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La Gazette de L' État de Poudouchéry The Gazette of Puducherry
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No. 38 Poudouchéry Mardi 18 Septembre 2018 (27 Bhadra 1940)
No. Puducherry Tuesday 18th September 2018
➢ S OM M A I R E S C O N T E N T S
Page Page
➢ .. 11 9 0 Sentence arbitral du Travail .. 11 9 0 Award of the Labour Court .. 11 9 0
de Tribunal.
• .. 1 2 0 3 Notifications du Gouvernement .. 1 2 0 3 Government Notifications .. 1 2 0 3 .. 1 2 1 0 Avis d'Adjudications .. 1 2 1 0 Tender notices .. 1 2 1 0 .. 1210 Etablissements dangereux .. 1210 Dangerous Establishments .. 1210 .. 1214 Annonces .. 1214 Announcements .. 1214
[ 1189 ]1 19 0 LA GAZETTE DE L'ETAT [18 September 2018 GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G. O. Rt. No. 84/AIL/Lab./T/2018, dated 6th June 2018)
E. Karthik, Advocates for the respondent, upon hearing both sides, upon perusing the case records, after having stood over for consideration till this day, this Tribunal passed the following:
AWARD
NOTIFICATION
1. This Industrial Dispute has been referred by the Government as per the G.O. Rt. No. 54/AIL/Lab./J/2015, dated 18-06-2015 for adjudicating the following:-
Whereas, an Award in I.D. (L) No. 3 0 /2 0 1 5 , dated 25-4-2018 of the Industrial Tribunal-cum-Labour Court, Puducherry in respect of the ind ustrial d isp ute between the management of M/s. Hindustan Unilever L i m i t e d ( D e t e r g e n t F a c t o r y ) , P u d u c h e r r y a n d Thiru P. Jothilingam, Puducherry, over non-employment has been received;
(i) W h et he r th e d i sp ut e r a is ed b y T hi r u P. Jothilingam, against the management of M/s. Hindustan Unilever Limited (Detergent Factory), Vadamangalam, Puducherry, over his non-employment is justified? If justified, what relief he is entitled to ?
(ii) To compute the relief, if any awarded in terms
of money, if it can be so computed?
2. The averments in the claim statement of the
petitioner, in brief, are as follows :
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 25th day of April, 2018
I.D. (L) No. 30/2015
P. Jothilingam, No. 248, Buvancare Street, Olandaikeerapalayam, Mudaliarpet, Puducherry-605 004.
. . Petitioner
Versus
The Managing Director, M/s. Hindustan Unilever Limited (Detergent Factory), NH-45A, Vadamangalam, Puducherry-605 102.
. . Respondent.
The petitioner was engaged as a trainee at the respondent company for a period of 6 months from 08-04-1996 and employed as a daily rated workman on probation at the respondent company from 08-10-1996. Based on the petitioner's good performance at work, conduct and attendance, the respondent confirmed employment of the petitioner from 08-07-1997 as permanent worker (W1 Grade). The petitioner had worked in the respondent company for nearly sixteen years and was very sincere in his duties and worked up to the satisfaction of the management. The petitioner was an active union member as treasurer for a period of 3 years and also member of the canteen functional committee in the canteen administered by the management for about 3 years. In the year 1999, the management of the respondent company placed its appreciation on record for the petitioner's contribution towards Continuous Improvement Programme. The petitioner played a major role in amalgamating three trade unions in the respondent company into one union and helped the management in solving many disputes between the management and workers amicably. For the good services rendered from 1996 to 2011 the petitioner received from the management 'Good Service Award' on 12-07-2013. Due to ill health and other family circumstances the petitioner had availed continuous leave on health grounds in the year 2013 and also extended his leave due to unavoidable circumstances without any ulterior motive. This leave was also orally intimated to the respondent and on their approval, the petitioner got the leave. The management of the respondent company levelled charges against him for unauthorized absenteeism from duty for 259 days from This Industrial Dispute coming on 03-03-2018 before me for final hearing in the presence of Thiruvalarkal. Dr. L. Solomon Raja, C. Prabagarane & B. Vetrivel, Advocates for the petitioner and Thiruvalarkal L. Sathish, S. Ulaganathan, S.Velmurugan, V. Veeraragavan and18 September 2018] LA GAZETTE DE L'ETAT 1191 duty is not proved beyond doubt. In the dismissal letter, dated 29-04-2014 the management did not consider the mitigating circumstances like health problem and family circumstances of the petitioner and imposed the maximum punishment of dismissal from service. The management could have imposed any other punishment other than dismissal from service since, he served for more than sixteen years. The petitioner therefore, prayed to direct the respondent management to reinstate him in the respondent company with back wages, continuity of service and all other attendant benefits.
3. The brief averments in the counter filed by the
respondent are as follows:
1st January, 2013 to 31st December, 2013 without prior intimatio n vid e char ge - sheet, d ated 1 3 - 01 - 2 0 1 3 . A domestic enquiry was conducted on 13-02-2014 and based on the enquiry report, the petitioner's service was terminated by order, dated 29-04-2014. Since, the petitioner availed leave with the prior permission of the respondent, there can't be any unauthorized absenteeism. The petitioner approached the conciliation authority to reinstate him with back wages and conciliation meetings were conducted on several days and the management did not attend even a single conciliation meeting. The chance of settlement was not possible and hence, the dispute was referred for adjudication before this Court. The action of the respondent management in terminating the service of the petitioner is illegal, arbitrary and unsustainable in law. The termination of the petitioner is nothing but, an act of victimization on the part of the management. The petitioner had been in continuous service in the respondent company for the past sixteen years and he is a workman within the meaning of section 2 (s) of the Industrial Disputes Act, 1947. The respondent company is an industry and comes within the ambit of section 2 (j) of the Industrial Disputes Act, 1947. The termination of the service of the petitioner amounts to retrenchment within the meaning of section 2 (oo) of the Industrial Disputes Act, 1947. While conducting domestic enquiry, the Enquiry Officer did not follow the principles of natural justice and did not allow the petitioner to put forth his defence and the enquiry was conducted in a hurried manner for one day only i.e., on 13-02-2014 itself. In the enquiry report, it is stated on page 3 of 9 that both 'ESI leave with permission' and 'leave without permission' were mentioned as 'AA' which is misleading. During the enquiry, the management representative had not opted to cross-examine the petitioner who had been examined as DW1. During the enquiry the documents marked by the petitioner were totally rejected by the Enquiry Officer and the petitioner was not given adequate time to explain his defence and also to produce further evidence. The attitude on the part of the Enquiry Officer in getting the confession statement during the enquiry and using it against the petitioner is violation of Art. 20 (3) of the Indian Constitution. In the report of the failure of conciliation, the conciliation authorities clearly stated that the management failed to attend even a single meeting and the chance of settlement was not possible. The respondent management in its reply to the conciliation authority, dated 11th August 2014 had stated that the long absence of the petitioner had affected the production of the company which is totally false and the respondent company made huge profit during the year 2013. One of the issues in the domestic enquiry that the petitioner had been habitual in absenting himself from
The respondent did not admit any of the averment and allegations contained in the claim petition except those that are specifically admitted in the counter. The respondent is a multi-national company operating under the Unilever group, and has factories, units and offices in many parts of the country. Hindustan Unilever Limited currently has 3 manufacturing units located in Puducherry- to at Vadamangalam Village manufacturing soaps, detergents and personal care products, and the third at Kirumambakkam Village for blending and packing of tea. The respondent unit of Hindustan Unilever Limited at Vadamangalam is engaged in the business of manufacturing detergent soaps such as Surf Excel, Rin, Rin Bars, Vim Bars, Vim liquid, etc., and toilet soaps such as Lux, Hamam, Rexona, Lifebuoy, etc., which are distributed across the country. The respondent unit employs about 509 permanent workers, 46 officers and 8 Managers. The respondent does not have a designation of Managing Director for the respondent factory and hence, the cause title of the present dispute is erroneous. This respondent's affairs at Puducherry as looked after by its Factory Manager and hence, this respondent can only be represented by its Factory Manager. The cause title of the dispute therefore, requires to be suitably amended. The petitioner was daily rated permanent worker in its factory. His employment was confirmed vide offer of confirmation, dated 08-07-1997 and he was employed as a daily rated workman (W-l grade) from 08-07-1997 in respondent's factory. The clause 21 of his offer of confirmation stated that "If, you remain absent from work without any intimation and permission, for a continuous period of 15 working days or more, you shall be deemed to have been tendered your resignation and terminated your employment with us, with effect from the date you complete 15 working days of such absence". All the terms and conditions of his appointment was explained to the petitioner in Tamil and after understanding the same, he accepted and acknowledged the terms and conditions of1 19 2 LA GAZETTE DE L'ETAT [18 September 2018 service mentioned in his Offer of Confirmation, dated 08-07-1997 and joined the respondent's institution. The respondent has its own duly Certified Standing Orders (CSO) which is to the knowledge of all the workers of its factory as the same is duly displayed in the shop floor and other prominent places in English and Tamil. Clause 39 (1) of the said Certified Sanding Order states that "Absence without leave without sufficient cause or absence without permission or habitual absence. Clause 39 (3) of the said Certified Standing Order states that Absence without leave for 10 consecutive days or over staying of leave originally sanctioned or subsequently extended by 10 consecutive working days. Clause 39 (97) of the said Certified Standing Order states that 'Habitual or frequent breach of an standing order or any rules or regulations for the time being in force or any law applicable to the factory or any rule made there under". Thus, being regular to employment and not availing leave without intimation is the prime and fundamental duty of the petitioner. The petitioner had always been a chronic absentee in the respondent's factory. There was also other natur e of misco nd ucts co mmitted b y p etitio ner. The charge-sheet was issued to the petitioner that on 15-08-2002 the petitioner picked up verbal duel with a Personnel Assistant, demanded food without any coupon for which the petitioner denied the charges and domestic enquiry was conducted against the petitioner and the petitioner was suspended for two days vide punishment order, dated 20-07-2004. The petitioner was unauthorizedly absent for 46 days from January 2004 to October 2006 and the same was accepted by the petitioner vide his letter dated 20-10-2004 and warning letter was issued to the petitioner on 16-12-2004. The petitioner was irregular and erratic attendance from 2002 to May-2005, in 2005 till August 2005, in 2005 till December 2005, from January 2006 to December 2006, in 2009 till June 2009 for which advisory letters were issued to the petitioner on several dates i.e., 11-06-2005, 12-09-2005, 10-01-2006, 18-05-2006, 17-01-2007 and 14-08-2009. The petitioner was unauthorizedly absent for 247 days from 01-01-2011 to 31-03-2012 for which charge-sheet was issued and domestic enquiry was conducted against the petitioner and the petitioner admitted the charges during enquiry proceedings and the petitioner was suspended for two days vide punishment order, dated 01-11-2012. The petitioner was irregular and erratic attendance in the year 2012 till the month of December 2012 for which advisory letter was issued to the petitioner on 08-04-2013 and the same was received by the petitioner. The petitioner was unauthorizedly absent for 259 days from 01-01-2013 to 31-12-2013 for which charge-sheet was issued and domestic enquiry was conducted against the petitioner and
the petitioner was terminated vide termination order, dated 29-04-2014 and though the petitioner admitted his guilt in the domestic enquiry proceedings he challenged the termination under the present dispute. The respondent had shown maximum leniency to petitioner and on more than one occasion, it had condoned the misconduct of chronic absenteeism of petitioner. But, the petitioner took undue advantage of the leniency shown by respondent and did not bother to mend his ways. The petitioner continued to be erratic in his attendance and remained unauthorizedly absent for 259 days from 01-01-2013 to 31-12-2013 without any intimation or information. When the petitioner's attendance did not show any improvement till 31-12-2013 inspite of advisory letters, respondent issued a detailed charge-sheet on 13-01-2014 charging him for unauthorized absence and irregular attendance from 01-01-2013 to 31-12-2013 and for habitual absenteeism under clauses 39 (1), 39 (3) and 39 (97) of Certified Standing Orders of company. The charge-sheet was sent to the petitioner to his communication address, but the postal cover was returned as 'left' and an independent and impartial Enquiry Officer was appointed. The charge-sheet, dated 13-01-2014 and the enquiry notice was published in a popular Tamil daily 'Thina Thanthi' on 03-02-2014 and the enquiry dates were mentioned in it. The petitioner participated in the enquiry after seeing the publication in Tamil daily on 03-02-2014. The domestic enquiry was conducted against the petitioner for his unauthorized absence under charge-sheet, dated 13-01-2014 on 13-02-2014. The Enquiry Officer conducted the enquiry in utmost fairness and by adhering to the essential principles of natural justice, equity and fair play, in which the petitioner also participated with his defence assistant. The domestic enquiry was conducted in a free and fair manner giving full opportunity to petitioner to defend himself can be gauged from the fact that the Enquiry Officer explained the charges levelled against the petitioner in Tamil, the Enquiry Officer offered permission to petitioner to engage defense assistance of his choice, the petitioner also engaged one Mr. G. Ezhumalaias his defence assistant, which was permitted by the Enquiry Officer, the Enquiry Officer explained to the petitioner that he has right of cross-examination of respondent's witness, the entire enquiry proceedings were conducted in Tamil which is the language known to the petitioner the Enquiry Officer explained the proceeding notes to the petitioner, which was duly signed by the petitioner acknowledging the truth and genuineness of the recordings in the proceedings, the petitioner was served with all the documents relied on by respondent, the enquiry report was based on the appreciation of the entire materials placed on record by applying sound principles of law and reasoning and the18 September 2018] LA GAZETTE DE L'ETAT 1193 or unauthorized. Unauthorized absenteeism sends its production plans and strategies topsy-turvy, crippling its production activities and disturbing its work schedules and man power allotments. The high percentage of unauthorized absenteeism in respondent's clearly indicates that the workers of the respondent factory were taking their employment casually and the leniency shown by the respondent in the past in not taking stringent disciplinary action was also an encouraging factor. Apart from financial loss, it was also leading to frustration amongst the regular employees as the absenteeism was causing additional burden of work on those employees. In such circumstances, strong disciplinary action was warranted and since, the misconduct of petitioner showed no inclination to improve his conduct inspite of previous warnings, the respondent was forced to impose maximum punishment of dismissal.
4. In the course of enquiry on the side of the petitioner PW.1 was examined and Ex.P1 to Ex.P20 were marked and during the course of cross examination of PW.1 since the memo was filed by the respondent to decide the fairness of domestic enquiry, this Tribunal has first decided to hear it as the preliminary issue that whether the domestic enquiry was conducted by the Enquiry Officer in accordance with the principles of natural justice. In the course of enquiry regarding preliminary issue on the side of the respondent Ex.R1 to Ex.R4 were marked and this Tribunal has decided that the domestic enquiry conducted by the respondent management is valid and in accordance with the principles of natural justice and preliminary Award was passed by this Tribunal. In further proceedings to decide the findings of the Enquiry Officer and about the proportionality of the punishment the petitioner was given a chance to let evidence and the respondent was permitted to cross examine the witness. Both side arguments were heard.
5. The point for consideration is:
Whether the dispute raised by the petitioner against the respondent management over his non-employment is justified or not and if justified, what is the relief entitled to the petitioner?
6. On the point :
The pleadings of the parties, the evidence adduced by the petitioner and the exhibits marked on both sides are carefully considered. On the side of the petitioner written argument was filed and the same was carefully considered. The learned Counsel for the petitioner in support of his case has relied upon the judgments of the Hon'ble Supreme Court of India in Civil Appeal No. 7431 of 2008 and Appeal (Civil). No.8267 of 2004. In support of his enquiry report was given to the petitioner and he was given an opportunity to submit his explanation on the enquiry report. In the enquiry proceedings, the petitioner categorically admitted all the charges levelled against him in the charge-sheet, dated 13-01-2014 and signed the enquiry proceedings in acknowledgment of such admission. The Enquiry Officer submitted his detailed report on 22-02-2014 analyzing the charges levelled against the petitioner in the light of the available records and more importantly the admissions made by petitioner during enquiry proceedings. The Enquiry Officer came to the conclusion that petitioner was guilty of the charges levelled against him under Clauses 39 (1), 39 (3) and 39 (97) of Certified Standing Orders of Company. The respondent had delivered 2nd show cause notice, dated 03-04-2014 along with enquiry report to petitioner on 05-04-2014. The petitioner did not give reply to 2nd show cause notice, dated 03-04-2014. Since, the gravity of misconduct committed by petitioner was grave and serious, respondent terminated the petitioner vide its order, dated 29-04-2014 and sent termination order to petitioner together with salary of one month, which was received by petitioner on 30-4-2014. The order of dismissal was made taking into consideration all the aspects involved in the case including the past misconducts of petitioner. By way of abundant caution, the respondent filed approval petition on 29-4-2014 before Labour Officer (Conciliation) L.O. (C). No. 896/ L.O. (C)/AlL/2013 under section 33 (2) (b) of Industrial Disputes Act. The petitioner was removed from the services for a grave misconduct of chronic, habitual absenteeism, which was admitted by him in an independent and impartial domestic enquiry. Therefore, the dismissal of petitioner from service is fully justified and the same cannot be interfered with. The enquiry was conducted in utmost fairness. Since, the petitioner is challenging the fairness of enquiry proceedings, this Court may be pleased to take up the issue of fairness of enquiry proceedings as a preliminary issue and if, for some reasons, this Court is compelled to hold that enquiry was not conducted in accordance with the principles of natural justice, the respondent may be permitted to lead further evidence to prove the misconducts levelled against the petitioner. The respondent is a leading FMCG company and is a brand leader in many of the products manufactured by it. It has a very high demand for its products in the market and there is cut-throat competition that exists in its business. Hence, production in large volumes, supply of materials in time and maintaining exceptionally high quality of its products are absolutely essential for its sustenance in the business. It therefore, cannot afford any slackness in attendance by workers. One of the biggest challenges of the respondent in its factory is habitual absenteeism, whether authorized1 19 4 LA GAZETTE DE L'ETAT [18 September 2018 case the learned Counsel for the respondent has also relied upon the Judgment reported in CDJ 2009 SC 1194, CDJ 2007 SC 1306, CDJ 2007 MHC 3398, CDJ 2005 MHC 1053, 2010 4 LLJ 245 (Del), 2011 3LLJ 101 Mad, 2010 3LLJ 659 Chatt and the decision of the Hon'ble High Court of Delhi in W.P(C).No.3727/2010. This reference has been made to this Tribunal to decide whether the industrial dispute raised by the petitioner against the respondent management over his non-employment is justified or not. This Tribunal has already passed the preliminary Award holding that the domestic enquiry conducted by the respondent management against the petitioner is valid and in accordance with the principles of natural justice. In such circumstances, it is to be seen whether the punishment given by the respondent management is proportionate to the nature of misconduct and misbehavior.
7. The learned Counsel for the petitioner argued that the Enquiry Officer who conducted the enquiry against the petitioner has not stated the reasons for coming to the conclusion that the petitioner has not show any improvement from his conduct and the Enquiry Officer has not taken into account the Ex.D1 to Ex.D6 filed on the side of the petitioner during the enquiry and the Enquiry Officer completed the enquiry on a single day in a hurried manner and he did not follow the principles of natural justice and he did not give any opportunity to the petitioner to defend his case and that the charges framed by the respondent management are not clear and the entire proceedings taken followed by the charge-sheet will not be a correct one and therefore, the major punishment of termination given by the management on the foot of the enquiry report cannot be accepted and prayed to pass an Award directing the respondent management to give reinstatement with back wages to the petitioner.
8. On the other hand, the learned Counsel appearing for the respondent management argued that the punishment given by the respondent management is absolutely based on the report of the Enquiry Officer and as the petitioner has committed number of unauthorized absence previously the punishment given by the management is not disproportionate and hence, the petitioner cannot claim any relief on the foot that the Enquiry Officer has not conducted the enquiry properly since this Court has already decided in the preliminary enquiry that the enquiry conducted against the petitioner was in accordance with the principles of natural justice and as valid one.
9. It is clear from the records that the charge levelled against the petitioner by the respondent management is that the petitioner was absenting himself from duty for the period of 259 days from 01-01-2013 to 31-12-2013 and on 13-01-2014 a charge memo has been issued to the petitioner called upon him to give explanation for his unauthorized absence stating that the petitioner has committed habitual unauthorized absence without getting any leave and without sufficient cause and domestic enquiry was conducted by appointing an Enquiry Officer and enquiry was conducted on 13-02-2014 wherein, the delinquent employee has not denied the charges and admitted the unauthorized absence for 259 days in the year 2013 and enquiry report was submitted by the Enquiry Officer on 22-02-2014 and on the report of the Enquiry Officer the respondent management on 29-04-2014 has dismissed the petitioner from service.
10. It is learnt from the documents exhibited on the side of the respondent that the petitioner has participated in the enquiry on 13-02-2014 and that the petitioner has signed all the pages in the enquiry proceedings and even prior to the year 2013 in the year 2012 also the petitioner was absent for a period of 56½ days and the petitioner was given notice on 12-04-2013 and that the petitioner was suspended on 01-11-2012 for the misconduct of unauthorized absence and that the finding was given by the Enquiry Officer wherein, the petitioner accepted the charges levelled against him in the charge-sheet, dated 11-04-2012 and that as a punishment the petitioner was suspended for 2 days from 05-11-2012 to 06-11-2012 and that in the year 2009 the petitioner was absenting himself from duty for several days and for which advise letter was given to him by the management on 03-09-2009 and that the p etitioner was given warning letter on 16-12-2004 for the absence of 46 days in the year 2004 and that the Enquiry Officer has found guilty of the petitioner for the misconduct of unauthorized absence from 01-01-2013 to 31-12-2013 and subsequently on 29-04-2014 the petitioner was terminated from service.
11. The documents exhibited on the side of the respondent management would go to show that the petitioner has repeatedly committed misconduct of unauthorized absence and the said unauthorized absence was admitted by the petitioner himself in the enquiry conducted by the management by appointing an Enquiry Officer and furthermore, the petitioner has not at all contested the enquiry and has not defend the charges levelled against him. However, it is to be decided whether the punishment of termination is proportionate to the misconduct of unauthorized absence committed by the petitioner. The learned Counsel for the respondent has argued that no leniency can be shown on the petitioner since the petitioner is a habitual absentee and he was punished earlierly twice in the previous occasion for the misconduct of unauthorized absence and in support of his argument the learned Counsel for the respondent has relied upon the Judgment of Hon'ble High Court of Delhi in W.P(C).No.3727/2010 wherein it has been observed that,18 September 2018] LA GAZETTE DE L'ETAT 1195 '………….We also find that even if, there was anything wrong with the disciplinary authority in having taken into consideration the past conduct of the respondent, nothing prevented the Tribunal to look into the past conduct and if, that would have been looked into, the Tribunal would not have come to a conclusion arrived at in the impugned order.
It is well settled that the authority which is required to review the act of the disciplinary authority/appellate authority can take into consideration the past conduct so as to reach to a conclusion as to whether the punishment imposed is grossly or shockingly disproportionate, after examining all the relevant factors including the nature of the charges proved, the past conduct, penalty imposed earlier, the nature of duties assigned having due regard to their sensitiveness, exactness, expected and discipline and required to be maintained, and the department/ establishment which the delinquent person concerned works. …………'
Furthermore, the learned Counsel for the respondent has also relied upon the Judgment reported in CDJ 2005 MHC 1053 wherein it has been observed that,
'………….The second submission of the Counsel for the petitioner to the effect that punishment of dismissal is grossly disproportionate to the nature of delinquency, namely, unauthorized absence, even though prima facie attractive, does not bear closer scrutiny. It is of course true that there are some decisions either of the Supreme Court or this Court wherein, the order of punishment for unauthorized absence for a few days have been held to be grossly disproportionate. In the present case, however, apart from the unauthorized absence, for which disciplinary proceedings were been initiated, the disciplinary authority has relied upon the fact that on previous occasions also the petitioner had remained unauthorisedly absent. The disciplinary authority had also considered the fact that there has been several other punishments imposed upon the petitioner on numerous occasions and considering all these aspects, the disciplinary authority had come to the conclusion that the person was to be dismissed. The Labour Court, on independent consideration, has also come to the very same conclusion and has held that the punishment of dismissal was justified in the peculiar facts and circumstances of the case. In the absence of any patent illegality in such orders, it is difficult for the High Court to come to any different conclusion and to interfere with the punishment. …………'
Furthermore, the learned Counsel for the respondent has also relied upon the Judgment reported in CDJ 2007 SC 1306 wherein it has been observed that,
'Industrial Disputes Act, 1947 - Section 11A - interference in quantum of punishment-Habitual absenteeism- Termination from service - whether the habitual absenteeism means the gross violation of discipline-The Labour Court set aside the order of dismissal and the management was directed to reinstate the workman with continuity of service but, without back wages - The Learned Single Judge modified the award and deprived the workman from continuity of service - The Division Bench directed reinstatement without back wages but with continuity of service - Hence, this appeal - The Labour Court and the High Court were not justified in directing the reinstatement by interference with the order of termination. The orders are accordingly set aside. The order of termination as passed by the concerned authority stands restored. The appeal is allowed with no orders as to costs.'
From the above citations it is clear that punishment of dismissal for unauthorized absence for more than a month on the particular occasion and thereafter absence from duty on three other occasions would not be a disproportionate one. On this aspect the evidence and records are perused. It is not in dispute that the petitioner was absent for a long time and the petitioner has admitted all the unauthorized absence before the Enquiry Officer and he has not denied the same before the Enquiry Officer by which the Enquiry Officer has concluded that the petitioner was found guilty of the misconduct of unauthorized absence and submitted a enquiry report to the management against the petitioner.
12. However, it is learnt from the documents exhibited on the side of the petitioner that the petitioner has joined as a trainee on 08-04-1996 at the respondent establishment and thereafter he was appointed as an employee on probation from 08-10-1996 and after completion of probation period the petitioner was appointed as an employee from 08-07-1997 and initially he was paid ` 15 per day along with dearness allowance and other allowances and house rent allowance of ` 300 per month was given to the petitioner and ` 250 was given as conveyance allowance per month and considering his sincerity, the respondent management on 16-12-1999 has placed its appreciation on record for his contribution given by him towards their continuous improvement programme and the good service award was given to the petitioner on 12-07-2013 by the management for the good service rendered by him. The petitioner has exhibited the appreciation letter given to him by the management as Ex.P5 which would go to show that the management has appreciated the service rendered by the petitioner in the year 1999. The petitioner has exhibited the original copy1 19 6 LA GAZETTE DE L'ETAT [18 September 2018 of the good service award issued to him on 12-07-2013 for the good service rendered by the petitioner along with some other employees as Ex. P6 which would go to show that the service of the petitioner was appreciated by the management in the year 2013 and he was honoured by the management in a function and the said documents as well as the award given by the management has not been denied by the respondent management. These facts would go to show that the petitioner has some how rendered good service to the respondent establishment.
13. Further, it is learnt from the documents exhibited on the side of the petitioner that the petitioner has not at all denied the charges levelled against him and he has admitted the misconduct before the Enquiry Officer and that the petitioner was severely warned by the management for unauthorized absenteeism and that the petitioner was functioned as Treasurer of the labour union and he was a committee member in the canteen being conducted at the respondent establishment and that the petitioner has raised the industrial dispute as early as immediately after he was terminated from service wherein he has stated that he could not able to attend the duty due to his illness and due to his family circumstances.
14. Further, it is learnt from Ex. P7 the charge sheet given by the respondent management to the petitioner that the petitioner alleged to have been unauthorizedly absent for a period of 259 days from 1st January-2013 to 31st December 2013. But, the respondent management would not say anything about the fact that why they should not have taken disciplinary action against the petitioner at the beginning of his absence from duty and they do not say anything why they have waited till 31st December 2013 and furthermore, the respondent management did not give any explanation before this Court that while so how the petitioner was awarded good service award on 12-07-2013 by conducting a function at their factory the relevant point of time of absenteeism. The good service award which is exhibited as Ex.P6 would go to show that the petitioner has attended the factory on 12-07-2013 and a function was conducted by the management appreciating the good service of the petitioner. The respondent management has failed to state before this Court that why charge memo has not been given to the petitioner for his unauthorized absence on 12-07-2013. These fact would go to show that the management has wantonly not given such a charge memo to the petitioner at the earlier point of time while he appeared on 12-07-2013 and did await for some time and at the end of the year the management has given such memo that the petitioner was unauthorizedly absent for 259 days and that therefore, it is clear that the petitioner has appeared before the respondent establishment to attend the work and function on some days which has not been brought before this Court properly by stating that why the petitioner was not issued any memo for his unauthorized absence on 12-07-2013 instead of giving good service award. Hence, the punishment of termination from service given by the respondent management to the petitioner for the charge of unauthorized absenteeism for the period between 1st January-2013 to 31st December-2013 for about 259 days cannot be accepted as a proportionate one since, the petitioner was given good service award by the management on 12-07-2013 i.e., in the alleged period of unauthorized absence of the petitioner.
15. In this case the petitioner has not disputed the fact that he was absent for a long time and he has stated only the reason that due to ill-health and family circumstances he was not able to attend the work at the respondent establishment and the same was supported by the documents exhibited under Ex.P14 to Ex.P20. The documents under Ex.P14 to Ex.P20 would go to show that the petitioner has taken medical treatment for his ill-health and he has also taken treatment at ESI Hospital. Therefore, it is clear that the petitioner has taken the leave for his medical treatment in between the period January-2013 to December-2013 and he has not taken the leave willfully and wantonly and hence, the respondent management might have given lesser punishment to the petitioner than the order of termination for the misconduct of unauthorized absence.
16. Further, it is learnt from the records that the petitioner had been in service at the respondent establishment for more than 16 years and he has not committed any such misconduct in the earlier period of service and therefore, considering all the facts and circumstances and considering the 16 years duration of his service at the respondent establishment and considering the fact that the management has given good service award to the petitioner in the year 2013 in which year the petitioner has alleged to have committed unauthorized absence and the reasons stated by the petitioner for his absence and also considering the fact that previously the management has not given any other punishment to the petitioner like stoppage of any increment or any monetary benefits for any other misconduct alleged to have committed by him, this Court finds that the punishment of termination from service to the petitioner is disproportionate to the misconduct of unauthorized absence committed by the petitioner and hence, it is to be held that the industrial dispute raised by the petitioner against the respondent management over his non-employment is justified by declaring that the punishment order passed by the respondent management against the petitioner is untenable and as such the petitioner is entitled for reinstatement with continuity of service as claimed by him.
18 September 2018] LA GAZETTE DE L'ETAT 119717. However, considering the fact that the petitioner has committed misconduct of unauthorized absence previously on many occasions and the fact that the petitioner has pleaded guilty in the domestic enquiry proceedings the penalty of stoppage of five increments for the period 2013 to 2017 with cumulative effect can be awarded while granting reinstatement with continuity of service. Further, absolutely there is no evidence let in by the petitioner that he has not served at anywhere else from the date of his termination and therefore, considering the above circumstances the petitioner cannot be given any back wages and other attendant benefits and hence, he is not entitled for any back wages and other attendant benefits as claimed by him.
18. In the result, the petition is partly 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 by giving penalty of stoppage of five increments for the period 2013 to 2017 with cumulative effect while granting reinstatement with continuity of service and the petition is partly dismissed in respect of back wages and other attendant benefits as claimed by him. No cost.
Dictated to the Stenographer, transcribed by her, corrected and pronounced by me in the open Court on this the 25th day of April, 2018.
G. THANENDRAN, Presiding Officer, Industrial Tribunal-cum-Labour Court, Puducherry.
Ex.P4 — 08-07-1997 — Copy of offer of Confirmation issued by the respondent to the petitioner.
Ex.P5 — 04-12-1999 — Copy of appreciation of the petitioner towards Continuous Improvement Programme issued by the respondent.
Ex.P6 — 12-07-2013— Good Service Award issued by the respondent to the petitioner.
Ex.P7 — 13-01-2014 — Copy of 'Charge sheet' issued by the respondent to the petitioner.
Ex.P8 — 22-02-2014 — Copy of domestic enquiry
report.
Ex.P9— 29-04-2014— Copy of 'Dismissal letter issued by the respondent to the petitioner.
Ex.P10—17-06-2014— Copy of the letter given by the petitioner to the management.
Ex.P11— 11-08-2014 — Copy of the letter given by the management to the Conciliation Authority.
Ex.P12—12-09-2014 — Copy of the letter given by the petitioner to Conciliation Authority.
List of petitioner's witness:
PW.1 — 7-4-2017 — P. Jothilingam Ex.P13—24-02-2015 — Copy of the 'Report on Failure of Conciliation' issued by Labour Officer (Conciliation) to Secretary to Government (Labour), Puducherry.
List of petitioner's exhibits:
Ex.P1 — 18-06-2015— Copy of the Notification by Labour Department, Government of Puducherry.
Ex.P2 — 08-04-1996— Copy of the offer of Traineeship issued by the respondent to the petitioner.
Ex.P3 — 08-10-1996 — Copy of offer of Employment on Probation issued by the respondent to the petitioner.
Ex.P14—25-02-2013 — Copy of Biochemistry report in the name of petitioner issued by Clinical Research Unit for Homoeopathy.
Ex.P15—28-02-2013 — Copy of ESI treatment slip
of the petitioner.
Ex.P16—26-09-2013 — Copy of rest report of the petitioner issued by the Aruna Clinical Laboratory.
Ex.P17—02-12-2013 — Copy of treatment slip of the petitioner issued by Clinical Research Unit for Homoeopathy.
1 19 8 LA GAZETTE DE L'ETAT [18 September 2018Ex.P18—28-02-2013— Copy of treatment book issued by ESI Hospital to the petitioner, (3 pages).
Ex.P19—20-12-2013 — Copy of Medicine book issued by ESI Hospital to the petitioner.
Ex.P20—25-01-2013 — Medical Certificate issued by Medical Officer for treatment of the petitioner.
Manikandan, R. Subashini, S. Maheshwari, P. Janagi, G. Jeevanandam,V. Datchayani, R. Prakash, over their reinstatement 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.
List of respondent's witnesses: Nil
List of respondent's exhibits:
Ex.R1 — 13-01-2014 — Copy of the charge-sheet issued by respondent management to petitioner.
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 18th day of April, 2018
Ex.R2 — 13-02-2014 — Copy of the domestic enquiry proceedings conducted against petitioner and its exhibits marked therein.
I.D. (L) No. 46/2017
Ex.R3 — 03-04-2014 — Copy of the 2nd show
cause
22-02-2014 Notice issued to the petitioner and the findings of the Enquiry Officer.
Ex.R4 — 29-04-2014 — Copy of the dismissal letter of petitioners and its AD card.
G. THANENDRAN, Presiding Officer, Industrial Tribunal-cum-Labour Court,
Puducherry.
1. U. Ramkumar,
2. P. Manikandan,
3. R. Subashini,
4. S. Maheswari,
5. P. Janagi,
6. G. Jeevanandham,
7. V. Datchayani,
8. R. Prakash, No. 09, Karukkalacherry Salai, Karaikal-609 606. … Petitioners
Versus
————
GOVERNMENT OF PUDUCHERRY LABOUR DEPARTMENT
The Managing Director, M/s. Karaikal Market Committee, Thirunallar Road, Karaikal. … Respondent (G.O. Rt. No. 85/AIL//Lab/T/2018, Puducherry, dated 6th June 2018)
NOTIFICATION
Whereas, an Award in I.D. (L) No. 46/2017, dated 18-4-2018 of the Industrial Tribunal-cum-Labour Court, Puducherry, in respect of the Industrial Dispute between the management of M/s. Karaikal Market Committee, Karaikal, and Thiruvalarkal U. Ramkumar, P. This industrial dispute coming on 23-02-2018 before me for final hearing in the presence of Thiru N. Ramar, representative for the petitioner and Thiru A.V. J. Selva Muthu Kumaran, Advocate & Additional Government Pleader-cum-Additional Public Prosecutor 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:
18 September 2018] LA GAZETTE DE L'ETAT 1199AWARD
1. This Industrial Dispute has been referred by the Government as per the G. O. Rt. No. 126/AIL/Lab./T/2017, dated 18-08-2017 for adjudicating the following:-
(i) Whether the dispute raised by U. Ramkumar, P. Manikandan, R. Subashini, S. Maheswari, P. Janagi, G. Jeevanandham, V. Datchayani and R. Prakash against the management of M/s. Karaikal Market Committee, Karaikal, over their reinstatement is justified or not? If justified, to what relief they are entitled to ?
(ii) To compute the relief if any, awarded in terms
of money if, it can be so computed?
2. The averments in the Claim Statement of the
petitioner, in brief, are as follows:
Industrial Disputes Act, 1947. The work in the godown of the respondent is a perennial in nature. The respondent store grains, pulses, etc., in the godown and also do trading. In the guest house the merchants and farmers stay and do transaction with the respondent. The weigh bridge is used for weighing the grains, pulses etc., brought inand taken out of the godown. The Godown works day and night. There is a ATM within the Godown, which is also operational 24 x 7. Thus, the entire activity of the respondent is a continuous one happening day and night. While so, the action of the respondent in orally denying employment to the petitioners is grossly illegal. The petitioners are without employment right from the date of termination and they are suffering. The statement of the respondent before the Conciliation Officer that as if, the petitioners were terminated because of poor financial condition and as there is no work and that the engagement of the petitioners was against the Government Order the Casual Labourer Engagement and Regulation Scheme, 2009 is not correct. There is sufficient work and the respondent is also making profit. The termination is in violation of the Industrial Disputes Act and therefore, reference to the scheme is without substance. The petitioners were engaged in view of shortage of man power. The petitioners had been denied of their little employment in an illegal manner. The petitioners prayed to hold that the denial of employment to the petitioners orally from August 2006 is illegal, arbitrary and contrary to law and consequently direct the respondent management to reinstate the petitioners with back wages, continuity of service and all other attendant benefits.
3. The brief averments in the reply statement filed
by the respondent are as follows :
The petitioners were engaged by the respondent to do the medial work and they were all paid wages at the rate of ` 200 per day. The respondent is having godown, guest house, weigh bridge and to manage this establishment it has engaged the petitioners. The respondent is managed by Secretary, Assistant Officer, Superintendent, Typist and other supporting staff in all 35 in number. The petitioners have been engaged to do the menial work of cleaning, loading and unloading and stacking in the godown and all sorts of office work. The petitioners have been working continuously for a period ranging from 9 months to 3 years. The petitioners have been doing the regular nature of work but, they were termed to be temporary employees. The Respondent Management is guided by the Chairman, who is a political appointee most of the time. The petitioners have been doing their work continuously and they were paid very meager wages. All the petitioners were working overtime every day but, no overtime wages was paid. They were doing the work without room for any complaint and they were with a fond hope that their services in due course will be absorbed. While so, the service of the petitioner was abruptly stopped orally during August 2016. All the petitioners have worked for more than 240 days within a period of 12 calendar months. The termination of the services of the petitioner amounts to retrenchment. The respondent has not complied with section 25 F of the Industrial Disputes Act, 1947. Thus, the termination is void abinitio. The respondent after terminating the services of the petitioners is all set to engage new hands. When the petitioners are available, the respondent cannot engage new hands without providing employment to the petitioners. The engagement of new hands will be in violation of section 25 H of the
The averments and allegations stated by the petitioners in the claim statement are false except those that are specifically admitted by the respondent in the counter. The Karaikal Market Committee was established by the Government of Puducherry during the year 1986 as Autonomous Body to do service to the farmers of Karaikal District under the Pondicherry Agricultural Produce Markets Act, 1973 and the Pondicherry Agricultural Produce Markets Rule, 1975 and also abide by the orders and Notifications as and when published by the Government of Puducherry. The total strength of the staff is 42 nos. out of which 10 are regular staffs and 32 are full time casual labourers. The Organisation has sanctioned the strength of 10 staff and these 10 considered as regular staff of the organisation. There were another 32 other Casual1 20 0 LA GAZETTE DE L'ETAT [18 September 2018 Counsel for the petitioners relied upon the Judgment reported in 2009 8 SCC 556, 2010 1 SCC 47, 1995 (1) LLJ 5/95 Pg.973, 1993 (2) LLJ 614 and CDJ 1996 SC 180. The main contention of the petitioners is that the petitioners were working at the respondent establishment as daily wages at the rate of Rs. 200 per day and they have engaged to do the medial work of cleaning, loading and unloading and stacking in the godown and all sorts of office work and they have been working continuously for a period ranging from 9 months to 3 years and since, they have been doing the regular nature of work they were termed to be temporary employees and they were working overtime every day and no additional wages were paid for overtime and they have been assured that in due course they will be absorbed in their services and their services have been stopped orally during August 2016 and all the petitioners have worked for more than 240 days within a period of 12 calendar months and the termination would amounts to retrenchment and that the petitioners are entitled for retrenchment benefits under section 25 F of the Industrial Disputes Act and that the respondent after terminating the services of the petitioners is all set to engage new hands and therefore, the action of the respondent in orally denying employment to the petitioners is grossly illegal and the termination is against the provisions of the Industrial Disputes Act and prayed for reinstatement.
Labourers who are temporarily engaged by the organisation based on the demand of work and the engagement of these 32 persons were approved by Government of Puducherry vide "Casual Labourers Engagement and Regulation Scheme 2009". The engagement of 8 labourers by the then Chairman Thiru K.R. Udhayakumar was purely temporary in nature and to do the menial work and paid daily wages at ` 200 per day. These workers were engaged without any requirement for the organisation and not considering the financial position of the Organisation. Their engagement is also against the order of the Government and without the approval of the General Body. The engagement itself illegal. The petitioners were engaged as wage labourers only and there is no question of termination of services in this case. Hence, section 25F of Industrial Disputes Act will not be applicable to this case. The petitioner's statement in para 4, is wrong and the organisation is not in a position to engage new hands, which is financially not at all viable. The work in the organisation is seasonal in nature depends on the agriculture production and market. Hence, engaging all the staff permanently is not at all feasible and can't be admitted. The Guest House, ATM are all not the duty of this Organisation and it is only the property of the Institution which is being leased out. Hence, the petitioner's statement that work in godown is perennial is rejected. The institution is not making any profit and the institution is struggling to pay the salary even for the existing employees. The total annual income of the organisation is merely 25 lakhs which the annual salary & wage expenditure is around ` l crore. Hence, the organisation is filling the gap by getting Grant from the Government and unable to pay salary for the past 5 months. They could not be retrenched because, there is no shortage of manpower in this organisation.
7. In support of their contention the petitioners have not let any oral evidence and they have exhibited Ex.P1 to Ex.P5. Ex.P1 is the copy of industrial dispute raised by the petitioner before the Labour Department, Karaikal on 16-09-2016. Ex. P2 is the copy of letter given by the respondent on 22-12-2016 to the Labour Department, Karaikal. Ex. P3 is the copy of letter given by the petitioner on 09-01-2017 to the Labour Department, Karaikal. Ex.P4 is the copy of conciliation failure report, dated 18-07-2017. Ex. P5 is the copy of Government reference, dated 18-08-2017.
4. In the course of enquiry on both sides no evidence has been adduced and on consent on the side of the petitioner Ex. P1 to Ex. P5 were marked and on the side of the respondent Ex.R1 to Ex.R5 were marked. Both sides are heard.
5. The point for consideration is:
Whether the dispute raised by the petitioners against the respondent management over their non-employment is justified or not and if justified, what is the relief entitled to the petitioners?
6. On the point :
The pleadings of the parties and the exhibits marked on both sides are carefully considered. On both sides, written arguments were filed and the same was carefully considered. In support of his case, the learned
8. On the other hand, it is contended by the respondent management that the respondent Karaikal Market Committee was established by the Government of Puducherry to do service to the farmers of Karaikal District under the Pondicherry Agricultural Produce Markets Act, 1973 and the Pondicherry Agricultural Produce Markets Rule 1975 and also abide by the orders and notifications as and when published by the Government of Puducherry and 32 other Casual labourers were temporarily engaged by the organisation based on the demand of work and the same was approved by Government of Puducherry vide "Casual Labourers18 September 2018] LA GAZETTE DE L'ETAT 1201 Engagement and Regulation Scheme, 2009" and the petitioners were engaged by the then Chairman which is purely temporary in nature and they are doing the menial work and paid daily wages at ` 200 per day and their engagement is also against the order of the Government and without the approval of the General Body and that therefore, the engagement of the petitioners are illegal and they have been engaged only as wage labourers and there is no question of termination of services and hence, section 25F of Industrial Disputes Act will not be applicable and they are not entitled for retrenchment benefits and the work in the organisation is seasonal in nature depends on the agriculture production and market and engaging all the staff permanently is not at all feasible and cannot be admitted and that the institution is not making any profit and the institution is struggling to pay the salary even for the existing employees and the annual income of the organisation is merely 25 lakhs which the annual salary & wage expenditure is around ` l crore and therefore, the organisation is unable to pay salary for the past 5 months.
9. In support of their contention the respondent has also not let any oral evidence and only exhibited Ex. R1 to Ex. R5. Ex. R1 is the copy of approval requisition by the office of the karaikal Market Committee to the Director of Agriculture dated 06-03-2013. Ex. R2 is the copy of rules and regulations of Puducherry published in Gazette. Ex. R3 is the copy of office memorandum of Department of Personnel and Administrative Reforms dated 28-02-2011. Ex. R4 is the copy of order by Finance Department dated 24-10-2008. Ex. R5 is the copy of Gazette publication dated 27-02-2009.
10. From the pleadings of both the parties and the documents exhibited on either sides it is clear that the petitioners were working at the respondent establishment and they have been terminated orally by the respondent establishment and they have raised the industrial dispute over their non-employment. The petitioners have stated that they were working at the respondent establishment for more than 240 days in the calendar year and that they have to be treated as worker who has to be given notice of termination before a month along with one month salary while the management decides to remove them from service. The petitioners have not exhibited any documents regarding their appointment and to prove the duration of services. The burden of proof is always upon the petitioner to establish their plea that they have been in service for more than 240 days at the respondent establishment. The petitioners has not filed any documents to prove the fact that the petitioners have been in service for about 3 years at the respondent establishment as stated in the claim petition. However, the respondent management has not at all disputed the above fact that the petitioners have been in service at the respondent establishment for about 3 years and that the petitioners have not been completed the work of 240 days in a calendar year. Further, the respondent management has also not let any evidence to rebut the same.
11. The petitioners have exhibited the failure report of the Conciliation Officer under Ex.P4 which would evident that the petitioners have raised the industrial dispute for their non-employment stating that they have been in service at the respondent establishment as Clerk and Helpers from the year 2013 to 2016 and without prior notice the respondent management instructed them not to come for work and the respondent management refused to engage them and they were removed from service improperly even without conducting proper enquiry. The Ex.P4 further would evident that in the conciliation the respondent management has stated that since, the period of the chairman of the respondent establishment was over the respondent management had not received any direction to disengage the said voucher payment staff from the competent authority and hence, they were not removed till July 2016 and that the District Collector-cum- Chairman examined the duty allocation of all the staffs of the respondent establishment and on observing that there is no work and the poor fund position of the respondent management directed immediately to disengage the voucher payment staffs and that the engagement of voucher payment staff is a total violation against the Government order of "Casual Labourers Engagement and Regularisation Scheme, 2009" and that the petitioners were terminated from service only by proper procedure and whenever the Chairman vacates the office, the staff engaged by him has also to be terminated.
12. From the conciliation failure report under the Ex.P4, it is clear that these petitioners were working at the respondent establishment and they have engaged by the then Chairman of the respondent Marketing Committee. Further, the petitioners have stated in their claim petition that they have been in service at the respondent establishment for more than 240 days which has not been denied by the respondent management in their counter. It is not the case of the respondent management that these petitioners are not working for more than 240 days at the respondent establishment and further, the respondent management has not exhibited any documents regarding service particulars of the petitioners to establish that they have not been in service for more than 240 days in the calendar year before this Court.
1 20 2 LA GAZETTE DE L'ETAT [18 September 201813. On perusal of Ex. P2 the document relied upon by the petitioners would reveal the fact that the first petitioner Ramkumar has joined at the respondent establishment on 01-03-2013 and the second petitioner Manikandan has joined at the respondent establishment on 01-07-2015 and other 3 to 8 petitioners have joined at the respondent establishment only in the month of February, 2016 and even as per the case of the petitioners that all these petitioners have been refused employment in the month of August, 2016 and therefore, admittedly except first and second petitioners and all other petitioners have not completed the period of one year of service and the petitioners 3 to 8 had been in service only about 6 months and hence, the petitioners 3 to 8 could not have completed the period of 240 number of working days in a calendar year and furthermore, they have not completed the service not less than one year as stated in the section 25 F of the Industrial Disputes Act and that therefore, the petitioners 3 to 8 could not claim any remedy under section 25 F of the Industrial Disputes Act and hence, all petitioners except first and second petitioners are not entitled for any relief of reinstatement as per the claim petition and they need not be given any notice, compensation or salary required under section 25 F of the Industrial Disputes Act.
14. Further, in respect of first and second petitioners it is clear that the first petitioner had been in service at the respondent establishment for about 3½ years and the second petitioner had been in service at the respondent establishment for more than 1 year and therefore, an adverse inference has to be drawn in this regard and it is to be concluded that the first and second petitioners have been in service at the respondent establishment for more than 240 days in the calender year and that therefore, it can be inferred that the first and second petitioners have been in service at the respondent establishment for more than 240 days.
15. Admittedly, in this case, the first and second petitioners have been in service at the respondent establishment on the appointment of the then Chairman of the Marketing Committee and the first and second petitioners have been terminated from service without any written order and that without giving any notice and without conducting any enquiry, the first and second petitioners have been orally intimated that their services have been terminated. The main contention of the respondent management is that whenever the chairman vacates the office, the staff engaged by him has also to be terminated and that the engagement of voucher payment staff is a total violation against the Government order of "Casual Labourers Engagement and Regularisation Scheme, 2009". It is not disputed by the respondent management that these petitioners were not working at the respondent Marking Committee and they have been terminated orally without even issuing any show cause notice and without conducting any enquiry and no charges are levelled against them.
16. It is the only contention put by the respondent management before the Conciliation Officer as well as before this Court that the voucher payment staff cannot be engaged under the Casual Labourers Engagement and Regularization Scheme, 2009. On this aspect the representative of the petitioners has relied upon the Judgment reported in 1995 (1) LLJ 5/95 wherein, the Hon'ble Patna High Court has held that the workman who has been appointed initially against the rule also can raise the industrial dispute while he completed the services of the statutory period and that the worker who has been appointed even in violation of the Casual Labourers Engagement and Regularisation Scheme, 2009 unless properly terminated by the management, the termination would amount to illegal and that therefore, though these first and second petitioners might have been appointed in violation of the Casual Labourers Engagement and Regularisation Scheme, 2009, they have been entitled for the benefits under section 25 F of the Act.
17. In this case, admittedly, no one month prior notice was given to the first and second petitioners to terminate them from service and no one month wage was given to the first and second petitioners at the time of termination as provided under the abovesaid Act and no retrenchment compensation was also given to the first and second petitioners at any point of time and hence, the alleged oral termination committed by the respondent management against the first and second petitioners cannot be justified and that therefore, it is to be held that the industrial dispute raised by the first and second petitioners against the respondent management over their non-employment is justified and the first and second petitioners are entitled for the order of reinstatement as claimed by them in the claim petition and that the industrial dispute raised by the petitioners 3 to 8 against the respondent management over their non-employment is not justified since, they have not completed the statutory period of 240 number of working days and they have not completed the service at the respondent establishment atleast for an year and petitioners 3 to 8 are not entitled for any order of reinstatement with back wages as claimed by them in the claim petition.
18 September 2018] LA GAZETTE DE L'ETAT 1203List of petitioner's witnesses: Nil.
List of petitioner's exhibits:
18. As this Court has decided that the industrial dispute raised by the first and second petitioners a g a i n s t t h e r e s p o n d e n t m a n a g e me n t o v e r t h e i r non-employment is justified, it is to be decided whether the first and second petitioners are entitled for back wages as claimed by them. There is no evidence that the first and second petitioners are working so far in any other industry and that there is no proof exhibited before this Court that they are working anywhere else. The respondent has not proved the fact that the first and second petitioners have been working in any other establishment after their termination. However, the first and second petitioners could have served at any other industry after their termination. Considering the above facts and circumstances, this Court decides that the first and second petitioners are entitled only for 30% back wages with continuity of service and other attendant benefits.
Ex.P1—16-09-2016 — Copy of industrial dispute raised by the petitioner before the Labour Department, Karaikal.
Ex.P2—22-12-2016— Copy of letter given by the respondent to the Labour Department, Karaikal.
Ex.P3—09-01-2017— Copy of letter given by the petitioner to the Labour Department, Karaikal.
Ex.P4—18-07-2017— Copy of conciliation failure
report.
Ex.P5—18-08-2017— C o p y o f G o v e r n m e n t
reference.
List of respondents's witnesses: Nil.
List of respondents's exibits:
19. In the result, the petition is partly allowed and the industrial dispute raised by the first and second petitioners against the respondent management over their non employment is justified and Award is passed directing the respondent management to reinstate the first and second petitioners in service within one month from the date of this Award and further directed the respondent management to pay 30% back wages to the first and second petitioners from the date of termination till the date of reinstatement with continuity of service and other attendant benefits and in respect of the petitioners 3 to 8 the claim petition is dismissed and the industrial dispute raised by the petitioners 3 to 8 against the respondent management over their non-employment is not justified. No cost.
Dictated to Stenographer, transcribed by her, corrected and pronounced by me in the open Court on this the 18th day of April, 2018.
Ex.R1—06-03-2013— C o p y o f a p p r o v a l requisition by the Office of t h e K a r a i k a l M a r k e t Committee to the Director of Agriculture.
Ex.R2— — C o p y o f r u l e s a n d regulations of Puducherry published in Gazette.
Ex.R3—28-02-2011— Copy of office memorandum of Department of Personnel and Administrative Reforms.
Ex.R4— 24-10-2008 Copy of order by Finance
Department.
Ex.R5— 27-02-2009 Copy of Gazette publication
G. THANENDRAN,
G. THANENDRAN, Presiding Officer, Industrial Tribunal-cum-Labour Court, Puducherry.
Presiding Officer, Industrial Tribunal-cum-Labour Court, Puducherry.
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