La Gazette de L' État de Poudouchéry
The Gazette of Puducherry
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SOMMAIRES
CONTENTS
Page
Page
..
668
Sentence arbitral du Travail
.. 668
Award of the Labour Court .. 668
de Tribunal.
..
671
Notifications du Gouvernement .. 671
Government Notifications .. 671
..
676
Avis d’ appel d’ offres
.. 676
Tender Notices
.. 676
..
678
Etablissements dangereux
.. 678
Dangerous establishments
..
678
..
679
Annonces
.. 679
Announcements
..
679
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Registered No. PY/44/2018-20
WPP No. TN/PMG(CCR)/WPP-88/2018-20
Dated : 27-8-2019
Price : ` 14-00
[ 667 ]
2019 }
|
27 {
No.
35
Poudouchéry
Mardi
27
Août
2019 (5 Bhadra 1941)
No.
Puducherry
Tuesday
27th
August
2019
668
LA GAZETTE DE L’ETAT
[27 August 2019
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 97/AIL/Lab./T/2019,
Puducherry, dated 8th July 2019)
NOTIFICATION
Whereas, an Award in I.D (L) No. 16/2017, dated
20-02-2019 of the Industrial Tribunal-cum-Labour Court,
Puducherry, in respect of the industrial dispute between the
management of M/s. Jayaprakash Narayanan Co-operative
Spinning Mill, Karaikal and Thiru M. Dhanasekaran,
Karaikal, over reinstatement with back wages 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.
Wednesday, the 20th day of February 2019
I.D. (L) No. 16/2017
Thiru M. Dhanasekaran,
No. 26, Sivan Koil Street,
Poovam, Varichikudi,
Karaikal.
. . Petitioner
Versus
The Managing Director,
M/S. Jayaprakash Narayanan Co-operative
Spinning Mill,
Karaikal.
. . Respondent
This Industrial Dispute coming on 01-02-2019 before
me for final hearing in the presence of Thiru N. Ramar,
Secretary of Karaikal CITU for the petitioner, and the
respondent M/s. Jayaprakash Narayanan Co-operative
Spinning Mill, Karaikal being called absent and set
ex parte, upon hearing the petitioner and perusing the
case records, this Court passed the following:
AWARD
1. This Industrial Dispute arises out of the reference
made by the Government of Puducherry vide G.O. Rt.
No. 43/AIL/Lab./T/2017, dated 06-04-2017 of the Labour
Department, Puducherry to resolve the following
dispute between the petitioner and the respondent, viz.,
(a) Whether
t h e
d i s p u t e
r a i s e d
b y
Thiru M. Dhanasekaran against the management
M/s. Jayaprakash Narayanan Co-operative Spinning
Mill, Karaikal, over his reinstatement with wages and
continuity of his service from 30-08-2014, to his
continuing is justified?
(b) If justified, to what relief the workman is
entitled to?
(c) To compute the relief, if any, awarded in terms
of money, if it can be so computed?
The averments of the claim statement are as follows:
2. The petitioner has filed the claim statement
wherein, it is stated that he had joined the respondent
Spinning Mill as trainee and threafter, he joined as Sider
in the year 2000 and he was permanent workman in the
respondent’s Spinning Mill. Further, it is stated that the
respondent has given a loss of pay leave from
01-02-2013 to 01-02-2015 but, the respondent has called
the petitioner without avaling the loss of pay leave fully
for doing work and on 10-02-2014, the petitioner was
joined the duty and he paid a sum of ` 12,000 per month
as salary. That being so, the petitioner has suffered ill
health from 01-03-2014 to 07-03-2014 on E.S.I. leave and
he took treatment in the Vinayaka Mission’s Hospital
on E.S.I. and undergone surgery and he discharged
from the hospital on 21-04-2014 and further is on leave
from 22-04-2014 to 27-04-2014. In the mean time, the
respondent has issued a show cause notice to the
petitioner on 15-04-2014 and the said letter has not
received so far. The petitioner has wrote a reply on
30-04-2014 and stating that he has suffered from ill
health and so, he could not attend the work and he
stated that he would joined the duty after recovery of
his ill health and he joined the duty on 30-05-2015. But,
the respondent refused to give work and not to allowing
the petitioner and refused to consider the medical
certificates, instead of that the respondent has
dismissed the petitioner from 30-08-2014 from the
employment and the respondent issued dismissal order,
dated 30-08-2014 to the petitioner. Inspite of several
request made by the petitioner for his reinstatement of
the employment and it is ended vain and the petitioner
has raised the Labour dispute approached the Labour
Department on 02-02-2015. But, as the matter was
not settled before the Labour Officer at Karaikal.
669
27 August 2019]
LA GAZETTE DE L’ETAT
The respondent management never cared about the
health condition of the petitioner and he would not
consider the same and there is sufficient opportunity
given to the petitioner and the act of the respondent is
against the rules and law under Standing Order 21
without making any enquiry and therefore, he has
approached this Court that the deprivation of the
benefits of the petitioner is arbitrary, unjust and against
the principles of natural justice under standing order 17
and 21 of the respondent’s mill and the Production
Officer have no authority to dismiss the petitioner
without conducting any enquiry and without any reason,
the petitioner was dismissed from his employment vide
letter given by the respondent management, dated
30-01-2015 and the dismissal order is not valid under
Law. Therefore, the petitioner prayed this Court to direct
the respondent Spinning Mill to reinstatement of the
petitioner with back wages and give continuity of his
service in the respondent’s mill and to pay all the
subsistence allowances to the petitioner.
3. After due service of notice the respondent
appeared before this Court along with their Counsel and
even after granting sufficient opportunities the
respondent has failed to file their objection as a counter
statement and the respondent did not filed any
objection or counter statement and hence, the respondent
was set ex parte.
4. In the course of enquiry, on the side of the
petitioner PW.1 was examined and Exs.P1 to Ex.P11 were
marked. Heard the petitioner side and the case records
are perused.
5. The point for determination is:
“Whether, the dispute raised by the petitioner
against the respondent management, over his
reinstatement with wages are justified or not and if
justified, what is the relief entitled to the petitioner?”.
6. On the point :
The case of the petitioner is that the respondent
has dismissed the petitioner from his service without
conducting any enquiry and the act of the respondent
management is against the natural justice and it is
an arbitrary dismissal order and it is not valid under
law and the petitioner pleaded to reinstatement with
back wages and all allowances. The evidence
adduced and the exhibits marked by the petitioner
are carefully considered. It is the evidence of the
petitioner PW.1 that the respondent Spinning Mill was
not prompt in giving employment to the petitioner
and the petitioner was dismissed from 30-08-2014
from his service without conducting any enquiry and
without giving opportunity and the respondent
management has issued a letter to the petitioner on
30-01-2015 is arbitrary against the principles of
natural justice.
7. In support of his contention, the petitioner has
adduced his oral evidence, the petitioner examined as
PW.1 and documents exhibited as Ex.P1 to Ex.P11. Ex.P1,
dated 02-02-2015 is the copy of letter of the petitioner
to the respondent management for raising dispute and
approached the Labour Department, Karaikal. Ex.P2 is
the copy of order (office order) of Appointment of the
petitioner on regular basis, dated 06-03-2000. Ex.P3 is
the copy of letter, dated 14-03-2013 by the respondent
to the petitioner for giving JPCOSPIN- LOP Leave from
01-02-2013 to 01-02-2015 regarding leave application of
the petitioner, dated 23-01-2013 and Loss of Pay from
01-02-2013. Ex.P4 is the copy of letter issued, dated
27-10-2014 by the respondent to call upon the petitioner
to join the duty. Ex.P5 is the copy of the discharge
summary of the petitioner issued by Vinayaka Mission’s
Medical College Hospital for the petitioner’s left side
Sctotal swelling for 6 months and mild lower abdominal
pain. Ex.P6 is the Medical Certificate for Leave or
Extension of Leave or Commutation of Leave for the
petitioner’s complicated ill health. Ex.P7 is the copy of
show cause notice, dated 15-04-2014 issued by the
respondent to petitioner for non attending the duty
without any information to the management. Ex.P8 is the
copy of reply given by the petitioner to the respondent’s
management, dated 30-04-2014. Ex.P9 is the copy of the
dismissal order of the respondent, dated 28-08-2014.
Ex.P10 is the xerox copy of the Standing Order of the
Jayaprakash Narayanan Spinning Mill, Karaikal. The
dispute has been raised by the petitioner before the
Labour Department against the management/respondent
herein for seeking reinstatement with back wages and
because of the petitioner was removed from service
without conducting enquiry and he terminated from
service only on by proper procedure due to his
unauthorized absence and neglecting to join service
even after many noitces. Ex.P11 is the copy of the failure
report of the Labour Officer, Labour Department,
Karaikal and there was no improvement in this issue
conciliation and no amicable settlement could be arrived
and the case ended in failure.
8. From the above claim statement, the petitioner’s
evidence and documents, it is clearly established by the
petitioner that he has joined at the respondent as
Operative Trainee and joined duty as Sider in the year
2000 as a regular employee basis and his basic pay
would be `
2,626 with variable DA, house rent
allowances, special pay, and it is proved under Ex.P2.
Due to the ill health of the petitioner he would not
670
LA GAZETTE DE L’ETAT
[27 August 2019
attended the duty from 01-03-2014 to 07-03-2014 leave
on E.S.I. and he came to the respondent mill to join the
duty on 27-04-2014, but, the respondent refused to
accept his request without verifying the medical
certificate of the petitioner, the respondent has issued
a show cause notice on 15-04-2014 and it is evidenced
from Ex.P7. As per the Ex.P9, it would clear that the
petitioner was dismissed from duty without any
conducting enquiry and without consider his request
and his medical certificates. Further, it is found from the
evidence of the petitioner based on the Ex.P11 there was
no amicable settlement before the Labour Officer and
the dispute is raised by the petitioner was ended vain
before the Labour Department. For which the petitioner
raised the industrial dispute before the Conciliation
Officer and the failure conciliation report has been sent
to the Labour Court in G.O. Rt. No. 43/AIL/Lab./T/2017,
dated 06-04-2017. Further, the party raising the dispute
in accordance with the rule 10B of the Industrial
Disputes (Central Rules), 1957 and conciliation was
failed and that therefore, this reference has been made
to this Court to decide whether the dispute raised by
the petitioner against the respondent management, over
his reinstatement with wages from 30-08-2014 under
Ex.P9 is justified or not. On perusal of the Ex.P11 would
go to shows that the parties are stand on own way
there was no possible for conciliation and make
settlement. But, here there was no enquiry report
submitted either by the petitioner or the respondent to
prove that the enquiry was conducted properly and
sufficient opportunities given to the petitioner for his
absence of the employment, even after the petitioner
showing his inclination to join his duty, but, the
opportunity has not given to the petitioner. In this case,
there was no sufficient evidence on the respondent side
to shows that they are acted properly by adopting
procedure for terminating the service of the petitioner.
9. The Court while arriving at its verdict made
reference to Supreme Court’s judgment in the case of
“Sujanpur vs. Surinder Kumar”, wherein, the Apex Court
observed that reinstatement is not automatic but, it was
for the Labour Court to consider the facts of each case
to ascertain the relief that can be granted in terms of
Section 11A of the Industrial Disputes Act, 1947. 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.
10. 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
victimisation 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.”
11. In this issue, the respondent has not conducted
proper enquiry about the misconduct of the petitioner.
Domestic
enquiries
in
industrial
adjudication
Introduction Disciplining a workman is one of the key
methods of curtailing disputes amongst them and
achieving maximum productivity. Accordingly, the
Supreme Court of India (“SC”) in Hombe Gowda
Educational Trust vs. State of Karnataka, stated that
giving Managers the power to punish a workman
according to Law, even if, the punishment may result
in some hardship is important. But, one needs to bear
in mind that conducting disciplinary proceedings
against a workman is most controversial and often lead
to long drawn out cases. Hence, the management of any
industrial establishment must cautiously approach such
proceedings and strictly follow the procedure laid down
by judicial precedents. The present bulletin focuses on
the requirements of holding a domestic enquiry with
respect to indiscipline on part of a workman, the
procedure to be followed thereunder and the impact of
section 11-A of the Industrial Disputes Act, 1947, on
domestic inquiries.
12. On the other hand, though the respondent
appeared before this Court, they have not filed any
counter and subsequently due to the absence, the
671
27 August 2019]
LA GAZETTE DE L’ETAT
respondent was set ex parte. Considering the fact that
the petitioner has established his case, it is to be held
that the industrial dispute raised by the petitioner
against the respondent Jayaprakash Narayanan
Spinning Mill, Karaikal, over his reinstatement with
wages from 30-08-2014 and the claim to be continuing
service in the respondent Spinning Mill is justified and
the petitioner is entitled for the claim as prayed by him
and as such the petition is deserves to be allowed.
13. In the result, the petition is allowed and the
industrial dispute raised by the petitioner against the
respondent, over his reinstatement with back wages and
to be continuity service is justified and an Award is
passed by directing the respondent to reinstatement of
the petitioner with back wages as per rules with all
allowances. There is no order as to cost.
Typed by me in Laptop, transcribed by me, corrected
and pronounced by me in the open Court on this the
20th day of February, 2019.
C. KUMAR SARAVANAN,
Presiding Officer (FAC),
Industrial Tribunal-cum-
Labour Court, Puducherry.
————
List of petitioner’s witness:
PW.1
—
01-02-2019
M. Dhanasekaran
(Petitioner)
List of petitioner’s exhibits:
Ex.P1 — 02-02-2005
Copy of letter of the
petitioner to the respondent
management for raising
industrial dispute.
Ex.P2
— 06-03-2000
Copy of order (office
order) of Appointment of
the petitioner on regular
basis.
Ex.P3
—
14-03-2013
Copy of letter by the
respondent to the petitioner
for giving JPCOSPIN-LOP
Leave from 01-02-2013 to
01-02-2015.
`
Ex.P4
—
27-10-2014
Copy of letter issued by
the respondent to call
upon the petitioner to join
the duty.
Ex.P5
—
21-04-2014
Copy of the discharge
summary of the petitioner
issued by the Vinayaka
Mission’s Medical College
Hospital.
Ex.P6
—
....
Medical Certificate for
leave or extension of leave
or commutation of leave.
Ex.P7
—
15-04-2014
Copy
of
show
cause
notice, dated 15-04-2014
issued by the respondent
to petitioner.
Ex.P8
—
30-04-2014
Copy of reply given by the
petitioner.
Ex.P9
—
28-08-2014
Copy of dismissal order of
the petitioner.
Ex.P10 —
23-05-2003
Copy of standing orders
of the respondent’s mill.
Ex.P11 —
14-12-2016
Copy of the Failure Report
of the Labour Officer,
Karaikal.
List of respondent’s witnesses: NIL
List of respondent’s exhibits: NIL
C. KUMAR SARAVANAN,
Presiding Officer (FAC),
Industrial Tribunal-cum-
Labour Court, Puducherry.
[(iii)-]