

La Gazette de L' État de Poudouchéry

The Gazette of Puducherry



Publiée par Autorité

Published by Authority

` 21-00

Prix : ` 21-00

Price :

` 21-00



SOMMAIRES

CONTENTS



Page

Page

.. 1004

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

Registered with the Registrar

of Newspapers for India under

No. 10410

Registered No. PY/44/2018-20

WPP No. TN/PMG(CCR)/WPP-88/2018-20

Dated : 14-8-2018

Price : ` 21-00

[ 1003 ]







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 















}|{,



