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ANNEXURE

BEFORE THE CENTRAL GOVT. LABOUR COURT, CHENNAI

PRESENT :

Thiru A. AhamfttluUah, B.Sc, 3,L.

Presiding Officer.

n$s Monday the 3tn Day or Marcn, zuui Industrial Dispuute No. 346 of 1999 BETWEEN :

Thiru P. Anbu Selvan, S[o Packrisamy, 26-F, Valliammal Salai, Nagai Road, Vedaranyam.

AND

The Asst. General Manager, Canara Bank Staff Section (W), Madras Circle Office, Post Bag No. 1078, 563]!, Anna Salai, Veynampet, Chenriai-18.

AWARD

This industrial dispute has been referred to this court for adjudication of the dispute between the workmen Thiru P. Anbu Selvan and the manage- ment of Canara Bank, Chennai, by the Govt. of India, Ministry of Labour, by G. O. No. L-12012| 54|99-IR(B-II), dated 10-6-99, on the following issue :

"Whether the order dated 16-12-97 of the management of Canara Bank in deleting the name of the workman, Sh. P. Anbuchelvan from the panel of daily wages is justified. If not, to what relief he is entitled."

2. The workman filed claim-statement but the management has not filed counter-statement.

3. When the dispute was taken up for hearing on 26-2-2001, the respondent was called absent and was set exparte. To-day the petitioner has been exa-mincd as W.W.I. Exs,, W.I to W.I2 have been marked. Records pursued, Claim proved. In. tl;a result, an award is passed directing the respondent to reinstate the petitioner rath backwages and con- tinuity of service with ctets of Rs. 500|-.

Dated at Chennai, this the 5th day of March, 2001.

A. AHAMADULLAH. Presiding Officer LIST OF WITNESSES EXAMINED :

For the Workman :

P.W.I—P. Anbuchelvan.

For the Management :

None

LIST OF EXHIBITS MARKLD :

For the Workman :

Ex.W. 1(16-10-85—Letter of appointment.

Ex.W.2129-3-96—Charge memo.

Ex.W.3| 5-7-96—Reply to charge memo.

Ex.W.4| 12-8-96—Charge sheet.

Ex.W.5|25-9-96—Reply to charge sheet.

Ex.W.619-10-96—Initiation of the enquiry proceedings.

Ex.W.7| 22-11-96—Notice of enquiry procee- dings.

Ex.W.8|5-ll-97—Letter enclosing findings ot' the enquiry officer dt 31-10-97- Ex.W.9|10-ll-97—Reply to enquiry findings.

Ex.W.10| 11-12-97—Notice regarding punish- ment.

Ex.W. 11116-12-97—Dismissal order.

Ex.W.12[23-l 1-98—Letter from respondent to Asst. Labour Commissioner. For the Management :

NIL.

New Delhi, the 26th March, 2001 S.O. 825.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Central Government Industrial Tribunal I Labour Court, Kanpur as shown in the annexure in the Industrial Dispute between the employers in relation to the management of Union Bank of India and their workman, which was received by the Central Governmnt on 26-3-2001.

[No. L-12Q11|64|96-IR(B-1I)] C. GANGADHARAN, Under Secy.

ANNEXURE

BEFORE SRI R. P. PANDEY, PRESIDING OFFICER, CENTRAL GOVERNMENT, INDUSTRIAL TRIBUUNAL-CUM-LABOUR COURT, SARVODAYA NAGAR, KANPUR Industrial Dispute No. 209 of 1997 In the matter of dispute between :—

The General Secretary, Union Bank Employees Union (UP) 628IM-33, Murari Nagar, Faizabad Road, Lucknow,

AND

The General Manager, Union Bank of India, Zonal Office Kapoorthala Complex, Aliganj, Luucknow.

AWARD

1. Central Government, Ministry of Labour, New Delhi, vide its notification No. L 12011 |64|96-IR(B-II) dated 30-9-97 has re- ferred the following dispute for adjudication to this Tribunal—

Whether the action of the management of Union Bank of India, Lucknow in de- nying opportunity to the employees of clerical cadre to apply for the post of Special Assistant is a violation of their promotion policy circulated vide No. 3919 dated 23-10-92 ? If so, what re- lief the affected clerical cadre employees of the said zone are entitled ?

2. In the statement of claim filed on behalf of workmen it has been alleged that there is post of Special Assistant in the Bank and the said post is created it> terms of definite promotion policy cir- culated by bank vide Staff Circular No. 3919 dated 23-10-92 and understanding dated 27-3-95. The posts of special assistants are filled through traiisfer of existing willing Special Assistants and the willing clerks after interview for the post as per bank's policy given in Chapter II of Staff Cir- cular No. 3919 dated 23-10-92. The management of the bank created as many as 51 vacancies of special assistants in new branches in U.P. Zone as per bank's polby vide .staff circular No. CIR|246 doled 11-8-95. As per paragraph 2.6, 2,7 and 2.8 of Chapter II cf Staff Circular No. 1319 dated 23-10-92 the management had to accede the di- &viscd transfer from existing special assistants and clerks in the zone. The bank while issuing aforesaid circular dated 11-8-95 invited application de- nying senior clerks to apply for the posts from serial No. 1 to 51 and allowed only existing special assistants to apply. The senior clerks were denied to apply for those vacancies aivd therefore the bank could not fill up as many as 25 vacancies of special assistant because no existing special assistant was willing for these remaining vacancies. The same were recirculated vide bank's circular No. DP[ZO] LKO[IR[246 dated 5-2-96. The clerk who were willing to become special assistant in the above vacancies and were working temporarily for the last several months identified vacancies of special assis- tants have been denied the opportunity of being special assistants. In the end it has been prayed that the management of the bamk be ordered to 17*5

agreement made between the Union of the em- ployees and the management in its meeting held on 31-12-93 and 15| 16-12-94. In item No. 9 of the aforesaid agreement it is provided as under:—

issue circular as of 11-8-95 to enable the clerks in the zone to submit the applications on the pres- cribed form for the 51 newly created vacancies as circulated vide circular No. DP|ZO|LKOjlRl246 dated 11-8-95 to give them full and fair opportunity to become special assistants in terms of promotion policy as per staff circular No,, 3919 dated 23-10-1992. Thus it has been prayed that the re- ference should be decided in favour of the work- men.

The matter regarding amendments to the Transfer Policy vis~a<-vis selection pro- cess for Special Assistants in the light of Industrial Dispute raised before ALC(C) Hyderabad, was discussed. It was felt that the procedure laid down in this regard was to be followed unifor- mally by all the Zonal Offices, For this purpose, it was decided to inform all Zonal Offices that whenever a new post of Special Assistant is created at the existing branches, the same should be filled in by inviting applications from the eligible Special Assistants. In case any Special Assistant applies in response to this circular, he may be given a prefe- rence as stated in the promotion policy Thereafter, the end vacancy shoud \K filled in by following the procedure laid down in staff Circular No. 3913 dated 23-10-92.

3. The management of Union Bank of India has filed written statement hi which it has been con- tended that the workmen who are alleged to have been aggrieved by the Union of the employees of the bank never approached the authority of the bank for giving them promotion against a post of special assistant which were circulated vide cir- cular dated 11-8-95. It has been alleged that 51 vacancies which were against 51 posts were to be filled from special assistants only who had prefe- rential right over the clerks and the end vacancies were circulated lateron to be filled from the eligible senior clerks | clerks of the bank. It has been alleged that circular was issued according to the promotion policy as agreed between the management of the bank and the Employees Union and the bank, did not violate the promotion policy at all. It has been alleged that the claim filed on behalf of the work- men is misconceived and the reference should be decided in favour of the management.

4. Rejoinder has been filed by the workman in response to the written statement filed on behalf of the bank in which the allegations made in the state- ment of claim have been reiterated.

From the contents of item No. 9 of the aforesaid subsequent agreement it is clear that it was agreed between the management of the Bank parties and All India UPBEA that all Zonal Offices of the bank should be informed that whenever a new post of Special Assistant is created at the existing branches, the same should be filled in by inviting applications from the eligible special assistants. In case any special assistant applies in response to this settlement he may be given preference as stated in the policy, thereafter, the end vacancy should be filled in by following procedure laid down in staff circular No. 3913 dated 23-10-92.

5. On behalf of the workman Sri Ram Shankar Verma W.W. 1 and Sri Ved Prakash Dwivedi W.W.2 have been examined. 7 documents Ex.W-1 to W-7 have been filed on behalf of the workman. The management examined Sri G.K., Mishra an officer of the bank as M.W. 1.

It appears that the bank issued circular dated 11-8-95 inviting applications from special assistants only against newly created posts of special assistants in accordance with the agreement made between the management of the bank and employees union as mentioned above. Thus it appears that the manage- ment of Union Bank of India has not violated the promotion policy of the bank dated 23-10-92 which stands modified by subsequent agreement marie between the management of the bank, and union of the employees.

6. I have heard the representatives for both the sides and have gone through the record of the case. It is, admitted case of the parries that promotion policy as contained in "taff circular No. 3913 dated 23-10-92 was circulated amongst the employees of the bank and was binding on the management of the bank and employee; of Union Bank, as it was based on¹ an agreement made between the management of the bank and All India Union Bank Employee^ Association. The contention of the management is that aforesaid settlement regarding promotion policy was modified by a subsequent agreement. The management hai? further filed photocopy of the agreement which is Ext. M-l on record. This agreement has been made between the same parties which had made the previous agree- ment regarding promotion policy which was circu- lated by staff circular No. 3913 dated 23-10-92. This promotion policy as circulated vide circular dated 23-10-92 stands modified ty the subsequent

7. The authorised representative for the work- man has admitted the genuineness of the agree- ment as contained in Ext. M-l filed by the manage- ment. His contention i,s that aforesaid agreement was not circulated amongst the employees of the bank, hence it was not binding on the employees of the bank. After going through the record of the case I do not find any force in this contention. When the Union of the bank employees at the national level entered into an a'greement with the manage- ment of the bank and a decision was taken that allrrwr Offi QAZ&TTk Ofc IND^A: APRIL 2L 20O1 /VATSA&HA 1 1<)T* rpART n^ton ; 4 i *" Zonal Offices should be informed to follow uniform procedure ol the promotion policy as agreed in the subsequent agreement it appearb thai; all Zonal Offices were infoiined accordingly. Such agreement was binding on all the employees'of the bank be- cause it was signed by their representatives and the representatives of the management. Tn National Engineering Industries Limited versus State of Rajasthan and others 2000 Lab 1C 260 at pjgc 272 Hin'ble Supreme Court has referred to its earlier decision given in Herbertsons Limited vs. Workmen (1977) Lab IC 162 and hap observed as under:—

This court referred in great detail to the provisions of Section 2(k), 2(p) and 18(1) of the Act and noticed the de- cision of this court in Herbertson... Limited vs. Workmen 1977 Lab IC 162 where this court had said that when a recognised Union negotiates with an employer the workers as individuals do not come into the picture. It is not neces- sary that each individual worker should know the implications oi the settlement since a recognised Union which is ex- pected to protect the legitimate interests of labours enters into a settlement in the best interests of labours. This would be the normal rule. There may be excep- tional cases where there may be allega- tions of maiafide fraud or even corrup- tion or other inducements. Put in the absence of such allegations a settlement in the course of collective baigaining is entitled to due weight and consideration.

From the aforesaid observations of the Hon'ble Supreme Court it is clear that the aforesaid agiee- ment|settlment made between the Union of th: employees of the bank and the management o^ the bank is binding en the employees of the bank also because that appears to have been, made in the best interest of the employees of the bank as well as management oi the bank so that Ihsre may be uv><- fcrmity in th; procedure of the promotion polk A through out the whole country In these cucui i stances the workmen on whoss behalf this d^putt has been raised cannot he allowed to say thai tl aforesaid agreement mnd^ between the union o' the err ployees of the bank nr.d the management of the bank which has modified the promotion policy dated 23-10-92 is not binding on them specially when there is no attention that the aoresaid agree- ment has been obtained by fraud or is invalid on any ground.

8. In view of afcovc conaideratioiyj I hold that the management has not violated the promotion policy which was modified subsequently by an agreement made b?*wcen the Union of the cm- ployess of the bank and the management of the bank. I, therefore, further hold that the workmen involved in the case are not entitled to get relief in pursuance of this reference.

9. The reference is, therefore, answered acco- dingly.

R. P. PANDEY, Presiding Officer New Delhi, the 30th March, 2001 S.O. 826.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 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 the management of Indian Bank aird their workman, which was received by the Central Government on 28-3-2001.

[No. L-12012|149|99-lR(B-II)] C. GANGADHARAN, Under Secy.

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, CHENNAI

Friday, the 16th March, 2001 PRESENT :

K. KARTHDCEYAN, Presiding Officer Industrial Dispute No. 255|2001 (I.D. No. 267|99 in Tarnij Nadu Industrial Tribunal)

BETWEEN

The General Secretary, Indian Bank Employees Association,

Choolaimedu, Chennai . .. Claimant|I Party

AND

The General Manager, Indian Bank, Chennai. . .. Management]II Party 1787 APPEARANCE :

For the Claimant : Sn R" Rengaramsnujam, Advocate

For the Management : M|s. ^lyar & Dolja, Advocates

Reference : Cider No. L-12012|149|99-IR(B-II)

dt. 6-10-1999 Govt. of Tndia, Ministry of Labuor, New Delhi.

This dispute on coming up before me to>" final hearing on th's day the 16th March, 2001, upon perusing the reference and in the absence of Claimant)I Party and His counsel and in the ab- sence of JI Party, on perusal of the available re- cords for corsidei'ation, iiis Tribunal pass the following :—

AWARD

This reference by the Centra] Government in exercise of the powers conferred by Clause (d) of Sub-section (1) and Sub-section 2(A) of Section JO of Industrial Disputes Act, 1947, in respect of dispute between Sri M. Srinivasan ^nd

The Schedule reads as follows :—

by Registered Post to th& counsel on either side were duly served. For tne fust hearing in this Tribunal on 9-2-2001, both the parries and the counsel ior the I Party were not preseni. The coun- sel lor the II Party alons wa- present. So, for filing the Cia^m Statement with documents of I Party] Claimant, time was extended upto 23-7-2001. On 23-2O00I also the counsel for the II Parry alone was present and boih the parties and the counsel ior the I Party were not present. Tlu,n a final notice io ihe 1 Pc1 having leeeived notice sent by this Tribunal by Registered Post direct to the 1 Party|C!aimant, is also received. Under such circumstances, it his to be decided whether to keep the matter pending expecting the T PartylClaiman*" to f\h Claim Statement m future for proceeding with the enquiry for the industrial dispute referred to by the Ministry for adjudication.

Versus

Party| Management and hence they have remained absent all these days ever since the beginning. From this, it can be presumed that, as on date, no industrial dispute is in existence for the I Partyl Claimant to prosecute on behalf of the Workman concerned, mentioned in the reference and hence, there is inaction on the part of the I Partyl Clai- mant. So, this Tribunal comes to a conclusion that no useful purpose will be several in keeping this reference pending further, with a hope that the I Party | Claimant will be prosecuting this case on behalf of the aggrieved Workman mentioned in the reference. Hence, this reference is closed and con- sequently, the industrial dispute is dismissed for want of prosecution. No Cost.

(Dictated to the Stenographer and transcribed and typed by him and corrected and pronounced by me in the open court on this day, the 16th March, 2001)

K. KARTHKEYAN, Presiding Officer New Delhi, the 26th March, 2001 S.. 827.—In pursuance of Section 17 of the Industrial Dispute Act. 1947 (14 of 1947), the Central Government hereby publishes the award of the Central Government Industrial Tribunal| Labour Court, New Delhi, as shown in the An- riexure in the Industrial Dispute between the em- ployers in relation to the management of All India Radio and their workman, which was received by the Central Government on 26-3-2001.

[No. L-42011|38|97-IR(DU)] KULDIP RAI VERMA, Desk Officer

ANNEXURE

BEFORE SHRI K. S. SRIVASTAV, PRESIDING OFFICER, CENTRAL GOVT. INDUSTRIAL TRIBUNAL, NEW DELHI

I.D. No. 136]98

In the matter of dispuute between : Shri Ram Charan Singh, Labour through General Secretary, Delhi Labour Union, DLU, Aggarwal Bhawan, G. T. Road, Tis Hazari. New Delhi-110053.

The Director, All India Radio (Akashwani & Doordarshan), C. E. (N.Z.) Jam Nagar House, New Delhi 110011.

APPEARANCES ;

Shri Surinder Bhardwaj for the workman.

Shri B. K. Aggarwal for the Management.

AWARD

The Central Government in the Ministry of Labour has sent this reference under Section 10(1) (d) and (A) of the Industrial Disputes Act, 1947 (hereinafter referred to as Act) vide Order No. L-42O11|38|97-IR(DU) dated 28-5-98.for the ad- judication of the Industrial Dispute on the following terms :—

"Whether the action of the management of All India Radio in terminating the ser- vices of Shri Ram Charan Singh, Labou- rer w.e.f. 16-8-96 ia just, fan- and legal ? If not, to what relief the con- cerned workman is entitled to ?" 2. In the statement of claim filed on behalf of the workman it is stated by the workman that he had joined his services under the Management w.e.f. 27-11-95 as Labourer and he was being treated as monthly paid | muster roll worker and was being paid his wages much less than those fixed and revised under the minimum wages Act. It is further stated by the workman that his last drawn wage was Rs. 1200|- PM while his couunter parts who were doing identicle work were treated as regular employees and were paid their salaries in the pay scale of Rs. 750-940 with allowance and other previleges like uniform, E.L., C.L. and other holidays.. He has further stated that the job against which he was working was of a regular and permanent nature. His service record had remained unblemished and uninterrupted. The workman has assiled legality of his termination from service on the followng grounds :—

1. There was no rule which could be framed by the Managemnt for governing! service conditions of the muster roll employees when the management had mpre than 100 persons in its employment and thus Model standing Orders framed in the Industrial Employment Standing Orders Act, 1946 were applicable and workman and acquired status of perma- nent employee after completing 90 days of continuous employment from the date of joining his services.

2. The termination is violative of Section 25-F. GH and N of the Act and rules 76, 77 and 78 of the Industrial Disputes Central Rules 1957, on the following reason :

(a) principles of last come first go not followed. Workman was meted out with hostile discrimination since junior to him were retained in the service-

(b) no seniority list was displayed. No notice was given to him. He was also not given any notice pay or retrench- ment compesation at the time of the termination of the services.

(c) Workman had completed 240 days of continuous employment and had ac- quired status of permanent employee under the Act. No act of misconduct by the workman was disclosed for terminating his services. He was not even served with any charge sheet nor any domestic enquiry was conducted.

(d) The termination is violativc of Section 30 of Delhi "Shops and Establishment Act, 1954.

3. The workman .has stated that he remained unemployed since 16-8-96, the date of termination of his service. The demand notice was sent to the management vide registered letter communicated on 31st August, 1996 but the reply which Was received by the workman on 10-9-96 was unsatis- factory. The conciliation proceeding initiated thereafter could not succeed. Hence this claim.

4. Management has failed to file wrirteri state- ment in the case. Vide order dated 28-8-98 case was directed to be proceeded exparte against the Management.

5. The Management's application firstly moved for the first time for setting aside the order dated 28-8-98 was rejected vide order dated 103-2000. The second application of the management for setting aside order dated 28-8-98 was also rejected vide order dated 13-10-2000.

6. The workman has filed his affidavit in evi- dence in support of his case in support of his allega- tions made in the statement of claim.

7. Arguments on behalf of the workman were beared.

8. The whole of the allegations of the workman made in the statement of claim assailng the lega- lity of the action of the management terminating his services w.e.f. 16-8-9ft goes uncontroverted because of the failure of the Management of file written statement in the case. It is onJy sufficient to accept, the allegations of the workman made in the statement of claim assailing the legality of his lf)M GI/2001— 9

1789 termination. However, workman has filed his affi- davit in evidence and has supported whole of the allegations made in the statement of claim in the affidavit. He could not be cross-examined on be- half of the management on his affidavit. Whole of his statement given in the affidavit goes uncontro- verted. The affidavit of the workman has properly been verified and duly sworn before the competent authority and hence in my view its authenticity can- not be doubted. In view of the fact the workman's contention about the assailing the legality of the termination from the service is accepted. The action of the management terminating the workman's services with effect from 16-8-96 is thus neither found legal nor just. The termination of the work- man from the services thus is set apide and it is found that the workman is entitled for his rein- statement in the seivice from the date of his termi- nation. As rgards the entitlement of the back wages by the workman I find myself in agreement with the workman's contention that burden for proving workman being gainfully employed was on the management which burden the mmrgement has completely failed to discharge. However, the work- man has categorically stated in the statement of claim that he is unemployed since 16-8-96. This assertion of the workman I find cannot be disbe- lieved.

9. In view of the fact I find that the workman is entitled for back wages throughout room the date of his termination from the service till the date of his reinstatement.

10. The term of reference is answered accor- dingly and award is also given in the like manner.

Dated 21-3-2001

K. S. SRIVASTAV, Presiding Officer New Delhi, the 28th March, 2001

S.O. 828.—In pursuance of Section 17 of the Industrial Disputes Act. 1947 (14 of 1947), the Central Government hereby publishes the awnrd of fhe Contra] Government In- dustrial TribunflllLabour Court, New Delhi, a1790 THE GAZETTE OF INDIA : APRIL 21, 2001/VAISAKHA 1, 1923 [PART II—SEC. 3(ii)] Village Industries Commission and their workman, which was received hy the Central Government on 28-3-2001.

fNo L-42011|5f)|90-lR(DU) I KULD1P RAI VERMA, Desk Officer

New Delhi, the 28th March, 2001

S.O. 829.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Industiial Tribunal|Labour Court No. I, Hyderabad, as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of Tndian Immunologicah and their workman, which was received by the Central Government on 23-3-2001.

iNo. L 42011 [18]98-TR(DU)1 KULD1P RAI VERMA, Desk Officer

ANNEXURB

BEFORE THE INDUSTRIAL TRIBUNAL-1 AT HYDERABAD

PRESENT :

Sri Syed Abdullah, B.Sc, B.L Tndustrtnl Trirumnl-I.

Dated : 27th February, 2001

INDUSTRT\L DISPUTE NO 49 OF 1959

BETWEEN

"Whether the action of the H O., Khadj Grumodyag and Village Industiies Commission, Bombay to transfer the clasw II employees from the Head Quarter to the establishment of Manager, Khadi Oramodyon Bhawan, New Delhi and not granting the promotion to eligible class IV employees of the establishment of Khadi Gramodyng Bhawan New Delhi is legal and justified 7 If not, what relief the workman Union arc entitled and from what date7"

The Geneial Secretary, Tndian Immunologicals Employers Union, Visakhapatnam, Gachibowli, IIydeiabnd-19.

AND

The General Manager, Tndian Immunologlcajs, Rftkshapuram, Gachibowli, Hyderabad-19. Rerrxmdent.

APPFARANCES:

M[s G Vidvn Si>D.ir and P Sudhe^r R.io, Advocates

for Petitioner.

M|N. P Nageswara Srre and C Nlrnnkn Ra

cates for Respondent.

mr AWARD

I he Government of India, Ministry of Labour, New Delhi by its Order No. L-42O11|18|98-1R(DU), dated J-8-1999 lcfcned tiic following Industrial Dispute under Section 10(1) (d) of Industrial Disputes Act, 1J>4J, to this Tribunal for adjudication :

,

Development Board with regard to holidays. Hence the allega- tion of the petitioner that the respondent extracted the woik Irom the employees on 23-1-1997 is not coirect and the same is hereby denied, in fact the respondent is a factory under Factories Act and its holidays aie governed by separate statute i.e. A.P. National and Festival Holidays Act and Negotiable Instruments Act is applicable only for offices. Hence prayed to dismiss the claim of the union.

"Whether the demand of the Indian Immunologicals Employees Union tor payment ot wages at rates twice the ordinary wages lot working on Z3-1-1997 which was declared as National Holiday by the Government of India but not by the State Govi. of A.P., by the management of Indian Immu- nologicals Limited, Hyderabad is juslilid?

5. The point for adjudication is whether the demand of the petitioner-union for jjayment of wages at rates twice the oidinary wages for working on 23-1-1997 which was dec- lared as National Holiday by the Government of India but not by the State Government of A.P. by the respondent- company in justified? If vo, to what relief the workmen con- cerned are entitled?

II to, to what ldief the workmen concerned arc en-

titled?

Bolh parlies appeared and filed theii respective pleadings.

1. I he General Secretary of Employees Union tiled claim statement which is briefly stated as undei. The petitioner- Union \% a icgiswred under the l'tnde Unions Act. The union raised an Industnal Dispute beiore the Conciliation Oillcei and it ended in failure which resulted in this refe- rence.

6. To substantiate the claim of the union, the General Secretary of the union examined himself as WW1 reiterating Ihe facts stated in the petition. He further deposed that on 23-1-1997 since all the employees of the company worked, they aic entitled for wages at the rate of double wages. A¹ Lepresentatkm was given for payment of double the wages since they worked on 23-1-1997. I he Conciliation Officer reported that the conciliation ended in failures, Ex. Wl is leprcscntation was given to the Management to declare 23-1-1997 as holiday and since woik was extracted from the worken UN that day, the respondent should have paid the double wages to the employees. Ex. W2 representation was given to the \,C L, for conciliation and to direct for pay- ment of double wages in lieu of holiday on 23-1-1997.

7. In the cross examination it was elicited from this witness that there arc ccrtillcd standing orders to the company, and whether he is aware that holidays are declared as per clause 17 of Standing Orders and that the State Government has not declared holiday on 23-1-1997. His answer is that he is not awnre of it, He further stated that he signed in the minutes 'of Ex. Ml certified studding ordcis of the company registered before the Regl. Labour Commissioner. As pir Ex, M2 circular the Government had rejected for referring this dispute to the Tribunal. He further stated that in the pievious yeais no holiday was given for ihe biith day of Net-tji Subhash Chandra Bosc.

3. The facts of the case arc thai the respondent Is a public Sector undertaking established by Government oi India and it has feen following the rules and regulations framed by Government of India. The Government ot Indian declared National Holiday on 23-1-1997 being birthday ol NeUiji Subhash Chandia Bose to its institutions, offices and banks etc, In turn the State Public Sector units have also declared holiday on that day. But the respondent has not declared on that day and they have extracted the work from the employees. So the action of the respondent in not declar ing holiday on that day is illegal, atbitrary and unjust. Tht unron gave several representations to the management to pay the twice wages as it extracted the work from the employees on that day. Its parent organisation i.e. National Daiiy Development Board declared holiday on 23-1-1997 but the respondent had not declared the holiday which is illegal and arbitrary. The management has declaicd the Holidays as per Negotiable Instruments Act, Even the Management should have declared the holiday on 23-1-1997 under Negotiable Instruments Act. But It was not done. So the employees who worked on that day aie entitld to double wages on that day. Hence the respondent may be directed to pay the double wages to the employees as it extracted the work from them.

8. The lespondents examined its Executive HRD as MW1 who reiterated the facts stated in the counter, lie deposed that for the year 1997 the Government of A P. declared list of public holidays under A.P, Natronal and Festival Holidays Act which is E\. M3. After receipt of Ex.. M3 list, it was discussed with the union and wilh the consent, the holidays are declared for the calendar year and fixed before commen- cemnt of the calendar yea). Ex. M4 is the list of holidays for the yeai 1997 and Ex. MS is the list of holidays of the year 1997, The signature of the General Secictary of the union was obtained in the list of holidays declared for the calendar vear. As pei Agreement Ex M6 between the management and the union, the workmen arc entitled for 10 National and Festival Holidays for each calendar year. To his knowledge the ECIL Management hud not declaicd holiday for Netaji Subhas Chandra Bow Birthday on 2V1-1997, The Government of A.P. has not declared holi- day on that day. Hence demand of the union may be re- iected.

9. In the cross examination he deposed that piior to re- gistration of the respondent-company it was a unit of Nation- al Daily Development Boaid. Since the company comes under the pin view of Factories Act, it is no' covered by Negotiable Tnstrumfnts Act. A suggestion was given to him that all the Public Sector companies have declared 23-1-97 as Holiday and since the workers worked on that day, they are entitled for douh|c the wages. But (his suggestion was denied bv him.

10. The d'snute between the union and the Management is with itfiaid to declaration of holiday on 23-1-1997 and since ili> rcsrvnnd?nt management had not declared the said days as holiday and not paid the wag^s to the workers the union claimed the relief to order payment of double wages.

13. For the aforesaid discussion the claim of the petitioner-

union is not justified and it is dismissed.

14. In the result, an award is passed holding that the respondent-management w justified in not declaring 23-1-97 as National Holiday in view of the holidays declared under A.P. National Holidays and Festivals act, 1974 and its VUIBS. The petitioner' is not entitled to any relief. In the circumstances of the case, there is no order as to costs.

Dictated to the Steno-typist, transcribed by him, corrected by me and given under my hand and the seal of this Tri- bunal on this the 27th day of February, 2001.

SYED ABDULLAH, Industrial Tribunal-1, HYD.

Appendix of Evidence

Witnes examined for Witness Examined for

Petitioner : Respondent:

WW1 E. Malta Reddy MW1 D. V. Reddy

Documents marked for the Petitioner:

Ex. Wl Representation of the union dated 25-1-1997 to

the Management.

Ex. W2 Representation of the Union dated 18-2-1997

to the ACL (Central), Hyderabad.

Documents marked for the Respondent:

Ex. Ml Certified Standing Orders of the Company.

living wage etc. to the workers, the State shall endeavour to secure all suitable legislation or make regulations or m any other wa^ to nil vvoi) r, i.e. agricultural or industrial living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure etc. Keeping in view of these directives of Constitution. The A.P. National Festival aad Holidays Act (Act No. 32 of 1974) R-W Rule 3 of A.P. Factories and Establishments (National Festival and other Holidays) Rules, 1974, have been framed and on the basis of said Legislation every year the Government of A.P, has been declaring the holidays in calendar year both national and other festival holidays for the enjoyment of leisure to the Industrial Workers and thereby the Government has issued Ex. M3 list of holidays, m which 23-1-1997 was not shown as National Holiday. As per Ex. Ml Certified Standing Orders which were signed by both the management and union wene registered before the appropriate authority, vide Clause J7, it is incumbent to follow A P. National Holidays and Festival Holidays subject to any statutory provisions, The management has discretion to refuse any leave to its workers on those days. In view of clear commitment between the union and the management, it has- a binding effect on both sides. Apart from it, memorandum of understanding covered by Ex. M6 entered into under Section 12(3) of t.D. Act between them confirming that National and Festival Holidays are to be followed. So the union is estopped from raising the demand or demanding double wnges from the Manage- ment on the ground (hat 23-1-1997 was not declared as holiday and that the work was extracted. Ex. Ml certified • standing orders applies to the employees governing the ser- vice conditions <>o also for the entitlement of holidays and leave etc. Apai t from It under Ex. M6 agreement was entered into under Section 12(3) of I.D. Act reiterating its commitment. So under nny stretch of any interpretation, the union cannot raise a disnuf for not declaring the holiday and as well is to pay double wnges

Ex. M2 Letter of Government of India dated 17-4-1998 refusing to refer the dispute for adjudication.

Ex. M3 Notification of Government of A.P. declaring

the holidays in 1997.

Ex. M4 Holiday list in 1996 declared by the respondent

Ex, M5 Holiday list in 1997 declared by the respondent.

F.x. M6 Memorandum of settlement entered into under

Section 12(3) of I,D. Act.

New Delhi, the 28th March, 2001

S.O. 830.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Central Government In- dustrial Tribunal|Labour Court, New Delhi, as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of Khadi and Village Industries Commissioner and their workman, which ws received by the Central Government on 28-3-2001.

fNo L-42O11|12[99-IR(DU)] 12. May be that for the earlier peiiod the management by exeicising its discretion, had declared 14-4-93 and 14-4-1995 us National Holidays as a mark of respect to the National Leader Dr. B. R. Ambedkar, it cannot be a precedent at all or gives the union right to demand tor declaring the said day as a National Holiday. MW1 in his evidence categorically stated that j,oon after leceipt of list of National Holidays from the Government of A.P. the consent has been taken from the employees union to chose which of the 10 National and Festival Holidays in a calendar year will be finalised before the commencement of calendar year itself. When such practice is prevailing and following the statute A.P. National and Festivals Act, 1974 and its rules, it is too much to make any demand. In a decision reported in IFLR 1993 (6) Summaiy cases Page 29 Kerala High Court in respect of Kerala Industrial and Establishment National and Festivals Act, 1958 declaring holidays on feasts and festivals which was held that in granting holidays selecting different days as festivals it cannot be considered as invalid in view of Article 43 of Indian Constitution. On the same analogy, the decision of the management holds good. So when the Government of A.P. is bound to release the list of National Holidays chosing certain days as National Holidays and Festivals days, it cannot be given a go-bye or a departure to it, unless both the union and the management agrees to have different dates as per its convenience, it cannot go for more than 10 National Holidays and Festivals in each calendar year. The respondent-establishment may be a Public Sector Company as per the Companies Act but it has its own limita- tion in view of F.x. Ml Certified Standing Orders as register- ed under Factories Act. Simply for the reason that the Public Sectors follow the Central Government declaring the holiday on 23-1-1997 to be an holitlav in honour of Notional Leader, it cannot be compelled the management to declare the particular dny as a holiday with wages. There is no justification for the union to ask the management for pay- ment of double wases on that dav. The union has not come forward with any r"bmal evidence to show rhflf on 23-1-1997 there was nroductlon in the factory, Dining th* trial, the union could hove asked the mampenr-nt to produce produc- tion reeister to find out truth or otherwise Tt did not tnke such sfeps to fals'fv the version, so thf version of MW1 cannot be ronsiderpd as iinrurc. The dispu'e esDoused bv the union "ceHnp rl-mnnd to my donbi* wnc"? to the employee for not declaring 27-1-19^7 ns hnlidtv is devoid of mrrits, and such dempntl is untenable.

KULDIP RAI VERMA, Desk Officer 179*

New Delhi, the 2Sth March, 2001

S.O, 831.—In pursuance of Section 17 of t he Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the aw^rd of the Industrial .Trlbuaal/Labour , Court, No. I, Hyderabad, ns shown in the Annexure in Hie Industrial Dispute between the employers in relation.to the management of General Manager, Indian Immunologkah and their workman, which was received by the Central Government on 28-3-2001:

[No. L-420U/12/98-IR(DU)l KULDIP RAI VERMA, Desk Officer

ANNEXURE

BEFORE THE INDUSTRIAL TR1BUNAL-I AT HYDERABAD

PRESENT:

"Whether the office order No. 1762 dated 20-5-96 and office order No. 1792 dated 4-4-97 issued by khadi and village Industries Commissioner|Khadi Gramo- dyog Bhawan, New Delhi in stopping next higher scale of pay to those staff members under regular establishment, trading operation schemetic and S&T, who have completed 15 years of continuous service, in the same post is legal and justified 7 If not, to what relief the workmen are entitled?"

Sri Syed Abdullah, B S c B l . .,

Industrial TribunaM.

Dated: 27th February, 2001

Industrial Dispute No. 48 uf 1999

BETWEEN

The General Secretary, Tndian Immunologicats Employees Union, Rakshapuram, Gachibowli, Hyderabad-19.

. , ., Peiitiincr

AND

The General Manager, Indian Immunnlogicnls, Rakshapuram; Gachibowli, Hyderabad-19.

. .. Respondent

APPEARANCES :

M/s. G. Vidva Sagar and P. Sudheer Rao, Advocates

for the Petitioner.

M/s. P, Nagtswara Sr

for the Rc'iTiipnt.

AWARD

The Government of In'da Ministry of Lbboui, New Delhi by its Order No. L-42011yl2/ -BlRtLL, Jt. 3-ri-99 iefer'cd the following Industrial Dispute under Section 10(1 Kd) and 2A of Industrial Disputes Act, 1947 to this Tnbun.il f.;i adjudication :

"Whether the demand of the Indian Immunologicals Employees Union ior payment of wages at latcs twice the ordinary wiiRes foi working on 14-4-97 which was declared as National Holiday by the Government of India but not by the State Govern- ment of Andhia Pradesh, by the Management ol Indian ImmunoJogicals Limited, Hyderabad r, justified ? If so, to what relief the workmen con- cerned are entitled ?"

Both parties appeared and filed their respective pleadings.

2. The General Secretary of Employees Union filed claim statement. In brief the facts are as under : The petitionei— union ia n registered Trade Union. The respondent is a Public Sector Undertaking established by the Government of India. It is bound to follow ruins and regulations flamed by the Government of India. On 11-4-97 happens to be biith day of Bharat Ratna Dr. B.R. Ambedkar, the Government ol India had declared it as a National Holiday to its Institutions, Public Sector Organisation, Banks, Insurance Corporation, State Government Offices etc. While so, the lespondent— Management hdfcl not declared Holiday on 14-4-97 to its workers on 14-4-97, however, extracted woik from them. The action of the management is illfflal and arbitrary. Durin", J995 and 1996 the management had declared it as hoi 1; Act and the respondent—company should follow the saiil Act rieht finm the date of certification of the snid Standing Ordcii.

Labour for further necessary action. But the Ministry at the first instance refused the matter to refer foi adjudication. It did not consider the said dispute that "it is found that State Government did not decline 14-4-97 as holiday in terms of A.P. National and Festival Holidays Act and tno claim oi the union lor double the wages for attending duty is not tenable under the standing oiders." So (he union had filed a Writ Petition No. 23923'98 seckim; dnection to the Gov- ernment for referring the uMtter fo" adjudication, which was allowed by the Hon'blc High Court and accoidingly the Government of India refined th; matter to this Tribunal for adjudication. As a matter of fael the workman aie not entitled for any holiday on 14-4-97 and the question of payment of double wages for tha work done on tha* day does not arise. There are no merits in the present dispute. The Rules and Regulations framed bv the Government of India with rcgatd to the service conditions are not applicable to the Respondent—Company Tn terms cf Clause 17 of Certified Standing Orders the National and Festival Holidav s are regulated in accordance with A.P. National and Festiva' Holidays Act. So the claim of the petitioner—union is totally baseless.

5. The point for adjudication is whether the demand of the petitioner—union for payment of wages at rates twice the ordinary wages for working on 14-4-97 which was declared at National Holiday by the Government of India but not by the State Government of A.P. by the Management of Indian Immunologicals Limited, Hyderabad is justified ? If so, to what relief the workmen concerned are entitled 7 6. In proof of the claim, the General Secrctaiy of the Employees Union, examined himself as WWl who in his evidence ha^ reiterated the averments made in the claim statement stating that since 14-4-97 was not declared as holiday by the respondent—company eventhough it was declared as holiday by 'he Government of India nnd the Management having extracted the work from the employees, the employees are to lie niid with double wa>;es. The estab- lishment it a Public Sector, us such the rules and reputations of Government of India u\f applicable to it. In 1996 on tho same day holiday was declared by the lespondcyit. tT. Wl is tbe circular issued by the respondent earlier dcrlniiu" 14th April, 1993 as a holidav and so also Fxs. W2 is the circular issued by the respondent for the holiday in the year 1995. Ex. W3 is the representation piven by the union to the ALC for conciliation, Ev. W4 is the minuses stntinn reasons about failure of iMUcilulion. F\r. \V5 is the repre- sentation given to the Management hy the union foi permission to attend this cisa

1795

1±\. Ml certified standmy ordcLB uppiies lo the employees governing the service conditions so also for the entitlement of holidays and leave etc. Apart from it under Ex. M6 .isrewnent was entered into unda Section 12(3) of I.D. Act reiterating its commitment. So under any htietch of any interpretation, the union c;,nnoi raise a dispute for not declaring the holiday and as well to pay double wages or disallowed wages.

the calendar year 1!W befoie hand that is bcfoic i_omnii.ncc- mtait of the calendar year. Ex. Mi is the list oi holidays for the year 1996. Ex. M5 is the lisi of holiday ioi the year I¹)')?, which hears the signature of General Secretary. As per tlie agreement entered into between the manugemtnt mid union covered by Ex. M6 vide clause. 12.6 it was agreed that with effect from 198W tin; workman is entitled for 10 National and Festival Holidiys for each c.iJcndar year and the said agreement WHS to be followed with the consent of the union. Though the union had demanded to declare 14-4-97 as holiday but the management did not agree for it. conse- quently the workmen have snuck tl-c work from 9.45 A.M. to 4.00 P.M. and so their wall's were disallowed on the piinciple of 'no work no pay'. In this regard a Circular hx. M7 was issued to he union inCorminK that since thp workers have not turned out the work on 14-4-97 their wages on that day were disallowed. To his knowledge other Public Sector such as ECTL the holiday was not declared 14th April every year. In fact the Government of A.P. had not declared Ambodkar Jayanthi 14th April as n Natioml Festival Holiday. So the demand raised by the un'on is ti"t tenable and they cannot claim for was"es for not turning out the woik,

Ex. W3 Representation or the union filed before ihc

AND

ACL on 9-5-97.

Es. W4 Minutes for ccmci'iuiiou iihnui failure of

The Telecom Dist. Manager, Telecommunications,

conciliation.

Eluiu-534050,

West Godavari Dist.

.. Management.

Ex. W5 Letter of union submitted to the Management on 7-8>-2000 for permission to attend this, lubi'iial in the case.

Documents market! for the Respondent:

Ex. Ml Certified StandlnR Ordeis of the Company.

This dispute coming on for final hearing before me in Ihc presence bf Sri A. V. Sesbasiva Rao and Sri A. S. Rama Sarmn, Advocates for workman and of Sri M. Rama^otl, Advocate for management, upon hoaring the arguments of both sides and on perusing the entire material on record, the court passed the following:

Ex. M2 Letter dt. 16-4-98 of Gcvcrmnenl of Jndiu

refusing the dispute tor reference to adjudication.

AWARD

(1) This is a reference made by the Government of India under Sec 10(1) (d) and Sec. 10(2)-A of the Industrial Dis- putes Act for adjudiction of the following dispute.

Ex. M3 List of Holidays for the year 1997 declined by Government of A, P. for the factories and establish- ments.

Ex. M4 List of holidays for the yejr 1996 ot

the respondent.

Ex. MS List of Holidays for the year 1997 of

the respondent.

"Whether the action of the management of Telecom i>istuct Manager, Bhiru in terminating the services of Sri Y. Madhusudhana Ruo, Telecom Office Asst. w.c.i. 2-3-1992 j ;, justified? if not, to what relief the workman concerned is entitled for?" Ex. M6 Memorandum of Settlement entered into under

Section 12(3) of I D. Act.

Ex. M7 Notice dt. 29-4^1997 issued by the Menagemunt about deductions -affected from the salaries of the workmen for the month of April. 1997 in principle of no work no pay on 14-4-1997.

New Delhi, the 28(h March, 2001

S.O. 832,—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947>, the Central Government hereby publishes tb award of the Industrial Tribunal|Labour Court, Visakhapatnam, as shown in ehe Annexure in the Industrial Dispute between the employerH in relation to the management of LTeptt. of Telecom and their workman, which was received by the Central Government on 28-3-2001.

fNo. L-40012t205|95-HUDU)]

KULDIP RAI VERM A, Desk Officer

ANNEXURE

IN THE COURT OF INDUSTRIAL TRIBUNAL-CUM- LABOUR COURT, VTSAKHAPATNAM

PRESENT:

Sri K. Vcprapu Naidu, B.Sc, B.L., Chaiimon and Pre-

siding Officer.

Dated : 2nd day of February, 2001

T.T.r.D. iC) 15(97

Ref No. L-400l2[205|95-TR (DU) dt. 10-7-1997

BETWEEN

(2) The case of the claimant is, that he was selected as Telecom Office Assistant (hereinafter called as TOA) and joined m service on 6-7-1981 and. thereafter his services were regularised. He was also qualified in the continuation, exa- mination of TOA held on 27-6-1982 and after three years he was asked to produce the originals of SSC and higher educational qualification within 3 days by the letter dated 30-11-1983. The Original Certificates that were submitted at the time of his selection weie not returned to him. Then the respondent directed two applicant to furnish the particulars of the educational qualification and the school • college in which he was educated and a reply dated 12-1-1984 was given. Four mouths thereafter tht management directed the peti- tioner to submit the originals duplicates of the certificates by obtaining the case from the concerned authorities, otherwise a disciplinary action will be taken for which a reply dated 21-5-1984 was given asking for a certificate of misplacement of the original certificates submitted by him. Thereafter, the management asked the workman through its letter dated 30-6-1984 to obtain the duplicates from the concerned autho- rities and to submit them on or before 20-7-1984 and the said letter is silent as to the request made by him for the issuance of a misplacement certificate to obtain the duplica- tes. Again, the management asked through its letter dated 15-12-1984 to produce evidence in support of his statement that the originals were already submitted at the time of selection for which a, reply dated 11-1-1985 was given stating that he submitted the originals to Sri N. Pardhasaradhi, the then Divisional Engineer, Telecom. While so, the first res- pondent issued a charge sheet dated 12-2-1986 alleging that he furnished wrong information regarding the percentage of marks in SSC In connection with the initial recruitment as TOA for I-HY/91 and thus, obtained employment wrong- fully, there by contravened Rule 3(i)(iit) of CCS (Conduct) Rules, 1964 and extract of 'Z' register and the report from Head Master were enclosed and 3 witnesses were examined in the course of enquiry and in the inquiry fhe charges were held to be proved. So a dismissal order dated 29-7-87 was served on the workman. ATI, Appeal was preferred and the case WfK rejected and a representation was also preferred but no orders were communicated and finally be filed OA. No. 51190 before the Central Administrative Tribunal. Hyderabad qnestioninp his dismissal from service and the Central Ad- ministrative Tribunal allowed the O.A. by questioning the dis- missal order by judgment dnted 1-1-92 on the ground that the dismissal order wag passed behind his back without affor- ing reasonable opportunity to the petitioner to make represen- tation on the inquiry report and the enquiry report was not supplied to him. Later the enquiry report was supplied to the petitioner and the petitioner submitted his representation for reinstatemnt agafn, the first respondent passd an order dated 2-"-J99? dismissing the prtitioner workman from service wef. 2-5-J992. Aram an appeal is preferred and it was re- iected, then -'in application was filed before the Asst. • Com- missioner of Labour Visakhapatnam but in vein (fad d> failure report wa<; submlftc-d to fhe Central Government and the Central Government, in turn, referred the matter for ad- iudictition.

V, Madhwudhana Rao, D No. 73-312-2. Thotavnri Street, TT Cross Road, Vijiytiwnda-6

,. Workmen.

(3) Tile case of the workman is that the dismibsal (ro^n service is not sustainable on the following grounds.

(i) There was delay of about 5 years in initiating Uie disciplinary proceedings.

UO It is in gross violation of the provision? of Rule 14 of CCS (CCA) Rules, 1965 read with Article 311(2) of the Constitution of India.

(iii) The charge framed against two workmen is baseless as there was no original certificates with the mana- gement nor the management did not wait nil the receipt of the duplicates from the applicant.

(iv) There was no proper enquiry and the management has alrendy pro-judged the case even before issuing the charge memo.

(v) The management allowed him to continue as TOA for about 6 year* and cannot question the appoint- ment of the workman.

(vi) The workman was qualified in two confirmation examination fo rthe post of TOA hold o.i 27-6-82. Therefore, he cannot be dismissed frvwn service since the enquiry officer exhibited biased attitude towards the applicant. In the enquiry, no opportunity for cross examining the PWs 1 to 3 was given and the enquiry officer rejected two witnesses out of the four defence witnesses. There is no evident in support of the charges framed against the petitioner and hence the charges cannot be held to be proved. When once the Central Administrative Tribmml in, O.A. No. 51/90 is set aside the dismissal order, the management ought not to have issued again the dismissal order.

4) This Tribunal passed an award in favour of the kman in its Award dated 8-7-1999 to the respondent lagement remained expartc by placing reliance on a sion reportedo in 1999(3) ALT 165 between K. Nagarani Vi Managing Director, A.P, Vikalangule Corporation, Hycte- rapad and Another.

(5) As against which the management preferred and filed writ in W.P. 803|99 and the said Writ was dismissed with a direction to the management to file an application to set aside the exparte award. Accordingly, r.A. 34|2000 was filed and allowed on 12-4-2000 and then the management filed the rebly statement.

(6) In the reply statement, the management alleging that thfs tribunal has no jurisdiction because the workman lias al- ready elected in the jurisdiction of ths Central Administrative Tribunal and invited a decision by filing O.A. No. 51|9O and he cannot be permitted to choose thii Tribunal by leav- ing the forum which he alrendy choosen for the redrcssal of hifc grievances. The Telecom department '"•• not an industry. A reasonable opportunity to the cl-'aimant was given after the matter was remanded by the Central Administrative Tribunal far a fresh inquiry. It is further stated that thr original Pncli- cati'-on with the enclosures had been missing from th official records and ns r.nrh harolns; upon the " me allegation that they were not produced bffure an enquiry officer is neither meaningful nor tenable. The claimant in his attestation fotrm stated in his own handwriting that he studied ii Andre Jctocye Kalcoale, Machillipatne and marks secured by him and which were proved to be false during enquiry proceedings and it also further confirms the factum of fur- nishing false particulars by the claimant The 'Z' register It is a public document and it is maintained by the office arid it was proposed on the basis of the attestation form and the idtntity of the claimant is vouched bv the photograph duly attested by a Gazetted Officer and during the enquiry, the attestation foitn and the '7' register were produced. There- fore, the non-production of the original application with ity enclosures could not in any prejudice the case of the claimant before the enquiry officer. The claimant cross- examined the prosecution witnesses, the claimant examined th^ departmental witnesses on his behalf. Therefore, he was 1064 GI/2001—10

1797 afforded the reasonable opportunity in the enquiry. The charge alleged against the claimant is that he secured the appointment by furnishing false information, regarding his school in which he studied and the percentage of marks obtained by him is SSC and not regarding hi* honesty or efficiency in performance of his duty in office and his graduation and his diploma is not relevant therefore the eligibility for recruitment of the claimant as TOA is determined by the percentage of marks obtained in SSC and not his graduation or diploma. The claimant wo9 afforded reqsonatye opportunity to establish his case but failed^ to establish the same. Therefore, the dismissal order •ot the workman is to he confirmed.

i .

(7) Both counsels submitted that the matter may be posted for enquiry and the point as to the validity of domes- tic enquiry report may be decide at the time of final dfs- posal of the I.D.

(8) Before this Tribunal, the workman is examined as WW1 and got marked Exs. Wl to W17 and on behalf of the management, the witnesses are examined as MWs 1 and 2 and Exs. Ml to M9 are marked.

(9) Heard both sides.

(10) The point that arises for consideration in this refe- rence is :

"Whether the termination of the petitioner from ser- vice under the proceedings dated 7-5-1992 of the Divisional Matiagcr, Telecom, Eluru is valid, legal and Justified?"

(11) The learned counsel appearing for the workman contends that the domestic enquiry held in this case even after the matter was decided by the Central Administrative Tribunal in its order dated 13-3-1992 in OA. No. 51(90, i" defective and that the original application and the enclosures submitted bv the uetitioner were not produced before the enquiry officer and that the enquiry was conducted.

(12) On the other hnnd, the learned counsel appearina for the management submits that Ex. W ll the letter dated 26-4-1984 discloses that the circumstances informed bv the Divisional Manager, Telecom that the original certificate submitted by him for selection should be made available to the undersigned as and when called for. In the said letter it is further stated that if the certificates are not available, duplicate copies of the certificates mtwt be obtained from the authorities concerned and produce and failure in this regard will make him liable for disciplnary action, as deemed fit, in CCS (CCA) Rules, 1965 for which a reply was given, by the workman that the original certificates were submitted to Sri N. Parthasaradhi, the then Divisional Manager, Tele- com, Eluru through Sri K, Venketa Ratnam the then head clerk of the estblishment section at the time of recruitment. Hence they may please bs addressed to them in this matter and they mrly be asked to obtain duplicate copies of the certi- ficates if they report that they have misplaced the said certi- ficates. Then the management through its letter dated 30-6-84 gave a reply Ex. W13 denying the said fact as they arc not available in their office and directed the workman to obtain the duplicate copies of the certificates from the concerned administrative authorities and submit them to their office on or before 20-7-1984, falling which further action, as deemed fit, will be processed without any further notice under CCS(CCA) Rules, 1965, for Which a reply was given by the delinquent dated 20-7-84. Ex. W14 stating that educational authorities have been addressed for supply of duplicate copies of the certificates and it has been informed by the educational authorities that he will no be supplied duplicate copies unless misplacement certificate is issued by the department is produced. That is why, in his previous letters he requested the department to issue such certificate but the department have not been pleaded to grant such certificate so far and he will submit the duplicates if and when received and he a^ked a minimum of 20 days, time for that purpose. The last letter Ex. W16 is dnted/ 11-1-85 addressed by the workman to the Divisional Engineer, Teleocm Elura requesting to refer his letter dated 20-7-84 and kindly arrange to issue the certificate requeued therein for taking further action,1798 THE GAZETTE OF INDIA ; APRIL 21, '2001/VAISAKHA 1, 1923 LPART 11—S£C 3(.Ujj verified the' document) personally and physically i.e., appli- cation foi-3] nrjd marks Hit, dsgrue certincaic and he checked the entries in (he Z register along with the documents. The Z register was prepared on 24-2-M1 and at page No. 18 and 19 in Ex. M5" the particulars with regard to the petitioner are mentioned and he made verification of the application and other particulars of the workman on 27-2-81 und a chec£ slip is attached to thp application romi which will be in the custody of the recruitment clerk.

(13) FrWft tW "6ove said Ex. W16 correspondence for tho production of the original* or in tht> alternative for pro- duction VT duplicate certificates from tne concerned educational initmmons Went on between the workman and the manage men!, the'net retult fa that the workman neither produced tho duplicate certificates nor the management produced the original application form "nd its enclosures as demanded by the,workman. Ultimately, the workman faced the enquiry and he wai' dismissed from service'.

(MjjTho learned counsel appearing for the workman contends that had he produced the original application along with the enclosures, it would hava clinched the issue and that the management without original application and its enclosures neither enquiry officer nof tho respondent manage- ment it justified to hold that tho charges levelled against the wortmtfl claimant.

(16) Basing on the evidence of the very same witness by name Ch. Sanyasl Rao, and also P, Venkata Rutnam^ who is examined as PW2 In the enquiry, the enquiry officer in his report Ex, M8 came Io the conclusion that the charges levelled against the workman are established and before the same enquiry officer, the workman alao submitted his defence statement 6-6-1987 which is marked as Ex. M6 which dislcoses that the missing of I he documents is the deliberate act and it requires to be investigated first and give its findings before initiating action again? t him. Sri K. Venkatarutnam is new facing a rule 14 inquiry in this particular aspect and he alleged thai he had given full charge to his success or Sri Ch. Sanyasi Rao which implies thai the missinf? occured in the letter tenure as SSSCE) and he submit that it wax in between the two end that bo wus deprived of the benefit of the material documents to prove his Innocence and as such, the production of the two officers us witnesses against him is quite unjustified. Therefore, he contends that the allegation of implication of marks as 79.40 per cent instead 53.4 per (cent in the 10th class made against the workman cannot bo valid. However, the learned counsel appearing for the work- man contends that there arc several infirmities in the domestic enquiry held second timo and that no inquiry wai held, at all but Ex. M5 defence statement in the second time inquiry does not descloses any such of tht; allegations acainst the inquiry officer and even thu judgment in O.A. 51/90 disclorei that the copy of the enquiry report was given only along with the punishment order to the workman and it is opposed to law and principles of natural justice as was held in the cme of Union of India and OtKers Vs. Mohd, Ram/an Khan ATR 1991 SC 476 and therefore, the punishment order was quashed "nd it is also observed that It will not proclude the respon- dents mann^ement from surviving a copy of the enquiry report to the applicant and jriven bm an onportflnity to maki his representation antf nroceedins to complete the discinlinary procredlnR* from tl'.flt Rtnef?. Therefore, thr atace at which the initial stage i.e. the first inmiiry was before ounishinir the workman, a coov of thf rnoutrv report 1i to be sunnlied and sskfd for show cmr*i- notice anrl tb^rcfore, here in this caw. there n no infirm itv nor nnv rlfn;-il of opportunity to the workmnn no ni to contend that thr Inonlry WRU he'd fn violation of the nrincinlen of natural init-'ru. Therefore, the Valid'"'v of

C17) The next question, that falls for consideration is whether the findings MtaMishert by thr, rnquiry officer pm with any basis or without any basis ? The only material produced by the manajtt'mi;nt to prove the alleged charge is the Z register which Is marked M EX. M* and the Rttr*ts- fion form submitted by rhe workman which art mirked Ex. M7. The learned couniel appearing for the workman submits thnt the nb'"nce of the original application form and its enclosures which f.re the hnsfr for the prennr^tfon of thu Z register are not produced bv the monaernKnt for the reasons best known to the rnxna^cment and fhev w^ro supnrwnicd and as inch, murfv rn*drncfl cannot be given to the Z register so atao the attestation form.

1(799 marks was the last on* tt> te appointcJ, and that the res- pondent did not produce original or duplicate copy of his certificate despite being repeatedly asked to do so. In the same Judgment it is also held that wrong declaration of nisrks In SSC examination but for this wrong declaration, the respondent would not have been given appointment and his dismissal therefore uphold.

(19) There is some iorcc in (he contention made by the learned counsel appearing fo/ the management. Here, in this case, the management produced not only the Z register and also the attestation form Ex. M7 which also contains the incorrect particulars. As already stated above, the workman has given wrong particulars in bis attestation form and ulti- mately he was pinned down tc admit that Ex. M7 is not submitted by him to the management but it bears his photo and his signature and tho name mentioned therein is also his. Therefore, the second charge that he has given incorrect particulars is established. So for as the Z register Ex. M9 and the marki entered a same t the application 116 belonging to the applicant are 53.40 per cent marks. This percentage of marks was entered basing on the application and the enclosures made therein. MW2 has stated with regard to the maintenance of Ex. M9 Z register which is a. public document maintained by the office. MW2 admitted that he supervises the preparation of this Ex. M9, Z register and his signatures are there at pages 7, II, 13, 17, 19, 21, 25 and 29. Ho also deposed that the Z register will be prepared on the ba"is of the enclosures of the application form i.e. name, date of With and mhr^r, obtained etc. after satinfyinR with the verasity and the truth of the contents of the enclosures. Therefore, by placing reliance on the above snid decision of the Supreme Court, this Z register ha3 pot evidentiary value and the applicant would not have cot the job hud he secured only 53.4 por cent nf stated hv him nnd ev;n the: 7 register also discloses that the last man who was selected, has. secured only 63.80' per cent in the I Oth class, the quaiifvinc examination in competition of candidates bearing application No. 158 Mohammad Jaf>iill;i. Therefore, the management in this case clearly established that the applicant having given incorrect particulars with regard to the p^rcentajjc of mnrki secured in the qualifying examination namely 10th class as 79.40 per cent and hencft ths charges allcsud against bira are held proved.

order passed under Section 7 apd the proper remedy for the party aggrieved is to appeal against the order. That was a case where the applicants therein made an application in the insolvency of A. S. Mohaman Ossman Sahib and Co. and asked for a declaration to certain goods which had been seized by the Official Assignee after adjudication were their property and not thff pro- perty of the insolvence, and the said application was dismissed on the merits. Then the applicant brought a suit against the Official Assignee for the declaration which he had asked for in his application in the insol- vency. Then their Lordship hold that suit do not lie ' and the proper remedy for the party is to appeal against that order as provided under the statute. The said decision has no application because there is a statutory remedy available under the Presidency Towns insolvency Art and that the appellants therein have already chosen a forum under a statute and they have to pursue their remedy available therein. Here fn this case initially the workman approached the Central Administrative Tribunal and got an order of dismissal reversed. However with a direction to proceed the departmental action at the stage at which the punish- ment was imposed. So the disciplinary authority have started its proceedings at the stage at which it failed to supply the domestic enquiry repurt before imposing the punishment and ultimately passed the orders of dismissal by virtue of Ex. W17 dated 2-5-92. This Ex. W17 order is the very order which is now being quertionid under the provisions o? Industrial Disputes Act before this Tribunal. Earlier the workman ques- tioned the dismissal order and therefore, it cannot be said that the workman has already taken or choosen one forum namely the Central Administrative Tribunal earlier and now he is estopped from choosing this Tribunal. The dismissal order in question before the Central Admn. Tribunal was not the dismissal order in question before this Tribunal. Therefore, the above said decision has no application.

(20) However, the learned counsel appearing for the management contends that the management is telecom department and it is not an industry. This contention has no force because of the pronouncement made by the Supreme Court in 1(1998) SLT page 9 between General Manager, Telecom Vs. S. Srinivasa Rao Vs. Others, wherein their Lordships of the Supreme Courl have pleased to hold that the telecom department of Union of India is an industry within the meaning ofSection 2(j) of the Industrial Disputes Act by placing a reliance on the Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and Ors. (1978) 2 SCC 213. Therefore, it is now well settled that the Telecom Department of the Union of India is an Industry. Hence there is no force in the said contention.

(21) The next contention or the initial contention of the workman which I am dealing at the end is that this Tribunal has no jurisdiction for the reason that the workman have initially elected Central Adminis- tiativc Tribunal is a forum for the redressal of his grievances. He cannot switch over to this Tribunal and he is pvocluded by virtue of the principle of doctrjnc of election. In support of his contention ho placed reliance on the following three decisions:

(2) Similarly the second decision relied on by the management is more or less lays down the same prin- ciple and it is AIR 1919 Allahabad 229 between Irshad Hussain and others Vs. Gopi Nath wherein their Lord- ships of Allahabad High Court were pleased to hold that the plaintiff agitated the attachment by the official receiver in insolvency proceedings before the Provin- cial Insolvency Court and the objections were dismissed and the order was upheld in the appeal then the iplain- till brought a suit for a declaration that the attached shaie belonged to him. Then their Lordships were pleased to hold that the suit was barred by the prin- ciple of res judicata. The above said decisions also has no application to the facts of tSis case. Here the ear- lier dismissal order of the workman was.sot aside by the Central Admn. Tribunal in O.A. 51/90. There- fore, it cannct be a res judicata, even otherwise, as already observed by me, the order is question before the Central Admn. Tribunal is not the one and the game in question before this Tribunal. Be as it may the workman earlier has chosen the forum in the Central Admn. Tribunal and it has given a finding directing the disciplinary authority to make inquiry from the stage at which it was aaked to do, and a fresh finding was made by the disciplinary enquiry, may be the same finding which- was given earlier name- ly the dismissal. But yet, the finding that is is question.

(1) AIR 1918 Madras 489 between K. Hajoo Abdul Lateef and another Vs. Official Assijme© of Madras wherein their Lordships of 3 Judges were pleap- td to hold under Section 7 of the Presidency Town Insolvency Act(1989) that no suit lies to set aside an1800 THE GAZETTE OF INDIA : APRIL 21, 2001 /VATSAKHA 1, 19^3 [PAXT II—Sic. 3(ii)J Ex. W4 30-9-82 : Memo indicating qualified in

the confirmation examination.

Ex. W5 6-12-83 : Memo to submit originals.

but the proceedings of the findings questioned before this Tribunal altogether different from that what was questioned earlier before the Central Admn. Tribunal. Therefore, the above said decision has no application.

Ex. W6 12-2-86 • Charge memo.

Ex. W7 15-3-86 ; Explanation of the workman.

Ex. W8 Enquiry report.

Ex. W9 Letter addressed to workman by the management regarding production of origi- nal education certificate.

Ex. W10 12-1-84 : Letter addressed to manage-

ment by the workman.

Ex. Wl 1 26-4-84 : Letter addressed to workman

by the management.

Ex. W12 21-5-84 : Letter addressed to Manage-

ment by the workman.

Ex. W13 3-6-84 : Letter addressed to workman

by the management.

Ex. W14 20-7-84 : Letter addressed to manage-

ment by the workman.

Ex. Ml 5 15-12-34 : Letter addressed to work-

man by the management.

Ex. Ml<5 11-1-85 : Letter addressed to manage-

ment by the workman.

Ex. W17 2-5-92 : Proceedings of the Divisional

Engineer, Telecom.

Documents marked for Management :

Ex. Ml 12-2-86 : Charge sheet.

Ex. M2 Appointment of Inquiry Officer and

Presenting officer.

Ex. M3 Diary proceedings.

(3) Then the other decision on which the workman wauted to rely is reported in 1989 (3) ALT page 714(DS) between B. V. Rao and the management of Chittivalasa Jute Mills, Chittivalasa, Repd. by Presi- dent (Tech.) and another wherein their Lordships of the High Court of A.P. were pleased to hold under Section 2(k) of the I.D. Act that the employee may seek his lemedy in case of termination of service either in Civil Court or in Labour Court and he cannot pur- sue remedies in both forum simultaneously or conse- q^uetively. That was a case where the employee ini- tially questioned the termination order and claimed reliefs for reinstatement with all benefits or in the alternative awarding damages for wrongful termination in a civil court and the civil court awarded damages. Later he approached the Labour Court for reinstate- ment. Then he was allowed to pursue his remedy before the labour court by granting permission to him to withdraw the appeal pending before the appellate court against the part of the decree, disallowed the claim of reinstatement. Therefore, even by applying the said principle, here, this is not a case where the workman have approached both the forum namely the Central Admn. Tribunal and this Tribunal-cum- Labour Court simultaneously nor his claim was decid- ed finally by any one of the forum so as to say that the workmen have approached this Tribunal conse- cutively. Admittedly, theie are no proceedings pending before the Central Admn, Tribunal questioning the very dismissal order in dispute before this tribunal. Therefore, viewing in any angle, I see no substance fn the arguments advanced by the learned counsel appearing for the management.

Ex. M4 Presenting Officer's brief and defence

brief.

Ex. M5 Defence witnesses and prosecution (24) Therefore in the light of my aforesaid discus- sion the dismissal of the employee in this case is justi- fied and accordingly, I answer the reference in favour of the management and against the workman.

witness.

(25) In the result, Nil Award is passed. However,

each party is directed to bear its) own costs.

Ex. M6 1-9-84 : Letter addressed to the manage- ment by the Head Master F. H. School Mallavalu.

Ex. M7 17-3-81 : Attestation Form.

Dictated to stcno transcribed by her given under my hand and seal of the Court this the 2nd day of February, 2001.

Ex. M8 27-7-87 : Enquiry report.

<*

SRI K. VEERAPU NAIDU, Presiding Officer

Ex. M9 Recruitment register to the cadre of office

assistant.

Appendix of Evidence

Witnesses Examination For Workman i¹ Management

WW1 Y. Madhusudan Rao

MW1 Yesunadhan MW2 Ch. Sanyasi Rao. Documents marked for workman' :

Ex. Wl 15-7-81 : Provisional appointment

w.e.f. 6-7-1981 F.N. •

Ex. W2 2-1-82 : Regular appointment w.e.f.

6-7-81 FK

Ex. W3 13-3-81 : Selection order as T.O.A.

J801

New Delhi, the 28th March, 2001

S.O. 833.—In pursuance of Section 17 of ths In- dustrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Indus- trial Tribunal/Labour Court, Visakhapatnam as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of General Manager, Telecom and their workman, which was received by the Central Government on 28-3-2001.

While serving as such, he was issued with a charge sheet alleging that he furnished wrong information regarding the school where he studied SSC and also with regard to the percentage of marks secured in SSC at the time of initial recruitment as TOA for the second half year 1980 for Eluru Telecom Division. It is fur- ther alleged that he obtained employment wrongfully by furnishing incorrect information about himself and his behaviour prior to the employment and renders him unfit to be a Government servant contrary to Rule 3(1)(i) and (iii) of CCS (Conduct Rules), 1964.

[No. L-40012/171/96-IR(DUj] KULDIP RAI VERMA, Desk Officer

ANNEXURE

IN THE COURT OF INDUSTRIAL TRIBUNAL- CUM-LABOUR COURT, VISAKHAPATNAM

PRESENT :

Sri K. Vecrapu Naidu, B.Sc., B.L., Chairman and

Presiding Officer.

Dated, 2nd day of February, 2001

I.T.I.D. No. (C) 6/98

Rcf. L-40012/17J/96-IR(DU) dated 3-2-98

BETWEEN

P. Gnancswara Rao (Ex-Telecom Office Asstt.), C/o U. Somcswara Rao, Mothey Vedakumar Buildings, Western Street, Eiuru-534001.

.Workman..

AND

General Manager, Telecom Sampath Vinayak Temple, Siripuram, Visakhapatnam-530002. . . Management.

(3) The case of the workman is that the original applications along with its enclosures were suppressed by the respondent and the charges were held to be proved bosing on the Z register prepared with refer- ence to the details furnished in the original application form and that a clerk who maintained the Z register is not examined in the domestic inquiry. Therefore, the charges levelled against the claimant are not estab- lished and therefore consequential dismissal of the workman from service is not valid and it is liable to be set aside. So he preferred O.A. 178/89 on the file of the Ceniral Administrative Tribunal, Hyderabad claiming foi reinstatement with consequential benefits against the order of the dismissal dated 30-9-88 (Ex, M8) of Divisional Engineer, Telecom and the same was dismissed with a direction to conduct the enquiry proceedings by the disciplinary authority from the stage of which the management failed to furnish the Domestic Enquiry report before awarding the punish- ment of dismissal from service. Fresh enquiry from that stage was conducted, and again the petitioner was dismissed from service by the orders dated 7-^-92 (Ex. M i l ). An appeal was preferred before the District Manager, Telecom West Godavari District, Eluru which was rejected under the proceedings dated 12th August, 1993 (Ex. Ml2). The said order is questioned by the conciliation officer by the workman and the conciliation failed and the Government ultimately made this reference upon which the workman questions the validity of the domestic enquiry and the order of dismissal on the following grounds :

(a) The original application form with its enclo- sures are not produced,in the enquiry which is-the basis of the charge.

This dispute coming on for final hearing before me in the presence of Sri A. V. Sambasiva Rao, advocate for workman and Sri M. Ramakoti, advocate for rmn- agement. Upon hearing the arguments of both sides and on perusing the entire material on record the court passed the following:

(b) The material and additional documents we

are not supplied.

AWARD

on surmjses.

(d) The enquiry was commenced 5 years after (1) This is a reference made by Lhe Government of India under Section 10U)(d) of the Industrial Disputes Act for adjudication of the following disputes:

the recruitment.

(e) The preliminary enquiry report and the sratements recorded in the preliminary en- quiry were not supplied to the applicant. The charge is based on suspicion and it cannot be a ground for framing the charge.

"Whether the action of the management of Gene- ral Manager, Telecommunications, Visakha- patnam in terminating the services of Sri Ganaeswara Rao, Ex-Telecom Office Asstt. w.e.f. 7-5-92 is legal and justified ? If not, to what relief the workman concerned is entitled to?"

(2) The case of the claimant is that he was selected is Telecom Office Assistant (hereinafter referred as rOA) and he joined in service on 3-2-91 in the office 3i Divisional Engineer. Telecom Department, Eluru.

(f) The enquiry officer did not forward the bias petition filed by the petitioner to the appro- priate authority* 'consequently the enquiry report submitted by tie enquiry officer is detective and it is in violation of statutory provisions and the final orders, passed byvmz THE GAZETTE (8) The point that arises in this reference is :

the punishing authority by dismssing the petitioner on 2-8-93, is liable to be set aside as it was biased and based on in erro- nous enquiry report.

Whether the tcuminaiion of the petitioner, from service under the proceedings dated 7-5-92 of tlie Divisional Manager, Telecom, Eluru is valid, legal and justified ?

(9) The learned counsel appearing for the work- man contends thut the domestic enquiry held in this case even after the matter was decided by the Central Administrative Tribunal in its order dated 13-3-92 in O.A. No. 178|9O, is defective and that the original application and the enclosures submitted by the peti- tioner were Dot produced before the enquiry officer and thai no enquiry was conducted and if so the work- man submitted an application Ex. M 14 dt. 27-12-86 before the enquiry officer.

(4) As against this, the reply written statement filed by the management alleging that this tribunal has no jurisdiction because the workman has already ducted in the jurisdiction of the Central Administartive Tri- bunal and invited a decision by filing O.A. No. 178/89 and he cannot be permitted to choose this Tribunal by leaving the forum which he already choosen for the redressal of his grievences. Tlie telecom depart- ment is not an industry. A reasonable opportunity to the claimant was given after the matter was re- manded by the Central Administrative Tribunal for a fresh enquiry. It is further stated that in the ori- ginal application that its enclosures had been missing from the official records and as such harping upon the same allegation that they were not produced be- fore the enquiry officer is neither meaningful nor tenable. The Claimant in his attestation form stated in. his own hand writing ^hat he studied SSC in Rajahmundry during 1971-72 with the percentage of marks secured by him and which were proved to be false during enquiry proceedings and it also farther confirms the factum of furnishing false particulars by the claimant. The Z register is a public document and it is maintained by the office and it was prepared on the basis of . the attestation form and the identity of the claimant is vouched by the photograph duly attested by a Gazetted Officer and during the enquiry the attestation form and the Z register were produced. Therefore, the non-production of the original appli- cation with its enclosures could not in any prejudice th© case iof the claimant before the enquiry officer. The claimant corss-cxamined the prosecution wit- nesses, the claimant examined the departmental witnesses on his behalf. Therefore he was afforded the reasonable opportunity in the enquiry. The charge alleged against the claimant is that he occurred the appointment by furnishing false information, regarding his school in which he studied nnd the per- centage of marks obtained by him in SSC and not regarding his honesty or efficiency in performance of his duty in office and his graduation and his diploma is not relevant and therefore the eligibility for re- cruitment of the claimant as TOA is determined by the percentage of marks he obtained in SSC and not his graduation or diploma. The claimant was affc:- ded reasonable opportunity to establish his case but failed to establish the same. Therefore, the dismissal order of the workman is to be confirmed.

(5) Joint memo is filed by both the parties stating that the matter may be posted for enquiry and the point as to the validity of the domestic enquiry re- port may be decided at the time of final disposal of the I.D.

(10) On the other hand, the learned counsel appear- ing for the management submit-; that the documents got marked by the defence before the enquiry officer discloses that the claimant was informed through the letter daed 26-4-84 by the Divisional Manager, Tele- com that the original certificate submitted by him for selection should be made available to the under- signed as and when called for. In the said letter it is further stated that if the certificates are not available, duplicate copies of the certificate must be obtained from the authorities concerned and produced and failure in tlhis regard will make him liable for disci- plinary action as deemed fit in CCS(CCA) Rules 1965 lor which a reply was given by the workman that the original certificates were submitted to Sri N. Partha- saradhi, the then Divisional Manager, Telecom, Eluru through K. Venkata Ratnam the tlhen head clerk of the establishment section at the time of recruitment. Hence they may please be addressed to them in this matter and they may be asked to obtain duplicate copies of the certificates if they repot t that they have misplaced the said certincaes. Then the management through its letter dated 30-6-84 gave a reply denying the said fact as they are not available in their office and directed the workman to obtain the duplicate co- pies of the certificates from the concerned administra- tive authorities and submit them to their office on or before 20-7-84 failing which further action, as deemed fit will be processed without any further notice un- der, CCS (CCA) Rules, 19o5, for which a reply wa* given by the delinquent dated 20-7-84 stating thar educational authorities have been addressed for supply of duplicate copies of the certificates and it has been informed by the educational authorities that he will not be supplied duplicate copies unless mis- placement of the certificates issued by the- department should be produced. That is 'whv in his previous letter he requested the department to issue such certi- ficate but the department have not been pleased to grant such certificate so far and he will submit the duplicates if and when received and he asked a mini- mum of 20 days time for that purpose. The last letter Ex. Ml 5 is dated 18-2-87 addressed by the workman to the Divisional Engineer, Tdecom, EMru requesting to refer his letter dated 20-7-84 and kindly arrange to is:iue the certificate requested therein for taking further action.

(6) Before this Tribunal the' workman examined himself as WW1 and no documents are marked. On behalf of the management two witnesses arc examined as Exc. Ml to M21 are marked.

(7) Heard both sides.

.(11) From the above' said Ex. Ml5 correspondence for th'! prosecution of the originals or in the tilternativc 16UJ for production of duplicate certificate's from "the con- cerned educational iiiitHaiions went on between 'the workman and tne management.' Ths net insult 15 that the workman neither produced the duplicate ceri- fkatesfnor the management ,,produced the original application form and its- enclosuresjis demanded by,. the"workman. Ultimately, as the workman faced the enquiry and he was dismissed from service.

(12) The learned coumid appearing for the work- man contends that if the management produces the original application along with the enclosures, it would have clinched the issue and that the manage- ment without original application and its enclosures, neither enquiry officer nor the respondent manage- ment is justified to hold that the charges levelled against the workman arc waved.

of "Sfi Ch. Sahyasi Rao,' who is •examined'MV/2 be- fore this court arid who knows the application as office" assistant and who verified the entries in the Z register (original Ex. M21) tind the application and the enclosures submitted by the woikman. Here n!so that Sanyasi Rao stated that after checking the applications they wjll bs entered in C register called Z register and.'the'Z register contains the name of the applicant category, date of birth, marks obtained in the qualifying examination l.e.f Metric or 10th class and the additional marks far additional quali- fications and his signatures are, there at pages 6, 15 and 17, 19, and 21. He also further stated that the particulars furnished in the application form such as name, date of birth and marks obtained etc. and after satisfying with the vercsity and truth of the contents *tf the cnclo:ures these parjculars will be enered in the Z register. He also stated that, he was incliarge of the recruitment work and he worked in Lluru from August, 1980 to August, 1983. He also further stated that the particulars of the workman are entered at pages 10 and 11 of the Z register and the marks particulars are entered therein are 80.20 per cent in the qualifying examination and 10 marks for addi- tional qualification. He also stated that the marks noted in the Z register are from the pariculars furni- shed by the workman in his application form and the enclosures. He denied a suggestion that the applica- tion and encolsures submitted by him discloses that he got only 45.8% marks and not 80.20 per cent as entered in the Z register. In the cross-examination also he admitted that he verified the documents per- sonally and physically i.e., application form and marks list degree certificate and he checked the entries in the Z register along with the documents. The Z register was prepared on 6-9-80. At page No. 3 at serial No. 21 the particulars with regard to the peti- tioner are mentioned and he made a verification of the application and other particulars of the workman on 6-9-80. The check slip and the application form will be in the custody of the recruitment clerk.

was held at all but Ex. M7 defence statement in the second time inquiry docs not contain any such alle- gations against the inquiry officer and even Ex. M10 the judgment in O.A. 178)90 discloses that the copy of the enquiry report was given only along with tie punishment order to the workman and it is opposed to law and principles of natural justice as was held in the case of Union or India and Others Vs. Mohd. Ramzan Khan AIR 1991 SC 476 and therefore, the punishment order was quashed and it is also observed that it will not preclude the respondents management from supplying a copy of the enquiry report to the applicant and give him an opportunity to make his representation and proceeding to complete the disciplinary proceedings from that stage. There- fore, the stage at which the initial stage i.e. the first inquiry was before punishing the workman, a copy of the enquiry report is to be supplied and asked for show cause notice and therefore, here in this case, there is no infirmity nor any denial of opportunity to the workman so as to contend that the inquiry was held in violation of the principles of natural justice. There- fore, the validity of the domestic enquiry report does not in any way suffer with any infirmity, much less, there is no statutory violation nor any principles of natural justice. Therefore, I held that the enquiry held in this case is valid.

(15) The next question that falls for consideration is whether the findings given by the enquiry pfficer are with any basis or without any basis? The only material produced by (he management to prove the altegcd charpc is the Z register which is marked as Ex. M9 and the attestation' form submitted by the workman which are marked as Ex. M7. The learned counsel appearing for the workman submits that the absence of the original application form and its enclosures which are the basis for the preparation¹ of 'he Z register are not produced by the management for the reasons best known to the management and they were superessed and as such, much evidence cannot be Given to the Z register and so alSb the attestation form.

lOVO

and he is procluded by virtue of the principle of doc- tcine of election. In support of bis contention he flaced reliance on Ihe following three decisions:

by me the order in question before the Central Admi- nistrative Tribunal is not the one and the same hi question before this Tribunal. So as it may, the work- man earlier has choosen the lorum hi the Central Administrative Tribunal and it has given a finding directing the diciplinary authority to make inquiry from the stage at which it was askea to do anc] a lresh finding was made by the disciplinary enquiry may be the same finding which was given earlier namely the dismissal. But yet, the finding that is in question and the proceedings of the findings ques- tioned before this Tribunal are altogether diffe- rent from then what was questioned earlier before the Central Administrative Tribunal Therefore, the above said decision has no application.

(3) Then the other decision on which the work- men wanted to rely .is reported in 1989(3) ALT page 714 (D.B) between B. V. Rao and the Manage- ment of Chittjvalasa Jute Mills, Chittivalasa, reptd. I>y President (Tech.) and another wherein their Lordships of the High Court of A.P. were pleased to hold under Sec. 2(k) of the I D. Act that the employee may seek his remedy in case of termination of service cither in Civil Court or in Labour Court and he cannot pursue remedies in both for a simultane- ously or consequently. That was a case where the employee initially questioned the termination order and claimed reliefs for reinstatement will all benefits dr in the alternative awardiniz damages for wrongful termination in a civil court and the civil court awarded damages. Later he approached the Labour Court for reinstatement. Then he was allowed to pursue his remedy before the Labdur court by granting per- mission to him to withdrew the appeal pending before ihe appellate court against the pwf of the decree, disallowed the claim of reinstatement Therefore, even bv applying the said principle, here, this is not a case where the workman have approached both 'he forums namely the Central Administrative Tribu- Mnl rind this Labour Court simultaneously nor his cl urn was decided finally by any one of the forms, •*n as to sav that the workman have approached this Tribunal, consecutively. Admittedly there are no proceedings pending before 1he Central Administra- tive Tribunal auestionin" the verv dismissal order in depute before thi-= Trbunai. Therefore, viewineinany an"K T sfe no substance in the arguments advanced bv the learned counsel anpfar'n<* for the management.

(1) AIR 1918 Madias 489 between K Hajec Abdul Latcel and another Vs. Official Assignee of ^adras wherein in their Lordships of 3 Judges were blea&ed to held under Sec. 7 of the Presidency Towns Insolvency Act (1909) that no suit lies to set aside an order passed under Sec. 7 and the proper remedy lor the party aggrieved is to appeal against the order. That was a case where the appellant! therein made an 'application in the insolvency of A. S. Monammen Osman Sahib and Co., and asked for a declaration to certain goods which had been seized by the Official Assignee after adjudication were their property and¹, Hot the property of the insolvents and the said appli- cation was dismissed on the Merits. Then the appellant trought a suit against the Official Assignee for the declaration which he had asked for in his application jji the insolvency. Then their Lordships held that suit do not lie and the proper remedy for the party is to appeal against that order as provided under tho statute. The said decision has no application be- cbuse there is a statutory remedy available under the Presidency Towns insolvency Act and that the appel- Lints therein have alread\ choosen a forum under a s atute and they have to pursue their lemedy avail- able therein, Here in this case, initially the workman approached the Central Administrative Tribunal and got an order of dismissal reversed. I/owevcr, with a direction to proceed the departmental action at the s age at which the punishment was imposed. So the disciplinary authority have started its proceedings at the stage at which it failed to supply the domestic inquiry report before imposing the punishment., and ultimately passed the orders of dismissal by virtue of Ex. M il dated 7-5-92, This Ex. M il order is the •\pry order is now bein" questioned under the pro- visions of Industrial Disputes Act before this Tribunal. Earlier the workmen questioned the dismissal order duted 13-9-88 which is marked as Ex. M8 and there- fore, it cannot be said that the workman has already ttken or choosen one forum namely the Central Ad- minisairtTve Tribunal and now he is estopped from choosing this Tribunal. The dismissed order in q lestion before the Central Administrative Tribunal was not the dismissal order in question before this Tribunal. Therefore, the above said decision has no mplication.

(191 Therefore, in the liirht of my aforesaid* discussion, the dismissal of the emniovec in this case i", justified and accord'ntrlv, I answer the reference iri favour of the ma nape merit and arainst the workman.

(10) Tn tho result, Nil Award is nasscd. Howe\er,

Documents marked for Management :

Ex. Ml : Charge sheet.

Ex. M2 : 19-11-84 Letter addressed to the Management by the Head Mas'cr Municipal High School, Rajchoudry.

Ex. M3 . 27-12-8 (• Letter addiessed to the Management hy the Head Master S.V.N.A, High School, Cbatrgad.

Ex. M4 : Deposition, hefor; the enquiry officer.

E\ M5 28-6 88 p r i n t i ng officer's brief Ex. M6 : 23 7-88 Enquiry Officer's repoit.

Ex. M7 : 17-6 88 statement oi defence by workman.

Ex. M8 : 3O-9-S8 proceedings of the Divl.

Engineer, Eluru.

Ex. M9 : 13-3-90 : proceedings of Dy. General Manager, Elurn.

Ex. W10 : 13-34992 Central Administrative Tiibunal, Hydoiabad bench Judgment in O.A. No. 178(90.

Ex. M il : 7-5-199? : proceedings of the Divl.

Engineer, Ehiru.

Ex. M12 : 2-8-1193 proceeding of the District Manager, Elurn

Ex. M13 : 20-9-199f> Minutes of the conciliation proccedngs.

Ex MI4 : 27-12-1986 Regulation letter by the workman^ to* the Enquiry Officer.

Ex. M15 : Defence exhthifs marked by the enquiry Officer.

Ex. M16 • 23-7-Kfi appointment of enquiry officer.

Ex. M17 : 4-9-1987 Bias petition filed by woik- man against the enquiry officer

Ex. M18 • 13-M9SS Director's ordei on Ex. M17.

Ex. M19 : 18-11-97 Judgment of the Supreme Court of India Civil Appeal No. 776fi|97 Ex. M20 : 13-10-1980 Attestation Form.

Ex. M21 : Recrmtmen* register to the cadre of olficc assistants II Half year 1980 outsiders.

New Delhi, the 2Sth March, 2001 S.O. 834.—In puisuance of Section 17 ol the Industrial Dispute Act. 1947 (14 of 1947), the Central Government hereby publishes the award of the Industrial Tribunal'Labour Court, Visakhapat- nam, as shown in the Anne-cure in the Industrial Dis- pute between the employers in ielation to the management of Defence Ministry and their work- man, which was received by the Central Gowrnment on 28th March, 2001.

[No. L-14025/3/2001-IR(DU)] KULD7F I? \T VERMA, Desk Officer

ANNEXURE

TN "THE COURT OF INDUSTRIAL TRIBUNAL CUM LABOUR COURT VISAKHAPATNAM PRESENT :

Sri K. Veerapu Naidu, B.Sc., B.L.,

Chairman & Presiding Officer.

Dated the 6th day of February, 2001 I.T.I.D. (C) No. 11/99

BETWEEN :

B. Eswarai Rao, S/o Late Appelanaidu, R/o Fodcgadi Village, Pondurthi Mandalam, Beside the Port Office, Visakhapatnam Dist Workman.

AND

(1) The Secretary, The Union of India, Ministry of Defence, Department of Navy, Navy House, New Delhi-110001. ... Respondent No. 1 (2) The Flap-Officcr-Command-Tn-Chief, Fnstern Naval Command, Visaikhapatnam-53001 4. Respondent No. 2 O) The General Manner, Naval Armament Dept., Visakhapatnam-9. . . Responded No. 3 This dispute coming on for final hearing before me in the presence of Sri K. Balakrishna, advocate for woikman and Government Pleader for manage- ment. Upon hearinc tbe arguments of both sides and on pursuing the entire material papers on re- cord the court, passed the follow ing :

AWARD

(1) This is an application filed under Sec. 2A(2") of the Industrial Disputes Act, 1947 to reinstate the workman with all back wa^cs and consequential benefits settinr aside 'he termination orders dated 1-5-Q7 made in order Nc CE 9107195 of General Manager, Eastern Navnl Command, Visakhapatnam.

(2) The case of 'he workman is thnt he was nooointfri as Arms Repair Labour and drawing wapes of Fs. 2.5001- in the Ird respondentlmaruiGe- mcTTf f'om the vear 19RI His services wpre ter- trtinntr-d on the "round that he obtained the inh hv "'•odiFrini? caste rrrtifi^^tf thnf he bp1or"Ts to 'VprnVnii' rommimitv wtiirh is i ^chprhrier) Tiibe⁷ n FstcVwirri CliTt*" TTI fh^t thr*

was only after following the proceduie as prescribed under Rule 14 of CCS (CCA) Rules, 19o5.

(4) A domestic enquiry held to he valid, oral evi- dence is adduced on eitlier side, fc,xs. Ml to ivU9 are marked- on behalf of the management

(5) Heard both sides.

(6> The point that arises tor consideration, in this

cuso is :

be bogus by the Dist. Magistrate, Visakhapalnam in his verification report 3-10-98. The case ot\ the workman is that the basic for the .verification report issued by the Distt. Magistrate is the enquiry leport of the M.R.O. and except the verification leport, betore the domestic enquiry officer no wit- nesses are examined nor there was any other material to hold that the petitioner is a Gavara by caste. Therefore, the termination of the petitioner after a lapse of 15 years of service vide proceedings CE 9102|95 of General Manager, Eastern Naval Com- mand dated 1-5-97 is illegal and the same is liable to be set aside and the petitioner is to be reinstated.

Whethei the removal uidtr ot tlhc petitioner passed¹-by the Jru tespondent in its Pro- ceedings C.S. No. 9102|95 of General Manager dated 1-5-97 is void and illegal and consequently whether the petitioner is entitled for reinstatement with all conbe- quential benefits ?

Court Labour Judgments page 342 between State of A.p. Vs. Nug.un Chandrasckhara Lingam and others wheiein one Chandrasekhara Lmgam was selected as IAS Officei to the reserved post on the basis of social status certificate and an enquiry into validity of ihe certificate was held by a commissioner and who did the enquiry without issuing a notice to the candidate and recoided the evidence in presence of the candidate. Hence an order cancelling certificate was passed on the basis of import of commissioner if vitiated.

(11) The learned counsel appearing for the mana- gement contend;, that it is a case where an enquiry commission was ordeied and the enquiry was held behind the back ot the employee and hence it is a case whew the certificate was cancelled even with- out giving an opportunity foi the employee. Hence the enquiry held to be against the principles of natural justice and also in violation of the Articles 338 and 341 with legafd to the enquiry commis- sioner.

otlici H it, ewuyiny u Dug us one auu tin; caste LtiiiitLti.c was nut yivuii oy viic itv'tJiUL auinuiitics. L>u±,iua ua .i.-jt, i-poith ti iiguiai uiiquny was (jiUti^o. HA. Ai.0 ia me Ciiqujry piocucumgi ana JLUL. wio is me t-iiquuy icpon. ijciure tnc i-uquiiy omcei the aennquciu produced two detencc wn- ii^sbes and one ui mem is B. Appam JNaidu, tne ladiei. ol me workman ana Uie odier one is 6ri &ddarain Appaiao, EA-surpmicn or i'cuagaui Village and" tne delinquent woiUnan riuve suuea belore me enquiiy omcei Mett iie will try lo produce school ccriuicau: m support ot his case and mis B. Appala iNaidu wai> examined uy the MKU, and he stated beiore the MKU that he was Gavara by community. (Apart from that the iathei of the workman also seated before the enquiry officer as defence witness that his caste i:> Gavaru and his son's caste i.e. Yeru- kulu ca"-e and tnis woiknwn B. Estara Rao is his adopted sou nom Anuutapuram whereas the Sada- fain Apparao, the hx-sarpancri ot Fcdagad'i Village stated tiul die lannly ol nswara Rao was Yerukutu Caste and that B. bswaia Rao is real son (Natural son) ot B.A. Naidu. ti. Appala Naidu had married iii his own caste. He also stated that B. Appala Naidu is mingled with Gavara community and so he is clarming as (Javara. Thus, these two witnesses vary with, legard to ihe fact as to the adoption and it is not even the case of the delinquent ti. Eswara Rao that he is the adopted son of B. Appala Naidu. Even though the delinquent claims before the en- quiry officer that he is gcing to submit his school certificate but he did not produce any school certi- ficate before the enquiry officer. However, it is brought on record by the management at the ins- tance of the workman that the school transfer certificate said to have been issued by Z, P. High- School, Sabbavaram which was produced by the management as the certificate filed by the workman at the time of his joining into seivice, and it is marked as Ex. M19. Ex. M19 is only a true copy and not signed by any one and as such the same cannot be reiicd upon and even otherwise, the caste is not supported to be mentioned therein. In cd- ltunn No. 4 ol Ex. M l9 as against the nationality and religion of the petitioner it is noted as Indian- Hinds-Yerukulu. As against column No. 5 with regard to the particulars as to the community it is noted as Scheduled Tribes. As contended by the learned counsel appearing for the management, much credence cannot be given to this document for the reason that it is not signed by anyone, it is only a true copy and not attested by anyone and it con- tains the typed matter. Thus, here this is a case where trjere is no material on record, for the work- man to show that he belongs to Gavara community, flic only certificate produced by him which is mar- ked as Ex. M8 was found to be a fabricated one in the verification report a? could be seen from Ex. Ml 6. However, the learned counsel appearing for the workman contends that the enquiry with regard to the genuineness or otherwise of the original of Ex. M8, the caste certificate was made behind¹ the back of the petitioner/workman and as such much credence cannot be Given to the reports submitted by the District Collector, Visakhapainam under Exs. M13 and M16.

(12) A fresh enquiry is ordered by the commis- sioner of social welfare who is conversent with the matter of enquiry and he should be preferred to a Dist. Judge or a Judicial Officer as ordered by the A. P. High Court and that here a regular enquirj it. ordered in terms of Rule 14 ol the Central Civi. Service:, (Classification, Control and Appeal) Rules 1965 under Ex. Ml and one M, K. Srivastava Manager was appointed as an enquiry officer to en quire into the charges Iranied against the sam< B. Eswara Rao and who submitted his report Ex M6 after making the legulur enquiry by affordinj reasonable opportunity No doubt, no witnesses are examined before the enquiry officer for the Manage- ment. The first charge ievelled against the work- man is thet the workman claimed his social status as 'Yorukulu' instead of 'Gavara' which is actually belongs by producing a Scheduled Caste Certificate (the original of Ex. M8) purported to have been issued by the Tahtsildar, Anakapalli at the time of his recruitment. The second charge is that the workman also furnished false information at column No. 9 ( a) and (b) ol the Attestation form dated 15th July, ] 981 and the management relied on the material on support of all the two charges is the verification reports Exs. M l3 and M16 submitted by the Dist. Collector, Visakhapatnam after making due enquiry and the management did not choose to exa- mine any witnesses inspite of the fact that the work- man have insisted for the production of the MRO, Pondurthi, who reported tfiat the employee belongs to Gavara community caste and Sri K. V. Subbarao, then Tahasildar Anakapally who issued the caste certificate dated 10-1-76 to the workman for the purpose of cross-examination. The said enquiry officer as could be seen from Ex. M6, the enquiry report rejected the said request on .the ground that the MRO and the Tahasildar arc no) included in the list of witnesses from any side and he simply relied on the documents presented by the presenting officer. No doubt, the Collector, Visakhapatnam have made reference in the reports Exs. M l3 and Ml 6 that on the report submitted by M RO Pondur- thi and MRO, Anakapalli he stated that the employee in this case belongs to Gavara community but not Yonikula community and that the caste certificate (10) In support of his contention Jie placed re- liance on a decision reported in 1988-1990 Supreme

10V7

dated 10-1-76 issued by iho then Tahasildar, Anaka- palli is a bogus one.

sufficient proof in support of a candidate' claim as belonging to the Scheduled Caste or Scheduled Tribe :—

(i) Matriculation of school leaving certifi- cate of the birth certificate giving the caste or community of the candidate and place of residence.

(ii) A certificate in the form given in Appen- dix 14 issued by one of the authorities listed in Appendix 15."

13.2. reads as follows :

(13) The counsel appearing for the workman contends that the workman have insisted for the pro- duction of the MRO and Tabasildar for the purpose of cross-examination, the enquiry officer ought not to have rejected the request rnade by the workman and certainly it would amount to the violation of principles of natural justice, arid the two reports sub- mitted by the Dist. Collector, Visakhapatnam are only based on the enquiry conducted by the two MROs namely MRO, Pondurthi and MRO, Anakapalli whose reports were not made available to the work- man in the domestic enquiry. Therefore, under the circumstances, the enquiry was held behind the back of the workman with regard to his social status by the two MROs and it is a gross violation of princi- ples of natural justice and fair play.

"Where a candidate belonging to a Scheduled Caste or Scheduled Tribe is unable to pro- duce a certificate from any of the prescrib- ed authorities. He may be appointed pro- visionally on the basis of whatever, prima facie proof he- is able to produce in support of his claim subject to his furnishing the prescribed certificate within a reasonable time or if there is genuine difficulty in his obtaining a certificate, the appointing autho- rity should itself verify his claim through the district Magistrate concerned."

13.3. reads as follows :

"An appointing authority may, if it considers necessary for any reason verify the claim of a candidate through the District Magis- trate of the place where the candidate and| or his family ordinarily resides. If after appointment, in any particular case, the verification reveals that the candidate's claim was false his services may be termi- nated in accordance with the relevant rules| orders."

(,14) The learned counsel appearing for the mana- gement contends thai this tribunal has already held that the domestic enquiry held in this case is valid. However, the management contends that here this is not a case where no opportunity was given to the workman to establish his community or his social status and a regular enquiry is ordered and the emp- loyee in this case have examined two defence wit- nesses, and the evidence of these two witnesses before Enquiry Officer is not consistant'. Apart from those two witnesses, there is no other material nor a|ny document in support of his social status or commu- nity was produced by the workman. Therefore, it cannot be said that it is a case where the enquiry was made behind the back and the same could not be used against him, Here this is a case where the Collector, Visakhapatnam made an enquiry with regard to the social status of the workman as well as the genuineness of the caste certificate produced by the workman at the time of his appointment and the repcrt is adverse to the workman. Therefore, a regular enquiry is ordered under Rule 14 of CCS (CCA) Rules, 1965 and witnesses are not examined before the enquiry officer in the departmental enquiry. Hence the production of these two witnesses for the purpose of cross-examination does not arise. The management did not choose to examine the MRO', Pondurthi and MRO, Anakapalli to establish their case but on tho other hand, the management placed reliance on the reports submitted by the Collector, Visakhapatnam. Therefore, it is not a case where the enquiry officer have placed reliance on the state- ments of the MROs cf Pondurthi and Anakapalli. Therefore, as rightly contended by the management this is not a case where the employee was denied the opportunity to cross-examine the witnesses on whose statements, the management placed reliance and an ample opporunity was given to the workman to esta- blish his case, Further, the material on record dis- closes that the workman belongs to Pedawadi and the workman could as well examine the village officers or his own community people, or atleast he could have obtained a certificate from any of the prescrib- ed authorities. Chapter 13 of brochure of reserva- tion of Scheduled Casic and Scheduled Tribes. 13(1) of the Brochure reads as follows :

"13.1 any of the following certificates may be accepted by the appointing authority as

(15) As per Clause 13(3) the appointing autho- rity in this case verified the claim of the candidate through the Dist. Magistrate who in turn has given the reports Exs. M l3 and Ml6, Clause 13.3 further says that if the verification reveals that the candidates claim was false, his services may be ter- minated in accordance with the relevant rules[orders. Thus, here this is a case where the management have followed the procedure contemplated under Chapter 13 and ample opportunity was given to the workman to produce a certificate from any of the prescribed authorities to show that he is belonging to a Schedul- ed Tribe. The only witness he examined namely the father of the workman. He himself claims that he is Gavara by caste and his son is Yorukulu and that he adopted his son. (the workman) and it is contraverted by the other witness namely S. Apparao^ the ex-sarpanch. Therefore, under the circumstan- ces, it is quite probable and possible that the emp- loyee does not belong to the Yorukulu community and he must have been a Gavara by community. Therefore, the material on record clearly establishes the fact that the woikman is only a Gavara by com- munity but not Yorukulu by community. Admittedly Gavara community is not a Scheduled Tribe and it is higher community than Yorukulu community. Therefore, the enquiry Officer in this case have right- ly came to the conclusion that the employee in this case is not an Yornkulu community man and he belongs to a Gavara community. Therefore, there ar\ka THE GAZETTE ©F INDIA : APRIL 21, 2001/VAISAKHA 1, 1923 [PART II—SEC. 3(ii)J the employee have obtained the appointment by pro- ducing a false certificate claiming that he belongs to a Scheduled Tribes h' against reserved post and if he belongs to Gavara Community he is not at all entitled to get the said post. Therefore, he secured ihu job by playing fraud and by pioducing a false certificate. Therefore, he docs not deserve to hold the post nor to continue in the said post. Hence the removal order under Ex. M15 and the confirmation bf the removal ordej under Ex. Ml7 holds good and I see no grounds to interfere: with the said findings. Hence I answer the point in favour of the manage- ment and against the workman.

(15) In the icsult, the petition is dismissed and nil award is passed. However, there is no Oder as to costs and £ach party is directed to bear its own costs.

Dictated to sLeno transcribed by her given under my hand and seal of the court this the 6th day of February, 2001.

Sd|-

Presiding Officer Industrial Tribunal-cum-Labour Court.

Appendix of Evidence in I.U.I.D.(C) No. 11 [99 WitneS'ies, Examined :

For Workman : None,

For Management : None.

Documents Marked :

For Workman : Nil.

For Management :

Ex Ml : 5-12-1991 &

30-10-92 :—Order of appointment to in- quiry authority.

' .

Ex. M2 : 5-12-91,

2-1W2 7-2-95 :—Order appointing Presenting Officer.

Ex. M3 : 1-10-91 :— Charge Sheet.

Ex M4 : — :—Daily order sheet.

Ex. M5 : 15-7-96 : Inquiry report.

Ex. M6 : -- :—-Statements before the inquiry officer.

Ex. M7 : — :—List of exhibited documents.

Ex. M8 : — :—Exhibited documents.

Ex. M9 : -- :— List of witnesses. Ex. M10 : 10-2-93 :—Brief statement of Pre- senting Officer.

Ex. M il : 21-2-94 :—Brief statement of de- fence,

Ex. Ml 2: 24-10-91 :—Reply to chnrge sheet.

Ex. Ml3 : 13-2-90 •—Lr. addressed to mana- gement by Dist. Collector, Vp.

hx. MI4 : ] 2-7-90 :—Lr. to the Dist. Collec- tor, Vsp. by the management.

Ex. Ml5 : 1-5-^7 :—Removal order issued by commodore, Chief Staff Officer.

Ex. Ml 6 : 12-8-93 :—Lr. to the management by the Collector, Ysp.

Ex. M17 : 31-12-97 :—Order of vice-Admhal Chief of Personnel.

Ex. Ml 8 : 7-1C-96 :—Order of the Central Admn. Itibunal, Hyd. bench in O.A No. 1168|96.

Fv Ml 9 : — :—True copy of the transfer certificate

New Delhi, ths 27th March, 2001

S.O. 835.—Tn pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award of the Centrul Government Industrial Tribunal No. J. Dhanbad, as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of M|s. C.C. Ltd., and their workman, which was received by the Central Government on 27-3-2001.

[No 1. 200J2|381|94-IR(C-l)J S. S. GUPTA, Under Secy.

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO. I, DHANBAD Tn the matter of a leferenct under section 10 ( l ) ( d) (2A) of 'he Industrial Disputes Act, 1947.

/ Reference No. 120 of 1995

PARTIES:

Employcis in I elation to the management of Ai\i Colliery of M|s. C C. Ltd

AND

Iheii Workmen, jotj.

f"RESFNT :

Slvi 3 irju Pmsad, Pu sidmg Officer

alter 'he misconduct was proved the concerned work- in,m lu' been rightlv dismissed fiom service because the misconduct is serious one.

APPEARANCES :

For the Employe is—Shrj B Joshi, Advocate.

For the Workmen—Sbii D Mukherjee, Advo- " cate.

$TATE : Jhflfrkhand INDUSTRY : Coal.

5 Although the sponsoring union has challenged the fairness and propriety of the domestic enquiry but aftci the evidence were led they have conceded that the domestic enquiry conducted by the manage- ment is tair and proper and accordingly by order dt. 9-1-2001 the domestic enquiry conducted by the management has been held to be fair and proper.

Dated, the- 7th M^rch, 2001.

AWARD

6. Since the lairncss of the domestic enquiry has jlix.'dy been established now the only question to be decided is whether on icappraisal of the evidence -'dduced bv the management in course of domestic enquiry the misconduct alleged hm been proved J7iin t the co'icerned workman? If not, is the con- cerned workman entitled to any relief?

7. Findings:

By Order No. L-20012I3S1J94-I.R (Coal-I) dated, the I9¹h September, 1995 the Central Government in the Ministry of Labour has, in exercise of the powers confeucd bv clause (d) of sub-section (1) and sub-section (2A) of Section 10 of the Industrial Disputes Art, 1947, referred the following dispute for adjudication to this Tribunal :

"'Whether the action of the management of Ara Colliery of C.C. Ltd., P.O Kuju, Dist. H.izanbagh in terminating the services of Sbri Mangar Mahato i< justified ⁹ If not, tu whit relief the workman is entitled?"

2. This industrial dispute has been referred to de- cid; whether the action of the management of Ara .Colliery of M|s. C C. Ltd , P O. Kuju, Dist. Hazari- bagh in terminating the services of Mangar Mahato is ratified If not, to whit relief the workman is entitled ?

Shankar Mali, Security Guard and M. M. Ansari, Head Security Guard to check Mangar Mahato and they have caught him and brought him to the Secu- rity Officer alongwith bicycle in which there was a gunny bag and from the bag 10 detonators and 9 solizex type explosive catridges were recovered and from the gunny bag coal was recovered but there is no mention of recovery of coal from the possession of the concerned workman. However, it appears that the Enquiry Officer has not given any opportuni- ty to cross-examine this witness to Mangar Mahato. Therefore, it is apparent that apart from the fact that the name of Mangar Munda does not find place in the report of the Security Officer submitted to the management nor in the carbon copy of first information report lodged before the police This witness has introduced a new story of recovery of coal also which does not find place either in the charge or in the report of the Security Officer or in the carbon copy of the F.TR. The management! has not examined either the Security Officer or the persons who were allegedly present at the time of alleged recovery of explosive and detonators nor any explanation has been given for their non-examina4 tion. Therefore, an adverse inference can be drawn against the varacity of the story of the management.

8. The concerned workman has rather stated in his evidence that actually on that date he was work- ing as Mason Helper in the bunglow of one P. K. Singh where plaster and repairing work were being done They worked there till 12 noon and thereafter! he sought leave for taking meal, but he has been falsely implicated in the present case and nothing was recovered from his possession. The manage- ment has examined to denv any repair work in his house, but he has said nothing regarding recovery of explosive and detonators. Thus, we find there is only evidence of one Manga] Munda whose- name does not find place as witness in the initial rcoort submitted by the Security Officer or in die carbon copy of F.I.R. and according to the evidence of Mangal Munda also it is apparent that he has not caught the concerned workman alonpwith detonators and explosives, rather it was M. M Ansari and Shankar Mali who had made recovery, but the manage- ment has not examined them. Therefore, I find that the evidence of the management is very much shaky and on such evidence it will not be safe to dismiss a workman from service. Had tfte manage- ment examined the other important witness, the matter would have been otherwise In my opinion, on the basis of such shaky evidence the reinstate- ment of the concerned workman without back waccs will be sufficient punishment Furthermore, the concerned workman has filed judgement of criminal court from which it appears that he has been acau't- ted of the charges of possessing explosive and deto- nators as the prosecution failed to prove tVe charge Therefore, on this score also the concerned workman deserves to be reinstated.

9. Tn the result, T render :—

AWARD

TW the action of the management in dismissing/ retrenching the concerned workman, Mansrar Malhato from service is not justified. The reinstatement of the concerned workman without? back wages and consequential benefits will meet the ends of justice. Accordingly, the management is directed to reins- tate the concerned workman without back wages and consequential benefit;, within 30 days from the date of publication of the award.

SARJU PR AS AD, Presiding Officer New Delhi, the 27th March, 200 J S.O. 836.—In pursuance or Section 17 of the In- dustrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Central Government Industrial Tribunal No. I, Dhanbad as shown in the Annexure in the Industrial Dispute be- tween the employers in relation to the management of M|s. IISCO Ltd and their workman, which was re- ceived by the Central Government on 26-3-2001.

[No. L-20012l36H94-IR(C-I)]

S. S. GUPTA, Under Secy.

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO. I, DHANBAD In the matter of a reference under Section ]0( 1 ) ( d ) ( 2 A) of the Industrial Disputes Act, 1947 Refeience No. 147 of 1997

PARTIES :

Emplovers in relation to the management of Chas- nalia Colliery of M/s. ITSCO

AND

Their Workmen.

PRESENT :

Shri Sarju Prasad, Presiding Officer.

APPEARANCES :

For the Employers: Shri B. Joshi, Advocate. For ihc Workman: Shri D Mukherjee, Secretary,T Bihar Coll'ery Kamgar Union

STATF: Jharkhand. INDUSTRY: Coal.

Dated, the 8th March, 2001 1813

AWARD

' [By Order No. L-2OO12|(361)|94-IR(C-T) dated, the 13th August, 1997 the Central Government in tlie Ministry ol Labour has, in exercise of the powers conferred by clauie (d) ol .,ub-t>ection ( J) and sub- section (2A) of Section 10 of the Industrial Disputes Act, 1947, referred the following dispute lor adjudi- cation to this Tribunal :

''Whether the demand of the Union for reguiari- sation of Shri Khapu Manjhi and 34 others (us per list enclosed) by the management of Chasnalla Collier) of M/s. 1ISCO is legal and ' justified ? If so, to what relief are the work- man entitled?"

2. This dispute has been leferrcd to decide whether the demand of Bihar Colliery Kamgar Union for regu- larisatiou of Khapu Manjhi and 34 others as per list enclosed in the reference order is legal and justified ? If¹ so, what rcliei are the workmen entitled?

I

,3. The case of the sponsoring union is that Khapu Mianjhi and other workmen whose names find place inj the reference order are working as permanent work- man at Chasnalla Colliery since 1990 and have been perfoiming permanent and prohibited nature of job h ip underground of the mine under the direct control arfd supervision of the management. They have been performing permanent and prohibited nature of job or drilling, blasting and loading of coal und sometime. also the job of tramming. They have put in more than 190/240 days attendance in each calendar year. The wjsrk implements for execution of the job are being supplied bv the management and the concerned work- man have been rendering service and producing goods for the benefit of the coliierv management. As per IVJincs Act and Regulations all the underground work- men are bound to work under the direct control and supervision of the competent authority of the manage- ment. For all legal purposes the concerned persons are the workmen of the management, but in order to deprive them the benefit of permanent employees their wages are being disbursed through some intermediary and they are being paid waees much less than the pres- cribed wages as per NCWAs. The management is dis- bursing their wages through different intermediary in otder to cimouflage the real question and deprive the t'^ncerncd persons from thjc benefit of regularisation aijid wnces as per NCWA. The concerned persons de- manded for regularisation, but the management did not h^ed to them, then they raised the present dispute.

i 4. The caFi' of the management is that no Employer- fijiipioyee relationship exists between the management and the concerned persons at any point of time, there- fore no industrial dispute can be raised bv the con- cerned persons or by any union on their behalf. The tinna^ement has however admitted that some persons wjbosc names appear in the list of the reference order wie-*c member of a referred cooperative so- ciety, j'-imrlv. Motinawr Kamjrar Shramik Sahayog ^••"Trlii T *d and fbev hod worked as contractor work- em in the vear 1991-1992 on n contract awarded to t>ir nfoi-psaid cooperative society bv the mnnawtnent. The nforp'iid roTvrnfivp society ic n reoistered co- ortera+ive society beinr registration No. 25 of 1Q8*> ili'l ;s :n independent body corporate to perform all ! 1064 GT/2W1—12

jobs in the capacity of a legal entity. The State Gov- ernment entiustcd with the duty and responsibility to encourage and promote the cooperative movement in tlie State and the District Administration approached the nanagement to provide petty contract work to such local Cooperative Societies and in pursuance of that the management had awarded contract job to the said Cooperative Society in the year 1991, by work order No. 68/335 dated 8-8-91 for establishment of venti- lation circuit. The aforesaid work consisted of dis- posal of debris from the ventilation connection in underground which work was performed by the labour- ers of the cooperative society in the year 1992 itself and thereafter no contract work was available to be awarded to the aforesaid cooperative society and all the workmen employed by the aforesaid cooperative could not be engaged at Chasnalla colliery. Thus, the Managing Committee of the Cooperative Society ter- minated the services of the workmen engaged by them In the sifotesaid contract work which was purely a temporary job. The Cooperative Society maintained a Foim 'B' Pcgister as per provisions of Mines Act in respect of all the persons employed by them on con- tract job and that register will prove that the contract labourers hnd worked for a very temporary period. The management has denied that 'the concerned per- sons have put in attendance for more than 190/240 days in a calendar year. According to them, the man- agement lias got no requirement to engage the con- cerned persons and the company has got excess work force, therefore, they cannot be engaged as permanent employee of the management. In the circumstances mentioned above, they have prayed to give an award against the demand of the union.

5. Thus, from the pleadings of the parties it appears that the management has admitted that some of the persons vthose names find place in the reference order had worked as cooperative workmen on contract job for few months in the year 1991 and also in the year 1092 and thereafter they have not worked in any capa- city. The management has not specifically pleaded as to who arc those few persons who have worked as contract labour. They have not specifically even denied that such and such persons have never worked as cooperative workmen for a contract lob therefore, the plea of the management on this regard is a vague denial what tan*amounts to admission. The first objection raised by the management is that no relationship of employer and employees existed between the concern- ed persons and the management of Chasnalla Colliery. Therefore, the present reference is bad. Therefore, the first question for decision in this reference is whether there is relationship of employer and employees in between the concerned persons and the management of Chasnalla colliery of M/s. IISCO. Then the next question will be whether the concerned-persons have been working into underground mine and doing the prohibited category and permanent nature of job like • drilling in coal and loading of coal into coal tubs into the underground mine. If so, are thev entitled to be regularised as permanent employees of the manage- ment and with what relief.

fi. Now, let us first of all see whether thf sponsoring union has been nble to prove thnt the relntionship of employer.and employees exists between the concerned, persons and the management of Cbasnalla colliery of1814 THE GAZETTE OF INDIA : APRIL 21, 2001/VAISAKHA 1, 1923 [PART II—SEC. 3(ii)] and some other documents, but the management did not file the original documents, although xerox copy of the same have been filed by the sponsoring union. The management has not even proved destruction of Form 'C register. Thus, I find that the management has deliberately withheld Form 'C register which is the Attendance Register of underground workmen in a mine. The management has not even examined the Attendance Clerk to say that the xerox copy of Form "C register which has been filed by the sponsoring union is forged and fabricated documents. Therefore, il is apparent that the management has withheld the original Form 'C register and xerox copy filed by the sponsoring union has not been shown to be forged and fabricated documents. From Form 'C register which has been marked Ext. W-l series 1 find that the union has filed Form 'C register from 31-5-93 to 31-12-93 showing that the concerned persons have been working into underground mine every week ex- cept Sundays. Thus, I find that in the year 1997 the concerned persons have worked continuously for 7 months. From Form 'C register of the year 1994 it appears that the concerned persons had been working from 1-1-94 to 21-5-94 continuously every week excluding Sundays. Similarly from Form 'C for the }ear 1995 it appears that the concerned persons had been working from 25-9-95 till 30-12-95 continuously every week excluding Sundays. Again from Form 'C Register of 1996 it appears that they have been work- ing from l-i-96 continuously every week excluding Sundays upto March, 1996 and again from 25-8-96 to 4-1-97. Similarly, the concerned workmen have worked from May, 1998 to December. 1998 and also from January, 1999 to April, 1999. The concerned persons have also filed wage slips to show that they have worked from January, 1992 to December, 1992. Furthermore the sponsoring union has filed 29 challans which have been marked Ext. W-2 series from which it appears that coal drill, coal drill machine, stone drill' repair, have been issued in the name of Motinagar Kamgar Sabayog Samiti Ltd. in the years 1995 to 1998. From these documents it is apparent that the concerned persons have been working into underground mine at Chasnalla colliery right from the year 1992 to April, 1999 continuously every week excluding Sundays and their attendance in a calendar year appear to be more than 190 days. According to the manage- ment, Motinagar Kamgar Cooperative Society was en- trusted with petty contract of ventilation stopping and removal of debris in the years 1991-92 which ended in the year 1992 itself and the work was of casual nature. Thereafter no contract work has been assigned to the said Cooperative Society. The management has filed work order of the year 1991 to support its plea, but from the documents produced by the sponsoring union it is clear that even after the year 1992 the concerned persons have been working into under- ground mine for which the management has not produced any paper to show that they were employees of any cooperative society or a contractor. Therefore, in absence of any such paper it must be inferred that the concerned persons have been engaged by the management and therefore there is direct relationship of cmn'oyer and employees between the management and the concerned persons.

M/s. 1ISCO, The sponsoring union in order to estab- lish its case lias examined WW-1 Dhananjay Ojha, one of the concerned persons, who has deposed on behalf of all the concerned persons. He has said that they are working at Chasnalla Colliery from the year 1990 into underground mine and they do work, such as, making holes by drill machine and insert detonaters inside holes and thereafter Mining Babu makes blast into the underground mine. Besides these they lo;id coal into trolly and push the trolly for forward transportation, He has furthei said that they receive cap lamp from the Cap Lamp Stores and their names are mentioned in the Cap Lamp issue Registers maintained by the management. He has further said that they receive implements for work from the Stores of the mines and their attendance is marked in Form 'C Register at the Attendance Office. He has further said that they work into underground mines as per instruction of Mining Babu and their work is being supervised by Mining Babu and the Manager of the colliery. He has further claimed that their attendance during a calendar year is more than 240 days and their wages are paid by Labour Officer, S. S. Rahman. He has also produced some xerox Copy of Form 'C Register maintained by the management under the signature of Attendance Clerk, Sri Tripathy which has bceu marked Ext. W-l series. He has also filed challans issued to them for repair of implements granted by the management which have been marked- Ext. W-2 series. He has further said that they have been given vocational train- ing by the management and he has produced letter by which they were sent for vocational training which has been marked Ext. W-3. He has said that they are working continuously from the year 1990 till date. In cross-examination however he has stated that they have not been given appointment letter, Identity Card or pay slip as that of permanent employees. From the documents filed by the Union, Ext. W-l series it appears that the union has filed xerox copy of Form 'C register for the years 1993, 1994, 1995, 199*, 1998 and 1999. It has been stated that this Form 'C register has been maintained by the management by the Attendance Clerk, one Tripathy, but the manage- ment has not examined any person to say that the company has no attendance clerk by name Tripathy nor they have produced the Attendance Clerk, Sri Tripathy lo deny the genuineness of Form 'C register which have been marked Ext. W-l series. The witness of the management, MW-1—M. P. Sinha who is Asstt. General! Manager and working at Chasnalla Colliery from the year 1975, has admitted that whoever goes into underground mine his attendance is marked in Form 'C Register maintained by the management, In Form 'C register name and designation of the persons " who enters into underground mine is noted and his time and exit is noted in that register. This register is maintained as per Mines Act. He has furthsr stated that he could not say if this original register was called for from the management, but the management did not file. From the record it appears that the sponsor- ing union has filed a petition on 3O-9--Q9 and called for the original of the document from the management. A direction was given to the management to file the original of Form *C register for ihe periods 1993, 1OQ4 j 9Q5. 1996 and 1997 alonewjth muster roll for the periods 1992, 1998 and 1999 and notice for voca- tional, trrmvnr and allow slips for underground job and lefte'r for allotment of Provident Fund Account

7. Further it appears that although the manage- ment has pleaded that the concerned persons work- ing as contractor's labourers under Motinagar Kam- ms

9. Now, having come to a finding that the- concern- ed persons are the workmen of Chasnalla colliery doing the job of prohibited category, like drilling in coal and loading of coal, making hole into under- ground mine in permanent and perennial nature of job, therefore they are entitled to be regularised as permanent employees v>f the management of Chas- nalla colliery as MinerjLoader.

10. In the result I render—•

Award

That the demand of the sponsoring umen for re- gularisation of the concerned persons in the perma- nent employment of management's Chasnalla colliery and payment according to wages fixed by NCWA, for the post of Miner]Loader is" justified. But con- sidering the fact that M|s. TTSCO is incurring heavy loss they shall not be entitled fos back wages. The management is directed to implement the award by regularising all the concerned persons, Khapa Man- jhi and 34 others named in the order of reference within 30 days from the date of publication of the award as MinerjLoader failing which the concerned persons sh'ill be entitled to wages of Mincr]Loadcr from the date of publication of the award.

SARJU PRASAD, Presiding Officer

New Dalh\ the 27th March, 2001

S.O. 837.—In pursuance of Section 17 of the In- dustrial Dispute Act, 1947 (14 of 1947), the Central Government heteby publishes the .uvard of the Central Government Industrial Tribunal No. I, Dhanbad as shown in the Annexure in the Industrial pispute be- tween the employ.:ts in relation to the management of M/s. BCC Lid, and their workman which was received by the Central Government on 27-3-2001.

[No. L-20012/341/93-lR(C-I)l S. S. GUPTA, Under Secy.

ANNEXURE

JiFFOkF THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO I AT DHANBAD Sahayog Samiti Ltd., but they have neither plead- ed nor proved that the said Cooperative Society was possessing any licence. It is by now settled princi- ple of law that of establishment of the principal employer is not registered under Section 7 of the Contract Labour (Regulation & Abolition) Act and the contractor is not halving licence as provided under Section 12 of the said Act then the contractor's work- men shall be deemed to be employees of the princi- pal employer. In the present case the management has neither proved nor pleaded that the said Co- operative Society wtrch was a contractor was having any licence granted under Section 12 of the Contract Labour (Regulation and Abolition) Act. There- fore, the concerned persons must be deemed to be employees of the management of Chasnalla colliery by implication as well as the well settled principle as enunciated above. To support this view a reference may be made to Gujaiat Electricity Board Vs. Hind Mazdoor Sabha reported in 1995 AIR SCW 1942 and Air India Statutory Corporation case 1997 Lab. I,C. 365. The management has only examined one witness MW-1 M. P. Sinha who has filed the work order to the said Motinagar Kamgar Cooperative Society, Ext. M-l is tender letter, Ext. M-2 is the work order and Ext. M-3 is the registration certifi- cate of the Cooperative Society. He has also pro- duced one certificate of legislation under Section 7 of the Contract Labour (Regulation & Abolition) Act with respect to Chasnalla culliery and one Form 'B¹ Register maintaining by the said Cooperative Society in which name of almost all the concerned persons find place. The management has not exa- mined either the Attendance Clerk nor they have produced Cap Lamp Issue Register nor they have produced any Mining Sirdar or Manager of the colliery to deny the fact that the concerned persons have not worked after 1992. They have not filed any paper to show that any contract work was assign- ed to the said Cooperative Society after 1992. But from the documents- filed by the sponsoring union it is clear lhat the concerned persons have been work- ing right from 1992 to April, 1999 regularly in the job of drilling in coal, loading of coal in trolly and pushing the trolly into underground mine which are admittedly prohibited category of job and there- fore as per principle decided by the Hpn'ble Supreme Court in the case of Air India Statutory Corporation Vs. United Labour Union reported in 1997 Lab. I.C. 365, the persons engaged in prohibited category of job in which engagement of contractor has been prohibited, the workman doing. such job will be deemed to be workmen of the principal employer and they shall be required to be absorbed and regu- larised in the permanent employment of the principal employer. The concerned persons have categorically stated that payment of wages was being made by the Labour Officer of the company, but the management has tiot examined him to refute this claim. There- fore, it must br inferred that the management has withheld the Labour Officer otherwise his evidence would have been against the management.

Tn the matter of a reference under Section 10( I ) ( d ) ( 2 A) of Industrial Disputes Act, 1947

Reference No. 230 of 1994

PARTIES;

Emnlnvers in relation to the management of Amlabad Colliery of M/s. B.C.C. Ltd. 8. From the discussions made above, I find that there is relationship of employer and employees in between the management of Chasnalla colliery and the concerned prrsnns and therefore the reference is not bad. .

AND-

Their Workmen.

PRESENT:

Shri Saiju Prasad, Presiding Qrlicer.

APPEARANCES:

For the Employers: Shri H. NaLh, Advocate, For the Workmen: Shri D. Mukherjcc, Secretary, Bihar Colliery Kamgar Unioji.

STATE: .lharkhand. INDUS 1RY: Coal.

Dated, the I3lh March, 200 r

AWARD

By Order No. L-20012/341/93-1R (Coai-lJ dated the 31t>c August, 1994 the Central (Joveinincnt in the Ministry of Labour has, iii exercise ol the powers con- fened by clause (d) of sub-section (1) and sub-sec- tion (2AJ of Section 10 of the Industrial Disputes Act, 1947, relerred the iollowing dispute lor adjudication to this Tribunal:

"Whether the demand of Bihar Colliery Karngur Union that S|Shri Sohar Viswakarma upd 9 others (as pes-list annexed) should be treated as employees of Amlabad Coliieiy of M/s. B.C.C. Ltd. is justified ? If so, to what relief are the peit;ons .concerned entitled to 7" 2. The brief facts; giving rise to this industrial dis- pute is that Bihar Colliery Kaingar Union has raised this industrial dispute claiming thai Sohar Viswakarma and 9 others whose names iind place in the reference order dated 31-8-1994 had been performing perma- nent nature of job, such at>, winder, head gear, conve- yor belt, cleaning of conveyor and maintenance of safety machines continuously under the direct control and supervision of the management of Amlabad col- liery ol M/s. BCCL in the distiict of Bokaro. Accord- ing to them all the implements for execution of job were being supplied by the management. Their atten- dance was being maintained in Form 'C Register and Attendance Register and also in Cap Lamp Issue Re- gister. The concerned persons arc the employees of the management of M/s. B.C.C. Ltd. for all purpose. Their attendance in every calendar year was 190/240 days since 1981. But the concerned persons are being paid less wages than the wages prescribed in the NCWA. The concerned persons represented before the management for payment of proper wages then the management WU'J annoyed and the management stop- ped them from service with effect from December, 1991. Then the sponsoring union has raised the present industrial dispute.

3. The management of Amlabad Colliery of M/s. B.C.C. Ltd. in their written statement has submitted that the concerned persons were never employed by the management of Amlabad Coliieiy in any perma- nent nature of job and therefore there is no relation- ship of employer and employees between the- manage- ment of Amlabad Coliieiy and the persons. However, the management has admitted that the concerned persons were working in Rope Winder and for repair- ing of machineries etc. ns contractor's workmen engag- ed by M/s. Flcctro Mech. Corporation, Asansol.

According to them the management of Amlabad Col- liery of M/s. B.C.C. Ltd. assigned a contract work for installation and commissioning of Rope Winder and for repairing of machineries etc. on contract on contiact basis and the concerned workmen were engag- ed by the said contractor. I he contract work was purely oi temporary nature, l hc contractor left, the contract work of their own and therefore the contractor workers also stopped from doing the work. The man- agement has further admitted that the contractor workers vveip also issued cap lamp from time to time as per practice of the company. Similarly stores mate- rials were supplied for maintenance of the machines against the Store requisition slips. The management has submitted that it has got its own policy and ap- pointments are made through Employment Exchange following Government policy regarding reservation oE posts for Scheduled Caste and Scheduled Tribe. The concerned persons want to get employment of M/.s. B.C.C. Ltd. by back door method which will offend Articles 14, 16 and 19 of the Constitution of'India. The management has further pleaded that they have got surplus woik force, therefore, the management has no moral or legal obligation to regularise the concerned persons in its employment as permanent employees.

4. Thus f.'om I he pleadings of the parties it is appa- rent that the concerned workmen had been working from the yeai 1L>§.1 to December 1991 in the job of Koepe Winder and maintenance of machineries etc. But according to the management they were contrac- tor's workers engaged by a contractor, namely, M/s. Llectro Mcch. Corporation, Asansol whereas the spon- soring union has p'caded that for all purposes the concerned persons are the employees of M/s. B.C.C. Ltd.

5. The management has examined two witnesses. MW-1 S. D. Singh who has come to say that M/s. Electro Mech. Corporation, Asansol was £jven con- tract in the year 1979 and when this witness joined Amlabad CHliery in the year 1982 the work was going, or on contract basis. The contract was relating to installation and commission of Koepe Winder. But this witness has further said that the contractor did not complete (ne Work till December, 1991. Thereafter the said work was done departmental^. He has said that the concerned persons were engaged by the contractor. This witness has further proved one letter dated 11/12-5-93 under tjgnatuie of N. K. Singh, Agent of the colliery which has been marked Ext. M-l. In cross-examination he has admitted that cap lamp and othei equipments were supplied to the concerned workmen also when going inside the mine. He has said that tliLy were not supervising the work of those workmen, but ultimately he has admitted that under Mines Act and Regulations it is the competent authority who is to supervise the work inside the mine. He has further admitted that attendance of any person going inside the mine is noted in Form 'C register which is maintained by the colliery. The sponsoring union has filed photo copy of F o r m 'C register of the year 19S8 which has been marked Ext. W-l which proves that the concerned persons have worked for more than 240 days in a calendar year. This witness has said that he cannot say whether the contractor was having any licence and the establishment of Amlabad Colliery was registered under Contract Labour ("Regulation and Abolition) Act, 1970. MW-2 Baijnath Singh is the M

running in loss no order should be made for payment of back wages.

7. In the result, I render—

AWARD

That the demand of Bihar Colliery Kamgar Union for treating Sohar Vishwakarma and 9 others as emp- loyees of M/s. fl.C.C Ltd. is justified and they are entitled for absorption as permanent employees of M/s. B.C.C. Ltd. The management is directed to ab- sorb Sohar Vishwakarma and 9 others as permanent employees within 30 days from the date of publication ot the awaid failing which they shall be entitled for wages as prescibed under NCWA from the date of publication of the award.

SARJU PRASAP, Presiding Officer l i me Keeper of Amlabad Colliery, who has admitted that the concerned persons were engaged to do the work ni Ihe said mine, but they wc:e engaged by M / J. Electro Mecii. Corpoiation. He has acmutied liiai iz,xt. W-l is the register oi contractors wouters in Form C maintained by the management. Thus, from the evi- dence ot this witness it is apparent that the concerned persons were working into underground mine more than 240 days in a calendar year. Admittedly, the establishment ot Amlabad Coliiciy was not registered under the Contract Labour (Regulation and Aboli- tion) Act, 1970 nor the contraetor, M/s. Electro Mech. Corporation, Asansol is licensee. Therefore, in view of the settled principle ot law in absence of registration of establishment firm under Section 7 of the Contract Labour (Regulation and Abolition) Act, f970 and licence to the contraetor under Section 12 of the said Act the workmen even if engaged by contractoi shall be deemed to be the workmem of principal employer i.e. the management of Amlabad Colliery of M/s. B.C.C. Ltd.

New Delhi, the 27th March, 2001

S.O. 838.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award of the Cential Government Industrial Tribunal, No. 1 Dhanb?d, as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of M|s. B.C.C. Ltd., and their work- man, which was received by the Central Government on 27-3-2001.

[No. L-20012|207!92-1R(C-I)]

L-20012/28G|92-IR(CI)i S. S. GUPTA, Under Secy.

ANNEXLfRE

B E t O RE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO. 1 AT DHANBAD

PRESENT :

SJiri Sarju Prasad, Presiding Officer.

In the matter of an Industrial Dispute under Section 10(1 )(d) of the LD. Act, 1947

Reference No. 54 of 1994

Employers in relation to the management of Jcalgora Colliery of M|s. B.C.C.L. and their workman.

6. The sponsoring union has examined WW-i Sonar VishwakaiTna who has said that he alongwith others was working permanently at Amlabad Colliery since 1981 and on each calendar year they have worked for more than 240 days. They have filed photo copy of Form 'C register maintained by the management which is Ext. W-l and Cap Lamp Issue Register, Ext. W-2. They have ajso filed photo copy of issue slips ot stores showing that the work implements were issued to them. Thus, it is apparent that the concerned persons have worked for about ten years continuously in a permanent nature of job and according to them, they have not only worked for installation of Koepe Winder, but they have also been doing the job of maintaining conveyor belt and other machineries. Thus, from the materials available on record it appears that the concerned persons had been working in the under- ground mine of Amlabad Colliery regularly in perma- nent nature of job for last ten years under a so-called contractor which was not having any licence nor the principal employer was a registered firm under the Contract Labour (Regulation and Abolition) Act, 1970, therefore the concerned persons must be deem- ed to be the workmen of principal employer. The management has filed work order dated 13-11-97 which has been marked Ext. M2 to show that the contract work was given to the said finn but MW-1 has admitted that the so-called contractor leit the work incomplete and the work was completed department- ally. This shows that the said work continued even after the contractor has left the work unfinished. There- fore. I find that since the concerned persons weic working for about ten years continuously on a perma- nent nature of job and because the employer's firm was neither registered under the Contract Labour (Re- gulation and Abolition) Act nor the conti actor was having any licence the concerned persons must be deemed to be the workmen of the management. There- fore it is apparent that they have been illegally stopped from work from December, 1991 without compliance of Section 25-F of the Act and therefore the concerned persons are entitled for regularisation as permanent employees of M/s. R.C.C. Ltd. in Ambbad Colliery. But taking into account that M/s. B.C.C. Ltd. is

[Ministry's Order No. L-20012|207|92. IR (CoaW) datctd, the 18ih March, 1994]. Reference No. 117 of 19941818 THE GAZETTE OF INDIA : APRIL 21, iOOl/VAISAKHA _1, 1923 [PART II—SEC. 3(ii)] Employers in relation to the management of Jealgora Colliery of M|s. B.C.C.L. and their workmen.

[Ministry's Order No. L-20012|286|92-IR(CoaM) dated, the 6-5-94]

APPEARANCES :

On behalf of the BCCL.—Shri B. Joshi, Advo- cate.

On behalf of the IlSCO.-Shri R. S. Murthy, Advocate.

On behalf of the workman.—Shri S. N. Goswa- mi, Advocate.

STATE : Bihar. INDUSTRY : Coal.

Dated, Dhanbad, the 14th March, 2001

AWARD

The Government of India, Ministry of Labour in exercise of the powers conferred on them under Sec- tion 10(1)(d) of the I D. Act, 1947 has referred the following disputes to this Tribunal for adjudication vide their Orders referred to above.

The Schedule in Reference No. 54 of 1994

ing union all the concerned persons have been en- gaged to perform the duty for truck loading of coal at the depot of Jealgora Colliery in Lodna Area of M|s. BCCL from where coal is "being transported in trucks to Lodna Coke Plant in Bhowra Area in M|s. BCCL and wjshcry 'of Chasnalla colliery of M|s. IISCO. They are loading coal in trucks which is permanent and perennial nature of work within the premises of Jealgora colliery of M|s. BCCL continu- ously for more than 5 years and their attendance in each calendar year is more than 240 days. The appropriate Government i.e. the Central Government by notification under Section 10 of the Contract Labour (Rcgularsation & Abolition) Act, 1970 has been pleaded to prohibit engagement of contract labour for coal loading and unloading besides 4 other jobs by Notification dated 1-2-75. Thus the loading or unloading coal in truck is a prohibited category of job in which the appropriate Government has prohibited engagement of contractor or contract labour hut yet the management of M|s. BCCL and IISCO, is getting the work of loading of coal done in trucks, by ths concerned persons but their wages is being paid through contractor which is much less than the rate prescribed under NCWA. Since the concerned person¹; have been engaged in prohibited category of job, Therefore they are workmen of Mis. BCCL and they are entitled for regularisation witli the difference of a back wages as that of per- manent workman of the BCCL.

"Whether the claim of Shri Bihari Prasad and 54 ethers (as listed in the Annexure) en- gaged as contract labour at Jealgora Col- liery of M|s. BCCL and the management of M|s. TTSCO, for regularisation of their services is justified ? If so, from what date ?"

Schedule in Reference No. 117 of 94

"Whether the claim of Shri Diliari Prasad and 54 others (as listed in the Annexure) en- gaged as contract Labour at Jealgora Col- liery of M|s, BCCL and the management of M]s. IISCO, for regularisation of their services is justified ? If so, from what date ?"

2; In both these two reference cases a common question of facts and lawy are involved. Therefore, in both the cases a common Award is being passed. Both the cases have been heard analogously.

3. The dispute in Ref. No. 54|94 relates the ques- tion of regularisation of Bihari Prasad and 55 others as per list in the annexure to the order; who are en- gaged as contractor labour in Jealgora Colliery of M|s. BCCL and the management of M|s. IISCO. Similarly in reference No 117 of 1994 the dispute relates to regularisation of Shri Kubernath Ram and 44 others as per list annexed to the reference Order who were working through contractor M[s. R. B. Traders and Shri R. P Agarwal contractors of M|s. BCCL. In both the reference cases there are three common persons in SI. No. 53 Bholaram 54 Kuber- nath Ram and 55 Bhim Mimjhi in Ref. 54|94 finds place their name in SI. Nos. 13, 1, 40 respectively in Ref. Case No. 117 of 1994.

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7. Thus from the pleading of parties it is ad- mitted that M/s. BCCL has got a coal depot at Jealgora from where coal was being transported to Chasjialla coal washery of M/s. IISCO after pick- ing up foreign materials from {he coal like stone etc. It is also admitted t3iat one Ms. R. B. Traders were engaged a contractor for transporting the coal by M/s. IISCO. but according to Che management of M/s. BCCL the loading of coal was not being by manual labour rather the same was done by mechani- cal means and only in case of failure of electricity or failure of machines some manual labour might have been engaged which is permissible hi view of the amendment of prohibition by Central Govt. in the job of loading and unloading of coal by notifi- cation dt. 21-6-88. However, the sponsoring union has claimed that the loading work was being carri- ed out manually by the concerned persons under the . direct supervision and direction of the management of M/s. BCCL and for more than 5 years continuously and in every calendar year their attendance was for more tfian 240 days. Therefore, they are entitled for regularisation on the ground (flat they arc doing the permanent and perennial nature of job which is, prohibited by issue of notificatinn by The Central Govt. for engagement of contract labour. According to the concerned persons they are being exploited by fhe management by making less payment than the wages prescribed under NCWA and they and they are being shown as contractor labour but in fact they are the employees of M/s. BCCL.

8. Thus the points fb be considered in this case are whether the concerned persons were engaged in permanent or pcrenial nature of job of loading of coal in trucks i.e. the job in which engagement of contractor has been prohibited ? If so. whether fhey shall be deemed to be the workmen of BCCL. The next question to be decided is whether the concerned persons are entitled for regularisation as per perma- nent, employee of M/s. BCCL/IISCO ? If so, from which date and with which benefits.

FINDINGS

lame them because the BCCL has got its surplus labour, iuriher according to the management of BCCL 'here was Mine hliort fall in the production of ccking coal from the mines of Lodna Colliery on account of temporary set back due to outbreak of fire and omission of poisonous and noxious gases from one district of Mines which took about 3 to 4 months to bring the situation to normal. During that period i.e. from June, 1991 to September, 1991 suffi- cient quantity of coking coal could not be supplied to Lodnti Coke Plant from Lodna Colliery and dur- ing that period the management of Lodna colliery hud engaged a contractor Mjs. R. P. Agarwala to transport coal from Jealgora colliery to meet the demand of Lodna Coke Plant. The transporting job was confined to transportation through dumpers according to the need of coke plant and this was not a regular job. The contractor R. P. Aggarwala had engaged dumper which were being loaded with coal • at Jealgora by mechanical means and coal used to b; unloaded at Lodna Coke plant with the help of Hydraulic device fitted with the dumper. No manual labrur was engaged on the job of loading and un- loading of com in the process of transportation con- tract carried out between the above period i.e. from June, 1991 1o Sepiember, 1991. Further according to the innnn"ement it is true that by notification dat- ed 1-2-1975 loading and unloading of coal was a prohibited category of job in which the Central Gov- ernment by notification issued under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 has prohibited engagement of contract labour but the notification wgs subsequently modifi- ed by a subsequent notification No. S.O. 2063 dated 21-6-88 in which the engagement of contract labour v/as permitted on loading of coal where there is mechan'cal or electrical failure bringing a hault to the mechanical loading of coal into trucks or railway wagons and also permitted engagement of contract labour on loading of coal in case of irregular sup- ply of wagons by railway?. Thus the loading and unloading of coal was not absolutely prohibited ratfier the provision was relaxed by subsequent noti- fication hi case of emergency like failure of mechani- cal device either by electricity failure or mechanical defect or in case of irregular supply of wagons by railways. We are not concerned with the irregular supply of wagon in the present case because the cr.se of the sponsoring union is with Tespect to load- ing of coal in trucks or dumpers of transporting contractor M|s. R. B. Traders and R. P. Aggarwala. Therefore, at best the management can tfke place of exceptions only in case electrical failure or mechani- cal failure which must be for a temporary period. 6. The management of IISCO has alw filed its W.S. in which it has taken a plea that IISCO, has been made unnecessarily a party in the reference case because the claim rf the concerned persons is for regularisation in flic employment of M/s. BCCL. However, the management of TISCO, has admitted that they h aw engaged transporting confrac- tnr for Kinsport of coal from Jcalgora Colliery Coal depot of BCCL to Chasnalh coajl washery but thev have nothing 1,-i do with the loading of coal at Jcalgora Coal deoot an>1 the unloading was heinp done by mechanical means. Thus they have denied any lia- bility to re°iuari<^ the concerned workmen as loader in the e.mnWment of M/s. USCO. or payment of wages in accordance with the NCWA.

9. The management of M/s. BCCL has examined one witness who is MW-1 M-urlidbar Banerjee, a Senior Sales Officer at Bhowra Area. He has come to s;iy that Jealgora Colliery falls under Bhowra Area and from Jealgora colliery ooal during the period was being sold to IISCO'S Chasnolla Coal Washery. The entire work of transportation of coal from Jealgora Colliery to Chasnailla Wnshery was being done by a contractor firm namely M|s. R. B. Traders. He has produced the work order issued m favour of R. B. Traders by M/s. TTSCO, which lhas been marked Ext. M-l. From perusal"of Ext. M-l it is apparent that the management "f TISCO has issued work order dt. 5-5-94 to M/s. R. B. Trader-; in which the rates have been prescribed for dour* different works. The first item ^f w^nk is loading of wa^lvd coal, vrriddl- ine rw coal from trmund stock info dumpers/truck (a> Rs. 6,00 per tonne. The next item is transported to v/asbed co.al/middlings from washery to Tasra siding ind loading into wagons and 3 work is loading of T;I"' enni i"t<> dumpers/fVucks at .T-nijsrirn 'Hnriln- dih/Bararec Colliery its transportation to Tasra1&20 THE GAZETTE OF I N D I A: APRIL 2 1, 2001/VAISAKH.A I, 1923 [PART I I ~ S E C. 3(ii)] siding or Chasnaild washcry after bicaking ^nd pick- ing. This contract was tor a period of 2 years, wifti eitcct from 5-5-94 to 4-5-96. Ihus from the work order it is apparent that transport was given work cider tor loading of raw Qoal into dumpers for a continuous period of 2 years. Prior tu tliis woik order also it is admitted that the transporting of coal was being entrusted to MA. R. B. Traders. Those work orders have not been filed either by the contractor or by MA. BCCL or by the marrage- ment of IISCO. In the work order there is no mention that the loading of the coal will be done by mechanical process. Thus the work order Fxt. M-l which has been filed by M/s. BCCL goes to show that the contractor was assumed job of loading of coal into truck for a oeriod of 2 years frm 5-5-94 to 5-4-96 and prior to this period also this work was being done by the said transporting company M/s. R. B. Traders.

1991 to September, 1991 but the management has not filed any paper regarding engagement of R. P. Aggarwala & Co. as transporting contractor. The management has suppressed those papers. Therefore an adverse inference had to be drawn against the management and it must be inferred that the management has suppressed those documents only because 'he same would have falsified its case that the coal were being loaded by mechanical device- and would have supported the case of the concerned persons that they were loading coal into truck and it was being carried not only to Chasnalla Colliery but also Patherdih Coal Washery of M/s. BCCL. The matingjmtnt has not further examined any other v/itness but in cioss-examination the management's witness No. 1 has admitted tha BCCL load coal en rail without charging for its KO.R, (free on rail), This F.O.R. is applicable to ell types of consumers. Theretore it must be applicable in case of loading of coal in frucks for being transported to Chasnalla Washcry of M/s. TISCO. In cross examination he has further admitted that he does not know if any of the concerned person had loaded coal from Jeal- gora Colliery from 1985. However, he has admitted that supervision of quality of coal loaded is done by the personnel of the management of BCCL.

10. MW-1 has further produced three letters from M/s. R. B. Traders which has been marked Ext. M-2 to M-2/2 from which if appears that M/s. R. B. Traders has written letter to the Project Offi- cer of BCCL av Jealgora Colliery that in view of work order dt. 28-12-92 for the transportation of raw coal from Jealgora Colliery to Clhasnalla wash- ery he has engaged about 20 trucks whose number find place in Ext. M-2, 24 trucks whose number find place in Ext. M-2/1 and 21 trucks whose number find place in Ext. M-2/2 for the job of transporting of the raw coal from Jealgora Colliery to Chasnalla ^ washery. A permission has been sought ftom the Project Officer for allowing those trucks for frans- portation of coal from Jcalgova Colliery to Chans- nalla washery. Thus it is apparent thaf daily atleast 20 trucks were plying in which coal was being loaded and transported from Jealgora coal depot of Chaus- nalla Colliery and Tasra Railway siding. The work order dt. 28-12-92 has nof been filed but it is ap- parent for similar work of transportation of coal from Jealgora Colliery M/s. R, B Traders were engaged as transporter including the job of loading of coail in trucks. One can easily imagine that atleast 20 trucks of coal were plying daily for" transporting of coal from Jealgora to Chasnalla washery or Tasra colliery siding and each truck might be carrying coal in number of trips. Thus this document* goes 'to show that loading of coal In trurVs and trans- porting of the coail to coal washcry was n permanent and perennial nature of job.

11. MW-1 has further produced two permits Ext. M-3 which is dt. 23-7-94 and M - V2 which is dated 21-6-94 from which if appears that 8000 M.T. of raw coals was to be transported in the month of June, 1994 and similar 8000 M.T. of raw coal was to be transported in the monfh of ,Tu1v, 1994. Thus this permits clearly show that in evdh month 8000 M.T. of raw coal was being transposed from Jeal- eora Colliery to Chasnalia* washery of M|s. ITSCO and naturally the loading was berna done manually in these fr>irl:s ri"hf from the verr* 1992 to 1996 Besides fhis the management has aho ad- mitted tlhat M/s BCCL has cnfraecrl transporting contractor M/s. R. P. A^RTwalia for

1821

the transporters. The wagesheets could have falsi- fied the cjtaim of the concerned persons but neither the management of BCCL nor the management! of [ISCO has filed any such wagesheets nor they have examined the transporting Agent to refute the ;laim of itoe concerned persons Therefore, I find hat there is sufficient materials on record to show :hat the concerned persons were working as con- tractor labours and were loading coal regularly for several years daily and therefore, they were engag- ed in permanent and perennial nptprR of nrohihifvl category of job. Therefore, u we appJy the princi- ple laid down by Hon'ble Supreme Court in the case of Air India Statutory Corporation Authority versus United Labour Union reported in 1997 Lab. I.C. Page 365 the concerned persons must be deemed to be the workmen of the M|s. BCCL because it is the duty of M|s. BCCL to get coal loaded free on truck as admitted by MW-1 wiho is the Senior Sales Officer of M/s. BCCL. Therefore thire is relation- ship of employer and employee beiwecn the con- cerned persons and the management of M/s. BCCL and therefore in view of the aforesaid rulings of the Hon'ble Supreme Court file concerned persons who were engaged in permanent and perennial nature of job in which contract labour was prohibited afrel jntitled to be absorbed and regularised as permanent workmen of M/s. BCCL and they are also entitl- ed tor wages of Group HI as prescribed in NCWA. But it appears that there is a reference of 100 work- men in both the reference case out of which 3 names are common as indicated above and the iponsoring union has filed only 89 biodata, photo- oraphs and affidavits of the concerned persons. Therefore, only the 89 persons whp have filed affidavit and bio data which hajs been marked Ext. W-l to W - l / 88 are only entitled to be regularised in the permanent employment of M/s. BCCL, Those sersons who have not been filed biodata, affidavits will not be entitled for such regularisation. Buf ;onsidering the fact that M/s. BCCL in itself is runn- ing in loss, they will not be entitled tc any back (vages. However, they shall be entitled to be re- gularised in the employment of M/s. BCCL within 30 days from the date of publication of the Award and shall also be entitled for wages from that date.

In the result, the following Award is rendered :—

"The demand of the sponsoring union for re- gularisation of 89 persons of 100 persons whose name find place in the Reference order of both these reference case No. 54/ 94 and 117/94 in whose favour bindata has been filed marked Ext. W-1 to W-l/88 are entitled to be regularised in the nnploymenH of BCCL without back wages within 30 days from the date of publication of the Award and failing which fhe concerned persons in whose favour biodata Extf. W-l to W - l / 88 has been'filed shall be entitled to claim wages as per NCWA frnm t he date of publication of the Award." This is my advice.

SARJU FRASAD, Presiding Officer

l 1064 CT/20O1—13

New Delhi, the 27th March, 2001 S.O. 839.—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. 1, Dhanbad an shown in the Anneuue in the Industrial Dispute bet- ween the employers in relation to the management of M|s. B.C.C. Ltd. and their woikman, which was re- ceived by the Central Government on 27-3-2001.

[No. L-20O12|(102)|90-IR(C-n]

S. S. GUPTA, Under Secy.

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO. I, DHANBAD In the matter of a reference under section 10(1)- (d)(2A) of the Industrial Disputes Act, 1047.

Reference No. 226 of 1990

PARTIES :

Employers in relation to the management of Kedla North Colliery of M|s. B.C.C. Ltd.

AND

Their Workmen

PRESENT :

Shri Sarju Prasad, Presiding Officer.

APPEARANCES:

For the Employers • Shri D. K. Verma, Advocate, For the Workmen : Shri B. Lai, Advocate. STATE : JTharkhand. INDUSTRY : Coal Dated, the 12th March, 2001

AWARD

By Order No. L-20012(102)90-IR(Coa1-I) dated the 26th September, 1990 the Central Government in the Ministry of Labour has, in exercise of the powers conferred¹ by clause d11 of sub-section ( I) and sub- section (2A) of Section 10 of the Industrial Disputes Act, 1947. referred the following dispute for adjudi- cation to this Tribunal :

"Whether the two punishment both dated 18-10-88 by revert'ntj Raj Kumar Singh an M.V. driver to Cat. II as Truck Khalasii f ln IJGB GAZETTE OP INDIA; APRIt 21, 2001/VAISAKHA 1, 1923 [PA*T it-SBC. 301)] and forfeiture oi" his two consecutive annual increments respectively and the thkd punish- ment dated 2i|24-10-8S dismissing the workman and forfeiting a portion ot his wages other than the subsistence allowaace, me* out by the management of Kedla North Colliery is justilicd 7 If not, to what relief

.the workman entitled ?"

company. The concerned workman replied to lho chargesheet refusing the arfegation antf alleged that he is umou leader, therefore he haa been served vith lalse chargeshect, Ihe maagement did not find this icply satisfactory and again constituted an enquiry. Ihis time also the concerned workman did not parti- cipate in the enquiry, although he bad filed application to adjourn the enquiry OH (he ground that he is in jail custody. But the management proceeded with cx-partie enquiry and held the concerned workman guilty of the misconduot. In the result, the manage-* ment passed an order of stoppage of two increments of the concerned workman by letter dated 18-10-88.

3. The concerned workman was yet served with third charge-sheet dated 1-2-88 alleging that on 31-1-88 at 8 A.M. the concerned workman along with one Kamalde© Sharma of Kcdla and Ishwar Mahto of village Behura with 3 or 4 nttknown Rgrsons boarded in Trakker tried to stop the jeep of C. D. Singh, Dy. CME, Kedla Opencast Project. But Mr. Singh managed to proceed ahead in the jeep and closed hiiRself in the office of the colliery. But the concerned workman chased him, went into the office of the colliery, abused him and started throwing big stones with intent to break the door of the office. It is further alleged that when the security personnels tried to stop he took up revolver and tried¹ to inti- midate the security personnels. This time also the cocnerned workman submitted his reply denying the ^legation but the management did not find reply satisfactory and again constituted a domestic ftnquiry. This tkne the domestic enquiry was held in presence of the concerned workman vfao participated in the enauiry, cross-examined the witnesses of the manage- ment and also adduced as manv as R witnesses in his defence. Th© Enquirv Officer submitted report holding him gurltv and on that basis try letter dated 21|24-lO-88 the eoncemerl workman has been dis- missed from service with effect from 24-10-88.

io

irroanai nab on that basis held thai the domestic eiiquiriK! vvtic itur uiiu pi opt r u-Cdu^t; me IOUIU.JICU WUlKAllilil Wtii 111 JUU CUiilOuj JL Ui\- lii±jC VvilCil ijlCOlld. t-Hqmiy was aciu nc was unauie EO iaKe pan and uieiuiuiv, in iny UJJUU'.JJI, uitt puiuamiicui awaj."jeu by tne management on the basis ot such enquiry uuts not tiippvctr to oe juitiued. incision; i hnd ihat so jar cuuijjesnetJt tidied 29-1-86 is cqgceiutd tne e&quuy has Deeii conducted, m absence ot the con- • cciiuHi workman when ne v as in jail custody, there- lore on thac oasis tne putiishmuiat ot stoppage oi iwo increments appear to De unjustified.

if. i>o lor wv chargeshtast da^ed' 1-2- 8 if is concer- enquire into (he charges contained in three charge- sheets mentioned above, iiie manajgejnent conuuc- tea a rajr ana proper enquiry lo enquue imo ihc cnarges and' tiic hnquiry Umcer found the concer- ned workman guilty ui ull Die charges, therefore the management due to misconduct committed as alleged in charge-sheet dated 5-1-83 demoted him from M. V. orivcr Category-] V lo Truck Khalasi Cate- gory-U and due to commission ot charges as contained in chargesheet dated 29-1-88 two incre- ments were stopped and finally due to misconduct committed as many in chargeshest dated 1-2-S8 the management has dismissed the concerned workman with effect from 24-10-88. The management has further submitted that the concerned workman is incorrigible and he always misbehaves with the senior officers and therefore considering his past record the management has jrighily dismissed him from service. The management has further prayed to decide the fairness arid propriety of ths domestic' enquiry as preliminary issue which was taken up as preliminary issue. But after the documents were filed by the management, the lawyer of the concerned workman, Sri. J. P. Singh fairly conceded that the domestic en- quiry contftrcted by the management is fair and proper. Accordingly by order "dated 4-4-94 the domestic enquiry has l>ccn held to be fair and pro- per.

6. Now, since the fauness and propriety of the domestic enquiries have been decided in favour of the management the only question to be decided is whe-ther the finding: of the Enquiry Officer is just and if so, whether the punishment awarded by the management requires to be interfered by this Tri- bunal.

FINDINGS :

ned tnis tiiuuc tot; concerned workman, has appeared in Uit aoMchac enquiry ana has also adduced ins evi- dence in ins deienee. m rho cnargesneet dated 1.-2-88 mere aie tiiiee cnarges ; tne nrst is that he atongwith wome other persons wunteu to stop the jeep of C. U Singh, Uy. CMli, Kedla Opencast **rojeex, seconu charge JS mat lie aiongwith omers ttiased his jeep and went upto the othce of the colli- ery where C. D. Singh, Uy. C Mt has confined himserf aii"f at that tinie he was abused and some big stone was thrown to break upon the door with intention to assault Sri Smgh, The thim charge was that the concerned workman took out a rivolver and pun on the chest of A. K. Singh, Security Guard and i>. K. JF'andcy, Security Sub-Inspector and threatened them to kill them by firing strot. But the third charge of taking out rivolver and putting on the chest of A. K. Smgh and S.K. Paodey has not fcepn supported by A. K. Singh and S. K. Pandey. S. K Pandey. Secu- rity Sub-Inspector has clearly stated tlhaC the concerned workman did not Uareatend either him or his collea- gue. Abhoy Kumar Singh, Security Guard has said that an unknown person was holding tt pistal. He has not said that the concerned workman took out rivolver, pointed the same at the chest of either S. K. Pandey, Security Sub-lnspcctcr or this witness, A. K, Sin^h. Therefore, the allegation of taking out rivolver and pointing out the same in the chest of S. K. Pandey and A. K. Singh is totally incorrect in the F.I.R, which was lodged with the police. There- foie, incorrect allegation of pointing a rivolver was levelled against this concerned workman. The management's witnesses, S. K. Pandey, A. K. Singh, Guptcswar Singh have all supported the other two charges. The concerned workman has examined cjght defence witnesses. The evidence of those wit- nesses does not disprove the charges levelled against him. However, it is clear that the concerned work- man was having trade union activities and he was \entilating the grievances of the workmen and was putting forward demands on their behalf and he was over zealous to put forward the problems of his fellow workmen antf for thai he v"as a bit rude. Therefore, I find that the management has been able to establish two of the charges levelled in charge- fheet dated¹ 1-2-88, Howevere, they have failed to establish the third charge which was a serious charge (if takiiiL' out a rivolver and to intimidate to the secu- rity personnels. Therefore. T find that tre finding of the Encuiiry Officer r.'M,nFa'in

9. Since we have com; tn a nndirw* that thf coo- rr-rried workman IKIS first of nil nv\bcn:vwd with Ihc General Mnn^'fv on 4-1.-SS. TlKrciftcr. he W:P chargesheefed for misbehaving with the Supdt, of 7. So far the chargeshect dated 5-1-85 is concer- ned I find that ffie management has given sufficient notice to the concerned workman, thereafter had proceeded with- ex-pafrte enquiry and in the domes- tic enquiry one R. N. Mazumdar, Personnel Officer, Kedla Opencast Project gave bis written statement supporting the allegations levelled in the charge- sheet,. They have also examined S. K. Pandey, Security Officer, who has given his written statement supporting the allegations. The General Manager, Sri C. Prakash has also given his written statement and all these witnesses have not been challenged by cross-examination as the concerned workman did not take part in the domestic enquiry inspite of notice of enquiry to him. Thus, I find that there is sufficient materials to hold the concerned workman guilty of the charge dated 5-1-88, and there is no- thins (o hold that the report of enquiry is perverse. Similarly, if we go through the domestic enquiry file relating to chareesheet dated 29-1-8$ we find that the concerned workman did not take part on the ground that he was in jail custodv, vet the manage- ment has recorded statement of H. R. Saha in the domestic enquiry. One Ram Naresh Sharma has also Riven his statement who have not been cross- examinee! as the concerned workman did not take part in the domestic enquiry on thi cround that he was in iail custody. In mv opinion, althoup.li the lawyer of'tlw concerned workman has concec-ded the fairness of all the three domestic enquiry and this18:4 THE GAZETTE OP INDIA;APRIL 21, 2001/VAlSAKHA 1, MAS [PART 11—SEC. 3(ii)J Mines and Project Officer and lastly he was charge- sheeted tor trying to stop the jeep of Dy. CME in order to ass^alt h m because a day prior to that \ occurrence some dispute had occurred between Dy. CME und the concerned workman. But, in my opinion, the capital punishment of dismissal appears to be a bit excess punishment. The concerned work- man has suffered for last 12 years and has forced the ordiall of remaining without employment and also in defending a criminal case in which he has been acquitted, the reinstatement of the concerned¹ work- man without back wages and consequential benefits will be sufficient punishment; alongwith an under- taking by the concerned workman to properly behave with the senior officer and not to indulge in any activity subversive of maintenance discipline and decorum in future. Therefore, in my opinion, in place of all the punishments including the punishment of dismissal the reinstalement of the concerned work- man without back wages and other consequential benefits on his giving an undertaking to properly behave with the senior officer and will not indulge in any subversive activjties which is against the maintenance of discipline and decorum, then it will be sufficient punishment to the concerned workman.

10. TherefoiO, I render—

AWARD

That the action of the management in reverting the concerned workman by reduction of rank, stoppage of two Increments and dismissal is an excessive punishment. The ends of justice will meet if the concerned workman is reinstated into service without back wages and consequential benefits on his giving an undertaking that he will behave pro- perly with his supeiiors and will never indulge in any activity subversive to maintain discipline and decorum. The management is directed to reinstate the concerned workman as mentioned above on his giving undertaking within 30 days from the date of publication of the award,

SARIU PRASAD, Presiding Officer New Delhi, the 11th April, 2001 S.O. 840.—Whereas the Central Government satisfied that the public interest requires that the services in the , Coal Industry which is covered by item 4 of the First Schedule to the In- dustnal Dispules Act, 1947 (14 of 1941), should be declared to be a public utility service for the purposes of the said Act;

Now, therefore, in exercise of the powers conferred by sub-clause (vi) of"clause (n) ot section 2 of the Industrial Disputes Act, 1947, the Central Govern- ment heicby declares with immediate effect that the said industry to be a public utility service for the purposes of the said Act for a period of six months.

[No. S-11017|2|97-IR(PL)]

H. C. GUPTA, Under Secy.

New Delhi, the 28th March, 2001 S.O. 841.—In pursuance of Section IV of the In- dustrial Dispute Act, 1947 (14 ot 1947), the Central Government hereby publishes' the award of the Cen- tral Government Industrial Tribunal/Labour Court, Cliennui as shown in the Annexure in the Industrial Dispute between the employers in relation to the man- agement of Karur Vysya Bank Ltd. and their work- man, which was received by the Central Government on 27-3-2001,

[No. L-12012j313|2000-IR(B-I)] AJAY KUMAR, Desk Oilicer

ANNEXURE

BEFORE THE CENTRAL GOVCRNMEN V INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, CHENNA1

Wednesday, the 14th March, 2001 PRESENT :

K. Kavthikeyan, Presiding Officer.

Industrial Dispute No. 78/2000

BETWEEN

The General Secretary,

Karur Vysya Bank Employees Union, Bangalore.

. . Claimant/I Party, IS-iD

unu LjwMdiiwiL worK loi yedis togvmei, no nas not AND

IC^UIUIIJIL.U u uu IIUL jJuiU pi.O]Jvi wu^wa, 111 ojjHt. UA.

ii"Vwlul UWUlanUO U% ulC J. C-LILIUUCX L/-U-IUU, Allvit/J.OIL',

mo riAUjojibi i,jutua i i u s cu u ic jinaUiuuU nisjJiut i o-

ihe Chairman, karur Vysya JUank Ltd., Kiuur. . .Management/IX i\ui>.

JjUlUill^ il^UldiiSuUUU UX lllk^ bUllbVlll^il VVOlKllltili ctUli

LiU^C VJlllCl WOiiVUll-ii/ lllk.lllUk.lb. r l i lU it JJlUiOlifiOU CUll-

APPEARANCES :

For me Claimant : M/s. D. Haupaianthaman V.

Ajoy Ktiose, Advocates.

For the Management : M/i. I. S. Gopalan and

Co., Advocates..

REFERENCE :

Order No. L-12012, $13/2UU0jLil{h-l) dated

29-y-2U0U Government 01 India, Mnnstiy ut Labour, New Delhi.

This dispute on coming up bctore me iui iinal hear- ing on this day, tne 1st March, 20U1, upon perusing the reference. Claim Statement, Counter Statement ana other material papers on record, in the absence of oral evidence on either side, documental y evidence lot in. by the consent of either side, and upon hearing the arguments o! the counsel tor the Claimant Sri D. Hariparanlhaman and the counsel tor the Management Sri T. S. Gopalan and this dispute having stood over till this date for considei ation, this Tribunal passed the following:—

AWARD

This inference by the Central Government in-exer- cise of the powers conferred by Clause (d) of sub- jection (1) and sub-section 2(A) ot Section 10 ol Industrial Disputes Act, 1947, in respect of dispute between Shri N. Paianisamy, Workman and the Chair- man, Karur Vysya Bank Ltd., Karur, Management, mentioned as Schedule appended to the order of reference.

The Schedule reads as follows:—

"Whether the dismissal of Shri N. Paianisamy, sub-staff of Puduchatram Branch by the Management of Karur Vysya Bank is legal and justified 7 If not, to what relict is the workman entitled to 7"

On receipt of this reference, this industrial dispute has been taken on file of this Tribunal on 5-10-2000 as Industrial Dispute No. 78/2000. Both tbe parties to the dispute on receiving notices sent by this Court by Registered Post appeared before this Tribunal with their respective counsel and subsequently filed the Claim Statement and the Counter Statement

2. The averments of the Claimant in the Claim

Statement aie briefly as follows :—

uiiduuii, Hit FtiiuoiKi: union ana tin; ivca^oiiu^ui./ iviauageHi^iu iida cmcicu 11110 a aCLiioinerit uaieu Z6ih LsovaautL, LWI unuei aecuon I ^ JJ 01 tne Inuusiiiai iJiiipui.es ACL. uy mai aeuiexneni me seivitea ol tne concerned workman was legmansta irom i-z-iyy4 ana it was agicea to appoiru me conteinea worKinan as sub-bidit wiui elteti uoni l-l^-y/ on regmar oasi!> witu A basic 01 Ks. i.oUU. As per tne Seuieinenl, it no^ implementation import was suoiniiiea Derore loth December, iyy/, tne aeitiemenl wouia come mto force vvitn eliect trom ii'12-tyy7. Ihe Kespondent issuea a memo dated 18-i2-y8 to the concerneu workman alleging that the transfer ccrtihcate proauced by nun along wnn in^, applicuon uated 13-12-9/ was not a genuine one and aiso the particulars mentioned in the said dppiication regarding nis studies and age were not genuine. It is iuriher stated that he was olierod an dppuintment as a sub-staff only based on tjie miorma- tion lurmshed by him iri the application and based on the transfer certificate produced along with the appli- cation and the workman was called upon to submit his explanation within three days. By a letter dated 23-12-98, Lhc concerned workman requested the Res- pondent/Management to grant him thirty days time to submit his explanation. But the Respondent granted time only upto 5-1-99 by its letter dated 30-12-98. The concerned workman prayed for ten days time by his letter dated 4-1-99 to submit his explanation. How- ever, without giving any reply, and without passing any order on his request and the show cause notice dated 18-12-98 was pending consideration, the Respondent once again issued a, charge sheet dated 2-2-99 on the same issue, which is a clear case of mala-fide. The concerned workman submitted his explanation in his letter dated 6-2-99, but without considering his appli- cation, he was suspended from service by an order dated 3-3-99, with immediate effect. Mr. R. V. Gopala- krishnan and Mr. N, Chandrasekaran were appointed as Enquiry Officer and Presenting Officer respectively b> orders of the Respondent. By a letter dated 23-3-99, the Petitionei union categorically informed that the issuance ol charge sheet and suspension and the order- ing of enquiry against the concerned workman was without jurisdiction and contrary to the terms of Sec- tion 12(3) of Settlement dated 28-11-97 and requested the Respondent to revoke the suspension order and to drop the enquiry proceedings. But without replying to this letter, the Respondent proceeded with the en- quiry. In the enquky, the objections raised by the defence representative was not properly considered by the Enquiry Officer and the Enquiry Officer had readily accepted the contention of the Presenting Officer, re- veahng his biased attitude. In the enquiry, the Manage- ment has examined one witness and marked 11 exhi- bits. On the side of the defence, the settlement dated 25-11-97 was marked as Ex. Dl and written arguments were filed by both sides. The findings of the Enquiry Officer dated 9-6-99 was communicated to the work- man by the Management by letter dated 9-6-99. With- out properly analysing the charge and the evidence and without application, the Enquiry Officer has held that the charge was proved. The defence representa- tive submitted his comments over the findings of the The I Party/Claimant, the General Secretaiy, Karur Vysya Bank Employees Union (hereinafter referred to as Petitioner) has raised this industrial dispute espousing Ihe cause of the workman Sri N. Paianisamy. It is alleged in the Claim Statement that the said work- man Sri N. Paianisamy, concerned in this dispute was employed by the Managcment|/II Party, Karur Vysya Bank Ltd. (hereinafter referred to ns Respondent) as a Security on and from 1994. The said workman was a member of the Petitioner Union. The said workman was kept in service without issuing any appointment order by the Respondent. Though he was doing regular1626 T Ht GAZETTE OF INDIA: APRIL 21, 2001/VAiSAltHA 1, 1923 [PART II—SEC. 3(ii)J Enquiry Office? on behalf of the concerned workman by ttis letter dated 18-6-^9. Without properly appre- ciating the comments submitted over the findings of the fcnqniry Officer on behalf of Lhc workmaji and by lulling to see the misconduct under clause 1 9 ( 5 ) ( m) was not at all attracted and made out in the case, the Disciplinary Authority issued a notice dated 12-7-9-9 proposing to dismiss the concerned workman Sri N. Palarrisamy from service. By letter dated 17-8-99, personal hearing on the proposed purais-hment was postponed to 21-8-99. The concerned workman submitted his explanation over the findings of the Disciplinary Authority proposing to dismiss him from service during the personal hearing on 21-8*99. Though the Disciplinary Authority held the point that based on this document, the charge sheeted employee Was not employed in the bank and that it is in pursu- ance of Settlement with the Union is not denied, the .Disciplinary Authority dismissed the concerned work- man by an order dated 14-9-99 and treated the period of suspension as suspension only. The Disciplinary Authority declined to modify the punishment on the ground that the workman was under questionable inte- grity, which was not at all the charge and for which the workman was not given opportunity at all. Further, the Disciplinary Authorty failed to take into account the long unblemished past record of the workman and other extenuating circumstances in his favour. ThQ concerned workman, thereafter, prefejfr'ed an appeal before the Appellate Authority against the order of Disciplinary Authority stating that disciplinary action was against the terms of the Settlement and prayed to revoke the dismissal order and also prayed for leni- ency explaning bis family circumstances. However, V/ithout considering the contentions put forth by the workman properly, the Appellate Authority rejected the appeal and simply confirmed the order of the dis- ciplinary authority by an order dated 31-1-99. By a letter dated 28-10-99, the Workman requested the Petitioner Union to pursue the matter to get him re- medy. The Petitioner Union raised industrial dispute against the dismissal of Sri N. Palanisamy before tiw Regional Labour Commissioner, Chennai by an appli- cation dated 4-1-2000. The Respondent/Management tiled remarks on the statement filed by the Petitioner Union before the Regional Labour Commissioner. As the Regional Labour Commissioner could not bring out any mediation, he has submitted the failure report to the Government, which in turn, has referred the matter for adjudication by this Hon'ble Tribunal. The action of the Respondent/Management in dismissing Sri N. Pdlanisamy, sub-staff, from service is illegal, arbitrary and unjust. When the show cause notice dated 18-12-98 was pending, even without withdrawing the same, the issuance of charge sheet dated 2-2-97 by the Respondent Management on the same facts is mala- fide and. without jurisdiction. In the show cause notice dated 18-l2-98j no allegation against the workman was made to consider the misconduct. Hence, the Res- pondent 'Management was estopped from issuing a charge sheet once again making the same allegations and terming it as a misconduct. In spite of the objec- tions by the defence representative, xerox copies of documents were marked on the side of the Manage- ment In the enquiry, the letter and the Transfer Cer- tificate sent by the Headmaster were marked, without examining the author of the said documents. Thus, the Workman was denied opportunity to cross-examine the

author of those documents. Under such circumstances, the inquiry Uliicer was not coneci in aiiowing tnose document,) to be marked, i nc reliance made t>y the iiiiquny UOitei on tnose documents wiihoui examm- ing me auilioib of Uiose documents was perverse. Ihe Enquiry OiUcer hau lehcu on the documents wnich were not ina^ed in the enquiry tor Ms nndnigs. There- fore, the nnilings of the tnquiry Ofliusr is perverse auii biased. J he iiiiqu\y OrJicer, the Disciplinary Authority and the Appenate Authority taned to see that allegations made against the workman would not attract (Jlauso 1 9 ( 5 ) ^ 1) of the Bipartite Seitiemcul and that the misconduct under clause 19(5)(m) by the workman was not made out by legal and acceptable evidence, fhe Enquiry Uliicer failed to take into ac- count the relevant admissions made by MW1 in favour of the workman. I he entire disciplinary action was without power and jurisdiction, as it was violative of Section 12(3) of Settlement dated 28-11-97. In the Settlement dated 28-11-97, the concerned workman was regularised as a sub-stall without any reference to any educational qualification or age with effect from 1-12-94. The Settlement came into force with effect from 15-12-V7. Therefore, the services ot the workman was regularised in terms of the Settlement. There was no condition imposed lor the regularisayon of Sri N. Palanisamy as a sub-staff regardmg age or qualifica- tion. Therefore, the Respondent/Management cannot call for any documents or particulars regarding age or educational qualification. Further no educational qua- lification was necessary for the continuance of the service of Sri N. Palanisamy. Therefore, this will not amount to making of false statement in, any documents pertaining to or in connection with the employment in the bank. When the document and particulars said to have beeu furnished by the workman is not per- taining to his or in connection with his employment, the Enquiry Officer, Disciplinary Authority and the Appellate Authority committed a grave error in hold- ing that the charge under clause 19(5)(m) was proved, and thus they failed to apply their mind. The fact that the workman concerned was 44 years at the time of the' disciplinary proceedings is not disputed. This correctly coincide with the date of birth men- tioned in the application. If at all the Respondent/ Management hud any doubt regarding the age ot the workman, they ought to have sent him to medical board to ussess his age. Therefore, there is no reason or justification of the Respondent Management to dis- miss the workman from service. In any event, even assuming the charge is proved under clause 19(5) (m), the exUcme penalty dismissal amounts to legal victimi- zation as it is totally excessive and shockingly dispro- portionate, particularly when 14 years of long past record of the workman was unblemished. He was belonging to the last grade/sub-staff category. He was not holding any post of trust. He is now aged 45 years He has a big family to support except his employment there is no other source of income to sustain his family. He cannot find any alternate employment at this age. Therefore the Petitioner Union prays that Hon'ble Tri- bunal may be pleased to exercise the power under Section 11A ol the Industrial Dispute Act and to iirtcr- tcre with the punishment and reinstate the workman in service and direct the Respondent Management to rcintate the concerned stall with continuity of service, back wages and other attendant benefits.

r""ft.'

|3. The averments in the Counter Statement of the

Ribpontieut are briefly as follows :—

defended by Mr. S. Vyasaraj, an office bearer of the Petitioner Union. In the enquiry, Sri S. Bala- subramanian, Manager, Industrial Relations was examined. On 9-6-99, the Enquiry Officer gave his report¹ holding that the charge against llie concerned workman was duly proved and that he was guilty of the misconduct. A copy of the report of the En- quiry Officer was furnished fo the concerned workman and he was asked to make his comments. On 18-6-99 he gave his reply., On 12-7-99, a second show-cause notice proposing punishment of dismissal was issued k> the concerned workman. He was also asked to appear for a personal hearing on 24-7-99, Personal hearing was ultimately held on 21-8-99. During the personal hearing, the concerned work- man confessed his guilt and pleaded for lenience. After considering his representation dated 14-9-99, the Disciplinary Authority passed orders dismissing the concerned workman. The appeal of the con- cerned workman against the order of the Discipli- nary Authority was also dismissed. The dismissal of tihe concerned workman was for serious act of misconduct and the said dismissal is perfectly valid in law and justified. Hence, the issue referred for adjudication should be answered against the Peti- tioner. The appointment of the concerned workman was not automatic or got regularised by the Settlement. It is not correct to say that the Respondent bank has no jurisdiction fo initiate action against the concern- ed workman for having produced false document. The conduct proved against the concerned workman attracted Clause 19.5 (m) of the Bipartite Settlement, What the Disciplinary Authority held was thaf the conduct proved against the concerned workman re- flected on his integrity and honesty and therefore, misconduct cunnot be viewed leniently. The memo dated 18-12-98 was only to seek clarification and it was not a chargesheeC Therefore, there was no need to mention any misconduct. Since the con- cerned workman did not give a reply to the letter da+d ]"-5-98. after waiting for more than a month, a chargeshect was issued on 2-2-99. In the enquiry the concerned workman was assisted by an office bearer of the Petitioner Union and no objection was raised for making of any other documents. In fact, only after verifying the original of the docu- ments, photostat copies were marked. The original transfer certificate was returned to the concerned workman. When the concerned workman had ad- mitted that he had produced false document, it mattered whether the documents were marked through the authority or the person who received the documents. It is not necessary fo examine the Headmaster. Mr. S. Batesubramanian, Manager. In- dustrial Relations who had called on the Headmaster of the school and collected the information was competent to give evidence and his evidence has been accepted by the Enquiry Officer. So far as the concerned Workman has produced false docu- ments, he has forficted his right to continue in em- ployment nnd he has rightly dismissed from service and his misconduct of the concerned workman was grave in nature and warranted the punishment of dismissal. If cannot be said to be harsh and exces- s;ve and fherc is no scope to interfere with the punish- ment. It is, therefore, prayed that this Hon'ble Court may be pleased to make an award upholding the dismissal of the concerned workman.

4. When the matter was taken up for enquiry, the counsel on cither side gave eon-.enl for murk ing the xerox copies of the documents produced on the side of the Management, except OIIL¹ (.''lcurncnt. Accord- ingly, 30 documents have been marked as Ex. Ml to M30 by consent. The arguments advanced by the learned counsel on cither sid^ were heard.

5. The point for my consideration is 'whether the dismissal of Sri N. Palanisamy, sub-staff of Fuduc- hatram Branch by the Management of Karur Vysya Bank is legal and justified ? If not, to what relief is The workman entitled to ?'

Point

M20 has given a finding that the chargesheeted em- ployee has to submit the application as prescribed by the bank for seeking employment and on the basis of which the Management wilt issue a letter of appointment. But the Appellate Authority has stated in his order Ex. M23 that the employee should bit given employment as per the understanding re- ached with the Union and accordingly he was also absorbed in the permanent services of the bank and subsequently he was advised to submit necessary ap- plication for employment as per office rules for office records. So the submission of the application of the concerned employee is not a prc-requisite for regularising his service by the- Respondent Manage- ment as per the Settlement entered into under Ex. Ml. So, that being the case, no educational qualifica- tion or.no certificate is required to be filed by the concerned employee and the application was not furnished for employment and the concerned, work- man was not seeking any employment by giving that application. So the false information furnished by the concerned employee cannot loom large to consi- der it a grave misconduct to warrant the punish- ment of dismissal from service. He would further, argue that he admits that Ex. M3 is the xerox copy of the transfer certificate. The concerned employee has enclosed along wito his application Ex. M2 and it is not a genuine one. As it is stated by the Discipli- nary Authority in his communication dated 12-7-99 Ex. M23, the concerned employee is not derived employment through fte application. So under such circumstances, as it has been pleaded by the con- cerned workman himself in his representation to the Management the case of the concerned, employee may be dealt with leniently by showing mercy, tak- ing into consideration of his best services, age and family environment.

1829 5. The learned counsel for the Respondent would argue that Bx. M3, the. Iransfer Ceitrjicute pro- duced by Cnc concerned employee along wi'h Ins application Lx. M2 is doniitlouiy a ijJsc ^Citi^au. |It is nut d talw dociiiaeiit but a torged uocu- m c n. ih's has bern proved by LA. M/ i^ueJ b> Ithc uuaUmailer or Government High Sthcol, Kold,.- kudi, with an enclosure or the ong,ndl lrai.srcr iCertifkdte bearing the sanjc serial number le>8/ 97-y". Nobody will tendei a forged aociur^nL without any piupose or without havmg an> benefit out oi the same ior himself. Here, hi this 1 ranker Certi- ficate the age, educational qualification and other parti- cular. na\o t>e"-n given, ^hen a doubt ujjscd. with legard to this Trans'ci Ceitificale m the inind of the Management, they have verified the , me by an enquiry through one Mr. Bahsjbrarnanian, Manager, Industrial Relations, with the Headmaster of the Government Higher Secondary School, Kolakkudi and got a lettei from him that the Transfer Certificate No. 168|97 wuh admission No. 3342 purported to hx>c K .n , ,-iid by the School and produced by the concerned woikman, related to one Mr. Selvaraj, which was ^sued on 14-7-97. By doing so, the concerned workman has used the fabricated the document, knowing fully well that he is using a false document as a genuine one and thereby made the Management to beheve it as a genuine document to act upon with lCgard to his employment. It anv*unh> to a criminal oJfence undei Indian Penal Code Section 471 (1FC). When it was found out, the concerned Workman himself has ad- mired in his letter dated 6-2-99 to the Chief Manager, 1PAD, Karur Vysya Bank 1 td. It is iin encltouie 'o FK, Ml 3, forwarding letter fror the Manager of Puduchatram bianch of Karur Vysya Bank Ltd. So ifrom this and also fr nn the admission made by the [concerned emplojcc before the Enquiry Officer it is evident that he has commuted such misconduct and it clcraly estabhsh that ll.e concerned employee has done sc, knowing fully well that it is a fradulent act. of production of fabricated document and us<.d that forged document as a genuine for the Management to |act upon in respect of hi?, employment If really the [concerned employee has no advantage to derive from one such document, (here i" no reed for him to pro- duce that fabricated document nnd thereby comrr'i'cd this fradulent act In Ex Ml? chirp'sheet, it has been clearly stated that if the misconduct mentioned therein is proved the concerned "'niVmn is 1 ^bV to he imposed wi'h jny ""•! tlii Dunishmcnts indicateJ in para 19.6 of the B i p a ^e Settlement as omrided by paragiaph 21.4 of the Settlement dalcd H-2-95 So vnjer such < ircumrtinces, rons^derinp, all these aspects. 1n inW- bw. Sn, this Hnn'hle Tribunal Irvi no SCOTV fcrp with the puni"htnert import' by the Re^orifl^nf' Nfa'ifiwmcnt a n m ,t the concemrd workman bv px^r- .•isin" its direretinn vr)d

,-thr Sim-c-nc C(?"ft nidPCTti**'* rfTVTf'^ "s 1n ⁰ /¹ (n^ TTT 8S" Nhv¹"" 'V KT7RAI,\ SOTVp^H FY- | TB ^CTTONS I TD an.l \ UNNTK^TS"NAN ft

Witnesses Examined :

On cither side : NONE

Documents Marked.

For Claimant | i Party : NIL

Fw Management! H Fatty :

Ex. Ml 28-11-97 : Xerox copy of Memorandum Settlement under Section 12.(3) r.w.s. 18(3) of I.D. Act between the menag^inent and petitioner unu'i.

Ex. M2 13-12-97 : Xeiox copy of application submitted by N, Palanisamy in the pres- cribed prororma

Ex. M3 12-12.97 : Copy of transfer certificate bearing S. No. 168197-98 admission No. 3342 purported to have been issued by Govt. High School, Kolakkudi.

Ex. M4 22-11-97 : Xerox copy of letter from Manager, Karur Main Branch tc Head Office Gated 22-12-97 forwarding applica- tion of petitioner.

Ex. M5 30-12-97 : Xerox copy of order of appointment bearing reference PAD[PP[ 1152[97 tit. 30-12-97 issued to Mr. N. Palanisamy.

Ex. M6 4-12-9S : Copy of letter No. PAD|PF| 98 issued by Manager, IR of the Bank to Head Master, Govt. High School, Kolakkudi seeking clarification.

Ex. M7 4-12-98 : Xerox copy of clarification letter giver by Head Master, Govt. High School, Kolakkudi along with, copy of genuine transfer certificate.

Ex. M8 18-12 98 : Xerox copy of memo PAD|

12|98 issued to N. Pahnisamy.

Ex. M9 23-12-98 : Xerox copy of letter from Mr. N. Palanisamy seeking time for sub- mission of reply to memo.

Ex. M10 30-12-98 : Xerox copv of letter from Chief Manacer, PAD tn N, Palanisamv per- mitting time upto 5-1-99 for submission of reply.

Ex. M il : 4-1-99 : Xerox COPV nf letter from N, Paianwamy to Chief Manaser, PAD re

Ex. Ml 2 2-2-OQ : Xernx coov of Charce Sheet FADlW-02103,'99 dt. 2-2-99 issued to N. Palani-nrtiy.

Ethical standards cannot be abandoned that justice should be rendered with mercy. Employee should maintain minimum standard of integrity. An award of reinstatement and back wages to Workman did not maintain minimum standard ot integrity would amount to rewarding fraudulent and dishonest conduct and would be walking at integrity and honesty of majority of Workmen. Order of dismissal cannot be invali- dated on the ground of sympathy where such sympathy would be misplaced because ol proved grave miscon- duct or fraud committed by the employee." In another case decided by the Supreme Court reported as 1998(3) LLN289 between UNION BANK OF INDIA and VISHWA MOHAN, it is held that "in banking business absolute devotion, dilijience and integrity need to be preserved by every bank employee." So all these decisions go to show thai in a case of fraud committed by a bank employee in fabricating false documents and knowing fully well that it is a false document making use of the same as a genuine docu- ment to derive some benefit and thereby committing a fraud by making the othre person to rely upon it as a genuine document con be termed ;u> a grave mis- conduct on the part of tlie employee. There is suffi- cient material available in this case to come to a conclusion that it ;s a pioved misconduct which is grave in nature warrant;n° dismissal from service. As it is held by Madras Hi^h Court in the above cited case, discretionary pov-'ir does not mean licence to direct reinstatement rvjn where it is not warranted and to set aside the order of dismissal, when records do not want such set! inn aside the order of dismissal and the Industrial Tribunal cannot interfere with quantum of punishment, it proved misconduct is grave in nature warranting dismissal from service and that discretionary powers to interfere with the quantum of punishment can be exercised onlv when it is estab- lished that proved charges find penaltv imposed are not proportionate to each other, after considering all nil the aspects. Failure to consider the uast conduct by itself is not sufficient to hold the order of dismissal as not warranted where proved misconducf is grave •and that order of dismissal cftnnot be interfered on the ground of sympathy where such sympathy would be niisnlaced because of proved misconduct committed by the employee. In view of the material available in this ense and also on the basis of the above cited decisions of Hi eh Court and Supremo Court, this Tribunal cannot exericse its discretionary powers nndet section 11A of the Indstrial Disr>ufes Act. to interfere wilh the mnntum of punishment imposed by the Respon- H*ntlManaranent auainst the concerned employee. Under such circumstance it can be casilv concluded •hat dismissal of Sri N. Paianisamy, sub-staff of Puduchntrafn Branch hv 'he Management of KanK Vvsvn p,nnk is I?cn1 :nci Justified and the concerned Workman is not ent:iV;d to cnv relief Thus. I wiswer tb" rVMiit nccord'nelv.

Ex. M l3 8-2-99 : Xerox CODV of letter PAD|17[ 98-99 from Manager, TMduthntram branch enclosing replv letter dated 6-2-99 from N. Palan'samy for the chargeshcet.

Ex. M14 8-3-99 : Xerox copy of order PAD! DPll06lc>° initintinz enarirv aeainst Mr. N. Palanisimy on the above referred charge- sheet.

7. In the result, an award te p-wrd holding that live concerned workimi Sri N Pnlanisamv. whose caii^e has been e s n o u^ bv the Petitioner Union can- not be prnnteri any i"Uff. n- r n vd for in the C l rm P?ritioTi. No Cost.

Ex. M15 19-3 -99 : Xerox cooy of notice of eri- quirv Iw tbf. Enqiiiry Officer for ihe enquiry on 30- }-O9.

Ex. Ml7 07-4-99 : Xerox cdpy of proceedings of the enquiry held.

Ex. Ml8 8-4-99 : Xerox copi of proceedings of the enquiry held.

Ex. M19 03-05-99 : Xerox copy of letter from Enquiry Officer to Mr. N. Palanisaroy ad- vising him to submit written arguments'. Ex. M20 09-06-99 : Xerox copy of report of the findings of Enquiry Officer.

Ex. M21 09-06-99 : Xerox copy of letter from Disciplinary authority to Mr. N. Palanisamy enclosing report of findings and calling for his representation.

Ex. M22 18 -05-99 : Xerox copy of letter from Defence Council to the Disciplinary authority enclosiag representation on the report of the findings.

Ex. M23 12-07-99 : Xerox copy of proposed punishment show cause uotice FAD|291|99 issued to N. Palanisamy by the Disciplinary Authority,

Ex. M24 23-07-9") : Xerox copy of letter from Disciplinary Authority to N. Palanisamy postponing the proposed punishment hearing from 24-7-99 to 31-7-99 on his request.

Ex. M25 2/-07-99 : Lcttei from Disciplinary Authority to Mr. N. Palanisamy postponing the proposed punishment hearing from 31-7-93 to 9-8-99 on his request.

Ex. M26 17-08-99 : Xerox copy of letter from Disciplinary Authority to Mr. N. Palani- oamy confirming the postponement of pro- posed punishment hearing from 9-8-99 to 21-8-99.

Ex. M27 21-08-99 : Xerox copy of proceedings of the proposed punishment hearing before the Disciplinary Authority.

Ex. M28 14-9-99 : Xerox copy of final order issued I;y Disciplinary Authority dismissing Mr. N. Pdlamsamy from the services of the bank.

Ex. M29 — : Xerox copy of appeal filed by N, Palanisamy to Appellate Authority.

Ex. M30 31-1 2-99 : Xerox copy of letter PAD| 932|99 of Appellate Authority enclosing his order on appeal.

sd.j-

PRESIDTNG OFFICER

1831 New Delhi, the 29th March, 2001 S.O. 842.—In pursuance of Section 17 of the In- dustrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Central Government Industrial Tribunal. New Delhi as shown in the Anncxure in the Industrial Dispute between the employers in relation to the management of State Bank of Patiala and their workman, which was received by the Central Government on 28-3-2001.

[No. L-12012/294/99-IR(B-I)] AJAY KUMAR, Desk Officer

ANNEXURE

BEFORE SHRI K. S. SRIVASTAV, PRESIDING OFFICER, CENTRAL GOVERNMENT INDUS- TRIAL TRIBUNAL, NEW DELHI I.D. No. 62/2000

In the matter of dispute between : Shri Ashwani Kumar Sharma, General Secretary, All India State Bank of Patiala Staff Federation, Solan.

Versus

The General Manager (Opcratioa), State Bank of Patiala H.O., The Mall, Patiala, Patiala-147001.

APPEARANCES :

Workman in person.

AWARD

The Central Government in the Ministry of Labour has sent this reference under Section 10(l)(d) and Section 10-2(A) of the I.D. Act, 1947 vide its order No. L-.l20l2/294/99/IR(B-I) dated 4-1-2000 for adjudication of the dispute between tho parties on the following terms :

"Whether the action of the management of State Bank of Patialft through its Regional Manager III, Chandigarh and transferring Shri Ashwani Kumar Sharma, General Secretary, All India State Bank of Patiala Staff Federation, Solan is violative of clause No. 525 of the Shastri Award and various other orders of the man- agement as projected in the dispute raised by All India State Bank of Patiala Staff Federa- tion in the representation dated 2*1-99. If so what relief is the -workman entitled to ?" 2. The reference was at the first stage sent to the Central Government Industrial Tribunal, Chandigarh and Hnryana and it was registered there on 19-1-2000 as I.D. No. 15/2000 but vide order dated 16-2-2000 of the Central Government exercising the power under Section 10(1) read with Section 33-D of the I.D. Act, 1947 transferred this reference to this Tribunal for further proceeding from the stage it was tarns- ferred.

3. It was then vide order dated 28-6-2000 registered as I.D. No. G2/2000 and notices to the parties were issued. The- workman filed statement of claim. Along- with the claim the workman has also filed an applica-1832 THE GAZETTE OF INDIA: APRIL 21, 2001/VAISAKHA 1, 1923 [PART II—SBC, *(&>! tion praying for the interim relief. The Management had then filed written statement and also reply against the workman'^ application for interim relief. Work- man's implication for interim relief was taken up for disposal first. Evidence on behalf of the parties record- ed and the application was heard on merit.

4. The workman's application for interim relief was then rejected on merit vide detailed order passed on 14-12-2000. Thereafter the workman moved applica- tion dated 14-12-2000 for withdrawing his cla^m/dis- piitc. Vide eTidorscmeut^ made on the application on 23-1-2001 the management has no objection for the withdrawal of the dispute by the workman.

5. In view of the matter and under the circumstances a No Dispute Award in the case is given.

February 27, 200].

K. S. SRIVASTAV. Presiding Officer New Delhi, the 30th March, 2001 S.O. 843.—In pursuance of Section 17 of the In- dustrial Disputes Act, 1947 (14 of 1947), the Cential Government hereby publishes the award of the Ccn- • tral Government Industrial Tribunal Jaipur as shown in the Annexure in fhe Industrial Dispute between the employers in relation to the Management of Reserve Bantt of India and their workman, which was.received by the Central Government" on 30-3-2001.

[No- L-12O1]|11|98-1R(B-I)1 AJAY KUMAR, Desk Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAIXHJM-LABOUR COURT TAIFUR

Case No CGIT-J-35199 Reference No. L-1201.1|Ui98|IR (B-l) Dated 13-11-1998

The General Secretary, Reserve Rook Employees Association, C|o R.B.I.J- ftarn Bagh Circle, Jaipur-302019- - Applicant.

V|s.

The Chief General Manager, Reserve Bank of India, Ram Barii Civcle, Trnk R,oad. Jaipur-302019. Non-applicant.

ATTENDENCE :

For the the applicant : Sh. Chandrapal Singh Advocate.

Tor tne non-applicant : Shri P. S. Bindra, Ad/o- cate.

Date of Award • 8-02-2001

AWARD

The Central Government has referred the following industrial dispute under clause (d) of sub-section (1) of Section-10 of the Industrial Dispute Act, 1947 (hereinafter referred as the Act, 1947) for adjudicat- ion.

"Whether the action of the mariagement of Reserve Bank of India, Jaipur is justified itl not filling up the vacant post as per sanctioned strength of class III employees and not switching over of eligible typist to the clerical cadre even after agreement dated 30-3-91 arrived between the union and the management⁹ If not, to Mhat relief to the workmen are entitled to and from what date?"

ine Kcsurve iiaiik Employee Association Jaipur (.iii-rcinatita ieierreti as me Association) filed the htattnituL oi dluiin. staung thai Association is a regis- tered Association wnicn represents majority ot ciass- Ul employees oi me .Reserve Bunit oi Inaia, Jaipur (iiciematu;i reterreti! as the Bank), The Bank is the mglieit financial institution, the Head Office of which is at Mumbai aind one of its branch is situated at Jaipur. Ide Bank lias different departments in which iinree ti^pes of categories of staff namely officers, class-IIj and class-lV employees are working. There is an uidepenueiii; procedure lo assess in which depart- ment and in which category how much staff is needed according to which the inspection department of the Central office of the Bank inspects the different branches of the Bank and makes recommendation for additional sanction or reduction of the strength of the statrf. The administrative department of the Bank accepts or rejects the recommendation. The chief Manager of the Bank is the competent Authority for iiJJing the sanctioned posts of class-Ill employees. In cat-c the. s-anclionsd posts arc not rilled, the iJank fails lo fulfill iis obligations and the pressure.of work ib also put on the existing staff. In the year 1991 the Association has given n demand, letter to the manager of ihe Bank at Jaipur regarding the local demands. on which memorandum of settlement dt. 30-3-91 Arinexure-l attached to the claim (hereinafter referred as the settlement) was. entered into between both the parties after discus ing through Shri Bhairasing Shekhawat" thj then Chief Minister of Rajasthan and Shri K, S. Rastogj, Finance Commissioner. It has been £!c£3d thai the Bank has not filled up the vacant posts of class-ITI as per para-3 of the settlement and' had also not given switeli over frdm typist to clerical cadre as per para-4 of settlement. 10 posts of typists tnrde •62, 3 posts ealch of Stenographer and Transla- tor, one post each of Telephone Operator and JEN aic lying vicant. Similarly, 12 typists are eligible for switch over to the clerical catTre. The Bank is not implementing parai-3 and para-4 of the settlement due to which the customer's v r / ce is bein!' affected and the staff is aHi snffermi: from mental apemy and 1S& pecuniary losfc. It was prayed that the Bank may be directed to implement para-3 and para-4 of the settle- ment.

Point No 1,.—The learned counsel for the Bank has contended that the alleged settlement is not a settlement withul the meaning of Section 2(p) of the Act, 1947 lead with rule-58 of the Rules-1947. He has contended that a settlement which is not accor- ding to the above provisions, will not be a valid settle- ment He has relied upon the following authorities :—

(1) 1975 (1) LLJ 163 Jhagrakhan Colhens (P)

Ltd Vs. G. C. Agrawal.

(2) 1972 (1) LLJ 99 Delhi Cloth and General

Mills Ltd Vs. Manageemnt.

(3) 1989 Lub.IC 289* Co-operative Store Ltd

Vs. Ved Prakash.

(4) 1994 Lab. IC 2394- Adil K. Fatel Vs. laid

Iron & Steel Co. Ltd.

Section 2(p) of the Act, 1947 defines the term

"settlement" as under *—

"Settlement" means a settlement arrived at in the course of conciliation proceeding and includes a written agreement between the employer and workmen arrived¹ at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties thereto in such manner as maV be prescribed .ind a copy thereof has been sent to an officer authorised in this behalf by the appropriate Government and the conciliation officer."

Rule 58(1) and 58(4) of the Rules, 1957 provides1834 THE GAZETTE OF INDIA : A^L, 21, ^OOl/^VAISAfcHA 1, 192" 3 [PART H—Sfic. 3(ii)] statutory provisions and the settlement which was not in compliance with rule 58(4) of Rules, 1957 was held to be illegal. Jn case reported in 1989 Lab. I.C. 289 the Delhi High Court has held¹ as under:—

"So, the very definition of 'settlement' shows that it has to be i>y way pf written agreement to be signed by both the parties and a copy thereof has 10 be sent to the officer concerned and also to the conciliation officer. S. 18(1) lays down that a settlement arrived at by agreement .between the employer and work- man otherwise than in the course of concilia- tion proceeding shall be binding on the parties, the settlement must be of the type prescribed in S. 2(p) of t|1e Act. Rule 58 of the Rules lays down that a settlement arrived a t . . .. shall be in Form lH' and the settlement shall be signed by the employer himself or by his authorised agent and also by the workman. Rule 58(4) lays down that where a settlement is arrived at between an employer and his workman otherwise than in the course of conciliation proceedings.... the parties to the settlement shall jointly send a copy thereof to the Central Government, Chief Labour Commissioner (Central) New Delhi, and the Regional Labour Commis- sioner, New Delhi and to the Conciliation Officer (Central) concerned. The Form 'H' shows that the namM of the parties have to be given and then short recital of the case and the terms of the settlement arc to be given and then it has to be signed by both the parties and it has to be signed by two witnesses."

Similarly the Bombay High Court in case reported in not been given on Uie top of the alleged settlemet nor it beairs the names of two witnesses. The names of the parties had been given on tho top though names of tne persons representing the Employer and Asso- ciation have not been given. The alleged settlement undoubtedly does not bear the signatures of the two witnesses as required under Form-H. On behalf of the Bank Shri N. K. Bohia, Personnel Officer has stated that the copy of the alleged settlement dt. 30-3-91 was not sent by the Bank to the Assistant Labour Commis- sioner (C) Jaipur or Regional Labour Commissioner (C) Ajmer or Central Labour Commissioner (C) New Delhi. No question has been put to him abou his above statement in cross examination. His nient therefore remains uncontroverted. Shri Ramafg^ Yadav, Secretary of the Association has stated / h is ignorance as to whether copy of the alleged seltteiJnent was sent or not. It is, therefore, proved that "opy of the alleged settlement Annexun-I was not sepft by the Association and Manager of the Bank jcinAjy to the above authorities as required under sub-ryTie 4 of the Rule-58 of the Rules, 1957 and, therefor*^ tfie*Uflg"L settlement is not as per provisions of section 2(p) or the Act, 1947 read with the rule 58(1) afnd rufe 38(4) of the Rules, 1957 and, therefore, is n/ot binding on the Bank.

Point No. 2 :—The learned counsffToV the Bank in support of his contention that the settlement signed by the then Manager of the Bank under undue pres- sure has referred to the following documents filed, by the Association and the statement of Sh. N. K. Bohra, the witness on behalf of the Bank and the statement of Shri Ramesh Yadav, Secretary of the Association. '"" (A) Thj Association in its letter dated 22-4-91 " has stated :—

sioncr cmd Secretary r.n agreement was signed between the management of Reserve Bank of India and the Assodation|Union on 30th March, 1991."

(D) In para 2 of letter datfd 20th July, 1991 written by the Association to the Finance Commis- sioner and the Secretary, Government of Rajasthan, Jaipur it is stated as under :—

"It was a mattel of pleasure that Honl>le Chief Minister deemed it proper to spare some time from his busy schedule to solve the problem. He used his good office having understood the gravity of the situation and untold suffering and inconvenience to which Government itself, trade community. Gov- ernment servant rind public was subjected and called on the Manager, Shri Guru- murthy and representatives of both Asso- ciation and Union to open dialogue a fresh discussion for agreement took place in his chamber ami agreement was signed in the presence of your goodself."

In para 7 it has been further stated as under.—

"The Manager has exceeded his limit by dis- owning the agreement which was signed by himself on the instance of the Chief Minister, Raiasthan and in your presence." (E) In the alleged settlement dated 30-3-91 it has been stated that "the Chief Minister stressed upon the need of reaching an agreement and to call off the agitation as it is.adversely Meeting the Govern- ment transactions an'' also causing inconvenience to the public."

"In the abov; context discussions were held in the presence of Finance Commissioner and Secretary to the Government. Rajasthan and an agreement has been reached by the two sides as under."

Shri N. K. Bohra the witness on behalf of the Bank has stated thpt in the month of March 1991, both the Association and the Union had launched a joint agitation pursuant to which the Clearing House at Reserve Bank of India, Jaipur was not function- ing and the financial transactions of the State Gov- ernment could not b<* cleared through On 28th March, 1991, Shri Rastogi. the then Finance Secretary, Government of Rajasthan pave a Tine tn and called the ihea Manager, Reserve Bank of India, Jaipur, Shri Gurumurthy to the then Chief Minister's- Office, at the instance of the then Chief Minister, Shri Bhairon Singh Shekhavat. Accordingly, myself and Shii Gurumtuthy went to the Chief Minister's office where it. was insisted upon by the then Chief Minister that the Clearing House should start func- tioning immcrli.itdv :md for that the Management of Reserve Bank of [iid^a, Jaipur should settle the matter wiflh Association [Union t-j call off Uie apitu- lionjstrike for smooth functioning of the CJerirc House. On 29'h ? larch. 1991 the then Chief M"m • 'er hod again discussions with the then Manager. Reserve Bank cS T^din Jaipur impressing upon him t^ ensure fniic"ir;nini? of Ck-Miir: House immediately rnd settle th: mrtter with the Association [the Union

1835 for calling off the agitation [strike, as that was period when it was end of the financial year and Govern- ment had to clear so many transactions before the end of the financial year i.e. upto 30th March, 1991. (31st March, 1991 being Sunday) Both the Association and the' Union made best use of the Opportunity that the Government of Rajasthan had to get its cheques cleared through the Clearing House for clearing the financial tiansactions and the Clear- ing House cannot function unless they call off the agitation. Accordingly, both the Association and the Union became adament and started dictating their terms for calling off the agitation. On the one side the Association! the Union were dictating their terms, for calling off the agitation and on the other side the political authorities including the then Manager to start functioning of the Clearing House. At the end, the then Chief Minister used bis pressure on the then Manager to sign the agreement, the terms , of which were dictated by the Association. Although the then Manager was not willing to sign the im*- pugned agreement, he had to sign the agreement under the pressure of the then Chief Minister and accordingly he signed the agreement in the presence of the Chief Minister.

In cross-examination he has stated that there was a joint call for closing of the clearing house on behalf of class-Ill and class-IV employees. He has admit- ted that it is not on record that notice was sent to the Association that the settlement was signed under pressure. He has stated that Government cheques were stopped for clearance. Therefore, the Chief Min'r/er called the Bank Manager through the Fin- ance Secretary and told the Manager to get ihe Government cheques cleared. He has stated that on asking by the Chief Minister the Manager signed -lit; agreement. He has further stated that Chief Minister told the Manager that he has to sign the agreement.

Shri Ramesh Yndav, Secretary of the Association ha.-> stated h!< ignorance as to whether the clearance house was closed from 25-3-91 to 30-3-91 while in the letter of the Association dated 22-4-91 it has been clearly stated that (he Association did not allow the clearing house to wcrk from 25-3-91 to 30-3-91. He has admitted that on 30-3-91 the Chief Minister called the Manager of the Bank end it may be that the Manager was cailed as ihe Government cheques were no', being cleared. Ke has stated his ignorance that tlii- se^k-menf was finned Li the instance of the Chief Minister. Thus the statement of Shri N. K. iJohra that lh.: Manager of the Bank was pressurised by the Ch'cf Minister of the State to sign the settle- ment so ihiit the Government cheques could be cleased had not bjen shaken. The clearing house :is per Ihe documents ot tiu- Association was closed from 25-3-91 to 30-3-9J and the Government trans- actions were be ing adversely effected as the Govern- ment cheques were stopped for clearing. The Chief Minister pressurised the Manager of the Bank to rign the settlement which is evident from the docu- • L T I C M IS a nd t he s t a t e m e nt of t he w i t n e ss r e f e r r ed above. Tire settlement was, therefore, not signed voluntarily by the Manager of the Bank which find- ing is al-,o supported by the fact that the Manager of ihe Dank did not send the coov of the settlement to 'he authorities a; required under rule-58(4) of the Rvjk, 1957, .

New Delhi, tlhe 30th Maich, 2001

S.O. 844.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Cen- tral Government hureby publishes the Awnrd of the Central Government Indostrial Tribunal/Labour Court, Jaipur as shown in the Annex'ire in the In- dustrial Dispute between the employers in relation to the management of State Bank of B'iKcner & Jaipur and their workman, which was received by thv Cen- tral Government on 30-3-2001.

INO. L-l 2015/1 /20OO-IR(B-DJ A JAY KUMAR, DM~ Officer Point No. 3.—The learned counsel for the Bank has contended that the filling up of the posts in the Bank is a managerial function and it is for the management to consider ihe requirement depending upon the workload to fill up the posts. Due to up- gradation of technology and liberalisation of foreign exchange control and reorganisation of various de- partments, the number of required staff has been reduced in the Bank. The Bank has also entered Into settlement dated 20-7-1994 with All India Reserve Bank Association to which the Association is 'the constituent, regarding npgradation of techno- logy and the Bank has also implemented Nayak Committee recommendations regarding re-organisa- tion of issue department. The learned counsel has con- tend r.-d that in view of these circumstances the dis- pute raised by the Association is not maintainable. In support of his contention the learned counsel has cited judgement of the Kerala High Court in W.A. No. 1166(1993, in which judgement of the Apex Court in case Shankaranan Das V|s. Union of India 1991 (3) SCC 47 has been referred. The Kerala High Court in the above case has held that Reserve Bank of India has a right to decide whether to fill up the vacancies or not. It was further held that the selected candidates do not have any legal right to secure appointment in any of the vacancies which wfcrc either originally notified or were subsequently anticipated, :>t the lime of the preparation of the select list. Firstly the settlement on" account of the decision on point No. 1 and 2 is not binding on the Bnnk and, therefore, Bank cannot be directed to implement pira-3 and 4 of the settlement. Secondly the settlement being not binding, it is for the Bank to implement para-3 and 4 of the settlement or not. It ha-, peen contended on behalf of the Association trnt a part of the settlement he.s already been acted upon by the Bank. It will be open for the Bank to implement the remaining part of the settlement irres- pective of the fact that the settlement is not binding. It is expected that the Bank will not feel prejudice for raising the dispute by the Association.

Trr the reasons mentioned above the action of t!ie Bank in not implementing para-3 and 4 of the lc ileineiit which is not binding on the Bank cannot hj sr.cl to be unjustified and the workman are not '-"1'ileu to any relief.

Flu copies of Hie award may be sent to the Central ('iovi.-nment under section-17 (1) of the Act, 1947 i'or publication.

Sd|-

PRESIDING OFFICER,

"Whether the action of the management of State Bank of Bikaner and Jaipur, Jaipur Branch Bhdesav District Chittorgarh with its he. dquavtcrb at Tilak Marg, Jaipur in discontinuing the sei"vices of Sbri Raghij- 1837 nandan former Daily wage peon at the Blulcsar Branch District Chittorgarh w.c.f. 1-4-84 is just and legal. If not to what relief the disputant is entitled to 7"

1064 GI|2001—15.

2(oo) "retrenchment" ireojis the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include—

(a) Voluntary retirement of the workman; or

(b) retirement of the workmen on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipula- tion in that behalf; or

(bb) termination of the service of the workman as a result of the non-renewal of the con- tract of employment between the employer and the workman concerned on its erpiry or of such contract being- terminated under ;i stipulation in that behalf contained there- in ;or

(c) termination of the service of a workman on

the ground of continued ill-health;" New Delhi, the 29th March, 2001 S.O. 845—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the Award of the Central Government Industrial Tribunal|Labour Court, Chennai, as shown in the Anncxure in the Industrial Dispute between the employers in relation to the nianagemenl of Food Corporation of India and their workman, which was received by the Central Government on 28-3-2001.

[No. L-220i2|153|98-IR(C-lI)J

N. P. KESHAVAN, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TR1BUNAL-CUM-LABOUR COURT, CHENNAI

Wednesday, the 28th February, 2001 PRESFNT :

K. Karthikeyan, Presiding Officer.

Industrial Dispute No. : 86|2000

BETWEEN

Sri D. Thomas , .Petitioner|I Party

AND

The Senior Regional Manager, Food Corporation of India, Regional Office, Chcnnai. . .Respondent|II Party APPEARANCE :

For Workman.—Sri B. Saravanan, Advocate. For Management—M|s. M. Imitias, Advocates.

REFERENCE :

Order No. L-22012[153|98-IR(C-ll) dated 7-11-2000 Government of India, Ministry of Labour, New Delhi.

This dispute on coming up before me- for final hearing on this day, the 28th February, 2001, the respective counsels appearing on either side were not present. Both the parties were not present There is no representation on cither side. Though it is posted for filing of Claim Statement of the I Party, as last chancy no Claim Statement is filed. After considering the order of reference, in the ab- srncc of any ^presentation on either side, this Tri- biiLi.il paps i h' following ':'-

1839

AWARD

This reference by the Central Government in exer- cise of the powers conferred by Clause (d) of sub- section (1) and sab- section 2 ( A) of Section 10 of Industrial Disputes Acl, 1947 in respect of dispute between Shri D. Thomas, Werkman and the Food Corporation of India, Chcnnai, Management, as Schedule appended u the order of reference.

The Schedule reads as, follows :—

"Whether the action of the Management of Food Corporation of India, Chennai in not reinstating Sri D. Thomas, with backwages is legal and justified ? If not, to what re- iicf the workman is entitled ?"

2. On leccipt of this icfeicnce, tins industrial dis-, pule has been taken on file of this Tribunal on 20-11-2000 a-, Industrial Dispute No. 86|200O. Notices were ordeied to be sent to both the parties by Registered Post with acknowledgement due for the hearing on 5-12-2000. Both the parties were directed to appeai in person and for the I Partyj Workman to file Claim Statement with documents in duplicate. 1-ui' the first hearing on 5-12-2000, the registered notice sent to the 1 Party|Workman at the given address was returned unrerved us 'addresec left the address'. The counsel appearing for the II Party was present and filed his Vakalat. The Counsel fur the IL Party was directed to furnish the Tribunal the last known address of the I Party to send a fresh notice to him and the case was adjourned to 12-12-2000. On 12-12-2000, the counsel for the II Party filed a memo furnishing of last known address of the I Party|Clainiant and the memo was recorded and a fresh notice 1O the 1 Party to the given addiess was oidered for the hearing on 27-12-2000. Accordingly, a frc.-h notice was sent to the I Party to llio new address by Registered Post with acknowledgement due for the hearing on 27-12-2000. On that day, the 1 Party appeared in person and fikd a memo seeking further time for his counsel to appear and to file Vakalat and Claim Statement and the case was adjourned to 8-1-2001. On 8-1-2001, one Mr. Saravanan appeared and filed and filed V&kalat for the I Party and requested fur- ih^r time for filing Claim Statement for the I Party. On that du>, neither the II Paity nor hk counsel was present and the case was adjourned to 18-1-2001. On that day, both ihe parties and their respective counseL were not present and there is no representa- tion. So again time has extended for filing Claim Statement of the Workman till 30-1-2001. On 30-1-2001 also neither of the parties and their res- pective counsels were present and there is no repre- sentation en either side. Again time has extended lor" filing Claim Statement of the I Party till 14-2-2001 finally. On 14-2-2001, both the parties remained absent and their respective counsels were also not present. There is no representation on either side. Th,en Ihe , case was adjourned to 28-2-2001, cxtendinc time till then, for filing Claim Statement of I ho 1 Pjrty its last chance.

3. When the waiter was taken Up to-day i.e. on 28-2-2001, rs usual buth the patties remained ab- sent and th > counsel of either side is - not present. There is no repivsciitnlion on either side." Though it is posted io-day foi the I Party to file Claim State-1840 THE GAZETTE OF INDIA: APRIL 21, 2001/VAISAKHA 1, 1923 [PART II—SEC, 3(ii)1 ment and documents as last chance, no Claim State- ment is filed by the- Workman to-day. The inaction of the I'etiuuiiei 1 l\.rty;Claimant from the inception of this case enable this Tiibnnal to conclude that the I Party has not come forward even to state his case by filing Claim Statement for the relief he claims in this industrial dispute as mentioned in the Sche- dule of reference, since no dispute as such exists between the parties al present. Under such circum- stances, th's reference is closed for want of represen- tation by the aggrieved Claimant and consequently this reference is closed by dismissing the claim of the Workman in this Industrial Dispute.

(Dictated to the Stenographer and transcribed and typed by him and corrected and pronounced by me in the open conn on this day the 28th February, 2001).

K KARTHIKEYAN, Presiding Officer New Delhi, the 29th March, 2001 S.O. 846,—In puituance of Section 17 of the In- dustrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Central Government Industrial Tribunal/Labour Court, Hyderabad as shown in the Annexure in the Industrial Dispute between the employers in relation to the man- agement of S.C. Co. Ltd. and their workman, which was received by the Central Government on 28-3-2001.

[No. L-22012/335/97/IR(C-II)] N. P. KESAVANj Desk Officer

ANNEXURE

BEFORE THE INDUSTRIAL TRIBUNAL-I AT HYDERABAD

PRESENT :

Sri Syed Abdullah, B.Sc, B.L., Industrial Tri- bunel-I.

Dated, the 1st March, 2001

Industrial Dispute No. 12 of 1999 BETWEEN

Shri Arram Laxma Reddv. D. No. 7-5-258, G.M.'s Colony, Sector-I, Godavaiikhani-505209. . .Petitioner.

AND

The Geneu'l Manager, KG-1 Area, S. C. Company Limited, Godavjrikhani (A.P.), Godavarikhani-505209. . .Respondent.

APPEARANCES :

Sri K. Srinivasa Rao, Advocate for the Petitioner. M/s. J. Parthasarathy and A. Chandra Sekhar.

Advocates for the Respondent.

AWARD

The Government oi India, Ministry of Labour, New Delhi by its Older No. L-22012/335/97/IR(CM-lI), dated 14-12-1998 referred the following Industrial Dispute under Section 10(1 )(d) and sub-section 2(A) of Industrial Disputes Act, 1947, to this Tribunal for adjudication :

"Whether the dismissal of Shri Arram Laxma Reddy, Ex. General Mazdoor of Open Cast Project-I, Ramagundam-in of M/s. S.C. Co. Ltd., with effect from 10-8-95 is legal and justified and whether he is entitled for rein- statement with full back wages w.e.f. 10th August, 1995? If not, to what relief he is entitled ?

Both parties appeared and filed their respective pleadings.

2. The facts of the case as stated in the claims state- ment are as under: According to the Workman, he joined the service of the Respondent-company on 3rd March, 1986 as Badli Filler and he was promoted as General-Mazdoor in Open Cast-I in the year, 1989. He has put in clean record of service till he was ille- gally removed from service on 10-8-1995. The res- pondent tailed to consider the past service and the gravity of misconduct much less as to the allegations made against him in the charge sheet for the charge of absenteeism and an extreme capital punishment was imposed on him which was shockingly disproportionate.

3. An tx-parte enquiry was conducted on the ground that he absented for duty continuously from 6-9-1992 without any sanction of leave or prior permission and therefore us per Standing Order No. 25.31 it is a misconduct. In fact the petitioner was not served with any charge sheet and during the relevant period he was sick from 28-8-1992 to 31-10-1995 suffering from chronic active liver disease. After recovery he reported tor duty by producing sick and fitness certificate but the same was rejected. Hence this petition. Hence prayed to set aside the order of removal dated 10-8-95 and to 'order reinstatement with back wages and all other attendant benefits.

4. The respondent filed counter and briefly stated the averments are as under: The petitioner was irre- gular in attending to the duties and he was continu- ously absent without obtaining any sanction of his leave. The petitioner never made any attempt to get his absence regularised for his earlier absence. In these circumstnees, the petitioner was issued with charge sheet but he evaded to receive it. So it was sent by registered post to the address furnished bv him which also he evaded to receive it. As the said cover was returned undelivered, a paper publication was made for his appearance, A$ the petitioner was not responding to it, an enquiry was initiated and en- quiry-notice was also sent to the address of the peti- tioner. He foiled to attend for the enquiry. Hence the Enquiry Officer held cx-parte enquiry and he found the petitioner was continuously absent without authorised or sanctioned leave. He found that the charges held against the petitioner are proved. Thereafter on the basis ot.it, a show cause notice was sent to the peti- tioner and so also got published in the newspaper. Eveji for this ttlso, the petitioner did not respond. So there was "o option except to terminate the service of the petitioner on -the ground of continuous absence foi duty unauthorisedly. His continuous absence front duty without sanction of leave is a misconduct under code of -conduct and discipline. The allegation that he was not receiving any notices sent which were re- turned with a postal endorsement that "addressee is not staying in the village and hence returned", is not correct. The 'petitioner never informed the respondent about any change of address and he evaded to receive the notices. His'past rccord-of attendance to the duty is also bad. The extract of the musters shows that he put actual musters in attendance 49 days in 1989, 247 days in 1990, 25fi days in 1991, 129 days in 1992 and he did not put in minimum number of days during the years 1993, 1994 and 1995 and he did not come to the workspot at mil. All strenuous efforts, were pmade ro serve the notice on the petitioner and then an ex-parte enquiry was proceeded with. The circumstances did not warrant the management for taking linient View as the,petitioner absented for 7-1/2 years. It is not correct to state thatthe petitioner avail- ed sick for the relevant period i.e., 28-8^1997 to 30-10-95. The respondent company has a very ex- pensive and well equipped medical service which thn petitioner could have availed off at any time. But he did not chose to do so, much less he hadinthnpted about his sickness. The .allegations are made ns :m after thought. Tn fact he is put to strict proof of the same. Hence prayed to .dismiss the claim of the petitioner as not maintainable.

5. The point for adjudication is whether the dismis- sal of Shri Arram Laxma Reddy, petitioner Ex. General Mazdoor of Open Cast Frpject-1, Ramagun- dam-III of Singatcni-Collieries Company .Limited with effect from 10-8-95 is justified and whether he is entitled for reinstatement .with full back .wages from 10-8-95, If not, to what relief he is entitled to ?

6. By an cider dated 31-10-2000, this Tribunal, held that the domestic enquiry proceedings are valid without prejudice to the rights of the workman to raise the contention as to the merits of the evidence on record and as to the ^proportionality of the punish- ment by invoking Section U-A of thel.D. Act. During the final arguments Exs. M6 to JM9 were marked by. consent besides the'evidence.let in during the domestic enquiry. MW] was examined and through him Exs. Ml to M5 were marked.

7. Admittedly, it is a. case of absenteeism for-duty by the petitioner-workman. The .workman Was charge- sheeted and then the enquiry was proceed with. Ac- cording totheemplaver, the petitioner's attendance for duty was irregular. For the earlier period of absence also, he failed to jfet his absence regularised.

1841 8. In para 3 of the claims statement, the petitioner staled that he was siclifrom 28-84992 itp 3rlO-.19,95 and also from 6-10-95 to 12-4-96. He was under treatment for the chronic active liver disease ajid chronic duodenal ulcer and after recovery along with sick and fitness certificate, he reported for duty on 13-4-1996. Bui the same was rejected by the manage- ment. While he was sick, he was issued wi,th change sheet but he was not served with any charge sheet. Basing on the exTparte enquiry findings, the petitioner was imposed with punishment of removal, which is ille- gal and contrary.

9. Whereas the contention of the respondent is that the charge sheet was sent to the petitioner, as he ab- sented for duty unauthorisedly without applying for leave or permission. As per Company's Standing Order 25,31 unauthorised absence amounts to mis- conduct , The petitioner was required to subnyt his explanation as to why appropriate action should not be taken against him.

10. Ex. M2 is copy of the charge sheet sent to the petitioner by -Registered i*ost with Ack. Due on 25th February, 1995 which-was returned with postal en- dorsement that ''the addressee is not Tesiding in tbe village at present" covered by -Ex. M3. Thereby a notice was published on 28J6-1995 in Eenadu Telugu Newspaper stating that a registered letter containing charge gheet was sent which was returned unserved and followed by it an-enquiry was ordered and an Enquiry Officer was appointed fixing the date of enquiry as 2-7-1995 at 10;00 A.M., covered-by Ex. M4. In Ex. M5 enquiry report the Enquiry Officer noted that the enquiry notice was ^mblished in Eenadu Telugu Daily on 28-6-95 to attend for the enquiry on 2-7-95 at lOtOO A.M. but he¹ did not attend the enquiry. So he proceeded with ex-parte enquiry.

11. Jn the statement given by one Mr. M. Babu Rao acting P.O., he stated that the workman has not 'been attending the duty from 6-9-1992 onwards till the date of enquiry Le. 2-7-95. He further stated that the charge sheet was sent to the workman's home address by mgistonsd post but rthe said letter was returned unsolved with an endorsement- "Party was not avail- able in the village". So the enquiry notice was pub- lished on 28-6-95 in Eenadu Telugu Daily News Paper fixing the enquiry on 2-7-95 at 10 A.M. but the work- man did not attend for enquiry. One Mr. B. Janardhan Peon, stated' that on the instructions of the Enquiry Officer he called the name of the workman twice at the enquiry spot but the delinquent-workman has not attended for the enquiry. Mr. JBabu Rao also said that absenting 'for duty without sanction of leave or permission is a misconduct under Company's Standing Order. One Mr. M. Suresh Babu, Payment Clerk also stated that the delinquent has been absenting from duty since 6-9*92. So the petitioner was not paid with any wages since then. The said payment clerk produced the Pay Sheet in proof of the petitioner's absence.

12. On the basis of the evidence available, the En^ quiry Officer gave" his findings holding that as per Company's-Standing Order 25(3 H) the charge levelled against ihc petitioner is established beyond any doubt. Basing on the enquiry -findings, the management gave Ex. M7 notice dated 16*7*95 to the'Workman^ inform- ing him that an ex-parte enquiry wan conducted and1842 THE UAZE11E Ot INDIA ;• APRIL 21, iuul/V/USA^HA I, uls [ i Ui ii—&*C. i ^ i jj during the course ol the enquiry, the petitioner is guilty of the charge levelled against tiim and also ad- visea the petitioner to COIICCL the enquiry report on or betore JO-7-95 from Dy. CPM, RU-lil and repre- sent within 7 days troni the dale ot receipt 01 ihe enquiry repoit. rine said notice was also got published in Andhra Jyothi lelugu Newspaper on 25-7-95 co- vered by Ex. M8. A hnal order Ex. My dt. 10-8-95 was passed imposing the punishment ot dismissal on the petitionei-. In view ot the tact that the charge levelled against him is proved and also for the reason that trom the past record it was found that there are no extenuating and aggrcvating circumstances which warrant less punishment than that of dismissal.

.evidence ^*ci, tlieie is pivsumpaun thai uiC pusuiuii huu itUven uit icgisieica icuei lu me Uddiessto aua ii is loi die auuiesaix; 10 iejui tne jjiiisunijjuoii. it lh noi cast Oi ilie vvoiJvnian neiein mac mt a d d i ct lunusliea on .ex. xvii is, not J. Lomxt out. n it, iui him to esuDlisn truu uiuing tne l&evaiu. period wnvre he was residing but no cogent eviuenee is produced. Aiiu' due publication ol enquiry notice in iciugu News Paper a domestic enquiry was proceeded witn. J he publication oi inu notice in tne newspaper is a notice to the pubnc at large and publication OL notice m ihe newspaper is a substitute service. It is permis- sible to publish notice so as to bring in notice ot the person who has been evading service ot notice. AltCi." tollowing the ptoceduic laid uown, t x. M4 publication v.as made so n is valid and proper. The euquiry oln- cer had taken all precautions and tollowing tne proce- dure he has recorded the statements of tne witnesses, and basing on the material available on record, he found that the charge of absenteeism was proved be- jond doubt which is attracting 25.31 ot the Standing Orders. On the basis of enquiry findings, the respon- dent issued a show cause notice Ex. M7 dt. 16-7-95 . informing the workman to submit his explanation on or befoie 30-7-95. It was sent by registered post and so also published a notice in Andhra Jyotlu Telugu News Paper dated 25-7-95. As there was no response, v final order was passed covered by Ex, M9 dated J 0-8-95 imposing the punishment of dismissal on workman.

13. The departmental enquiry is different from that of a trial Or enquiry- to be conducted in criminal pro- ceedings. In departmental enquiries the technicalities of Evidence Act need not be applied. An evidence which is not admissible as evidence in regular court may be taken as evidence in the departmental enqui- ries, which can be relied along with circumstances and preponderence of probabilities, so as to find out truth or otherwise of tne allegations of charges levelled against a delinquent person. The respondent company is a Government of India undertaking which has ad- opted certified Company's Standing Orders for the administration and discipline ot the'employees working in its organisation. Rule 7 of it ensuies the attendance and punctuality requiring to sign in the attendance register of the timings of reporting on duty and of leaving duty and so also to punch the cards. Rule 13 has prescribed the procedure for application tor leave and leave application must bear the leave address and that the competent authority has to sanction leave to the workman. Rule 25 of the Standing Orders has laid down the acts of misconduct. Rule 25.31 is to the effect that absence from duty without sanctioned leave or sufficient cause or overstaying beyond sanc- tioned leave amounts to misconduct. Rule 27 of Standing Orders has prescribed for imposition ol' penal- ties. Rule 29 gave provision for appeal which should be submitted within forty-five days of receipt of order of punishment and the appellate authority should dis- pose of it within 45 days of receipt of the same. Rule 30 provides for review of cases of punishment.

14. Even in the claim statement it was admitted that the petitioner could not attend for duty right from 28-8-92 to 3-10-95. The absence as explained he was sick during the relevant period and the medical. certificate produced by him was not taken into consi- deration by the management. As asserted by the workman, he has not produced any iota of evidence to show that he was actually sick from 28-8-92 to 3-10-95 and that he had undergone treatment under any Doctor as stated by him. Any assertion, when not proved it has no effect at all and it pales into insigni- ficance. When the workman has specifically pleaded that he was sick during the relevant period, it is for him to prove it satisfactorily by producing evidence which the petitioner failed to do so. The respondent- company being a Government of India Undertaking. there is a presumption of the official acts which arc done as per the rules. Tt is to be presumed that Ex M2 charge sheet dated 25-2-1995 was sent after fol- lowlnp the procedure. F,x. M3, registered noticrwhich,, was sent to the workman hnd returned umerved with postal pndorsement that "Addressee is not residing in the village". Under Illustration ( E) to Section 114 of

15. Dm ing hearing of the arguments, the petitioner has produced office copy ot the representation dated 13-4-96, ofhee copy of the letter given by the union to the General Manager on 8-6-96, sickness and fitness certificate of the workman issued by Civil Asstt. Sur- geon, M. G. N. Hospital, Warangal, on 3-10-1995 and also another certificate dated 12-4-96 issued by a pri- vate Doctor, Peddapalli. The office copies of the above aid two letters are not enclosed with any acknowled- gement of the management, i he sickness and fitness certificate said to have been issued by Civil Asstt. Surgeon appears to be on 3-10-1995 which was issued on the same day certifying the sickness of the work- man from duty with effect from 28-8-92 to 3-10-95 and that on examination he was found to be fit for attending dutv on 4-10-1995. The other sickness cer- tificate reads that the workman was suffering from 6-10-96 to 12-4-96 and 12-4-96 h e. was found to be fit to attend for duty on 13-4-96. The management has not given consent to maik those documents unless the workman is exami- ned as witness. To substantiate about his sickness duiing the relevant period, he did not enter into witness box. So, Ms certificates are of no use at all as such the same were rejected. From the mate- rial available on record covered by Exs. Ml to M9 it is satisfactory to hold that the workman absented for duty umuthorisedly from 6-9-92 till the date of issuing charge sheet dated 25-2-95 and*that the work- man failed to substantiate good cause for his absence. In spite of giving him opportunity he failed to avail the same and rebut the charge. In view of clear cut rule 25.31 of certified Standing Orders an unauthorised absence of workman in Industrial Organisation amount tn misconduct and the management has right to impose the punishment taking into consideration of the past record. The evidence on record jq satisfactory to hold lhat the workman is guilty of the charge of misconduct for his unauthorised absence from 6-2-92 to 25-2-95 without any valid and proper reasons and that the management is justilied in imposing the punishment of dismiss ul by invoking the rules.

16. While coming to the aspect of the punishment oi dismissal from service, no doubt it is a painful event and it is to be considered to what extent Section 1 I-A of the I.D. Act to be invoked. It is to be exer- cised judiciously and any uncalled for sympathy for imposing the less punishment will effect the discipline in the industry vide 2000(1) LLJ (Mad.) page 1150. There must be good reason for taking any lenient \iew so ns to interfere with punishment imposed by the management. Right from 6-9-92 onwards till raising of the dispute in 1998, the petitioner has not moved his little finger much less approach the manage- ment either by appeal or review to consider for a lenient punishment which reflects that the petitioner was actually not interested in the service. The circum- stances clearly indicates that it is not a fit cause to take a lenient view and to interfere with the punish- ment of dismissal ordered by the management and more (so when he had approached after lapse of 6 years. Therefore the punishment of dismissal imposed on the petitioner is justified.

] 7. In the result, an award is passed dismissing the claim of ihc petitioner by confirming the dismissal order dated 10-8-1995.

Dictated to the Stcno-typist, transcribed by him, corrected by me and given under my hand and the seal of this Tribunal on this the 1st day of March, 2001.

SYED ABDULLAH, Industrial Tribunal-I

1843 APPENDIX OF EVIDENCE

During the domestic enquiry; Witness Examined for Witness Examined for Petitioner ; Respondent:

NIL MW1 M. Ramakrishna Documents marked for the Petitioner :

NIL

Documents marked for the Respondent :

Ex. M l— Office Order dated 24-7-1994 appoint- ing MW1 as Enquiry Officer.

Ex. M2—Charge Sheet dated 25-2-1995.

Ex. M3—Postal returned cover.

Ex. M4—Paper publication of Enquiry Notice in Ecnadu Telugu Newspaper dt. 28-6-95.

Ex. M5—Enquiry Report submitted by Enquiry OJlicer on 3-7-95.

During final arguments :

Ex. M6—Enquiry Proceedings, by consent

Ex. M7—Notice dt. 16-7-95 issued to the peti- tionci advising him to collect the enquiry report and to represent his case.

Ex. M8—Paper publication of the notice in Andhri' Jyothi Telugu Newspaper dt. 25-7-95.

Ex. M9—Dismissal order dt. 10-8-95,

Printed by the Manager, Govt. of India Press, Ring Roac¹, New Delhi-110064

and Published by the Controller of Publications, Delhi-J10054, 2001