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668

Sentence arbitral du Travail

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Award of the Labour Court .. 668

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678

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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.



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