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La Gazette de L' État de Poudouchéry

The Gazette of Puducherry

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Publiée par Autorité

Published by Authority

Registered with the Registrar

of Newspapers for India

under No. 10410

Registered No. PY/44/2021-23

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18 {

No.

Poudouchéry

Mardi

Janvier

2022 (28 Pausa 1943)

No.

Puducherry

Tuesday

18th

January

2022

ÿ√VÚ·¶¬ÔD

SOMMAIRES

CONTENTS

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Page

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Sentence arbitral du Travail

Award of the Labour Court ..

de Tribunal.

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Notifications du Gouvernement

Government Notifications

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Etablissements dangereux

Dangerous Establishments

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Annonces

Announcements

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Corrigendum

LA GAZETTE DE L’ETAT

[18 January 2022

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 87/Lab./AIL/T/2021,

Puducherry, dated 28th December 2021)

NOTIFICATION

Whereas, an Award in I.D (L) No. 8/2015, dated

07-10-2021 of the Industrial Tribunal-cum-Labour Court,

Puducherry, in respect of the Industrial Dispute

between Management of M/s. AVA Cholayil Health Care

Private Limited, Puducherry and Thiru V. Siva Kumar,

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 23-05-1991, it is hereby directed

by the Secretary to Government (Labour) that the said

Award shall be published in the Official Gazette,

Puducherry.

(By order)

D. MOHAN KUMAR,

Under Secretary to Government (Labour).

————

BEFORE THE INDUSTRIAL TRIBUNAL -CUM-

LABOUR COURT AT PUDUCHERRY

Present :Thiru R. BHARANIDHARAN, M.L.

Presiding Officer.

Thursday, the 7th day of October 2021.

I.D. (L) No. 8/2015

CNR. No. PYPY060000472015

V. Siva Kumar,

No. 1/150, Mettu Street,

Sellancherry Post,

Cuddalore.

. . Petitioner

Versus

The Managing Director,

M/s. AVA Cholayil Health Care Private Limited,

Odhiyampet Village,

Puducherry-605 110.

. . Respondent

This Industrial Dispute coming on 08-09-2021 before

me for final bearing in the presence of Thiruvalargal

A. Sakthivel and A. Govindh, Advocates for the

petitioner and Thiruvalargal B. Mohandoss, P. Manivannan,

K. Ilango, K. Indrajith, Kruthiga Devi, Vijayasanthi,

Velmurugan and Sunder Rajan, Advocates for the

respondent upon hearing both sides, upon perusing the

case records, after having stood over for consideration

till this day, this Court delivered the following:

AWARD

This Industrial Dispute has been referred by the

Government as per the G.O. Rt. No. 12/AIL/Lab./J/2015,

dated 06-02-2015 for adjudicating whether the industrial

dispute raised by the petitioner Thiru V. Siva Kumar,

against the management of M/s. AVA Cholayil Health

Care Private Limited, Puducherry, over non-employment

is justified and if justified, what relief the petitioner is

entitled to?

(b) Whether the management adopted unfair

labour practice against the Union Office-bearers?

If so, what relief the petitioner is entitled to?

of money if, it can be so computed?

2. The case of the petitioner, in brief, are as follows:

The petitioner is working as an employee in the

respondent management. The petitioner is one of the

Executive

Committee

Member

Medimix

Thozhilalargal Sangam, a registered Trade Union in

No. 1593/RTU2009. Out of 88 permanent employees

60 employees are the members of Medimix

Thozhilalargal Sangam. The respondent company was

started before 28 years, but, they were not followed

the Standing Orders and the Industrial Dispute Act.

For the past 28 year the respondent management has

not negotiated with the workers, but, the workers

were compelled to sign in the section 18 (1)

settlement. The rspondent management has utilized

the members of the petitioner Union for non-production

work like, cleaning drainage and painting the walls.

The respondent management has also dismissed

Thiru Ayyappan who is the President of Medimix

Thozhilalargal Sangam since, the petitioners

approached the Government Officials to redress their

grievance. The respondent management by imputing

false allegation against the petitioner for dismiss him

from service.

(ii) On 20-02-2012 the petitioner was attending

duty at making section of he company, on that day

18 employees present. The target was fixed for

production of 72 moulds whereas, in the show cause

notice given to the petitioner the producion target

was fixed as 50 moulds. Even in the 18(1) settlement

there is an agreement that an employee has produced

4 moulds, it is falsely alleged that after completion

of 40 moulds the petitioner went away from the work

spot. There is no electrically operate machine in the

18 January 2022]

LA GAZETTE DE L’ETAT

making section. The entire section is managed

manually. There is no canteen facilities for the

workers working in making section. On 08-02-2012

Thiru Sunil instructed the employees to produce

50 moulds. When the petitioner requested for some

documents to prove that there was no production

from 08-03-2010, 03-10-2011, 13-02-2012 to 18-02-2012.

But, the respondent representative has not furnished

those document by saying that those documents

were destroyed during Thane Cyclone. When the

petitioner requested for documents for the period

13 to 18 February 2012 the respondent refused to give

the same by saying the company is under lockout.

The Domestic Enquiry Officer one Tmt. Devasundari

has not given sufficient opportunity to the petitioner

to disprove the charge against the petitioner.

The Enquiry Officer has acted in contravention to the

principles of natural justice.

(iii) The Enquiry Officer is the Junior Counsel for

the Advocate in O.S. No. 986/2012 for the respondent

management. Though the name of the Enquiry Officer

was not signed in the vakalat her name was present

in the docket and hence, there is no posibility for

the conduct of impartial domestic enquiry. The

request of the petitioner for examination of

the represntative of the management to prove the

petitioner has not committed any misconduct was

negatived by the Enquiry Officer . The request of the

petitioner for grant of time for examination of

management witness No. 2 Thiru Ramu was also

negatived by the Enquiry Officer. The petitioner is

working honestly for a long time with the respondent

management. The charges levelled against the

petitioner is prima facie false and prayed to set aside

the dismissal order passed by the respondent

management and pray for an order of reinstatement

into service with back wages and other allowances

along with compensation.

3. The brief averments in the counter filed are

follows:

The respondent management submit that through

charge-sheet, dated 18-02-2012, the petitioner was

alleged to a have committed the following

misconducts on 08-02-2012; (1) refusal to discharge

the duties entrusted to him by the making supervisor

Mr. Sunil, (2) Not satisfying the production target of

50 moulds along with 17 other workmen, (3) refusal

to follow the instructions of the management in

discharging the duties by stating (jointly along with

workmen A. Pandi and S. Anbzhagan) only 40 moulds

could be done and finishing the work according to

your will and pleasure (4) Stopping the work abruptly

even when the shift working time as not ever and the

production target was not completed and leaving the

place of work without obtaining prior permission of

the supervisor, (5) Performing the work for less than

8 hours. The petitioner submitted the explanation,

dated 08-03-2012 denying the charges of misconduct

by stating that he and the other 1 workmen produced

40 moulds which was in excess by 4 moulds, as per

the practice followed for the past 1 year. He also

stated that the management has followed the

victimizing attitude again him and the other workmen

who are Trade Union members. To find out the truth

regarding the charges framed against the petitioner,

the respondent made arrangement for a domestic

enquiry. In the enquiry, adequate opportunity was

granted to the petitioner to defend the charges in the

proper manner. The enquiry was conducted in

accordance with law and principle of natural justice.

The charges framed against the petitioner were

proved in the enquiry in accordance with law through

reliable evidence. The petitioner was granted

opportunity to submit objection/explanation for the

enquiry report, dated 12-06-2013 through letter of the

respondent, dated 23-08-2013 in which the respondent

accepted the report of the Enquiry Officer holding

the petitioner guilty of the charges. The petitioner

submitted his explanation, dated 04-09-2013 in which

the petitioner had stated untrue facts and alleged

unwarranted charges against learned Enquiry Officer

and also against management. The respondent sent

the 2nd show-cause notice of proposed penalty of

dismissal, dated 08-11-2013. The punishment of

dismissal was imposed after taking into consideration

the past record of service of the petitioner which is

not free from blemish, through order, dated

12-12-2013.

(ii) The Domestic Enquiry Officer M/s. Devasundari

attached to the office of the Senior Counsel

appearing for the establishment, but, the Enquiry

Officer is not appeared for the establishment in the

present case or any other case against the petitioner.

The punishment of dismissal is in tune with the

gravity of the misconduct committed by the petitioner

as pointed out in the 2nd show-cause notice, dated

08-11-2013 which is past performance is also not

clean. For the charge-sheet issued on 31-12-2008, the

charges were framed for misconduct. During enquiry

the petitioner has admitted the misconduct and the

Enquiry Officer Thiru K. Velmurugan found the

petitioner guilty and he supplied the Enquiry

Officer, report, dated 26-02-2010. In the enquiry

proceedings, the petitioner participated with his

defence assistant and was permitted to adduce

LA GAZETTE DE L’ETAT

[18 January 2022

evidence and to cross-examine the witnesses as such

it is not an ex parte enquiry. The petitioner along

co-worker Pandi and Anbazhagan were the main

cause for stopping the production by arguing that

only 40 moulds could be produced on 08-02-2012.

The said Pandi has admitted the charges and settled

his accounts with respondent management after

submitting his resignation. The respondent prayed

to dismiss the claim made by the petitioner with

heavy costs.

4. The points for consideration are:

Whether the dispute raised by the petitioner

Thiru V. Siva Kumar, against the respondent,

management over his non-employment is justified?

5. On the petitioner side Ex.P1 to Ex.P23 were

marked. On the respondent side Ex.R1 to Ex.R5 were

marked.

6. In the evidence of PW.1 Thiru V. Siva Kumar, he

has stated in the chief affidavit that he was functioning

as Executive Committee Member in the Medimix

Thozhilalargal Sangam. Out of the 88 permanent

employees 60 employees are the members of the

Medimix Thozhilalargal Sangam. Ever since, the date of

starting of the respondent company they have not

negotiated with the employees, but, they have

compelled the employees to accept the 18(1) settlement

on 01-10-2010 when the employees demanded for wage

revision, the management has insisted the employees

to signed in the 18(1) settlement. The petitioner Trade

Union has raised the Industrral Dispute stating that the

18(1) settlement is invalid and the said dispute is

pending before this Court. The management has also

engaged his employee in non-productive works like

cleaning the drainage and white washing the walls. The

employees were demanded to declare them as protected

employees and the claim was not accepted by the

management hence, they have preferred a representation

to the Conciliation Officer. The management in order to

take revenge against the employees has given a false

charge on 08-02-2012 stating that the employees were

not produced the target 72 moulds for 18 employees and

they have failed to implement the production as per the

18(1) settlement. On 08-02-2012 after completion of 40

moulds the petitioner and others left the place to attend

other works. On 08-02-2012 the production supervisor

Sunil has fixed production target as 50 moulds in order

to increase the production capacity.

7. The respondent failed to furnish the require

documents to prove that they were no production in the

month of March 2010, October 2011 and February 2012.

The respondent has not furnished the required

documents stating that the documents were destroyed

in Thane Cyclone and also they have stated reason

that since, lockout is declared they were unable to

furnished the required documents. The Enquiry Officer

Tmt. Deva Sundari has not followed the principles of

natural justice during Domestic Enquiry. Moreover, the

Enquiry Officer is a Junior Advocate practicing under

the Senior Advocate who has appeared in O.S. No. 986/

2012 for the management side. The Enquiry Officer has

not afforded sufficient opportunity to the petitioner in

the Domestic Enquiry. The petitioner is working with

the respondent management for a long period and the

charges levelled against the petitioner are prima facie

false and prays to set aside the order of the dismissal

and prayed for reinstatement of the petitioner along with

back wage and compensation.

8. Thiru Lucas, Factory Manager of the respondent

company was examined as RW.1. On 08-02-2012, the

petitioner has refused to discharge the duties entrusted

to him by the making supervisor Mr. Sunil and not

satisying the production target of 50 mould along with

17 workmen refusing to follow the instruction of the

management while discharging the duties by stating that

they can do only 40 mould according to will and

pleasure and stopping the work abruptly without

obtaining prior permission of the Supervisor and

performed the work for less than 8 hours. For the above

stated lapses the petitioner was charge-sheeted on

08-02-2012 to find out the truth regarding charges framed

against the petitioner. The respondent has arranged for

Domestic Enquiry. In the Enquiry, adequate opportunity

was provided to the petitioner to defend the charges,

the enquiry was conducted in accordance with law and

by following the principles of natural justice. The

petitioner was also granted opportunity to submit his

objections to the enquiry report, dated 12-06-2013. The

petitioner submitted his explanation, dated 04-09-2013

has stated that the things were which not true. The

respondent has also issued a 2nd show-cause notic

stating proposed penalty of dismissal, dated 08-11-2013.

After considering the explanation submitted by the

petitioner and after considering is past record has

served the order of dismissal, dated 12-12-2013. A per

the principles of labour jurisprudence it is enough if,

there is some evidence to prove the charges of

misconduct. The nature of proof is not the proof

beyond reasonable doubts. In the Domestic Enquiry the

petitioner participated with his defence assitant and

cross-examination of the respondent witnesses was

permitted. The report of the Enquiry Officer is not perverse.

The co-employees of the petitioner Thiru A. Pandi and

S. Anbazhagan were admitted the charge and settled

their account with the respondent.

18 January 2022]

LA GAZETTE DE L’ETAT

9. Thiru K. Saravanan, Production Supervisor of the

respondent management is examined as RW.2. He

deposed in his evidence that when he has working an

employee before February 2017 in the respondent

company. On 05-06-2012 when he was going to the

factory in his two wheeler he was stopped by the

member of the Medimi Thozhilalargal Sangam and

informed that Medimix Thozhilalargal Sangam called for

a strike and hence, I should not attend the duty on that

day they have also attempted to remove the key from

the motorcycle. The member of the Medimix

Thozhilalargal Sangam threatened RW.2 with dire

consequences and the woman workers of the said Union

abused him in filthy language thereafter, preferred a

complaint as to what was happened on 05.06.2012 and

handed over the same to the Factory Manager.

10. Thiru P. Sundar who is an employee of the

respondent company was examined as RW.3. He

deposed in his evidence that when he was working in

the making section on 05-06-2012 when he was going

to the factory to attend the work at about 08.30 a.m the

co-employees who were the members of the Medimix

Thozhilalargal Sangam informed that Medimix

Thozhilalargal Sangam has called his strike and he could

not enter the factory premises when RW3 was about

enter the respondent company he was prevented by

members of the Medimix Thozhilalargal Sangam Union.

He has written a complaint about the incidents happens

on 05-06-2012 and handed over to the Factory Manager.

11. The learned Counsel for the petitioner submit

that the respondent management in order to victimize

the petitioner who is one of the Executive Member of

the Medimix Thozhilalargal Sangam as issued a false

charge-sheet stating that the petitioner along 17 other

workers were refused to do the work assigned by the

Supervisor and also cause lost to the company by

decrease the production and disobey the orders of the

management officials. The learned Counsel for the

petitioner submit that on 08-02-2012 Thiru Sunil, has

instructed the employees to make 50 moulds there is no

specific averment or complaint against the petitioner that

he has refused to carry out the instructions of the

supervisor and also engaged in altercation with

management officials. If, is further submitted that after

18 (1) settlement it is practice that an employee has to

make two moulds per day when that is to be taken into

consideration the employees present on 08-02-2012 has

produced 40 moulds. Even in the charge-sheet on

08-02-2012 at about 12.00 p.m the employee by name

Pandi informed the production supervisor Sunil that

they can make only 40 moulds the name of the petitioner

was not found place in the said charge. The learned

Counsel for the petitioner further submitted that the

respondent company is managed by the hard labour of

the employees and there was no machineries for

production and packing of the end products. Whenever

the employee has complete the work he has to go for

the next work otherwise the next day production would

be affected as such the 18 employees worked in the

packing section 08-02-2012 after completion of the job

moved from that place to attend some other work as

such the allegation against the petitioner that he has

left the premises without informing the supervisor as

not at all sustainable.

12. The learned Counsel for the petitioner further

submit that the Domestic Enquiry conducted as against

the petitioner and two others as a single enquiry by

appointing same Enquiry Officer is not at all sustainable

in the Eye of law. It is further submitted the Enquiry

Officer has not followed the principle of natural justice

and has not afforded sufficient opportunity to the

petitioner to examine his own witnesses. On 05-06-2012

the Medimix Thozhilalargal Sangam has announced for

strike. The petitioner is the Executive Member of the

Medimix Thozhilalargal Sangam. When the petitioner

sought for an adjournment so as to facilitate to him to

attend the strike the Enquiry Officer has not granted

adjournment. Moreover, the Enquiry Officer wantonly

negative contention of the petitioner whenever, the

sought time for production of his witnesses. The

learned Counsel for the petitioner has invited this Court

attention to the Judgment of Hon’ble Karnataka High

Court in G.R. Venkateswara Reddy vs. Karnataka State

Road Transport Corporation reported in 1993 1LLJ

(1011) wherein, the Hon’ble Karnataka High Court

quoted the landmark judgment of Hon’ble Apex Court

in Crescent Dyes and Chemicals Ltd. vs. Ram Naresh

Tripathi reported in 1993 I CLR 253. In the said judgment

Hon’ble Apex Court held “There can be no doubt that

a delinquent must be given an opportunity of presenting

his case in such a way suitable to the character of the

enquiry which would ensure a fair hearing resulting in

fair dispensation of justice. But, does that extend to the

right to be represented through counselor agent is the

question which we are called upon to answer.”

“A delinquent employee appearing before a tribunal

may feel that the right to representation is implied in

the large entitlement of a fair hearing based on the rule

of natural justice. He may, therefore feel that refusal to

be represented by an agent of his choice would

tantamount to denial of natural justice. Ordinarily it is

considered desirable not to restrict this right of

representation by counselor an agent of one’s choice,

but, it is a different thing to say that such a right is an

element of the principles of natural justice and denial

thereof would invalidate the enquiry”.

LA GAZETTE DE L’ETAT

[18 January 2022

13. The learned Counsel for the petitioner has

invited the attention of this Court to the Judgment of

Hon’ble Guwahati High Court in Anushrnan Des Gupta

v. Jute Corporation of India reported in 1997 LAB IC

1824 and submit if, the principles of natural justice is

violated the Domestic Enquiry would be vitiated. The

learned Counsel has also invited this Court attention

to the Judgment of Hon’ble Supreme Court in

Chandrama Tewari v. Union of India required that the

copy of the documents if, any relied upon against the

reported in 1988 AIR 117 held “that principles of natural

justice party charged should be given to him and he

should be afforded opportunity to cross-examine the

witnesses. In the instant case, it is quite clear from. the

orders of the Enquiry Officer that some of the

documents and copies of the statements of witnesses

who were examined during preliminary enquiry were

made available during examination of the witnesses. It

is also not disputed that some of the statements of the

witnesses recorded during preliminary enquiry were not

supplied to the petitioner before the Enquiry Officer

started recording the evidence. It cannot be disputed

that for effective cross-examination the statements of

the witnesses recorded during preliminary enquiry

ought to have been made available to the petitioner

before recording the evidence of the prosecution

witnesses. In the instant case, it is clear from the orders

of the Enquiry Officer as mentioned-above mat copies

of some of the statements of the witnesses and

documents were not made available before the Enquiry

Officer started recording the evidence of M.W. 1. I am,

therefore, of opinion that for non-supply of copies of

such documents prejudiced the Delinquent Officer and

consequently the enquiry is vitiated”.

14. The learned Counsel for the petitioner further

submit that this Court has passed Preliminary Award in

I.D.(L) 0412015 to I.D. (L) 10/2015 wherein, this Court

has held that the Domestic Enquiry conducted by the

Enquiry Officer is not valid. The learned Counsel for

the petitioner further submit that RW.1 Lucas is the

Factory Manager who has not developed any good

relationship with employees of the company. He always

support the management in all crisis. In so far as RW2

Saravanan and RW3 Sundar are concerned they were

not at all present during the alleged period of

misconduct and their evidence will not lend any support

to the case of the respondent. It is further submitted

that Thiruvalargal Pandi and Anbzhagan who has faced

the same charge were threatened by the management

to accept the settlement. Finally, the co-employees

Pandi and Anbazhagan were settled by the management.

The learned Counsel for the petitioner further submitted

that when the Domestic Enquiry is held to be defective

it deem that there would be no enquiry conducted at

all. The petitioner clearly established that the Domestic

Enquiry conducted by Tmt. Devasundari is defective and

she is the Junior Advocate, practicing under the Senior

Advocate who has appeared for management in

O.S.986/2012. Certainly the Junior Counsel Tmt.

Devasundari appointed a Enquiry Officer acted in a

partial manner and supported the case of the

management since, her Senior has appeared for the

management in the Civil case. Since, the Enquiry Officer

acted partially and has not afforded any opportunity to

the petitioner to lead his side evidence the enquiry

report submitted by the Enquiry Officer will not stand

the test of bona fide. The enquiry report of the Enquiry

Officer is totally against the principles of natural justice

and established principle of law. The petitioner was

working with the respondent management for more than

18 years and he was dismissed from service without any

justifiable reason. The learned Counsel for the

petitioner prayed for the reinstatement of the petitioner

with continuity of service along with back wages

benefits and other attendant benefits.

15. The learned Counsel for the respondent submit

that the petitioner was charge sheeted for the following

misconduct: (1) refusal to discharge the duties

entrusted to him by the making Supervisor Mr. Sunil,

(2) ot satisfying the production target of 50 moulds

along with 17 other workmen, (3) refusal to follow the

instructions of the management in discharging the

duties by stating (jointly along with workmen A. Pandi

and S. Anbazhagan) only 40 moulds could be done and

finishing the work according to his will and pleasure,

(4) Stopping the work abruptly even when the shift

working time was not over and the production target

was not completed and leaving the place of work

without obtaining prior permission of the supervisor,

(5) Performing the work for less than 8 hours. On receipt

of the charge-sheet the petitioner has submitted his

explanation, dated 08-03-2012 by denying the charges

of misconduct. In order to bring out the fact the respondent

management has arranged to conduct Domestic Enquiry

in the said Domestic Enquiry Tmt. Devasundari was

appointed as Enquiry Officer the petitioner was

permitted to assist by another employee the petitioner

was given reasonable opportunity to cross-examine

the respondent witnesses. Despite grant of several

opportunities the petitioner was not ready to examine

any witnes on his side. The Enquiry Officer having

concluded the Domestic Enquiry by following the

principles of natural justice and the legal principles has

filed her enquiry report, dated 12-06-2013. The

respondent has also accepted the report and the

Enquiry Officer holding the petitioner guilty of charges

18 January 2022]

LA GAZETTE DE L’ETAT

framed against him in the charge sheet, dated

18-02-2012. The petitioner was served with second show

cause notice stating the proposed penalty of dismissal,

dated 08-11-2013. After considering the previous

misconduct of the petitioner and there is no mitigating

circumstances expressed by the petitioner, the

respondent was constrained to pass order of dismissal

as against the petitioner. The learned Counsel for the

respondent further submitted that the Domestic Enquiry

was conducted in a fair manner and the alleged motive

attributed against the Enquiry Officer is unsustainable.

16. In fact, the Enquiry Officer Tmt. Devasundari was

not a Counsel on record in O.S. No. 986/2012. The

learned Counsel for the respondent submit that evidence

of RW1 Lucas Factory Manager is crystal clear that the

petitioner along with other employees has stopped the

Production abruptly without achieving the target fixed

by the Production Supervisor. The evidence of RW.2 and

RW.3 who are the co-employees of the petitioner has

clearly deposed as against the petitioner.

17. The learned Counsel for the respondent further

submitted that the right to take disciplinary action and

the manner of conducting disciplinary enquiry and if,

proved to decide the quantum of punishment are mainly

managerial functions with which the Tribunal has no

jurisdiction to sit in Judgment over the decision of the

employer. In this respect the learned Counsel for the

respondent has invited this Court attention to the

Judgment of Hon’ble Apex Court in Delhi Cloth and

General Mills Co. vs. Ludh Budh Singh, (1972) 1 SCC

595 “If, no Domestic Enquiry had been held by the

management, or if, the management makes it clear that

it does not rely upon any Domestic Enquiry that may

have been held by it, it is entitled to straightway adduce

evidence before the Tribunal justifying its action. The

Tribunal is bound to consider that evidence so adduced

before it on merits and give a decision thereon. In such

a case, it is not necessary for the Tribunal to consider

the validity of the Domestic Enquiry as the employer

himself does not rely on it.

When the management relies on the enquiry

conducted by it, and also simultaneously adduces

evidence before the Tribunal, without prejudice to its

plea that the enquiry proceedings are proper, it is the

duty of the Tribunal, in the first instance, to consider

whether the enquiry proceedings conducted by the

management, are valid and proper. If, the Tribunal is

satisified that the enquiry proceedings have been held

properly and are valid, the question of considering the

evidence adduced before it on merits, no longer

survives. It is only when the Tribunal holds that the

enquiry proceedings have not been properly held, that

it derives Jurisdiction to deal with the merits of the

dispute and in such a case it has to consider the

evidence adduced before it by the management and

decide the matter on the basis of such evidence”.

18. The Counsel for the respondent placed reliance

on the Judgment of Hon’ble Apex Court in Workmen of

Firestone Tyre & Rubber Co. of India (P) Ltd. vs. The

management of Firestone Tyre & Rubber Co. of India

(P) Ltd. and others., (1973) 1 SCC 813 wherein, the

Hon’ble Apex Court held “From those decisions, the

following principles broadly emerge:

1. The right to take disciplinary action and to

decide upon the quantum of punishment are mainly

managerial functions, but, if, a dispute is referred to

a Tribunal, the latter has power to see if, action of

the employer is justified.

2. Before imposing the punishment, an employer

is expected to conduct a proper enquiry in

accordance with the provisions of the Standing

Orders, if applicable, and principles of natural justice.

The enquiry should not be an empty formality.

3. When a proper enquiry has been held by an

employer, and the finding of misconduct is a plausible

conclusion flowing from the evidence, adduced at the

said enquiry, the Tribunal has no jurisdiction to sit

in judgment over the decision of the employer as an

Appellate Body. The interference with the decision

of the employer will be justified only when the

findings arrived at in the enquiry are perverse or the

management is guilty of victimization, unfair labour

practice or mala fide”.

19. The learned Counsel for the respondent further

ubmit that in a Domestic Enquiry there is no need to

produce strict proof of legal evidence. Moreover, the

adequacy of evidence are reliability of evidence cannot

be permitted to the canvass before the Labour Court

unless the order suffer from patent error or perversity.

In this respect, the learned Counsel for the respondent

has invited this Court attention to the Judgment of

Apex Court State Bank of Bikaner and Jaipur vs. Nemi

Chand Nalwaya, (2011) 4 SCC 584 “this Court held that

the Courts will not act as an appellate Court and

reassess the evidence led in the Domestic Enquiry, nor

interfere on the ground that another view is possible

on the material on record. If ,the enquiry has been fairly

and properly held and the findings are based on

evidence, the question of adequacy of the evidence or

the reliable nature of the evidence will not be ground

for interfering with the findings in Departmental

enquiries. The Court held as under:

LA GAZETTE DE L’ETAT

[18 January 2022

“It is now well settled that the Courts will not act as

an appellate Court and reassess the evidence led in the

Domestic Enquiry, nor interfere on the ground that

another view is possible on the material on record. If,

the enquiry has been fairly and properly held and the

findings are based on evidence, the question of

adequacy of the evidence or the reliable nature of the

evidence will not be grounds for interfering with the

findings in Departmental enquiries. Therefore, Courts

will not interfere with findings of fact recorded in

departmental enquiries, except where such findings are

based on no evidence or where they are clearly

perverse. The test to find out perversity is to see

whether a tribunal acting reasonably could have arrived

at such conclusion or finding, on the material on record.

Courts will howevers, interfere with the findings in

disciplinary matters if principles of natural justice or

statutory regulations have been violated or if, the order

is found to be arbitrary, capricious, mala fide or based

on extraneous considerations”.

20. In yet another land mark Judgment our Hon’ble

Apex Court held that while re-appreciate the evidence

the High Court cannot act as an Appellate Authority in

the disciplinary proceeding. In the Judgment, Union of

India vs. P. Gunasekaran, (2015) 2 SCC 610 our Hon’ble

Apex Court held “The Court held the parameters as to

when the High Court shall not interfere in the

disciplinary proceedings: “Under Article 226/227 of the

Constitution of India, the High Court shall not:

(i) re-appreciate the evidence;

(ii) interfere with the conclusions in the enquiry,

in case the same he been conducted in accordance

with law;

(iii) go into the adequacy of the evidence;

(iv) go into the reliability of the evidence;

(v) interfere, if, there be some legal evidence on

which findings can be based;

(vi) correct the error of fact however grave it may

appear to be;

(vii) go into the proportionality of punishment

unless it shocks its conscience”.

21. The learned Counsel for the respondent further

submit that it is the bounden duty of the Court to

scrutinize the evidence let in by the management and

adjudicate on the basis of available evidence. The

Courts cannot simply order reinstatement stating that

no disciplinary enquiry was held. Our Hon’ble High

Court in the case of GMM Company Ltd. Madras vs.

Labour Court (II Additional Judge) Madras, 2002 (2)

LLN 730 wherein, our Hon’ble High Court held “The

Labour Court though mentioned both the parties have

let in oral and documentary evidence failed to discuss

the same before reaching its conclusion of the order of

reinstatement. The Labour Court did not even whisper

that the petition under S.11A of the Industrial Disputes

Act has been filed by the management, which was

allowed and consequently evidences were let in by the

management, of Court by the workman also. Though the

Labour Court discussed some of the documents and

come to the conclusion that the order of termination

passed by the management without holding any enquiry

as if no petition under S.11A of the Act has been filed

by the management. Once the petition under S.11A was

allowed and evidences were let in by the parties, the

bounden duty of the Labour Court is to scrutinize the

same and adjudicate on the basis of such evidence. In

this case the Labour Court failed to scrutinize and

adjudicate upon the evidence let in before it”.

22. In the letter, dated 08-11-2013 which was marked

as Ex.P12. The management has mentioned the previous

misconduct of the petitioner. The management has issued

charge-sheet, dated 31-12-2008. Thiru K. Velmurugan,

Advocate, was appointed as Enquiry Officer during the

course of enquiry you have pleaded guilty on

08-01-2010 and the Enquiry Officer has concluded the

enquiry and found you guilty of the charges levelled

against you and submitted his final report, dated

26-02-2010. The charge-sheets, dated 31-12-2008 and

21-10-2011 were proved against the petitioner and the

respondent management has not found any mitigating

circumstances to reduce the punishment. While

imposing punishment the respondent is at liberty to

consider the previous conduct of the petitioner. The

attention of this Court is drawn to the Judgment of our

Hon’ble High Court in Engine Valves Ltd., Madras vs.

Labour Court Madras, 1991 (1) LLN 268 “we are of the

view that the Standing Order in question is in the nature

of an enabling provision casting an unilateral obligation

on the concerned authority to take into account the

previous record with no further duty or a corresponding

right in favour of the employee to either insist upon the

issue of a second show cause notice and an opportunity

or consideration by a detailed discussion of the

materials contained in such previous record. The factual

reference in the Order to the consideration having been

made of the previous record, in our view constitutes

sufficient compliance with the requirements of the

Standing Order in question and the grievance made

about the non-consideration of past record of service

before the Labour Court as well as the learned single

Judge and which found their acceptance wholly

unjustified and unwarranted. The nature of the

18 January 2022]

LA GAZETTE DE L’ETAT

consideration that is required could be indicative of the

manner in which it requires to be considered. In the light

of the ratio of the Apex Court that it is meant to be for

the unilateral consideration of the Authority, we are

obliged to conclude that the manner of consideration

of the past record adopted in. the case on hand

constitutes sufficient consideration as well as

compliance with the Standing Order in question and the

order of punishment could not be said to have been

vitiated on this account”.

23. The learned Counsel for the respondent submit

that even when the past misconduct of the employee is

condoned by acceptance of his apology it cannot be

the basis for discharge from service by way of

punishment is the argument advanced by the Counsel

for the petitioner which is not correct to the facts of

the present case. The petitioner was charge-sheeted for

Commission of fresh misconduct. The past misconducts

were identified and submitted before this Court only to

trengthen the action taken by the respondent. It is

further submitted the respondent after considering all

the

facts

and

circumstances

and

also

the

representations made by the petitioner has lost faith

with the petitioner and has passed final orders which

need not be interfered with and prayed for dismissal of

the claim made by the petitioner.

24. The loss of confidence and faith can only be

established through the objective facts that leads to a

definite inference that the conduct of the employees

made an apprehension in the mind of the employer that

further continuance of the employee in the services of

the company would be detrimental to the interest of the

Company. Our Hon’ble Apex Court in Kanhaiyalal

Agrawal vs. Gwalior Sugar Co. Ltd. “this Court laid

down the test for loss of confidence to find out as to

whether there was bona fide loss of confidence in the

employee, observing that, (SCC p.614), para (9) (i), the

workman is holding the position of trust and confidence;

(ii) by abusing such position, he commits an act which

results in forfeiting the same; and (iii) to continue him

in service/establishment would be embarrassing and

inconvenient to the employer, or would be detrimental

to the discipline or security of the establishment. Loss

of confidence cannot be subjective, based upon the

mind of the management. Objectives facts which would

lead to a definite inference of apprehension in the mind

of the management, regarding trustworthiness or

reliability of the employee, must be alleged and proved”.

25. This Court has carefully considered the rival

submissions made by both sides learned Counsel. This

Court is also carefully considered the document filed

on both sides. The entire case is based on the alleged

misconduct committed by the petitioner on 08-02-2012.

For the misconduct committed on 08-02-2012, the

petitioner along with Pandi and one Anbzhagan were

charge-sheeted on 18-02-2012. In order to bring out the

facts the respondent management has appointed

Tmt. Devasundari a practicing Advocate as Enquiry

Officer. The Enquiry Officer has conducted full fledged

enquiry on several dates. In the Domestic Enquiry RW.1

to RW.4 were examined on the management side and

Ex.R1 to R12 were marked on the management side. The

Enquiry Officer in her enquiry report Ex.P9 stated that

even after affording of several opportunities the

petitioner has not filed the list of witnesses and list of

documents. It was further noted by the Enquiry Officer

that the petitioner has filed four documents along with

written arguments on 28-01-2013 and same could not be

marked, since, the evidence was closed. Based on the

enquiry conducted by the Enquiry Officer, she has

submitted her Enquiry report, dated 12-06-2013. The

management after giving sufficient opportunity to the

petitioner by issuing notice, dated 08-11-2013 regarding

the proposed punishment and after considering the

explanation submitted by the petitioner has passed the

dismissal order, dated 12-12-2013.

26. On the petitioner side, it was contended that the

Enquiry Officer Tmt. Devasundari is the Junior Counsel

to the Senior Advocate who appearing for the

management in O.S. No. 986/2012. Since, the Enquiry

Officer is the Counsel in the management she has acted

partially and has not afforded any opportunity to the

petitioner and the entire enquiry report is unacceptable

since, the principle of law and the principle of natural

justice was not followed by the Enquiry Officer during

enquiry. At the same time, the Counsel for the

management contended that Tmt. Devasundari is not

Counsel on record in O.S. No. 986/2012 and the

apprehension of the petitioner is not basis at all. The

petitioner has given Ex.P5 and Ex.P6 notice to the

Enquiry Officer that he has not followed the principles

of natural justice and she is acting in favour of the

management. Though there are allegations levelled

against the Enquiry Officer the petitioner has not

substantiated the same. This Court has perused the

enquiry proceedings conducted by the Enquiry Officer

on perusal of the enquiry proceedings it is found that

the petitioner was afforded several opportunities for

cross-examination of RW.1 to RW.4. Since, the petitioner

has not filed the list of witnesses and list of documents

his evidence was closed and the Enquiry Officer

proceeded to file her enquiry report based on the

available evidence and available documents as such this

Court has not found any perversity in the report of the

Enquiry Officer.

LA GAZETTE DE L’ETAT

[18 January 2022

27. In Ex.P12, dated 08-12-2013 information as to

proposed punishment was given to the petitioner. After

considering his explanation and previous misconduct,

the Disciplinary Authority Vice-President HR has issued

the order of dismissal from service.

28. Before this Court RW1 to RW3 were examined.

PW1 Thiru Lucas, Factory Manager has deposed that

the petitioner along with 17 workers have stopped the

production abruptly and left the place of work without

even informing to the production supervisor Thiru Sunil

and they have failed to reach the target fixed by the

production supervisor. On 08-02-2012, the production

superior fixed the target of 50 moulds. However, the

petitioner and others altercate with the production

Supervisor Sunil and informed him that they can only

make 40 moulds. RW2 and RW3 deposed about the

misdeeds committed by the petitioner and others on the

date of strike initiated by the Medimix Thozhilalargal

Sangam. On the respondent side they have marked Ex.R2

which is the letter written by the co-worker Pandi, dated

12-06-2014 admitting his guilty and seek apology for his

mistakes and resigned from the post of Vice-President

of Medimix Thozhilalargal Sangam. It was argued on the

side of the respondent that another co-employee

Anbazhagan was also pleaded guilty and settled with

his account with a company.

29. Our Hon’ble Apex Court in plethora of decisions

held that the disciplinary authority is the sole Judge of

the facts. In the disciplinary enquiry strict rule of

evidence and strict rules of legal evidence and finding

on the evidence are not so relevant. Moreover, the

adequacy of the evidence and the reliability of the

evidence cannot be permitted to be canvassed before

the tribunal. In Union of India vs. H.C. Goel (1964)

4 SCR 781” upon consideration, the evidence reached

by the disciplinary authority, is perverse or suffer from

patent error on the face of the record or based on no

evidence at all, a writ of certiorari.

30. Our Hon’ble Apex Court in High Court of Judicature

at Bombay through its Registrar vs. Shashikant S. Patil

and another case law reported in (2000) 1 SCC 416 held

“the division bench of the High Court seems to have

approached the case as though it was an appeal against

the order of the administrative/disciplinary authority of

the High Court. Interference with the decision of

Departmental authorities can be permitted, while

exercising jurisdiction under Article 226 of the

Constitution if such authority had held proceedings in

violation of the principles of natural justice or in

violation of statutory regulations prescribing the mode

of such enquiry or if the decision of the authority is

vitiated by considerations extraneous to the evidence

and merits of the case, or if the conclusion made by the

authority, on the very face of it, is wholly arbitrary or

capricious that no reasonable person could have arrived

at such a conclusion, or grounds very similar to the

above. But, we cannot overlook that the Departmental

authority (in this case the Disciplinary Committee of the

High Court) is the sole judge of the facts, if, the enquiry

has been properly conducted. The settled legal position

is that if, there is some legal evidence on which the

findings can be based, then adequacy or even reliability

of that evidence is not a matter for canvassing before

the High Court in a writ petition filed under Article 226

of the Constitution”.

31. In the land mark Judgment the State of Karnataka

and Another vs. N. Gangaraj case law reported in CDJ

2000 SC 180 our Hon’ble Apex Court held “the

disciplinary authority agreed with the findings of the

Enquiry Officer and had passed an order of punishment.

An appeal before the State Government was also

dismissed. Once the evidence has been accepted by the

Departmental authority, in exercise of power of judicial

review, the Tribunal or the High Court could not

interfere with the findings of facts recorded by

reappreciating evidence as if, the Courts are the

Appellate Authority”.

32. This Court is of the considered opinion that the

misconduct of the petitioner is proved in the Domestic

Enquiry conducted by the Enquiry Officer and also from

the evidence adduced by the witnesses before this

Court. Based on the Enquiry report of the Enquiry

Officer the disciplinary authority after giving opportunity

to the petitioner and after considering his previous

misconduct of the petitioner and considering gravity of

the charges has lost confidence with the petitioner. The

management is of the further opinion that if the petitioner

is not discharged from the service of the management

the respondent would be put to irreparable loss was

stated in the said dismissal order. The disciplinary

authority has stated there is no mitigating circumstances

to reduce the punishment.

33. This Court is of the opimon that the petitioner

failed to establish that he was charge-sheeted by the

respondent management only to victimize him, Since, he

is actively participated in the Medimix Thozhilalargal

Sangam Trade Union. The members of the Medimix

Thozhilalargal Sangam Trade Union are still working

with the respondent management. Hence, this Court

come to the conclusion that the management has not

adopted unfair labour practice against the petitioner

who is the office bearer of the Medimix Thozhilalargal

Sangam. This Court is of the further opinion that the

Enquiry Officer is promptly and fairly conducted

the Domestic Enqiury and found the petitioner guilty

18 January 2022]

LA GAZETTE DE L’ETAT

of the charges. The disciplinary authority also applied

his mind and passed the order of dismissal. Before this

Court the respondent management has proved the

misconduct of the petitioner by acceptable evidence.

This Court could not find any reason to interfere with

the order of dismissal passed by the respondent

management.

34. Since, the petitioner workman was worked in the

respondent management for more than 18 years he is

entitled for other monetary benefit while he was

terminated from service. Since, the respondent

management lost faith on the petitioner, this Court is

of the opinion that the workman is not entitled for any

reinstatement as claimed by him. However, this Court

can granted an alternative remedy to the petitioner by

working out just compensation tentatively for his long

tenure of service. Moreover, the right to “life” as

enshrined in Article 21 of the Constitution denotes right

to live a dignified life.

35. The petitioner worked in the respondent

management for about 18 years. On the petitioner side

it was submitted that he was not in gainful employment

elsewhere and his family is suffering without any

employment and without any income.

36. Considering the overall circumstances of the

case, this Court is of the considered opinion to fix

reasonable quantum of compensation to meet the ends

of justice. This Court direct the respondent management

to pay a sum of ` 3,00,000 (Rupees three lakhs only) as

compensation to the petitioner. Apart from the

compensation above fixed, the petitioner workman is

entitled for all other retirement benefit as if he is in the

service of the respondent management.

37. In the result, the petition is dismissed. The

termination of the petitioner Thiru V. Siva Kumar from

the service of the respondent management is justified.

The respondent is directed to pay the compensation

amount of ` 3,00,000 (Rupees three lakh only) and other

monetar benefit to the petitioner within a period of six

weeks from the date of this order. No costs.

Dictated to Stenographer, transcribed by him,

corrected and pronounced by me in the open Court, on

this 7th day of October, 202l.

R. BHARANIDHARAN,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.

List of petitioner’s witness:

PW.1

— 15-02-2016

V. Siva Kumar

List of petitioner’s exhibits:

Ex.P1

— 18-02-2012

Letter regarding call for

explanation letter sent by

the Factory Manager to the

petitioner V. Siva Kumar.

Ex.P2

— 08-03-2012

Copy of the reply given by

the petitioner V. Siva Kumar

to the letter sent by the

Factory Manager.

Ex.P3

— 12-04-2012

Reply given by the Factory

manager to the petitioner for

conducting

Enquiry

proceedings based on the

non satisfaction of the

given

the

petitioner on the show

cause notice.

Ex.P4

— 02-05-2012

Suspension

order

and

Enquiry

Proceedings

information sent by the

General Manager to the

petitioner.

Ex.P5

— 20-10-2012

Copy of the letter sent by

the petitioner to the Enquiry

Officer regarding Principles

of Natural Justice was not

followed by the Respondent

Management.

Ex.P6

— 17-11-2012

Copy of the letter sent

through registered post by

15-12-2012

the

petitioners

the

Disciplinary authority.

Ex.P7

— 28-01-2013

Copy of the Final Written

Statement sent by the

petitioner to the Enquiry

Officer.

Ex.P8

— 14-05-2012

Copy of the Enquiry

proceedings.

26-12-2012

Ex.P9

— 12-06-2013

Copy of the Enquiry Officer

report.

Ex.P10 — 23-08-2013

Show cause notice sent by

the respondent management

to the petitioner V. Siva

Kumar.

LA GAZETTE DE L’ETAT

[18 January 2022

Ex.P11 — 03-09-2013

Copy of the reply given by

the petitioner V. Siva Kumar

the

letter,

dated

23-08-2013 of Disciplinary

authority.

Ex.P12 — 08-11-2013

Notice of punishment to be

proposed

sent

the

Disciplinary authority to the

petitioner V. Siva Kumar.

Ex.P13 — 18-11-2013 Copy of the reply given by

the petitioner V. Siva Kumar

to the notice of Disciplinary

authority.

Ex.P14 — 12-12-2013 Dismissal order given by

the Disciplinary authority

to the petitioner V. Siva

Kumar.

Ex.P15 — 20-12-2013

Requisition to withdraw the

termination submitted by

the petitioner V. Siva Kumar.

Ex.P16 — 14-02-2014

Petition filed under section

2A of ID Act by the

petitioner V. Siva Kumar.

Ex.P17 — 16-05-2014

given

the

respondent management to

the

Labour

Officer

(Conciliation).

Ex.P18 — 08-12-2014 Failure report submitted by

the

Labour

Officer

(Conciliation)

the

Secretary to Government,

Puducherry.

Ex.P19 — 08-02-2013 Copy of the Petitioner

P r o c e s s

C l e a r a n c e

Certificate.

Ex.P20 — 12-11-2014 Copy of the Making Report.

Ex.P21 — 05-06-2012 Signature of RW1 found in

the Acknowledgment Card.

Ex.P22 — 04-06-2012

Copy of the Staffs Attendance

05-06-2012

Ex.P23 — 05-06-2012

Copy of Affixed Notice

(Lockout).

List of respondent’s witnesses:

RW1

— 01-02-2018

E.M.I.D. Lucas

RW2

— 28-02-2018

K. Saravanan

RW3

— 28-02-2018

P. Sundar

List of respondent’s exhibits:

Ex.R1

— 12-12-2013

Punishment Order sent by

M/s. AVA Cholayil Health

Care Private Limited to

V. Siva Kumar.

Ex.R2

— 12-06-2014

Letter

submitted

Co-employee A. Pondi to

AVA Cholayil Health Care

Private Limited.

Ex.R3

— 26-02-2010

Report by Enquiry Officer,

Advocate K. Velmurugan in

the Charge-sheet, dated

31-12-2008 by AVA Cholayil

Health Care Private Limited

to V. Siva Kumar.

Ex.R4

— 05-06-.2012 C o m p l a i n t g i v e n b y

K. Saravanan against the

Striking Workmen to the

Management.

Ex.R5

— 05-06-2012

Complaint given by P. Sundar

against the Striking Workmen

to the Management.

R. BHARANIDHARAN,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.

————

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 88/Lab./AIL/T/2021,

Puducherry, dated 28th December 2021)

NOTIFICATION

Whereas, an Award in I.D (L) No. 12/2017,

dated 24-11-2021 of the Industrial Tribunal-cum-Labour

Court, Puducherry, in respect of the Industrial Dispute

between Management of M/s. The Karaikal Women

Co-operative Printing Society Limited, Karaikal and

Selvi M. Kalaivani, Karaikal, over refusal of 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 23-05-1991, it is hereby directed

by the Secretary to Government (Labour) that the said

Award, shall be published in the Official Gazette,

Puducherry.

(By order)

D. MOHAN KUMAR,

Under Secretary to Government (Labour).

18 January 2022]

LA GAZETTE DE L’ETAT

BEFORE THE INDUSTRIAL TRIBUNAL-CUM-

LABOUR COURT AT PUDUCHERRY

Present :Thiru R. BHARANIDHARAN, M.L.

Presiding Officer.

Wednesday, the 24th day of November 2021.

I.D. (L) No. 12/2017

CNR. No. PYPY060000622017

Selvi M. Kalaivani,

No. 84, Mariamman Koil Street,

Thirunagar, Karaikal.

. . Petitioner

Versus

The President,

The Karaikal Women Co-operative Printing

Society Limited No. P.348,

No. 172, Bharathiyar Road,

(Old Bus Stand), Karaikal.

. . Respondent

This Industrial Dispute coming on 19-11-2021 before

me for final hearing in the presence of Thiru N. Ramar,

Representative for the petitioner and Thiru R. Vetriselvan,

Counsel for the respondent, upon hearing both sides,

perusing the case records, after having stood over for

consideration till this day, this Court delivered the

following:

AWARD

This Industrial Dispute arises out of the reference

made by the Government of Puducherry vide G.O. Rt.

No. 33/AIL/Lab./T/2017, dated 05-04-2017 of the Labour

Department, Puducherry to resolve the following

dispute between the petitioner and the respondent viz.,

(a) Whether the dispute raised by the petitioner

Selvi M. Kalaivanai, Karaikal, against the management

of M/s. The Karaikal Women Co-operative Printing

Society Limited, Karaikal, over refusal of employment

is justified or not? If justified, what relief she is

entitled to?

(b) To compute the relief, if any, awarded in terms

of money if, it can be so computed?

2. Brief averments made in the claim Statement of

the petitioner:

The petitioner is a work woman appointed in the

respondent Society on 01-12-2011. The petitioner

engaged in binding machine work and also acted as

a milk vendor and received monthly salary of ` 3,503.

On 01-06-2015, when the petitioner went to attend

her regular duty the respondent management did not

permitted her and refused employment to the

petitioner. The petitioner has preferred an Industrial

Dispute before the Labour Department, Karaikal on

27-01-2016. The respondent has given a reply before

the Labour Officer, Karaikal, that due to financial

constraints they could not offer employment to the

petitioner. Before the Labour Officer the petitioner

has submitted that she was in the services of the

respondent management as direct employee from

01-12-2011. The respondent cannot denied employment

to the petitioner by stating their financial constraints.

The respondent has given a technical break in the

services of the petitioner which is against the

principles of natural justice. The Conciliation before

the Labour Officer, Karaikal, was ended in failure and

the matter was referred for adjudication before this

Court. The petitioner is suffering for four years

without any salary and without any employment.

Hence, prayed for reemployment with continuity of

services.

3. The brief averments in the counter filed are as

follows:

The petitioner is an unskilled labour engaged on

daily wages basis for ` 120 per day. She has attended

the book binding work and milk vending work

conducted by the respondent management. The

respondent management never paid monthly salary

of ` 3,503 to the petitioner. The petitioner was paid

` 120 per day only on daily wages basis since, there

was no regular work in the respondent management.

The petitioner was given break of service for the

period August 2013 to Novernber 2013. Thereafter,

for the abovesaid reason break of service from

January 2014 to February 2014 and also April 2014

to June 2014 was given to the petitioner. The

petitioner was not engaged as a regular employee or

permanent employee the petitioner is not entitled for

any permanent job as prayed in the petition since,

the respondent management was not able to disburse

the monthly salary for 5 months for the regular

employees due to financial constraints. The

respondent management has decided not to give

employment to the petitioner since, there was

pressure on the side of the Provident Fund

contribution payment and payment of LIC of India.

The Directors of the Society has unanimously

decided not to give employment to the petitioner. The

respondent society is a small Society without much

investment and there is a decline in the printing

industry. The respondent management could not

compete with the other private printers, since, the

respondent management has faced severe financial

LA GAZETTE DE L’ETAT

[18 January 2022

constraints they could not afford any employment to

the petitioner since, the petitioner is not the

permanent employee of the respondent management,

she is not entitled for permanent employment with

backwages. The petition is devoid of merit and

hence, the same has to be dismissed.

4. Points for consideration:

W h e t h e r t h e r e s p o n d e n t m a n a g e m e n t

M/s. Karaikal Women Co-operative Printing Societ

Limited, Karaikal, is justified? over refusal of

employment to the petitioner?

5. On the petitioner side Selvi M. Kalaivani was

examined as PW.1 and through her proof affidavit was

filed. The petitioner Selvi Kalaivani, has deposed that

she has joined Services of the respondent management

on 01-12-2011 and has indulged in binding machine work

and milk vending work. The respondent management

refused to give employment to the petitioner which is

against the principle laid down in section 25-F of the

Industrial Dispute Act. The petitioner prays for

reemployment with continuity of services along with

back wages and other benefits.

6. On the petitioner side Ex.P1 to Ex.P3 were marked.

Ex.P1 is the requisition submitted by the petitioner,

dated 27-01-2016 for conciliation. Ex.P2 is the reply filed

by the respondent management before the Conciliation

Officer. Ex.P3 is the detail of break of service given by

the respondent management to the petitioner. The

petitioner was cross-examined in detail by the

respondent management.

7. During the pendency of the case before this

Court, for examination of respondent said evidence the

respondent has filed a memo stating that the respondent

is ready to appoint the petitioner as milk vendor with

daily wages of ` 220 per day. The respondent

management has further stated in the memo that the

wages of the petitioner could be regularized under

the Grade-II permanent employment to be given to the

petitioner as per the recommendations of the 4th Pay

Commission within the period of one year. It is further

stated in the memo, since, the respondent Society is

functioning not in good condition they could not offer

any back wages. The respondent management has

consent to give employment to the petitioner from

01-12-2021. On the petitioner side they have accepted

the proposal stated in the memo filed by the respondent

and the representative of the petitioner was accepted

for the waiver of back wages.

8. This Court has carefully considered the rival

submissions made by the both sides. This Court has

also taken into consideration the memo filed on the

respondent side. On the respondent side they have

consented for reemployment of the petitioner with daily

wage at the rate of ` 220 per day and also they assured

to make the petitioner as permanent employee from

02-05-2022. On the petitioner side it was fairly accepted

not to claim continuity of services, back wages and

other benefits. This Court after hearing both sides deem

it fit to pass Award.

9. In the result, the petition is partly allowed. The

respondent is directed to give employment to the

petitioner from 01-12-2021. The respondent is further

directed to regularize the service of the petitioner as

permanent employee from 02-05-2022. The petitioner is

not entitled for continuity of service and back wages.

No costs.

Dictated to Stenographer, transcribed by him,

corrected and pronounced by me in the open Court, on

this 24th day of November, 2021.

R. BHARANIDHARAN,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.

List of petitioner’s witness:

PW.1

— 23-01-2020

Selvi M. Kalaivani

List of petitioner’s exhibits:

Ex.P1

— 27-01-2016

Copy of the representation

given by the petitioner to

the

Labour

Officer

(Conciliation), Karaikal.

Ex.P2

— 16-02-2016

Copy of reply submitted by

the

respondent

the

Labour Officer (Conciliation),

Karaikal.

EX.P3 — 09-03-2016

Copy of the petitioner

(working days schedule)

submitted

the

respondent to the Labour

Officer

(Conciliation),

Karaikal.

List of respondent’s witnesses: Nil

List of respondent’s exhibits: Nil

R. BHARANIDHARAN,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.