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.. 564

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Award of the Labour Court

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Notifications du Gouvernement .. 575

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.. 579

Avis d’Adjudications

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Tender Notices

.. 579

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.. 584

Annonces

.. 584

Announcements

.. 584

[ 563 ]

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2018 }

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8 {

No.

19

Poudouchéry

Mardi

8

Mai

2018 (18 Vaisakha 1940)

No.

Puducherry

Tuesday

8th

May

2018

564

LA GAZETTE DE L’ETAT

[8 May 2018

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 36/Lab./AIL/T/2018,

Puducherry, dated 9th March 2018)

NOTIFICATION

Whereas, an Award in in I.D. (L) No. 03/2016,

dated 03-01-2018 of the Labour Court, Puducherry in

respect of the industrial dispute between management

of M/s. Mahatma Gandhi Medical College and Research

Institute, Puducherry and Thiru R. Karthikeyan over his

refusal of employment and non-payment of subsistence

allowance from 10-02-2012 Award of the Labour Court,

Puducherry 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 3rd day of January 2018.

I.D. (L) No. 03/2016

R. Karthikeyan,

No. 7, Kaviyarasu Kannadassan Street,

Mettupalayam,

Puducherry.

. .Petitioner

Versus

The Managing Director,

Mahatma Gandhi Medical College and

Research Institute,

Pillaiyarkuppam,

Puducherry-607 402.

. .Respondent

This industrial dispute coming on 18-12-2017

before me for final hearing in the presence of

Thiru K. Velmurugan, Counsel for the petitioner,

Thiru B. Mohandoss, Counsel for the respondent,

upon hearing both sides, upon perusing the case

records, after having stood over for consideration till

this day, this Court passed the following:

AWARD

1. This industrial dispute has been referred by the

Government as per the G. O. Rt. No. l9/AIL/Lab./T/2016,

dated 30-03-2016 for adjudicating the following:-

(i) Whether the dispute raised by Thiru R. Karthikeyan

against the management of M/s. Mahatma Gandhi

Medical College and Research Institute, Pillaiyarkuppam,

Puducherry over his refusal of employment and

non-payment of subsistence allowance from

10-02-2012 is justified? If justified, what relief the

petitioner 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:

The petitioner was appointed on 18-02-2004 as

Electrician in the respondent management on

consolidated basis with salary of ` 1,800 per month

and he was directed to report duty on 01-03-2004.

From 01-03-2004 the petitioner rendered his

services in a sincere and honest manner without any

blackmark whatsoever to the respondent management.

On 26-09-2006 the respondent management transferred

the petitioner to the CHIP Department (IT Department)

and posted him as Networking and Communication

Technician with effect from 27-09-2006. Abiding

with the order of the respondent management, the

petitioner had discharged his duties as Networking

and Communication Technician to the respondent

management in an unblemished manner. The respondent

management has confirmed the services of the

petitioner on 15-07-2008 and made his post

permanent. The respondent management is an

institution which involves in the administration of

Medical College and Hospital having familiarity in the

Puducherry region with 38 BSNL connections in

which 205 Intercom connections and 150 Networking

points. The petitioner alone is employed in the

Network Department to look after the entire

servicing, wiring, fault rectification works, etc., The

respondent management has not provided any helper

or assistant to the petitioner. The petitioner was

565

8 May 2018]

LA GAZETTE DE L’ETAT

under very high work load and pressure. The

petitioner on many occasions was worked for more

than 12 hours in day without any overtime allowance

in order to rectify the network issues. The respondent

management is having another Medical College by

name Sathyasai Medical College, Thiruporur, Chennai

and during the Medical Council of India inspection,

the petitioner was assigned to work at Chennai for

more than a week during the years 2009 to 2011. The

petitioner is very sincere and honest in doing his

work without taking any unnecessary leave, loss of

pay from the respondent management till the

year 2011. During the year 2011 the petitioner’s

mother health was fallen ill critically and thereby the

petitioner being the sole male member to take care

of his old aged parents availed few days leave during

the period March, 2011 to October, 2011 that too

with proper and prior intimation or permission from

the

respondent

management.

The

respondent

management has issued show cause notice to the

petitioner

on

08-10-2011

calling

upon

his

explanations for his absenteeism during the above

period for which the petitioner has furnished his

detailed reply on 11-10-2011 to the respondent

explaining his family situations which forced him to

avail leave on the aforesaid occasions and also

assured that he will not take any leave on loss of pay

in future. The respondent management through letter,

dated 14-10-2011 dropped all further proceedings

against the petitioner and directed the petitioner to

resume work and thereafter, the petitioner has worked

with the respondent management without availing any

leave or loss of pay. The petitioner has submitted his

leave application on 09-02-2012 to the Head of

Department Mr. Balamugundan seeking leave

on 10-02-2012, under Earned Leave on account of his

personal work. The said leave was duly sanctioned by

the said HOD and hence, the petitioner remained

absent on 10-02-2012. On 10-02-2012 at about 12.10 p.m.,

the HOD Mr. Balamugundan called the petitioner over

phone and informed that suspension order was issued

to him for the leave availed by him on 10-02-2012.

On hearing the said news the petitioner was shocked

and hence, he immediately approached the HOD during

the afternoon i.e., on 10-02-2012 and explained him

about the sanctioned leave. The respondent management

through Personnel Manager without hearing the

words of petitioner, arbitrarily issued suspension

order, dated 10-02-2012 to the petitioner for which

the petitioner submitted his detailed explanation on

15-02-2012 to the Personnel Manager and requested

him to revoke the suspension order. On 13-03-2012

the respondent management through letter informed

the petitioner regarding the appointment of Resident

Medical Officer of the respondent management

Dr. Latchumana Perumal as Enquiry Officer to enquire

into the charges leveled against him and fixed the

hearing on 16-03-2012. No charge-sheet was issued

to the petitioner and his explanation letter, dated

15-02-2012 was not at all considered by the

respondent

management.

On

16-03-2012

the

petitioner attended t h e e n q u i r y p r o c e e d i n g s

b e f o r e t h e R M O Dr. Latchumana Perumal and the

Enquiry Officer simply asked few questions to him

and conducted the enquiry proceedings. No witnesses

were examined. No documents were produced by the

management and nothing was recorded during the

enquiry proceedings. On 02-04-2012 the respondent

management sent transfer order, dated 29-03-2012 to

the petitioner transferring him to Bharathiyar College

of Engineering and Technology, Karaikal by way of

punishment. Since, petitioner is the sole member who

was looking after his sick and old aged parents,

on 03-04-2012 the petitioner met the Personnel

Manager explained his family situation and other

factors and requested him to revoke the transfer order

for which the Personnel Manager told him to give his

written representations so as to discuss with the

Chairman and as such the petitioner has sent his

explanation letter, dated 07-04-2012 to the respondent

management addressing the Personnel Manager.

On 09-05-2012 the petitioner sent his reminder

letter to the respondent management through

registered post. On several occasions whenever the

petitioner approached the Personnel Manager in

person, he replied that he will discuss with the

Chairman and will do favour to the petitioner. Till date

neither the respondent management nor its Personnel

Manager has considered the representations of the

petitioner for the reasons best known to them and did not

provide employment to the petitioner. Hence,

the

petitioner

through letter, dated

15-05-2013

and

29-06-2015 gave representation to

the Labour

Officer (Conciliation), Puducherry to intervene in

this issue and to advise the management to provide

employment and subsistence

allowance to the

petitioner. The respondent management officials after

receipt of the notice from the Labour

Officer

(Conciliation), Puducherry

appeared before the

conciliation enquiry and told that they will discuss

with the Chairman and amicably settle the issue.

Subsequently the respondent management did not turn up.

Since, the Labour Officer (Conciliation), Puducherry

could not reach amicable settlement between the

566

LA GAZETTE DE L’ETAT

[8 May 2018

parties submitted failure report to the Government of

Puducherry and the Government in turn referred the

above industrial dispute for adjudication before this

Court. The act of the respondent management in not

issuing charge-sheet with specific charges against the

petitioner vitiates purported enquiry proceedings

conducted by the respondent management and that the

appointment of RMO Dr. Latchuma Perumal as

Enquiry

Officer who being a pay-roll of the

respondent management is not an independent and

impartial person and the whole enquiry proceedings

conducted by him is vitiated by personal bias which

is against the principle of natural justice “Nemo

judex in Causa Propria” which means that no one

shall be appointed as Judge for his own cause of

action. The whole enquiry is liable to be quashed. The

Enquiry Officer has neither examined any independent

witness nor marked any documents as exhibits.

Though the petitioner has refuted the allegations of

management the Enquiry Officer completed the

enquiry proceedings in the first hearing itself and has

not submitted his enquiry report to the petitioner till date.

The Enquiry Officer has not given fair and proper

opportunity to the petitioner to defend his case and

favoured the management. The proceedings conducted

by the said RMO Dr. Latchuma Perumal cannot be

construed as enquiry proceeding. From the date of

suspension, the respondent management has not given

single pie to the petitioner towards subsistence

allowance

till

date,

despite

several

oral

representations of the petitioner. The punishment

inflicted by the respondent management is very high

and excessive which is against the doctrine of

proportionality.

In

light

of

various

judicial

pronouncements of Hon’ble Apex Court and Labour

jurisprudence the act of the respondent management

in not providing employment to the petitioner is

arbitrary, illegal, invalid and unjust. The petitioner

prayed to direct the respondent management to

reinstate the petitioner in his original employment

with full backwages from 11-02-2012, continuity in

service and all other attendant benefits and to award

compensation of ` 3,00,000 for the mental agony,

hardship suffered by the petitioner due to the

non-employment by the respondent with interest at

18% from the date of petition till date of realization

and to award the cost of this industrial dispute.

3. The brief averments in the counter filed by the

respondent are as follows:

The petitioner was appointed as Electrician on

18-02-2004 on consolidated basis from 01-03-2004

and he was posted as Networking and Communication

Technician with effect from 27-09-2006 and his

service was confirmed by the management. The petitioner

was permitted to avail compensatory off for the

period from February, 2011 to January, 2012. The

petitioner availed leave on loss of pay without

permission from the respondent for 2½ days in

March-2011, 6 days in April-2011, 7 days in

May-2011, 6½ days in June-2011, 5 days in July-2011,

5 days in August-2011, 4½ days in September-2011

and 2 days in October-2011. The petitioner was

un-authorisedly absent for 38 days. The petitioner

was admitted his fault in availing leave in his reply,

dated 11-10-2011 and gave assurance to the respondent,

that in future he would not avail such leave and

therefore, the disciplinary action was not taken

against the petitioner and warning letter was issued on

14-10-2011 stating that in future suitable disciplinary

action would be taken for misconduct. Due to the

communication gap between the IT Department and

Personnel Department and misplacement of the leave

application, the petitioner was given suspension on

10-02-2012 for which the petitioner has given

explanation on 15-02-2012 and that the petitioner has

committed habitual misconduct of committing

unauthorised absence on many earlier occasions and

therefore, the enquiry was conducted by the RMO

Dr. Lakshmana Perumal which was informed to the

petitioner on 13-03-2012 and enquiry report was

submitted on 16-03-2012 by the Enquiry Officer to

the respondent management for further action.

The said enquiry was a preliminary enquiry and hence,

no opinion or finding of guilt on the allegations made

against the petitioner was submitted by the Enquiry

Officer and therefore, no charge-sheet was issued to

the petitioner for the allegations made against the

petitioner. The respondent did not proceed with the

matter further by way of disciplinary proceedings and

the respondent was convinced with the explanation

furnished by the petitioner for the questions put by

the Enquiry Officer in the light of the document

submitted by him in respect of his absence on 10-02-2012

and hence, no charge-sheet was issued to him and no

explanation was called for from him and no pucca

enquiry was conducted and no evidence was adduced

and that therefore, no punishment was imposed on the

567

8 May 2018]

LA GAZETTE DE L’ETAT

petitioner. Since, the petitioner has complaining of

heavy work load for him in the respondent institute

he was transferred to Bharathiyar College of

Engineering and Technology to give leisure work to

him which is the sister concern of Sri Balaji

Educational and Charitable Trust. The transfer order

is only administrative in nature passed by the

respondent depending upon the exigencies of work.

The petitioner after getting the transfer order met

Personnel Manager of the respondent institute

on 03-04-2012 and requested time for joining at

Bharathiyar College of Engineering and Technology,

Karaikal. The time was granted till 09-04-2012 to

report to the transferred place through order wherein

it was stated that failure to obey the order would

amount to grave misconduct. On 07-04-2012 the

petitioner made a representation to revoke the

transfer order and permit him to join duty at

respondent Institute and approached the Conciliation

Officer on 15-05-2013 with his grievance to cancel

the transfer pointing out in his representation that he

has not paid subsistence allowance for the period of

suspension. The respondent passed the order on 19-

03-2014 to the Accounts section for payment of

subsistence allowance of ` 3,842 to the petitioner at

the rate of 50% of wages on his gross salary of

` 4,760 and cheque for ` 3,842 drawn on Indian Bank,

Puducherry Main bearing No. 333948 was given to

the petitioner during conciliation proceedings, but

the same was not accepted by the petitioner. The

petitioner was not terminated from service and as

such the non-employment of the petitioner is only

because of the petitioner’s failure and refusal to

report to duty at the transferred place. Therefore, the

claim statement filed before this Court does not

challenged the validity of the transfer and that

therefore, the claim statement filed by the petitioner

is to be dismissed with costs.

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

petitioner PW.1 was examined and Ex.P1 to Ex.P16

were marked and on the side of the respondent RW.1

was examined and Ex.R1 to Ex.R18 were marked.

5. The point for consideration is:

Whether the dispute raised by the petitioner

against the respondent management over his refusal

of employment and non-payment of subsistence

allowance from 10-02-2012 is justified or not and if,

justified, 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.

7. In order to prove his case the petitioner has

examined himself as PW.1 and it is the evidence of

the PW.1 that on 18-02-2004 he was appointed as

Electrician in the respondent management on

consolidated basis with salary of ` 1,800 per month

and he was directed to report duty on 01-03-2004 and

as such from 01-03-2004 he rendered his services in

a sincere and honest manner without any blackmark

whatsoever to the respondent management and that on

26-09-2006 the respondent management transferred

him to the CHIP Department (IT Department) and

posted him as Networking

and Communication

Technician with effect from 27-09-2006 and that on

15-07-2008

the

respondent

management

has

confirmed his services and made his post permanent

and that during the year 2011 his mother health was

fallen ill critically and thereby he being the sole male

member to take care of his old aged parents availed

few days leave during the period March, 2011 to

October, 2011 that too with proper and prior

intimation or permission from the respondent

management and that the respondent management has

issued show cause notice, dated 08-10-2011 to him

calling upon his explanations for his absenteeism

during the above period for which he has furnished

his detailed

reply,

dated

11-10-2011

to

the

respondent

management explaining his family

situations which forced him to avail leave on the

aforesaid occasions and also assured the respondent

management that he will not take any leave on

loss of pay in future and that on 09-02-2012 he

has submitted his leave application to the Head of

Department Mr. Balamugundan seeking leave on

10-02-2012 under Earned Leave on account of his

personal work and the said leave was duly sanctioned

by the said HOD and hence, he remained absent on

10-02-2012 and that on 10-02-2012 at about 12.10 p.m.,

the HOD Mr. Balamugundan called him over telephone

and informed him that suspension order was issued

to him for the leave availed by him on 10-02-2012

and that he was shocked to hear the above news and

immediately

approached

the

HOD

during

the

afternoon i.e.,

on 10-02-2012 and explained him

about the sanctioned leave and that the respondent

management through Personnel Manager without

hearing

the words of him, arbitrarily issued

suspension order, dated 10-02-2012 to him and that

on 15-02-2012 he submitted his detailed explanation

568

LA GAZETTE DE L’ETAT

[8 May 2018

to the Personnel Manager and requested him to

revoke the suspension

order and that he was

communicated on 13-03-2012 that an Enquiry Officer

has been appointed to enquire into the charges leveled

against him wherein hearing was fixed on 16-03-2012

and that his explanation given on 15-02-2012 was

not at all considered by the respondent management

and

on

16-03-2012

he

attended the enquiry

proceedings before the Enquiry Officer and that the

Enquiry Officer simply asked some questions and

conducted the enquiry proceedings and no witnesses

were examined and no documents were produced by

the management and nothing was recorded during

the enq uiry pro ceed ings and on 02-04-2012 he

was transferred vide order, dated 29-03-2012 to

Bharathiyar College of Engineering and Technology,

Karaikal by way of punishment and that he was looking

after his old aged parents, he submitted a oral

requisition on 03-04-2012 stating his family

situation and other factors to revoke the transfer

order and as per the advice of the Personnel Manager

he submitted a written explanation letter on 07-04-2012

to the respondent management for which no reply has

been sent by the respondent management and hence,

on 09-05-2012 he sent his reminder letter to the

respondent management under registered post and

even then it was not replied by the management and

hence, he raised industrial dispute before the

Conciliation Officer.

8. In support of his evidence PW.1 has exhibited the

Ex.P1 to Ex.P16. Ex.P1 is the copy of the

appointment confirmation of the petitioner issued by

the respondent management. Ex.P2 is the copy of the

posting order

of

the petitioner issued by the

respondent management, dated 26-09-2006. Ex.P3 is

the copy of the confirmation order of the petitioner

issued by the respondent management, dated l5-07-2008,

Ex.P4 is the copy of the show cause notice issued to

the petitioner by the respondent management, dated

08-10-2011. Ex.P5 is the copy of the reply submitted

by the petitioner on 11-10-2011 to the respondent

management. Ex.P6 is the copy of the order issued

by the respondent to the petitioner, dated 14-10-2011.

Ex.P7 is the copy of the suspension order of the

petitioner issued by the respondent management,

dated 10-02-2012. Ex.P8 is the copy of the letter

submitted by the petitioner on 15-02-2012 to

the respondent management. Ex.P9 is the copy of

the application of leave submitted by the petitioner

on 09-02-2012 which was duly sanctioned by

the HOD of respondent management. Ex.P10 is the

copy of the enquiry notice issued by the respondent

management, dated 13-03-2011. Ex.Pll is the copy of

the transfer order of the petitioner issued by the

respondent management, dated 29-03-2012, Ex.P12

is the copy of the letter submitted by the petitioner

on 07-04-2012 to the respondent management.

Ex.P13 is the copy of the letter submitted by the

petitioner

on

09-05-2012

to

the

respondent

management. Ex.P14 is the copy of the letter

submitted by the petitioner on 15-05-2013 to the

Labour Officer (Conciliation), Puducherry. Ex.P15 is

the copy of the letter submitted by the petitioner on

29-06-2015 to the Labour Officer (Conciliation),

Puducherry. Ex.P16 is the copy of the failure report

submitted by the Labour Officer (Conciliation),

Puducherry on 26-10-2015 to the Secretary to

Government (Labour), Puducherry. These documents

would go to show that the petitioner was working at

the respondent establishment from 2004 and his

service was confirmed by the management and he was

suspended from service on 10-02-2012 and he was

given memo for which the petitioner was submitted

his explanation and the same was accepted by the

management and an enquiry was conducted against the

petitioner

and

thereafter

the

petitioner

was

transferred by the respondent management after

getting explanation from him and that the petitioner

has raised the industrial dispute before the

Conciliation Officer which was failed and during

conciliation the Conciliation Officer has advised the

respondent to provide employment to the petitioner

at Mahatma Gandhi Medical College and also to

provide subsistence allowance to the petitioner.

9. On the other hand, in order to prove the case of

the respondent, RW.1 was examined and he has stated

in his evidence that petitioner was appointed as

Electrician on 18-02-2004 and he was posted as

networking and Communication Technician with

effect from 27-09-2006 and his service was

confirmed by the management and that the petitioner

was permitted to avail compensatory off for the

period from February, 2011 to January, 2012 and due

to the communication gap between the IT Department

and Personnel Department and misplacement of the

leave application, the petitioner was given suspension

on 10-02-2012 for which the petitioner has given

explanation on 15-02-2012 and that the petitioner has

committed habitual misconduct of committing

unauthorised absence on many earlier occasions and

569

8 May 2018]

LA GAZETTE DE L’ETAT

therefore, the enquiry was conducted by the RMO

which was informed to the petitioner on 13-03-2012

and enquiry report was submitted on 16-03-2012 by

the Enquiry Officer to the respondent management for

further action and the said enquiry was preliminary

enquiry and hence, no opinion or finding of guilt on

the allegations made against the petitioner was

submitted by the Enquiry Officer and therefore, no

charge-sheet was issued to the petitioner for the

allegations made against the petitioner and that the

respondent did not proceed with the matter further by

way of disciplinary proceedings and the respondent

was convinced with the explanation furnished by the

petitioner for the questions put by the Enquiry Officer

in the light of the document submitted by him in

respect of his absence on 10-02-2012 and hence, no

charge-sheet was issued to him and no explanation

was called for from him and no pucca enquiry was

conducted and no evidence was 15 adduced and that

therefore, no punishment was imposed on the

petitioner and since the petitioner has complaining of

heavy work load for him in the respondent institute

he was transferred to Bharathiyar College of

Engineering and Technology to give leisure work to

him which is the sister concern of Sri Balaji

Educational and Charitable Trust and that the transfer

order is only administrative in nature passed by the

respondent depending upon the exigencies of

work and that the

petitioner after getting the

transfer order met Personnel Manager of the

respondent institute on 03-04-2012 and requested

time for joining at Bharathiyar College of

Engineering and Technology, Karaikal and as such

time was granted till 09-04-2012 to report to the

transferred place through order wherein it was stated

that failure to obey the order would amount to grave

misconduct and thereafter, on 07-04-2012 the

petitioner made a representation to revoke the

transfer order and permit him to join duty at

respondent

Institute

and

that

the

petitioner

approached the Conciliation Officer on 15-05-2013

with his grievance to cancel the transfer and the

petitioner also has pointed out in his representation

that he has not paid subsistence allowance for the

period of suspension and that the petitioner has not

terminated from service and as such the non-

employment of the petitioner is only because of the

petitioner's failure and refusal to report to duty at the

transferred place and that therefore, the claim

statement filed before this Court does not challenge

the validity of the transfer and that therefore, the

claim statement filed by the petitioner is to be

dismissed with costs.

10. In support of their contention the respondent

also has exhibited Ex.Rl to Ex.R18. Ex.Rl is the copy

of show-cause notice given by the respondent to the

petitioner, dated 08-10-2011. Ex.R2 is the copy of

reply given by the petitioner on 11-10-2011 to the

respondent for the show-cause notice. Ex.R3 is the

copy of warning letter given by the respondent to the

petitioner, dated 14-10-2011. Ex.R4 is the copy of

suspension order given by the respondent to the

petitioner, dated 10-02-2012. Ex.R5 is the copy of

reply given by the petitioner on 15-02-2012 to the

respondent against the suspension order. Ex.R6 is the

copy of application for leave submitted by the

petitioner on 09-02-2012 to the respondent. Ex.R7

is the copy of letter of enquiry given by the

respondent on l3-03-2012 to the petitioner. Ex.R8 is

the copy of the report of Enquiry Officer, dated

16-03-2012 Dr. M. Lakshmana Perumal submitted to

the Personnel Manager of the respondent along with

the statement of the petitioner made on 16-03-2012

for the questions put in by the Enquiry Officer, Ex.R9

is the copy of order of transfer given by the

respondent to the petitioner, dated 29-03-2012.

Ex.R10 is the copy of letter given by the respondent

on 04-04-2012 to the petitioner granting time to

report to duty at the place of transfer. Ex.R11 is the

copy of representation submitted by the petitioner to

the respondent, dated 07-04-2012. Ex.R12 is the

copy of representation submitted by the petitioner to the

respondent, dated 09-05-2012. Ex.R13 is the copy of

representation submitted by the petitioner to the

Labour Officer (Conciliation), Puducherry, dated 15-05-2013.

Ex.R14 is the copy of the notice of remarks sent by

the Labour Officer (Conciliation), Puducherry to the

respondent, dated 12-05-2013. Ex.R15 is the copy of

the notice of enquiry sent by the Labour Officer

(Conciliation), Puducherry to the respondent, dated

18-06-2013. Ex.R16 is the copy of the letter sent by

the Personnel Department on 19-03-2014 to

Accounts Manager of the respondent institute with

details of subsistence allowance to be paid to the

petitioner. Ex.R17 is the Indian Bank, Puducherry

main cheque bearing No. 333948, dated 19-03-2014

for ` 3,842 drawn by the respondent in favour of the

petitioner. Ex.R18 is the copy of the representation

submitted by the petitioner to the Labour Officer

570

LA GAZETTE DE L’ETAT

[8 May 2018

(Conciliation), Puducherry, dated 29-06-2015. These

documents would go to show that the respondent

institute has given show cause notice to the petitioner

on 08-10-2011 for which the petitioner has given

reply on 11-10-2011 and warning has been given by the

respondent institute to the petitioner on 14-10-2011

and

thereafter,

on

10-02-2012

for

the

absence

of the petitioner he was suspended from service for

which he was given reply on 15-02-2012 to the

respondent management against the suspension order

and that the petitioner has submitted the leave

application on 09-02-2012 and enquiry notice was

given to the petitioner on 13-03-2012 by the respondent

and enquiry report was submitted on 16-03-2012 by

the Enquiry Officer who conducted preliminary

enquiry and subsequently the petitioner was

transferred to Karaikal and thereafter, the petitioner

was granted time at the request of the petitioner to

report to duty at the transferred place and representation

was submitted by the petitioner on 09-05-2012

and subsequently the petitioner raised the industrial

dispute before the Conciliation Officer on 15-05-2013

for his non-employment and the conciliation

proceedings were failed and conciliation failure

report was sent by the Labour Conciliation Officer

to the Government of Puducherry.

11. It is clear from the pleadings of both the

parties and evidence let in by either sides and

exhibits marked on either sides that the following

facts are admitted by either sides that the petitioner

was working at the respondent institute from 01-03-2004

and his service was confirmed and he was given

show cause notice that he has taken leave on loss of

pay for several times in the year 2011 from March

to October for which he has given suitable reply and

warning letter was given to him and thereafter, he has

taken leave on 10-02-2012 and he has submitted a

leave application on 09-02-2012 to the Head of the

Department who have permitted him to take leave, but

the same was not intimated to the management in time

and meanwhile he was suspended for his absence on

10-02-2012 and against which the petitioner has

given explanation to the respondent management and

the same was considered by the respondent

management and thereafter, he was transferred to

Bharathiyar College of Engineering and Technology

and thereafter, the petitioner has not reported duty to

the transferred place and apply for time and time was

also granted by the management and thereafter, the

petitioner has raised the industrial dispute before the

Conciliation Officer and conciliation proceedings

were failed and conciliation failure report was sent

by the Conciliation Officer to the Government and

the same was referred to this Court to decide whether

the industrial dispute raised by the petitioner against

the respondent management over his refusal of

employment

and

non-payment

of

subsistence

allowance from 10-02-2012 is justified or not.

12. Apart from the above admitted facts it is also

clearly disclosed by the evidence that the petitioner

was suspended from service on 10-02-2012 itself

when the petitioner was alleged to have been

unauthorisedly absent from duty. The respondent side

witness RW.1 in his cross examination has stated as

follows :

“...........









































Failure Report



















Enquiry

Presenting Officer

Enquiry report 



”.

571

8 May 2018]

LA GAZETTE DE L’ETAT

From the above evidence of RW1, it is very clear

that the petitioner was suspended on 10-02-2012 for

the reason that he has not attended the duty on

10-02-2012 and in the suspension order it was

directed by the management that he should not enter

into the colleges, hostels and other colleges of the

respondent and premises of the Medical College and

that the said suspension order was nor revoked so far

and meanwhile the petitioner was transferred to

Bharathiyar College of Engineering and Technology,

Karaikal.

13. Further, it was stated by the petitioner that he

was not paid subsistence allowance for the period of

suspension. But, it was alleged by the respondent

management that they have paid the same through a

cheque before the Conciliation Officer in the month

of March, 2014. But, no explanation was given by the

respondent establishment that why they have not paid

subsistence allowance to the petitioner from

10-02-2012 till March, 2014. Further, the failure

report of the Conciliation Officer also would reveal

the fact that subsistence allowance was not paid to the

petitioner and the cheque alleged to have been issued

by the respondent was also not collected and any

document or any acknowledgement was exhibited

before this Court to prove the contention that the

cheque was honoured by the respondent management

to the petitioner. Further, the respondent management

witness RW.1 has stated in his chief examination that,

“........ With regard to the averment made by the

petitioner

relating

to

his

availing

leave

on

10-02-2012, the respondent admits in all fairness the

fact of the petitioner submitting leave application to

his Head of the Department and his sanctioning leave.

However, due to communication gap between the IT

Department and

Personnel

Department

and

also

misplacement of the leave application at that time,

suspension order, dated 10-02-2012 was issued to the

petitioner.

However, when the petitioner submitted

his explanation, dated 15-02-2012 pointing out his

availing leave after sanctioning of the same by

his HOD, the respondent called for the report from

the IT Department ........”.

The above evidence would go to show that the

petitioner has actually submitted his leave application

to the Head of the Department for sanction of leave

and due to communication gap between the IT

Department and Personnel Department of the

respondent establishment the leave application was

misplaced by them and the petitioner was suspended

on 10-02-2012 by the respondent management and

even after knowing the fact that petitioner has given

proper explanation that the leave was availed by him

after sanctioning of the Head of the Department the

suspension order was not revoked by the respondent

management so far and no explanation is given by the

respondent

establishment

that

why

the

said

suspension order has not been revoked and why

subsistence allowance or full salary has not been paid

to the petitioner so far.

14. Further, it is the evidence of RW.1 in his chief

examination that,

“...... I most respectfully submit that on perusal

of the preliminary enquiry report, the respondent

did not proceed with the matter further by way of

disciplinary proceedings, It was on account of the

fact that the respondent was convinced with the

explanation furnished by the petitioner for the

questions put by the Enquiry Officer in the light of

the document submitted by him in respect of his

absence on 10-02-2012. Had the Management

wanted to frame charges for habitual misconduct

in respect of the petitioner's earlier absence

period, it could have issued charge-sheet, asked

for explanation for the same and then conducted

pucca enquiry or full-fledged enquiry involving

adducing of evidence and submission of enquiry

report with finding of guilty or not for the charges

framed. In this case the respondent management

did not issue a charge-sheet to the petitioner and

so no explanation was called for and no full-

fledged enquiry (quasi-judicial in nature) was

conducted for obtaining finding of guilty. It was for

the benefit of the petitioner and he cannot have any

grievance against the respondent for the same.

Moreover, no punishment was imposed on the

petitioner.......”.

From the above evidence it is also clear that the

respondent management was convinced with the

explanation furnished by the petitioner for the

question put by the Enquiry Officer in the light of the

document submitted by him in respect of his absence

on 10-02-2012. Though it was stated and admitted by

the respondent management that the explanation given

by the petitioner was convinced with the management

and that the leave was granted by the Head of the

Department and the fact only on the communication

gap between the IT Department and Personnel

572

LA GAZETTE DE L’ETAT

[8 May 2018

Department the leave application was misplaced by

them, they have not revoked the suspension order and

instead of revoking suspension order the petitioner

was transferred to Bharathiyar College of Engineering

and Technology, Karaikal wantonly by the management

and further the enquiry report of the Enquiry Officer

under Ex.R8 runs as follows :

“











? 























”

From the content of the Ex.R8 it is clear that the

Enquiry Officer has also submitted the report that the

petitioner has taken leave properly and after the

issuance of show cause notice in the year 2011 the

petitioner was working properly and the Enquiry

Officer has not found guilty against the petitioner.

While so the reasons stated by the respondent

management for not revoking the order of suspension

and passed the order of transfer on the foot of the

unauthorised absence alleged to have been committed

on 10-02-2012 by the petitioner is absolutely

unlawful and hence, the order of suspension passed

against the petitioner by the respondent management

is to be declared as unlawful and against the natural

justice.

15. Admittedly the respondent management has not

conducted domestic enquiry by issuing charge memo

and has not passed any termination order against the

petitioner and that there is no charge memo issued

against the petitioner for the alleged unauthorised

absence on 10-02-2012. Further, the respondent

management has admitted the fact that they have not

taken any disciplinary proceedings against the

petitioner for not reporting duty before the

transferred place as per the transfer order and that

the respondent management has not taken any action

against the petitioner for the charge of disobedience

of the transfer order and that the respondent

management has not passed any order of termination.

But, the respondent management has not permitted

the petitioner to enter into the premises of the

respondent establishment which amount to refusing

of employment and therefore, the petitioner is

entitled for reinstatement.

16.

Further, it is true that the respondent

management is having right to transfer the workers to

some other institutions which were maintained by

them if, the standing order of the respondent

establishment permits or if, the terms and conditions

of the appointment permits. But, in this case, the

respondent management has transferred the petitioner

from the respondent institute to Bharathiyar College

of Engineering and Technology without revoking the

suspension order. Hence, without revoking the

suspension order passed against the petitioner

transferred him to Bharathiyar College of Engineering

and Technology is not sustainable and without paying

the subsistence allowance the petitioner was

transferred and hence, it cannot be accepted and that

therefore, it can be held that the industrial dispute

raised by the petitioner against the respondent

management over his refusal of employment and non-

payment of subsistence allowance from 10-02-2012

is justified and as such the petitioner is entitled for

reinstatement as claimed by him.

17.

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 back wages 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 the fact that the petitioner has been

working in any other establishment after the refusal

of employment. However the petitioner workman

could have served at any other industry after the

refusal of employment. Considering the above facts

and circumstances, this Court decides that the

petitioner is entitled only for 50% back wages with

continuity of service and other attendant benefits.

573

8 May 2018]

LA GAZETTE DE L’ETAT

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

the industrial dispute raise'd by the petitioner against

the respondent management over his refusal of

employment and non-payment of subsistence

allowance from 10-02-2012 is justified 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 50% back wages from

10-02-2012 when the suspension order was passed

by the respondent management against the petitioner

till 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 03rd day of January 2018.

G. THANENDRAN,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.

————

List of

petitioner’s witnesses:

PW.1— 05-07-2017 —

R. Karthikeyan.

List of petitioner’s exhibits:

Ex.Pl

— —

— Copy of the appointment

confirmation

of

the

petitioner issued by the

respondent management.

Ex.P2

— 26-09-2006— Copy of the Posting

order of the petitioner

issued by the respondent

management.

Ex.P3

— 15-07-2008— Copy of the confirmation

order of the petitioner

issued by the respondent

management.

Ex.P4

— 08-10-2011— Copy of the show cause

notice issued to the

p e t i t i o n e r b y t h e

respondent management.

Ex.P5

— 11-10-2011— Copy

of

the

reply

submitted

by

the

petitioner

to

the

respondent management.

Ex.P6

— 14-10-2011— Copy

of

the

order

issued by the respondent

to the petitioner.

Ex.P7

— 10-02-2012— Copy of the suspension

order of the petitioner

issued by the respondent

management.

Ex.P8

— 15-02-2012— Copy

of

the

letter

submitted by the petitioner

t o

t h e

r e s p o n d e n t

management.

Ex.P9

— 09-02-2012— Copy of the application

of leave submitted by

the petitioner which was

duly sanctioned by the

respondent management.

Ex.P10 — 13-03-2011— Copy

of the

enquiry

notice

issued by

the

respondent management.

Ex.Pll

— 29-03-2012— Copy of the transfer

order of the petitioner

issued by the respondent

management.

Ex.P12 — 07-04-2012— Copy

of

the

letter

submitted by the petitioner

t o

t h e

r e s p o n d e n t

management.

Ex.P13 — 09-05-2012— Copy

of

the

letter

submitted by the petitioner

t o

t h e

r e s p o n d e n t

management.

Ex.P14 — 15-05-2013— Co py o f the letter

submitted by the petitioner

to the Labour

Officer

( C o n c i l i a t i o n ) ,

Puducherry.

Ex.P15 — 29-06-2015— C o p y o f t h e l e t t e r

submitted by the petitioner

to

the

Labour Officer

(Conciliation), Puducherry.

Ex.P16 — 26-10-2015— Copy of the failure report

submitted by the Labour

Officer (Conciliation),

Puducherry

to

the

Secretary to Government

(Labour), Puducherry.

List of

respondent’s witness:

RW.1 — 05-10-2017—

Zaibunissa Begum

574

LA GAZETTE DE L’ETAT

[8 May 2018

List of respondent’s exhibits:

Ex.Rl

— 08-10-2011—Copy of show

cause

notice given by the

respondent

to

the

petitioner.

Ex.R2

— 11-10-2011—Copy of reply given by

the petitioner to the

respondent for the show

cause notice.

Ex.R3

— 14-10-2011—Copy of warning letter

given by the respondent

to the petitioner.

Ex.R4

— 10-02-2012—Copy

of

suspension

order

given

by

the

respondent

to

the

petitioner.

Ex.R5

— 15-02-2012—Copy of reply given by

the petitioner to the

respondent against the

suspension order.

Ex.R6

— 09-02-2012—Copy of application for

leave submitted by the

petitioner

to

the

respondent.

Ex.R7

— 13-03-2012—Copy

of

letter

of

enquiry given by the

respondent

to

the

petitioner.

Ex.R8

— 16-03-2012—C o p y o f t h e r e p o r t

of Enquiry Officer

Dr. M. Lakshmana Perumal

submitted the Personnel

M a n a g e r

o f

t h e

respondent along with

the statement of the

p e titi o ne r mad e o n

16-03-2012

for

the

questions put in by the

Enquiry Officer.

Ex.R9

— 29-03-2012—Copy

of

order

of

transfer given by the

respondent

to

the

petitioner.

Ex.R10 — 04-04-2012—Copy of letter given by

the respondent to the

petitioner granting time

to report to duty at the

place of transfer.

Ex.Rll — 07-04-2012—Copy of representation

submitted by the petitioner

to the respondent.

Ex.R12 — 09-05-2012—Copy of representation

submitted by the petitioner

to the respondent.

Ex.R13 — 15-05-2013—Copy of representation

submitted by the petitioner

to

the

Labour Officer

(Conciliation), Puducherry.

Ex.Rl4 — 12-05-2013—Copy of the notice of

remarks

sent by

the

L a b o u r

O f f i c e r

( C o n c i l i a t i o n ) ,

Puducherry

to

the

respondent.

Ex.Rl5 — 18-06-2013—Copy of the notice of

enquiry

sent by the

L a b o u r

O f f i c e r

( C o n c i l i a t i o n ) ,

P u d u c h e r r y t o t h e

respondent.

Ex.R16 — 19-03-2014—Copy of the letter sent

by

the

Personnel

Department to Accounts

Manager,

of

the

respondent institute with

details of subsistence

allowance to be paid to

the petitioner.

Ex.R17 — 19-03-2014—Indian Bank, Puducherry

Main Cheque bearing

No. 333948 for ` 3,842

drawn by the respondent

i n f a v o u r o f t h e

petitioner.

Ex.R18 — 29-06-2015—Copy of the representation

s u b m i t t e d b y t h e

petitioner to the Labour

Officer (Conciliation),

Puducherry.

G. THANENDRAN,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.