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Sentence arbitral du Travail

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2019 }

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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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





























































(i) 







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