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No.
22
Poudouchéry
Mardi
2
Juin
2020 (12 Jyaistha 1942)
No.
Puducherry
Tuesday
2nd
June
2020
ÿ√VÚ·¶¬ÔD
SOMMAIRES
CONTENTS
√¬ÔD
Page
Page
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360
Sentence arbitral du travail
.. 360
Award of the Labour Court
.. 360
de tribunal.
∂´∑ ∂§s¬ÁÔÔ^
..
371
Notifications du Gouvernement
.. 371
Government Notifications
.. 371
ƒVu≈§¬ÁÔÔ^
..
377
Annonces
.. 377
Announcements
..
377
]Ú›>D
..
377
Corrigenda
.. 377
Corrigenda
.. 377
360
LA GAZETTE DE L’ETAT
[2 June 2020
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 41/AIL/Lab./T/2020,
Puducherry, dated 17th March 2020)
NOTIFICATION
Whereas, an Award in I.D. (L) No. 32/2017, dated
21-01-2020 of the Industrial Tribunal-cum-Labour Court,
Puducherry, in respect of the Industrial Dispute between
the management of M/s. Nexus Electro Steel Ltd., Unit-I,
Mettupalayam, Puducherry and Thiru J. Anandan and
A. Sakthivel, Puducherry, over re-instatement and
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 23-05-1991, 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 AT
PUDUCHERRY
Present : Thiru V. PANDIARAJ, B.SC., LL.M.,
Presiding Officer.
Tuesday, the 21st day of January, 2020.
I.D. (L) No. 32/2017
1. J. Anandan,
2. A. Sakthivel
Rep. by K. Mohandoss,
State General Secretary,
NRTUC of Nexus Electro Employees. . . Petitioners
Versus
The Chairman/Managing Director,
M/s. Nexus Electro Steel Ltd., Unit-I,
Plot No. B-53, 54 and 55,
PIPDIC Industrial Estate,
Mettupalayam, Puducherry.
. . Respondent
This industrial dispute coming on 06-01-2020 before
me for final hearing in the presence of Thiruvalargal
R.T. Shankar, P. Suresh, A. Ashok Kumar, B. Balamurugan
and L.K. Saravanan, Counsels for the petitioners and
Thiruvalargal K. Velmurugan and P. Preethi, Counsels
for the respondent, upon hearing, upon perusing the
case records, after having stood over for consideration
till this day, this Court passed the following:
AWARD
1. This Industrial Dispute has been referred by
the Government of Puducherry as per the G.O. Rt.
No. 82/AIL/Lab./T/2017, dated 17-05-2017 for adjudicating
the following:-
(a) Whether the dispute raised by Thiruvalargal
J. Anandan and A. Sakthivel, Puducherry against the
management of M/s. Nexus Electro Steel Ltd.,
Mettupalayam, Puducherry, over re-instatement and
back wages is justified or not? If justified, what relief
they are entitled to?
(b) To compute the relief if any, awarded in terms
of money if, it can be so computed?
2. The brief averment of the petition filed by the
petitioner:-
(i) The respondent is a Public Limited Company
having the business of production of steel plates,
used in transformers. The petitioners are the
employees of the respondent company and they are
the Officer Bearers of the union namely, NRTUC,
which has one K. Mohandoss as General Secretary.
The petitioner were working in the Production
Department from 2006, receiving very low salary of
` 7,500 per month and they demanded wage increase/
revision from the respondent employer and therefore,
they are in the process of forming a Trade Union for
collective bargaining, negotiations with the
respondent. The respondent sensed the formation of
Trade Union and started all sorts of unfair labour
practices against the members of the Trade Union.
It has tried to deprive the workman from claiming
their legal rights under Labour Laws. It has also tried
to wipeout the petitioners and their Union from the
respondent company. To achieve the same, it has
transferred the petitioners from Puducherry to
Chennai and dismissed the petitioners and thereafter,
it has revoked the order after the Conciliation
Proceedings before the Labour Officer, Puducherry.
Thereafter, the respondent management foisted false
case of theft of silicon-sheets weighing 1.5 tonnes
against this petitioners and a false case was also
registered in Mettupalayam Police Station, by
misusing their powers. The management has
suspended these petitioners and conducted a formal
ex parte enquiry without giving proper opportunity
to these petitioners to represent their case and it has
violated the principles of natural justice during the
361
2 June 2020]
LA GAZETTE DE L’ETAT
enquiry proceedings. There was no reference in the
enquiry report as to the date of examination of
management side witnesses and it was also silent
about their evidence. It has not contained any
explanations, as to, how the charges were proved.
It has failed to consider the justifications given by
these petitioners in its report. To wipeout the Trade
Union from the respondent management it has
passed the dismissal order on 25-10-2014 against
these petitioners. The management has taken the law
into their hands, to do all sorts of unfair labour
practices against these petitioners to deprive them
from claiming any legal rights. The enquiry was not
conducted in a free and fair manner. They have
refused to give sufficient opportunities to these
petitioners to defend their case. It has also refused
to mark not even a single document on the side of
these petitioners and it has deliberately issued the
ex parte report. These petitioners were not permitted
to examine even single witnesses on their part. The
dismissal order was passed with crucial mind.
Though it is not possible to commit theft of 1.5
silicon-sheets by two men, the report was given in
favour of the management. The witnesses shown in
the F.I.R was also, not belongs to be company. They
were invented for the purpose of filing the abovesaid
case. The management has not taken any steps to
file complaint against the security personnel who
worked in the factory at the relevant point of time.
These petitioners were dismissed in violation of
Section 33 of Industrial Disputes Act, 1947. These
petitioners have not gainfully employed after the
termination. Therefore, these petitioners have to be
reinstated with full back wages and with all other
monetary benefits and this industrial dispute have
to be allowed as justified.
3. The brief averment of the counter filed by the
respondent:-
(i) The respondent denied all the allegations
except those are specifically admitted in its counter.
The petitioners were employed as factory supervisor
and their last pay drawn wage is ` 8,500 per month.
They cannot be treated as workman under
section 2(s) (iv) of the Industrial Disputes Act and
therefore, this Court is not having jurisdiction to
entertain his application and it lias to be dismissed
in limine. The petitioner has filed this petition
through the Trade Union by namely NRTUC of Nexus
Electro Employees Union, but, it is not a registered
one, under the Trade Union Act, 1926 and hence, this
industrial dispute has to be dismissed.
(ii) The respondent management has not threatened
the members of the Trade Union as alleged in the
claim petition and it has not induced anybody to
come out from the Trade Union. The respondent
management has not involved in any kind of threat,
by saying that they will loose more and more. Further,
there is no such Trade Union as alleged in the claim
petition. The respondent management is facing heavy
competition and financial crisis in the international
market and it is getting very few orders from its
customers for transformer lamination work. It has
incurred heavy loss during 2013 to 2017. The
respondent management was almost on the verge of
closure due to financial crisis, non-cooperation and
pressure by their bankers. In order to meet out the
cost of production and administrative expenses it has
decided to start the new value added process i.e.,
core building in the Pondicherry unit. Its sister
concern M/s. Current Electricals Limited, Chennai is
doing the same job of core building at Chennai.
(iii) The management has decided to send one
supervisor from Pondicherry unit to Chennai, so as
to learn the process of core building for shorter
period and to teach the same to the remaining
supervisors in Pondicherry unit. Therefore, it has
transferred the petitioner by name Anandan to the
Chennai unit for the purpose of learning the process
of core building. But, the so called Anandan made
wrong propaganda among the other employees by
stating that the management has decided to transfer
all the employees to Chennai unit and thereby it has
decided closed down the Puducherry unit shortly.
Further, the petitioners by name Sakthivel and
Anandhan along with four other supervisors confined
the Executive Director in the factory premises when
he is about to leave to Chennai on 14-03-2013.
Further, on 15-03-2013 the petitioners stopped the
production work and forcibly prevented the other
workers from doing any sort of work in the factory.
The Work Manager by name, R. Arumugam instructed
them to resume their work, but, they have dis-obeyed
his words and prevented the others from doing their
work. On 16-03-2013 these petitioners and other
workers went on strike inside the factory premises
and they have caused a production loss of ` 3,00,000
per day to the management. The management has
dismissed the petitioner by name Sakthivel,
Ananadhan and four other supervisors after
conducting the Disciplinary Proceedings in fair
manner. Thereafter, they have approached the Labour
Officer, (Conciliation), Puducherry on 22-05-2013.
During the Conciliation Proceedings they have
tendered apology letter and they were reinstated on
31-07-2013 as per the 12(3) settlement in the presence
of the Labour Officer (Conciliation), Puducherry.
362
LA GAZETTE DE L’ETAT
[2 June 2020
(iv) During the month of April 2013 the Manager
by name R. Arumugam and the staff by name,
Manoharan and Sugumar inspected the go down
where the silicon-sheets were kept. To their shock
and surprise it was found that 1.5 tonnes of silicon-
sheets found to be missing. On enquiry by the said
Arumugam with staffs and employees it was found
that the supervisors by name Sakthivel and
Anandhan have jointly committed theft of the
silicon-sheets weighing 1.5 tonnes from the factory
premises. In this regard, a theft case was registered
in Cr.No. 115/2013 on 11-12-2013 in Mettupalayam
Police Station and in pursuance of that these
petitioners by name, Sakthivel and Anandane were
remanded to Judicial custody and they got released
on bail. Thereafter, they were suspended on
24-12-2013 for the charge of theft. The charge-memo,
dated 04-03-2014 was also issued to the petitioners.
Mr. G. Arumugam, Advocate was appointed as an
Enquiry Officer in this regard. The petitioner
Sakthivel and Anandane has wantonly prolonged the
Enquiry Proceedings by seeking unnecessary
adjournments right from the date commencement till
the date of conclusion. They have also got
unnecessary adjournment under the pretext of
appointment of defence Assistance. Though the
Enquiry Officer has given sufficient opportunity,
these petitioners failed to appoint anybody for their
defence and failed to cooperate with the proceedings.
The management has examined Arumugam, Iyyadurai
and Krishnaraj as their witness on the side of the
management. It has marked 6 exhibits during the
Enquiry Proceedings. The Enquiry Officer has
conducted the entire proceedings by following
principles of natural justice and he has given fair
chances to these petitioners to defend themselves
and he has submitted his report on 16-10-2014.
Thereafter, these petitioners have given an undated
representation to the management and to the Enquiry
Officer for reopening of the enquiry proceedings.
They have delayed the proceedings by showing their
health condition and the pendency of the case before
the Hon’ble High Court, Madras, and they have
quoted the same reasons for reopening. Per which
the management has given a detailed reply on
24-01-2015, wherein, it has stated that the Enquiry
Proceedings were adjourned at the request of these
petitioners on 08-08-2014, 22-08-2014 and 08-09-2014.
Further, the Enquiry Officer has made these petitioners
as ex parte as a lost resort on 23-01-2014. Secondly,
it has stated that these petitioners have not produced
any Medical Certificate regarding their bad health
condition. Further, these petitioners have not produced
the case number pending before the Hon’ble
High Court and they have given S.R. number only.
Further, this petitioner were set ex parte and
therefore, the further hearing dates were not informed
to them. Further, the management has given
subsistence allowance to these petitioners as per law.
The management has dismissed these petitioners for
their proven misconduct after adopting all the legal
formalities. The management has issued the gratuity
amount by cheques, though they were not entitled
for any gratuity amount. The petitioner has suppressed
all these facts and filed the claim statement with
mala fide intention and they were not entitled for any
claim as claimed in the claim petition and hence, this
industrial dispute has to be dismissed with cost.
4. On the side of the petitioners only one witness
was examined and Ex.P1 to Ex.P41 was marked. On the
side of the respondent two witnesses were examined and
Ex.Rl to Ex.R63 was marked.
5. The petitioner side Counsel argued that these
petitioners functioned as the Office Bearers of the Trade
Union namely, Nexus Electro Thozhilalar NRTUC and
hence, they were victimized by way of the charge-sheet,
dated 18-03-2013. It is further argued, that these
petitioners are coming under the category of workmen
under the respondent management and they cannot be
treated as supervisor as alleged in the counter. The
petitioner side Counsel further argued that these
petitioners were falsely alleged to have committed theft
of silicon-sheets weighing 1.5 tonnes and thereby they
were subjected to Disciplinary Enquiry, which was
conducted in a biased manner and against the principles
of natural justice. Further, the petitioner side Counsel
argued that these petitioners were not given chances
to cross-examine the witnesses and they were not
allowed to produce their defence witnesses and
documents. It is further argued that it is impossible to
commit theft of 1.5 tonnes of silicon-sheets and
therefore, these petitioners were falsely charge-sheeted,
and they were subjected to false Criminal case also. The
petitioner side Counsel argued that the respondent
management has adopted the unfair labour practices
which was brought into light by these petitioners
and therefore, they were falsely shown as accused in
Cr.No. 115/2013 of Mettupalayam Police Station,
Puducherry, for the alleged offence under section 381
IPC r/w 34 IPC. The petitioner side Counsel further
argued that no action was taken by the management
against the security personnel, though they were on
duty all along the period of alleged commission of theft.
It is further argued that the management has failed to
examine the eye witnesses to prove the alleged
commission of theft by these petitioners. It is also
363
2 June 2020]
LA GAZETTE DE L’ETAT
argued by the petitioner Counsel that the entire factory
was under CCTV surveillance and if at all any offence
is committed in and around the factory premises, then
it could he, very well find out, from the CCTV footage.
But, the respondent management has failed to produce
the CCTV footage to prove the alleged misconduct of
theft. It is further argued that no eye witnesses were
examined in the disciplinary proceedings. It is further
argued that the so called eye witnesses by name, Ajay
and Chand Basha were not examined by the Enquiry
Officer. Further, the enquiry report does not contain the
date of examination and the name of the witnesses
examined on the side of the respondent. It is further
argued that, the enquiry report was silent about the
justification given by these petitioners. It is further
argued that these petitioners were not permitted to
participate in the enquiry proceedings and it was
conducted behind the back of these petitioners. The
Enquiry Officer has not fairly and properly conducted
the enquiry and has given report against these
petitioners without necessary proof and evidences and
hence, he prayed to allow this industrial dispute as
justified one.
6. The respondent side Counsel argued that these
petitioners are not workmen under section 2(s)(iv) of
Industrial Disputes Act and therefore, this industrial
dispute is fit for dismissal in toto. It is further argued
that there is no Trade Union as alleged in the claim
petition namely Nexus Electro Thozilalargal NRTUC
and hence, the present industrial dispute filed under
section 10(B) of the Industrial Disputes Act is not
maintainable from the beginning itself. It is further
argued the Disciplinary Proceedings were conducted in
a fair and proper manner and these petitioners have
purposefully failed to appear before the Enquiry Officer
and thereby by dragged the matter. It is further argued
that, since, these petitioners were set ex parte for their
willful non-appearance before the Enquiry Officer and
they cannot claim anything before this Court and hence,
he prayed to dismiss the claim made by these
petitioners.
7. Points for consideration:
Whether the dispute raised by Thiruvalargal
J. Anandan and A. Sakthivel, Puducherry, against the
management of M/s. Nexus Electro Steel Ltd.,
Mettupalayam, Puducherry, over, re-instatement and
back wages is? To compute the relief if any, awarded
in terms of money if, it can be so computed?
8. On the Point:
The first limb of argument on the side of the
respondent is that these petitioners are not workmen
and they have worked as supervisors in the
respondent factory and therefore, they cannot be
considered as workmen as per section 2(s) (iv) of
Industrial Disputes Act 1947. Per contra the petitioner
side Counsel argued that these petitioners are
workmen in the respondent management and they
have not worked as supervisors at any time in the
respondent management and hence, he prayed to
reject the argument advanced by the respondent
Counsel in this regard. In support of his argument
he has requested this Court to consider the
document, dated 31-07-2013 (Ex.P20) wherein, these
petitioners have been shown as workmen. This Court
inclined to go through the document marked as
Ex.P20, dated 31-07-2013. The abovesaid document
is nothing, but, the 12(3) settlement arrived between
the management and the workmen in the presence of
the Conciliation Officer, Puducherry. As per the
abovesaid settlement, dated 31-07-2013, the dismissal
order passed by the respondent management against
6 supervisors including the petitioners for the
alleged incident of gherao of the Executive Director
of the company on 14-03-2013, in agitation of their
transfer order, dated 20-03-2013 (Ex.P7) was amicably
settled later on 31-07-2013 (Ex.P20), In Ex.P20 these
petitioners signed as representative of the workmen
only. Their category or designation was not
specifically mentioned in the abovesaid document.
Therefore, from and out of the abovesaid document
Ex.P20, this Court was unable to come to the
conclusion that these petitioners are the workmen at
the relevant point of time.
9. At this juncture, this Court inclined to go through
the other documents that were marked on either side.
On the side of these petitioners Ex.P1 and Ex.P2 was
marked. It was the document of show-cause notice, for
the previous incident that took place on 14-03-2013 and
on subsequent, dates 15-03-2013 and 16-03-2013. In Ex.Pl
and Ex.P2 these petitioners were shown as supervisors
and not as workmen. Furthermore, as per the claim
statement these petitioners said to have received salary
of ` 7,500 per month. Hence, as per the abovesaid
pleadings also these petitioners cannot be considered
as workman under section 2 (s) (iv) of the Industrial
Dispute Act. Further, these petitioners have marked the
document, dated 28-03-2013 as Ex.P9, wherein, the
petitioner by name Anandane has stated that the
respondent management has extracted supervisory work
from him. Similarly, the other petitioner by name
Sakthivel also stated the same fact in his letter, dated
28-03-2013 which was marked as Ex.P10. Thus, from the
Ex.P9 and Ex.P10, this Court was able to come to the
conclusion that these petitioner themselves admitted
that they worked as supervisors in the respondent
management. Furthermore, these petitioners themselves
marked Ex.P25, dated 11-12-2013, F.I.R in which their
364
LA GAZETTE DE L’ETAT
[2 June 2020
occupation was shown as supervisors. Further, in
Ex.P33, P35 and P36 these petitioners were shown as
supervisors in the respondent factory. Furthermore, the
petitioner by name Sakthivel himself admitted that he
worked as supervisor in the respondent factory in his
letter, dated 30-06-2015 which was marked as Ex.P38
adressed to the Labour Officer (Conciliation),
Puducherry. Similarly, he again confirmed his
designation as supervisor in his letter, dated 23-07-2015
marked as Ex.P39 addressed to the Labour Officer
(Conciliation), Puducherry. Furthermore, in the
document, dated 30-11-2015 marked as Ex.P40
addressed by the Trade Union to the Labour Officer
(Conciliation), Puducherry, the Trade Union has shown
these petitioners as supervisors to the contract
employees in the respondent company. Thus, it is clear
from Ex.P1, P2, P9, P10, P25, P33, P35, P36, P38, P39
and P40, that these petitioners worked as supervisors
in the respondent factory.
10. At this juncture, this Court inclined to go
through the documents marked on the respondent side
such as Ex.R1 to R15 and Ex.R57 to R60. The documents
marked as Ex.Rl to R4 are nothing, but, the leave
applications submitted by these petitioners before the
respondent management during their service at various
of point of time and in these documents, these
petitioners shown them as supervisors. Thus, Ex.R1 to R4,
crystal clearly proved that these petitioners worked as
supervisors in the respondent factory. Ex.R5 to R10 are
the letters written by these petitioner to the respondent
management at various point of time. In all these letters,
these petitioners mentioned themselves as supervisors
under the respondent management. Thus, it is also clear
from Ex.R5 to R10 that these petitioners are not workmen,
but, they have worked as supervisors in the respondent
management. Furthermore, on perusal of Ex.R11 to R15,
it is found that the other petitioner by name Sakthivel
also worked in the abovesaid factory as supervisor.
Ex.R11 to R15, the leave letters of the petitioner
Sakthivel clearly indicates that his nature of work in the
respondent factory as supervisor only. Further, the
petitioner by name, Anandan and Sakthivel has sent
individual letter on 17-02-2015 to the Labour Officer
(Conciliation), Puduchery. The abovesaid documents
were marked as Ex.R57 and R58, wherein, the petitioners
themselves admitted their designation as supervisor in
the very first line of the first paragraph itself. In Ex.R61,
the failure report has also stated these petitioners as
supervisors. Hence, from and out of the abovesaid
documents this Court was able to come to the
conclusion that these petitioners worked as supervisors
and not as workmen in the respondent factory. Hence,
the argument advanced by the respondent Counsel in
this regard was accepted and these petitioners were
considered as supervisors and not as workman and it
was answered in favour of the respondent management.
11. The next limb of argument that was advanced by
the respndnet Counsel is that there is no registered
Trade Union in the name of Nexus Electro Thozilalar
NRTUC, Puducherry. Per contra, the petitioner side
Counsel argued that the NRTUC is the registered Trade
Union and the Nexus Electro Thozilalar NRTUC,
Puducherry is an affiliated one with the main Trade
Union by name NRTUC. Further, the petitioners has not
produced any registration number for the Trade Union
namely, Nexus Electro Thozilalar NRTUC, Puducherry.
Therefore, the argument advanced in this regard that
these petitioners Trade Union was not in existence as
alleged by the respondent Counsel is accepted.
However, the abovesaid fact does not affect or
influence the independent decision of this case.
12. The main/prime point of argument advanced by
the petitioner Counsel is that these petitioners were
falsely arrived as accused for the alleged offence under
section 381 IPC r/w 34 IPC and based on that these
petitioner were falsely charged-sheeted with an
intention to victimize them, by the management. It is
further argued that the Domestic Enquiry was not
conduced in a fair and proper manner and therefore, the
petitioner side Counsel prayed to set aside the dismissal
order and prayed to allow this industrial dispute as
justified. Per contra, the respondent side Counsel
argued that these petitioners have committed the alleged
theft of 1.5 tonnes of silicon-sheets and therefore, they
were charge-sheeted and the enquiry was conducted in
a fair and proper manner. To analyse these aspects this
Court inclined to go through the evidences and
documents adduced on both sides.
13. The petitioners have pleaded and deposed that
it is impossible to commit theft of 1.5 tonnes of
silicon-sheets from the godown by two men and
therefore, the allegation of theft is concocted and
fabricated one. It is further deposed that the failure of
the respondent management to take action against the
security personnel’s and failure to produce the CCTV
footages of the factory premises and failure to examine
the eye witness and the other witnesses by name Ajay
and Chand Basha and failure to produce the case
property would probablise the case of the petitioners
as alleged in the claim petition. But, in this regard, RW.2
complainant by name, Arumugam has deposed that the
total 1.5 tonnes of silicon-sheets were not stolen from
the factory on a single day and the theft was committed
on various days in between April 2012 to April 2013.
Further, RW.1 has deposed that the theft was committed
on various dates and it was committed in small
quantities such as 10, 20, 30 kgs. in an interval of 10,
15, 20 days. Further, RW.1 and RW.2 has deposed that
the CCTV Camera was not under function at the
365
2 June 2020]
LA GAZETTE DE L’ETAT
relevant point of time. This part of evidence probalize
the genuinity in the evidence of RW.l and RW.2.
Furthermore, Ex.R63 Stock register marked on the
respondent side probablise the case of theft.
Furthermore, as per Ex.P25, the FIR was also registered
against these petitioner and the charge-sheet was also
filed against these petitioners and the name of the so
called Chand Basha and Ajay names were also included
in the list of witnesses in the charge-sheet. It has also
probablize the allegation of theft of silicon-sheets
against these petitioners. Above all these petitioners
have compromise the case with the respondent/
management. If, at all the case against the petitioners
is false and fabricated, they need not compound the
same with the respondent/management. Above all it is
not the duty of this Court to go through all these things
to find out whether the FIR is true or not and it is the
duty of the petitioners to defend the case of theft and
they have to obtain the order of acquittal from the
Court, if at all their stand is true. But, they have failed
to do so. Hence, the argument advanced on the side of
the petitioners that false FIR was registered against
these petitioners was unable to be accepted by this
Court.
14. Now, the Court has to analyse whether the
principles of natural justice was followed during the
domestic enquiry proceedings. The petitioners has
pleaded and deposed that the Enquiry Officer has
refused to give sufficient opportunity to them and
refused to mark even a single document on their side
and he deliberately and wantonly made them as ex parte
in the Enquiry Proceedings. It is further deposed that
they were not permitted to examine even a single
witness on their side. Per contra, RW.1 has deposed
that right from the date of commencement of Enquiry
Proceedings these petitioners sought adjournments for
one or other reasons and wantonly prolonged the Enquiry
Proceedings by seeking unnecessary adjournments
under the pretext of appointment of defence
Assistance. He further deposed that though it was
granted, these petitioners failed to utilize the same,
despite several adjournments. He further deposed that
the Enquiry Officer has passed the ex parte order
against these petitioners only as a last resort. He has
further deposed that the enquiry proceedings was
commenced on 25-07-2014 and the Enquiry Proceedings
was adjourned to 08-08-2014, 22-08-2014, 08-09-2014 and
23-09-2014. He has deposed that the Enquiry Officer has
given more than two months time to these petitioners
to engage their defence assistance. He further deposed
that despite several adjournments these petitioners have
neither chosen to appoint their defence assistance nor
cooperated with the Enquiry Officer to proceed with
enquiry. To substantiate this part of evidence these
petitioners has marked the enquiry report, dated
17-10-2014, marked as Ex.R44. The second page of the
abovesaid enquiry report has contains all the abovesaid
details. For the sake of convenience the extract in the
second page of the enquiry report, to made them as
ex parte is given below:
“I have commenced the domestic enquiry on
25-07-2014 after duly informing the charge-sheeted
employee and the management. During the 1st
hearing i.e., on 25-07-2014, the charge-sheeted
employee was present and the management was
represented by Mr. P.T. Manoharan. I have read out
and explained the charges set out against the
charge-sheeted employee in the charge memo. The
charge-sheeted employee denied the charges
attributed in the charge memo. As such I have
explained, the procedures to the followed in the
enquiry and the principles of natural justice to both
the parties before the commencement of Enquiry
Proceedings. During the enquiry proceeding, the
charge-sheeted employee sought for adjournment for
appointing his defence Assistant. As such the
enquiry was adjourned to a later, dated i.e., on
08-08-2014. Again during the subsequent hearings
held on 08-08-2014, 22-08-2014 and 08-09-2014, the
charge-sheet employee sought for adjournment for
appointing his defence Assistant in the domestic
enquiry. Acting upon this, the Enquiry Proceeding
was again adjourned to 23-09-2014. Thus, several
opportunities were given to the charge-sheeted
employee but, the charge-sheeted employee used to
drag the proceedings either on the pretext of
appointing defence Assistant or on the pretext of
illness On 23-09-2014, the charge-sheeted employee
has failed to appear in the enquiry proceedings
without any sort of communication to the Enquiry
Officer. Since, the attitude of the charge-sheeted
employee reveals that he is not interested to
participate in the enquiry proceedings, the
charge-sheeted employee was set ex parte on
23-09-2014. As such, the management was asked to
let in evidence in support of the charge laid against
the charge-sheeted employee.”
15. Therefore, the allegation by the petitioners
against the Disciplinary Proceedings, not found to be
true. Thus, Ex.R44 speaks in volume that ex parte order
was not made willfully and these petitioners alone have
kept them away from the enquiry proceedings for the
reasons known to them best.
16. The petitioner has marked the document, dated
22-03-2014 Ex.R47, wherein, they have stated that the
Enquiry Officer has violated the Hon’ble Supreme Court
366
LA GAZETTE DE L’ETAT
[2 June 2020
order in Civil Appeal No.30371 to 30376/2012,
dated 21-31-2014 arising out of the special leave
petition. But, these petitioners have not filed any
Supreme or High Court order. Furthermore, they have
not produced any stay order before the Enquiry Officer
to stay the Enquiry Proceedings. Therefore, it is found
that there is no violation of principles of natural justice.
Though they have failed to produce the Hon’ble Supreme
Court order in Civil Appeal No. 30371 to 30376/2012,
the enquiry has been adjourned for two months period
as per Ex.R48. Even then, these petitioners failed to
engage their Defence Assistance. Thus, as per Ex.R48
these petitioners were provided with two months time
to have their defence conveniently and this would goes
to shows that the respondent management has given
sufficient opportunity to these petitioners. On perusal
of Ex.R49, it seems that these petitioners have failed
to produce the medical records and the stay order of
the Hon’ble High Court. Further, it has also shows that
the termination order was passed only after getting
explanation from theses petitioners. Furthermore, PW.1
has deposed that “®∫Ô^ *m ÿ√VFBV™ kw¬z ®[≈
ÔV´ð›]™V_ ∂Õ> sƒV´Á™l_ ÂV∫Ô^ ÔÈÕm
ÿÔV^·s_ÁÈ. This part of evidence shows that these
petitioners themselves have not attended the Enquiry
Proceedings and they have failed to produce any
documents or witnesses on their side. It further shows
that they were not prevented either by the management
or by the Enquiry Officer to produce their side evidence
or documents. It also shows that they themselves failed
to participate in the enquiry and failed to cross-examine
the witnesses produced on the side cf the management.
It also shows that their non-participation in the Enquiry
Proceedings is according to their own decision and not
as alleged in the claim petition. Hence, this Court found
no violation of principles of natural justice by the
management or by the Enquiry Officer. Therefore, the
plea of violation of principles of natural justice by the
management as alleged by the petitioner is not accepted
by this Court.
17. At this juncture, the petitioner side Counsel
marked the citation reported in CDJ 2019 SC 436. The
abovesaid judgment was rendered in Civil Appeal
No.3339/2019 in the case of
Raj Narain
Vs.
Union of India and others
Wherein, the order of the Hon’ble High Court with
respect to payment of back wages was challenged
before the Hon’ble Supreme Court. In the abovesaid case,
the Hon’ble Supreme Court has held that the delinquent
was entitle to get back wages from the date of his
acquittal. The present case on hand is not similar to that
therefore, the abovesaid citation is decided as irrelevant
to the case on hand. The other citation produced on
petitioner side is CDJ 2019 Delhi High Court page: 441.
The abovesaid citation was rendered in the case of
Swift Securitas:(P) Ltd.
Vs.
Gulshan Sharma and another
wherein, the Hon’ble High Court has held that the
tribunal has to first consider whether a legal and valid
inquiry in consonance with principles of natural justice
has been held. If, the said inquiry is found to be valid
it is not for the Tribunal to interfere with the findings
arrived at in the inquiry unless the same found to be
perverse. It is also held that there is an omission to hold
inquiry or the inquiry is held to be defective that it is
open for Labour Court to take evidence itself regarding
the alleged misconduct of the workman. But, here in this
case, the management has appointed Mr. G. Arumugam,
Advocate as Enquiry Officer and conducted the enquiry
after giving sufficient opportunity to these petitioners,
despite these petitioners failed to appear before the
Enquiry Officer, which resulted in the ex parte enquiry
report. It is not a defect on the part of the management
but, it is a defect on the part of these petitioners only.
Furthermore, the management has issued charge-memo,
received the explanation, appointed the Enquiry Officer,
offered necessary adjournments and then, it has passed
termination order after issuance of second show-cause
notice and the reply for the same from these petitioners.
All these things show that there was no violation of
principles of natural justice. Hence, this point is
answered in favour of the management.
18. The next point for the determination is whether
it has to interfere with the punishment awarded by the
management. At this juncture, this Court inclined to go
through the citation filed by the respondent management.
As per the judgment reported in CDJ 2006 SC 928, when
the employee is found guilty of theft there is nothing
wrong in the corporation losing the confidence or faith
in such an employee and awarding punishment of
removal. In such cases, there is no place of generosity
or place of sympathy on the part of the judicial forums
and interfering with the quantum of the punishment.
Here, in this case, also these petitioners are alleged to
committed theft of 1.5 tonnes of silicon-sheets from the
management in an interval period of one year. Being the
supervisors, they must be very honest and they must
extent their fullest integrity to the management, but, here
they themselves indulged in the commission of alleged
theft. Therefore, this Court considers that there is no
warrant for interference in the punishment awarded by
the management.
367
2 June 2020]
LA GAZETTE DE L’ETAT
20. In the result, the termination order, dated
07-11-2014 was decided as a valid one and the industrial
dispute raised by these petitioners against the Nexus
Electro Steel Ltd., over their termination is decided as
unjustified and this reference is answered accordingly.
No cost.
Dictated to Stenographer, transcribed by him,
corrected and pronounced by me in the Open Court on
this the 21st day of January, 2020.
V. PANDIARAJ,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
List of petitioner’s witness:
PW1
— 07-03-2018 Anandan
List of petitioner’s exhibits:
Ex.P1 — 18-03-2013 Photocopy of the show-cause
notice
issued
by
the
respondent management to
Anandhan.
Ex.P2 — 18-03-2013 Photocopy of the show-cause
notice
issued
by
the
respondent management to
Sacthivel.
Ex.P3 — 18-03-2013 Photocopy of the show-cause
notice
issued
by
the
respondent management to
Sivakumar.
Ex.P4 — 18-03-2013 Photocopy of the show-cause
notice
issued
by
the
respondent management to
Mourougaperoumanne.
Ex.P5 — 18-03-2013 Photocopy of the show-cause
notice
issued
by
the
respondent management to
Karunakaran.
Ex.P6 — 18-03-2013 Photocopy of the show-cause
notice
issued
by
the
respondent management to
Parthibane.
Ex.P7 — 20-03-2013 Transfer order issued by the
respondent management to
Anandhan.
Ex.P8 — 25-03-2013 Reply letter for the transfer
order submitted by Anandhan
t o
t h e
r e s p o n d e n t
management.
Ex.P9 — 28-03-2013 Reply for suspension letter
submitted by Anandhan to
the respondent management.
Ex.P10 — 28-03-2013 Reply for suspension letter
submitted by Sacthivel to
the respondent management.
Ex.P11 — 28-03-2013 Reply for suspension letter
submitted by Sivakumar to
the respondent management.
Ex.P12 — 28-03-2013 Reply
for
suspension
l e t t e r
s u b m i t t e d
b y
Mourougaperoumanne
to
the respondent management.
Ex.P13 — 28-03-2013 Reply for suspension letter
submitted by Karunakaran to
the respondent management.
Ex.P14 — 28-03-2013 Reply for suspension letter
submitted by Parthibane to
the respondent management.
Ex.P15 — 04-04-2013 Letter sent to the Labour
Commissioner the Union.
Ex.P16 — 04-04-2013 Letter submitted by the
Trade Union before the
Assistant Manager of the
respondent management.
Ex.P17 — 10-05-2013 Letter submitted by the
Trade Union before the
Labour Officer.
Ex.P18 — 13-05-2013 Second show cause notice
issued to Anandhan from
the respondent management.
Ex.P19 — 22-05-2013 Letter submitted by the
Trade Union before the
Labour Officer.
Ex.P20 — 31-07-2013 12(3) Settlement signed by
the respondent management
with the petitioner union.
Ex.P21 — 12-08-2013 Transfer order for training to
the Chennai Unit sent by
the respondent management
to Anandhan.
Ex.P22 — 01-10-2013 Letter submitted by the
Trade Union before the
respondent management.
368
LA GAZETTE DE L’ETAT
[2 June 2020
Ex.P23 — 01-10-2013 Letter submitted by the
Trade Union before the
respondent management for
requesting bonus.
Ex.P24 — 07-10-2013 Form-L submitted by the
petitioner union before the
respondent management.
Ex.P25 — 11-12-2013 FIR Report.
Ex.P26 — 16-12-2013 Reply letter submitted by the
respondent
management
before the Labour Officer.
Ex.P27 — 16-12-2013 Reply letter submitted by the
respondent
management
before the Labour Officer.
Ex.P28 — 24-12-2013 Letter submitted by the
Trade Union before the
Labour Officer/Conciliation,
Ex.P29 — 24-12-2013 Suspension order issued by
the respondent management
to Anandhan.
Ex.P30 — 24-12-2013 Suspension order issued by
the respondent management
to Sacthivel.
Ex.P31 — 17-02-2014 Letter sent for suspension
allowance to Anandhan from
the respondent management.
Ex.P32 — 04-03-2014 Letter
issued
by
the
respondent management to
Sacthivel.
Ex.P33 — 13-03-2014 Reply letter issued to the
respondent management by
Sacthivel.
Ex.P34 — 04-03-2014 Letter
issued
by
the
respondent management to
Anandhan.
Ex.P35 — 13-03-2014 Reply letter issued to the
respondent management by
Anandhan.
Ex.P36 — 19-03-2014 Letter
issued
by
the
respondent management to
Anandhan.
Ex.P37 — 22-03-2014 Reply letter issued to the
respondent management by
Anandhan.
Ex.P38 — 30-06-2015 Letter submitted by the
Sacthivel before the Labour
Officer.
Ex.P39 — 23-07-2015 Letter submitted by the
Sacthivel before the Labour
Officer.
Ex.P40 — 30-11-2015 Letter submitted by the
Trade Union before the
Labour Officer.
Ex.P41 —
Copy of the Failure Report
submitted by the Labour
O ff i c e r,
c o n c i l i a t i o n ,
Puducherry.
List of respondent’s witnesses:
RW.1 — 08-08-2019
P.T. Manohar
RW.2 — 12-09-2019
Arumugam
List of Respondents exhibits:
Ex.Rl —
Leave Application Form of
J. Anandan, dated 02-12-2008.
Ex.R2 —
Leave Application Form of
J. Anandan, dated 22-08-2011.
Ex.R3 —
Leave Application Form of
J. Anandan dated, 17-05-2012.
Ex.R4 —
Leave Application Form of
J. Anandan, dated 08-03-2013.
Ex.R5
Objections regarding the
enquiry report 31-10-2014,
dated
17-10-2014
and
proposed punishment letter,
dated 25-10-2014 of the
J. Anandhan.
Ex.R6 —
Objections regarding the
enquiry
report,
dated
17-10-2014 and Proposed
Punishment letter, dated
25-10-2014 of the A. Sakthivel.
Ex.R7 —
Original Cheque return by
J. Anandhan to the respondent
management with requisition
to
reopen
the
enquiry
proceedings
conducted
against him.
Ex.R8 —
Original Cheque return by
A. Sakthivel to the respondent
management with requisition
to
reopen
the
enquiry
proceedings
conducted
against him.
369
2 June 2020]
LA GAZETTE DE L’ETAT
Ex.R9 —
Letter, dated 05-02-2015
submitted by the J. Anandhan.
Ex.R10
—
Letter, dated 05-02-2015
submitted by the A. Sakthivel.
Ex.R11 — 19-09-2008
Original leave application
from the 2nd petitioner.
Ex.R12 — 10-02-2009
Original leave application
from the 2nd petitioner.
Ex.R13 — 18-02-2010
Original leave application
from the 2nd petitioner.
Ex.R14 — 28-09-2012
Original leave application
from the 2nd petitioner.
Ex.R15 — 28-10-2013
Original leave application
from the 2nd Petitioner.
Ex.R16 — 25-05-2013
Copy of Dismissal Order of
1st petitioner.
Ex.R17 — 25-05-2013
Copy of Dismissal Order of
2nd petitioner.
Ex.R18 — 31-07-2013
Copy of the 12(3) settlement
entered
between
the
respondent management and
its 6 workers.
Ex.R19 — 11-12-2013
Copy of FIR No. 115/2013
registered by the Mettupalayam
Police Station, against the
petitioner 1, 2 workmen.
Ex.R20 — 28-12-2013
Copy of final report in FIR
No. 115/13.
Ex.R21 — 24-12-2013
Copy of Suspension Order of
1st petitioner.
Ex.R22 — 24-12-2013
Copy of Suspension Order of
2nd petitioner.
Ex.R23 — 17-02-2014
Copy
of
Suspension
allowance given to 1st
petitioner.
Ex.R24 — 17-02-2014
Copy
of
Suspension
allowance given to 2nd
petitioner.
Ex.R25 — 04-03-2014
Copy of show-cause notice
given to 1st petitioner.
Ex.R26 — 04-03-2014
Copy of show-cause notice
given to 2nd petitioner.
Ex.R27 — 13-03-2014
Copy of reply letter given by
1st petitioner.
Ex.R28 — 13-03-2014
Copy of reply letter given by
2nd petitioner.
Ex.R29 — 19-03-2014
Copy of the letter sent to
1st petitioner regarding
appointment of Enquiry
Officer.
Ex.R30 — 19-03-2014
Copy of the letter sent to
2nd petitioner regarding
appointment of Enquiry
Officer.
Ex.R31 — 16-04-2014
Copy of Suspension allowance
given to 1st petitioner.
Ex.R32 — 16-04-2014
Copy of Suspension allowance
given to 2nd petitioner.
Ex.R33 — 09-07-2014
Copy of Suspension allowance
given to 1st petitioner.
Ex.R34 — 09-07-2014
Copy of Suspension allowance
given to 2nd petitioner
Ex.R35 — 21-07-2014
Copy of Letter sent to 1st
petitioner regarding intimation
of enquiry proceedings.
Ex.R36 — 25-07-2014
Copy of Letter sent to 2nd
petitioner regarding intimation
of enquiry proceedings.
Ex.R37 — 25-07-2014
Copy of Letter sent by 1st
petitioner to the Enquiry
Officer seeking permission
to appoint Counsel on his
side.
Ex.R38 — 25-07-2014
Copy of Letter sent by 2nd
petitioner to the Enquiry
Officer seeking permission
to appoint Counsel on his
side.
Ex.R39 — 08-08-2014
Copy of Letter sent by 1st
petitioner to the Enquiry
Officer seeking adjournment
Xerox.
Ex.R40 — 08-08-2014
Copy of Letter sent by 2nd
petitioner to the Enquiry
Officer seeking adjournment.
Ex.R41 — 22-08-2014
Copy of Letter sent by 2nd
petitioner to the Enquiry
Officer seeking adjournment.
Ex.R42 — 08-09-2014
Copy of Letter sent by 1st
petitioner to the Enquiry
Officer seeking adjournment.
370
LA GAZETTE DE L’ETAT
[2 June 2020
Ex.R43 — 23-09-2014
Copy of Letter sent by the
Presenting Officer of the
company to the Enquiry
Officer for examination of
witness and mark documents.
Ex.R44 — 17-10-2014
Copy of enquiry report
submitted
by
Enquiry
Officer.
Ex.R45 — 25-10-2014
Copy of Letter sent to 1st
petitioner furnishing copy of
enquiry
report
and
intimation
of
proposed
punishment and seeking
explanation.
Ex.R46 — 25-10-2014
Copy of Letter sent to
2nd petitioner furnishing
copy of enquiry report and
intimation
of
proposed
punishment and seeking
explanation.
Ex.R47 — 22-03-2014
Copy of Letter sent by 1st
petitioner to the respondent
company.
Ex.R48 — 30-04-2014
Copy of reply letter sent by
the
respondent
to
1st
petitioner.
Ex.R49 — 07-11-2014
Copy of Dismissal order sent
to 1st petitioner.
Ex.R50 — 07-11-2014
Copy of Dismissal order sent
to 2nd petitioner.
Ex.R51 — 22-03-2014
Copy of Letter sent by the
2nd
petitioner
to
the
respondent management.
Ex.R52 — 30-04-2014
Copy of reply letter sent by
the
respondent
to
2nd
petitioner.
Ex.R53 — 24-01-2015
Copy of reply sent by the
respondent 1st petitioner
denying to reopen the
enquiry, ex parte order, and
terminal benefit cheque.
Ex.R54 — 24-01-2015
Copy of reply sent by the
respondent 2nd petitioner
denying to reopen the
enquiry, ex parte order, and
terminal benefit cheque,
Ex.R55 — 04-06-2015
Copy of Letter given by 1st
petitioner to the Labour
Officer
(Conciliation),
Puducherry.
Ex.R56 — 04-06-2015
Copy of Letter given by 2nd
petitioner to the Labour Officer
(Conciliation), Puducherry.
Ex.R57 — 17-02-2015
Copy of Letter given by lst
petitioner to the Labour
Officer
(Conciliation),
Puducherry to reopen, to set
aside ex parte order.
Ex.R58 — 17-02-2015 Copy of Letter given by 2nd
petitioner to the Labour
Officer
(Conciliation),
Puducherry to reopen, to set
aside ex parte order.
Ex.R59 — 20-04-2015
Copy of reply submitted by
the respondent management
to
the
Labour
Officer
(Conciliation), Puducherry
for the notice No. 254/
LO(C)/AIL, dated 23-03-2015
regarding the representation,
dated 17-02-2015 given by
1st petitioner.
Ex.R60 — 20-04-2015
Copy of reply submitted by
the respondent management
to
the
Labour
Officer
(Conciliation), Puducherry
for the Notice No. 253/
LO(C)/AIL, dated 23-03-2015
regarding the representation,
dated 17-02-2015 given 2nd
petitioner.
Ex.R61 — 27-02-2017
Copy of failure report
submitted by the Labour
Officer
(Conciliation),
Puducherry
to
the
Government.
Ex.R62 — 01-07-2017
Copy of Authorisation letter
given by the respondent
to
RW.1-P.T. Manoharan
Original.
Ex.R63 —
Copy of the Stock Register of
the respondent management
for the period from April
2012 to March 2013.
V. PANDIARAJ,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.