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No. 37 Poudouchéry Mardi 12 Septembre 2017 (21 Bhadra 1939)
No. Puducherry Tuesday 12th September 2017
➢ S OM M A I R E S C O N T E N T S
Page Page
➢ .. 9 7 2 Sentence arbitral du travail .. 9 7 2 Award of the Labour Court .. 9 7 2
de tribunal.
• .. 9 8 1 Notifications du Gouvernement .. 9 8 1 Government Notifications .. 9 8 1 .. 9 8 5 Avis d'Adjudications .. 9 8 5 Tender notices .. 9 8 5 .. 988 Etablissements dangereux .. 988 Dangerous Establishments .. 988
.. 9 8 9 Announcements .. 9 8 9 .. 9 8 9 Annonces
[ 971 ]97 2 LA GAZETTE DE L'ETAT [12 September 2017 AWARD
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
1. This industrial dispute has been referred by the Government as per the G. O. Rt. No. l46/AIL/Lab./ J/2014, dated 26-12-2014 for adjudicating the following:-
(G. O. Rt. No. 129/Lab./AIL/T/2017,
Puducherry, dated 21st August 2017)
NOTIFICATION
(i) Whether the dispute raised by Thiru R. Ramesh a g ai n s t t h e ma na g e me n t o f M/ s . P o n d i c h er r y Co-operative Wholesale Stores Limited, Puducherry over his non-employment is justified? If justified, what relief, he is entitled to?
(ii) To compute the relief, if any awarded in
terms of money, if it can be so computed?
Whereas, the Award in I.D. (L) No. 48/2014, dated 13-6-2017 of the Labour Court, Puducherry in respect of the industrial dispute between the management of Pondicherry Co-operative Wholesale Stores Limited, Puducherry and Thiru R. Ramesh, Puducherry over non-employment has been received;
2. The averments in the claim statement of the
petitioner, in brief are as follows:
Now, therefore, in exercise of the powers conferred by sub-section (1) of section 17 of the Industrial Disputes Act, 1947 (Central Act XIV of 1947), read with the notification issued in Labour Department's G. O. Ms. No. 20/91/Lab./L, dated 23-5-1991, it is hereby directed by Secretary to Government (Labour), that the said Award shall be published in the Official Gazette, Puducherry.
(By order)
A. RAJARATHINAM, Under Secretary to Government (Labour).
————
BEFORE THE INDUSTRIAL TRIBUNAL-CUM-
LABOUR COURT AT PUDUCHERRY
Present: Thiru G. THANENDRAN, B.COM., M.L.,
Presiding Officer.
Tuesday, the 13th day of June 2017
I.D. (L) No. 48/2014
Ramesh, S/o. Rajendiran, No. 27, Jeeva Street, Shanmugapuram, Puducherry.
. . Petitioner
Versu s
The Managing Director, M/s. Pondicherry Co-operative Wholesale Stores Limited, Puducherry.
. . Respondents.
This industrial dispute coming up before me for final h e a r i n g o n 2 - 5 - 2 0 1 7 i n t h e p r e s e n c e o f T h i r u K. Velmur ugan, Co unsel fo r the p etitio ner and Thiru B. Mohandoss, 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:
(i) The petitioner joined in the respondent management on consolidated basis during the month of April, 2002 and due to his sincerity and hard work the management appointed him as daily rated Junior Assistant on 11-4-2005 and since from the date of his joining he discharged his services in a sincere and honest manner to the respondent management without any sort of blemish and further stated that he was assigned work in the Amudhasurabhi Liquor Shop, Muthialpet and on 31-8-2005 during the midnight, a theft was occurred in the said Liquor shop and the above fact was known to him only on 1-9-2005 morning, when he opened the shop along with other staffs and as instructed by the Managing D i r e c t o r , M r. S u r e s h , L e g a l A s s i s t a n t a n d Mr. Janagiraman, Deputy Manager (Liquor), the bar Cashier one Karthikeyan immediately lodged a Police complaint at Muthialpet Police Station and thereby the Police Officials rushed to the spot, enquired the staffs and took their fingerprints and also registered FIR in respect of the above theft vide FIR. No. 194/2005, dated 1-9-2005 and subsequently, the management transferred him to Arumbarthapuram Liquor Shop on 16-9-2005 and while being so, the management issued a show cause notice to the petitioner alleging stock deficit to the tune of ` 15,331 took place in the month of August, 2005 and thereby, the management asked the petitioner to deposit the sum of ` 7,665.50 within 3 days of the notice. Immediately, the petitioner approached the Managing Director Mr. P. Viveganandane and explained him that the alleged stock deficit is not due to any misappropriation but, only on account of the theft that occurred on 1-9-2005 and however, the Managing Director was not convinced and insisted him to pay the deficit amount of ` 7,665.50 to stop the further proceedings. Since, the petitioner was12 September 2017] LA GAZETTE DE L'ETAT 973 terminated the services of the petitioner which is
against the Doctrine of Proportionality and hence,
the dismissal order issued by the respondent
management is void, illegal, invalid, improper in the
eye of law.
(iii) It is further stated that on 30-10-2006, the
petitioner made a representation to the management
to review the dismissal order, dated 3-3-2006 but,
no action has been taken by the management and
hence, he has filed a writ petition before the Hon'ble
High Court of Madras under W.P. No. 27080 of 2009
and the said writ petition was disposed on 4-1-2010
with a direction to approach the Revisional Authority
or Appropriate Authority for relief and the petitioner
had filed another writ petition before the Hon'ble
High Court of Madras under W.P. No. 8709 of 2010 hailing from a poor family, on 17-10-2005 the petitioner paid only ` 1,500 towards the deficit amount and agreed to pay the remaining amount within 3 days solely to safeguard his job without any fault on his part. However, on the same day i.e., 17-10-2005 he was transferred to Head Office, Puducherry without any reason and the management suspended him from service vide letter, dated 19-10-2005 and when he questioned the Managing Director he said that it is the procedural formality and insisted him to pay the full deficit amount of ` 7,665.50 to revoke the suspension order and as such left with no other option, on 20-10-2005 the petitioner has paid the balance amount to the management and also given letter, dated 20-10-2005 for revocation of suspension. But, on the contrary the management had issued a charge-sheet, dated 21-10-2005 to the petitioner with false allegations.
to dispose off his review petition, dated 30-10-2006
and the same was allowed on 27-4-2010 by the
Hon'ble High Court of Madras with a direction to
the management to dispose of the petitioner's
representation, dated 30-10-2006 within a period of
6 weeks and as such the management through letter,
dated 18-5-2010 fixed enquiry on 28-5-2010 and
rejected his review petition vide order, dated 3-6-2010.
Aggrieved by the same, the petitioner has filed
another W.P. No.17031 of 2010 before the Hon'ble
High Court of Madras for quashing the order, dated
3-6-2010 passed by the management and consequently
direct the management to reinstate the petitioner in
his service and in view of the endorsement made by
the petitioner's Counsel on 9-1-2014, the Hon'ble
High Court of Madras passed an order dismissing
the writ petition as withdrawn granting liberty to
approach the Appropriate Authority.
(iv) It is further stated that on 19-2-2014, the
petitioner made a representation to the Labour
Officer (Conciliation), Puducherry to intervene in
the above issue in which the respondent management
submitted its reply on 10-6-2014 with evasive and
false allegations against the petitioner and since, no
amicable settlement is reached between the parties
to the dispute, this industrial dispute has been
referred to this Court by the Government for
adjudication and further stated that the Station House
Officer, Muthialpet Police Station has submitted the
Final Form Report No. 105/2006, dated 19-6-2006
in FIR No. 194/2005 before the Judicial Magistrate-II,
Puducherry and thus, it is crystal clear that once FIR (ii) It is further stated that the petitioner has submitted a detailed explanation to the management on 24-10-2005 but, the management did not appreciated the facts and contentions made by him and the management through a letter, dated 26-10-2005 appointed Mr. K. Balaji, Advocate as Enquiry Officer to enquire into the charges levelled against him and during the enquiry proceedings, the petitioner has effectively defended himself and examined two witnesses on his side and the said witnesses deposed regarding the occurrence of theft. However, the Enquiry Officer without properly appreciating the evidence and deposition of witnesses submitted his report, dated 28-2-2006 stating that the charges levelled in the charge memo., dated 21-10-2005 was proved. During the period of suspension the petitioner was compelled by the respondent m a n a g e m e n t t o p a r t i c i p a t e i n t h e e n q u i r y proceedings without giving any single pie to him towards subsistence allowance, despite his representations, dated 5-12-2005 and 30-12-2005 and that since from the date of suspension and to till the date of dismissal the management has not paid any single penny to the petitioner as suspension allowance and acted against the principles of natural justice and labour jurisprudence and the enquiry report submitted thereof is liable to be quashed as null and void. The Enquiry Officer though recommended the management to show leniency upon the petitioner on humanitarian grounds before inflicting punishment upon him, it was not considering by the management and they arbitrarily issued dismissal order, dated 3-3-2006 and thereby,
is registered, the Police Officials came to the scene97 4 LA GAZETTE DE L'ETAT [12 September 2017 of occurrence and done the investigation by examining the witnesses, taking fingerprints, etc., and thus, the act of the respondent without considering the above factual points and imputing the false charge of stock deficit upon the petitioner had no legs to stand and further stated that the act of the management is arbitrary, illegal, mala fide, unjust and invalid in the eye of law and therefore, the order of termination is liable to be set aside and further that the management and the Enquiry Officer failed to discuss anything abo ut the theft o ccur red i n t h e M u t hi a l p e t B a r on 31-8-2005 inspite of several representation made by the petitioner and the statements made by the other independent witnesses during the enquiry proceedings and further, the Managing Director of the respondent management was transferred on 28-2-2006 but, however without any authority and sanction of law, the Managing Director has passed the dismissal order, dated 3-3-2006 in a hurried situation which reflects the mala fide intention of the management and thus, the Managing Director is incompetent to pass the dismissal order, dated 3-3-2006 and hence, the dismissal order is null and void having no effect in the eye of law.
and the petitioner was not discharged his services in a sincere and honest manner and there is no truth on the allegation of the petitioner that a theft was occurred on 31-8-2005 at midnight at Amudhasurabi Liquor Shop, Muthialpet, Puducherry and further stated that the disciplinary proceedings was initiated against the petitioner for the charge described in the charge memo., dated 21-10-2005 towards misappropriation of amount of `15,331 on 1-9-2005 by committing stock deficit and the said act of misappropriation by the petitioner was a misconduct as per clause 29(26) of service regulations and it also attract misconduct of negligence as per clause 29(1) of the service regulations and the act of commission will come under the purview of the misconduct and fails to maintain absolute integrity and devotion to duty which attract under clause 28(3)(2) of service regulation and that based on the charges, the domestic enquiry was conducted by an independent person namely Thiru K. Balaji, Advocate, Puducherry and as per the findings of the Enquiry Officer all the charges of misconduct were proved and as such the management issued the order of termination, dated 3-3-2006 by a speaking order based on the principles of natural justice and further stated that the deficit amount was paid by the petitioner voluntarily and that the payment of stock deficit amount will not wipe out the charges of misconduct as per the principle of labour jurisprudence and the punishment of dismissal order, dated 3-3-2006 was passed based on the gravity of misconduct and there is no possibility to consider for employment of the petitioner and prays to dismiss the claim petition of the petitioner.
4. In the course of enquiry WW.l was examined and Ex.Wl to Ex.W38 were marked and on the side of the respondent RW.1 was examined and Ex.Rl & Ex.R2 were marked.
5. The point for consideration is:
(v) It is further stated that the respondent management has not followed the principles of natural justice and straight away issued the dismissal order enclosing the enquiry report to the petitioner and that right from the beginning the management was acted with a mala fide intention and ulterior motive, so as to terminate the services of the petitioner at any cost and further stated that by the act of the respondent, the petitioner's health got deteriorated and he has spent nearly 1.5 lakhs for all these years in filing writ petitions before the Hon'ble High Court, travelling expenses, Advocate fees, etc., and the respondent management has not paid any single pie to the petitioner till date towards his terminal benefits and that the dismissal order, dated 3-3-2006 is arbitrary, null and void, illegal, invalid, improper and hence, it is liable to be set aside and prayed this Court to direct the respondent management to reinstate the petitioner in service with full back wages, continuity of service and all other attendant benefits.
3. The brief averments of the counter statement filed by the respondent are as follows:-
The respondent denied all the averments made by the petitioner in the claim petition and stated that the petitioner was appointed on consolidated basis and subsequently observed as daily rated Junior Assistant Whether the dispute raised by the petitioner against the respondent management over his non-employment is justified or not and whether the petitioner is entitled for the relief as claimed by him?
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.
In support of his contention the learned Counsel for the petitioner has relied upon the Judgment reported in (i) 2013 (3) MLJ 101, (ii) CDJ 201312 September 2017] LA GAZETTE DE L'ETAT 975 MHC 2606, (iii) CDJ 2013 MHC 868. On the other
hand, the learned Counsel appearing for the respondent
management has also relied upon the following
Judgments : (i) CDJ 2006 SC 662, (ii) CDJ 2006 SC
1072, (iii) CDJ 2007 MHC 281, (iv) CDJ 2006 SC
305, (v) CDJ 2006 SC 113.
7. It is not in dispute that the petitioner has joined
in the respondent management on consolidated basis
in the month of April, 2002 and subsequently, he was
appointed as daily rated Junior Assistant on 11-4-2005
and he has discharged his service assigned by the
respondent management at Amudhasurabi Liquor Shop
and due to some deficit in the stock, the disciplinary
proceedings was initiated against the petitioner as
misappropriation of amount to the tune of `15,331 by committing stock deficit and after the enquiry was
conducted by the Enquiry Officer, the petitioner was
terminated from service on 3-3-2006.
8. It is the evidence of WW.l that he has not
committed any deficit in the stock and that there was
a theft taken place at the Liquor shop on the midnight
of 31-8-2005 and the Police complaint has been
lodged on 1-9-2005 before the Muthialpet Police
Station and they have registered FIR in Cr.No.194/
2005 and subsequently he was transferred from
Amudhasurabi Liquor Sho p to Ar umbarthap ur am
Liq u o r Sh o p on 16-9-2005 and the respondent
management has issued a show cause notice to the
petitioner for stock deficit to the tune of ` 15,331 and he has not misappropriated any amount as alleged by
the respondent and only stock deficit occurred due to
the theft taken place on the midnight of 31-8-2005 and
after receipt of the notice for stock deficit he
approached the Managing Director of the respondent
management and the Managing Director insisted him
the Hon'ble High Court with a direction to approach the Revisional Authority for relief and subsequently, another Writ Petition was filed by the petitioner in W.P. No. 8709 of 2010 in which the Hon'ble High Court has directed the respondent management to dispose the petitioner's representation, dated 30-10-2006 within a period of 6 weeks and the respondent management fixed an enquiry on 28-5-2010 and rejected his review petition on 3-6-2010 against which the petitioner had filed a Writ Petition in W.P. No.17031 of 2010 to quash the order passed by the respondent management and to reinstate the petitioner in service and however, in view of the endorsement of the petitioner's Counsel on 9-1-2014 the Hon'ble High Court was pleased to dismiss the Writ petition as withdrawn granting liberty to approach the appropriate authority and the respondent has not followed the procedure of principles of natural justice straight away issued the dismissal order enclosing the enquiry report to the petitioner and the respondent management and the Enquiry Officer have failed to discuss about the theft occurred in the midnight of 31-8-2005. In order to prove the case of the petitioner, apart from the oral evidence of WW.l, the petitioner has exhibited Ex.Wl to Ex.W38. The oral evidence of WW.1 and the documents marked by him would evident that on 1-9-2005 the Muthialpet Police Station has registered a case for the theft committed at the respondent establishment wherein, the petitioner was working and it was closed as undetected on 19-6-2006 and subsequently, the petitioner was transferred to other establishment of the respondent and he was suspended from service and the petitioner made some representation to the respondent management and has given explanation and the enquiry was conducted against him and subsequently, he was terminated from service against which he has filed Writ petitions before the Hon'ble High Court and the petitioner has obtained some information under the Right to Information Act. to pay the deficit amount of ` 7,665.50 to the management and he has depo sited the amount of
` 1,500 towards the deficit amount of ` 7,665.50 and while so, he was suspended from service and
subsequently, he has paid the balance deficit amount
on 20-10-2005 to the respondent management and
subsequently, the domestic enquiry was conducted
without following the procedure and the petitioner has
been permitted to participate in the enquiry
proceedings and a report was submitted on 28-2-2006
and no subsistence allowance was paid to him and he
was terminated from service on 3-3-2006 and he
approached the Hon'ble High Court in W.P. No. 27080
9. On the side of the respondent, the Deputy Manager of Pondicherry Co-operative Wholesale Stores Limited was examined as RW.l and he has stated in his evidence that it is true that the petitioner has joined in the Pondicherry Co-operative Wholesale Stores Limited intially, on consolidated basis and subsequently as daily rated Junior Assistant on 11-4-2005 and that the petitioner was assigned to work in the Amudhasurabi Liquor Shop, Muthialpet by the respondent management and however, there is no truth in the allegation that he has discharged his service in a sincere and honest manner without any blemish and also the allegation that on 31-8-2005 during the of 2009 and the same was disposed on 4-1-2010 by97 6 LA GAZETTE DE L'ETAT [12 September 2017 Police Station as Ex.W2 and that the respondent management has not given opportunity by issuing a show cause notice to decide the punishment which is to be given to the petitioner after getting the domestic enquiry report from the Enquiry Officer and that the demestic enquiry was not in accordance with the principles of natural justice and since, even the petitioner has not given subsistence allowance though he was suspended at the time of conducting the domestic enquiry.
12. On this aspect, the evidence of RW.1 was
perused which runs as follows:
midnight a theft occurred in the Amudhasurabi Liquor shop and further, he deposed that the respondent has taken disciplinary action for the misconduct committed by the petitioner and that there is a deficit in the stock as per the stock register and that therefore, the petitioner has committed mis-appropriation on 1-9-2005 by deficiting the stock of the Amudhasurabi Liquor Shop and the domestic enquiry was conducted by an independent person and in the enquiry, the charges of mis-conduct was proved against the petitioner and a report was submitted by the Enquiry Officer on 28-2-2006 and that therefore, the petitioner was given an opportunity to defend his charge and that therefore, the management has dismissed the petitioner from ser vice thr o ugh o ffice o r d er, d ated 3 -3 -2 00 6 b y a speaking order and that therefore, the petitioner is not entitled for any reinstatement.
" ▪ ➢ ➢ ➢ ➢ ➢ ➢ ▪ ▪➢ ➢ ▪ ▪ ▪ ▪ Memo. ➢ ➢ Memo. ➢ ➢ ➢ ➢ ▪➢▪▪➢ ➢ ➢ ➢ ▪ ➢ ➢ ➢ ➢ ➢ ➢ ▪ ➢ ▪ ▪ ➢ ➢ ▪ ➢➢▪".
10. From the evidence of RW1, it is clear that the contention of the respondent management is that the petitioner had committed misconduct of misappropriation to the tune of `15,331 on 1-9-2005 and the domestic enquiry was conducted in accordance writh the natural justice and thereby, he has been removed from service and hence, the petitioner is not entitled for any order of reinstatement. On the other hand, it is clear from the pleadings of the petitioner that the contention of the petitioner is that the stock deficit was occurred o nly d ue to the theft o ccur red on the mid night o f 3 1 -8 -2 0 0 5 fo r wh ic h th e FI R wa s r e gi st er ed on 1-9-2005 and the deficit amount also has been paid by him as directed by the management and he has not been given appropriate opportunity in the domestic enquiry and even the Enquiry Officer who conducted the domestic enquiry has recommended that to give only lenient punishment to him it was not considered by the management and it is also clear from the evidence of WW.1 that the further contention of the petitioner is that he has not committed any misappropriation as alleged by the respondent management and theft is the only reason for the stock deficit and after the enquiry the respondent management has not given any show cause notice before passing the order of termination of service of the petitioner and though the petitioner was under suspension, the subsistence allowance has not been paid to the petitioner while the domestic enquiry was conducted.
11. The learned Counsel appearing for the petitioner pointed out that they have proved the fact of theft was committed at Amudhasurabi Liquor Shop by filing the copy of the FIR registered by Muthialpet
From the above evidence, it is clear that the petitioner has not committed any other mis-conduct in their service except the stock deficit alleged to have been committed by him on 1-9-2005 and further, it is also clear that the respondent management would not take any further action for the stock deficit if, the explanation is accepted by them for the stock deficit. But, in this case, they have not exhibited any explanation of any one of the employee before this Court.
12 September 2017] LA GAZETTE DE L'ETAT 977Further evidence of RW.1 runs as follows:
"•▪ ` ➢ ▪ ▪ • ▪ ➢ ▪ ▪ ➢ ▪ ▪ ▪ ▪ ➢ ➢ ▪ ▪ ▪ ➢ Managing Director ➢ ➢ ▪ ➢ ▪• ➢ ➢ ➢ ▪ "
From the above evidence, it is clear that the respondent management has admitted the fact that information in Ex.W38 was issued by the respondent Co-operative Stores Limited under the Right to Information Act to the petitioner and it is also admitted by the respondent management RW.l that for every year, the respondent management has found not less than 100 workmen are committing stock deficit and from the year 2000-2015 for about 15 years not less than 1500 workmen have committed stock deficit in which only 4 persons have been terminated and furthermore, it is also admitted by RW.l that one Manikandan whose name was mentioned in Ex.W38 and who was removed from service by the respondent management for misappropriation by committing stock deficit has been once again appointed in the respondent Co-operative Stores Limited and furthermore, though admittedly 1500 workmen alleged to have been committed misappropriation by committing stock deficit, the respondent management has failed to state that why 1496 workmen have been left without any punishment of termination of service since 4 only have been given punishment of termination of service. These facts would go to show that the respondent management has not taken any uniform stand in taking disciplinary action in respect of misappropriation committed by the workers. Though admittedly, 1500 workmen have been committed stock deficit, nothing is before this Court why 1496 workmen have not been terminated from service and 4 of them alone have been terminated from service for the charge of stock deficit.
13. All the citations relied upon by the respondent management has enlightened that if, any workman committed any misappropriation it should be viewed seriously and has to be punished severely. But, in this case, admittedly, the FIR has been registered by the Police for the offence of theft of some goods in the Liquor shop and the same was admitted by the respondent side. Mere the case was closed as undetected could not amount that this petitioner and the salesman have committed stock deficit and that therefore, the charges levelled against the petitioner itself is suspicious and in such circumstances, the severe punishment of termination from service cannot be imposed and hence, the punishment of termination is not a reasonable one in this case.
14. Particularly, in this case admittedly, the FIR has been registered by the police for the offence of theft alleged to have been happened on the midnight of 31-8-2005 which would go to show that there might be a theft in the said night and thereby, the stock deficit might have been happened on 1-9-2005 when the respondent Officers audited the same. This alone is sufficient that there is a suspicion over the alleged misconduct of charge levelled against the petitioner that he has committed stock deficit. Though the Police might not have found out the accused who has committed the theft and closed the case as undetected that alone is not sufficient to conclude that this petitioner alone has committed stock deficit with the intention of misappropriate the funds of the respondent and thereby, the decision taken by the Enquiry Officer that the petitioner has committed stock deficit in the domestic enquiry is not sustainable and therefore, the decision taken by the respondent management and the Enquiry Officer that conclusively the petitioner has committed stock deficit cannot be accepted.
15. Furthermore, as far as the punishment of termination from the service of the petitioner is concerned, it is contended by the petitioner that the respondent management has not given any show cause notice to the petitioner to decide the punishment.
It is learnt from Ex.W12-Enquiry report that the enquiry wa s f i n a l i z e d a n d t h e r e p o r t wa s ma d e o n l y o n97 8 LA GAZETTE DE L'ETAT [12 September 2017 28-2-2006 and the petitioner was terminated on 3-3-2006 without giving any notice. The respondent also has not exhibited any such notice before this Court that they have issued any notice to the petitioner for giving an opportunity to make his representation as to why the proposed punishment should not be inflicted against him. In this case, no notice was sent by the respondent management to the petitioner after getting the report from the Enquiry Officer before terminating the petitioner from service. As admittedly, no notice was given to him by the respondent management, it is clear that they have not followed the procedures laid down under the Constitution of India under Article 311(2) by refusing the reasonable opportunity to the petitioner. It is mandate to give an opportunity to the petitioner to make his representation as to why the proposed punishment should not be inflicted against him. But, in this case, no notice was issued before passing the order of termination of the petitioner from service. Hence, it is clear that the respondent management has not followed the principles of natural justice in giving opportunity to the petitioner before terminating the petitioner from service.
16. Furthermore, the learned Counsel appearing for the petitioner relied upon the Judgment reported in CDJ 2013 MHC 2606, in which the Hon'ble High Court of Madras has observed that,
"As rightly argued by the learned Counsel for the second respondent that when the petitioner was placed under suspension from 11-3-1996, it was the bounden duty of the petitioner management to pay the subsistence allowance till passing of the final order of termination on 1-9-2000. But, the petitioner management p ai d t he su b si s te nc e a l lo wan ce fr o m 11 - 3 - 1 9 9 6 to 31-10-1998 only and after 1-11-1998 for the reason best known to them, they stopped the subsistence allowance. Since, the enquiry was held after 31-10-1999, the petitioner management financially prevented the second respondent employee from participating in the enquiry for the reason of non-payment of subsistence allowance. In this context, the Law is well stated that, "the payment of subsistence allowance to an employee under suspension was not a bounty but a right. No justifiable ground was made out by the respondents for non-payment of the subsistence allowance. The appellant was unable to appear in the enquiry on account of non-payment of subsistence allowance. It was a clear case of breach of principles of natural justice."
From the above observation of the Hon'ble High Court, it is clear that whenever the workman is suspended, he should be given subsistence allowance till the end of the disciplinary action, otherwise it can be inferred that the respondent management has financially prevented the workman from participating in the enquiry for the reason of non-payment of subsistence allowance. In this case, also admittedly, the petitioner was not given subsistence allowance by the respondent management throughout the domestic enquiry and hence, it can be inferred that the petitioner was financially prevented from participating the enquiry. Furthermore, as rightly pointed out by the petitioner's Counsel admittedly, though the petitioner has paid entire deficit amount within the short period of 10 days from the date of show cause notice, the punishment of termination is highly excessive and he can be given lighter punishment and furthermore, while 1496 delinquent workmen have been left without any punishment of termination of service, though the petitioner has paid the stock deficit amount as directed by the respondent management, the punishment given to the petitioner is highly excessive and that therefore, for the foregoing reasons, it is clear that the punishment given by the respondent management that terminating the petitioner from service is not sustainable and unlawful and hence, the dispute raised by the petitioner before the Conciliation Officer is justified and the petitioner is entitled for order of reinstatement.
17. As this Court has decided that the industrial dispute raised by the petitioner before the Conciliation Officer is justified, it is to be decided whether the petitioner is entitled for backwages with continuity of service as claimed by the petitioner. In respect of the back wages and other attendant benefits absolutely there is no evidence that the petitioner was not working anywhere else after the dismissal and that therefore, he cannot be given full backwages. However, it is not the case of the respondent that the petitioner is working anywhere else and hence, considering all the above facts and circumstances and the above foregoing reasons, this Court finds that the petitioner is entitled for only part of backwages and hence, this Court tentatively fix that the petitioner is entitled only for 25% back wages.
18. In the result, the petition is partly allowed and the industrial dispute raised by the petitioner over the non-employment is justified and an Award is passed by directing the respondent to reinstate the petitioner in service with continuity of service and further, directed the respondent management to pay 25% of backwages to the petitioner from the date of raising the industrial dispute before the Conciliation Officer till the date of reinstatement with other attendant benefits. No cost.
12 September 2017] LA GAZETTE DE L'ETAT 979Dictated to the Stenographer, transcribed by her, corrected and pronounced by me in the open Court on this the 13th day of June, 2017.
G. TH ANEN DRA N, Presiding Officer, Industrial Tribunal-cum- Labour Court, Puducherry.
————
Ex.W9 — 21-10-2005 — Copy of the charge-sheet
issued by the respondent
m a n a g e m e n t t o t h e
petitioner.
Ex.W10 — 24-10-2005— Copy of the explanation
l e t t e r s e n t b y t h e
petitioner to the respondent
management.
Ex.W11 — 26-10-2005— Copy of the Enquiry
Officer appointment letter.
List of petitioner's witness:
W.W.1 — 23-01-2016 — R. Ramesh
Ex.W12 — 28-02-2006— Copy of the enquiry report.
List of petitioner's exhibits:
Ex.W1 — 11-04-2005— C o p y o f t h e o r d e r issued by the management in appointing the petitioner as Junior Assistant.
Ex.W2 — 01-09-2005 — Copy of the FIR No. 194/2005 by the Station House Officer, Muthialpet Police Station.
Ex.W3 — 19-06-2006— Copy of the Final Form Report No. 105/2006 in FIR No. 194/2005 submitted by the Station House Officer, Muthialpet Police Station to the Hon'ble Judicial Magistrate-II, Puducherry.
Ex.W4 — 16-09-2005 — Copy of the transfer order of the petitioner issued by the management.
Ex.W5 — 17-10-2005 — Copy of the transfer order of the petitioner issued by the management.
Ex.W6 — 19-10-2005 — Copy of the suspension order of the petitioner issued by the management.
Ex.W7 — 17-10-2005 — C o p y o f t h e re c e i p t s and issued by the respondent 20-10-2005 towards payment of deficit amount by the petitioner-3 Nos.
Ex.W8 — 20-10-2005 — Copy of the letter given by the petitioner to the management.
Ex.W13 — 03-03-2006— C o p y o f t he d i smis sa l
order issued by the
respondent.
Ex.W14 — 05-12-2005— Copy of the letter given
by the petitioner to the
respondent requesting
subsistence allowance.
Ex.W15 — 30-12-2005 —Copy of the letter given
by the petitioner to the
respondent requesting
subsistence allowance.
Ex.W16 — 30-10-2006— Copy of the letter given
by the petitioner to the
respondent requesting
review of the dismissal
order.
Ex.W17 — 04-01-2010— Copy of the order of the
Hon'ble High Court of
Madras in W.P. No. 27080/
2009.
Ex.W18 — 27-04-2010— Copy of the Hon'ble
High Court of Madras
in W.P. No. 8709/2010.
Ex.W19 — 18-05-2010— Copy of the letter sent
to the petitioner by the
management.
Ex.W20 — 28-05-2010— Copy of the letter given
by the petitioner to the
management.
Ex.W21 — 03-06-2010— Copy of the order sent
by the management
rejecting the petitioner's
review petition.
98 0 LA GAZETTE DE L'ETAT [12 September 2017Ex.W22 — 09-01-2014— Copy of the order of the Hon'ble High Court of Madras in W.P. No. 17031/ 2010.
Ex.W23 — 19-02-2014— C o p y o f t h e representation made by the petitioner to the Labour Officer (Conciliation), Puducherry.
Ex.W24 — 10-06-2014— Copy of the reply s u b m i t t e d b y t h e respondent to the Labour Officer (Conciliation), Puducherry.
Ex.W25 — 26-06-2014— Copy of the objection letter submitted by the petitioner to the Labour Officer (Conciliation), Puducherry.
Ex.W26 — 08-10-2014— Copy of the failure report forwarded by the Labour Officer (Conciliation), Puducherry to the Secretary to Government (Labour), Puducherry.
Ex.W27 — 10-10-2005— Copy of the memo issued by the respondent management to the petitioner.
Ex.W33 — 08-02-2014— Copy of the RTI
application submitted by
the petitioner to the PIO
of respondent management.
Ex.W34 — 28-02-2014— Copy of the RTI reply
given by the respondent
to the petitioner.
Ex.W35 — 11-03-2014— Copy of the RTI Appeal
submitted by the petitioner
t o t h e R e g i s t r a r o f
Co-operative Societies,
Puducherry (1st Appellate
Authority).
Ex.W36 — 15-04-2014 —Copy of the Order
passed by the Registrar
of Co-operative Societies,
Puducherry (1st Appellate
Authority).
Ex.W37 — 21-03-2014 —Copy of the letter sent
by the respondent
management to the
petitioner along with
enclosure.
Ex.W38 — 13-02-2016 —Copy of the reply to
Form-I, dated 14-1-2016
filed under the Right to
Information Act, 2005.
List of respondent's witness:
Ex.W28 — 23-10-2006— Copy of the reminder letter submitted by the p e t i t i o n e r t o t h e respondent.
RW.1 — 14-02-2017 — R.T. Gunasekaran List of respondent's exhibits:
Ex.W29 — 06-01-2010— C o p y o f t h e R T I application submitted by the petitioner to the PIO of respondent management.
Ex.W30 — 03-02-2010— Copy of the RTI reply given by the respondent to the petitioner.
Ex.W31 — 22-02-2010— Copy of the RTI application submitted by the p etitio ner to the PIO of respondent management.
Ex.W32 — 20-03-2010— Copy of the RTI reply given by the respondent to the petitioner.
Ex.R1 — Copy of the Employees'
Service Regulations of the
Pondicherry Co-Operative
Wholesale Stores Limited,
P44 (Amudhasurabi).
Ex.R1 20 10 Copy of the Writ Petition
in W.P. No. 17032/2010
filed by Karthikeyan
before the Hon'ble High
Court of Madras.
G. TH ANEN DRA N,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.