La Gazette de L' État de Poudouchéry
The Gazette of Puducherry
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CONTENTS
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.. 1298
Sentence arbitral du Travail .. 1298
Award of the Labour Court .. 1298
de Tribunal.
.. 1307
Notifications du Gouvernement .. 1307
Government Notifications
.. 1307
.. 1316
Avis d’Adjudications
.. 1316
Tender Notices
.. 1316
.. 1322
Etablissements Dangereux
.. 1322
Dangerous Establishments
.. 1322
.. 1326
Annonces
.. 1326
Announcements
.. 1326
.. 1334
Corrigendum
.. 1334
Corrigendum
.. 1334
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[ 1297 ]
2018 } | 9 {
No.
41
Poudouchéry
Mardi
9
Octobre
2018 (17 Asvina 1940)
No.
Puducherry
Tuesday
9th
October
2018
1298
LA GAZETTE DE L’ETAT
[9 October 2018
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 96/AIL/Lab./T/2018,
Puducherry, dated 18th June 2018)
NOTIFICATION
Whereas, an Award in I.D. (L) No. 42/2015, dated
05-04-2018 of the Industrial Tribunal-cum-Labour Court,
Puducherry in respect of the industrial dispute between
the management of M/s. Pondicherry Institute of Medical
Sciences, Kalapet, Puducherry and Thiru R. Murugaiyan,
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.
Thursday, the 05th day of April 2018
I.D(L). No. 42/2015
Thiru R. Murugaiyan,
No. 1, Gopal Chettiyar Street,
Periya Kalapet,
Puducherry 605 008.
. . Petitioner
Versus
The Managing Director,
M/s. Pondicherry Institute of Medical Sciences,
Ganapathichettikulam,
Village No. 20, Kalapet,
Puducherry.
. . Respondent
This industrial dispute coming on 06-03-2018 before
me for final hearing in the presence of Thiru R.T. Shankar,
Counsel for the petitioner and Thiru L. Sathish, Counsel
for the respondent, upon hearing both sides, upon
perusing the case records, after having stood over for
consideration till this day, this Court passed the
following:
AWARD
1. This Industrial Dispute has been referred by the
Government as per the G.O. Rt. No. 85/AIL/Lab./J/
2015, dated 03-08-2015 for adjudicating the following:-
(i) Whether the dispute raised by Thiru. R. Murugaiyan
against the management of M/s. Pondicherry
Institute of Medical Sciences, 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 joined the service of the respondent
in the year 2002 and he has been working in a prompt
manner without any default or remarks since his
joining of duty in the respondent Hospital. The petitioner
was young and energetic person and was not feeling
well due to stomach problem and he was forced to
take leave from his duties with the respondent and
consequently the petitioner was issued with a
warning memo on 30-03-2013 by the respondent for
which the petitioner had given due explanation to the
respondent. Since, the petitioner again not well and
was forced to take leave from his duty and as such
on 21-09-2013 he was issued with charge memo by
the respondent for which he had duly produced
Medical Certificate along with explanation to the
respondent. Once again the petitioner was issued with
charge memo on 17-01-2013 for which also the
petitioner had given his due explanation and the
same was refused to receive by the respondent.
The petitioner was issued with an enquiry notice on
27-12-2013 for which the petitioner has given his
suitable explanation. The petitioner was forced to
take continuous leave from his duty and he could not
produce suitable evidence to substantiate his claim.
In fact, due to his illness, the petitioner could not
attend his duties properly. A false notice was given
to the petitioner alleging that he was felt asleep
during duty hours during the course of his
employment. The petitioner has given his due reply
and there was an enquiry was conducted and he had
enclosed his suitable explanation for the long
absence from his duty along with his explanation to
the respondent on 06-11-2014. The petitioner belongs
to poor family and he is married and maintaining his
entire family out of his sole income of salary as well
as paid by the respondent. Hence, the petitioner
requested the respondent to drop the allegations
1299
9 October 2018]
LA GAZETTE DE L’ETAT
levelled against the petitioner in the enquiry report
and to make necessary arrangement for his
reinstatement to his duty with the respondent. No
poor employee shall not be punished for his other
part time work when the employee causes no harm
to his permanent employer. The petitioner is a
workman of the respondent. In any event no prior
notice having been given prior to the termination, the
termination being reattachment within meaning of
section 2(oo) of the Industrial Disputes Act, the
same is void ab initio. The petitioner approached the
respondent several times for reinstatement with back
wages, but, his entire attempt becomes in vain.
The respondent has not given any employment or to
settle the back wages with benefits to the petitioner.
Therefore, the petitioner prayed this Court to pass
an order to direct the respondent to reinstate into
service with full back wages and other attendant
benefits by dismissing the termination order against
the petitioner and to pay a sum of ` 2,00,000
(Rupees two lakhs only) as back wages and other
benefits due to the petitioner for the period of
termination.
3. The brief averments in the counter filed by the
respondent are as follows :
The respondent denied all the averments
contained in the claim petition and stated that the
cause title in the claim petition as well as in the
reference is wrong as there is no Managing Director
in the Respondent Institution. The Respondent is
headed by Director-Principal and therefore, the cause
title in the claim petition needs to be suitably
amended
and
further
stated
that
it
is
a
Multi-Specialty Hospital and Trauma Care Centre,
providing plethora of medical facilities and
treatments to people in and around Puducherry
region. It also runs a reputed Medical College and
Nursing College. The respondent has qualified and
efficient Doctors, Nurses, Staffs, Administrators,
Faculty Members, latest equipments, medical gadgets,
best machineries, well furnished laboratories, and all
the other required facilities to facilitate best possible
treatments to patients and best education to students.
The respondent is emerging as one of the reputed
medical institutions in and around Puducherry region
and it has assumed strategic importance for people
of Pondicherry in providing quality medical care in
complicated fields of medicine. The respondent is
a Trauma Care Centre where hundreds of patients
come in for emergency treatments in any given day.
Apart from that, there are in-patients and out-patients,
who require constant medical attention. The respondent’s
Hospital also has ICU and CCU wards, critical
operation theatres where Doctors, Nurses, Technicians,
Assistants, Attendants and other workers provide
round the clock medical treatment and assistance to
patients. The respondent employs around 1670
workers, Nursing Staff, General Staff, Officers and
Faculty out of whom 682 employees are covered
under the Industrial Disputes Act of 1947. It also has
a reputed Medical College and a Nursing College
within its premises and the students therein, attend
to hospital every day as part of their curriculum and
take valuable practical education from Hospital.
It is gainsaid that being a public utility service
institution catering to the emergency health care,
highest levels
of discipline, integrity, honesty,
sincerity and conduct is expected from each and
every one associated with respondent. It cannot take
any incident of dishonesty, indiscipline or lack of
integrity easily. Any compromise by respondent on
such qualities expected of any worker can only
wreck havoc in the institution and can give a leeway
to others to follow such courses with impunity. It can
also be demoralizing to honest and upright workers.
The petitioner was employed as Office Assistant on
17-04-2002 and even since then he had not only been
habitually absenting himself without intimation and
also involved in other serious misconducts and
misdemeanors. The charge memo was given to the
petitioner on 21-08-2010 for the misconduct of
sleeping in duty and neglect of work for which the
petitioner requested forgiveness and he was
suspended for two days as punishment vide order,
dated 24-08-2010. The another charge memo was
given to the petitioner on 27-02-2013 for the
misconduct of absent for more than eight continuous
working days from 20-02-2012 and he was issued
warning memo, dated 30-03-2013 permitting him to
re-join duty on his letter of pardon stating that he
was under treatment for alcohol dependence
syndrome. The another charge memo was given to
the petitioner on 27-04-2013 for the misconduct of
absent for more than eight continuous working days
from 13-04-2013 and order was issued against him
on 15-05-2013 suspending him from 29-04-2013 to
14-05-2013 on his letter of pardon that in case of any
recurrence, the management will be constrained to
take serious action including termination. The another
charge memo was given to the petitioner on
21-09-2013 for the misconduct of absent for eight
continuous working days from 06-09-2013 for which
the petitioner sought excuse on health grounds and
1300
LA GAZETTE DE L’ETAT
[9 October 2018
order was issued on 01-10-2013 warning him that
any further recurrence will be viewed seriously.
The respondent had shown extraordinary lenience to
the petitioner and on more than one occasion it had
condoned the misconduct of chronic absenteeism.
The petitioner took undue advantage of the leniency
shown by the respondent did not bother to mend his
ways. The petitioner continued to be erratic and once
again
remained
unauthorizedly
absent
from
02-12-2013. A charge memo, dated 17-12-2013 was
issued to him for his unauthorized absence from
02-12-2013 to 22-12-2013. The petitioner was
specifically charged for his habitual attitude of
remaining absent from work and in the present case
he
had remained
continuously
absent from
02-12-2013 to 22-12-2013 without any intimation
and therefore, was liable for abandonment of
employment. He submitted his explanation, dated
23-12-2013 accepting his misconduct.
An impartial
domestic enquiry was held on 02-01-2014, wherein,
the petitioner appeared in person and after having
understood the charges, unconditionally accepted the
same. He did not let any oral evidence on his side
and hence, the enquiry closed as admitted. The petitioner
also signed the enquiry proceedings. The Enquiry
Officer submitted his findings, dated 03-01-2014
holding that the petitioner was found guilty of the
charges framed on his admission and on the basis of
the records. A second show cause notice, dated
03-01-2014 was issued, enclosing the copy of the
enquiry proceedings and findings seeking his
explanation as to why his name should not be struck
off from the rolls under Rule 11.1.7 of the Service
Rules. The petitioner submitted his explanation,
dated 03-01-2014, once again accepting the absence
and seeking forgiveness. The past record of
petitioner shows that he has been warned and
suspended on earlier occasions for remaining absent
without authorization, but there was no improvement
in his conduct. Petitioner was also reprimanded for
getting intoxicated and remaining absent for long
spells. Infact, the main reason for such frequent
absence of the petitioner and that too for long
duration, was his addiction to alcohol and the
petitioner even took treatment in respondent’s
hospital for de-intoxication was admitted as inpatient
on 28-02-2013 and discharged on 13-03-2013 after
extensive treatment. He also underwent de-addiction
treatment at a rehabilitation centre from 26-07-2011
to 26-08-2011. Inspite of such history of petitioner,
the respondent showed maximum leniency in case of
the petitioner and tried to accommodate him to the
best possible extent, but, he did not mend his ways
and failed to utilize the opportunities presented to
him. Any further leniency shown to him would
adversely affect the discipline and as the employee
did not seem to rectify himself inspite of several
charge memos, warnings and suspensions issued to
him, the respondent was constrained to take a strong
action and it was decided to terminate his services
for proved misconduct of habitual/continuous
absence in the interest of the organization and the
maintenance of discipline and by way of deterrence
to other such employees in the respondent's
institution as per the termination order, dated
28-01-2014. The respondent is a medical institution
which requires the services of its Staffs, Officers,
Doctors, Nurses, Attendants, etc., at all times to cater
to the needs of its patients. It receives number of
emergency cases and round the clock attendance of
such patients are extremely essential, unauthorized
absence and that too in such regularity, cripples the
entire functioning of the respondent's Hospital. Such
indiscipline and lack of interest in services, if, left
unpunished or even if, lesser punishments are
imposed it will set a trend among the other workers
and such unauthorized absence spreads like
contagious disease. The respondent was therefore,
compelled to take such severe action which is fully
justified. The averments in the claim petition of the
petitioner are absolutely false and baseless and are
invented by the petitioner solely for the purposes of
gaining sympathy of this Court and seeking
reinstatement in service.
4. In the course of enquiry on the side of the
petitioner PW.1 and PW.2 were examined and Ex.P1 to
Ex.P11 were marked and on the side of the respondent
RW.1 was examined and Ex.R1 to Ex.R26 were marked.
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 let in
by either sides and the exhibits marked on both sides
are carefully considered. In support of his case the
learned Counsel for the petitioner has relied upon the
Judgment reported in CDJ 2014 DHC 2655. In order
to establish his case the petitioner has examined
himself as PW.1 and he has reiterated all the
1301
9 October 2018]
LA GAZETTE DE L’ETAT
averments in the claim petition in his evidence and
stated that he joined in the respondent establishment
in the year 2002 and he was working in the
respondent establishment in a prompt manner
without any default or remarks since from joining in
duty and that he was not feeling well due to his
stomach problem and he was forced to take leave
from
his
duties
for
which
the
respondent
management has issued a warning memo on
30-03-2013 and he has given due explanation to the
respondent for the said warning memo and he had
again unwell and he was forced to take leave from
his duty on 21-09-2013 and again he was received
the charge memo and he had duly produced his
Medical
Certificate
before
the
respondent
management with his explanation and that the
respondent management has refused to receive the
same and thereafter, he has received the enquiry
notice on 27-12-2013 for which he has given his
suitable explanation and PW.1 further stated that due
to his illness he could not attend his duty properly
and again he was forced to take continuous leave due
to his illness and the respondent management has
given false notice to him alleging that he was felt
asleep during duty hours in the course of his
employment and he had given his due reply and an
enquiry was conducted wherein, he has enclosed his
suitable explanation on 06-11-2014 for his long
absence from duty and that since he belongs to poor
family and he is maintaining his entire family out of
his sole income he requested the respondent
management to drop the allegations levelled against
him in the enquiry report and to make necessary
arrangement for his reinstatement to his duty with the
respondent management and that the respondent
management has not given prior notice before
termination of his service and even he has
approached the respondent management several
times for reinstatement of his service the respondent
management refused to give employment and that the
respondent
management
has
not
given
any
employment or to settle the back wages with benefits
to him and therefore, he prayed this Court to direct
the respondent to reinstate into service with full back
wages and other attendant benefits.
7. In support of his evidence the co-worker of the
petitioner was examined as PW.2 and it is the evidence
of PW.2 that he was working as plumber in the
respondent Hospital along with the petitioner and the
petitioner was working as Office Assistant in Library
Department and he personally known him and that he
was undergoing medical treatment for his habit of
alcoholism and he has not come to duty with drunken
mood at any point of time. In support of his case the
petitioner has exhibited Ex.P1 to Ex.P11. Ex.P1 is the
copy of appointment order of the petitioner, dated
15-04-2002. Ex.P2 is the copy of termination order of
the petitioner, dated 28-01-2014. Ex.P3 is the copy of
complaint given by the petitioner to the Labour
Conciliation Officer on 15-07-2014. Ex.P4 is the copy
of notice of enquiry issued by the Labour Conciliation
on 10-09-2014. Ex.P5 is the copy of reply by the
management, dated 08-10-2014. Ex.P6 is the copy of
Medical Certificate, dated 22-12-2013. Ex.P7 is the
copy of Medical Certificate, dated 24-05-2011. Ex.P8
is the copy of alcoholism treatment report, dated
02-08-2011. Ex.P9 is the copy of employee Identity Card.
Ex.P10 is the copy of explanation for the enquiry
report, dated 02-01-2014 given by the petitioner to
Labour Conciliation Officer. Ex.P11 is the copy of
failure report, dated 19-06-2015. These documents
would go to show that the petitioner was appointed on
15-04-2002 and he was terminated from service on
28-01-2014 and he filed a petition on 15-07-2014
before the Labour Conciliation against the respondent
management for wrongful termination from his service
for which the management has given a reply and that
the petitioner has taken medical treatment to avoid
addiction to alcoholism and that the petitioner has given
explanation for the enquiry report, dated 02-01-2014
and after negotiations since the matter has not been
amicably settled on 19-06-2015 the Conciliation Officer
has sent failure report to the Government.
8. On the side of the respondent management the
General Manager-Administration-Principal Officer of
the respondent’s Hospital was examined as RW.1 and
RW.1 has stated in his evidence that their Hospital is a
Multi-Specialty Hospital and Trauma Care Centre and
number of patients come in for emergency treatments
and apart from that, there are in-patients and out-patients
and they have to be given medical attention and their
Hospital is having ICU and CCU wards, critical
operation theatres where Doctors, Nurses, Technicians,
Assistants, Attendants and other workers provide round
the clock medical treatment and assistance to patients
and 1670 workers are working in the respondent
Hospital and out of which 682 employees are covered
under the Industrial Disputes Act and that the claim
petitioner was employed as Office Assistant on
17-04-2002 and even since then he had not only been
habitually absenting himself without intimation but, also
involved
in
other
serious
misconducts
and
misdemeanors and that the charge memo was issued
against the petitioner on 21-08-2010 for the misconduct
1302
LA GAZETTE DE L’ETAT
[9 October 2018
of sleeping in duty hours and neglect of work and for
the said charge memo the petitioner requested
forgiveness and he was suspended for two days as
punishment vide order, dated 24-08-2010 and another
charge memo was issued against the petitioner on
27-02-2013 for the misconduct of absent for more than
eight continuous working days from 20-02-2012 and
that he was issued warning memo on 30-03-2013
permitting him to re-join duty on his letter of pardon
stating that he was under treatment for alcohol
dependence syndrome and that another charge memo
was issued against the petitioner on 27-04-2013 for the
misconduct of absent for more than eight continuous
working days from 13-04-2013 and order was issued
against him on 15-05-2013 suspending him from
29-04-2013 to 14-05-2013 on his letter of pardon that
in case of any recurrence, the management will be
constrained to take serious action including termination
and another charge memo was issued against the
petitioner on 21-09-2013 for the misconduct of absent
for eight continuous working days from 06-09-2013 for
which the petitioner sought excuse on health grounds
and order was issued on 01-10-2013 warning him that
any further recurrence will be viewed seriously and that
the petitioner was shown extraordinary lenience by the
respondent management and that the respondent
management has condoned the misconduct of chronic
absenteeism of the petitioner for more than one
occasion and that the petitioner has taken due
advantage of the leniency shown by the respondent
management did not bother to mend his ways and the
petitioner continued to be erratic remained unauthorizedly
absent from 02-12-2013 and that charge memo was
issued to him on 17-12-2013 and he was issued show
cause notice for his unauthorized absence from
02-12-2013 to 22-12-2013 and he was charged
specifically for his habitual attitude of remaining absent
from work and that he had remained continuously
absent from 02-12-2013 to 22-12-2013 without any
intimation and therefore, the petitioner was liable for
abandonment of employment and that the petitioner has
submitted his explanation on 23-12-2013 accepting his
misconduct and an impartial domestic enquiry was held
on
02-01-2014
and
that
the
petitioner
was
unconditionally accepted the charges and he did not let
any oral evidence on his side and hence, the enquiry was
closed as admitted and the petitioner also signed the
enquiry proceedings and findings was given by the
Enquiry Officer on 03-01-2014 holding that the
petitioner was found guilty of the charges framed on his
admission and on the basis of the records and that
second show cause notice was issued on 03-01-2014
and that the petitioner has submitted his explanation on
03-01-2014 once again accepting the absence and
seeking forgiveness and that the petitioner was also
reprimanded for getting intoxicated and remaining
absent for long spells and frequent absence for long
duration and that the petitioner was taking treatment
from 28-02-2013 at their Hospital and discharged on
13-03-2013 and he also underwent de-addiction
treatment at a rehabilitation centre from 26-07-2011 to
26-08-2011 and that the petitioner was not seem to
rectify himself inspite of several charge memos,
warnings and suspensions issued to him and therefore,
the respondent was compelled to take such severe
action of dismissal of service against the petitioner
which is fully justified.
9. In support of their oral evidence the respondent
management has exhibited Ex.R1 to Ex.R26. Ex.R1 is
the copy of the letter given by the petitioner to the
respondent on 19-06-2014. Ex.R2 is the copy of the
Service Certificate given by the respondent to the
petitioner on 19-06-2014. Ex.R3 is the copy of the
charge memo issued by the respondent to the petitioner
on 21-08-2010. Ex.R4 is the copy of the explanation
letter given by the petitioner on 23-08-2010 to the
respondent for the charge memo, dated 21-08-2010.
Ex.R5 is the copy of the order, dated 24-08-2010
passed by the respondent in charge memo, dated
21-08-2010. Ex.R6 is the copy of acknowledgment
card for service of charge memo, dated 27-02-2013 to
the petitioner. Ex.R7 is the copy of the charge memo
issued by the respondent to the petitioner on
27-02-2013. Ex.R8 is the copy of the warning memo
given by the respondent to the petitioner on
30-03-2013. Ex.R9 is the copy of the discharge
summary given by the respondent Hospital to the
petitioner on 13-03-2013. Ex.R10 is the copy of the
charge memo issued by the respondent to the petitioner
on 27-04-2013. Ex.R11 is the copy of the explanation
letter given by the petitioner on 29-04-2013 to the
respondent for the charge memo, dated 27-04-2013.
Ex.R12 is the copy of the order, dated 15-05-2013
passed by the respondent for the charge memo, dated
27-04-2013. Ex.R13 is the copy of the charge memo
issued by the respondent to the petitioner, dated
21-09-2013. Ex.R14 is the copy of the explanation
letter given by the petitioner on 23-09-2013 to the
respondent to the charge memo, dated 21-09-2013.
Ex.R15 is the copy of the order, dated 01-10-2013
passed by the respondent for the charge memo, dated
21-09-2013. Ex.R16 is the copy of the charge memo
issued by the respondent to the petitioner, dated
17-12-2013. Ex.R17 is the copy of the explanation
1303
9 October 2018]
LA GAZETTE DE L’ETAT
letter given by the petitioner to the respondent, dated
23-12-2013. Ex.R18 is the copy of the enquiry notice
sent by the respondent to the petitioner on 27-12-2013.
Ex.R19 is the copy of acknowledgment card for service
of charge memo, dated 27-12-2013 to the petitioner.
Ex.R20 is the copy of the enquiry proceedings given
by the Enquiry Officer. Ex.R21 is the copy of the
second show cause notice given by the respondent to
the petitioner, dated 03-01-2014. Ex.R22 is the copy of
the findings of the enquiry report submitted by the
Enquiry Officer, dated 03-01-2014. Ex.R23 is the copy
of the explanation letter given by the petitioner to
the respondent on 03-01-2014. Ex.R24 is the copy of
the explanation letter given by the petitioner to the
respondent on 04-06-2014. Ex.R25 is the copy of
the service rules of the respondent’s institution.
Ex.R26 is the copy of the dismissal order, dated
28-01-2014 passed by respondent to the petitioner with
RPAD slip and Acknowledgment Card.
10. The above documents exhibited by the respondent
management would reveal the fact that the petitioner
was given charge memo on 21-08-2010 for the
misconduct of sleeping in duty hours and for which the
petitioner has submitted his explanation on 23-08-2010
and thereafter another charge memo was given on
27-02-2013 to the petitioner and warning memo was
given to the petitioner on 30-03-2013 and that the
petitioner had taken treatment at respondent Hospital
and thereafter, on 27-04-2013 charge memo has been
given to the petitioner for which the petitioner has
given explanation on 29-04-2013 and thereafter on
21-09-2013 charge memo was given to the petitioner
alleging that the petitioner was unauthorizedly absent
from duty for which also the petitioner has submitted
his explanation on 23-09-2013 and lastly on
17-12-2013 another charge memo was issued once
again to the petitioner for unauthorized absence for
which also the petitioner has submitted his explanation
on 23-12-2013 and thereafter, an enquiry was ordered
and enquiry notice was issued on 27-12-2013 and the
Enquiry Officer who conducted the enquiry submitted
his report on 03-01-2014 and on the same day the
second show cause notice was issued to the petitioner
and the petitioner also on the same day submitted his
explanation and thereafter, the petitioner was dismissed
from service on 28-01-2014 and it was sent under
RPAD along with the Acknowledgment Card.
11. From the pleadings of both the parties, the
evidence let in by either sides and the exhibits marked
on both dies it can be noticed that the following facts
are admitted by either side that the petitioner was
working at the respondent Hospital from the year 2002
and he was terminated in the year 2014 and the charge
against the petitioner was unauthorized absence and
domestic enquiry was conducted and second show
cause notice was issued for which the petitioner has
given the explanation and thereafter, the petitioner was
terminated from service and the petitioner has raised
an industrial dispute before the Conciliation Officer and
thereafter, negotiation were held and the conciliation
was failed and the failure report was submitted by the
Conciliation Officer and on which the Government has
sent the reference to this Court.
12. From the pleadings of both the parties this Court
has found that the only issue to be decided by this Court
is that whether the dismissal action taken by the
respondent management against the petitioner is
justified or not. The contention of the petitioner is that
he was unwell and he had been under treatment on the
said date of alleged unauthorized absence and the order
of termination is disproportionate to the alleged
misconduct of unauthorized absence. On this aspect the
evidence of both the parties and the documents
exhibited by either sides are carefully perused. It is
learnt from the documents exhibited on the side of the
respondent that even prior to the alleged unauthorized
leave the petitioner has also charged for some
misconduct alleged to have been committed by him and
he has also committed other misconduct on several
occasions and the same was admitted by him. It is to
be seen whether the respondent management has
conducted the domestic enquiry properly by giving
sufficient opportunities to the petitioner to disprove the
charges levelled against him.
13. The enquiry proceedings which is exhibited
under Ex.R20 would reveal the fact that the domestic
enquiry was commenced on 02-01-2014 at 02.30 p.m.
and ended on the same day wherein, the petitioner has
stated that he had no witness to examine or documents
to be marked and on the management side the
attendance registers for the months of December-2013
and January-2014 were marked as exhibits and even on
the side of the management no witness was examined
to prove the charges leveled against the petitioner
before the Enquiry Officer. Further, in Ex.R20 the
Enquiry Officer has stated that the petitioner
Murugaiyan has submitted a letter, dated 23-12-2013
accepting his mistake and the fact that he had not come
for duty due to personal problems. Further, it reveals
from Ex.R22 the enquiry report that the Enquiry Officer
has submitted the report on the very next day of the
enquiry that is on 03-01-2014 stating that as the
1304
LA GAZETTE DE L’ETAT
[9 October 2018
petitioner unconditionally accepted all the charges
levelled against him and sought for forgiveness and that
the charges levelled against him stands proved beyond
doubt and found that the petitioner was absent from
02-12-2013 to 22-12-2013. Though the enquiry report
shows that the petitioner has unconditionally admits the
charges the letter submitted by him on 23-12-2017
which is exhibited as Ex.R17 and relied upon the by
the respondent management would go to show that the
petitioner has given intimation for the leave to the
management for the period 03-12-2013 to 06-12-2013
and the said intimation is admittedly given by the
petitioner to the respondent management and the same
intimation letter was not marked on the side of the
respondent as stated in the Ex.R17 which was marked
in the cross examination of PW1 by the respondent
management and these fact would go to show that the
petitioner has given letter on 23-12-2013 stating that
due to his personal problem he could not attend the
duty for the period 03-12-2013 to 22-12-2013 and that
he has given intimation for the leave for the period
03-12-2013 to 06-12-2013. In such circumstances, the
Enquiry Officer as well as the management has not
stated anything about the fact that whether actually the
petitioner has intimated the leave for the period
03-12-2013 to 06-12-2013 at the beginning of the
leave. Without any explanation to the said content of
the letter under Ex.R17 the Enquiry Officer has stated
that the petitioner has unconditionally admitted the
charges levelled against him.
14. Furthermore, though the petitioner has stated in
Ex.R17 that due to his family problem he could not
given further intimation for the leave for the subsequent
period the Enquiry Officer did not consider the above
fact to decide the guilt of the petitioner in the enquiry
and he has not stated in the enquiry report that whether
the leave taken by him is willfull or wanton. Further,
the letter under Ex.R17 relied upon by the respondent
management would go to show that the petitioner has
stated in his letter that at the beginning of the leave for
the period 03-12-2013 to 06-12-2013 it was intimated
by him to the management. Further, it is learnt from
the records Ex.R20 to Ex.R22 that the enquiry was
commenced on 02-01-2014 and on the same day it was
closed and second show cause notice was issued on
03-01-2014 and on the same day the petitioner also has
given reply and these facts would go to show that the
Enquiry Officer has commenced the enquiry on
02-01-2014 without examining any witnesses on both
sides and only on marking of attendance registers the
Enquiry Officer concluded that the petitioner was found
guilty for unauthorized absence. It is not in dispute that
the petitioner has not attended duty from 02-12-2013
to 22-12-2013 and therefore, it is ought to have been
decided by the Enquiry Officer that whether the absence
of the petitioner is willfull or wanton.
15. Though the respondent management has
established the fact that the petitioner was in the habit
of involving in unauthorised absence in the previous
occasions and committed misconduct of unauthorized
absence and for the same he was excused by the
management and he was permitted to join the duty, as
far as this charge is concerned the findings of the
Enquiry Officer is not based on the above facts and
other circumstances, he has only gone through the
attendance registers for the absence of the petitioner
and he did not find whether the unauthorized absence
of the petitioner is willfull or wanton and further the
enquiry was commenced and completed on the same
day i.e., on 02-01-2014 at 02.30 p.m. only on the foot
of the alleged unconditional admission of the
delinquent petitioner. But, it is learnt from Ex.P3 that
the petitioner has given complaint to the Labour
Conciliation Officer wherein, it is stated by the petitioner
that only on assurance given by the management he has
admitted the charges and he was terminated by the
management on 28-01-2014 on the basis of false
charges.
16. The Enquiry Officer has failed to conduct the
enquiry to find out the fact that whether the absence of
the petitioner is willfull or wanton and that therefore,
it is clear that the findings of the Enquiry Officer is not
based on the documentary evidence particularly the
letter given by the petitioner on 23-12-2013 stating the
above fact that he intimated the leave and that therefore,
the findings of the Enquiry Officer without perusing the
explanation given by the petitioner would go to show
that the findings of the Enquiry Officer has suffers from
the non-application of mind while deciding the guilt of
the petitioner and no sufficient opportunities was given
to the petitioner to prove his case that under what
circumstances he could not give intimation for the
extension of leave.
17. It is the another contention of the petitioner that
to punish the workman it is to be established by the
management that workman has committed unauthorized
absence from duty willfully and wantonly and in this
case the petitioner has not taken the leave willfully and
only for the cause of taking treatment to avoid
alcoholism he was not able to attend the duty and the
respondent management has failed to establish that
absence was willfull and wanton. On perusal of
documents exhibited on the side of the petitioner, it is
learnt from Ex.P6 that Government Medical Officer has
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9 October 2018]
LA GAZETTE DE L’ETAT
issued certificate that the petitioner was suffering from
alcohol dependance-withdrawal syndrome was taking
treatment which was prescribed at PIMS from
03-12-2013 to 22-12-2013. The document Ex.P7 would
reveal the fact that the petitioner was taking treatment
to avoid the habit of taking alcohol i.e. For de-addiction
cum
rehabilitation
for
alcoholic
abused
from
27-01-2014 to 24-05-2014 after he was terminated from
service. The document Ex.P8 would reveal the fact that
Annai Karunalaya Social Welfare Association has sent
a letter on 02-08-2011 to the Personal Officer of PIMS
respondent Hospital informing that the petitioner has
been taking treatment in their Integrated Rehabilitation
centre for his alcoholism since, 26-07-2011 up to
26-08-2011. From the above documents it is clear that
the petitioner was suffering from alcohol dependance-
withdrawal syndrome and he was taking treatment to
avoid alcoholism. Further, the RW.1 in his cross
examination has stated as follows :
“
Memo
HR
Department
”
From the above evidence it is clear that the
petitioner was working in the respondent Hospital from
the year 2002 and the petitioner has not committed any
other misconduct except the unauthorized absence and
it is also admitted by the management witness that the
petitioner was taking medical treatment to avoid
alcoholism. Further, it was suggested by the petitioner
that his wife is working at HR Department in the
respondent Hospital and he informed then and there
regarding his leave to the management through his wife
and the fact that the petitioner’s wife was working at
the HR Department in the respondent Hospital is
admitted by RW.1 but, he denied that the petitioner's
wife has informed the leave taken by the petitioner.
The Enquiry Officer ought to have enquired whether the
petitioner’s wife has informed the leave or not before
giving finding of the guilt against the petitioner and
therefore, it is clear that no sufficient opportunities was
given to the petitioner to disprove the case of the
management.
18. Further, the learned Counsel for the petitioner
has relied upon the Judgment reported in CDJ 2014
DHC 2655 wherein, the Hon’ble High Court of Delhi
has held that,
“........The question whether ‘unauthorized absence
from duty’ amounts to failure of devotion to duty or
behaviour unbecoming of a Government Servant
cannot be decided without deciding question whether
absence is wilful or because of compelling circumstances.
If, the absence is the result of compelling
circumstances under which it was not possible to
report or perform duty, such absence cannot be held
up be wilful. Absence from duty without any
application or prior permission may amount to
unauthorized absence, but, it does not always mean
willful. There may be different eventualities due to
which an employee may abstain from duty, including
compelling circumstances beyond his control like
illness, accident, hospitalization, etc., but, in such
case the employee cannot be held guilty of failure
of devotion to duty or behaviour unbecoming of a
Government Servant.
In a Departmental proceeding, if, allegation of
unauthorized absence from duty is made, the
disciplinary authority is required to prove that the
absence is wilful, in absence of such finding , the
absence will not amount to misconduct...”
From the above observation of the Hon’ble High
Court it is clear that mere absence without prior
permission may amount to unauthorized absence but it
does not always mean willfull and that therefore, it is
clear that the Enquiry Officer has failed to decide the
1306
LA GAZETTE DE L’ETAT
[9 October 2018
same and the disciplinary authority has failed to decide
that whether the unauthorized absence of the petitioner
is willfull or not. Further, it is learnt from the evidence
of RW.1 that the petitioner has taken medical treatment
to avoid alcoholism and the same was known to the
respondent management and therefore, it is clear that the
petitioner has taken the leave for his medical treatment
and he has not taken the leave willfully and wantonly.
19. Further, as it is established by the management
that this petitioner is a habitual absentee without giving
any intimation to the management this petitioner can be
given some penalty for such misconduct committed by
him and that therefore, the dismissal of punishment
given by the management for such alleged unauthorized
absence cannot be accepted 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 as claimed by him. However,
considering the fact that the petitioner has committed
misconduct of unauthorized absence previously on
many occasions and the fact that the petitioner was
absent for the period from 07-12-2013 to 22-12-2013
unauthorizedly, penalty of stoppage of two increments
with cumulative effect can be awarded while granting
reinstatement with continuity of service. Further,
considering the fact that the petitioner has asked the
respondent management to give Service Certificate to
join in some other establishments it can be inferred that
the petitioner was working at some other establishment
after his termination of service from the respondent
Hospital and hence, he is not entitled for any back wages
as claimed by him.
20. 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 two increments with cumulative
effect while granting reinstatement with continuity of
service and the petition is partly dismissed in respect
of back wages claimed by him. No cost.
Dictated to the Stenographer, transcribed by her,
corrected and pronounced by me in the open Court on
this the 05th day of April, 2018.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
List of petitioner’s witnesses:
PW.1
—15-03-2016 Murugaiyan
PW.2
—12-04-2017 Umapathy
List of petitioner’s exhibits:
Ex.P1 — 15-04-2002 Copy of appointment order
of the petitioner.
Ex.P2 — 28-01-2014 Copy of termination order of
the petitioner.
Ex.P3 — 15-07-2014 Copy of complaint given by
the petitioner to the Labour
Conciliation Officer.
Ex.P4 — 10-09-2014 Copy of notice of enquiry
issued
by
the
Labour
Conciliation.
Ex.P5 — 08-10-2014 Copy
of
reply
by
the
management.
Ex.P6 — 22-12-2013 Copy of Medical Certificate.
Ex.P7 — 24-05-2011 Copy of Medical Certificate.
Ex.P8 — 02-08-2011 Copy of alcoholism treatment
report.
Ex.P9 — 17-04-2002 Copy of employee Identity
Card.
Ex.P10—06-11-2014 Copy of explanation for the
enquiry
report,
dated
02-01-2014 given by the
petitioner to the Labour
Conciliation Officer.
Ex.P11—19-06-2015 Copy of failure report.
List of respondent’s witness:
RW.1 — 09-06-2017 A.G. Isaiah
List of respondent’s exhibits:
Ex.R1 — 19-06-2014 Copy of the letter given by
the petitioner to the respondent.
Ex.R2 — 19-06-2014 Copy of the service certificate
given by the respondent to
the petitioner.
Ex.R3 — 21-08-2010 Copy of the charge memo
issued by the respondent to
the petitioner.
Ex.R4 — 23-08-2010 Copy of the explanation
letter given by the petitioner
to the respondent for the
charge memo, dated 21-08-2010.
Ex.R5 — 24-08-2010 Copy of the order passed by
the respondent in charge
memo, dated 21-08-2010.
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9 October 2018]
LA GAZETTE DE L’ETAT
Ex.R6 —
Copy of Acknowledgment
Card for service of charge
memo, dated 27-02-2013 to
the petitioner.
Ex.R7 — 27-02-2013 Copy of the charge memo
issued by the respondent to
the petitioner.
Ex.R8 — 30-03-2013 Copy of the warning memo
given by the respondent to
the petitioner.
Ex.R9 — 13-03-2013 Copy
of
the
discharge
summary
given
by
the
respondent Hospital to the
petitioner.
Ex.R10—27-04-2013 Copy of the charge memo
issued by the respondent to
the petitioner.
Ex.R11—29-04-2013 Copy of the explanation
letter given by the petitioner
to the respondent for the
charge memo, dated 27-04-2013.
Ex.R12—15-05-2013 Copy of the order passed by
the respondent for the charge
memo, dated 27-04-2013.
Ex.R13—21-09-2013 Copy of the charge memo
issued by the respondent to
the petitioner.
Ex.R14—23-09-2013 Copy of the explanation
letter given by the petitioner
to the respondent to the
charge memo, dated 21-09-2013.
Ex.R15—01-10-2013 Copy of the order passed by
the respondent for the charge
memo, dated 21-09-2013.
Ex.R16—17-12-2013 Copy of the charge memo
issued by the respondent to
the petitioner.
Ex.R17—23-12-2013 Copy of the explanation
letter given by the petitioner
to the respondent.
Ex.R18—27-12-2013 Copy of the enquiry notice
sent by the respondent to
the petitioner.
Ex.R19 —
Copy of Acknowledgment
Card for service of charge
memo, dated 27-12-2013 to
the petitioner.
Ex.R20—02-01-2014 Copy
of
the
enquiry
proceedings given by the
Enquiry Officer.
Ex.R21—03-01-2014 Copy of the second show
cause notice given by the
respondent to the petitioner.
Ex.R22
03-01-2014 Copy of the findings of the
enquiry report submitted by
the Enquiry Officer.
Ex.R23
03-01-2014 Copy of the explanation
letter given by the petitioner
to the respondent.
Ex.R24
04-06-2014 Copy of the explanation
letter given by the petitioner
to the respondent.
Ex.R25 —
Copy of the service rules of
the respondent’s institution.
Ex.R26
28-01-2014 Copy of the dismissal order
passed by respondent to the
petitioner with RPAD slip
and Acknowledgement Card.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 124/AIL/Lab./T/2018,
Puducherry, dated 23rd August 2018)
NOTIFICATION
Whereas, the Government is of the opinion that an
industrial dispute has arisen between the management
of M/s. Lanson Motors Private Limited, Bahour,
Puducherry and the union workmen represented by
United Labour Federation, Thambu Chetty Street,
Chennai, over providing safety in supply of food to the
workers in the working place/canteen in respect of the
matter mentioned in the Annexure to this order;
And whereas, in the opinion of the Government,
it is necessary to refer the said dispute for adjudication;
Now, therefore, by virtue of the authority delegated
vide G.O. Ms. No. 20/91/Lab./L, dated 23-5-1991 of
the Labour Department, Puducherry to exercise the
powers conferred by clause (c) of sub-section (1) of