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44

Sentence arbitral du travail

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Award of the Labour Court

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Notifications du Gouvernement ..

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Etablissements dangereux

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Dangerous Establishments

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Annonces

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Announcements

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9 {

No.

2

Poudouchéry

Mardi

9

Janvier

2018 (19 Pausa 1939)

No.

Puducherry

Tuesday

9th

January

2018

44

LA GAZETTE DE L’ETAT

[9 January 2018

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G. O. Rt. No. 184/Lab./AIL/T/2017,

Puducherry, dated 29th November 2017)

NOTIFICATION

Whereas, an Award in I.D.(T) No. 28/2012, dated

24-10-2017 of the Industrial Tribunal, Puducherry in

respect of the industrial dispute between the

management of M/s. Larsen and Toubro Limited, ECC

Division, Puducherry and as its workmen Larsen and

Toubro Pattali Thozhirsangam over non-payment of one

time lump sum amount for the year 2010-2011 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 24th day of October, 2017

I.D. (T) No. 28/2012

The President,

Larsen and Toubro Pattali Thozhirsangam,

No. 109, Sixth Cross Street,

Rathna Nagar, Gundupalayam,

Puducherry.

. . Petitioner

Versus

The Managing Director,

M/s. Larsen and Toubro Limited,

ECC Division,

Mylam Road, Sedarapet,

Puducherry-605 111.

. . Respondent.

This industrial dispute coming on 27-09-2017

before me for final hearing in the presence of

Tvl. P.R. Thiruneelakandan and A. Mithun Chakkaravarthy

and R. Harinath, Counsel for the petitioner, Tvl. M. Vaikunth,

V. Narayanan, R. Vikneshraj and R. Elamparuthi, Counsel

for the respondent and when the case was posted for

respondent side argument, the respondent remained

absent and no representation for the respondent, upon

hearing the petitioner, 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. 177/AIL/Lab./J/2012,

dated 09-10-2012 for adjudicating the following:-

i. Whether the dispute raised by Larsen and Toubro

Pattali Thozhirsangam against the management of

M/s. Larsen and Toubro Limited, ECC Division,

Puducherry over non-payment of one time lump sum

amount for the year 2010-2011 with an increase from

the payment made in the previous year 2009-2010 for

(i) Grade I to III - increase by 70% to a tune of

`13,580 and (ii) Grade-IV - increase by 75% to a tune

of ` 15,075 are justified?

(ii) If justified, to what relief the union workmen

are entitled to ?

(iii) To compute the relief, if any, awared in terms

of money if, it can be so computed?

2. The averments in the claim statement of the

petitioner, in brief, are as follows:

The petitioner trade union is a registered trade union

registered before the Registrar of Trade union as

Reg. No.1249/RTU/2001, under the Trade Union

Act, 1926. The details of petitioner union members

given in Annexure-I are permanent employees of the

respondent

factory situated at Mylam, Sedarapet,

Puducherry - 605 111. The respondent had been paying

one time lump sum amount during Diwali festival and

it has been followed as a customary practice and it

became the part of service conditions of the

employees of the respondent factory. Every year the

one time lump sum amount has been paid to the

employees in addition to the bonus without any

reference to the profit or loss to the respondent

company. With regard to the quantum of one time lump

sum amount, every year the trade union demanded

increase. The respondent every year announced a

reasonable hike in the one time lump sum amount after

negotiation, for instance in the year 2005-2006 the

respondent announced one time lump sum amount for

Grade 2 employees and Grade 3 employees as ` 11,400

and for Grade 4 employees-12,000. For the year 2006-2007

after the demand of the petitioner union the respondent

negotiated with the petitioner union and then

45

9 January 2018]

LA GAZETTE DE L’ETAT

announced an increase a sum of ` 1,500 from the

last year. Till 2009 the respondent considered the demand

of the petitioner trade union and gave increase

reasonable amount in the one time lump sum amount.

In the year 2008 the respondent announced one time

lump sum amount for Grade 2 employees and Grade 3

employees as ` 14,900 with the increase of ` 2,000

and for Grade 4 employees - 15,600 with the

increase of ` 2,100. In the year 2009 the respondent

announced one time lump sum amount for Grade 2

employees and Grade 3 employees as ` 19,400 with

the increase of ` 2,500 and for Grade 4 employees-20,100

with the increase of ` 2,500. It is a usual practice that

the respondent along with the charter of demand of

wage revision and other allowances negotiate the

quantum of increase of one time lump sum amount. In

the year 2011 due to some difference of opinion

between the respondent and the trade union the signing

of wage settlement was delayed. In order to pressurise

the trade union to accept the offer of wage increase

announced by the respondent management the

respondent management did not come forward to

negotiate the demand of one time lump sum amount

increase for the year 2010-2011. The respondent

despite the objection of petitioner trade union

unilaterally without any increase announced the one

time lump sum amount paid for the year 2009-2010

as one time lump sum amount for the year 2010-2011

and also credited the same to the petitioner union

members bank account. The petitioner trade union sent

several letters, dated 11-9-2011, 10-10-2011, 22-10-2011

and 27-10-2011 requesting the respondent to reasonably

increase one time lump sum amount for the year

2010-2011 at least on par with the increase given to

the employees in the managerial staff category. The

respondent did not pay any heed to the request of the

petitioner. Hence, the petitioner union raised the dispute

before the Labour Officer Conciliation on 8-11-2011

and the same was ended in failure. The respondent

without negotiation unilaterally announced one time

lump sum amount without any hike, which is an unfair

labour practice followed by the respondent to

pressurise the petitioner trade union to sign in the

wage settlement without any demand or oppose. For

several years the respondent paid one time lump sum

amount with reasonable hike arrived in the negotiation

talk with the petitioner union. The petitioner union

members are entitled to a reasonable increase in the

one time lump sum amount for the year 2010-2011.

The respondent denied such increase to the petitioner

union members and increased the one time lump sum

amount to the company staff alone, which is illegal and

unfair labour practice. The respondent profited 25%

than the earlier financial year. The employees

employed as managerial staff in the respondent

factory were paid One Lakh to Two Lakhs as one time

lump sum amount for the year 2010-2011. On

considering the amount paid to the managerial staff the

petitioner union members who are all directly engaged

in the manufacturing activities are entitled for 70% to

75% increase of one time lump sum amount paid in the

previous year 2009-2010 for the year 2010-2011.

Even for the year 2011 to 2012 the respondent had

negotiation with petitioner union and gave reasonable

hike, that if the respondent would have given hike in

the one time lump sum amount for the year 2010-2011

it would have added for the year 2011-2012, since the

respondent denied hike for the year 2011-2012 also,

hence the petitioner union members are entitled hike

with cumulative effect for from the period 2010-2011.

Petitioner union prayed this Court to direct the

respondent to pay one time lump sum amount for the

year 2010-2011 with an increase from the payment

made in the previous year 2009-2010 for (i) Grade 1

to 3 increase by 70% to a tune of

` 13,580 and

(ii) Grade IV increase by 75% to a tune of `15,075

with cumulative effect from the period 2010-2011

interest.

3. The brief averments in the counter filed

by the respondent are as follows:

The respondent denied the averments made by the

petitioner in the claim petition and stated that the

averments in the claim petition are farce and

concocted for the purpose of the petition and further

stated that it is admitted by the petitioner union that

it is only customary practice of giving one time lump

sum amount and not under any provisions of law in

force. Hence, giving a one time lump sum amount

payment is only based on discretion of the company

and not under any law. Hence, the petitioner cannot ask

for prayer which totally question of policy of the

company and in other way putting the company under

threat and trying to get the means by illegal method

which is not permissible under law. It is a settled

proposition of law equality can be pleaded only among

the equal not among the in equals. The prayer of the

claim petition is totally unknown to law.

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

petitioner PW.1 & PW.2 was examined and Ex.P1 to

Ex.P45 were marked and on the side of the respondent

RW.1 was examined and Ex.R1 was marked .

The argument of the petitioner was heard. Though several

opportunities were given, the respondent has not turned

up before this Court to putfoth their argument. Since,

the case relates to the year 2012 the argument of the

respondent was closed and the case was posted for

orders.

46

LA GAZETTE DE L’ETAT

[9 January 2018

5. The point for consideration is:

Whether the dispute raised by the petitioner

Thozhirsangam against the respondent management

over non-payment of one time lump sum amount for

the year 2010-2011 with an increase from the payment

made in the previous year 2009-2010 for (i) Grade I

to III - increase by 70% to a tune of `13,580 and

(ii) Grade-IV increase by 75% to a tune of ` 15,075

are justified or not and if justified, what is the relief

entitled to the union workmen?

6. The pleadings of the parties, the evidence let in

by either sides and the exhibits marked on both sides

are carefully considered. From the pleadings of both

the parties it is clear that following facts are admitted

by either sides that petitioner union members are

working at the respondent establishment and they have

been paid one time lump sum amount for the period

from 2005-2006, 2006-2007, 2007-2008, 2008-2009

and 2009-2010 with an increase and they have paid One

Time lump sum amount for the year 2010-2011

without an increase. It is the contention of the

petitioner union that the respondent management had

been paying one time lump sum amount during Diwali

festival and it has been followed as a customary

practice and it became the part of the service

conditions of the employees of the respondent factory

and every year the one time lump sum amount has

been paid to the employees in addition to the bonus

without any reference to the profit or loss to the

respondent company and the quantum of one time lump

sum amount for every year was increased by the

respondent management after negotiation and the

respondent management has paid one time lump sum

amount from 2005-2006, 2006-2007, 2007-2008,

2008-2009 and 2009-2010 with some reasonable

increase and in the year 2011 due to some difference

of opinion between the respondent management and the

trade union with regard to the signing of wage

settlement the management did not come forward to

negotiate the demand of one time lump sum amount

with an increase for the year 2010-2011 and hence, the

union has sent several letters, dated 11-9-2011, 10-10-2011,

22-10-2011 and 27-10-2011 requesting the respondent

to reasonably increase one time lump sum amount for

the year 2010-2011. But, the respondent did not heed

to the request of the petitioner and hence, the

petitioner union raised the dispute before the Labour

Officer-Conciliation on 08.11.2011 and on failure the

Government has referred this matter to this Court.

7. In order to prove the contention, the petitioner

has exhibited Ex.P1 to Ex.P45. Ex.P1 is the Copy of

the circular issued by the respondent for lump sum

payment for permanent workmen. Ex.P2 is the Copy

of the minutes of meeting regarding OTLS for the year

2006-2007. Ex.P3 is the Copy of the minutes of

meeting regarding the payment of OTLS for the year

2007-2008. Ex.P4 is the Copy of the receipt of

payment of OTLS for the year 2008-2009. Ex.P5 is

the Copy of the circular issued by the respondent for

OTLS for the year 2009-2010. Ex.P6 is the Copy of

the petitioner's letter to respondent. Ex.P7 is the Copy

of the details of the payment OTLS since 2004.

Ex.P8 is the Copy of the petitioner's letter to

respondent regarding OTLS non-payment. Ex.P9 is the

Copy of the petitioner's letter to the respondent

regarding non payment of OTLS. Ex.P10 is the Copy

of receipt for payment of OTLS to the workers

namely S. Kumar for the year 2011-2012. Ex.P11 is

the Copy of the respondent's letter to the petitioners

regarding payment of OTLS in the Bank Account of the

petitioners. Ex.P12 is the Copy of the petitioner's

letter to the respondent regarding objection as to non

payment of increased OTLS. Ex.P13 is the Copy of the

petitioner's

letter

to

the

Conciliation

Officer

regarding OTLS. Ex.P14 is the Copy of the

respondent's letter to the Conciliation Officer. Ex.P15

is the Copy of the Conciliation Notice. Ex.P16 is the

Copy of the respondent's letter to the Conciliation

Officer. Ex.P17 is the Copy of the petitioner's letter

to the Conciliation Officer. Ex.P18 is the Copy of the

Conciliation report. Ex.P19 is the Copy of the

Government's Order. Ex.P20 is the Copy of the payment

of OTLS for the year 2011-2012 (minutes of meeting).

Ex.P21 is the Copy of the minutes of meeting

regarding payment of OTLS payment OTLS further year

2012-2013. Ex.P22 is the Copy of the circular issued

by the Head Quarters for lump sum payment to

permanent Non-Supervisory Employees. Ex.P23 is the

Copy of the Circular issued by the respondent for

lump sum payment to permanent workers. Ex.P24 is

the Copy of the petitioner's letter to the respondent.

Ex.P25 is the Copy of the petitioner's letter to the

respondent. Ex.P26 is the Copy of the petitioner's

letter to the Conciliation Officer. Ex.P27 is the Copy

of the petitioner's letter to the Conciliation Officer.

Ex.P28 is the Copy of the petitioner's letter to the

respondent. Ex.P29 is the Copy of the petitioner's

letter to the respondent. Ex.P30 is the Copy of the

petitioner's letter to the respondent. Ex.P31 is the

Copy of the petitioner's letter to the Labour Secretary.

Ex.P32 is the Copy of the petitioner's letter to the

Conciliation Officer. Ex.P33 is the Copy of the

petitioner’s letter to the respondent. Ex.P34 is the

47

9 January 2018]

LA GAZETTE DE L’ETAT

Copy of the petitioner's letter to the respondent.

Ex.P35 is the Copy of the petitioner's letter to the

respondent for strike notice. Ex.P36 is the Copy of

the petitioner's letter to the respondent. Ex.P37 is the

Copy of the petitioner's letter to the respondent for

hunger strike. Ex.P38 is the Copy of the petitioner's

union member namely viz Krishnamoorthy Suspension

order. Ex.P39 is the Copy of the petitioner's union

member namely viz Rajendiran Suspension order.

Ex.P40 is the Copy of the petitioner's letter to the

respondent. Ex.P41 is the Copy of the petitioner's

union member namely viz Krishnamoorthy letter to the

respondent. Ex.P42 is the Copy of the petitioner's

letter to the respondent. Ex.P43 is the Copy of the

respondent's revocation order. Ex.P44 is the Copy of

the petitioner's letter to the respondent. Ex.P45 is the

Copy of the petitioner’s letter to the respondent.

8. The above documents would go to show that one

time lump sum amount was granted by the respondent

management for the year 2005-2006 as `11,400 to

Grade II and III workmen and `12,000 to Grade IV

workmen and that one time lump sum amount was

given apart from the bonus and that the office bearers

of the petitioner union and the management have

signed the settlement in a meeting held on 31-10-2007

pertaining to Bonus and one time lump sum amount

for the year 2006-2007 and that meeting was held

on 14-10-2008 pertaining to bonus and one time lump

sum amount for the year 2007-2008 wherein one time

lump sum amount has been increased ` 2,000 for

Grade-II and III and ` 2,100 for Grade IV and that one

time lump sum amount was given to the members of

the petitioner union for the period 2008-2009 at

`16,900 and that for the period 2009-2010 one time

lump sum amount were paid to the Grade II and III

employees at the rate of `19,400 and ` 20,100 to

Grade IV employees and the amount has also been

credited to the bank account of the members of the

workers union and that on 14-9-2011 the petitioner

union have demanded one time lump sum amount

along with the bonus.

9. The documents would further reveal the fact that

the respondent management has paid one time lump

sum amount with an increase for every year from 2005-2006,

2006-2007, 2007-2008, 2008-2009 and 2009-2010 to

the workers and the respondent management had paid

one time lump sum amount without an increase for the

year 2010-2011 and the petitioner union has sent

several letters to the management to pay the one time

lump sum amount with an increase for which the

respondent management has stated in their reply under

Ex.P11 that they have not increased the one time

lump sum amount and has paid one time lump sum

amount as granted to them in the year 2009-2010

without any increase for which the union has once

again demanded the same and they have filed the

petition and raised the industrial dispute before the

Conciliation Officer and conciliation notice was

issued and since the conciliation was failed the

Government has referred this matter to this Court and

meanwhile the respondent management has announced

the one time lump sum amount with some increase in

the year 2011-2012.

10.

On the other hand, it is contended by the

respondent management that giving of one time lump

sum amount is only based on the discretion of the

company and not under any law and it is clear that the

petitioners cannot ask the one time lump sum amount

as a matter of right and it is only discretion of the

company and petitioners are not entitle for any

increase in the one time lump sum amount as a matter

of right and it is not a change of service condition and

asking one time lump sum amount on par with the

managerial staff is not sustainable and it is settled

provisions of law equality can be pleaded only among

the equal not among the in equals and that petitioners

are not entitle for any increase in the one time lump

sum amount as a matter of right.

11. On this aspect, it is to be decided whether the

petitioners are having the right to claim the right as a

customary right or not. Admittedly in this case one

time lump sum amount with increase has not been

given by the respondent management for the period of

2010-2011 since they have paid one time lump sum

amount with increase in the earlier financial years for

the period 2005-2006, 2006-2007, 2007-2008,

2008-2009 and 2009-2010. Ex.P6 would reveal the

same and they have not given one time lump sum

amount with increase for the period 2010-2011 to the

petitioners.

12. The learned Counsel appearing for the

petitioner submits that no notice was issued to the

workers union or its members regarding that they are

going to stop the increase in payment of

one time

lump sum amount for the year 2010-2011 under

section 9A of the Act as required under IV Schedule

of the Act while changing the service condition of the

workmen and decision of stopping of increase in one

time lump sum amount for the period 2010-2011 was

taken by the management without negotiating the same

with the union members is unilateral and that

therefore, the petitioners are entitled for the same as

a customary right since they have paid the one time

lump sum amount with increase for the past several

years and that therefore, the petitioners are entitled to

get one time lump sum amount with an increase of

` 3,000 for the period 2010-2011.

48

LA GAZETTE DE L’ETAT

[9 January 2018

13. The main contention of the petitioner union is

that one time lump sum amount has to be increased

and paid as a customary right to the petitioners and the

stoppage of increase in payment of one time lump sum

amount in addition to the bonus is a change of service

condition and it is also a customary right of the

workers to get one time lump sum amount since they

have received for the past 6 years from 2005-2006 till

the period 2009-2010. On the other hand, it is

contended by the respondent management that one

time lump sum amount has not been given under any

provision of law in force and it is paid only on the

discretion of the company and petitioners cannot ask

the one time lump sum amount as a matter of right

without any legal basis.

14. On this aspect, records and documents are

carefully perused. The proviso of section 9A of the

Industrial Disputes Act runs as follows :

Notice of change. - No, employer, who proposes to

effect any change in the conditions of service

applicable to any workman in respect of any matter

specified in the Fourth Schedule, shall effect such

change,-

(a) without giving to the workmen likely to be

affected by such change a notice in the prescribed

manner of the nature of the change proposed to be

effect; or

(b) within twenty-one days of giving such notice :

Provided that no notice shall be required for

effecting any such change-

(a) where the change is effected in pursuance of any

2[settlement or award]; or

(b) where the workmen likely to be affected by the

change are persons to whom the Fundamental and

Supplementary Rules, Civil Services (Classification,

Control and Appeal) Rules, Civil Services (Temporary

Service) Rules, Revised Leave Rules, Civil Service

Regulations,

Civilians

in

Defence

Services

(Classification, Control and Appeal) Rules or the

Indian Railway Establishment Code or any other rules

or regulations that may be notified in this behalf by

the appropriate Government in the Official Gazette,

apply.

From the above provision, it is clear that if any

employer propose to any change in service of condition

applicable to any workmen in respect of any matter

specified in fourth schedule would not give such

change without giving any notice to the workmen in the

prescribed manner of the nature of change proposed

to be affected and whenever an employer unilaterally

proposes to effect any change in respect of any of the

matters specified in the Fourth Schedule he ought to

give notice to the workmen as mandated by this

section. The provision safeguards the interest of the

employees: in that it prohibits an employer from taking

any action in the specified matters without giving due

notice under section 9 of the Act.

15.

The main contention of the respondent

management is that to stop the increase in payment of

one time lump sum Amount for the period 2010-2011

no meeting is necessary with the union members and

it is the discretion of the respondent management to

increase the same since the said amount is not wages

and there is no change of service condition and it is

also a further contention of the respondent that though

they have paid the one time lump sum amount for the

period from 2005-2006 to 2009-2010, the petitioner

cannot claim the said one time lump sum amount as a

customary right. On this aspect, it is to be decided

whether the petitioner's claim of increase in one time

lump sum amount as a customary right is sustainable

or not and it is also to be decided whether the stoppage

of one time lump sum amount for the period 2010-2011

required any notice under section 9A of the Industrial

Disputes Act and.

16. The Fourth Schedule of the Act requires that a

notice is to be given to the employee for change of

service condition wages and withdrawal of any

compensatory allowance or any allowances or any

contribution payable by the employer to any provident

fund or pension fund or for the benefit of the workmen

under any law for the time being in force and

particularly withdrawal of any customary concession

or privilege or change in usage.

17.

It is to be decided whether the petitioner

union has established that they have got a customary

right to get such one time lump sum amount from the

respondent management. They have received the one

time lump sum amount from the respondent

management for the past 6 years from the year 2005-2006

till 2009-2010 apart from the bonus. Admittedly, the

respondent management has paid the one time lump

sum amount for the period 2005-2006 to 2009-2010

with gradual increase at the rate of ` 1,000 to

` 2,500-apart from bonus. On this aspect, the

Supreme Court of India in Workmen of Kettlewell

Bullen & Co. Limited, Vs. Kettlewell Bullen & Co.

Limited, has held that,

"On the basis of payment during 1965 to 1973 at the

uniform rate of 10.5% of the salary or wages, it could

be said, ignoring the first few years that the payment

was made at a uniform rate for an unbroken period of

49

9 January 2018]

LA GAZETTE DE L’ETAT

nine years from 1965 to 1973 which was a sufficiently

long period and the Tribunal could have reasonably

drawn as inference that the said payment was

customary or traditional bonus on the occasion of

Pooja Festival".

From the above observation, it is clear that

whenever an amount is being paid by the employer to

the employees for some years it can be treated as

customary right. In this case, admittedly, the petitioner

has been paid the one time lump sum amount from the

period 2005-2006 till 2009-2010 with gradual

increase at the rate apart from bonus and hence, it is

held by this Court that the petitioners are having the

customary right of getting one time lump sum amount

from the respondent management apart from bonus

with increase.

18. In the light of the Judgment reported in AIR

1975 SC 1856 in Management of Indian Oil

Corporation Limited, Vs. Workmen, the Hon'ble High

Court has held that concession of paying allowance to

workmen may become an implied condition of service

so as to attract the mandatory provisions of section 9-A

of the Act. Once the payment of allowance becomes

a part of the conditions of service of workmen,

it cannot be withdrawn at the will of the employer, even

if the payment is made voluntarily and as a temporary

measure out of sympathy for workers. It is needless

to state that unilateral withdrawal of voluntary payment

as a concession in the condition of service would

materially and adversely affect the workmen for all

time to come. It amounts to a change in the conditions

of service and the management is bound to follow the

procedure in section 9-A of the Act.

19. The petitioner has contended in its application

since the employer has paid the lump sum amount from

the year 2005-2006 to 2009-2010 for about six years

with gradual increase and to stop such customary right,

the employer has to give notice under section 9A of

the Act but they have not given any such notice to stop

the increase in payment of one time lump sum amount

and has violated the provision of act and therefore they

cannot stop the one time lump sum payment for the

period 2010-2011 with increase and the members of

the union sought for the Order of granting such one

time lump sum amount with increase in the application

20.

In the light of the Judgment reported in 2003-

III-LLJ(Pg.No.81) of High Court of Rajasthan

pronounced in Director, State Farms Corporation of

India Limited Vs. Judge, Industrial Tribunal and

Labour Court, Bikaner and others, wherein, it has been

held that,

“Moreover we are informed by the learned Counsel

for the parties that amenities extended to workmen,

which is now used as shield to defend the action of

management in unilateral reduction of project

allowance from 10% to 8%, had already come into

existence long before the unilateral reduction of the

allowance and for long workmen were receiving

project allowance at 10% in addition to amenities

made available to them. Thus no nexus between the

reductions in project allowance as quid pro quo for

extending additional benefits

in lieu thereof is

discernible. The reduction in project allowance

undoubtedly results in reduction of wages as defined

in section 2(rr) of the Industrial Dispute Act, 1947

and falls within 'conditions of service for change of

which notice is to be given' under items 1 and 3 of

Schedule IV appended to the Act which attracted

operation of section 9-A of the said Act, which has

been held to be mandatory requirement before any

such alteration can be effected.

For the foregoing reasons, we hold that, the view of

the learned single Judge that the change in the rate of

project allowance adversely affected the conditions of

service of the employees working in project and they

were required to be given notice under section 9-A of

the Act, which the appellant failed to do cannot be

faulted and must be sustained. We Order accordingly.

The appeal, therefore, fails and is hereby dismissed."

From the above observation of the Hon'ble

High Court, it is clear that if the employer propose to

change any condition of service applicable to any

workmen, section 9A of the Act would come into

operation, the momemt when the employer propose to

change any condition of service and to effect such a

change, a notice is to be given under section 9A of the

Act and if, such notice was not given, the withdrawal

of increase in the payment of one time lump sum

amount cannot be stopped and furthermore, the Hon'ble

High Court has observed in the case that even project

allowance is part of the condition of the workmen and

the notice is mandatory under section 9A of the Act

for effecting the change of reduction of project

allowance but in this case admittedly, the respondent

has not arrived at any settlement with the members of

the petitioner union and furthermore the petitioners

workmen have not given any consent for stoppage of

increase in payment of one time lump sum amount to

the workers.

21.

The

respondent

management

who

has

admittedly stopped the increase in the payment of one

time lump sum amount for the period of 2010-2011

to the employees and changed the condition of service

50

LA GAZETTE DE L’ETAT

[9 January 2018

of the workmen by withdrawing the increase in

payment of

one time lump sum amount to the

employees described in item-8 of the 4th Schedule of

the Act before effecting the change, the respondent

management must have complied with the section 9A

of the Act, and a notice has to be issued for the

stoppage of increase in payment of one time lump sum

amount to the employees under the customary right.

In such circumstances, the respondent management

ought to have given notice under section 9A of the Act for

stoppage of the said increase amount to the workers

but the respondent management has failed to give such

notice to the petitioner union and that therefore, it is

clear that the petitioner union members are entitled

for the one time lump sum amount with an increase of

` 3,000 for the period 2010-2011 as claimed by the

petitioner union since they have received one time

lump sum amount with an increase of ` 2,500 for the

year 2009-2010 in addition to the bonus and that

therefore the dispute raised by the petitioner Union

against the respondent management over non-payment

of one time lump sum amount for the year 2010-2011

with an increase from the payment made in the

previous year 2009-2010 for (i) Grade I to III -

increase by 70% to a tune of ` 13,580 and (ii) Grade-IV

- increase by 75% to a tune of ` 15,075 are justified

and hence the petition is liable to be allowed.

22. In the result, the petition is allowed and the

industrial dispute raised by the petitioner union against

the respondent management over non-payment of one

time lump sum amount for the year 2010-2011 with

an increase from the payment made in the previous

year 2009-2010 for (i) Grade I to III - increase by 70%

to a tune of ` 13,580 and (ii) Grade-IV - increase by

75% to a tune of ` 15,075 are justified and an Award

is passed by directing the respondent management

to pay ` 3,000 increase in one time lump sum amount

for the period 2010-2011 to the members of the

petitioner union who have been received the one time

lump sum amount till 2009-2010. No cost.

Dictated to the Stenographer, transcribed by her,

corrected and pronounced by me in the open Court on

this the 24th day of October, 2017.

G. THANENDRAN,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.

————

List of petitioner’s witnesses:

PW.1 — 19-08-2014

—

A.R. Sivakumar

PW.2

— 07-01-2016

—

K. Madheswaran

List of petitioner’s exhibits:

Ex.P1

—16-10-2006—Copy of the circular issued

by the respondent for lump

sum payment for permanent

workmen.

Ex.P2

—31-10-2007—Copy of the minutes of

meeting regarding OTLS

for the year 2006-2007.

Ex.P3 —14-10-2008—Copy of the minutes of

meeting

regarding

the

payment of OTLS for the

year 2007-2008.

Ex.P4 —

—

— Copy of the receipt of

payment of OTLS for the

year 2008-2009.

Ex.P5 —01-11-2010— Copy of the circular issued

by the respondent for OTLS

for the year 2009-2010.

Ex.P6 —14-09-2011— Copy of the petitioner's

letter to respondent.

Ex.P7 — —

— Copy of the details of the

payment OTLS since 2004.

Ex.P8 —10-10-2011—Copy of the petitioner's

letter to respondent regarding

OTLS non-payment.

Ex.P9

—22-10-2011—Copy of the petitioner's

letter to the respondent

regarding non payment of

OTLS.

Ex.P10 — —

— Copy

of

receipt

for

payment of OTLS to the

workers namely S. Kumar

for the year 2011-2012.

Ex.P11—24-10-2011—Copy of the respondent's

letter to the petitioners

regarding payment of OTLS

in the Bank Account of the

petitioners.

Ex.P12—27-10-2011—Copy of the petitioner's

letter to the respondent

regarding objection as to

non payment of increased

OTLS.

Ex.P13—08-11-2011—Copy of the petitioner's

letter to the Conciliation

Officer regarding OTLS.

51

9 January 2018]

LA GAZETTE DE L’ETAT

Ex.P14—21-11-2011— Copy of the respondent's

letter to the Conciliation

Officer.

Ex.P15—06-12-2011—Copy of the Conciliation

Notice.

Ex.P16—01-02-2011—Copy of the respondent's

letter to the Conciliation

Officer.

Ex.P17—11-04-2012—Copy of the petitioner's

letter to the Conciliation

Officer.

Ex.P18—06-09-2012—Copy of the Conciliation

report.

Ex.P19—09-10-2012—Copy of the Government's

Order.

Ex.P20—02-11-2012—Copy of the payment of OTLS

for the year 2011-2012

(minutes of meeting).

Ex.P21—24-10-2013—Copy of the minutes of

meeting regarding payment

of OTLS payment OTLS

further year 2012-2013.

Ex.P22—11-10-1999—Copy of the circular issued

by the Head Quarters for

lump

sum

payment

to

permanent Non-Supervisory

Employees.

Ex.P23—07-11-2001—Copy

of

the

Circular

issued by the respondent

for lump sum payment to

permanent workers.

Ex.P24—09-11-2001—Copy of the petitioner's

letter to the respondent.

Ex.P25—28-10-2002—Copy of the petitioner's

letter to the respondent.

Ex.P26—07-11-2002— Copy of the petitioner's

letter to the Conciliation

Officer.

Ex.P27—18-03-2003—Copy of the petitioner's

letter to the Conciliation

Officer.

Ex.P28—08-10-2003—Copy of the petitioner's

letter to the respondent.

Ex.P29—14-10-2003— Copy of the petitioner's

letter to the respondent.

Ex.P30—21-10-2003—Copy of the petitioner's

letter to the respondent.

Ex.P31—18-11-2003— Copy of the petitioner's

letter

to

the

Labour

Secretary.

Ex.P32—27-09-2004— Copy of the petitioner's

letter to the Conciliation

Officer.

Ex.P33—30-09-2004— Copy of the petitioner's

letter to the respondent.

Ex.P34—10-11-2004— Copy of the petitioner's

letter to the respondent.

Ex.P35—15-11-2004— Copy of the petitioner's

letter to the respondent for

strike Notice.

Ex.P36—22-11-2004— Copy of the petitioner's

letter to the respondent.

Ex.P37—22-11-2004— Copy of the petitioner's

letter to the respondent for

hunger strike.

Ex.P38—03-12-2004—Copy of the petitioner's

union member namely viz

Krishnamoorthy Suspension

order.

Ex.P39—03-12-2004—Copy of the petitioner's

union member namely viz

Rajendiran

Suspension

order.

Ex.P40—07-12-2004—Copy of the petitioner's

letter to the respondent.

Ex.P41—14-02-2005—Copy of the petitioner's

union member namely viz

Krishnamoorthy letter to

the respondent.

Ex.P42—14-02-2005—Copy of the petitioner's

letter to the respondent.

Ex.P43—19-02-2005—Copy of the respondent's

revocation order.

Ex.P44—20-08-2005—Copy of the petitioner's

letter to the respondent.

Ex.P45—28-09-2006—Copy of the petitioner's

letter to the respondent.

52

LA GAZETTE DE L’ETAT

[9 January 2018

List of respondent’s witnesses:

RW.1

— 13-10-2014 — A. Nepoliyan

List of respondent’s exhibits:

Ex.R1 — 28-10-2005 — Memorandum of

Understanding.

G. THANENDRAN,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.

————

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 185/Lab./AIL/T/2017,

Puducherry, dated 20th Decembe 2017)

NOTIFICATION

Whereas, an Award in I.D. (L) No. 03/2017, dated

24-10-2017 of the Labour Court, Puducherry in respect of

the industrial dispute between Muruganantham, Puducherry

and the management of M/s. Establissement Patel,

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, Labour Court.

Tuesday, the 24th day of October, 2017

I.D(L). No. 03/2017

Murugananthan,

S/o. Ramalingam,

No. 27, Subramaniayarkoil Street,

Kuyavarpalayam,

Puducherry.

. . Petitioner

Versus

The Managing Director,

M/s. Establissement Patel,

(Indian Oil Corporation),

21, Kamaraj Salai,

Thattanchavady,

Puducherry.

. . Respondent

This industrial dispute coming on 23-10-2017 before

me for final hearing in the presence of Thiru.R.T. Shankar,

Advocate for the petitioner, the respondent being called

absent and set-ex parte, upon hearing the petitioner and

perusing the case records, this Court passed the

following:

AWARD

1. This industrial dispute arises out of the reference

made by the Government of Puducherry vide G.O. Rt. No.

10/AIL/Lab./T/2017, dated 25-1-2017 of the Labour

Department, Puducherry to resolve the following dispute

between the petitioner and the respondent, viz.,

(i) Whether the dispute raised by the petitioner

Murugananthan against the management of

M/s. Establissement Patel, Thattanchavady, Puducherry

over non-employment is justified or not? If justified, what

relief he is entitled to ?

(ii) To compute the relief, if any, awarded in terms

of money, if it can be so computed?

2. Despite of due service of notice, the respondent did

not turn up before this Court and hence, the respondent was

set ex parte.

3. In the course of enquiry, on the side of the petitioner

PW.1 was examined and Ex.P1 to Ex.P6 were marked.

4. The point for determination is:

Whether the dispute raised by the petitioner against the

respondent management over non-employment is justified

or not and if justified, what is the relief entitled to the

petitioner.

5. Heard. As per the claim statement and evidence of

PW.1, the petitioner, it is established by the petitioner that

petitioner was appointed as Accountant at the respondent

organisation and had been in service for about 16 years.

Though, he had been in service for about 16 years he has

been terminated from service on 7-4-2016 without assigning

any reason and his employment was refused only orally and

no written termination order was given to him and his

termination was informed over phone by Shri Srikanth and

he was terminated from service without conducting the

domestic enquiry and no show cause notice was given to

him and no charge-sheet was filed against him and no second

53

9 January 2018]

LA GAZETTE DE L’ETAT

show cause notice was given to him in respect of the

proposed punishment and that therefore, he raised the

industrial dispute before the Conciliation Officer and on

failure, the Government has referred this matter to this

Court.

6. In support of his case, the petitioner/PW.1 has

exhibited Ex.P1 to Ex.P6. Ex.P1 is the copy of the dispute

raised by the petitioner before the Conciliation Officer.

Ex.P2 is the copy of the notice of enquiry sent by the

Conciliation Officer. Ex.P3 is the copy of the letter

submitted by the respondent management. Ex.P4 is the copy

of the conciliation failure report which would go to show

that the petitioner has raised the industrial dispute before

the Conciliation Officer and conciliation proceedings was

conducted by the Conciliation Officer and the respondent

management has filed reply before the Conciliation Officer

on 30-6-2016 denying each and every statement of the

petitioner and the respondent management most specifically

denied the averment of the petitioner that he was working in

the respondent organisation since, April 2000 and he had

rendered 16 years of service and it also reveals from the

conciliation failure report that the respondent management

has stated that the petitioner has submitted his resignation

on 1-4-2010 and received full and final settlement for his

dues towards termination of employment and there after he

was working as a part time employment in the evening from

6.00 to 9.00 p.m., to handle accounts and accordingly, the

petitioner was engaged only as a part time by respondent

organisation and that therefore, the petitioner had an

altercation with one John Bosco on 20-2-2015 and brought

an outsider to the petrol bunk to threaten John Bosco, who

gave oral complaint to the management and when the

management questioned the petitioner about his

inappropriate conduct, the petitioner gave a letter of apology

and again on 6-4-2016, the petitioner had reported assaulted

John Bosco, who gave a written complaint to the

management. The management called upon petitioner and

questioned his inappropriate conduct. The petitioner was

once again apologetic and requested the management to

condone his conduct. But, the management informed him

that a show cause notice will be issued to him and petitioner

can give a suitable reply. But, the petitioner remained

unauthorised absent since 7-4-2016 and not been reported

to duty. The office staff of respondent organisation had

even called him over phone but he claimed to have lost

interest in the job. The management had already decided to

seek appropriate explanation from the petitioner for his

inappropriate behavior with his co-staff and for remaining

unauthorised absent. From the above facts, it is clear that

the respondent management has admitted the fact that

petitioner had been in service and without enquiry his service

was terminated from the respondent organisation. Ex.P5 is

the copy of the reference letter. Ex.P6 is the copy of the

letter issued by the respondent management to the petitioner

which would go to show that the petitioner was working as

store-keeper from March, 1998 to 7th October, 2001 in

the respondent organisation.

7. It is clearly established through the petitioner evidence

and records that the petitioner was working in the respondent

concern and he has been terminated from service without

following any procedure laid under the Industrial Disputes

Act by the respondent for which he has raised the Industrial

dispute before the Conciliation Officer and the conciliation

proceedings were failed and that therefore, this reference

has been made to this Court to decide whether the dispute

raised by the petitioner over non-employment is justified

or not.

8. Though, the petitioner was working for long tenure

his service was terminated without conducting any domestic

enquiry by the respondent management. Further, though the

respondent management has stated before the Conciliation

Officer that petitioner himself has resigned from job, they

have not appeared before this Court after due service of

notice to them and subsequently due to their absence, the

respondent was set ex parte. Considering the fact that the

petitioner has established his case that he was working in

the respondent concern and he has been terminated from

service without giving sufficient opportunity and without

conducting domestic enquiry and without following any

procedure laid down under the Industrial Disputes Act by

the respondent, it is to be held that the industrial dispute

raised by the petitioner against the respondent management

over his non-employment is justified and the petition is liable

to be allowed and as such, the petitioner is entitled for the

order of reinstatement as claimed by him.

10. 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 the

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, nothing is before this Court to show that the

54

LA GAZETTE DE L’ETAT

[9 January 2018

petitioner was not working anywhere else and that therefore,

he cannot be given full back wages. The petitioner has stated

that he is not working anywhere else after his termination.

However, the petitioner could have served at anywhere else

after his termination from the respondent establishment.

Considering the above circumstances, this Court decides

that the petitioner is entitled for 30% back wages and other

attendant benefits.

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

industrial dispute raised by the petitioner over

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 30%

back wages from the date of termination till the date of

reinstatement with continuity of service and other attendant

benefits. No cost.

Dictated to the Stenographer, transcribed by her,

corrected and pronounced by me in the open Court on this

the 24th day of October, 2017.

G. THANENDRAN,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.

List of petitoner’s witness:

PW.1 — 23-10-2017 — Muruganantham

List of petitioner’s exhibits:

Ex.P1— 26-04-2016 — Copy of the dispute raised by

the petitioner before the

Conciliation Officer.

Ex.P2— 10-06-2016 — Copy of the notice of enquiry

sent by the Conciliation

Officer.

Ex.P3— 01-06-2016 — Copy of the letter submitted by

the respondent management.

Ex.P4— 18-11-2016 — Copy of the conciliation

failure report.

Ex.P5— 25-01-2017 — Copy of the reference letter.

Ex.P6— 27-10-2001 — Copy of the letter issued by the

respondent management to the

Petitioner.

List of respondent’s witness: Nil.

List of respondent’s exhibits: Nil.

G. THANENDRAN,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 186/Lab./AIL/T/2017,

Puducherry, dated 29th November 2017)

NOTIFICATION

Whereas, the Award in I.D. (L) No. 48/2012,

dated

30-10-2017

of

the

Labour

Court,

Puducherry in respect of the industrial dispute

between the Ms. K. Jamuna and the Management of

M/s.

Bharathiar

College

of

Engineering

and

Technology, Thiruvettakudi, Karaikal over termination

of service 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.

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.

Monday, the 9th day of October 2017.

I.D. (L) No. 48/2012

K. Jamuna,

D/o. Kalaiselvan,

No. 138, Colony Street,

Thiruvettakudi,

Kottucherry, Karaikal.

. . Petitioner

Versus

The Management,

M/s. Bharathiar College of

Engineering and Technology,

Thiruvettakudy, Karaikal.

. . Respondent

This industrial dispute coming on 15-9-2017

before me for hearing, Thiru V. Govindassamy,

Counsel for the petitioner and Tvl. L. Swaminathan and

M. Muruganandam, Counsel for the respondent on

record, upon perusing the case records, after having

stood over for consideration till this day, this Court

passed the following:

55

9 January 2018]

LA GAZETTE DE L’ETAT

AWARD

1. This industrial dispute has been referred by the

Government as per the G.O. Rt. No. 74/AIL/Lab./J/2010,

dated 5-4-2010 for adjudicating the following:

(a) Whether the dispute raised by Ms. K. Jamuna

against the management of M/s. Bharathiar College

of Engineering and Technology, Thiruvettakudy,

over termination of service 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?

The above reference originally taken on file by the

District Court at Karaikal which was being functioned

as Labour Court in I.D. No. 03/2010 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. 48/2012.

2. The averments in the claim statement of the

petitioner, in brief, are as follows :

The petitioner was a regular employee working

as a House-keeping staff from 2000 to 22-4-2009

in the respondent College. On 23-10-2008, the

memo was issued to the petitioner alleging that she

talked with the Principal of College disrespectfully

and also refused to obey his order in discharging her

duty. On 23-10-2008, the explanation was given by

the petitioner denying the allegations. On 31-10-2008

she was suspended by the Principal. On 9-1-2009,

a charge-sheet was also issued by the same Principal

wherein, it is alleged that she was insubordinate and

disobedient of lawful order of her superior and

indisciplined disrespectful behaviour against her

superior and also failure to maintain integrity and

devotion in her duty. The memo. dated 23-10-2008,

and order of suspension notice, dated 31-10-2008

and even the charge-sheet, dated 9-1-2009, all are

vague and inaccurate clearly indicating that the

allegation made against the petitioner from and out

of perverse and with an ulterior motive. What was

the date in which the alleged act of misconduct was

committed and what was the time the name of the

Superior Officer, who witnessed the alleged incident

and in the order of suspension also all those

particulars were totally absent in the memo. The

charge-sheet, dated 9-1-2009 was also vague as no

particulars about the time, the name of the

supervisors who were actually present at the time

of the alleged incident were totally absent and there

was no reference about any written complaint which

was allegedly given by the supervisors to the

Principal of the College. The copies of the

document were also not given or even has shown to

the petitioner along with charge sheet which are

clearly indicating the documents marked in

domestic enquiry, were created for the purpose of

this case with afterthought. Therefore, these are the

facts which are clearly indicating and exposing that

the allegation are motivated and made with an

ulterior motive of removing the petitioner from

employment.

It is further stated that the domestic enquiry was

not conducted in accordance with procedure of

nature justice as no copies of the documents were

given, list of witnesses who were going to be

examined was not given and no opportunity was

given for doing effective cross examination and

particularly she was not permitted to engage an

effective person for defending her case. In fact, the

important witness namely the Principal of the

College was not examined as a witness. Therefore,

the domestic enquiry was not valid under law and

liable to be thrown-out. The show cause notice,

dated 7-3-2009 and order of dismissal, dated 22-4-2009,

all are illegal and against the Principle that “no one to

be a Judge for his own case” as it was the allegation

of the respondent against the petitioner that she

shouted against the Principal and disobeyed his

order. Dismissal is illegal, invalid and motivated and

act of victimisation as she became a member of

trade union. Several workers were terminated from

their employment as they joined with trade union

activities. Petitioner is one of the victims and

prayed for reinstatement with full back wages with

all attendant benefits.

3. The brief averments in the counter filed by the

respondent are as follows:

The order of dismissal, dated 20-4-2009 issued

to the petitioner on account of proven misconduct

in the Enquiry Proceedings. The Supervisors of the

petitioner namely J. Jayasenthil Kumaran and

T. Ramakrishnan had submitted a letter, dated

23-10-2008 to the then Director of M/s. Bharathiar

College of Engineering and Technology, Thiruvettakudy,

Karaikal, wherein, it was stated that the petitioner

was found loitering in the College and was not found

in the duty spot. Further, it was also reported that

the petitioner was shouting against the Principal of

the College during the routine rounds. After receipt

of the said letter, the then Director of the College

had issued a Memo to the petitioner directing her

to reply as to why disciplinary actions should not

56

LA GAZETTE DE L’ETAT

[9 January 2018

be initiated for insubordination. The petitioner had

submitted an explanation to the Memo on 24-10-2008

denying the charges. The explanation of the

petitioner was not satisfactory, the petitioner was

suspended from service on 31-10-2008 by the

Administration of in contemplation of Disciplinary

Proceedings through order of suspension dated

31-10-2008. Therefore, the petitioner was served

with a charge-sheet on 9-1-2009 and was directed

to explain in writing. The petitioner submitted her

written explanation on 12-1-2009 by refusing the

charges and requested for reinstating her in service.

The respondent College by its Order, dated

20-1-2009 had rejected the written explanation and

decided to conduct an enquiry and appointed

Thiru G.K. Govindasamy, Advocate, Puducherry

as Enquiry Officer and Thiru L. Magesh,

Office Superintendent as the Presenting Officer.

The enquiry commenced on 3-2-2009 and the

petitioner seeking permission that one K. Chitra a

co-employee would assist the petitioner in the

enquiry proceedings and necessary permission was

granted to the petitioner. The Enquiry Officer had

examined one T. Ramakrishnan as MW.1 and one

J. Jayasentil Kumar was examined as MW.2 by the

Presenting Officer. After examination of the

Management witnesses, the petitioner had denied

the charges mentioned in the charge-sheet. During

the course of cross-examination by the Presenting

Officer, it was admitted by the petitioner that she

came to the Administrative Block by 11.20 a.m. and

denied the charges mentioned in the charge-sheet.

The defence witness Ms. K. Chitra had stated that

the petitioner came along with her to the Main

Block at 11.20 a.m. and refuted the allegation during

the cross examination. The Enquiry Officer

completed the enquiry proceedings and submitted

the Report on 2-3-2009 to the College by holding

the charges as proved on the charges levelled as

against the petitioner and after subjective

satisfaction of the enquiry report, the respondent

college by its show cause Memorandum, dated

7-3-2009 had directed the petitioner to explain in

writing. The petitioner had not chosen to either

submit the written explanation or prayed for any

extension of time for submitting the same.

The petitioner having participated in the enquiry

proceedings by cross examining the Management

Witnesses/Examining her witness cannot make a

somersault and make allegations about the conduct

of the enquiry proceedings. The petitioner

addressed a letter, dated 10-3-2009, had sought for

the copy of the management documents marked in

the Enquiry Proceedings, for submitting her written

explanation to the show-cause Memorandum, dated

7-3-2009 which cannot be entertained even

remotely. Having failed to submit her explanation

within the stipulated time-limit, the Disciplinary

Authority imposed the major punishment of

dismissal from service on 20-4-2009 through a

detailed speaking order. After receipt of the order

of dismissal the petitioner had approached the

Labour Officer (Conciliation), Karaikal by making

frivolous allegations against the respondent College

to which a detailed counter statement was filed by

the respondent College. During the conciliation

proceedings, the respondent management made it

very clear that the respondent college would not

compromise on discipline and insubordination

activities. The respondent College could not be a

mute spectator to the commission and omission of

the petitioner and there was no rule/law prohibiting

the respondent College from initiating disciplinary

proceedings against the petitioner.

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

petitioner, PW.1 was examined, and Ex.P1 to Ex.P6

were marked and on the side of the respondent

management, though proof affidavit has been filed and

since RW.1 has not turned up before this Court

subjecting himself for cross examination this Court has

passed an order struck down the chief evidence of the

RW1 and subsequently no evidence was let in by the

respondent management. However already by consent

Ex.M1 to Ex.M4 were marked. Though several

opportunities were given, both the parties have not

turned up before this Court to putfoth their arguments.

Hence, argument was closed with the liberty to file

written argument on or before the date of passing of

order. But, even then no written argument was filed by

the parties.

5. The point for consideration is:

Whether the dispute raised by the petitioner

against

the

respondent

management

over

termination of service is justified or not and if

justified what is the relief entitled to the petitioner.

6. The pleadings of the parties, the evidence let in

by the petitioner and the exhibits marked by both sides

are carefully considered. In this case this Court has

already decided and passed a preliminary Award holding

that the domestic enquiry conducted by the respondent

management against the petitioner by the Enquiry

Officer is fair and in accordance with the principles of

natural justice. Since, this Court has already held that

57

9 January 2018]

LA GAZETTE DE L’ETAT

the domestic enquiry was fair and not in violation of

principles of natural justice now this Court has to

decide whether the punishment of termination of

service given to the petitioner is proportionate to the

gravity of charges leveled against the petitioner and it

is also to be decided whether the findings of the

Enquiry Officer is based on the evidence let in before

him by both sides. On this aspect the evidence let in

by the petitioner and the exhibits marked on both sides

have to be carefully considered.

7. On perusal of the documents the petitioner

has exhibited the copy of the Memorandum, dated

23-10-2008 as Ex.P1. On perusal of the Memo. it is

clear that it does not contain the date and time when

the petitioner shouted against the Principal of the

respondent establishment and when she disobeyed the

orders of the respondent management and further it is

clear that the memo. does not contain what are the

words used by the petitioner against the Principal

alleged to have been shouted against the Principal

which words would have given disrespect to the

Principal. Absolutely, there is no words mentioned in

the memo and no time has been stated and even the

place where it was happened was not stated by the

Director while issuing Memorandum on 23-10-2008.

The copy of the order of Suspension, dated 31-10-2008

is exhibited as Ex.P2. The copy of the charge-sheet,

dated 9-1-2009 is exhibited as Ex.P3 from which it is

clear that the charge-sheet does not contain when the

petitioner committed disobedience of the instruction

of the Principal and what was the instruction disobeyed

by the petitioner and when she shouted against the

Principal in a loud tone audible to other employees of

the College. Absolutely, no particulars have been stated

in the charge sheet what words alleged to have been

uttered by the petitioner against the Principal and what

is the time she has not been found in the administration

block as stated by the supervisor to the Director.

Though the charge-sheet stated that the charge against

the petitioner is insubordination/disobedience of

lawful order of superior, indiscipline and loitering,

disrespectful behavior against the superior, behaving in

an unbecoming manner, failure to maintain integrity

and devotion to duty, it does not contain the date and

time and on when the petitioner committed each and

every misconduct or misbehavior against whom. The

copy of the enquiry report, dated 2-3-2009 is

exhibited as Ex.P4 which would reveal the fact that the

Enquiry Officer has given findings in favour of the

respondent management that petitioner came to the

Administrative Block only by 11.20 a.m., and that

charges of disrespectful behavior towards the

Superiors resulting in behaving in an unbecoming

manner and failure to maintain integrity to duty stands

proved. The copy of the second show cause notice,

dated 7-3-2009 is exhibited as Ex.P5 which would

reveal the fact the Enquiry Officer has submitted the

report on 2-3-2009 to the Administration of the

College holding the charges as proved on the charges

leveled against the petitioner Jamuna, House-keeping

staff under the charge-sheet, dated 31-10-2008. The

copy of the order of dismissal, dated 22-4-2009 is

exhibited as Ex.P6.

8. On the other hand, the respondent management

has exhibited Ex.M1 to Ex.M4 on consent. The copy

of the reply letter of the petitioner, dated 24-10-2008

is exhibited as Ex.M1 which would reveal the fact that

petitioner has denied the charges and she has stated

that she has not committed disrespect to the Principal

and the letter was given as reply for the memo. given

by the respondent management. The copy of the

written explanation of the petitioner, dated 12-1-2009

to the charge-sheet, dated 9-1-2009 is exhibited as

Ex.M2 in which the petitioner has asked the Principal

to accept her explanation and to stop the proposed

disciplinary action and to remove the suspension order

and she has given assurance that she should not

commit any mistake if the suspension order is vacated.

The copy of the letter of the petitioner, dated 10-3-2009

is exhibited as Ex.M3 in which the petitioner has

asked the Principal to give Tamil translation copy for

the letter, dated 7-3-2009. Ex.M1 to Ex.M4 would not

go against the petitioner and further it would not

support the respondent management. The copy of the

enquiry proceedings, dated 3-2-2009 is exhibited as

Ex.M4 which would reveal the fact that the enquiry

was started on 3-2-2009 at 10.30 a.m., at the

respondent College and completed on the same day.

But, the report was submitted by the Enquiry Officer

only on 2-3-2009.

9. From the documents exhibited by the petitioner

it is clear that Ex.P3 - charge-sheet does not contain

the place where the Principal of the College during his

routine visit has found the petitioner loitering at the

campus of the College and what is the time and what

was the words were spoken by the petitioner in loud

tone and what discipline has not been maintained by

the petitioner and what was the willful insubordination

and what was the order of the superior was refused to

accept by the petitioner. Mere indicating that she

disobeyed the instruction of the petitioner and willful

insubordination and refusal to accept orders of the

58

LA GAZETTE DE L’ETAT

[9 January 2018

superiors and behaving an unbecoming manner is not

sufficient to charge the petitioner without specifying

the date order of instruction given by the superiors and

indiscipline behavior of the petitioner. Further, Ex.P4

would reveal the fact that the Enquiry Officer has not

dealt with each and every charge separately when it was

committed and what is the time and date at each of the

charges have been committed by the petitioner and he

has not held separately each and every charge has

proved. Hence, finding of the Enquiry Officer is

incorrect while charges are framed without the date

and time and without mentioning of the words uttered

by the petitioner against the Principal.

10. As rightly pointed out by the petitioner the show

cause notice was issued by the Principal of the College

while himself was alleged to have been insulted by the

petitioner by using loud tone, it is clear that it is

against the natural justice since no one can be judge

for his own case. Therefore, this Court finds that the

findings given by the Enquiry Officer is not based on

the evidence and other circumstances. Furthermore,

being admitted that the petitioner is a house keeping

staff working at College for more than 9 years and

mere reason of the fact that she had found in the

another block that is left from Administrative Block and

using loud tone are not alone sufficient to terminate

the petitioner from service. Even assuming that the

petitioner has committed the above misconducts and

misbehavior, the punishment of termination is not

proportionate to the gravity of the said charges while

considering the fact that she was working at the

respondent establishment for more than 9 years without

any previous complaints or charges.

11. Furthermore, as rightly stated by the petitioner

the charge must be specific with all particulars then

only the delinquent can defend the case. The Enquiry

Officer has failed to consider the above fact while

giving findings in the enquiry report against the

petitioner and that therefore, the termination on

the basis of the findings of the enquiry report and as

the punishment of termination is disproportionate to

the charges levelled against the petitioner, it is just and

necessary to hold that the termination order passed by

the respondent management is not justified and

therefore, it is to be held that the industrial dispute

raised by the petitioner against the respondent

management over termination of service is justified

and the petitioner is entitled for the relief of

reinstatement as claimed by her in the claim statement.

12. As this Court has decided that the industrial

dispute raised by the petitioner against the respondent

management over termination of service is justified,

it is to be decided whether the petitioner is entitled

for back wages as claimed by the petitioner. It is not

the case of the respondent management that petitioner

is working in any other industry after her termination.

The petitioner has stated that she is not working

anywhere else after her termination. However, the

petitioner could have served at anywhere else after her

termination from the respondent establishment.

Considering the above circumstances, this Court

decides that the petitioner is entitled for 30%

back wages and other attendant benefits.

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

an industrial dispute raised by the petitioner against the

respondent management over termination of service is

justified and an Award is passed by directing the

respondent to reinstate the petitioner in service within

one month from the date of this order and to pay 30%

back wages from the date of termination till the date

of reinstatement with continuity of service and other

attendant benefits. No cost.

Dictated to the Stenographer, transcribed by her,

corrected and pronounced by me in the open Court on

this the 9th day of October, 2017.

G. THANENDRAN,

Presiding Officer,

Industrial Tribunal-cum-Labour Court,

Puducherry.

List of

petitioner’s witness:

PW.1

— 06-06-2011— K. Jamuna

List of petitioner’s exhibits:

Ex.P1 —

Copy

of

the

Memorandum,

dated

23-10-2008.

Ex.P2 —

Copy of the Order of Suspension, dated

31-10-2008.

Ex.P3 —

Copy of the charge-sheet, dated 9-1-2009.

Ex.P4 —

Copy of the Enquiry Report, dated

2-3-2009.

Ex.P5 —

Copy of the second show cause notice,

dated 7-3-2009.

Ex.P6 —

Copy of the order of dismissal, dated

22-4-2009.

List of respondent’s witness:

–Nil–

List of respondent’s exhibits:

Ex.M1—

Copy of the reply letter of the

petitioner, dated 24-10-2008.

59

9 January 2018]

LA GAZETTE DE L’ETAT

Ex.M2—

Copy of the written explanation of the

petitioner, dated 12-1-2009 to the

charge-sheet, dated 9-1-2009.

Ex.M3—

Copy of the letter of the petitioner,

dated 10-3-2009.

Ex.M4—

Copy of the Enquiry Proceedings, dated

3-2-2009.

G. THANENDRAN,

Presiding Officer,

Industrial Tribunal-cum-Labour Court,

Puducherry.

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

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(i) 









(ii) 







(iii) 





(iv) 







(v) 























