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Sentence arbitral du Travail
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Award of the Labour Court
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de Tribunal.
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Notifications du Gouvernement .. 598
Government Notifications
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Etablissements dangereux
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Dangerous establishments
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Annonces
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Announcements
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15 {
No.
20
Poudouchéry
Mardi
15
Mai
2018 (25 Vaisakha 1940)
No.
Puducherry
Tuesday
15th
May
2018
590
LA GAZETTE DE L’ETAT
[15 May 2018
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G. O. Rt. No. 37/Lab./AIL/T/2018,
Puducherry, dated 9th March 2018)
NOTIFICATION
Whereas, an Award in I.D. (T) No. 04/2016, dated
22-01-2018 of the Industrial Tribunal, Puducherry in
respect of the
industrial
dispute between the
management of M/s. Shoney Scientific India, Puducherry
and the employees Thiru N. Karunakaran and
23 others as listed in the Annexure-I, over illegal
closure 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,
Monday, the 22nd day of January, 2018
I.D. (T) No. 4/2016
N. Karunakaran and 23 others,
No. 22, Chettikulam Street,
Thiruvalluvar Nagar,
Puducherry - 605 003.
. . Petitioner
Versus
The Managing Director,
M/s. Shoney Scientific India,
A30/B, Industrial Estate,
Thattanchavady,
Puducherry - 605 009.
. . Respondent
This
industrial dispute coming on 11-01-2018
before
me for final hearing in the presence of
Tvl. P. R. Thiruneelakandan, A. Mithun Chakravarthy
& R. Harinath, Advocates for the petitioner, M/s. Law
Solvers, Advocates for the respondent on record and
subsequently at the time of cross examination of PW.1,
the respondent being called absent and set ex parte, upon
hearing the petitioner and perusing the case records, this
Court passed the following:
AWARD
1. This Industrial Dispute arises out of the reference
made by the Government of Puducherry, vide G.O. Rt.
No. 96/AIL/Lab./T/2016, dated 19-10-2016 of the
Labour Department, Puducherry to resolve the
following dispute between the petitioner and the
respondent, viz.,
(a) Whether the dispute raised by the employees
Thiru N.Karunakaran and 23 others as listed in
Annexure-I against the management of M/s. Shoney
Scientific India, Puducherry, over illegal closure is
justified or not? If justified, what relief the
employees listed in Annexure-I are entitled to?
(b) 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 a follows:-
The petitioners are working at the respondent factory
for the past 24 years. They were paid very meager wage
and denied various benefits, rights under the labour laws
and were subjected to unfair labour practice. Hence,
the petitioners decided to form a trade union so as to
protect their right and secure decent wage from the
respondent
through
the
process
of
collective
bargaining. The respondent management did not wish
the workers to form any trade union in the factory and
they never allowed functioning any trade union in the
factory. The workers who were ventured to form trade
union or attempt to join with any trade union were
victimised and were denied employment. In the year
2015, the petitioners join together firmly decided to
form trade union to protect their right and save the
workers from any sort of unfair labour practice,
victimisation by the respondent management. The
petitioners formed trade union in the name and style
of “Shoney Scientific India Thozhilalar Nala Sangam”
and submitted application before the Registrar of Trade
union on 30-09-2015 for registering the trade union.
On receipt of the said application, the Registrar of Trade
Union carried out verification proceeding for
591
15 May 2018]
LA GAZETTE DE L’ETAT
registering the trade union. After knowing this matter
the respondent took all effort to prevent the workers
to form a trade union in the respondent factory. The
workers were threatened that not to form any trade
union in the respondent factory. The workers were firm
to form a trade union and register the same. Hence, the
respondent to avert the workers, without any prior
notice to the workers, suspended the production and
denied employment to the petitioners. Thereafter, the
respondent issued closure notice on 30-01-2016 stating
that the factory was closed with effect from 31-01-2016
and all the workers including the permanent workers,
petitioners herein were denied employment. The
respondent factory was running with good profit and
there were sufficient orders and requirements to carry
out the production activities and the respondent in order
to prevent the workers to get register any trade union
in its factory without giving statutory prior notice,
closed down the factory with an oblique motive to
terminate the workers and thereby prevent the
petitioners to form any trade union in the respondent
factory. The respondent still running the same line of
business. The closure of the respondent factory is not
real, it is only pretence of closure to terminate the
workers and thereby prevent them to form any trade
union in the respondent factory. The act of the
respondent is unfair labour practice as defined under
Schedule 5 of the Industrial Disputes Act. The 60 days
prior notice as required under section 25 FFA of the
Industrial Disputes Act was not given by the respondent
to close down the factory. As per the said provision, the
employer who intent to close down the factory shall
give 60 days prior notice on which the intended closure
become effective. In this case, after a closure notice,
dated 31-01-2016, the closure effected on the next day
itself. The respondent closed the factory in violation
of the statutory provision of section 25FFA of the
Industrial Disputes Act with an oblique motive to
terminate the workers and thereby prevent them to form
and register any trade union in the respondent factory.
The closure of the respondent factory is not real and
not genuine and it is only, pretence of closure to achieve
the illegal object and therefore, prayed to pass an Award
holding that the closure of the respondent factory with
effect from 31-01-2016 is illegal, unfair labour
practice and closure of the factory itself is not real,
genuine and it is only a pretence of closure and the
consequential denial of employment to the petitioner
workers are illegal, unfair labour practice and to direct
the respondent to reinstate the petitioners in their
service with back wages, continuity of service, with all
other attendant benefits.
3. The averments in the counter statements filed by
the respondent, in brief, are as follows :-
The respondent is a partnership concern engaged in the
business of manufacturing medical devices since, 1987 and
for its day to day manufacturing activities it engaged 35
employees directly in the payrolls of the establishment.
The respondent decided to close down the factory in January,
2016 due to several reasons like cutthroat competition in
the market, declining orders and shifting of orders to other
companies by the buyers of the respondent. The customers
Mickenson stopped their purchase from them completely,
Premier started their process of moving over to another
much cheaper supplier and the respondent had major
problems with payments from Paramount. The major buyers
and since, more and more manufacturers were coming in
with much cheaper products, the future of the factory did
not seem sustainable. The management is left with no other
alternative than to close down the unit irrevocably vide
closure notice with effect from 31-01-2016. The
respondent management notified its decision of closure to
all the statutory authorities as provided under the Industrial
Disputes Act, 1947 together with the Annexure. The respondent
management also paid full and final settlement
of all the dues to the entire work force and credited in the
respective salary account of the employees. The respondent
also communicated by individual notices to all the
employees to their last known address by RPAD and which
have been duly acknowledged by the employees.
The employees approached the Labour Officer (Conciliation)
and raised an industrial dispute vide their representation,
dated 02-02-2016 aggrieved against the decision of the
closure. The respondent also submitted its reply, dated
11-04-2016 to the Labour Officer (Conciliation) and
expressed its inability to consider the demands of the
employees and the conciliation proceedings ended in failure.
The respondent management also communicated to the
Inspectorate of Factories and Boilers, Labour Department
vide letter dated 02-02-2016 and also surrendered the
Factory licence and had obtained the acknowledgment from
the Inspectorate of Factories and Boilers, Labour
Department, likewise, the respondent management also
communicated to the Employees Provident Fund and
Employees State Insurance authorities vide its letter, dated
02-02-2016 together with its enclosures and had obtained
the acknowledgment from the aforesaid authorities.
The closure of the factory is real and genuine and the closure is
legitimate. The respondent management had duly complied
with the procedure contemplated under the Industrial
Disputes Act for closure of undertaking which employees
less than 50 workers. After complying with the procedures
contemplated under the Industrial Disputes Act, the
respondent management closed down the factory, hence,
592
LA GAZETTE DE L’ETAT
[15 May 2018
there is no illegality. The respondent is a proprietorship
concern, the proprietor does not want to continue the
business and the closure of the factory is the prerogative
right of the respondent and therefore, prayed to dismiss the
claim petition.
4. Despite, several opportunities given to the
respondent for cross examination of PW.1, the respondent
called absent and no representation for respondent and
hence, the respondent was set ex parte. On the side of
the petitioners, PW.1 was examined and Ex. P1 to
Ex.P21 were marked.
5. The point for consideration is:
Whether the dispute raised by the petitioners against
the respondent management over illegal closure is
justified or not and if justified, what is the relief
entitled to the petitioners?.
6. Heard. It is the evidence of the PW.1 that
petitioners were working at respondent factory for the
past 24 years and the workers of the respondent factory
have formed union and applied for registration of trade
union before the Registrar of Trade Union, Labour
Department and that after knowing this matter the
management without any prior notice to the workers,
suspended the production and denied employment to
the petitioners with effect from 31-01-2016 which is
illegal and unfair labour practice and that the closure
of the respondent is not real and not genuine.
7.
In support of his evidence, PW.1 has exhibited
the copy of the certificate of registration of trade union
as Ex.P1, the copy of respondent closure notice
as Ex.P2, the copy of petitioner's letter to the
Conciliation Officer as Ex.P3, the copy of petitioner’s
letter to the Conciliation Officer as Ex.P4, the copy
of petitioner's letter to the respondent management as
Ex. P5, the copy of petitioner's letter to the Labour
Commissioner as Ex.P6, the copy of plaint copy of
O.S. No. 617/2016 as Ex.P7, the copy of petitioner’s
letter to the Conciliation Officer as Ex.P8, the copy
of petitioner's letter to the Conciliation Officer as
Ex.P9, the copy of conciliation notice as Ex.P10, the
copy of respondent reply to Labour Officer
(Conciliation) as Ex.P11, the copy of petitioner's letter
to Lieutenant-Governor as Ex.P12, the copy of
petitioner's letter to Enforcement Officer as Ex.P13,
the copy of petitioner's letter to Labour Commissioner
as Ex.P14, the copy of petitioner's letter to Chief
Inspector of Factory as Ex.P15, the copy of petitioner's
letter to Labour Commissioner as Ex. P16, the copy of
petitioner’s letter to the Conciliation Officer as
Ex.P17, the copy of petitioner's letter to SHO, D’Nagar
Police Station as Ex.P18, the copy of petitioner’s letter
to Labour Commissioner as Ex.Pl9, the copy of
petitioner's letter to Labour Commissioner as Ex.P20,
the copy of conciliation failure report as Ex.P21.
8. As per the claim statement, evidence and exhibits
on the side of the petitioner, it is clearly established
by the petitioners that petitioners were working at
respondent factory for the past 24 years and the workers
of the respondent factory have formed union and
applied for registration of trade union before the
Registrar of Trade union, Labour Department and that
after knowing this matter the management without any
prior notice to the workers, suspended the production
and denied employment to the petitioners with effect
from 31-01-2016 and that 60 days prior notice as
required under section 25 FFA of the Industrial Disputes
Act to close down the factory has not been given by the
respondent for which the petitioners has raised the
industrial dispute before the Conciliation Officer and
the conciliation proceedings were failed and that
therefore, this reference has been made to this Court
to decide whether the dispute raised by the petitioner
over closure of the factory is justified or not.
9. In this case, though the respondent appeared
before this Court and subsequently, despite several
opportunities, the respondent did not turn up before this
Court and hence, due to their absence, the respondent
was set ex parte. Considering the fact that the
petitioners have established their case that they were
working at the respondent factory and the respondent
has closed the factory without any prior notice and the
closure of the factory is not real and genuine, it is to
be held that the industrial dispute raised by the
petitioners against the respondent management over
illegal closure is justified and the petition is liable to
be allowed and as such, the petitioners are entitled for
the order of reinstatement as claimed by them.
10. As this Court has decided that the industrial
dispute raised by the petitioners against the respondent
management over illegal closure of the factory is
justified and the petitioners are entitled for the order
of reinstatement, it is to be decided, whether the
petitioners are entitled for backwages with continuity
of service and other attendant benefits as claimed by
the petitioner. There is no proof exhibited before this
Court that the petitioners were not working anywhere
else after the denial of employment at respondent
establishment. The petitioners could have served at any
593
15 May 2018]
LA GAZETTE DE L’ETAT
where else after their denial of employment and
therefore, this Court does not find any reasonable cause
to grant full back wages to the petitioners and
consequently, this Court decides to grant back wages
of 30% to the petitioners till their reinstatement.
11. In the result, the petition is partly allowed and
the industrial dispute raised by the petitioners against
the respondent management over illegal closure is
justified and an Award is passed by directing the
respondent to reinstate the petitioners within one month
from the date of this order and to pay 30% backwages
from the date of denial of employment till the date of
reinstatement with continuity of service and other
attendant benefits. No cost.
Dictated to Stenographer, transcribed by her,
corrected and pronounced by me in the open Court on
this the 22nd day of January, 2018.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-Labour Court,
Puducherry.
————
List of petitioner’s witness:
PW.1 — 06-12-2017 — N. Karunakaran
List of petitioner’s exhibits:
Ex.P1 — 25-10-2016 — Copy of the certificate of
registration of trade
union.
Ex.P2 — 30-01-2016 — Co p y o f r esp o nd ent
closure notice.
Ex.P3 — 01-02-2016 — Co p y o f p etitio ner ’s
letter to the Conciliation
Officer.
Ex.P4 — 02-02-2016 — Co py o f petitioner ’s
letter to the Conciliation
Officer.
Ex.P5 — 02-02-2016 — Copy
of
petitioner’s
letter to the respondent
management.
Ex.P6 — 08-02-2016 —Copy of petitioner’s letter
to Labour Commissioner.
Ex.P7 — —
Copy of plaint copy of
O.S. No. 617/2016.
Ex.P8 —11-04-2016 — Co py o f petitioner ’s
letter to the Conciliation
Officer.
Ex.P9 — 04-05-2016 — Co py o f petitioner ’s
letter to the Conciliation
Officer.
Ex.P10— 09-02-2016 — C o p y o f c o n c i l i a t i o n
notice.
Ex.P11—11-04-2016 — Copy of respondent reply
to
Labour
Officer
(Conciliation).
Ex.P12— —
Copy of petitioner’s letter
to the Lieutenant-Governor.
Ex.PI3—11-07-2016 — Copy of petitioner’s letter
to the Enforcement Officer.
Ex.P14—11-07-2016 — Copy of petitioner's letter
to the Labour Commissioner.
Ex.P15—11-07-2016 — Copy of petitioner’s letter
to the Chief-Inspector of
Factory.
Ex.P16 —11-07-2016 — Copy of petitioner's letter
to the Labour Commissioner.
Ex.P17 —31-08-2016— Copy of petitioner's letter
to the Conciliation Officer.
Ex.P18— 12-09-2016 — Copy of petitioner’s letter
to the SHO, D’Nagar
Police Station.
Ex.P19— 15-09-2016 — Copy of petitioner's letter
to the Labour Commissioner.
Ex.P20— 30-09-2016 — Copy of petitioner's letter
to the Labour Commissioner.
Ex.P21— 21-09-2016 — C o p y o f c o n c i l i a t i o n
failure report.
List of respondent’s witnessess: Nil.
List of respondent’s exihibits: Nil.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-Labour Court,
Puducherry.
594
LA GAZETTE DE L’ETAT
[15 May 2018
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G. O. Rt. No. 38/Lab./AIL/T/2018,
Puducherry, dated 9th March 2018)
NOTIFICATION
Whereas, an Award in I.D. (L) No. 22/2017, dated
18-01-2018 of the Labour Court, Puducherry, in
respect
of
the
industrial
dispute
between
management of M/s. Novateur Electrical and
Digital Systems Private Limited, Puducherry, and the
Novateur Employees Union, Puducherry, over transfer
of four employees viz., Thiruvalargal Anna Jeeva,
M. Udayakumar, J. Seetharaman and T. Vetrivel
from Puducherry to Semmencherry and unfair
labour practice 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.
Thursday, the 18th day of January 2018
I.D. (L) No. 22/2017
The Secretary,
Novateur Employees Union,
10, Second Street, Gandhi Nagar,
Puducherry-605 009.
. . Petitioner
Versus
The Managing Director,
M/s. Novateur Electrical and
Digital Systems Private Limited,
33/1, 7th Cross, PIPDIC Industrial Estate,
Sedarapet,
Puducherry.
. . Respondent
This industrial dispute coming on this day before me for
hearing in the presence of Thiru P.R. Thiruneelakandan
and A. Mithun Chakaravarthy, Advocates for the
petitioner and Thiru L. Sathish, Advocate for the
respondent, upon hearing both sides and upon perusing
the case records, this Court passed the following:
AWARD
1. This Industrial Dispute has been referred by the
Government as per the G.O. Rt. No. 49/AIL/Lab./T/2017,
dated 10-04-2017 for adjudicating the following:-
(i) Whether the dispute raised by the petitioner
union namely, Novateur Employees Union, Puducherry
against the management of M/s. Novateur Electrical
and Digital Systems Private Limited, Puducherry,
over transfer of four employees viz., Thiruvalargal
Anna Jeeva, M. Udayakumar, J.Seetharaman and
T. Vetrivel from Puducherry to Semmencherry and
unfair labour practice is justified or not? If justified,
what relief they are entitled to?
(ii) To compute the relief if any, awarded in
terms of money if, it can be so computed?
2. It is to be decided that whether the industrial
dispute raised by the petitioner union against the
respondent
management
over
the
transfer
of
employees to Semmencherry and unfair labour
practice is justifiable one or not. The petitioner
claimant and the respondent though appeared before
this Court, have not filed any claim statement and
counter statement and no evidence was let in by either
side.
3. When the case was posted for filing of claim
statement, the President and Secretary of the petitioner
union has filed an application along with the 12(3)
settlement arrived at between the petitioner union and
the respondent management stating that the dispute has
been amicably settled out of Court and 12(3)
settlement was entered and executed between them and
the respondent management also has endorsed that they
have no objection to record the settlement and to
close the reference. Since, the petitioner reported that
the matter is settled out of the Court and the Counsel
for the respondent endorsed no objection, the
petitioner is entitled for the benefit of the 12(3)
settlement and therefore, an Award has to be passed in
terms of 12(3) settlement.
4. In the result, Award is passed as per the terms
of 12(3) settlement and the copy of the 12(3)
settlement will form part of the Award. No cost.
595
15 May 2018]
LA GAZETTE DE L’ETAT
Dictated to the Stenographer, transcribed by her,
corrected and pronounced by me in the open Court on
this the 18th day of January, 2018.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
————
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G. O. Rt. No. 39/Lab./AIL/T/2018,
Puducherry, dated 9th March 2018)
NOTIFICATION
Whereas, an Award in I.D (L) No.45/2015, dated
29-01-2018 of the Labour Court, Puducherry in respect
of the Industrial Dispute between management of
M/s. Auromed Hospital P. Ltd., (AUM Hospital), Puducherry
and Tmt. D. Kalaiselvi, over her non employment - 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,
Monday, the 29th day of January, 2018
I.D. (L) No. 45/2015
D. Kalaiselvi,
No. 48, Bajanai Madathu Street,
Manjini Nagar, Muthialpet,
Puducherry.
. . Petitioner
Versus
The Managing Director,
M/s. Auromed Hospital Private,
Limited, (AUM Hospital),
No. 1, Saptagiri Garden, Solai Nagar
Main Road, Muthialpet
Puducherry-605 009
. .
Respondents.
This industrial dispute coming on 10-01-2018 before
me for final hearing in the presence of Thiruvalargal.
R.T. Shankar, N. Babu, A. Ashok Kumar, Advocates for
the petitioner and Thiru. J. Cyril Mathias Vincent, Advocate
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. 93/AIL/Lab./J/2015,
dated 12-08-2015 for adjudicating the following:-
(i) Whether the dispute raised by Tmt. D. Kalaiselvi
against the management of M/s. Auromed Hospital
P. Ltd., (AUM Hospital), Puducherry, over her
non-employment is justified? If justified what relief
she 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 working at the respondent
establishment from 2008 without any blemish. She is
dedicated and very sincere on her duties. The CEO of
the respondent management had contacted the petitioner
directly on 12-04-2014 and orally ordered not to come
to work hereafter inspite of the same the petitioner went
to duty on 14-04-2014 whereas, the petitioner was stopped
at the entrance by the management Security and was not
allowed inside the Hospital. Hence, the petitioner
questioned the Security for which the Security person
stated that he was informed by the management that do
not to allow her inside as she was terminated from service.
The petitioner immediately contacted the HR Manager
Thiru Krishnan over phone but, he doesn't responded
properly. Thereafter, the petitioner tried several occasions
to meet the CEO but, ended in vain. Therefore, the petitioner
had sent letter on 03-06-2014 to the management regarding
her April month salary and refusal of employment.
But, the respondent management purposely, willfully and
wantonly not replied the same for the reasons best known
to them. The act of the management by orally dismissing
the petitioner is against Industrial Disputes Act and principles
of natural justice. From 2008 the petitioner served for
596
LA GAZETTE DE L’ETAT
[15 May 2018
the period of 365 days per year with continuous
employment. Without any justice or reasons the respondent
management sue motto and blindly terminated the
petitioner from the service without any legal procedure
which is contemplated under the labour laws, which is
absolutely against the labour laws as well as the principles
of natural justice and therefore, the said alleged impugned
oral order of the respondent management is against and
violation of section 25-F of Industrial Disputes Act, 1947.
Therefore, the petitioner has raised an industrial dispute
on 18-06-2014 and the same is not amicably settled and
hence, the Puducherry Government has referred the dispute
for proper adjudication. Therefore, the petitioner prayed
this Court to pass an order directing the respondent
management to reinstate the petitioner with full back wages,
continuity of service and all other attendant benefits.
3. The brief averments in the counter filed by the
respondent are as follows:
The petition filed is neither maintainable in law nor
sustainable on facts. The petitioner stopped report to
duty and attending her work on her own accord from
12-04-2014 in order to avoid receiving a memo issued
to her. The respondent management had tried in vain to
give a memo in person to the petitioner for grave
misconduct, misdeeds and other activities which amount
to breach of trust. The petitioner refused to receive the
memo tendered to her in person on two occasions and
knowing that on 12-04-2014, she would not be able to
avoid receiving the memo she stopped coming for work
from the afternoon of 12-04-2014. It is denied by the
respondent that the petitioner is working with the
respondent Hospital since 2008 without any blemish and
the allegations that the petitioner is dedicated and very
sincere on her duties and due to administrative reasons
various changes occurred in the administration set up of
the management are false, irrelevant and concocted. It
is further denied by the respondent management that Mrs,
Geethanjali, Chairperson and CEO of the respondent
management had contacted the petitioner over phone on
12-04-2014 and orally ordered not to come to work
hereafter in spite of the same the petitioner went to duty
on 14-04-2014, whereas, the petitioner was stopped at
the entrance by the management Security and was not
allowed inside the Hospital. The allegations that the
petitioner questioned the Security for not allowing inside
for which the Security person stated that he was informed
by the management that not to allow her inside as she
was terminated from service are false. It is denied by
the respondent management that the petitioner immediately
contacted the HR Manager Thiru. Krishnan over phone
but, he doesn't responded properly. The allegations that
thereafter, the petitioner tried several occasions to meet
the CEO but, ended in vain and that therefore, she had sent
letter on 02-06-2014 to the management regarding her
April month salary and refusal of employment are false.
It is denied by the respondent management that the
management purposely, willfully and wantonly not replied
the same for the reasons best known to them and the
allegation that the act of the management by orally
dismissing the petitioner is against Industrial Disputes Act
and principles of natural justice is false. It is denied by
the respondent management that the petitioner served for
the period of 365 days per year with continuous
employment from 2008 and the allegations that without
any justice or reasons the respondent management
sue motto and blindly terminated the petitioner from the
service without any legal procedure which is contemplated
under the labour laws, which is absolutely against the
labour laws as well as the principles of natural justice and
therefore, the said alleged impugned oral order of the
respondent management is against and violation of section 25-F
of Industrial Disputes Act, 1947 are false. There is no
industrial dispute and the ID is not maintainable and the
petition for reinstatement with full back wages, continuity
of service and all other attendant benefits is not
maintainable since the petitioner has not filed the claim
petition under any specific provision of law and that
therefore, the claim petition filed by the petitioner is
to be dismissed.
4. In the course of enquiry on the side of the petitioner
PW.1 & PW.2 were examined and Ex.P1 to Ex.P7 was
marked and on the side of the respondent, no oral evidence
has been let in and no exhibit has been marked.
5. Both sides are heard. The pleadings of the parties,
the evidence let in and the exhibits marked on side of
the petitioner are carefully considered.
6. The point for consideration is:
Whether the dispute raised by the petitioner against
the respondent management over her non-employment
is justified or not and if justified, what is the relief entitled
to the petitioner?
7. In order to prove the case the petitioner was examined
as PW1 and she has stated in his evidence that she was
working at the respondent establishment from 2008 and
on 12-04-2014, the Chief Executive Officer of the
respondent had ordered orally that not to come to work
and on 14-04-2014 while she was made an attempt to
enter into the Hospital the Security has stopped and has
not allowed her to enter into the Hospital and the Security
has stated that he was informed by the management that
do not allow the petitioner as that she was terminated
597
15 May 2018]
LA GAZETTE DE L’ETAT
from service and evenafter she made several demands
to meet the Chief Executive Officer she was not allowed
to meet him and hence, she has sent a letter
on 02-06-2014 to the management regarding her salary
for the month of April and for employment and that the
management had not followed any principles of natural
justice and hence, she has raised the industrial dispute
on 18-06-2014 before the Conciliation Officer against
the act of the respondent management that abundantly
terminated from service without any legal procedure and
without following the provision of the section 25-F of the
Industrial Disputes Act. In support of her evidence PW.1
has exhibited the copy of the letter sent by the petitioner
to the respondent management on 02-06-2014 as Ex.P1,
the copy of the dispute raised by the petitioner before
the Labour Officer (Conciliation) as Ex.P2, the copy of reply
submitted by the respondent management before the Labour
Officer (Conciliation) as Ex.P5, the copy of conciliation
call letter sent by the Labour Officer to the petitioner
as Ex.P4, the copy of the conciliation failure report as
Ex.P5 and the reference letter of the Puducherry
Government as Ex.P6.
8. Further to prove her case the petitioner has examined
the staff of the Provident Fund Office as PW.2 and he
has stated that the petitioner is the subscriber of the
Provident Fund from 01-12-2008 at the respondent
Hospital and the respondent Hospital also had been paying
subscription to the petitioner and lastly subscription was
paid on April, 2014 and PW.2 had exhibited the Form-9
with account statements of the Employee's Provident fund
organization for the payment of contribution of EPF
as Ex.P7.
9. The oral evidence of PW.1 and PW.2 and exhibits
marked by them would go to show that the petitioner had
been working at the respondent Hospital and the
respondent hospital has paid EPF contribution to the
petitioner from 2008 and continuously the respondent
management had paid contribution in the name of the
petitioner from 2008-2009 till 2014-2015 and the
petitioner had raised the industrial dispute before the
Conciliation Officer for which the respondent management
has also submitted the reply before the Conciliation Officer
and the reply was exhibited as Ex.P3 wherein, the
respondent management has stated that the petitioner has
committed grave misconduct and that the respondent
management had tendered in vain to give a memo in hand
to the petitioner and that the petitioner had not attended
the duty on 12-04-2014 in order to avoid to receive the
memo issued to her and that the petitioner has refused
to receive the memo tendered to her in person on two
occasions and that the petitioner is free to resume her
work and face disciplinary proceedings and she has to
be advised to report for duty and the management reserves
its right to initiate disciplinary proceedings and that they
have denied the other averments of the petitioner. It is
also revealed from Ex.P3 that the petitioner was working
at the respondent Hospital and she has not been given
any notice so far and no termination order was issued
in written manner and the petitioner has not even received
any show cause notice from the respondent establishment
for such an unauthorized absence.
10. It is the main contention of the respondent
management that the petitioner has not been terminated
from service and she has wantonly left from service to
avoid receiving memo and that they are ready to admit
her into service and at no point of time the petitioner
was terminated from service by the respondent
management and she has been asked through Conciliation
Officer to attend the duty since she was absent from service
wantonly from 12-04-2014 and the alleged oral termination
is false and that therefore, the claim petition filed by
the petitioner is to be dismissed. However, to oral evidence
has been let in and no documents have been exhibited
by the respondent to prove their contention.
11. From the evidence and pleadings of the petitioner
and the contention of the respondent management, it is
clear that the petitioner was working at the respondent
establishment and she has not been terminated so far and
no disciplinary action was taken against the petitioner
at any point of time and admittedly, no domestic enquiry
was conducted for any charge. Further, from the evidence
of PW.1 and PW.2, it is established by the petitioner that
she had been in service from 2008 at the respondent
establishment and that the respondent management has
paid EPF contribution for the period from 2008-2009
till 2014-2015 and she was not allowed to attend the duty
from 12-04-2014 and hence, she has raised the industrial
dispute before the Conciliation Officer and no disciplinary
proceedings was conducted against him.
12. It is stated by the respondent management
that the petitioner has wantonly left from service
from 12-04-2014 and to avoid receiving the memo the
petitioner was left from service. But, admittedly, the
respondent management has not sent any memo'to the
petitioner for her unauthorized absence for the period
from 12-04-2014 and no document is exhibited before
this Court by the respondent to prove that the memo was
given to the petitioner for her unauthorized absence and
that therefore, the alleged refusal of employment to the
petitioner without taking proper steps by the respondent
598
LA GAZETTE DE L’ETAT
[15 May 2018
management cannot be accepted. It can be presumed from
the fact that the petitioner has not been given any memo
for her unauthorized absence and no disciplinary action
has been taken for the alleged unauthorized absence and
that the petitioner was orally refused employment from
14-04-2014 as alleged by the petitioner, the alleged oral
refusal of employment to the petitioner is against the
principles of natural justice and the respondent has not
followed the procedures laid down under the principles
of natural justice while orally dismissing the petitioner
from service and hence, the petitioner is entitled for order
of reinstatement as claimed by her and as such, it is to
be held that the industrial dispute raised by the petitioner
against the respondent management over her non-
employment is justified and the petition is liable to be
allowed.
13. As this Court has decided that the industrial dispute
raised by the petitioner against the respondent management
over her non-employment is justified, it is to be decided
whether the petitioner is entitled for back wages as claimed
by her. There is no evidence that the petitioner is working
so far and that there is no proof exhibited before this
Court that she is working anywhere else. The respondent
has not proved the fact that the petitioner has been working
in any other establishment after refusal of employment.
However, the petitioner could have served at anywhere
else after refusal of employment. Considering the above
facts and circumstances, this Court decides that the
petitioner is entitled only for 25% back wages with
continuity of service and other attendant benefits.
14. In the result, the petition is partly allowed and the
industrial dispute raised by the petitioner against the
respondent management over her non-employment is
justified and Award is passed directing the respondent
management to reinstate the petitioner in service within
one month from the date of this Award and further directed
the respondent management to pay 25% back wages from
the date of industrial dispute raised by the petitioner before
the Labour Conciliation Officer till the date of
reinstatement with continuity of service and other attendant
benefits. No cost.
Dictated to the Stenographer, transcribed by her,
corrected and pronounced by me in the open Court on
this the 29th day of January, 2018.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
List of petitioner’s witnesses:
PW.1 — 26-12-2016 — Kalaiselvi
PW.2 — 05-12-2017 — Karthikeyan
List of petitioner’s exhibits:
Ex.Pl — 02-06-2014— Copy of letter sent by the
petitioner
to
the
respondent management.
Ex.P2 —18-06-2014— Copy of dispute raised
by the petitioner before
the
Labour
Officer
(Conciliation).
Ex.P3 —21-07-2014— Copy of reply submitted
by
the
respondent
management before
the
Labour
Officer
(Conciliation).
Ex.P4 —23-07-2014— Copy of conciliation call
letter sent by the Labour
Officer to the petitioner.
Ex.P5 —21-07-2015— Cop y o f co nciliatio n
failure report.
Ex.P6 —12-08-2015— Reference
letter
of
the
Government of Puducherry.
Ex.P7 — —
Copy of Form-9 with
account statements.
List of respondent’s witnessess: Nil
List of respondent’s exhibits : Nil
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
}|{
W.P. No. 24494/2014 & 32762/2016-