

La Gazette de L' État de Poudouchéry

The Gazette of Puducherry

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Published by Authority

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

2017 } | 12 {

No.

37

Poudouchéry

Mardi

12

Septembre

2017 (21 Bhadra 1939)

No.

Puducherry

Tuesday

12th

September

2017



SOMMAIRES

CONTENTS



Page

Page

.. 972

Sentence arbitral du travail

.. 972

Award of the Labour Court .. 972

de tribunal.



.. 981

Notifications du Gouvernement

.. 981

Government Notifications .. 981



.. 985

Avis d’Adjudications

.. 985

Tender notices

.. 985



.. 988

Etablissements dangereux

.. 988

Dangerous Establishments

.. 988



.. 989

Annonces

.. 989

Announcements

.. 989

[ 971 ]

Registered with the Registrar

of Newspapers for India under

No. 10410

Registered No. SSP/PY/44/2015-17

WPP No. TN/PMG(CCR)/WPP-88/2015-17

Dated : 12-9-2017

Price : ` 17-00

972

LA GAZETTE DE L’ETAT

[12 September 2017

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G. O. Rt. No. 129/Lab./AIL/T/2017,

Puducherry, dated 21st August 2017)

NOTIFICATION

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;

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

Versus

The Managing Director,

M/s. Pondicherry Co-operative

Wholesale Stores Limited,

Puducherry.

. . Respondents.

This industrial dispute coming up before me for final

hearing on 2-5-2017 in the presence of Thiru

K. Velmurugan, Counsel for the petitioner 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:

AWARD

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:-

(i) Whether the dispute raised by Thiru R. Ramesh

against the management of M/s. Pondicherry

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?

2. The averments in the claim statement of the

petitioner, in brief are as follows:

(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

Director, Mr. Suresh, Legal Assistant and

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 was

973

12 September 2017]

LA GAZETTE DE L’ETAT

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.

(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

management to participate in the enquiry

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,

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

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

is registered, the Police Officials came to the scene

974

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 about the theft occurred

in the Muthialpet Bar 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.

(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

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:

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 2013

975

12 September 2017]

LA GAZETTE DE L’ETAT

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 Shop to Arumbarthapuram

Liquor

Shop 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

to pay the deficit amount of

` 7,665.50 to the

management and he has deposited 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

of 2009 and the same was disposed on 4-1-2010 by

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.

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

976

LA GAZETTE DE L’ETAT

[12 September 2017

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

service through office order, dated 3-3-2006 by

a speaking order and that therefore, the petitioner is not

entitled for any reinstatement.

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

only due to the theft occurred on the midnight of

31-8-2005 for which the FIR was registered 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

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:

“



























Memo.



Memo.

















































”.

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.

977

12 September 2017]

LA GAZETTE DE L’ETAT

Further 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

was finalized and the report was made only on

978

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

paid the subsistence allowance from 11-3-1996

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.

979

12 September 2017]

LA GAZETTE DE L’ETAT

Dictated to the Stenographer, transcribed by her,

corrected and pronounced by me in the open Court on

this the 13th day of June, 2017.

G. THANENDRAN,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.

————

List of petitioner’s witness:

W.W.1 — 23-01-2016 — R. Ramesh

List of petitioner’s exhibits:

Ex.W1 — 11-04-2005— Co py o f the

order

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 — Copy of the receipts

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.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

letter

sent

by

the

petitioner to the respondent

management.

Ex.W11 — 26-10-2005— Copy of the Enquiry

Officer appointment letter.

Ex.W12 — 28-02-2006— Copy of the enquiry report.

Ex.W13 — 03-03-2006— Copy of the dismissal

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.

980

LA GAZETTE DE L’ETAT

[12 September 2017

Ex.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.W28 — 23-10-2006— Copy of the reminder

letter submitted by the

petitioner

to

the

respondent.

Ex.W29 — 06-01-2010— C o p y o f t h e RT 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 petitioner to the

PIO

of

respondent

management.

Ex.W32 — 20-03-2010— Copy of the RTI reply

given by the respondent

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

to the Registrar 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:

RW.1 — 14-02-2017 —

R.T. Gunasekaran

List of respondent's exhibits:

Ex.R1

—

Copy of the Employees'

Service Regulations of the

Pondicherry Co-Operative

Wholesale Stores Limited,

P44 (Amudhasurabi).

Ex.R1

2010

Copy of the Writ Petition

in W.P. No. 17032/2010

filed by Karthikeyan

before the Hon'ble High

Court of Madras.

G. THANENDRAN,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.