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No. 9 Poudouchéry Mardi 27 Février 2018 (8 Phalguna 1939)
No. Puducherry Tuesday 27th February 2018
➢ S OM M A I R E S C O N T E N T S
Page Page
➢ .. 2 8 2 Sentence arbitral du travail .. 2 8 2 Award of the Labour Court .. 2 8 2
de tribunal.
• .. 2 9 3 Notifications du Gouvernement .. 2 9 3 Government Notifications .. 2 9 3 .. 3 0 0 Avis d'Adjudications .. 3 0 0 Tender notices .. 3 0 0 .. 306 Etablissements dangereux .. 306 Dangerous Establishments .. 306
.. 3 1 0 Announcements .. 3 1 0 .. 3 1 0 Annonces
[281]28 2 LA GAZETTE DE L'ETAT [27 February 2018 GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 199/Lab./AIL/T/2017,
Puducherry, dated 29th December 2017)
NOTIFICATION
W h e r e a s , a n a wa r d i n I . D ( L ) N o . 0 9 / 2 0 1 4 , dated 16-11-2017 of the Labour Court, Puducherry in respect of the Industrial Dispute between the management of M/s. Hindustan Unilever limited, NH 45A, Personal Products Factory, Vadamangalam, Puducherry-605 102 and Thiru S. Sivaprakash, S/o. V. Swamydoss, No. 55, Salai Street, Uzhavarkarai, Reddiyarpalayam Post, Puducherry-605 010, 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)
E. VALLAVAN, Commissioner of Labour-cum- Additional Secretary to Government (Labour).
————
This industrial dispute coming on 02-11-2017 before me for final hearing in the presence of Thiruvalargal P. R. Thiruneelakandan and A. Mithun Chakkaravarthy, Advocates for the petitioner, Thiruvalargal L. Sathish, T. P ravin, S. Velmur ugan, V. Ve e r a r a g a v a n a n d P. Rajesh, Advocates 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. l5/AIL/Lab./J/2014, dated 07-02-2014 for adjudicating the fallowing:
(i) Whether the dispute raised by Thiru S. Sivaprakash over his non-employment against the management of M/s. Hindustan Unilever Limited, Personal Products Factory, NH 45A, Vadamangalam, Puducherry is justified? If not 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. The averments in the claim statement filed under section 2(A) of the Industrial Disputes Act. 1947 by the petitioner, in brief, are as follows:
BEFORE THE INDUSTRIAL TRIBUNAL -CUM-
LABOUR COURT AT PUDUCHERRY
Present :Thiru G. THANENDRAN, B.COM., M.L., Presiding Officer.
Thursday, the 16th day of November 2017.
I.D. (L) No. 09/2014
S. Sivaprakash, S/o. V. Swamydoss, No. 55, Salai Street, Uzhavarkarai, Reddiyarpalayam Post, Puducherry-605 010.
. . Petitioner/ Workman.
Versus
The Managing Director, M/s, Hindustan Unilever Limited, NH 45A , Personal Products Factory, Vadamangalam, Puducherry-605 102. . .Respondent/ Management.
(i) It is stated that the petitioner was appointed as an operator on 26-07-2012 in the respondent factory and his service was confirmed on 29-10-2002 and ever since he discharged his duty sincerely. He is a member of the Pond's (India) Limited Soap Division Employees Welfare Union. The Union has raised charter of demands regarding wages and allowances against the management in the year 2009. The management has refused to consider the charter of demands whereas, entered an 18(1) settlement by threatening the employees to sign the settlement. Except the Office Bearer of the said trade union and few other active members of the union including the petitioner all other worker were signed the said 18(1) settlement. Hence, the respondent targeted the petitioner and other workers who were not signed the said settlement and they were issued with show cause notice, charge-sheet for frivolous false allegations and after the said 18(1) settlement, the workers namely, Gopalakrishnan, Jaganathan and Devanathan who were not signed the 18(1) settlement were issued show cause notice, charge-memo to victimise them for not signing in the 18(1) settlement and in sequence of which the respondent threatened the petitioner to sign in the 18(1) settlement. Since, he was an active member of27 February 2018] LA GAZETTE DE L'ETAT 283 the said trade union he did not pay any heed to the threat of the respondent. In that regard he also wrote a letter to the said trade union. While being so, the management issued a charge-sheet to the petitioner on 02-07-2011 alleging that on 24-06-2011 while the petitioner was working in the 'A' shift around 08.30 a.m., he had misbehaved with a woman worker who worked in the Talcum Section. Based on said allegation he was placed under suspension from 02-07-2011 in the said charge-sheet and in the order of suspension the respondent had not disclosed the fact that against whom the petitioner had misbehaved, further, there was no detail about the person who allegedly gave the complaint against the petitioner.
The Enquiry Officer without considering his objection conducted enquiry and has failed to examine the complainant Vishalakshi, Karuna jyothi who had allegedly given complaint against the petitioner and other persons namely, Dhansu and B. Baskaran to whom the complaint was given. The disciplinary action was initiated against the petitioner on the basis of the complaint allegedly given by Vishalakshi and the preliminary enquiry report submitted by Nabixa begam. The petitioner was neither served the copy of the complaint and preliminary enquiry report before appointing the Enquiry Officer and commencing regular domestic enquiry against the petitioner. The Enquiry Officer without examining the real witness and without considering the letter of said Vishalakshi submitted his report dated 29-09-2011 stating that charges against the petitioner are proved. The petitioner has submitted his objection vide letter on 17-10-2011 against the enquiry report as the enquiry was not fair and proper and Enquiry Officer acted in a biased manner. In response to the petitioner's objections the management ordered a fresh enquiry vide order dated 07-05-2012 but conducted enquiry with the same Enquiry Officer and that the petitioner objected to the same and requested to change the Enquiry Officer. The respondent management has refused the petitioner's objection and terminated him from service vide order, dated 04-05-2013 against which the petitioner raised a dispute before the Conciliation Officer on 13-05-2013 but, the same was ended in failure and therefore, he prayed this Court to pass an Award holding that the termination of service of the petitioner, dated 04-05-2013 is illegal, consequently direct the respondent to reinstate him in service with effect from 04-05-2013 as a workman in the respondent's factory with continuity of service, back wages and all other attendant benefits.
3. The brief averments in the counter filed by the
respondent are as follows:
It is further stated that in response to the said charge-sheet the petitioner gave reply to the management. The management without hearing the versions of the petitioner and without passing any order directly appointed one Ms.Thilagavathy, Advocate as Enquiry Officer and commenced the domestic enquiry on 26-07-2011. The petitioner knew about the domestic enquiry only after receiving notice from the Enquiry Officer. In the domestic enquiry the management representative one Vidhya Venkatram appeared and stated that the petitioner misbehaved with a woman worker namely, Vishalakshi. The petitioner made a written objection to the Enquiry Officer requesting him to furnish the name of the complainant and copy of other details. Thereafter, the petitioner has issued a legal notice, dated 16-08.2011 to the said Vishalakshi through registered post. In response to the same, she sent a reply, dated 24-08-2011 to the petitioner and as well as to the management stating that she has not made any complaint against the petitioner and no such incident was taken place as stated in the legal notice. In the enquiry on 28-07-2011 the management representative has filed certain documents in English before the Enquiry Officer. Since the petitioner is unacquainted with the English requested the Enquiry Officer and the respondent management to furnish the Tamil translation of the documents whereas, the management has refused to give translated copy and also denied opportunity to the petitioner to defend the charge levelled against him. The respondent management and the Enquiry Officer conducted the enquiry in a biased manner.
(i) The respondent denied all the averments of the claim petition and stated that one Visalatchi (then unmarried) D/o. Kanthasamy, worked as a casual employee in the respondent's organisation. Similarly, one Karunajothi, W/o. Sanjeev was also a casual worker in respondent's organisation. By circular No. 4924/94/Lab./AIL/L., dated 21-07-2000 issued by Labour Commissioner, Puducherry, the respondent was directed to incorporate specific clause in its certified standing orders regarding prevention of sexual harassment in work place, which was promptly complied with by respondent after It is further stated that on 05-11-2009, the petitioner produced a copy of the reply letter of woman worker Vishalakshi and made a objection to drop the enquiry against her as the charge itself is false and baseless.
28 4 LA GAZETTE DE L'ETAT [27 February 2018a notice of enquiry to parties fixing the date of enquiry on 26-07-2011. Considering the sensitivity of matter a Lady Officer by Vidya Venkatraman was appointed as Presenting officer on behalf of the management. On 26-07-2011, petitioner appeared and attended Enquiry, signed enquiry proceedings and also gave a letter choosing P. Ethiraj as defence, assistant, which was permitted by the Enquiry Officer. He had also submitted another letter asking for various particulars regarding the complaint, which were furnished to him in the next date of enquiry on 28-07-2011. The Enquiry Officer gave maximum opportunities to the petitioner to cross examine management witness, file his documents, submit list of witnesses, and file his version in his defence, which were not utilised by petitioner. He tried to delay the proceedings on some count or the other.
giving due notice to all the workers and trade unions. A duty is cast on the respondent to prevent or deter commission of acts of sexual harassments and such complaints are required to be kept confidential to prevent threats and harassments to victims. Respondent vide its notice dated 29-03-2008 had informed all its workers that a complaint regarding sexual harassment can be lodged either orally or in writing with Nafeesa Begam. On 24-06-2011, one Chidambaram (Emp. No. 000335112) lodged a written complaint with respondent stating that petitioner had been sexually harassing Visalatchi and Karunajothi in talc plant during working hours, which was intimated to him by one K. Danasu who was also in A-shift along with the victims and petitioner. It was also informed that victims are extremely scared to report this incident to management. Based on the complaint, preliminary enquiry was conducted by Nafeesa Begam, who had personally enquired the victims Visalatchi and Karunajothi on 29-06-2011 and 30-06-2011. She had also enquired the Shift Officer Mr. Chidambaram who lodged the complaint. In the preliminary report she had given the detailed account of how Visalatchi and Karunajothi were sexually harassed by petitioner. She had also enclosed written statements given by victims. The hand written letter given by Visalatchi and Karunajothi give specific details of the nature of harassments done by petitioner.
Significantly, both Visalatchi and Karunajothi stopped reporting to work from 30-06-2011 and 01-07-2011 respectively. The preliminary report of Nafeesa Begam, who had personally examined the victims, revealed that she had noticed the demeanor of both victims and found truth and honestly in their statements. Based on the preliminary enquiry of Nafeesa Begam a charge-sheet was issued to petitioner on 02-07-2011 in Tamil and English, informing him about sexual harassment complaint. In the said charge-sheet, the date and time of incident was reported. The possibility of unwanted publicity of sexual harassment through the contents of charge-sheet was imminent which would have seriously prejudiced the victims. Therefore, the names and specific nature of harassment was not mentioned in charge-sheet, which was justified in the given nature of case to protect dignity and secrecy of victims. The petitioner is not at all prejudiced by non-disclosure of these p a r t i c u l a r s i n c h a r g e -s h e e t , d a t e d 0 2 -0 7 -2 0 11 . In response to the charge-sheet, dated 02-07-2011, petitioner gave reply, dated 09-07-2011 which was unsatisfactory and hence, an independent lady Enquiry Officer was appointed by respondent, who had issued
On 05-09-2011, petitioner produced certain documents and on the basis of those documents refused to participate further in enquiry proceedings and requested to close the proceedings. The Enquiry Officer received all the documents filed by petitioner and marked them as his exhibits. The Enquiry Officer thereafter requested the petitioner and his defence assistant to cross examine management witness but, the petitioner refused to do so or to let in his evidence or participate any further in the enquiry, compelling the Enquiry Officer to close the enquiry proceedings. Enquiry Officer submitted her report on 29-09-2011 holding the petitioner guilty of misconduct leveled against him. The said enquiry report was given to petitioner on 30-09-2011 which was received by him and reply was given by him on 17-10-2011, wherein, he claimed that he was not given sufficient opportunity to defend himself in the enquiry. Inspite of the fact that full opportunity was given to him, which was deliberately misused by him, the respondent thought it appropriate to give yet another opportunity to petitioner to defend himself and therefore, vide letter, dated 07-05-2012 the respondent requested the Enquiry Officer to reopen the enquiry. Accordingly, the Enquiry Officer gave a letter, dated 04-06-2012 fixing the date of further enquiry on 09-06-2012. On 09-06-2012, the petitionera and his defence assistant did not participate and hence, the enquiry was postponed to 19-06-2012 and intimation to that effect was immediately given to petitioner. However, on 12-06-2012 the respondent received a letter from petitioner dated 09-06-2012 claiming that he has no faith in Enquiry Officer and requested the management to pass appropriate orders based on the earlier report on the Enquiry Officer. On 19-06-2012, the petitioner did not participate in the enquiry but, Enquiry Officer once again adjourned27 February 2018] LA GAZETTE DE L'ETAT 285 the fairness of the domestic enquiry as a preliminary issue. Since, the case is riped for argument after taking all evidence, the parties are directed to putforth their arguments in main case and after hearing both sides the case has been posted for orders.
the enquiry to 26-06-2012. Petitioner once again wrote a letter dated 19-06-2012 reiterating that he is not interested in proceedings further in the enquiry. Therefore, on 26-06-2012 the Enquiry Officer had no other option but, to close the enquiry and submit her 2nd report on 10-04-2013 confirming that charges, dated 02-07-2011 stood proved against petitioner. Yet again, the additional enquiry report dated 10-04-2013 was given to the petitioner on 19-04-2013 and his explanation was called for but petitioner did not respond to said letter and therefore, taking all the factors into consideration and gravity of misconduct, the respondent terminated the petitioner from services.
4. In the course of enquiry on the side of the petitioner WW1 was examined and Ex.Wl to Ex.W32 were marked and on the side of the respondent RW1 was examined and Ex.Rl to Ex.R21 were marked.
5. The point for consideration is:
Whether the dispute raised by the petitioner over his non-employment against the respondent management is justified or not and what is the relief entitled to the petitioner?
6. Both sides are heard. The submission of both the parties, the evidence let in by either sides and the exhibits marked on both sides are carefully considered. On the side of the respondent written argument was filed and the same is carefully considered. The learned Counsel appearing for the respondent relied upon the Judgments reported in CDJ 2011 SC 366, CDJ 2006 SC 542, CDJ 2006 SC 430, CDJ 2005 SC 120, 2004 STPL (LE) 34188 SC, CDJ 1999 SC 36, CDJ 1996 SC 1732, CDJ 1991 SC 710, CDJ 1977 SC 184, CDJ 1975 SC 212, CDJ 1973 SC 302, CDJ 2011 MHC 3119, CDJ 2004 MHC 134 :[2004 II LLJ 207 Mad], CDJ 2007 MHC 3824, CDJ 2006 MHC 471, CDJ 1980 MHC 165, CDJ 2015 DHC 153, CDJ 2006 PH 1946, CDJ 2006 DHC 2099, CDJ 1997 BHC 1242 [1998 (4) Bom. CLR 57], CDJ 1984 BHC 022 & In Ram Autar Agnihotri Vs. U.P. State Handloom Corporation Reported in Indiankanoon the Division bench of Allahabad High Court. In this case, though the petitioner has challenged the fairness of domestic enquiry in his claim statement which was denied by the respondent in their counter, the then Presiding Officer of this Court by over sight without deciding the preliminary issue regarding fairness of the domestic enquiry conducted the trial by taking evidence. After taking all the evidence and after hearing part of the argument in this main case, the learned Counsel for the petitioner filed a petition to decide the issue regarding
7. In order to prove the case, the petitioner was examined himself as WW1 and he has deposed that he had joined in the respondent establishment as operator on 26-07-2002 and that on the same year after completing the training his service was regularised on 29-10-2002 as permanent worker and that he had been in service for about 9 years and that the union in which the petitioner was the member has raised the demand before the respondent establishment for revision of wages and other allowances and that therefore, the management has threatened the workers and compelled them to execute the 18(1) settlement between them and most of the workers were signed the 18(1) settlement on the compulsion of the respondent establishment and that the respondent management also has made an attempt to capture the trade union with the help of some of the workers who supporting the management and the respondent management had taken action against the union members and the workers who have not accepted 18(1) settlement and that the petitioner and the office bearers of the union were threatened by the respondent management as they have not accepted and entered the 18(1) settlement and that the petitioner was given charge-sheet on 02-07-2011 alleging that on 24-06-2011 while the petitioner was working in the 'A' shift at about 08.30 a.m., he had misbehaved with women worker who worked in the Talcum Section and immediately the petitioner was suspended from service on 02-07-2011 and even the charge-sheet does not disclose the name of the women worker to whom the petitioner has misbehaved and who has made complaint against the petitioner for which the petitioner has replied on 09-07-2011 and without considering the reply of the petitioner and did not go through the explanation, the respondent management has directly appointed one Ms. Thilagavathy, Advocate as Enquiry Officer and commenced the domestic enquiry on 26-07-2011 and that the appointment of the Enquiry Officer was not informed to him and that he has received enquiry notice from the Enquiry Officer and one Ms. Vidhya Venkatram was appointed as Presenting Officer who has stated that the petitioner misbehaved with the woman worker namely, Vishalakshi and that he made a written objection to the Enquiry Officer requesting him to furnish the name of the complainant and copy of other details,28 6 LA GAZETTE DE L'ETAT [27 February 2018 9. In support of his contention, the petitioner has exhibited Ex.Wl to Ex.W32. Ex.Wl is the copy of the offer of employment & Probation of the petitioner, dated 26-06-2002. Ex.W2 is the copy of the confirmation order of the petitioner, dated 29-10-2002 which would disclose the fact that petitioner was placed in the category of Monthly rated workman from 01-10-2002. Ex.W3 is the copy of the respondent letter to the Commissioner and the copy of the relevant portion of standing order regarding prevention of sexual harassment of women in work place, dated 24-05-2001. Ex.W4 is the copy of charge-sheet issued to the petitioner, dated 02-07-2011 which would reveal the fact that respondent establishment has served a charge-sheet to the petitioner stating that on 24-06-2011 the petitioner misbehaved and sexually harassed the women employees at about 08.30 a.m., and it is also stated that he has made unwelcome sexual determined behavior with the said female employees even in the previous two days and the said Ex.W4 would also reveal the fact that as pointed out by the petitioner the name of the women workers to whom the petitioner has misbehaved has not been stated and it is stated silently that petitioner has misbehaved with the female employees and the management has also suspended the petitioner on the same day directing him to give an explanation within 3 days and further, it is learnt from Ex.W4 that though the occurrence has taken place on 24-06-2011, the management has not taken any action even issuing a memo to the petitioner till 02-07-2011 and no complaint was made against him before any Police and they have served the charge sheet only after 9 days of the alleged misbehavior though the alleged charge is grave in nature. Ex.W5 is the copy of the explanation given by the petitioner to the charge-sheet, dated 09-07-2011, wherein, the petitioner has denied the entire charges and asking the management to furnish the name of the complainants since, the charge-sheet does not disclose the name of the women employees who has made complaint against him and has stated charge-sheet would have been filed only after conducting preliminary enquiry and confirmed the complaint given against him.
8. It is the further evidence of WW1 that thereafter, he had issued a legal notice dated 16-08-2011 to the said Vishalakshi through registered post and after receipt of the said notice, the said Vishalakshi has sent a reply, dated 24-08-2011 to the petitioner and as well as to the management stating that she has not made any complaint against the petitioner and no such incident was happened and that in the enquiry on 28-07-2011 the management representative has filed certain documents in English before the Enquiry Officer and since the petitioner is unacquainted with the English requested the Enquiry Officer and the respondent management to furnish the Tamil translation of the documents whereas the management has refused to give translated copy and also denied opportunity to the petitioner to defend the charge levelled against him and that the Enquiry Officer has conducted the enquiry in a biased manner and on 05-11-2009 the petitioner has produced the copy of the reply letter of women worker Vishalakshi and made a objection to drop the enquiry against him as the charge itself is false and baseless and without considering the objection of the petitioner, the Enquiry Officer conducted enquiry and has failed to examine the complainant Vishalakshi, Karuna Jyothi who had allegedly given complaint against the petitioner and other persons namely, Dhanusu and B. Baskaran to whom the complaint was given and that disciplinary action was initiated against the petitioner on the basis of complaint allegedly given by Vishalakshi and the preliminary enquiry report submitted by Nafeesa Begam which was not served to the petitioner and the served copy of the complaint and preliminary enquiry report before appointing the Enquiry Officer and commencing regular domestic enquiry against the petitioner and that the Enquiry Officer without examining the real witness and without considering the letter of said Vishalakshi stating that charges against the petitioner are proved for which the petitioner has submitted his objection on 17-10-2011 against the enquiry report as the enquiry was not fair and proper and Enquiry Officer acted in biased manner and that in response to the petitioner's objection, the management has ordered fresh enquiry on 07-05-2012 and the same Enquiry Officer was permitted to continue the same though the petitioner objected to the same and that the respondent management has refused employment to the petitioner on 04-05-2013 against which the petitioner has raised industrial dispute before the Conciliation Officer on 13-05-2013 which was failed and reference has been sent to this Court and that therefore, the petitioner prayed to declare that the order of termination of service of the petitioner, dated 04-05-2013 as illegal, consequently direct the respondent to reinstate him in service with effect from 04-05-2013 as a workman in the respondent's factory with continuity of service, back wages and all other attendant benefits.
10. Further, Ex.W6 is the copy of the petitioner's r e p r e s e n t a t i o n t o t h e r e s p o n d e n t t o e n g a g e h i s co-worker to assist him in enquiry, dated 15-07-2011. Ex.W7 is the copy of the minutes of enquiry proceedings, dated 25-07-2011. Ex.W8 is the copy of the petitioner's objection over domestic enquiry, dated 26-07-2011. Ex.W9 is the copy of the minutes of enquiry proceedings, dated 28-07-2011. Ex.W10 is27 February 2018] LA GAZETTE DE L'ETAT 287 order, dated 04-05-2013. Ex.W30 is the copy of the claim statement filed by the petitioner before the
Conciliation Officer, dated 13-05-2013, Ex.W31 is the copy of the counter filed by the respondent, dated 15-
07-2013. Ex.W32 is the copy of the conciliation failure report, dated 27-09-2013. These documents
would reveal the fact that Enquiry Officer has submitted a report on 29-09-2011 and show cause
notice was issued on 30-09-2011 for which the petitioner has given explanation on 17-10-2011 for
which the respondent management has passed an order to conduct fresh enquiry on 07-05-2012 i.e. after
more than 6 months and thereafter, the notice was sent to the petitioner on 04-06-2012 and enquiry was
conducted on 09-06-2012 and petitioner has objected and sent an objection to the Enquiry Officer on 09-06-2012
and petitioner also has made a representation to the respondent management on 26-06-2012 and second
enquiry report was submitted by the Enquiry Officer on 10-04-2013 and thereafter, second show cause
notice was issued to the petitioner on 19-04-2013 and the petitioner was terminated from service by passing
an order on 04-05-2013 by the respondent management and thereafter, the petitioner has raised the industrial the copy of the petitioner's legal notice to K, Vishalakshi and its courier receipt, dated 16-08-2011. Ex.W11 is the copy of the minutes of enquiry proceedings, dated 18 -08 -2 011 . Ex.W1 2 is the co py of the letter of K. Vishalakshi and its postal cover, dated 24-08-2011. These documents would reveal the fact that in the enquiry, the petitioner has made a representation to the respondent permitting him to engage his co-worker to assist in the enq uir y o n 15-07-2011 and has objected for the domestic enquiry on 26-07-2011 and it is also learnt from Ex.W10 and Ex.Wll that petitioner has sent a legal notice to Visalatchi on 16-08-2011 and the said Visalatchi has been receiving the notice and sent a reply on 24-08-2011 stating that it is not true that she has made complaint against the petitioner and that she has not made any complaint to the respondent management or to the anybody else and that petitioner has behaved with her only as a brother and as a co-worker and he has not committed any misbehavior as alleged by the respondent and it is also informed by Visalatchi to the respondent through Factory Manager that she has not made any complaint against petitioner and particularly asking the management that not to utilise such poor female worker to take any revenge against the petitioner.
dispute before the Conciliation Officer wherein, the
respondent management has filed a counter on 15-07-2013 and Cconciliation Officer has sent a conciliation
failure report to the Government on 27-09-2013 .
12. On the other hand, the H.R. Manager of the
respondent establishment was examined as RW1 and she has denied all the averments in the claim statement
in his evidence and she has deposed that as per the circular on 21-07-2000, the Labour Commissioner of
Puducherry has directed to incorporate specific clause in the standing orders regarding prevention of sexual
harassment in work place and the same was complied by the company after giving due notice to all the
workers and the trade unions and that duty is cast upon them to prevent or deter commission of acts or even
an attempt to commit any act of sexual harassment against women workers and it is also published in the
notice-board on 29-03-2008 and it is also informed to all the workers that a complaint regarding sexual
harassment can be lodged either orally or in writing with Nafeesa Begam and it is the further evidence of
the RW1 that one Chidambaram one of the employee lodged a written complaint with the management on
24-06-2011 stating that the petitioner had been sexually harassing Visalatchi and Karunajothi in talc
plant during working hours and based on the complaint 11. Further, Ex.Wl3 is the copy of the minutes of the enquiry proceedings, dated 27-08-2011. Ex.W14 is the copy of the petitioner's objection letter, dated 05-09-2011. Ex.Wl5 is the copy of the petitioner's objection letter to enquiry, dated 05-09-2011. Ex.W16 is the copy of the minutes of enquiry proceedings, dated 05-09-2011. Ex.Wl7 is the copy of the enquiry report, dated 29-09-2011. Ex.Wl8 is the copy of the show cause notice issued to the petitioner by the respondent, dated 30-09-2011. Ex.Wl9 is the copy of the petitioner's explanation to enquiry report, dated 17-10-2011. Ex.W20 is the copy of the petitioner's letter to respondent, dated 17-10-2011. Ex.W 2 1 is the co p y o f t he r es p o nd en t o r d e r to conduct fresh enquiry, dated 07-05-2012. Ex.W22 is the copy of the Enquiry Officer notice, dated 04-06-2012. Ex.W23 is the copy of the minutes of enquiry proceedings, dated 09-06-2012. Ex.W24 is the copy of the petitioner's objection to Enquiry Officer and its courier receipt, dated 09-06-2012. Ex.W25 is the copy of the minutes of enquiry proceedings, dated 19-06-2012. Ex.W26 is the copy of the petitioner's representation to respondent and its courier receipt, dated 26-06-2012. Ex.W27 is the copy of the respondent show cause notice to the petitioner, dated 19-04-2013. Ex.W28 is the copy of the second enquiry report, dated 10-04-2013. Ex.W29 is the copy of the petitioner 's termination28 8 LA GAZETTE DE L'ETAT [27 February 2018 preliminary enquiry was conducted by Nafeesa Begam, who had personally enquired the victims Visalatchi and Karunajothi on 29-06-2011 and 30-06-2011, and also
enquired the complainant Chidambaran and submitted
the preliminary report that the victims Visalatchi and
Karunajothi were sexually harassed by the petitioner
and the written letters given by Visalatchi and
Karunajothi gives specific details of the nature of
harassment done by the petitioner and that both
Visalatchi and Karunajothi has not attended duty from
30-06-2011 and 01-07-2011 onwards and the
preliminary enquiry report of the Nafeesa Begam who
has personally examined the victims revealed that she
had noticed the demeanour of both victims and found
truth and honesty in their statements and based on the
report the charge-sheet was issued to the petitioner on
02-07-2011 in Tamil and English informing him about
the sexual harassment complaint and possibility of
unwanted publicity of sexual harassment through the
contents of charge-sheet the names of the victims and
specific nature of harassment was not mentioned in the
charge-sheet and charge-sheet was issued to the
petitioner on 02-07-2011 for which the petitioner has
submitted a reply on 09-07-2011 which was not
satisfactory and hence, an independent lady Enquiry
Officer was appointed by the company who issued
notice to the parties fixing the date of enquiry on
26-07-2011 and lady Manager by name Ms. Vidya
Venkatraman was appointed as Presenting Officer on
behalf of the management and petitioner also made
requests choosing one Ethiraj as defence assistant
which was permitted by the Enquiry Officer and
Enquiry Officer has given maximum opportunities to
the petitioner to cross examine the management
witness and to file the documents and list of witnesses
and file his version in his defence which were not
utilised by the petitioner and he tried to delay the
proceedings on some count or the other and on 05-09-2011
the petitioner has produced certain documents and on
the basis of documents, the petitioner refused to
participate further in enquiry proceedings and
requested to close the proceedings and that Enquiry
Officer received all the documents filed by the
petitioner and marked them as exhibits and thereafter,
the Enquiry Officer requested the petitioner to cross
examine the management witness but, the same was
refused by the petitioner and to participate further in
the enquiry and that therefore, the Enquiry Officer has
closed the enquiry proceedings and submitted the
13. In support of their case, the respondent management has exhibited Ex.Rl to Ex.R21. Ex.Rl is the copy of the letter, dated 24-05-2001, extract of certified standing orders of respondent company incorporation clause on Prevention of sexual harassment of Women in workplace as per the circular No.4924/94/LAB/AIL/L, dated 21-07-2000. Ex.R2 is the copy of the charge-sheet issued by respondent petitioner and its Tamil translation, dated 02-07-2011. Ex.R3 is the copy of the explanation letter for charge- sheet, dated 02-07-2011 given by the petitioner to the respondent, dated 09-07-2011. Ex.R4 is the copy of the intimation letter sent by the Enquiry Officer to petitioner intimating time and place of enquiry proceedings, dated 15-07-2011. Ex.R5 is the copy of the letter, dated 26-07-2011, given by petitioner to Enquiry Officer seeking Mr. Yathiraj as defence assistant for enquiry proceeding along with his objection for charge-sheet dated 02-07-2011. Ex.R6 is the copy of the enquiry proceedings conducted by the Enquiry Officer on various dates along with the exhibits marked by the r esp o ndent and p etitio ner, dated 26-07-2011, 28-07-2011, 18-08-2011, 27-08-2011, 05-09-2011. Ex.R7 is the copy of the enquiry report along with covering letter sent by the respondent to the petitioner, dated 30-09-2011. Ex.R8 is the copy of the objection letter for enquiry report given by the petitioner to the respondent, dated 17-10-2011. Ex.R9 is the copy of the letter sent by the respondent to Enquiry Officer to reopen the enquiry proceedings, dated 07-05-2012. Ex.R10 is the copy of the intimation letter sent by the Enquiry Officer to petitioner about reopening of enquiry proceedings, dated 04-06-2012. Ex.R11 is the copy of the enquiry proceedings conducted by the Enquiry Officer on various dates along with explanation given by the petitioner on 09-06-2012, 19-06-2012, 26-06-2012. Ex.R12 is the copy of the show cause notice along with enquiry report, dated 10-04-2013 sent to petitioner and its AD card, dated 19-04-2013. Ex.R13 is the copy of the dismissal order of the petitioner along with postal track slip, dated 04-05-2013. Ex.R14 is the copy of the letter of authorisation, dated 11-01-2016. Ex.R15 is the copy of the advice letter for unauthorised absenteeism of petitioner for 69 days in 2008, dated 28-01-2009. Ex.R16 is the copy of the advice letter for unauthorised absenteeism of petitioner for 29.5 days from January to June, 2009, dated 19-08-2009. Ex.R17 is the copy of the document showing counseling done by respondent to petitioner for chronic absenteeism, dated 21-01-2010. Ex.R18 is the copy of the warning letter issued by the respondent to petitioner for his unauthorized absenteeism for report on 29-09-2011.
27 February 2018] LA GAZETTE DE L'ETAT 28963 days in 2009, dated 12-05-2010. Ex.Rl9 is the copy of the shop-floor indiscipline counseling done by the respondent to petitioner, dated 05-06-2010.
Ex.R20 is the copy of the punishment order 3 days issued by the respondent to petitioner for his unauthorised absenteeism for 59.5 days from 1st Jan to 30th June, 2010, dated 13-12-2010. Ex.R21 is the copy of the advice letter issued by the respondent to petitioner for his unauthorised absenteeism for 61.5 days from Jan-June 2011, dated 01-08-2011.
14. From the above documents, the enquiry report was exhibited as Ex.R7 would disclose the fact that in the domestic enquiry the alleged victims Visalatchi and Karunajothi have not been examined as witnesses and they have not appeared before the Enquiry Officer and they have not been summoned by the Enquiry Officer and they did not say anything against the petitioner while so, two witnesses have been examined, one is Nafeesa Begam who alleged to have been enquired the two victims and another is N.M. Chidhambaram who has stated before the Enquiry Officer that one Dhanusu has informed the above facts to him and he has made a complaint before the management. The Evidence of N.M. Chidhambaram before the Enquiry Officer mentioned in the enquiry report runs as follows :
➢ • ▪ ▪ ➢ ➢ S. TVV ➢ ➢ ▪ ➢ ▪ ➢ ▪ ➢ ➢▪ • ▪ ▪ ↔ ▪ ➢ ➢ ➢ ➢ ▪ ▪ ▪ ➢ ➢ ➢ ➢ ➢ ▪ ➢ ➢ ➢ ▪ ▪➢▪ ➢ ➢ • ➢ • ▪ ➢ ▪ • ▪ ➢ ➢ ➢ ▪ ➢ ➢ ▪ ➢ ➢ ➢ ➢ ➢ ➢ ▪ ▪➢▪ ▪ ➢ ➢
It is learnt from the above evidence that on the said alleged date of occurrence on 24-06-2011, the petitioner was working at machine section while the said Dhanusu was working at Production Department and that the complainant Chidhambaram was asked the said Dhanusu that how the said occurrence was known to said Dhanusu and that therefore, from the above statement of Chidhambaram, it is clear that Dhanusu is also not an occurrence witness and Chidhambaram is also not an occurrence witness and further, it is clear from the above evidence that Dhanusu and Chidhambaram do not know about anything directly regarding the occurrence and the said Dhanusu who alleged to have hear the incident from the victims has also not been examined before the Enquiry Officer.
Further, Chidhambaram who has heard the incident from Dhanusu alone has examined as witness on the side of the respondent in the domestic enquiry and therefore, his evidence is not only hear-say evidence but, also a third party evidence who heard the incident from Dhanusu, the hear-say witness to the occurrence.
15. Admittedly, in this case the Enquiry Officer has filed two enquiry reports one is exhibited as Ex.W17 and another is exhibited as Ex.W28. The first enquiry report was submitted on 29-09-2011 and the second enquiry report was submitted on 10-04-2013. On the objection of the petitioner alone the second enquiry was commenced even in the second enquiry, the respondent management had not enquired anybody else.
It is alleged by the respondent establishment that they have offered opportunities to the petitioner workman to putforth his case. The second enquiry report would reveal the fact that no witness was examined and no further evidence was taken by the Enquiry Officer and29 0 LA GAZETTE DE L'ETAT [27 February 2018 above said Nafeesa Begam to the management and the same is not denied by the respondent management and furthermore, no complaint or copy of other details has been furnished to the petitioner before getting explanation from the petitioner.
the said second enquiry report does not say about the fact that why victims have not been summoned by the Enquiry Officer and why the respondent management has not produced the victims as the witnesses before the Enquiry Officer. Without the evidence of the victims, the alleged sexual harassment cannot be proved against the petitioner. Furthermore, the second enquiry was conducted about an year after the occurrence and furthermore, no explanation was putforth by the respondent establishment that though the alleged occurrence is taken place on 24-06-2011, why no steps were taken either by the respondent management or by the victims to make a complaint before the Police and even no memo was issued to him till 02-07-2011 that is after one week of the alleged occurrence.
17. Furthermore, the Enquiry Officer does not consider the objection of the petitioner that since, the victim has given a letter alleging that no incident has happened as alleged in the charge-sheet and to stop the enquiry, has continued the enquiry and has conducted the enquiry and submitted the report to the management and even thereafter, when the enquiry was re-opened on the objection of the petitioner, no witness was examined and no person was enquired and no exhibits were marked and without conducting the above, the Enquiry Officer has submitted the second enquiry report would go to show that Enquiry Officer has not conducted the enquiry in a fair manner and violating the principles of natural justice by without giving sufficient opportunities to the petitioner and furthermore, Ex.P3 charge-sheet would go to show that the petitioner was suspended from service on the same day on 02-07-2011. Though, the petitioner was suspended from service he was not granted any subsistence allowance for the suspension period and the petitioner was compelled to face the enquiry even without the subsistence allowance is also against the principles of natural justice and that therefore, the findings of the Enquiry Officer without giving opportunity to the petitioner and without examining the persons who witnessed the occurrence is totally unsustainable and on the foot of the unsustainable evidence, the Enquiry Officer has submitted the report that the charges were proved and as such, the domestic enquiry conducted by the respondent management through the Enquiry Officer is not a valid one and the order of termination issued by the respondent management on the foot of the said enquiry report is also unsustainable and illegal and that therefore, it can be held that the industrial dispute raised by the petitioner against the respondent management over his non-employment is justified and as such the petitioner is entitled for reinstatement as claimed by him.
18. As this Court has decided that industrial dispute raised by the petitioner against the respondent over non-employment is justified, it is to be decided whether the petitioner is entitled for backwages as claimed by him. There is no evidence that the said workman is working so far in any other industry and that there is no proof exhibited before this Court that he is working anywhere else. The respondent has not proved that the petitioner has earned income after his 16. Furthermore, the occurrence witness who has witnessed the occurrence also has not been examined by the Enquiry Officer and the statement of Nafeesa Begam is only hear-say evidence and her evidence is not a direct one and she is not a witness to the occurrence and that therefore, the findings of the Enquiry Officer only of hear-say evidence of the person and the person who conducted the preliminary enquiry is not at all sufficient to hold that the charges were proved since none of the witnesses are the occurrence witnesses to say about the actual occurrence. Further, the alleged victim Visalatchi had denied the occurrence and had sent a letter to the petitioner as well as to the respondent management stating that no such occurrence was happened on the said day and that therefore, the above facts would create a doubt over the case of the respondent and as such there is no prima facie case in the case of the respondent that petitioner has committed sexual harassment to the victims and it is an admitted fact that between the respondent establishment and the workers 18(1) settlement was entered for wage revision and office bearers of the union and some other workers including the petitioner have not signed the said 18(1) settlement and they have raised the industrial dispute before the Conciliation Officer for wage revision and as the petitioner is the active participant of the union activities, the respondent management might have made some false complaints or allegations to remove him from service and further, in the domestic enquiry though the petitioner has asked for Tamil version of the documents which was refused by the Enquiry Officer and the respondent establishment to furnish the same and furthermore, the petitioner was not furnished any preliminary report submitted by the27 February 2018] LA GAZETTE DE L'ETAT 291 termination. However, the petitioner workman could have served at anywhere else after his termination. Considering the above circumstances, this Court decides that the petitioner is entitled only for 30% back wages with continuity of service and other attendant benefits.
19. In the result, the petition is allowed by holding that the industrial dispute raised by the petitioner a g a i n s t t h e r e s p o n d e n t m a n a g e m e n t o v e r h i s non-employment is justified by declaring the termination of service of the petitioner from the respondent establishment is illegal and Award is passed directing the respondent management to reinstate the petitioner in service within one month from the date of this order and further directed the respondent management 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 16th day of November, 2017.
G. THANENDRAN, Presiding Officer, Industrial Tribunal, Puducherry.
Ex.W6 — 15-07-2011—Copy of the petitioner 's representation to the respondent to engage his co-worker to assist him in enquiry.
Ex.W7 — 25-07-2011—Copy of the minutes of
enquiry proceedings.
Ex.W8 — 26-07-2011—Copy of the petitioner's objection over domestic enquiry.
Ex.W9 — 28-07-2011—Copy of the minutes of
enquiry proceedings.
Ex.Wl0 — 16.08.2011— Copy of the petitioner 's legal notice to K.Vishalakshi and its courier receipt.
Ex.Wll — 18.08.2011— Copy of the minutes of
enquiry proceedings.
Ex.W12 — 24.08.2011— C o p y o f t h e l e t t e r o f K.Vishalakshi and its postal cover.
Ex.Wl3 — 27-08-2011—Copy of the minutes of the enquiry proceedings.
Ex.W14 — 05-09-2011— Copy of the petitioner's
objection letter.
List of petitioner's witness:
WW.1—09-12-2015 — S. Sivaprakash Ex.W15 — 05-09-2011—Copy of the petitioner's objection letter to enquiry.
List of petitioner's exhibits:
Ex.Wl — 26-06-2002—Copy of the offer of employment & Probation of the petitioner.
Ex.W2 — 29-10-2002—Copy of the confirmation
order of the petitioner.
Ex.W3 — 24-05-2001—Copy of the respondent letter to the Commissioner and the copy of the relevant portion of standing order regarding prevention of sexual harassment of women in work place.
Ex.W4 — 02-07-2011—Copy of the charge-sheet issued to the petitioner.
Ex.W5 — 09-07-2011—Copy of the explanation given by the petitioner to the charge-sheet.
Ex.W16 — 05-09-2011—Copy of the minutes of
enquiry proceedings.
Ex.Wl7 — 29-09-2011—Copy of the enquiry
report.
Ex.Wl8 — 30-09-2011—Copy of the show cause notice issued to the petitioner by the respondent.
Ex.W19 — 17-10-2011—Copy of the petitioner 's explanation to enquiry report.
Ex.W20 — 17-10-2011—Copy of the petitioner's
letter to respondent.
Ex.W21 — 07-05-2012—Copy of the respondent order to conduct fresh enquiry.
Ex.W22 — 04-06-2012—Copy of the Enquiry
Officer notice.
29 2 LA GAZETTE DE L'ETAT [27 February 2018Ex.W23 — 09-06-2012—Copy of the minutes of
enquiry proceedings.
Ex.W24 — 09-06-2012—Copy of the petitioner's objection to Enquiry Officer and its courier receipt.
Ex.W25 — 19-06-2012—Copy of the minutes of
enquiry proceedings.
Ex.W26 — 26-06-2012—Copy of the petitioner's r e p r e s e n t a t i o n t o respondent and its courier receipt.
Ex.W27 — 19-04-2013—Copy of the respondent show cause notice to the petitioner.
Ex.W28 — 10-04-2013—Copy of the second
enquiry report.
Ex.W29 — 04-05-2013—Copy of the petitioner's
termination order.
Ex.W30 — 13-05-2013—Copy of the claim statement filed by the petitioner before the Conciliation Officer.
Ex.W31 — 15-07-2013—Copy of the counter
filed by the respondent.
Ex.W32 — 27-09-2013—Copy of the conciliation
failure report.
Ex.R4 — 15-07-2011— Copy of the intimation letter sent by the Enquiry Officer to petitioner intimating time and place of enquiry proceedings.
Ex.R5 — 26-07-2011— Copy of the letter given by petitioner to Enquiry Officer seeking Mr. Yathiraj as defence assistant for enquiry proceeding along with his objection for charge- sheet.
Ex.R6 — 26-07-2011— C o p y o f t h e e n q u i r y 28-07-2011 p r o cee d ings co nd ucted 18-08-2011 b y th e En q u ir y Of fi ce r 27-08-2011 o n vario us d ates along 05-09-2011 with the exhibits marked by the respondent and petitioner.
Ex.R7 — 30-09-2011— Copy of the enquiry report along with covering letter sent by the respondent to the petitioner.
Ex.R8 — 17-10-2011— Copy of the objection letter for enquiry report given by the petitioner to the respondent.
List of respondent's witness:
RW.1 — 18-03-2016 — Reshma Jacob List of respondent's exhibits:
Ex.Rl — 24-05-2001— Copy of the letter, extract of certified standing orders of respondent company incorporation clause on Prevention of Sexual Harassment of Women in Workplace as per the circular No. 4924/94/Lab./AIL/L., dated 21-07-2000.
Ex.R2 — 02-07-2011— Copy of the charge-sheet issued by respondent to petitioner and its Tamil translation.
Ex.R3 — 09-07-2011— Copy of the explanation letter for charge-sheet given by the petitioner to the respondent.
Ex.R9 — 07-05-2012— Copy of the letter sent by the respondent to Enquiry Officer to reopen the enquiry proceedings.
Ex.R10 — 04-06-2012— Copy of the intimation letter sent by the Enquiry Officer to petitioner about reopening of enquiry proceedings.
Ex.Rll — 09-06-2012— C o p y o f t h e e n q u i r y 19-06-2012 proceedings conducted 26-06-2012 by th e En q u i r y Of fi ce r o n various dates along with explanation given by the petitioner.
Ex.R12 — 19-04-2013— Copy of the show cause notice along with enquiry report, dated 10-04-2013 sent to petitioner and its AD card.
27 February 2018] LA GAZETTE DE L'ETAT 293GOVERNMENT OF PUDUCHERRY LABOUR DEPARTMENT
Ex.R13 — 04-05-2013— Copy of the dismissal order of the petitioner along with postal track slip.
(G.O. Rt. No. 17/AIL/Lab./T/2018,
Puducherry, dated 8th February 2018)
Ex.R14 — 11-01-2016— Copy of the letter of
authorisation.
Ex.Rl5 — 28-01-2009— Copy of the advice letter for u n a u t h o r i s e d absenteeism of petitioner for 69 days in 2008.
Ex.Rl6 — 19-08-2009— Copy of the advice letter for unauthorised absenteeism of petitioner for 29.5 days from January to June, 2009.
Ex.Rl7 — 21-01-2010— Copy of the document showing counseling done by respondent to petitioner for chronic absenteeism.
Ex.Rl8 — 12-05-2010— Copy of the warning letter issued by the respondon: to petitioner for his unauthorised absenteeism for 63 days in 2009.
Ex.R19 — 05-06-2010— Copy of the shop-floor indiscipline counseling done by, the respondent to petitioner.
Ex.R20 — 13-12-2010— Copy of the punishment order 3 days issued by the respondent to petitioner for his unauthorised absenteeism for 59.5 days from 1st January to 30th June, 2010.
Ex.R21 — 01-08-2011— Copy of the advice letter issued by the respondent to petitioner for his unauthorised absenteeism for 61.5 days from January-June 2011.
NOTIFICATION
Whereas, the Government is of the opinion that an industrial dispute has arisen between the management of M/s. Adhi Sakthi Project Private Limited, Kothapurinatham, Puducherry and Thiru B. Lakshmi Narayanan, Reddiyarpalayam, Pud ucherry, over non-employment in respect of the matter mentioned in the Annexure to this order;
And whereas, in the opinion of the Government, it is necessary to refer the said dispute for adjudication;
Now, therefore, by virtue of the authority delegated vide G.O. Ms. No. 20/91/Lab./L, dated 23-5-1991 of the Labour Department, Puducherry to exercise the powers conferred by clause (c) of sub-section (1) of section 10 of the Industrial Disputes Act, 1947 (Central Act XIV of 1947), it is hereby directed by the Secretary to Government (Labour) that the said dispute be referred to the Labour Court, Puducherry for adjudication. The Labour Court, Puducherry shall submit the Award within 3 months from the date of issue of reference as stipulated under sub-section (2-A) of section 10 of the Industrial Disputes Act, 1947 and in accordance with rule 10-B of the Industrial Disputes (Central) Rules, 1957. The party raising the dispute shall file a statement of claim complete with relevant documents, list of reliance and witnesses to the Labour Court, Puducherry within 15 days of the receipt of the order of reference and also forward a copy of such statement to each one of the opposite parties involved in the dispute.
ANNEXURE
(a) Whether the dispute raised by the petitioner Thiru B. Lakshmi Narayanan, S/o. Balasundaram, residing at No. 44, Kamban Nagar, 2nd Cross Street, Reddiyarpalayam, Puducherry against the management of M/s. Adhi Sakthi Project Private Limited, R.S. No. 40/9, Near Wipro Computers, Earikarai Road, Thiruvandarkoil, Kothapurinatham, Puducherry, over non-employment is justifiable or not? If justified, what is the relief entitled to?
(b) To compute the relief if any, awarded in terms of money if, it can be so computed?
(By order)
S. MOUTTOULINGAM,
G. THANENDRAN, Presiding Officer, Industrial Tribunal, Puducherry.
Under Secretary to Government (Labour).