La Gazette de L' État de Poudouchéry
The Gazette of Puducherry
Publiée par Autorité
Published by Authority
` 24-00
Prix : ` 24-00
Price : ` 24-00
SOMMAIRES
CONTENTS
Page
Page
.. 1336
Sentence arbitral du Travail .. 1336
Award of the Labour Court .. 1336
de Tribunal.
.. 1352
Notifications du Gouvernement .. 1352
Government Notifications
.. 1352
.. 1354
Avis de Saisis-arrêt
.. 1354
Notice of Attachments
.. 1354
.. 1356
Avis d’Adjudications
.. 1356
Tender Notices
.. 1356
.. 1360
Etablissements Dangereux
.. 1360
Dangerous Establishments
.. 1360
.. 1361
Annonces
.. 1361
Announcements
.. 1361
Registered with the Registrar
of Newspapers for India under
No. 10410
Registered No. PY/44/2018-20
WPP No. TN/PMG(CCR)/WPP-88/2018-20
Dated : 16-10-2018
Price : ` 24-00
[ 1335 ]
2018 } | 16 {
No.
42
Poudouchéry
Mardi
16
Octobre
2018 (24 Asvina 1940)
No.
Puducherry
Tuesday
16th
October
2018
1336
LA GAZETTE DE L’ETAT
[16 October 2018
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G. O. Rt. No. 99/AIL/Lab./T/2018,
Puducherry, dated 19th June 2018)
NOTIFICATION
Whereas, an Award in I.D. (L) No. 22/2016, dated
25-05-2018 of the Industrial Tribunal-cum-Labour
Court, Puducherry, in respect of the industrial dispute
between the management of M/s. Aathi Sakthi Projects
Private Limited, Puducherry and Thiru Manimaran,
Puducherry, over reinstatement with full back wages,
continuity in service and all other attendant benefits has
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,
Friday, the 25th day of May, 2018
I.D. (L) No. 22/2016
Manimaran,
S/o. Vellaisamy,
No.45, Murugan Koil Street,
Kothapurinatham,
Thiruvandarkoil,
Puducherry-605 102.
. . Petitioner
Versus
The Managing Director,
M/s. Aathi Sakthi Projects
Private Limited,
R.S. No. 40/9, Earikarai Road,
Kothapurinatham,
Thiruvandarkoil,
Puducherry-605 102.
. . Respondent.
This industrial dispute coming on 08-05-2018 before
me for final hearing in the presence of Tvl. R.T. Shankar,
A.Ashokkumar and P. Suresh, Counsels for the petitioner
and Tvl. R. Ilancheliyan and S. Geetha, Counsels 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 is a petition filed by the petitioner under section
2-A of the Industrial Disputes Act praying to pass an Award
to direct the respondent management to re-instate the
petitioner with full back wages, continuity of service an
all other attendance benefits.
2. The averments in the claim statement of the
petitioner, in brief, are as follows :
The respondent management started his concern in
the year 2004 and after the due course of the selection
process the petitioner had been appointed in
Fitter Post. The petitioner had been serving at the the
respondent management from April, 2018 at the utmost
satisfaction of the respondent management and there
is no remark at all as against the petitioner so far. All
the employees are performed all works assigned to
them more than 12 hours without any safety, health,
statutory leave or welfare and also the employees are
getting very low salary, due to escalating the price of
living cost/living index, the financial position and
buying capacity of the employees comes down toward.
Hence, the employees were demanded wage increase/
revision from the respondent management but, they are
not ready to increase the wages. Therefore, all the
employees are formed one trade union in the year of
2014 namely, Adhisakthi Project Workers Limited,
Workers Union wherein the petitioner is a Joint
Secretary and the same was duly registered before the
Government of Puducherry vide Registration No. 1764/
RTU/2014 for their collective bargaining. All the
employees of the respondent management are joined as
a member of the said Trade Union. Therefore, the said
union is only one and majority union and therefore, the
respondent management is heated as against the Office
Bearers of the Trade Union as well as its active
members. The respondent management has started all
sorts of unfair Labour Practice against the trade union
to deprive the workmen from their legitimate right
created under the Labour Laws and also to abolish/wipe
out the petitioner's Trade Union from respondent's
concern, as a result, the respondent management has
committed and adopted the unfair labour practices
against the Office Bearers as well as active members of
the said Trade Union. The respondent management has
1337
16 October 2018]
LA GAZETTE DE L’ETAT
finally after a lapse of 7 days accusing the petitioner
that on 29-10-2014 without obeying the instructions of
Mr. Balamurugan, Tool Room Incharge, induced
co-workers to walk out from the company without getting
any prior permission for the same, used abusive/filthy
languages, attempting to assault and followed
malpractice of causing violence and based on the said false
complaint issued a show cause notice, dated 05-11-2014.
The petitioner had replied aptly for the said show-cause
notice to the respondent. Whereas, the respondent
management did not act further, after receipt of the said
reply of the petitioner. On 13-11-2014 the petitioner
and other co-workers demanded the respondent to
provide safety materials like hand cloves and glass.
Whereas, the respondent willfully and wantonly delayed
without providing any such safety materials to the
employees and the Personnel Managers Mr. Sasikumar
and Saravanan asked them in a threatening manner
whether the petitioner and his co-workers did engage
in strike after a long time waiting by the petitioner.
There was a notification was pasted on the notice board
after some hours that the petitioner and other co-workers
called for a strike for which there would a deduction of
8 days salary per day. Hence, the workers were on duty
on that day gave a denial letter to the respondent
management. But, the respondent did not accept it. So,
they sent it to the respondent through courier. The
respondent management on the next day did not allocate
any job to the petitioner and other co-workers for
attending their routine works. There was no fruitful
result yielded for the repeated demands made by the
petitioner for their duties in the respondent management
and they were ignored by the respondent and hence the
petitioner returned home without attending duty.
On 15-11-2014 the respondent management issued
suspension order to four employees namely, Senthilkumar,
Karunagaran, Munikumar and this petitioner Manimaran
and they have sent out of the company stating that there
would be an enquiry on the charges leveled against them.
After giving show-cause notice to the employees of
about 40 people, the respondent suspended only these
four employees for their collective demand of safety
materials. The respondent management openly threaten
the members of the petitioner union and offered a
suggestion to come out the said trade union or otherwise
the employees of the union will lose more and more
and the respondent management forcefully get the
signatures from the employees and these four suspended
employees were exposed as the models of punishment.
The respondent management appointed an Enquiry
Officer, who the Counsel is appearing on behalf of this
management before the Labour Court at Puducherry and
she formally enquired to fulfill the statutory norms
which is enumerated in the labour laws. The Enquiry
Officer conducted the enquiry in their senior advocate
office who is the Counsel for respondent management
and acted upon the tunes of the respondent management
in a biased manner and as per the instructions and
pre-plan of the respondent management the Enquiry
Officer submitted her report without giving sufficient
opportunities to the petitioner and co-employees and
without following the principal of natural justice.
Based on the abovesaid false report given by the
Enquiry Officer the responden management dismissed the
employees on 08-01-2016 as per their pre-plan.
The
employees
were
made
scapegoats
and
the
respondent management forced and threatened the other
employees by showing such dismissal order of these
employees, further, the domestic enquiry conducted
against the petitioner was in violation of principles of
natural justice and the enquiry was not conducted in a
free and fair manner, giving full opportunity to the
petitioner to contest the charges on merits and all the
essential requisites of a fair trial were scrupulously not
followed and the Enquiry Officer did not consider the
deposition of the petitioner side witness in the enquiry
proceedings. Therefore, the dismissal order passed
against the petitioner is illegal and it is shockingly
disproportionate. The order passed by the respondent
management is against the natural justice and contrary
to the code of the Labour Laws. The respondent
management has not followed any rules or provisions
under the Labour Rules and Act and acted against them
in order to wreck vengeance against the petitioner and
his union. The petitioner therefore, prayed this Court to
pass an order to direct the respondent management to
re-instate the petitioner with full back wages, continuity
of service and all other attendance benefits.
3. The brief averments in the counter filed by the
respondent are as follows :
The respondent denied all the averments made by
the petitioner in his claim statement except those that
are all specifically admitted in the counter.
The petitioner has filed his claim statement with false
allegations against the respondent. The petitioner was
a workman in the respondent factory and while he
was on duty on 29-10-2014 the security guard asked
him to give the gate pass while he was going out
around 08.30 a.m., for morning breakfast for which
the petitioner along with his co-workers one
Mr. Munikumar, started quarrelling with the security
guard Mr. Dharani and threatened him using filthy
language. Subsequently, on the same day around 1.00 p.m.,
1338
LA GAZETTE DE L’ETAT
[16 October 2018
when the security guard was standing in his place,
the petitioner alongwith his co-workmen namely,
Mr. Karunakaran, and Mr. Sendhilkumar locked the
main gate inside, of his own accord and continued
their battle against the security guard. When the situation
became tense and uncontrollable Mr. R.V. Balamurugan,
Tool Room Engineer came to the spot with an
intention of pacifying the situation. However, he was
also reprimanded by the petitioner using abusive
languages. The petitioner also did not allow other
workmen to go for lunch break. The petitioner was
issued a show cause notice on 05-11-2014 for his
above said acts and since, the petitioner refused to
take the notice the same was sent to him through
registered post and a copy of it was pasted in the notice
board but, it was ripped off by one Mr.V. Munikumar
by the inducement of the petitioner. Subsequently, on
13-11-2014, the petitioner along with his co-workers
Mr. Manikandan, Mr. Sendhilkumar and Mr. Thirumaran
squabbled with Mr. Sasikumar regarding the issuance
of hand gloves to everyone. Again the petitioner did
not take up the duties allocated to him and around
10.00 a.m., on the same day convened a meeting
at the shop floor and instigated the other workers to
stop work. He indulged in an act of preventing the
other workmen from doing their lawful duties and
forcefully prevented 13 workmen who were working
with gloves and the production was stopped by the
petitioner from 13-11-2014 to 15-11-2014. The petitioner
along with his co-workers Mr. Mugunthan and
Mr. Latchuminarayanan prevented a customer from
Parry Agro Company who came to take up trial of
the machine on 15-11-2014 and also prevented one
Mr.Arun who came to give trial connection to the
same machine for which the petitioner was suspended
pending enquiry and against which the petitioner
provoked his co-workmen to instigate violence inside
the factory. Therefore, the respondent was constrained
to seek the intervention of the local Police to control
the adverse situation and only upon intervention by
the Police the petitioner was removed from the spot
and situation was brought under control. In fact the
petitioner indulged in such unlawful acts of enticing
and misleading the worker Mr. Abinanthan to take up
the company orders with a view to misappropriate
the respondent's projects. A written intimation
regarding this was given to the respondent by
Mr. Abinanathan, after that the petitioner has given a
pardon letter to the respondent for his mischievous
behaviour. On 15-12-2014 when the petitioner came
to the factory to collect his subsistence allowance,
threatened the managerial staffs Mr.T.Vinayagam and
Mr.V. Ravindran. This was communicated to the
Labour Department and Conciliation Officer.
Therefore, the petitioner is a continuous offender and
every acts committed by him is unlawful acts and not
in the order of a workman. Only in such a situation
disciplinary action was contemplated against the
petitioner. The petitioner was issued a show cause
notice, dated 05-11-2014 for which the petitioner
submitted his explanation on 07-11-2014. Since,
the explanation given by the petitioner was not
satisfied, he was issued a charge-sheet, dated 26-12-2014
and an independent Enquiry Officer was appointed.
The Enquiry Officer conducted her enquiry by giving
due opportunities to the petitioner and submitted her
report, dated 02-11-2015. Since, the charges leveled
against the petitioner were stated to have been proved
by the Enquiry Officer in her enquiry report, dated
02-11-2015, a second show-cause notice, dated
24-11-2015 was issued communicating the proposed
punishment. The petitioner gave his explanation,
dated 02-12-2015. The petitioner did not come
forward neither to accept the charges nor to prove
himself innocent and submitted only an evasive reply
and imputed various allegations against this
respondent and the enquiry proceedings without any
documentary evidence in support of his allegations.
Since, the misconducts committed by the petitioner
were serious and grievous in nature, his services were
terminated. Therefore, the contention of the petitioner
are fictitious and an afterthought and trying to mislead
this Court by giving fabricated and false allegations
against this respondent. The petitioner has suppressed
every fact with ulterior motive of gaining sympathy
and he has not come to this Court with clean hands.
The respondent was paying-reasonable salary to
the industrial standard of its kind. The industry is not
a processing industry and it is only producing
packaging machines by buying various spare parts
from other industries and assembling the same. There
are no hazardous operations as contended by the
petitioner and wherever safety materials are required
to be provided, the same is provided within the
parameter of Factories Act, 1948 and rules made there
under. The petitioner was having any grievance,
should have approached the
r e s p o n d e n t
management and negotiated the issue. If, there
were any contraventions, the petitioner was having
openings to approach the Government Authorities
seeking relief in the event any failure in negotiations.
The petitioner has unnecessarily not only intervened
in the managerial decisions and also refused to work,
prevented the other workmen from doing their lawful
dutlities, instigated violence in the factory etc.,
1339
16 October 2018]
LA GAZETTE DE L’ETAT
Whatever, may be the grievances, the petitioner was
having every right to seek a legal remedy through an
appropriate forum and he was not supposed to take
the law in his own hand with an ulterior, motive of
disturbing the industrial peace and harmony inside
the premises of the shop floor. The petitioner used
filthy languages against the management and the
managerial staffs, which is not permissible at any
point of time. The petitioner instead of proving
himself that he has not involved in such unlawful acts,
now taking the blanket to cover up his acts in the guise
of union activities and trying to gain sympathy of this
Court. The petitioner's contention that the enquiry was
conducted by a junior of the senior Advocate, who is
appearing in this case, is a strategy to escape from
the charges leveled against him. The enquiry was
conducted by giving due opportunities under the
principles of natural justice and the findings were
submitted based on the various oral and documentary
evidences. The petitioner was also given good
opportunities to examine and cross examine the
witnesses and permitted to produce the documents.
The petitioner who did not object the proceedings all
along, now objecting is only an after thought tutored
by the learned counsel. The petitioner is to prove as
to how the enquiry is biased and in the absence of
proving unfairness of the enquiry proceedings,
making out such allegation is
absolutely not
maintainable. Even, there are cases, decided by the Apex
Court that the enquiry- conducted by the legal advisor
of the company is permissible, unless there were no bias
is established. In this case also the same analogy is
applicable and the contention of the petitioner is not
maintainable. The respondent does not have any
intention to deny the legal rights of the petitioner and
the enquiry was conducted within the parameter of Law.
In case the petitioner was having any issues, he should
have settled the issue within frame work of law and he
did not have any legal rights directly or indirectly to
take the Law in his hand. The action initiated against
the petitioner is only for the grievous misconducts
committed by him while he was on duty-and there were
no mala fide intentions as contended by the petitioner
in his claim petition. The punishment imputed against
the petitioner is in proportion to the misconducts
committed by him. The petitioner is in gainful
employment. The petitioner is not entitled for any
reinstatement back wages or any other pecuniary
benefits what so ever. The respondent therefore prayed
to dismiss the petition as devoid of merits.
4. In the course of enquiry on the side of the petitioner
PW.1 was 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.R20 were marked. Both sides are heard.
5. The point for consideration is:
Whether the petitioner is entitled for the order of
reinstatement with full back wages, continuity of service
and all other attendance benefits as claimed in the
claim petition against the respondent management or
not.
6. The point for consideration is:
The submission of both the parties, the evidence let
in by either sides and the exhibits marked on both sides
are carefully considered. This application has been filed
by the petitioner for the relief of reinstatement with full
back wages, continuity of service and all other
attendance benefits. In order to prove his case the
petitioner was examined himself as PW.1 and it is the
evidence of the PW.1 that he was working at the
respondent establishment from April 2008 and he is the
Office Bearer of the Trade Union and he was appointed
as Fitter after due course of selection process and he
had been serving at the respondent management and he
has not committed any misconduct or misbehavior and
all the employees were working 12 hours per day without
any safety, health, statutory leave or welfare and their
salary was also very low and therefore, the employees
of the respondent establishment have demanded wage
revision but, the same was refused by the management
and that therefore, in the year of 2014 trade union was
formed and registered and hence, the respondent
management was heated as against the Office Bearers of
the Trade Union and started all sorts of unfair labour
practice against the members and office bearers of the
Trade Union and the respondent management has
committed and adopted the unfair labour practices
against the Office Bearers and the active members of
the trade union and the respondent management on
29-10-2014 accusing the petitioner that without
obeying the instruction of Mr. Balamurugan. Tool Room
Incharge, induced co-workers to walk out from the
company without getting any prior permission and used
abusive, filthy languages and attempting to assault
and based on the said false complaint, a show-cause
notice was issued on 05-11-2014 for which the
petitioner has replied and the respondent management
did not act further, after receipt of the said reply and
on 13-11-2014 the petitioner and other co-workers
demanded the respondent management to provide
safety materials to the employees and the management
has pasted a notice stating that the petitioner and other
co-workers called for a strike for which there would
be a deduction of 8 days salary per day and hence, the
workers were on duty on that day gave a denial letter
to the respondent management and the respondent
1340
LA GAZETTE DE L’ETAT
[16 October 2018
management did not allocate any job to the petitioner
and
other
co-workers
and
on
15-11-2014
the
respondent management issued suspension order to four
employees including the petitioner and the petitioner
was sent out of the company to face the enquiry and the
respondent management openly threaten him and offered
a suggestion to come out the said Trade Union and
forcefully get the signatures from the employees and
this petitioner and three other suspended employees
were exposed as the models of punishment and an
Advocate who is junior advocate to the Counsel
appearing on behalf of this management was appointed
as Enquiry Officer by the management to conduct the
enquiry and the enquiry was conducted by the Enquiry
Officer in her senior advocate office who is the Counsel
for respondent management and acted upon the tunes
of the respondent management in a biased manner
and as per the instructions and pre plan of the respondent
management" the Enquiry Officer submitted her report
without giving sufficient opportunities to the petitioner
and co-employees and without following the principal
of natural justice and based on the false report given by
the Enquiry Officer the respondent management
dismissed the petitioner from service on 08-01-2016
and therefore, the dismissal order passed against the
petitioner is illegal and disproportionate and is against
the natural justice.
7. In support of his oral evidence the petitioner has
exhibited Ex.P1 to Ex.P11. Ex.P1 is the copy of the Trade
Union Certificate. Ex.P2 is the copy of the petitioner
dismissed letter issued by the management. Ex.P3 is the
copy of reply notice to the management given by workers.
Ex.P4 is the copy of notice to the Labour Department.
Ex.P5 is the original conciliation letter. Ex.P6 is the copy
of the dispute raised by the petitioner union before the
Labour Officer (Conciliation). Ex.P7 is the copy of letter
sent by the workers to the respondent management through
professional courier. Ex.P8 is the copy of letter submitted
by the petitioner's union before the Labour Commissioner.
Ex.P9 is the copy of letter submitted by the petitioner's
union before the Labour Officer (Conciliation). Ex.P10 is
the copy of call letter sent by the Labour Officer for
conciliation. Ex.P11 is the copy of strike notice given by
the petitioner's union. These documents would go to show
that there is a Trade Union in the respondent establishment
and service of the petitioner was terminated by the
respondent management and industrial dispute has been
raised by the petitioner before the Conciliation Officer and
the union also has submitted a letter to the Labour
Commissioner and conciliation notice was issued by the
Conciliation Officer and Conciliation Officer has sent
a letter to the parties to conduct the conciliation and strike
notice was given on 27-11-2014 by the union.
8. On the other hand to disprove the case of the petitioner
the respondent management has examined RW.1 and RW.1
has deposed that the petitioner was working at the
respondent establishment and while he was on duty
on 29-10-2014 the security guard asked him to give the
gate pass while he was going out for morning breakfast for
which the petitioner along with his co-worker Munikumar
started quarrelling and threatened the security guard using
filthy language and subsequently on the same day around
01.00 p.m., the petitioner along with his co-workman
Karunakaran and Senthilkumar continued their quarrel
against the security guard and hence, Tool Room Engineer
Balamurugan came to the spot with an intension of
pacifying the situation and he was also reprimanded by
the petitioner using abusive languages and not allow other
workmen to go for lunch break and that therefore, show-
cause notice was issued on 05-11-2014 to the petitioner
for his abovesaid act and on 13-11-2014 the petitioner did
not take up the duties allocated to him and around
10.00 a.m. on the same day convened a meeting at the
shop floor and instigated the other workers to stop work
and indulged in an act of preventing the other workmen
from doing their lawful duties and forcefully prevented
13 workmen who were working with gloves and the
production was stopped by the petitioner from 13-11-2014
to 15-11-2014 and the petitioner again on 15-11-2014
prevented a customer from Parry Agro Company who came
to the factory to take up trial of the machine and also
prevented one Mr. Arun who came to give trial
connection to the same machine for which the petitioner
was suspended pending enquiry and the petitioner provoked
his co-workmen to instigate violence inside the factory and
therefore, the respondent was constrained to seek the
intervention of the local Police to control the adverse
situation and the petitioner was removed from the spot and
situation was brought under control and on 15-12-2014
when the petitioner came to the factory to collect his
subsistence allowance threatened the managerial staffs
T.Vinayagam and V. Ravindran for which he was issued
warning letter and that the petitioner is a continuous
offender and every act committed by him is unlawful acts
and not in the order of a workman and therefore,
disciplinary action was taken against the petitioner and
show-cause notice was issued on 05-11-2014 for which
the petitioner submitted his explanation on 07-11-2014 and
an independent Enquiry Officer was appointed and the
Enquiry Officer conducted the enquiry by giving due
opportunities under the principles of natural justice to the
petitioner and submitted a report on 02-11-2015 and
thereafter, a second show-cause notice was issued to the
petitioner along with the documentary evidences
on 24-11-2015 calling upon him regarding proposed
1341
16 October 2018]
LA GAZETTE DE L’ETAT
punishment and the petitioner gave his explanation
on 02-12-2015 and since, the misconducts committed by
the petitioner were serious and grievous in nature his
services were terminated by the management by issuing
full and final settlement through registered post and
the petitioner has refused to work prevented the other
workmen from doing their lawful duties and instigated
violence in the factory with an aim of disturbing the
industrial peace and harmony inside the premises of the
factory and the respondent does not have any intention to
deny the legal rights of the petitioner.
9. In support of their contention the respondent
management has exhibited Ex.R1 to Ex.R20. Ex.R1 is the
copy of complaint letter given by production Manager
Mr. S. Sasikumar, Ex.R2 is the copy of complaint letter
given by Tool Room Engineer Mr. R. V. Balamurugan.
Ex.R3 is the copy of complaint letter given by Security
Guard Mr. S.Tharani. Ex.R4 is the copy of show-cause
notice issued to the petitioner. Ex.R5 is the copy of reply
letter given by the petitioner to the show-cause notice.
Ex.R6 is the copy of complaint letter given by Production
Manager Mr. S. Sasikumar. Ex.R7 is the copy of
notice displayed by the respondent in the notice board
of the Factory. Ex.R8 is the copy of complaint letter given
by Asst.Manager Mr.T. Vinayagam. Ex.R9 is the copy of
suspension order issued to the petitioner. Ex.R10 is the
copy of letters given to the Police Department by the
respondent. Ex.R11 is the copy of charge sheet issued to
the petitioner. Ex.R12 is the copy of the warning letter
issued to the petitioner. Ex.R13 is the copy of complaint
letter given by Production Manager Mr. S. Sasikumar.
Ex.R14 is the copy of the letter from Pepsico India
Holdings Pvt., Ltd., to the respondent. Ex.R15 is the copy
of domestic enquiry proceedings. Ex.R16 is the copy of
domestic enquiry report. Ex.R17 is the copy of second
show cause issued to the petitioner. Ex.R18 is the copy of
reply letter given by the petitioner. Ex.R19 is the copy of
termination order issued to the petitioner. Ex.R20 is the
copy of full and final settlement sent to the petitioner by
RPAD.
10. The documents exhibited by the respondent
management would go to show that the petitioner was given
show-cause notice on 05-11-2014 for the alleged incident
taken place on 29-10-2014 and the petitioner has given
reply on 07-11-2014 and the petitioner was suspended on
15-11-2014 and thereafter, the charges were framed against
the petitioner on 26-12-2014 and Enquiry Officer was
appointed to conduct the domestic enquiry and enquiry
report was submitted by the Enquiry Officer and second
show-cause notice was issued to the petitioner
on 24-11-2015 for which the petitioner has given his reply
and thereafter, the petitioner was terminated from service
on 07-01-2016 by the respondent management and full and
final settlement was sent to the petitioner through RPAD.
11. From the pleadings of both the parties and evidence
let in by either side it can be inferred that following facts
are admitted by either side that the petitioner was working
at the respondent establishment and he is an Office Bearer
of the Trade Union which was newly formed by the workers
of the respondent establishment in the year 2014 and the
said union has raised some industrial dispute before the
Labour Officer (Conciliation) and this petitioner was
charge sheeted and enquiry was conducted against him and
show cause notice was given to him and lastly the petitioner
was terminated from service and he has raised the industrial
dispute before the Labour Officer (Conciliation) for
reinstatement with back wages and while the same was
pending before, the Conciliation Officer this petitioner has
filed this application before, this Court for seeking an order
of reinstatement with fullback wages, continuity of service
and all other attendance benefits.
12. It is the main contention of the respondent
management that on 29-10-2014 the Security Guard asked
him to give the gate pass to go out for morning breakfast
and this petitioner along with his co-worker started
quarrelling with the security guard and threatened him
using filthy language and subsequently on the same day
around 1.00 p.m. this petitioner along with his
co-workers'Karunakaran and Sendhilkumar have continued
their quarrel against the security guard which was
questioned by Tool Room Engineer Mr. R.V. Balamurugan
and he was also reprimanded by the petitioner using abusive
languages and the petitioner also did not allow other
workmen to go for lunch break and hence, the petitioner
was issued a show cause notice on 05-11-2014 and
thereafter, the petitioner did not take up the duties allocated
to him. and around 10.00 a.m. on the same day he convened
a meeting at the shop floor and instigated the other workers
to stop work and thereafter, the Enquiry Officer was
appointed and enquiry was conducted and Enquiry Officer
has submitted a report found guilty of the charges and on
the foot of the same on 07-01-2016 the petitioner was
terminated from service.
13. On the other hand the petitioner has contended that
the charges leveled against him by the management are
false and only to victimize the Office Bearers of the union
the petitioner and three other workmen have been charge-
sheeted wantonly and an advocate who is the junior of the
Counsel of the respondent management was appointed as
Enquiry Officer and the Enquiry Officer conducted the
enquiry without following the principles of natural justice
and submitted the report in favour of the management and
that the enquiry conducted by the Enquiry Officer is a
biased one and is not in accordance with the principles of
natural justice and the enquiry was conducted without
1342
LA GAZETTE DE L’ETAT
[16 October 2018
giving sufficient opportunities to the petitioner to putforth
his case. Therefore, it is to be decided by this Court that
whether, the enquiry was conducted by the Enquiry Officer
in a fair manner in accordance with the principles of natural
justice or not and whether the punishment given to the
petitioner by the management is proportionate or not.
On this aspect the evidence and documents are carefully
perused.
14. The onus of proof is always cast upon the
respondent management to prove the fact that the domestic
enquiry
was
conducted
properly
and
sufficient
opportunities were given to the petitioner in accordance
with the principles of natural justice before, submitting
the enquiry report. The petitioner has denied that he has
been given sufficient opportunity and it is contended by
the petitioner that the enquiry was conducted without giving
sufficient opportunities by the Enquiry Officer and without
following the principles of natural justice and that therefore,
it is to be seen whether, the respondent management has
proved the fact that the domestic enquiry was conducted
in a fair manner in accordance with the principles of natural
justice or not.
15. The respondent management exhibited the enquiry
proceedings as Ex.R15 which would reveal the fact that
one Ms. R. Thilagavathi, Advocate has conducted the domestic
enquiry on 22-01-2015 against the petitioner over the
charge-sheet given by the management on 26-12-2014 and
in the domestic enquiry the petitioner has denied the
allegations of the management and the petitioner has been
given an opportunity to appoint somebody to assist his case
and on the same day the co-worker one Senthilkumar was
permitted to assist the petitioner to face the domestic
enquiry for which the management has objected and hence,
the domestic enquiry was postponed and further it is learnt
from Ex.R15 that the enquiry was conducted in several
adjournments and in the enquiry on behalf of the
management one Balamurugan, Vinayagam. Sasikumar,
Saravanan and Rajasekar were examined as management
witnesses and all the witnesses have been cross examined
by the petitioner and all the witnesses have stated before,
the Enquiry Officer that this petitioner along with some other
workers have demanded safety materials like hand cloves
and glass from the management and this petitioner and
other workers have involved in the incident alleged to be
happened on 29-10-2014 and this petitioner along with
some other workers have been suspended from service on
15-11-2014 and thereafter, only the enquiry was conducted
by the management.
16. Further, it is learnt from the records that the enquiry
proceedings was completed on 12-05-2015 and the enquiry
report was submitted only on 02-11-2015 and in the
enquiry report it was decided by the Enquiry Officer that
without giving any strike notice the employees have
illegally involved in the strike to demand the safety
materials which is not required to be given to all the
workers and should be given only to the particular nature
of work and the Enquiry Officer has found that the charges
have been proved against the petitioner and thereafter, the
second show cause notice was issued on 24-11-2015 to
the petitioner calling upon him to show-cause why he
should not be removed from service and on 02-12-2015
the petitioner has submitted his explanation for the said
notice denying the entire allegations of the management
and also has stated that he has been suspended from service
and thereby he has been affected and thereafter, on 07-01-2016
the management has passed an order terminating the
petitioner from service.
17. Further, it is learnt from Ex.P6 that the union in
the which the petitioner was functioning as Office Bearer
has raised the industrial dispute over the charter of demand
demanding safety materials like hand cloves and glass
before the Labour Officer (Conciliation) on 13-10-2014
in which they have also asked for ESI and EPF benefits
for 32 workers and on the foot of the same the Conciliation
Officer has issued notice of conciliation to the management
of the respondent establishment on 24-11-2014 stating that
the conciliation proceedings would be held on 27-11-2014
at 11.00 a.m., at their Office and directed the management
to appear for the conciliation proceedings. These facts
would go to show that the notice of conciliation enquiry
was issued by the Labour Officer (Conciliation) to the
management and while the facts are so. the management
has framed charges against the petitioner holding that he
has committed misconduct and misbehavior on 29-10-2014
i.e., while the dispute was raised and pending before the
Labour Officer (Conciliation) regarding the charter of
demand the petitioner along with three other workers were
suspended by the management on 15-11-2014. The respondent
management has taken the disciplinary proceedings against
the petitioner the Office Bearer of the union and three other
workers who are the executive and active participants of
the Trade Union while the industrial dispute was raised by
the union on 13-10-2014 itself under Ex.P6 and without
getting permission from the Conciliation Officer the
management has conducted and completed the domestic
enquiry and has passed an order of termination of service
of the petitioner which is clearly in violation of
Sec.33 C(2) of the Act.
18. Further, it is contended by the petitioner that the
enquiry was not conducted properly since, the Junior of
the respondent Counsel who has been conducting the case
on behalf of the management was appointed as Enquiry
Officer knowing fully aware the fact that her senior is
appearing for the management case and therefore, there
1343
16 October 2018]
LA GAZETTE DE L’ETAT
would be some bias in giving the findings of the enquiry
report by the Enquiry Officer. On this aspect the evidence
of the respondent management witness RW.l was carefully
considered which runs as follows :
“
Tool Room Manager
Memo.
show cause notice
Notice.
Notice
show cause Notice
Charter of Demands
”.
From the above evidence it is clear that the respondent
management though has received the conciliation notice
not participated in the enquiry on 27-11-2014 before, the
Conciliation Officer for the dispute raised by the union
wherein the petitioner was functioned as Office Bearer over
the charter of demand and further, it is also admitted by
the respondent management witness RW.1 that the Enquiry
Officer is the junior Advocate of the Counsel of the
respondent management who has appearing in this case.
These facts would go to show that the enquiry could not
be conducted by the junior Advocate the Enquiry Officer
without any bias in favour of the respondent management
for whom her senior Counsel was appearing and therefore,
the domestic enquiry could not have been conducted in
a fair manner.
19. Further, it is learnt from Ex.R9 the suspension order
issued by the respondent management to the petitioner that
this petitioner and three other workers have been suspended
from service on 15-11-2014 for the alleged incident
happened on 29-10-2014 and further, it is revealed from
Ex.R9 that no subsistence allowance has been granted to
the petitioner to make convenient to the petitioner to face
the domestic enquiry. The non-payment of subsistence
allowance while the petitioner was facing disciplinary
domestic enquiry is also against the provisions of the
Industrial Disputes Act and against the principles of natural
justice.
20. Furthermore admittedly there is no previous charge
or complaint against this petitioner before the formation
of Trade Union though the petitioner has joined in the
respondent establishment in the year 2008 and hence, even
1344
LA GAZETTE DE L’ETAT
[16 October 2018
assuming that this petitioner and other three suspended
workers have committed misconduct or misbehavior
on 29-10-2014 and made an attempt to commit an illegal
strike without giving any notice while they have formed
Trade Union with the motive to get the charter of demand
the punishment of termination given by the management
is disproportionate to the alleged misconduct committed
by the petitioner workman the one of the Office Bearer of
the Trade Union instead of that the management might have
imposed lesser punishment to the petitioner and other
co-workers.
21. From the above discussion and the facts and
circumstances this Court finds that the respondent
management has committed error in appointing the junior
Advocate of the respondent Advocate who has appeared for
the respondent management in this case as domestic
Enquiry Officer and the above fact would create a doubt
over the enquiry report and in findings of the Enquiry
Officer being the junior counsel of the management
Counsel and also finds that only after the formation of the
Trade Union in the year 2014 by the workers of the
respondent establishment and after raising of industrial
dispute by the union on 13-10-2014 regarding charter of
demand for pay-revision and for ESI, EPF and safety
measures, the entire disciplinary proceedings, domestic
enquiry on the allegation that the petitioner has committed
alleged misbehavior on 29-10-2014 was complained and
charge-sheeted by the respondent management and same
also would establish that only to take vengeance the
respondent management has charge-sheeted the employees
to victimize them since they have formed Trade Union and
raised industrial dispute before the conciliation for charter
of demand.
22. Further, it is also found from the above facts and
circumstances that the order of termination passed by the
respondent management against the petitioner is
disproportionate to the misconduct alleged to have been
committed by him since, this petitioner and other three
suspended workers have not indulged or involved or
committed any other misconduct or misbehavior in
previous occasions though they have been in service from
2008 and 2009 respectively and the alleged incident has
also happened while they have been demanding some safety
measures. Further, this Court also finds that non-payment
of subsistence allowance to the petitioner while he was
facing the domestic enquiry is against the principles of
natural justice and that therefore, it is decided by this Court
that the domestic enquiry conducted by the respondent
management against the petitioner is not fair and not in
accordance with the principles of natural justice and hence,
it is to be held that the industrial dispute raised by the
petitioner against the respondent management over
reinstatement is justified and the petitioner is entitled for
the order of reinstatement as claimed by him.
23. Further, as far as back wages is concerned absolutely
there is no evidence let in by the petitioner to prove that
he is not working so far in any other industry. The respondent
has also not proved the fact that petitioner has been working
in any other establishment after his termination and no
proof is exhibited by the respondent management before
this Court that the petitioner is working anywhere else,
However, the petitioner could have served at any other
industry after his termination and therefore, considering
the above facts and circumstances, this Court decides that
the petitioner is entitled only for 25% back wages with
continuity of service and other attendant benefits.
24. In the result, the petition is allowed and the
industrial dispute raised by the petitioner against the
respondent management over non-employment is justified
and Award is passed directing the respondent management
to reinstate the petitioner in service within one month from
the date of this Award and further directing the respondent
management to pay 25% back wages to the petitioner from
the date of termination till the date of reinstatement with
continuity of service and other attendant benefits. No cost.
Dictated to the Stenographer, transcribed by her,
corrected and pronounced by me in the open Court on this
the 25th day of May, 2018.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
List of petitioner’s witness:
PW.1 — 29-08-2017 —Manimaran
List of petitioner’s exhibits:
Ex.1
—10-10-2014 —Copy of the Trade Union
certificate.
Ex.2
—07-01-2016 —Copy of the petitioner
dismissed letter issued
by the management.
Ex.3
—13-11-2014 —Copy of reply notice to
the management given by
workers.
Ex.4
—17-11-2014 —Copy of notice to the
Labour Department.
Ex.5
—05-05-2016 —Original Conciliation letter.
Ex.6
—13-10-2014 —Copy of the dispute raised
by the petitioner union
before the Labour Officer
Conciliation.
1345
16 October 2018]
LA GAZETTE DE L’ETAT
Ex.7
—13-11-2014 —Copy of letter sent by the
workers to the respondent
management
through
professional courier.
Ex.8
—18-11-2014 —Copy of letter submitted
by the petitioner's union
b e f o r e
t h e
L a b o u r
Commissioner.
Ex.9
—18-11-2014 —Copy of letter submitted
by the petitioner's union
before the Labour Officer
(Conciliation).
Ex.10 —24-11-2014 —Copy of call letter sent
by the Labour Officer
for Conciliation.
Ex.11 —27-11-2014— Copy of strike notice
given by the petitioner's
union.
List of respondent’s witness:
RW.1 —11-01-2018—
S.A. Saravanan
List of petitioner’s exhibits:
Ex.R1 —29-10-2014— Copy of complaint letter
given
by
production
Manager Mr. S. Sasikumar.
Ex.R2 —30-10-2014— Cop y
of
complaint
letter given by Tool
Room Engineer Mr. R.V.
Balamurugan.
Ex.R3 —30-10-2014— Copy of complaint letter
given by security guard
Mr. S. Tharani.
Ex.R4 —05-11-2014— Copy of show cause notice
issued to the petitioner.
Ex.R5 —07-11-2014— Copy of reply letter given
by the petitioner to the
show cause notice.
Ex.R6 —13-11-2014— Copy of complaint letter
given
by
Production
Manager Mr.S. Sasikumar.
Ex.R7 —13-11-2014— Copy of notice displayed
by the respondent in the
notice-board of the Factory.
Ex.R8 —15-11-2014— Copy of complaint letter
given by Assistant Manager
Mr.T. Vinayagam.
Ex.R9 —15-11-2014— Copy of suspension order
issued to the petitioner.
Ex.R10—16-11-2014 —Copy of letters given to
the Police Department by
the respondent.
Ex.R11—26-12-2014 —Copy of charge sheet
issued to the petitioner.
Ex.R12—26-12-2014 —Copy of warning letter
issued to the petitioner.
Ex.R13—25-11-2014 —Copy of complaint letter
given
by
Production
Manager Mr.S.Sasikumar.
Ex.R14—13-08-2014 —Copy of the letter from
Pepsico India Holdings
Pvt., Ltd., to the respondent.
Ex.R15— —
—Copy of domestic enquiry
proceedings.
Ex.R16—02-11-2015 —Copy of domestic enquiry
report.
Ex.R17—24-11-2015 —Copy of second show cause
issued to the petitioner.
Ex.R18—02-12-2016 —Copy of reply letter given
by the petitioner.
Ex.R19—07-01-2016 —Copy of termination order
issued to the petitioner.
Ex.R20—24-02-2016 —Copy of full and final
settlement sent to petitioner
by RPAD.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
————
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 100/AIL/Lab./T/2018,
Puducherry, dated 19th June 2018)
NOTIFICATION
Whereas, an Award in I.D. (L) No. 46/2015, dated
22-05-2018 of the Industrial Tribunal-cum-Labour
Court, Puducherry in respect of the Industrial Dispute
between the management of M/s. Mahatma Gandhi
Medical College and Research Institute, Puducherry
and Thiru A. Dhanasekar, Puducherry, over non-employment
has been received;
1346
LA GAZETTE DE L’ETAT
[16 October 2018
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.
Tuesday, the 22nd day of May 2018
I.D. (L). No. 46/2015
Thiru A. Dhanasekar,
No. 22, North Street,
Nonankuppam, Ariyankuppam,
Puducherry.
. . Petitioner
Versus
The Managing Director,
M/s. Mahatma Gandhi Medical College
and Research Institute,
Pondy-Cuddalore Road,
Pillayarkuppam,
Puducherry-605 402.
. . Respondent
This industrial dispute coming on 11.05.2018 before
me for final hearing in the presence of Thiruvalargal
R.T. Shankar, N. Babu and A.Ashok Kumar, Counsels
for the petitioner and Thiruvalargal L. Swaminathan
and I.Ilankumar, Counsels 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.83/AIL/Lab./J/2015,
dated 16-07-2015 for adjudicating the following:-
(i) Whether the dispute raised by Thiru A. Dhanasekar
against the management of M/s. Mahatma Gandhi
Medical College and Research Institute, Puducherry,
over 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 with respondent management
on 07-10-2002 as Attender under employee
code No. 402139 and rendered his service sincerely,
honestly and up to the satisfaction of the
management and performed all kinds of work as
directed by the management without any black mark
and performed till 16-10-2013. Even though
extracted all kinds of work for the past 10 years the
respondent not provided any promotions in his service.
Therefore, the petitioner personally approached the
HR Manager for his promotion but, the same was
ended in vein. Thereafter, the respondent management
sorted all kinds of unfair labour practice in order to
victimize the petitioner as a result the respondent
management changed his service condition to
perform duty as lift operator temporarily which is
not related with his service conditions as he joined
only as Attender. The petitioner has no experiences
and knowledge in respect of lift operator and he
obeyed the orders of the management to perform as
lift operator. Due to change of service condition he
often become sickness and suffered severe head
ache, vomiting sensations and therefore, he requested
the management to post him in his original post of
Attender But, the management not cared the request
and stated that they will take necessary action to post
permanent lift operator. When he tried to represent
through the trade union he was warned by the
respondent management that they will not consider
his request and by an act of victimization issued
false and fake charges on 15-10-2013 in order to
terminate him from service. The respondent management
refused the employment on and from 16-10-2013
and subsequently, he was punished by suspension
pending enquiry. The management by an act of
victimization and motivation refused employment by
way of issuing a false and fake charge without
following any mandatory provision which is
enumerated in Industrial Disputes Act. After the
charge sheet issued by the respondent management
nothing
has
happened
and
the
respondent
management not followed the statutory provisions as
per the Industrial Disputes Act, Hence, the act of the
respondent management is illegal, unlawful one
under the Industrial Disputes Act and violation of the
principal of natural justice. Therefore, the same is
comes under “otherwise termination of service” and
1347
16 October 2018]
LA GAZETTE DE L’ETAT
attracted section 2-A of Industrial Disputes Act, 1947.
Therefore, the petitioner prays this Court to pass an
order for directing the respondent management to
reinstate the petitioner with full back wages,
continuity service and all other attendance benefits.
3. The brief averments in the counter filed by the
respondent are as follows:
The industrial dispute filed by the claim petitioner
is per se not maintainable either on law or on facts
and liable to be dismissed. The various contentions
and allegations stated in the claim petition are
factually incorrect and the claim petitioner only to
achieve unlawful gains through suspension of
material facts had approached this Court with unclean
hands. Thiru A. Dhanasekar, Emp. No. 402139 was
appointed as Attender on 21-10-2002 in the
respondent Medical College and had to perform his
duties and responsibilities as instructed by his
superiors. Being a Medical College and Hospital, the
Attenders who are appointed in the respondent
Medical College are required to perform their duties
in various departments of the Medical College and
Hospital and Thiru A. Dhanasekar is not an exemption
to it. During the course of employment with the
Respondent Medical College Thiru A. Dhanasekar
was issued with several warnings and was even
suspended for commission of misconduct which
could be evident from the personal file. The Claim
petitioner was posted as Lift Operator in July 2008
and many emergency cases, needy patients, senior
citizens, transfer of patients in stretchers would all
require lift as a mode for commuting in the floors
of the respondent Medical College and duty is cast
upon the Lift Operators to be vigilant at all times and
is required to perform duties with utmost
concentration as the life of the needy patients are at
stake. Understanding the emergency of the lift to be
operated 24 * 7 throughout the year, the respondent
Medical College through its Personnel Manager had
issued a Memorandum, dated 30-07-2008 to all the
Lift Operators intimating about the emergencies that
is to be adhered while operating the lifts and made
it very clear not to leave the duty spot at any point
of time without prior permission from the superiors.
The
said Memorandum, dated 30-07-2008 was
acknowledged by the Claim petitioner who is fully
aware about the dire necessity of operating the Lift
in the respondent Medical College while on duty.
While on duty on 19-12-2008 Thiru.A.Dhanasekar
had left the duty spot at about 05.45 p.m. which was
noticed by the Dean of the respondent Medical
College and his superiors while on rounds and a
Suspension Order cum Charge Memorandum, dated
20-12-2008 was issued to the Claim petitioner
seeking explanation. The Claim petitioner had
submitted his written explanation on 25-12-2008
wherein, he had admitted of leaving the work spot for
consuming tea due to his headache and apologized
for the said incident and requested for reinstatement
into service with an assurance that he would not
commit such misconduct in future. For the above
said incident, an Enquiry Committee comprising of
Medical Superintendent and Deputy Superintendent
was constituted and the then Personnel Manager
through his Letter dated 26-12-2008 intimated the
Claim petitioner to appear for enquiry on
30-12-2008. The Enquiry Committee conducted an
Enquiry on 30-12-2008 and came out with a finding
that the claim petitioner accepted and admitted of
leaving the work spot at about 05.45 p.m. on
19-12-2008 for consuming tea owing to his headache
and pleaded leniency in punishment and assured not
to commit such misconduct in future. Though, the
Enquiry findings, dated 31-12-2008 had held the
claim petitioner guilty of charges, the then Personnel
Manager after perusing the findings had bestowed
mercy on the claim petitioner by revoking the Order
of Suspension, dated 20-12-2008 by clearly warning
that no such incident should recur in future. While
this being the factum of reality, the claim petitioner
during his night shift on 14-10-2013 had left the
work spot and was found sleeping in the
demonstration hall located in the D-Block of the
respondent Medical College. The claim petitioner
had also taken the Keys of the Lift with him and the
security of the respondent Medical College were
trapped inside the Lift at about 1.50 a.m. owing to
sudden failure of power supply and the Lift was
opened through the help of the Electrician after
breaking the lock of the Lift. The search conducted
by the Securities for tracing the Lift Operator/Claim
petitioner inside the respondent Medical College
ended in vain and the claim petitioner was found
sleeping in the Demonstration Hall which is located
far away from the place of lift which portrays the
casual and callous attitude of the Claim petitioner.
It is well known to the Claim petitioner that the
Respondent Medical College is functioning for
24 hours a day and the necessity of Lift is vital and
paramount and any lethargic attitude in operating the
lift would only lead to untold causalities which
cannot be explained in terms of words. The Claim
petitioner had submitted a written explanation, dated
1348
LA GAZETTE DE L’ETAT
[16 October 2018
15-10-2013 admitting about sleeping while on duty.
As the explanation was found not satisfactory, the
respondent Medical College issued an Order of
Suspension, dated 16-10-2013 in contemplation of
d iscip linary
p roceedings.
W hile
so,
o ne
Dr. Lakshmana Perumal, RMO was appointed as
Enquiry Officer to enquire about the incident of
sleeping while on duty and the Enquiry Officer had
conducted enquiry and submitted his report on
20-02-2014 holding that the claim petitioner is guilty
of charges. Meanwhile, the claim petitioner had
raised the issue of suspension from service as a
dispute before the Labour Officer (Conciliation),
Puducherry, through his representation, dated
10-02-2014 and the respondent Medical College had
submitted a reply on 03-03-2014 by clearly stating
that the dispute is pre-matured. A second Show-Cause
Notice, dated 23-03-2014 was issued to the claim
petitioner calling upon him to explain in writing as
to why he should not be terminated from service for
proven misconduct which was returned by the claim
petitioner on 29-03-2014 and the claim petitioner
had
neither
acknowledged
any
of
the
correspondences of the respondent Medical College
thereof nor came forward to with any plea for
revocation of suspension till date. The entire claim
of the claim petitioner is false and frivolous and
contrary to factual circumstances, prematured and
cannot be entertained even to slightest extent at this
juncture and the failure/commissions and omissions
on the part of the claim petitioner cannot be construed
that the claim petitioner has been terminated from
service and it is for the claim petitioner to establish
the said plea of termination. Therefore, the respondent
prays this Court to dismiss the claim petition.
4. In the course of enquiry on the side of the
petitioner PW.1 was examined and Ex.P1 to Ex.P12
were marked and on the side of the respondent no
witness was examined and no oral evidence has been
let in and Ex.R1 to Ex.R10 were marked in the cross
examination of PW.1. Both sides are heard.
5. The point for consideration is:
Whether the dispute raised by the petitioner
against the respondent management, over
non-employment is justified or not and if justified,
what is the relief entitled to the petitioner.
6. On the point:
The pleadings of the parties, the evidence let in
by the petitioner and the exhibits marked on both
sides are carefully considered. On the side of the
respondent management, written argument was filed
and the same was carefully considered. In order to
prove his case, the petitioner examined himself as
PW1 and he has stated in his evidence that he joined
at the respondent establishment on 07-10-2002 and
he had been in service till 16-10-2013 and originally
he was posted as Attender and subsequently, his
service condition was changed as Lift Operator
temporarily which is not related with his service
conditions as he joined only as Attender and he was
given charge memo on 15-10-2013 by the
management in order to terminate him from service
and on 16-10-2013, he was given suspension order
while the enquiry was pending and the management
by an act of victimization and motivation refused
employment by way of issuing a false and fake
charge without following any mandatory provision of
the Industrial Disputes Act and after the charge sheet
was issued by the respondent management nothing
has happened and the respondent management not
followed the statutory provisions as per the
Industrial Disputes Act and his employment was
refused and that therefore, he raised the conciliation
proceedings before the Conciliation Officer for his
reinstatement with full back wages, continuity of
service and all other attendance benefits.
7. In support of his oral evidence the petitioner has
exhibited Ex.P1 to Ex.P12. Ex.P1 is the copy of the
notice sent by the respondent management to the
petitioner. Ex.P2 is the copy of the reply letter sent
by the petitioner to the respondent management. Ex.P3
is the copy of the temporary suspended letter sent by
the respondent management to the petitioner. Ex.P4 is
the dispute raised by the petitioner before the Labour
Officer (Conciliation). Ex.P5 is the copy of the failure
report submitted by the Labour Officer (Conciliation),
Puducherry. Ex.P6 is the copy of the appointment
confirmation letter issued by the respondent to the
petitioner. Ex.P7 is the copy of the identity card issued
by the respondent to the petitioner. Ex.P8 is the copy
of the confirmation order issued by the respondent to
the petitioner. Ex.P9 is the copy of the request letter
submitted by the petitioner to the respondent. Ex.P10
is the copy of the request letter submitted by the
petitioner to the respondent. Ex.P11 is the copy of
cheque issued by the respondent to the petitioner.
Ex.P12 is the call letters sent by the Conciliation Officer
to the respondent.
8. On the other hand the respondent has not examined
any witness. However, the respondent management has
filed a counter stating that on 19-12-2008, the petitioner
while working as Lift Operator had left the duty spot at
1349
16 October 2018]
LA GAZETTE DE L’ETAT
about 05.45 p.m., for which he was given charge memo
on 20-12-2008 along with suspension order and after
his apology, the petitioner was reinstated into service
with the assurance that he would not commit such
mistake in future and thereafter, on 14-12-2013, the
petitioner during his night shift had left the work spot
and was found sleeping in the demonstration hall
located in the D-Block of the respondent Medical
College and had also taken the Keys of the Lift with
him and the Security of the respondent Medical College
were trapped inside the Lift at about 1.50 a.m. owing
to sudden failure of power supply and the Lift was
opened through the help of the Electrician after
breaking the lock of the Lift and the petitioner had
submitted a written explanation, dated 15-10-2013
admitting about sleeping while on duty and as the
explanation was found not satisfactory, the respondent
Medical College issued an Order of Suspension on
16-10-2013 and Enquiry Officer was appointed and
enquiry was conducted and report was submitted by the
Enquiry Officer on 20-02-2014 holding that the
petitioner is guilty of charges and while so the
petitioner has raised the industrial dispute before the
Labour Officer (Conciliation) on 10-.02-2014, over the
issue of suspension from service for which the
respondent Medical College had submitted a reply on
03-03-2014 stating that the dispute is pre-matured and
second Show-Cause notice was issued on 23-03-2014
to the petitioner calling upon him to explain in writing
as to why he should not be terminated from service for
proven misconduct and the said letter was returned by
the petitioner on 29-03-2014 and the entire claim of the
petitioner is false and frivolous and contrary to factual
circumstances, prematured and cannot be entertained
and as the claim petitioner has not been terminated
from service an industrial dispute raised by the
petitioner before the Labour Officer (Conciliation) is not
sustainable.
9. In support of their contention, the respondent
management has exhibited Ex.R1 to Ex.R10. Ex.R1 is
the copy of the charge sheet-cum-suspension order,
dated 20-12-2008. Ex.R2 is the copy of the reply of the
claim petitioner, dated 23-12-2008. Ex.R3 is the copy
of the enquiry proceedings of the claim petitioner.
Ex.R4 is the copy of severe warning letter issued to the
claim petitioner, dated 31-12-2008. Ex.R5 is the copy
of the charge sheet issued to the claim petitioner, dated
15-10-2013 Ex.R6 is the copy of the reply to the
charge sheet, dated 15-10-2013. Ex.R7 is the copy of
the suspension order issued to the claim petitioner,
dated 16-10-2013. Ex.R8 is the copy of the reply to the
suspension order, dated 16-10-2013. Ex.R9 is the copy
of the letter to the Labour Officer (Conciliation),
Puducherry by the claim petitioner. Ex.R10 is the copy
of failure of conciliation, over the industrial dispute
raised by the claim petitioner.
10. From the pleadings of the parties, the evidence
adduced by the petitioner and the exhibits marked on
either side, it can be noticed that the following facts are
admitted by both sides that this petitioner was
originally joined at the respondent establishment as
attender and subsequently, he was posted as Lift Operator
and he had been in service upto 2013 and the petitioner
has completed 11 years of service at the respondent
establishment and he was given suspension order on
16-10-2013 alleging that he has committed misconduct
of sleeping in the demonstration hall located in the
D-Block during night shift while he was working as Lift
Operator and as the petitioner was suspended from
service he was not given work and the petitioner also
has submitted his explanation admitting the fact that he
has slept at the demonstration hall due to sickness and
vomiting during night hours while he was doing the lift
operating work and the petitioner has approached the
Labour Officer (Conciliation) over the issue of
suspension from service and for reinstatement with back
wages stating that the misconduct committed by him is
due to sickness and vomiting during night shift while
he was operating lift and the conciliation was failed and
the matter has been referred to this Court for
adjudication.
11. It is the main contention of the respondent
management that the petitioner wantonly went away
from the lift while he was doing lift operating work in
the night shift and has slept in the demonstration hall
located in the D-Block wantonly and it is the further
contention of the respondent management that they
conducted domestic enquiry by appointing Enquiry
Officer against the petitioner for the misconduct of the
charge levelled against him that he wantonly went away
from the lift to the demonstration hall for sleeping and
in the enquiry, it was found by the Enquiry Officer that
the petitioner wantonly committed misconduct of
sleeping during duty hours since the petitioner himself
has admitted the misconduct of sleeping while on duty
in his written explanation. But, it is the case of the
petitioner that he has left away from the lift in the night
shift while he was doing lift operating work since he
was suffering from sickness and vomiting. On perusal
of records it is learnt to this Court that the petitioner
has stated that he felt sickness and suffering from
vomiting while on duty and hence, he left away from the
lift. Therefore, now, it is to be decided by this Court that
1350
LA GAZETTE DE L’ETAT
[16 October 2018
whether the domestic enquiry conducted by the
respondent management against the petitioner is fair in
accordance with the principles of natural justice or not
and whether the petitioner has left away from the lift
wantonly or due to cause of ill-health as stated by the
petitioner.
12. The respondent management though has
exhibited Ex.R1 to Ex.R10, has not filed any documents
to prove the fact that Enquiry Officer was appointed by
the management to conduct the enquiry against the
petitioner for the alleged charge of misconduct of
sleeping while on duty. The respondent management
has also not exhibited enquiry notice before this Court
to prove that the enquiry notice was given to the
petitioner by fixing the date for domestic enquiry.
Further, though, the respondent management has
exhibited the enquiry proceedings against the petitioner
by the respondent management relating to the year
2008, has not exhibited any enquiry proceedings or
enquiry report with regard to the alleged charge of
misconduct of sleeping committed by the petitioner on
14-12-2013 while he was operating lift at night shift
before this Court and further though, the respondent
management has filed enquiry proceedings and enquiry
report along with some documents, the said documents
has not been exhibited before this Court by the respondent
management to establish that the domestic enquiry was
conducted by the respondent management by appointing
Enquiry Officer and the Enquiry Officer has filed the
final report. The charge sheet issued against the
petitioner and the reply given by the petitioner for the
charge for the same day i.e., on 15-10-2013 is not all
sufficient to hold that there was domestic enquiry
conducted by the management in accordance with the
principles of natural justice.
13. Further on perusal of conciliation failure report
under Ex.R10 it is learnt to this Court that in the
conciliation proceedings the respondent management
has agreed to provide employment to the petitioner as
advised by the Conciliation Officer and insisted the
petitioner to submit apology letter. This fact would go
to show that the respondent management is ready to
provide reinstatement whenever the petitioner is giving
apology letter. As admittedly, the petitioner was working
for more than 11 years at the respondent establishment
he can be terminated only under due process of law by
conducting domestic enquiry as per the Industrial
Disputes Act and in accordance with the principles of
natural justice. The burden is on the respondent
management to prove the fact that there was a domestic
enquiry conducted by the management against the
petitioner and all the opportunities were given in
accordance with the principles of natural justice before
deciding guilt of the petitioner. But, the respondent
management has utterly failed to establish that there
was a domestic enquiry conducted against the petitioner
properly. Further, the management has not ascertained
the fact that whether the petitioner has actually
suffering from sickness and vomiting during the shift
hours while he was operating lift by examining
available witness or by conducting medical examination
of the petitioner on the said date. Without conducting
any steps for medical examination of the petitioner for
ascertaining the sickness of the petitioner, it cannot be
said that the petitioner has wantonly left away for
sleeping during night shift and that therefore, this Court
inferred that the domestic enquiry was not conducted
by the management by giving proper opportunities to
the petitioner.
14. Further, admittedly, in this case, the petitioner
workman has raised the industrial dispute on 10-02-2014
for reinstatement with back wages and while so it is
alleged by the respondent management that the
domestic enquiry was conducted only on 20-02-2014
and second show cause notice was issued calling upon
the petitioner’s explanation that why he should not be
terminated from service which facts would go to show
that while the dispute is pending before the Conciliation
Officer from 10-02-2014, the respondent management
has been conducting domestic enquiry and issued second
show cause notice without the permission of the
Conciliation Officer. Furthermore, it is the case of the
respondent management that the petitioner was so far
not terminated from service by the respondent
management and the claim is premature. But, admittedly,
the petitioner was suspended on 16-10-2013 and after
three or four months the petitioner has raised the
industrial dispute before the Conciliation Officer
on 10-02-2014 since he has not been provided employment
by revoking the suspension order and therefore, the
reason stated by the petitioner to raise the industrial
dispute over refusal of employment is absolutely correct
and the same was established by him through
documents exhibited on his side.
15. Further, from Ex.P11, it is established by the
petitioner that he was given cheque by the respondent
management on 08-07-2014 for ` 19,158 towards
subsistence allowance and the said allowance was given
only after completion of the enquiry and therefore, it is
established by the petitioner that the respondent
management has not followed the proper procedure to
conduct the domestic enquiry and it is also established
by the petitioner that his employment was refused by
the respondent management without any due cause and
without following the procedure.
1351
16 October 2018]
LA GAZETTE DE L’ETAT
16. Furthermore, even assuming that the petitioner
has committed misconduct in the year 2008 and also in
the year 2013 that he was sleeping during duty hours
while he was working as Lift Operator, the punishment
of suspension or refusal of employment or termination
of service is highly disproportionate to the alleged
misconduct of sleeping and that therefore, it is to be
held that the industrial dispute raised by the petitioner
against the respondent management over non-employment
is justified and the petitioner is entitled for the order
of reinstatement as claimed by him.
17. Further, as far as back wages is concerned, the
respondent management has not proved the fact that the
petitioner has been working in any other establishment
after his suspension and no proof is exhibited by the
respondent management before this Court to prove the
fact that the petitioner is working anywhere else.
Absolutely there is no evidence let in by the petitioner
to prove that he is not working so far in any other
industry. However, the petitioner could have served at
any other industry after his suspension for the past
about 4 years and therefore, considering the above facts
and circumstances, this Court decides that the petitioner
is entitled only for 25% back wages with continuity of
service and other attendant benefits.
18. In the result, the petition is allowed and the
industrial dispute raised by the petitioner against the
respondent management, over non-employment is
justified and Award is passed directing the respondent
management to reinstate the petitioner in service within
one month from the date of this Award and further
directing the respondent management to pay 25% back
wages to the petitioner from the date of suspension till
the date of reinstatement with continuity of service and
other attendant benefits. No cost.
Dictated to the stenographer, transcribed by her,
corrected and pronounced by me in the open Court on
this the 22nd day of May, 2018.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
————
List of petitioner’s witness:
PW.1
—27-06-2017 Dhanasekar
List of petitioner’s exhibits:
Ex.P1 — 15-10-2013 Copy of the notice sent by
the respondent management
to the petitioner.
Ex.P2 — 15-10-2013 Copy of the reply letter sent
by the petitioner to the
respondent management.
Ex.P3 — 16-10-2013 Copy of the temporary
suspended letter sent by the
respondent management to
the petitioner.
Ex.P4 — 10-02-2014 Dispute
raised
by
the
petitioner before the Labour
Officer (Conciliation).
Ex.P5 — 09-12-2014 Copy of the failure report
submitted by the Labour
Officer (Conciliatio n),
Puducherry.
Ex.P6 — 07-10-2002 Copy of the appointment
confirmation letter issued
by the respondent to the
petitioner.
Ex.P7 Nil
Copy of the identity card
issued by the respondent to
the petitioner.
Ex.P8 — 31-07-2008 Copy of the confirmation
order
issued
by
the
respondent to the petitioner.
Ex.P9 — 22-10-2013 Copy of the request letter
submitted by the petitioner
to the respondent.
Ex.P10—03-12-2013 Copy of the request letter
submitted by the petitioner
to the respondent.
Ex.P11—08-07-2014 Copy of cheque issued by
the
respondent
to
the
petitioner.
Ex.P12—18-03-2014 Call letters sent by the
Conciliation Officer to the
respondent.
List of respondent’s witnessess: Nil
List of respondent’s exhibits:
Ex.R1 — 20-12-2008 Copy of the charge sheet-
cum-suspension order.
Ex.R2 — 23-12-2008 Copy of the reply of the
claim petitioner.
Ex.R3 — 30-12-2008 Copy
of
the
enquiry
proceedings of the claim
petitioner.
Ex.R4 — 31-12-2008 Copy of severe warning
letter issued to the claim
petitioner.
1352
LA GAZETTE DE L’ETAT
[16 October 2018
Ex.R5 — 15-10-2013 Copy of the charge sheet
issued to the claim petitioner.
Ex.R6 — 15-10-2013 Copy of the reply to the charge
sheet, dated 15-10-2013.
Ex.R7 — 16-10-2013 Copy of the suspension order
issued to the claim petitioner.
Ex.R8 — 03-12-2013 Copy of the reply to the
suspension
order,
dated
16-10-2013.
Ex.R9 — 10-02-2014 Copy of the letter to the
Labour Officer (Conciliation),
Puducherry by the claim
petitioner.
Ex.R10—09-12-2014 Copy
of
failure
of
c o n c i l i a t i o n - o v e r t h e
industrial dispute raised by
the claim petitioner.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
GOVERNMENT OF PUDUCHERRY
LABOUR
DEPARTMENT
(G.O. Rt. No. 136/AIL/Lab./T/2018,
Puducherry, dated 17th September 2018)
NOTIFICATION
Whereas, the Government is of the opinion
that an industrial dispute has arisen between the
management of M/s. Mahatma Gandhi Medical College,
Puducherry and Mahathma Gandhi Medical College and
Indira Gandhi Dental College Congress Employees
Union, Puducherry, over charter of demands such as
to revise the basic pay for unskilled employees
as ` 9,000, semi-skilled as ` 10,000, skilled as ` 11,000
and high-skilled as ` 12,000; washing allowance at
` 300 per month; annual increment of 25%, to grant
promotion on completion of 10 years of service and
other allowances,
etc., 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 (d) of sub-section (1) of
section 10 of the Industrial Disputes Act, 1947 (Central
Act XIV of 1947), it is hereby directed by the Secretary
to Government (Labour) that the said dispute be
referred to the Industrial Tribunal, Puducherry for
adjudication. The Industrial Tribunal, Puducherry, shall
submit the Award within 3 months from the date of
issue of reference as stipulated under sub-section (2-A)
of section 10 of the Industrial Disputes Act, 1947 and
in accordance with rule 10-B of the Industrial Disputes
(Central) Rules, 1957. The party raising the dispute
shall file a statement of claim complete with relevant
documents, list of reliance and witnesses to the
Industrial Tribunal, Puducherry, within 15 days of the
receipt of the order of reference and also forward a
copy of such statement to each one of the opposite
parties involved in the dispute.
ANNEXURE
(a) Whether the dispute raised by Mahatma
Gandhi Medical College and Indira Gandhi Dental
College Congress Employees Union, Karikalampakkam
and Post, Puducherry against the
management of
M/s.
Mahatma
Gandhi
Medical
College,
Pillaiyarkuppam, Puducherry, over charter of
demands such as to revise the Basic Pay for
unskilled employees as ` 9,000, semi-skilled as
` 10,000, skilled as `. 11,000 and high-skilled
as ` 12,000; washing allowance at ` 300 per month;
annual increment of 25%, to grant promotion on
completion of 10 years of service and other
allowances, etc., is justified or not? If, justified,
what relief the union workmen are entitled to?
(e) To compute the relief if any, awarded in terms
of money if, it can be so computed?
(By order)
S. MOUTTOULINGAM,
Under Secretary to Government (Labour).
————
}|{