This Gazette may contains Multiple Subjects

10. Issue No. 3.—On the reasons stated above, the workman is not entitled to any relief as claimed by him. The reference is accordingly answered in favour of the management and egainst the workman.

11. Cor>y of the award be r-ent to the Government of India, Ministry of Labour as per rules.

K. M. RAI, Presiding Officer New Delhi, the 21 sf March, 2001 S.O. 775.-—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Cen- tral Government hereby publishes the award of i*he Central Government Industrial Tribunal No. I, Dhanbad as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of State Bank of India and their work- man, which was received by the Central Government on 20-3-2001.

[No. L-1201 l / 0 1 / 8 8 - D - n ( A ) / I R - ( B - n i )l AJAY KUMAR, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUS- TRIAL TRIBUNAL (NO. 1) AT DHANBAD PRESENT:

Shri $?rju Prasad, Presiding Officer.

In ihe- matter of an Industrial Dispute under Section 10(lXd) of the I.D. Act, 1947 Reference No. 149 of 1991

PARTIES :

Employers >in relation to the mansseTieTn of State Bank of India

AND

Their workmen.

iooy

APPEARANCES:

On behalf of the workmen—-Shn G, K. Verma, General Secretary, State Bank o( India Em- ployees Union.

On behalf of the management — Shri A. K. Gupta,

Authorised Representative.

STATE : Biha"r. INDUSTRY : Banking Dhanbad, dated the 2nd March, 2001 AWARD

The Government of India, Ministry of Labour in exercise of the powers conferred on fiiein under Sec- tion 10(l)(d) of the Industrial Disputes Act. 1947 has referred, the following dispute to this Tribunal for ad- judication'vide their Order No. L-12011/1/88- D. II(A)/I.R. B-in dated 10-1-92.

SCHEDULE

"Whether the demand of the undermentioned 5 workmen for permanent nbsr^ption. in the subordinate cadre of the Bank wi'h intros- pective effect is justified ? If so, the extent of relief payable to the worUniCLi mzy b;

indicated ?

NAME OF THE WORKMEN

1. Shri Lalan Ram. 2. Shri Dilip Kumar Pal.

3. Shri Rakesh Kumar.

4. Shri Kaiiasih Bhagat. 5. Shri Sheo Bachan Prasad."

2. The present! dispute relate Lo L*ie demflnd of regularisation of Lalan Ram arid 4 others in the em- ployment of State Bank of India, Secretariat Branch, Patna.

daily wage¹;. Initially they were being paid Rs. 7 per day till 27-8-S4 and alter that their daily wages were raised and after 30-4-90 they were being paid @ Rs. 17.50 per day although they were employed by the management of State Bank of India but their wages were being paid through name-lender contrac- tor set up by the management with effect from 28-8-3984 and these fakt; contractors were paid com- mission @ Rs. 1 to 1.25 p. per such workmen per day. This has been done in order to avoid direct em- ployment to the concerned persons. The fake contrac- tor has been changed from time to tune but all these persons have been regularly performing the job as that of permanent employee of flic Bank. Such fake contractor namely M/s. R. K. Necgy, Narendra Kumar Singh, Ram Ekbal Sharrna set up by the man- agement do not possess any licence under contract Labour (R&A) Act, 1970 nor die establishment of the State Bank of India Secretariat Branch has been registered under Section 7 of the Contract Labour i.R&A) Act, 1970. The concerned workmen are en- gaged hi the job of messenger and also for supplying of drinking wafer to the employees of the Bank which ;s a permanent nature of job. Therefore, in view of the circular of the Bank after completion of 9 months of service they are entitled to be regularised as per- manent employees of the Bank and they should have been paid similar scale of pay as that of permanent employees of Bajik doing similar nature of job with •he benefit of annual nerement, accumulation of leave and benefit of contributory Provident Fund but flic management hns deprived them. Therefore, the sponsoring union has raised the dispute with Hie de- mand that the said 5 persons should be regularised ii\ permanent employment of the State Bank of India Secretariat Branch and they should be paid arrears of difference of wages payable to pcrninns^ emplo- yees with effect from 9 months after their .services and other benefits like seniority, annual increment, accu- mulation of leave and C.P.F. with retrospective effect*.

3. The dispute has been raised by the State Bank of India Employees Union (Bihar State) by making a demand to regularise the concerned workmen Lalan Ram and 4 others. According to the sponsoring union the concerned persons were appointed by Hhe man- agement of State Bank of India, Patna Secretariat Branch on the dates mentioned against their names as under :~

Names of workmen

Dates of initial appointment

05-05-1983

Sri Lalan Ram

Sri Dilip Kumar Pal

01-06-1983 01-06-1983

01-01-1984

1. 2. 3. 4.

Sri Rakesh Kumar Sri Kailash Bhagat

O5O.M981

Sri SVc BscbBn Frnsad

5.

4. According to Che sponsoring union ttv; above named employees have been continuously working at Patna Secretariat Branclh of State Bank of India since their respective date of appointment. These appoint- ments were made after interview were taken by the then Branch Manager of Patna Secretariat' Branch, All these wcrkmen worked full time at the command, control and direction of the management They per- form similar work as is done by regular Class IV em- ployees of the Bank but they are being a very meagre

1690 THE GAZETTE OF INDIA : APRIL 14, 2001/CHAITRA 24, 1923 [PART II—SEG. 3(ii)] the work of any individual employee. There was no master and servant relationship between the manage- ment of persons engaged by, the contractors for trie job of dewatering of Patna Secretariat of the branch. On few occasions the management of Patna Secretariat branch lhas .used some persons even loitering or idling near the premises of the bank for specified individual transitory work and whenever anybody was so utilis- ed he was paid his remuneration for the specified job which also included payment of conveyances allow-¹' ance. .Since none of the employees working under the Labour Contractor is employee of the management they are not entitled to the remuneration or subs- tantive absorption in the subordinate cadre of the management and therefore the demand of the spon- soring union is "fit to be rejected.

6. Thus from the pleadings of the parlie.-; it is clear that Che concerned persons had been working in ths Bank but the real dispute is regarding the fact whe- ther they were employed by the Bank for regular and permanent nat'ure of work or they were employe;! by the contractor for casual nature of work of dewater- ing from the basement of the Bank premises. It is admitted that in the basement of the State Bank of India premises here was problem of sippage of water and water used to get accumnralated. According to the management, the contractors were being engaged to remove the stagnant water from the premises of the Bank but according to the sponsoring union and the concerned persons for that purpose the Bank has got three pumping sets installed to remove the water from the basement for which other contractors were engaged. As a matter of fact £he concerned per- sons were doing the job of messenger cleaning, dusting and.supply of drinking water as that of permanent employee of the Bank doing the similar work butf in order to camouflage the rea] thing the management has set up fake contractors who were simply disburs- ing wages to file concerned persons and realised com- mission Re. 1 to Rs. 1.25P. n"r labour per day. They, never used to visit the Bank premises and the work of the concerned persons were beini supervised by the management of the branch and they used tb work as per the direction of the Bank, Thus we find that the concerned persons were working in ths Bank are nof disputed by the management of the bank but according to them they are contractor workers. It is admitted that the establishment of State Bank of India Secretariat Branch has not been registered under Sec- ion 7 of the Contract Labour (Regulation and Abcii- ion) Act nor the so-called contractor possessed any icence under the said Act. The vital qnestion to be leaded in this case is whether them is relationship of imployer and employee between the management and he concerned persons. The next question to be de- ided will be whether the demand of tfhe sponsoring nion for regularisation of the concerned persons as ermanent employee with the benefits of permanent mpiloyee along with back wages ?nd offlier conseaven- al benefit is justified ?

169):

1692 THE GAZETTE OF INt>IA : APRIL 14, 20Q1/CHAITRA 24, 1923 [PART II—SEP. 3(UJ]

to 1983 for more ihan VO days in a calendar year and tti pei the circular oi :he liajk they ougnt io have bven caileu loi interview loi abt>oiption m the liank uLt mt ruanageineni has not nied any dociunent to snow' trial uic enccuar Wiii bruugnt io uie uou".c ui ine concerned persons and they were intimated to got tiicmijCives registered for ttie interview. It is noi disputed that ihe liank has a circular that a porson doing casual work lor more than 90 days iuis to be given opportunity to be absorbed hi the permanent cadre but the management has not given any opportunity to the concerned persons. Thus nom the materials available on record I find that the concerned persons were actually engaged by the management and they were pcnorming tine jub of messenger but in older to camouflage and hide the real issue the management has tried to brand the concerned persons as contract labour and as a matter of fact the contract was totally sham and camouflage to hide the real issue. If we lift the vtil and peep inside, the real thing will appear and it is clear that the concerned persons are the em- ployees of the Bank and there is relationship of employer and employee between the management and the concerned persons. Further more, in absence of the registration of the establishment under Con- tiact Labour (Regulation and Abolition) Act and the licence of the so-called¹ contractor the concerned jWrsons must be treated to be the workmen of the jjiincipal employer i.e. the management Bank. In order to support tins contention rtn- sponsoring union has placed reliance in the case of United Labour Union which has been reported in L.L.J. Pan I F~89. tlie management of the Bank has sub- mitted that since the number of persons engaged by me contractor was less than 20, therefore, the Act is not applicable and to answ er to this contention the sponsoring iminn has relied upon a ruling of Bombay Hi^h Court, Nappur reported in 1986 Lab. I.C, 204 to show that the registration of establishment and licence to the contractor is must. Yet in o her several rven our Apex Court has settled the principle that in absence of licence io the contractor and rcgis- tiation of the principal employer the contract labou- rers shall be deemed to rte the workmen of the principal employer.

8. Thus from the discussions made above I find and hold that the concerned persons are the work- men of the management of Secretariat Branch of the State Bank of India.

Therefore, I find that the concerned persons arc en- tilled to be regularised as permanent employee of the Bank irom the. date of reference i.e. 12-12-91 without diflerence of back wages because there is no evidence before me that the concerned persona are idling or they have not been gainfully employed somewhere else; but they will be entitled for incre- ment as if they have be appointed from the date of reference i.e. 12-12-91 and they will also net seniority from that,

10. In the result, the following Award is ren-

dered :—

"The demand of the sponsoring Union for re- gularisaWon of fhe concerned persons is justified and they are entitled for absorption in the permanent employment of the Bank as Class IV employee as Messengar-cum- VVater Boy with effect from the date of reference but without difference of Back wa^es. However, their services shall be reckoned from the date of reference i.e. 12-12-91 for the purpose of seniority and increment."

dt, 2-3-2001

SARJU PRASAD, Presiding Officer

"Whether the action of the management to Thar Anchaiik Gramin Bank, Jodhpur to giving pay scale of Rs. 900—2680 to Sh. Parmesh- war Prajapat, Steno-Typist (English) from the date of implementation of NIT Award dated 30-4-90 is justified? If not, to what rohet the workman is entitled to and from what date ?"

New Delhi, the 22nd March, 2001

S.O. 776.—In pursuance of Section 17 of the

Industrial Dispute Act. 1947 (14 of 1947), the Central Government hereby publishes the Award of tlia Industrial Tribunal/Laboyr Court, Jodhpur as shown in the Annexuie in the Industrial Dispute between the employers in relation to the management on Thar Anchalik Gramin Bank and their work- man, which wns received by the Central Government on 21-3-2001.

TNo. L-41015|4|97 IRfB-I)] AJAY KUMAR, Desk Officer \m THE GAZETTE OF INDIA : APRIL 14, 2001/CHAITBA 24. 1923 [PART II—SEC. 3(ii)] 16?5 1032 GI/2001—9 1690 THE GAZETTF OF INDIA : APRIL, 14, ZUUl/CHAlTKA Z4, Vili LTART u — a e c. a m /j New Delhi, the 2011) March, 2001 S.O. 777.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Cenlril Government hereby publishes the Award of the Central Government Industrial Tribunal|Labour Cuurt, Cliennai, us shown in UT: Annexurc in the Industrial Dispute between the employers in relation to the trmnagemem of GLIU-IOI Manager, Telecom, and their workman, which was received by the Central Government on 20-?-2001.

[No. L-40012[89-2000-1R(DU)| KUI.D1P RAI VT.RMA, Desk Officer

ANNEXURF.

BF.FORF THE CENTRAL GOVERNMENT INDUSTRIAL TRUJUNA.L-CUM-LABOUR COURT, CHFNNAI

Tuesday, the 27th February, 2001 PRESENT :

K. Kiirfliikeyyn, Presiding. Oflicer.

Industrial Dispute Nn. 15J2000

(In Uie m.Vtcr of the dispaie for adjudication under seciion 10(1 Mil) and sub-section 2(A) of the Indus'riaJ Disputes Act,1947 between the Claimant^' and the M^napTisnt, The C/cnerwl Manager, Tele- communications, Chennai.)

BETWEEN

Shri A. Rumakrishnan . ,Petitioncr|I Party

AND

. .Management[II Party The General Manager, Telecommunications, Chennai. APPEARANCE :

For the workman.—M|s. M. Gnanasekar and C. Premavathy, Advocates.

For the Management.—Sri R. Kanniappan, Addl. Central Government Standing Counsel,

REFERENCE ;

Order No. L-40012|S9|2000]IR{DU) dated 30-5-2000, Government of India, Ministry of Labour, New Delhi.

This dispute on coming up before me for final hearing on this day, the 27th February, 2001, the counsel appearing on either side are present along with II ParfyjManagement. The 1 Party workman is not prestnt. He is called absent. The counsel on record for the I Party workman represents to the Couit thai the 1 Party workman never turns up to give him instructions to proceed with the enquiry in this Industrial Dispute, lnspHe of his so many re- mjndji, to him and hence, he reports no instructions. Ho h;v; made nn endorsement to that effect on the Vakkalat given to him by the Workman|T Party. Aft.jr considering all the materials available in this c-iM-\ this Trihunal pnss the following :—

AWARD

This reference by the Central Government in the exercise of I he powers conferred by Clause (d) of sub-M.'ction (1) and ..ub- section 2(A) of Section 10 til Industrial Disputes Act, 1947 in respect of dis- pute between Sri A. Ramakrishnan, Workman and the General Manager, Telecommunications, Chennai, M.ina"emenf as Schedule appended to the order of rjferenee,

Tlie Schedule leads as follows :—

"Whether the demand of the workman Shri A. Ramakrishnan for reinstatement with back- wages by the Management of General Manager, Telecom, Kancheepuram is justi- fied ? If so, to what relief he is entitled ?" On receipt of this reference, this industrial dis- pute has been taken on file this tribun.il 27-6-2000 as Industrial Dispute No, 15|2000. On receipt of the notice from: this Tribunal, both the authorities appeared with the respective counsels and filed their respective Claim Statement and Counter Statement.

2, The averments of the Claim Statement of the 1 PnrtylWorkman are briefly as follows :—

The Petitioner was appointed as casual mazdoor on 17-1-1985 and he was engaged as casual labour ;'n<[ p-iid daily wages of Rs. 6.50. The Petitioner has been continuing the work with the Respondent has put ip 1302 number of days of service. The .Petitioner's services were terminated on 25-3-1996, 1 u? i

laying posi and. for cLhcr casual works on daily ratal wage bd->is. The department used to engage the Petitioner as and when Hierc was work. Scheme called 'Grant of Temporary Status to casual labourers' was introduced in 1989. The essential conditions for giant of tempi rary status is that (i) the casual labourer should have been engaged prior to 31-3-J985; (ii) they should be currently employed on the dale of implementation of the Scheme i.e. L-10-1989 and (Hi) he should be put 240 days con- tinuous service in any one of the preceding years prior to 1-10-1989. The Petitioner was directed to 'ioncr did not fiulfil ail the aforesaid mandatory con- ferment M' Temporary Status. The Petitioner also funrshed the service particulars. Since the Peti- tion :r did not fulfill all the aforesaid mandatory con- ditioners, he would not be granted TSM status. The service particulars pvoduci'd by the Petitioner were scrii'in-sed. The mu-jtcr rolls vhich the Petitioner has mcviti'incd in the service certificate as authority for cnga^emer.f k^r work, were verified and found the name of the Petitioner was not in those muster rolls.• I'hc Petitioner hi³.d produced false service certificates with a view to get benefits like regularisation etc. from the department. The Petitioner has not work- ed 240 days in i\n} of the years between 1985 to 1991. Sine: the TSM is ihc prc-requisitc for regu- lirisat'on us Group T)\ Uic question of regularisa- tion is ruled out in this case. The Petitioner's ser- vices were terminated since there was ho work. At the time of termination of the services of the Peti- tioner, th.? department has ntif been declared as an ifidu-.iiy- Hence, ihz <;ivs!:on of applicability of lndu"lri;il Dispute Act dues not arise in this case. Moreover, since the Petitioner has not put in 240 days of service in any one year, the case is, prima- f'lcic, devoid of ;;ny merits to be considered by this Tribunal under. Industrial Disputes Act. Hence, it deserves oulrighf rejection. The Petitioner has not exilic forvMird with clear hands -ind therefore, the petition has (o be dismissed- Hence, it is prayed that this Hon'ble Tribunal may be pleased to dismiss the petition with exemplary costs.

4. When the matter was taken up for enquiry, the eour.sel on uther siuc were present. The Petitioner| I Party Claimant is not present. The II Party Manp.gcme]i;.|R(."s.pondcnt's representative is present. Laarn<"-d counsel for the Pefitioner|Claimant informs 'h_- Court that inspite of hh repeated reminders to the Petitioner he has not turned up to give him instructions to proceed with enquiry in this case. Hence, he is reporting no instructions from the Peti- l!oner|T Party, Accordingly, he has made an en- dorsement "n the Vakkcht given by the I Party| Claimant.

The Petitioner was getting Rs. 60 per month at the time of termination. The Petitioner was employed in the Sub-Divisional Engineer Groups, Kancheepu- ;ani at the time of termination. His service has not b.-i.-n regularised so far. There is also a scheme for casual labour (Grant of temporary status and Re- gularisation) regarding rcgularisation of the casual workeis. The Petitioner was not granted temporary status in accordance with the Scheme. The PjtUiuncL has been denied employment from the year 1995. The Petitioner was informed thit he will bo luL,n back to duty ufbr short time. No reason was given for terminating his services by the Respondent. The Respondent failed to follow the principles of natural justice. No enquiry was con- ducted nor the Petitioner was given an opportunity b :forc his services were discontinued. The Petitioner was waiting for orders, from the concerned authority regarding his re-engagement. The Petitioner had not received any ordeVs and he was not taken back to duty so far. His services were utilised. for the regular work and the work performed by him was of perennial in nature. When the work and neces- sity to engage the Pelitioncr continuous, there is no reason or justification for denying employment to the Petitioner. The Petitioner should have been made permanent. The jeprcscntalion made by the Peti- tioner to the authorities failed to yield any result. The Supreme Court has declared the Telecommuni- cation Department, us an industry in one of its verdicts. The Petitioner has put in more than a decide continuous service and the termination of service is violation of Section 25F of the Industrial Disputes Act, 1947. He was not given any notice of compensation in terms of that section. The ter- mination of the service without any notice or com- pensation is ab initio void and he is deemed to be in continuous service and therefore, entitled to be reinstated with all other service benefits including arrears of backwagrs. The Petitioner ought to have conferred temporary status as per the Scheme and further absorbed the Petitioner against the regular Group 'D' post. Not doing so is illegal and arbi- trary. The attempt made by the Petitioioner before the Regional Labour Commissioner for an effective settlement ended in a failure. On submission of the failure report with the Conciliation Officer, this re- ference has been made in this Tribunal for adjudi- cation for this industrial dispute. Honce, it is pray- ed that this Hon'bJe Court may be pleased to pass an award declaring that order of termination passed against the. Petitioner is illegal and arbitrary and consequently direct the Respondent Management to reinstate the Petitioner in service with effect from the date of nomination and further direct the Res- pondents to pay all the arrears of back wages and all other attendant benefits.

3. The averments in the Counter Statement of the Recruitmentjll Party Management are briefly as follows :—

The TI P;irtV|Manrigcment (hereinafter referred to as Respondent) denied all the allegations contained in the Claim Petition nf the Claimant|Petitioncr as false, incorrect and unsustainable. The petition is not maintainable either in law or facts, hence should be dismissed. The Petitioner was engaged by the

department to carry out digging drawing wires and

5, Under such circumstances, in the absence of prosecution of this dispute bv the Claimant, there is no necessity to go into the merits and demerits of the claim of the PeiiliontT as referred to in the S:!ici!u!f c-f rcicivnoe i;s im industrial dispute. In (he absence of the Claimant and his failure to give iii'lruclions to the counsel en record as it is report- ed by the learned counsel for the I Party|Claimant, if clep'Wes (he Petitioner i;, not interested in prosecut- inr r}iis n i^ nml he is nol inclined lo press the claim he m:ide in this petition ns an industrial dispute, fn view of the non-pro.,ecution of this case by the 1698 THE GAZETTE OF INDIA : APRIL 14, 2001/CHAITRA 24, 1923 PART II—SEC. 3(U)J I Party Claimant|Peiilioner, this Tribunal has to con- clude IJiLit tlicv: is nothing to adjudicate upon in respect tit the industrial dispute referred in the Schedule of reference.

6. In the result, an award is passed holding no diipute exists now as it is referred to in the Schedule of reference between the paities in this proceedings. No Cost.

(Dictated to Stenographer and transcribed and typed by him and corrected and pronounced by me in the open court on this day, the 27th February, 2001)

K. KARTHIKEYAN, Presiding Officer New Delhi, tthc 20th March, 2001 S.O. 778.—In pursuance of Section 17 of the industrial Disputes Act, 1947 (14 nf 1947), the Central Government hereby publishes the Award of the Central Government Industrial Tribunal/Labour Court, Chennai as shown in the Annexure in the Industrial Dispute between the employers in relation to tlhe management of General Manager, Telecom, and. their workman, which was received by the Central Government on 20-3-2001.

[No. L-400J2j86[2001|IR(DU)J KTJLDIP RA1 VERMA, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT IN- DUSTRIAL TR1BUNAL-CUM-I.ABOUR COURT, CHENNAI

Tuesday, the 27th February, 2001 PRESENT :

K. Karthikeyan, Presiding Officer

Industrial Dispute No. 16/2000 (In the matter of the dispute for adjudication under section 10(1 )(d) & sub-section 2(A) of the Industrial Disputes Act, 1947 between the Claimant and the Management. T1ie General Manager, Tele- communications, Channai.)

BETWEEN

Shri S. Babu : Petitioner/1 Party.

AND

The General Manager, Telecommunications, Chennai.

. Managemcnt/IT Parly.

APPEARANCES :

For the workman : M/s. M. Gnanasekar and C. Premavufhy, Advocates.

For the Management : Shri R. Kanniappan, Addl. Central Govt. Standing Counsel.

REFERENCE :

Order No . L-40t)12/86/2()00/IR(DU) dt 30-5-2000, Govt. of Tndia, Ministry of Labour, New Delhi.

This dispute on coming up before me for final hearing on this day, the 27t'h February, 2001, the counsel appearing on either side are present along with II Party/Management. The I Party workman is not present. He is called ab.i;:r.t. The counsel on record for The I Party workman repiesents to the Court that the I Party workman never turns up to g've him instructions to proceed with the enquiry in this Industrial Dispute, insnite of iliis so many remin- ders to him and hence, he reports no instructions. He has made an endorsement to that effect on the Vakkalat given to him by the workman|I Party After considering all the materials, available in this case, this Tribunal pass the following :—

AWARD

This reference by the Central Government in the exercise of the powers conferred by Clause (d) of sub-sect ion (1) and sub-section 2(A) of Section 10 of Industrial Disputes Act, 1947 in respect of dispute between Sri S. Babu, Workman and the General Manager, Telecommunications, Chennai, management as Schedule appended to the order of reference.

The Schedule reads as follows :—

"Whether the action of the Management of General Manager, Telecom., Kanchee- puram in terminating the services of Shri S. Babu, Casual Mazdoor is justified ? If not, tq what relief is he entitled ?" On receipt of this reference, this industrial dispute has been taken on file of this Tribunal on 27-06-2000 as Industrial Dispute No. 16/2000. On receipt* of the notice from this Tribunal, both the authorities appeared with the respective counsels and filed flieir respective Claim Statement and Counte; Statement.

2. The averments of frie Claim Statement of the I Party/Workman are briefly as follows :—

The Petitioner was appointed as casual mazdoor on 17-1-1985 and he was engaged as casual labour and paid daily wages of Rs. 4.25 The Petitioner has been continuing the work with thie Respondent has pup in 1318 number of days of service. The Peti- tioner's services were terminated on 30-10-1995. The Petitioner was petting Rs. 1SO0/- per month at the time of termination. The Petitioner was em- ployed in the Sub-Divisional Engineer Groups,1699 Petitioner as and when there was work. Scheme called 'Grant of Temporary Status to casual labou- rers' was introduced in 1989. The- essential condi- tions for grant of temporary status is that (i) the casual labourer should have been engaged prior to 31-3-1985; (ii) they should be currently employed on the date of implementation of the Scheme i.e. 01-10-1989 and (iii) he should be put 240 days con- tinuous service in any one of the preceding years prior to 01-10-1989. The Petitioner was directed to submit his service particulars for the purpose of confirraeut of Temporary Status. The Petitioner also furnished the service particulars. Since the Peti- tioner did not fulfil all the aforesaid mandatory con- ditions, he would not¹ be granted TSM status. The service particulars produced by the Petitioner were scrutinised. The; muster rolls which the Peti- tioner has mentioned in v'he service certificate as authority for engagement for work, were verified and' found the name of the Petitioner was not in those muster rolls. The Petitioner had produced false service certificates with a view to get benefits like regularisation etc. from the. department'. The Petitioner Jjas not worked 240 days in any of the years between 1985 to 1991. Since the TSM is the prerequisite for regularisation as Group 'D', the ques- tion of regularisation is ruled out in this case. The Petitioner's services were terminated since there was no work. At the time of termination of the services nt Lhe Petitioner, the department has not been dec- lared as an industry. Hence, the question of ap- plicability of Industrial Disputes Act does not frise in this case. Moreover, since the • Petitioner has not put in 240 days of service in any one year, the case is, prima facie, devoid of any merits to be considered by this Tribunal under Industrial Disputes Act. Hence, it deserves outright rejection. The Petitioner has not come forward with clear hands and therefore, the petition has to be dismissed. Hence, it is prayed that Uhis Hon'ble Tribunal may be pleased to dismiss the petition with exemplary costs.

Kanchecpuram at the time of termination. His ser- vice has not been regularised so far. There is also a scheme for casuad labour (Grant, of i'empur;iry simus and Regularisation) regarding regularisation of the casual workers. The Petitioner was not granted temporary status in accordance wit'n the Scheme. The Petitioner has been denied employment from 30-10-1995. The Petitioner was informed that he will be taken back to duty after short time. No reason was given for terminating his services by the Respondent. The Respondent failed to follow the principles of natural justice. No enquiry was con- ducted nor the Petitioner was given an opportunity before his services were discontinued. Ihe Peti- tioner was waiting tor orders from the concerned authority regarding his re-engagement. 'Hie Peti- tioner had not received any orders.and he was not taken back to duty so far. His services were utilised, for the regular work and the work performed by him was of perennial in nature. When the work and necessity to engage the Petitioner continuous, there is no reasoq or justification for denying em- ployment to the Petitioner. The Petitioner should have been made permanent. The representation made by the Petitioner to the authorities failed to yield any result. The Supreme Court has declared the? Telecommunication Department as an industry in one of ifs verdicts. The Petitioner has put in more than a decade continuous service and tlic termination of service is violation of Section 25F of the Industrial Dispuptes Act, 1947. He was not given any notice of compensation in terms of that section. The termination of the service wiitiout any notice or compensation is ab initio void and he is deemed to be in continuous service and therefore, entitled to be reinstated with all other service benefits including arrears of backwages. The Petitioner ought to have conferred temporary status as per the Scheme and further absorbed the Petitioner against the regular Group 'D' post. Not doing so is illegal and arbitrary. The attempt made by the Petifionr before the Regional Labour Commissioner for an effective settlement ended in a failure. On submis- sion of the failure report with the Conciliation Officer, this reference tias been made in this Tri- bunal tor adjudication for this industrial dispute. Hence, it is prayed that this Hon'ble Court may be pleased Co pass an award declaring that order of termination passed against the Petitioner is illegal and arbitrary and consequently direct the Respopn- dent Management to reinstate the Petitioner in service with effect from the date of termination and further direct the Respondents to pay all the arrears of back wages and all other aitendant benefits.

4. When the matter was taken up for enquiry, the counsel on either side were present. The Petitioner/ I Party Claimant is not present. The II Paity Management/Respondent's representative is present. Learned counsel for the Petitioner/Claimant informs the Court that in spife of his repeated reminders to the Petitioner, he has not turned up to give him instructions-to proceed with enquiry in this case. Hence, he is reporting no instructions from the Peti- tioncr/I Party. Accordingly, he has made, an en- dorsement on the Vakkalat given by the I Party/ Claimant.

3. The averments in fhe Counter Statement of the Respondent/II Party Management - are briefly as follows :—

The II Party/Management (hereinafter referred to as Respondent) denied all the allegations contained in the Claim Petition of the Claimant/Petitioner as false, incorrect and unsustainable. The petition is not maintainable either in law or facts, hence should be dismissed. The Petitioner was engaged by the department to carry out digging, drawing wires and laying, post and for other casual woiks on daily rated wage basis. The department used fo engage the

5. Under such circumstances, in the absence of prosecution of this dispute by the Claimant, there is no necessity to go into the merits and demerits of the claim of the Petitioner as referred to in the Schedule of reference as an industrial dispute. In the absence of tlie Claimant and his failure to give instructions fo the counsel on record as it is reported by the learned counsel for the I Party|Claimant it denotes the Petitioner is nof interested in prose- cuting this case and he is not inclined to press the clnim he made in this pefition as an, industrial dis- pute. In view of the non-prosecution of this case i?oo THE GAZETTE OF INDIA : APRIL ¹⁴, ²⁰⁰¹/CHAITRA ²⁴, ¹⁹²³ [PART II—SEC. ³(ii)] by tlic 1 Party Claimant|Petii-;oncr, this Tribunal has t'o conclude that there is nothing to adjudicate upon in respect of the industrial dispute- referred in the Schedule of reference.

6. In the result, an award is passed holding no dispute exists now as it is referred to in fne Schedule of reference between the parties in Wiis proceedings. No Cost¹.

(Dictated to Stenographer and transcribed & typed by him and corrected & pronounced by me in the open court on this day, the 27fh February, 2001).

K. KARTHIKEYAN, Presiding Officer New Delhi, the 22nd March, 2001 S.O. 779.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Industrial Tribunal/Labour Court, Palakkad, as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of Sub-Divisional Inspector of Post Office and their workman, which was received by the Central Government on 22-3-2001.

[ No. L-40012/25/99-IR (DU) ] KULDIP RAT VERMA, Desk Officer

ANNEXURE

IN THE COURT OF THE INDUSTRIAL TRIBUNAL, PALAKKAD

(Thursday, the 22nd February 2001/3rd Phalguna, 1922)

Present

Sri B. Ranjit Kumar

Industrial Tribunal

Industrial Dispute No. 110/99 (C)

Between

The Sub-Divisional Inspector of Posts Offices, Pattambi, Ottappalam, Palghat—678 001.

{By Advs. M. Uday:is:mkar & T. Venugopul)

And

Shri P. B. Sajecsh, ParamkuJangara House, Post Kalladathur—679 552.

(By Advs. P. C. Sebastian & C. S. Ajith Prakash)

AWARD

The Government of India, Ministry of Labour as per Order No. L-40012/25/99/TR (DU) dated 21-7-1999, referred the following issues for adjudi- cation :

"Whether the action of the management of Sub-Divisional Inspector of Po:;t Office, Pattambi in terminating the services of Shri P. B. Sajeesh the EDDA, Kalladathur branch is legal and justified ? If not, to what relief the workman is entitled ?"

2. The contention of the workman as set out in his claim statement dated 26-10-1999 and rejoinder dated 15-3-2000 is that he had worked as an Extra Departmental Delivery Agent (EDDA) at Kalladathur Branch Post Office which comes under the Sub- Divisional Inspector of Post Offices, Pattambi, a Sub Division of Ottapalam Postal Division since 1-10-96 and his services were terminated with effect from 18-9-97 without any prior notice or notice pay. According to workman, another person was appointed in his place. The workman would further submit that his services were terminated in violation of the provisions of Section 25-F and 25-G of the I.D. Act.

3. On the olher hand, the management would submits in its written statement dated 24-1-2000 that the reference order ilself is not maintainable as the the EDDAs are governed by the provisions of EDDA (Conduct and Service Rules) 1964 and that the mana- gement is neither an "industry" nor the person who has raised the dipspute is a ''workman" under the I.D. Act and hence it was not necessary to follow the provisions of Sections 25-F and 25-G of the I.D. Act. It is further submitted by the management that the workman has already approached the Central Administrative Tribunal, Ernakulam Bench in con- nection with the same subject matter and hence if at all he had any further claim he has to approach that Tribunal. The management has admitted the emp- loyment of the workman as EDDA for the period from 1-10-96 to 18-9-97 at Kalladathur Branch Post Office, Pattambi. Tt is submitted by the manage- ment that he had worked as EDDA at Angadi P.O. also from 29-9-97 to 31-3-98 as the nominee of the permanent incumbent in the po;>t, The contention of the management is that these engagements were purely temporary till he is replaced by a person who was regulnrly selected and pos'ed.

4. The points to be first considered are whether the management is running an "industry"' within the meaning of Section 2(j) of the l.D. Act and whether Sri P. B. Sajeesh who has raised this dispute is a "workman" within the meaning of Section 2(s) of the l.D. Act.

as has been brought out from the excerpts of ILO documents, it is notjevery employee who is exclu- ded but only certain categories primarily engaged and supportively employed in the discharge of the essential functions of constitutional govern- ment. In a limited way, this head of exclusion has been recognised throughout-"

The Hon'blc Chief Justice of the Supreme Court who has rendered a separate, but concurring judgement in Bangalore Water Supply Case has concluded the judgement as follows :

"168. Hence, to artificially exclude State-run industries from the sphere of the Act, unless statutory provisions, expressly or by a necessary implication have that effect, would not be correct. The question is one which can only be solved by more satisfactory legislation on it. Otherwise, Judges could only speculate and formulate tests of "industry¹' which cannot satisfy all. perhaps to seek to satisfy all is to cry for the moon."

6. In the light of the above observations of the Supreme Court, it is abundantly clear that merely because certain categories of employees are governed by statutory rules made under Article 309 of the Constitution or otherwise, they will not automati- cally be taken out of the purview of the I.D- Act. The Parliament or State Legislature is competent to exclude certain category of employees from the purview of the T.D- Act by framing such statutory rules and by incorporating a specific provision therein to that effect. It is also possible to amend the pro- visions of the I.D. Act, excluding such category of employees from the purview of the said Act. A Full- Bench of the Kerala High Court has re-affirmed this vijvV at p if-i 15 of iis judgement in Umayammal V/s. State of Kerala 1882 KLT 829.

7. As long as Section 2(s) of the T.D. Act as is

stands now, only the following categories of employees are excluded from the purview of the said Act.

A person :

5. From the very beginning of the adjudication proceedings, the learned counsel for the management submitted that in view of the decision of the Supreme Court in Sub-Divisional Inspector^of Post Office v/s. Theyyamma Joseph—1996 (8) SCC 489, the present industrial dispute is not maintainable. It is true that in this case a Two-Judge Bench of the Supreme Court has held that the postal department is not an "indus- try" within the meaning of Section 2(j) and EDAs who are governed by EDA Conduct and Service Rules do not belong to the category of workman attracting the provisions of the l.D. Act. This deci- sion has been overruled by a Three-Judge Bench decision of the Supremo Court in General Manager, Telecom v/s. A. Srinivasa Rao, (1997) 8 SCC 767. In this case th • Supreme Court Ins clearly held that the decision in Theyyamma Joseph's case cannot be treated as laying down the correct law. Therefore, the decision in Theyyamma Joseph case (Supreme) is no longer good law and cannot be relied upon. At the time of final hearing, the learned counsel for the management produced copy of an order dated 19-7-94 in O.A. Nos. 1988/91, 1288/12 and 2090/93 of Central Administrative Tribunal, Ernakulam Bench, in which the same view that has been expressed by the Supreme Couit in Theyyamma Josephs cr.se has been taken. For the reasons already stated above, this view is not the correct proposition of law and cannot be followed. It is true that in Bangalore Water Supply Case, 1978 SCC (L&S) 215, the Constitution Bench of the Supreme Court has made a suggestion that the employees whose service- condi- tions arc governed by rules framed under Article 309 of the Constitution of India may be excluded from the purview of the l.D. Act. ft is observed in the majority judgement as follows :—

"In any case, it is open to Parliament to make

(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957) or

(ii) who is employed in tho police service or as

an officer or other employee of a prison; or

(iii) who is employed mainly in a managerial or

administrative capacity; or

(iv) who, being employed in 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 law which governs the State's relations with it employees. Articles 309 to 311 of the Consti- tution of India, the enactments dealing with the Defence Forces and other legislation dealing with employment under itatutbry bodies may, expressly or by necessary implication, exclude ihe operation of the Industrial Disputes Act, 1947. That is a question of interpretation and statutory exclu- sion; but, in the absence of such provision of law, it may indubitably be assumed that the key as- pects of public administration like public justice stand out of-the circle of industry. Even here.

rntnrc.

T7W THE GAZETTE OF INDIA : APRIfc 14, 2001/GHAITRA 24, 1923 [ P wt II—SEC. 3(H)1 8. A reading of Section 200 clearly indicates that all other employees who satisfy the main pan of the said Section arc entitled to the benefit of the l.D. Act. In the case at hand, the management lias no case that the workman concerned in the dispute ;s covered by any of the excluded categories coming under Clauses I to IV of Section 2(s) or he docs not Satisfy the main part of that Section. Therefore, 1 hold that he is a "workman" as defined in Section 2(s) of the T.D. Act.

9. T am of the considered openion that in the absence of any specific provision in the l.D, Act the EDAs cannot be excluded from the purview of that Act. There are a number of public sector employees who are governed by service rules similar to that of EDA's Conduct and Service Rules (Eg. Employees of Food Corporation of Tndia who are governed by Staff Regulations, J971, Railway emp- loyees governed by Railway Establishment Manual, Municipal employees governed by concerned Sme Act/Rule etc.). By any stretch of imagination, it can be held that these categories cf errplojces are excluded from the purview of the T.D. Act for tlie reason that their service conditions are governed by separate service Jules. 1 am of the view that thejo service rules are just like standing orders framed under the Industrial Employment (Standing Orders) Act, 1946.

10. According to management, the workman concerned in this dispute is governed by EDA Con- duct and Service Rules, 1964. There is no evidence to show that these Rules were framed under Article 309 of the Constitution. A scrutiny of these rules reveals that this is only compilation of certain execu- tive instmetions/ordcrs and not the Rules made under Article 309. It is now well settled that the govern- ment is not competent even to add or amend the Rules firmed under Article 309 by issuing executive/ administrative instructions. (See the decisions in State of Haryana V/s. Shamsher Jang Bahadur- A1R 1972 SC 1546 and O. P. Lather V/s. Saihish Kumar KaWcar—2001 AIR SCW 619). Justice Talwar Committee which has set up by the Govern- ment of India to go into the service conditions ol" ED As has observed in its report that in view of the 1959 Statutory Rules under the proviso to Article 309 of the Constitution, of the EDAs were treated on the same footing as Goverrment Servants, but the position has changed consequent on the repeal- ment of that Statutory Rules and promulgation of EDA Conditet and Service Rules', 1964. Therefore, it cannot rbe held that EDAs are now Government Servants or that they are outride the purview of the l.D. Act. In fact, there is no provision in thete Rules excludirg EDAs from the purview of the l.D. Act. Tl is portion has been clarified by a Full Bench of the Kerala High Court as early as in 1982 in Umayammal V/s. State of Ketala- (1982 KLT 829). In Umajainmul case, following the decision of the Supreme Court in Bangalore Water Supply uise, the Full Bench of the Ken'la Hi^h Ccurt has held as follows : -

"From the observations of Justice Krishna Iyer and Chief Justice Beg it will not follow that merely because there is a provision in regard to tempoiary appointees as in Rule 9(a) of the Kerala State and Suboidinate Services Rules, such appo- intment will stand excluded from the purview of the Act. In this connection we might note here S.25-J of the Act occurring in Chapter V-A. Tt reads as horeundcr :

"25-J. Effect of laws inconsistent with this Chapter- (1) The provisions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other law including standing orders made under the Industrial Emp- loyment (Standing Orders) Act, 1946 (20 of 1946): Provided that where under the provision of any Act or rulo, orders or notification issued thereunder or under any standing orders or under any award, contract of service or oiherwise, a workman is entitled to benefits in respect of any matter which are more favourable to him than tlioje to which he would be entitled under this Act, the workman shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that he Jeceives benefits in respect of other matters under this Act. (2) For the removal of doubts, it is hereby declared that nothing contained in this Chapter shall be deemed to affect the provisions of any other law for the time being in force in any State in so far as that law provides for the settlement of industrial disputes, but the rights and liabilities nf employers and workmen in so far as they relate to lay-off and retrenchment shall be deter- mined in accordance with the provisions of this Chapter."

In spite of S.25-J it may be possible to ex- clude the operation of the provisions of Chapter V-A cfthe Act by a positive provision in any new leg'slaiion. However one cannot say that Rule 9 of the K-S.S.R. is such a positive provision in any way repealing either expressly Or by impli- cation provisions in. Chapter V-A of the Act as regards the temporary Government employees wh" arc workmen coming wi¹hjn 1h.e ambii of th'j Act. r could no. also fo said (hat there is any inceiy.is'ercy bOwcen :he prcvisicj.s in Chapter V-A of :he Ac: and Rule 9 of iht: K.S.S.R.,1703 13. Even according to para 6 of EDA Conduct and Service Rules, it was incumbent upon the ma- nagement to give one months notice or notice pay for the termination of services of an employee who has not rendered more than three years continuous service. Para 6 runs as follows :—

bscauso of the fime limit fixed for tho p"?'¹ d "f continuance in service of a temporary app"'"ntc: as per the said rule. Such time limit would cer- tainly apply to a person who will not come within the ambit of the term. "workman as defined in the Act."

6. Termination of Services.

11. I am of the considered opinion that in view |of the decision of the Supreme Cc-url in Telecom case (Supra) and that of the Full Bench of tho Kerala High Court in Umayammal Case, the EDAs like the workman herein cannot b: h:ld ns ncn- workmen under the I.D- Act.

(a) The services of an employee who has not already rendered more than three years' continuous service frorri the date of his ap- pointment shall be liable to termination at any time by a notice in writing givon either by the employee to tho appointing authority or by the appointing authority to the emp- loyee;

(b) the period of such notice shall bo one month; Provided that tho service of any such employee may be terminated forthwith and On such termi- nation, the employee shall be entitled to claim a sum equivalent to the amount of his basic allow- ance plus Dearness Allowance for the period r f the notice at the same rates at which he was drawing them immediately before the termination of his services, or, as the case may be, for the the period by which such notice falls short of one month.

NOTE—Where the intended effect of such termination has to be immediate, it should be mentioned that one month's basic allowance plus Dearness Allowance is being remitted to the ED Agent in lieu of the notice of one month through money order."

14. I, therefore, find that the termination of service of the workman herein is in violation of the above provisions of EDA Conduct and Service Rules also. Since Section 25-F of the I.D. Act is more beneficial than the above provisions of EDA Con- duct and Service Rules, the former statutory provision shall prevail over the latter executive instruction.

15. The next point to bo considered is whether the workman is entitled to continue in service. The workman has no case that he was appointed against the regular vacancy by following the procedure en- visaged under EDA Conduct and Service Rules. Therefore, he is not entitled to claim continuous employment. He has to be replaced by a regularly appointed person. Therefore, it cannot be said that his services were terminated for extraneous rea- sons. However, as airady observed hereinabove ho is entitled to the benefit of Section 25-F of the I.D. Act. In the present case, the management has not complied with Section 25-F.

16. The other ielief to which the workman is entitled is the benefit of Section 25-G of the I.D. Act. 12. On thu merit of the dispute, tho management would submit that the workman was taken only on hdhoc basis till a regularly selected person is appoint- ed and hence he has no right to continue in service. It is further submitted by the management that no appointment order was issued to the workman and ljiis services were not terminated. MW1 has stated these facts. However, he has admitted that the workman had worked as EDDA at Kalladathur Branch for the period from 1-10-96 to 18-9-97, There- fore, it is an admitted fact that he had rendered more than one year continuous service within the meaning of Section 25-B of the I.D. Act. It was, therefore, mandatory to comply with the provisions df Section 25-F of the I.D. Act for terminating the services of the workman. Section 25-F is applicable to every workman irrespective of the fact whether ho Was employed temporarily or permanently- In View of Section 2(oo) of the T.D. Act, all kinds of termination of services of a workman for any reason \yhatsoever would amount to retrenchment, except the termination due to voluntary retirement, retire- ment on reaching the age of superannuation, termin- riation on the ground of continued ill health, termi- nation as a result of the non-renewal of the contract Of employment or of such contract being terminated Under a stipulation in that behalf contained therein. In the present case, even according to the manage- ment no appointment order was issued to the work- man. Therefore sub-clause (bb) of Section 2(oo) is not applicable in the present case. If the appoint- ment of the workman was as a stop-gap arrangement ^s claimed by the management, an appointment Order stipulating such conditions should have been issued to the workman. In the present case, no Such order has bcen'issucd and his services were terminated all of a sudden without giving any notice ftnd now it is submitted by the management that the termination was on the ground that a regularly ap- pointed person had assumed charge. By any stretch df imagination such termination can be justified as the same is not only in violation of Section 25-F qf the I.D. Act, but also in violation of tho principles of natural justice. l]O32 GI/2001—10 17

17. In any view of the matter, the workman is not entitled to claim regular employment under the management. He had already approached the Cen- tral Administrative Tribunal for this claim by pre- ferring O. A. No. 152/98 and as per the direction of that Tribunal, the management considered his candi- dature for regular post, but he was not selected. Therefore* no. direction can be given in the present adjudication proceedings for regularising his service! 18. In the light of the foregoing discussion, I hold that the. termination of services of the workman with effect from 18-9-97 is illegal and unjustified and he is entitled to the benefit of retrenchment compen- sation- and Qn" month's notice pay in terms Qf Section 25-FoftheI.D. Act.

19. In the result, an award is passed in the afore- said terms and reference order is answered accord- ingly.

Dated this the 22nd day of February, 2001.

B. RANJIT KUMAR, Industrial Tribunal

APPENDIX

Witnesses examined on the side of the Management.

MW1—Shri. M.P. Nirjnalkumar.

Witnesses cxemircd on the side cf Workman.

WWI—Shri P.B. Sajcesh.

Documents marked on the side of Management.

Ext. Miseries—EDA Leave Applications submit- ted by V. P. Ajithakumari and connected papers. (4 Nos.)

Ex. M2(Series>—EDA Leave a,pplkations sub- mitted by V. P. Ajithakuniari ard Connected papers. (3 Nos.)

Ext. M3 (Series)—EDA Leave application dated nil submitted by V. P. Ajithakumari and connec- ied pflpers (3 Nos.)

Ext, M4- Crpy of application in O.A. No. 152/ 1998 filed before the Central Administrative Tribunal, Ernakulam Bench.

Ex, M5—Copy of Qider dated 29-1-9S in O.A. No. 152/1998 passed by Central Administrative Tribunal, Ernakulam Bench.

Doeume^is nvrked en the side of Woikman.

Ext, Wl—Charge report dated 1-10-96 by which workman assumed the charge as EDPA, Kallfi- dalhur.

New Delhi, the 21st March, 2001 S,Q. 780.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of*I947), the Central Government hereby publkhes the award of the Labour Court, Ko^hi Kpde as shown in the annexure in the Industrial Dispute between the employers in relation to the management of Syndicate Bank; and their workman, which was received by the Central Government OQ. 9-3-01.

[No. 'L-12012/358/94-IR(B-II)} C. GANGADHARAN, Under Secy.

ANNEXURE

IN THE LABOUR COURT, KQ7-HIKODE, KERALA STATE

Dated this the 4th day of January, 2001.

Present :

SHRI E. D. THANKACHAN, BA.,B.L., PRESIDING OFFICER

I.D.(C) No. ?./95

Between :— The Chairman, Syndicate Bank, H.O. Manipal-576 119. ..Management, And :— Sri K. Sankara, S/o. Sri S. Gopalakrishna Bhat, "Dasa Nivas", Ashoka Nagar, Kasargode-671 121. ..Workman. Representations :—

Sri E.M. Vijayari, Advocate, Calicut For Management Sri K. Abdussalam. Advocate, Calicut..For Work-

man

AWARD

The Government of India vide Order No. 12012/ 358/94-IR(B-IJ) dated 19th April, 1995 referred to this court the industrial dispute between M/'s. Syndi- cate Bank, Mbnipal (hereinafter called as the manage- ment) and its employee Sri Sankara (hejeipafter called as the workman) for adjudication and passing nor an award," The issue referred for adjudication is "whether the action of the management of Syndicate Bank, Manipal in dismissing Shri K. Shankara, Clerk/Typist, Badiarka Branch, from service with effect from 12-8-1993 is legal ard justified? If rot, to what relief is the said workman entitled".

2. The workman was employed as a Clerk/Typist under the management from May 12, 1977 onwards. While he was working in the Kasargode Branch of the management, charges were levelled against him on the allegation that lie passed 3 cheques altogether amounting to Rs. 10000/- for payment, without de- biting the same to the respective accounts and that in order to cover up the misappropriation, he has falsi- fied the registers and accounts, After conducting a domestic enquiry on the charges levelled aud on the basis of the report of the Enquiry Officer, finding the delinquent workman guilty of

3. Pursuant to the notice issued by this court in- timating the date of posting of the case, both sides appeared and submitted their respective statements

tive member of the union protested against trie illegal and ahti-labour activities of the management. The workman being only a clerk, was not able to pass ariy of the cheques mentioned in the charge-sheet without supervision and authentication by the supervisors. The alleged cheques and the concerned ledgers had to be rooted through several superior officers before effecting the payment to the party concerned. The allegation is that the 3 cheques were paid in cash on 13-4-89, 29-6-1989 and 6-7-1989. Thus it can be sfeen that there is a gap of two months between the alleged first instance aid second instance and tfiat there is another gap of 3 rnonths between the first instance and the third instance. It is strange to be- lieve that although a cross-checking of the entire tran- sactions is carried out in the bank almost all days, the alleged transactions were detected only on a very belated stage. It is not staled either in the show-cause notice Or in the dhargc sheet, as to how the illegal tran- sactions we're detected by the management. There- fore, the allegations are calculated attempts to vic- timise the workman. The enquiry was conducted in a hapazard manner. Even though there was no evidence at all in the enquiry to show that the work- man was guilty, the Enquiry Officer at the instanpe of the mangaemertt found the workman guilty. The cheques involved in the allegod transactions are loose cheque leaves, the' issuance and passing of which were the responsibility Of the supervisory staff. In the instarit case Sri N.H. Pal is the person who had issUed the loose' leaves to the parties concerned, and passed the cheques after verification of the relevant registers. Therefore he is equally responsible. The time gap of 9 months to issue charge-sheet clearly indicate the fact that it Was an after-thought. It can be'scen that Sri N. H. Pai is sought to be shielded since he waSaclOse relative of the then Executive Director of the batik Sri R.S. Pai. It is significant to note that in ihe'disputed cheques the signature of Mr. Pai alone is there. The explanation submitted by the workman was not considered by the management before issuing the charge-sheet.' The finding of the Enquiry Officer is perverse and without any legal evidence. The workman has gOt 16 ye~ars of continuous meritorious and unblemished service under the management. He is hailing from a poor family and has to look after his family consisting of his aged parents, wife and school going children It is therefore, prayed that the court may be pldascd to pass an award directing the management to re- instate the workman in service with backwages, continuity of service and with all other legal bene fits.

5. In the statements submitted by the manage-

ment the following contentions are raised:

4. The claim statement filed by the workman is with the following averments:— The workman who commenced his employment under the mana- gement as a Clerk/Typist from May 12, 1977, had been discharging his duties to the utmost satisfaction of all concerned. On 31-8-1990 the management served him with a showcausc notice foisting certain false and baseless allegations. The allegations in the show-cause notice were that while the workman was employed as a Clerk in the Kasargode Branch certain fraudulent transactions had taken place 6n 13-4-1989, 26-9-89 and on 6-7-1989 in passing 3 cash cheques (amounting to Rs. 10000) for payment with , out debiting to the respective accounts and that the above cheques were passed by the Supervisor Sri N.H, Pai, the Special Assistant, with his initials. The workman submitted his explanation on 1O-U-199O. The entire transactions have been duly supervised and authenticated by the higher authorities and there was absolutely no foul play on the part of the workman After obtaining the reply of the workman the entire issue was closed finding that the workman was not guilty. But amazingly after a lapse of 9 mo-uhs the workman was sorved with a charge-sheet dated 14-8- 1991 based on the very same set of allegations raised in the show-cause notice. The workman again sub- mitted a detailed explanation on 14-10-1991 denying the eritire allegations. According to the workman the allegations are made as a result of a calculated attempt only to seethat the workman is ousted from service somehow or other since the workman, wHo is an ac-

The averments in the claim statement are incorrect m rftte GAZETTE OPtmiA )APRIL 14. 2

Thereupon the Enquiry officer was examined a MW1 and the report of.the enquiry and the file re- lating to the enquiry were marked as Ext. Ml and M2 series on the side the management. The evi- dence on the side of the workman is his deposition as WW1. After considering the evidence and all relevant aspects, my learned predecessor vide order dated 30th day of October 1998 found that the do- mestic enquiry conducted is valid and proper.

8. Now what remains to be decided is whether any interference by this court is sought for under Section 11 A of the Industrial Disputes Act on the punishment imposed on the workman, by the ma- nagement.

9. The Point : The chargo against the work-

man is as follows :

"While he was working as a Clerk at our Kasargode branch and was posted in the Current Account Department, he got cheque No. 0988989, 0677187 and 0677188 amounting to Rs. 4,000, 4,000 and 2,000 respectively drawn on Current Account No. 930 and 923 paid across the counter without debiting the cheques to the respective accounts on which they were drawn and when the credit balance available in the Current Ac- count No. 923 was not sufficient to meet the Cheques concerned and with a view to cover up his above alleged acts, he resorted to manipula- tion/falsification of various records/books of accounts of the branch as more fully described in the charge-sheet served upon the employee. He was thus charged for committing acts of gross misconduct of doing acts prejudical to the in- terest of the Bank in terms of/19.5(j) of the Bi- partite Settlement."

baseless and devoid of any merit. In the show- caufie notice issued by the management true alle gaiions were made. The averments that the entire transactions have been duly supervised and authenti- cated by superior authorities and that there was no foul-play on the part of the workman is not correc t The workman in fact has successfully manipulated the documents to prevent the detccetion of his frau- dulent i activities. The workman is trying to shield his illegal activities by raising frivolous contentions Instead of attempting to prove his innocence and disputing the allegations against him, he is raising false allegations against the superiors. The con- tention that he was not able to pass any of the dis- puted cheques without the supervision and authenti- cation of supervisors is misleading. In fact the workman had succeeded in misleading the super- visors who were under the wrong impression about him during the relevant periods. Admittedly it is the workman who had issued tokens against the cheques, to the- concerned parties knowing fully well that there is no amount in the bank in their account. Even if there is some time gap to detect the illegal acti- vities of the workman, such time gap will not rescue the workman in any way. The allegation raised against the Enquiry Officer is false. The enquiry was in fact proper and the same proved that the workman is guilty of charges levelled against him. Sri N.H. Pai is not responsible for the misconduct alleged against the workman. At the most somc omission can be attributed against the supervisor staff. In fact the workman misused the faith re- posed on him by the superiors. Due to heavy work- load Mr. N.H. Pai would not have been able to take extra care in the case of disputed transactions. It is true that concerned superior officers were not vigilant enough to trace out the misconduct. The evidence in the enquiry has conclusively proved the guilt against the workman and hence the finding of the Enquiry Officer cannot be said to be perverse as alleged by the workman. The statement that the punishment imposed is disproportionate to the gravity of the alleged misconduct is not at all correct. Therefore, the court has no power to interfere with regard to the punishment awarded. The manage- ment, therefore, prays that the court may be pleased to pass an award finding that the enquiry and the punishment awarded to the workman are proper.

6. In the rejoinder filed by the workman, al .

It is significant to note that since the explanations submitted by the workman on the show-cause notice, was not found satisfactory a charge was framed against him as aforesaid. As the explanation sub- mitted by the delinquent on the charge-sheet was not accepted by the disciplinary authority, the same being unsatisfactory, a domestic enquiry was order- ed. In the enquiry, four witnesses have been exa- mined and a number of documents marked on the side of the management, while the delinquent emp- loyee alono was examined on the side of the work- man. After analysing the evidence in detail the Enquiry Officer arrived at a conclusion that the charges levelled against him are proved.

most the same averments in the claim statement aro raised.

7. As the workman disputed the validity of the domestic enquiry conducted, my learned predeces- sor raised a preliminary point as follows :

"Whether the domestic enquiry conducted

10. Iri order to interfere with the punishment awarded by involving Section 11 A of the Industrial Disputes Act it has to be considered as to whether the finding entered into, by the Enquiry Officer is perverse or not. In other words, tlic important aspect to be considered is whether the findings entered against the worker is valid and proper." im into by Enquiry Officer are based on legal evidence. As already pointed out, the charge against the worker in short is that while working as a Clerk at the Kasar- gode Branch of the management he got 3 cheques amounting to Rs. 4000, Rs. 4000 and Rs. 2000 each respectively drawn on cuiTent account No. 930 and 923 paid across the counter without debiting the cheques to the resp;ctive accounts on which they were drawn and the credit balance available in the current account No. 923 was not sufficient to meet the cheques concern sd and that with a view to cover up his illegal acts the workman resorted to mani- pulation of various records of the branch.

11. Ext. Ml is the enquiry report and Exts. M2 series is the enquiry file. Before the Enquiry Officer, MW1 to MW4 were examined on the side of the management and DW1 was examined on the side of the workman. Exts. M. Ex. 1 to M. Ex. 31 were marked on the side of the management and D. Ex. 1 to D. Ex. 3 were marked on the side of the workman. There is an allegation by the workman, against the Enquiry Officer that the latter is biased and that he did not allow the worker to properly cross-examine the witnesses of the manage- ment and also to adduce evidence from ihe side of the worker himself. Nevertheless, these allegations were found to be false by my learned predecessor in the preliminary order dated 30-10-98.

The evidence of MW1 to MW4 is corroborated by the documentary evidence M. Ex. 4, M. Ex. 11 artd M. Ex.l4(A) and other relevant documents produced from the side of the management. It may be noted that after the act of workman was found out, the workman had remitted certain amo- unts in the current account from which he had withdrawn Rs. 10,000. His contention is that he recovered the money from the parties and remited the same to their respective accounts, vide M Ex. 24 and M Ex. 25 on their specific request. As has been mentioned by the Enquiry Officer in his report this contention cannot be accepted in any way for the sole reason that the defence did not take any pain to bring the parties either before the Enquiry Officer or before this court to give evidence in support or such a contention. It can be seen that the document- ary evidence at hand would go to show that the workman in fact has successfully manipulated the accounts to prevent the detwtion of his fraudulent activities, Instead of proving his innocence he was bent upon raising allegations against the superiors. The evidence at hand would go to show that the workman had succeeded in misleading his supe- riors who were under a wrong impression about him during the relevant period. It is a fact admitted that the workman himself had issued token against the cheques to the concerned parties knowing fully well that no amount in the bank in their account was available for honouring the cheques.

13. It is true that some omission on the part of superior officers such as M.H. Pai (MW4 in the en- quiry) in conducting proper supervision and auth- entication regarding the cheques on the basis of which the amount was drawn by the employee, as alleged. This laches was taken advantage of by the workman by misusing the faith reposed on him by the superiors. May be it true that, due to heavy workload, the superiors would have been not able to take extra care in the case of disputed transactions and that they may not have bjjn nure vigilant enough to trace out the misconduct. But the sims cjtnnot be allowed to be taken as a defense to cover up the misconduct on the side of the workman. I have carefully gone through ths enquiry file as well as the enquiry report. Nothing is there to discard the same in any way. I, therfore, hold that the finding entered into by the Enquiry Officer is not at all perverse,

12. The witnesses for the management before the Enquiry Officer are (1) S.S. Murudeshwar (MW1) who conducted the investigation in the matter in issue (2) Sri K.R. Ballai (MW2) who was the then Manager of Kasargode Branch, (3) Sri K. Babu Shcnoy (MW3), the Assistant Manager, Kasargode Branch and (4) Sri N. H. Pai (MW4) the former Special Assistant, Kasargode Branch. DW1 is none other than the delinquent workman himself. It is seen from the enquiry report that the Enquiry Officer has considered, in detail the evidence re- corded by him and finally, come to the conclusion that the workman is guilty of the charges levelled against him. I have gone through the statements of all the witnesses who were examined before the Enquiry Officer. MW1 to MW4 have in unequi- vocal terms, given evidence before the Enquiry Officer regarding the withdrawal of a sum of Rs. 10,000 by the workman as per M. Ex.4, M. Ex. 11 and M. Ex 14(a) cheques and also regarding the manipulation of records by him in order to cover up his acts. I find no reason to disbelieve such evidence of MW1 to MW4 which is discussed in detail by the Enquiry Officer in his enquiry report. The Enquiry Officer has also stated his reasons in the enquiry report, for arriving at a finding that the workman is guilty of the charges levelled against him. The reasons stated by him are convincing and fre^ from doubt.

14, It has been brought out that th"re are cer- tain laches and lack of supervision on the part of the superior offl cers. Had the superiors been vigilant in supervising the day-today affairs properly, the misconduct as reported against the workman would have been found out in time and prevented. It is 1WS0 THE GAZETTEUSJF W P f t; APRIL *4i JWV/OIAITRA 24, 1923 [l"4fcT)lI^"Be.^0)] born out inevidence that there, is a gap of months together to find out the misconduct. In view of the laches on the part of the superiors, I hold that it is just and proper to show some leniency to the work- man- I arrive, at such a conclusion on the basis of the fact that he is aged only 45 years and also in view of the reason that during his 16 years of service in the bank no other allegation is levelled or proved against him. I, therefore, hold by invoking the provision laid down under Section 11 (A) of the Industrial. Disputes Act, that the ends of justice will be met if, instead of dismissal of the workman he is discharged so that he may get the benefits for the period of his work in the management and may saek some other job for his daily bread of himself and that of his family.

15. In the result, an award is passed converting the punishment of dismissal from service of the workman into that of discharge.

Dictated to the Confidential Assistant transcribed by him, revised, corrected and passed by me on the 4th day of January, 2001.

E. D. THANKACHAN, Presiding Officer APPENDIX

Witnesses examined on the side of the Workman :— WW1—K. Shankar, S/o. Gopalkrishnan. Witnesses examine on tho side of the Manage- ment :—

MW1— Harsh Mudhkal, S/o. R.K. Mudhkal. Docnmcnts marked on the side of the Workman :— NIL.

Documents marked on the side of the Management :— Ext. Ml—Enquiry Report. Ext. M2—Enquiry File.

New Delhi, the 21 si March, 2001 S.O.781.—In Pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Cen- tral Government .Industrial Tribunal/Labour Court, Chennai as shown in the annexure in the Industrial Dispute between the employers. in relation to the management of Indian Overseas Banks and their workman, which was received by the Central Govern- ment on 19-3-rOOJ.

[No. L-12012/301/93-IR(B-lD] C. GANGADHARAN, Under Secy.

ANNEXURE

BEFORE THE INDUSTRIAL TRIBUNAL, TAMIL NADU, CHENNAI—104 Monday, the 19th day of February, 2001

Present :

THIRU S. R. SINGHARAVELU, RSc.B.L. Industrial Tribunal

Industrial Dispute No. 92 of 1994

(In the matter of dispute for adjudication under Section I0(l)(d) of the Industrial Disputes Act, 1947 between the Workman and the Management of Indian Overseas Bank, Madras). Between

Shri E. Manickam, No. 57, Madha Koil Street, Mahabalipuram, Chengai M.G.R. District, Pin 603 104.

And

The General Manager, Indian Overseas Bank, 763 Anna Salai, Chennai—600 002.

REFERENCE : Order No. L-12012/301/93-IR(B-IT dated 2-3-94, Ministry of Labour, Govt. of" India, New Delhi.

This dispute comi,i3 on for final hsiring on Tuesday, the 23rd day of January, 2001, upon psru- sing the reference, Claim and Coiinter statements and all other material papsrs on record and upon hearing the argument; of Thiruvabrgal Aiyar and Dolia and R. Arumugam, Advocates appearing for the Workman and of Thiruvalargal N.G.R. Prasad, S. Vaidyanathau, advocates appearing for the Mana- gement and this dispute having stood over till this day for consideration, this Tribunal made the following

AWARD

Tho Govt. of India lias referred the following issue for adjudication by this Tribunal :

"Whether the action of the Management of Indian Overseas Bank, Madras in discharging Sri E. Manickam, Shroff/Godown Keeper, from service- with effect from 25-8-89 is justined ? If not, what relief is the workman entitled to ?"1709 2. The main averments found in the Claim State-

ment of the Petitioner are as follows :

retained by the claimant for his own use. There i$ no evidence that claimant altered the cash scroll which is always in the custody of an officer. He cannot have access to it until the officer himself hands it over to him. The respondent condoned his mis- conduct in its final order. Having condoned his alleged misconduct, the respondent is not correct to impose on him any punishment and more parti- cularly the punishment of denying him his bread and livelihood. The respondent ought to have seen that the D.A./E.O. should have examined the daftry of the branch, Mr. P. Muthusamy, who was alleged to have hinted about the suspense transaction to MW2. It is therefore prayed that this Tribunal may be pleased to pass an award holding that the action of the respondent in discharging the claimant from service w.e.f. 25-8-89 is not justified.

3. The main averments found in the Counter

Statement of the Respondent are as follows :

One Shri Kathcr Batcha, borrower, having small loan A/c. 112/86 at Mahabalipuram branch of the respondent bank remitted a sum of Rs, 200/- to his loan account on 20-1-88. The claimant while wor- king at Mahabalipuram branch, abused his position as Shroff/Godown Keeper of the branch and altered the relative entry in the Officer's Scroll to read as loan 88/85. The claimant had not posted the said credit voucher in the loan account 112/86 for which it was intended; but the claimant made a fictitious credit entry in his wife's loan account No. 88/85 for the same amount on 21-1-88 in order to make a wrongful gain to himself and his wife aqd a wrongful loss to the bank, (b) when the claimant came to know that the officials of Regional Office, Vellorc of Respondent bank detected during their visit to the branch on 19-5-88 and 20-5-88 the aforesaid un- authorised credit, the very next day, the claimant had taken the loan ledger from the Branch Manager on the pretext of tallying the loan balances and scored off the aforesaid unauthorised crodit entry and alter the respective balances in the ledger and in the loan balance book, (c) On 9-11-87, the claimant took cash advance of Rs. 2,000/- from ,the branch for enabling him to exchange the cut notes if any during cash remittanqe made to Currency Chest of Cathedral branch on the same day (9-11-87). As soon as the Cash remittance was over, the claimant should have remitted back the advance taken by him to the branch immediately by next norming. But the claimant had retained the said bank's money with him for his own use, till 14-12-87 i.e. for more than a month. Under the circumstances, the Disciplinary Authority had rightly concluded that the credit entry made into the claimant's wife's loan account was not at all a mistake but was made with a malafide intention. Tho averments that a credit of just a sum of Rs. 200/- cannot alter the overdue nature of tb" account is The Claimant is a workman employed by the Respondent bank, having been appointed as Shroff/ Godown Keeper at its Mahabalipuram branch on 10-8-1977. The respondent bank served on him a' Charge sheet and suspension order vide its letter dated 13-7-1988. After enquiry and show cause notice etc. the petitioner was discharged from service of the bank on 25-8-89. The first charge in effect says that the claimant abused his position of Shroff/ Godown Keeper and altered the relative entry in the Officer's cash Scroll to read as 'loan 88/85, (b) he had not posted the said credit voucher in loan account 112/86 but made a fictitious credit entry in his wife's loan A/c. No. 88/85, in order to make wrongful gain to his wife and a wrongful loss to the bank and (c) he had also forged the initials of the officer against the said ledger entry in his wife's account. The reasoning are based on suspicions and doubts. Officer's scroll is always in the custody of the officer concerned and the claimant cannot have access to it. It is however a fact that the claimant made a wrong posting and such mistakes do occur in any original work especially due to admittedly heavy pressure of work. The wrong credit to loan A/c. 88/85 was cancelled and the same credit was given to Mr. Jainuiabdeen's Loan Account, for the loan account No. 112/86 was by then closed. It is incorrect to conclude that such wrong posting would only mean wrongful gain to the loan account of his wife. Missing of this Cash (credit) voucher might be a fact though not admitted. But it was not brought out' at the enquiry that the claimant has had anything to do with it. The Second Charge is that (a) the claimant came to know that the officials of R.O. detected the aforesaid unauthorised credit, (b) hence the very next day he had taken the loan ledger from the Branch Manager on the pretext of tallying the loan balances, etc. It is the Manager who entrusts the work to clerical staff. Hence he was asked to do the tallying of the ledger in question. The DA/ EO has given twist to what has actually happened to hold him guilty of the charge. Tha Third Charge is that (i) On 9-11-87 he had taken Cash advance of Rs. 2,000/- for exchanging cut-notes during cash remittance to Currency Chest at Cathedral Branch of the respondent, (ii) he had detailned it for his own use till 14-12-87 though he should have remitted it back immediately the next morning. When the cut notes are returned, they are to be exchanged separa- tely by lodging claim to the Reserve Bank of India. No body reminded the claimant for remittance of this money back at the branch. He has made the credit of thjs Rs. 2,00Q/- of his own accord on 14-12-87. The respondent has not proved that the funds were 1710 THE GAZETTE OF INPIA : A *W 14, 2001/CHAITHA 24, 1923 [PART II—Sic. 3(U)]

detected by the officials of the Regional Office, Vellore, the petitioner scored off the said entry and altered the balance in the ledger and in the loan balance book. The Disciplinary authority took a leni- ent view and awarded him only a punishment of dis- charge from Bank's service. The question of discri- mination will arise only when a common charge sheet is issued to various persons on same set of facts and some charge sheeted officials are let off or awarded with a lesser punishment, and some officials are awarded severe penalty. When a punishment is awarded, several factors have to be taken into consi- deration mitigating circumstances, subsequent beha- viour, the past conduct and the repentance or ten- dering apology are all important circumstances which normally influence awarding of punishment. In the cases mentioned by the petitioner in his affidavit, the circumstances existing were different. Merely because a lesser punishment was given in these cases, it does not mean the Disciplinary Authority should have awarded the same punishment in the present case also. The respondent prays to dismiss the claim of the petitioner.

5. On behalf of Respondent/Management, Ex. Ml to M109 were marked by consent. No witnesses were examined for both sides.

6. The point for consideration Is : Whether tho action of the Management of Indian Overseas Bank, Madras in discharging Sri E. Manickam, Shroff/ Godown Keeper, from service with effect from 25-8-89 is justified ? If not, what relief is the work- man entitled to?

denied. Whatever might be the amount, the fact that the claimant chose to credit the amount in the loan account of his wife clearly established that the claimant did it to make wrongful gain. The docu- mentary evidences coupled with the evidence of MW1 and MW2 established that it was the claimant who altered both the entries i.e. entry in the loan account No. 88/85 as well as Officer's scroll, with Ajanta Rose colour ink. The averments that the claimant has had nothing to do with the missing of the Credit voucher, is denied. It may be observed from the records of the enquiry proceedings that the alterations were made by the claimant in the intervening period after the detection of tho unauthorised credit entry by Regional Office officials during their visit to branch on 19-5-88 and 20-5-88 and before regular investigation commenced in the branch on 23-5-88. The reasons assigned by the Inquiring Authority/ Disciplinary Authority for arriving at the conclusion that the charges are proved, are reasonable and con- vincing and the findings have been arrived at by the Inquiring Authority based on clear evidence and proof in the enquiry. The claimant admits that the cash advance of Rs. 2,000/- taken by him on 9-11-87 from the branch for exchange of cut notes during cash remittance work at Cathedral branch was remit- ted back by him only on 14-12-87. The claimant should hnve returned the money on 9-11-87 itself immediately after completion of the work. The withdrawal of money from the bank and retention of the same were done by the claimant solely for the purpose of deriving pecuniary gain for himself and this clearly amounted to misappropriation of bank's money. The charges proved against the claimant are serious in nature showing moral turpitude on the part of the claimant. The claimant being a bank employee should have shown utmost honesty and mteprity in the discharge of his official duties, parti- cularly with his dealing with public. As public money was involved and as the act committed by the clainnnt were serious in nature, the respondent ha< lost confidence in the claimant and therefore th ckiLnant was discharged from service. The respon- dent therefore prays that this Hon'ble Tribunal may be pleased to reject the claim of the claimant, and jrive an award, confirming the order of discharge.

7. THE POINT : The petitioner is a workman employed by the Respondent Bank having been appointed as Shroff/Godown Keeper at its Mahaball- puram branch on 10-8-1977. He was terminated from the service w.ef. 25-8-89 for the misconduct said to have been proved in a Domestic enquiry. The contention of the claimant that he had good antecedents and appreciable past record will not go to hslp him, if there is proved misconducts involving the fiscal matter of the bank. This is so because in banking business absolute devotion, deligence and integrity are to be preserved and in the absence of which the confidence of the depositors will get im- paired and as a result there will be peril of the banking business.

4, The main averments found in the Addl. Counter Statement filed by the Respondent are as follows :

The petitioner herein was found guilty of the Charge of making a fictitious entry of Rs. 200/- in his wife's loan account No. 88/85 and also of the Charge of making a wrongful gain to his wife and wrongful loss to the bank. The petitioner further forged the initial of the officer against tho credit entry made in the ledger relating to his wife's loan account. When the authorised credit entry was

8. Again the claim of the petitioner that some other members of the staff were given lesser punish- ment for the misconduct is also unacceptable because facts and circumstances should be symmetrically identical in order to make a comparison. The case of other are dealt in Documents produced by the management and a careful perusal of those records will go to show that the facts involved thereunder are quite different from the facts constituting the alleged misconduct on the part of the petitioner.

9. We will have to examine the contents of Ex. M35 which is the record of finding in respect of the Charge Sheet dL 13-7-88 issued to this petitioner, tx. Ml to M33 and "lh r record, were found' ^o hi\,; been relied upon by the Enquiry Officer in arriving at the findings. The Charge sheet was marked as Ex. Ml which reads as follows :

10. According to the case of the Management, one Sri Khader Basha, borrower as a Small Loan No. 112| 86 at Indian Overseas Bank, Mahabalipuram branch remitted a bum of Rs. 200 to his Loan account on 20-1-88. The petitioner while working at Mahabali- puram branch was said to have altered the related entry in the Officer*,' Scroll to read as Loan No. 88/ 85. It is found that Loan A/c 88/85 belongs to the wife of the petitioner. The petitioner was said to have correspondingly made a fictitious credit entry in his wife's AJc on 21-8-88 for the s>ame amount of Rs. 200 paid by Khader Basha. It is said that the petitioner had also correspondingly forget the initial of the officer against the said ledger entry in his wife's account. Some how or other the officials of tho Yellore branch of Management bank have detected on ^-5-88 the alleged fraud committed by the petitioner. It is said thai¹ the very next day the petitioner had taken the loan ledger from the Branch Manager and scored off the unauthorised credit entry and altered the amount of balance in the ledger and Loan balance book also. It is said that the petitioner had corres- pondingly made posting of credit entry for Rs. 200 as on 20-1-88 into the loan account No. 92/87 stand- ing in the name of another Sri A. K. Jainallabdeen.

I. It is reported that one Shri Kather Batcha, borrower having small Loan A/c. No. 112/86 remitted a sum of R&. 200/- to his loan account on 20-1-88. You abused your posi- tion as Shroft'/Godown Keeper of the branch and altered the relative entry in the officer's Cash Scroll to read as'Loan 88/85'. You have not posted the said credit voucher in the loan A/c U2/86 for which it was intended but you had made a fictitious credit entry in your wife's loan Ac. No. 88/85 for the same amount < n T1-1-P8 in order lo make a wnrgful gain to your wife and awrongful loss to the bank. You had also forged the initials of the officer against the said ledger entry in your wife's account.

2. When you came to know that the officials of Regional Office-, Vellore dc'ecttd during 19-5-88 and 20-5-88 the aforesaid unautho- rised credit; the very next day you have taken the loan ledger from the Branch Manager, on the pretext of tallying the loan balances, and you scored off the aforesaid unauthorised credit entry and altered the respective balances in the ledger and in the loan balance book. You had also made posting of a credit entry for Rs. 200 as of 20-1-88 into the loan A/c 92/87 standing in the name of Shri A- K. Jainallabdecn and altered the balance in the account.

3. It is reported, that on 9-11-87 you had taken cash advance of Rs. 2,000 from the branch for enabling you to exchange the cut notes, if any, during cash remittance made to Cathedral Currency Chest of the bank on the same day (on 9-11-87). As soon as the Cash remittance was over, you should have remitted back the advance thus taken by you, to the branch immediately by next morning. But you had detained the said bank's money, with you for your own use, till 14-12-87. 4. It is alleged that you have stolen the two DBP instruments (cheques) from the branch in order to avoid despatch of the said ins- true itions to the respective drawee banks.

11. MW1 Sri J. Jagadeesan deposed in domestic en- quiry that he had visited the Mahabalipuram branch on 9-5-88 and happened to find an unauthorised credit entry in Small Loan 88/85. Exhibit M7 is the case sheet signed by him relating to the above account which admittedly belong to the wife of the petitioner. The set of loan documents relating to the grant of loan to the wife of the petitioner were found in Ex. M6 and M107. They were perused by MW1. The petitioner was found in that document as a guarantor of loan granted to his wife. Tt is made clear from the evidence of P. Subramania Rao, MW2 in the do- mestic enquiry that the said loan was sanctioned bv Mr. P. Lognnathan. the earlier Manager. From Ex. M8 which is Small Loan Ledger IV (Folio 172), it is evident that the figure 26 was altered to read a" 21 and the amount of Rs. 200 once posted Was struct of and again over within the same sum. As evident from Ex. M8 there was no repayment in the Loan Account since granting till June 1986. The Load account was then carried over to Ledger Ex. M9 wherein there was only one credit entry. In fact, the date of correction involved in Ex. M8 as 26-1-88 was a Bank holiday due to Republic dav. This Small Loan Supplementary marked as Ex. M10 which would disclose that there was actually no credit entry on 21-1-88 at all. Tn this connection, MW1 Thiru M. J. Jagadeesan who had inspected the above deposed that his effort of checking for all the entries of Rs. 200 during this period made him to come across Rs. 200 entry dated 20-1-88 in the Supplementary relating to Account No, IT2/86 on tho account of Khader Basha. When he verified this Loan Account the said entry of Rs. 200 dated 20-1-8R did not find olace. \n the Ledger SL TTI folio 23. which was marked as Ex. Ml 1. On perusing Exs. M39 and M40 which are the Cash Scroll of the Branch from 1-12-87 and receiving Counter Cash Book of the Branch from 3-12-87 respectively. It could be seen that Rs 200 was received bv the Cashier in respect of SL 112/86 CReceint No. 12). The Cash- ier who hnd sicned Ex. M40 in pages 121 nnd 122 wns fmmrl as Sri Narnsirm Raphavnn but in Fx. M39 it wn" found that there was n material alteration in Loan Number to rend as Account No, 88/85. It was The reply to the Charge sheet was marked as Ex. M2. Copy of the letters addrcijCd to the petitioner were marked as Ex. M3 to M5. Now we will have to peruse the documents of Loan No. 88/85 dt. 12-6-85 more particularly fojn j n Ex. M6 and Ex. M107. 1032 GI[2001.—11.

1712 THE GAZETTE OF INDIA : APRIL 14, 2001/CHAITRA 24. 1923 [PART II—SEC. 3(li)] found in Ajuntha Colour Rose Ink which according to the w i t n e ss oi the management WLIS used.only by the petitioner.

88/85 marked as Mii. 16 in the domestic enquiry, was corroborated by Che deposition uf MW2 that he gave the petitioner the ledger containing Ex, M9. When MW3 brought the ledger and balance book from the petitioner, he found that the entry was cut off completely. According to MW3 petitioner told him (hat the later scored off 'he same and had posted it in the other Account No. 92/87. This will go to prove that The petitioner had taken the Loan ledger from the Manager. Thus it is seen that on the pre- text of tallying fhc loan balance, the petitioner had scored of the said unauthorised 'credit entry and altered in the ledger. Documentary evidence through Ex. M i l, M19 and M33 do show the above fact. In the letter of petitioner under Ex. M32 he had admitted the same. Since MW2 and MW3 in the domestic enquiry had deposed that they have seen the alterations made in the Balance book by peti- tioner and since there is no motive for them to make false statement it has to be normally believed. The other evidence both oral and documentary discussed supra will also corroborate The same Thus Charge No. 2 also got prove.

14. So far as Charge No. 3 is concerned, it is found that on 4-11-87 the petitioner took cash ad- \ance of Rs. 2000/- from the branch for enabling i"o exchange tfic Cut notes if anv during cash remit- tance made on the same day. As soon as the Cash remittance was over, petitioner should have remit- ted back the advance nexf morning. But the peti- tioner had retained till 14-12-87. in this connection, the Branch Suspense Register marked as Ex. Ml 00 and suspense voucher marked as Exw, M20 and M21 evidenced thaf the petitioner had taken cash advance of Rs. 2000/_ on 9-11-87, far enabling him to exchange cut notes. Ex. M21 coupled with the Suspense register marVcd as Ex. Ml00 would go to show that fhc petitioner paid back the said advance- on 14-12-87. After remittance of Cash on 9-11-87, the petitioner should have remitted back fhe Suspense Account on the next morninp i.e 10-17-87. The deposition of MW2 found in the Domestic enquiry that the petitioner himself took suspense balance*on 30-11-87 would reveal that the petitioner is aware of the said outstanding and it was well within his know- ledge. It would establish the petitioner mala fide intention of retaining bank's money of Rs. 2000/- with him till 14-12-87. Thus the'Charge No, 3 is, also proved. The 4fh charge was found not proved in the domestic enquiry itself. So we need not go info it.

12. The Counsel fur the Petitioner argued that tlic Ajantha Colour Ink could have been used by any one and that there is no proof to hold that it \\ as exclusive- ly used by the petitioner. When MW1 and MW2 would say this we may have to take it true unless there is any motive for them against the petitioner. No motive was attributed against MW1 and MW2. In the official activities any member of the stuff could be able to say the method and manner o[ use and the individual using the particular kind of pen with exceptional colour. When they categorically said that it was exclusively used by the petitioner we cannot but believe il, since there is motive. It is not also as if this alone individually is going to prove the mis- conduct against the petitioner. When other links cor- rectly fit in and when they were proved by oral evidence of MW1 and MW2 we may have to rather believe the same and come to a necessary conclusion that this petitioner alone committed the mistake. Above nil Kinder Basha (he Account holder of 112[86 was said to have told MW1 that he remitted Rs. 200 on 20th January, 1988 to his loan account. Thus it is proved that the petitioner had posted the credit i?ntrv of pay- ment of Rs. 200 made bv Khader Basha fo Account No. 88/85 which belongs to his wife. He has aho altered the Officers' Scroll to that effect as found in Ex. M30. As discussed supra, apprehending that it had already catoc I'O light the petitioner seem to have re-corrected and while things- were thus done even false entry on 26-J-8S wore aJ,"i made. As the documents were exclusively in the cus- tody of the petitioner and he had to do such functions in the ordinary course of busings, if is made clear that he alone did it. Needless fo say that it is for dishonest purpose of enriching with others money this misconduct touching the fiscal matter, was com- mitted. Further financial loss was also caused to Khader Basha. To put it ncnin fhe evidence of MW1 in the Domestic enquiry revealed that Sri Khader Basha remitted Rs. 2 0 0 '- on 2O-1-R8 to his Loan Account 112/86. Ex. MIR is the Counter- foil for the remittance. Ex. M10 is the relevant Loan Supplementary. Ex. M33 the Investigation re- pon' also corroborate this fact. Ex. Ml I shows that the said entry was not posted in the ledcer bv petitioner. As such, the fact remains that the pert- tioner had not rested fhe said credit voucher ;n the Loan. Account 112/86. Fr. M9 counied with the •deposition of MW1 pnri MW Drove that the said enfrv was posted to Loan A/c 88/85 beloneine to the wife of the petitioner. MW2 also identified the initial in Ex. M9 as thai of petitioner. The petitioner contended that he had wronsriv posted the entn' in A /c 8R/85 bv nversiclhf. How rouH thr ruarfmtor in Small Loan No. R8/R'i nnmejv tho petitioner could do it without ,inv mila fide motive Any reasonable person could not believe it. Tr'csnertiv • of f/>e fact as to whether this subsequent corrections made was proved or not the fact remains thaf wronn posting of credit amount wns made bv petitioner with mnb fid" n r ^;v. Thus thf Cftarce No. I is found partly proved.

15. The Learned Counsel for the Management relied upon 1999 IT LL.T p.194 wherein the Clerk in Bank dismissed from service on proved misconduct of crediting his account with money that should have been credited to the account of the customer and withdrawing such money for utilising himself; it was held that the confidence of customer is paramount for the success ofbank business; continuing in employ- ment a person who committed fraud on customers would be prejudicial to the interest of bank it was further held that the Industrial Tribunal is a judicial form and the discretion vested to interfere with the 13. So fir .*K *he Charp- No. 2 i" concernH, the penisal of the Photo copy of the Ledger fofo of1713 quantum of punishment should be judicially exer- cised; discretional power docs not mean licence to direct reinstatement and that the Industrial Tribunal cannot interfere with quantum of punishment if prov- ed misconduct is grave in nature.

The facts of the above case are bimilar to the pre- sent case. Therefore, the above findings will be app- licable to the present case also.

16. Similarly, in 1998 Hi LLN 652, it w;w held that a bank employee discounting his own cheques and allowing Overdrafts in excess of his power had committed serious misconduct and was dismissed.

17. Similarly in 1996 (9) Supreme Court Cases p.69 it was held that Acting beyond one's authority was misconduct within the meaning of Rule 24 of Cent- tral Bank of India Officers Employees Regulations and allowing Overdrafts or passing cheques invol- ving substantial amount beyond his authority should not be trca^d as error of judgement. Again in 1998 111 LLN p.89, it was held that in banking business absolute devotion, diligence and integrity need to be preserved by every bank employee and if this is not observed confidence of depositors would be impai- red and it was held in 2000 II LLN p. 1395 that once misappropriation stood proved, showing sympathy is uncalled for, it was described in 1997 I LLN 391 as misplaced sympathy.

18. So, in this case, Section 11A of the Industrial disputes Act, 1947 could not be applied. The dis- missal of the petitioner is thus found justified. Award passed accordingly. No costs.

Dated at Chennai, this 19th day of Feb. 2001 S.R. S1NGHAR AVELU, Industrial Tribunal.

I.D.No. 92/94

Witnesses Examined

For Petitioner/Workman For Respondent/Management

: None : None DOCUMENTS MARKED For Petitioner/Workman:

: Nil For Respondent/Management:

Ex.Ml 13-7-88 : Charge sheet cum-Suspension or- der issued to the claimant.

Ex.M2 2-9-88 : Copy of the claimant's reply to

the charge sheet.

Ex.M3 13-9-88 : Inquiring Authority's letter to

the claimant.

Ex.M4 13-9-88 : Copy of the Telegram sent to the claimant by the Inquiring Au- thority.

Ex.M5 14-9-88 : Copy of the letter sent to the clai- mant by the Inquiring Authority.

Ex.M6 12-6-85 : Copy of the loan documents in

Loan No.88/85.

Ex.M7

Case sheet relating to Small loan No.88/85.

Ex.M8

: Copy of S.L. Ledger 4 Folio 172 .. : Copy of S.L. Ledger 11 Folio 107.

Ex.M9

Ex.MIO

: Copy of S.L. Supplementary Ex.M11

Small Loan Ledger TIT Folio 23.

Ex.M.12 7-9-98 : Copy of the letter of the Mana- ger of Mahabalipuram branch addressed to Central office. 21-9-88

Ex.MI3

: Copy of the letter of the Inqui- ring Authority to the claimant* 22-9-88

F.X.M14

: Copy of the Telegram sent by the Inquiring Authority to the clai- mant.

22-9-88

Ex.M15

: Copy of the letter of the claimant to the Tnq.Authority with cnclo sure.

19-9-88

Ex.MI6

: Copy to the letter of the claimant

to the Inquiring Authority. 22-9-88

Ex.M17

: Postal Authority's intimation reg.

Telegram

Ex.MIS 19-1-88 : Copy of the Counterfoil for

Rs- 200/-

: Copy of S.L. Ledger III relating Ex.M19

to A/C 92/87

9-11-87 : Debit Suspense Voucher.

Ex.M20

14-12-8

Ex.M21

7: Credit Suspense Voucher Ex.M22 21-4-83 : Copy of Withdrawal slip for

Rs. 2000/-

Ex.M23

: Copy of D.B.P. Register Folio 110,

111, 196, 197, 322, 323.

2-5-88 : Dr.D.B.P. Voucher for Rs. 2000/- Ex.M24

14-2-87 : Credit S.B. Vouchcer for Rs.

Ex.M25

2000/-

21-4-88 : Withdrawal slip for Rs. 2000/- EX.M26

31-5-88 : Cr.Cash D.B.P.(l) Voucher for Ex.M.27

Rs. 650/-

31-5-88 : Credit cash D.B.P. (1) Voucher Ex.M28

for Rs. 2000/-

31-5-88

Ex.M29

; : Letter by Shri A. Manoharan add- ressed lo Manager T.O. B. Mama- llapurdm.

31-5-88

Ex.M30

: Letter from Shri N. Raj, addre- ssed to Manager, 1.0.B. Mama- llapuram.

23-5-88

Ex.M31

: Copy of letter qf the Manager, I.O.B. Mamallapuram to the Re- gional Manager.

23-5-88

Ex.M32

: Copy of the letter of the claimant to the Regional Manager, I.O.B,

Vellore.

17*4 THE GAZETTE OF INDIA : APRIL 14, 2001/CKAlTRA 24, 1W3 [PART II—SEC. * ( " )] Ex.M33 3-6-88 : Investigation Repoit of Shri Sri- raman Officer of R.O. Vellore.

Ex.M34 J 3-9-88

to

Enquiry Proceedings

23-2-89 :

27-6-89 :

Ex.M35

Findings report of the Inquiring authority

Ex.M36 28-6-89 : Notice to the Claimant on the Show cause hearing

Ex.M37 25-8-89 : Original order of the Disciplinary authority

19-10-89:

: Order of the Appellate Authority.

Ex.M38

1-12-87 : Cash Scroll of the branch

Ex.39

Ex.M40

Receiving Counter cash Book for the period 3-12-87 to 2O:-l-88 Suspense Balance book from Ex.M41

9-11-87 to 14-12-87

, 21-8-87 : D.B.P. referred register contai- Ex.M42

ning the following Entry.

DBF 588/ SB:

' No. Fevouring Amount Drawn on '87 N. Raj Rs.650/- Canara Bank 3674 Therukazhukundram : DBP refened register containing I 21-8-87

Ex.M42

the following entry:

1. Favouring Amount Drawn A.Manoharan on Syndicat DBP Me 964/87

Bank SB 6693 2000/-Teynampct Small loan Balance book showing Ex.M44

the balance in SL 85/85 as on the close of January '88

i 13-5-88

Ex.M4?

Charge sheet cum Suspension order

: Original oider passed by the Dis- 5 24-4-89

Ex.M4(

ciplinary authority

Ex.M4' 7 15-9-89 : Appellate order passed by the App- ellate authority

: Charge sheet cum Suspension 8 13-3-89

Ex.M4<

order issued to Sri A.R. Kesa Kirthanam

: Findings of the Enquiry Autho - 9 12-3-90

Ex.M4

rity.

: Order passed by the Disciplinary 0 16-6-90

Ex.M5

authority.

;i ll-H-9< 5: Charge sheet issued to Sri A.G.- Ex.M5

Sathya Narayana.

: Additional Charge sheet i2 8-10-97

Ex.M5

: Original Order passed by the Disci- Ex.53 31-12-97 :

plinary Authority

4 18-6-96

Ex.M5

Charge sheet cum Suspension ordei issued to Sri Uthnmadgama 2.

: Addl. Charpe sheet

Ex. M 55 22-10-96

Ex.M56 31-3-97 : Original order passed by the Dis- ciplinary authority

Ex.M57 11-6-97 : Appellate order passed by the App- ellate authority

2-1-91 :

Ex.M58

Charge sheet cum Suspension order issued to D. Mathivanan Enquiry officer's firdirjs Ex.M59 29-9-91 :

9-3-92 : Original oidcr passed by the Dis- Ex.M60

ciplinary authority

20-5-92 : Appellate ojder

Ex.M61

28-9-89

Ex.M62

: Charge sheet issued to Sri N. Ren-

gamani

Ex.M63

Findings of the Enquiry authority Ex.M64 9-6-92 : Original order passed by the Dis-

ciplinary authority

Ex.M65 25-6-84 : Charge sheet issued to Sri K. Bala- chandran Officer or Wai Tsx Road branch

Additional Charge sheet issued to Ex.M66 10-7-84

K. Balachandran

: Original order of punishment iss- 29-8-88

Ex.M67

ued to Sri K. Balachandran : Appellate order in respect of the 30-6-89

Ex.M68

above Charge sheet

8-4-87

Ex.M69

: Charge sheet issued to Sri G.K.- Panda, Officer of KURD A branch : Addl. Charge sheet issued to Sri 21-12-87

Ex.M70

G.K. Panda.

: Second addl. Chaige sheet issued 17-8-88

Ex.M7l

to G.Ft. Panda

• : Original order of Punishment iss- Ex.M72 ; 2M2-8S

ued to Sri G.K. Panda

: Appellate order in respect of the Ex.M73 9-7-91

above

• 17-6-83

Ex.M74

: Charge sheet issued to Sri Sivasa- nkaran, Cahsier of Esplanade bra- nch

87 : Original order of Punishment 1 : 14-12-

Ex.M7f

issued to Sri Sivasankaran : Appellate order in respect of ihe i 10-6-88

Ex.M7<

above

' : 24-5-8

Ex.M7;

5 : Charge sheet issued to Sri C. Dharmaraj Shroff/Bill collector of Kottar branch

: Original order of punishment iss- 5 28-3-87

Ex.M7!

ued to Sri Dharmaraj

: Appeal preferred by Sri Dharmaraj ? 4-5-87

Ex.M7'

: Appellate order issued to Sri Dha 3 17-3-88

Ex.M8l

rmaraj

: Charge sheet issued to Sri K, Gane- 1 29-9-87

Ex.M8

snn/Clerk/Typist of Saidapet1715 Ex.M82 15-6-88 : Original order of Punishment iss- ued to Sri K. Ganesan.

15-6-88 :

Ex.M83

Appeal preferred by Sri K, C,..e- san

Appellate order issued to Sri 1C.

Ex.M84 1-8-88 :

Gane^an

Ex.M85 : 14-8-8.'

5 Charge sheet issued to Sri P. Raja- subramaniani. Manager, Narikudi Branch.

Ex.M86 : 8-12-86 : Original order of Punishment iss- ued to Sri P. Riijasubraniar.iam : Appeal preferred by Sri P. Rajas- Ex.M87 13-3-87

ubramaniam

1 17-2-86

Ex.M8£

: Charge sheet issued to Sii R.G. Je- gadecsan, Cashier, Kodakkal bra- nch

: Original order of Punishment iss- 9 26-8-87

Ex.M8!

ued to R.G. Jagadeesan.

0 12-1-88 : Appellate order > in respeci of the Ex.M9<

above.

•1 23-12-8'

Ex.M9

7 : Charge sheet issued to Sri R.N.- Khanna, Shroff/Typist ol SAS Na- gar branch

: Original order of Punishment iss- Ex.MS >2 22-3-89

ued to R.N. Khanna

Ex.M9

9 : Appellate order in respect of the •3 20-10-8'

above

•4 13-9-86

Ex.M9

: Charge sheet issued to Sri V.R. Sa-

nthanam

>5 31-10-8

Ex. MS

7 : Original order of Punishment iss-

ued to Sri V.R.Santhanam Ex.MS 16 4-4-89

Ex.M108

Suspense Balance book of Maha- balipuram branch (original) for the period 9-5-83 to 31-12-89 (ME 34) (original)

Ex.M109 . .. Suspense Register of Mahabalipu- ram branch (original) for the peri- od 9-5-83 to 5-8-88 (ME 33) (ori- ginal).

New Delhi, the 21st March, 2001 S.O. 782.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Central Government¹ Industrial Tribunal/Labour Court, Kanpur as shown in the auuexure in the Industrial Dispute between the employers in rela- tion to the management of Punjab National Bank and their workman, which was received by the Central Government on 7-3-2001

[No. L-12012|196|95-IR (B-II)] C. GANGADHARAN, Under Secy.

ANNEXURE BEFORE SRI R. P. PANDEY PRESIDING OFFI- CER CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL^CUM-LABOUR COUR SARVODAYA NAGAR, KANPUR

Industrial Dispute No. 120 of 1996 In the matter of dispute between ;—•

State President, PNB Employees .Union. 14/123 Kishanpur Rajpur Road. Dehradun.

AND

n -12-87 Suspension Register (Xerox) 8 : Reply of the Charge sheeted emp-

loyee to the Charge sheet.

Regional Managar, Punjab National Bank, R. O. Arya Nagar Chowk, Jwalapur Hardwar.

AWARD

i Letter of the Bank to the Petitioner. il -do !7 -do- 37 -do- -79 .do-

Ex.M Ex.M Ex.M Ex,M Ex.M

1. Central Government, Ministry of Labour, New Delhi, vide its notification No. L-12012fl96|95- I.R. (B-2), dated 26-11-96 has referred the follow- ing dispute for adjudication to this tribunal :-~ 55 Photo copy of the loan ledger re- lating to SL 88/85 of Mrs. Gnana- valli, W/o the petitioner marked as ME 16 in Ihe enquiry.

Whether the action of fhe management of Punjab National Bank in imposing punish- ment of stoppage of two increments (with- out commulative effect) on Sri Ramphal 1716 THE GAZETTE OF INDIA : APRIi l4, 2001/CHAITRA 24, 1923 [PART it—SEC. 3(ii)J Singh, Daftri Branch Office BHEL, Rani- pur, Hardwar is just and legal ? If not to what relief the workman is entitled ?

2. On 20-2-2001, when the case was taken up for hearing the authorised representative fur the work- man made an endorsement on the order sheet to fhe effect that the claim not pressed. In view of this endorsement of the authorised representative for the workman, this tribunal has no option but to hold that the concerned workman is not entitled to any relief in pursuance of the reference made to this tribunal for want of proof.

3. Accordingly it is heild that the concerned work- man is not entitled for any relief pursuance to the reference made to this Tribunal by this Central Government.

4. Reference is answered accordingly.

Dated 20-2-2001.

R, P. PANDEY, Presiding Officer

New Delhi, Ihe 21st March, 2001

S.O. 783.—In pursuance of Section 17 of the In-

"Whether the action of officers of the Bank of Baroda through its Regional Manager, Swaimadhopur in terminating the services of Sh. Lalchand JJDdal S|o Hanuman. Prasad from 21-11-93, and not re-einploy- inp him in 1997, is legal and justified? If not, what relief the said workman is entitl- ed to and from what date ?" dustrial Disputes Act, 1947 (H of 1947), the Cen- tral Government hereby publishes the award of the Industrial Tribunal Kota as shown in the annexure in the Industrial Dispute between the employers in rela- tion to the management of Bank of Baroda, and their workman, which was received by the Central Govern- ment on 17-3-2001.

TNo. L-12O12|133|98-IR(B-1I)]

C. GANGADHARAN, Under Secy.

1718 THE GAZETTE OF INDIA : APRTL 14, 2001/CHArTRA 24, 1923 [PART II-Sfic. 3(]lfl

New Delhi, the 2U1 March, 2001

S.O. 784. —In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (14 of 1947), the Central Government herebj publishes the Award of the Central Government Industrial Tribunal]Labour Court, Calcutta as shown in the annexurc in the In- dustrial Dispute between the employers in relation to the management of Indian Overseas Bank and their workman, which was received by the Central Gov- ernment on 13-3-2001.

[No. L-12O11]47|93-1R(B-II)]

C. GANGADHARAN, Under Secy.

ANNEXURE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL AT KOLKATA

Reference No. 14 of 1994

PARTIES :

Employes in idafion to the management of

Tndian Overseas Bank.

AND

Theii Workman.

I l it

. A. Chakraborty

PRHSENT :

31- 32.

Mr. Justice Bharat Prasad Sharma.—Presiding

OfBcer.

34.

Kalighat New Alipure Kadamtala DH. Rd. Howrah APPEARANCE :

On behalf 01 Management.—Mr. S. M. Basu,

Bally Park. Sona Patto Advocate.

On behalf of Workmen.—Mr. K. H. Dasan,

Advocate.

Dharmatala Goal Park

S. N. Bera G. Kola A. Haider Arup Das T. K. Chandra T;,pan Saha B. Addak N. K. Haider Kanai Sarder

35. 36. 37. 38. 39. 40.

LD. Market STATF : West Bengal. INDUSTRY : Banking.

Gour Mondal

41.

Shyambazar AWARD

IT

DuniDum

42. 43. 44.

Anjan Sarkar Ajail Manna S. Jana

By Older No L-1201 1|47|93-IR(B-TI) dated 8th April, 1994 the Central Government in exercise of its powers under section 10(1 )(d) and (2A) of the Industrial Disputes Act, 1947 referred the following dispule to the Tribunal for adjudication :

"Whether the demand of All Bank Canteen Employees' Union, Calcutta for regularisa- tion of the HMvices of 44 workmenfas per list attached) employed in the canteens of different offices of Indian Overseas Bank at Calcutta and suburb is justified? If so, what relief are the workmen concerned en- titled to V

Name of Canteen Employees of Indian Overseas Bank, Calcutta .—

Zonal

Regional

•* ^"

Ind. Exc.

IV

1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

M

*l

n.

Stand Rd.

2. The genesis of (he case arising out of this indus- trial dispute is that the employer in this case happens to be one of the nationalised Banks having several branches in Calcutta and in its suburb. As a measure of welfare of the staffs of the Bank, canteens were set up by the Bank to meet the de- mand of the employees for supply of subsidised food. The Bank has 37 branches at Calcutta and suburb and there are 25 branches where canteen facilities arc available and the canteen employees are 44 in number. The cantcenboys were employed since Jung. The canteens were established as per the pro- visions contained in an Award known as Sa-itri Award. In the said Sastri Award it is provided Ihut providing the umentics like- canteen, club house, "rvtyment of taxes etc. shall be the responsibility of the employer Bank. It is stated on behalf of the union that several canteens are all set-up in the Bank's premises and used their furnitures, fixers, water, electricity, fuel and gas and utensils etc. as supplied by the Bank. In this context the union made a demand for legularisation of the canteenboys as subordinate staffs of the Indian Overseas Bank. The demand was made in the year 1990 and it was persistently persued, but the management did not agree to it. Therefore, the dispute was raised and the matter was taken up before the Labour Commis- sioner where* the conciliation proceeding was held, bm it ended in failure. Accordingly, on the report of tlic conciliation officer, the Government of India k::ng the competent authority, has made the rcfe- rcice iii question.

Wood St,

3. So far a.-, the management of the Bank is con-

I)

ft)

l)

Free School St.

ceo

12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23.

Baranagar

Bally Posta Salt Lake

Jm Ave. Chow.

24. 25. 26. 27. 28. 29 30.

Asoke Kumar Ghosh Mahesh Patra Monomohan Patra Tapan Pal Basu Haider Tapan Bhowniick Pandab Das Tapan Dutta Oopi Paloi Kamal Basu Gobindra Saha Amar Saha Amal Das Chandan Bag Lai Chand Sardar Puma Patra .logcsh Raul R. K. Raul B. K. Raul R. M. Bharuthi D. C. Dutta Manik Roy Uttam Sasmal B. Mondal L. Maity S, Basu A. Manna .1. N. Ghosh S. Roy Pintu Bag

cerned, it has been stated on its behalf that the union espousing the cause of the persons working in the canteens docj, not represent the employees of the Indian Overseas Bank and therefore the reference is incompetent and invalid. It is also further stated that the dispute in question cannot be treated as an industrial dispute in terms of Section 2(k) of the Industrial Disputes Act, 1947 as the persons work- ing in the canteens were never engaged by the mana- gement of the Bank. It is further stated that there is no statutory obligation to provide or run canteens for the employees and the Bank is not under any obligation under any statute or award or settlement to provide or run any canteen for its employees. Further, it is stated that the terms and conditions of service of its clerical nrtd subordinate Stalls are con- tained in two awards known as Sastri Award and JO32 GI/2001—12 1720 THE GAZETTE OF INDIA : APRIL 14, ZUOl/UttAilKA 24, 1V15 ITART il—SBC. 31UJJ Desji Award and in a bipartite settlement dated 19th QctaHr, 1966 and several other bipartite settlements, which are all applicable to the whole banking indus- try. It i<* stated that none of the awards or settle- ments contained any provision requiring the Bank to piovklc or run any canteen. In this background it is stated that the Bank does not run any canteen, nor employ any canteen worker. However, the Bank provides certain sum oi money per staff mem- ber as subsidy at branches where the total staff strength is above 25 as welfare measure. It is also further stated that disbursement of tubsidy per staff membei is also not on the basis of any settlement, but on account of welfare measure and without re- course to the management. Further, it is stated that arrangement of supply of beverages and refreshment arc not being made by the Bank and it is left to the staff members themselves to make their own arrange- ment suiting to their convenience and the manage- ment does not interfere in any manner Jh the ad- ministration of the canteens. It is denied that the management has atny control over the number of persons engaged for supplying the refreshment or it docs restrict the engagement of these persons by the suppliers. It is also stated that the Bant does not recognise employment of any person for this pur-i pose. So, it is stated that it is absolutely the discre- tion of the supplier to determine the number of per- sons as also their nature of job and therefore, it is stated that there is no relationship of employer and employee between the management of Indian Over- seas Bank and the suppliers of canteens and their workers. It has been stated that the persons working iri the canteens were never the employees of the Indian Overseas Bank and the Bank has no liability.

4. Both the parties adduced evidence, oral as well as documentary in support of fheir respective claims. So far as the oral evidence is concerned, one witness each has been examined by both the parties. WW-1 is one Asoke Ghosh, who claimed that he had joined canteen at 36, Sekhespear Sarani Branch of Indiata Overseas Bank in 1988 as Manager and he is still working there. However, sub- sequently, that branch has changed into Regional Office of the Bank. He further stated that there are about 30 branches of the Bank at Calcutta and Howrah and in 25 of the branches there is pro- vision of canteen. He further stated that in these 25 branches the total number of workers were 42. Originally it was 44, but according fo him 2 have left the job and the rest 42 have interest in the matter. It is further stated by his witness that the canteens in the branches were started as per Sastri Award and not according to any statute. The relevant pro- vision of the Sasifri Award has been marked Ext. W-l. This Ext. W-1 in paragraph 609 of the Award runs as follows :—

"609. The next important question relates to the hcopc of this option i.e., whether it should be only with reference to what is called the totality of all pre-existing lerms and Che totality of all the terms of our award. The workmen demand that dis-" tinctivc groups of benefits should be re- cognized and the choice should be given with reference to each of such groups. The banks oppose the splitting up of the totality of the terms of service. Several distinctive groups in relation to the mone- tary benefits, present and future and ser- vice conditions and other amenities do exist*. In our judgement such distinctive groups should be sorted out and a choice should be given with reference to the pre- existing terms and the terms of our award in relation to some at leasf of the groups but taking each of them as one unit. Even the banks counsel had to admit that in evaluating the benefits of pre-existing terms and the terms of our award there are certain service conditions which can- not be valued in terms of money. We have carefully considered the matter of grouping and we arc of the opinion that the grouping should be on 1he following lines :

(1) Pay, dearness allowance, special allow- ance, house rent allowance, and officiat- ing allowance.

(2) Provident Fund. (3) Gratuity and Pension. (4) Bonus.

(5) Leave Rules.

(6) Working hours and overtime.

(7) Conditions of service other than working hours and overtime, and

(8) Amenities e.g. canteen, club-house, pay- ment of taxes etc.

We are of the opinion that no option should be given in respect of the following groups :—

(1) Leave Rules.

(2) Working hours and overtime.

(3) Conditions of service other than working hours and overtime, and

(4-) Amenities, except as otherwise provided for in our award.

We may in particular make it clear that there will be no choice in respect of the follow- ing items viz, "other allowances", and "medical relief except as otherwise provid- ed for in our award. In fhese matters also the awarded terms will apply to all the workmen."

It has been further stated by this witness that the aforesaid canteens are run within the premises of the Bank in all The branches of the Bank where the canteen exists. The furniture is alscv provided by the Bank. Electricity, kerosine for coocking or use of electric energy is also provided by ihe Batnk. However, he stated that as Canteen Managpr his duty is from 9.30 A.M. to 5 P.M. and all the can- teen workers follow the same schedule of duty period. According to him hi gets Rs. 750 per month and the salaries of other employees in different branches varry from Rs. 300/- to Rs. 500/-. He has also stated that the union espousing the cause " il

note and adjust the leave in his account. He ha| also stated that i-*his ileave is granted orally and he i

5. On the other hand, MW-1, Shri Chaitanya Kumar Sarkar has been examined on behalf of the management. He stated that he happens to be the Deputy Chier Officer, Administration in the Re- gional Office of the Indian Overseas Bank and he knows the facts of this case. According to (him the cipteen employees are not under the administrative con!rol of the Bank and the management of Indian' Overseas Bank has nothing to do with the appoint- ment of the canteen employees and no such appoint- ment was ever made by the Bank. However, he h?s stated that the canteen facility is no part of the serv'cc condition of thz bank employees and the canteen boys are not entitled to reguiarisation as prayed by them. He has also stated that the Bank is not entitkd Co grant Jeavc and other facilities to lihe canteen boys and the cantsen committee pays wages, to these employees. He, however, admits th.it the members of "the clerical staff of the bank happens to be the members of the canteen committee and some subsidy is being paid by tihe bank to the canteen committee. In his cross-examination, he expressed his ignorance whether anyone from amongst the canteen boys was absorbed as regular employee of the Bank. He, however, has admitted that five appointment orders marked Ext, W-3 series were issued for appointment of temporary sweepers and they arc working as casual sweeprs. Hr has further stated that he has no concern with the canteen boysi named in the reference and he also does not know the names of those two persons who have left ser- vice. He also dors not know whether at present only 22 perons have got interest in the matter. In his cross-examination, he has further stated that his knowledge of the case is derived from the record only. He further stated that Indian Overseas Bank was nationalised in July, 1969 and that staff of the Bank enjoy canteen facilities and members of the staff formed the canteen committee. He has also admitted that the Bank provides subsidy to the canteen committee and the rate of subsidy at present is Rs. 25/- per member, which was previously Rs. 20/- per member. According to him canteen facilities was earlier provided to the branches having a staff strength of 25 or above and at present it is for 20 and- above. He he further amitted that can- fi'ens arc situated in the bank premises and electrici- ty, utensils, furnitures etc. are provided by the Bank. He, however, says that power or fuel for rooking is not provided by the bank and it is pro- vided 6y the canteen committee. He has denied a suggestion that the management of the bank has all perversive control over the canteens and that can- teen boys are employees of the bank.

6. So far as the management is concerned, it has been contended that neither the canteens are statu- tory creations, nor the canteens arc run directly by the management of the bank. It is also stated that the employees of the canteens arc never appointed by the management, nor the management has direct control and supervision over these workers. There- fore, it has been contended that the claim of the of the workers is affiliated to AH Bank Canfcen Em- ployees' Union. He has also stated that he hap- pens to be the President of the Indian Overseas B,\nk Staff Canteen Employees Union in Calcutta and thoiefore he is acquainted with the facts of the case. He also states that he happens to be executive committee member of the All Bank Canteen Em- ployees Union. Hjwevcr, in reply to the qucs- ton put by the Tribunal, the witness stated that every month he receives his splary from the canteen committee and not from the Bank. He also further admitted that tfbe canteen committee dctideo the pay of the Centeen Manager and it varies from branch to branch. He also further slated that he did not receive any letter of appointment when he was engaged as Manager, r.'th. he was oraly asked to join the work. Ho flintier stated ^nt in the canteen committee there happens to be five members who arc all employees of the bank and the secre- tary of the canteen committee is appointed. He further stated that he was informed 1 y a friend of his working in the bank that (Vie was a vacancy for the manager of the canteen in the bank and he was also asked to meet the secretary. He also further stated that the canteen committee is selected by the staff members who use the canteen. Fur- ther he has stated that the daily expenses of the canteen are made by him and the money is paid to him by the canteen committee, but he does not. know as to where from the committee gefs money. He also further stated that the bank pays money to the canteen committee calculating at the rate of Rs. 20/- per head and this amount is spent by the canteen committee for miming the canteen. According to him all iJhe persons interested and in- volved in this case have been working in the can- teens since the year 1970 and though they have been working since long, there has been no im- provement in their condition and none of the work- men has worked for less than 6 yenrs. He has also further stated that out of 44 persons named in_ the schedule rb the reference, 15 persons have b;en given temporary appointment as Sweapers. Out of these 15 persons, 5 have been given letters of appoint- ment and the resf 10 are working on oral order. He also gave out the names of the persons who were given appointment letters and he also #ave out the names of the persons who were wl ins? on verbal orders. Tn his crrw-examination, :Vn wit- ness has stated that whenever a person or two comes from outside to take his food in the canteen, he has to pay in cash. But so far as the employees of the Bank are concerned, their accounts arc main- tained and they p.y at the end of the month. He also further stated that the menu for each day i& decided by the secretary after consulting him and fbe price of each item, sold in the canteen is nlso decid- ed by the secretary. The price so decided by the secretary is in consultation with the members of the welfare committee. He has also si*atcl that there is no document to show as to for how many days he has to work and what kind of leave find what period of leave he is entitled to because there is no appointment letter issued to him. But. there is a definite rule made by the canteen secretary in this resard and according to him he is entitled to casual leave, sick leave and privilege leave etc. Floe this purpose he has to ask the secretary to take a 1031 01/2001—13 1722 THE GAZETTE OF INDIA : APRIL 14, 2 0 0 1 / C S A I T RA 24, 1923 [PART II—SEC. 3(ii)]

t*"

(c) Tho premises, furniture, fixture, fuel, elec- tricity, utensils, etc. havs been provided by the appellant.

(d) The wages of the canteen workers have to

be rerniDur^ed by the appellant.

(e) The supervision and control on the canteen is exercised Dy the appelJaut through its authorised oiheer, as can be seen irom the various claut.es of toe contract between the appellant and tire contractor.

(f) The contractor is nothing but an agent of a Manager ot the appellant, who works com- pletely under tho supervision, control and directions ot the appellant.

(g) The workmen have the piofection of conti- nuous employment in the establishment.

Considering these factors cumuliUivoly, in addition to the tact thai the canteen hi the establishment of the management is a statutory canteen. We are of the opinion that in the instant case, the lesponaent-work- raen aie m tact the workmen of the appellant-manage- ment. "The Contractor in the present caj>e was engag- ed only for the purpose of record." Accordingly, the regularisauon ot the canteen workers was upheld by their Lordships.

9. In mis connection it is contended on behalf of the management that since in the case above, the canteen was statutory canteen under the Factories Act and die service of the canteen employees were conti- nued for a pretty long time, their Lordships of the lion'bk Supreme Court allowed their rcgularisation. But, this is not the fact in the present reference. Here the canteens are managed by the canteen committees and neither they have been appointed by the Bank, nor their services are controlled and supervised by the Bank and therefore the canteen employees are not entitled to rcgularisation.

iu^.iuiiLLeut ol Uic management, ihc, said icciuit- nicn^ couiU ttiwj D" iu tuii.iavdiiuuji ui UJI; vuuous iuuunjiy oiut-is mviuuuia LU^ retiei Vduoii poucy. jruimcj. iiit icsjxiiiu^iii jj an uistiuincuiaiuy 01 mo sww .urn lus da ofiugduon iu conuiiu 10 tne ie- quutiiicins ox Aiii. !•+ ana J.G ul ait t-OiibLiiuaon. ±n;>i>tie 01 me same liic services ul tne woiXineu aie ucui^ legiuaiiseu Dy me Come not as a mauer ot ligUi. 01 me woilynen unsing under any siaime but wiin a view to eradicate unioir lauom piaLUCLj ana m equuy to undo sociaJ injustice and as a measiuu of labour wellaie. Ihciiefore, it is necessary t'hat rn tins pioceas suuaole guidelines or conditions be laid down at trie tune ot Courts issuing directions to regularise the seivices ot the woikjnen so concerned depending upon the tact oi each case. Tins UJUIL hiia consisten- tly loliowed this practice in the earlier cases of re- gularisation and we do noi find any ieasoii LO diller Ironi the same. For tlw afoiesaid reasons, this appeal also and ihe same is dismissed but with costs. ''.Further, their Lordships held' 1 hough the canteen in the appellant's establishment is being managed by engaging a contractor, il is also uo admitted fact that the canteen lias been in existence from inception of the establishment. It w also an admitted fact that all the employees who were initially employed and those inducted from time to time in the canteen have continued to work hi the said canteen uninterruptedly. The employer contends that this continuity of em- ployment of the employees, in spite of there being change of contractors, was due'to an ordci made by the industrial Court, Thane, on 10 November 1994, wlicrein the industrial Court held that these workmen arc entitled to continuity of service in the same can- teen irrespective of the changj in the contractor. Consequently a direction was issued to the manage- ment herein to incorporate clauses in the contract that may be entered into with any outside contiactor to ensure the continuity of employment of these work- men. The management, therefore, contends that the continuous employment of these workmen is not voluntary. A perusal ot the said order of the Indus- trail Court sho\*s that these workmen had contended bcfoic the said Court 'hat the management was in- dulging in an unfair labour practice and in fact they were employed by the Company. They specifically contended therein that they ar" entitled to con inue in ths employment of the Company irrespective of ths change in the con'racfor. The Industrial Court ac- ' cepted their contention as against the plea put forth by the management herein. The employer did not think it appropriate to ctnilcnqe this decision of the Industrial Coim which has become final. This clearly suggests that the management accep'cvl as a matter of fact the resDondtient-workmcn arc permanent emp- lovees of the manapement's canteen. This is a v rv sionifjr-flnT fatet to¹ ^ ow the Irnc mfurp of T^STI^'I- dents employment. That apart, a perusal of the affi- davits filed in this Court and the mntrnr' entered into between the m^nn^ement and the contactor clearly establishes :

fa) The canteen has been there since the incep-

tion of the nppellanfs fnctorv

10. Another case cited en behalf of the manage- ment is the ca"c of employers in relation to the mana- gement of Reserve Bank of India v. their workmen, AIR 1996 SC 1241. In this case their Lordships cf the HorTb'c Supreme Court held that the relation- ship of employer and employee did not exist between the Bank rind the workman and therefore the work- men weu not the employees of the Reserve Bank. Ft wrs hclci by their Lordships that when R.B.I. was not legally obliged to run canteens, nor has effective control to si pervisc the work done by canteen emp- loyees, they were not entitled to rcgularisation. L:arncd Advocate for the management has accord- ingly submitted that the following the decision in this case in :i i eceni judgement of the Hon'ble Apex Court the chira of the workman in the present reference can not be allowed because in this case also there is evidence to show that the canteens are not statutory, nor the employees have been employed by the Bank directly, lather they have been engaged by the can- teen committees and the services of these workmen are also not directly controlled and supervised by the B-ink. Therefore, they are not entitled to their claim,

11. On the other hand, some decisions have been cited on behalf of the workmen. Earlier a decision was cited which was a judgement of the Hon'ble 1724 THE GAZETTE OF INDIA ; APRIL 14, 2001/CHAITRA 24, 1923 [PART II—SEC. 3(U)]

workers were enlisted under a welfare fund tcheme of the Bank besides making them eligible for periodical medical check up by the doctors of the Bank and admitting them to the benefits of the Provident Fund Scheme. The cuinulafive effect of all such and other fact noticed and considered in detuil provided sufficient basis for record- ing its findings by Tribunal as well as the Division Bench of the High Court ultima- tely to sustain the claim of the workers, in this case.

Madras High Court in the case of Indian Overseas Staff Canteen Workers Union v. Indian Overseas Bank & Anr. In a similar situation where the employees of the canteen of the branches of the present Bank had claimed their regularisation and the Hon'ble High Couii had allowed their claim up- holding the Award of the Tribunal. It is therefore contended that in view of the fact that in the same Bank when the claim of other employees in a diffe- rent region had been allowed, there does noL appear to be any justification in refusing the claim of the present workman. However, when this decision was cited an objection was raised on behalf of the mana- gement that the said judgement of the Hon'ble High Court of Madras was challenged before the Hou'ble Supreme Court and the matter was not finally decid- ed and therefore it cainot be made basis for deciding the present reference. But, intcrcstiugly, fhe matter has been finally decided by their Lordships of the Honblc Supreme Court in the case of Indian Over- seas B.mk v. I.O.B. Staff Canteen Workers Union & Anr., JT 2000(4) SC 503. Their Lordships after discussing the various aspects of the case have ulti- mately accepted the contention of the workman and. held as follows :—

21. The learned Single Judge seems to have not only overlooked certain relevant material but by adopting a negative approach had belittled the relevance and importance of several vital and important factual aspects brought on record. If on the facts prov- ed, the findings recorded by the Tribunal are justified and could not be considered to be based upon no evidence, there is no justification for the, High Court in exercis- ing writ jurisdiction to interfere with the same. The promoters of the canteen be- ing permanent employees in the service of th- Bank, permitted to run the canteen, by merely being in control of the day-to-day affairs of the canteen, the Bank cannot absolve of its liabilities when it was really using the canteen management as its ins- trumentality and agent. The clock apart the 'voice definitely is that of Jacobs'. Con- sequently, we could neither find any error of law or other vitiating circumstances in the judgement of the Division Bench nor any infirmities in the process of reasoning or gross unreasonableness and absurdities in the conclusions arrived at to restore the Award so as to justify and warrant our in- Jerfmncc in the matter.

22. The claim of the appellants to consider the que^ion of awarding compensation than to allow them to be reinstated,does not also appeal to us. The canteen services have to be necessarily provided throughout for (he stpfl and the Bank can always utilise the services of the workers for the purpose and there is no justification to deny them of the bard earned benefits of their ser- vice."

12. It is significant" to note that while deciding the ca!-j of Indian Ovtvsea¹? Bank and their workman, the Hon'bfc High Court of Madras dealt with certain other caxs including tlie case of M.R.R. Khan v. Union of India, 1990 Supp. SCC 191 in which it was observed by their Lordships that the canteens could be classified into three categories :—

(1) Statutory canteens which are required to be provided compulsorily in view of Sec- tion 46 of the Factories Act, 1948;

"20. The factual findings recorded by the Tri- bunal and the Division Bench as also the materials relied upon therefor, have been already act out in detail, supra and it is unnecessary to refer to them in greater detail once over again. The canteen in question was being run from 1-1-73 and. even before that indisputably, the Bank itself had arranged for running of the same through a contractoi and similar arrange- ment to run through a contractor was once again made by the Bank on its closure on 26-4-90, though after a period of some break from 21-10-92. Besides this, the nature and extent of assistance, financial and otherwise in kind, provided which have been enunciated m detail, would go to establish inevitably that the Bank has un- mistakably and for reasons obvious always undertaken the obligation to provide the canteen services, though there may not be any statutory obligation and it will be too late to contend that the provision of can- teen had not become a part of the service conditions of the employees. The mate- rials placed on record also highlight the position that tin; Bank was always con- scious of the fad that the provision and availing of canteen services by the staff are not only essential but would help to contribute for the efficiency of service by employees of the Bank. That is, was res- tricted to the employees only, that the sub- sidy rate per employee was being also pro- vided, and the working hours and days of the canteen located in the very Bank build- ings were strictly those of the Bnak and the further fact that no part of the capital re- quired to run the same was contributed by anybody self, either the Promoters or the staff using the canteen are factors which strengthen Ihe claim o( the workers. It was also on evidence that the canteen

(2 I Nori statutory recognised canteens—such canteens are established with the prior ap- proval and recognition of the Railway Board a> per the procedure detailed In the Railway Establishment Manual and t725

Supreme Court held from the statute law and case law that the following principles emerged :—

(3) Non-statutory non-recognised canteens— these are canteens established without the prior approval or recognition of the Rail- way Board.

(1) Canteen maintained under the obligatory provisions of the Factories Act for the use of the employees became a part of the establishment and. the workers employed in such canteen are employees of the management.

(2) Even if there is a non-statutory obligation to provide a canteen, the position is the same as in the case of statutory canteens. However, if there is a mere obligation to provide facilities to run a canteen, the can- teen does not become part of the establish- ment.

It was held by their Lordships that so far as the employees of the third category of canteens are con- cerned, they were not entitled to claim the status of railway servant. It was further held by their Lord- ships of the Hon'ble Supreme Court in the case of All India Railway Institute Employees' Association v. Union of India, 199(H2) SCC 342 that "they are established as per of the work welfare measure for the railway staff and the kind of activities they con- duct depend, among other things, on tile fnnds avail- able to them, the activities having been tailored to the budgets. If the cost of activities goes beyond the means they have to be curtailed. On these facts this Court held that the staff-members employed by the Railway institutes]clubs are not the employees of the Railways." Their Lordships of the Hon'ble Madras High Court also considered some other cases and quoted the observation of their Lordships of the Hon'ble Supreme Court which is as follows :

(3) The obligation to provide canteen may be explicit or implicit. Whether the provi- sion of canteen services has become a part of the service conditions or not, is a ques- tion to be determined on the facts and circumstances in each case.

"We, therefore, hold that the assumption made by the Tribunal that the instant case clear- ly falls within the ratio laid down by this Court in MMR Khan case, is totally un- justified and incorrect. On the facts of this case, in the absence of any statutory or other legal obligation and in the absence of any rigttf in the Bank to supervise and control the work or the details thereof in any manner regarding the canteens, it cannot be said that the relationship of master and servant existed between the Bank and the various persons employed in three types of canteens. . . ."

(4) Whether a particular facility or service lias become implicitly a part of service condi- tions of the employees or not, will depend, among others, on the nature of service/ facility, the contribution the service in question makes to the efficiency of the employees and the establishment, whether the service is available as a matter of right to all the employees in their capacity as employees and nothing more, the number of employees employed in the establish- ment and the number of employees who avail of the service, the length of time for which the service* has been conti- nuously available, the hours during which it is available, the nature and character of management, the interest taken by the employer in providing, maintaining, super- vising and controlling the service, the con- tribution made by me management in the form of infrastructure and funds for making the service available etc.

Considering the facts of the case their Lordships further observed that in the circumstances of the case, the canteens of the respondent Corporation became a part of the establishment of the Corpora- tion. The canteen committees, the cooperative socie- ties and the contractors engaged from time to time are in reality the agencies of the Corporation and are only a veil between the Corporation and the canteen workers. Therefore, the canteen workers, in fact, are the employees of the Corporation 13. In a case of Pariinal Chandra Raha & Ors. v. Life Insurance Corpn. of India & Ors., 1995 Supp. (2) SCC 611 their Lordships of the Hon'ble Sup- reme Court made certain significant observations. This case also related to the claim of the canteen employees regarding their absorption by the Cor- poration and parity of pay with regular employees of the Corporation. Their Lordships observed that infrastructuie for running the canteen viz. the pre- mises, furniture, electricity, wafer etc. were supplied by the Coipn. The canteen service was admittedly essential for the efficient working of the employees and officers of the Corporation. The functioning hours of the canteens were also fixed by the Cor- poration. The employees of the Corporation had all along being making complaints about the poor and inadequate service rendered by the canteen to them only to the Corporation and the Corporation had been taking steps to remedy the defect in the canteen service. Further, whenever there was a temporary break-down in the canteen, service, on account of agitation or strike of the canteen wor- kers, it was the Corporation which had been taking active interest in getting the dispute resolved and the canteen workers also looked upon the Corporation as their real employer and Joined the Corporation as a party to the industrial dispute raised by them. In the circumstances, their Lordships uf the Hon'ble

14. Taking this in mind and considering the facts and circumstances appearing hi the present reference. it becomes abandantly clear that the canteens in the present case have- also become a frut and parcel of the establishment, because under the Sastri Award the management was required to provide canteen facility to the employees and the management also decided to provide canteen to all the branches hav- ing 20 or more employees in the branch and also 1726 THE GAZETTE OF INDIA : APRIL 14, 2001/CHAITRA 24, J923 [PART IT—SEC. 3(ii)] provided fund for running canteen. The manage- ment also provided premises and infrastructure for running the canteen and though the canteens are not run under the management directly, it is being run by the canteen committees constituted by the staff of the Bank. Therefore, k* h very difficult to accept that the canteen employees are not the employees of flic Bank and its establishment. On this very ground the Tribunal at? Madras upheld tllic- claim of the employees against this \iery employer and the Award of the Tribunal was also upheld by the Hon'ble High Court at Madras and subse- quently by their Lordships of the Hon'ble Supreme Court. The facts of botlh the cases are practically similar and it does nor appear to be just and proper that there should be "discrimination between the two sets of similar employees in Iwo different region of the country under the same Bank having control over all the region and different office in the country. 15. However, it was contended on behalf of the management that since a different view was f.iken by their lordships of the Hon'ble Supreme Court in a similar case of State Bank of India (supra), which was an earlier decision of a Division Bench and since the decision of the Indian Overseas Bank v. Can- teen Employees (supra) is a later decision, Lhe prin- ciple is that the earlier decision should prevail. So far as the principle is concerned, there cannot be any dispute about it. But, at tht- same time it is to be kept in mind that the principle; of natural justice has to be borne in mind while dealing with such matters concerning the welfare of the work- men. Since a decision is available to support the claim of the workmen under the same Bank for a different region, there is no question of arriving at a different conclusion and holding a different view in this matter.

16. Considering the circumstances discussal above, it becomes clear that the claim of the workmen in (his case is justified and fit to be allowed. However, so far as the difficulty of the management is concern- ed, it may be that the mamgement for the present may not have vacancy to accommodate these em- ployees in their regular cadres and therefore it will be difficult to ask the management of the Bank to regularly appoint them in the regular cadre. But, the Bank itself can rectify the mistake by creating a separate cadre of canteen employees in Class-IV with the same scale of pay which is available to the Class-IV employees of the Bank. The Bank will start making payment to fhe workmen ^n the scale of pay applicable to the employees of Class-IV in the Bank and shall alsd make payment to them with effect from the date of reference i.e. 8th April, 1994. These reliefs shall be avaihble to al] tho^; canteen employees from amongst tlhe pennns enumerated in the reference who rre yet to be ndjusted in the Bank, because if has been stated tint some nf them have already been adjusted

17. Accordingly the reference is answered in favour of the workmen.

rteed, Kolkata,"

The 1st March, 2001.

B. P. SHARMA, Presiding Officer New Delhi, the 23rd .March, 2001 S.O. 785.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the CenliTl Government hereby publishes the Award <.>f lhe Cc.rrul Government Industrial Tribunal L. C. C'hsMinbi c-a s^own in the A'inexure in the Industrial D'spute between the employee in relation to the rn.inag.-rnent of M|s. I.B.P. Co. Ltd. and their work- men, which was received by the Central Government on 19-3-2001.

[No. L-3OO]2|8|97-IR(GJ)1 S. S. GUPTA, Under Secy.

ANN Li.NUKE

BEFORE THE CENTRAL GOVT. INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, CHENNAI Monday, lhe 5th March. 2001

PREShNT :

K. Karthikeypn.—Presiding Officer.

Industrial Di pute No. : 495|2001 (T.N. I.D. No. 65/98)

BETWEEN

Tile General Secretary, I.B.p. F.rap. Union, Chennai.

.. Claimant^ Party

AND

T{ie Manap:, (P & 1R) I.B.P. Co. Ltd, Chennai.

.. Management! |I1 Party APPEARANCE :

For the Claimnn'.—Sri Fredrick Castro, Advo- ,cate.

For the Management.—Mlu. Paul & Paul Anand David, Advocate,

REFERENCE :

Order No. L-30012l8l97-Coal I,dt. 18127-3-98 Qovf. of India Ministry of Labour, New Delhi.

AWARD

withdrawn, an award is passed holding that no dis- pute exists between the parties at present and the industrial dispute referred to in the Schedule of re- ference is dismissed as withdrawn. No Cost.

(Dictated to the Stenographer and transcribed and typed by him and corrected and pronounced by me in The opsn court on this day, the 5th March, 2001.)

K. KARTHIKEYAN, Presiding Officer This disrpute originally referred to Tamil Nadu Industrial Tribunal for adjudication by the Labour Court, Govl. of India, and was taken on file by that Tribunal as I.D. No. 65|98. Both the parties enter-, ed appearance through respective counsel and filed their Claim Statement and Counter Statement res- pectively. The xerox copy of the documents also filed on behalf of the I Party[Claimant there. When the matter was pending there in that Tribunal, the II Party Management filed their documents and as per orders of the Ministry this case was transferred from the file of Tamil Nadu Industrial Tribunal to the file of this Tribunal.

On receipt of the records of this case, this indus- tral dispute has been tuken on file in this Industrial Tribunal as I.D. No. 495|2001 and notices were ordered to be sent to the representative of I Party Union and the counsel appearing for the II Party Management by Registered Post with acknowledge- ment due informing iliat ihc matter has been trans- ferred to this Tribunal, with a direction to appear in this Tribunal witli their respective parties to proceed with enquiry.

New Delhi, the 23rd March, 2001 The Registered nonets sent to the counsel on either side were duly served for today's hearing and the postal acknowledgement;' were received.

S.O. 786.—In pursuance of Section 17 of the In- dustrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Central Government Industrial Tribunal, No.-l, Dhanbad as shown in the Annexure in the Industrial Dispute bet- ween the employers in relation to the management of M/s. IISCO and their workman, which was received by the Central Government on 20-3-2001.

[No. L-2O012|455!93-IR(C-D]

S. S. GUPTA, Under Secy.

ANNEXURE 2. When the matter ^a.s taken up today, the ag- grieved woikman mentioned in the Schedule of re- ference one Sri S. Jayagopi representing the I Party| Claimant appeared in Court and filed a memo. The copy of that memo was served on the counsel for the II PiirtylManagernent appeared in Court. In the memo filed by the Workman [Petitioner, it is stated that the Petitioner does not want to pursue the in- dustrial dispute und wants to withdraw the same. It is further requested in ttm memo to dismiss this industrial dispute as withdrawn.

BEFORE 1HE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO. I, DHANBAD

In the matter of a reference under section 10(1)- (d)(2A) of the Industrial Disputes Act, 1947.

Reference No. 20 of 1995

PARTIES :

3. On " penual of the records m this case, it is seen that this aggrieved workman has signed the Claim Statement along with the Geneial Secretary of the Claimant Union. After hearing the counsel for the Respondent present in the Court and also this Petitioner Workman, the memo submitted by the Petitioner workman has been recorded. As the Petitioner himself does not want to pursue the indus- trial dispute between himself and the Management and requests the Tribunal to dismiss this dispute as

Employers in relation to the management of Oiasnalla Colliery of M/s. IISCO Ltd.

1728 USE GAZETTE OF itffiA,: APRH, 14, 2001/CHAlT"A 24. J923 [Rtftt H-i"lc. 3(ti)J Their Workmen

and sub-section (2A) of Section 10 of the Industrial Disputes Act, 1947, referred the following dispute for adjudication to this Tribunal :

FRESENT :

Shri Sarju Prasad, Presiding Officer.

APPEARANCES:

"Whether the action of the management of Chas- naUa Colliery of M|S. IISCO Ltd. in showing discrimination to 18 Tyndals trom 1-7-91 relating to their promotion is justified? H not, to what relief the workmen is entitled?" For the Employers : Shri B. Joshi, Advocate,

For the Workmen : None.

STATE : Jharkhand. INDUSTRY : Coal. Dated, the 5th March, 2001

AWARD

2. In this case several adjournments were given to the concerned workmen, but since 19-1-2000 neither the sponsoring union nor the, concerned workmen are appearing before this Tribunal to take any further step. It, therefore, appears that neither the sponsoring union nor the concerned workmen are interested to contest the case.

3. In such circumstances I render a 'No Dispute'

Award in this reference case.

SARJU PRASAD, Presiding Officer By Order No. L-20012(455)|93-I.R. (Coal-I) dated the 7th February, 1995 tlie Central Government in the Ministry of Labour has, in exercise of the powers conferred by clause (d) of sub-section (I)

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