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La Gazette de L' État de Poudouchéry

The Gazette of Puducherry

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.. 1270

Sentence arbitral du travail

.. 1270

Award of the Labour Court .. 1270

de tribunal.



.. 1286

Notifications du Gouvernement .. 1286

Government Notifications .. 1286



.. 1293

Avis d’Adjudications

.. 1293

Tender notices

.. 1293



.. 1294

Etablissements dangereux

.. 1294

Dangerous Establishments

.. 1294



.. 1295

Annonces

.. 1295

Announcements

.. 1295

[1269]

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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

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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.

1285

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LA GAZETTE DE L’ETAT

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.