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2018 } | 23 {
No.
43
Poudouchéry
Mardi
23
Octobre
2018 (1 Kartika 1940)
No.
Puducherry
Tuesday
23rd
October
2018
1370
LA GAZETTE DE L’ETAT
[23 October 2018
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 101/AIL/Lab./T/2018,
Puducherry, dated 19th June 2018)
NOTIFICATION
Whereas, an Award in I.D. (L) No. 32/2015, dated
10-5-2018 of the Industrial Tribunal-cum-Labour
Court, Puducherry in respect of the Industrial Dispute
between the managemen of M/s. Shri Raamsurat
Kumar Enterprise, Puducherry and Tmt. K. Kasiammal
and 11 others, over charter of demands and refusal of
employment to 12 employees while pending of the
conciliantion proceedings has been received;
Now, therefore, in exercise of the powers conferred
by sub-section (1) of section 17 of the Industrial Disputes
Act, 1947 (Central Act XIV of 1947), read with the
Notification issued in Labour Department’s G.O. Ms.
No. 20/91/Lab./L, dated 23-5-1991, it is hereby directed
by the Secretary to Government (Labour) that the said Award
shall be published in the Official Gazette, Puducherry.
(By order)
S. MOUTTOULINGAM,
Deputy Labour Commissioner.
————
BEFORE THE INDUSTRIAL TRIBUNAL-CUM-
LABOUR COURT AT PUDUCHERRY
Present :Thiru G. THANENDRAN, B.COM., M.L.,
Presiding Officer.
Thursday, the 10th day of May, 2018
I.D. (L) No. 32/2015
1. K. Kasiammal
2. M. Saroja
3. V. Tamilselvi
4. M. Rani
5. R. Sumathi
6. S. Vijayalakshmi
7. P. Lakshmi
8. D. Suganthi
9. E. Valli
10. I. Savitha
11. K. Porkalai
12. K. Chamundeswari
. . Petitioners
Versus
The Managing Director,
M/s. Shri Raamsurat Kumar Enterprise,
No.139, Ramanathapuram Post,
Koodapakkam Road,
Pathukannu,
Puducherry-605 502.
. . Respondent
This industrial dispute coming on 23-02-2018
before me for final hearing in the presence of Tvl.
P.R. Thiruneelakandan and A. Mithun Chakkaravarthy
and R. Harinath, Advocates for the petitioner and
Tvl. L. Swaminathan and I. Ilankumar, Advocates for
the respondent, upon hearing, 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. 56/AIL/Lab./J/2015,
dated 18-06-2015 for adjudicating the following:-
(a) Whether the dispute raised by the workers
representatives namely, 1. K. Kasiammal, 2. M. Saroja,
3. V. Tamilselvi, 4. M. Rani, 5. R. Sumathi,
6. S. Vijayalakshmi, 7. P.Lakshmi, 8. D. Suganthi,
9. E. Valli, 10. I. Savitha, 11. K. Porkalai and
12. K. Chamundeswari against the management of
M/s. Shri Raamsurat Kumar Enterprise situated at
No.72, Pettaiyan Chatram, Puducherry, over charter
of demands and refusal of employment to 12
employees while pending of the conciliation
proceedings is justified? If justified what relief they
are entitled to?
(b) To compute the relief if any, awarded in terms
of money if, it can be so computed?
2. The averments in the claim statement of the
petitioner, in brief, are as follows:
The petitioners 1 to 12 are workers of the
respondent establishment. The 1st petitioner joined
at the respondent establishment on 08-06-2004.
The 2nd petitioner joined at the respondent
establishment on 12-08-2004. The 3rd petitioner
joined at the respondent establishment on 10-10-2005.
The 4th petitioner joined at the respondent establishment
on 02-02-2006. The 5th petitioner joined at the
respondent establishment on 22-04-2006. The 6th
petitioner joined at the respondent establishment on
20-04-2006. The 7th petitioner joined at the respondent
establishment on 06-11-2006. The 8th petitioner joined
at the respondent establishment on 24-05-2004.
The 9th petitioner joined at the respondent
establishment on 04-12-2004. The 10th petitioner
joined at the respondent establishment on 08-12-2009.
The 11th petitioner joined at the respondent establishment
on 20-11-2004. The 12th petitioner joined at the
respondent establishment on 20-11-2004. Their last
drawn wage is ` 5,580. Though, the petitioners
rendered more than 5 to 10 years of service in the
1371
23 October 2018]
LA GAZETTE DE L’ETAT
respondent establishment they were not issued any
written appointment order and the petitioners' rights
and benefits under the various labour laws were
denied. The petitioners were extracted over time
work but, they were not paid over time wages and
they were denied weekly holiday and Government
holiday and for the same they were not paid
compensatory wages, leave benefits. The respondent
management used not to give any salary slip to the
workers. The respondent management deducted ESI,
EPF contribution from the petitioners' wage. The
workers were not issued any receipt for deduction of
EPF contribution and also they were not given their
EPF particulars. The respondent factory at Sedarapet
unit more than 100 workers are employed in day to
day manufacturing activity as such it covered under
Chapter V-B of the I.D. Act. Till April, 2014 there
are 250 employees employed in the respondent
factory, in which about 180 workmen illegally
retrenched and they were not paid compensation and
several workers were transferred to other unit on
false promise to increase their wage and provide DA,
medical allowances and transfer allowances, etc.,.
The respondent management suspended the operation
of the Sedarapet unit without any permission from
the Government of Puducherry with effect from
28-07-2014. The workers were not given any closure
notice before closure of the unit at Sedarapet.
Therefore, the petitioners demanded the respondent
management to issue their letter of appointment and
furnish their EPF details and demanded over time
wage for their over time work. The respondent
management did not come forward to concede the
demand of the petitioners and decided to victimized
them by transferring them to its sister unit.
Accordingly, on 28-07-2014 all the petitioners were
transferred to respondent's sister concern situated at
Kudapakkam road, Pathukannu, Puducherry. The
workers were given assurance that after the
maintenance work in Sedarapet unit they will be
reverted back to continue their service in Sedarapet
unit. On the contrary, the workers were not reverted
back to Sedarapet unit. Hence, the petitioners
preferred a complaint to the Chief Inspector of Factories
and Labour Officer (Conciliation) on 24-11-2014.
On receipt of the complaint the Labour Officer
(Conciliation) initiated proceedings and issued a
conciliation notice on 12-12-2014 to both the
petitioners as well the respondent management.
The conciliation was held on 22-12-2014, 07-01-2015
and 13-05-2015. On receipt of the conciliation notice
the respondent management did not chose to
participate in the conciliation proceedings and
decided to victimize the petitioners. On 19-01-2015
when the petitioners reported to duty they were
denied employment and they were stopped in the
factory gate itself for which the petitioners have
made a complaint to the Labour Officer (Conciliation)
and also sent a letter, dated 27-01-2015 to the
respondent through registered post. Even after, the
said letter the respondent did not come forward to
provide employment to the petitioners. Hence, the
petitioners preferred a complaint to the Labour Officer
(Conciliation) regarding unfair labour practice and
denial of employment. The same was acknowledged by
the Labour Officer (Conciliation) on 27-01-2015.
On the very same date i.e., 27-01-2015 the petitioners
sent another letter through registered post to the
respondent requesting to provide employment with
back wages. The respondent did not pay any heed to
the petitioners request and denied them employment.
While pending the said dispute before the Labour
Officer (Conciliation) the respondent without prior
permission from the Conciliation Officer and in
contravention of section 33A of the Industrial
Disputes Act illegally denied employment to the
petitioners. The Labour Officer (Conciliation)
considering the dispute raised by the petitioners and
their illegal denial of employment, advised the
management to reinstate them in service with back
wages, continuity of services and the same was not
considered by the respondent management. Hence,
the conciliation was ended in failure and the
Conciliation Officer submitted his failure report on
06-05-2015 to the Government of Puducherry.
The denial of employment to the petitioners is
arbitrary, illegal and it is an act of victimization and
unfair labour practice under Schedule-V Part-1
Clause 5(a), (b), (d), (f) and 16 of the Industrial
Disputes Act. The denial of employment to the
petitioners without enquiry is illegal and violation of
Model Standing Orders and the denial of employment
in contravention of section 33-A of the ID Act is bad
in law and such a denial of employment is violation
of provision of section 33A of the Industrial
Disputes Act. Therefore, the denial of employment
to the petitioners' service from 19-01-2015 is
illegal and unfair labour practice and the petitioners
are entitled for reinstatement in their service with
full back wages and continuity of service and all
other attendant benefits. After the illegal denial of
employment the petitioners have not been gainfully
employed anywhere in any establishment.
1372
LA GAZETTE DE L’ETAT
[23 October 2018
3. The brief averments in the counter filed by the
respondent are as follows :
The claim petition is not maintainable either on
law or on facts. The averments and contentions set
out in the claim petition is untenable, unjust,
vexatious. The 12 petitioners were insisting that
they should be employed only at M/s. Shri
Raamsurathkumar Enterprises and not in the
premises located at Koodapakkam Road, Pathukannu,
Puducherry, which per se is illegal, not maintainable
and it would be a travesty of justice if, these kind of
industrial disputes are entertained by this Court as
the workers cannot decide their place of work. It is
not the case of denial of employment to the 12 claim
petitioners. It is the refusal on the part of the 12
claim petitioners in discharging their duties in the
premises located at Koodapakkam road, Pathukannu,
Puducherry. If, there is any illegal closure of factory
unit located at Puducherry it is for the Labour
Department, Government of Puducherry to conduct
any enquiry or proceed as deemed fit and proper in
accordance with law on the so-called illegal closure
and the workers employed in the said factory unit
cannot agitate or dictate terms on the duties and
responsibilities to be performed by the Labour
Department. The claim petitioners seek the relief of
reinstatement in services with back wages without
stating the fact as to when and how the 12 claim
petitioners were prevented from discharging their
duties from 28-07-2014 onwards in the transferred
place. It is mandatory for every Industrial unit to
abide by the statutory provisions of E.S.I and E.P.F
and the worker merely being a member of E.S.I./
E.P.F one cannot array to a conclusion that they are
on the permanent rolls of the said Industrial units
and can claim permanency in employment. To seek
any permanency in employment, the concerned
employer or worker should establish beyond
reasonable doubt about their continuity in service in
the industrial unit with relevant proof/documents and
cannot contend in a sardonic/casual manner that they
are the permanent workers of the said Industrial unit
and had been terminated without any cause. Thus, in
the instant claim petition, the 12 claim petitioners
had only chosen to state about their date of joining
and clever and silent in suppressing the fact that they
were in continuous employment as there are
documentary evidences that shows that the 12 Claim
Petitioners were not in continuity of service/not on
permanent rolls with the respondent management.
Only these 12 Claim Petitioners who are residing in
and around Sedarapet were particular and adamant
that they should be provided employment near their
place of residence and were rigid that they would not
work in the premises located at Koodapakkam Road,
Pathukannu, Puducherry and the respondent management
totally deny the fact in its entirety that the 12 claim
petitioners would again be accommodated in the
Sedarapet Unit. As long as the 12 claim petitioners
were in the Sedarapet unit, there was no complaint of
violation of the Industrial Disputes Act by the
respondent management and once the 12 claim
petitioners were asked to perform the duties in
Koodapakkam Road, Pathukannu, Puducherry, all the
allegations as mentioned in the claim petition have
suddenly cropped up against the respondent management
including denial of employment. The claim of
reinstatement in services would occur only if, there
is a termination of employment. The 12 claim
petitioners were not denied employment and their
grievance revolves upon the employer should give
them an opportunity of employment in Sedarapet
unit. In totality, the entire claim of the 12 claim
petitioners 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 petitioners cannot be construed that
the claim petitioners has been terminated horn
service and it is for the claim petitioner to establish
the said plea of termination. The 12 individual claim
petitioners if, at all they are aggrieved have to
individually agitate their cause as contemplated
under section 2-A of the Industrial Disputes Act
1947. Hence, the scope of entertaining a claim
petition by the 12 claim petitioners styled in a single
Industrial Dispute cannot be entertained more
particularly in the matter of Service of an Individual
Employee is not maintainable since in Service
matters adjudication, it has to be clearly mentioned
about the “person aggrieved”. The 12 claim
petitioners have no existing right to raise an
Industrial Dispute without any locus standi as they
are not terminated from Services and it is the case
that the 12 claim petitioners are not reporting for
duty in the Koodapakkam Road, Pathukannu,
Puducherry and the very objective of framing of
section 2-A of the Industrial Disputes Act, 1947
would get defeated if, these kind of industrial
disputes are entertained. It has been well settled that
the Courts have to be extremely careful that it does
not encroach upon the sphere reserved by the
Constitution in the guise of redressing public
grievances as in the instant case it could be clearly
seen that the 12 claim petitioners are not the persons
1373
23 October 2018]
LA GAZETTE DE L’ETAT
aggrieved as there is no denial of employment and
therefore, they cannot be permitted to raise an
Industrial Dispute collectively espousing the cause
of the 12 claim petitioners.
4. In the course of enquiry on the side of the
petitioner PW1 was examined and Ex.P1 to Ex.P25
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.R4 were marked in the cross
examination of PW1. The argument of the petitioners'
side was heard. On the side of the respondent though
several opportunities were given to putforth their case
no argument was putforth by the respondent and hence
with no other option, the argument of the respondent
side was closed.
5. The point for consideration is:
Whether the dispute raised by the petitioners
against the respondent management over charter of
demands and refusal of employment to 12 employees
while pending of the conciliation proceedings is
justified or not and if justified, what is the relief
entitled to the petitioner.
6. On the point :
The pleadings of the parties, the evidence adduced
by the petitioners and exhibits marked on both sides
are carefully considered. In order to prove the case
of the petitioners, the first petitioner was examined
himself as PW.1 and it is the evidence of the PW.1
that petitioners are the workers of the respondent
establishment and they have joined in between the
period 2004 and 2006 at the respondent establishment
and they were extracted over time work, but, they
were not paid over time wages and they have also
denied weekly holiday and Government holiday and
that the management have used not to give any salary
slip to the workers and the management has deducted
ESI, EPF contribution from the wages of the
petitioners and the workers have been employed at
Sedarapet unit in day to day manufacturing activity
and some of the workers have been illegally
retrenched
and
they
have
not
been
paid
compensation and some of the workers have been
transferred and the management has suspended the
operation of the Sedarapet unit without any
permission from the Government of Puducherry with
effect from 28-07-2014 and it is the further evidence
of the PW.1 that these petitioners have demanded the
respondent management to furnish EPF details and
demanded over time wage for their over time work
and hence, as to victimize the petitioners, the
respondent management transferred them to its sister
unit situated at Kudapakkam Road, Pathukannu,
Puducherry and the workers have been given
assurance that after the maintenance work in
Sedarapet unit they will be reverted back to continue
their service in Sedarapet unit and the workers have
not been reverted back to Sedarapet unit and hence,
the petitioners have preferred a complaint to the
Chief Inspector of Factory and Labour Officer
(Conciliation) on 24-11-2014 and on the receipt of
the complaint the Labour Officer (Conciliation)
initiated proceedings and issued a conciliation notice
to both the petitioners as well the respondent
management and though the conciliation was held on
22-12-2014, 07-01-2015 and 13-05-2015, the
respondent management did not chose to participate
in the conciliation proceedings and decided to
victimize the petitioners and on 19-01-2015, when
the petitioners reported for duty they have been
denied employment and they were stopped in the
factory gate itself and hence, the petitioners have
made a complaint to the Labour Officer (Conciliation)
regarding denial of employment and the letter has
been sent on 27-01-2015 to the respondent through
registered post and even then the respondent management
did not come forward to provide employment to the
petitioners and that therefore, the petitioners
preferred a complaint to the Labour Officer (Conciliation)
regarding unfair labour practice committed by the
management and denial of employment and that
while the said dispute is pending before the Labour
Officer (Conciliation) the respondent without prior
permission from the Conciliation Officer and in
contravention of section 33A of the Industrial
Disputes Act illegally denied employment to the
petitioners
and
though
the
Labour
Officer
(Conciliation)
has
advised
the
respondent
management to reinstate the petitioners in service
with back wages, continuity of service, the management
has denied employment to the petitioners and the
conciliation failure report was sent by the Conciliation
Officer on 06-05-2015 and the Government has made
a reference to this Court for adjudication and that the
management has committed the act of victimization
and unfair labour practice and the petitioners have
been terminated from service without any enquiry in
violation of section 33A of the Industrial Disputes
Act and also in violation of section 25F of the
Industrial disputes Act and prayed for reinstatement
with full back wages and continuity of service.
1374
LA GAZETTE DE L’ETAT
[23 October 2018
7. In support of their oral evidence the petitioners
has exhibited Ex.P1 to Ex.P25. Ex.P1 to Ex.P9 are the
copy of ESI card of the petitioners. Ex.P10 to Ex.P12
and Ex.P14 to Ex.P22 are the copy of petitioners' letter
to Office of the Chief Inspector of Factory, the Labour
Officer (Conciliation), Labour Department, Labour
Commissioner and to the respondent management on
several dates. Ex.P13 is the copy of conciliation notice.
Ex.P23 is the copy of letter from EPF Organization.
Ex.P24 is the copy of conciliation failure report.
Ex.P25 is the copy of Government reference. These
documents would evident that the petitioners have been
given ESI card and they have been paid ESI
contribution and these petitioners have made a
complaint to the Chief Inspector of Factories and the
Assistant Labour Conciliation Officer to direct the
respondent management to start the function of the
factory situated at Sedarapet village and to revert them
at Sedarapet factory and also made a complaint against
their transfer by the respondent management on 28-07-2014
from Sedarapet unit to its sister concern which is
situated at Koodapakkam Road, Pathukannu, Puducherry
and the Labour Officer (Conciliation) has given notice
to the petitioner Kasiammal as well the respondent
management on 12-12-2014 to attend the conciliation to
be held on 22-12-2014 and thereafter, the petitioners
have sent a letter to the Labour Officer and the Chief
Inspector of factories on 09-01-2015 asking them to
take action to the complaint made by them on 24-11-2014
against the respondent management and on 27-01-2015
the petitioners have raised a industrial dispute before
the Labour Officer (Conciliation) for their non- employment
stating that their employment was denied by the
respondent management while the industrial dispute
which was already raised by them was pending before
the conciliation.
8. It is learnt from Ex.P23 that the Employees
Provident Fund Organization has given intimation to the
first petitioner on 13-04-2015 stating the PF account
number of all the 12 petitioners and further the Ex.P23
would evident that the petitioners have been working at
the respondent establishment M/s. Shri Raamsurat Kumar
Enterprise. It is evident from Ex.P24, the conciliation
failure report that these petitioners have raised the
industrial dispute against the respondent management
on 24-11-2014, over charter of demands and refusal of
employment to 12 employees while pending of conciliation
proceedings wherein, the petitioners have made a
representation that 180 workers of the respondent
establishment have been illegally retrenched and that
these 12 petitioners have been refused employment
from 19-01-2015 and that they have asked for
reinstatement with back wages and insisted to provide
statutory benefits such as drinking water, toilet facility,
confirmation order and other welfare measures. It is
also learnt from Ex.P24 that Conciliation Officer has
advised the respondent management to provide
employment to the 12 petitioners and to extend the
statutory benefits and welfare measures under the
Factories Act and to provide the confirmation order, P.F
receipt, drinking water and toilet facility to the
employees and the management also has assured that
they are ready for bilateral discussion to settle the issue
amicably and the management has not settled the issue
and dragged for more than 4 months and hence, the
Conciliation Officer has sent a failure report to the
Government.
9. On the other hand, to disprove the case of the
petitioners the respondent management has not let any
oral evidence and instead of that the respondent
management has marked Ex.R1 to Ex.R4. Ex.R1 to
Ex.R4 are the copy of letters sent by the respondent
management to the Regional Commissioner, Provident
Fund Office on several dates. These documents would
go to show that that the respondent has sent a letter
enclosing form-19 & 10C of the staffs M. Rani,
P. Lakshmi, Sumathi, V.Tamilselvi, K. Chamundeeswari
and K. Kasiyammal having account numbers PC/1503/
503, PC/1503/541, PC/1503/1035, PC/1503/935, PC/
1503/35 and PC/1503/52 respectively to the Regional
Commissioner, Provident Fund Office. The respondent
contended that these 12 petitioners insisting the
respondent management that they should be provided
employment only at M/s. Shri Raamsurat Kumar
Enterprise the factory situated at Sedarapet village and
the said 12 petitioners are not willing to work at the
sister concern of the respondent establishment which is
situated at Pathukannu village of Puducherry and that
the respondent has not terminated these 12 petitioners
and they have voluntarily refused to discharge their
duties in the factory located at Koodapakkam Road,
Pathukannu village of Puducherry and the petitioners
have not stated in the claim petition that how the
12 petitioners were prevented from discharging their
duties from 28-07-2014 onwards in the transferred
place.
10. From the pleadings of either side it is clear that
following facts are admitted by either side that these
petitioners are working at the respondent establishment
as stated by the petitioners and they have been paid ESI
contribution by the respondent and these petitioners
have originally worked at respondent establishment,
M/s. Shri Raamsurat Kumar Enterprise and subsequently,
they have been directed to work at its sister concern
1375
23 October 2018]
LA GAZETTE DE L’ETAT
which is situated at Pathukannu village of Puducherry.
It is also not disputed by either sides that now, the
petitioners are not working at the respondent establishment
and the petitioners have claimed reinstatement with
back wages with continuity of service. Further, it is also
not disputed by the respondent that these petitioners
have raised the industrial dispute over charter of
demands and subsequently for the refusal of
employment and seeking the order for reinstatement
with back wages and no written order of termination has
been given to the petitioners.
11. It is the first contention of the respondent that
the claim petition filed by the 12 claim petitioners
styled in a single industrial dispute cannot be
entertained more particularly in the matter of service of
an individual employee is not maintainable and each
and every employee has to file a separate application
under section 2A of the Industrial Disputes Act. On this
aspect the records and evidence are perused. On perusal
of the claim petition it is learnt to this Court that each
and every petitioner has signed the claim petition and
all of them shown as petitioners. Further, it is learnt
that these petitioners have jointly raised the industrial
dispute before the Conciliation Officer, wherein, the
respondent has not objected the same on this ground
and hence, the contention raised by the respondent that
they have to file the claim petition individually is not
sustainable as all of them have filed this claim petition
sought for the relief of reinstatement.
12. It is the second contention of the respondent
management that the petitioners are not the permanent
workers of the respondent establishment and they are
not entitled for any reinstatement as claimed by them.
It is not disputed by the respondent that the petitioners
are working for more than 5 years. It is true that the
burden of proof is on the petitioner workmen to prove
that they had been in service for about 5 years at the
respondent establishment and that atleast they have to
prove that whether they have worked for 240 days in a
calendar year. On perusal of the records it is learnt to
this Court that ESI card has been issued to the
petitioners and the respondent has exhibited the letters
enclosing Form-19 and 10C of the staffs sent by them
to the Regional Commissioner, Provident Fund Office
under Ex.R1 to Ex.R4 which would go to show that the
petitioners were in service till 2012. Further, the
petitioners have exhibited the letter sent by the
Employees Provident Fund Organization on 13-04-2015
to the 1st petitioner under Ex.P23 which would reveal
the fact that the petitioners are the workers of the
respondent establishment M/s. Shri Raamsurat Kumar
Enterprise till 2014-2015. Further, it is learnt from the
records that the respondent has not at all stated before
the Conciliation Officer that these petitioners are not the
permanent workers of the respondent establishment.
Furthermore, the respondent management has not come
forward to produce the documents before this Court to
establish that the petitioners are not the permanent
workers of the respondent establishment and that they
have not worked for more than 240 days in a calendar
year since the petitioners have proved prima faciely
that they have been in service at the respondent,
establishment for more than 5 years as pleaded by them
and even the respondent management has not put any
suggestion that the petitioners are not the permanent
workers of the respondent establishment while cross
examining, the petitioners side witness and that
therefore, the second contention raised by the
respondent management also is not sustainable and
hence, it is to be concluded that the petitioners are the
permanent workers of the respondent establishment.
13. It is the third contention of the respondent
management that they have not terminated the
petitioners at any point of time and the petitioners alone
has failed to discharge their duties at the transferred
factory situated at Koodapakkam Road, Pathukannu
village of Puducherry and that they are not entitled for
any order of reinstatement and they are not having any
locus standi to raise the industrial dispute for
non-employment and therefore, now, the question is to
be decided by this Tribunal is that whether these
petitioners have failed to discharge their duty at the
transferred factory or the respondent management has
refused employment to the petitioners orally by not
allowing them to enter into the factory.
14. On this aspect the evidence and records are
carefully perused. It is not disputed by the respondent
management that the petitioners are the employees of
the respondent establishment and they have been paid
ESI contribution and the petitioners were originally
working at their factory which is situated at Sedarapet
village of Puducherry and subsequently, they have been
transferred to their sister concern which is situated at
Pathukannu village of Puducherry. However, both of
them have not filed transfer order before this Court.
It is also admitted by the petitioners in their evidence
that they have been transferred from the factory situated
at Sedarapet village of Puducherry to the factory
situated at Pathukannu village of Puducherry and it is
evident from the exhibits that the petitioners have
raised the industrial dispute over charter of demands
before the Conciliation Officer and while it was
1376
LA GAZETTE DE L’ETAT
[23 October 2018
pending they have been transferred by the respondent
management to the factory situated at Pathukannu
village of Puducherry. It is the right of the respondent
management to transfer their workers within the units
administered by them and hence, the denial of the
petitioners to serve at the transferred place i.e., the
factory situated at Pathukannu village is not an
acceptable one. However, as the petitioners are working
for more than 5 years the management has to take
proper steps for disciplinary action against the
petitioners for not appearing for work at the transferred
place and it is not the right of the respondent
management to deny the employment to the petitioners
without any domestic enquiry followed on charge memo
for the misconduct of unauthorized absence.
15. Further, the respondent management has failed to
take the disciplinary action against the petitioners while
they were not attending the duty at the transferred place
since the petitioners have served at the factory for more
than 5 years. Though, the petitioners were working at
the respondent establishment for more than 5 years and
they have been paid ESI contribution the respondent
management has not even issued any show cause notice
or issued any charge memo to the petitioners for their
non-appearance at the transferred place. The respondent
management has failed to give any notice to the
petitioners who have alleged to have been not reported
for duty while they have been transferred to the factory
situated at Pathukannu village of Puducherry. Though, it
is stated by the respondent management that they have
not terminated the petitioners from service they have
failed to state why they have not taken any disciplinary
action against the petitioners while they have not turned
up for duty at the transferred place and for the
misconduct of unauthorized absence. These facts would
go to show that the respondent management has
wantonly failed to give employment to the petitioners
and they have denied employment to them.
16. Furthermore, the respondent management has
contended that the petitioners have not turned up for
duty while they have transferred the petitioners to the
factory situated at Pathukannu village of Puducherry.
However, the respondent management has not come
forward to examine any witness on their side to prove
the above contention that the petitioners themselves
have failed to turn up for duty at the transferred place
which is situated at Pathukannu village of Puducherry.
From the above facts it can be presumed by this Court
that
the
respondent
management
has
refused
employment orally to the petitioners by not allowing
them to enter into the factory.
17. Furthermore, the petitioners have been transferred
to the sister concern of the respondent establishment
which is situated at Pathukannu village of Puducherry
on 28-07-2014 while pendency of the dispute which
was already raised by the petitioners before the Labour
Conciliation Officer for charter of demands regarding
over time wages and other demands. Therefore, the
transfer of the petitioners without getting prior
permission from the Conciliation Officer and without
giving notice to the petitioners under section 9A of the
Industrial Disputes Act is in violation of section 33C(2)
of the Act and that therefore, it is to be held that the
industrial dispute raised by the petitioners against the
respondent management over charter of demands and
refusal of employment to 12 employees while pending
of the conciliation proceedings is justified and the
petitioners are entitled for order of reinstatement as
claimed by them. Considering the fact that the
respondent factory which is situated at Sedarapet
village of Puducherry is not in a working condition and
considering the another fact that the petitioners have
already been transferred by the respondent management
to its sister concern which is situated at Pathukannu
village of Puducherry, the petitioners have to be
reinstated at the transferred factory which is situated at
Pathukannu village of Puducherry. Furthermore, in the
claim petition the petitioners have not prayed for any
relief regarding charter of demands and hence, no relief
can be granted to them in respect of charter of demands
made by the petitioners before the Labour Officer
(Conciliation).
18. Further, as far as back wages is concerned
absolutely there is no evidence that the petitioners are
working so far in any other industry and that there is no
proof exhibited before this Court that they are working
anywhere else. The respondent has not proved the fact
that petitioners have been working in any other
establishment after their denial of employment.
However, the petitioners could have served at any other
industry after their denial of employment. Considering
the above facts and circumstances, this Court decides
that the petitioners are entitled only for 20% back
wages with continuity of service and other attendant
benefits.
19.
In the result, the petition is partly allowed and
the industrial dispute raised by the petitioners against
the respondent management, over charter of demands
and refusal of employment to 12 employees while
pending of the conciliation proceedings is justified and
Award is passed directing the respondent management
to reinstate the petitioners in service at the transferred
factory which is situated at Pathukannu village of
Puducherry within one month from the date of this
1377
23 October 2018]
LA GAZETTE DE L’ETAT
Award and further directed the respondent management
to pay 20% back wages to the petitioners till the date
of reinstatement with continuity of service and other
attendant benefits and the petition is partly dismissed in
respect of charter of demands. No cost.
Dictated to the Stenographer, transcribed by her,
corrected and pronounced by me in the open Court on
this the 10th day of May, 2018.
G. THANENDRAN,
Presiding Officer
Industrial Tribunal-cum-
Labour Court, Puducherry.
List of petitioner’s witness:
PW.1 — 30-8-2017 — Kasiammal
List of petitioner’s exhibits:
Ex.P1 —03-12-2011—
Copy of representation by
the petitioner.
Ex.P1
-
Copy of ESI card of the 1st
petitioner.
Ex.P2
-
Copy of ESI card of the 2nd
petitioner.
Ex.P3
-
Copy of ESI card of the 3rd
petitioner.
Ex.P4
-
Copy of ESI card of the 4th
petitioner.
Ex.P5
-
Copy of ESI card of the 6th
petitioner.
Ex.P6
-
Copy of ESI card of the 9th
petitioner.
Ex.P7
-
Copy of ESI card of the 10th
petitioner.
Ex.P8
-
Copy of ESI card of the 11th
petitioner.
Ex.P9
-
Copy of ESI card of the 12th
petitioner.
Ex.P10—24-11-2014—
Copy of petitioners’ letter
to Office of the Chief
Inspector of Factories.
Ex.P11—24-11-2014 — Copy of petitioners' letter
to
Labour
Officer
(Conciliation).
Ex.P12 —24-11-2014 — Copy of petitioners' letter to
Labour Department.
Ex.P13—12-12-2014 — Copy of conciliation notice.
Ex.P14—09-01-2015 — Copy of petitioners' letter to
Labour Department.
Ex.P15 —09-01-2015 — Copy of petitioners' letter to
Chief Inspector of Factories.
Ex.P16 —27-01-2015 — Copy of petitioners' letter to
Conciliation Officer.
Ex.P17—27-01-2015 — Copy of petitioners' letter to
respondent.
Ex.P18 —28-01-2015 — Copy of petitioners' letter to
Labour Commissioner.
Ex.P19—28-01-2015 — Copy of petitioners' letter to
Labour Commissioner.
Ex.P20 —06-02-2015 — Copy of petitioners' letter to
Chief Inspector of Factories.
Ex.P21 —06-02-015 —
Copy of petitioners' letter to
Labour Commissioner.
Ex.P22—06-02-2015 —
Copy of petitioners' letter to
respondents.
Ex.P23 —13-04-2015 — Copy of letter from EPF
Organization.
Ex.P24 —06-05-2015 — Copy of conciliation failure
report.
Ex.P25 —08-06-2015 — Copy
of
Government
reference.
List of respondent witnesses:
Nil
List of respondent exhibits:
Ex.R1 —15-10-2012 —
Copy of letter to the
Regional Commissioner,
Provident Fund Officer by
t h e
r e s p o n d e n t
management.
Ex.R2 —03-10-2012 — Copy of letter to the Regional
Commissioner, Provident
Fund
Office
by
the
respondent management.
Ex.R3 — 10-01-2012 — Copy of letter to the Regional
Commissioner, Provident
Fund
Office
by
the
respondent management.
Ex.R4 —21-12-2009 — Copy of letter to the Regional
Commissioner, Provident
Fund
Office
by
the
respondent management.
G. THANENDRAN,
Presiding Officer
Industrial Tribunal-cum-
Labour Court, Puducherry.
1378
LA GAZETTE DE L’ETAT
[23 October 2018
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 102/Lab./AIL/T/2018,
Puducherry, dated 19th June 2018)
NOTIFICATION
Whereas, an Award in I.D (L) No.21/2016, dated
25-5-2018 of the Industrial Tribunal-cum-Labour Court,
Puducherry in respect of the Industrial Dispute between
the management of M/s. Adhi Sakthi Projects Private
Limited, Puducherry and Thiru Munikumar over
reinstatement with full backwages, continuity in service
and all other attendant benefits 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. 21/2016
Munikumar,
S/o. Vellaisamy,
No. 54, Malligai Street,
Sivaganapathy Nagar,
Villianur, Puducherry.
. .
Petitioner
Versus
The Managing Director,
M/s. Aathi Sakthi Projects
Private Limited,
R.S. No. 40/9, Earikarai Road,
Kothampurinatham,
Thiruvandarkoil,
Puducherry-605 102.
. .
Respondent
This industrial dispute coming on 08-05-2018 before
me for final hearing in the presence of Tiruvalargal
R.T. Shankar, A. Ashokkumar and P. Suresh, Counsels
for the petitioner and Tiruvalargal 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
Welder Post. The petitioner had been serving at the
respondent management from August 2008 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 the Executive Member 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
1379
23 October 2018]
LA GAZETTE DE L’ETAT
active members of the said Trade Union. The respondent
management has 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, Manimaran, Senthilkumar,
Karunagaran, and this petitioner Munikumar and they
have sent out of the company stating that there would
be an enquiry on the charges levelled 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 above said false report given by the
Enquiry Officer the respondent 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 for
1380
LA GAZETTE DE L’ETAT
[23 October 2018
morning break (breakfast) for which the petitioner
along with his co-worker one Mr. Karunakaran,
started quarrelling with the Security Guard Mr. Dharani
and
threatened
him
using
filthy
language.
Subsequently, on the same day around 1.00 p.m., when
the Security Guard was standing in his place, the
petitioner along with his co-workmen namely,
Mr. Karunakaran, Mr. Manimaran 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. Subsequently, on 06-11-2014, the
petitioner had deliberately ripped off the copy of the
show cause notice issued to another worker one
Mr. Manimaran which was displayed in the notice-
board for which another show cause notice, dated
13-11-2014 was issued calling for an explanation
within 3 days from the date of issuance of such notice
for which he has not submitted any replied. 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 with a view an ulterior motive
of stopping the disciplinary actions against him.
He indulged in an act of preventing the other workmen
to join with him and also prevented the 13 workmen
who were working with gloves. The petitioner again did
not come forward to take up his work and also prevented
the other workmen from doing their works on the
subsequent dates i.e., 14-11-2014 & 15-11-2014. Hence,
the petitioner was suspended from 15-11-2014. Against
this the petitioner fought with the Officer who had issued
him the notice and then provoked his co-workmen
namely Mr. Mugunthan, Mr. Meenatchisundharam,
Mr. Latchuminarayanan, Mr. Manikandan and
Mr. Sundhar 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 coercing the other
workmen even in previous occasions and on 01-10-2014
between 3.00 p.m. and 6.00 p.m., he endeavored
stoppage of production and again from 13-11-2014
to 15-11-2014, the production was stopped by him.
This was communicated to the Labour Department
and Conciliation Officer. On 22-10-2014, with a view
to spoil the name of the respondent, despite of several
warnings from the respondent, the petitioner and his
co-worker Mr. Rajasekar were boozed in a guest
house, which is being maintained by the respondent
for which the petitioner was given a oral warning also.
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, dated 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 levelled
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 respondent 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.
1381
23 October 2018]
LA GAZETTE DE L’ETAT
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.,
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 levelled 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 b enefits 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 RW1
was examined and Ex. R1 to Ex. R21 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. On the point :
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
August 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 instructions 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
1382
LA GAZETTE DE L’ETAT
[23 October 2018
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
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
and the petitioner along with his co-worker Karunakaran
started quarrelling and threatened the Security Guard
using filthy language and subsequently, on the same
day around 1.00 p.m., the petitioner along with his
co-workman Karunakaran, Manimaran and Senthilkumar
continued their quarrel against the Security Guard and
hence, Tool Room Engineer Balamurugan came to the
sport 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 workman to join with
him and also prevented the 13 workmen who were
working with gloves and the petitioner again did not
come forward to take up his work and also prevented
the other workmen from doing their works on the
subsequent dates and the petitioner quarreled with the
officer who has issued him the notice and then provoked
his co-workmen Mugunthan, Meenatchinsundharam,
Latchuminarayanan, Manikandan and Sundhar 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 01-10-2014 between
3.00 p.m. and 6.00 p.m., the petitioner endeavored
stoppage of production and again from 13-11-2014 to
15-11-2014 the production was stopped by him and the
same was communicated to the Labour Department and
Conciliation Officer 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
1383
23 October 2018]
LA GAZETTE DE L’ETAT
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 the proposed 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. R21. 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 Assistant
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 complaint letter
given by Production Manager Mr.S.Sasikumar. Ex. R13
is the copy of the letter from Pepsico Indian Holidngs
Private Limited, to the respondent. Ex. R14 is the copy
of domestic enquiry proceedings. Ex. R15 is the copy
of domestic enquiry report. Ex. R16 is the copy of
second show cause issued to the petitioner. Ex. R17 is
the copy of reply letter issued by the petitioner. Ex.R18
is the termination order issued to the petitioner. Ex.R19
is the full and final settlement sent to the petitioner by
RPAD. Ex.R20 is the copy of complaint letter given by
Production Manager Mr. S. Sasikumar. Ex.R21 is the
copy of show cause notice issued to the petitioner.
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 full back 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 the petitioner 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, Manimaran 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
1384
LA GAZETTE DE L’ETAT
[23 October 2018
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 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. R14 which would reveal the
fact that one Ms. R. Thilagavathi, Advocate has conducted
the domestic enquiry on 24-01-2015 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.R14 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
1385
23 October 2018]
LA GAZETTE DE L’ETAT
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 executives
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
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.1
was carefully considered which runs as follows :
‘‘
Tool Room
Manager
Memo
Show Case
Notice
Notice
Notice
Show Case 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.
1386
LA GAZETTE DE L’ETAT
[23 October 2018
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 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 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.
1387
23 October 2018]
LA GAZETTE DE L’ETAT
List of petitioner’s witness:
PW.1—29-08-2017
Munikumar
List of petitioner’s exhibits:
Ex.P1
— 10-10-2014 Copy of the Trade Union
Certificate.
Ex.P2
— 07-01-2016 Copy of the petitioner
dismissed letter issued by
the management.
Ex.P3
— 13-11-2014 Copy of reply notice to the
ma n a g e me n t g i v e n b y
workers.
Ex.P4
— 17-11-2014 Copy of notice to the Labour
Department.
Ex.P5
— 05-05-2016 Original conciliation letter.
Ex.P6
— 13-10-2014 Copy of the dispute raised by
the petitioner union before the
Labour Officer (Conciliation).
Ex.P7
— 13-11-2014 Copy of letter sent by the
workers to the respondent
m a n a g e m e n t t h r o u g h
Professional Courier.
Ex.P8
— 18-11-2014 Copy of letter submitted by
the petitioner's union before
the Labour Commissioner.
Ex.P9
— 18-11-2014 Copy of letter submitted by
the petitioner's union before
the Labour Officer (Conciliation).
Ex.P10 — 24-11-2014 Copy of call letter sent by the
Labour Officer for Conciliation.
Ex.P11 — 27-11-2014 Copy of strike notice given
by the petitioner's union.
List of respondent’s witness:
RW.1
— 21-12-2017 S.A. Saravanan
List of respondent’s exihibits:
Ex.R1
— 29-10-2014 Copy of complaint letter
given by production Manager
Mr. S.Sasikumar.
Ex.R2
— 30-10-2014 Copy 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 Asst. 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— 25-11-2014 Copy of complaint letter
given by Production Manager
Mr. S. Sasikumar.
Ex. R13— 13-08-2014 Copy of the letter from
Pepsico Indian Holidngs
Private Limited, to the
respondent.
Ex.R14 —
Copy of domestic enquiry
proceedings.
Ex. R15— 02-11-2015 Copy of domestic enquiry
report.
Ex. R16 —24-11-2015 Copy of second show cause
issued to the petitioner.
Ex.R17— 02-12-2015 Copy of reply letter given by
the petitioner.
Ex.R18 — 07-01-2016 Termination order issued to
the petitioner.
Ex.R19 — 24-02-2016 A full and final settlement
sent to the petitioner by
RPAD.
Ex. R20 —06-11-2014 Copy of complaint letter
given by Production Manager
Mr. S. Sasikumar.
Ex. R21— 13-11-2014 Copy of show cause notice
issued to the petitioner.
G. THANENDRAN,
Presiding Officer,
Industrial Tribunal-cum-Labour Court,
Puducherry.