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Notifications du Gouvernement .. 575
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Tender Notices
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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.