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21 {
No.
47
Poudouchéry
Mardi
21
Novembre
2017 (30 Kartika 1939)
No.
Puducherry
Tuesday
21st
November
2017
1270
LA GAZETTE DE L’ETAT
[21 November 2017
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 151/Lab./AIL/T/2017
Puducherry, dated 10th October 2017)
NOTIFICATION
Whereas, the Award in I.D. (T) No. 07/2011, dated
29-08-2017 of the Industrial Tribunal, Puducherry in
respect of the industrial dispute between the Management
of M/s. Pondicherry Co-operative Spinning Mills
Limited, Puducherry and Puduvai Mill Thozhilalargal
Sangam, Puducherry over violation of change of service
conditions under section 9-A of the Industrial Disputes
Act, 1947 has been received.
Now, therefore, in exercise of the powers conferred
by sub-section (1) of section 17 of the Industrial
Disputes Act, 1947 (Central Act XIV of 1947), read
with the notification issued in Labour Department’s
G. O. Ms. No. 20/91/Lab./L, dated 23-5-91, it is hereby
directed by the Secretary to Government (Labour) that
the said Award shall be published in the Official Gazette,
Puducherry.
S. MOUTTOULINGAM,
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 29th day of August, 2017
I.D. (T) No. 7/2011
The President,
Puduvai Mill Thozhilalargal Sangam,
No.42, Cuddalore Road,
Bharathi Mill Thittu,
Mudaliarpet,
Puducherry-605 004.
. . Petitioner
Versus
The Managing Director,
M/s. Pondicherry Co-Operative
Spinning Mills Limited,
Thiruvandarkoil (Post),
Thirubuvanai,
Puducherry-605 102.
. . Respondent
This industrial dispute coming on 3-8-2017 before
me for final hearing in the presence of M/s. Vrintha
Mohan, Advocate for the petitioner, Thiru P. Rabindran,
Advocate for the respondent, upon hearing both sides,
upon perusing the case records, after having stood
over for consideration till this day, this Court passed
the following:
AWARD
1. This industrial dispute has been referred by the
Government as per the G.O. Rt. No. 121/AIL/Lab./J/2011,
dated 16-6-2011 for adjudicating the following:-
(i) Whether the dispute raised by Puduvai Mill
Thozhilalargal Sangam, Puducherry against the management
of M/s. Pondicherry Co-Operative Spinning Mills
Limited, Puducherry over violation of change of service
conditions under section 9-A of the Industrial Disputes
Act, 1947 is justified?
(ii) If justified, to what relief they are entitled to ?
(iii) To compute relief if any, awarded in terms of
money if, it can be so computed?
2. It is the case of the petitioner union that the
respondent company is a Co-operative Mill registered
under the Pondicherry Co-operative Societies Act and
the respondent management functioning from 1984
and 500 workmen were working under various
divisions/departments and all of them have been
enrolled into the services of the respondent as
apprentice and subsequently their services were
confirmed as permanent workmen after the completion
of the training period and due to the mismanagement
of the respondent establishment the respondent
establishment Mill met with a loss and under the guise
of welfare of the mill the management had started to
adapt various wrong procedures and methods and to
ensure the same it followed improper and malicious
transfer policies of its workmen and the mill has given
unilateral hasty decision of closing the Reeling Division
which produces hank yarn from the inception of the
mill and thereby transferring 39 workmen employed
thereby dividing them into three groups of 13 each in
the post of ‘Junior most Doffer’ and the petitioners
had protested the stand of the management and the
matter was taken to the knowledge of the Managing
Director opposing the decision of the management to
close down the Reeling Section and also the petitioners
h av e s e nt a r ep r es e nt a t io n t o t h e r es p o n d en t
management, the Labour Conciliation Officer, the
Co-operative Minister, Puducherry, the Chief Secretary,
Puducherry, the Co-operative Director, Puducherry and
1271
21 November 2017]
LA GAZETTE DE L’ETAT
to the Director, Economics and Statistics Branch
objecting the same and the management had divided the
transferred 39 workmen from Reeling Department to
Ring Frame Department - Noorpu Pirivu A/B/C into
three groups and these 39 workmen to work as Doffer
were forced to work under their colleagues and that
therefore, they have raised the industrial dispute
challenging the transfer of 39 workmen and dividing
them 3 groups and prayed to decide the reference in
favour of them and to grant appropriate reliefs to them.
3. On the other hand, it is the case of the respondent
that section 9-A of the Industrial Disputes Act would
only deals with any change in the conditions of the
service applicable to any workmen in respect of any
matter specified in the IV schedule and if any such
change is proposed in the conditions of the service
without giving notice to other side and that in this case
there is no such change of service condition and hence,
nothing in any manner attract section 9-A of the
Industrial Disputes Act and that therefore, the transfer
of 39 workmen belonging to the category of ‘Reeler’
were transferred to the Spinning Department to carry
out the work of 'Doffer' would not make any change of
service condition and the Reelers were engaged only
for 2 shifts and since the respondent management is
not able to generate profit oriented business to suffer
a drastic set back in addition to facing difficulties in
running the mill and as taking into consideration of
such beneficial aspects with due benefits of saving
labourers and other employees to reduce the gross loss
to the Mill and to avoid frequent lay-off and
retrenchment of Reelers, the respondent management
committee decided to stop production of Hank yarn
itself and only with the bona fide interest of the
labourers, has transferred 39 mill operatives belonging
to the category of Reelers to the Spinning Department
and therefore, there is no notice under section 9-A of the
Act is required for transfer the 39 workmen and therefore,
there is no violation of change of service conditions
under section 9-A of the Industrial Disputes Act.
4. In the course of enquiry on the side of the
petitioner PW.1 and PW.2 were examined and Ex.P1 to
Ex.P.54 were marked and on the side of the respondent
RW.1 was examined and Ex.R1 to Ex. R18 were marked.
5. The point for consideration is:
Whether the dispute raised by the petitioner against
the respondent management over violation of change of
service conditions under section 9-A of the Industrial
Disputes Act, 1947 is justified or not and if, justified
what relief the petitioners are entitled to?
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 and pleadings of both the
parties are carefully considered.
7. It is clear from the pleadings of both the parties
that both the parties have admitted the fact that these
petition mentioned union members are the workers of
the respondent Co-operative Mill and 500 workmen
were working under various divisions and departments
of the respondent management and these petitioners
were working as a Reelers and they have worked at the
Reeling Division of the respondent mill which
produces hank yarn from the inception of the
respondent mill and
39 workmen have been
transferred by dividing them into 3 gro up s o f
13 each for the post of ‘Doffer’ and the petitioner
union has raised this industrial dispute before the
respondent management and the Labour Conciliation
Officer for conciliation which was failed and the
reference has been made to this Court.
8. In order to prove the case of the petitioner PW.1
and PW.2 were examined and they have reiterated
the averment of the claim petition in their
Chief Examination and they have exhibited the copy of
the Office Order issued by the Pondicherry Co-operative
Spinning Mills Limited as Ex.P1, the copy of the Action
as Ex.P2, the copy of the Writ Petition No. 471/2004
before the Hon’ble High Court of Madras (1) Manavalan
Vs. SPINCO) as Ex.P3, the copy of the letter by the
Puduvai Mill Thozilalar Sangam (CITU) to Managing
Director, SPINCO as Ex.P4, the copy of the Office
Order issued by the Pondicherry Co-operative Spinning
Mills Limited as Ex.P5, the copy of the letter by the
Reeling Section workmen to the Managing Director,
SPINCO as Ex.P6, the copy of the letter to R. Avaniappan,
General Secretary of CITU by SPINCO as Ex.P7, the
copy of the letter by the Puduvai Mill Thozilalar
Sangam (CITU) to Managing Director, SPINCO as
Ex.P8, the letter by M. Manavalan to the Managing
Director, SPINCO as Ex.P9, the copy of the letter by
the Puduvai Mill Thozilalar Sangam (CITU) to
Chief Secretary, Pondicherry Government as Ex.P10,
the copy of the letter by the Puduvai Mill Thozilalar
Sangam (CITU) to Co-operative Minister, Pondicherry
Government as Ex.P11, the copy of the letter by the
Puduvai Mill Thozilalar Sangam (CITU) to Director of
Labour Department, Pondicherry Government as
Ex.P12, the copy of the Form L by President, Puduvai
Mill Thozilalar Sangam (CITU) as Ex.P13, the copy of
the letter by the Puduvai Mill Thozilalar Sangam
(CITU) to Director, Economics and Statistics Branch,
1272
LA GAZETTE DE L’ETAT
[21 November 2017
Office of the Textile Commissioner, Mumbai - 20 as
Ex.P14, the copy of the letter by the Puduvai Mill
Thozilalar Sangam (CITU) to Director, Regional
Officer of the Textile Commissioner, Coimbatore as
Ex.P15, the copy of the letter by the Puduvai Mill
Thozilalar Sangam (CITU) to Director, Regional
Officer of the Textile Commissioner, Banglore as
Ex.P16, the copy of the letter by the Puduvai Mill
Thozilalar Sangam (CITU) to The Managing Director,
SPINCO as Ex.P17, the copy of the letter by R.
Kuppan, Employee No. 485 to the Managing Director,
SPINCO as Ex.P18, the copy of the letter by P.K. Selvaraj,
Employee No. 531 to the Managing Director, SPINCO
as Ex.P19, the copy of the letter by S. Kuppusamy,
Employee No. 402 to the Managing Director, SPINCO
as Ex.P20, the copy of the letter by P. Sekar, Employee
No. 542 to the Managing Director, SPINCO as
Ex.P21, the copy of the letter by V. Govinda Reddy,
Employee No. 45 to the Managing Director, SPINCO
as Ex.P22, the copy of the letter by M. Piraisoodi,
Employee No.286 to the Managing Director, SPINCO
a s E x . P 2 3 o f t h e
c o p y o f t h e
l e t t e r b y
A. Muthalu, Employee No. 145 to the Managing Director,
SPINCO as Ex.P24, the copy of the letter by S. Balan,
Employee No. 156 to the Managing Director, SPINCO
as Ex.P25, the copy of the letter by E. Dhandapani,
Employee No. 593 to the Managing Director, SPINCO
as Ex.P26, the copy of the letter by S. Durairaj,
Employee No. 157 to the Managing Director, SPINCO as
Ex.P27, the copy of the letter by R. Rajaram, Employee
No.495 to the Managing Director, SPINCO as Ex.P28,
the letter by K. Vadivelu, Employee No. 38 to the
Managing Director, SPINCO as Ex.P29, the letter by
S. Arumugam, Employee No. 365 to the Managing
Director, SPINCO as Ex.P30, the letter by P. Rajendiran,
T.No. 443 to the Managing Director, S P I N C O a s
Ex.P 3l, the co py of the letter by P. Singaravelu,
Employee No. 330 to the Managing Director, SPINCO
as Ex.P32, the copy of the letter by V.M. Ramamourthy,
Employee No. 452 to the Managing Director, SPINCO
as Ex.P33, the copy of the letter by S. Ravichandiran,
Employee No. 396 to the Managing Director, SPINCO
as Ex.P34, the copy of the letter by J. Dayalan,
Employee No. 528 to the Managing Director, SPINCO
as Ex.P35, the copy of the letter by P. Bramman,
Employee No. 334 to the Managing Director, SPINCO
as Ex.P36, the copy of the letter by R. Krishnamourthy,
Employee No. 419 to the Managing Director, SPINCO
as Ex.P37, the copy of the letter by N. Subramani,
Employee No. 255 to the Managing Director, SPINCO
as Ex.P38, the copy of the letter by V. Kadavul,
Employee No. 481 to the Managing Director, SPINCO as
Ex.P39, the copy of the letter by K. Elangovan,
Employee No.72 to the Managing Director, SPINCO as
Ex.P40, the copy of the letter by V. Krishnamourthy,
Employee No. 250 to the Managing Director, SPINCO as
Ex.P41, the copy of the letter by S. Ilayaperumal,
Employee No. 167 to the Managing Director, SPINCO
as Ex.P42, the copy of the letter by J. Jeganathan,
Employee No.35 to the Managing Director, SPINCO as
Ex.P43, the copy of the letter by K. Sankar, Employee
No. 218 to the Managing Director, SPINCO as Ex.P44,
the copy of the letter by P. Murugaiyan, Employee No. 53
to the Managing Director, SPINCO as Ex.P45, the
copy of the letter by K. Mourthy, Employee No.600 to
the Managing Director, SPINCO as Ex.P46, the copy
of the letter by B. Pandurangam, Employee No. 472 to
the Managing Director, SPINCO as Ex.P47, the copy of
the letter by R. Sridharan, Employee No. 404 to the
Managing Director, SPINCO as Ex.P48, the copy of
the letter by the Managing Director, SPINCO to the
Labour Officer, (Conciliation) as Ex.P49, the copy of
the letter to the Labour Officer, (Conciliation) by
CIRU as Ex.P50, the report on failure of conciliation
to the Secretary to Government of Pondicherry
(Labour) by the Labour Officer, Conciliation as
Ex.P51, G.O. Rt. No. 121/AIL/Lab./J/2011 issued by
the Labour Department Puducherry as Ex.P52, Notice
in ID(T).07/2011, PDJ, Puducherry as Ex.P53 and
notice in ID(T).07/2011, LC, Puducherry as Ex.P54.
9. On the other hand, in order to prove the case of
the respondent, RW.1 was examined and RW.1 has
reiterated the counter averments in his evidence and
the respondent has exhibited the copy of the transfer
order by the Pondicherry Co-operative Spinning Mills
Limited as Ex.Rl, the copy of the letter by K. Elangovan
to the Co-operative Mills, Thirubuvani as Ex.R2, the copy
of the Office Order by the Pondicherry Co-operative
Spinning Mills Limited as Ex.R3, the copy of the
authorisation letter given by the Pondicherry Co-operative
Spinning Mills Limited to S. Muthukumar as Ex.R4,
the copy of the representation given by K. Vadivelu to
the respondent as Ex.R5, the copy of the representation
given by P. Murugaiyan to the respondent as Ex.R6, the
copy of the representation given by T. Jayabalan to the
respondent as Ex.R7, the copy of the representation
given by V. Ranganathan to the respondent as Ex.R8, the
copy of the representation given by S. Balan to the
respondent as Ex.R9, the copy of the representation
given by S. Devadass to the respondent as Ex.R10, the
copy of the representation given by S. Mahendiran
to the respondent as Ex.Rl1, the copy of the
representation given by M. Piraisudi to the respondent
1273
21 November 2017]
LA GAZETTE DE L’ETAT
as Ex.R12, the copy of the representation given by
L. Rajaram to the respondent as Ex.Rl3, the copy of the
representation given by P. Bramman to the respondent
as Ex.R14, the copy of the representation given by
S. Arumugam to the respondent as Ex.R15, the copy of
the representation given by P. Pandurangan to the
respondent as Ex.R16, the copy of the representation
given by K. Moorthy to the respondent as Ex.RI7, the
copy of the representation given by K. Moorthy to the
respondent as Ex.Rl8.
10. These evidence and documents would go to show
that these 39 workmen have been working at the
respondent mill and they have been transferred and
posted as Doffer for which the petitioner union has
made representation before the respondent management
and they have raised the industrial dispute stating that
they have not been given any notice under section 9-A
of the Industrial Disputes Act before closing the
Reeling Section and transferring them to Spinning
Department.
11. It is the main contention of the petitioner that
before transferring them and posted as Doffer that is to
change the nature of work and service condition of the
workers the respondent management has failed to
issue prior notice under section 9-A of the Industrial
Disputes Act to them. Admittedly, in this case no such
notice was sent by the respondent management to these
petitioners prior to the Transfer Order against workers
and divided them into 3 groups and posted them
as
Doffer. In order to prove the case the petitioners
have exhibited the order of the Hon’ble High Court as
Ex.P3 which would reveal the fact that one of the
employee of the respondent management who also was
transferred and posted as doffer along with these 39
workers has filed a Writ petition before the Hon'ble
High Court against the Transfer O rder passed
on 02-07-2003 by the respondent management to quash
the same and consequently to direct the management to
promote the petitioner to the post of Slider
retrospectively with effect from the date on which his
immediate junior was promoted as Slider, taking into
account the date of initial appointment of the
petitioner on 01-06-1994 with all monetary benefits,
arrears and other consequential service benefits
wherein, the Hon'ble High Court has discussed and
observed that the Writ petitioner was
denied
promotion by the respondent management.
The
observation of the Hon'ble High Court runs as follows:
“6. It is seen from the materials available on
record that the petitioner joined as an Apprentice
under the respondent on 17-04-1990. The petitioner
was absorbed in the permanent post of Reeler on
01-06-1994. Subsequently, on 01-01-1999 since
the work load in the Reeler Section was reduced,
the petitioner was reverted to the post of Sweeper
and posted in the Spinning Department. The petitioner
accepted the same without any protest. He worked
in the said Department till 26-02-2002 and on the
request made by the petitioner, he was transferred
to the Cone Winding Department. The petitioner
was informed at that time that as per the policy
of
the
Mills,
the
seniority
is
maintained
Department-wise with reference to the date of
appointment in the Department, either after training
or by transfer. When that being so, one of his
juniors by name J. Balan (Token No. 612), who
joined the respondent Mill on 03-10-1995, was
posted as Slider. Similarly, N.Jayakumar (Token
No. 615) and V.Rajasekaran (Token No. 625) and
others, who are juniors to the petitioner, were
posted as Sliders whereas, the petitioner was
denied promotion to the said post. It is not the case
of the respondent that the petitioner was retrenched
from service when he was working in the Reeler
Section. But, on the other hand, he was reverted to
the post of Sweeper and there is no break in service
from the date of his initial appointment. Thereafter,
the date of his initial appointment should have been
taken into account for the purpose of seniority. But,
without taking that date into account the petitioner
was denied promotion and his juniors were given
promotion. No explanation whatsoever had been
offered by the respondent as to why the petitioner
was denied promotion to the post of Slider when is
juniors were promoted. Therefore, the petitioner is
also entitled to the same.
7. Considering the above facts and circumstances
of the case, this Writ petition is allowed and the
respondent is directed to promote the petitioner as
Slider from the date on which his juniors were
promoted and pay all monetary and other
consequential service benefits within a period of
three months from the date of receipt of a copy of
this order.”
From the above discussion and observation of the
Hon'ble High Court, it is clear that the respondent
management has denied promotion to the Writ Petitioner
and instead of him another junior was appointed as
Slider and his juniors were given promotion and no
exp lanation was offered by the resp ondent
management to the petitioner who has not been posted
as Slider when the juniors were promoted and
hence, the Writ petitioner was given all monetary
1274
LA GAZETTE DE L’ETAT
[21 November 2017
and other consequential service benefits from the date
of the Order. In this case also these petitioners have
been admittedly transferred and posted as Doffer while
they have been served as Reeler. Furthermore, though
the respondent management has closed the Reeling
Section and transferred these 39 workers to some
other Departments that is the respondent management
has decided to give different nature of work to the
petitioner workmen the respondent management ought
to have given notice under section 9-A of the Industrial
Disputes Act to these petitioners and that therefore,
the respondent management has violated the provisions
of section 9-A of the Industrial Disputes Act.
12. In this case, it is contended by the respondent
management that they are not able to generate profit
oriented business to suffer a drastic set back in
addition to facing difficulties in running the Mill and
as taking into consideration of such beneficial aspects
with due benefits of saving labourers and other
employees to reduce the gross loss to the Mill and to
avoid frequent lay-off and retrenchment of Reelers,
the respondent management committee decided to stop
production of Hank yarn itself and only with the
bona fide interest of the labourers has transferred
these 39 mill operatives belonging to the category of
Reelers to the Spinning Department. The reasons
assigned by the respondent that they are facing
difficulties in running the Mill and not able to generate
profit oriented business and that why they transferred
these 39 workers to the Spinning Department without
giving notice under section 9-A of the Industrial
Disputes Act is not sustainable since, the provision is
mandatory and the respondent management ought to
have given notice to the petitioner workmen since they
have transferred from Reeling Department to Spinning
Department.
13. It is not in dispute by the respondent
management that the Hon’ble High Court has passed an
order and the order of the Hon'ble High Court was
obeyed by them and the Writ petitioner was given all
the benefits as directed by the Hon'ble High Court and
in this case also the respondent management has
admitted in their evidence that they are ready to give
promotion to the workers if, the petitioner workmen
have given option to promote them. On this aspect, the
evidence of the respondent management witness RW.1
is carefully perused and the evidence of RW.l runs as
follows:
“
Spinning Slider
”
From the above evidence, it is clear that the
respondent management is ready to give promotion to
the petitioners if, they are willing and give their option
for promotion and the respondent management has got
no objection to appoint these petitioners as Spinning
Slider and they are also ready to pay the promotion
benefits to the petitioners for the period of two years
prior to their promotion
and the
respondent
management is also agreed to give promotion to these
employees within one month from the date of
their option for promotion. Therefore, considering
the above Order of the Hon’ble High Court and fact
that the respondent management has transferred these
petitioners and has failed to give prior notice under
section 9-A of the Industrial Disputes Act prior to the
transfer, it is just and necessary to held that the
workmen the petitioners are entitled for the relief of
promotion as well as other consequential monetary
benefits and hence, this Court held that the industrial
dispute raised by the petitioner union against
the respondent management over violation of change of
service conditions of the workmen under section 9-A
of the Industrial Disputes Act, 1947 is justified and the
petitioner workmen are entitled for the relief of
promotion. However, considering the fact that the
respondent mill is running in a loss the monetary
benefits of the petitioner union members have only to
be given for the period of two years and therefore,
the monetary benefits can be given for the period of
two years by giving retrospective effect prior to the
date of promotion.
14. In the result, the petition is allowed and the
industrial dispute raised by the petitioner union over
violation of change of service conditions under
section 9-A of the Industrial Disputes Act, 1947 is
justified and an Award is passed by directing the
respondent management to give promotion to the
petitioners within one-month from the date of this
order and Promotional and Consequential monetary
benefits is to be given to them for two years with the
1275
21 November 2017]
LA GAZETTE DE L’ETAT
retrospective effect prior to the date of promotion i.e.,
from October 2015 and further the respondent
management is directed to pay all the monetary
benefits within the period of 3 months from the date of
their promotion. No cost.
Dictated to the stenographer, transcribed by her,
corrected and pronounced by me in the open Court on
this the 29th day of August, 2017.
G. THANENDRAN,
Presiding Officer
Industrial Tribunal-cum-Labour Court
Puducherry.
————
List of petitioner’s witnesses:
PW.1 — 09-5-2014 — J. Gunasekaran
PW. 2 — 11-1-2017 — K. Ilango
List of petitioner’s exhibits:
Ex.P1 —08-01-2005— Copy of the Office Order
issued by the Pondicherry
Co-operative
Spinning
Mills Limited.
Ex.P2 —10-02-2006— Copy of the Action.
Ex.P3 —17-12-2009— Copy of the Writ petition
No. 471/2004 before the
H o n ’b l e
High Court
of Madras (Manavalan
Vs. SPINCO).
Ex.P4 —19-05-2010— Copy of the letter by the
Puduvai Mill Thozilalar
Sangam (CITU) to Managing
Director, SPINCO.
Ex.P5 —21-05-2010— Copy of the Office Order
issued by the Pondicherry
Co-operative Spinning
Mills Limited.
Ex.P6 —24-05-2010— Copy of the letter by the
Reeling Section workmen
t o t h e M a n a g i n g
Director, SPINCO.
Ex.P7 —31-05-2010— Copy of the letter to
R. Avaniappan, General
Secretary of CITU by
SPINCO.
Ex.P8 —08-03-2010— Copy of the letter by the
Puduvai Mill Thozilalar
Sangam (CITU) to Managing
Director, SPINCO.
Ex.P9 —05-06-2010 — Letter by M. Manavalan
to the Managing Director,
SPINCO.
Ex.P10—15-06-2010— Copy of the letter by the
Puduvai Mill Thozilalar
Sangam
(CITU)
to
C h i e f S e c r e t a r y ,
Pondicherry Government.
Ex.Pl1—15-06-2010— Copy of the letter by the
Puduvai Mill Thozilalar
S a n g a m
( C I T U )
t o
Co-operative Minister,
Puducherry Government.
Ex.Pl2—06-07-2010— Copy of the letter by the
Puduvai Mill Thozilalar
Sangam
(CITU)
to
Director
of
Labour
Department, Puducherry
Government.
Ex.P13—06-07-2010— Copy of the Form L by
President, Puduvai Mill
Thozilalar Sangam (CITU).
Ex.P14—16-07-2010— C o p y o f t h e l e t t e r b y
the Puduvai Mill Thozilalar
Sangam (CITU) to Director,
Economics and Statistics
Branch, Office of the
Textile Commissioner,
Mumbai-20.
Ex.P15—16-07-2010— Copy of the letter by the
Puduvai Mill Thozilalar
Sangam (CITU) to Director,
Regional Officer of the
Textile Commissioner,
Coimbatore.
Ex.P16—16-07-2010— Copy of the letter by the
Puduvai Mill Thozilalar
Sangam (CITU) to Director,
Regional Office of the
Textile Commissioner,
Banglore.
Ex.P17—23-08-2010— Copy of the letter by the
Puduvai Mill Thozilalar
Sangam (CITU) to the
Managing Director, SPINCO.
Ex.P18—01-09-2010— Copy of the letter by
R. Kuppan, E m p l o y e e
No. 485 to the Managing
Director, SPINCO.
1276
LA GAZETTE DE L’ETAT
[21 November 2017
Ex.P19—01-09-2010— Copy of the letter by
P. K. Selvaraj, Employee
No. 531 to the Managing
Director, SPINCO.
Ex.P20—01-09-2010— Copy of the letter by
S. Kuppusamy, Employee
No. 402 to the Managing
Director, SPINCO.
Ex.P21—01-09-2010— Copy of the letter by
P. Sekar, Employee No. 542
to the Managing Director,
SPINCO.
Ex.P22—01-09-2010— Copy of the letter by
V. G o v i n d a
R e d d y,
Employee No. 45 to the
M a n a g i n g D i r e c t o r,
SPINCO.
Ex.P23—01-09-2010— Copy of the letter by
M. Piraisoodi, Employee
No. 286 to the Managing
Director, SPINCO.
Ex.P24—01-09-2010— Copy of the letter by
A. Muthalu, Employee
No. 145 to the Managing
Director, SPINCO.
Ex.P25—01-09-2010— Copy of the letter by
S . B a l a n , E m p l o y e e
No. 156 to the Managing
Director, SPINCO.
Ex.P26—01-09-2010— Copy of the letter by
E. Dhandapani, Employee
No. 593 to the Managing
Director, SPINCO.
Ex.P27—01-09-2010— Copy of the letter by
S. Durairaj, Employee
No. 157 to the Managing
Director, SPINCO.
Ex.P28—01-09-2010— Copy of the letter by
R. Rajaram, Employee
No. 495 to the Managing
Director, SPINCO.
Ex.P29—01-09-2010— Letter by K. Vadivelu,
Employee No. 38 to the
Managing
Directo r,
SPINCO.
Ex.P30—01-09-2010— Letter by S. Arumugam,
Employee No. 365 to
the Managing Director,
SPINCO.
Ex.P31—01-09-2010— Letter by P. Rajendiran,
T. No. 443 to the Managing
Director, SPINCO.
Ex.P32—04-09-2010— Copy of the letter by
P. Singaravelu, Employee
No. 330 to the Managing
Director, SPINCO.
Ex.P33—04-09-2010— Copy of the letter by
V. M. Ramamourthy,
Employee No. 452 to the
M a n a g i n g D i r e c t o r,
SPINCO.
Ex.P34—04-09-2010— Copy of the letter by
S . R a v i c h a n d i r a n ,
Employee No. 396 to the
M a n a g i n g D i r e c t o r ,
SPINCO.
Ex.P35—04-09-2010— Copy of the letter by
J. Dayalan, Employee
No. 528 to the Managing
Director, SPINCO.
Ex.P36—04-09-2010— C o p y o f th e l e tt e r b y
P. Bramman, Employee
No. 334 to the Managing
Director, SPINCO.
Ex.P37—04-09-2010— Co p y o f the letter b y
R . K r i s h n a m o u r t h y,
Employee No. 419 to the
M a n a gi n g
D i r ec t o r,
SPINCO.
Ex.P38—04-09-2010— C o p y o f t h e l e t t e r b y
N. Subramani, Employee
No. 255 to the Managing
Director, SPINCO.
Ex.P39—04-09-2010—C o p y o f t h e l e t t e r b y
V.
Kadavul,
Employee
No. 481 to the Managing
Director, SPINCO.
Ex.P40—04-09-2010— C o p y o f t h e l e t t e r b y
K. Elangovan, Employee
No. 72 to the Managing
Director, SPINCO.
Ex.P41—04-09-2010—C o p y o f t h e l e t t e r b y
V. K r i s h n a m o u r t h y,
Employe No. 250 to the
M a n a g i n g
D i r e c t o r,
SPINCO.
Ex.P42—04-09-2010—C o p y o f t h e l e t t e r b y
S. Ilayaperumal, Employee
No. 167 to the Managing
Director, SPINCO.
Ex.P43—04-09-2010—C o p y o f t h e l e t t e r b y
J. Jeganathan, Employee
No. 35 to the Managing
Director, SPINCO.
1277
21 November 2017]
LA GAZETTE DE L’ETAT
Ex.P44—04-09-2010—Co py o f the letter by
K. Sankar, Employee
No. 218 to the Managing
Director, SPINCO.
Ex.P45—04-09-2010—Co p y o f the letter b y
P.
M u r u g a i y a n ,
Employee
No. 53 to the
M a n a gi n g
D i r ec t o r,
SPINCO.
Ex.P46—04-09-2010—Cop y of the letter by
K. M
o
u
r
t
h
y ,
Employee No. 600 to the
M a n a g i n g D i r e c t o r ,
SPINCO.
Ex.P47—04-09-2010—Copy of the letter by
B. P a n d u r a n g a m ,
Employee No.472 to the
M a n a g i n g D i r e c t o r ,
SPINCO.
Ex.P48—04-09-2010—Co p y o f the letter b y
R. S r i d h a r a n ,
Employee No. 404 to
the Managing Director,
SPINCO.
Ex.P49—08-09-2010—Copy of the letter by the
M a n a g i n g D i r e c t o r,
SPINCO to the Labour
Officer (Conciliation).
Ex.P50—21-09-2010—Copy
of
the
letter
to
t h e
Labour Officer,
(Conciliation) by CIRU.
Ex.P51—18-03-2011— Report on failure of
conciliation to the
Secretary to Government
of Pondicherry (Labour)
by the Labour Officer,
Conciliation.
Ex.P52—16-06-2011— G. O. Rt. No. l21/AIL/
Lab./J/2011 issued by the
Labour
Department,
Puducherry.
Ex.P53—22-06-2011— Notice in ID(T).07/2011,
PDJ, Puducherry.
Ex.P54—02-05-2013—Notice in ID(T).07/2011,
LC, Puducherry.
List of respondent’s witness:
RW.1 —09-06-2017— S. Muthukumar
List of respondent’s exhibits:
Ex.R1—15-12-2001— Copy of the
Transfer
Order by the Pondicherry
Co-operative Spinning
Mills Limited.
Ex.R2—31-05-2005— Copy of the letter by
K. Elangovan to the
Co-operative Mills,
Thirubuvani.
Ex.R3—23-06-2005— Copy of the Office
Order by the Pondicherry
Co-operative
Spinning
Mills Limited.
Ex.R4—16-05-2017 — Copy of the authorisation
l e t t e r g i v e n b y t h e
Pondicherry Co-operative
Spinning Mills Limited to
S. Muthukumar.
Ex.R5—05-05-2007 — Copy of the representation
given by K. Vadivelu to
the respondent.
Ex.R6—
—
— Copy of the representation
given by P. Murugaiyan to
the respondent.
Ex.R7—08-02-2005— Copy of the representation
given by T. Jayabalan to
the respondent.
Ex.R8—15-02-2005— Copy of the representation
given by V. Ranganathan
to the respondent.
Ex.R9—21-06-2003— Copy of the representation
given by S. Balan to the
respondent.
Ex.R10—25-01-2005—Copy of the representation
given by S. Devadass to
the respondent.
Ex.R11—27-10-2004— Copy of the representation
given by S. Mahendiran to
the respondent.
Ex.R12—08-08-2003—Copy of the representation
given by M. Piraisudi to
the respondent.
Ex.R13—28-01-2004—Copy of the representation
given by L. Rajaram to
the respondent.
Ex.R14—31-03-2004—Copy of the representation
given by P. Bramman to
the respondent.
Ex.R15—15-09-2003—Copy of the representation
given by S. Arumugam to
the respondent.
1278
LA GAZETTE DE L’ETAT
[21 November 2017
Ex.R16 —30-11-2004—Copy of the representation
given by P. Pandurangan
to the respondent.
Ex.R17 —07-04-2004—Copy of the representation
given by K. Moorthy to
the respondent.
Ex.R18 —27-10-2004—Copy of the representation
given by K. Moorthy to
the respondent.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-Labour Court,
Puducherry.
————
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G. O. Rt. No. 154/Lab./AIL/T/2017,
Puducherry, dated 13th October 2017)
NOTIFICATION
Whereas, the Award in I.D. (L) No. 15/2010, dated
07-07-2017, of the Labour Court, Puducherry in
respect of the Industrial Dispute between the
Management of M/s. Cadilla Pharmaceuticals Limited,
Chennai and Thiru V. Chandramohan, 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 the Secretary to Government (Labour), that the said
Award shall be published in the Official Gazette,
Puducherry.
(By order)
S. MOUTTOULINGAM,
Under Secretary to Government (Labour).
————
BEFORE THE INDUSTRIAL TRIBUNAL-CUM-
LABOUR COURT AT PUDUCHERRY
Present: Thiru G. THANENDRAN, B.COM.,M.L.,
Presiding Officer.
Friday, the 7th day of July 2017
I.D. (L) No. 15/2010
V. Chandramohan,
S/o. V. Vanmiganathan,
No. 8, 5th Cross, Mariyal Nagar,
Reddiarpalayam,
Puducherry.
. . Petitioner
Versus
The Sales Manager,
M/s. Cadila Pharmaceuticals Limited,
Puducherry.
. . Respondent
This industrial dispute coming up before me for final
hearing on 20-06-2017 in the presence of the petitioner
in person and Thiruvalargal L. Sathish, N. Krishnamurthy,
T. Pravin and V. Veeraragavan, Counsels for the respondent,
upon hearing and after perusing the records, after having
stood over 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. 55/AIL/Lab./
J/2010, dated 23-03-2010 for adjudicating the following:-
(a) Whether
t h e
d i s p u t e
r a is e d
b y
Thiru V. Chandramohan against the management
of M/s. Cadilla Pharmaceuticals Limited, over
non-employment is justified or not?
(b) If justified, what relief the petitioner is
entitled to?
(c) To compute the relief if any, awarded in
terms of money if, it can be so computed?
2. The brief averment of the Claim Statement filed
by the petitioner is as follows:
The petitioner submit that he was appointed in the
service of the respondent establishment as a Sales
Promotion Employee in June, 1996 in the grade of
Senior Field Officer and the appointment order
was given on 10-06-1996 and he was confirmed in
the said post and he has worked at Dharmapuri.
On 09-12-2002, the respondent management was
relocated the service of the petitioner from
Dharmapuri to Pondicherry Head Quarter and the
petitioner was doing best service in the new place
of postings for which the respondent management
has sent 17 appreciation letters to the petitioner
and on 14-04-2007 the respondent management
issued an order that due to the business exigency,
the management has decided to relocate the services
of the petitioner from Pondicherry Head Quarters
to Mumbai with effect from 01-05-2007 and the
petitioner was had fallen sick in the month of April,
2007 with severe cervical spondolities and therefore,
the petitioner was not in a position to proceed
Mumbai and consequently applied for leave on
medical grounds duly supported by medical
1279
21 November 2017]
LA GAZETTE DE L’ETAT
certificates and the respondent has not paid salary
for the month of April 2007 to the petitioner and
the petitioner was also continue to be on leave on
applications submitted duly supported by medical
certificate sent through courier and no further salary
was disbursed by the management inspite of repeated
request made by the petitioner for release of salary
and the respondent management has asked for X-ray
report of the petitioner illness and that was
complied
with and the fitness certificate was sent on
05-11-2007 with a request to consider reposting of
the petitioner in Pondicherry and the complete
medical file was also sent to the management on 30-11-2007
and consequently on 15-12-2007 the respondent
management has sent the letter to the petitioner that
he directed to report before Mr. J.N. Pathak.
Assistant General Manager at Dhoka, Ahmedabad to
discuss the issues which the petitioner could not
comply with for want of funds for which the
petitioner sent a detailed reply with the signature of
their family praying for release of salary from May
2007 to December 2007 and thereafter, a cheque
for ` 7,478 was sent by the Manager (IR and Legal) of
the respondent management without indicating any
details and asking the petitioner to go to Ahmedabad
with all medical records for reference to the
company's Doctor and the petitioner also went to
Ahmedabad on 17-03-2008 and as per the advice a
letter was sent to the company to consider the
withdrawal of the transfer order and further that he
has received a charge-sheet, dated 01-05-2008
alleging unauthorised absence from 14-4-2007
pursuant to the transfer order and ordering a
departmental enquiry to be held at Ahmedabad on
19-05-2008 and due to strained circumstances,
the petitioner could not proceed to Ahmedabad
and in the enquiry, the petitioner was set ex parte
for non-appearance and a summary enquiry report
was drawn on 04-06-2008. The copy of the enquiry
proceedings and exhibits were sent to the petitioner
and all the submissions made by the petitioner were
thrown to air and the petitioner could not obey the
transfer order since he was only inconvenience
for the non-payment of the salary to the petitioner
from the month of April, 2007 and that therefore,
the petitioner could not move on transfer to Mumbai
and participated in the enquiry charges against by him
and the enquiry was conducted ex parte and on the
basis of the evidence collected behind the back of
the petitioner, the petitioner was dismissed from
service with effect from 02-09-2008 and the act of
the respondent management by withholding the salary
from April 2007, transfer of the petitioner from
Pondicherry to a remote station Mumbai without
releasing the monetary entitlement and virtually
disabling the petitioner to proceed on transfer and
the act of the respondent management that
conducting
ex parte enquiry without releasing
the financial entitlements to the petitioner and
passing final order of dismissal is against the
principles of natural justice and that therefore, he
raised the industrial dispute before the Concialiation
Officer and has prayed for reinstatement with back
wages and other attendant benefits.
3. The brief averment of the Counter Statement
filed by the respondent is as follows:
The respondent is doing the business of
manufacturing and marketing of pharmaceutical
preparation, bulk drugs, specialty chemicals,
hospital products and has established its marketing-
outlets all over India and in various countries. The
employees of the respondent are provided with
letters of appointment and one of the conditions in
their letters of appointment is that their jobs are
transferable to various locations across India and that
the petitioner joined in the services of the respondent
on 10-06-1996 as a Senior Field Officer in
Dharmapuri. Tamil Nadu. In the year 2002. he was
transferred to Puducherry. In 2007, the respondent
issued order of transfer to the petitioner transferring
him to Mumbai with effect from 01-05-2007.
The petitioner, without reporting for duty began to
apply for leave under the pretext of being sick. As the
petitioner was seeking leave under the pretext of
sickness for a very long time, the respondent
directed him to furnish his medical records to
substantiate his illness and he was also further asked
to present himself for medical examination. Series
of correspondences were exchanged between the
petitioner and respondent in this regard. However,
despite several opportunities provided by the
respondent, the petitioner failed to report for worker
Mumbai and was requesting the management to
consider posting him once again in Puducherry.
It was therefore, apparent that the petitioner was
not interested in reporting at Mumbai. As the
petitioner refused to obey the lawful orders of the
respondent and continued to absent himself
unauthorised by under a false pretext, he was issued
a charge-sheet-cum-enquiry notice on 01-05-2008.
The petitioner was directed to appear for an enquiry
at Ahmadabad on 19-05-2008. However, the
petitioner did not attend the enquiry on 19-05-2008.
1280
LA GAZETTE DE L’ETAT
[21 November 2017
The enquiry was thereafter, adjourned to 04-06-2008.
As the petitioner failed to appear on 04-06-2008 as well,
the enquiry was thereafter, adjourned to 20-06-2008.
As the petitioner did not attend the enquiry the
Enquiry Officer was left with no other option than
to proceed with enquiry in the absence of the
petitioner. Copies of the enquiry proceedings from
time to time were however sent to the petitioner and
the petitioner was fully aware of the enquiry
proceedings. The Enquiry Officer after appreciating
the evidence placed before him submitted his report
holding the petitioner guilty of the charges. After
sending the enquiry report and issuance of second
show cause notice, the petitioner was terminated
from the services of the respondent on 02-09-2008.
The respondent further stated that the petitioner
after issuance of the order of transfer was refusing
to report at the transferred location only due medical
reasons and not for any other reasons. Being so,
the action of the petitioner is not reporting for work
after 01-05-2007 under the pretext of ill health is the
issue that arises for consideration of this Court.
The petitioner did not participate in the enquiry or
submit any evidence to show that he did not report
for work due to ill health and therefore, the order of
termination of the petitioner is fully justified and
prayed that this Hon'ble Court may not interfere with
the order of the termination and that the domestic
enquiry was conducted in consonance with principles
of natural justice before terminating the petitioner
and the petitioner having not participated in the same
cannot question the fairness of the same and that the
fairness of enquiry may however be taken up at the
first instance and decided as a preliminary issue and
if, for any reason, would this Court to conclude the
enquiry to be not fair, the respondent craves leave
to adduce evidence on merits to prove charges
alleged against the petitioner and therefore, the
action of the respondent in terminating the petitioner
is fully justified and does not require any
interference and prayed this Court to dismiss the
claim petition.
4. In the course of enquiry PW.1 was examined and
Ex.P1 to Ex.P32 were marked and on the side of the
respondent though the case was adjourned for several
hearings the respondent has not turned up and no witness
was produced by the respondent and no documents were
marked by them.
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. The submission of both the parties, the evidence
let in and the exhibits marked on the side of the
petitioner are carefully considered. On the side of the
petitioner he has filed the written argument and on the
side of the respondent though several opportunities
were given no argument was putforth by the respondent
and hence, the argument was closed.
7. From the pleadings of both the parties, it is clear
that the following facts are admitted by both the parties
that the petitioner has joined in the respondent
establishment on 10-06-1996 under an appointment
order issued by the respondent management as a Sales
Promotion employee of the respondent establishment
and the petitioner was in service at Dharmapuri and
thereafter, he was transferred to Puducherry on 09-12-2002
and thereafter, the petitioner has served at Puducherry
respondent establishment till 14-04-2007 and thereafter,
the petitioner was once again transferred to respondent
establishment at Mumbai with effect from 01-05-2007
and the petitioner has not reported duty at Mumbai as
directed by the respondent management under the letter
of transfer and the respondent management has not paid
the salary for the month of May, 2007 to the petitioner
as he has not reported at the respondent management
at Mumbai as directed by the respondent and the
petitioner has applied for medical leave from May,
2007 for which the respondent has asked the petitioner
to furnish his medical records to substantiate his illness
and the petitioner was also asked to appear himself for
medical examination and that thereafter, the enquiry
notice was issued to the petitioner and the petitioner
was directed to appear for the enquiry at Ahmedabad
on 19-05-2008 for which the petitioner did not appear
and the Enquiry Officer has proceeded with the enquiry
in the Absence of the petitioner and the copies of the
enquiry proceedings were sent to the petitioner and
the Enquiry Officer has submitted the report holding
that the petitioner was guilty of charges and a show
cause notice was issued to the petitioner and thereafter,
the petitioner was terminated from the services of the
respondent establishment on 02-09-2008.
8. In order to prove case, the petitioner has
examined himself as PW.1 and in his evidence PW.1 has
stated that the petitioner was appointed in the service
of the respondent establishment as a Sales Promotion
Employee in June, 1996 in the grade of Senior Field
Officer and the appointment order was given on
10-06-1996 and he was confirmed in the said post and
he has worked at Dharmapuri and on 09-12-2002, the
respondent management was relocated the service of
the petitioner from Dharmapuri to Pondicherry
1281
21 November 2017]
LA GAZETTE DE L’ETAT
Head Quarter and the petitioner was doing best service
in the new place of posting for which the respondent
management has sent 17 appreciation letters to the
petitioner
and
on
14-04-2007
the
respondent
management issued an order that due to the business
exigency, the management has decided to relocate the
services of the petitioner from Pondicherry
Head Quarters to Mumbai with effect from 01-05-2007
and the petitioner had fallen sick in the month of
April, 2007 with severe cervical spondolities and
therefore, the petitioner was not in a position to
proceed Mumbai and consequently applied for leave on
medical grounds duly supported by Medical Certificates
and the respondent has not paid salary for the month of
April, 2007 to the petitioner and the petitioner was also
continued to be on leave on application submitted duly
supported by Medical Certificate sent through courier
and no further salary was disbursed by the
management inspite of repeated request made by the
petitioner for release of salary and respondent
management has asked for X-ray report of the
petitioner illness and that was complied with and the
Fitness Certificate was sent on 05-11-2007 with a
request to consider reposting of the petitioner in
Puducherry and the complete medical file was also sent
to the management on 30-11-2007 and consequently
on 15-12-2007 the respondent management has sent
the letter to the petitioner that he was directed to report
before one Mr. J.N. Pathak, Assistant General Manager
at Dhoka, Ahmedabad to discuss the issues for which
the petitioner could not comply with for want of funds
for which the petitioner has sent a detailed reply with
the signature of their family praying for release of
salary from May 2007 to December 2007 and
thereafter, a cheque for ` 7,478 was sent by the
Manager (IR and Legal) of the respondent management
without indicating any details to the petitioner and
asking the petitioner to go to Ahmedabad with all
medical records for reference to the company's Doctor
and the petitioner also went to Ahmedabad on 17-03-2008
and as per the advice the letter was sent to the
company to consider the withdrawal of the Transfer
Order and subsequently he has received a charge-sheet,
dated 01-05-2008 alleging unauthorised absence from
14-04-2007 pursuant to the Transfer Order and ordering
a departmental enquiry to be held at Ahmedabad
on 19-05-2008 and due to strained circumstances, the
petitioner could not proceed to Ahmedabad and in the
enquiry, the petitioner was ser ex parte non appearance
and a summary enquiry report was drawn on 04-06-2008
and the copy of the enquiry proceeding's and exhibits
were sent to the petitioner and all the submissions
made by the petitioner were thrown to air and the
petitioner could not obey the transfer order since he
was only inconvenience for the non-payment of the
salary to the petitioner from the month of April 2007
and that therefore, the petitioner could not move on
transfer to Mumbai and to participate in the enquiry
charges against him and the enquiry was conducted
ex parte and on the basis of the evidence collected
behind the back of the petitioner, the petitioner was
dismissed from service with effect from 02-09-2008
and the Act of the respondent management by
withholding the salary from April 2007, transfer of
the petitioner from Puducherry to a remote station
Mumbai without releasing the monetary entitlement and
virtually disabling the petitioner to proceed on transfer
and the act of the respondent management that
conducting ex parte enquiry without releasing the
financial entitlements to the petitioner and passing final
order of dismissal is against the principles of natural
justice and that therefore, he raised the industrial
dispute before the Conciliation Officer.
9. In support of his oral evidence, the petitioner has
exhibited the copy of the appointment letter issued by
the management on 10-06-1996 as Ex.P1. the copy he
Transfer Order issued by the management on 09-12-2002
as Ex.P2. the copy of the Transfer Order issued by the
management on 14-04-2007 as Ex.P3. The Ex.P4 to
Ex.P7 are the copies of the petitioner's inter Office
memorandum Ex.P8 is the copy of the inter office
memorandum together with Fitness Certificate and the
monthly prescription issued by the Doctor, dated 05-
11-2007. The Ex.P9, Ex.P11, Ex.P12, Ex.P30, Ex.P31
and Ex.P32 are the copies of the e-mail correspondence
exchanged between the petitioner and the respondent.
The copy of the causality slip issued by Indira Gandhi
Government Hospital, Puducherry, on 22-12-2006 as
Ex.P10 the copy of the Charge Sheet issued by the
management on 01-05-2008 as Ex.P14. The Ex.P15 to
Ex.P17 are the copies of the enquiry proceedings,
dated 04-06-2008, 20-06-2008 and 29-07-2008
respectively. The copy of the findings of the Enquiry
Officer issued to the petitioner, dated 06-08-2008
as Ex.P18. the copy of the second show cause notice
issued by the management on 12-08-2008 as Ex.P19,
the copy of the dismissal order issued by the
management on 02-09-2008 as Ex.P20. The Ex.P21
and Ex.P22 are the copy of the reply letter of the
petitioner, Ex.P23 is the copy of the field work report
vide inter office memorandum from 16-04-2007 to
30-04-2007 along with April 2007 expenses statement
to the management, Ex.P24 is the copy of the inter
office memorandum, dated 15-05-2007 along with Medical
1282
LA GAZETTE DE L’ETAT
[21 November 2017
Certificate, dated 1-5-2007, ExP25 is the copy of the
Inter Officer memorandum, dated I2-05-2003 together
with the reply by the management, dated 19-05-2003.
Ex.P26 copy of the telegram receipt, dated 01-05-2007,
Ex.P27 is copy of the pay slip for the month of April,
2007, Ex.P28 is the copy of the demand draft for ` 7,478
issued by the management, dated 21-02-2008, Ex.P29
is the copy of the telegram issued by the petitioner to
the management, dated 24-12-2007.
10. It is the contention of the petitioner that the
petitioner had fallen sick in the month of April, 2007
with severe cervical spondylities and he was not in a
position to proceed to Mumbai after receiving the
Transfer Order and subsequently applied for leave on
medical grounds duly supported by the Medical
Certificates and the salary for the month of April, 2007
was not paid at all and the petitioner continued to be on
leave on the application duly supported by the medical
certificates sent through courier and no further salary
was disbursed by the management inspite of repeated
requests for the release of the salary which was more
necessary to enabling the petitioner to move to Mumbai
and the petitioner was asked to report for his illness
which was also complied with and the Fitness Certificate
was sent on 05-11-2007 with a request to consider
repositing of the petitioner in Puducherry and complete
medical file was also sent to the management on 30-11-2007
and on 21-06-2008 the Legal Manager has sent a letter
to the petitioner along with a cheque for ` 7,478
without indicating any details and asking him to go to
Ahmedabad with all medical records for reference
to the company's Doctor and the petitioner also has
appeared on 17-03-2008 at Ahmedabad and the
petitioner was not against the transfer to Mumbai but,
was only the sore and the inconvenience about the
non-payment of salary to the petitioner from the month
of April, 2007 and the petitioner had no other earning
except his monthly salary and in the circumstance the
petitioner could not move to Mumbai and participate
in the enquiry.
11. It is also the further contention of the petitioner
that the petitioner was not at all paid salary from April,
2007 and the respondent management has transferred
him from Puducherry to Mumbai without releasing his
monetary entitlements and the charge for unauthorised
absence and non-compliance with the Transfer Order
holding of enquiry at a far of place without facilitating
the provisions of funds and financial entitlements,
conduct of ex parte enquiry and passing of the order
of dismissal ex faci show a schematic plan contrived
with a foregone conclusion to dispense with the
services of the petitioner on a false facade of
compliance with principles of natural justice which
has been actually violated by the respondent
management.
12. It is the main contention respondent management
that the petitioner has not reported at Mumbai as per the
Transfer Order of the respondent management on 01-05-2007
and that therefore, the domestic enquiry was conducted
in accordance with the procedure and following the
principles of natural justice and the petitioner was found
guilty and that on the foot of the domestic enquiry report the
petitioner has been terminated from service on 02-09-2008.
13. Considering the above contention of both the
parties it is to be decided by this Tribunal that the
domestic enquiry conducted against the petitioner was
in accordance with the law or not and whether there is
any violation of principles of natural justice. It is the
only contention of the petitioner that he was in sick in
the month of April, 2007 when he has been transferred
to Mumbai by the respondent management under
Transfer Order, dated 14-04-2007 in which the
respondent management has directed him to report at
Mumbai on 01-05-2007 and he has applied for medical
leave along with the medical certificate and also sent a
telegram to the respondent management for medical
leave and since, he has not been paid salary from the
month of April, 2007 to November, 2007 and no shifting
allowance was granted he would not be able to report
before respondent management at Mumbai as directed
by the respondent.
14. Admittedly, the respond has not paid the salary
to the petitioner from May, 2007 to November, 2007
stating that since, he has not joined at Mumbai as
directed by them according to the Transfer Order.
The petitioner as an employee working from 1996 at
the respondent establishment has applied for a medical
leave along with the medical certificate for his severe
cervical spondylities. But, the respondent management
has not passed any order on the leave application and
the said application was not even rejected by the
respondent management. It is also admitted fact that
the domestic enquiry was conducted at Ahmedabad
without paying salary to him and he was terminated from
service on 02-09-2008 and till date he has not been
paid any salary, though the salary has been claimed by
the petitioner and he has been asked to produce the
medical certificate and the petitioner has appeared
before the respondent management at Ahmedabad with
medical records but the respondent management has not
at all stated any reason why they have kept the
1283
21 November 2017]
LA GAZETTE DE L’ETAT
medical
leave application without rejecting it or
allowing it. The petitioner has exhibited the copy of the
letter sent by the petitioner along with the Medical
Certificates to the respondent management as Ex.P24
which would reveal the fact that the petitioner has
applied medical leave on 01-05-2007 and further, the
copy of the telegram receipt is exhibited as Ex.P26
which would reveal the fact that the petitioner has sent
a telegram for his leave on 01-05-2007 to the
respondent management . These exhibits would evident
that the petitioner has applied for medical leave and also
sent a telegram to the respondent management
on 01-05-2007. Neither the leave was granted to him
nor it was rejected by the respondent management.
If, the petitioner is entitled for medical leave he ought
to have been granted medical leave and he ought to have
given salary for the period in which he is on medical
leave as he has served at the respondent establishment
from the year 1996 as an employee and hence, he is
entitled for medical leave and the salary could have been
given to him for the period which he is on leave. Though
the petitioner has appeared at the respondent Head Office
at Ahmedabad on 17-03-2008 before the Company's
Doctor as directed by the respondent management with
medical records, the respondent management has not
at all neither rejected the medical leave application nor
granted the leave and it is also an admitted fact that even
after the enquiry was initiated against the petitioner no
salary has been released to him as he has not reported
at the transferred place of Mumbai as directed by the
respondent management and it is also not the case of
the respondent that they have given salary to the
petitioner even after the initiation of domestic enquiry
till the date of termination on 02-09-2008.
15. The petitioner has pleaded that as a salary has
not release to him, his family was in starvation from
April, 2007 and he could not meet out the family
expenses and educational expenses of his children and
he could not even proceed to Mumbai as directed by
the respondent and in such circumstances the domestic
enquiry was initiated against the petitioner wherein, the
petitioner was set ex parte for his non-appearance and
the enquiry was proceeded and in the enquiry he was
found guilty without giving opportunity to the
petitioner.
16. In Case No.588 of 1972 - Ghanshyam Das
Shrivastava Vs. State of Madhya Pradhesh, the Hon'ble
Supreme Court of India has held that-,
“This is obviously specific pleading on the point that
for non-payment of subsistence allowance he was short
of funds and could not attend the enquiry. It is true that
his affidavit does not give any particulars about his
sources of income and the estimate of expenses
to be incurred in the enquiry. But, it would prima facie
suggest that he had no other sources of income, except
his pay. If, he had no other sources of income, he could
not invent them for the purpose of mentioning them in
the affidavit. More significantly, the Government
affidavit does not allege that he had any other source
of income except pay. The fact that he had been drawing
a monthly pay of ` 300 till October, 1964 would not
necessarily show that he had sufficient money to enable
him to go to Jagdalpur to attend the enquiry in
February, 1965. He was suspended on October 30, 1964
and thereafter, he did not get subsistence allowance
until March 20, 1965. Having regard to the prevailing
high prices, it is not possible to draw any adverse
inference against him from the mere circumstance that
he had been receiving a monthly pay of ` 300 till
October, 1964. The fact that he filed a Writ Petition
immediately on the passing of the order of dismissal
and thereafter, came in appeal to this Court, would not
establish that he had enough resources to enable him
to attend the enquiry. It seems to us that on the whole
the High Court has gone by conjectures and surmises.
There is nothing on the record to show that he has any
other source of income except pay. As he did not
receive subsistence allowance (sic) was made to him
on March 20, 1965 after a part of the evidence had
already been recorded on February 9, 10 and 11, 1965.
The enquiry proceedings during those days are vitiated
accordingly. The report of the Enquiry Officer based
on that evidence is infected with the same defect.
Accordingly, the order of the Government dismissing
him from service cannot stand. It was passed in
violation of the provisions of Art, 311(2) of the
Constitution for the appellant did not receive
a reasonable opportunity of defending himself in the
enquiry proceedings”.
From the above observation of the Hon'ble Supreme
Court, it is clear that under Article 311(2) of
Constitution of India the person against whom the
domestic enquiry was conducted even if, he is in
suspension he has to be given subsistence allowance
till the date of termination and before the enquiry
proceedings were commenced. But, in this case
admittedly the medical leave application of the
petitioner was kept in abeyance without passing any
order and the salary has not been released by the
respondent to the petitioner from May, 2007 to till the
date of completion of the domestic enquiry which
would go to show that the enquiry was conducted by
the respondent management at Ahmadabad which is far
1284
LA GAZETTE DE L’ETAT
[21 November 2017
away from Puducherry, without paying any salary or
financial assistance to the workman, the petitioner
throughout the enquiry and conducted the domestic
enquiry in the absence of the petitioner and the
petitioner had not in a position to appear due to financial
crisis for the enquiry since, much more amount has to
be spent to attend the bearing at Ahmadabad and the
reasonable opportunity was also not given to the
petitioner to defending himself in the enquiry
proceedings by paying the salary or financial assistance
to him and that therefore, the domestic enquiry
conducted by the respondent management is against the
principles of natural justice and the termination on the
foot of the enquiry report is to be declared as illegal
and not in accordance with law and it is to be held that
the petitioner is entitled for the claim as prayed by him
and hence, the dispute raised by the petitioner against
the respondent management over his non-employment
is justified and the petition is liable to be allowed and
the petitioner is entitled for the order of reinstatement
as claimed by him.
17. As this Court has decided that the industrial
dispute raised by the petitioner against the respondent
management over his non-employment is justified, it
is to be decided whether the petitioner is entitled for
back wages with continuity of service as claimed by
the petitioner. In Judgment reported in U.P. State
Brassware Corporation Limited, Vs. Uday Narain Pandey
(Supra), wherein, the Bench has observed that:
''26. No precise formula can be laid down as to
under what circumstances payment of entire back
wages should be allowed. Indisputably, it depends
upon the facts and circumstances of each case. It would,
however, not be correct to contend that it is
automatic. It should not be granted mechanically only
because on technical grounds or otherwise an order
of termination is found to be in contravention of the
provisions of section 6-N of the U.P. Industrial
Disputes Act, 27.
The Court also reiterated the rule that the workman
is required to plead and prima facie prove that he was
not gainfully employed during the intervening period".
and that therefore, in the light of the above observation
it is clear that the petitioner has to prove the fact that
he has not employed gainfully during the intervening
period. But, in this case, it is stated by the petitioner
that he has been in service at no where else from 02-09-2008
the date of termination since he was on medical leave
subsequently his employment was refused by the
respondent. But, no document is before this Court to
prove that the petitioner has not been in employment
at anywhere else after the dismissal for about nine years
and that therefore, he cannot be given full back wages.
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 back wages and
hence, this Court tentatively fix that the petitioner is
entitled only for 60% back wages with continuity of
service and other attendant benefits.
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
within one month from the date of this order and to pay
60% back wages from the date of termination till the
date of reinstatement with continuity of service and
other attendant benefits and further directed the
respondent to pay full wages for the month of May, 2007
to 02-09-2008
i.e., till the date of termination.
No cost.
Dictated to Stenographer, transcribed by her,
corrected and pronounced by me in the Open Court on
this the 7th day of July, 2017.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
————
List of petitioner’s witness:
PW.1 — 20-08-2013
— V. Chandramohan
List of petitioner’s exhibits:
Ex.P1
— Copy of the appointment letter issued
to the petitioner, dated 10-06-1996.
Ex.P2
— Copy of the Transfer Order issued to
the petitioner, dated 09-12-2002.
Ex.P3
— Copy of the Transfer Order issued to
the petitioner, dated 14-04-2007.
Ex.P4
— Copy of the petitioner's inter office
memorandum to the respondent
management, dated 02-04-2007.
Ex.P5
— Copy of the petitioner's inter office
memorandum to the respondent
management, dated 19-11-2007.
Ex.P6
— Copy of the petitioner's inter office
memorandum to the respondent
management, dated 30-11-2007.
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Ex.P7
— Copy of the petitioner's inter office
memorandum to the respondent
management, dated 25-03-2008.
Ex.P8
— Copy of the petitioner's inter office
memorandum together with Fitness
Certificate
and
the
monthly
prescription issued by the Doctor,
dated 05-11-2007.
Ex.P9
— Copy of the e-mail correspondence
exchanged between the petitioner and
the respondent from April 2007 to
September 2007.
Ex.P10 — Copy of the causality slip issued to
the
petitioner by Indira Gandhi
Government
Hospital, Puducherry,
dated 22-12-2006.
Ex.P11 — Copy of the e-mail correspondence
exchanged between the petitioner and
respondent in the month of July 2008.
Ex.P12 — Copy of the e-mail correspondence
exchanged between the petitioner and
respondent from November 2007 to
December 2007.
Ex.P13 — Copy of the letter issued to the
petitioner, dated 26-02-2008.
Ex.P14 — Copy of the Charge-Sheet-cum-
enquiry
notice
issued
to
the
petitioner, dated 01-05-2008.
Ex.P15 — Copy of the enquiry proceedings
issued to the petitioner along with the
covering letter, dated 04-06-2008.
Ex.P16 — Copy of the enquiry proceedings
issued to the petitioner along with the
covering letter, dated 20-06-2008.
Ex.P17 — Copy of the enquiry proceedings
issued to the petitioner along with the
covering letter, dated 29-07-2008.
Ex.P18 — Copy of the findings of the Enquiry
Officer issued to the petitioner, dated
06-08-2008.
Ex.P19 — Copy of the second show cause notice
issued to the petitioner, dated
12-08-2008.
Ex.P20 — Copy of the dismissal order issued to
the petitioner, dated 02-09-2008.
Ex.P21 — Copy of the
reply
sent by the
petitioner
to
the
respondent
management, dated 18-08-2008.
Ex.P22 — Copy of the reply sent by the
petitioner
to
the
respondent
management, dated 29-08-2008.
Ex.P23 — Copy of the field work report vide
inter office memorandum from
16-04-2007 to 30-04-2007 along
with April 2007 expenses statement to
the management.
Ex.P24 — Copy of the petitioner's inter office
memorandum,
dated
15-05-2007
along with Medical Certificate to the
respondent mana gemen t, d at ed
01-05-2007.
Ex.P25—
Copy of the petitioner's inter officer
memorandum,
dated
12-05-2003
together with the reply by the
management, dated 19-05-2003.
Ex.P26 — Copy of the telegram receipt, dated
01-05-2007.
Ex.P27 — Copy of the petitioner's pay slip for
the month of April 2007.
Ex.P28 — Copy of the demand draft for ` 7,478
issued to petitioner, dated 21-02-2008.
Ex.P29 — Copy of the telegram issued by the
petitioner to the management, dated
24-12-2007.
Ex.P30 — Copy of the e-mail correspondences
of the petitioner to the management,
dated 07-07-2008.
Ex.P31 — Copy of the e-mail correspondences
received by the petitioner from his
immediate superior, dated 20-10-2007.
Ex.P32 — Copy of the e-mail correspondences
of the petitioner to the management,
dated 05-10-2007.
List of respondent’s witness: Nil.
List of respondent’s exhibits: Nil.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.