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2018 } | 21 {
No.
34
Poudouchéry
Mardi
21
Août
2018 (30 Sravana 1940)
No.
Puducherry
Tuesday
21st
August
2018
1034
LA GAZETTE DE L’ETAT
[21 August 2018
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 76/Lab./AIL/T/2018,
Puducherry, dated 15th May 2018)
NOTIFICATION
Whereas, an Award in I.D. (T) No. 02/2011, dated
22-03-2018 of the Industrial Tribunal-cum-Labour
Court, Puducherry, in respect of the Industrial Dispute
between the management of M/s. Superfil Products
Limited, Puducherry and Superfil Products Workers
Union, Villianur, Puducherry, over wages disparity and
privileged leave to 6 workmen 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.
Thursday, the 22nd day of March 2018.
I.D. (T) No. 02/2011
The President,
Superfil Products Workers Union,
R.S. No. 28-8/12, Mangalam Road,
Villianur Commune,
Puducherry.
. . Petitioner
Versus
The Managing Director,
Superfil Products Limited,
Puducherry.
. . Respondent
This industrial dispute coming on 05-03-2018
before me for final hearing in the presence of
Thiruvalargal P.R. Thiruneelakandan and A. Mithun
Chakkaravarthy, Advocates for the petitioner and
Thiruvalargal M. Lakshmi Narasimhan and P. Sakthi,
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 of Puducherry as per the G.O. Rt. No. 32/
AIL/Lab./J/2011, dated 08-02-2011 for adjudicating
the following:-
(i) Whether the dispute raised by the Superfil
Products Workers Union against the management of
M/s. Superfil Products Limited, Puducherry seeking
privileged leave and wage benefits to 6 of its
workmen viz., 1. Paavadai, 2. Jayachandiran,
3. Baskar, 4. Swaminadhan, 5. Anjapuli and
6. Theepanjan who were not covered under the
existing 12(3) settlement is justified or not?
(ii) If justified what relief, they are entitled to?
(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 registered trade union and it is
only trade union in the respondent factory. By a
General Body resolution, dated 15-03-2009 the
President of the union is authorised to take up all
issues concerning the trade union and its members.
The present industrial dispute concerns 6 members of
the petitioner trade union. The petitioner union has
raised two fold dispute i.e., to direct the management
to compute privilege leave for all the workers in
accordance with the provisions of Factories Act and
consequently to pay the arrears of privileged leave
encashment for the unpaid period and to direct the
management to pay equal salary to the six workman as
is paid to the other confirmed operators by the
management who are doing work of exactly identical
nature and to pay the arrears of differential salary to
all the 6 workmen. Section 79 of the Factories Act
mandates annual leave with wages, which is also called
earned leave or privileged leave. As per section 79 of
Factories Act, an adult worker who has completed 240
days or more in a factory during a calendar year shall
be entitled for one (1) for every 20 days of work
1035
21 August 2018]
LA GAZETTE DE L’ETAT
performed by him during the previous calendar year as
annual leave. The Explanation-II to section 79 of
Factories Act provides that the leave admissible under
the said section shall be exclusive of all holidays
whether occurring during or at either end of the
periods of leave. In computing annual leave, the
weekly holiday and other paid holidays, statutory and
authorised leaves shall be considered as working days
and worker is deemed to have performed his work on
those days. Therefore, the annual leave shall be
calculated for the total number of days worker works
in the preceding year inclusive of all paid holidays,
weekly holidays, national and festival holidays, ESI
leaves, etc., where, the worker is deemed to have
worked on all those days. In violation of the statute,
the respondent has calculated annual leave by excluding
the weekly holidays, national and festival holidays ESI
leaves, etc., and only calculated the actual number of
days a worker was physically present in the factory.
It is clearly a misconception and misinterpretation of
section 79 or Factories Act. The annual leave is to be
given with wages. The respondent is bound to give
leave with a day's wages as Annual Leave. Since, the
respondent has extracted work on the annual holidays,
they are bound to pay wages for the work extracted as
well as wages for holiday, which means that they are
bound to pay twice the wages for those days. The
calculation for all the workers regarding their
entitlement to wages for the number of days of leave
denied by the respondent is given as Annexure A-l in
the claim petition. The second issue involved in the
present industrial dispute is one of the fundamental
issues governing industrial relations between the
employer and the employee. It is now a well
established principle of law as well as fundamental
right that equal pay should be given to all the workers
who are doing equal work and there cannot be
distinction made in the wages of 2 individuals who are
doing identical nature of work. The respondent is
flouting this fundamental rule of industrial law and
fundamental right with utmost impunity. The 6 workmen
involved in the present dispute have joined the
respondent's organisation on 21-04-2005. They
were initially inducted as management trainees on a
paltry consolidated wage of ` 1,800 per month. It is
most unfortunate that the respondent management kept
the 6 workmen as management trainee till 31-12-2006
and thereafter enrolled them on probation from
01-01-2007 till 31-12-2008. The respondent extracted
4-years of regular work on par with all confirmed
workers as trainee and probationer on a meager salary,
which was far lower than what was paid to the
confirmed workers in the same category. The very
engagement of 6 workmen as trainees/apprentices was
contrary to various statutes. The 6 workmen were
actually engaged as confirmed workmen but, they we
given the status of trainees only to avoid the statutory
obligations associated with confirmed workmen.
Therefore, all the 6 workers must be deemed to have
been the workers of the respondent from 02-04-2005
itself. It also the proposition of law that any worker
who works continuously for 240 or more days in
preceding year, shall be deemed to be in continuous
service and number of statutory benefits flows to such
workmen. The 6 workmen in the present industrial
dispute has completed 240 days of continuous services
in December 2006 itself when they were continuously
engaged by the respondent under the nomenclature of
management trainees but, were actually the direct
employees of this respondent. It is fundamental law
that once a person completes 240 days of continuous
service, his wages should be on par with the confirmed
workers engaged in the same category. There cannot
be any distinction or disparity in wages between a
confirmed workmen and workmen who is in continuous
services for 240 days or more, when both the workers
are doing the same nature of work. The respondent
herein had always maintained gross wage disparity
between the 6 workmen and the other confirmed
workmen on the ground that they were trainees, inspite
of the fact that they have been doing all the works
identical to confirmed workmen. The respondent has
also been extremely unfair to the 6 workers herein in
giving belated confirmation to them. All the 6 workers
herein along with few other workers joined the
respondent organisation on the same day i.e.,
21-04-2005. However, the respondent showed undue favour
towards a group of workers for being not part of
petitioner union and confirmed them much earlier to
the 6 workers. But, it continued to keep the 6 workers
herein on probation and kept extracting work of
identical nature from the 6 workmen on par with
confirmed workers. As per relevant statutes, even
though the 6 workers continued to work as
probationers, they ought to have been given the same
salary along with the confirmed workers who were
doing identical works. But, the respondent continued
to pay lesser salary to the 6 workers than the
confirmed workers in contravention of the law of this
land. The 6 workers in the present dispute were
confirmed only on 01-01-2009 and they were given
consolidated salary of ` 3,250 with effect from
01-01-2009. On 12-11-2008, the respondent entered
into a Memorandum of Settlement under section 12
1036
LA GAZETTE DE L’ETAT
[21 August 2018
(3) of Industrial Disputes Act with the petitioner union
wherein, the wage tor all the confirmed workers were
revised. The operators who were doing identical work
as that of the 6 workers herein were given the gross
salary of `4,700, with effect from March 2009. The
petitioner expected the respondent to revise the wage
or 6 workers herein on par with those operators atleast
with effect from 01-01-2009 when the 6 workers were
confirmed in service. But, the respondent fixed the
consolidated pay of ` 3,250 to 6 workers herein which
was far lesser than what was paid to the operators who
were also performing works of identical nature.
Therefore, the respondent had discriminated the
6 workers herein by paying them substantially lower
salary than the operators who are also performing
identical nature of work. The union therefore raised
conciliation with the Labour Officer (Conciliation). In
the conciliation proceedings the respondent took an
very naive stand that it cannot pay the wages to 6
workers on par with other workers of same class
because the wages to those workers were paid in
pursuance of 12 (3) settlement, dated 12-11-2008 and
whereas, the 6 workers herein were given confirmation
after the settlement was signed. They claimed that the
benefits of 12(3) settlement will not ensure to the
benefit of the 6 workers herein for simple reasons that
were not confirmed workers at that point of time. It
is most unfortunate that the respondent took such
patently illegal stand before the Conciliation Officer
and yet went unprosecuted for a glaring unfair labour
practice. It is a fundamental concept of industrial
jurisprudence that a 12(3) settlement signed between
the union and the management should ensure to the
benefit of all the workers of the company and as soon
as a person becomes eligible for the benefits agreed
to be provided under the 12(3) settlement the same
cannot be denied to him for the reason that at the time
when the agreement was signed he was not covered
under the agreement. Such gross disparity in wages
between the same set of workers doing identical nature
of job is violative of fundamental rights of the 6
workers. Irrespective of the status of the workers
whether temporary, permanent or contractual the wages
payable to the workers doing same nature of work must
always be same. That is what the principle ‘equal pay
for equal work’ envisages. As on July 2012 the salary
of 6 workers, involved in the present litigation is
` 5,850 whereas, the operators performing same nature
of work who were given permanent status under 12(3)
settlement, dated 01-01-2009 are being paid a sum of
`7,300 per month. Therefore, there is absolutely no
justification for the respondent to pay lesser salary to
the six workers concerned in the dispute than the other
similarly placed workmen. Therefore, prayed this Court
to answer the reference holding that the workers of the
respondent are entitled to privileged leave of one (1)
day for every 20 days of work which includes the all
authorized leave such as weekly holidays, national and
festival holidays, ESI leave etc., the 6 workers involved
in the present dispute are entitled to wages on par with
the other operators doing identical works who were
given increased salary under the 12(3) settlement
dated 01-01-2009 and drawing, the respondent is
directed to pay a sum of `3,09,906 as over-time for
each number of extra days worked by the workers for
which they were entitle to privileged leave from 2003
to 2011 as per the calculation given in Annexure A-1,
the respondent is bound and directed to pay `7,300 as
salary to each of the six workmen involved in the
dispute as against the present salary of ` 5,850 on par
with the other similarly placed workman who were
getting the above salary of ` 7,300 and the respondent
is bound and directed to pay a sum of ` 3,54,000 being
the arrears of salary payable to all the six workers
involved in the dispute herein being the differentials
amount between the wages fixed for other workers
under the 12(3) settlement, dated 12-11-2008 and the
salary paid to the six workers herein as per the
calculation given in Annexure A-2.
3. The brief averments in the reply statement filed
by the respondent are as follows:
The respondent denied all the averments made by
the petitioner union in the claim petition and stated that
as per section 79 of the Factories Act of 1948 the
eligibility-for privilege leave is to be calculated based
on actual number of days present for work and not
based on number of days in a calendar month as
wrongly understood and interpreted by petitioner
union. As per the explanation to section 79 that any
days of lay-off, by agreement or contract or as
permissible under the standing orders; in the case of
a female worker, maternity leave for any number of
days not exceeding twelve weeks; and the leave earned
in the year prior to that in which the leave is enjoyed
shall be deemed to be days on which the worker has
worked in a factory for the purpose of computation of
period of 240 days or more, but shall not earn leave
for these days. Thus, the respondent management
calculating and crediting Privilege Leave to Employee
only based on the above calculation stipulated in the
Factories Act. Thus, the petitioners claim as in
the claim petition is misconceived and misinterpretation
1037
21 August 2018]
LA GAZETTE DE L’ETAT
and not valid as per Law. Thus, this industrial dispute
is to be dismissed on point of privilege leave. The
claim of petitioner union is irrelevant and clearly
exhibit their ignorance in not understanding the terms
of the settlement referred above entered between the
management and the union on 12-11-2008. Terms as
agreed as per settlement of 12-11-2008 are including
all the concession, referred a recorded in this
settlement will be applicable only in respect of 43
confirmed workmen as on date of signing of
settlement detailed in Annexure-I. In other words,
probationers and future incumbents are not eligible for
this increase during agreement of this settlement
unless where stated specifically. But, names of said six
workmen referred by petitioner union were confirmed
subsequent to 12th November 2008 i.e., after signing
of said settlement. ln such case they cannot claim said
increase recorded in the settlement of 12-11-2008 and
their cases are correctly dealt with as per terms
recorded in page 4 of said settlement. The petitioner
union had signed said settlement of 12-11-2008 had
agreed for terms as are specified as in 12 (3)
settlement. Thus, petitioner is not in any rights to raise
this dispute for overriding legal and factual effects of
said settlement. The concept of “equal pay for equal
work” is not applicable in all circumstances and cases.
The Hon'ble Supreme Court and High Courts had laid
down parameters for application of principles of “equal
pay for equal work” as that temporary employees,
trainees or workers who in probation cannot claim
parity in salary with regular employees / workers on
principle of “equal pay for equal work”, said Pay Scale
may differ on basis of criteria such as experience,
Seniority and service weightage, Workers with longer
years of service get more increments as service
weightage benefit that those with less number of years
of service. The petitioner is trying to create a mistaken
interpretation of Principle of equal pay for equal
work. Thus, equal pay for equal work does not mean
that all Workers/Employees/Members of cadre must
receive equal pay scale irrespective of their Seniority/
Service Weightage. The claim specified six workmen
were drawing a salary of ` 2,100 during their
probationary period as Helper and that their salary was
revised as ` 3,250 by offering an increase of ` 1,150
at time of confirmation. Yet Petitioner Union had
failed to note effects and implication not knowing
implication of settlement and applicable Law and had
thus raised dispute on issue by malicious and vexatious
abuse of law. Referred six employees had worked and
received wages as agreed in their probation period and
such factors cannot be disputed after confirmation of
their employment. Respondent management is always
in regular payments for fixed wages and in all cares
to all employees by several welfares including
voluntary payments for over-time incentives, ESI and
PF etc., to all Labourers including said six employees.
Thus, respondent is thus acting well and fair as Model
Employer on Facts and under Law. Thus, this industrial
dispute is liable to be dismissed as per Law and
applicable precedents.
4. In the course of enquiry on the side of the
petitioner PW.1 was examined and Ex.P1 to Ex.P46
were marked and on the side of the respondent RW.1
was examined and Ex.R1 to Ex.R5 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. On the side of
the respondent, written argument was filed and the
same was carefully considered. In support of his case,
the learned Counsel for the respondent relied upon the
Judgment reported in CDJ 1997 ALL HC 716, CDJ
1998 APHC 200, CDJ 1974 SC 355, CDJ 1989 SC 298
and CDJ 2010 SC 1136.
5. The point for consideration is:
Whether the dispute raised by the petitioner union
against the respondent management seeking privileged
leave and wage benefits to 6 of its workmen viz.,
1. Paavadai, 2. Jayachandiran, 3. Baskar, 4. Swaminadhan,
5. Anjapuli and 6. Theepanjan who were not covered
under the existing 12(3) settlement is justified or not
and if justified, what is the relief entitled to the said
workers.
6. On behalf of the petitioner union in order to
prove their case the President of the petitioner union
was examined as PW.1 and he has stated in his evidence
that their union is the registered trade union and it has
passed the resolution on 15-03-2009 to authorise to
take up all issues concerning the trade union and its
members and it has raised the industrial dispute
concerning six members of the petitioner trade union
against the respondent management seeking privileged
leave and wage benefits to the said six workman who
were not covered under the existing 12(3) settlement
and that the section 79 of the Factories Act mandates
annual leave with wages and as per section 79 of
Factories Act, an adult worker who has completed 240
days or more in a factory during a calendar year shall
be entitled for one day for every 20 days of work
performed by him during the previous calendar year as
annual leave and it is the further evidence of the PW.1
that in computing annual leave, the weekly holiday and
1038
LA GAZETTE DE L’ETAT
[21 August 2018
other paid holidays, statutory and authorised leaves
shall be considered as working days and worker is
deemed to have performed his work on those days and
therefore, the annual leave shall be calculated for the
total number of days worker works in the preceding
year inclusive of all paid holidays, weekly holidays,
national and festival holidays, ESI leaves, etc., where
the worker is deemed to have worked on all those days
and that the respondent management in violation of the
statute has calculated annual leave by excluding the
weekly holidays, national and festival holidays ESI
leaves, etc., and that the respondent management has
only calculated the actual number of days a worker was
physically present in the factory and therefore, it is a
misconception and misinterpretation of section 79 or
Factories Act and that therefore, annual leave should be
given with wages and this respondent management is
bound to give leave with a day's wages as annual leave
and to pay wages for those days and that the calculation
for all the workers regarding their entitlement to
wages for the number of days of leave denied by the
respondent is given as Annexure A-l in the claim
petition and it is the further evidence of PW.1 that
equal pay should be given to all the workers who are
doing equal work and that there cannot be distinction
made in the wages of two individuals who are doing
identical nature of work and that these workers have
joined the respondent's organisation on 21-04-2005
and consolidated wage was given to them and thereafter
these workmen have been kept as management trainees
till 31-12-2006 and thereafter, enrolled them on
probation from 01-01-2007 till 31-12-2008 and the
workers are doing 4 years of regular work on par with
all confirmed workers as trainee and probationer on a
meager salary and the said workers were actually
engaged as confirmed workmen by the respondent
management but, they were given the status of trainees
only to avoid the statutory obligations associated with
confirmed workmen and that all the said 6 workers
have completed 240 days of continuous service in
December 2006 itself when they were continuously
engaged by the respondent under the nomenclature of
management trainees and actually they were doing
work of regular employees and that the respondent
management had always maintained gross wage
disparity between these 6 workmen and the other
confirmed workmen on the ground that they were
trainees, inspite of the fact that they have been doing
all the works identical to confirmed workmen and the
respondent management showed undue favour towards
a group of workers and confirmed their service much
earlier to the said 6 workers and these 6 workmen have
been given consolidated salary of ` 3,250 with effect
from 01-01-2009 and the respondent management has
entered into a Memorandum of settlement under
section 12 (3) of Industrial Disputes Act with the
petitioner union wherein the wage for all the
confirmed workers were revised and the operators who
were doing identical work as that of the 6 workers
herein were given the gross salary of ` 4,700 with
effect from March 2009 and that therefore, the
respondent management has to revise the wages of
6 workers herein on par with those operators atleast
with effect from 01-01-2009 when the 6 workers were
confirmed in service and that the respondent
management has fixed the consolidated pay of ` 3,250
to the said 6 workers which is lesser than the amount
paid to the operators who were also performing works
of identical nature in the respondent establishment and
that the respondent management has discriminated the
said 6 workers by paying them substantially lower
salary than the operators who are also performing
identical nature of work in the establishment and
therefore, the dispute has been raised by the petitioner
union on behalf of the said 6 workmen and that these
6 workers were given confirmation after the 12(3)
settlement was signed by the respondent management
with the union and that the benefits of the said 12(3)
settlement has not been given to these 6 workers for
simple reasons that they were not confirmed workers
at that point of time when the settlement was executed
between the respondent management and the union and
that therefore, since the said 6 workers are doing
identical nature of work the gross disparity in wages
between the same set of workers doing identical nature
of job is violative of fundamental rights of the said 6
workers and that the salary of 6 workmen involved in
the present litigation is ` 5,850 as on July, 2011 and
the operators performing the same nature of work were
given permanent status under the 12(3) settlement
dated 01-01-2009 are being paid a sum of ` 7,300 per
month and that there is absolutely no justification for
the respondent management to pay lesser salary to the
six workers concerned in the dispute than the other
similarly placed workmen.
7. In support of their evidence the petitioner union
has marked Ex.P1 to Ex.P46. Ex.P1 is the copy of the
resolution passed by General Body of union. Ex.P2
is the copy of extra calculations made by the
petitioner. Ex.P3 is the copy of calculation of
differential salary. Ex.P4 is the copy of the letter
given by the respondent to Anjapulli, dated 02-04-2005.
Ex.P5 is the copy of the letter given by the respondent
to Anjapulli, dated 01-11-2006. Ex.P6 is the copy of
1039
21 August 2018]
LA GAZETTE DE L’ETAT
the letter given by the respondent to Anjapulli, dated
01-01-2007. Ex.P7 is the copy of the letter given by
respondent to Anjapulli, dated 24-12-2007. Ex.P8 is
the copy of the letter given by the respondent to
Anjapulli, dated 27-08-2008. Ex.P9 is the copy of the
letter given by the respondent to Anjapulli, dated
01-01-2009. Ex.P10 is the copy of the letter given
by the respondent to R. Pavadai, dated 01-01-2009.
Ex.P11 is the copy of the letter given by the
respondent to Pavadai, dated 01-7-2008. Ex.P12 is the
copy of the letter given by the respondent to Pavadai,
dated 24-12-2007. Ex.P13 is the copy of the letter
given by respondent to Raja, dated 01-01-2007.
Ex.P14 is the copy of the letter given by the
respondent to Raja, dated 01-11-2006. Ex.P15 is the
copy of the letter given by the respondent to Raja,
dated 02-04-2005. Ex.P16 is the copy of the letter
given by the petitioner union to Labour Officer, dated
11-05-2009. Ex.P17 is the copy of the letter given
by the respondent to Theepanjan, dated 02-04-2005.
Ex.P18 is the copy of the letter given by the
respondent to Theepanjan, dated 01-11-2006. Ex.P19
is the copy of the letter given by the respondent to
Theepanjan, dated 01-01-2007. Ex.P20 is the copy of
the letter given by the respondent to Theepanjan, dated
24-12-2007. Ex.P21 is the copy of the letter given
by the respondent to Theepanjan, dated 01-07-2008.
Ex.P22 is the copy of the letter given by the
respondent to Theepanjan, dated 01-01-2009. Ex.P23
is the copy of the Tamil translation given by the
respondent, dated 03-07-2010. Ex.P24 is the copy of
the letter given by the petitioner union to Labour
Officer, dated 20-07-2010. Ex.P25 is the copy of the
Failure Report, dated 30-09-2010. Ex.P26 is the copy
of the Memorandum of Settlement, dated 12-11-2008.
Ex.P27 is the copy of the letter given by the petitioner
union to Labour Officer, dated 07-05-2009. Ex.P28
is the copy of the letter given by the respondent to
Vijayan, dated 01-07-2008. Ex.P29 is the copy of the
letter given by the respondent to Vijayan, dated 06-01-2009.
Ex.P30 is the copy of the letter given by the
respondent to Swaminathan, dated 02-04-2005. Ex.P31
is the copy of the letter given by the respondent to
Swaminathan, dated 01-11-2006. Ex.P32 is the copy
of the letter given by the respondent to Swaminathan,
dated 01-01-2007. Ex.P33 is the copy of the letter
given by the respondent to Swaminathan, dated 24-12-2007.
Ex.P34 is the copy of the letter given by the respondent
to Swaminathan, dated 01-07-2008. Ex.P35 is the
copy of the letter given by the respondent to
Swaminathan, dated 01-01-2009. Ex.P36 is the copy
of the letter given by the respondent to Jayachandran,
dated 02-04-2005. Ex.P37 is the copy of the letter
given by the respondent to Jayachandran, dated 01-11-2006.
Ex.P38 is the copy of the letter given by the
respondent to Jayachandran, dated 01-01-2007.
Ex.P39 is the copy of the letter given by the
respondent to Jayachandran, dated 24-12-2007. Ex.P40
is the copy of the letter given by the respondent to
Jayachandran, dated 01-07-2008. Ex.P41 is the copy
of the letter given by the respondent to Jayachandran,
dated 01-01-2009. Ex.P42 is the copy of the letter
given by the respondent to Baskaran, dated 02-04-2005.
Ex.P43 is the copy of the letter given by the
respondent to Baskaran, dated 01-11-2006. Ex.P44 is
the copy of the letter given by the respondent to
Baskaran, dated 01-01-2007. Ex.P45 is the copy of
the letter given by the respondent to Baskaran, dated
01-07-2008. Ex.P46 is the copy of the letter given
by the respondent to Baskaran, dated 01-01-2009.
8. The above documents exhibited by the petitioner
union would go to show that the worker Anjapuli was
appointed as trainee from 02-04-2005 at the
respondent establishment and subsequently the training
period was extended by the respondent management on
01-11-2006 till the period of 31st December, 2006
and thereafter once again he was appointed as
probationer on 01-01-2007 by fixing ` 2,100 as salary
and thereafter the probation period of the said Anjapuli
was extended from 24-12-2007 till the period 30th
June, 2008 from 01-01-2008 and thereafter the
probation period was once again extended for the
period from 01-07-2008 on 27-08-2008 and thereafter
his service was confirmed on 01-01-2009 fixing the
salary as ` 3,250 and in the same way some of the
workers including the reference mentioned workers
were appointed initially as trainee at the respondent
establishment and subsequently their training period
was extended by the respondent management and
thereafter once again they were appointed as
probationer and thereafter their probation period of
the said workers were extended and thereafter their
probation period was once again extended and
thereafter their service was confirmed and it is learnt
from the documents that the services of the workers
have been confirmed only after four years and
memorandum of settlement was entered by
the
management with the petitioner union on 12-11-2008 and
the services of the petitioners were confirmed on
01-01-2009 i.e., only after 48 days from the date of
execution of the settlement.
9. On the other hand to disprove the case of the
petitioner the respondent management has examined
the authorised signatory as RW.1 and he has stated in
his evidence that the respondent management has
1040
LA GAZETTE DE L’ETAT
[21 August 2018
calculating and crediting privilege leave to employee
only based on the calculation stipulated in the
Factories Act and that the claim of the petitioner union
in
the
claim
petition
is
misconceived
and
misinterpretation and not valid as per law and that as
per the terms of the settlement which was executed on
12-11-2008 the concession will be applicable only in
respect of 43 confirmed workmen as on date of
signing of settlement detailed in Annexure-I and other
probationers and future incumbents are not eligible for
this increase during agreement of this settlement
unless where stated specifically and that the names of
said six workmen referred by petitioner union in this
dispute were confirmed subsequent to 12th November
2008 i.e., after signing of said settlement and hence
they cannot claim said increase recorded in the
settlement and the same was agreed and singed by the
petitioner union on 12-11-2008 and that therefore,
the said 6 persons are not having any right to raise the
industrial dispute and that therefore, they cannot claim
increase recorded under 12(3) settlement and the
concept “equal pay for equal work” is not applicable
in all circumstances and cases.
10. In support of their oral evidence the respondent
management also has marked Ex.R1 to Ex.R5. Ex.R1
is the copy of 12(3) settlement between petitioner and
respondent, dated 12-11-2008. Ex.R2 is the copy of
confirmation of appointment of employee C. Mayavan,
dated 01-07-2008. Ex.R3 is the copy of confirmation
of appointment of employee K. Vijayan, dated
01-07-2008. Ex.R4 is the copy of confirmation of
appointment
of
employee
R.
Pavadai,
dated
01-07-2008. Ex.R5 is the copy of confirmation of
appointment of employee V.Jeyachandran, dated
01-07-2008. These documents would reveal the fact
that there was the settlement executed between the
members of the petitioner union and the management
on 12-11-2008 wherein it was agreed by the
management to give wage increase including basic pay,
fixed dearness allowance, house rent allowance,
conveyance allowance, washing allowance, etc., to the
permanent workers whose services were confirmed
and on 01-07-2008 the services of the employees
Mayavan, K.Vijayan, R. Pavadai and V. Jeyachandran
were confirmed as production helpers.
11. From the pleadings of both the parties it is
clear that the respondent management has admitted the
fact that these petitioners have been in service at the
respondent establishment even prior to the settlement
and the settlement was executed between the petitioner
union and the respondent management on 12-11-2008
in respect of the workers whose services were
regularised as confirmed and they have been given
some wage revision under the said settlement and the
reference mentioned workers have not been given
wages on par with the permanent workers and after the
execution of the settlement the services of these six
petitioners have been confirmed subsequently and
therefore, it is the only question to be decided by this
Court that whether the reference mentioned six
workers are entitled to get the settlement benefits on
par with the permanent workers who entered the 12(3)
settlement and whether the reference mentioned six
workers are entitled for privilege leave.
12. It is the first contention of the respondent
management that the reference mentioned six workers
are not entitled to get equal salary as paid to the
confirmed operators on the ground that the services of
these workers are not confirmed and they had been in
service as trainees and probationers and their services
were confirmed only on 01-01-2009 and they were
given consolidated salary of ` 3,250 with effect from,
01-01-2009 and the settlement entered on 12-11-2008
under section 12(3) of the Industrial Disputes Act with
the union and under the settlement the wages of the
reference mentioned six workers cannot be revised and
the services of the said workers were confirmed only
after the settlement was arrived and therefore, the
benefits of the 12(3) settlement will not ensure to the
said workers and hence, they are not entitled for the
benefits of the 12(3) settlement and that 12(3)
settlement signed between the union and the
management should ensure to the benefit of all
workers of the company and as soon as a person
becomes eligible for the benefits agreed to be
provided under 12(3) settlement and the same cannot
be given to them for the reason at the time when the
agreement was signed they were not covered under the
agreement. However, the documents filed by the
petitioner union would go to show that the reference
mentioned six workers had been in service from 2005
as trainee and probationer and thereafter their services
were confirmed on 01-01-2009 and further, it can be
inferred that the said workman have done the identical
nature of work along with the workers who are having
permanent status in the Production Department which
was admitted by the respondent that the said workers
have been appointed at Production Department as
trainees and as probationers and they have done
identical nature of work along with the permanent
workers and that therefore, as the petitioner union has
proved through documents that the reference
mentioned workers have been in service from 2005 to
2009 as trainee and probationer and they have
completed 240 days in a calendar year.
1041
21 August 2018]
LA GAZETTE DE L’ETAT
13. Furthermore, the respondent management witness
RW.1 has stated in his cross examination as follows:
“
Privilege
leave Model
standing order
Training
period
Probation extend
”.
From the above evidence it is clear that the
respondent witness RW.1 has admitted the fact that the
reference mentioned workers have been in service
with the permanent workers and they have done
identical nature of work which are done by the
permanent workers and they have not been given
permanent status to the reference mentioned workers
though they have done service more than four years and
the respondent management witness RW.1 has further
stated in his cross examination as follows :
“
Probation period-
,Trainee
Trainee
Probation period
Probation
Probation
period`
Trainee
`
`
`
From the above evidence it is clear that the
petitioner union has executed the settlement with the
management under section 12(3) of the Act on
12-11-2008 and the reference mentioned workers have
been initially appointed as trainees and thereafter their
probation period was extended for another one year and
subsequently after the completion of training the said
workers were appointed as probationers for the period
of one year and their probation period was also
extended for another one year and thereafter they were
given permanent status and therefore, it could be
inferred that they have to be given permanent status
whenever they completed the 240 days of service in a
calendar year and that therefore to avoid the benefits
to the workmen the respondent might have denied the
permanent status of the reference mentioned workers
and
entered
settlement
on
12-11-2008
and
subsequently the reference mentioned workers have
been given permanent status by confirming their
appointment from 01-01-2009 and that therefore, the
reference mentioned workers are entitled to get equal
pay on par with the permanent workers who have done
the identical nature of job of the permanent workers
and therefore, the disparity in wages cannot be allowed
and that therefore it is clear that these reference
mentioned six workers are also entitled for equal
wages and benefits of the 12(3) settlement under which
the benefits has to be extended on par with the
permanent workers and therefore, it is decided that the
reference mentioned six workers are entitled for the
revision of pay on par with the permanent workers for
whom the 12(3) settlement was executed since these
reference mentioned six workers were doing the work
of exactly identical in nature.
14. It is the second contention of the respondent
management that the reference mentioned six workers
are not entitled for privileged leave as per provisions
of the Factories Act. Admittedly, in this case the
reference mentioned six workers were in service from
2005 and their services were confirmed by the
respondent management on 01-01-2009 under section
79 of the Factories Act which mandates that an adult
worker who has completed 240 days or more in a
factory during a calendar year shall be entitled for one
day for every 20 days of work performed by him during
previous calendar year as annual leave. In this case
also, the reference mentioned six workers were
appointed as trainees and their training period was
wantonly extended by the respondent management for
the period of one year and thereafter, they were
appointed as probationers wantonly and their probation
period was also wantonly extended by the respondent
management to avoid to give some benefits of the
labour laws to such workers and thereafter after
completion of four years of service the services of the
said workers have to be confirmed and therefore, only
with a view to avoid to give statutory benefits of the
labour law to the workers who had done identical nature
of work of the permanent workers in the Production
Department and hence, it is decided by this Court that
the reference mentioned six workers are also have
completed 240 days of work in the factory during the
calendar year and they should have given permanent
status and therefore, they are also entitled for the
1042
LA GAZETTE DE L’ETAT
[21 August 2018
annual leave with wages under section 79 of the
Factories Act and that therefore, it is to be held that
the industrial dispute raised by the petitioner union
against the respondent management seeking privileged
leave and wage benefits to 6 of its workmen viz.,
1. Paavadai, 2. Jayachandiran, 3. Baskar, 4. Swaminadhan,
5. Anjapuli and 6. Theepanjan who were not covered
under the existing 12(3) settlement is justified and the
said workers are entitled for the relief as prayed for.
15. In the result, the petition is allowed and the
industrial dispute raised by the petitioner union against
the respondent management seeking privileged leave
and wage benefits to 6 of its workmen viz., 1. Paavadai,
2. Jayachandiran, 3. B askar, 4. Swaminadhan,
5. Anjapuli and 6. Theepanjan who were not covered
under the existing 12(3) settlement is justified and
Award is passed directing the respondent management
to give privileged leave and pay revision to the said six
workers from the date of settlement on par with the
permanent workers by giving the benefits of 12(3)
settlement. No cost.
Dictated to the Stenographer, transcribed by her,
corrected and pronounced by me in the open Court on
this the 22nd day of March, 2018.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal,
Puducherry.
List of
petitioner’s witness:
PW.1— 07-08-2013 —
Thiruneelakandan.
List of petitioner’s exhibits:
Ex.P1
— —
— Copy of the resolution
passed by General Body
of union
Ex.P2
— —
— Copy
of
extra
calculations made by the
petitioner.
Ex.P3
— —
— Copy of calculation of
differential salary.
Ex.P4
— 02-04-2005— Copy of the letter given
by the respondent to
Anjapuli.
Ex.P5
— 01-11-2006— Copy of the letter given
by the respondent to
Anjapuli.
Ex.P6
— 01-01-2007— Copy of the letter given
by the respondent to
Anjapuli.
Ex.P7
— 24-12-2007— Copy of the letter given
by
respondent
to
Anjapuli.
Ex.P8
— 27-08-2008— Copy of the letter given
by the respondent to
Anjapuli.
Ex.P9
— 01-01-2009— Copy of the letter given
by the respondent to
Anjapuli.
Ex.P10 — 01-01-2009— Copy of the letter given
by the respondent to
R. Paavadai.
Ex.P11 — 01-07-2008— Copy of the letter given
by the respondent to
Paavadai.
Ex.P12 — 24-12-2007— Copy of the letter given
by the respondent to
Paavadai.
Ex.P13 — 01-01-2007— Copy of the letter given
by respondent to Raja.
Ex.P14 — 01-11-2006— Copy of the letter given
by the respondent to
Raja.
Ex.P15 — 02-04-2005— Copy of the letter given
by the respondent to
Raja.
Ex.P16 — 11-05-2009— Copy of the letter given
by the petitioner union
to Labour Officer.
Ex.P17 — 02-04-2005— Copy of the letter given
by the respondent to
Theepanjan.
Ex.P18 — 01-11-2006— Copy of the letter given
by the respondent to
Theepanjan.
Ex.P19 — 01-01-2007— Copy of the letter given
by the respondent to
Theepanjan.
Ex.P20 — 24-12-2007— Copy of the letter given
by the respondent to
Theepanjan.
Ex.P21 — 01-07-2008— Copy of the letter given
by the respondent to
Theepanjan.
Ex.P22 — 01-01-2009— Copy of the letter given
by the respondent to
Theepanjan.
1043
21 August 2018]
LA GAZETTE DE L’ETAT
Ex.P23 — 03-07-2010— Copy
of
the
Tamil
translation given by the
respondent.
Ex.P24 — 20-07-2010— Copy of the letter given
by the petitioner union
to Labour Officer.
Ex.P25 — 30-09-2010— Copy of the Failure
Report.
Ex.P26 — 12-11-2008— Copy
of
the
Memorandum
of
Settlement.
Ex.P27 — 07-05-2009— Copy of the letter given
by the petitioner union
to Labour Officer.
Ex.P28 — 01-07-2008— Copy of the letter given
by the respondent to
Vijayan.
Ex.P29 — 06-01-2009— Copy of the letter given
by the respondent to
Vijayan.
Ex.P30 — 02-04-2005— Copy of the letter given
by the respondent to
Swaminathan.
Ex.P31 — 01-11-2006— Copy of the letter given
by the respondent to
Swaminathan.
Ex.P32 — 01-01-2007— Copy of the letter given
by the respondent to
Swaminathan.
Ex.P33 — 24-12-2007— Copy of the letter given
by the respondent to
Swaminathan.
Ex.P34 — 01-07-2008— Copy of the letter given
by the respondent to
Swaminathan.
Ex.P35 — 01-01-2009— Copy of the letter given
by the respondent to
Swaminathan.
Ex.P36 — 02-04-2005— Copy of the letter given
by the respondent to
Jayachandran.
Ex.P37 — 01-11-2006— Copy of the letter given
by the respondent to
Jayachandran.
Ex.P38 — 01-01-2007— Copy of the letter given
by the respondent to
Jayachandran.
Ex.P39 — 24-12-2007— Copy of the letter given
by the respondent to
Jayachandran.
Ex.P40 — 01-07-2008— Copy of the letter given
by the respondent to
Jayachandran.
Ex.P41 — 01-01-2009— Copy of the letter given
by the respondent to
Jayachandran.
Ex.P42 — 02-04-2005— Copy of the letter given
by the respondent to
Baskaran.
Ex.P43 — 01-11-2006— Copy of the letter given
by the respondent to
Baskaran.
Ex.P44 — 01-01-2007— Copy of the letter given
by the respondent to
Baskaran.
Ex.P45 — 01-07-2008— Copy of the letter given
by the respondent to
Baskaran.
Ex.P46 — 01.01.2009 — Copy of the letter given
by the respondent to
Baskaran.
List of
respondent’s witness:
RW.1 — 03-11-2017 —
V. Saravanan
List of respondent’s exhibits:
Ex.R1
— 12-11-2008— Copy of 12(3) settlement
between petitioner and
respondent.
Ex.R2
— 01-07-2008— Copy of confirmation of
appointment of employee
C. Mayavan.
Ex.R3
— 01-07-2008— Copy of confirmation of
appointment of employee
K. Vijayan.
Ex.R4
— 01-01-2009— Copy of confirmation of
appointment of employee
R. Paavadai.
Ex.R5
— 01-01-2009— Copy of confirmation of
appointment of employee
V. Jeyachandran.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal,
Puducherry.
1044
LA GAZETTE DE L’ETAT
[21 August 2018
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 77/AIL/Lab./T/2018,
Puducherry, dated 15th May 2018)
NOTIFICATION
Whereas, an Award in I.D. (L) No. 08/2013, 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 L. Jeyachandran, 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. 08/2013
Thiru L. Jeyachandran,
16A, Iyyanar Koil Street,
No. 51, Anna Street,
Shanmugapuram,
Puducherry.
. . 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. 12/AIL/Lab./J/
2013,
dated
11-02-2013
for
adjudicating
the
following:-
(i) Whether the dispute raised by Thiru
L. Jeyachandran 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, Pondicherry which is
one
of
the
leading
manufacturing
industry
functioning at Pondicherry for few decades. The
petitioner was employed as ‘Helper' and working in
the said industry for the past 12 years. The
petitioner is now a permanent workman employed
in “Power Press” 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. The petitioner has
submitted his explanation with relevant documents
by denying the allegations levelled by the respondent
in charge sheet before the Enquiry Officer. The
petitioner contested the domestic enquiry tooth and
1045
21 August 2018]
LA GAZETTE DE L’ETAT
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 proceedings 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
966329 for a sum of ` 74,462.00 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 966349 and 966348 for a sum of
`
18,675 and
`
55,787 respectively towards
subsistence allowance and terminal benefits. The
petitioner en-cashed the cheque bearing number
966349 for a sum of ` 18,675 issued towards
subsistence allowance and returned the cheque
bearing number 966348 for a sum of ` 55,787. 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 twelve years. The
Petitioner was a workaholic 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 member 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 Employers were forced to
agitate against 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.
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 victimize 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
1046
LA GAZETTE DE L’ETAT
[21 August 2018
by the petitioner who requested to initiate enquiry
to substantiate his 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 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 utilized 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 limini. There is no believable reason
or
logic
to
allege
against
the
respondent
management that it against its own employees. No
1047
21 August 2018]
LA GAZETTE DE L’ETAT
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 01-04-2009 and was
made permanent on 02-04-2001. 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 behaviours
and the management was always helpful to him in
times of his need and even on 05-09-2008 when he
sought for loan of 1,25,000 rupees with this
respondent through the State Bank of India, the
management got it done through loan number
30479918580 and that he was also extended
assistance in all other schemes when and where
needed. 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 and on 22-02-2010 he was arrested by
the Station House Officer, 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 04-03-2010 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
23-03-2010 the petitioner submitted a reply stating
that the petitioner had conspired with the other
co-worker and was material in the conduct of the
illegal strike and had also participated in the
unauthorised and illegal strike as against the 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 and thereafter, this
reply was not satisfactory the respondent on
30-03-2010 again gave a chance for the petitioner
to give suitable explanations for his unauthorised
absence from work for which the respondent herein
received a malicious reply in which the petitioner
had once again accepted his involvement in the
illegal strike and that the petitioner insisted that the
respondent shall conduct a domestic enquiry as
against him. 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 on 12-04-2010 and on 15-04-2010, the
petitioner gave a reply with malafideness and
falsities besides admitting the illegal strike and
voluntarily requested for conducting a domestic
enquiry. Thereafter, since the explanation offered by
the petitoner was not reasonable, he was suspended
on 06-05-2010 and the same was served on him.
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
even handedness 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 acknowledged 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
1048
LA GAZETTE DE L’ETAT
[21 August 2018
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
proceedings,
the
petitioner
categorically admitted the fact that he had remained
unauthorizedly 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, Pondicherry 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 on 08-03-2012 and the respondent on
28-03-2012 sent a 2nd show-cause notice to the
petitioner seeking for explanation and that the
show-cause notice was acknowledged by the petitioner
and a bald, malicious, fictions reply, dated
05-04-2012 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 17-04-2012. 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 organization 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
respondent 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 monetory 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
monetory benefits would not arise. Therefore, the
respondent management prayed this Court to dismiss
the claim petition.
4. In the course of enquiry on the side of the
petitioner PW.1 was examined and Ex.P1 to Ex.P7
were marked and on the side of the respondent RW.1
was examined and Ex.R1 to Ex.R24 were marked.
1049
21 August 2018]
LA GAZETTE DE L’ETAT
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
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
working at the respondent establishment as Helper
for the past 12 years as permanent workman in
“Power Press” Section and that the petitioner is a
member 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 was
issued for a sum of ` 74,462.00 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
` 18,675 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.P7. Ex.P1 to Ex.P3 are the copy of the
representations sent by Leo Fasteners Unit-II Labour
union to the Labour Secretary, Puducherry, 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 and Ex.P6 are the copy of the
conciliation proceedings raised by Leo Fasteners Unit-
II. Ex.P7 is the copy of the reply given by Leo
Fasteners
management
on
09-06-2010.
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 for
which the management has submitted a reply on
09-06-2010. Further, the documents would reveal the
fact that the union has made a complaint against the
non-compliance with the provisions of factories act by
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 on 05-09-2008 when he sought for
loan it was arranged by the management through State
Bank of India and he was also extended assistance in
1050
LA GAZETTE DE L’ETAT
[21 August 2018
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
the premises of the respondent herein and on
22-02-2010 he was arrested by the Station House Officer,
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, Pondicherry and thereafter,
the petitioner unauthorisedly abstained from the work
without any intimation or permission and on
humanitarian grounds on 04-03-2010 the management
had called upon the petitioner to report for duty for
which there was no response from the petitioner and
belatedly on 23-03-2010 the petitioner submitted a
reply stating that the petitioner had participated in the
unauthorized and illegal strike as against the
management from 22-02-2010 and as the reply of the
petitioner was not satisfactory the respondent on
30-03-2010 again gave a chance for the petitioner to
give suitable explanations for his unauthorized absence
from work for which the respondent herein received a
malicious reply from the petitioner wherein he has
accepted his involvement in the illegal strike and that
the petitioner insisted that the respondent shall conduct
a domestic enquiry as against him and detailed charge
sheet, dated 09-04-2010 with a show-cause was issued
against the petitioner which was received by the
petitioner on 12-04-2010 and on 15-04-2010 the
petitioner gave a reply with mala fideness and falsities
besides admitting the illegal strike and voluntarily
requested for conducting a domestic enquiry and as the
explanation offered by the petitioner was not
reasonable, he was suspended 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 acknowledged 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 acknowleged 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 conspired with the other co-workers for
staging a illegal and unwarranted, unlawful strike as
against the respondent management and had also
meticulously participated in the strike and had also
remained unauthorizedly 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.R24. 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 to the respondent on
23-03-2010. Ex.R3 is the copy of the show cause
notice/charge sheet, dated 09-04-2010. Ex.R4 is the
letter of authorization, dated 29-12-2017. Ex.R5 is
the copy of the letter to the petitioner by the
respondent on 04-03-2010. Ex.R6 is the copy of the
letter to the petitioner by the respondent on
09-03-2010. Ex.R7 is the copy of the letter to the
petitioner by the respondent. Ex.R8 is the copy of the
reply letter sent by the petitioner to the respondent.
Ex.R9 is the copy of the letter sent by the petitioner
to the respondent on 15-04-2010. Ex.R10 is the copy
of the order for domestic enquiry, dated 06-05-2010.
Ex.R11 is the copy of the letter sent to petitioner by
the respondent on 07-03-2012. Ex.R12 is the copy of
the domestic enquiry report (Tamil and English), dated
20-01-2012. Ex.R13 is the copy of the second show
cause notice, dated 28-03-2012. Ex.R14 is the copy
of the letter by the petitioner to the respondent on
05-04-2012. Ex.R15 is the copy of the letter sent by
the petitioner to the respondent on 29-09-2011.
Ex.R16 is the copy of the order of the dismissal, dated
17-04-2012. Ex.R17 is the copy of notice of enquiry/
conciliation from the Labour Officer (Conciliation),
Pondicherry to the respondent, dated 08-08-2012.
Ex.R18 is the copy of the letter sent by the respondent
to the Labour Officer (Conciliation) on 09-08-2012.
1051
21 August 2018]
LA GAZETTE DE L’ETAT
Ex.R19 is the copy of the letter, full and final
settlement annexure along with the cheque, dated
23.08.2012 in No. 966329. Ex.R20 is the copy of the
letter of the petitioner to the respondent on
27-08-2012. Ex.R21 is the copy of the letter sent to
the petitioner along with annexure I and II and cheques
966628 and 966349, dated 05-09-2012. Ex.R22 is the
copy of the letter sent by the petitioner to the
respondent on 11-09-2012. Ex. is the copy of the
letter sent by the petitioner to the Labour Conciliation
Officer on 11-09-2012. Ex.R24 is the copy of the
letter sent by the respondent to the Certifying Officer,
Labour Department, Puducherry on 13-09-2012.
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 unauthorized absence and domestic
Enquiry Officer was appointed to decide unauthorized
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
unauthorized 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.R12 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.R12 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 to the model standing
orders,
1. Remaining in absenteeism for more than
10 days. Standing order : 14(3)(c).
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
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
1052
LA GAZETTE DE L’ETAT
[21 August 2018
Standing Order
Model
Standing
Order
Standing Order
(a), (c, (g), (h) (k)
Standing OrderESI
Misconduct,
Misbehave ”
From the above evidence of RW1, 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, in I.D. (L). No. 9/
2013 the respondent management has exhibited the
service standing orders of the company as Ex.R6 and
Ex.R11 respectively which were given to the petitioner
in the said I.D 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 with the direction to
follow it in their service. While so, the charge 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.R23 the letter sent by the
petitioner to the Labour Officer (Conciliation), 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 as Ex.R6 and Ex.R11 in I.D. (L).
No. 9/2013 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 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
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
1053
21 August 2018]
LA GAZETTE DE L’ETAT
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 unauthorizedly 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 that for the
misconduct of unauthorized 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, punishment of
termination against the petitioner for the charge of
unauthorized absence for sometime without any prior
charges while the union in which the petitioner was the
member 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 unauthorized 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
unauthorized
absence
is
also
sustainable.
16. Further, it is learnt from Ex.P5 and Ex.P6
marked on the side of the petitioner that the union in
which the petitioner was the member has raised the
industrial dispute before the Conciliation Officer
against
the
management
of
the
respondent
establishment over the unfair labour practice and
against the victimization 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 member. While, the union has raised
the industrial dispute with regard to victimization 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.R6 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.
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
1054
LA GAZETTE DE L’ETAT
[21 August 2018
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 Jeyachandran
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 —22-03-2010 Copy of the conciliation
proceedings raised by Leo
Fasteners Unit-II.
Ex.P6 —22-03-2010 Copy of the conciliation
proceedings raised by Leo
Fasteners Unit-II.
Ex.P7 —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 —23-03-2010 Copy of the letter sent by
the
petitioner
to
the
respondent.
Ex.R3 —09-04-2010 Copy of the show cause
notice/charge sheet.
Ex.R4 —29-12-2017 Letter of authorisation.
Ex.R5 —04-03-2010 Copy of the letter to the
petitioner by the respondent.
Ex.R6 —09-03-2010 Copy of the letter to the
petitioner by the respondent.
Ex.R7 —30-03-2010 Copy of the letter to the
petitioner by the respondent.
Ex.R8— –
Copy of the reply letter
sent by the petitioner to the
respondent.
Ex.R9 —15-04-2010 Copy of the letter sent by
the
petitioner
to
the
respondent.
Ex.R10—06-05-2010 Copy of the order for
domestic enquiry.
Ex.R11—07-03-2012 Copy of the letter sent to
petitioner by the respondent.
Ex.R12—20-01-2012 Copy
of
the
domestic
enquiry report (Tamil and
English).
Ex.R13—28-03-2012 Copy of the second show
cause notice.
Ex.R14—05-04-2012 Copy of the letter by the
petitioner to the respondent.
Ex.R15—29-09-2011 Copy of the letter sent by
the
petitioner
to
the
respondent.
Ex.R16—17-04-2012 Copy of the order of the
dismissal.
Ex.R17—08-08-2012 Copy of notice of enquiry/
conciliation
from
the
Labour Conciliation Officer,
Pondicherry
to
the
respondent.
Ex.R18—09-08-2012 Copy of the letter sent by
the
respondent
to
the
Labour Conciliation Officer.
Ex.R19—23-08-2012 Copy of the letter, full and
final settlement annexure
along with the cheque, dated
23-08-2012 in No. 966329.
1055
21 August 2018]
LA GAZETTE DE L’ETAT
Ex.R20—27-08-2012 Copy of the letter of the
petitioner to the respondent.
Ex.R21—05-09-2012 Copy of the letter sent to
the petitioner along with
Annexure I and II and cheques
966628 and 966349.
Ex.R22—11-09-2012 Copy of the letter sent by
the
petitioner
to
the
respondent.
Ex.R23—11-09-2012 Copy of the letter sent by
the petitioner to the Labour
Conciliation Officer.
Ex.R24—13-09-2012 Copy of the letter sent by
the
respondent
to
the
Certifying Officer, Labour
Department, Puducherry.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
GOVERNMENT OF PUDUCHERRY
LOCAL ADMINISTRATION SECRETARIAT
(G.O. Ms. No. 10/LAS/A1/2018,
Puducherry, dated 26th July 2018)
NOTIFICATION
The Hon’ble Supreme Court in a Writ Petition (c)
No. 55 of 2003, passed an order on 10-1-2018,
directing inter alia, that –
(i) each State and the Union Territory shall
constitute a Committee consisting of a retired
Officer who has retired at the level equivalent to
Secretary to the Government of India, the Principal
Secretary (Urban Development) (by whatever
designation called) as also one senior and respected
person from Civil Society who is sensitive to the
issue of homeless persons for the purpose of
monitoring the progress of Shelter for Urban
Homeless.
2. Therefore, in compliance with the said direction
of the Hon’ble Supreme Court, a State Committee for
Shelter for Urban Homeless Scheme in the Union
territory of Puducherry is constituted with the following
Members:
1. Thiru B. Vijayan, I.A.S., (Rtd.,)
. . Chairman
2. Thiru P. Jawahar, I.A.S., Secretary. . Member
(Local Administration).
3. Smt. Chitra Shah
. . Person
from Civil
Society
(NGO)
4. Thiru Ponnusamy Balasundaram . . Social
Worker
3. The Chairman and
Members of the said
Committee are entitled for sitting fee as under:
(i) Sitting fee of ` 4,000 per day of sitting to
Chairman of the Committee.
(ii) Sitting fee of ` 2,000 per day of sitting to
Civil Society Member(s) of the Committee.
(iii) In no case, the ceiling should exceed
10 meeting in a month of the Committee.
4. The expenditure on account of the sitting fee and
other related expenditure would be met from the
budgetary provision of Shelter for Urban Homeless
(SUH) of DAY-NULM.
(By order)
GIDDI BALRAM,
Under Secretary to Government
(Local Administration).
————
GOVERNMENT
OF
PUDUCHERRY
DIRECTORATE OF SCHOOL EDUCATION
(SECRETARIAT WING)
(G. O. Ms. No. 26, Puducherry, dated 27th July 2018)
NOTIFICATION
O n a t t a i n i n g t h e a g e o f s u p e r a n n u a t i o n ,
Thiru E. Nagappan, Vice-Principal, Thanthai Periyar
Government Girls’ Higher Secondary School, Ariyankuppam,
Puducherry, is admitted into retirement with effect from
the afternoon of 31-8-2018.
(By order)
P. EJOUMALE,
Under Secretary to Government
(School Education).