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SOMMAIRES

CONTENTS

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Procédure du Magistrate de District ..

Procedings of the District

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Magistrate

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Sentence arbitral du Travail

Award of the Labour Court ..

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Notifications du Gouvernement ..

Government Notifications

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Annonces

Announcements

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La Gazette de L' État de Poudouchéry

The Gazette of Puducherry

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Publiée par Autorité

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23 {

No.

Poudouchéry

Mardi

Janvier

2024 (3 Magha 1945)

No.

Puducherry

Tuesday

23rd

January

2024

Registered with the Registrar

of Newspapers for India

under No. 10410

LA GAZETTE DE L’ETAT

[23 January 2024

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 114/AIL/Lab./S/2023,

Puducherry, dated 06th December 2023)

NOTIFICATION

Whereas, an Award in I.D (L) No. 12/2018, dated

17-08-2023 of the Labour Court, Puducherry, in respect

of dispute between the M/s. Brightenex Private Limited,

Thattanchavady, Puducherry and Thiru A. Deiveegan,

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. 20/9/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. G.T. AMBIKA, M.L., PGDCLCF.,

Presiding Officer.

Thursday, the17th day of August, 2023

I.D. (L). No. 12/2018

CNR. No. PYPY06-000111-2018

A. Deiveegan,

S/o. Anthonisamy,

No. 16-A, Raja Nagar,

Semmandalam,

Cuddalore District,

Tamil Nadu.

. . Petitioner

Versus

The Managing Director,

M/s. Brightenex Private Limited,

No. A-16, Industrial Estate,

Thattanchavady,

Puducherry.

. . Respondent

23 January 2024]

LA GAZETTE DE L’ETAT

This Industrial Dispute coming on 19-07-2023 before me

for final hearing in the presence of Thiru P. Saravanan,

Counsel for the Petitioner, Thiruvalargal Vrintha Mohan,

E. V. Chandru @ Chandrasekaran, L.K. Karki and

P. Srikandan, 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. 25/AIL/Lab./T/2018, dated 27-02-2018 of the Labour

Department, Puducherry, to resolve the following

dispute between the Petitioner and the Respondents,

viz.,

(a) Whether the dispute raised by Thiru A. Deiveegan,

s/o. Anthonisamy, No. A-l6, Raja Nagar, Semmandalam,

Cuddalore, Tamil Nadu against the Management of

M/s. Brightenex Private Limited, No. A-16, Industrial

Estate, Thattanchavady, Puducherry, over non-employment

is justified 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 averments stated in the claim petition filed

by the Petitioner is as follows:

The Petitioner was working in the Respondent

Company as employee from 27-11-1994 onwards to

till the date of dismissal from service on 30-05-2017

for about 23 years in the Respondent’s Unit of

Brightenex Private Limited in Bold and Nuts

manufacturing Factory at Puducherry.

(ii) The Petitioner was working as Cell Leader

(informally called as Supervisor) in the M/s. Brightenex

Private Limited, Thattanchavady, Puducherry,

continuously for 23 years with utmost satisfaction

of the Management and without giving any room for

remarks and while so the Management has transfered

the Petitioner to Raw Material Store from the

Machine Operator Division and then transferred to

Scrap Area in order to reduce his importance in the

working sections and without any valid reasons. Due

to his family circumstances the Petitioner obeyed the

orders of the Management and put his hard work in

the said employment.

(iii) The Petitioner workmen is informally called as

Supervisor and he was actually working in a position

as Cell Leader. The Respondent Management issued

the salary slip to the Petitioner with Designation as

Cell Leader. Therefore, the Petitioner’s employment

status and Designation as “Cell Leader” is considered

as “Workman” as per Labour Act.

(iv) The alleged statement by the Respondent/

Management that the Petitioner was working as

Supervisor and therefore, this industrial dispute is

not maintainable is invented maliciously to defeat the

bona fide claim of this innocent Petitioner/Workman.

(v) On one occasion, the barrels containing waste

oil and waste solutions were loaded in the lorry

under his supervision through Thiru Ayyanar, Forklift

Operator to dispatch the same to Viswas Lubes

Company on 25-05-2017. When Thiru Arunachalam

(Contract Labour) was also there and on completion

of the loading work the Petitioner returned back to

his place at 10.00 a.m. after an hour, he came to know

that Thiruvalargal A.K. Sha and A. Saravanan

checked the loaded barrels in the lorry and found

3 numbers of cane containing diesel and the

Petitioner rushed immediately to the spot. In the

spot enquiry, the Petitioner informed that he does not

know how those diesel canes found available in the

loaded lorry at the time, Thiru Arunachalam, Contract

labour he himself admitted that he handed-over those

diesel canes to the load men and also took

responsibility for such wrongdoings, but, the

Management did not take their statement into

account for consideration.

(vi) Thiru A.L. Sha, Managing Director directly

conducted the enquiry with the Petitioner and others

viz., Thiruvalargal A.K. Sha and A. Saravanan. The

Petitioner clearly informed the facts of the incidents

to the Managing Director and on completion of the

enquiry the Managing Director obtained signature of

the Petitioner and 2 others in a Written-Statement and

thereafter, he continued his work in the Company as

usual. On 30-05-2007 at 3.00 p.m. Tmt. Bhuvaneswari,

in-charge of H.R. Department has informed that he

was terminated from service with effect from

30-05-2017 and instructed to receive the order to this

effect and sign in the settlement paper, after getting

two months salaries.

(vii) The Petitioner was refused to receive the

Termination Order as his Superior Thiru Sivaprakasarn

was on leave, but, the same was sent by post to his

address and the post was received by the Petitioner’s

family members on 02-06-2017. The Management

made a conspiracy with pre-planned idea to expel the

Petitioner from the Company. Therefore, the

Petitioner has requested the Conciliation Authority

to take this case on file and issued necessary

instructions to the Management to revoke the

Termination Order and to reinstate him into service.

(viii) No reasonable opportunities were given to

the Petitioner and even no reasonable time-duration

were given to this Petitioner for establishing his

LA GAZETTE DE L’ETAT

[23 January 2024

defense and innocent. The proceedings were

conducted in a hurried manner and his oral and

documentary evidences were not allowed to be

submitted in accordance with Labour laws. In order

to achieve its illegal-objects for the termination of

the Petitioner, “the Respondent’s company violated

the principles of natural justice, equity, ethics and

good conscience and passed a non-speaking order

of unlawful termination without wages thrust upon

this innocent Petitioner.

(ix) The Petitioner was appointed and designated

as Cell Leader in the Respondent Company till the

last date of the Respondent's illegal termination and

the said work comes under the category of workmen

and therefore, the dispute between the Respondent/

Management and the victimized Petitioner/Workmen

attracted the industrial dispute under the Industrial

Disputes Act. Hence, this petition to set-aside the

biased Termination Order, dated 30-05-2017 passed

against the Petitioner by the Respondent’s Company

and direct the Respondent Company to reinstate the

Petitioner to his employment with all his back wages,

promotions and all other Labour and Employment

benefits.

3. The brief averments of the counter filed by the

Respondent is as follows:

The Petitioner was employed as a Supervisor with

the Respondent Management and thus is not a

“workman” as per the Labour Laws and thus the

Petitioner has no locus standi to raise the industrial

dispute against the Respondent.

(ii) The Petitioner was appointed as “Supervisor

Trainee” in the Respondent Management on

27-05-1994 and thereafter, he was confirmed as

“Supervisor” by the Respondent Management on

28-05-1996. That on 18-03-2010 he was issued as work

responsibility order which included, “Maintaining

inward and outward scrap stock register Department

wise and type wise separately”.

(iii) While this being so, on 25-05-2017, the

Petitioner was caught red handed for stealing diesel

from the company scrap yard and since the Petitioner

had committed the offence of theft the Respondent

Management due to sympathy towards the Petitioner

who had worked for nearly 23 years has not lodged

any Police Complaint against the Petitioner and

decided to let the Petitioner by terminating his

service.

(iv) Thereafter, the Respondent Management

issued a Termination Letter to the Petitioner on

30-05-2017 and as the same was refused the

Respondent Management sent the letter of

Termination along with its covering letter, dated

30-05-2017 to the Respondent through registered post

with Acknowledgement Card and the same was

received by the Petitioner on 02-06-2017.

(v) Thereafter, the Respondent Management

received a letter, dated 07-06-2017 from the Labour

Officer (Conciliation), Government of Puducherry

regarding a representation given by the Petitioner to

it on 06-06-2017. The Respondent Management sent

a reply to the Labour Officer (Conciliation), through

Registered post with AD Card, dated 30-06-2017.

(vi) Thereafter, the Respondent Management has

sent a show cause, dated 04-11-2017 to the Petitioner

and the same was duly served to the Petitioner

through registered post with AD Card on 07-11-2017.

subsequently Mr. Ashok Kumar, Advocate was

appointed an Enquiry Officer on for the offences

done by the Petitioner.

(vii) The Enquiry Officer had conducted a fair

enquiry by following principles of natural justice and

had intimated to the Petitioner about the time, date

and place of enquiry as 24-10-2018 at 4.30 p.m. at the

office of the Advocate through post as early as on

10-10-2018, but, the Petitioner after receiving the

notice failed to appear and thus the enquiry was

reposted to 30-10-2018 and again the Petitioner failed

to appear and explain his case. Therefore, the

Enquiry Officer was constrained to set the Petitioner

ex parte and as the Petitioner has failed to use the

opportunity given to him the adverse inference has

to be made that the Petitioner is accepting his crime

and faults. The Enquiry Officer submitted his

Enquiry Report on 12-06-2019.

(viii) Thereafter, the Respondent Management has

sent a final show cause notice to the Petitioner on

04-10-2019 and the same was received by the

Petitioner vide AD Card, dated 06-10-2019. The

Respondent Management has followed all the

Principles of natural justice and has given ample

opportunity to the Petitioner to prove his innocence

and as beyond all reasonable doubts the act of theft

done by the Petitioner was proved he was rightly

terminated from service for his misconduct.

(ix) The Petitioner was removed from the services

for the grave misconduct of theft, and further as the

same was proved beyond reasonable doubt in an

independent and impartial domestic enquiry.

Therefore, the dismissal of Petitioner from service is

fully justified and warrants non interference of this

Court. Hence, prayed for dismissal of the claim

petition.

23 January 2024]

LA GAZETTE DE L’ETAT

4. Point for determination:

1. Whether the dispute raised by the Petitioner

is maintainable before this Court?

2. Whether the dispute raised by the Petitioner

over his non-employment is justified or not?

3. If justified, to what relief the Petitioner is

entitled to?

5. On the side of Petitioner, the Petitioner himself

was examined as PW.1 and Ex.P1 to P11 and through

cross-examination of PW.1 Exs. R1 to R8 was marked.

On Respondent side Mr. Nagarathinam, Head - H.R of

Respondent Management was examined as RW.1 and

through him Exs.R9 to R12 were marked. Mr. Saravanan,

Senior Executive - Administration - Purchase Department

was examined as RW.2. No exhibits were marked through

him.

6. On the points 1 to 3:

The facts of the case as put forth by the Petitioner

is as follows:

That the Petitioner was working in the Respondent

company as Cell leader but, informally he was called

as “Supervisor” and further the Petitioner was working

continuously for 23 years with utmost satisfaction

of Respondent Management and while so the

Petitioner was transferred to raw material store from

the machine operation division and then to scrap area

without any valid reasons and to reduce the

importance of the Petitioner but, still the Petitioner

had obeyed the orders of the Respondent

Management considering his family circumstances.

The Petitioner further submits that on 25-05-2017

barrels containing waste oil and solutions were

loaded in the lorry under the supervision of

Petitioner through one Ayyanar Forklift operator and

Arunachalam Contract Labour and later upon

inspection by A.K. Shah - Finance Manager and

Mr. A. Saravanan, Senior Executive it was found that

two barrels of fresh diesel was loaded in the vehicle

and thereafter, the Petitioner on coming to know

about the same had rushed to the spot and during

spot enquiry the Petitioner had informed that he does

not know as to how the diesel canes were loaded in

the lorry but, one Arunachalam Contract labour had

admitted that he had handed over those diesel cans

to the load men and took the responsibility, but, the

Management did not take into consideration of the

statement of said Arunachalam. The Petitioner further

states that thereafter, A.L. Sha, the Managing

Director has directly conducted the enquiry and on

30-05-2017 the incharge of HR. Department had

informed that the Petitioner was terminated from the

service with effect from 30-05-2017. It is the prime

contention of the Petitioner that the Petitioner having

completed 23 years of service in the Respondent

Company was planned to be expelled from the

Respondent Company and thereby the above case

was foisted against the Petitioner and the Petitioner

was not given reasonable opportunity to establish

his defense and the proceedings were conducted in

an hurried manner and therefore, the termination is

an illegal one.

7. On the other hand the first contention of the

Respondent Management is that the Petitioner was

employed as supervisor and therefore, the Petitioner is

not a workman and has no locus standi to approach this

Court. The other contention of the Respondent is that

the Petitioner was caught red handed while stealing

diesel from the company scrap yard and thereby the

Petitioner had committed the offence of theft, but,

however the Management out of sympathy upon the

Petitioner who had completed 23 years of service in the

Respondent Management has not lodged any police

complaint against the Petitioner and decided to let the

Petitioner by terminating his service by issuing

Termination Letter on 30-05-2017. The Respondent

further submits that thereafter a letter, dated 07-06-2017

was received from the Labour Department and

subsequently the Respondent Management had issued

charge-sheet, dated 04-11-2017 and the same was served

upon the Petitioner on 07-11-2017 and later had

appointed an Enquiry Officer, but, however the

Petitioner failed to appear before the Enquiry Officer and

explain his case and therefore, the Petitioner was set

ex parte and Enquiry Report was issued stating the

charge was proved and thereafter, final show cause

notice was issued to the Petitioner on 04-10-2019, but,

the Petitioner even after receipt of the same has not

submitted any reply and therefore, the Petitioner was

terminated from service since the Petitioner failed to

prove his innocence regarding the act of theft done by

the Petitioner. The conduct of the Respondent warrants

maximum punishment and therefore, he was terminated

from service.

8. In this case the first contention of the Respondent

is that the Petitioner was employed as a “Supervisor”

and therefore, the Petitioner does not fall within the

ambit of definition of workman and therefore, the

Petitioner has no locus standi to approach this Court.

Whereas, the contention of the Petitioner in the claim

statement as well as in his evidence is that he was

informally called as supervisor, but, he was working only

as a Cell Leader and further the Respondent Management

had issued salary slip to the Petitioner with designation

as Cell Leader and the said Designation is considered

LA GAZETTE DE L’ETAT

[23 January 2024

as workman as per Industrial Disputes Act. The

Respondent to substantiate that the Petitioner was

employed and working as a supervisor has relied upon

Ex.R1 Appointment Letter with service standing orders

which has been admitted by the Petitioner in his cross-

examination. Whereas, the Petitioner has relied upon

Ex.P11 Pay Slip pertaining to the month he was

terminated that is Pay Slip for the month of May 2017

wherein the Designation is stated as Cell Leader.

9. The R.W.1 examined on the side of Respondent

Management has not denied the designation as stated

in Ex.P11 and further during his cross-examination has

deposed as follows:

\–>V´Ú¬z kw∫Ô©√|D Leave, Permission,

Increment g˛BkuÆ¬z ]Ú. Ek∏´ÔVƒD á Head

Incharge ®[√kÏ >V[ Signing Authority ®[≈V_

g\VD. \–>V´Ï ºkÁÈ ÿƒF•D º√Vm Scrap, Fork

Lift Operation and Maintenance, Diesel Barrel

Maintenance g˛BkuÆ¬z ]Ú. Ek©∏´ÔVƒD á Head

Incharge >V[ ÿ√VÆ©A ®[≈V_ g\VD. ÷m

ƒD\Õ>\VÔ \–>V´Ï >[MﬂÁƒBVÔ ®Õ> xΩ°D

®|¬Ô xΩBVm ®[≈V_ g\VD \–>V´Á´ º√VÈ

DME √Ω›>k´ÔÁ· x>o_ ®∫Ô^ ÿ>VaƒÁÈl_

Machine Operatorá´VÔ EÈ ÔVÈD √ËB\Ï›mºkVD.

∂©º√Vm>V[ ∂kÏÔ^ ∏[M‚| Supervise ÿƒFB

xΩ•D, \–>V´Á´ º√V_ Diploma √Ω›>kÏÔÁ·

Term Employee ®[ÆD ∏[M‚| Probation 01,

Probation 02, Cell Leader ∏[M‚| Supervisor-gÔ

√>s cBÏ° ∂π¬Ô©√|D.

10. Thus, the RW.1 during his cross-examination has

deposed that the Head incharge, in respect of the

section where the Petitioner works that is Scrap, Fork

Lift operation and Maintenance, Diesel Barrel

Maintenance is one Thiru Sivaprakasam and further the

said Sivaprakasam is the signing Authority to grant,

Leave, permission, increment for the Petitioner and

further deposed that for the persons like Petitioner who

have studied DME would be initially employed as Term

employee, then as Probation 01, Probation 02, Cell leader

and then would be promoted as Supervisor. Thus as per

the evidence of R.W.1 after working as Cell Leader the

promotion would be given to the post of Supervisor.

Hence, as per the evidence of R.W.1 it could be found

that the post of Supervisor is a promotional post which

would be given after the post of Cell Leader and further

the post of Cell Leader and the post of Supervisor are

distinct one. Though as per Ex.R1 Appointment Letter

issued on 08-12-1997 it is stated that the Petitioner is

appointed as Supervisor Trainee, but, in the last Pay

slip of the Petitioner that is for the month of May 2017

the designation is stated as Cell Leader. Hence, from

Ex.P11 pay slip for the Month of May 2017 it could be

inferred that the Petitioner was working as Cell Leader

in the Respondent company. When it is the evidence

of R.W.1 that from the post of Cell Leader the promotion

to the post of Supervisor would be given and further

the Petitioner posting as per last pay slip that is Ex.P11

the designation of the Petitioner was Cell Leader and

further one Sivaprakasam was Head Incharge of the

section where the Petitioner worked then it is for the

Respondent to prove that the work of the Petitioner was

in supervisory category because section 2(s) of

Industrial Dispute Act provides for the exceptions to

the definition “Workman” in (iii) and (iv) of the said

section which states as follows:

“mainly in managerial or administrative capacity”

or being employed in a supervisory capacity, draws

wages exceeding the prescribed limit(s); and

exercises, either by the nature of the duties attached

to the office or by reason of the powers vested in

him, functions mainly of a managerial nature.”

11. Thus, as per 2(s) of Industrial Disputes Act,

the definition of “workman” means, any person

(including an apprentice) employed in any industry to

do any manual, unskilled, skilled, technical, operational

clerical or supervisory work for hire or reward, whether

the terms of employment be express or implied and for

the purposes of any proceeding under this Act in

relation to an industrial dispute, includes any such

person who has been dismissed, discharged or

retrenched in connection with, or as a consequence of

that dispute, or whose dismissal, discharge or

retrenchment has led to that dispute, but, does not

include any such person who is employed mainly in a

managerial or administrative capacity or who, being

employed in a supervisory capacity, draws wages

exceeding one thousand six hundred rupees per mensem

or exercises, either by the nature of the duties attached

to the office or by reason of the powers vested in him,

functions mainly of a managerial nature.

12. Therefore, the exception makes explicit that if a

workman is not discharging any supervisory function

then the exception will not apply. In the present case

the Petitioner as per Ex.P11 pay slip for the month of

May 2017 is found to be employed as Cell leader and

as per the evidence of both sides the Petitioner was in

charge of loading and unloading the barrels containing

waste oil and waste solution in a lorry through one

Ayyanar Forklift operator. Thus, from Ex.P11 Pay Slip

and the nature of work done by the Petitioner it is found

that the Management has miserably failed to prove that

the Petitioner was discharging “managerial/supervisory/

administrative” functions. When that being so, this

Court from the evidences of both sides holds that the

Petitioner falls well within the definition of “Workman”

as per section 2(s) of the Industrial Disputes Act and

does not fall in any of the exceptions of the said

section.

23 January 2024]

LA GAZETTE DE L’ETAT

13. The next question that arises for consideration

is whether the Petitioner was terminated from the

employment after conducting proper enquiry by

providing ample opportunity to disprove the charge

against him and further by following the principles of

natural justice. It is the case of the Respondent that on

25-05-2017 the Petitioner while loading waste oil and

solution through Ayyanar Forklift operator and casual

labour Arunachalam has attempted to steal diesel from

the company through trucks carrying the waste oil and

solutions and after the theft was discovered the

Petitioner was asked for written explanation, but, the

Petitioner was unable to offer any explanation as to how

the diesel cans were found in the lorry after the

Petitioner had checked and released the lorry and

further during the enquiry proceedings the Petitioner

has failed to appear and wantonly left ex parte and

therefore after following all the principles of natural

justice the Petitioner was dismissed from the service.

14. Whereas

the Petitioner contends that the

Petitioner was working continuously for 23 years with

utmost satisfaction of Respondent Management and

while so the Petitioner was transferred to Raw material

store from the machine operation Division and then to

scrap area to reduce his importance in the working

section but due to family circumstances he obeyed the

orders of the Management and while so on 25.05.2017

the waste oil and waste solutions were loaded in the

lorry through one Ayyanar Forklift operator and

Arunachalam contract labour under his supervision and

after completion of the loading work the Petitioner has

returned to his place and later after an hour he came to

known that A.K. Shah - Finance Manager and Mr. A.

Saravanan - Senior Executive have checked the loaded

barrels in the lorry and found that two barrels of fresh

diesel was loaded in the vehicle and thereafter the

Petitioner on coming to know about the same had

rushed to the spot and in the spot enquiry the

Petitioner informed that he does not know as to how

the diesel cans were loaded but one Arunachalam

Contract labour had admitted that he had handed over

those barrels to the load men and took the

responsibility but the Management did not take into

consideration of the statement of said Arunachalam.

The Petitioner further states that thereafter, A.L. Sha,

the Managing Director has directly conducted the

enquiry and on 30-05-2017 the incharge of HR

department informed that the Petitioner was terminated

from service with effect from 30-05-2017. The Petitioner’s

prime contention is that the Petitioner having completed

23 years of service the Management had planned to

expel the Petitioner from the Respondent company and

further the Petitioner was not given reasonable

opportunity to establish his defense and innocence all

the proceedings were conducted in an hurried manner.

15. Thus, the core point that arises for consideration

is whether the principles of natural justice has been

followed during the enquiry proceedings and further,

whether the Petitioner was given reasonable

opportunity to prove his defence before dismissal from

employment. On perusal of Ex.R9 the statement of fact

stated to have been recorded by A.K. Shah - Finance

Manager of Respondent company it is found that the

date of occurrence of alleged theft of two Jerry Can

containing fresh diesel in the lorry loaded with barrels

of waste oil and waste solution for sale and disposal to

Visves Lub is on 25-05-2017. Similarly, on perusal of

Ex.P2 it is stated that on 30-05-2017 the Management

has decided to terminate the Petitioner from service with

effect from 30-05-2017. The contention of the Petitioner

is that on 25-05-2017 there was spot enquiry by A.K. Shah -

Finance Manager and A. Saravanan - Senior Executive

and thereafter A.L. Sha Managing Director had

conducted the enquiry with the Petitioner and

subsequently on 30-05-2017 at 3 p.m. the Petitioner was

informed that he was terminated from service with effect

from 30-05-2017. Thus, from the above it could be

inferred that alleged occurrence of theft is stated to

have occurred on 25-05-2017 and later after spot enquiry

on 25-05-2017 and after enquiry by the Managing

Director the Petitioner on 30-05-2017 was terminated

from service with effect from 30-05-2017.

16. Further, from the documents relied by the

Petitioner and Respondent it is found that as per Ex.P3

on 06-06-2017 the Petitioner thereafter has approached

Labour Officer (Conciliation) and as per Ex.P6 Charge

sheet, dated 04-11-2017 was sent to Petitioner and as

per Ex.R11 the Respondent Management on 08-10-2018

has appointed Mr. S. Asokumar, Advocate as Enquiry

Officer and as per Ex.R8 on 12-06-2019 the Enquiry

Officer has prepared his Enquiry Report and as per

Ex.R7 series letter, dated 22-10-2019 the Respondent

Management based on Enquiry report has upheld the

Termination order, dated 30-05-2017 and dismissed the

Petitioner from employment. Thus, it is found that

initially the Respondent Management without serving

charge sheet and without appointing an Enquiry Officer

and without conducting due enquiry and without

following principles of natural justice and without the

Enquiry Report has terminated the Petitioner on

30-05-2017 itself and thereafter the Petitioner is found

to have approached Labour Officer (Conciliation) as per

Ex.P3 letter, dated 06-06-2017 and thereafter, charge

sheet is found to have sent to the Petitioner and Enquiry

LA GAZETTE DE L’ETAT

[23 January 2024

Officer was appointed and Enquiry was conducted and

subsequently as per Ex.R7 series on 22-10-2019 the

Termination order initially done on 30-05-2017 was

upheld and the Petitioner was dismissed from the

service.

17. However, it is the contention of the Respondent

Management that after the Petitioner was served with

charge sheet, dated 04-11-2017 the Petitioner inspite of

receipt of notice of hearing from the Enquiry Officer has

failed to appear for the Enquiry and wantonly left the

enquiry ex parte and therefore after following all the

principles of natural justice and after giving sufficient

opportunity to the Petitioner to prove his innocence

regarding it came to be concluded that the act of theft

was proved beyond all reasonable doubts and thereby

the Petitioner was terminated from service for his grave

misconduct. The Petitioner also during his cross

examination admitted that he was served with Ex.P9

notice of hearing from the Enquiry Officer and further

inspite of receipt of Ex.P9 he had not appeared before

Enquiry Officer. Thus from the evidence of Petitioner it

is found that the Petitioner inspite of knowing about

the enquiry proceedings has failed to appear before

Enquiry Officer and left the enquiry proceedings ex parte

and thereafter Enquiry Officer has prepared the Enquiry

Report Ex.R8 on 12-06-2019 and again the Petitioner was

called upon to give his written explanation to the

Enquiry Report as per Ex.R6 series letter, dated

04-10-2019, but, again the Petitioner has not responded

and therefore as per Ex.R7 series letter, dated 22-10-2019

the termination of Petitioner on 30-05-2017 was upheld

and the Petitioner was dismissed from his employment.

18. This Court on perusal of above Ex.P9 notice of

hearing for the enquiry sent by the Enquiry Officer and

Ex.R6 series letter sent by the Respondent Management

to the Petitioner, finds that no doubt the Petitioner was

aware of Enquiry proceedings and Enquiry Report but

still the Petitioner has failed to appear before Enquiry

Officer and give written explanation for the Enquiry

Report and thereby the Petitioner is found to have left

the enquiry proceedings ex parte and thereby, the

contention of the Respondent at the outset that during

the enquiry proceedings the Petitioner was given

opportunity to disprove the case against him and

further, all principles of natural justice was followed

during the enquiry proceedings and also while passing

orders based on Enquiry Report is found to be

acceptable one. However, at this juncture it becomes

necessary to consider whether the procedure adopted

by the Respondent from the beginning till the passing

of dismissal order was proper and without any bias and

further free and fair opportunity was given to the

Petitioner to dispel the charge against him.

19. On perusal of Ex.P2 it is found that the

Respondent Management initially has terminated the

Petitioner from service with effect from 30-05-2017

without conducting due enquiry. The reason stated by

the Respondent is that as per the provisions of the

Industrial Employment (SO) Central Rules 1946 under

section 14(2) of Schedule 1 based on the grievous

misconduct the Petitioner can be terminated from

service without notice, this Court on perusal of Ex.R1

Appointment letter with Service Standing Orders finds

that it is stated that for theft, fraud or dishonesty in

conjunction with the employer’s business or property

the Sanction Category is 5 and as per Sanction Category

5 for first offence the punishment is Termination. Thus,

as per the Service Standing Orders of Respondent

Management the punishment prescribed for theft for the

very first time itself is termination but however in the

standing order there is no any statement that the

punishment of termination can be provided without

affording opportunity to the employee. Thus, even for

providing the punishment of termination it is mandatory

for the Respondent Management to follow the

principles of natural justice by affording opportunity to

the Petitioner to disprove the charge during the enquiry

proceedings. In this case the Enquiry Officer to conduct

enquiry as against the Petitioner was appointed as per

Ex.R11 on 08-10-2018 and thereafter, enquiry is found

to have commenced and the Enquiry Report Ex.R8 is

found to have been prepared on 12-06-2019.

20. Thus, from the above discussions it is found that

the Petitioner is found to have been punished initially

without any due enquiry as early as on 30-05-2017 by

terminating him from the service and thereafter in the

said continuous status of termination the Enquiry is

found to have been commenced by appointing Enquiry

Officer on 08-10-2018 and thereafter the Enquiry Report

is found to have been emerged on 12-06-2019.

Therefore, in the said context this Court finds that the

very fairness of the enquiry itself is doubtful because

when the Petitioner was already punished by the

Respondent Management as early as on 30-05-2017 and

further when the said termination continued to be in

force than in such case the contention of the

Respondent that fair enquiry by following principles of

natural justice was held is found to be unacceptable

one. This Court opines that principles of natural justice

requires that the Petitioner must be given all

opportunity to establish his innocence and must also

be placed in a situation which does not give any room

for fear and must also give hope that there would be a

fair enquiry. However in this case all procedures with

regard to appointment of Enquiry Officer and further the

enquiry proceedings is found to have been conducted

later point of time that is more particularly after the

23 January 2024]

LA GAZETTE DE L’ETAT

Petitioner was punished by terminating him from the

employment. Therefore, in the said context though the

Petitioner has not explained during his cross-examination

the reason for his non-appearance before the Enquiry

Officer, but, still from the beginning the procedure

adopted by the Respondent during the enquiry

proceedings is found to be one sided since, the

Petitioner was already punished by way of termination

and further in the said status of termination the

Petitioner was compelled to attend the enquiry for the

name sake so as to make it appear that all due

procedures were followed by the Respondent

Management so as to justify; and confirm the earlier

punishment of termination which was imposed prior to

the Enquiry and Enquiry Report.

21. Furthermore even after Enquiry Report, dated

12-06-2019 the Respondent while passing orders as per

Ex.R7 series letter, dated 22-10-2019 based on Enquiry

Report is found to have again upheld the Termination

order passed on 30-05-2017 that is the punishment

given prior to the enquiry. Thus, this Court finds that

the Respondent Management has not passed any final

order independently based on the Enquiry Report, but,

on the other hand has attempted to justify and legalise

the punishment which was given to the Petitioner prior

to enquiry. Thus, viewed in any angle this Court finds

that the Enquiry Officer has not conducted the enquiry

in a fair manner by following the principles of natural

justice. Therefore, this Court finds that the enquiry

conducted by the Respondent Management through the

Enquiry Officer is not a valid one and thereby the

termination of the Petitioner by the Respondent based

on the Enquiry Report is found to be unsustainable and

illegal one. In view of above discussions it is held that

Industrial dispute raised by the Petitioner as against the

Respondent Management over his non-employment is

justified and as such this Court holds that the Petitioner

is entitled for reinstatement as claimed by him.

22. Now coming to the other aspects of back wages

and other attendant benefits is concerned, this Court

finds that in this case the Respondent has not proved

that the Petitioner was gainfully employed any where

else and earning income. However it is found that the

Petitioner was sustaining his day to day life even this

situation and the same could not be done without any

income. Hence, this Court on considering the

circumstances, deems fit that the Petitioner is entitled

for 30% back wages with continuity of service and

other attendant benefits. Thus, the points are answered

accordingly.

In the result this petition is allowed by holding

that the Industrial Dispute raised by the Petitioner

as against the Respondent Management over his

non-employment is justified and the Respondent

Management is directed to reinstate the Petitioner

into service within two months from the date of this

award and further directed to pay 30% of back wages

from the date of termination till the date of

reinstatement with continuity of service and other

attendant benefits. There is no order as to costs.

Dictated to the Stenographer, directly typed by him,

corrected and pronounced by me in open Court on this

the 17th day of August, 2023.

G.T. AMBIKA,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.

List of petitioner’s witness:

PW.1

— 26-02-2020

Thiru Deiveegam

List of petitioner’s exhibits :

Ex.P1

— 30-05-2017

Photocopy of the letter

issued by the Respondent

to the Petitioner.

Ex.P2

— 30-05-2017

Photocopy of the letter

issued by the Respondent

to the Petitioner.

Ex.P3

— 06-06-2017

Photocopy of the letter

Submitted by the Petitioner

before the Conciliation

Officer.

Ex.P4

— 30-06-2017

Photocopy of the reply

letter submitted by the

Respondent

before

the

Conciliation Officer.

Ex.P5

— 05-07-2017

Photocopy of the notice

issued by the Conciliation

Officer regarding enquiry to

the Petitioner and the

Respondent.

Ex.P6

— 04-11-2017

Photocopy of the Charge

Sheet issued by the

Respondent

the

Petitioner through RPAD.

Ex.P7

— 29-01-2018

Photocopy of the Failure

report given by the

Conciliation Officer.

Ex.P8

— 27-02-2018

Photocopy of the

Notification issued by

the

Government

Puducherry.

LA GAZETTE DE L’ETAT

[23 January 2024

Ex.P9

— 10-01-2018

Photocopy of the Enquiry

notice

issued

the

Enquiry Officer by name Mr.

Ashok Kumar, Advocate to

the Petitioner.

Ex.P10 — 24-10-2018

Photocopy of the Enquiry

notice issued by the

Enquiry Officer by name

Mr. Ashok Kumar.

Ex.P11 — —

Photocopy of the Pay slip

of the Petitioner for the

Month of May 2017.

List of Respondent’s witness:

RW1

— 14-10-2022 Thiru Nagarathinam, Head -

HR of the Respondent

Management.

RW2

— 02-03-2023

Thiru Saravanan, Sr. Executive

Officer (Purchase) of the

Respondent Management.

List of Respondent’s Exhibits:

Ex.R1

— 08-12-1997

Appointment Letter with

Service Standing Order

issued by the Respondent

Management

the

Petitioner.

Ex.R2

— 18-03-2010

Office copy of the Petitioner’s

Work responsibility.

Ex.R3

— 30-05-2017

Termination order issued by

Respondent Management to

the Petitioner.

Ex.R4

— 30-05-2017

Respondent Management

Series

sent the Termination letter

to the Petitioner’ residential

address through Registered

post with AD Card.

Ex.R5

— 04-11-2017

Respondent Management

Series

sent a Charge Sheet to the

Petitioner’

residential

address through Registered

post with AD Card.

Ex.R6

— 04-10-2019

Respondent Management

Series

sent a show cause notice to

the Petitioner’ residential

address through Registered

post with AD Card.

Ex.R7

— 22-10-2019

Respondent Management

Series

sent a Final notice to the

Petitioner’

residential

address through Registered

post with AD Card.

Ex.R8

— 12-06-2019

Photocopy of the Enquiry

Report submitted by the

Enquiry Officer Mr. Ashok

Kumar.

Ex.R9

— 25-05-2017

Spot Inspection Report

signed by the Employee

and Inspection Officer.

Ex.R10 — 30-06-2017

Letter addressed to Labour

Officer (Conciliation) by the

Management

regarding

dispute

raised

Deiveegam.

Ex.R11 — 08-10-2018

Letter of the Management

appointing Enquiry Officer

along with acknowledgment

of receipt by an Advocate.

Ex.R12 — 24-08-2022

Authorization letter for

deposing evidence in ID(L).

12/2018.

G.T. AMBIKA,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.

————

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 115/AIL/Lab./S/2023,

Puducherry, dated 06th December 2023)

NOTIFICATION

Whereas,an Award in I.D (L) No. 05/2019, dated

21-08-2023 of the Labour Court, Puducherry, in respect

of Dispute between the M/s. Larsen and Toubro Private

Limited, Sedarapet, Puducherry and Thiru K. Kamalakannan,

Puducherry, over reinstatement with back wages has

been received;

Now, therefore, in exercise of the powers conferred

by sub-section (1) of section 17 of the Industrial

Disputes Act, 1947 (Central Act XIV of 1947), read with

the Notification issued in Labour Department’s G.O. Ms.

No. 20/9/Lab./L, dated 23-5-1991, it is hereby directed by

the Secretary to Government (Labour) that the said

Award shall be published in the Official Gazette,

Puducherry.

(By order)

P. RAGINI,

Under Secretary to Government (Labour).

23 January 2024]

LA GAZETTE DE L’ETAT

BEFORE THE INDUSTRIAL TRIBUNAL-CUM-

LABOUR COURT AT PUDUCHERRY

Present :Tmt. G.T. AMBIKA, M.L., PGDCLCF.,

Presiding Officer.

Monday, the 21st day of August, 2023.

I.D. (L). No. 05/2019

CNR. No. PYPY06-000005/2019

K. Kamalakannan,

Mahalakshmi Nagar,

Vinothkumar Complex,

Thiruchitrambalam Kootroad,

Vanur Taluk, Villupuram District.

. . Petitioner

Versus

The Managing Director,

M/s. Larsen and Toubro Private Limited,

Sedarapet, Puducherry.

. . Respondent

This Industrial Dispute coming on 21-08-2023 before

me for final hearing in the presence of Thiruvalargal

K. Velmurugan and P. Preethi, Counsel for the Petitioner

and Thiruvalargal B. Mohandoss, K. Velmurugan,

J. Kalirathinam, S. Vijayasanthi, Kanjanamala,

R. Anbumathy, A. Asha and Indrajith, Counsels for the

Respondent, and after perusing the case records, this

Court delivered the following:

ORDER

This Industrial Dispute arises out of the reference

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

No. 10/AIL/Lab./T/2019, dated 28-01-2019 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

K. Kamalakannan, Puducherry, against the Management

of M/s. Larsen and Toubro Private Limited,

Sedarapet, Puducherry, over reinstatement with back

wages is justified 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. Today when the case came up for hearing, no

representation on Petitioner’s side inspite of posting for

steps for amendment as no further adjournments. Further

more, the Petitioner is not present for several hearing dates.

Hence, this reference is closed for non prosecution.

Written and pronounced by me in the open Court on

this the 21st day of August, 2023.

G.T. AMBIKA,

Presiding Officer,

Industrial Tribunal-cum-

Labour Court, Puducherry.

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