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La Gazette de L' État de Poudouchéry

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.. 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

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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 ]

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

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).

————

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