La Gazette de L' État de Poudouchéry
The Gazette of Puducherry
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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.