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CONTENTS
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Acquisition de certain terrains
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Acquisition of certain lands ..
212
ÁÔBÔ©√|›m>_
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220
Sentence arbitral du Travail
.. 220
Award of the Labour Court .. 220
de Tribunal.
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Notifications du Gouvernement .. 230
Government Notifications
.. 230
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233
Annonces
.. 233
Announcements
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233
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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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7 {
No.
10
Poudouchéry
Mardi
7
Mars
2023 (16 Phalguna 1944)
No.
Puducherry
Tuesday
7th
March
2023
220
LA GAZETTE DE L’ETAT
[7 March 2023
GOVERNMENT OF PUDUCHERRY
LABOUR DEPARTMENT
(G.O. Rt. No. 03/AIL/Lab./T/2022,
Puducherry, dated 5th January 2023)
NOTIFICATION
Whereas, an Award in I.D (L) No. 48/2017 dated
22-11-2022 of the Industrial Tribunal-cum-Labour Court,
Puducherry, in respect of Dispute between the
management of M/s. Ramanathapuram Co-operative Milk
Producers Society, Puducherry and its workman Thiru
S. Murugan, Puducherry, over reinstatement with back
wages;
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. 20/9/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)
P. RAGINI,
Under Secretary to Government (Labour).
————
BEFORE THE INDUSTRIAL TRIBUNAL-CUM-
LABOUR COURT AT PUDUCHERRY
Present :Tmt. V. SOFANA DEVI, M.L.,
Presiding Officer.
Tuesday, the 22nd day of November 2022.
I.D. (L) No. 48/2017
CNR. No. PYPY06-000079-2017
Murugan, s/o. Srinivasan,
No. 53, Manjalai Street,
Ramanathapuram,
Thondamanatham Post,
Puducherry.
. . Petitioner
Versus
The Managing Director,
M/s. Ramanathapuram Co-operative
Milk Producers Society Limited,
No. P.440, Ramanathapuram,
Thondamanatham Post,
Puducherry.
. . Respondent
This Industrial Dispute coming on 08-11-2022 before
me for final hearing in the presence of Thiruvalargal
L. Swaminathan and I. Ilankumar, Counsel for the
Petitioner, Thiruvalargal C. Prabagarane, K. Karpaganadan
and S. Chandrasekaran, Counsels for the Respondent,
and after hearing the both sides and perusing the case
records, 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. 135/AIL/Lab./T/2017, dated 29-08-2017 of the Labour
Department, Puducherry, to resolve the following
dispute between the Petitioner and the Respondents,
viz.,
(a) Whether the dispute raised by Petitioner
Thiru S. Murugan, Puducherry, against the Management
of M/s. Ramanathapuram Co-operative Milk
Producers Society Limited, Puducherry over
reinstatement with back wages is justifiable or not?
If justified, what relief the Petitioner is entitled to?
(b) To compute the relief if any, awarded in terms
of money if, it can be so computed?
2. Brief facts of the case of the Petitioner averred
in the claim petition:
The
then
Board
of
Directors
of
the
Ramanathapuram Co-operative Milk Producers’
Society passed a Resolution on 12-04-1985 for
Appointment of a Measurer to the Society.
Accordingly the name of the Claim Petitioner was
proposed in the said Board Meeting which had given
its consent for his Appointment as Measurer with
effect from 01-05-1985 with pay of ` 125 per month.
Upon satisfaction of the performance in the post of
Measurer, the Petitioner was promoted to the next
higher post of Milk Tester and was paid ` 1,200 per
month. Thereafter, the Petitioner was accorded with
further promotion and was designated as paid
Secretary of the Society with effect from 01-01-1996
carrying the pre-revised Scale of Pay of ` 1,500-3,500.
(ii) In this milieu, the Petitioner was issued with
an Office Order, dated 22-09-2001 by the then
Administrator of the Ramanathapuram Co-operative
Milk Producers Society fixing the duties and
responsibilities. When the matter stood thus,
Mr. R. Jayamurthy who was deputed from the
Co-operative Department to act as the Administrator
of the Society in the absence of the elected Board
of Directors, called for an explanation from the
Petitioner pertaining to certain corrections noticed in
the ledger/register maintained for the purpose of
making entries to the supply of Milk by the Members
of the Society by his letter, dated 01-06-2002.
221
7 March 2023]
LA GAZETTE DE L’ETAT
(iii) The then Administrator Mr. R. Jayamurthy
without any prima facie grounds and due to certain
external compulsions, issued a Memorandum, dated
25-06-2002 to the Petitioner alleging three baseless
charges and directed the Petitioner to submit an
explanation to the said memorandum on or before
28-06-2002. Before the Petitioner could apply his
mind on the baseless charges, the then Administrator
Mr. R. Jayamurthy with a predetermined mind and
without waiting for any explanation had issued the
Order of Suspension, dated 29-06-2002 and the
Petitioner had to face Suspension with effect from
01-07-2002 and no Subsistence Allowance was paid
during the entire period of Suspension.
(iv) The Petitioner had approached the Hon’ble
High Court of Judicature, Madras in W.P. No. 49211/
2006 challenging the Order of Suspension by clearly
stating that the Petitioner was not paid Subsistence
Allowance for nearly 52 months and Hon’ble High
Court of Judicature by its Order, dated 12-12-2006
directed the Society to pay the Subsistence
Allowance which is also not paid till date. While so,
the then President of the Society Mr. S. Munisamy
had reinstated the Petitioner with a condition that he
should withdraw W.P. No. 49211/2006 and should also
not seek Subsistence Allowance from 01-07-2002 to
11-02-2007 and accordingly the Petitioner was
reinstated on 12-02-2007 based on the Resolution of
the Board of Society dated 11-02-2007. Meanwhile,
another team of Board of Directors assumed the
Office of the Society and the then President without
any cause of action/reasons had suspended the
Petitioner again on 04-03-2008. Charge memorandum,
dated 30-06-2008 is only about the so-called
commissions that took place from the year 1998 –
2001 which suffers from delay and latches and hence
the entire Charge Memorandum is vitiated for the
purpose of victimizing the Claim Petitioner.
(v) The Enquiry Officer had conducted an ex parte
enquiry without affording a reasonable opportunity
to the petitioner and based on the ex parte Enquiry
Report, dated 22-09-2008 followed by the Board
Resolution, dated 22-09-2008, the Petitioner was
dismissed from service on 30-09-2008 and till date is
without any employment suffering for the next day
meal, was reduced to penury coupled with lot of
family difficulties which could not expressed in terms
of words and was not in a position to apply his mind
to the illegal Order of dismissal from services and
also the breach of trust committed by the Society and
became sole victim for the Political game played by
the Board of Directors of the Society.
(vi) After recovering slightly from the mental
trauma and as nothing progressed, the Petitioner was
left with no other alternative than to knock the
doors of the Labour Officer (Conciliation),
Puducherry on 09-11-2016 under Section 2-A of the
Industrial Disputes Act, to issue Notice to the
Ramanathapuram Co-operative Milk Producers
Society,
Ramanathapuram,
Thondamanatham,
Puducherry to conciliate on the illegal Order of
dismissal, dated 30-09-2008 and prayed to issue a
direction to the Society to reinstate into services with
all back wages and attendant benefits.
(vii) The then Administrator of the Respondent
Society without application of mind had filed the
reply statement, dated 29-11-2016 before the Labour
Officer (Conciliation), Puducherry and had stated
that “there exists no necessity in the Society to
employ additional staff to run the Society. The
Society is not in a position to reinstate the Petitioner
into services of the Society”. To the said reply
statement, the Petitioner had submitted his
objections, dated 10-12-2016 in which it has been
clearly emphasized that the Respondent Society had
dismissed the Petitioner based on an improper
enquiry report by stating a flimsy and whimsical
reason that the Petitioner was an additional staff who
had rendered regular service and further stating that
there was no revenue to incur the recurring
expenditure of the Respondent Society such as staff
salary, transportation, electricity charges cannot be
a sound reason for non-employment of the Petitioner
in the Respondent Society.
(viii) It is a clear case of victimisation,
non-application of mind of the Respondent Society.
As there was no consensus between the Petitioner
and the Respondent Society on the ground of
re-employment, the Labour Officer (Conciliation),
Puducherry had submitted a Report of failure of
Conciliation through letter, dated 21-07-2017
addressed to the Secretary to Government (Labour),
Government of Puducherry which was subsequently
published in the Gazette vide Notification, dated
29-08-2017 of Under Secretary to Government
(Labour), Government of Puducherry.
(ix) The Petitioner was made a scape-goat by the
Ramanathapuram Co-operative Milk Producer’s
Society herein for not withdrawing W.P. No. 49211/
2006 and was again suspended from service on
04-03-2008 is a clear case of arbitrariness and
victimization. Hence, the order of Suspension, dated
04-03-2008 and the consequent Order of Termination,
dated 30-09-2008 are mala fide without any
222
LA GAZETTE DE L’ETAT
[7 March 2023
prima facie grounds. The Enquiry Officer without
affording a reasonable opportunity had conducted an
ex parte enquiry based on the dictums of the then
Board of Directors which is evident from the Enquiry
Report and was terminated from service on
30-09-2008. Thus, the principles of natural justice of
Audi Alteram Partem (No one should be condemned
unheard) had taken a specific beating in this case.
The Enquiry Officer had submitted the Enquiry
Report, dated 22-09-2008 and the order of
Termination, dated 30-09-2008 based on the said
Enquiry Report depicts the fanciful speculation made
out by the Respondent Society in terminating the
Petitioner in a hurried manner.
(x) Hence, the Petitioner prays to direct the
Respondent Society to reinstate the Petitioner into
service with all attendant and consequential benefits
incidental thereto from the date of Termination, dated
30-09-2008 till the date of Petitioner’s reinstatement
into services. Hence the Petition.
3. The brief averments of the counter filed by the
respondent are as follows:
The Ramanathapuram Co-operative Milk Producers
Society is a registered Co-operative Society,
registered under the Puducherry Co-operative
Societies Act 1972 and the Rules 1973 made there
under. The registered Co-operative society has got
its own Bye-laws and also registered Subsidiary
Regulations Governing the Service Conditions of the
Employees of the Ramanathapuram Co-operative
Milk Producers Society. Further, the Petitioner was
an employee of the said Society when he was
dismissed from the Society on 30-09-2008, and
therefore, all the provisions contained in the
Puducherry Co-operative Societies Act 1972, and
Rule 1973, the Bye-laws of the Society and the
Society Regulations Governing the Service
Conditions of the Employees of the said Society, are
applicable to him also.
(ii) The approved Subsidiary Regulations
Governing the Service conditions of the employees
of the Ramanathapuram Co-operative Milk Producers
Society got various provisions relating to the service
conditions, and also how to suspend an employee
from the Society, powers to appoint the Enquiry
Officer, Presenting Officer and also the procedure to
conduct the Disciplinary Enquiry and how the show
cause notice to be issued to the employees of the
society before giving the punishment in the
disciplinary proceedings, etc., In the Subsidiary
Regulations it is also given who is the competent
Authority to take a disciplinary case, and
accordingly the President of the Society is the
Competent Authority to take disciplinary action
against the employees and in the said Subsidiary
Regulations it is also stated that to whom an Appeal
on the punishment imposed can be filing and the
points to be covered in the Appeal petition, etc.
(iii) According to the provisions contained in the
Subsidiary Regulations Governing the Service
Conditions of the employees of the society at page 25,
rule 24(2), the President of the Society is the
Competent Authority to initiate and decide on any
disciplinary proceedings, against the employees of
the Society, following the procedures prescribed in
rule 31 of the Subsidiary Regulations and if the
employee aggrieved by the punishment given by the
President of the Society then those employees can
file an Appeal before the Committee of Management
of the Society, under rule 27 of the said Subsidiary
Regulations Governing the Service Conditions of the
employees of the Society. In the Subsidiary
Regulations under Rule 26, the appointing authority
(the President) of the society may place an employee
under suspension pending disciplinary proceedings
against the employee.
(iv) The Petitioner was dismissed by a Termination
Order on 30-09-2008 after conduct of Disciplinary
Enquiry by a third person and after following all the
procedures enumerated in the Subsidiary Regulations,
by the President of Society, who is the competent
authority to take disciplinary action, as state above.
The Petitioner on receipt of the Termination Order not
filed any appeal before the Committee of
Management of the society as per the procedure
contemplated in the Subsidiary Regulations, under
rule 27, but filed a petition before the Labour Officer
(Conciliation), Puducherry straight away only on
09-11-2016 under section 2A of the Industrial
Disputes Act i.e., after a lapse of 8 years and one
month and 8 days and on failure of the Conciliation,
now this dispute is before this Court.
(v) The Petitioner without exhausting the alternate,
effective and efficacious remedy available in the form
of Appeal before the Committee of Management of
the Society, or Revision under Section 141 of the
Puducherry Co-operative Societies Act 1972, before
the Registrar of Co-operative Societies filed petition
before the Conciliation Officer in the Labour
Department. It is a well settled law that an aggrieved
employee should first exhaust the alternate, effective
and efficacious remedy at the lower lever before
coming for higher forum. Similarly, it is up to the
delinquent employee to prefer Revision before the
223
7 March 2023]
LA GAZETTE DE L’ETAT
Registrar of Co-operative Societies under the
Administrative side or comes under the Industrial
Disputes Act under the labour laws. Whereas the
delinquent employee, the Petitioner should have filed
an appeal petition before the Committee of
Management of the Society, as stated in the
subsidiary Regulations Governing the Service
Condition of the Society, before stepping into the
other alternate forum to get his grievance redressed,
which was not done by the Petitioner, and for that
only reason the Dispute petition should be dismissed
in limine.
(vi) The Petitioner was dismissed from the service
of the Society on 30-09-2008 after conducting the
disciplinary enquiry in which the Petitioner was not
participated in spite of the summon issued by the
Enquiry Officer to participate in the enquiry. The
Petitioner filed the petition before the Labour Officer
(Conciliation), Puducherry only on 09-11-2016 that is
after a lapse of 8 years, 1 month and 9 days, it shows
that the Petitioner has accepted the punishment of
dismissal. Further, the Petitioner has also not
submitted any Appeal Petition before the Committee
of Management of the Society under the provisions
of the Subsidiary Regulations, and also not submitted
any representation/reply for the show cause notice
issued to him, to show cause why punishment should
not be imposed to him. Therefore, the dismissal order
issued by the President of the Society to the
Petitioner, is legally correct and therefore there is no
need to set-aside the impugned order.
(vii) The Petitioner even after receipt of the
dismissal order, not submitted any representation to
consider his dismissal and stated any reason for not
participated in the Disciplinary Enquiry, to the
Disciplinary authority namely the President of the
Society. It means the Petitioner accepted the
dismissal order and only after a period of 8 years, he
has initiated to file a petition in this regard before
the Labour Officer (Conciliation), Puducherry under
the Labour law. It shows that the Petitioner has
accepted the dismissal order and kept quiet for a long
period of 8 years and more and therefore he is
estopped, from filing this dispute petition before this
Court.
(viii) The application referred to in sub-section (2)
shall be made to the Labour Court or Tribunal before
the expiry of 3 years from the date of discharge,
dismissal, retrenchment or otherwise Termination of
service as specified in sub-section (1). The dispute
petition is filed after more than 8 years of the
dismissal and therefore liable to be dismissed in
limine.
(ix) The Petitioner himself given a letter accepting
to forgo the Subsistence Allowance the Petitioner
accepted to withdraw the case filed before the
Hon’ble High Court of Judicature at Madras under
W.P. No. 49211/2006 during the discussion held by
the President and the Committee of management of
the society and submitted a letter in this regard on
10-02-2007, stating that he will withdraw the case filed
by him before the Hon’ble High Court, but, the
Petitioner not acted accordingly and the President of
the Society given reminder letters to the Petitioner
but he has not responded for the same but continued
to work in the Society and received the salary for the
period worked in the Society. The Hon’ble High Court
of Madras dismissed the W.P.49211/2006 stating the
reason that “dismissed for non-prosecution” on
27-06-2014.
(x) As per the Bye-law of the Society only a
member who have participated in the business of the
Society, i.e., supply of Milk and the prescribed liter
of the Milk in the previous financial year and then
only his/her name can be included in the Eligible
voter list. Those members name found in the Eligible
voter list alone can contest in the election and/or
vote for the Director Post. The main cause for the
Law and Order situation arise in the area of operation
of the Village is the President included the name of
one C. Vijayalatchumi Member No. 31 in the voter list
by falsification and correction of the members
payment and procurement ledgers, so as to show
that, she is eligible to voter and contest in the
Society election. The same was done by the Petitioner
for the reason known to him. Due to the illegal and
unwarranted things done in the ledgers, a quarrel
was started among the members, since she contested
and her nomination also accepted. The elections was
stopped and therefore the new Committee of
Management of the Society could not enter into the
office and therefore, Administrator was appointed to
the Society to look after the day to day affairs of the
Society by the Registrar of Co-operative Societies.
The Administrator, assumed office and checked the
accounts of the society and found out that the paid
Secretary made corrections in the members milk
payment registers, by overwriting, striking out the
figures written earlier, and removing the written
letters by blade and erase the same, etc., Therefore,
he issued a memorandum to the petitioner on
01-06-2002 and again on 25-06-2002. The
Memorandum, dated 25-06-2002 served in person by
the Administrator of the Society was not received by
the Petitioner and refused to receive the same, which
is insubordination and disobedience of the orders of
the superior which amount to be Misconduct under
224
LA GAZETTE DE L’ETAT
[7 March 2023
the Subsidiary Regulations Governing the Service
Condition of the employees of the Society. Since the
Paid Secretary the Petitioner, not submitted any reply
till 29.06.2002 the Petitioner was suspended from the
service of the Society with effect from 29-06-2002.
(xi) After the election was conducted and new
committee of Management assumed office and the
President of Society, continued the matter stated
above and issued a memorandum to the Petitioner on
16-10-2002 as the Paid Secretary, he is responsible
for the maintenance of the Ledgers/documents of the
Society, stating that the reply called for by the
Administrator was not submitted till date, and
therefore further time of 7 days was given to the
petitioner, to submit his explanation for the show
cause notice issued to him. The Petitioner, the Paid
Secretary of the Society who was under suspension,
not responded for the memorandum issued calling for
his explanation, by the President of the Society,
which also amounts to insubordination and
disobedience of the orders of the superior leads to
Misconduct under the Subsidiary Regulations
Governing the Service Condition of the employees
of the Society.
(xii) The Petitioner was called for and the matter
was discussed before the Deputy Registrar (Milk)
and arrived a solution, and accordingly the
Petitioner, Thiru S. Murugan submitted a letter, dated
10-02-2007 to the President of the Society with the
following conditions:
(1) The case Number W.P.49211/2006 filed by
him before the Hon’ble High Court of
Judicature, will be withdrawn by him.
(2) Milk tester posted to be given to him with
effect from 16-02-2007.
(3) Basic pay should be fixed as ` 1,360.
(4) Subsistence Allowance for the period from
01-07-2002 to 30-09-2002 that is for the month
of July, August and September should be
given.
(5) Bonus for the year 2001-2002 to be paid to
him.
(6) Salary for the month of June 2022 to be paid.
(7) Bonus for the period from 01-04-2002 to
30-09-2002 to be paid.
(8) The amount to be paid by him to the Society
will be paid by him.
(9) The Subsistence Allowance for the period
from 01-10-2002 to 15-02-2007 will not be
asked or claimed by the Petitioner.
(xiii) Based on the letter of Thiru S. Murugan, and
the decision taken by the committee of Management
of the Society, Office Order was issued to the
petitioner on 15-02-2007 appointing him as the Milk
Tester in the Society with effect from 16-02-2007.
The Petitioner also accepted the order and
received and acknowledged the same. The Petitioner
Thiru S. Murugan also submitted a letter on
15-02-2007 accepting to work as the Milk Tester with
effect from 16-02-2007.
(xiv) The first condition of withdrawing the Writ
Petition by the Petitioner was not fulfilled by him in
spite of the Management executed the conditions like
payment of Subsistence Allowance, Bonus, Salary
and Posting as the Milk Tester etc., to him. The Writ
Petition is found to be dismissed for non-prosecution
only on 27th June 2014. The Petitioner not
responded and given any reply. The Petitioner is the
habit of non respond to any letter/memorandum
issued to him from the beginning of the memorandum
issued by the Administrator till the Petitioner was
dismissed from the service of the Society.
(xv) Since, the Petitioner not submitted any reply
it was decided to initiate the Disciplinary action, and
therefore, a memorandum of charges was issued to
him vide memorandum, dated 30-06-2008. On perusal
of the Enquiry Report, submitted by the Enquiry
Officer on 22-09-2008, page 4 of the Enquiry Report
it is understood that the Petitioner was not appeared
for the enquiry on 29-07-2008 up to 1.45 A.m and
therefore, in the interest of natural justice one more
chance was given and instructed to appear on
06-08-2008, but, the Petitioner delinquent official not
appeared for the enquiry and therefore, the Enquiry
Officer concluded the enquiry without the presence
of the Petitioner. On perusal of the Enquiry Report
the Enquiry Officer stated that out of 13 charges
framed 12 charges are proved and one charge
regarding his qualification and appointment only
partly proved. Out of 13 charges 12 charges are
found to be proved. This Respondent also submits
that all the charges are found to be proved by
documentary evidence.
(xvi) Even if it is taken as the old commissions
taken place from 1998 to 2001, the Petitioner not
denied by way of documentary evidence to show that
the irregularities was not done by him at least in the
claim petition. The petition filed under Section 2 A
of the Industrial Disputes Act 1947 only on
09-11-2016, that is after a lapse of 8 years, 1 month
and 9 days of the final orders issued to the Petitioner.
225
7 March 2023]
LA GAZETTE DE L’ETAT
The Petitioner filed the petition only on 09-11-2016
and therefore, the amendment of section 2 in the year
2010 is applicable and accordingly, the application
referred to in sub-section (2) shall be made to the
Labour Court or Tribunal before the expiry of three
years from the date of discharge, Dismissal,
Retrenchment or otherwise Termination of service as
specified in sub-section (1). The Respondent
therefore prays that this Court may dismiss the
petition as a time barred one. By issuing proper
charge memorandum, conducted enquiry and based
on the findings of the Enquiry Report, speaking show
cause notice was issued by the President, and since
the Petitioner not responded for the show cause
notice, proper final orders on the basis of the merit
of the case was issued and therefore, the legal order
issued to the Petitioner dismissing from the service
of the Society, is maintainable under the law.
Therefore, the prayer to direct the Respondent
Society to reinstate the claim Petitioner into service
with all attendant and consequential benefits
incidental thereto from the date of Termination, dated
30-09-2008 till the date of the Petitioners reinstatement
into services should be dismissed in limine.
4. Point for determination:
Whether the Petitioner employee is entitled for
an order of reinstatement with full back wages and
all attendant and consequential benefits as claimed
in the claim petition?
5. On Point:
Petitioner himself examined as PW.1 and Ex.P1
to P15 were marked. On Respondent side no witness
examined. Ex.R1 to R14 were marked during the
cross-examination of PW.1. Written Arguments filed
on Respondent side.
6. On the point:
On the side of the Respondent Management of
the Society, it is contended that the petition under
section 2-A of Industrial Disputes Act moved by the
Petitioner before the Labour Officer (Conciliation),
Puducherry directly on 09-11-2016, i.e., after a lapse
of 8 years 1 month and 8 days. On failure, the
dispute is referred by the Government of Puducherry
to this Court under the reference. Therefore, he
concluded that application under section 2-A of
Industrial Disputes Act, it should be made before the
expiry of 3 years from date of discharge, dismissal,
retrenchment or otherwise termination of service as
specified in sub-section (1). Thus, he prayed to
dismiss this application which was filed after 8 years
of his dismissal.
7. Petition under section 2-A of Industrial Disputes
Act filed by the Petitioner before the Labour Officer
(Conciliation), Government of Puducherry, on
09-11-2016. Whereas, he was dismissed from service on
30-09-2008. The Conciliation was ended in failure. Based
on the Failure report, the said reference made by the
Labour Department, Government of Puducherry to this
Court on 29-08-2017. These are admitted positions on
either side.
8. On close and careful perusal, I could find that
section 2-A of Industrial Disputes Act has been
inserted and thereafter amended by inserting
sub-section 1 and 2. As per the Amendment which was
made in the year 2010, the dismissed employee can
directly approach the Labour Officer (Conciliation) for
his relief by way of filing an application under section
2-A of Industrial Disputes Act. The dismissed employee
can approach directly the Labour Court after expiry of
45 days from the date of application under section 2-A
of Industrial Disputes Act before the Labour Officer
(Conciliation). This Amendment in the year 2010 which
enables the dismissed worker to approach the Labour
Court directly without waiting for the result of the
Conciliation beyond 45 days. Only in such
circumstances, to avail this protection to approach the
Labour Court directly, the dismissed worker ought to
have approach the Labour Court within 3 years from the
date of his dismissal. But, in this case, the dismissed
worker filed an application under section 2-A of
Industrial Disputes Act before the Labour Officer
(Conciliation), Government of Puducherry and waited
for the decision in the said conciliation. Since, the
Labour Officer (Conciliation), submitted a Failure Report,
the present reference was made to this Court for
disposal. Petitioner herein did not rush to this Court
pending conciliation proceedings. Only the Government
has referred the industrial dispute under sub-section (1)
of sec 10 of Industrial Disputes Act after the conciliation
ended in failure. Therefore, the Respondent argument
that industrial dispute should be filed within 3 years
from the date of dismissal does not applicable in the
instant case and the objection in this regard made on
the side of the Management Society is not sustainable
and thus rejected.
9. The next point of defence placed on the side of
Management Society is that the Petitioner has come to
this Court with an inordinate delay, i.e., 8 years from
the date of his dismissal. Admittedly, his date of
dismissal was 30-09-2008. He approached the Labour
Officer (Conciliation), Puducherry, only on 09-11-2016.
During arguments, the learned Counsel appearing for
Petitioner submitted a case law reported in 1999 (2) SCR
505 wherein, it is held that “the provisions of Article 137
226
LA GAZETTE DE L’ETAT
[7 March 2023
of the Schedule to Limitation Act, 1963 are not
applicable to the proceedings under the Industrial
Disputes Act and that the relief under it cannot be
denied to the workman nearly on the ground of
delay.......... No reference to the Labour Court can be
generally questioned on the ground of delay alone.
Even in a case where the delay is shown to be existing,
the Tribunal, Labour Court or Board, dealing with the
case can appropriately mould the relief by declining to
grant back wages to the workmen till the date he raised
the demand regarding this illegal retrenchment/
termination or dismissal.”
10. On this point of delayed demand, the Hon’ble
Supreme Court of India in Sri. Prabhakar vs. Joint
Director, Sericulture ... on 7th September, 2015 held that,
Para 40. On the basis of aforesaid discussion, we
summarise the legal position as under:
Para 41. An industrial dispute has to be referred
by the appropriate Government for adjudication and
the workman cannot approach the Labour Court or
Industrial Tribunal directly, except in those cases
which are covered by section 2-A of the Act.
Reference is made under section 10 of the Act in
those cases where the appropriate Government forms
an opinion that ‘any industrial dispute exists or is
apprehended’. The words ‘industrial dispute exists’
are of paramount importance unless there is an
existence of an industrial dispute (or the dispute is
apprehended or it is apprehended such a dispute may
arise in near future), no reference is to be made. Thus,
existence or apprehension of an industrial dispute is
a sine qua non for making the reference. No doubt,
at the time of taking a decision whether a reference
is to be made or not, the appropriate Government is
not to go into the merits of the dispute. Making of
reference is only an administrative function. At the
same time, on the basis of material on record,
satisfaction of the existence of the industrial dispute
or the apprehension of an industrial dispute is
necessary. Such existence/apprehension of industrial
dispute, thus, becomes a condition precedent, though
it will be only subjective satisfaction based on
material on record. Since, we are not concerned with
the satisfaction dealing with cases where there is
apprehended industrial dispute, discussion that
follows would confine to existence of an industrial
dispute. Dispute or difference arises when one party
make a demand and other party rejects the same. It
is held by this Court in number of cases that before
raising the industrial dispute making of demand is a
necessary pre-condition. In such a scenario, if, the
services of a workman are terminated and he does
not make the demand and/or raise the issue alleging
wrongful termination immediately thereafter or within
reasonable time and raises the same after considerable
lapse of period, whether it can be said that industrial
dispute still exist. Since, there is no period of
limitation, it gives right to the workman to raise the
dispute even belatedly. However, if, the dispute is
raised after a long period, it has to be seen as to
whether such a dispute still exists? Thus,
notwithstanding the fact that law of limitation does
not apply, it is to be shown by the workman that
there is a dispute in praesenti. For this purpose, he
has to demonstrate that even if, considerable period
has lapsed and there are laches and delays, such
delay has not resulted into making the industrial
dispute seized to exist. Therefore, if, the workman is
able to give satisfactory explanation for these laches
and delays, and demonstrate that the circumstances
discloses that issue is still alive, delay would not
come in his way because of the reason that law of
limitation has no application. On the other hand, if,
because of such delay dispute no longer remains
alive and is to be treated as “dead”, then it would
be non-existent dispute which cannot be referred.
…......where there was no agitation by the workman
against his termination and the dispute is raised
belatedly and the delay or laches remain unexplained,
it would be presumed that he had waived his right
or acquiesced into the act of termination and,
therefore, at the time when the dispute is raised it
had become stale and was not an ‘existing dispute’.
In such circumstances, the appropriate Government
can refuse to make reference. In the alternative, the
Labour Court/Industrial Court can also hold that
there is no “industrial dispute” within the meaning
of section 2(k) of the Act and, therefore, no relief can
be granted.
Para 42. To summarise, although, there is no
limitation prescribed under the Act for making a
reference under section 10(1) of the Act, yet it is for
the ‘appropriate Government’ to consider whether it
is expedient or not to make the reference. The words
‘at any time’ used in section 10(1) do not admit of
any limitation in making an order of reference and
laws of limitation are not applicable to proceedings
under the Act. However, the policy of industrial
adjudication is that very stale claims should not be
generally encouraged or allowed in as much as
unless there is satisfactory explanation for delay as,
apart from the obvious risk to industrial peace from
the entertainment of claims after long lapse of time,
it is necessary also to take into account the
unsettling effect which it is likely to have on the
employers’ financial arrangement and to avoid
dislocation of an industry.
227
7 March 2023]
LA GAZETTE DE L’ETAT
Para 43. On the application of the aforesaid
principle to the facts of the present case, we are of
the view that High Court correctly decided the issue
holding that the reference at such a belated stage,
i.e., after fourteen years of termination without any
justifiable explanation for delay, the appropriate
Government had not jurisdiction or power to make
reference of a non-existing dispute.
11. By applying the above dictum held by our
Hon’ble Apex Court in the present case, the time taken
for the petitioner to approach the Labour Officer
(Conciliation) was more than 8 years from the date of
his dismissal without any justifiable explanation for
delay. From the available records, it could be seen that
the delay or laches remain unexplained. The claim
Petitioner failed to give satisfactory explanation for
these laches and delays. He has also failed to
demonstrate that the industrial dispute is still alive
and delay would not come in his way because of the
reason that law of limitation has no application. Under
these facts and circumstance, I hold that reference at
such a belated stage, i.e., after 8 years of termination
without any justifiable explanation for delay is not
maintainable.
12. Next, comes the question, whether when there
is a specific provision for Appeal on any order such as
dismissal in the Regulations/Rules of the Respondent
Milk Co-operative Society, the Petitioner employee of
the said Co-operative Society can file an industrial
dispute directly and approach the Labour Officer
(Conciliation) without exhausting the efficacious
alternative remedy available under the Regulation of the
Respondent Co-operative Society is the short but
complex question.
13. On this point, it is contended on the side of the
Respondent Management of the Society that the
Subsidiary Regulations Governing the Service
Conditions of the employees of the Society at page 25,
Rule 24(2), the President of the Society is the Competent
Authority to initiate and decide on any disciplinary
proceedings, against the employees of the Society,
following the procedures prescribed in Rule 31 of the
Subsidiary Regulations and if, the employee aggrieved
by the punishment given by the President of the Society
then those employees can file an Appeal before the
Committee of Management of the Society, under Rule 27
of the said Subsidiary Regulations Governing the
Service Conditions of the employees of the Society. In
the Subsidiary Regulations under Rule 26, the
Appointing Authority (the President) of the Society
may place an employee under suspension pending
disciplinary proceedings against the employee. He also
referred the same during his arguments.
14. Thus, it is submitted that the Petitioner without
exhausting the alternate, effective and efficacious
remedy available in the form of Appeal before the
Committee of Management of the Society, or Revision
under section 141 of the Puducherry Co-operative
Societies Act 1972, before the Registrar of Co-operative
Societies filed this dispute petition before the
Conciliation Officer in the Labour Department. It is a
well settled law that an aggrieved employee should first
exhaust the alternate, effective and efficacious remedy
at the lower lever before coming for higher forum.
Similarly, it is up to the delinquent employee to prefer
Revision before the Registrar of Co-operative Societies
under the Administrative side or comes under the
Industrial Disputes Act under the Labour laws.
15. Further, it is argued that the condition of
withdrawing the Writ Petition by the Petitioner was not
fulfilled by him in spite of the Management executed
the conditions like payment of Subsistence Allowance,
Bonus, Salary and Posting as the Milk Tester, etc., to
him. The W.P.49211/2006 is found to be dismissed for
non-prosecution only on 27th June 2014 (Ex.R8). The
Petitioner had not responded and given any reply. The
Petitioner is the habit of non-responding to any Letter/
Memorandum issued to him from the beginning of the
Memorandum issued by the Administrator till the
Petitioner was dismissed from the service of the Society.
Since, the Petitioner had not submitted any reply it was
decided to initiate the Disciplinary Action, and
therefore, a Memorandum of charges was issued to him
vide Memorandum, dated 30-06-2008. It is further
submitted by the Respondent Society Counsel that on
perusal of the Enquiry Report, submitted by the Enquiry
Officer on 22-09-2008, it is understood that the Petitioner
was not appeared for the enquiry on 29-07-2008 and
therefore, in the interest of natural justice one more
chance was given and instructed to appear on
06-08-2008, but, the Petitioner delinquent official not
appeared for the enquiry and therefore, the Enquiry
Officer concluded the enquiry without the presence of
the Petitioner. In the Enquiry Report it is stated that
out of 13 charges framed 12 charges are proved and one
charge regarding his qualification and appointment only
partly proved.
16. Further, it is urged by the learned Counsel for the
Respondent Milk Society even if, it is taken as the old
commissions taken place from 1998 to 2001, the
Petitioner not denied by way of documentary evidence
to show that the irregularities was not done by him at
least in the claim petition. The petition filed under
section 2-A of the Industrial Disputes Act, 1947 only
on 09-11-2016, that is after a lapse of 8 years, 1 month
and 9 days of the final orders issued to the Petitioner.
228
LA GAZETTE DE L’ETAT
[7 March 2023
By issuing proper charge Memorandum, conducted
enquiry and based on the findings of the Enquiry
Report, speaking show cause notice was issued by the
President, and since the Petitioner not responded for
the show cause notice, proper final orders on the basis
of the merit of the case was issued and therefore, the
legal order issued to the Petitioner dismissing from the
service of the Society, is maintainable under the law.
17. I have heard the learned Counsel for both the
parties and perused the material available on record on
this issue. Factually, in the present case, the disciplinary
proceeding against the employee was initiated and the
Enquiry Report was submitted wherein, the charges
Nos. 1 and 12 were found to be proved. Since, there
was no question of recording of any disagreement with
the findings recorded by the Enquiry Officer, a show
cause notice (Ex.R13) was subsequently served upon
the Petitioner and thereby Petitioner was given an
opportunity for personal hearing as well. But, he did
not participate in the Domestic Enquiry and no
explanation offered to the Respondent Society.
Thereafter, an order of punishment was passed by the
Society. No explanation given by the Petitioner on the
show cause notice issued upon him on the charges. No
explanation given on the show cause notice issued
upon him on the point of Punishment. It is also not
proved by the Petitioner that the Enquiry Officer
without affording a reasonable opportunity had
conducted an ex parte enquiry based on the dictums
of the then Board of Directors.
18. I find that the Termination order passed by the
President of the Society, dated 30-09-2008 Ex.R14 is an
appealable order under Regulation 27 (1) of the
Subsidiary Regulations Governing the Service
Conditions of the employees of the Society. Any person
who feels aggrieved by any decision or order passed
by the Adjudicating Authority, is required to file an
appeal before the Appellate Authority (The Board)
within a period of 60 days. I further find that the order
which is assailed before this Court, can be challenged
before the Appellate Authority. The grounds which
have been urged before this Court, can also be raised
by the Petitioner before the Appellate Authority.
19. Thus, from perusal of Regulation 27 (1) of the
Subsidiary Regulations Governing the Service
Conditions of the employees of the Society, it is evident
that if aggrieved with the punishment passed by the
President of the Society, Petitioner ought to have
preferred an Appeal before the Board for further
adjudication. But, no Appeal preferred by him as
against his Termination order Ex.R14. In view of the fact
that the Petitioner has had an alternative efficacious
remedy to raise the dispute under Regulation 27 (1) of
the Subsidiary Regulations Governing the Service
Conditions of the employees of the Society, but, failed
to prefer the same, the Claim Petitioner has failed to
show to this Court that he is entitled for the claim of
reinstatement. Having not participated in the Enquiry
proceedings and left the matter to be decided and slept
over on his opportunities to give explanations while it
was called for by the Management of the Society on
various occasions even thereafter, i.e., after the lapse
of more than 8 years from the date of his dismissal, in
absence of any reason for such an inordinate delay,
the claim for reinstatement made by the Petitioner is not
maintainable on any valid grounds. Moreover, the
domestic enquiry held and 12 charges out of 13 were
proved according to EX.P7 (Enquiry Report). It clearly
speaks about the opportunities given for the Petitioner
to submit his defence version before the Enquiry
Officer, but, he who failed to utilize the same for no
reasons. Even in his claim Petition he did not state the
reason for his non-participation in the Domestic enquiry.
From EX.P6, it could be seen that the enquiry was
conducted by following the Principles of Natural
Justice. Hence, from all the above discussions and
findings, I am not inclined to pass any order in his
favour. Thus, the point for determination is decided as
against the Claim Petitioner.
20. In the result, the Reference is decided as
unjustified and the industrial dispute is dismissed.
No costs.
Dictated to the Stenographer, directly typed by him,
corrected and pronounced by me in open Court on this
the 22nd day of November 2022.
V. SOFANA DEVI,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
List of petitioner’s witness:
PW.1
— 20-01-2020
Murugan
List of petitioner’s exhibits:
Ex.P1
— 12-12-2006
Photocopy of the Order
passed in W.P. No. 49211/
2006.
Ex.P2
— 12-02-2007
Photocopy of the Letter
issued by Ramanathapuram
Co-operative Milk Producers
Society to the Registrar
(Co-operative Department,
Puducherry).
229
7 March 2023]
LA GAZETTE DE L’ETAT
Ex.P3
— 15-02-2007
Photocopy of the Office Order
issued by Ramanathapuram
Co-operative Milk Producers
Society to the Petitioner
S. Murugan.
Ex.P4
— 24-02-2008
Photocopy of the letter
issued by Ramanathapuram
Co-operative
Milk
Producers Society to the
Petitioner S. Murugan.
Ex.P5
— 04-03-2008
Photocopy
of
the
Suspension Order issued
by the Ramanathapuram
Co-operative
Milk
Producers Society to the
Petitioner S. Murugan.
Ex.P6
— 30-06-2008
Photocopy of the Charge
Memorandum given to
S. Murugan (under Suspension).
Ex.P7
— 22-09-2008
Photocopy of the Enquiry
Report.
Ex.P8
— 22-09-2008
Photocopy of the Second
Show Cause notice.
Ex.P9
— 30-09-2008
Photocopy of the Order of
Termination issued by
t h e R a m a n a t h a p u r a m
Co-operative Milk Producers
Society.
Ex.P10 — 09-11-2016
Photocopy of the petition,
filed u/s. 2-A of ID Act, by
the Petitioner before the
Labour
Officer
(Conciliation), Puducherry.
Ex.P11 — 29-11-2016
Photocopy of the reply
statement filed by the
Respondent
before
the
Labour Officer (Conciliation),
Puducherry.
Ex.P12 — 10-12-2016
Photocopy
of
the
objections filed by the
Petitioner before the Labour
Officer
(Conciliation),
Puducherry.
Ex.P13 — 19-01-2017
Photocopy
of
the
Additional Reply Statement
by the Respondent before
the
Labour
Officer
(Conciliation), Puducherry.
Ex.P14 — 21-07-2017
Photocopy of the Failure
Report.
Ex.P15 — 29-08-2018
Photocopy of the Reference
notice issued by the Labour
Department, Puducherry in
G.O.Rt.No.135/AIL/Lab./
2017.
List of respondent’s witnesses: Nil
List of respondent’s exhibits:
Ex.R1
— —
Photocopy of Bye-laws of
the Society.
Ex.R2
— —
Photocopy of the Transfer
Certificate of the Petitioner
S. Murugan.
Ex.R3
— 30-06-2008
Photocopy of the Charge
Memorandum given to
S. Murugan.
Ex.R4
— 16-10-2002
Photocopy of the Show
Cause notice.
Ex.R5
— 29-06-2002
Photocopy of the Suspension
Order
issued
to
the
Petitioner.
Ex.R6
— —
Photocopy of the Order
issued to the Petitioner for
terminating from the service
of the Society with effect
from 01-10-2022.
Ex.R7
— —
Photocopy of the Affidavit
filed by the Petitioner
before the Hon'ble High
Court, Madras.
Ex.R8
— 20-12-2006
Photocopy of the Order in
W.P.49211/2006 passed by
the Hon'ble High Court,
Madras.
Ex.R9
— 10-02-2007
Photocopy of the letter
sent by the Petitioner to
t h e
P r e s i d e n t
o f
the
Ramanathapuram
C o - o p e r a t i v e
M i l k
Producers Society.
Ex.R10 — 15-02-2007
Photocopy of the Office
O r d e r
i s s u e d
b y
t h e
R a m a n a t h a p u r a m
Co-operative
Milk
Producers Society to the
Petitioner.
230
LA GAZETTE DE L’ETAT
[7 March 2023
Ex.R11 — 24-02-2008
Photocopy of the letter
s e n t b y t h e P r e s i d e n t
o f
R a m a n a t h a p u r a m
C o - o p e r a t i v e
M i l k
Producers Society to the
Petitioner.
Ex.R12 — 18-07-2008
Photocopy of the letter
s e n t b y t h e P r e s i d e n t
o f
R a m a n a t h a p u r a m
C o - o p e r a t i v e
M i l k
P r o d u c e r s S o c i e t y t o
S. Rajangam.
Ex.R13 — 22-07-2008
Photocopy of the notice of
hearing issued by the
Enquiry Officer to the
Petitioner.
Ex.R14 — 30-09-2008
Photocopy
of
the
Termination Order of the
Petitioner issued by the
President, Ramanathapuram
C o - o p e r a t i v e
M i l k
Producers Society.
V. SOFANA DEVI,
Presiding Officer,
Industrial Tribunal-cum-
Labour Court, Puducherry.
GOVERNMENT OF PUDUCHERRY
CHIEF SECRETARIAT
(HIGHER AND TECHNICAL EDUCATION)
(G.O. Ms. No. 10, Puducherry, the 21st February 2023)
NOTIFICATION
In exercise of the powers conferred under Central
Civil Service Rules (CCA) 1965, the Disciplinary
Authority imposed the major penalty of ‘Compulsory
Retirement’ under rule 11 of Central Civil Service (CCA)
Rules on Dr. A. Arul Jothi, Assistant Professor of History,
Tagore Government Arts and Science College,
Puducherry, with immediate effect, vide Order No. C.
13011/06/2020-CVO/379, dated 31-01-2023 of the Chief
Vigilance Office, Confidential and Cabinet Department,
Puducherry.
2. Accordingly, Dr. A. Arul Jothi, Assistant Professor
of History, Tagore Government Arts and Science College,
Puducherry, is admitted into ‘Compulsory Retirement’
with effect from the afternoon of 31-01-2023.
(By order)
M. V. HIRAN,
Under Secretary to Government,
(Higher and Technical Education).
GOVERNMENT OF PUDUCHERRY
DEPARTMENT OF PERSONNEL AND
ADMINISTRATIVE REFORMS (PERSONNEL WING)
[G.O. Ms. No. 12/DP&AR-SS.II(1),
Puducherry, dated 22nd February 2023]
NOTIFICATION
The Notice of voluntary retirement given under
rule 48-A of Central Civil Service (Pension) Rules, 1972
by Tmt. S. Santhi, Superintendent, Department of
Women and Child Development, Puducherry, is
accepted.
2. Accordingly, she stands retired from service with
effect from the afternoon of 23-01-2023.
(By order)
V. JAISANKAR,
Under Secretary to Government (Personnel).
————
GOVERNMENT OF PUDUCHERRY
DEPARTMENT OF PERSONNEL AND
ADMINISTRATIVE REFORMS (PERSONNEL WING)
[G.O. Ms. No. 13/DP&AR-SS.II(1),
Puducherry, dated 22nd February 2023]
NOTIFICATION
On attaining the age of superannuation, the following
Superintendents shall retire from service with effect from
the afternoon of 28-02-2023.
Sl.
Name of the Official and
No.
Department/Office
(1)
(2)
1
Thiru V. Senguttuvan, Superintendent,
Directorate of School Education,
Puducherry.
2
Thiru A. Saktynarayanane, Superintendent,
Department of Art and Culture,
Puducherry.
(By order)
V. JAISANKAR,
Under Secretary to Government (Personnel).