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2017 } | 19 {

No.

Poudouchéry

Mardi

Decembre

2017 (28 Agrahayana 1939)

No.

Puducherry

Tuesday

19th

December

2017

1364

LA GAZETTE DE L’ETAT

[19 December 2017

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G. O. Rt. No. 165/Lab./AIL/T/2017,

Puducherry, dated 30th October 2017)

NOTIFICATION

Whereas, the Award in I.D.(L) No. 82/2012, dated

05-09-2017 of the Labour Court, Puducherry in

respect of the Industrial Dispute between the

Management of Cannanore Spinning and Weaving Mills,

Mahe and United Trade Union, Mahe in respect of Thiru

T.K. Surendaran over dismissal of the services 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.

Tuesday, the 05th day of September 2017

I.D. (L) No. 2/2012

The Secretary,

United Trade Union,

Cannanore Spinning and

Weaving Mills, P.O. Palloor,

Mahe-673 333.

. . Petitioner

Versus

The General Manager,

Cannanore Spinning and

Weaving Mills, P.O. Palloor,

Mahe.

. . Respondent

This industrial dispute coming on 18-08-2017 before

me for final hearing in the presence of M.K. Suresh

Kumar, Advocate, for the petitioner, Thiru O.G.

Premarajan, 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.76/AIL/LAB/J/2009,

dated 22-05-2009 for adjudicating the following:-

(i) Whether the dispute raised by united Trade

union

(Regd.

No. 1019/RTU/96) against

the

management of M/s. Cannanore Spinning and

Weaving Mills, Palloor, Mahe regarding the

dismissal of the services of Thiru T.K.Surendaran,

cone winding No. 124 is justified or not?

(ii) If justified, to what relief the worker is

entitled to?

(iii) To compute the relief, if any awarded in

terms of money if, it can be so computed?

The above reference originally taken on file by the

Sub-Court at Mahe which was being functioned as

Labour Court in I.D. No. 04/2010 and subsequently

when this Industrial Tribunal-cum-Labour Court

established in the year 2012, the case has been

transferred to this Court and this case was taken on file

by renumbering it as I.D(L). No. 82/2012.

2. It is the case of the petitioner union that one of

its member Surendran, Cone Winding worker No. 124

was working in the respondent Spinning and Weaving

Mill and he was the Secretary of the union involved in

the dispute and there are six other unions at the

respondent management and this petitioner Surendran

is the active and prominent member of the petitioner

trade union and hence others became jealous

and enmical against petitioner union and its Secretary

and Particularly, the union of the staff exerted pressure

on the mill management to sent out Surendran from

the service of the mill by adopting any means and

methods and the mill management also surrendered to

the pressure of the unions and therefore, based on the

above understanding the then General Manager of the

Mill caused the suspension of Surendran from service

with effect from 27-09-2006 by fabricating allegations

against him and charge-sheet, dated 03-10-2006 was

served by the factory manager alleging that on

27-09-2006 at about 01.30 p.m., that the said

Surendran entered into the room of the General

Manager without his permission and threatened him,

abused his authority, interfered with his office duties,

showered abuses on him, destroyed the food items kept

on the dining table for him and thereby committed mis-

conduct of acting in a riotous and disorderly manner,

disobedience, destruction of

property, habitual

defiance of orders which would attract the 11(1)

1365

19 December 2017]

LA GAZETTE DE L’ETAT

provisions of standing order relating to misconduct

and that the charge-sheet issued against him was

absolutely false and this workman Surendran has not

entered into the room of the General Manager without

permission and there was also no such acts of

threatening of the General Manager abusing his

authority, interfering with his official duties and

showering of abuses on the General Manager and he

never acted in a riotous and disorderly manner as

stated by the respondent management on 27-09-2006

and hence, charge-sheet, dated 03-10-2006 was

fabricated against Surendran only with a pre-determined

view to cause his dismissal from service and that

therefore, the entire action of the mill management

against Surendran was by recoursing to foul play and

false tricks and thereafter, the memo was issued by the

factory manager on 03-10-2006 for which the

workman

Surendran

had

submitted

written

explanation stating all the facts what actually happened

on 27-09-2006 and the factory Manager under the

pretext stated that the written explanation submitted by

the workman was unsatisfactory and taken decision to

conduct the domestic enquiry against the said worker

Surendran by appointing Advocate Kuttan as Enquiry

Officer and when the written explanation is given by

the workman Surendran to the General Manager he

refused to entertain it asking him to submit the same

before the factory manager and subsequently one

Advocate Kuttan was appointed as Enquiry Officer by

the respondent management and he conducted the

domestic enquiry and submitted a report with findings

that the workman Surendran is guilty of charges and on

the basis of the report submitted by the Advocate

Kuttan the management as an formality invited

objection to the enquiry report and passed the order

of dismissal of service against the workman Surendran

on 19-01-2007 and that the entire disciplinary

proceedings by the mill management against the

workman Surendran was without acting bona fides and

the same is rooted in mala fide intention and that the

charge-sheet issued against Surendran by the factory

manager without authority and competency is illegal,

irregular and unsustainable and the entire domestic

enquiry is vitiated for that reasons and the charges

levelled against the workman Surendran was fabricated

and question of proving the same in the domestic

enquiry does not arise at all and the documents

produced and marked in the domestic enquiry as

Ex.M1 to Ex.M.3 have no evidentiary value and the

same are inadmissible in evidence and these documents

would go to show that no loss was caused by workman

Surendran to the respondent management and the

management intentionally

failed to

consider the

objections submitted by workman Surendran and passed

order forfeiting the whole amount of gratuity payable

to workman Surendran for his 23 years of continuous

service and the order of dismissal and the order of

forfeiture of gratuity were not made by the appointing

authority under the provisions of the standing orders

and that therefore, the union has filed this petition

praying to pass an Award holding that the dismissal of

Surendran from the service of the respondent

management and forfeiture of gratuity of workman

Surendran is illegal and unjustiable and to direct the

respondent management to reinstate the workman

Surendran

the

service

the

respondent

management with full back wages, benefits and

continuity of service.

3. It is contended by the respondent stating that on

27-09-2006 at about 01.30 p.m., the workman

Surendran who was not on duty during that shift,

unauthorizedly and forcefully entered into the room of

the General Manager, threatened him, questioned his

authority, interfered with his official duties, showered

abuses on him in filthy and unparliamentary language

in threatening posture and that the workman Surendran

prevented the ASM (Assistance) and the Deputy

Manager (Accounts) from entering into the room

showering abuses on themby forcefully shutting the

door from inside and when the General Manager

moved to quench his thirst and to take some food to

cure the shooting blood pressure and physical

weakness the workman Surendran forcibly entered into

the dining room and occupied a chair in the dining

room opposite the General Manager without heeding

to the advice of the Deputy manager who came inside

in the meanwhile and continued his shouting and

showering of abuses and further that threw away the

food items kept on the dining table for the General

Manager and the Internal Auditors and left after

continuing the havoc for some time and thereafter, the

management framed charges against the workman

Surendran who submitted his reply to the charges and

thereafter, an Enquiry Officer was appointed to conduct

a domestic enquiry and the Enquiry Officer submitted

a report on 30-10-2006 with a finding that the

workman Surendran, Cone

Winding No. 124

committed the acts of misconduct as alleged

against him by the management and thereafter, along

with enquiry report show cause notice to the workman

Surendran was issued called upon him to show cause

that why should not be dismissed from service and

after the receipt of his reply, the management

1366

LA GAZETTE DE L’ETAT

[19 December 2017

dismissed the workman Surendran on 19-01-2007 and

that therefore, the allegation in the claim petition that

as a Secretary of the United Trade union, the workman

Surendran had been taking a prominent role in

espousing the legitimate cause of the workers of the

mill for their better terms of employment, conditions

of service and welfare is not correct and the

allegations made by the petitioner are denied by the

respondent management and the workman Surendran

also has admitted in the written explanation given by

him on 09-10-2006 that he came to the room of the

General Manager to give a letter regarding the

grievance of the workers and that the explanation

submitted to the charge by the workman Surendran was

not in his personal capacity but, as the Secretary of the

union no such letter is given by the workman Surendran

on the said day to the General Manager as contended

by him and it is the further case of the respondent

management that if, there is any dispute about the

denial of gratuity the workman can approach the

proper authority under the payment of Gratuity act and

Rules made there under and the question of payment

and forfeiture of Gratuity is not a subject or issue to

be decided by this authority as the claim under the

Gratuity Act could be decided only the authority

constituted under the payment of Gratuity Act and that

the Labour Court is not having jurisdiction to entertain

any claim under the payment Gratuity Act and that the

management is having ample powers to forfeit the

gratuity of an employee as per the section 4(6) (b) (i)

of the Payment of Gratuity Act as the service of

workman Surendran has been terminated for his

riotous and disorderly conduct and act of violence on

his part and the enquiry has been conducted by the

Enquiry Officer in full compliance with the principles

of natural justice and granting all opportunities to the

employee with in fairness and the allegation to the

contrary and the other allegations regarding the

conduct and assistance of an Advocate and appreciation

of evidence are all untenable and there are no reasons

for choosing an Advocate for conducting an enquiry

and he was not sponsored by any counsel or the Legal

Advisor for the management on any undertaking as

alleged in the claim petition by the claim petitioner

and that the enquiry was conducted in most fair and

independent manner and the Enquiry Officer has not

recourse to any foul play, false tricks or unfair

methods as alleged in the claim statement and no

provision is available in the standing orders also to

claim for an appointment of an Advocate to represent

the workmen in the domestic enquiry and the

Presenting Officer of the management is not a legally

trained person and it is in fairness that the management

appointed an outside agency to conduct an enquiry and

provisions are available in the standing orders that that

an enquiry can be conducted in like matters and it was

found by the Enquiry Officer that the charges leveled

against the workman Surendran was proved which is

passed on the evidence and documents produced in the

domestic enquiry and that therefore, the procedure

adopted by the Enquiry Officer is legal and proper and

that as misconduct established against a workman

Surendran is a major misconduct involving serious

consequences highly detrimental to the running of the

establishment and the dismissal of the workman is in

proportionate to the charges and it is fully justified by

the activity of the misconduct and that the action taken

by the management is fully justified in the facts and

circumstances of the case and that an earlier charge

sheet and proceedings initiated thereon was not relied

on by the management to impose the punishment and

hence the claim petition filed by the petitioner is liable

to be dismissed and that therefore, no reason available

for the workman for claim of reinstatement with

backwages.

4. In the course of enquiry on the side of the

petitioner WW1 was examined and Ex.W1 to Ex.W10

were marked and on the side of the respondent

management the Enquiry Officer PW1 was examined

and Ex.P1 to Ex.P3 were marked.

5. The point for consideration is:

Whether the dispute raised by the petitioner

against the respondent management regarding the

dismissal of the services of Thiru T.K. Surendaran,

Cone Winding No. 124 is justified or not and if

justified what relief the petitioner is 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 are carefully considered.

On both sides written arguments were filed and the

same were carefully considered.

7. The main contention of the petitioner is that the

Factory Manager who issued charge-memo is not

competent authority to issue charge-memo while the

defacto complainant is the General Manager of the

respondent establishment to whom the said Factory

Manager is subordinate. The second contention of the

petitioner union is that the allegation leveled against

the workman Surendran on 29-7-2006 has not accured

and only on the motive of victimization and intention

to remove him from service from the respondent

1367

19 December 2017]

LA GAZETTE DE L’ETAT

management since he was the Secretary of the union

and active participant of the petitioner united trade

union, the respondent management has foisted the

charges against the delinquent workman. The third

contention of the petitioner that the petitioner was not

given fair opportunity in the domestic enquiry by

permitting him to assist through an Advocate, though

he has asked for a permission to appoint a Counsel to

assist him in the domestic enquiry.

8. On the other hand the respondent management

has contended that the workman Surendran has

committed mis-conduct of riotous and disorderly

manner and the workman Surendran though was not on

duty during the shift unvoluntarily entered into the room

of the General Manager threatened him, questioned his

authority, interfered his official duty, showered abuses

on him in filthy and unparliamentary language and

forcefully shutting the door and workman also entered

into the dining room and continued his shouting and

showering of abuses and threw away the food items

kept on the dining table which was established before

the Enquiry Officer and on the report of the Enquiry

Officer he was terminated from service on 19-01-2007

and the domestic enquiry was conducted in a fair and

proper manner following the principles of natural

justice and that therefore, the contention of the

petitioner that the domestic enquiry is not fair and the

Enquiry Officer has violated the principles of natural

justice is not correct and as the workman Surendran

committed the misconduct in a riotous and disorderly

manner he has been terminated from service.

9. It is learnt from the records that though the

petitioner union has pleaded that the domestic enquiry

conducted against the delinquent workman is not fair

and not in accordance with the principles of natural

justice and the said pleading was denied by the

respondent management, the then Presiding Officer of

this Tribunal has not taken the issue as a preliminary

issue and to decide the same at the, initial stage. Now,

both the parties have let evidence in support of their

pleadings and particularly the respondent management

has let evidence at the first instance and the respondent

witness was examined as PW1 and exhibits were

marked as Ex.P1 to Ex.P3 and the delinquent workman

was examined as WW1 and Ex.W1 to Ex.W10 were

marked. Since, both the parties have let evidence and

the Hon’ble High Court has also passed an order in

W.P. No. 37527 of 2016 to dispose the I.D within the

period of 4 months, it is just and necessary to dispose

the main I.D regarding industrial dispute raised by the

petitioner union against the respondent management at

this stage.

10. From the pleadings of both the parties it is

clear that the following facts are admitted by either

sides that the petitioner union is functioning at the

respondent establishment and the workman Surendran

was working at the respondent establishment for more

than 20 years and he was the Secretary of the

petitioner trade union and the show cause notice was

given to him for the occurrence alleged to have been

happened on 27-9-2006 at the room of the General

Manager and the said workman Surendran has given

explanation and thereafter, the domestic enquiry was

conducted by the Enquiry Officer who is appointed by

the Factory manager and for the charge alleged to have

been taken place on 27-09-2006 that the workman

Surendran entered into the room of the General

Manager shouting and using abusive words and

threatened him shutting the door and threw away the

food items which are kept in the dining table at about

01.30 p.m., and also used abusive words against other

two employees and that after the completion of the

enquiry the Enquiry Officer has filed report found

guilty of the petitioner and thereafter, he was

terminated from service against which the petitioner

has raised the industrial dispute before the Conciliation

Officer and the conciliation was referred to the Court

for adjudication.

11. It is not in dispute that the said Surendran was

working at the respondent establishment as permanent

workman for a long time and he made a representation

as Secretary for the petitioner trade union and it is

also not in dispute that on 27-09-2006 the workman

Surendran has gone to the factory but, not for the

purpose of doing factory work and therefore, it can be

inferred from the pleadings that two facts are disputed

by the petitioner that the workman Surendran has

committed mis-conduct of riotous and disorderly

manner as alleged by the respondent management on

27-09-2006 and the domestic enquiry was not fair and

was not conducted by following the principles of

natural justice. It was stated by the respondent

management that the domestic enquiry was conducted

fairly and properly in accordance with the principles

of natural justice and that therefore, now, this Court

has to decide these two facts whether the domestic

enquiry conducted by the Enquiry Officer in a fair

manner and following the principles of natural justice

or not and whether the respondent management has

established before this Court that such alleged

occurrence was happened on 27-09-2006 at the

respondent office as alleged by the respondent or not

and it is also to be ascertain whether the respondent

management has imposed proportionate punishment or

not for the alleged charge of misconduct of riotous and

disorderly manner.

1368

LA GAZETTE DE L’ETAT

[19 December 2017

12. The allegation leveled against the workman

Surendran is severe that he has entered into the room

of the General Manager without his permission and

shouted there and using

filthy language

and

unparliamentary words and thereafter, entered into the

dining room of the General Manager and threw away

the food items which was provided for the General

Manager and the internal Auditors are very serious

mis-conduct and severe in nature and the respondent

management has issued a memo to the petitioner and

on the foot of the explanation given by the delinquent

workman the Enquiry Officer was appointed and the

domestic enquiry was conducted and the delinquent

workman was given full opportunity to cross examine

the witnesses and he was also permitted to adduce

evidence on his side and full opportunities were given

to him with the assistance of the President of the

union. But, the requisition of the petitioner delinquent

workman to appoint a Counsel to assist to defend the

domestic enquiry was denied by the Enquiry Officer.

13. The respondent management in order to prove

the case examined the Enquiry Officer who conducted

the domestic enquiry as PW1 and exhibited Ex.P1 to

Ex.P3. Ex.P1 is the enquiry report of the Enquiry

Officer, Ex.P2 is the proceedings of the domestic

enquiry conducted by him against the workman

Surendran and Ex.P3 is the letter given by the workman

Surendran to the Factory Manager of the respondent

management. These documents would go to show that

there was an enquiry conducted by the Enquiry Officer

and the Enquiry Officer was appointed on 13-10-2006

by the Factory Manager to conduct the enquiry against

the workman Surendran and the Enquiry Officer has

issued a notice of enquiry to both the parties and the enquiry

was commenced on 28-10-2006 and he examined all

the witnesses and after completion of the enquiry the

Enquiry Officer has found guilty of the charges against

the delinquent Surendran that as per the charge-sheet,

dated 03-10-2006.

14. In order to prove the contention of the

petitioner the delinquent workman was examined as

WW1 and Ex.W1 to Ex.W10 were marked. Ex.W1 is

the Notice. Ex.W2 is the Reply. Ex.W3 is the Postal

Acknowledgment Card. Ex.W4 is the Demand Notice.

Ex.W5 is the Postal Acknowledgment card. Ex.W6 is

the Reply. Ex.W7 is the Notice. Ex.W8 is the Copy of

objection. Ex.W9 is the Postal Acknowledgment

Card. Ex.W10 is the Order of Forfeiture of Gratuity.

The reply of the delinquent workman exhibited as

Ex.P3 which is in Malayalam language perused with

the help of Court staff. On perusal of the records and

documents exhibited by the respondent management as

Ex.P1 to Ex.P3, it is learnt to this Court the Enquiry

Officer was appointed by the Factory Manager and the

punishment was given by the disciplinary authority, the

General Manager and no document is exhibited before

this Court to prove the fact that whether the

disciplinary authority has delegated his power to

Factory Manager to issue a charge-memo to the

delinquent workman and to appoint an Enquiry Officer

to conduct the domestic enquiry. As the disciplinary

authority the General Manager of the respondent mill

has imposed punishment of dismissal to the delinquent

workman. Having accepted as a disciplinary authority

he has not made any delegation of power to the Factory

Manager to take disciplinary action by issuing

charge-memo against the delinquent workman and to

appoint Enquiry Officer to conduct the domestic enquiry

and furthermore, records available before this court would

not disclose the fact that the power was delegated by

General Manager to the Factory Manager and it is also

not disclosed that the General Manager can delegate

the powers to take disciplinary proceedings to the

Factory manager as per the standing order of the

respondent mill. Though, the Enquiry Officer has stated

in his report that the requisition of the delinquent

employee to appoint an Advocate to assist the enquiry

was rejected by him on the advice of the Presenting

Officer that the company standing order does not

permit him to appoint such an Advocate, no such

standing order is exhibited before this Court to

ascertain the fact whether the standing order would not

provide such assistance to the delinquent workman in

the domestic enquiry. When the charge against the

delinquent is serious one and if the result would be the

dismissal

termination

employment,

the

delinquent workman would be given legal assistance by

appointing an Advocate to conduct the domestic

enquiry and furthermore, the requisition of the

delinquent workman cannot be permitted or rejected

by the domestic Enquiry Officer without getting

approval of the disciplinary authority. But, in this case,

the Enquiry Officer who conducted the enquiry has not

at all get the opinion of the disciplinary officer to

provide such assistance to the delinquent workman and

only on the advice of the Presenting Officer he has

rejected the requisition of the delinquent workman to

conduct the enquiry through his Counsel.

15. As rightly pointed out by the learned Counsel

for the petitioner admittedly the Enquiry Officer who

conducted the domestic enquiry has not permitted the

petitioner to engage an Advocate stating that the

1369

19 December 2017]

LA GAZETTE DE L’ETAT

Presenting Officer told him the standing order does

not permit him to engage an Advocate in the domestic

enquiry and it is also an admitted fact that in the

domestic enquiry the petitioner was permitted only to

get assistance of co-workers and the request of the

delinquent workman was rejected by the Enquiry

Officer to permit him to assist by the legal

practitioner. The evidence of the Enquiry Officer who

was examined as PW1 in this case runs as follows :

“G.M is the head of the Management........................

....................... MW2 and MW3 are persons holding

post lower to the G.M. The DPM from the Personal

Department was nominated as Presenting Officer.

The

employee

appeared

and

submitted

representation seeking

permission to

defend

himself through a legal practitioner in the

representation he has stated that there is nobody in

the Union to assist him. I refused permission to

engage an Advocate. The rejection is on two

grounds, (i) there is no provision in the standing

order and (ii) the Management has not engaged a law

graduate. The delinquent is qualified only 4th

standard, I do now know and I cannot deny the same.

The Presenting Officer is a trained person, I cannot

say that. It is true that when compared to Presenting

Officer the delinquent is in lower category. The

delinquent has to cross examine G.M who is holding

higher post.1 The two other witnesses are holding

higher post and educational qualification. No

material was produced to show that the delinquent

is having educational qualification. No provision is

there in the standing order to engage Advocate.

Standing order is silent as to domestic enquiry. There

is no provision regarding representation. Natural

justice and fair play would come into operation in

the absence of provisions in the standing order.

If, the workman is permitted to engage an Advocate

the management would also be permitted to engage

Advocate. No prejudice would be caused to the

management if, the worker is permitted to engage

Advocate.”

From the above evidence it is clear that the

contention of the Enquiry Officer that the standing

order does not prohibit the delinquent workman to

engage a Counsel and it was silent with regard to the

same. While so, it is also clear from the evidence of

PW1 the Enquiry Officer that the delinquent workman

has studied only 4th standard and in such circumstances

he was denied permission to engage the counsel.

16. Furthermore, as rightly pointed out by the

petitioner counsel that admittedly, the standing order

absolutely was silent as to domestic enquiry and

representation by parties in the domestic enquiry

regarding the representation of the domestic enquiry

proceedings and that there is no provision of standing

order to engage an Advocate for delinquent workman

for defending his case in the domestic enquiry

proceedings. On this aspect the learned Counsel also

relied upon the Judgment reported in 1995 ILLJ1011,

1017(Kant), wherein, the Hon’ble High Court has

observed that,—

“(a) The right to be represented by a legal

practitioner is not an element of principles of

natural justice.

(b) A delinquent will have to right to claim to

be defended by legal practitioner, where the rules

or regulation permit the employee to be represented

by a legal practitioner.

about representation by a Lawyer or vest a discretion

in the disciplinary authority or the inquiry authority,

to permit the employee to be represented by a legal

practitioner or other agent of his choice denial of

such permission a request made by the employee,

would violate the principles of natural justice.

(i) If, the Presenting Officer is a legal

practitioner or a person legally trained or

experienced or

(ii) If, the charges are serious and complex nature.

(d) Where rules or regulations specifically

prohibit the employee from engaging the service of

a legal practitioner, such rules or regulations will

be read down as vesting a discretion in the

disciplinary authority to permit the employee to

engage a legal practitioner, where

(i) The Presenting Officer is a legal practitioner

or legally trained person, or

(ii) The charges are of a serious and complex

nature if it is not so read down, the rule itself

may have to be held to the invalid as violating

Article 14 of the constitution.”

From the above observation of the Hon’ble High

Court, it is very clear that absence of provision in the

standing order is not at all a ground for denying the

assistance of the Lawyer to the delinquent workman to

defend him in the domestic enquiry proceedings. But

in this case, the enquiry report itself would clear that

delinquent workman was denied the permission to

appoint the Counsel to assist him in the domestic

enquiry.

1370

LA GAZETTE DE L’ETAT

[19 December 2017

17. The another contention of the petitioner that

the General Manager who is the defacto complainant

in this case has not delegated any power to the Factory

Manager who is sub-ordinate to him is not competent

to initiate the disciplinary proceedings by issuing

charge memo. On this aspect, the learned Counsel for

the petitioner relied upon the Judgment reported in

Manihar Singh Vs. S.P. United Kashi Jainlia Hills,

Shillong, 1969 LIC 4, wherein, it was held as follows:

“The framing of charges the holding of an enquiry

into them, the suspension of the Civil Servant”

during the enquiry, the notice to show cause are all

steps in the exercise of the disciplinary powers. All

these steps are required to be taken by the

disciplinary authority and not by the delegate of that

authority. In the absence of statutory provisions

pertaining expressly or impliedly delegation of

disciplinary power, an authority other than the

disciplinary authority has clearly no power to frame

on its own initiative, charges against a civil servant

and held an enquiry into them.”

The learned Counsel for the petitioner has also

relied upon the Judgment reported in D.S. Garewell Vs.

State of Punjab. AIR 1959 Sc 512 wherein it was held

as follows:

“It is well established that an authority competent

to impose a penalty or to dismiss an employee can

issue or frame the charge-sheet”

The learned Counsel for the petitioner has also

relied upon the Judgment reported in Shardul Singh Vs.

State of Madhya Pradhesh, AIR 1968 (11) LIJ 274,

wherein, it was held as follows:

“The exercise of disciplinary powers extends not

only to appointment and dismissal but also to

initiation of disciplinary action against an employee

by training charges against the employee and in

suspending him and in the absence of any statutory

provision

permitting

expressly

impliedly

delegation of disciplinary powers any authority

other than the disciplinary has no power to frame

charge-sheet. It is therefore, obvious that when the

charge-sheet is required to be framed by the

Manager, than the charge sheet issued by the section

in charge is not in order.”

The learned Counsel for the petitioner has also

relied upon the Judgment reported in Britania Biscuit

Co. Ltd. Vs. Workman, Calcutta Gazette. Pt. I.C, dated

7th November, 1969, P.3612, wherein, it was held as

follows:

“Where the appointing authority of the delinquent

official was Commissioner of Municipal corporation

of Delhi but, the charge-sheet was issued by the

Deputy Commissioner (T), the action as initiated by

the Deputy Commissioner (T) was without jurisdiction”

The learned Counsel for the petitioner has also

relied upon the Judgment reported in Municipal

Corporation of Delhi Vs. Omprakash Sharma, 1989 (1)

Del. Lawyer 199, wherein, it was held as follows:

“An enquiry ordered by an official, Junior to the

appointing authority will not be valid. Where the

charge-sheet

was

issued

the

Deputy

Commissioner and the action was initiated by him

against the Delinquent Officer whereas, the

appointing authority was the Commissioner the

enquiry could be initiated by the Commissioner only

since he was the appointing authority. Thus, the

disciplinary action as initiated by the Deputy

Commissioner was without jurisdiction and void

ab initio.”

The learned Counsel for the petitioner has also

relied upon the Judgment reported in G.N.Nanjundian

Vs. Inspector-General of Police, 1966 (2) Ker LK

(DB) (Kar.ITC) as relied on by the Karnataka High

Court in K.S.Somasundaram Vs. Karnataka Power

Corporation Ltd., 1989 (58) FLU (S.N) 29 (Kar.HC),

wherein, it was held as follows:

“The disciplinary enquiry, in order to be valid has

to be instituted by authority competent to institute

the proceedings. Even the appellate authority cannot

impose a penalty in an enquiry instituted by an

authority, not competent to institute it.”

The learned Counsel for the petitioner has also

relied upon the Judgment reported in Anantha Krishnan

Vs. Oriental Fire and General Insurance Co. Ltd., 1988

(2) KLT 159 = 1988 (2) LLJ 526, wherein, the division

bench of the Kerala High Court held as follows:

“Disciplinary Authority not having jurisdiction to

initiate disciplinary proceedings. Proceedings

cannot be valid an account of the fact that the

enquiry was held in conformity with the principles

of natural justice. In this view of the matter the mere

compliance with the principles of natural justice

does not validate the enquiry. The disciplinary

action was initiated against the petitioner herein by

an incompetent authority. He has no jurisdiction to

proceed against the petitioner such a total lack of

jurisdiction of the primary authority cannot be

1371

19 December 2017]

LA GAZETTE DE L’ETAT

cured in Appeal. If, the initial authority has no

jurisdiction to proceed with the enquiry, such a

defect will not be cured, on account of the fact that

the said order was confirmed by the Appellate

Authority. The question about want of jurisdiction

could be raised even at a later stage”

From the above observations made in the citations

it is clear that other than the disciplinary authority has

clearly no power on his own initiative charges against

a deliquent workman and to held domestic enquiry and

also to appoint any Enquiry Officer and these powers

cannot be delegated in the absence of the statutory

provisions

permitting

expressly

impliedly

delegation of disciplinary powers to the person other

than the disciplinary authority. In this case it is

admitted by the respondent management that the

General manager is the disciplinary authority and he

has not delegated any power to the Factory Manager

and also admitted that the respondent management has

not established that the Factory Manager is competent

initiated the disciplinary proceedings by issuing

charge-memo to the delinquent workman and that

therefore, the second contention is also sustainable

that the Factory Manager who initiated the disciplinary

proceedings by issuing charge-memo and appointing

the Enquiry Officer who conducted the domestic enquiry

is not competent to take disciplinary proceedings.

18. Furthermore, the memo of charge given by the

Factory Manager to the delinquent workman on

03-10-2006 for the occurrence alleged to have been

happened on 27-09-2006 which runs as follows :

“In the background of the above allegations the

following charges are levelled against you :

(i) That you have acted in a riotous sand

disorderly manner within the mill premises and

you have indulged in acts subversive of discipline

of the mills (Standing Order No. l7((3)(j)).

(ii) That you have willfully destroyed the food

items arranged for the lunch of the General

Manager and Internal Auditors of the Mills

(Standing Order No. 17((3)(o)).

(iii) That you have willfully disobeyed and

defied the orders of the superior (Standing Order

No. 17((3)(o)).

And

(iv) That you have habitually defied the lawful

orders of the Management (Standing Order No.

No. 17((3)(g)).

From the above contention of the charge-memo it

is clear that the delinquent workman has been charged

for rnis-conduct of (i) acted in a riotous and disorderly

manner, (ii) willfully destroyed the food items,

(iii) willfully disobeyed and defied the orders of the

superior and (iv) habitually defied the lawful orders of

the management. However, on perusal of records it is

learnt to this court that the Enquiry Officer who

conducted the domestic enquiry in his final report has

stated commonly that the charges levelled against the

delinquent workman was proved. The final report of the

Enquiry Officer in the domestic enquiry runs as

follows:

“6.02. In the light of the facts which transpire

from the evidence in the enquiry discussed above

I find that the employee, Sri T.K. Surendran, Cone

Winding No. 124 (under suspension), committed

the acts of misconduct, as alleged against him in the

memo of charges, dated 03-10-2006 issued to him

by the management and that the charges raised

against him therein are substantiated in full.”

From the above final report of the Enquiry Officer,

it is clear that though the delinquent workman was

charged for 4 charges, the Enquiry Officer has not

dealt with each and every charges leveled against the

delinquent workman. Simply, the Enquiry Officer has

stated in his report that the workman Surendran

committed the acts of mis-conduct as alleged against

him. The Enquiry Officer has not stated in his

domestic enquiry report that these 4 charges were

proved by the management separately.

19. Furthermore, on receipt of the proceedings and

findings of the Enquiry Officer, the Disciplinary

Authority should forward a copy of the findings of the

Enquiry Officer to the delinquent employee and advise

him to submit his comments on the findings of the

Enquiry Officer within a specific period of time and

on receipt the delinquent employee should submit his

comments and only after expiry of specific period of

time given to delinquent employee to submit his

comments, the Disciplinary Authority should come to

his own conclusion by going through all the papers and

applying his mind dispassionately and he should also

record his view on the Enquiry Officer’s findings in

respect of each charge separately. But, in this case the

notice which was alleged to have been given by the

respondent management to the delinquent workman to

submit his comments on the enquiry report was not

1372

LA GAZETTE DE L’ETAT

[19 December 2017

exhibited before this Court. Furthermore, after deciding

the punishment for the misconduct proved against the

employee the Disciplinary Authority should issue a

show cause notice furnishing his order and proposing

the punishment and advising the employee to show

cause why such a punishment should not be awarded

to him. But, in this case no such notice was exhibited

which was issued to the delinquent employee before

giving punishment of dismissal terminating employee

from service.

20. Furthermore, the Disciplinary Authority should

also go into the past record of the employee while

awarding the punishment and when it is favorable to the

employee and the misconduct committed by and

approved against him is of a minor nature, the

Disciplinary Authority may take a lenient view. In case

of adverse past record, it should be disclosed to him

in the show cause notice and he should be given an

opportunity to explain the same. But, in this case no

such notice was exhibited before this Court which was

alleged to have been issued to delinquent employee.

After considering all the above factors, and after

affording a personal hearing to the employee, the

Disciplinary Authority will issue the final order

reducing or confirming the punishment already

proposed. But, in this case the respondent management

has not stated anything about his past records of the

delinquent workman and even a show cause notice

alleged to have been issued by the Disciplinary

authority to the delinquent workman was not exhibited

before this Court and also no notice regarding the

proposed punishment imposed against him was

exhibited before this Court. These facts would go to

show that the disciplinary authority has failed to

follow the principles of natural justice before Award

the punishment of termination of service and

furthermore the punishment is also not proportionate

since the petitioner delinquent workman has no past

records in misconduct and he was working at the

respondent establishment for more than 20 years and

that therefore, it is just and necessary to hold that the

Industrial dispute raised by the petitioner union against

the respondent management against the dismissal of

service of delinquent workman Surendran is to be

justified. Since, this Court has held that the industrial

dispute raised by the petitioner union against the

respondent management against the dismissal of

service of delinquent workman Surendran is justified,

it is also just and necessary to decide the relief which

can be given to the petitioner delinquent workman.

21. On this aspect records and documents are

carefully perused. Though the respondent management

has failed in conducting the domestic enquiry properly

the allegation leveled against the petitioner is serious

in nature that he has entered into the room of the

General Manager without his permission and threw

away the food items kept for the General Manager and

the

Internal

Auditors

and

used

filthy

and

unparliamentarily language against the management and

that therefore, the management has lost faith on the

workman and that therefore, they have terminated the

workman from the respondent Industry and in such

circumstances, the relief of order of reinstatement is

not a reasonable one and only compensation alone is

a reasonable one to the petitioner delinquent workman.

The records and documents filed by the petitioner

would go to show that the respondent management also

has forfeited gratuity amount after giving show cause

notice to the petitioner delinquent workman who was

terminated from service and no monetary benefits was

given to him by the respondent management. Since, the

petitioner delinquent workman was working for more

than 20 years at the respondent management, he is

entitled for gratuity and other monetary benefits while

he was terminated from service and that therefore,

considering the long tenure of service of the petitioner

delinquent workman and considering the other

circumstances and fact that the petitioner delinquent

workman

could

not

serve

the

respondent

establishment in future since, the dispute has arose

between the delinquent workman and the General

Manager of the factory, this Court has decided that the

petitioner delinquent workman is not entitled for any

reinstatement as claimed by him instead of that he can

be granted compensation as an alternative remedy to

him from the respondent management.

22. In order to fix the compensation, the records

and circumstances are carefully considered. The

petitioner has served at the respondent establishment

for about 20 years and thereafter, due to the alleged

incident taken place in the year 2007 the petitioner

delinquent workman had not been in service from

2007 i.e., for more than 10 years. Considering all

other circumstances, this Court tentatively fix ` 5,00,000

as compensation which is to be paid by the respondent

management to the petitioner, apart from compensation

the petitioner delinquent workman is entitled for all

other retirement benefits as if, he is in service at this

stage such as gratuity and other benefits.

1373

19 December 2017]

LA GAZETTE DE L’ETAT

23. In the result, the petition is partly allowed and

the industrial dispute raised by the petitioner union

against the respondent management regarding the

dismissal of the services of Thiru T.K.Surendaran,

Cone Winding No. 124 is justified and an Award is

passed by directing the respondent management to pay

` 5,00,000 (Rupees five lakhs only) as compensation

and also directed the respondent management to pay

retirement benefits such as gratuity and other benefits

to the said Thiru T.K. Surendaran as if, he is in service

at this stage. No cost.

Dictated to the stenographer, transcribed by her,

corrected and pronounced by me in the open Court on

this the 05th day of September, 2017.

G. THANENDRAN,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.

————

List of petitioner’s witness :

WW1 —21-12-2011—

T.K. Surendran

List of petitioner’s exhibits :

Ex.Wl —31-03-2007 Notice

given

the

respondent management to

the workman Surendran.

Ex.W2 —17-04-2007 Reply

given

the

petitioner United Trade

union to the respondent

management.

Ex.W3 —

Postal

Acknowledgment

Card.

Ex.W4 —17-04-2007 Demand Notice given by

the petitioner United Trade

union to the respondent

management.

Ex.W5 —

Postal

Acknowledgment

Card.

Ex.W6 —06-12-2007 Reply

given

the

respondent management.

Ex.W7 —16-05-2007 No tice given by the

respondent management to

the workman Surendran.

Ex.W8 —26-05-2007 Copy of objection given by

the workman Surendran.

Ex.W9 —

Postal Acknowledgment

Card.

Ex.W10—01-06-2007 Order

Forfeiture

Gratuity.

List of respondent’s witness :

PW1

—05-09-2011 A.N. Kuttan

List of respondent’s exhibits :

Ex.P1 —30-12-2006 Report of Enquiry.

Ex.P2 —

Enquiry file

Ex.P3 —17-01-2007 Letter given by the

workman- Surendran

to the respondent

management.

G. THANENDRAN,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.

————

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 168/Lab./AIL/T/2017,

Puducherry, dated 6th November 2017)

NOTIFICATION

Whereas, the Award in I.D.(L)No.33/2013,

dated 13-09-2017 of the Labour Court, Puducherry in

respect of the industrial dispute between Thiru

A. Sasikumar, S/o. Arumugam, Mangalam, Puducherry

against the management of M/s. Hindustan Unilever

Limited, Personal Products Factory, Vadamangalam,

Puducherry over to reinstate the petitioner with

continuity of service, back wages and all other

attendant benefits 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).

1374

LA GAZETTE DE L’ETAT

[19 December 2017

BEFORE THE INDUSTRIAL TRIBUNAL-CUM-

LABOUR COURT AT PUDUCHERRY

Present :Thiru G. THANENDRAN,

B.COM.,M.L., Presiding Officer.

Wednesday, the 13th day of September 2017

I.D. (L) No. 33/2013

A. Sasikumar,

S/o. Arumugam,

No.95, Embalam Main Road,

Mangalam, Puducherry.

. . Petitioner

Versus

Hindustan Unilever Limited,

Personal Products Factory,

Rep. by its Factory Manager,

No. 45-A, Vadamangalam,

Puducherry-605 102.

. . Respondent

This industrial dispute coming on 30.08.2017

before me for final hearing in the presence of

Thiruvalargal P.R.Thiruneelakandan and A. Mithun

Chakkaravarthy,

Counsel

for

the

petitioner,

Thiruvalargal L. Sathish, T.Pravin, S. Velmurugan,

V. Veeraragavan and E. Karthik, Advocates for the

respondent, upon hearing the respondent upon perusing

the case records, after having stood over for

consideration till this day, this Court passed the

following:

AWARD

1. This is a petition filed by the petitioner under

section 2A(2) of the Industrial Disputes Act, 1947

praying to pass an Award holding that the termination

of service of the petitioner by the respondent from

02-03-2012 is illegal, consequently direct the

respondent to reinstate the petitioner with effect from

02-03-2012 as a workman in the respondent’s factory

with continuity of service, back wages and all other

attendant benefits.

2. The averments in the claim statement of the

petitioner, in brief, are as follows :

The petitioner was appointed as workman in the

year 2005 by the respondent and he was illegally

terminated on 02-03-2012 and till that time he had

been continuously working in respondent’s factory

and further stated that the respondent had given

assurances that if, the petitioner carried out the

works as permanent employee, he will be confirmed

as permanent employee and the respondent has

ulterior motive to change petitioner’s ID number and

the petitioner completed more than 7 years of

continuous service and only because of the demand

of the petitioner to confirm him as permanent

employee and to pay wages on par with permanent

employees the respondent terminated petitioner

from

services

02-03-2012

and

denied

employment without any notice as he is a trainee

and further stated that the petitioner’s termination

and denial of employment is illegal and since his

initial appointment till his illegal

termination

respondent deducted ESI, PF contribution from

petitioner’s wage and that the petitioner is a

workman and fall under the definition of section

2(s) and his service cannot be terminated in

violation of provisions of Industrial Disputes Act

and Model standing order and from the date of

petitioner’s appointment in the year 2005, he had been

continuously working in respondent’s factory and

therefore, he cannot be treated as fixed term

contract

employee and

that

the respondent

committed unfair labour practice under Schedule V

Part I clause 10 of ID Act and the termination of

petitioner is an act of victimisation, unfair labour

practice by the respondent and is violation of

section 25F of the ID Act and Model standing order

and further stated that the petitioner is not gainfully

employed in any establishment or anywhere after

his termination and prayed for the above reliefs.

3. The brief averments in the counter filed by the

respondent are as follows :

The respondent is engaged in the business of

manufacturing personal care products, which are

extremely competitive and their demands keep

fluctuating in both national and international market

depending on various factors and its products are

marketed not only in India but, also in foreign

countries and as and when there is an increase in

production order, respondent engages temporary

workers specifically for specified period or for

specific production volume and it has necessary

licence and permission from Inspector of Factories

to engage temporary workers and even its Certified

Standing Orders permits engagement of temporary

workers as well as trainees and that the petitioner

was engaged as temporary worker purely on

contractual basis for specified periods depending

upon exigencies and to cater to special and

1375

19 December 2017]

LA GAZETTE DE L’ETAT

emergency orders in the year of 2007 not in the

year of 2005 and the said appointment was

specifically for a period of 6 months for a sudden

escalation in the demand and each and every term

of appointment was explained to petitioner in his

local language and only after accepting such terms,

petitioner joined respondent’s organisation as

temporary worker for specific period and on

completion of the said period, petitioner was

relieved from service and further stated that the

petitioner himself gave a request letter, dated

02-03-2012 for appointing him as a trainee and

seeking necessary training in respondent however in

the

interview,

the

petitioner's

performance,

qualification and experience were not satisfactory

for the post for which he applied and hence, the

respondent served a letter, dated 09-05-2012

informing him that his application for training could

not be acceded and the petitioner was therefore,

only a temporary worker engaged for a specific

period and his tenure expired efflux of time on

completion of said period and the petitioner was

never engaged as trainee or in any other capacity

except on contract bound by time for a specific

period and he was engaged only when our company

had any escalation in production requirements and

every time the petitioner was taken on contract for

specific period for specific work, he was given a

new token number and new ESI, EPF Code No.

which by itself is a proof of the fact that he was not

in continuous employment with the respondent

company and further stated that the petitioner has

already raised an industrial dispute on 30-04-2012

with the Labour Officer (Conciliation), Puducherry,

vide No.H85/LO(C)/AIL/2012 and it was withdrawn

by the petitioner and the petitioner gave another

representation,

dated 06-09-2012

Labour

Officer (Conciliation) vide No.2415/LO(C)/AIL/

2012 raising the same dispute with false and

baseless contentions and the petitioner’s contention

that he was victimised is false and baseless and the

fact that the petitioner worked for particular number

of days in 2012 and 2013 does not by itself give

him any lien over employment, especially, when he

was engaged only as temporary worker for specific

period for a specific order and that period had

expired by efflux of time and that the mere fact that

ESI and EPF contributions were deducted for

petitioner does not by itself gives any right to the

petitioner to claim any permanency in his

employment as ESI and EPF is payable for all

workers irrespective of their employment status

and prayed to dismiss the claim petition.

4. In the course of enquiry on the side of the

petitioner PW.1 was examined and Ex.PI to Ex.P14

were marked and on the side of the respondent RW.1

to RW.3 was examined and Ex.Rl to Ex.R14 were

marked.

5. The point for consideration is:

Whether the termination of service to the

petitioner by the respondent from 02-03-2012 is

illegal or not and whether the petitioner is entitled

for the claim?

6. The submission of both the parties, the evidence

let in by either sides and the exhibits marked on both

sides are carefully considered. The learned Counsel for

the respondent has filed a written argument and relied

upon the following citations : CDJ 2011 SC 622, CDJ

2006 SC 958, CDJ 2006 SC 196, CDJ 2006 SC 982,

CDJ 2007 SC 139, CDJ 2006 SC 611, CDJ 2006 1238,

CDJ 2005 SC 604, CDJ 2001 SC 363, CDJ 1992 SC

118, CDJ 2016 BHC 1370, 2014 III LLJ 329 (Guj) :

CDJ 2014 GHC 080, CDJ 2013 DHC 1750, CDJ 2012

DHC 2073, 2009 I LLJ 96 AP : CDJ 2008 APHC 690,

unreported judgment of Delhi High Court in, dated

07-12-2005 India Tourism Development Corporation

Vs. Poonam Rai (DEL) and unreported judgment of

Kumar Vs. M/s. Fruit and Vegetable Projects, dated

01-04-2014.

7. It is clear from the pleadings of both the parties

that both the parties have admitted the fact that the

respondent establishment is doing manufacturing

business and this petitioner has served at the

respondent management and ESI, EPF contributions

were deducted for the petitioner by the respondent and

work note sheet were given to him on various dates

from 2006 to 2011 and the petitioner also have been

given salary slips by the respondent management and

the respondent establishment product demands keep

fluctuating in the market and the petitioner has not

been given work from 02-03-2012 and thereafter, the

petitioner raised the industrial dispute before the

Conciliation Officer on 30-04-2012 and it was

withdrawn by the petitioner on 14-02-2013 and the

petitioner also has given another representation on

06-09-2012

and thereafter,

has filed

this

application before this Court for an order of

reinstatement with back wages.

8. It is the evidence of the PW.1 the petitioner

workman that he was in service continuously from

July, 2005 till 02-03-2012 on which date he was

terminated

from

service

the

respondent

1376

LA GAZETTE DE L’ETAT

[19 December 2017

management and that the respondent management has

paid wages below to the minimum wages and the

petitioner was asked to do all works as permanent

workman and EPF and ESI were contributed by the

respondent management and however they have changed

the identity number and that he had been in service for

more than 7 years and though the petitioner has

requested

the

management

regularise

his

appointment and for revision of wages the respondent

management has not paid the same and subsequently he

was appointed as a trainee but the petitioner was not

given any training instead of that he was asked to do

all the production work as permanent worker and while

so without any intimation he was terminated from

service on 02-03-2012 as a trainee which is absolutely

against law and that no such training was actually given

to him and for the past 7 years the respondent

management has asked him to do all the work as

permanent worker and he never appointed as a trainee

or apprentice of the respondent management and the

termination of the petitioner stating that he is a

apprentice or trainee is also against the provisions of

Apprentice Act, 1961 and since the petitioner has

asked for revision of wages and regularisation only to

victimise the petitioner the respondent management

has terminated him from service and that therefore, the

termination is absolutely illegal and that ` 4,119 was

received by him as monthly wages and the petitioner

would not survive due to termination and that the

petitioner is entitled for reinstatement along with back

wages.

9. In support of his oral evidence, the petitioner has

exhibited the copy of the Identity Card of the

petitioner as Ex.Pl, The Ex.P2 to Ex.P5, Ex.P7 and

Ex.P9 are the copy of the job induction given by the

respondent to the petitioner for the year 2006, 2007,

2008, 2009 and 2011 respectively. The Ex.P6, Ex.P8

and Ex.P10 are the copy of the wage slips given by the

respondent to the petitioner for the month of August-2010,

September 2011 and January 2012 respectively, which

would reveal the fact that the petitioner has received

` 3,828 as salary for the month of August-2010, the

petitioner has received ` 5,112 as salary for the month

of September2011 and the petitioner has received

` 4,119 as salary for the month of January 2012. Ex.P11

is the copy of the letter given by respondent to

petitioner which would reveal the fact that the

petitioner had an interview with the

respondent

management and subsequently the petitioner has been

informed that respondent management are not able to

offer any suitable position to match his qualification

and experience. Ex.P12 is the copy of the petition

filed by the petitioner before the Conciliation Officer.

Ex.P13 is the copy of the P.F Account which does not

disclose the name of the petitioner. Ex.P14 is the copy

of the Bank Account Book of the petitioner.

10. On the other hand, in order to prove the case

the respondent management has examined 3 witnesses

and RW.1 is the HR Executive of the respondent

establishment and he has stated in his evidence that

there is always fluctuation in demand for the products

depending on various factors and when they receive

such export orders and when there is a sudden spurt

in demand in Indian market, the Company finds it

difficult to extract additional production from its

regular workers and therefore, the temporary workers

specifically for specified period or for specific

production volume on contract and for such export

orders or excess local demand is satisfied the regular

production targets are meted out with regular workers

in the factory and temporary workers was engaged for

specific term or specific production volume are

discharges as and when such excess orders are emerge

temporary workers are re-engaged for specific period

and that the petitioner was one among those temporary

workers who was engaged by the company on contract

for a specific period with intermittent gaps depending

upon escalating production demands with a clear

understanding that such temporary engagement was

either for specific period or for specific tonnage of

production and his engagement shall not give him any

right to make any claims for permanent employment

in the factory.

11. Further, the respondent management also has

examined Santhosh Chatter Jee who is working as the

plant site incharge in Cargo Inspectors and Superintendence

Co-operative Private Limited as RW.2 and he has stated

in his evidence that the joining letter of petitioner

A. Sasikumar was exhibited as Ex.R8 and his resignation

letter was exhibited as Ex.R9 and his ESI returns of

contribution for Octorber 2012 to September 2013

was exhibited as Ex.R10 and his PF returns from 2012

to 2014 was exhibited as E.R11 and he was an

employee of the organisation for the period mentioned

in Ex.R8 and Ex.R9

i.e., from 27-05-2012 to

31-07-2014. Further, it is the evidence of RW.3 that

they are conducting factory in the name of Wans

Enviro Tech (P) Limited and they are functioning as a

contractor as General Optics Asia Ltd., and they are

1377

19 December 2017]

LA GAZETTE DE L’ETAT

doing contract business and the petitioner Sasikumar

was working at their factory and his Salary certificate

is exhibited as Ex.R12 and he has been contributed ESI

and PF and registers are Ex.R13 and attendance register

of the factory was exhibited as Ex.R14 wherein, the

said Sasikumar has signed. The evidence of RW.2

and RW.3 would go to show that petitioner had been

working from 27-05-2012 to 31-07-2014 at Cargo

Inspectors and Superintendence Co-operative Private

Limited and the petitioner has been contributed ESI

and PF.

12. It is the case of the petitioner that he was

working from 2005 at the respondent establishment

and he has been terminated on 02-03-2012 and the

petitioner was carry out the work as permanent workers

and assurance was also given to them by the respondent

management that they confirmed him as permanent

worker and that he completed more than 7 years of

continuous service and when the petitioner claimed for

confirmation or regularisation as permanent employee

in the month of March, 2012, the petitioner was denied

employment without any notice from 02-03-2012 as he

was terminated from service as a trainee on 02-03-2012

and that the termination of the petitioner is in violation

of provisions of the Industrial Disputes Act and Model

Standing Order and the petitioner was working from 2005

continuously at the respondent factory and that the

respondent has committed unfair labour practice

against the petitioner and the termination of petitioner

is in violation of section 25F of the ID Act.

13. On the other hand, it is the contended by the

respondent management that appointment of petitioner

was specifically for a period and the petitioner has

joined the employment after knowing the facts that

terms and conditions of the respondent organisation as

a temporary workers particularly for a specific period

and that after completion of the period, the petitioner

has to leave from service and as the petitioner was

only a temporary worker engaged for a specific period

and his tenure is completed, he has no right whatsoever

for the appointment as a permanent worker and though

the petitioner was contributed for ESI and EPF and

contribution has been deducted from the petitioner

alone is not given any right of permanent employment.

14. On this aspect, the evidence and records are

perused. The evidence of PW.1 the petitioner runs as

follows:

“ 











General Optics Ltd. 



 Carbo Inspectors and Superintendent

(SISCO) ”

From the above evidence it is clear that it is

denied by the petitioner workman that he has served

in other establishment after his termination from

respondent establishment. But, it is established by

the respondent management that he has served at

two other establishments after he was not given

employment by the respondent establishment. RW.2

has stated in his evidence that petitioner has

appointed in their institution on 27-05-2012 and

subsequently, he resigned his job on 31-07-2014

and it is the evidence of RW.3 that the petitioner was

joined in their institution and he had been in service.

The evidence of RW.2 and RW.3 would reveal the

fact that petitioner had been in service at some other

establishments after refusal of employment by the

respondent management.

15. Further, the petitioner has joined in the

employment of the respondent factory knowing the

facts and terms and conditions of the respondent

organisation as a temporary worker and the

temporary worker has been approved by the Inspector

of Factories and he has been appointed as temporary

workman giving break in his service. Ex.R2 - Letter of

Offer runs as follows :

“........Your

temporary

employment

will

commence from 28-06-2007 and your employment

will automatically cease as on the close of work on

27-02-2007 (both days inclusive) or a completion

of the above order whichever is earlier.

Your employment in the Factory will be

terminated on the expiry of the period given above

or on completion of the items of work for which

you are specifically employed whichever is earlier.

You will have no right to continue in employment

after the above period....”

From the above content of the offer letter given by

the respondent management to the petitioner workman,

it is clear that the respondent management can

terminate the petitioner on the expiry of period given

1378

LA GAZETTE DE L’ETAT

[19 December 2017

to him or on completion of the items of work for

which he has specifically employed and that he has no

right whatsoever to continue in employment and that

therefore, the terms and conditions of the appointment

order and the above evidence would go to show that

petitioner has not come before this Court with clear

hands to establish his case.

16. The main contention of the respondent that the

petitioner was appointed only as contractual labourer

and his service was not continuous one and appointment

of temporary workers for a specific period and for a

specific purpose and this petitioner was also engaged

by the respondent industry for the specific period and

for the specific purpose with genuine contract and the

petitioner himself knew the terms and conditions of

the appointment at the time of engagement that his

employment is purely temporary in nature and

therefore, the petitioner has no right to claim

regularisation.

17. In support of his contention the learned

Counsel appearing for the respondent relied upon the

Judgment reported in CDJ 2011 SC 622 - Union of

India and Anr Vs. Arulmozhi Iniarasu wherein, it was

held that,

“14. In the instant case, indubitably, the respondents

were engaged as part-time contigent casual

labourers in the Office of the Commissioner of

Central Excise for doing all types of work as may

assigned

them

the

Office.

..........................In view of the stated factual

scenario, in our opinion. The engagement of the

respondents

casual

labourers

even

for

considerable long duration did not confer any legal

right on them for seeking a

mandamus for

relaxation of age-limit.

20. It is plan from the terms of the letter of

appointment that the respondents were told in

unambiguous terms that their appointments were

temporary and would not confer any right to claim

any permanent post in the department. It is not the

case of the respondents that at any point of time,

during their engagements with the appellants,

a promise was held out to them by the appellants that

they would be absorbed as regular employees of the

department”.

The learned Counsel appearing for the respondent

also relied upon the Judgment reported in CDJ 2007

SC 139 - Punjab State Electricity Board Vs. Sudesh

Kumar Puri, wherein, it was held that,

“The material on record clearly established that

the management of the respondent was for specific

period and conditional. It appears that on the

appointment of regular Meter Readers, the engagement

has been dispensed with. The contracts clearly

governed the terms of engagement.

Above being the position, the orders passed by

the Labour Court and the High Court are clearly

untenable and are quashed. In two cases the

concerned respondents have been engaged again on

contractual basis. It shall not be construed that we

have expressed any opinion on such subsequent

contractual engagement.”

The learned Counsel appearing for the respondent

also relied upon the Judgment reported in CDJ 2006

SC 958 National Small Industries Corporation Limited

Vs. Lakshminarayanan, wherein, it was held that,

“Even if, it is accepted that the respondent was a

workman within the meaning of the 1947 Act, on

account of his contractual tenure, his case would

come within the exception of clause (bb) of section

2 (oo) thereof. In such a case also, the provisions

of section 25F of the said Act would have no

application to the respondent’s case”.

The learned Counsel appearing for the respondent

also relied upon the Judgment reported in CDJ 2006

SC 611 - Municipal Council, Samrala Vs. Sukhwinder

Kaur, wherein, it was held that,

“The respondent, within a span of about 18 months,

was appointed thrice and disengaged thrice. As noticed

hereinbefore, she was appointed on a contractual

basis. The appointments were temporary ones. She

was aware that her services could be terminated

without notice. She accepted the terms and

conditions of the said offers of appointments

without any demur.

The question as to whether Chapter VA of the Act

will apply or not would dependent on the issue as

to whether an order of retrenchment comes within

the purview of section 2 (oo) of the Act or not. If,

the termination of service in view of the exception

contained in clause (bb) of section 2(oo) of the Act

is not a ‘retrenchment’, the question of applicability

of Chapter VA thereof would not arise.”

From the above Judgments and findings of the

Hon’ble Supreme Court and the Hon’ble High Court it

is clear that whenever the person was appointed for a

specific purpose and for a specific period under the

1379

19 December 2017]

LA GAZETTE DE L’ETAT

contract and the appointment was temporary in nature

and the workman aware that his service would be

terminated without notice and as he accepted the terms

and conditions of the said offers of the appointment,

he cannot claim permanent employment.

18. From the above observations of the Hon’ble

Supreme Court and the Hon’ble High Court it is also

very clear that whenever, the person is appointed as

temporary workman for a specific period and for the

specific purpose and whenever the workman has

accepted the terms and conditions of the offer of

appointment without any demur, he could be terminated

without notice as he accepted the terms and conditions

of the said offer of appointment and as such the above

citations relied by the respondent management is

sorely applicable to this case and that therefore, it is

held that the termination of service of the petitioner

by the respondent management is sustainable and

hence, it cannot be held that the termination is illegal

and therefore, this Court finds that the petitioner is not

entitle for any relief of reinstatement and back wages

as claimed by him and as such the claim petition is

liable to be dismissed.

19. In the result, the petition is dismissed. No cost.

Dictated to the stenographer, transcribed by her,

corrected and pronounced by me in the open Court on

this the 13th day of September, 2017.

G. THANENDRAN,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.

————

List of petitioner’s witness :

PW.1 —19-12-2014—

Sasikumar

List of petitioner’s exhibits :

Ex.Pl —

Copy of the Identity Card of

the petitioner.

Ex.P2—28-03-2006 Copy of the job induction

given by the respondent to

the petitioner.

Ex.P3—

2007

Copy of the job induction

given by the respondent to

the petitioner.

Ex.P4—06-11-2008 Copy of the job induction

given by the respondent to

the petitioner.

Ex.P5—23-12-2009 Copy of the job induction

given by the respondent to

the petitioner.

Ex.P6— August,

Copy of the wage slip given

2010

by the respondent to the

petitioner.

Ex.P7—28-03-2011 Copy of the job induction

given by the respondent to

the petitioner.

Ex.P8—September,

Copy of the wage slip given

2010

by the respondent to the

petitioner.

Ex.P9—12-12-2011 Copy of the job induction

given by the respondent to

the petitioner.

Ex.P10—January,

Copy of the wage slip given

2010

by the respondent to the

petitioner.

Ex.P11—09-05-2012 Copy of the letter given by

respondent to the petitioner.

Ex.P12— 06-09-2012 Copy of the petition filed by

the petitioner before the

Conciliation Officer.

Ex.P13—26-06-2012 Copy of the acknowledgment.

Ex.P14 —

Copy of the Bank Account

book.

List of respondent’s witnesses :

RW.1 — 28-04-2015G. Kanessane

RW.2 — 04-04-2017Santhosh Chatter jee

RW.3 — 11-05-2017 Selva Kumar

List of respondent’s exhibits :

Ex.R1—

Letter of authorisation of

Mr. G. Kanessane.

Ex.R2—28-06-2007 Copies of various letters of

12-11-2008 appointment to petitioner

24-12-2009 given by respondent (5 Nos.)

29-03-2011

16-12-2011

Ex.R3—

Particulars of ESI form-3

and ESI contribution made

the

respondent

petitioner for intermittent

periods from July, 2007 to

December, 2011 (11 sheets).

1380

LA GAZETTE DE L’ETAT

[19 December 2017

Ex.R4 —

P a rtic ula rs

o f

E P F

contribution

and

returns

made by the respondent to

the account of petitioner on

31-03-2008,

31-03-2009,

August, 2010, 31-03-2011,

18-04-2012, 08-04-2011.

Ex.R5 — 09-05-2012

Copy of the letter given by

respondent to petitioner

informing that he is not

selected in interview.

Ex.R6—14-02-2013 Copy of the letter given by

intimating it that petitioner

withdrew his representation,

dated 30-04-2012 and the

reference was closed to

respondent.

Ex.R7—25-10-2010 Notice of period of work

(Form 11) submitted by the

respondent to the Inspector

of Factory.

Ex.R8—27-05-2012 Copy of the joining letter of

A. Sasikumar.

Ex.R9—31-07-2014 Copy of the resignation

letter of A. Sasikumar.

Ex.R10— October, ESI returns of contribution.

2012 to

September,

2012

Ex.R11—

2012 to

PF returns.

2014

Ex.Rl2— June, 2015

Copy of the Wage register.

to February,

2016

Ex.R13—

Electronic challan cum return

(ECR).

Ex.Rl4 — June, 2015

Copy of the Muster Roll.

to March,

2016

G. THANENDRAN,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 180/AIL/Lab./T/2017,

Puducherry, dated 27th November 2017)

NOTIFICATION

Whereas, the Government is of the opinion that an

industrial dispute has arisen between the management

of M/s. Mahatma Gandhi Medical College and

Research Institute, Pillaiyarkuppam, Puducherry, M/s. IG

Enterprises, Nellithope, Puducherry and Mahatma

Gandhi Maruthuvakalloori mattrum Aaraitchi Niruvana

Oppantha Thozhilarlargal Vazhurimai Sangam, Puducherry

over charter of demands in respect of the matter

mentioned in the Annexure to this order;

And whereas, in the opinion of the Government, it is

necessary to refer the said dispute for adjudication;

Now, therefore, by virtue of the authority delegated

vide G.O. Ms. No. 20/91/Lab./L, dated 23-5-1991 of

the Labour Department, Puducherry to exercise the

powers conferred by clause (d) of sub-section (1) of

section 10 of the Industrial Disputes Act, 1947

(Central Act XIV of 1947), it is hereby directed by the

Secretary to Government (Labour) that the said dispute

be referred to the Industrial Tribunal, Puducherry for

adjudication. The Industrial Tribunal, Puducherry shall

submit the Award within 3 months from the date of

issue of reference as stipulated under sub-section 2-A

of section 10 of the Industrial Disputes Act, 1947 and

in accordance with rule 10-B of the Industrial Disputes

(Central) Rules, 1957. The party raising the dispute

shall file a statement of claim complete with relevant

documents, list of reliance and witnesses to the

Industrial Tribunal, Puducherry within 15 days of the

receipt of the order of reference and also forward a

copy of such statement to each one of the opposite

parties involved in the dispute.

ANNEXURE

(a) Whether the dispute raised by the petitioner

Mahatma Gandhi Maruthuvakaloori mattrum Aaraitchi

Niruvana Oppantha Thozhilalargal Vazhurimai

Sangam, No. 87, 4th Cross Street, Moogambigai

Nagar, Reddiyarpalayam, Puducherry against the

management of M/s. Mahatma Gandhi Medical

College and Research Institute, Puducherry and

M/s. IG Enterprises, Puducherry over charter of

demands and reinstatemant of suspended/terminated

employees, is justifiable or not? If justified, what is

the relief entitled to?

(b) To compute the relief if any, awarded in

terms of money if, it can be so computed ?

(By order)

S. MOUTTOULINGAM,

Under Secretary to Government (Labour).