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12 {
No.
11
Poudouchéry
Mardi
12
Mars
2019 (21 Phalguna 1940)
No.
Puducherry
Tuesday
12th
March
2019
204
LA GAZETTE DE L’ETAT
[12 March 2019
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 27/Lab./AIL/T/2019,
Puducherry, dated 27th February 2019)
NOTIFICATION
Whereas, an Award in I.D (L) No.17/2016, dated
06-02-2019 of the Industrial Tribunal-cum-Labour Court,
Puducherry in respect of the industrial dispute between
the management of M/s. E. Quire Technologies Private
Limited and Tmt. A. Malathi, over non-employment has
been received;
Now, therefore, in exercise of the powers conferred
by sub-section (1) of section 17 of the Industrial
Disputes Act, 1947 (Central Act XIV of 1947), read with
the notification issued in Labour Department’s G.O.
Ms.No. 20/91/LAB/L, dated 23-5-1991, it is hereby
directed by the Secretary to Government (Labour) that
the said Award shall be published in the Official
Gazette, Puducherry.
(By order)
S. MOUTTOULINGAM,
Under Secretary to Government (Labour).
————
BEFORE THE INDUSTRIAL TRIBUNAL -CUM-
LABOUR COURT AT PUDUCHERRY
Present:Thiru C. KUMAR SARAVANAN, M.A., M.L.,
Presiding Officer (FAC).
Wednesday, the 6th day of February 2017.
I.D. (L) No. 17/2016
A. Malathi,
w/o. Anandharaja,
No.13, Bharathiyar Street,
5th Cross,Ganesh Nagar,
Muthialpet,
Puducherry-605 003.
. . Petitioner
Versus
The Managing Director,
M/s. E.Quire Technologies Pvt. Ltd.,
No.78, II Cross,
Sithanandha Nagar,
Puducherry-605 005.
. . Respondent
This Industrial Dispute coming on 23-01-2019 before
me for final hearing in the presence of Thiru R. Raja,
Advocate for the claimant, representative for the
petitioner and Thiru N. Mouraly, Advocate 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. 91/AIL/LAB/T/2016,
dated 12-09-2016 for adjudicating the following:-
(a) Whether the dispute raised by Tmt. A. Malathi
against the management of M/s. E-Quire Technologies
Private Limited, Sithanandha Nagar, Puducherry, over
non-employment is justified? If justified, what relief
the petitioner is 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 petitioner submits that the above reference has
been made by the appropriate Government for decision
and Award on the following matters with regard to the
employment of the petitioner under the respondent:
(a) Whether the dispute raised by Tmt. A. Malathi
against the management of M/s. E-Quire Technologies
Private Limited, Sithanandha Nagar, Puducherry, over
her non-employment is justified or not? if justified,
what relief the petitioner is entitled to?
(b) To compute the relief if any, awarded in terms
of money if, it can be so computed?
4. The petitioner submit that she is a M.B.A.
graduate and she joined the respondent company on
03-03-2011 as a “COMPOSER” through a proper
interview conducted by the respondent company on
05-03-2011, the appointment letter was issued to the
petitioner. The petitioner was an able worker in the
respondent organization from then. The petitioner
was given yearly increment because of her
disciplined performance given to the respondent
company by her.
5. The petitioner submits that she even worked for
twelve hours for the sake of the respondent
company. She never disobeyed the terms and
conditions discussed and agreed upon from the date
of her appointment. She had become a Senior
Composer in the respondent company. She even
worked sincerely at the time of pregnancy.
6. The petitioner submits that suddenly on
30-05-2014, the Manager of the respondent company
one Mr. Sathish asked the petitioner not to come to
205
12 March 2019]
LA GAZETTE DE L’ETAT
the work from then, without giving any prior
intimation or with any termination notice. The act of
the respondent company is totally against law. The
illegal termination given to the petitioner (a pregnant
woman) had caused immense mental agony and
financial lo ss to her. And has claimed fo r
reinstatement and monetary loss due to the
non-employment to the non-employment of her.
7. The petitioner submits that it was at this stage,
the petitioner raised a dispute before the learned
Conciliation Officer, Puducherry, on 16-06-2014. The
petitioner further submits that only after the
representation given to the Conciliation Officer,
Puducherry on 23-06-2014, the management issued
the dismissal/termination letter to the petitioner
having the following contents that.
“1. On 21st March, 2014, memo against sleeping
activity on working hours at production hall.
2. On 24th April, 2014, memo against sleeping
and error accrued.
3. On 27th May 2014, we received many
complaints (unsatisfactory job performance) from
your Manager.
4. On 30th May, memo for following
explanation, why would he terminate her?
A. Your are not following client instructions.
B. Your are composing unwanted characters
and missing caption texts.
C. You files (Projects) are mostly reject by QC.
E. Unnecessary taken extra time for correction
work.
F. Without intimation taking permission.
Based on review of all information available
including prior disciplinary action (just warning), and
your current unsatisfactory performance, we are not
satisfied and also your comments or lack of
explanation is not acceptable so are taking a
disciplinary action against you. You are continually
absent without intimation hence, your dismissed
(terminated) from your position (job) with effect
ending hours on 30th May 2014.”
8. The petitioner submits that she issued the
legal notice on 16-06-2014 through her Advocate
for the irresponsible and illegal termination letter
on 23-06-2014 with all cooked up reasons which is
mentioned above (in the para 7 of this claim petition).
9. The petitioner submits that on 16-07-2014, the
petitioner appeared before the Conciliation Officer for
enquiry even at the stage of pregnancy. And on
several dates she attended the enquiry and at the
beginning stage the management were ready to settle
the issue amicably but, later stated that there is no
chance of any amicable settlement and it was even
recorded in the failure report issued by the Labour
Conciliation Officer. And the report on failure was
issued on 11-08-2015. It is view of the deadlock
created by the management by taking untenable
stands in the conciliation proceedings, the matter has
been referred to this Honourable Court for
adjudication.
10. The petitioner submits that the actual reason
for her illegal termination from the work by the
management was only to escape from the
MATERNITY BENEFITS which has to be given for
the petitioner, such act is purely mala fied and
arbitrary in nature.
In view of the above, it is respectfully prayed that
this Hon’ble Court may be pleased to pass an Award
holding.
(i) That the non-employment (termination) of
Tmt. A. Malathi as a Composer who was in the
work from 05-03-2011 to 30-05-2014 by the
respondent is not justified.
(ii) That the claim of employment of
Tmt. A. Malathi with reinstatement with compensation
as back wages from the respondent is justified.
3. The brief averments in the counter filed by the
respondent are as follows :
1. This respondent does not admit any of the
averments/allegations contained in the petitioner
save and except those that are specifically admitted
herein and the petitioner is put to proof of such of
those averments/allegations not specifically admitted.
2. The respondent state that the E-Quire
Technologist has strength of 70 employees. The
respondent has not engaged in any manufacturing
process. The respondent is not in an industry as
defined in the Industrial Disputes Act and there is
not jurisdiction of this Hon’ble Labour Court to
enquire in to the matter.
3. The respondent states that the issue of
applicability of the Industrial Disputes Act and the
jurisdiction of this Hon’ble Court may be taken as a
primary issue before going into the merits of the case.
4. The respondent states that the petitioner was
appointed on the terms of conditions contained in
the appointment letter, dated 05-03-2011.
5. The respondent states that the petitioner did
not seems pregnant and the petitioner had not
informed to the respondent that the petitioner was
pregnant and had not asked for any light work to be
granted to the petitioner.
206
LA GAZETTE DE L’ETAT
[12 March 2019
6. The respondent states that on 21-03-2014, while
on duty, the petitioner was found to be sleeping
during working hours and hence, the petitioner was
issued a memo to that effect. The petitioner had
refused to receive the same, but, the petitioner had
issued a letter, dated 21-03-2014, accepting her
mistake and promising not to sleep during duty.
7. The respondent states that the petitioner
committed the following project errors:–
(a) Client instruction to process the filed in
double column. But, she has composed in single
column (3526 - Bibliography - First Pass - 15-05-14).
(b) In Koren Project (the Yellow star) she has
inserted tab character, it is trade book and in some
places italic missed. Page number not followed in
body matter. Chapter number position wrong
globally.
(c) In project 116, Part 6 caption texts are
missing insert caption texts for all images as per
style globally and set all images in full width of
the columns.
(d) In project 116 Part 7 filed was rejected by QC.
8. The respondent states that the petitioner
committed the following E-Track errors:-
(a) Mismatch with the total page number.
In E-tract, she has entered 43 pages but, actual
pages was 31.
(b) For correction, she has taken nearly 5 hours
22 Minutes, actually time would be maximum 2 to
3 hours.
9. The respondents states that the petitioner acted
irresponsibly in the following manner:-
(a) She has taken permission on 10-05-2014
without giving information.
10. The respondent states that all the above
amounts to dereliction of duty of the petitioner which
caused very large financial loss/implications to the
respondent. The petitioner's activities also caused
loss of reputation to the respondent’s company.
11. The respondent states that on 30-05-2014, the
respondent has informed that the petitioner will have
to be terminated from work for her under
performance. After that the petitioner did not come
to work and was continuously and unauthorizedly
absent from 30-05-2014. The respondent states that
the petitioner did not approach to the respondent
regarding her non-performance or absenteeism.
12. The respondent states that the petitioner had
issued a legal notice, dated 16-06-2014, stating that
the petitioner has been terminated and asking for
reinstatement. The petitioner has approached to
Labour Officer ( Conciliation) by giving complaint
immediately without even waiting for a reply period/
notice.
13. The respondent states that SI.No. 7 of page 2
of the appointment letter reads as “In the event you
have absent from duty without information or
permission of leave of your overstay your sanctioned
leave, the management will treat you as having
voluntarily abandoned the services of the company”.
According to this condition, the petitioner is
considered to have voluntarily abandoned the
services of the company as she was absent from duty
from 30-05-2014 till today without any explanation.
Hence, the respondent had issued a termination
notice on 23-06-2014. There is no reply to the said
termination notice, dated 23-06-2014.
14. The respondent states that the petitioner has
given complaint to the Labour Officer (Conciliation)
in a premature manner even before the petitioner was
terminated.
15. This respondent reserves its right to file
additional counter statement at a later point of the
time as and when new facts come to light or when
additional documents are filed by the petitioner.
16. This respondent states that the claim is devoid
of merits and is liable to be dismissed with costs.
4. In the course of enquiry on both sides no evidence
has been let in and on the side of the petitioner Exs.Pl
to Ex.P13 were marked on consent and on the side of
the respondent Exs.Rl to Ex.R6 were marked consent.
Both sides are heard.
5. The point for determination is:
“Whether the industrial dispute raised by the
petitioner against the respondent management over
reinstatement with compensation with back wages is
justified or not and if justified? what is the relief,
entitled to the petitioner?”.
6. On the point:
It is the claim of the petitioner that
the
non-employment as Composer in the work from
05-03-2011 to 30-05-2014 by the respondent is not
justified and the petitioner claimed her employment
with reinstatement along with compensation as back
wages from the respondent. Further, it is the
contention of the petitioner that the respondent
company intimate her without any prior notice or
termination notice, she has been terminated from her
207
12 March 2019]
LA GAZETTE DE L’ETAT
work and it is stated that the act of the respondent
is totally against the law. And now, the petitioner has
raised the industrial dispute for her financial loss and
claimed for reinstatement and monetary loss due to
the non-employment.
7. Per contra, the respondent hereby denied all
allegations made in the claim statement of the petitioner
and stated that the petitioner did not seeing as pregnant
lady and had not informed and on 21-03-2014, while she
was on duty, she was found to be sleeping during the
working hours. Further, it is the contention of the
respondent in the counter statement that the petitioner
committed error in the project work and committed
E-Track errors and she has taken leave without any
information on 10-05-2014 and she has refused to
receive memo, thereafter, she informed that she will
have to be terminated from the work for her under
performance and she has continuously unauthorized
absent from 30-05-2014 and did not approach the
respondent to give any explanation regarding her
performance or absenteeism.
8. The pleadings of the parties and the exhibits
marked on both sides are carefully considered. On both
sides, written arguments were filed and the same was
carefully considered. The petitioner is examined as PW.l
and stated that the respondent management acted
illegally and terminated from service without any prior
intimation and terminated her without any justification
and the act of the respondent is totally against the law
and such act of the respondent management is purely
mala fide and it is an arbitrary in nature. Further, it is
the evidence of PW.l that she being a pregnant woman,
the respondent had caused immense mental agony and
financial loss the petitioner/PW.l deposed that the
respondent has to reinstatement of her employment and
they are liable to pay back wages due to her monetary
loss. Further, it is stated in her evidence of PW.l that
the respondent was acted only to escape their liability
to give Maternity Benefit to the petitioner and they
gave termination/dismissal from her service on
23-06-2014, the management issued the termination/
dismissal letter to the petitioner and it would amounts
to illegal termination from employment.
9. According to the pleadings in her claim statement
of the petitioner and evidence of PW.l that petitioner is
Composer, she joined in the respondent’s organization
M/s. Qiure Technologies Private Limited, Puducherry,
on 03-03-2011 and she had worked for 12 years for the
sake of the respondent’s company sincerely even her
pregnancy period. Ex.P1 is the appointment letter issued
to the petitioner, dated 05-03-2011 and she was
appointed as Composer in the respondent’s organization
namely, M/s. Qiure Technologies Private Limited,
Puducherry, as per the terms and conditions discussed
and she agreed for the same during the time of
appointment. Ex.P2 is the Identification Card (Composer
E.Q No. 114) issued by the respondent organization to
the petitioner. The petitioner has issued a legal notice,
dated 16-06-2014 to the respondent under Ex.P3 by
stating that to give compensation to the mental agony
and financial loss and for reinstatement of the
employement. Ex.P4, dated 17-06-2014 is the
Acknowledgment Card of the respondent. PW.l, further
stated that she has approached and given a
representation to the Labour Officer (Conciliation),
dated 16-06-2014 which is Ex.P5. Further, the petitioner
was terminated from her employment and the
respondent organization was terminated her from
service and issued a Letter on 23-06-2014 to the
petitioner under Ex.P6 and the letter communicates for
disciplinary action due to the act and unsatisfactory
performance of the petitioner. The Labour Officer
(Conciliation) has issued a notice to the petitioner
Tmt. Malathi, for enquiry, conciliation calling upon the
petitioner in person or through authorized person with
relevant records and evidence oral and documentary
positively and attend the conciliation proceedings and the
Notice of Enquiry Officer (Conciliation), dated 11-07-2014
is as Ex.P7. Thereafter, the conciliation was conducted
with regard to dispute arose between the petitioner
Tmt. Malathi and the respondent organization
M/s. E-Quire Technologies Private Limited and both
parties stood firmly on their stand there is no amicable
settlement arrived between the parties as such the
industrial dispute ended in failure. Ex.P8 is the report
on failure conciliation in No. 1195/LOC/AIL/2014, dated
11-08-2015. PW.l stated in her evidence that she
appeared before the Conciliation Officer on 16-07-2014
for enquiry even at her pregnancy stage and several
dates attended in the conciliation enquiry and beginning
stage, the management ready and settle the issue
amicably, but, later stated that there are no chances of
any amicable settlement and the same was recorded
by the Labour (Conciliation) Officer and failure report
was issued on 11-08-2015. Then the matter was referred
to the Industrial
Trib unal/Lab our
Co urt fo r
adjudication in G.O. No. 91/AIL/LAB/2016 on 12-09-2015
and it is evidenced from Ex.P9. And Ex.P10 is the copy
of the Savings Passbook Vijaya Bank Account in the
name of the petitioner. Ex.P11 and Ex.P12 are the Birth
Certificate, dated 29-06-2017 of the petitioner’s two
children namely, Devadharshani and Saiprasad, dated
02-12-2014. The petitioner has filed Neonatal Unit Form
given by JIPMER Hospital, Puducherry, for the
petitioner’s children’s dated 02-12-2014 and it is Ex.P13.
208
LA GAZETTE DE L’ETAT
[12 March 2019
10. Repudiating the averments made in the claim
statement , the respondent management has filed their
counter statement and denied all allegations made in the
claim statement by the petitioner. On behalf of the
respondent’s organization, their Representative/
Administrator was examined as RW.l and documents are
marked as Ex.Rl to ExR.6 marked on their side.
RW.l admitted the employment of the petitioner and her
work as Composer. Further, it is deposed by RW.l that
the petitioner was sleeping during the working hours
on 21-03-2014 and was issued a memo to that effect and
stated that the petitioner was accepting her mistake and
further, the petitioner has committed errors in the
following project work are given hereunder:
(a) Client instruction to process the filed in Double
Column. But, she has composed in single column
(3526 - Bibliography - First Pass - 15-05-14).
(b) In Koren Project (the Yellow star) she has
inserted tab character, it is trade book and in some
places italic missed. Page number not followed in
body matter. Chapter number position wrong globally.
(c) In project 116, part 6 caption texts are missing
insert caption texts for all images as per style globally
and set all images in full width of the columns.
(d) In project 116 part 7 filed was rejected by QC.
8. The respondent states that the petitioner
committed the following E-Track errors:-
(a) Mismatch with the total page number. In
E-tract, she has entered 43 pages but actual pager
was 31.
(b) For correction, she has taken nearly 5 hours
22 Minutes, actually time would be maximum 2 to 3
hours.
9. The respondents states that the petitioner acted
irresponsibly in the following manner:–
(a) She has taken permission on 10-05-2014
without giving information.
11. It is the evidence of RW.l that the petitioner has
activities are amounts to dereliction of the duty which
caused very financial loss to the respondent's
organization and caused loss of reputation of the
company and the petitioner voluntarily abandoned the
service of the company. Further, RW.l stated in his
evidence that the petitioner was absent without any
information from duty 30-05-2014 onwards and till date
there is no explanation for her absence and so that the
company has issued termination letter under Ex.R5 and
Ex.P6, dated 23-06-2014 and the conciliation also failure.
12. Admittedly, the respondent management has not
conducted domestic enquiry by issuing charge memo
and has not passed any termination order against the
petitioner and that there is charge memo issued against
the petitioner for the alleged sleeping activities at
production hall on working hours under Ex.R3, dated
21-03-2014. Admittedly, the petitioner has given reply
on 30-05-2014 under ExRl.Further, it is found that the
respondent management have not taken any disciplinary
proceedings and enquiry against the petitioner for the
petitioner’s activities. Per contra, the respondent has
produced error report which is Ex.R4, dated 30-05-2014.
But, the respondent management has terminated the
petitioner from her employment and intimated to the
petitioner under Ex.R5, dated 23-06-2014, which is also
marked on the petitioner side as ExP6. From the
evidence of PW.l and RW.l it is found that the petitioner
has taken permission without giving any information to
the respondent on 10-05-2014 and it amounts to
dereliction of her duty which caused implications to the
respondent management. After due notice for
termination of duty under Ex.P6, the petitioner did not
approach the management to give any explanation
regarding the performance or absenteeism.
13. Further, it is true that the respondent
management is having right to take action against the
employers or workman for their wrong activities if arose
during the working hours and the workers has to follow
the terms and conditions of the company and it is
contained in the appointment order under Ex.Pl and the
facts is not been denied by the petitioner. But, in this
case, the respondent has issued termination/dismissal
letter to the petitioner under ExP.6/Ex.R6 without making
any domestic enquiry. It is the fact admitted by RW.l
during his cross-examination and further RW.l narrated
in his cross-examination that they have no objection to
reinstatement of the petitioner for service in the
company. Further, it is found that the respondent has
not produced any documents or evidence to shows that
the company would be loss due to the activities of the
petitioner and they unable to know about actual loss
of pay to the petitioner. There is no evidence to shows
that the petitioner being a pregnancy woman and the
petitioner has committed any error or any other
activities except sleeping during working hours on
21-03-2014 and it is proved under Ex.R1.Therefore, it can
be held that the industrial dispute raised by the
petitioner against the respondent management, over his
refusal of employment and reinstatement is not justified
and as such the petitioner is entitled for reinstatement
as claimed by her.
209
12 March 2019]
LA GAZETTE DE L’ETAT
14. In this dispute, the petitioner’s claim is that the
non-employment (termination/dismissal) of the petitioner
as a Composer in the respondent’s organization, who was
worked from 05-03-2011 to 30-05-2014 is not justified and
sought for reinstatement with back wages from the
respondent is justified. At this juncture, we have to
mentioned about some decisions on this issue for
determination. In “Deepali Gundu Surwase vs. Kranti
Junior Adhyapak Mahavidyalaya (D.Ed.) and Ors., 2013
(10) SCC 324” the SC held that in the case of wrongful
termination of a worker, reinstatement with continuity
of service and back wages was a normal rule. However,
the payment of back wages has to be determined as per
the facts and circumstances of each case and cannot
be automatically granted on an order of reinstatement
of the worker. The worker has to specifically raise the
claim for back wages, as well as present supporting
evidence demonstrating his unemployment. The Court
also set out various factors for calculating the back
wages, which include, among others: (a) the length of
service of a worker; (b) the nature of misconduct, if any,
proved against a worker; and (c) the financial condition
of an employer.
15. The two important kinds of reliefs that can be
granted, in case the workman is found to be wrongfully
discharged, are: (1) reinstatement and (2) compensation
in lieu of reinstatement. Which of the two is appropriate
in the circumstances of a particular case, is a matter of
judicial discretion depending upon the facts of each
case. In “B. & C. Mills”, it was contended that the relief
of reinstatement should be granted only in cases of
victimization and unfair labour practice, and
compensation should be granted in all other cases of
improper termination of service. The Labour Appellate
Tribunal rejected the contention saying that it was not
possible to lay down rules which could be regarded as
exhaustive on the subject and that each case had to be
considered on its merits. And, a year later, their
Lordships of the Supreme Court confirmed the
proposition:Whether a discharged employee is to be
reinstated in service, or the compensation would be an
adequate relief is a matter of discretion.
16. The Apex Court has held that the principles
governing the award of back wages is no longer res
Integra and the same are well settled in M.P. State
Electricity Board v Jarina Bee (Smt.), G.M. Haryana
Roadways v Rudhan Singh, U.P, State Brassware
Corporation v Uday Narain Pandey, J.K. Synthetics
Limited. v K.P. Agrawal & Anr., Metropolitan Transport
Corporation v V. Venkatesan, Jagbir Singh v Haryana
State Agriculture Marketing Board & Anr., and Deepali
Gundu Surwase v Kranti Junior Adhyapak. After
referring to the above judgments, the Court held that:
“In our considered opinion, the Courts below
completely failed to see that the back wages could not
be awarded by the Court as of right to the workman
consequent upon setting aside of his dismissal/
termination order. In other words, a workman has no
right to claim back wages from his employer as of right
only because the Court has set aside his dismissal order
in his favour and directed his reinstatement in service."
17. The cases in which the Labour Court/Industrial
Tribunal exercises the power under section 11A of the
Industrial Disputes Act, 1947 and finds that even
though the enquiry held against the employee/ workman
is consistent with the rules of natural justice and/or
certified standing orders, if any, but, holds that the
punishment was disproportionate to the misconduct
found proved, then, it will have the discretion not to
award full back wages. However, if, the Labour Court/
Industrial Tribunal finds that the employee or workman
is not at all guilty of any misconduct or that the
employer had foisted a false charge, then, there will be
ample justification for award of full back wages.
18. As this Court has decided that industrial dispute
raised by the petitioner against the respondent over
non-employment is not justified, because of there is no
domestic enquiry conducted about the error committed
by the petitioner during the working hours and for her
unsatisfactory job performance as specified in the
memo, dated 21-03-2014. Further, it is decided that the
petitioner is not entitled for back wages as claimed by
her, due to voluntary absence from 30-05-2014 without
any explanation and she has voluntarily abandoned the
service of the company. There is no evidence that the
said workman is working so far in any other industry
and that there is no proof exhibited before this Court
that she is working anywhere else. The respondent has
not proved the fact that the petitioner has been working
in any other establishment after the refusal of
employment. However, the petitioner workman could
have served at any other industry after the refusal of
employment. Considering the above facts and
circumstances, this Court decides that the petitioner is
entitled only for reinstatement of the employment and
the respondent has also consented for reinstatement of
the petitioner. With regard to compensation as back
wages with continuity of service from the respondent
and other attendant benefits are not entitled for
the petitioner. Therefore, the claim of the petitioner
Tmt. A. Malathi for reinstatement in the respondent
organization is justified and the petitioner is not entitled
for compensation as back wages for the voluntarily
absenteeism without any information to the respondent,
because of no work and no pay for the default period.
210
LA GAZETTE DE L’ETAT
[12 March 2019
15. In the result, this industrial dispute (Labour)
petition is allowed and the Respondent/Management is
directed to reinstate the petitioner within one month
from the date of the order. No back wages to the
petitioner. No cost.
Typed in my Laptop by me corrected and pronounced by
me in the open Court on this the 6th day of February, 2019.
C. KUMAR SARAVANAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
List of petitioner’s witness:
PW.l
— 21-03-2017 —
Tmt. A. Malathi (Petitioner).
List of petitioner’s exhibits:
Ex.Pl
— 05-03-2011 —
Copy of the Appiontment
Letter issued by the
respondent
to
the
petitioner.
Ex.P2
— —
— Identification
Card
(Composer) E.Q.No.114
by the respondent to the
petitioner.
Ex.P3
— 16-06-2014 —
True copy of the receipt
with legal notice issued
bythe petitioner.
Ex.P4
— 17-06-2014 —
Acknowledament of the
respondent.
Ex.P5
— 16-06-2014 —
T r u e
co p y o f t h e
representation given
by the petitioner to the
Labour
Officer
(Conciliation)
with
acknowledgment.
Ex.P6
— 23-06-2014 —
Dismissal/termination
letter issued by the
respondent
to
the
petitioner.
Ex.P7
— 11-07-2014
— Notice of enquiry by
conciliation issued by
Labour Officer to the
petitioner.
Ex.P8
— 11-08-2015
— Report on failure of
conciliation issued by
the Labour Officer to the
petititoner.
Ex.P9
— 12-09-2016
— Notification G.O. Rt. No.
91/AIL/LAB/T/ 2016
issued by Under Secretary
to Government (Labour)
to the petitioner.
Ex.P10 — 06-07-2011
— N o t a r y
a t t e s t e d
photocopy of the Bank
Passbook (Vijaya Bank).
Ex.Pll
— 02-02-2014
— Birth Certificate of the
petitioner’s daughter.
EX.P12 — 02-02-2014
— Birth Certificate of the
petitioner’s son.
Ex.P13 — 02-02-2014
— Copy
of
details
of
Neonatal Unit of the
petitioner’s
children
issued by the JIPMER
hospital, Puducherry.
List of respondent’s witness:
Ex.P13 — 02-02-2014
— Copy
of
details
of
Neonatal Unit of the
petitioner’s
children
issued by the JIPMER
hospital, Puducherry.
RW.1
— 07-03-2018
— P r a b a g a r a n
( A d m i n s t r a t o r
o f
respondent’s company).
List of petitioner’s exhibits:
Ex.R1 —
21-03-2014
— Letter given by the
petitioner to the
respondent.
EX.R2 —
05-03-2011
— Appointment letter of the
petitioner.
EX.R3 —
21-03-2014
— Memo issued by the
respondent to the
petitioner.
EX.R4 —
30-05-2014
— Error
report
of
the
petitioner.
EX.R5 —
23-06-2014
— Dismissal/Termination
letter to the petitioner
w i t h e f f e c t f r o m
30-05-2014.
Ex.R6 —01-03-2018
— Authorization letter of
E-Quire
Technologies
Private Limited.
C. KUMAR SARAVANAN,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
211
12 March 2019]
LA GAZETTE DE L’ETAT
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 30/AIL/Lab./T/2019,
Puducherry, dated 28th February 2019)
NOTIFICATION
Whereas, an Award in I.D. (L) No.27/2016, dated
5-12-2018 of the Industrial Tribunal-cum-Labour
Court, Puducherry in respect of the industrial dispute
between the management of M/s. Karaikal Co-op. Milk
Supply Society, Karaikal and Thiru V. Ramakrishnan,
Thiruvarur District, over his reinstatement with wages
from 12-5-2001 to his construed date of retirement 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,
Under Secretary to Government (Labour).
————
BEFORE THE INDUSTRIAL TRIBUNAL -CUM-
LABOUR COURT AT PUDUCHERRY
Present : Thiru C. KUMAR SARAVANAN, M.A., M.L.,
Presiding Officer (FAC),
Wednesday, the 5th day of December, 2018
I.D. (L) No. 27/2016
V. Ramakrishnan,
S/o. Veerasamy,
Main Road, Nadakudy,
Siruppulliyur Post,
Nannilam Taluk,
Thiruvarur District.
. . Petitioner
Versus
The Managing Director,
M/s. Karaikal Co-op. Milk
Supply Society (KCMSS),
Karaikal.
. . Respondent
This Industrial Dispute coming on 28-11-2018 before
me for final hearing in the presence of Thiru S. Sasibalan
Mrs. A. Kamatchi, Advocates for the petitioner, and the
respondent being called absent and remained - ex parte,
upon hearing the petitioner and perusing the case records,
this Court passed the following:
AWARD
1. This Industrial Dispute arises out ol the reference
made by the Government of Puducherry vide G.O. Rt.
No. 114/AIL/LAB/T/2016, dated 5-12-2016 of the Labour
Department, Puducherry based on the failure report of
conciliation and confidential report vide No. 22/2015-
LO(C)/PA/310, dated 10-08-2016 from the Labour Officer,
Karaikal is to resolve the following dispute between the
petitioner and the respondent, viz. The dispute raised
by virtue of the authority delegated vide G.O. Ms.
No. 20/91/Lab./L, dated 23-05-1991 of the Labour
Department, Puducherry, to exercise the powers
conferred by clause (c) of sub-section (1) of the
Industrial Disputes Act, 1947 (Central Act, XIV of 1947),
it is hereby directed by Secretary to Governement (Labour)
that the said dispute referred to the Labour Comt,
Puducherry for adjudication. The Labour Court,
Puducherry, shall submit the Award within 3 months
from the date of issue of reference as stipulated under
sub-section 2-A 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.
(i) W h e t h e r t h e d i s p u t e r a i s e d b y
Thiru V. Ramakrishanan, Nannilam against the
management of M/s. Karaikal, Co-op. Milk Producers
Union Ltd., P8, Karaikal, over his reinstatement with
wages from 12-5-2001 to his construed date of
retirement is justified ?
(ii) If justified, what is the relief entitled to?
(iii) To compute the relief if any awarded in terms
of money if, it can be so computed?
2. The facts giving rise to this industrial dispute as
stood exposited from the claim petition filed by the
petitioner under section 10(1)(C) r/w section 10 of the
Industrial Disputes Act, 1947 runs thus:–
212
LA GAZETTE DE L’ETAT
[12 March 2019
(i) The petitioner submits that he had joined the
respondent Society on 17-8-1973 as temporary
employee and thereafter he was regularized from
1-6-1984 and worked up to 11-5-2001. The petitioner
further submits that he had joined as a clerk and due
to his hard work and dedication towards his work
he was promoted as technical supervisor. The
respondent Society was not prompt in paying the
wages to the daily wage labourers of the Society and
the labourers have given written request to the
respondent to settle their outstanding wages on
26-4-2001. The petitioner also orally requested to
settle the outstanding wages of the said daily wages
of the labourers. The oral request of the petitioner
had created an aversion in the respondent Society
towards him and as a result, the petitioner was
transferred to the Refrigeration Department on
16-4-2001 and later he was suspended on 11-5-2001
with false allegations that the petitioner has not
obeyed the orders and rules of the Society and he
has involved in mala fide propaganda against the
Society among the public.
(ii) The petitioner had sent a letter of his
resignation on 12-5-2001 to the respondent Society,
but, no letter of acceptance of his resignation was sent
by the respondent. Later on, 4-6-2001, the petitioner
herein has sent a letter to the respondent to reinstate
him in the work and to cancel his letter of resignation
sent by him on 12-5-2001 and he also submits threat
there has been no reply to this letter. The petitioner
had moved earth to heaven to reenter his job and
after failure of several the benefits of the petitioner
is arbitrary unjust and against the principles of
natural justice. Hence, the petitioner seeking proper
accounts for gratuity amount of the petitioner, for the
subsistence allowances from 11-5-2001 till his
retirement, for retirement benefits compensation for
his mental agony, damages for the false charges
against the petitioner and for costs of the litigation.
3. The point for consideration is that:
(1) Whether the dispute raised by petitioner
against the respondent to seek proper accounts for
gratuity amount, for the subsistence allowances from
11-5-2001 till his retirement, for retirement benefits,
compensation for his mental agony, and for damages?
(2) If justified, what is the relief entitled to?
(3) Whether the industrial dispute can be
allowed?
4. This Court has issued notice to the respondent.
Though, it was claimed by the respondent, called absent
on 17-4-2018 and hence, the respondent was set ex
parte. In the course of enquiry, on the side of the
petitioner PW.l was examined and Ex. P1 to Ex.P8 were
marked. Heard the petitioner side and documents
perused.
5. On this points No.1 and 2:
It is the contention of the petitioner that he
joined as temporary employee in the respondent’s
Society on 17-8-1973 and he was regularised on
1-6-1984 and he worked up to 11-5-2001. Further, it
is submitted that he worked as Technical Supervisor
deication towards work and the respondent Society
was not paying and the daily wages labourers were
given written request to the respondent Society to
settle the outstanding wages amount on 26-4-2001
and he prally requested several times to settle the
amount to the daily wage labourers. Further, it is
stated that the oral request of the petitioner has
created an aversion in the respondent towards the
petitioner and due to the above reasons, he
transferred to the Refrigeration Department on
16-4-2001 and he was suspended later on 11-5-2001,
with false allegations that he disobeyed the orders
and rules of the respondent’s Society and involved
in mala fide propaganda among the public. It is further
contended that the petitioner was resigned his
employment on 12-5-2001 to the respondent Society,
but, the respondent has accepted his resignation later
on 4-6-2001 and sent a letter to the respondent is to
reinstate in the work and seeking cancel his letter of
resignation sent by the petitioner on 12-5-2001 and
there is no reply to his letter, dated 4-6-2001. Further,
it is stated that the petitioner moved far re-enter
attempts in contacting the respondent ha had given
written representation to the respondent on
29-11-2004, the requesting to re-enter his job, yet
the respondent was idle to the letter, dated
29-11-2004. Thus, the petitioner herein was constraint
to issue a legal notice on 28-3-2005 through his
Lawyer to reinstate him in the work. The petitioner
further submits that there was no reply to the said
legal notice and the petitioner sent a written request
to the respondent Society on 31-5-2005 to
reinstatement him in job or to pay the subsistence
allowances.
(iii) The petitioner submits that, aggrieved by the
idleness of the respondent to the various efforts of
the petitioner and he moved to the Hon’ble High
Court of Madras and had filed Writ Petition
No. 49256 of 2006 and the same was decided in favour
of the petitioner and an order passed on 3-11-2010
directing the respondent to consider the representation
of the petitioner, dated 31-5-2005. The respondent
sent a letter to the petitioner on 3-4-2014 with false
allegations that the petitioner’s resignation impliedly
accepted by the respondent’s Society on 11-6-2001
and not handed over the scans belonging to the
213
12 March 2019]
LA GAZETTE DE L’ETAT
respondent Society and he misappropriated a sum of
` 48,300 when the petitioner’s letter of resignation on
12-5-2001. Thereafter, the respondent has sent a
Demand Draft for sum of ` 41,236 after deducting
the amount of
` 48,300 which deemed to be
misappropriated then which was received by the
petitioner. The petitioner has handed over the all
properties belongs to the respondent Society under
his custody and the accounts for cash and he sent a
letter to the respondent Society’ Secretary stating
that the handling over the all properties of the Society
which are under the custody of the petitioner
and the same was endorsed by then supervisor
R. Govindasamy, Technical Supervisor P. Kaliaperumal,
Supervisor D. Jayakumar, Superintendant P. Mathiazhagan
and the Head Constable of Peralam Police Station
HC 723, on 18-6-2001.
(iv) Further, the petitioner submits, that the
respondent sent a letter to the petitioner dated
3-4-2014 and a legal notice of the petitioner to the
respondent’s society of Karaikal and the Registrar of
Co-operative Society of Puducherry to settle his
outstanding salary, gratuity and other substantial
allowances of his retirement. And the petitioner had
lodged a complaint before the Labour Officer at
Karaikal for payment of his outstanding benefits
amount, gratuity and he filed a detailed counter
statement on 9-2-2016 and the matter was not settled
before the Labour Officer at Karaikal.
(v) The petitioner further submits thai he had filed
a complaint before the Labour Officer. Karaikal for
payment of his outstanding benefits and gratuity and
the respondent has also filed its detail counter
on 9-2-2016 but, the matter was not settled before the
Labour Officer and he approached the Court for Chis
claim. The depriviation of his job after taken efforts
in contacting the respondent and he given written
representation to the respondent Society on
29-11-2014 requesting for re-enter employment.
The respondent written a letter, dated 29-11-2014.
But, the petitioner has issued legal notice, dated 28-3-2015
to reinstate his job, and there was no reply by the
respondent Society. After that the petitioner has
sent written representation to the respondent on
31-5-2015 is to reinstate in the work or to pay the
subsistence allowances to him.
5. Further, it is stated that the petitioner moved to
the Hon’ble High Court of Madras and filed a Writ
Petition No. 49256/2006 and the same was decided in
his favour and the Hon’ble High Court has passed an
order on 3-11-2010 directed the respondent to
consider the request of the petitioner, dated
31-5-2015. The respondent sent a letter to the petitioner
on 3-4-2014 with false allegations that the petitioner’s
resignation inipliedly accepted by the respondent’s
Society on 11-6-2001 and not handed over the scans
belonging to the respondent Society and he misappropriated
a sum of ` 48,300 when the petitioner’s letter of
resignation on 12-5-2001. Thereafter, the respondent has
sent a Demand Draft for sum of ` 41,2367 after deducting
the amount of
` 48,300 which deemed to be
misappropriated then which was received by the
petitioner. The petitioner has handed over the all
properties belongs to the respondent Society under his
custody and the accounts for cash and he sent a letter
to the respondent Society’ Secretary stating that the
handling over all the properties of the Society which
are under the custody of the petitioner and the
same was endorsed by then Supervisor R. Govmdasamy,
Technical Supervisor P. Kaliaperumal, Supervisor
D. Jayakumar, Superintendant P. Mathiazhagan and the
Head Constable of Peralam Police Station HC 723, on
18-6-2001.
7. Further, it is stated by the petitioner, that the
respondent sent a letter to the petitioner dated 3-4-2014
and a legal notice of the petitioner to the respondent’s
Society of Karaikal and the Registrar of Co-operative
Society of Puducherry to settle his outstanding salary,
gratuity and other substantial allowances of his
retirement. And the petitioner had lodged a complaint
before the Labour Officer at Karaikal for payment of his
outstanding benefits amount, gratuity and he filed a
detailed counter statement on 9-2-2016 and the matter
was not settled before the Labour Officer at Karaikal.
So, the dispute raised by the petitioner was referred to
the Labour Court for adjudication.
8. reference of disputes to Boards, Courts or
Tribunals, (1) Where the appropriate Government is of
opinion that any industrial dispute exists or is
apprehended, it may at any time, by order in writing,—
(a) refer the dispute to a Board for promoting a
settlement thereof; or for “If any industrial dispute
exists or is apprehended, the appropriate Government
may”.
(b) refer any matter appearing to be connected
with or relevant to the dispute to a Court for inquiry; or
(c) refer the dispute or any matter appearing to
be connected with, or relevant to, the dispute, if, it
relates to any matter specified in the Second
Schedule, to a Labour Court for adjudication; or
(d) refer the dispute or any matter appearing to
be connected with, or relevant to, the dispute,
whether it relates to any matter specified, in the
214
LA GAZETTE DE L’ETAT
[12 March 2019
second schedule or the third schedule, to a tribunal
for adjudication: Provided that where the dispute
relates to any matter specified in the third schedule
and is not likely to affect more than one hundred
workmen, the appropriate Government may, if, it so
thinks fit, make the reference to a Labour Court under
clause (c): [Provided further that] where the dispute
relates to a public utility service and a notice under
section 22 has been given, the appropriate
Government shall, unless it considers that the notice
has been frivolously or vexatiously given or that it
would be inexpedient so to do, make a reference
under this sub-section notwithstanding that any
other proceedings under this Act in respect of the
dispute may have commenced;
3 Provided also that
where the dispute in relation to which the Central
Government is the appropriate Government, it shall
be competent for that Government to refer the
dispute to a Labour Court or an Industrial Tribunal,
as the case may be, constituted by the State
Government.
8. The concerned employee, namely, Thiru V. Ramakrishnan,
who has been examined as PW1. He has categorically
staled that he was employed as temporary employee
and regularised on 17-8-1973; and therafter, he was
regularised on 1-6-1984 and he worked up to
on 11-5-2001. PW.l further deposed that he joined as
Clerk and was promoted as Technical Supervisor and
was not promptly not in paying wages and to the daily
wages labourers,even inspite of several efforts taken by
the worker, and written request to the respondent to
settle outstanding wages on 21-6-2001. The said letter
of demanding daily wages by the labourers dated
26-4-2001 is evidenced from Ex. P1. Ex. P2 is the order
of suspension of the petitioner, dated 11-5-2001 issued
by the respondent Society. The petitioner handing over
all the properties to the respondent and it is evidenced
from Ex.P3 dated 18-6-2001. The petitioner has issued
legal notice under Ex.P4, dated 28-3-2015. That on
31-10-2015, a letter written by the respondent under
Ex.P5 to the respondent Society Ex. P6 is the copy of
order Hon’ble High Court of Madras in W.P. No. 49256/
2006, dated 3-11-2010. A letter sent by the respondent
to the petitoner as full and final settlement dated
3-4-2014. On 5-5-2014 a legal notice issued by the
petitioner to the Managing Director, Karaikal Co-op Milk
Producers Society and to the Assistant-Registrar
Co-operative Department, Karaikal and to Registrar
Co-operative Department, Karaikal. Though the petitoner
made several representations, the respondent management
was not amenable to settle the wages and other
monetary benfits as specified in the claim petition.
Further, it is stated by the petitioner - PW.1 that the
management has refused to acted upon, inspite of
representation made by the petitioner and the
respondent has not settled the wages and other
allowances amenable to the petitioner.
9. The petititoner - PW.l has specifically contended
that the industrial tribunal having jurisdiction to order
to give proper accounts regarding the gratuity amount
of the petitioner and pay the subsistence allowances
to the petitioner from 11-5-2001 till his retirement and
pay the retirement benefits. The respondent has not
appeared before the Tribunal even after receipt of the
notice sent by the Tribunal on the dispute. Further, the
testimonials of the petitioner, it is crystal clear that the
respondent was not, properly disbursed the outstanding
gratuity amount and subsistence allowances and his
retirement benefits amount from 11-5-2001, which were
mentioned in the claim statement. Further, it is
contended that, Not only the petitioner, but the
respondent Soceity was not properly in paying the
wages to the dialy wage labourers inspite of given
written request to settle the amount, but, the respondent
did not do so. So, this documents which were produced
by the workman would substantiate the contention of
the petitioner.
10. The petitioner has let in relevant and precise
documentary evidence to substantiate his contention
that his claim. The genuineness of claim is proved by
way of oral and documentary evidence. The burden is
on the petitioner to prove his claim by adducing relevant
reliable evidence. The petitioner has let in relevant
documentary evidence, namely, Ex.P1 to Ex.P8. ‘The
respondent has not come forward to arise any objection
to the documentary evidence namely, Ex.P1 to Ex.P8,
produced by the petitioner to show his claim which are
described in the claim statement.
Further, the petitioner has stated that though he
made several oral and written representations, the
respondent was not amenable and finally settle the
wages, subsistence allowances, retirement benefits till
the date of his retirement. Ultimately, on behalf of the
said employee the petitioner has raised the industrial
dispute before the Conciliation Officer and since the
conciliation failed, the same has been referred to this
Court for adjudication. The petitioner has filed his claim
Statement.
11. Under these circumstances on appreciating oral
and documentary evidence adduced on the petitioner
side, the Court hold that the petitioner is entitled for
the relief as claimed in the industrial dispute with regard
to his proper accounts, the gratuity amount and pay the
outstanding gratuity amount and pay the subsistence
allowances from 11-5-2001 till his date of retirement and
pay the retirement benefits alone. Accordingly, it is
decided the point. Point No. l and 2.
215
12 March 2019]
LA GAZETTE DE L’ETAT
Point No. 3
12. For the foregoing reasons discussed above and
as answered for the Points No. l and 2, and it is
conclude that this industrial dispute has deserves to
be allowed partly with regard to his proper accounts,
the gratuity amount and pay the outstanding gratuity
amount and pay the subsistence allowances from
11-5-2001 till his date of retirement and pay the
retirement benefits alone and regarding compensation
for his mental agony and damages for the claim of
alleged false charges against the petitioner is dismissed
and the Court is decided Point No. 3 accordingly.
13. In the result, the industrial dispute (Labour) is
allowed partly, and the respondent is hereby directed
to give proper accounts regarding gratuity amount and
pay the outstanding gratuity amount and pay the
subsistence allowances from 11-5-2001 till date of
retirement, pay the retirement benefits alone to the
petitioner. And, regarding the claim of the compensation
and damages for the alleged charges against the
petitioner is hereby dismissed. There is no order as to
costs.
The order typed by me in Laptop, corrected and
pronounced by me in the open Court on this the 5th
day of December, 2018.
C. KUMAR SARAVANAN,
Presiding Officer (FAC),
Industrial Tribunal-cum-Labour Court,
Puducherry.
List of petitioner’s witness:
PW.1 — 03-05-2018 V. Ramakrishanan
List of petitioner’s exhibits:
Ex.Pl — 26-04-2001 Letter of daily wages of
labourers - xerox copy.
Ex.P2 — 11-05-2001
Order of suspension given to
the petitioner - xerox copy.
Ex.P3 — 18-06-2001
Letter by petitioner while
handing over the respondent’s
properties - xerox copy.
Ex.P4 — 28-03-2005
Legal notice to the Chiaman of
the respondent’ Society.
Ex.P5 — 31-10-2005
Letter by the petitioner to
the respondent’s Society
Managing Director and the
Chairman of the Society.
Ex.P6 — 03-11-2010
Order of W.P. No. 49256/2006
of Hon’ble High Court of
Madras.
Ex.P7 — 03-04-2014
Letter of the respondent to
the petitioner as full and final
settlement communication of
disposal of the representation,
dated 31-10-2005.
Ex.P8 — 05-05-2014
Legal notice by the petitioner
to Respondent’s Society.
List of respondent’s witness: Nil.
List of respondent’s exihibits: Nil.
C. KUMAR SARAVANAN,
Presiding Officer (FAC),
Industrial Tribunal-cum-Labour Court,
Puducherry.
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