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10 {
No.
15
Poudouchéry
Mardi
10
Avril
2018 (20 Chaitra 1940)
No.
Puducherry
Tuesday
10th
April
2018
470
LA GAZETTE DE L’ETAT
[10 April 2018
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 13/Lab./AIL/T/2018
Puducherry, dated 5th Feburary 2018)
NOTIFICATION
Whereas, an Award in I.D (L) No. 30/2014, dated
27-12-2017 of the Labour Court, Puducherry in respect
of the industrial dispute between Management
of
M/s. Pondicherry Institute of Medical Sciences,
Puducherry–605 014 and N. Senthilkumar, Puducherry,
over his 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.
Wednesday, the 27th day of December, 2017
I.D. (L) No. 30/2014
N. Senthilkumar,
No. 26C, Pudu Nagar,
(Near Angalamman Koil Temple),
Chinnakalapet, Puducherry.
. . Petitioner
Versus
The Managing Director,
M/s. Pondicherry Institute of
Medical Sciences,
Kalapet, Puducherry.
Puducherry-605 014.
. . Respondent
This industrial dispute coming on 14-12-2017 before
me for final hearing in the presence of Tvl. S. Nagarajan
and A. P. Ilangovan, Advocates for the petitioner and
Tvl. L. Sathish, T. Pravin, S.Velmurugan, V. Veeraragavan
and E. Karthik, 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. 78/AIL/Lab./J/2014,
dated 02-05-2014 for adjudicating the following:-
(i) Whether the industrial dispute raised by the
petitioner Thiru N. Senthilkumar against the
management of M/s. Pondicherry Institute of
Medical Sciences, Kalapet, Puducherry, over his
non-employment is justified? If, justified what
relief he is entitled to?
(ii) To compute the relief if any, awarded in
terms of money if, it can be so computed?
2. The averments in the claim statement of the
petitioner, in brief, are as follows.
(i) It is stated that the petitioner has joined as
Hospital Attendant in the respondent management of
Pondicherry Institute of Medical Sciences (PIMS) on
17-01-2006 and the said management confirmed the
service of the petitioner as regular employee on 01-09-2009
(with effect from 01-08-2009) with Basic Pay ` 2,050
and along with H.R.A., DA., Food allowance, Washing
Allowance and Medical Allowance and soon after the
confirmation of the service of the petitioner as regular
employee, the respondent management and in
particular, the then Personal Manager-A. Matthews was
indulged in nefarious activities and atrocities against
the petitioner so as to meet him the loss of
employment and income and in fact, though the
petitioner was appointed as Hospital Attendant from the
day one of the appointment he was inducted and
instructed by the management to look after some sort
of administrative and clerical jobs also then and there
at the whims and fancy of the said Personal Manager
and further, that in fact one Mahendiran was engaged as
Business Development Officer by the management who
actually was engaged in the business of Medical
Insurance covering the patients approach the institute
and during beginning of 2010 the said Personal
Manager was instructed the petitioner with honey
surfaced tongue to assist the said Mahendiran initially
and later with a fabulous hope that the petitioner would
be appointed to the place of said Mahendiran and
accordingly, the petitioner was become a puppet to the
words and promise of said Personal Manager-Matthews
and admittedly the petitioner was imputed for learning
and training at the place of Mahendrian for about a year
and above.
(ii) It is further stated that the petitioner was
despite serving different nature of job against the
initial appointment but, was paid as per appointment to
the job which was so low to the newly imputed job
471
10 April 2018]
LA GAZETTE DE L’ETAT
under the said Mahendiran, however, under the
promiscuous words of the said Personal Manager
Matthews the petitioner had to forbear all the burdens
of the new job in the nature of insurance coverage of
the patients which was far from the actual appointment
of the petitioner and further, the said Mahendiran was
uprooted from the employment by the respondent
management purely out of a discreet plot and wrecking
work pressure during the first quarter of 2011 and the
petitioner was completely and perfectly allowed to
look after the place of said Mahendiran after his quit
to the job with the respondent for and about six months
during 2011 and against the words and promise of the
said Personal Manager Matthews the petitioner was
knocked down the doors of the personal manager to
upkeep his words by way of appoint the petitioner to
the place of said Mahendiran.
(iii) It is further stated that the petitioner was very
shocked to the reaction of the Personal Manager when
the petitioner placed his request to comply as promised
and apart from the shock the Personal Manager's insult
to the petitioner with the rubbish and filthy language
was surprised the petitioner's betray by the said
Personal Manager and within a couple of days of the
above incident the petitioner was transferred from the
Pondicherry Hospital unit to Anaichakuppam Rural
Health Center unit by oral instruction of the Personal
Manager and infact there was no written order of
transfer was made subject to legal formalities
permitted under rules and in fact the petitioner was
forced to accept the transfer order with no other go
and to obey the oral transfer order, the petitioner was
reported duty at the transferred place for nearly three
months, but, with the salary for the post of
Hospital Attendant and further that during December
2011, when the petitioner was tendered a leave letter
for one month leave to the management against very
sick of his father due to chronic alcoholic but, the
respondent management was perfunctorily nodded its
head for the leave but later when the petitioner was
returned to report the duty at the end of January, 2012
he was astonished by the attitude of the management
and also the petitioner was informed by the
management that he himself left the job without proper
sanction of the leave from the management and further
that though the petitioner did his level best to raise his
effort to convince the management by truth but the
management was consistently failed to heard the hue
and cry of the petitioner and however, the respondent
management was assured the petitioner for the
employment but to wait of some time for a sanction
from the top management and accordingly, the
petitioner had to wait for a long time without a say
from the management from time to time and also the
ensured words of the management was made the
petitioner to wait for a plausible recall from the
management and however, the petitioner was with
incessant effort for the continuance of employment
with the respondent management on various times and
to the instruction of the management from time to
time.
(iv) It is further stated that the petitioner had come
to know that all his efforts of approach and wait for the
management recall were ended vain and futile and came
to realize the tactful play of the management to uproot
the service of the petitioner by way of victimization
with the means of unfair labour practice and with no
other go the petitioner was approached the Labour
Officer,
Conciliation by way of complaint,
dated 22-10-2013 to mitigate the solution against the
illegal termination and non-employment and the
petitioner was surprised to know through the reply filed
by the respondent management, dated 30-10-2013 that
the management was scripted charge-memo on 31-01-2012
treating the leave for the period 22-10-2011 to 31-01-2012
as unauthorized absence and thereby abandoned the
service voluntarily and in view of the charge memo a
domestic enquiry was conducted in the absence of the
petitioner by setting ex parte and in pursuance of the
proceeding an order for struck off the name of the
petitioner from the muster roll with effect from 21-05-2012.
(v) It is further stated that the respondent
management has committed unfair labour practice
against the petitioner which are prohibited and
condemned under law and the case of the petitioner is
a complete violation of the natural justice and further
stated that the respondent management has not issued
charge-sheet to the petitioner at any point of time nor
called for and conducted any domestic/disciplinary
enquiry against the petitioner and upon the alleged
charge memo, dated 31-01-2012 and further that the
stand of the respondent management against the
petitioner in respect of service of communication and
alleged
unclaimed
the
communication
are
all
egregious lie and to say so all the papers related to the
charge-memo and other proceedings connected there
with is purely a purported one for the purpose of the
case so as to defeat the right of the petitioner so
protected under the labour laws of India and therefore,
the
petitioner
is
deserved
for
the
relief
of
reinstatement of service with respondent management
with continuity of service and with back wages apart
from the compensation to the sum of Rs.1,00,000 for
the mental agony faced by the petitioner for the period
of loss of income due to non-employment or illegal
termination of service.
472
LA GAZETTE DE L’ETAT
[10 April 2018
3. The brief averments in the counter filed by the
respondent are as follows :
The respondent denied all the averments of the
claim statement filed by the petitioner and stated that
the cause title in the claim petition is wrong as there
is no Managing Director in the respondent institution
and the respondent is headed by Director - Principal
and therefore, the cause title in the claim petition needs
to be suitably amended and further stated that the
petitioner was employed as Office Attendant on 03-01-2007
and ever since then he had not only been habitually
absenting himself without intimation, he had also be
erratic
in
his
behavior,
insubordinate
and
argumentative and even shown lack of integrity in his
employment and inspite of extraordinary leniency
shown towards petitioner, the petitioner once again
remained unauthorisedly absent from 22-12-2011 and
a charge-memo on 31-01-2012 for his unauthorized
absence from to 31-01-2012 and for his past habitual
absenteeism and other grave misconducts and a
charge-memo was sent to the petitioner's last known
two address by registered post which was returned with
endorsements ‘unclaimed’ and ‘partly left and returned
to sender’ respectively and further it sent enquiry
notice, dated 15-02-2012 to petitioner by RPAD
posting the enquiry at 10.00 a.m., on 01-03-2012 and
again both notices were returned with endorsement
‘refused’ and 'partly left and returned to sender' and the
enquiry notice was also affixed on respondent's
notice-board and the refusal of petitioner to receive the
charge-sheet, dated 31-01-2012 and the enquiry notice,
dated 15-02-2012 indicated that he was fully aware of
the contents in those covers and the Enquiry Officer in
his wisdom and as per law deemed the service of
notices to his official address sufficient and he set the
petitioner ex parte on 01-03-2012 and proceeded with
the enquiry and the respondent examined its witnesses
and exhibited documents in support of the charges and
some of the past misconducts and based on the oral and
documentary evidences, the Enquiry Officer gave his
report, finding the petitioner guilty of charges levelled
against him and that the disciplinary authority also
examined charges against petitioner independently and
concurred with enquiry report and therefore, awarded
punishment of dismissal to petitioner vide its order,
dated 21-05-2012 and thereby, the domestic enquiry
was conducted in absolutely fair and impartial manner
and also gave full opportunity to petitioner by sending
registered post at every stage to the addresses for
communication given by the petitioner in his service
records and those notices were refused to be received
by the petitioner because he was fully aware of the
disciplinary proceedings initiated against him and
hence, the Enquiry Officer therefore,
had no other
options but, to proceed against him ex parte and
though the enquiry was conducted ex parte, the
Enquiry Officer has analyzed the documentary and oral
evidences produced before him by respondent
management and gave a reasonable finding based on
admissible evidences and in such circumstances,
strong disciplinary action was warranted and since the
petitioner showed no inclination to improve his
conduct inspite of previous reprimands, the respondent
was forced to impose maximum punishment of
dismissal and prayed this Court to dismiss the claim
petition.
4. In this case, since the petitioner was terminated
from service after the domestic enquiry and the
petitioner has challenged the fairness of the domestic
enquiry this Tribunal has first decided as the
preliminary issue whether the domestic enquiry was
conducted by the Enquiry Officer in accordance with
the principles of natural justice. As, it was already
decided by this Tribunal that the domestic enquiry
conducted by the respondent management is valid and
in accordance with the principles of natural justice, no
oral evidence has been let in and no exhibits has been
marked by either sides in the further enquiry. Both
side arguments were heard.
5. The point for consideration is:
Whether the dispute raised by the petitioner against
the respondent management over his non-employment
is justified or not and if justified, what is the relief
entitled to the petitioner?
6. This reference has been made to this Tribunal to
decide whether the industrial dispute raised by the
petitioner against the respondent management over his
non-employment is justified or not. This Tribunal has
already passed the preliminary Award holding that the
domestic enquiry conducted by the respondent
management against the petitioner is valid and in
accordance with the principles of natural justice. In
such circumstances, it is to be seen whether the
punishment given by the respondent management is
proportionate to the nature of offence. The learned
Counsel appearing for the petitioner argued that though
it was decided by this Tribunal that the domestic
enquiry is valid one in the preliminary Award, the
petitioner has to be given an opportunity to let
evidence on his side to prove the fact that the
domestic enquiry was not properly conducted and
the punishment given by the respondent management
is not proportionate to the nature of the alleged
473
10 April 2018]
LA GAZETTE DE L’ETAT
misconduct of unauthorized absence committed by the
petitioner and that the respondent management ought to
have given minor punishment. In support of his
argument the learned Counsel appearing for the
petitioner has relied upon the Judgment reported in
(2013) 6 SCC 602, wherein, the Hon’ble Supreme
Court has held that.
"......,..26. The proved charges remained only charge
nos. 4 and 6 and in both the cases, the misconduct
seems to be of an administrative nature rather than a
misconduct of a serious nature. It was not the case of
the Department that the appellant had taken the escort
vehicle with him. There was only one vehicle which
was an official vehicle for his use and charge no.6
stood partly proved. In view thereof, the punishment of
compulsory retirement shocks the conscience of the
Court and by no stretch of imagination can it be held
to be proportionate or commensurate to the delinquency
committed by and proved against the appellant.
The only punishment which could be held to be
commensurate to the delinquency was as proposed by
the Government of India to withhold two increments
for one year without cumulative effect. It would have
been appropriate to remand the case to the
disciplinary authority to impose the appropriate
punishment. However, considering the chequered
history of the case and in view of the fact that the
appellant had remained under suspension for 11 months,
suffered the order of dismissal for 19 months and
would retire after reaching the age of superannuation
in December 2013, the facts of the case warrant
that this Court should substitute the punishment of
compulsory retirement to the punishment proposed by
the Union of India i.e., withholding the two increments
for one year without having cumulative effect. ...” and
also relied upon the Judgment reported in Colour-
Chem Limited Vs. A.L.Alspurkar & Ors, wherein, the
Hon'ble Supreme Court has held that,
“........Thus it must be held that the management even
though not guilty of factual victimization was guilty of
legal victimization in the light of the proved facts
which squarely attracted the ratio of the decisions of
this Court in Hind Construction (Supra) and Bharat
Iron, Works (Supra). It is easy to visualize that no
reasonable management could have punished a
delinquent workman who in the late hours of the night
shift by about 03.30 a.m., had gone to sleep keeping
the machine in a working condition especially in the
absence of any gross misconduct reflected by the past
service record, with the extreme penalty of dismissal.
It is also interesting to note that this was a peculiar
case in which the Plant In-charge found during his
surprise visit at 03.30 a.m., in the early hours of the
d awn e n t ir e wo rk fo r c e o f 1 0 ma zd o o r s an d
2 operators like the respondents and the supervisor all
asleep. It is pertinent to note that so far as 10 mazdoors
were concerned they were let off for this very
misconduct by mere warning while the respondents
were dismissed from service. It is of course, true that
the respondents were assigned more responsible duty
as compared to mazdoors, but, in the background of
surrounding circumstances and especially in the light
of their past service record there is no escape from
the conclusion that the punishment of dismissal
imposed on them for such misconduct was grossly and
shockingly disproportionate, as rightly held by the
Labour Court and as confirmed by the revisional Court
and the High Court. By imposing such grossly
disproportionate punishment on the respondents, the
appellant -management had tried to kill the fly with
a sledge hammer. Consequently, it must be held that the
appellant was guilty of unfair labour practice. Such an
Act was squarely covered by clause (a) of Item 1 of
Schedule IV of the Act being legal victimization, if not
factual victimization. The ultimate finding of the
Labour Court about maintainability of the complaint
can be supported on this ground. The second point is
answered in the affirmative against the appellant and in
favour of the respondent - workmen. ...”
7. On the other hand, the learned Counsel appearing
for the respondent management argued that whenever
the Court had decided that the domestic enquiry is a
valid one in the preliminary issue, the Court cannot
permit the petitioner to let any evidence and the Court
has to decide the matter only on the materials available
before this Court and the petitioner cannot be
permitted to let any evidence to disprove the fact that
the domestic enquiry is a valid one. On this aspect the
learned Counsel has relied upon the Judgment reported
in CDJ 2002 APHC 743, wherein, the Hon'ble High
Court of Andhra Pradesh has held that,
".....(6) The Industrial Court, as required under
section 11-A of the Act, in the first instance, dealt
with the question of validity of domestic inquiry held
by the management of Bank of Baroda and by its order,
dated 16-07-1997, as already noticed above, held
that the d o mestic inq uiry is valid and legal.
The application, on which the Industrial Court passed
the impugned order, admittedly, was made subsequent
to that Order. The precise contention of the
Management is that such an application is not
maintainable and the Industrial Court acted without
474
LA GAZETTE DE L’ETAT
[10 April 2018
jurisdiction in allowing the application and permitting
the workman to lead evidence. It is also contended by
Sri. D.V. Sitharama Murthy that the Industrial Court
has completely lost sight of the fact that when it dealt
with the question of validity of the domestic inquiry,
the workman had specifically pleaded before it that his
admission with regard to the charges was secured by
the management of the Bank by making a false promise
and that plea was in fact specifically dealt with by the
learned Industrial Judge and rejected and, therefore,
there was no justification to allow the application to
lead evidence on the same issue.......... But, here is a
case where the Industrial Court itself having
considered the question of validity of the domestic
inquiry has held that the inquiry was valid and legal and
the plea of the workman that his admission with regard
to the charge was obtained by the management by
employing
misrepresentation
and/or
fraud
was
untenable. Therefore, the question is whether in
such fact-situation and particularly in the context of
the finding recorded by the very Industrial Court while
deciding the validity of the domestic enquiry, it is
permissible in law to permit the delinquent workman
again to raise the same plea of misrepresentation
fraud alleged to have been practiced by the
Management in obtaining his admission to the charges
levelled against him by virtue of the power under the
proviso to section 11-A of the Act. In our considered
opinion, such a course was not open to the Industrial
Court. Once domestic inquiry is held to be valid and
regular by virtue of the proviso to section 11-A of the
Act, the Industrial Court has to exercise its discretion
under that section exclusively and only on the basis
of the evidence already on record. That is the clear
intendment and purport of the provisions of the
proviso to section 11-A of the Act......”
Further, the learned Counsel has also relied
upon the Judgment reported in CDJ 1998 SC 099,
wherein the Hon'ble Supreme Court of India has held
that,
“....11. Provisions of the Industrial Disputes Act
were thus amended on the recommendation of the
International Labour Organization and section 11-A
was introduced in the Act by the Parliament, wherein,
it was provided that the Tribunal had not only the
power to set aside the order of dismissal and direct
reinstatement of the workman, it had also the power to
Award lesser punishment. The proviso to section 11-A,
however, provided that the Tribunal would rely only on
the material already on record and shall not take any
fresh evidence.
12. The provisions of section 11-A, specifically the
prohibition contained in the Proviso that the Labour
Court would not take any fresh evidence, came to be
considered by this Court in several cases which we
shall shortly notice but even before the introduction of
section 11-A, this Court in Ritz Theatre Pvt. Ltd.,
Delhi v. Its Workmen, 1962 (2) LLJ 498 : AIR 1963
SC 295 : 1963 (3) SCR 461, laid down that where the
Management relied upon the domestic enquiry in
defending its action, it would be the conclusion that the
enquiry was improper or invalid, it would itself go into
the merits of the case and call upon the parties to lead
evidence.
Evenafter, the introduction of Section 11-A, the
legal position as to the jurisdiction of the Labour
Court or Tribunal to itself decide the merits of
charges on fresh evidence remained unaltered.......,”
From the above-observations of the Hon’ble
Supreme Court and the Hon’ble High Court, it is clear
that whenever the Court has decided that the domestic
enquiry conducted by the respondent management is
valid one, the provision of section 11-A of the Act,
specifically the provision contain in the proviso that
the Labour Court would not take any fresh evidence
and it can decide the case on the basis of the evidence
already on record and that therefore, the contention
raised by the petitioner that the petitioner is entitled
to let fresh evidence after deciding the preliminary
issue that the domestic enquiry is a valid one is not
sustainable.
8. The another contention of the petitioner is that
punishment
of
termination
from
service
for
unauthorized absence is not proportionate and
punishment of dismissal is not justified for the
misconduct of unauthorized absence for certain period.
On the other hand, it is vehemently contended by the
respondent management that unauthorized absence is
not a tolerable misconduct and punishment of
dismissal is not disproportionate for the misconduct
of unauthorized absence. On this aspect the learned
Counsel appearing for the respondent management
argued that the punishment of termination given by the
respondent management for the misconduct of
unauthorized absence committed by the petitioner is
reasonable one and it cannot be said that the
punishment is disproportionate to the charge levelled
against the petitioner. In support of his argument, the
learned Counsel has relied upon the Judgment reported
in (i) CD J 2009 SC 1194, wherein, the Hon’ble
Supreme Court of India has held that,
475
10 April 2018]
LA GAZETTE DE L’ETAT
“The respondent employee has not completed the
service of six years and has been imposed
punishment three times for remaining absent
from duty. On the fourth occasion, when he
remained absent for 10 days without leave, the
disciplinary proceedings were initiated against him.
The show cause notice could not be served upon him
for the reason that he again deserted the LINE and
returned back after 50 days. Therefore, the disciplinary
proceedings could not be concluded expeditiously.
The respondent submitted the reply to the show cause
notice and the material on record reveal that during
the pendency of the enquiry he further deserted the
LINE for 10 days. There is nothing on record to show
any explanation for such repeated misconduct or
absenteeism. The Court/Tribunal must keep in mind
that such indiscipline is intolerable so far as the
disciplined force is concerned. The respondent was a
guard in CISF. No attempt had ever been made at any
stage by the respondent - employee to explain as to
wh a t p re j u d i c e h a s b e e n c a u s e d t o h i m b y
non-furnishing of the enquiry report. No he ever
submitted that such a course has resulted in failure of
justice–More so, the respondent employee had never
denied at any stage that he had not been punished
three times before initiation of the disciplinary
proceedings and deserted the LINE twice evenafter
issuance of the show cause notice in the instant
case.
No explanation could be furnished by the
respondent - employee as under what circumstances he
has not even consider it proper to submit the
application for leave. Rather, the respondent thought
that he had a right to desert the LINE at his sweet will.
It was a case of gross violation of discipline.............”
Further, the learned Counsel has also relied upon
the Judgment reported in (i) CDJ 2007 SC 1306,
wherein the Hon'ble Supreme Court of India has held
that,
“The Labour Court and the High Court were not
justified in directing the reinstatement by interference
with the order of termination. The orders are
accordingly set aside. The order of termination as
passed by the concerned authority stands restored.
The appeal is allowed with no orders as to costs.
.............. So far as the question whether habitual
absenteeism means the gross violation of discipline,
it is relevant to take note of what was stated by this
Court in M/s. Burn & Co. Ltd., V. Their Workmen and
Ors. (Air 1959 SC 529) “There should have been an
application for leave but, Roy thought that he could
claim as a matter of right leave of absence though that
might be without permission and though there might
not be any application for the same. This was gross
violation of discipline. Accordingly, if, the company
had placed him under suspension that was in Order. On
these findings, it seems to us that the Tribunal erred in
holding that it could not endorse the Company's
decision to dispense with the services altogether. In
our opinion, when the Tribunal upheld the Order of
suspension it erred in directing that Roy must be taken
back in his previous post of employment on the pay
last drawn by him before the order of suspension...”.
Further, the learned Counsel has also relied upon
the Judgment reported in (i) CDJ 2007 MHC 3398,
wherein, the Hon’ble High Court of Judicature of
Madras has held that,
“.........This is a classic instance wherein, misplaced
sympathy has been shown by the Labour Court, having
found that the domestic enquiry was conducted in a fair
manner. This practice of showing misplaced sympathy
of generosity or compassionate ground to review the
quantum of punishment is held to be impermissible by
hierarchy of judgments of the Apex Court. It is also
clear that the Apex Court has held that only in cases
where
the
punishment
awarded
is
shockingly
disproportionate to the charge proved, the Court can
interfere to reduce the punishment - On the factual
situation in this case, as found by the Labour Court
itself considering the conduct of the petitioner for
frequently absenting himself, the punishment is not
shocking to the conscience warranting interference in
respect of the quantum of punishment - The Award of
the Labour Court in ordering reinstatement of the
appellant with service benefits, however, without
backwages if, not on proper and sound reasoning as
found by the learned single Judge. In view of the same
the writ appeal fails and the same is dismissed... 10. It
is also relevant to point out that the Supreme Court in
a recent case reported in State of Rajastan and another
Vs. Mohd. Ayub Naz [2006 (1) SCC 589] held that, an
employee who was absented himself for a prolonged
period without prior permission; the decision of the
employer to dismiss him on disciplinary enquiry
cannot be interfered. Further, the Supreme Court has
observed, 9. Absenteeism from Office for a prolonged
period
of
time
without
prior
permission
by
Government Servants has become a principal cause of
indiscipline which has greatly affected various
Government Services. ........”
Further, the learned Counsel has also relied upon
the Judgment reported in (i) CDJ 2005 MHC 1053,
wherein, the Hon’ble High Court of Judicature of
Madras has held that,
476
LA GAZETTE DE L’ETAT
[10 April 2018
“Constitution of India - Article 226 - Service
Disciplinary Proceedings - Unauthorised absence-
Apart from the unauthorized absence, for which
disciplinary proceedings were been initiated, the
disciplinary authority has relied upon the fact that on
previous occasions also the petitioner had remained
unauthorisedly absent. The disciplinary authority had
also considered the fact that there has been several
other punishments imposed upon the petitioner on
numerous occasions and considering all these aspects,
the disciplinary authority had come to the conclusion
that the person was to be dismissed. The Labour Court,
on independent consideration, has also come to the
very same conclusion and has held that the punishment
of dismissal was justified in the peculiar facts and
circumstances of the case. In the absence of any patent
illegality in such orders, it is difficult for the High
Court to come to any different conclusion and to
interfere with the punishment - Apart from the
unauthorized absence of the petitioner for more than a
month on the particular occasion, there was absence
from duty on three occasions and the petitioner
himself was punished for several other misdemeanors.
The facts of the present case being entirely different,
the ration of the aforesaid decision of the Supreme
Court cannot be made applicable .”
Further, the learned Counsel has also relied upon the
Judgment reported in 2010 4 LLJ 245 (Delhi) and also
relied upon the Judgment reported in 2010 3 LLJ 659
(Chat), wherein, the Hon'ble Chattisgarh High Court
has held that,
“....8. Indisputably, the petitioner remained absent
for 127 days from October, 1983 to May, 1984 which
resulted into imposition of minor penalty of reducing
his Basic Pay by one stage from ` 787/- to 769/-.
Thereafter, he remained unauthorizedly absent from
July, 1984 to April, 1985 for 196 days. A show
cause notice was issued to him and during
departmental enquiry, the petitioner admitted his
guilt, thus, it was held that the petitioner remained
u n a u th o s e d l y
ab s e n t
wi t ho u t
r e a s o n a b l e
explanation which resulted into removal from service.
.........11. In Chairman-cum-Managing
D i r e c t o r,
V.S.P. & Amp., others V. Goparaju Sri Prabhakara
hari Babul, relied on by the petitioner, the Supreme
Court observed as under & quot :16. Indisputably, the
respondent was a habitual absentee. He in his
explanation, in answer to the charge-sheet pleaded
guilty admitting the charges. In terms of section 58 of
the Evidence Act, charges having been admitted were
not required to be proved. It was on that premise that
the enquiry proceeding was closed. Before the Enquiry
Officer, he did not submit the explanation of his
mother being ill. He, despite opportunities granted to
report to duty, did not do it. He failed to explain even
his prior conduct. 21. Once it is found that all the
procedural requirements have been complied with, the
Courts would not ordinarily interfere with the quantum
of punishment imposed upon a delinquent employee.
The Superior Court only in some cases may invoke the
doctrine of proportionality. If, the decision of an
employer is found to be within the legal parameters,
the jurisdiction would ordinarily not be invoked when
the misconduct stands proved. (See Sangroid Remedeis
Ltd. V. Union of India.)--. The absence of 196 days
from 1984 to 1985 was not the first instance as even
earlier also, the petitioner remained absent for a
period of 127 days from October, 1983 to May, 1984.
Thus, the petitioner was a habitual absentee. Some
information to the employer does not grant sanction to
an employee to remain absent unauthorisedly without
proper sanction of the employer. The Courts below
have not examined the fact of willful absence but, on
the basis of documents and the facts produced before
this Court as well as before the Courts below, I have no
hesitation in holding that the petitioner remained
willfully unauthorisedly absent from service. ....”
From the above observation of the Hon'ble Supreme
Court and the Hon'ble High Court, it is clear that the
absence without getting leave even for 10 days is not
a tolerable misconduct and if, there is no explanation
would be furnished by the employee under which
circumstances he was unauthorisedly absent from duty,
it is the case of gross violation of discipline.
9. In this case it is learnt from the records that the
petitioner was habitually absent himself without
intimation and he was unauthorisedly absent from
22-10-2011 to 31-01-2012 and he has given an
apology letter admitting his unauthorized absence
on 15-02-2011 stating that there was some family
circumstances for about two months and apart from
that there was complaint from one Ravichandiran
on 07-06-2011 that while he was taking treatment
on 12-05-2011, the petitioner Senthilkumar tortured
him by claiming amount from him and for which a
charge-memo was issued by the respondent management
to the petitioner Senthilkumar on 01-07-2011 and
for which the petitioner has given apology letter
on 05-07-2011 and thereafter, the petitioner was
transferred on 29-07-2011 to the Department of
Community Medicine, Anaichikuppam Rural Health
Center and he was directed to report to Head
of Department, Community Medicine for instructions
477
10 April 2018]
LA GAZETTE DE L’ETAT
but, the petitioner has not reported and has given
resignation after giving one month time on 28-10-2011
and he was absenting himself without any information
from 29-10-2011 for which the charge-memo has
been issued for unauthorized absence from 29-10-2011
to 04-11-2011 for which the petitioner has given letter
to the management stating that there was some family
problem and he could not attend the work and he has
also asked for two months leave and he was absent for
duty from 1st January, 2012 to 31st January, 2012 and
the said period of absence from 29-10-2011 to
21-11-2011 has been treated as loss of pay.
10. Further, it is also learnt from the records that
the petitioner was suspended for 8 days from 22-11-2011
with the warning that any such repetition will be viewed
seriously for which the petitioner has given a letter to
the management admitting the fact that he has not
attend the duty for a month without giving any
intimation to the management and he has given
undertaking that he could not commit such mistake in
future and asking for apology for the misconduct
committed by him and subsequently, he was absenting
himself from duty from 02-12-2011 without any
information and therefore, a charge-memo has been
issued by the Personnel Manager on 06-12-2011 for
the absence from 30-11-2011 to 06-12-2011 and
thereafter, the petitioner was absent for a long time and
hence, the respondent management has issued a
memo on 31-01-2012 and the same was exhibited in
the preliminary enquiry as Ex.R23 and the said memo
runs as follows :
“That you had remained absent from 30-11-2011 to
06-12-2011 without intimation and a charge-memo
dated 06-12-2011 was sent requiring your explanation
as to why your name should not be “struck off” from
the Muster Rolls for abandonment of service as
contemplated under service rule 11-1.7.
That you had submitted exp lanation dated
12-12-2012 accepting your mistake and assuring that
you will not repeat such misconduct.
You were issued order dated 19-12-2011 giving a
last and final opportunity to amend yourself with
a direction to report to the Department of Community
Medicine (ARHC) from 19-12-2011.
As you failed to report, a revised Order dated
21-12-2011 was issued and you were directed to report
to
the
Nursing
Department
from
22-12-2011.
However, the communications were returned by the
postal authorities as “Unclaimed”.
Your past records clearly show that you are in the
habit of frequently absenting yourself.
You are hereby charged for remaining absent from
22-12-2011 to till date (31-01-2012) without any
intimation. You have remained absent once again for
more than 8 continuous working days and you are
liable to have abandoned service and lost your lien on
employment.”
The above-memo would go to show that the
petitioner was even after giving sufficient chances and
warning letters habitually absent unauthorisedly for
more than 50 days and that therefore, it is clearly
established by the respondent management that the
petitioner is a habitual absentee for duties without any
intimation for which domestic enquiry was conducted
and sufficient opportunities were given to the
petitioner in the enquiry and this Court has already
held that the domestic enquiry conducted by the
management is a valid one and that therefore, it is
clearly established by the respondent management that
the petitioner is a habitual absentee from duty often
without any intimation and that therefore, as observed
by the Hon'ble Supreme Court and the Hon'ble High
Court, the unauthorized absence of the petitioner from
duty is intolerable and that therefore, the punishment
of dismissal order passed by the respondent
management is not disproportionate and hence, the
another contention raised by the petitioner is also not
sustainable and therefore, it is to be held that the
industrial dispute raised by the petitioner against the
respondent management over his non-employment is
unjustified and as such, the petition is liable to be
dismissed.
10. In the result, the petition is dismissed and the
industrial dispute raised by the petitioner against the
respondent management over his non-employment is
unjustified. No cost
Dictated to the Stenographer, transcribed by her,
corrected and pronounced by me in the open Court on
this the 27th day of December, 2017.
List of petitioner’s witness:— Nil
List of petitioner’s exhibits: — Nil
List of respondent’s witnesses:— Nil
List of respondent’s exhibits: — Nil
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
478
LA GAZETTE DE L’ETAT
[10 April 2018
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G. O. Rt. No. 14/Lab./AIL/T/2018, dated 5th February 2018)
NOTIFICATION
Whereas, an Award in I.D (T) No.04/2015, dated
26-12-2017 of the Industrial Tribunal, Puducherry in
respect of the Industrial Dispute between the
Management of M/s. Ariyankuppam Commune Panchayat,
Puducherry and Ariyankuppam Commune Panchayat
Workers Union, Puducherry, over granting promotion
based on, experience to their union member Thiru
T. Rajendran 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,
Friday, the 26th day of Docember, 2017
I.D. (T) No. 04/2015
The Secretary,
Ariyankuppam Commune
Panchayat Workers Union,
No. 49, Rodier Mill Street,
Mudaliarpet,
Puducherry-605 004
. . Petitioner
Versus
The Commissioner,
M/s. Ariyankuppam Commune
Panchayat,
Ariyankuppam,
Puducherry-605 007.
. .
Respondents.
This industrial dispute coming on 19-12-2017
before me for final hearing in the presence of
Thiru R.S. Zivanandam, Counsel for the petitioner,
Thiru. B. Sethuraman, Counsel for the respondent and
subsequently the respondent not turn up before this Court
for argument, upon hearing the petitioner, upon perusing
the case records, after having stood over for
consideration till this day, this Court passed the
following:
AWARD
1. This Industrial Dispute has been referred by the
Government as per the G.O.Rt.No.98/AIL/Lab./J/2015,
dated 20-08-2015 for adjudicating the following: -
(a) The relief, if whether the dispute raised by the
Ariyankuppam Commune Panchayat Workers Union
against the management of M/s. Ariyankuppam Commune
Panchayat, Puducherry, over granting promotion based on
experience to their union member Thiru T. Rajendiran is
justified ? If justified, what relief the union is entitled to ?
(b) To compute any awarded in terms of money if, it
can be so computed.
2. The averments in the claim statement of the
petitioner, in brief, are as follows :
The petitioner union is a registered union under the
registrar of trade union in No. 950/95 and the said union
is functioning for the welfare of the workers. The petitioner
union member T. Rajendran was initially appointed as
Sanitary Worker in the year 1993 and discharging his
duties on the satisfaction of the respondent. An official
order No. 5051/2009 was issued on 27-07-2009 by the
respondent to the union member Rajendiran to do assist
the existing plumbers Kathalingam and Manickasamy
under the water supply flying squad and another order
was issued on 17-02-2010 by the respondent to the
union member Rajendiran to do plumber works
independently. Initially, T. Rajendran was appointed as
Sanitary Worker. However, he was assisted to do only
plumbing work from the date of his employment.
He carried out only plumbing work and he never discharges
any duty of Sanitary Worker under respondent
employment. His promotion was not at all considered
from the respondent over a period of 18 years and
hence, he made a demand to fill up the post of plumber
namely, Manickasamy who has superannuated of his
service on December 2011. The plumber post is vacant
from the year 2012. T he trade union member
T. Rajendran made a demand notice on 30-01-2012 with
the respondent for the filling of the vacant post. Again
on 10-02-2012, he made another request of demand for
filling of the post of plumber, however, no positive
reply was received by the said member T. Rajendran.
His cause of promotion was espoused by the union and
made a demand notice on 13-02-2012 for which the
respondent did not care to reply and therefore, the union
raised an industrial dispute with the Labour Officer,
Conciliation and on failure the Government has
referred the industrial dispute to this Court and
therefore prayed this Court to direct the respondent to
appoint the union member T. Rajendran as Plumber by
relaxing the recruitment rules framed.
479
10 April 2018]
LA GAZETTE DE L’ETAT
3. The brief averments in the counter filed by the
respondent are as follows :
The respondent denied all the allegation set out in
the claim statement except those that are specifically
admitted and stated that the claim statement is bad for
non jointer of necessary parties and that the worker
T. Rajendran was appointed as Sanitary Worker in the
year 1993 on Daily Wages basis and was regularied to
the post of Sanitary Worker with effect from 06-03-2002.
On 27-09-2009 and 17-02-2010 an order was issued
to the worker T. Rajendran to assist the Plumber in
addition to his normal duties and no order was issued
to the worker T. Rajendran to do plumbing works
independently. The worker T. Rajendran has submitted
representation to fill up the post of Plumber due to
the vacancy is true. The worker T. Rajendran demand
was not considered since, his promotion was not
eligible to fill up the said post. His demand was
overruled since, the incumbent not fulfilled the
Recruitment Rules. The worker T. Rajendran has not
made demand on 10-02-2012 and 13-02-2012 for the
said post. Filling up the post is only based on
recruitment rules framed by concerned Department and
this respondent was not empowered to oversee the said
rules. All the said 31 workers were appointed on daily
rated service and they were absorbed in the permanent
post in the same category as per approval and order by
the Department of Local Administration and the worker
T. Rajendran is one among them. The procedures
related to relaxation of Recruitment Rules for
appointment, transfer or grant promotion were adopted
only by Local Administrative Department. The proposal
was sent to the Department of Local Administration
for relaxing the Recruitment Rules to fill up the
plumber post to the workman T. Rajendran and one
Kanadasan both working as Sanitary Worker. However,
the concerned Department has not accepted since, as
per Recruitment Rules the appointment is by direct
recruitment. As per Recruitment Rules required
education qualification or post of Plumber was a pass
in VIII standard, Industrial Training Institute certificate
in the trade of Plumber/Fitter which was not satisfied
by the petitioner union member. All the petitioner
union member's grievance has to be rectified necessary
Department has to be impleaded and can seek relief
but not with this respondent and the union member
worker, T. Rajendran has filed a Writ Petition in
W.P. No. 22464 of 2012 before the Hon'ble Madras
High Court against this respondent challenging the
seniority list fixed for sanitary workers which is
pending for disposal.
4. In the course of enquiry on the side of the
petitioner WW1 was examined and Ex.P1 to Ex.P18
were marked and on the side of the respondent RW1
was examined and Ex.R1 & Ex.R2 were marked. Though,
several opportunities were given, the respondent has not
turned up before this Court to putfoth their argument.
Hence, the argument of the respondent was closed and
the case was posted for orders.
5. The point for consideration is:
Whether the dispute raised by the petitioner
union against the respondent Panchayat over granting
promotion based on experience to their union member
Thiru. T. Rajendiran is justified or not and if justified,
what is the relief entitled?
6. Heard. The pleadings of both the parties, the evidence
let in by either sides and the exhibits marked on both sides
are carefully considered. In order to prove their case, the
petitioner union has examined the Secretary of the union
as WW1 and he has deposed that one Rajendran, the
member of the union was working at the respondent
Commune Panchayat as Sanitary Worker from 13-05-1993
and was discharging his duties on the satisfaction of the
respondent and the said Rajendran was directed to
discharge the plumber helper duties from the date of
appointment onwards and his service was confirmed as
Sanitary Worker from 21-03-2002 and on 27-07-2009,
the said Rajendran was transferred to water board flying
squad with direction to assist the existing plumber
Kathalingam and Manickasamy as per the office order in
No.5051/2009 and subsequently, on 17-02-2010 another
office order was passed by the respondent directing the
said Rajendran to do plumbing works independently and
that right from beginning of his appointment the said
Rajendran assisted the plumbing works and he never
discharges any duty of sanitary work and while so in the
month of December, 2011, the Plumber one Manickasamy
was retired and the post was fell vacant and as the said
Rajendran had put in 9 years and 9 months of service as a
confirmed employee and another nearly 9 years of service
as daily rated, he addressed the respondent Commune
Panchayat on 30-01-2012 demanding to consider him in
the vacant post as he is servicing as a plumber in the said
post and he has also written a letter to the Secretary of
the Ariyankuppam Commune Panchayat Workers Union on
10-02-2012 seeking promotion and hence, the union
has raised the industrial dispute before the Labour Officer
(Conciliation) on
27-02-2012 and on failure of
conciliation the Government has made a reference to this
Court to decide the dispute.
7. In support of their case the petitioner union has
exhibited Ex. P1 to Ex. P18. Ex.P1 is the copy of the
service certificate issued by PWD Contractor, dated
18-08-1993. Ex. P2 is the copy of office order for
regularisation of petitioner member, dated 21-03-2002.
Ex.P3 is the copy of minutes of the meeting of the
Departmental Promotion Committee, dated 06-01-2005.
Ex. P4 is the copy of memorandum for the filling up the
post of Electrician, dated 05-01-2005. Ex. P5 & Ex. P6
are the copy of petitions by the union member
T. Rajendran. Ex.P7 is the copy of letter of the petitioner
480
LA GAZETTE DE L’ETAT
[10 April 2018
union to respondent. Ex.P8 is the copy of petition to
Labour Officer (Conciliation) by the petitioner. Ex.P9 is
the copy of RTI reply by respondent raised by union leader
V.S. Abishekam. Ex.P10 is the petition and Ex.P11 is
the copy of petition to Labour Officer (Conciliation) by
the petitioner. Ex. P12 is the letter by the petitioner to
Secretary to Government. Ex. P13 to Ex. P15 are the
office orders of the respondent. Ex. P16 is the copy of
failure report by the Labour Officer (Conciliation).
Ex. P17 is the copy of reference notification. Ex.P18 is
the copy of letter by the respondent to the Director, Local
Administration Department, Puducherry. The oral
evidence of WW1 and exhibits marked on the side of the
petitioner would go to show that the member of the union
Rajendran had been in service from 1993 at the respondent
Commune Panchayat and his service was regularised
on 21-03-2002 and the said Rajendran had made an
application seeking promotion to the respondent
on 30-01-2012 and to the union on 10-02-2012 and that
the union has raised the industrial dispute on 27-02-2012
before the Labour Officer (Conciliation) and the union
has made several communications to the Labour Officer
(Conciliation) and also to the Secretary to Government.
Further, the office orders of the respondent Commune
Panchayat, dated 27-07-2009, 17-02-2010 and
12-02-2015 under Ex. P13 to Ex. P15 would reveal the
fact that workman Rajendran was directed to do the
plumber work from 2009 and the said Rajendran has
discharged the plumber work from the date of his
appointment as a helper and as a Plumber.
8. On the other hand, the respondent Commune
Panchayat has examined RW1 and he has deposed that the
allegation made against the respondent
Commune
Panchayat that they have relaxed the recruitment rules for
31 workers and the said workers were appointed as
permanent workers after the relaxation of recruitment
rules are false and further deposed that all the workers
were appointed on daily rated service and they were
absorbed in the permanent post in the same category as
per approval and order by the Department of Local
Administration and the worker T. Rajendran is one among
them and that they have not empowered to relax the
recruitment rules for appointment, transfer or grant
promotion and all the procedures were adopted by Local
Administrative Department and the proposal was sent to
the Department of Local Administration for relaxing the
recruitment rules to fill up the Plumber post to the
workman T. Rajendran and one Kanadasan both working
as Sanitary Workers and the same was not accepted by
the Department since, as per Recruitment Rules the
appointment can be made only by direct recruitment and
as per Recruitment Rules required education qualification
to the post of Plumber was a pass in VIII standard and must
have completed Industrial Training Institute certificate in
the trade of Plumber / Fitter and the same has not been
satisfied by the petitioner union member Rajendran and
that therefore, the petition has to be dismissed. In support
of their case the respondent has exhibited Ex. Rl and
Ex. R2. Ex. Rl is the copy of recruitment rules. Ex. R2 is
the copy of requisition letter and order of Local
Administration Department.
9.
From the evidence of
RW1, it is clear that the
member of the petitioner union Rajendran had been in
service at the respondent Commune Panchayat as daily
rated Sanitary Worker from the year 1993 and thereafter,
his service was confirmed on 21-03-2002 and the said
Rajendran was a permanent worker and he had doing the
duty of Plumber which are not disputed by the respondent.
The only contention of the respondent
Commune
Panchayat is that they have no power to relax the
recruitrnent rules to give promotion to the post of
Plumber to the petitioner union member Rajendran and
only the Government can relax the recruitment rules. The
respondent witness RW1 has admitted in his evidence that
the workman Rajendran was working as assistant to the
Plumber from the year 2012 and he was directed to do the
assistant plumber work under an office order, dated
27-07-2009 and that Kathalingam and Manickasamy who
were in service as Plumbers have been retired from
service and thereafter, the workman Rajendran was
directed to do the plumber work independently under an
office order, dated 17-02-2010. The evidence of
RW1
in his cross examination runs as follows :
“
481
10 April 2018]
LA GAZETTE DE L’ETAT
Recruitment
Relaxation
Return
Departmental Promotion Committee
Relaxation
Recruitment Rules
Relaxation
Relax
Rule
Relax
Relax
Relax
Relax”
From the above evidence, it is clear that the workman
Rajendran was doing the work of assistant to the plumbers
for some time and after the retirement of the workers
Kathalingam and Manickasamy who were the only
plumbers, the plumbers post are vacant and the said work
were allotted to 4 workers including the member of the
petitioner union Rajendran and out of which two workers
namely, Narayanan and Rathinavelu were not in service and
right now the member of the petitioner union Rajendran
alone is doing the plumber work and he is maintaining the
36 water tanks and 22 pump houses and it is also admitted
by RW1 in his evidence that workman Rajendran alone is
maintaining the 22 pump houses and 36 water tanks which
is an essential service to the public and the respondent
has also sent a requisition to the Director of Department
of Local Administration to relax the Recruitment Rules
to give promotion to the workman Rajendran the member
of the petitioner union but the same was not granted by
the Local Administration Department since, the workman
Rajendran has not completed the Industrial Training
Institute certificate in the trade of Plumber and further,
it is learnt from the above evidence that some of the
workers have been granted relaxation from the
Recruitment Rules and the Recruitment Rules permits
to relax the qualification whenever the worker had
completed 3 years of service in the same post.
10. Admittedly, in this case, the member of the
petitioner union Rajendran had been in service as a
Plumber under an office orders which are exhibited as
Ex. P13 to Ex. P15. It is clear from documents Ex. P13
to Ex. P15 that including the member of the petitioner
union Rajendran four Sanitary Workers have been directed
to do the plumber work under an office order, dated
27-07-2009 and thereafter, the member of the petitioner
union Rajendran was directed to do independent plumber
work with effect from 17-02-2010 in addition to his
sanitary duties and he was also directed to do the work of
plumber in addition to his duties with immediate effect
from 12-02-2015. These documents would go to show
that the member of the petitioner union Rajendran is doing
only the plumber work and further, the evidence of RW1
would reveal the fact that the workman Rajendran has not
been paid salary of the Plumber but, he was doing the
plumber work.
11. Further, it is clear from the evidence of RW1 that
the member of the petitioner union Rajendran is doing
the work of Plumber from the year 2009 and column 7
of Recruitment Rules would permits that whoever work
for more than 3 years in the same Department can be
considered
for
promotion
by
giving
relaxation.
Admittedly, the respondent Commune Panchayat has sent
letter to the Local Administration Department which is
exhibited as Ex. Pl8 seeking an order of approval by
relaxing recruitment rules to fill up the post of Plumber
by giving promotion to the workman Rajendran and
another workman Kanadasan on 26-11-2013 in which
it is stated by the Commissioner of respondent Commune
Panchayat that due to the absence of regular Plumbers
the above said Rajendran and Kanadasan are doing the
plumbing works satisfactorily without any interruption
and any other remarks from public and in which he has
asked to relax the age, educational qualification to
promote them to the post of Plumber as per Recruitment
Rules. Further, it is also revealed from the Recruitment
Rules under Ex. Rl that Recruitment Rules for the post
of Plumber the Government can relax the rules who are
482
LA GAZETTE DE L’ETAT
[10 April 2018
working in the same post not less than 3 years. The member
of the petitioner union Rajendran had been in service
from 2009 as a plumber in the same post and he was
working as a Plumber assistant and Plumber as per office
order by the respondent Commune Panchayat and hence,
relaxation has to be given to the said Rajendran.
12. Furthermore, the only contention of the respondent
Commune Panchayat is that the proposal sent by them to
the Department of Local Administration for relaxing the
Recruitment Rules to fill up the post of Plumber by giving
promotion to workmen Rajendran and Kanadasan has not
been accepted by the said Department as per Recruitment
Rules the Plumbers can only be appointed by direct
recruitment and that the workman Rajendran had no
educational qualification as per rules. However, in this
case, the respondent Commune Panchayat itself has
ordered officially to do the plumber work to the member
of the petitioner union Rajendran from 2009 and he has
been doing the same Plumber work till date. The evidence
of RW1 also disclose the fact that no one is available as a
Plumber except the member of the petitioner union
Rajendran and he alone is working as a Plumber and no
one can be promoted as a Plumber except Rajendran and
Kanadasan since, they are doing plumbing work
continuously for the past 3 years and after the retirement
of Plumbers Kathalingam and Manickasamy, the member
of the petitioner union Rajendran alone is doing the work
of Plumber and maintaining 36 water tanks and 22 pump
houses as a Plumber. Considering the duration of service
rendered by the petitioner union member Rajendran as a
Plumber from the year 2009 and considering the fact that
he has not been paid Plumber salary though, he had been
doing the Plumber work and considering the fact that he
had been in service for about 18 years from 1993 and he
alone is handling the plumbing work after the retirement
of the Plumbers Kathalingam and Manickasamy, he has to
be considered for the appointment of Plumber and he has
to be given promotion by relaxing the Recruitment Rules.
Further, the respondent has not filed any document that
the Government has refused to relax the Recruitment Rules
to the member of the petitioner union Rajendran for giving
promotion and no such order of the Government refusing
to relax the Recruitment Rules is filed before this Court
and that therefore, it is to be held that the industrial dispute
raised by the petitioner union against the respondent
Commune Panchayat over granting promotion based on
experience to their union member T. Rajendiran is justified
and as such the petition is liable to be allowed in respect
of promotion. But, in respect of monetary benefits as
referred in the reference, the petitioner union has not
claimed any monetary loses in the claim petition in respect
of union member Rajendran and no evidence has been let
in on that aspect and as such, the union member Rajendran
is not entitled for any monetary benefits .
13. In the result, the petition is allowed and the
Industrial dispute raised by the petitioner union against
the respondent Commune Panchayat over granting
promotion based on experience to their union member
T. Rajendiran is justified and Award is passed directing
the respondent Commune Panchayat to give promotion
to the said Rajendran to the post of Plumber by relaxing
the Recruitment Rules. No cost.
Dictated to the Stenographer, transcribed by her,
corrected and pronounced by me in the open Court on
this the 26th day of December.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum
Labour Court,
Puducherry.
————
List of petitioner’s witness:
WW.1— 25-02-2016 —A. Murugaiyan
List of petitioner’s exhibits:
Ex. P1—18-08-1993— Copy
of
the
service
certificate issued by PWD
Contractor.
Ex. P2— 21-03-2002 — Copy of office order for
regularisation of petitioner
member.
Ex. P3— 06-01-2005 — Copy of minutes of the
meeting of the Departmental
Promotion Committee.
Ex. P4— 05-01-2005 — Copy of memorandum for the
filling up the post of
Electrician.
Ex. P5— 30-01-2012 — Copy of petition by the union
member T. Rajendran.
Ex.P6 — 10-2-2012 — Copy of petition by the union
member T. Rajendran.
Ex.P7 — 13-02-2012 — Copy of letter of the petitioner
union to respondent.
Ex.P8 — 27-02-2012 — Copy of petition to Labour
Officer (Conciliation) by the
petitioner.
Ex. P9— 10-06-2012 — C o p y o f RT I r e p ly b y
respondent raised by union
leader V.S. Abishekam.
Ex. P10 —05-10-2012—Petition
to
Labo ur
Officer (Conciliation) by the
petitioner.
483
10 April 2018]
LA GAZETTE DE L’ETAT
Ex. P11 —21-12-2012— Copy of petition to Labour
Officer (Conciliation) by
the petitioner.
Ex. P12—07-09-2015— Letter by the petitioner to
Secretary to Government.
Ex.P13 —27-07-2009—Office order of the respondent.
Ex. P14 —17-02-2010—Copy of the office order of
the respondent.
Ex. P15—12-02-2015— Office order of the respondent.
Ex. P16—11-12-2014— Copy of failure report by the
Labour
Officer
(Conciliation).
Ex. P17—20-08-2015— Copy
of
reference
notification.
Ex. P18—26-11-2013— Copy of letter by the
respondent to the Director,
Local
Administration
Department, Puducherry.
List of Respondents witness:
RW1 — 03-11-2017 — Ravi
List of Respondents exhibits:
Ex. Rl
— Copy of Recruitment Rules.
Ex. R2— 03-10-2012 — Copy of requisition letter and
order of Local Administration
Department.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum
Labour Court, Puducherry.
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 42/AIL/Lab./T/2018,
Puducherry, dated 19th March 2018)
NOTIFICATION
Whereas, the Government is of the opinion that an
industrial dispute has arisen between the management
of M/s. Abirami Soap Works, Puducherry and
Thiru C. Sellakannu, Sembiyapalayam, Puducherry, 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
T h i r u C . S e l l a k a n n u , S / o . C h i n n a t h a m b i ,
Sembiyapalayam,
Puducherry
against
the
management of M/s. Abirami Soap Works,
Sembiyapalayam, Puducherry, over non-employment
is justified or not? If justified, what relief he is
entitled to?
(b) To compute the relief if any, awarded in
terms of money if, it can be so computed ?
(By order)
S. MOUTTOULINGAM,
Under Secretary to Government (Labour).
————
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 43/AIL/Lab./T/2017,
Puducherry, dated 19th March 2018)
NOTIFICATION
Whereas, the Government is of the opinion that an
industrial dispute has arisen between the management
of M/s. MRF Limited, Puducherry and Purachiyalar
Ambedkar MRF Thozhilalar Sangam (RTU/1718/2013)
School Street, Pallipudupet, Villupuram District,
over non-employment of Thiru A. Mahendiran,
Puducherry in respect of the matter mentioned in the
Annexure to this order;