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2018 } | 18 {
No.
38
Poudouchéry
Mardi
18
Septembre
2018 (27 Bhadra 1940)
No.
Puducherry
Tuesday
18th
September
2018
1190
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)
NOTIFICATION
Whereas, an Award in I.D. (L) No. 30/2015, dated
25-4-2018 of the Industrial Tribunal-cum-Labour Court,
Puducherry in respect of the industrial dispute
between the management of M/s. Hindustan Unilever
Limited (Detergent Factory), Puducherry and
Thiru P. Jothilingam, Puducherry, 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 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.
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 and
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
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:-
(i) Whether
the
dispute
raised
by
Thiru
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 :
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
1191
18 September 2018]
LA GAZETTE DE L’ETAT
1st January, 2013 to 31st December, 2013 without prior
intimation vide charge-sheet, dated 13-01-2013.
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
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:
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 of
1192
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
nature of misconducts committed by petitioner.
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 the
1193
18 September 2018]
LA GAZETTE DE L’ETAT
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 authorized
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
1194
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 petitioner 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,
1195
18 September 2018]
LA GAZETTE DE L’ETAT
‘………….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 copy
1196
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.
1197
18 September 2018]
LA GAZETTE DE L’ETAT
17. 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.
List of petitioner’s witness:
PW.1 — 7-4-2017
— P. Jothilingam
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.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.
Ex.P13—24-02-2015 — Copy of the 'Report on
Failure of Conciliation'
issued by Labour Officer
(Conciliation)
to
Secretary to Government
(Labour), Puducherry.
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.
1198
LA GAZETTE DE L’ETAT
[18 September 2018
Ex.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.
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.
Ex.R2 — 13-02-2014 — Copy of the domestic
enquiry
proceedings
conducted
against
petitioner and its exhibits
marked therein.
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.
————
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(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.
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.
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
I.D. (L) No. 46/2017
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
The Managing Director,
M/s. Karaikal Market Committee,
Thirunallar Road,
Karaikal.
… Respondent
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:
1199
18 September 2018]
LA GAZETTE DE L’ETAT
AWARD
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:
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
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 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 Casual
1200
LA GAZETTE DE L’ETAT
[18 September 2018
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.
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
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.
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.
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 Labourers
1201
18 September 2018]
LA GAZETTE DE L’ETAT
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.
1202
LA GAZETTE DE L’ETAT
[18 September 2018
13. 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.
1203
18 September 2018]
LA GAZETTE DE L’ETAT
18. As this Court has decided that the industrial
dispute raised by the first and second petitioners
against the respondent management over their
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.
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.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-Labour Court,
Puducherry.
List of petitioner’s witnesses: Nil.
List of petitioner’s exhibits:
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— Copy of Government
reference.
List of respondents’s witnesses: Nil.
List of respondents’s exibits:
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,
Presiding Officer,
Industrial Tribunal-cum-Labour Court,
Puducherry.
[(iii)]