting an end to the tenure of an employee/
workman fair play requires that a reasonable
opportunity to put forth his case is given and
domestic enquiry conducted complying with the
principles of natural justice. In D. 7. C. V. D. T. C.
Mazdoor Congress and Ors. (supra) the constitution
bench, per majority, held that termination of the
service of a workman giving one month's notice or
pay in lieu thereof without enquiry offended Art. 14.
The order termination the service of the employees
was set aside. In this case admittedly no opportunity
was given to the appellant and no enquiry was held.
The appellant's plea put forth at the earliest was that
despite his reporting to duty on December 3, 1980
and on all subsequent days and readiness to join duty
he was prevented to report to duty, nor he be
permitted to sign the attendance register. The
Tribunal did not record any conclusive finding in
this behalf. It concluded that the management had
power under CL. 13 of the certified Standing Order
to terminate with the service of the appellant.
Therefore, we hold that the principles of natural
justice must be read into the Standing Order
No.l3(2)(iv). Otherwise it would become arbitrary,
unjust and unfair violating Arts.14, When so read
the impugned action is violative of the principles of
natural justice. This conclusion leads us to the
question as to what relief the appellant is entitled to.
The management did not conduct any domestic
enquiry nor given the appellant any opportunity to
put forth his case. Equally the appellant is to blame
himself for the impugned action. Under those
circumstances 50 per cent of the backwages would
meet the ends of justice. The appeal is accordingly
allowed”
From the above observation of the Hon'ble Supreme
Court of India, it is clear that an employee cannot be
terminated without conducting any domestic enquiry
or without giving any opportunities to putforth his
explanation and without giving any show cause notice.
Now in this case, Admittedly no domestic enquiry was
conducted and no show cause notice was issued to him
770
LA GAZETTE DE L’ETAT
[1 August 2017
and no opportunity was given to the petitioner
workmen and that therefore, the non-employment of
the
petitioner
workmen
without
giving
such
opportunities is against law and in violation of the
natural justice.
12. It is established by the petitioner that the
employment of the petitioner workmen has not been
properly terminated by the respondent management
after giving due opportunities to the petitioner for
giving explanation and that therefore, the termination
of the petitioner workmen can be declared as unlawful
and hence, it is held by this Court that the termination
of employment of the petitioner workmen by the
respondent management is unlawful and the petitioner
is entitled for reinstatement with continuity of service.
However, it is to be decided whether the petitioner is
entitled for backwages. On this aspect, the evidence of
the petitioner is perused. Nowhere in the evidence the
petitioner has stated that after the termination he has
joined in any other establishment. Considering the
nature of the job and the age of the petitioner and
other circumstances in this case and as the petitioner
has not stated that he has not joined in any other
establishment, this Court is inclined to tentatively fix
the backwages at 30%.
13. In the result, the petition is partly allowed and
the termination of the services of the petitioner by the
respondent on 7-2-2013 is declared as illegal and the
respondent management is directed to reinstate the
petitioner in service with continuity of service from
7-2-2013 and further directed to pay 30% of
backwages to the petitioner from the date of
termination till the reinstatement with other attendant
benefits. No cost.
Dictated to the stenographer, transcribed by her,
corrected and pronounced by me in the open Court on
this the 12th day of May, 2017.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
List of
petitioner’s witnesses:
PW.1 — 16-3-2015—Santhalingam
List of petitioner’s exhibits:
Ex.Pl
—
—
— Copy
of
the
ESI
Identity Card of the
petitioner.
Ex.P2
—
—
— Copy of the Identity
Card issued by the
respondent management
to the petitioner.
Ex.P3
—
1-5-2013
— Copy of the petition
filed by the petitioner
before the Labour
Officer (conciliation),
Puducherry.
Ex.P4
—
20-6-2012 — Copy
of
the
conciliation
notice
sent by the Labour
officer(conciliation),
Puducherry
to
the
petitioner and to the
respondent.
Ex.P5
—
7-6-2013
— Copy of the letter sent
by the respondent to
the
Labour
officer
( c o n c i l i a t i o n ) ,
Puducherry.
Ex.P6
—
6-10-2013 — Copy
of
the
Conciliation
Failure
report.
List of
respondent’s witnesses:
RW.1 — 10-12-2015 —
A. Nanda Kumar
RW.2 — 17-3-2016
—
M. Dharmalingam
RW.3 — 17-3-2016
—
S. Vijayakanth
List of respondent’s exhibits:
Ex.Rl
—
5-11-2013 —
Copy of the Complaint
s u b m i t t e d
b y
M. Dharmalinga, to the
respondent management.
Ex.R2 —
7-6-2013 —
Copy of the reply
submitted
by
the
respondent
to
the
L a b o u r
O f f i c e r
( C o n c i l i a t i o n ) ,
Puducherry.
Ex.R3 —
January
—
Copy of the attendance
2013 to
register of the Muster
December
roll of the respondent.
2014.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-Labour Court,
Puducherry.
771
1 August 2017]
LA GAZETTE DE L’ETAT
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 107/Lab./AIL/T/2017,
Puducherry, dated 5th July 2017)
NOTIFICATION
Whereas, the Award in I.D(L) No. 35/2013, dated
12-5-2017 of the Labour Court, Puducherry in respect
of the industrial dispute between the Management of
M/s. Packaging India Private Limited, Pillaiyarkuppam
Post, Puducherry and Thiru K. Narayanan, Puducherry
over non-employment has been received;
Now, therefore, in exercise of the powers conferred
by sub-section (1) of section 17 of the Industrial
Disputes Act, 1947 (Central Act XIV of 1947) read
with the notification issued in Labour Department's
G.O.Ms.No.20/91/Lab./L, dated 23-5-91, it is hereby
directed by the Secretary to Government (Labour) that
the said Award shall be published in the Official
Gazette, Puducherry.
E. VALLAVAN,
Commissioner of Labour -cum-
Additional Secretary to Government, (Labour).
BEFORE THE INDUSTRIAL TRIBUNAL-CUM-
LABOUR COURT AT PUDUCHERRY
Present : Thiru G.THANENDRAN,B.COM., M.L.,
Presiding Officer,
Friday, the 12th day of May, 2017
I.D. (L) No. 35/2013
K. Narayanan,
. . Petitioner
S/o. Kannan,
Puducherry.
Versus
The Managing Director,
Packaging India Private Limited,
Kandanpet Village,
Pillaiyarkuppam Post,
Bahour Commune,
Puducherry.
. . Respondent
This industrial dispute coming up before me for
final hearing on 29-4-2017 in the presence of Tvl.
R.T. Shankar and Thamotharan, counsel
for
the
petitioner and Tvl. L. Swaminathan and I. Ilankumar,
counsel for the respondent upon hearing both sides,
upon perusing the case records after having stood over
for consideration till this day, this Court passed the
following.
AWARD
1. This industrial dispute has been referred by the
Government as per the G. O. Rt. No. l04/AIL/Lab./J/2013,
dated 17-7-2013 for adjudicating the following:-
(i) Whether the dispute raised by the petitioner
Thiru K. Narayanan against the management of
M/s. Packaging India Pvt. Ltd., Puducherry over his
non-employment is justified or not ?
(ii) If justified, what relief, the petitioner is entitled
to ?
(iii) To compute the relief, if any awarded in terms
of money, if it can be so computed?
2. The brief averments of the petition filed by the
petitioner are stated as follows:-
(i) The petitioner has joined in the respondent
establishment on 26-10-1997 as Operator Assistant in
the Pro-Printing Department and his last drawn salary
is ` 9,710 and the petitioner is also holding the post
of President in Packaging India Employees Union and
he had been in service without any remarks for about
13 years but on 31-10-2010 without any prima-facie
complaint the respondent management has temporarily
suspended the petitioner from his service and has
issued a charge memo on 25-1-2011 and for which the
petitioner has given his explanation to the charge
memo on 26-1-2011 before the Manager of the
respondent factory but the respondent management has
not accepted his explanation and conducted domestic
enquiry against him and in the domestic enquiry, no
opportunity was given to the petitioner and the enquiry
was conducted with the bias in favour of the
management and the management threatened the
workers to admit the charges and has assured the
petitioner that if the petitioner admits the charges, the
management will provide employment to the petitioner
and believing the assurance given by the management
the petitioner and his colleagues namely T. Ramesh,
E. Bakthavachalam, V. lyyanar, Alexpeter and
Pragalathan endorsed the admission but no enquiry was
conducted properly and the enquiry officer has
submitted a report finding guilty of the petitioner as
well as his colleagues on the ground of admission of
the employees and on the foot of the report the
management has issued a show cause notice on 12-3-2011
and the petitioner has sent a reply letter to the show
cause notice on 14-3-2011 for which the respondent
management has not accepted the explanation of the
772
LA GAZETTE DE L’ETAT
[1 August 2017
petitioner and passed an order on 31-5-2011 and the
respondent has wantonly terminated the services of the
petitioner since he was functioning as President of the
union and has taken false disciplinary action against the
petitioner along with his colleagues.
(ii) Though in the enquiry, it was found all the
employees are found guilty except the petitioner and
one Pragalathan all others would not have been
terminated
from
service
and
their
temporary
suspension was revoked and therefore, the refusal of
employment to the petitioner and the said Pragalathan
is totally against the law and is illegal and against the
natural justice. Though the petitioner has approached
the respondent management after his termination on
31-5-2011 in person and through letter of requisition,
he has not been given employment and that therefore,
the petitioner has submitted a conciliation on 31-8-2012
with the Conciliation Officer and the conciliation
proceedings was taken and both the petitioner and the
respondent has been summoned to appear on 18-10-2012
at about 3.00 p.m., though the petitioner has appeared
on 18-10-2012 as summoned in the notice, the
respondent has not appeared before the Conciliation
Officer and therefore the conciliation proceedings
were adjourned to 9-11-2012 and on which date also
the petitioner was appeared and the respondent
management has not appeared and hence, the personal
hearing was adjourned to 28-11-2012 and on which
date also the respondent management has not appeared
and subsequently the case was adjourned to 19-2-2013
and on which date the management was appeared and
filed a false objection and the conciliation was failed
and that therefore, the Conciliation Officer submitted
a report to the Government on 26-4-2013 and this
reference has been sent before this Court and in the
domestic enquiry the respondent management has not
given any opportunity to the petitioner and the act of
the respondent management on bias with the petitioner
and the termination of the petitioner is against the law
and against the natural justice and that therefore, the
petitioner prayed this Court to set aside the
termination
order
passed
by
the
respondent
management against the petitioner and to direct the
respondent to reinstate the petitioner with backwages.
3. The brief averments of the counter filed by the
respondent are stated as follows:-
The petitioner was employed as the Printing
operator in the management and was suspended in
contemplation of
disciplinary proceedings through
order, dated
31-10-2010 and that the petitioner was
served with a charge-sheet under Ref. No. PIPL/IR/
JAN/SUS/2011/08, dated 25-1-2011 and was directed
to explain in writing within 48 hours from the receipt
of the charge-sheet and for which the petitioner had
submitted his written explanation on 26-1-2011 and
upon inconsistent reply, the management had ordered
for an enquiry through order, dated 29-1-2011 appointing
Mr. G. K. Govindasamy, Advocate, Puducherry as the
Enquiry Officer to enquire into the charge, sheet,
d ated 2 5 -1 -20 11 a nd Mr. R.V. Sathyanarayanan,
Manager - HR & Admin as the Presenting Officer in
the enquiry and enquiry was conducted and upon
admission of charges by the petitioner in the enquiry
proceedings, the enquiry was closed and based on the
enquiry report, the management had dismissed the
petitioner vide order, dated 30-5-2011 and that the
petitioner having accepted the charge, the petitioner
is now making a hue and cry by shedding crocodile
tears as though he is innocent and leniency should be
bestowed on him and therefore, the management
rejects the entire allegations of the petition
by
reiterating that the order of dismissal, dated 30-5-2011
holds good and cannot be re-considered by the
management and prays for dismissal of claim petition
filed by the petitioner.
4. On the side of the petitioner, PW.1 was examined
and Ex.P1 to Ex.Pll were marked. On the side of the
respondent, no oral evidence has been let in and no
document has been marked. Argument heard. Records
are perused.
5. The point for consideration is: Whether the
dispute raised by the petitioner against the respondent
management over his non-employment is justified or
not.
6. The Government has made this reference to
decide t h e d i s p u t e r a i s e d b y t h e p e t i t i o n e r
o v e r h i s
non-employment against the respondent
management is justified or not. On this aspect, the
records and evidence are carefully perused. In order
to prove his case, the petitioner has examined himself
as PW.l and exhibited Ex.P1 to Ex.P11. From the
evidence and exhibits marked on the side of the
petitioner, it is clear that the petitioner was
temporarily
suspended
from
the
respondent
management on 31-10-2010 and a charge memo was
given by the respondent to the petitioner on 25-1-2011
and the Enquiry Officer was appointed and the domestic
enquiry was conducted by the said Enquiry Officer in
which the Enquiry Officer has found misconduct of the
petitioner and a show cause notice was given and
773
1 August 2017]
LA GAZETTE DE L’ETAT
finally the petitioner was terminated from service on
31-5-2011. But, it is the evidence of petitioner PW.1
that he has not been given opportunity to putforth his
case in the domestic enquiry and the enquiry was
conducted in a biased manner.
7. While the case was posted for order today both
the parties have field a compromise memo along with
the statement arrived at between them stating that on
11-5-2017 both the parties have mutually agreed and
entered a Memorandum of Settlement. The copy of the
said Memorandum of settlement, dated 11-5-2017 and
the copy of the receipt is also filed along with the
memo which would reveal the fact that the
management and the petitioner has amicably entered
into the settlement on 11-5-2017 and the petitioner
has received a sum of ` 5,35,680 for his employment
benefits as one-time settlement including gratuity and
therefore, the matter has been settled between the
parties by entering the settlement and hence, the
compromise is to be recorded and Award is to be
passed in terms of settlement and the copy of the
settlement is to be attached as part and parcel of the
Award.
8. In the result, the petition is partly allowed and
the Award is passed in terms of the Memorandum of
settlement arrived at between the parties on 11-5-2017
and the same is recorded and the said Memorandum of
settlement shall be attached as part and parcel of the
Award. No costs.
Dictated to the stenographer, transcribed by her,
corrected and pronounced by me in the Open Court on
this the 12th day of May, 2017.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-Labour Court,
Puducherry.
List of petitioner’s witness:
PW. 1—7-10-2014 - K. Narayanan
List of petitioner’s exhibits:
Ex.Pl
25-1-2011
Cop y o f t h e charge-sheet.
Ex.P2
29-1-2011
C o p y o f t h e o r d e r f o r
appointment
of
Enquiry
Officer.
Ex.P3
10-2-2011
Copy
of
the
notice
of
enquiry.
Ex.P4
14-2-2011
Copy
of
the
enquiry
proceedings note.
Ex.P5
9-3-2011
Copy of the report of the
Enquiry Officer.
Ex.P6
12-3-2011
Copy of the show cause
notice.
Ex.P7
31-5-2011
Copy of the termination
order.
Ex.P8
23-12-2010
Copy of the proceedings of
domestic enquiry conducted
against one Ramesh.
Ex.P9
4-3-2011
Copy of the enquiry report
of one Ramesh.
Ex.P10
3-5-2011
Copy of the order passed
against one Ramesh.
Ex.Pll
26-4-2013
Copy of the conciliation
failure report.
List of respondent’s witness: Nil.
List of respondent’s exhibits: Nil.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-Labour Court,
Puducherry.
GOVERNMENT OF PUDUCHERRY
CHIEF SECRETARIAT (FISHERIES)
(G.O. Rt. No. 15/Fy.,
Puducherry, dated 13th July 2017)
NOTIFICATION
In pursuance of rule 4 of the Puducherry
Fishermen’s Welfare and Distress Relief Society Rules
and Regulations, read with the clause V(2) of the
Memorandum of Association of the Puducherry
Fishermen’s Welfare and Distress Relief Society, the
Lieutenant-Governor, Puducherry, is pleased to
nominate the following fishermen representatives as
Non-official Members/Special Invitees with immediate
effect so as to constitute the Seventh Governing Body
of the said Society, namely:
(i) Thiru Elango, S/o. Manickam,
.. Non-official
No. 1, Inzanci Mastri Street,
co-opted Member.
Puducherry - 605 001
(ii) Thiru Thangavadivel,
..
do
S/o. Idumban Chettiar,
No. 51, Pillaiyar Koil Street,
Karaikalmedu, Karaikal