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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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