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16 {
No.
3
Poudouchéry
Mardi
16
Janvier
2018 (26 Pausa 1939)
No.
Puducherry
Tuesday
16th
January
2018
9 0
LA GAZETTE DE L’ETAT
[16 January 2018
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 188/Lab./AIL/T/2017,
Puducherry, dated 30th November 2017)
NOTIFICATION
Whereas, an Award in I.D.(L)No. 43/2012, dated
31-10-2017 of the Labour Court, Puducherry in
respect of the industrial dispute between the
management of M/s. Bharathiar College of Engineering
and Technology, Karaikal and Thiru P. Manickam 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.
Tuesday, the 31st day of October 2017
I.D. (L) No. 43/2012
The President,
Bharathiyar College of Engineering and Technology,
Non-Teaching Staff Union,
Gnanajothi Illam, 4th lane,
Kuthulampet Road, Senior Kulam Street,
Karaikal.
. . Petitioner
Versus
The Employer,
Bharathiyar College of Engineering and Technology,
Thiruvettakudy,
Karaikal.
. . Respondent
This industrial dispute coming on 27-10-2017 before
me for final hearing in the presence of V. Govindassamy,
Co unsel fo r the p etitio ner and T hiruvalargal
L. Swaminathan and L. Illankumar, Counsel for the
respondent, upon hearing both sides, upon perusing the
case records, after having stood over for consideration
till this day, this Court passed the following:
AWARD
1. This industrial dispute has been referred by the
Government as per the G.O. Rt. No. 123/AIL/Lab./J/2008,
dated 08-07-2008 for adjudicating the following:-
(a) Whether the dispute raised by Thiru
P. Manickam against the Management of Bharathiyar
College of Engineering and Technology, Karaikal,
over termination, is justified or not?
(b) To 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. 04/2008 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. 43/2012.
2. The averments in the claim statement of the
petitioner, in brief are as follows :
The petitioner was the President of respondent
Bharathiyar College of Engineering and Technology
Non-Teaching Staff Union under Registration No.
1488/RTU/2007 and was employed in the respondent
management as a Driver for about 8 years of
unblemished record of service. His last drawn salary
was ` 3,500 The respondent management employed
about 160 workers and most of them have put in
more than 8 years of service. They have not been
given any grade or increment, despite having served
for long years. The respondent management not
paying appropriate wages to their employees.
Though the respondent is an Educational Institution,
they do not even pay the minimum wages under the
Minimum Wages Act, 1948. Since, the service
conditions of the employment were very poor and
the grievances of the workers were not redressed by
the management, the workers formed themselves
into a union. The union was registered on
08-03-2007 and the same was informed to the
management. On 28-04-2007, the union sent a letter
enclosing a list of office bearers and also the list
of protected workman which is permissible under
the law, not exceeding the limit. The petitioner is
one of the protected workmen. On 12-09-2006, the
union placed a charter of demands relating to wage
revision and other demands before the respondent
management for which the respondent management
91
16 January 2018]
LA GAZETTE DE L’ETAT
did not agree and therefore, the union raised an
industrial dispute before the Conciliation Officer,
Karaikal. The conciliation proceedings were commenced
but, the management did not come forward to settle
the matter before the Conciliation Officer.
It
is
further
stated
that
the
respondent
management by way of victimising the union
members for their active participation in union
activities on 09-07-2007 issued a circular stating
that the food, breakfast and beverages were given
free of cost to non-teaching staffs will not be
available from 11-07-2007 and the same may be
availed on payment basis from that date. Changing
the existing conditions without notice was in
violation of section 9A under Industrial Disputes
Act, 1947. On 10-07-2007, the union raised a
dispute under section 9A of the Industrial Disputes
Act before the Conciliation Officer, Karaikal.
The conciliation notice was sent to the respondent.
On 11-07-2007, conciliation proceedings were
held before the Labour Officer. The petitioner
attended the same in his capacity as the President
of the union. On 12-07-2007, being the President
of the union, the petitioner went for settlement talk
with the management regarding the service condition
of free food for which the management did not
agree to settle the matter and instead issued an
order of suspension to the petitioner on the same
date without any basis. The allegation was that the
petitioner instigated the other workman to demand
free breakfast and led them in a crowd, forcibly
entered into the hostel mess etc., are frivolous. The
allegations were trumped up. After 6 days of the
alleged incident i.e., on 18-07-2007 a charge-sheet
was issued to the petitioner making baseless
charges. On 30-07-2007, the petitioner submitted
his reply to the management denying all the charges.
On 04-08-2007, the respondent management sent a
notice of enquiry to the petitioner. The union filed
a complaint under section 33A of Industrial
Disputes Act, before the Conciliation Officer
contending that during the pendency of conciliation,
the management has taken action against the
protected workman and the same was illegal. The
union filed a Writ Petition in No. 33199 of 2007
before the Hon’ble High Court for an early disposal
of the dispute regarding section 9A violation and
section
33A
compliant
pending
before
the
Conciliation Officer, Karaikal. In the mean while,
the respondent management commenced the enquiry.
The petitioner by his letter, dated 25-08-2007
stated that he had filed the abovesaid Writ Petition
and the same was pending. Hence, he requested the
Enquiry Officer to defer the enquiry till the disposal
of the Writ Petition. He denied the allegation that
he decided to stay away from the enquiry. The
Enquiry Officer without heeding to petitioner’s
request commenced the enquiry and examined three
witnesses of the management in the absence of the
respondent workman.
It is further stated that the petitioner objected the
action of the Enquiry Officer and alleged bias
against the Enquiry Officer through his letter, dated
01-09-2007. But, the management did not change
the Enquiry Officer. The Enquiry Officer conducted
an ex parte enquiry and gave his report, dated
09-11-2007, holding that the charges were proved.
On 04-12-2007, a second show cause notice was
issued to the petitioner proposing the punishment
of dismissal. The petitioner gave his detailed reply,
dated 19-01-2008 to the second show cause notice.
The management did not consider the reply and
denied an opportunity of hearing the petitioner
passed an order of termination on 20-03-2008, and
filed the Approval Application No. 30/2008 in
I.D. No. 2/2008 before the Industrial Tribunal,
Puducherry. The petitioner also filed his counter
statement in the abovesaid approval petition and the
same is pending. The respondent failed to comply
with the section 33(1) of the Industrial Disputes
Act, 1947. The respondent denied an opportunity of
hearing the petitioner before terminating the
services of petitioner. The respondent failed to
comply with the principles of natural justice,
thereby causing serious prejudice to the rights of
the petitioner. The respondent terminated the
services of the petitioner with the vindictive attitude
and as a measure of victimisation for espousing the
trade union activities. The respondent failed to
consider the fact that there was no evidence in the
alleged ex parte enquiry to prove the imaginary
allegations made by them against the petitioner. The
enquiry was a farce. The Enquiry Officer failed to
comply with the principles of natural justice and
acted merely as a representative of the respondent.
The Enquiry Officer being an Advocate, he ought to
have verified as to whether the industrial dispute
raised by the trade union was pending Conciliation.
His failure to do so exposes his bias and also the
unlawful nature of his conduct. The respondent has
violated section 33 of the Industrial Disputes
Act 1947 and their action is illegal. Hence, the
9 2
LA GAZETTE DE L’ETAT
[16 January 2018
termination order, dated 20-03-2008 is illegal,
arbitrary and unjustified. The petitioner belongs to
poor family and he should take care of his children
and his wife. He is still unemployed after his
termination. He is suffering a lot due to his
non-employment. The petitioner prayed this Court
to set aside the order of termination, dated
20-03-2008 issued by the management and pass an
order of reinstatement of the petitioner with full
back wages and all other attendant and service
benefits etc., with continuity of service.
3. The brief averments in the counter filed by the
respondent are as follows :
The petitioner P. Manickam was issued with an
order
of
suspension
through
memo,
dated
12-07-2007
by
the
respondent
college
in
contemplation of disciplinary proceedings for the
involvement of riotous and disorderly behaviour of
the delinquent employee inside the College premises
on 12-07-2007.
The delinquent employee was served
with a charge-sheet, dated 18-07-2007 by the
respondent College and was directed to submit his
written explanation within three days from the
receipt of the charge-sheet as to why disciplinary
action should not be initiated for creating a situation
of terror and a panic situation from among the staff
and students. Being an Educational Institution, the
attitude and behaviour of the said employee on
12-07-2007 had made Students Community in
general and the lady students in particular to return
back home fearing assault. The charge-sheet, dated
18-07-2007
issued
to
the
employee
clearly
highlighted the sequence of commission of
misconduct and specifically referred about the
defamatory languages and the criminal intimidation
of the said employee on 12-07-2007 while on duty.
After receipt of the charge-sheet, the said employee
by his letter, dated 25-07-2007 addressed to the
Group Manager (HRD) of the respondent College
had sought for seven days extension of time to
submit his written explanation. Thereafter, on
30-07-2007, the employee had submitted his
written explanation and by bare reading of the
written explanation it could be clearly seen that the
petitioner had not replied to the charge-sheet, dated
18-07-2007 but, have concentrated on intimating to
the respondent College that the petitioner had raised
a petition under section 33-A of the Industrial
Disputes Act, 1947 and hence, dictated terms to the
respondent College that his conditions of service
should not be disturbed
during
pendency of
conciliation. The conciliation proceedings pending
before the Labour Officer (Conciliation) was
pertaining to the circular of the management, dated
09-07-2007 and the petitioner cannot invoke
section 33-A of the Industrial Disputes Act, 1947 for
disciplinary proceeding initiated against him on
account of commission of serious misconduct.
It is further stated that as the written
explanation, dated 30-07-2007 submitted by the
said employee was found to be unsatisfactorily, the
Group Manager-HRD of the respondent College by
his letter, dated 04-08-2007 had intimated the said
employee that an enquiry will be conducted into
the charge-sheet, dated 18-07-2007 and Mr. K. Babu,
Advocate, Puducherry had been appointed as the
Enquiry Officer and have specifically directed the
employee to co-operate with the enquiry proceedings.
In pursuance thereof, the Enquiry Officer by his
notice of enquiry, dated 23-08-2007 had intimated
the said employee that the enquiry in respect of the
charge-sheet, dated 18-07-2007 will be held in the
respondent College premises on 01-09-2007 at
11.30 a.m. and instructed the said employee to
appear on the said date without fail. The copy of the
said notice was also sent to the Presenting Officer
Mr. D. Anandan. Instead of appearing to the enquiry
proceedings, the said employee had addressed a
letter, dated 25-08-2007 to the Enquiry Officer
stating that a petition regarding violation of the
section 9-A of the Industrial Disputes Act, 1947 is
pending before the Labour Officer (Conciliation),
Karaikal and the said employee had also lodged a
complaint under section 33-A of the Industrial
Disputes Act, 1947 before the Labour Officer
(Conciliation), Karaikal and till a decision is taken
on the said petition, the said employee requested
the
Enquiry
Officer
to
defer
the
enquiry
proceedings till the final disposal of the complaint
pending on the file of the Labour Officer
(Conciliation), Karaikal. The said employee without
understanding the provisions of the Industrial
Disputes Act, 1947 is dictating terms to the Enquiry
Officer instead of attending the enquiry
proceedings which itself would vouch safe the
attitude and behaviour of the petitioner. The said
employee had expressed his unwillingness to
participate
in
the
enquiry
proceedings
for
insubstantial reasons, the Enquiry Officer had
conducted the enquiry proceedings on 01-09-2007
through examination of the management witnesses
and submitted a detailed enquiry report, dated
93
16 January 2018]
LA GAZETTE DE L’ETAT
19-11-2007 by holding that the charges framed
against the said employee under charge-sheet, dated
18-07-2007 stands proved beyond reasonable doubt
through the depositions of three management
witnesses and the exhibits.
It is further stated that the respondent College
by the show cause notice, dated 04-12-2007 had
directed the said employee to submit his written
explanation within 10 days from the receipt of the
show cause notice as to why the enquiry report,
dated 19-11-2007 should not be accepted for
imposing the major penalty of dismissal from
service. Along with the said show cause notice, the
copy of the enquiry report, dated 19-11-2007 was
also enclosed. The said employee after receipt of
the show cause notice had requested the respondent
college by his letter, dated 04-12-2007 that the said
employee is in need of 20 days to submit his written
explanation. Again the said employee by his letter,
dated 04-01-2008 had requested for another 15 days
to submit his written explanation which was acceded
by the respondent College. On 19-01-2008 the said
employee had submitted his written explanation and
had again stated that in view of pendency of the
petitions before the Labour Officer (Conciliation),
Karaikal instituted for violation of section 9-A and
petition under section 33-A of the Industrial Disputes
Act, 1947, the said employee has expressed his
unwillingness to participate in the enquiry proceedings
and never answered to the enquiry report, dated
19-11-2007. Thus, even to the second show cause
notice the said employee was only reiterating about
the petitions filed by him before the Labour Officer
(Conciliation) and never understood that the
disciplinary
proceedings
are
instituted
for
commission of serious misconduct which has no
relevance to the pendency of petitions before the
Labour Officer (Conciliation), Karaikal. The
respondent management after analysing the enquiry
report,
dated
19-11-2007
and
the
written
explanation,
dated
19-01-2008
of
the
said
employee, by the order of dismissal, dated
20-03-2008 had imposed the major punishment of
dismissal from service for the indisciplinary
activities of the said employee by effecting one
month wages/subsistence allowances. Necessary
approval application has been filed before the
Industrial Tribunal, Puducherry under section 33
(2)(b) of the Industrial Disputes Act, 1947 under
approval Application No. 30/2008 in I.D.(T)
No. 2/2008 requesting approval of the order of the
dismissal, dated 20-03-2008 issued to the said
employee and the same is pending.
4. In the course of enquiry on the side of the
petitioner PW.1 was examined and Ex.P1 to Ex.P20
were marked and on the side of the respondent no oral
evidence has been let in and only Ex.R1 to Ex.R22
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. On petition oral
argument was putforth and written argument was filed
by the respondent management.
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 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 levelled 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. It is the evidence of the petitioner PW.1 that he
is the President of Bharathiyar College of Engineering
and Technology Non-Teaching Staff Union and he had
been in service in the respondent establishment as a
Driver for about 8 years and drawn a salary of ` 3,500
and since, the service conditions of the employment
were very poor and the grievances of the workers were
not redressed by the management, the workers formed
themselves into a union and the same was registered
on 08-03-2007 and the same was informed to the
management and on 28-04-2007, a letter enclosing a
list of office bearers and also the list of protected workman
was sent by the union and on 12-09-2006, the union
placed a charter of demands relating to wage revision
and other demands before the respondent management
but, they did not agree to any of the demands and that
9 4
LA GAZETTE DE L’ETAT
[16 January 2018
therefore, an industrial dispute was raised before the
Conciliation Officer, Karaikal wherein the respondent
management did not come forward for amicable
settlement and that by way of victimising the union
members on 09-07-2007 the respondent management
issued a circular stating that the food, breakfast and
beverages should not be available from 11-07-2007 to
non-teaching staffs at free of cost and such changing
the existing conditions without notice was in violation
of section 9A under Industrial Disputes Act, 1947 and
hence, the union raised a industrial dispute under
section 9A of the Industrial Disputes Act before the
Conciliation Officer, Karaikal and the conciliation
proceedings were held before the Labour Officer on
11-07-2007 and this petitioner as the President of the
union participated in the conciliation proceedings on
12-07-2007 and the respondent management did not
agree to settle the matter and issued an order of
suspension to the petitioner on the same date without
any basis on the allegation that the petitioner
instigated the other workman to demand free breakfast
and led them in a crowd, forcibly entered into the
hostel mess etc., and thereafter, on 18-07-2007 a
charge-sheet was issued to the petitioner making
baseless charges, for which the petitioner has
submitted his reply to the management on 30-07-2007
denying all the charges.
8. It is further evidence of PW.1 that a notice of
enquiry was given to the petitioner on 04-08-2007
against which the union has filed a complaint under
section 33A of Industrial Disputes Act, before the
Conciliation Officer contending that during the
pendency of conciliation, the management has taken
action against the protected workman and the union
has filed a Writ Petition No. 33199 of 2007 before
the Hon’ble High Court for an early disposal of the
dispute regarding section 9A violation and section 33A
compliant pending before the Conciliation Officer,
Karaikal and in the mean while, the respondent
management has commenced the enquiry for which the
petitioner has sent a letter on 25-08-2007 stating that
he had filed the abovesaid Writ Petition and the same
was pending and requested the Enquiry Officer to defer
the enquiry till the disposal of the Writ Petition and
however the Enquiry Officer has commenced the
enquiry and examined three witnesses of the
management, in the absence of the petitioner workman
which was objected by the petitioner alleging that the
Enquiry Officer has conducting the enquiry in a biased
manner on 01-09-2007 and an ex parte enquiry was
conducted and the Enquiry Officer has submitted his
report on 09-11-2007, holding that the charges were
proved and hence, the respondent management has
issued a second show cause notice on 04-12-2007 to
the petitioner proposing the punishment of dismissal
for which the petitioner has given his detailed reply
on 19-01-2008 to the second show cause notice and
the management did not consider the reply and denied
an opportunity to the petitioner passed an order of
termination on 20-03-2008 and filed the Approval
Application No. 30/2008 in I.D. No.2/2008 before the
Industrial Tribunal, Puducherry and that the respondent
failed to comply with the section 33(1) of the
Industrial Disputes Act, 1947 denying an opportunity
to the petitioner before terminating the services of
petitioner and also failed to comply with the principles
of natural justice and the respondent has violated
section 33 of the Industrial Disputes Act, 1947 which is
illegal and hence, the order of termination dated
20-03-2008 is illegal, arbitrary and unjustified and
that therefore, an industrial dispute was raised by the
petitioner against the termination before the Labour
Officer, Karaikal, which was ended in failure and the
Government has referred to this Court.
9. In support of his oral evidence the petitioner has
exhibited Ex.P1 to Ex.P20. Ex.P1 is the copy of the
letter addressed to the Administrator, BCET, Karaikal,
dated 28-04-2007. Ex.P2 is the copy of the Circular,
dated 09-07-2007. Ex.P3 is the copy of the memo of
suspension, dated 12-07-2007. Ex.P4 is the copy of
the charge-sheet, dated 18-07-2007. Ex.P5 is the copy
of the reply letter, dated 30-07-2007 to the
charge-sheet, dated 18-07-2007. Ex.P6 is the copy of the
letter of the appointment of an Enquiry Officer, dated
04-08-2007. Ex.P7 is the copy of the telegram
addressed to the Enquiry Officer, dated 01-09-2007.
Ex.P8 is the copy of the notice of enquiry, dated
23-08-2007. Ex.P9 is the copy of the enquiry
proceedings, dated 17-09-2007. Ex.P10 is the copy
of the letter addressed to the Enquiry Officer, dated
01-09-2007. Ex.P11 is the copy of the show cause
notice, dated 04-12-2007. Ex.P12 is the copy of the
reply letter to the second show cause notice, dated
19-01-2008. Ex.P13 is the copy of the dismissal
order, dated 20-03-2008. Ex.P14 is the copy of the
approval application, dated 20-03-2008. Ex.P15 is the
copy of the complaint under section 33-A of the
Industrial Disputes Act, dated 24-07-2007. Ex.P16 is
the copy of the Order in I.A. No. 30/2008 in I.D.No. 02/08,
dated 19-06-2009. Ex.P17 is the copy of the petition
filed under section 2K of the industrial dispute, dated
31-08-2007. Ex.P18 is the copy of the counter
petition, dated 24-09-2007. Ex.P19 is the copy of the
petition
filed
under
industrial
dispute,
dated
04-04-2008. Ex.P20 is the copy of the reply to the
notice of enquiry, dated 25-08-2007.
95
16 January 2018]
LA GAZETTE DE L’ETAT
10. The above documents and oral evidence of PW.1
would go to show that the workers of the respondent
establishment formed a union and the same was
registered and the respondent management has sent a
circular on 09-07-2007 stating that facility of
providing food, tea and coffee to the staff members
have been stopped and outside canteen and mess
services are not been permitted in the campus and staff
members can go for lunch during 01.00 p.m., to
02.00 p.m., and the workers were given canteen facilities
at the rate displayed in the dining hall from 11-07-2007
and a memo was given to the petitioner on 12-07-2007
and charge-sheet was served to him on 18-07-2007 and
on 30-07-2007 the petitioner has given reply to the
charge-sheet and the petitioner has sent a telegram to
the Enquiry Officer on 01-09-2007 and notice of
enquiry was issued to the petitioner on 23-08-2007
and the enquiry was held at the premises of the
respondent establishment and enquiry was conducted
and Enquiry Officer has submitted a report and
thereafter, a show cause notice was issued to him along
with the enquiry report of the Enquiry Officer and the
petitioner has given a detailed reply on 19-01-2008
and thereafter, on 20-03-2008 the management has
passed an order of termination and on the same day the
management has sent a letter to the Presiding Officer,
Industrial Tribunal, Puducherry regarding the dismissal
of the petitioner from service of the respondent
establishment for the act of misconduct committed by
him and filed approval application along with one
month salary in view of demand draft and dismissal
order and thereafter the petitioner union has made a
complaint before the Labour Officer, conciliation
under section 33A of the Industrial Disputes Act on
24-07-2007 against the suspension order and the
application was closed by the Industrial Tribunal on
19-06-2009 for the non-prosecution of the parties and
the union has sent another communication on
31-08-2007 stating that they have raised the industrial
dispute regarding violation of section 9A of the
Industrial Disputes Act and the same is pending before
the Conciliation Officer the petitioner was suspended
from 12-07-2007 alleging that he has committed
misconduct and on the pendency of complaint
regarding violation of section 9A of the Industrial
Disputes Act without getting express permission from
the authority the management has again proceeding
enquiry without considering the industrial dispute
raised by the union and the petitioner has sent a
communication to the Enquiry Officer on 22-09-2007
asking the Enquiry Officer to stop the enquiry stating
that he could not get justice if, the inquiry is conducted
by the said Enquiry Officer and the union has raised
the industrial dispute before the Labour Officer,
conciliation on 04-04-2008 against the termination of
the petitioner from service with the request to pass an
order of reinstatement and the petitioner has also sent
a letter to the Enquiry Officer to stop the proceedings
till the disposal of the complaint given by the union
before the Labour Officer, Conciliation Karaikal.
11. On the other hand, the respondent management
has not let any oral evidence and has exhibited Ex.R1
to Ex.R22. Ex.R1 is the copy of the memo of
suspension, dated 12-07-2007. Ex.R2 is the copy of
the charge-sheet, dated 18-07-2007. Ex.R3 is the copy
of the requisition letter for extension of time to
submit explanation, dated 25-07-2007. Ex.R4 is the
copy of the written explanation, dated 30-07-2007.
Ex.R5 is the copy of the intimation letter about
appointment of Enquiry Officer, dated 04-08-2007.
Ex.R6 is the copy of the notice of enquiry, dated
23-08-2007. Ex.R7 is the copy of the reply letter,
dated 25-08-2007. Ex.R8 is the copy of the telegram
addressed to the respondent management, dated
01-09-2007. Ex.R9 is the copy of the letter addressed
to the Enquiry Officer, dated 01-09-2007. Ex.R10 is
the copy of the letter of the Enquiry Officer, dated
17-09-2007. Ex.R11 is the copy of the letter addressed
to the Enquiry Officer, dated 22-09-2007. Ex.R12 is
the copy of the daily order proceedings, dated
01-09-2007 and 24-09-2007. Ex.R13 is the copy of
the show cause notice, dated 04-12-2007. Ex.R14 is
the copy of the enquiry report, dated 19-11-2007.
Ex.R15 is the copy of the petitioner's letter, dated
14-12-2007. Ex.R16 is the copy of the petitioner's
letter, dated 04-01-2008. Ex.R17 is the copy of the
explanation letter, dated 19-01-2008. Ex.R18 is the
copy of the order of dismissal, dated 20-03-2008.
Ex.R19 is the copy of the Approval Application No. 30/
2008, dated 20-03-2008. Ex.R20 is the copy of the
affidavit in IA No.29/2009 in ID No. 02/2008, dated
13-07-2009. Ex.R21 is the copy of the counter statement
in Approval Application No. 30/2008 in ID No. 02/2008,
dated 08-09-2008. Ex.R22 is the copy of the order in
Approval Application No. 30/2008, dated 19-06-2009.
12. The above documents would go to show that the
disciplinary action was taken by the respondent
management and the memo was issued on 12-07-2007
to the workman Manickam and the charge-sheet was
given to him on 18-07-2007 and the petitioner has
given a letter to the respondent management asking
9 6
LA GAZETTE DE L’ETAT
[16 January 2018
extension of time and submitted a written explanation
on 30-07-2007 and the appointment of Enquiry Officer
was intimated to the petitioner on 04-08-2007 and the
notice was issued to him on 23-08-2007 for which he
has given a reply on 25-08-2007 and the petitioner has
sent a telegram to the respondent management and a
letter to the Enquiry Officer on 01-09-2007 and on
22-09-2007
and
the
enquiry
proceedings
was
conducted by the Enquiry Officer on 01-09-2007 and
24-09-2007 and a show cause notice was issued to him
on 04-12-2007 along with the enquiry report, dated
19-11-2007 and the petitioner has sent several letters
on 14-12-2007, 04-01-2008, 19-01-2008 for the
second show cause notice and thereafter the
respondent management has terminated the petitioner
from service on 20-03-2008 and approval application
was submitted by the respondent management on
20-03-2008 before the Presiding Officer, Industrial
Tribunal wherein the respondent management has filed
a counter on 08-09-2008 and the approval application
was closed on 19-06-2009 for the absence of the
parties.
13. The oral evidence of PW.1 and the exhibits
marked by both sides would go to show that the
petitioner workman Manickam was working at the
respondent establishment as Driver for about 8 years
and union has been formed by the workers in the
year 2007 and the workman Manickam is the office bearer
of the petitioner union and the union has raised the
industrial dispute before the Conciliation Officer,
Karaikal for wage revision and other demands and
while the conciliation is pending the respondent
management has issued a circular stating that the food,
breakfast and beverages will not be available from
11-07-2007 at free of cost to non-teaching staffs and
subsequently on 12-07-2007 a memo was issued to the
workman Manickam stating that he alleged to have
entered into the canteen without the permission and
caused some damages and charge-sheet was given to
him and enquiry was conducted and the petitioner has
filed a complaint under section 33A of Industrial
Disputes Act against the enquiry proceedings
conducted by the respondent management without the
permission of the Conciliation Officer when the
conciliation was pending for wage revision and other
benefits and subsequently after the enquiry the Enquiry
Officer has submitted his report found guilty of the
workman Manickam for which a second show cause
notice was issued for the proposed punishment for
which
the
workman
Manickam
has
submitted
explanation
and
subsequently
the
respondent
management has terminated the service of the
petitioner on 20-03-2008 and hence, he raised the
industrial dispute before the Conciliation Officer and
in the meanwhile the respondent management has filed
a approval
Application No. 30/2008 before the
Industrial Tribunal which was closed on 19-06-2008
for the non-prosecution.
14. It is also an admitted fact that the petitioner
union has raised the industrial dispute over wage
revision and other benefits and also filed a complaint
under section 9A of the Industrial Disputes Act before
the Conciliation Officer and while the industrial dispute
is pending the respondent management has conducted
domestic enquiry and suspended the petitioner
workman from service and subsequently terminated
him from service on 20-03-2008. Further, the
respondent management has filed the copy of the
Award passed by this Court in I.D. No. 44/2012
dismissing the dispute raised by the non-teaching staff
union as unjustified on 02-01-2013. Admittedly, in
this case it is learnt from Ex.R18 that the approval
application filed by the respondent management was
closed on 19-06-2008 for non prosecution of the
applicant and for non-appearance of the respondent.
Since, this Labour Court has not allowed the approval
application, it is to be decided whether the dismissal
order passed by the respondent management without
getting approval of the Labour Court or Conciliation
Officer after conducting domestic enquiry which was
decided by this Court earlierly as valid is sustainable
or not.
15. On this aspect, the learned Counsel appearing
for the respondent management has relied upon the
Judgment reported in (2013) 9 SCC 23, Rajasthan
State Road Transport Corporation and another Vs. Satya
Prakash, wherein the Hon’ble Supreme Court has held
that,
“In the present case, the Tribunal accepted that
during this very short span of service as a daily
wager the respondent had committed the misconduct
which had been duly proved. Having held so, the
Tribunal was expected to dismiss the complaint
filed by the respondent. It could not have passed the
order of reinstatement with continuity in service in
favour of the respondent on the basis that initially
the appellant had committed a breach of section
33(2)(b) of the Act. It is true that the appellant had
not applied for the necessary approval as required
under that section. That is why the complaint was
filed by the respondent under section 33-A of the
Act. That complaint having been filed, it was
adjudicated like a reference as required by the
statue. The same having been done, and the
misconduct having been held to have been proved,
97
16 January 2018]
LA GAZETTE DE L’ETAT
now, there is no question
to hold that the
termination shall still continue to be void and
inoperative. The dejure relationship of employer
and employee would come to an end with effect
from the date of the order of dismissal passed by
the appellant. In the facts of the present case, when
the respondent had indulged in a misconduct within
a very short span of service which had been duly
proved, there was no occasion to pass the award of
reinstatement with continuity in service……”
and the learned Counsel for the respondent has also
relied upon the Judgment reported in Civil Appeal
No. (s)9956 of 2017, Managing Director, NEKRTC,
Karnataka Vs. Shivasharanappa, wherein the Hon'ble
Supreme Court of India has held that,
“In the present case, the High Court interfered
with the punishment merely on the ground that the
requirement under section 33(2)(b) of the Act had
not been complied with and prior approval had not
been taken. The same, as already held by this Court,
could not have authorised the High Court to
interfere with the punishment imposed without an
adjudication on the validity of the dismissal. In the
present case, such an adjudication had already been
made and therefore, the issue of the validity of the
dismissal of the workman must be understood to
have been gone into and decided. In such a situation,
the High Court ought not to have interfered with the
punishment imposed without considering the
findings of the Labour Court on the correctness of
the charges brought against the workman. The said
aspect of the order of the High Court has however,
not been assailed by the workman. The aforesaid
part of the order may, therefore, be understood to
have been accepted by the workman. In the above
situation, the remaining part of the order i.e., the
High Court interfering with the punishment
imposed would clearly be contract to the view
expressed by this Court on the issue in Management
of Karur Vysya Bank Limited (supra).”
From the above observations of the Hon’ble
Supreme Court, it is clear that though necessary
approval is not obtained from the Tribunal when the
misconduct having been held to have been proved
there is no question to hold that the termination shall
still continue to be void and inoperative and there was
no occasion to pass the award of reinstatement with
continuity in service and that therefore, though the
respondent management has not get approval of the
Industrial Tribunal for the dismissal of the petitioner
when the misconduct was proved and workman had
indulged any misconduct, an Award for reinstatement
cannot be ordered.
16. In this case, it is already held by this Court that
the preliminary enquiry conducted by the Enquiry
Officer who was nominated by the respondent
management has conducted the enquiry in accordance
with the principles of natural justice and is valid one
and the misconduct of the petitioner was proved before
the Enquiry Officer. Though the respondent management
has not obtained the approval of the dismissal, Award
for reinstatement cannot be passed and as such it is to
be held that the industrial dispute raised by the
petitioner against the respondent management over
termination is unjustified. However, as the petitioner
was serving for more than 10 years and the petitioner
was not at all settled so far, it is to be held that the
petitioner is entitled for other benefits under law for
his 10 years of service and hence, the Award can be
passed in favour of the petitioner directing the
respondent to pay the service benefits in accordance
with law for his service period of 10 years.
17. In the result, the petition is partly allowed and
the industrial dispute raised by the petitioner against
the respondent management over termination is
unjustified and an Award is passed by directing the
respondent to pay service benefits to the petitioner
according to the law for his 10 years of service at the
respondent College. No cost.
Dictated to Stenographer, transcribed by her,
corrected and pronounced by me in the open Court on
this the 31st day of October, 2017.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
————
List of petitioner’s witness:
PW.1 —09-11-2010— P. Manickam
List of petitioner’s exhibits:
Ex.P1 — Copy of the letter addressed to the
Administrator, BCET, Karaikal, dated
28-04-2007.
Ex.P2 — Copy of the Circular, dated 09-07-2007.
Ex.P3 — Copy of the memo of suspension, dated
12-07-2007.
Ex.P4 — Copy of the charge-sheet, dated
18-07-2007.
Ex.P5 — Copy of the reply letter, dated
30-07-2007 to the charge-sheet, dated
18-07-2007.
9 8
LA GAZETTE DE L’ETAT
[16 January 2018
Ex.P6 — Copy of the letter of the appointment
of
an
Enquiry
Officer,
dated
04-08-2007.
Ex.P7 — Copy of the telegram addressed to the
Enquiry Officer, dated 01-09-2007
Ex.P8 — Copy of the notice of enquiry, dated
23-08-2007.
Ex.P9 — Copy of the enquiry proceedings, dated
17-09-2007.
Ex.P10— Copy of the letter addressed to the
Enquiry Officer, dated 01-09-2007.
Ex.P11— Copy of the show cause notice, dated
04-12-2007.
Ex.P12— Copy of the reply letter to the second
show cause notice, dated 19-01-2008.
Ex.P13— Copy of the dismissal order, dated
20-03-2008.
Ex.P14— Copy of the approval application, dated
20-03-2008.
Ex.P15— Copy of the complaint under section
33-A of the Industrial Disputes Act,
dated 24-07-2007.
Ex.P16— Copy of the Order in I.A.No. 30/2008
in I.D.No. 02/08, dated 19-06-2009.
Ex.P17— Copy of the petition filed under section
2K
of the industrial dispute, dated
31-08-2007.
Ex.P18— Copy of the counter petition, dated
24-09-2007.
Ex.P19— Copy of the petition filed under
industrial dispute, dated 04-04-2008.
Ex.P20— Copy of the reply to the notice of
enquiry, dated 25-08-2007.
List of
respondent’s witnessess: Nil
List of respondent’s exhibits:
Ex.R1 — Copy of the memo of suspension, dated
12-07-2007.
Ex.R2 — Copy of the charge-sheet, dated
18-07-2007.
Ex.R3 — Copy of the requisition letter for
extension of time given by the
petitioner, dated 25-07-2007.
Ex.R4 — Copy of the written explanation given
by the petitioner, dated 30-07-2007.
Ex.R5 — Copy of the intimation letter about
appointment of Enquiry Officer, dated
04-08-2007.
Ex.R6 — Copy of the notice of enquiry, dated
23-08-2007.
Ex.R7 — Copy of the reply letter given by the
petitioner, dated 25-08-2007.
Ex.R8 — Copy of the telegram addressed to the
respondent
management,
dated
01-09-2007.
Ex.R9 — Copy of the letter given by the
petitioner to the Enquiry Officer, dated
01-09-2007.
Ex.R10— Copy of the letter of the Enquiry
Officer
to
the
petitioner,
dated
17-09-2007.
Ex.R11— Copy of the letter given by the
petitioner to the Enquiry Officer, dated
22-09-2007.
Ex.R12— Copy of the daily order proceedings,
dated 01-09-2007 and 24-09-2007.
Ex.R13— Copy of the show cause notice, dated
04-12-2007.
Ex.R14— Copy of the enquiry report, dated
19-11-2007.
Ex.R15— Copy of the letter given by the
petitioner, dated 14-12-2007.
Ex.R16— Copy of the letter given by the
petitioner, dated 04-01-2008.
Ex.R17— Copy of the explanation letter given by
the petitioner, dated 19-01-2008.
Ex.R18— Copy of the order of dismissal, dated
20-03-2008.
Ex.R19— Copy of the approval Application
No. 30/2008, dated 20-03-2008.
Ex.R20— Copy of the Affidavit and petition in
IA No. 29/2009 in ID No. 02/2008,
dated 13-07-2009.
Ex.R21— Copy of the counter statement in
approval Application No. 30/2008 in
ID No. 02/2008, dated 08-09-2008.
Ex.R22— Copy
of
the
order
in
approval
Application
No.
30/2008,
dated
19-06-2009.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.