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Sentence arbitral du Travail .. 1004
Award of the Labour Court
..1004
de Tribunal.
.. 1021
Notifications du Gouvernement.. 1021
Government Notifications
..1021
.. 1023
Avis d’Adjudications
.. 1023
Tender Notices
..1023
.. 1025
Etablissements dangereux
.. 1025
Dangerous Establishments
.. 1025
.. 1027
Annonces
.. 1027
Announcements
..1027
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Dated : 14-8-2018
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2018 }
| 14 {
No.
33
Poudouchéry
Mardi
14
Août
2018 (23 Sravana 1940)
No.
Puducherry
Tuesday
14th
August
2018
1004
LA GAZETTE DE L’ETAT
[14 August 2018
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 74/AIL/Lab./T/2018,
Puducherry, dated 15th May 2018)
NOTIFICATION
Whereas, an Award in I.D (L) No. 04/2013, dated
28-03-2018 of the Industrial Tribunal-cum-Labour Court,
Puducherry in respect of the industrial dispute between
the management of M/s. Leo Fasteners and Thiru
D. Pazhanisamy, over non-employment has been received;
Now, therefore, in exercise of the powers conferred
by sub-section (1) of section 17 of the Industrial
Disputes Act, 1947 (Central Act XIV of 1947), read
with the notification issued in Labour Department’s
G.O. Ms. No. 20/91/Lab./L, dated 23-5-1991, it is
hereby directed by the Secretary to Government
(Labour), that the said Award shall be published in the
Official Gazette, Puducherry.
(By order)
S. MOUTTOULINGAM,
Deputy Labour Commissioner.
————
BEFORE THE INDUSTRIAL TRIBUNAL-CUM-
LABOUR COURT AT PUDUCHERRY
Present :Thiru G. THANENDRAN, B.Com.,M.L.,
Presiding Officer.
Wednesday, the 28th day of March 2018
I.D.(L). No. 04/2013
Thiru.D. Pazhanisamy,
No.17, 11th Cross Street,
Kurinchi Nagar, Lawspet,
Puducherry 605 008.
. . Petitioner
Versus
The Occupier,
M/s. Leo Fasteners,
No. 27-A, Industrial Estate,
Thattanchavady,
Puducherry-605 009.
. . Respondent
This industrial dispute coming on 21-03-2018
before me for final hearing in the presence of
Thiru L. Vinoba, Advocate for the petitioner and
M/s. Vrintha Mohan, Advocates for the respondent,
upon hearing both sides, upon perusing the case
records, after having stood over for consideration till
this day, this Court passed the following:
AWARD
1. This Industrial Dispute has been referred by the
Government as per the G.O. Rt. No. 5/AIL/Lab./J/2013,
dated 04-02-2013 for adjudicating the following:-
(i) Whether the dispute raised by Sri. D. Pazhanisamy
against the management of M/s. Leo Fasteners,
Puducherry over his non-employment is justified?
(ii) If justified, what relief the workman is
entitled?
(iii) 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 is a worker in the respondent
Company M/s. Leo Fasteners, Puducherry which is
one
of
the
leading
manufacturing
industry
functioning at Puducherry for few decades. The
petitioner
was
employed
as
‘Helper’
vide
appointment order, dated 20-07-2000 and working
in the said industry for the past 13 years. The
petitioner is now a permanent workman employed
in “Tapping” Section. The petitioner is a member of
‘Leo Fasteners Labour Welfare Union actively
participating in the day-to-day affairs of the union.
The respondent with arbitrary power kept the
workmen at its mercy depriving their basic
privileges and such act comes under unfair labour
practice on part of the respondent as per the
provisions of the Industrial Disputes Act. The
petitioner agitated before the respondent for all the
basic amenities and needs of the workers through
the union, by which he gathered the displeasure of the
management. The respondent has caused a charge-
sheet, dated 09-04-2010 on the petitioner alleging
that the petitioner was absent on 22-02-2010 and
continued his absence from 23-02-2010 without any
intimation. The petitioner requested 10 days time
vide letter, dated 15-04-2010 which was refused by
the respondent vide letter, dated 17-04-2010.
The petitioner has requested the respondent to
initiate domestic enquiry and induct him to work
pending enquiry vide letter, dated 17-04-2010. The
respondent has initiated domestic enquiry as against
the petitioner by suspending him vide suspension
order, dated 06-05-2010. The petitioner has
submitted his explanation, dated 20-07-2010 with
relevant documents by denying the allegations
levelled by the respondent in charge-sheet before the
Enquiry Officer. Since, the petitioner went on leave
1005
14 August 2018]
LA GAZETTE DE L’ETAT
on 22-02-2010 he contested the domestic enquiry
tooth and nail, by producing relevant documents and
proved beyond reasonable doubt that there is no
mischief on his part by the own admissions of the
witnesses produced by the respondent during cross
examination. Despite the fact, the Enquiry Officer
who danced to the tunes of the respondent, without
going through the admissions made by the witnesses
produced by the respondent, advised that the
petitioner was found guilty vide his report, dated
20-01-2012. The respondent on the strength of the
enquiry report, dated 20-01-2012 terminated the
petitioner on 17-04-2012. The petitioner was not
regularly provided with subsistence allowance
pending enquiry. The petitioner has raised a
conciliation proceeding before the Labour Officer,
(Conciliation) on 18-07-2012. On receipt of the
representation, conciliation was initiated. The respondent
in order to precipitate the conciliation proceedings,
had issued a cheque bearing number 966328 for a
sum of ` 84,399 towards Full and Final settlement
(terminal dues including subsistence allowance). The
petitioner has refused to accept the settlement and
returned the cheque to the respondent. The Labour
Officer (Conciliation) too warned the respondent
not to indulge in such activities pending conciliation
proceedings and instructed the respondent to pay the
subsistence allowance. The respondent again issued
two cheques bearing numbers 966346 and 966347
for a sum of ` 48,462 and ` 35,937 respectively
towards
subsistence
allowance
and
terminal
benefits. The Petitioner en-cashed the cheque
bearing number 966347 for a sum of ` 35,937
issued towards subsistence allowance and returned
the cheque bearing number 966346 for a sum of
` 48,462 the conciliation proceedings ended in
failure and therefore, the matter was referred
before this Hon'ble Court as stated above.
Further, the petitioner prays this Court to decide
the matter on the grounds that the petitioner is a
permanent employee working in the respondent
establishment for the past eight years. The petitioner
was a work aholic performing the work assigned to
him with utmost care to the satisfaction of the
respondent management with blemish less record.
The petitioner was resisted from entering the
factory premises from 23-02-2010 and he was not
assigned any work. The petitioner was served with
a charge-sheet, dated 09-04-2010 despite satisfactory
replies given and domestic enquiry was initiated.
Though the petitioner proved beyond reasonable
doubt that he was innocent of the allegations
levelled in the charge-sheet he was terminated
on 17-04-2012 against the principles of natural
justice. Therefore, he has to be reinstated with back
wages and continuity in service. The respondent
management was registered under the Factories Act
and they employed more than 120 workmen and they
come under the definition of industrial employment
(Standing orders) act to the conditions of discharge,
disciplinary etc., of the workmen employed in the
industry, there is no standing order in operation of
the industry. Therefore, prescribed model standing
orders shall be deemed to be adopted in the
industry. The punishment against the workmen is
completely contradicting the model standing orders.
The petitioner being the President of the ‘Leo
Fasteners Labour Welfare Union’ is bound to
question the high handedness of the respondent
management when they terminated 09 employees
without assigning any reason which fact was
established during the domestic enquiry. The
Emp lo yers were fo rced to agitate ag ainst
the respondent to safeguard their legitimate rights.
The respondent with the help of Police attacked the
employees and resisted them from entering into the
Industry. The respondent management taking into
consideration of the petitioner who came to the
rescue of the terminated employees resisted him
from entering the Industry. Further, all the request
and the pleas of the workmen to resume work have
been refused and rejected by the management
without offering fair opportunity to justify his stand.
The petitioner has agitated against the management
only when 9 employees were terminated from their
employment for no obvious reasons. The Industry
was closed till 04-04-2010 by the management and
therefore, the allegation that the respondent willfully
absented himself for more than 10 days is a sheer
product of imagination recited on advice to
victimise the petitioner. The petitioner was suspended
only after initiation of conciliation proceedings
in ID. No. 637/2010/LO(C)/AIL which was closed
by the Labour Officer (Conciliation) on representation
by the respondent that domestic enquiry is going to
be commenced. The respondent with the intention
to settle the scores had foisted false charges against
the petitioner under charge-sheet, dated 09-04-2010
stating that the petitioner has breached the relevant
provisions of the standing orders. Domestic enquiry
was initiated with false charges in a haste to satisfy
the management’s ego stimulated by reply letter,
dated 06-04-2010 issued by the petitioner who
requested to initiate enquiry to substantiate his
1006
LA GAZETTE DE L’ETAT
[14 August 2018
claims and contentions. The motive of the respondent
management is to curb the natural instinct of the
employees from agitating to safeguard their
legitimate rights. The respondent management’s
attitude exposes violation of the principles of
natural justice. The reply letters issued by the
petitioner, dated 23-03-2010 and 06-04-2010
would expose the fact that despite the petitioner
expressed his willingness to work, but, he was
neither permitted to meet the management staffs
nor assigned any work. There is no justifiable
reason to initiate domestic enquiry. Charges were
foisted in the charge-sheet, dated 09-04-2010 and
domestic enquiry was initiated only after a reply
letter,
dated
23-03-2010
addressed
by
the
petitioner. The petitioner was suspended only after
he had raised conciliation proceedings in ID. No.
637/2010/LO(C)/AIL, before the Labour Officer
(Conciliation). The period of delay in issuing the
charge-sheet was utilised by the management to
create and manipulate evidence against the
petitioner. The Enquiry Officer who conducted the
enquiry acted biasedly to benefit the respondent
management. The copies of the documents relied
and submitted on the side of the respondent
management were not verified with original even
after repeated demands made by the petitioner.
Further, certain documents were not produced by the
management which are vital for the petitioner to
disprove the charges levelled against him. The
petitioner was not allowed to have the defence
assistance of his own choice. Further, the Enquiry
Officer failed to record the petitioner’s version and
even the petitioner is deprived of the right of cross
examining the respondent's witness. The evidence
adduced by the management in the enquiry is not
convincing and the documentary evidences produced
before the Enquiry Officer is not relevant to the
charges levelled against the petitioner. The evidences
were created with ulterior motive to terminate the
petitioner at once. The respondent in order to put
an end to the union activity of the petitioner
fabricated the charge-sheet stating that the
petitioner is indulging in activities against the
provisions of the standing orders. No fair
opportunity was offered to the petitioner during the
domestic enquiry. The respondent in the course of
enquiry acted biased, the management witnesses
stated their evidence collectively which is not fair
and the process of cross examination is also
conducted unfairly. The petitioner evidences were
not allowed to establish the real facts and they were
shut from exhibiting the real facts. There is no fair
play of justice in conducting the domestic enquiry,
it is deliberately orchestrated by the respondent and
the Enquiry Officer too danced the tunes of the
respondent in order to terminate him deceitfully on
the strength of the fabricated evidences. The attitude
of the respondent management is to terminate the
workmen due to his involvement in union activities.
The petitioner is innocent of the allegations made
in the charge-sheet, dated 09-04-2010 and yet he is
being punished due to his involvement in union
activities which displeased the respondent. The
respondent’s objective and purpose is to keep the
petitioner out of the industry, thereby to put an end
to his legitimate union activities. The petitioner
therefore, prayed this Court to reinstate him with
continuity of service and pay full back wages from
the date of termination till the date of reinstatement.
3. The brief averments in the counter filed by the
respondent are as follows :
The respondent is a company incorporated under
the provisions of the Indian Companies Act. It is a
leading
manufacturer
of
fasteners
for
the
automotive industry. The annual turnover of the
company is about ` 75 crores. It has saved the
Indian nation large amounts of foreign exchange as
it has developed import substitute parts for
automotive industries. The respondent is a leading
manufacturer making nut blanks and heat treatment
for the automotive industry and supports and does
job work for Leo Fasteners Unit-II also. All the
contract of the company for supply of its goods to
its customers is time bound and requires to be
completed within a stipulated period of time and
failure of which could cause heavy loss and damages
to it apart from loss of business and cancellation
of orders and that even a casual delay in supply of
materials causes incalculable and unimaginable
hardship and prejudice, in addition to huge monetary
loss and therefore, it is very important that the
respondent runs the unit non-stop with utmost
decency, discipline ethics and performs its
obligations without any demur. The petitioner and
the respondent herein are well governed by the
‘Model Standing Orders’. All the allegations
contained in the claim statement are denied except
those that are specifically admitted. The reference
is bad in law and not maintainable and deserves to
be rejected in limine. There is no believable reason
or
logic
to
allege
against
the
respondent
management that it against its own employees.
1007
14 August 2018]
LA GAZETTE DE L’ETAT
No reasonable management which had invested huge
capital will go against its employees against their
betterment or against its own employer who are
working for its profit and progress. The petitioner
was appointed as Helper on 20-07-2000 and was
made permanent thereafter. The petitioner is a
chronic absentee right from the beginning and that
he used to take long leaves on false pretext or
another. The respondent management had pardoned
him umpteen number of times for such behaviors
and the management was always helpful to him in
times of his need and even when the petitioner
sought for loan with this respondent through the
State Bank of India, the management got it done and
that he was also extended assistance in the LIC
Policy under Salary Saving Scheme. The petitioner
apart from his other misconducts had with high
handedness started to threaten co-workers to join
his group for reasons best known to him and that he
was served with notices for the said charge on
05-08-2008 for which the petitioner sought a
extension of time without reply and thereafter, gave
a unconditional ‘Good Conduct Assurance’ on
13-08-2008. Under the above back-drop the
petitioner indulged in unlawful activities in and
around
the
premises
of
the
respondent
establishment and this petitioner had meticulously
planned for the illegal strike and around 59 workers
on 22-02-2010 was arrested by the SHO, D Nagar
in crime No. 70/2010 since, the petitioner and some
of his co-workers willfully and voluntarily indulged
in an unlawful and illegal strike disobeying an order
of Injunction, dated 30-04-2009 passed by the
Hon’ble Additional Sub-Judge, Puducherry in
l.A.290/2009 in O.S. 63/2009 and thereafter, the
petitioner unauthorisedly abstained from the work
without any intimation or permission. However, on
humanitarian grounds on 05-03-2010 the respondent
had called up the petitioner to report for duty
immediately on receipt of this letter, for which
there was no response from the petitioner and
belatedly on 20-03-2010 the petitioner submitted
a reply stating that the petitioner had participated
in the unauthorised and illegal strike as against the
respondent management from 22-02-2010 beside
the petitioner also gave malicious and evasive
replies that the management is preventing the
petitioner from work but, on the reality the
petitioner
had
deliberately
continued
his
unauthorised absence from work. It was constrained
to issue a detailed charge-sheet, dated 09-04-2010
with a show cause as against the petitioner which
was received by the petitioner and on 17-04-2010,
the petitioner gave a reply with mala fideness and
falsities besides admitting the illegal strike and
voluntarily requested for conducting a domestic
enquiry. The
petitioner was
sent letter of
suspension
on
06-05-2010.
Thereafter,
in
accordance with the legal principles enshrined
under the Labour Laws coupled with the principles
of natural justice a Domestic Enquiry Officer,
Advocate Ashok
Kumar
was
appointed
on
06-05-2010 and the notice of enquiry was served
on the petitioner and the enquiry date was also
intimated to the petitioner duly by a letter and all
the legal formalities were duly complied with and
the Enquiry Officer conducted the enquiry in utmost
evenhandedness and by adhering to all the essential
principles of natural justice, equity and fair play.
The domestic enquiry was conducted in a free and
fair manner giving full opportunity to the petitioner
to defend himself from 13-05-2010 to 20-08-2011.
The Enquiry Officer had explained the entire
proceedings in detail to the petitioner in vernacular
and the petitioner had revealed that it was
understood by him. The Enquiry Officer permitted
the petitioner to peruse the documents relied on by
the respondent and even copies of the documents
were provided after due verification with the originals
before the petitioner herein. The Enquiry Officer
offered permission to the petitioner to engage
defense assistance of his choice which was also
acknowledgd and accepted by the petitioner. The
Enquiry Officer explained to the petitioner that he
has right of cross examination of respondent’s
witness which was also acknowledgd and accepted
by the petitioner and acted upon. The entire enquiry
proceedings were conducted in Tamil which is the
mother tongue of the petitioner with which he is
conversant. The day to day proceeding notes of the
domestic enquiry were duly signed by the petitioner
without protest and agitation thus acknowledging the
fairness of the proceedings. The enquiry report was
based on the appreciation of the entire materials
placed on record by either of the parties by applying
the established principles of justice, equity and good
conscience. The enquiry report was served on the
petitioner which was duly received by him and that
adequate and reasonable opportunity was granted to
submit his explanation on the enquiry report. The
order of dismissal was a cumulative decision taking
into consideration all the aspects that were involved
in the case including the past conduct of petitioner.
In the enquiry pro ceed ings, the petitio ner
1008
LA GAZETTE DE L’ETAT
[14 August 2018
categorically admitted the fact that he remained
unauthorisedly absent from 22-02-2010 and had
taken part in the illegal strike as against the order
of injunction, dated 30-04-2009 by the Hon’ble
Additional Sub-Judge, Puducherry in I.A. No. 290/
2009 in O.S. No. 63/2009. Thereafter, the Enquiry
Officer submitted his detailed report, dated
20-01-2012 analyzing the charges levelled against
the petitioner in the light of the available records
and evidences and more importantly the admissions
made by petitioner during enquiry proceedings.
The Enquiry Officer came to the conclusion that the
petitioner was guilty of the charges levelled against
him in accordance with the model standing orders.
Immediately after the conclusion of the enquiry
proceedings it issued a notice along with the
domestic enquiry report to the petitioner on
07-03-2012 which was duly received by the
petitioner and the respondent on 13-04-2012 sent
a 2nd show cause notice to the petitioner seeking
for explanation and that the show cause notice was
acknowledgd by the petitioner and a bald,
malicious, fictions reply, dated 08-05-2012 was
furnished on the respondent and since the petitioner
did not give any valid, reasonable or sufficient cause
or explanation and the respondent has no other
alternative but, to terminate the petitioner from
services on 03-07-2012. The petitioner was
removed from the services for a grave misconduct
of absenteeism, which was admitted by him in an
independent and impartial domestic enquiry.
Therefore, the dismissal of petitioner from service
is fully justified and warrants non interference of this
Court. Even after the petitioner was charge-sheeted
and domestic enquiry was conducted, he remained
unauthorizedly absent and never showed any
inclination to report to duty. The petitioner did not
even respond to the 2nd show cause notice or the
termination order, which by itself shows that he had
actually abandoned his employment and was not
inclined to resume duty. Hence, the petitioner’s
dismissal was absolutely justified. Apart from
financial loss, the acts of the petitioner were also
leading
to
frustration
amongst
the
regular
employees as the absenteeism was causing additional
burden of work on those employees. The petitioner
was terminated only in accordance with the
principles of natural justice and that he was given
an opportunity to explain the show cause notice
issued by the management but, the explanation
tendered by him was unjust, unreasonable and
non-convincing. The Judicious appreciation of the
facts and circumstances of the case of the
petitioner, a strong disciplinary action is highly
warranted since, the conduct and chain of events
enacted by the petitioner showed no willful
inclination or orientation towards employment with
the respondent’s organisation despite enjoying
warnings and pardons umpteen number of times as
a result of which the respondent was left with no
other alternative than to impose a maximum
punishment of dismissal from service. The respondent
management had paid the ‘Subsistence Allowance’
to the petitioner as was laid by the parameters of
Labour Laws. The petitioner is put to strict proof
to show that on the date when he was terminated,
the conciliation proceedings concerning him or
connected to him was pending. The industry was
closed till 04-04-2010 as was maliciously stated by
the petitioner. The petitioner had not shown any
inclination or willingness to work with the
employment of the respondent even during the
enquiry period and all the contrary allegations are
mala fide fantasies. The story of the petitioner about
the trade union and his involvement in it and the
managements intensions to terminate him due to his
involvement in the union activities are false and
stories invented by him to cover up his misconduct
leading to termination. The prayer by the petitioner
for reinstatement with full back wages and monitory
benefits is unjust and illegal since, the question of
reinstatement would not arise as he was legally
terminated on just and fair grounds. The petitioner
having accumulated technical skill and know-how is
employed for higher remuneration in a different
company and that he had not whispered in the
entirety of the petition that he is jobless and hence,
the question of back wages and monitory benefits
would not arise.
4. In the course of enquiry on the side of the
petitioner PW.1 was examined and Ex.P1 to Ex.P13
were marked and on the side of the respondent RW.1
was examined and Ex.R1 to Ex.R35 were marked.
Both sides are heard. The pleadings of the parties, the
evidence let in by either sides and the exhibits marked
on both sides are carefully considered.
5. The point for consideration is:
Whether the dispute raised by the petitioner
against the respondent management over his
non-employment is justified or not and if justified,
what is the relief entitled to the petitioner?
6. On the point:
In order to prove his case the petitioner has
examined himself as PW.1 and he has stated all the
facts which are stated in the claim petition and it is
the evidence of the petitioner PW.1 that he was
1009
14 August 2018]
LA GAZETTE DE L’ETAT
working at the respondent establishment as Helper
for the past 13 years as permanent workman in
“Tapping” Section and that the petitioner is the
President of Leo Fasteners Labour Welfare Union
and that the petitioner agitated before the
respondent for all the basic amenities and needs of
the workers through the union and to victimize the
petitioner the respondent has caused a charge-sheet
on 09-04-2010 alleging that the petitioner was
absent on 22-02-2010 and continued his absence
from 23-02-2010 without any intimation and that
though he asked 10 days time for reply, his request
was refused by the respondent on 17-04-2010 and
domestic enquiry was ordered and domestic enquiry
was initiated against the petitioner by suspending
him and that though he submitted his explanation
with relevant documents by denying the allegations
levelled against him in the charge-sheet before the
Enquiry Officer, the management has ordered for the
domestic enquiry wherein, it was proved by the
petitioner that there is no mischief committed by
him and the Enquiry Officer danced to the tunes of
the respondent and he submitted the report on
20-01-2012 stating that the petitioner was found
guilty and that therefore, the management has
terminated the petitioner on 17-04-2012 and that
subsistence allowance was not paid regularly to the
petitioner and that therefore, conciliation was raised
by the petitioner on 18-07-2012 and precipitate the
conciliation proceedings wherein, a cheque bearing
number 966328 was issued for a sum of ` 84,399.00
towards full and final settlement which was refused
by the petitioner and returned the cheque to the
respondent and that the respondent management was
also advised and warned by the Labour Officer
(Conciliation) that not to indulge in such activities
pending conciliation proceedings and instructed the
respondent to pay the subsistence allowance and that
therefore the subsistence allowance was paid to the
tune of ` 35,937 towards subsistence allowance and
another cheque issued by the management towards
terminal benefits was returned by the petitioner and
the conciliation was failed and the matter has been
referred to this Court.
7. In support of his case the petitioner has exhibited
Ex.P1 to Ex.P13. Ex.P1 to Ex.P3 are the copy of the
representation sent by Leo Fasteners Unit-II Labour
union to the Labour Secretary, Puducherry, the Deputy
Labour Commissioner, Puducherry and to the
Managing Director, Leo Fasteners Unit-II. Ex.P4 is
the copy of the returned postal cover, dated
12-03-2010. Ex.P5 is the copy of the letter sent by
the petitioner seeking allocation of work on
20-03-2010. Ex.P6 is the copy of the returned postal
cover. Ex.P7 is the copy of the explanation letter.
Ex.P8 is the copy of the explanation letter with
acknowledgment Card. Ex.P9 and Ex.P10 are the copy
of the conciliation proceedings raised by Leo
Fasteners Unit-II. Ex.P11 is the copy of the proof of
service issued by the Superintendent of posts, dated
17-05-2010. Ex.P12 (series) are the copy of
photograph of the petitioner standing outside the
company. Ex.P13 is the copy of the reply given by Leo
Fasteners Management. These documents would reveal
the fact that the Labour union has sent a letter to the
Labour
Secretary,
Puducherry,
Deputy
Labour
Commissioner, Puducherry and to the Managing
Director, Leo Fasteners Unit-II and the letter sent by
the petitioner was returned as unclaimed and
conciliation proceedings was raised by the union.
Further, the documents would reveal the fact that the
union has made a complaint against the non-
compliance with the provisions of factories act of the
respondent management and has claimed to provide
safety measures like hand gloves, goggles, mask and
appropriate first aid and ambulance facilities, canteen
facility and for proper drinking water with sufficient
dining facilities and to repair and relay the damaged
unsafety electric wiring.
8. On the side of the respondent management the
HR-Manager of the respondent establishment was
examined as RW.1 and he has reiterated the counter
statement filed by the respondent management. It is the
evidence of the RW.1 that they are the leading
manufacturer of fasteners for the automotive industry
and making nut blanks and heat treatment for the
automotive industry and that the petitioner and the
respondent are well governed by the model standing
Orders and that the petitioner is a chronic absentee
right from the beginning and used to take long leaves
on false pretext or another and the management had
pardoned him number of times for such behaviours and
the management was always helpful to him in times of
his need and even when he sought for loan it was
arranged by the management through State Bank of
India and he was also extended assistance in other
Schemes and that apart from the misconducts the
petitioner had with high handedness started to threaten
co-workers to join his group for the reasons best
known to the petitioner and he was served with notices
for the said charge on 05-08-2008 and that on
13-08-2008 unconditional good conduct assurance
was given by the petitioner and thereafter, the
petitioner indulged in unlawful activities in and around
1010
LA GAZETTE DE L’ETAT
[14 August 2018
the premises of the respondent herein and on
22-02-2010 he was arrested by the SHO, D Nagar in
Crime No. 70/2010 since, the petitioner and some of
his co-workers willfully and voluntarily indulged in an
unlawful and illegal strike disobeying an order of
Injunction passed by the Hon’ble Additional Sub-Judge,
Puducherry
and
thereafter,
the
petitioner
unauthorisedly abstained from the work without any
intimation or permission and on humanitarian grounds
on 05-03-2010 the management had called upon the
petitioner to report for duty for which there was no
response from the petitioner and belatedly on
20-03-2010 the petitioner submitted a reply stating
that the petitioner had participated in the unauthorised
and illegal strike as against the management from
22-02-2010 and that it was constrained to issue a
detailed charge-sheet on 09-04-2010 with show cause
as against this petitioner for which the petitioner gave
a reply with mala fideness and falsities besides
admitting the illegal strike and voluntarily requested
for conducting a domestic enquiry and he was sent
letter of suspension on 06-05-2010 and enquiry notice
was served on the petitioner and enquiry was initiated
against the petitioner after following the legal
formalities and that the domestic enquiry was
conducted in a free and fair manner giving full
opportunity to the petitioner to defend himself from
13-05-2010 to 20-08-2011 and the Enquiry Officer
also had explained the entire proceedings of the
domestic enquiry and the Enquiry Officer permitted
the petitioner to peruse the documents relied on by the
respondent and even copies of the documents were
furnished after due verification with the originals and
the Enquiry Officer also has given permission to the
petitioner to engage defense assistance of his choice
and the same was also acknowledgd and accepted by
the petitioner and that the entire enquiry proceedings
were conducted in Tamil and the same was signed by
the petitioner without protest and that the petitioner
himself acknowlegd the fairness of the proceedings
and that the enquiry report was based on the
appreciation of the entire materials and reasonable
opportunity was granted after the enquiry report was
furnished to him to submit his explanation and that this
petitioner had admitted that he had remained
unauthorisedly absent from 22-02-2010 and had taken
part in the illegal strike as against the order of
injunction,
dated
30-04-2009
by
the
Hon’ble
Additional Sub-Judge, Puducherry and that the Enquiry
Officer came to the conclusion that the petitioner was
guilty of the charges levelled against him in
accordance with the model standing orders.
9. In support of their evidence the respondent
management has exhibited Ex.R1 to Ex.R35. Ex.R1 is
the copy of the good conduct assurance signed by the
petitioner on 13-08-2008. Ex.R2 is the copy of the
letter sent by the petitioner on 20-03-2010 to the
respondent management as reply to the letter, dated
05-03-2010. Ex.R3 is the copy of the show cause
notice sent by the respondent management on
09-04-2010 to the petitioner. Ex.R4 is the letter of
authorisation, dated 29-12-2017. Ex.R5 is the copy
of the letter sent by the respondent management on
05-03-2010 to the petitioner regarding unauthorised
absence from work from 23-02-2010. Ex.R6 is the
copy of the letter sent by the petitioner on 03-04-2010
to the HR Manager of the respondent establishment.
Ex.R7 is the copy of the letter sent by the petitioner
on 17-04-2010 to the respondent management
regarding the show cause notice, dated 09-04-2010.
Ex.R8 is the copy of the enquiry intimation notice
from the Enquiry Officer, dated 08-05-2010. Ex.R9
is the copy of the letter sent by the petitioner on
18-04-2011 to the respondent management. Ex.R10
is the copy of the explanation letter to the show cause
notice, dated 09-04–2010 sent by the petitioner to the
respondent management. Ex.R11 is the enquiry report
in English, dated 20-01-2012. Ex.R12 is the enquiry
report in Tamil, dated 20-01-2012. Ex.R13 is the
copy of the letter sent by the respondent management
on 07-03-2012 to the petitioner. Ex.R14 is the copy
of the letter sent by the petitioner on 05-04-2012 to
the respondent management regarding the letter, dated
07-03-2014. Ex.R15 is the copy of the second show
cause notice sent by the respondent management on
13-04-2012 to the petitioner. Ex.R16 is the copy of
the letter sent by the petitioner on 08-05-2012 to the
respondent management regarding the letter, dated
13-05-2012. Ex.R17 is the copy of the letter sent by
the petitioner on 14-05-2012 to the respondent
management. Ex.R18 is the copy of the notice, dated
17-05-2012 from Labour Department, Puducherry.
Ex.R19 is the copy of the letter sent by the petitioner
on 25-06-2012 to the respondent management. Ex.R20
is the copy of the dismissal letter sent by the respondent
management on 03-07-2012 to the petitioner. Ex.R21
is the copy of the letter sent by the respondent
management on 05-07-2012 to the petitioner. Ex.R22
is the copy of the letter sent by the petitioner on
06-07-2012 to the respondent management. Ex.R23 is
the copy of the letter sent by the respondent
management on 07-08-2012 to the Labour Officer
(Conciliation) regarding termination of the petitioner.
Ex.R24 is the copy of the letter sent by the respondent
1011
14 August 2018]
LA GAZETTE DE L’ETAT
regarding pending allowance and cheque copy, dated
23-08-2012. Ex.R25 is the copy of the letter sent by
the respondent on 25-08-2012 to the Labour
Department. Ex.R26 is the copy of the letter sent by
the petitioner to the respondent regarding the letter,
dated 23-08-2012. Ex.R27 is the copy of the letter
sent by the respondent to the petitioner regarding
separate cheques for subsistence allowance and final
settlement along with annexures, dated 05-09-2012.
Ex.R28 is the copy of the letter sent to the Labour
Department by the respondent regarding the payment
of dues to the petitioner on 11-09-2012. Ex.R29 is the
copy of the letter sent by the petitioner to the
respondent on 11-09-2012. Ex.R30 is the copy of the
letter sent by the petitioner to the Labour Officer
(Conciliation) on 11-09-2012. Ex.R31 is the copy of
the explanation letter sent by the respondent on
04-10-2012 to the Labour Department regarding
dismissing the petitioner. Ex.R32 is the copy of the
letter sent by the petitioner on 08-10-2012 to the
Labour Officer (Conciliation). Ex.R33 is the copy of
the report on failure of conciliation sent to the Labour
Secretary, Puducherry, dated 20-12-2012. Ex.R34 is
the copy of notification from the Government of
Puducherry, dated 04-02-2013. Ex.R35 is the copy of
notice of hearing from the Hon’ble Labour Court,
dated 27-02-2013.
10. From the evidence of PW.1 and RW.1 and
exhibits marked on their side it can be noticed that the
following facts are admitted by either side that the
petitioner was working at the respondent establishment
as permanent worker and there was a strike for some
demands on 22-02-2010 and that the petitioner was
charged for unauthorised absence and domestic
Enquiry Officer was appointed to decide unauthorised
absence of the petitioner from 23-02-2010 and
enquiry was conducted by the Enquiry Officer wherein,
the petitioner has participated and the Enquiry Officer
has submitted the report found guilty of the charges
against the petitioner and thereafter, the show cause
notice was given to the petitioner and thereafter, the
petitioner was terminated from service by the
respondent management.
11. It is the main contention of the petitioner that
domestic enquiry has not been conducted properly and
it is not conducted in accordance with the principles
of natural justice and is not fair on the ground that even
the charge was framed under the model standing order
while the company is having its own certified service
standing order and furthermore the second contention
of the petitioner is that punishment given by the
respondent management for the alleged misconduct of
unauthorised absence is highly disproportionate and
therefore, the termination order passed by the
management is not sustainable and the petitioner is
entitled for the order of reinstatement as claimed in
the claim statement with back wages.
12. In respect of the first contention, the learned
Counsel for the petitioner has submitted the argument
that the disciplinary action was taken against the
petitioner only on the model standing order not under
the service standing order of the respondent company.
Though the respondent industry having its service
standing order they have not followed it and hence, the
charges levelled against the petitioner itself is not
sustainable. On this aspect the learned Counsel has
pointed out that the enquiry report under Ex.R11 would
reveal the fact that the petitioner was charged under
the model standing order and the charge has not been
levelled against the petitioner under the certified
service standing order of the company. The charges
levelled against the petitioner have been stated in the
enquiry report under Ex.R11 in which the portion of
it runs as follows :
“The above-mentioned activity of yours are grave
in nature, if, proved are equivalent to the following
misconducts according the model standing orders,
1. Voluntarily, individually or collectively not
obeying the orders of the Supervisors, standing
order No: 14 (3) (a).
2. Remaining in absenteeism for more than
days. standing order : 14(3)(c).
3. Habituated Prohibition of the rules and
regulations of the management standing order
No:14 (3) (g).
4. Indulging in disciplinary activities during
the working hours. 14(3)(h).
5. Involving in strike illegally, prohibiting the
rules, intimidating others to involve in strike.
standing order No:14 (3) (k).
If, proved true, the charges above which are
levelled against you are serious misconducts according
to model standing orders.”
From the above it is clear that the petitioner was
charged only under the model standing order and the
petitioner was charged for the misconduct under
clause 14 (3) (a), 14 (3) (c), 14 (3) (g), 14 (3) (h) and
14 (3) (k) of the model standing order. It is the case
of the petitioner that the respondent management
having its
own service standing order and the
1012
LA GAZETTE DE L’ETAT
[14 August 2018
employees were given service standing order at the
time of their appointment and when they became
permanent. The RW.1 in his cross examination has
stated as follows :
“
standing order
Standing
Order
standing
order
charge-sheet
model
standing
order
standing order-
standing order
model standing order
standing order
model standing
order
standing order (a), (c),
(g), (h) (k)
Standing Order
ESI
misconduct,
misbehave
”
From the above evidence of RW.1, it is clear that
the respondent management has accepted that they are
having service standing order and the same was
furnished to the employees at the time of their
appointment and they have to be acted according to the
service standing order and the charges have not been
levelled as per the service standing order against the
petitioner and the charge mentioned under clause 14
(3) (a), 14 (3) (c), 14 (3) (g), 14 (3) (h) and 14 (3) (k)
have not been in the service standing order and clause
14 would speak only about the ESI contribution and it
has not spoken any misconduct or misbehavior of the
employees and RW.1 has corroborated the same by
perusing the service standing order of the company in
the above evidence. Furthermore, the respondent
management in I.D. (L). No. 9/2013 has exhibited the
service standing orders of the company as Ex.R6 and
Ex.R11 respectively which were given to the petitioner
in the above said industrial dispute at the time of his
appointment and when he was given permanent status
by the respondent management and these copies are
furnished by the management to the petitioner in the
abovesaid industrial dispute with the direction to
follow it in their service. While so, the charges were
framed against the petitioner without following the
service standing order of the respondent company and
charges were framed only on the model standing order
cannot be tenable.
13. Further, from Ex.R29 the letter sent by the
petitioner to the Labour Conciliation Officer, it is
learnt to this Tribunal that the petitioner has challenged
the service standing order on 19-08-2010 in the
enquiry. The RW.1 in his cross examination has
further, stated as follows :
“Model standing order
standing order
model standing order
standing order
”
From the above evidence it is clear that the
respondent management is having service standing
order and while so the charges have not been framed
under the respondent’s own service standing order
which was admitted by RW.1 in his evidence after
perusing the service standing order of the company
which was exhibited by the respond ent in
I.D. (L). No. 9/2013 as Ex.R6 and Ex.R11 that the
charges mentioned in the clause XIV of the service
standing order of the company is only relating to
payment of contribution regarding ESI and not about
any misconduct or misbehavior of an employee and
that therefore, it is clear from the above evidence
1013
14 August 2018]
LA GAZETTE DE L’ETAT
that the charges have been mistakenly laid against
the petitioner under clause XIV of the model
standing order while workers have been directed to
follow the service standing order of the company
when they have been appointed as an employee.
14. Further, it is admitted by RW.1 that they are
used to give standing order while the employees have
became permanent and this petitioner was also given
standing order when he became permanent and every
employee has to follow the own standing order. While
it was admitted by the respondent management this
Court does not find any reason why the petitioner has
been charged under the model standing order and
further it is the contention of the petitioner that he has
not been allowed to enter into the respondent
establishment though he has made attempt to enter into
the factory and it is also learnt from the records Ex.P1
to Ex.P3 the representation made by the union that that
they have made some demands to the management that
the employees are in indefinite strike from 22-02-2010
for their fundamental grievances and non-compliance
with the provisions of the Factories Act for safety
measures, canteen facilities, toilet facilities and it is
also learnt from Ex.P2 that the union has sent a letter
to the Deputy Commissioner of Labour, Puducherry
regarding the fact that the respondent management has
not provided safety measures, etc., in the factory.
Further, it is learnt from the said letter that the said
letter was sent after they have declared strike and that
therefore, the charges levelled against the petitioner by
the respondent management that the petitioner is
unauthorisedly absent from 22-02-2010 cannot be
accepted while the union has undergone strike and the
strike notice was given regarding their strike to the
management. Further, it is learnt from the records filed
by the respondent management that on the complaint
of the respondent management some of the workers
have been arrested by the police while they have
commenced strike on 22-02-2010 and further, the
charges also has not been properly laid against the
petitioner under the own service standing order while
it was admitted that the service standing order was
existing in factory at the respondent establishment
which was alleged to have been furnished to the
employees at the time of appointment and when they
became permanent
employee and
advised
the
employees to follow the same in service.
15. Furthermore, as rightly pointed out by the
learned Counsel for the petitioner for the misconduct
of unauthorised absence for the period of more than
10 days the punishment of dismissal of an employee
is disproportionate since, absence is only due to the
strike announced by the union and furthermore, it is
not the case of the respondent management that the
petitioners have involved in some other cases earlierly
and committed any misconduct against the management
and no proof is exhibited before this Court to prove
the same and therefore, the alleged domestic enquiry
conducted against the petitioner is not in accordance
with the principles of natural justice as the charge
itself is not properly framed under the own service
standing order and furthermore, the punishment of
termination against the petitioner for the charge of
unauthorised absence for sometime without any prior
charges while the union in which the petitioner was the
president has undergone the strike and on the
complaint of the respondent management some of the
workers have been arrested by the police and they had
been in custody and hence, show cause notice could not
be given by the management for the unauthorised
absence knowing the fact that they are arrested on
their complaint and therefore, the contention raised by
the petitioner that the domestic enquiry is not
conducted properly and is not fair and is not in
accordance with the principles of natural justice is
established through evidence and further, the another
contention that the punishment of termination is not
proportionate to the misconduct of unauthorised
absence is also sustainable.
16. Further, it is learnt from Ex.P9 and Ex.P10
marked on the side of the petitioner that the union in
which the petitioner was the president has raised the
industrial dispute before the Conciliation Officer
against
the
management
of
the
respondent
establishment over the unfair labour practice and
against the victimisation of the labourers and it is not
disputed by the respondent that such industrial dispute
has not been raised by the union in which the
petitioner was the president. While the union has
raised
the
industrial
dispute
with
regard
to
victimisation and unfair labour practice committed by
the respondent management and while conciliation
proceedings were pending before the Conciliation
Officer the respondent management cannot take any
dismissal action against the petitioner without getting
approval of the Conciliation Officer and therefore, the
termination order passed against the petitioner without
getting prior permission of the Conciliation Officer
is also not sustainable and further, it is clear from the
order of dismissal under Ex.R20 that the order has not
been given with the payment of one month wage to the
petitioner and that therefore, the order of dismissal has
not been passed properly and therefore, it is to be held
that the industrial dispute raised by the petitioner
against the respondent management over non-employment
is justified and the petitioner is entitled for the order
of reinstatement as claimed by him in the claim
statement.
1014
LA GAZETTE DE L’ETAT
[14 August 2018
17. As this Court has decided that the industrial
dispute raised by the petitioner against the respondent
management over his 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 petitioner 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 his
termination. However, the petitioner could have served
at
any
other
industry
after
his
termination.
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.
18. In the result, the petition is allowed and the
industrial dispute raised by the petitioner against the
respondent management over his 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 to the petitioner from the date of
termination till the date of reinstatement with
continuity of service and other attendant benefits. No
cost.
Dictated to the Stenographer, transcribed by her,
corrected and pronounced by me in the open Court on
this the 28th day of March, 2018.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
————
List of petitioner’s witness:
PW.1
—12-09-2014 Pazhanisamy
List of petitioner’s exhibits:
Ex.P1 —25-02-2010 Copy of the representation
sent
by
Leo
Fasteners
Unit-II Labour union to the
Labour
Secretary,
Puducherry.
Ex.P2 —26-02-2010 Copy of the representation
sent
by
Leo
Fasteners
Unit-II Labour union to
the
Deputy
Labour
Commissioner, Puducherry.
Ex.P3 —01-03-2010 Copy of the representation
sent
by
Leo
Fasteners
Unit-II Labour union to the
Managing Director, Leo
Fasteners Unit-II.
Ex.P4 —12-03-2010 Copy of the returned postal
cover.
Ex.P5 —20-03-2010 Copy of the letter sent
by the petitioner seeking
allocation of work.
Ex.P6 —31-03-2010 Copy of the returned postal
cover.
Ex.P7 —03-04-2010 Copy of the explanation
letter.
Ex.P8 —17-04-2010 Copy of the explanation
letter with acknowledgment
card.
Ex.P9 —22-03-2010 Copy of the conciliation
proceedings raised by Leo
Fasteners Unit-II.
Ex.P10—22-03-2010 Copy of the conciliation
proceedings raised by Leo
Fasteners Unit-II.
Ex.P11—17-05-2010 Copy of the proof of
service
issued
by
the
Superintendent of posts.
Ex.P12—
Copy of photograph of the
(series)
petitioner standing outside
the company.
Ex.P13—09-06-2010 Copy of the reply given by
Leo Fasteners Management.
List of
respondent’s witness:
RW.1 —09-01-2018 N. Krishnan
List of respondent’s exhibits:
Ex.R1 —13-08-2008 Copy of the good conduct
assurance signed by the
petitioner.
Ex.R2 —20-03-2010 Copy of the letter sent by
the
petitioner
to
the
respondent as reply to the
letter, dated 05-03-2010.
Ex.R3 —09-04-2010 Copy of the show cause
notice sent by the respondent
to the petitioner.
Ex.R4 —29-12-2017 Letter of authorisation.
Ex.R5 —05-03-2010 Copy of the letter sent by
the
respondent
to
the
petitioner
regarding
unauthorised absence from
work from 23-02-2010.
1015
14 August 2018]
LA GAZETTE DE L’ETAT
Ex.R6 —03-04-2010 Copy of the letter sent by
the petitioner to the HR
manager of the respondent.
Ex.R7 —17-04-2010 Copy of the letter sent by
the
petitioner
to
the
respondent regarding the
show-cause notice, dated
09-04-2010.
Ex.R8 —08-05-2010 Copy
of
the
enquiry
intimation notice from the
Enquiry Officer.
Ex.R9 —18-04-2011 Copy of the letter sent by
the
petitioner
to
the
respondent.
Ex.R10—29-09-2011 Copy of the explanation
letter to the show cause
notice, dated 09-04-2010
sent by the petitioner to the
respondent.
Ex.R11—20-01-2012 Enquiry report in English
Ex.R12—20-01-2012 Enquiry report in Tamil.
Ex.R13—07-03-2012 Copy of the letter sent by
the
respondent
to
the
petitioner.
Ex.R14—05-04-2012 Copy of the letter sent by
the
petitioner
to
the
respondent regarding the
letter, dated 07-03-2014.
Ex.R15—13-04-2012 Copy of the second show
cause notice sent by the
respondent
to
the
petitioner.
Ex.R16—08-05-2012 Copy of the letter sent by
the
petitioner
to
the
respondent regarding the
letter, dated 13-05-2012.
Ex.R17—14-05-2012 Copy of the letter sent by
the
petitioner
to
the
respondent.
Ex.R18—17-05-2012 Copy of the notice from
Labour
Department,
Puducherry.
Ex.R19—25-06-2012 Copy of the letter sent by
the
petitioner
to
the
respondent.
Ex.R20—03-07-2012 Copy of the dismissal letter
sent by the respondent to
the petitioner.
Ex.R21—05-07-2012 Copy of the letter sent by
the
respondent
to
the
petitioner.
Ex.R22—06-07-2012 Copy of the letter sent by
the
petitioner
to
the
respondent.
Ex.R23—07-08-2012 Copy of the letter sent by
the
respondent
to
the
Labour Officer (Conciliation)
regarding termination of the
petitioner.
Ex.R24—23-08-2012 Copy of the letter sent by
the respondent regarding
the pending allowance and
Cheque copy.
Ex.R25—25-08-2012 Copy of the letter sent by
the
respondent
to
the
Labour Department.
Ex.R26—27-08-2012 Copy of the letter sent by
the
petitioner
to
the
respondent regarding the
letter, dated 23-08-2012.
Ex.R27—05-09-2012 Copy of the letter sent by
the
respondent
to
the
petitioner
regarding
separate
Cheques
for
subsistence allowance and
final settlement along with
annexures.
Ex.R28—11-09-2012 Copy of the letter sent to
the Labour Department by
the respondent regarding
the payment of dues to the
petitioner.
Ex.R29—11-09-2012 Copy of the letter sent by
the
petitioner
to
the
respondent.
Ex.R30—11-09-2012 Copy of the letter sent by
the petitioner to the Labour
Officer (Conciliation).
Ex.R31—04-10-2012 Copy of the explanation
letter sent by the respondent
to the Labour Department
regarding dismissing the
petitioner.
Ex.R32—08-10-2012 Copy of the letter sent by
the petitioner to the Labour
Officer (Conciliation).
Ex.R33—20-12-2012 Copy of the report on
failure of conciliation sent
to the Labour Secretary,
Puducherry.
1016
LA GAZETTE DE L’ETAT
[14 August 2018
Ex.R34—04-02-2013 Copy of notification from
the
Government
of
Puducherry.
Ex.R35—27-02-2013 Copy of notice of hearing
from the Hon’ble Labour
Court.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
————
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 75/AIL/Lab./T/2018,
Puducherry, dated 15th May 2018)
NOTIFICATION
Whereas, an Award in I.D. (T) No. 09/2010, dated
21-03-2018 of the Industrial Tribunal-cum-Labour
Court, Puducherry, in respect of the Industrial Dispute
between the management of M/s. Vinayaka Mission
Medical College and Hospital and Vinayaga Mission's
Staff Welfare Union, over various issues such as
transfer of Thiru Albert Tremot Anand parity in pay
between Thiru Muralitharan, promotion and
non-fixation of higher wages, etc., 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,
Deputy Labour Commissioner.
————
BEFORE THE INDUSTRIAL TRIBUNAL-CUM-
LABOUR COURT AT PUDUCHERRY
Present :Thiru G. THANENDRAN, B.COM., M.L.,
Presiding Officer.
Wednesday, the 21st day of March, 2018
I.D. (T) No. 09/2010
The Secretary,
Vinayaga Mission’s Staff Welfare Union,
No. 19, 4th Cross, Nehru Nagar,
Thalatheru (Post),
Karaikal-609 605.
. . Petitioner
Versus
The Management,
M/s. Vinayaka Mission Medical
College and Hospital,
Keezhakasakudimedu,
Kottucherry (Post),
Karaikal.
. . Respondent
This industrial dispute coming on 07-03-2018
before me for final hearing in the presence of
Thiruvalargal R. Ilancheliyan and R. Thilagavathi,
Advocates for the respondent, Thiru P. Muthukrishnan,
Advocate for the petitioner on record, the petitioner
being called absent and no representation for the
petitioner, upon hearing, 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. l92/AIL/Lab./J/0,
dated 24-09-2010 for adjudicating the following:-
(a) Whether the dispute raised by the Vinayaka
Mission’s
Staff
Welfare
Union
against
the
management of M/s. Vinayaka Mission Medical
College and Hospital, Karaikal over the following
issues are justified?
(i) Whether the transfer of
Thiru Albert
Tremot Anand, Medical Social Worker from
teaching cadre to non-teaching and reduction of
basic pay from ` 6,000 to ` 2,400 justified?
(ii) Whether the parity in pay between
Thiru Muralidharan who is drawing more than
` 500 to R. Ganesan is justified?
(iii) Whether the demand of Thiru
M. Senthilkumar, Attender seeking promotion for
the post of Lab. Assistant based on his qualification
on par with others is justified?
(iv) Whether the demand of higher fixation of
wages to Mrs. Nilavazhagi based on her
qualification and designation when comparing
with Mrs. Santhi is justified?
(v) Whether the demand of D.A. and other
other allowances as fixed in other institutions is
justified?
(b) If justified, what relief the petitioners are
entitled to?
(c) To compute the relief if any, awarded in terms
of money if, it can be so computed?
1017
14 August 2018]
LA GAZETTE DE L’ETAT
2. The averments in the claim statement of the
petitioner union, in brief, are as follows:
The workman union raised the following
allegations before the management. The first
allegation is that Mr. Albert Tremot Anand is
working
as
Medical
Social
Worker
since
17-07-2001. On 17-07-2001, he was appointed on
consolidated pay of ` 2,500 per month and then
enhanced as ` 3,000 per month consolidated. While
confirming all the staff, the character of salary was
changed from consolidated to pay structure by
fixing Basic Pay as `
5,000 with effect from
01-10-2002 then his pay was raised as ` 5,300 per
month from 02-01-2005 and by January 2005, the
basic pay was fixed as ` 6,000. Moreover, during
January 2006, his Basic Pay was reduced to ` 2,400
and subsequently in January 2007, the same has been
enhanced to ` 3,040 without any enhancement in
gross pay, Mr. C. Bageerathan has violated the codal
provisions under section 9A of Industrial Disputes
Act with regard to the reduction of basic pay without
prior notice. Moreover, though, his pay has been
changed from consolidated pay to the structure of
basic pay, the individual has not been paid with other
allowances such as DA, HRA, etc., as per the Rules
of Central Civil Service (Revised Pay) Rules, 1997.
The individual is legally eligible for pay with
allowances since 01-10-2002. As envisaged in 7th
and 9th condition in Part-I of fifth Schedule of the
Industrial Disputes Act, 1947, read with sec (ra), the
affected workman was transferred from teaching
cadre to non-teaching cadre and his basic pay was
reduced without prior notice and the same was not
done to other workmen. EPF was not deducted from
the date of his initial appointment. The nature of
work and duties of other two Medical Social
Workers serving in the Hospital are entirely
different from that of Thiru Albert Tremot Anand
working in Community Medicine Department in the
College, where he has to teach the students, etc., and
requested to hold his pay on par with the teaching
staff of the College.
The further allegation is that Thiru R. Ganesan,
was appointed as Heavy Driver during 2000 and one
Thiru Muralidharan, who was initially appointed as
Attender and promoted as Light Driver and after
3 years, he was promoted as Heavy Driver, was
drawing ` 500 more than Mr. R. Ganesan who was
appointed as Heavy Driver. The above activities of
the Management amount to (i) Changing seniority
rating of workman (ii) refusing to promote
workman to higher post due to trade union
activities and (iii) giving unmerited promotion to
certain workman with a view to undermine the
strength of their trade union which are nothing but,
unfair labour practice. While giving promotion,
seniority from the date of appointment should not be
considered
and
the
seniority
should
be
corresponding to the particular cadre in which he is
to be promoted.
The further allegation is that Mr. Senthilkumar,
who joined as an Attender was possessing the
certificate of Medical Lab Asst. and still continues
as Attender. It is a discrimination that priority was
not given to the qualification holders eventhough
there are more vacancies. Mr. Bageerathan, Manager
(Accounts and Administration) has favoured some
of the employees by designating them as Lab.
Assistant which amounts to unfair Labour Practice
and requested to consider Mr. Senthil Kumar for
promotion to the post of Lab. Assistant.
The further allegation is that one Mrs. Santhi,
who was appointed as personal Assistant to Director
and was regularized in the above-mentioned post,
is drawing more salary when compared to
Mrs. Nilavazhagi, who is working as P.A. to Principal
in the same capacity, also senior most is drawing
lesser salary and her category was brought down
from JM 3 to JM 2, eventhough, she is having
typewriting English Senior Grade, short hand, having
degree along with knowledge in Hindi as additional
qualification. Since, she is a member of Vinayaga
Mission Staff Welfare Union, she was not given
promotion as well as her category was reduced and
placed in lesser salary. The union demanded that DA
and other allowances as fixed in other institution
and stated that it created a heavy monetary loss to all
employees. The union demanded wages to all
employees for the strike period; further stated that
while the management agreed to pay 15 days salary
as ex gratia instead of 48 days, it is accepted by the
management that the strike is legal, the management
has to pay for the entire 48 days of strike period.
The union also demanded salary for the Teaching,
Non teaching, Administrative staff, Paramedical
staff, Ancillary staff of Medical College to be fixed
on par with the Government of Puducherry and
Government of India Medical Institutions. This
disputes were made to the Labour Conciliation
Officer. The management did not arrive at any
settlement and the conciliation ended in failure the
Conciliation Officer has referred this matter to the
Government and the Government through its
modification, dated 24-09-2010 has framed the
1018
LA GAZETTE DE L’ETAT
[14 August 2018
issues and has made section 10 reference to this
Tribunal. With respect to revision of wages,
allowances, an industrial dispute (T) No. 14/2009 is
pending before this Tribunal. Hence, the issue may
kindly be dropped. With regard to other issues, the
relevant records with the management.
3. The brief averments in the counter filed by the
respondent are as follows:
The respondent denied all the averments made by
the petitioner union except those that are
specifically admitted and stated that the claim of
the petitioner union in their claim statement is not
maintainable under law. The respondent is running a
Medical College and Hospital at Karaikal and there
are three registered unions namely, Vinayaka
Mission’s Medical College and Hospital non-Teaching
staff union, Vinayaka Mission’s Staff Welfare Union
and Vinayaka Mission’s Tholilalar Munnetra Sangam
respectively. Out of these three unions Vinayaka
Mission’s non-teaching staff union enjoys the
majority support of the non-teaching employees and
the petitioner union does not enjoy even 10% of its
members as required under the Trade Union
Act 1926. Therefore, the petitioner union as such
does not have any locus standi to raise this dispute.
The petitioner union made a complaint before the
Labour Officer, Karaikal alleging unfair labour
practice against the respondent management on the
ground that few employees had not been given
promotions and arbitrarily changed the service
condition of one Thiru Albert Tremot Anand by way
of bringing him from teaching to non-teaching
category and also revising the consolidated salary as
basic and other allowances. On these issues the
respondent management submitted detailed replies
and justified that there was no unfair labour practice
on the part of the management as claimed by the
petitioner union. Therefore, the terms of reference
ought to have been referred by the Government of
Puducherry whether there was any unfair labour
practice as claimed by the petitioner union instead
of which, a reference has been made regarding the
claim of the petitioner on the issues of revision of
pay, and promotions which is bad in law and not with
in the scope of the claim made by the petitioner
union. As far as revision of pay, promotions and
other matters relating to common issues are
concerned the respondent used to negotiate the
issues with the trade union and arrived at various
settlements under the Industrial Dispute Act, 1947.
The respondent arrived at such settlements after
discussing all the pros and corns with the trade
unions. The members of the petitioner union
accepting and enjoying all the benefits as per
settlements has raised these issues in respect of
some isolated cases which is not acceptable and
also against the principle of collective bargaining
mechanism provided under law. The petitioner Mr.
Albert Tremot Anand was appointed as Madical
Social Worker and a temporary appointment order
was issued on 17-07-2001 by the Dean,Vinayaka
Mission’s Medical College. He was given an amount
of ` 2,500 as salary. Subsequently, his salary was
periodically increased. In January 2003, he was
given ` 5,000 per month and in January 2004 he was
given ` 5,300 per month by an order dated 2nd
January 2004. In the said order it is clearly
mentioned the details of his salary structure and also
the said Albert Tremot Anand expressly accepted and
stating that “I hereby accept and abide by the above
terms and conditions in full contained therein” The
said Albert Tremot Anand was also periodically
sending letters to the management asking for
revision of salary and nowhere he requested to pay
any other allowances. Subsequently, he submitted a
letter dated 21st October 2005 asking to allow him to
continue on non-teaching cadre. His request was
taken up for consideration. As far as the individual
is concerned, he was appointed as Medical Social
Worker with effect from 18-07-2001 and was
holding a temporary position. Therefore, he was
paid a consolidated basic salary. There were two
more Medical Social Workers namely, G. Kannan
and Mouttousamy whose dates of appointments were
10-11-1999, 10-12-1998 respectively. When the
process of regularization was taken up, the services
of those two Medical Social Workers were
regularized and their wages were fixed as basic and
other
allowances.
Since,
the
individual’s
appointment was only in 2001 and was persistently
giving pressure, he was also taken up along with the
two other Social Workers who were senior to him
and a revised structure was worked out keeping in
view the total emoluments drawn by him and also
the pay structure fixed to other two Medical Social
Workers. While working out the revised pay
structure his last drawn wages were protected and in
no way his wages were reduced. Therefore, the claim
of the individual is incorrect. His wage structure
has been revised on par with other two Social
Workers who were senior to him and the right of the
individual has never been denied. As per our records
Mr. Ganesan @ Mariappan was appointed by an
order, dated 30-06-2000 and he is working with
effect from 5th July 2000. The services of
Mr. Ganesan were regularized in 2002 along with all
the non-teaching employees. Most of the employees
1019
14 August 2018]
LA GAZETTE DE L’ETAT
were appointed in different dates and were holding
different posts. The year 2002 was taken as base and
in whichever position they were holding in 2002
was taken as the criteria for regularization. If, at all
there was an anomaly, it should have been brought to
the notice of the management at the time of
regularization and the said Ganesan has not made
any objection. The regularization order was accepted
and the benefits given were also enjoyed by the
individual. Having enjoyed all these benefits now
making an objection is belated. Therefore, his claim
for
equating
with
other
employee
is
not
maintainable and there is no justification in the
claim of the individual. As per the particulars
submitted by Mr. Senthilkumar, he has stated that hi
has passed only 10th Std. at the time of his
appointment. He was appointed as Attender. Just
because had some particular training, he can not
claim promotion as a matter of right. Moreover,
taking up isolated cases for giving particular positions
may not be conducive in the interest of other
employees. Hence, the management is not in position
to consider. Mrs. Nilavazagy has already been
promoted with retrospective effect as Stenographer
(Grade-I) and she has accepted the revised salary
and arrears from July 2008. There is no disparities
in wages as claimed by the petitioner. Moreover, it
is the prerogative right of the respondent to assign
work and the petitioner does not have any legal right
to claim parity of work or responsibilities. The other
contentions/allegations made in the claim petition
do not have any relevancy to the terms of reference
and therefore, the respondent does not have any
obligation to reply. The dispute raised by the
petitioner is a subject matter to be decided with in
the jurisdiction of the Labour Court as the matters
are involving the interest of the other employees
which is to be decided by giving notices to other
employees who are likely to be affected. The
petitioner having filed a complaint alleging unfair
labour practice now filed claim petition to match
the terms of reference. The petitioner has already
stated in the claim petition that they are dropping
their claim regarding D.A. and other allowance as
fixed in other institutions as the matter is pending
before this Tribunal. In these circumstances, the
petition is not maintainable before this Hon’ble
Tribunal and this respondent is having every
justification in declining the claim of the petitioner
in general and particularly the isolated cases of
the four employees mentioned in the claim.
Therefore, prayed this court to dismiss the claim as
devoid of merits.
4. In the course of enquiry on the side of the
petitioner PW.l was examined and no further witness
was examined by the petitioner union and they have
closed their side and have not exhibited any documents
and the, case was posted for respondent side evidence.
Evenafter
granting
sufficient
opportunities
the
respondent has also not come forward to examine any
witness and mark any documents and therefore, the
evidence of the respondent side was closed and the
case was posted for arguments. Even after granting
sufficient opportunities no argument has been putforth
by the petitioner side and hence, the argument of the
petitioner side was closed. The argument of the
respondent side was heard. The pleadings of the
parties, the evidence let in by the petitioner side are
carefully considered.
5. The point for consideration is:
Whether the dispute raised by the Vinayaka
Mission’s
Staff
Welfare
Union
against
the
respondent management, over the issues regarding
the transfer of Thiru Albert Tremot Anand, the parity
in pay between Thiru Muralidharan to R . Ganesan,
the demand of Thiru.M.Senthilkumar, Attender,
the demand of higher fixation of wages to
Mrs. Nilavazhagi, the demand of D.A. and other
allowances as fixed in other institutions are
justified or not and if justified, what is the relief
eiltitled to them.
6. It is the case of the petitioner union that one
Albert Tremot Anand, was working as Medical Social
Worker since 17-07-2001 on consolidated pay at
` 2,500 per month and the same was enhanced as
` 3,000 per month consolidated and thereafter, his
basic pay was fixed as ` 5,000 with effect from
01-10-2002 and thereafter, his pay was raised as ` 5,300
per month from 02-01-2005 and thereafter, his basic
pay was fixed as ` 6,000 and subsequently, during
January 2006 his basic pay was reduced to ` 2,400 and
subsequently, which was enhanced to `
3,040 in
January 2007 and thereby, the management has violated
the provisions under section 9A of Industrial Dispute
Act with regard to the reduction of basic pay without
prior notice and he has not been given other
allowances such as D.A. HRA, etc., as per the Rules of
Central Civil Service (Revised Pay) Rules, 1997 and
the affected workman was transferred from teaching
cadre to non-teaching cadre and his basic pay was
reduced without prior notice and the same was not
done to other workmen and EPF was also not deducted
from the date of his initial appointment and it is
further, case o f the petitio ner unio n that o ne
1020
LA GAZETTE DE L’ETAT
[14 August 2018
R. Ganesan, was appointed as Heavy Driver during
2000 and one Thiru Muralidharan, who was initially
appointed as Attender and promoted as Light Driver
and after 3 years, he was promoted as Heavy Driver,
was 'drawing ` 500 more than Mr. R. Ganesan who was
appointed as Heavy Driver and brought before the
management to change the seniority rating of
workmen, the management has refused to promote
workman to higher post due to trade union activities
and the management has given unmerited promotion to
certain workmen with a view to undermine the strength
of their trade union and has committed unfair labour
practice and further, it is reported by the petitioner
union that one Mr. Senthilkumar, was joined as an
Attender was possessing the certificate of Medical Lab.
Assistant and eventhough, there are more vacancies,
Mr. Bageerathan, Manager (Accounts and Administration)
has favoured some of the employees by designating
them as Lab. Assistant without considering the request
of the Senthil Kumar for promotion to the post of Lab
Assistant and further, it has been stated by the petitioner
union that one Mrs. Santhi, who was appointed as
Personal Assistant to Director and was regularized in
the above-mentioned post, is drawing more salary when
compared to Mrs. Nilavazhagi, who is working as P.A.
to Principal in the same capacity, also senior most is
drawing lesser salary and her category was brought
down from JM 3 to JM 2, eventhough, she is having
typewriting English Senior Grade, short hand, having
degree along with knowledge in Hindi as additional
qualification and since, she is a member of Vinayaga
Mission’s Staff Welfare Union, she was not given
promotion as well as her category was reduced and
placed in lesser salary and the union also demanded
DA and other allowances as fixed in other institution
and stated that it created a heavy monetary loss to all
employees and hence, demanded wages to all
employees for the strike period and it also has
demanded salary for the Teaching, Non-teaching,
Administrative staff, Paramedical staff, Ancillary staff
of Medical College to be fixed on par with the
Government of Puducherry and Government of India
Medical Institutions.
7. The respondent management has filed the
counter statement stating that there are three
registered unions and this petitioner union is not the
majority union and it does not have even 10% of its
members as required under the Trade Union Act and it
has no locus standi to raise this dispute and the
allegation of the petitioner union that three employees
have been given promotion and arbitrarily changed the
service condition of one Thiru Albert Tremot Anand
and also revising the consolidated salary as basic and
other allowances is not true and as far us revision of
pay, promotions and other matters relating to common
issues are concerned the respondent used to negotiate
the issues with the trade union and arrived at various
settlements and the members of the petitioner union
accepting and enjoying all the benefits as per
settlements and that therefore, the industrial dispute
raised by the petitioner union is not sustainable and
one Mr. Albert Tremot Anand was appointed as Medical
Social Worker and while working out the revision of
wages his last drawn wages were protected and in no
way his wages were reduced and his wage structure was
revised on par with other two Social Workers who were
senior to him and the right of the individual has never
been denied and in respect of the allegation regarding
Mr. Ganesan @ Mariappan was working from 5th July
2000 and his services were regularized in 2002 along
with all the non-teaching employees and regularization
order was accepted by him and benefits were given and
the same were also enjoyed by the individual and
therefore, the claim for equating with other employee
is not maintainable and other allegation of the
petitioner union that one Senthilkumar was passed only
10th standard at the time of his appointment and
appointed as an Attender and he can not claim
promotion as a matter of right and that therefore, the
claim of the petitioner union is not sustainable and
further claim of the petitioner union that one
Nilavazagy
has
already
been
promoted
with
retrospective effect as Stenographer (Grade-I) and she
has accepted the revised salary and arrears from July
2008 and there is no disparities in wages as claimed by
the petitioner union and it is the prerogative right of
the respondent to assign work and the petitioner does
not have any legal right to claim parity of work and the
dispute raised by the petitioner union is a subject
matter to be decided with in the jurisdiction of the
Labour Court as the matters are involving the interest
of the other employees which is to be decided by
giving notices to other employees who are likely to be
affected and the respondent management has not
committed any unfair labour practice.
8. In order to prove their, case the petitioner union
has examined PW.1. But, in support of their oral
evidence the petitioner union has not exhibited any
documents. Though, the petitioner union has filed
petition in I.A. No. 233/2015 to summon some of the
documents which was allowed by this Court on
17-11-2017 and directed the respondent management
to produce the same and some of the documents were
produced by the respondent management, the said
documents have not been exhibited before this Court by
the petitioner union. Even after granting sufficient
opportunities no arguments has been putforth by the
petitioner side and therefore, the arguments of the
petitioner side was closed. On the other hand, though
the respondent has denied all the allegations of the
petitioner in their counter even after granting sufficient
opportunities they have not come forward to examine
any witness on their side and therefore, the evidence of
the respondent side was also closed by this Court.
1021
14 August 2018]
LA GAZETTE DE L’ETAT
9. Though, the petitioner union has raised the
industrial dispute against the respondent management
over the above said issues, it has not come forward to
exhibit any documents to establish their case and in
support of their oral evidence no document is
exhibited before this Court to prove their case. Even
the petitioner union has not established that the
industrial dispute was raised for the affected workers
and the said alleged workers have also not been
examined before this Court as witness to establish the
case of the petitioner union and therefore, nothing is
proved by the petitioner union as alleged in the claim
petition through the documentary evidence while the
oral evidence of the petitioner side witness PW.1 is
not supported by even the oral evidence of the affected
workmen to prove even the prima facie case of the
petitioner union and therefore, it is just and necessary
to decide that the industrial dispute raised by the
petitioner union against the respondent management
over the abovesaid issues is not justified and hence, the
members of the petitioner union are not entitled for
any relief as prayed for and as such the petition is
liable to be dismissed.
10. In the result, this petition is dismissed. No cost.
Dictated to the Stenographer, transcribed by her,
corrected and pronounced by me in the open Court on
this the 21st day of March, 2018.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
List of petitioner’s witness:
PW.1 — 01-07-2011 — M. Arokianathan
List of petitioner’s exhibits: Nil
List of respondent’s witnesses: Nil
List of respondent’s exhibits: Nil
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
[(iii)]
H.
A.
Ca.
LGR
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