This Gazette may contains Multiple Subjects

9 The worVrnan has stated that since he vwu Secretary of *T"> punnb Mationfl Bi"k Car,fe?n Worker's Union. Delhi rpei^erpri und"T the Trade Union <\ct. 1926 The Manage- ment r>F the TlfnV w"c di"T^T re!atio"shir> of employer and employee between them hns pver existed and thus no 29JU i H t, U A / J b l l Ji Ut INDIA : JUJNJE, Z3, 2UUl/ A a A D MA I, 1913 |rART 1 1 - ^ E C, J ( H )J industrial dispute within the meaning of the \ ct has arisen btween the Bank and the workman. The workman was not even workman as defined under Sectiton 2(s) of the Act and his, claim is not maintainable. It is 83am stated in this res- pect that at the first instance vide order dated 6-9-90 the Appropriate Government had declined to make the reference on the ground that workman was not a workman but subse- quently without their being any fiesh material on the record warranting charge of its earlier decision the appropriate Government has. wrongly made the reference of the dispute.

11. The bank has next stated that there was a recruitment process in the selection and appointment of clerks and subordinate staff of the bank thfough the Agencies of the Banking service Recruitment Board and Employment Ex- change and thus without following the procedure it was not possible for the workman to get his entry in the service of the Bank and if the workman was takau into service without following the procedure of recruitment arid it would be depriving the General Public, the esjual opportunity of selec- tion and appointment and it would also be discriminatoiy and violative of articles 14 and 16 of the Constitution of India. The Bank has however, admitted that in order to provide facility to its emptojeoe a scheme for providing cauteen at its branches and offices was intioduced and the circular dated 17-3-19S3 was issued in this respect and the said scheme was subsequently modified vide circulars No. 4883 dated J-S-S3, 24S5 dated 29-3-85, 1786 dated 14-5-S6 and 1SS9 dated 8-4-89, but at the sasa* time Bank has stated that under a Scheme a Committee consisting of Bank's employees of its branches aod offices was formed and it was this committee which ved to -ofn into a con*ract with canteen contractors for ruoning canteens at the subsidized rates. Contractor of the canteen was an independent emp- loyee "nd it was he who used io s"ii eslables to the employees and other customer* and used to chaie-5 pnee directly from them and earn nrof' s. The Coriti actors were free to ens? a? ernpiovee of the ch'u'r? to csrrv on the work undertaken bv them. Th" Cantren workers were net >;ubiectird to dh~ cinKnarv action and thev ""re fre"? to Act according to th"V wishes. The Canteen Cora~!:**ee was simelv an advisorv bodv which o:iTv i"no+e r"ce a"^ ensured the duality of the food sJuff Onfeen Committee 1-nd vj nower of super- vision ar control over the working of the canteen nor it has any power to give susgesfio"s regarding the manner of the working of the Canteen in order to compensate the contractors, thev wers pa'd fixed amount of subsidy. The Bank has admitted the factum of providing; infrastructures as stated by the workman.

12. The Bank has denied about the issuance of certificate dated 13-9-1985 to the workman and has stated that the said certificate was a forged document and for which FIR was filed against the workman. The criminal investigating against him which was pending before the authorities. As regards the issuance of the identity card to the workman Bank's assertion is that it was issued only to .permit him entry in the wemises of the Bank due to the curfew then clamped in the City. The Bank has further asserted that since the workman was not emotovee of the Bank Question of granting the leave as stated bv him had never arisen and in view of this also the workman'* case t]v>* his service-; were terminated cannot b*> accepted, fhc proceedings of Section 25-B and F of the Act are no' attrnc^d. Tn the rejoinder of the workman th? allegations made in the statement of clst'ra are mositv r<*fr<"ated and it is ""-rted that there existed " relationship nf emnlover rnrl ewnlovee befv-p-' thr workman 'and the Bank and fh" workman was in fact an emrlovFf of *>ie Baol- "ir-1 his term in-^'on without foi'ov- ir>S provisions of s"c*ion 2s .>* tV Act wi" illep?'.

13 The workman *j"s fiJ*<1 dncvrtPntsrv i>s wi"" r1 evidence. Following docuTfi*^ hav~ r>e"n filed bv th<" workman, as rar 1-V *•>*?£ 1

4. Peisonnel Division Circular No. 24|S5 dated 19-4-85 issued by the Bank ' Annex. D 5. Ciicular No. 33|85 dated 26-3-1985 issued by the Bank Management. Annex. E 6. Circular lettei No. 17|S6 issued by the Bank Mana- gement. Annex. F 7. Copv of Ciicular No. t'8S dated 18-7-1988 of the P.N.B. Canteen Workei s Union Annex. G 8. Cony of letter dated 6-12-1988 from the Chief Manager, Chowri Bazar to the Chief Manager, Zonal Office, New Delhi. Annex. H 9. Leave application dated 28 12-1938 of the workman. Annex. I 10. Copies of the letters written by the workman to the Chairman and Zonal Manager, Punjab National Bank. New Delhi protesting against termination of his services without any charge or ieason.

Annex. J 11. Post Office receipts No. 1518 and 1519 exidencina despatch of letters to the Chairman and Zonal Manager. Annex. K 12 Leave application da'-d 4-5-1988 of the workman. Annex. L".

The workman has also filed his affidavit in evidence. Management has also filed hi affidavit. Assertion made in the affidavit are repetition -f the avermeits made in the statement of claim. The workman has been cross-examin- ed as WW1 and his affidavit has been marked as WW1|1. The bank br>s also filed documentary evidence per list dated 20-7-92. The documents filed by the Rank arc as fol- lows :—

"1 Order of the Government No. L-12012 : 611 : 89 : TRfB-2) dated 9th Apiil, 1990 declining reference to Labour Court.

2. Personnel Division, HO circular letter No. ?3|83 dated 17-3-83, regarding ennteen facility.

3 Personnel Division HO circular letter No 4R'S3 dflted 8-S-83 reaardinu canteen facility.

4. Personnel Division. Head Office, circular letter No. 2i'85 dated 19-3-85 regarding the canteen facility.

5. Pi-rsnnnel Division circHar letter No. 17'8f> dated 14-5-86 regarding the canteen facilitv 6. Personnel Division. HO circular letter No IS'89 dated 8-4-89 recardinc the canteen facilitv.

7 Psvment voucher dated 2-4-88 for Rs. 1275 b ew the subsidv amount paid to Shri Sarkar foi the month of March 19S8

8. Payment voucher dated 1-7-88 for Rs. 1260 b<"in" thp subsidy amount paid for the month of June 1988 Tilly received bv Shri Montoo Sarkar.

9. Payment voucher dated 1-1 -SS for Rs. 1135 bi-ing the s-ibsidy amount paM to Shn Sarkar for the month of December 1987. The navment has been duly received by Shri Mortoo Sarkar.

10 Pavment voucher dated 13-4-1989 for R, 4^4 he;n9, the claim in full and Rnw' 'ftflement of the subsidv o' Shri 2911

14. Complaint dated 12-V-S8 by about 51 staff members of BO : Chawri Bazar against Shri Montoo Saikar.

15. Complaint dated 6-8-88 by about 43 staff members.

16. Complaint dated 24-9-88 by about 47 staff members ' of BO : Chawri Bazar.

17. Copy of letter dated given by Shii Montoo Sarkar stating that he would like to run the canteen and in case of unsatisfactory service, the seivices may be terminated.

18. Copy of the complaint dated 13-5-U9 addressed to the Sidtion House Uthcer, Ponce Station Connaught Place, of Shri H. C. Jain Zonal Manager, Delhi Zone wuh legard to the letter dated 13-9-85 forged by Shn Montoo Sarkar.

The Bank has filed affidavit of Sari N. k. Jain then work- ing as Manager in the Branch urhce ot the Bank as Okhla. He has also deen cioss-exammed as MVVl and his affidavit has been manccd as Ex. MW1|1. He has fully supported the Bank's case. He has stated subsequently that the certificate dated 13-9-85 was forged document and against which FIR was, ldoged against Police Parties and the matter was under investigation. The Bank has furtner produced Shri S. C. Jain eneral Manager as its witness and he has been examin- ed as MW2. He has denied his signatures of the csitihcaie dated 13-9-85 which was filed by the workman and was marked as Annexure 'A'.

14. Arguments on behalf of the parties were heard and necessary material available on record examined. The point for adjudication which in my view arises is that whether the canteen in question was a part of an establishment of the Bank and the workman was being canteen employee was actually Bank's Employee and is entitled for the relief claimed.

15. It is urged on behalf of the petitioners that in order to improve efficiency and output of the banks officers and staff it was the necessary function of the Bank to provide canteen facilities withi nits premises and with this view Bank had actually provided canteen facilities to its staff by means of circular letter No. 21|S3 dated 17-3-83. Ac- cording to one of the teims of the circular the functioning of the canteen was under the supervision and direct control of the management of the Bank thruogh a Committee known as implementatiion committee constituted at each branch office of the Bank. The implfaientation Committee consisted of the officers of the Bank vi. fi) Incharge of the branch (ii) Secondman (officer) of the branch (iii) senior most full time confirmed staff. This Committee accordinc to the petitioners was having full control over the canteen for running business of Ihe Canteen in the manner that it used to decide items to be prepared for supply to the officers and staff and to fix price to be charged for each item. The woik- ing hours and other details of the work were also decided bv the committee. The canteen employees had no sav in thig way and thev had to c"rrv out all the instructions of the canteen Committee. It is n;xt submitted that in puisuance of the said scheme of providing canteen the Bank had appointed woikmen as canteen incharge to run the canteen with appropriate number of emploecs and thus the petitioners being employed bv the Bank were its employees ard the workmen within the meaning of Section 2( ) of the Act and the Bank was an industry as defined in the Act. It is agaiin submitted that according to Section 2( ) any person including an apprentice employed in an industry to do any manual, skilled, unskilled, techniical, work for hire of reward, operational clerical or supervisory whether the terms of employment is expresed or implied is a workman. In the same breath the petitioners have submitted that according to definition of the workman given in Section (X) of the Act it is not necessary that person should be employed in a wbitaifiv* capacifv or on temporary basis. Every person employed in an industry irrespective of his stotus of being temporary permanent probationzr or otherwise iis a workman as held in Ihe case of Hatchiish Vs. Karnataka State Road Tiansport Corporation (1983; 1 LLf 30.

of section 2(ri) of the Act. The workmen have again con- tended that the said definition of the wage only peculates that the remuneration must be capable of being expressed in terms of money payable to a workman in respect of his employment, or for the work done in such employment. In suppon of this contention petitioners have relied on the case of Bhagdiiand Collier Vs. Their workmen (1962) (II) LLJ 356 SC. In the said case Sardari being paid as cammrssioH for normal woik was held as wasss within the meaning of section (rr) of the Act. On its basis petitioners have again contended that subsidy which was fixred after taking into consideration normal remuneration with their emplymant or work done in such emp'oyment would per say come within ambit of definition of the wages. Tits petitioners have thus laid stress that definitely there existed the rdatinsbip of employr and employee beiuesn them and the Bank.

17. The workman has denied the bank's contention that they were either independent contractor or employees of such contractors. In support of this contention the petitino- eis have given circumstances as firstly that ncne of the pro- visions of the contract labour (Regulation and Abolition Act, 1970) weie complied with brf<"ie engaging the petition- ers as contractors. Secondly that no BOtice|t"ndedadvertise- ment was published calling far ihe rate¹* or quotations for the said contract. Thirdly that workman was working under the control- and supervision of the branch managemriit. Fourthly that there was no mutual agreement or deed of agreement which could have been entered into and executed in this respect betw?:n the wjikaua and the Bank.

18 In support of their contention of the existence of employer and employes relations between them and the Bank the workmen have laid stress that certificate daeed 13-9-85 certifying thf period of service and chractor of the workman moved' by ?onal Manager marked as Annexure A of the c'sim petition and the identity card issued by the Bank to him both clearly establish that workman was the employee of the Bank and relationship of employer and employee between them had existed.

19. The last contention of the workman in this respect is that all the infra structure facilities like accommodation furnitures, gas cylenders etc. were provided by the Bank and it is according to them one or the otherieason to cocme to the conclusion that ths canteen was being iun by hte bank and its emplovees are the bank's employees. Ihe rietiiionei's have also placed reliance on the case of Pmimal Chand Raha and others Vs. L.I.C. and others 1995 (II) LU 339(SQ.

2912 THE GAZETTE OF INDIA : JUNE 23, 2001/ ASADHA 2, 1923 [PART II—SEC. 3(ii)] the'contractois or by the caneen employees. Under the in- dustrial law acordi'ig to the Bank the existence of master and service is necessary to find out whether the petitioners were the banks employees or they were employees of the Canteen only. In support oi the submissions of the exist- ence of mister and seivice relationship the Bank has relied upon the case of Puri Urban Ooopeiative Bank Vs. Madhu- sudan Sahu 1982(31) FLR 454 S.C. The relevant observa- tion made by the Hon'ble Supreme Court in the said case is given as under :—i

"It stands established that industrial law revolves on the axis of master and servant lelationship and by the canteen precedents it stands established that the prima facie test of existence of the right in the master to supervise ar.d control the work done by the seivant. (The measure of supervision and control apart) not only in the matter of directing what work the servant is to do but also the matter in which he shall do his vvoik. And principle hold the field."

21. Again it is submitted that the Bank had a definite rec- ruitment procedure for recruiting the cleik and subordinate staff. Such recruitment was being done through Banking Service Recruiitment Board and Employment Exchange res- pectively. There was also an eligility criteriae subject to the reservation policy for such a recruitment. The procedure thus prescribed for recruitmsnt according to the Bank could not be by-passed as it would be discriminatory in so far as general public is concerned and it would also be violative of article 14 and 16 of rtie Constitution of India. If the entrv in the Brink Service of the petitioner wouJd be taken in this manner the general public would be deprived of equal opportunity ard such back dooi entry cannot be per- mitted in any manner to the petitioners.

22. The next submissions of the Bank is that the Contract Labour ("Regulation and Abolit'on) Act, 1970 was not at all applicable in the case of the petitioners because they were themselves independent employers. The Bank has also denied that the contract between the Canteen Committee and the Petitioners was in any manner one sided. The Bank has again denied that if the infrastructures where were provided by the Bank to the Canteen it would never mean that the Canteen business was being run bv the Bank itself and Canteen Emplovees would be its employees.

23. The Bank has strongly placed leiiance on the follow- ing two authorities of Hon'ble Supreme Court of India Fmp- loyers, Management of Reserve Bank of India Vs Work- men, Reserve Bnnk of India 1996 (73 FLR 965. State Bank of India and others Versus Pta*e Bank of India Canteen Emplovees Union (Bengal f irclj) and others Judaements today 2000(5) SC. 63.

24. I proceed to examine.

regulaiisatioin in service and other seivice benefits equal¹ for the regular siaff of the Bank treating them also as Bank's employees. Reference which was made by Government of India for adjudication of dispute under section 10(1 )(d) read vv,fh Section 2-A of the 'Vet was as under :—

"Whether 166 employees engaged in various catering establishments of Rese;ve Bank of India at Bom- bay are the workmen of Reserve Bank of India. Tf so whether their demand for regularisation with retrospctive effect was justified? If so, the extent of relief payable to these 166 persons may be in- dicaed."

The case was decided in favour of the canteen employees by the Tribunal. On appeal before Hon'ble Supreme Court the judgement and order of the Tribunal was not set aside.

28. On behalf of the canteen employees pleas taken were (i) that Bank was under a statutory obligation to provide canteen facilities to the employees and it was being done through agencies i.e implementation Committee (Canteen Committee, Coopeiation Society and Contractor instead of the Bark doing its nonby employing persons directly (ii) Bank was not empowered to shift its responsibility to others because the entire economic control was with the Bank and thus persons employed in the canteens whether by the Imp- lementation Committee or by the Cooperative Societies or by the Contractors should be directed to be absoibed with retrospective effect with point to point adjustment and the Bank be directed to niy difference of wages.

29. On behalf of the Bank all the above contentions were refused and it was pleaded that Bank had made available space for running the Canteens on lease and licence basis and various facilities were also provided to the implementa- tion Committee, Cooperative Society or the Contractors who- soever was running the caateen. The Management of the Bank was not responsible for the employment of persons in the canteen. The Bank was not supervising nor control- ing th-; working of the Canteens or the supply of eatables to employees. The employes were not underobligation to puichase eatables from the canteen. Theie was no relation- ship of master and servant between the Bank and the various pel sons employed in the Canteen. The staff canteen was established as a Welfare measure Bank had no statutory or other obligation to run the canteen and it had no direct control or sr>pervislon over the employee*, engaged in the Canteen. Bank had no right to t?ke any disciplinary action or to direct any canteen emplovee to do a particular work. The disciplinary control over the c°rscns employed in th" canteen did nv' vest in the B-^nk nor the Bank had any sav or conttol according the alloc.iti'in of the woik or the way in which Bank was to be carried out by the Canteen Emp- loyees. Sanctioning of leave, distribution of work Mainten- ance of th; Attendance Register were all done either by the implementation Commiittee or by the Cooperative Society or by the Contractor. Hnn'ble Supreme Court has rejected •he pleas of the Cinteen Employees and ghing classification of *he cit'=goiies of fhe Capta""is as rntnicned above has made observation, the relevant portion of it is given below :—

M

1953 oi the book ol' en Stuff Welfare Activities in oblipa- tion was- cast upon¹ the' Bank to provide canteen facility, Jr, this case the "pleas of both the parties were same as that •01 the case ci the Reserve Bank of India Vs. Their Work- men (Supra).

31. The point of dispute that Canteen Employees were Ihf.- Bank's employees and vv^rc entitled for the benefits- of Ihcir absorption and other service benefits equal to regular employees ot the Bunk Hon'ble Supreme Court has aiiain elaborately dealt with Hon'ble Supiemc Court took into consideration the contentions of 'be Cnntetn Employees that as per terras of the Sastri Award, 1953 and also as per provisions of Hand Book on s

2$14 THE GAZETTE OF INDIA : JUNE 23, 2001/A$At>HA 2, t$23 [PART II—SEC. 3(ii)) terms. In hU cross-tx:.minution the workman has failed to elicit anythinjE favouiable to him. I Uo not find any reason not to believe Shri H. C. Jain. The certificate Annexure 'A' of the statement of the claim thus is not found authentic.

38. Next issue of identity card to the workman in my view in no ca c can be taken as a proof that workman wai an employee of the Bank. It was only issued to workman ilurinu curfew then clamped in the City Shri M. K. Jain, M.W.I Bank's witness IIHS stated this fact in this affidavit Ex. MW1|1. There is no effective cross-examination by the workman. The evidence of Shri N.K. Jala MW1 I find can well be accepted in this regard.

39. The thiid factor of granting leave to workman by the Bank horn 9-1-89 to 28-1-89 as staled by the workman in support of his case of bcinp Bank's employee to find on the own showing of woikman it fails. He has admitted in his cross-examination that written sanction of his leave wus given to him and he was orally allowed to go. The fact that in written sanction of the leave was fiiven to workman in my view itself demolishes the workman's case. No sanctity to oral permission can be given even if the workman's case in this regard is accepted.

40. The Bank's case specifically is that workman was run- ning the canteen as Canteen Contractor and there was no relationship of employer and employee between him and the Bank. This fact 1 find support on the non admission of the workman. In his cross-examination the workman has stated as follows :—

"1 alone was running the Canteen m no one elie was appointed in the management. I used to collect the money from the customers for the materials sup- plied to them and I used to purchase the raw mate- rial for preparation of the things."

41. The said statement of the workman iu my view strong- ly suppoit the Bank's case. But in fact workman was merely a Contractor and not the employee of the Bank. In view of the fact I find no importance can be attached to the work- man's denial of the suggestion of the Bank that he was not the Bnnk's employee. The workman in my view haa failed to establish his case on these factor;, that he was the Bank's employee. These replies of Shri Montoo Sarkar itself goes against the petitioners case,

42. Furthei the point of payment ofr the wages in the shape of subsidy as contended by the petitioners for treating them Bank's employee. 1 find myself not in agreement with the petitioners' contention. Subsidy in my view in the circum- stances of the case can never be termed as wage as defined in Section 2(rr) of the Act. The dictionary meaninc of subsidy is "giving pecuniary held." According to Section 2(rr) (b) of the Act any contribution paid or payable by the employer for the benefit of the workman under any law for the time being in force is excluded from the definition of the wages. On this ground alone the petitioners' conten- tion cannot be accepted. However, in both the said autho- rities of Reserve Bank of India Vi. Workman of Reserve Bank of India (Supra) and State Bank Of India and others Vs. State Bank of India Canteen Employees Unron (Bengal Circle) and others (Supra) cited on behalf of the Bank these aspects of payments of subsidy and management of the Canteen through Local Implementation Committee have been dealt with and these were not accepted as the banii to show that functioning of the Canteen was either leconnised bv the Bank or the Canieen employees could be considered to be Bnnk's employees As found above both these authorities, are Well applicable in the case. Hence on its stiength the pelitinoers conienfions cannot be accepted.

43. On the other hnnd the Bank I find hat become success- ful in establishing its case. At the first instance there '• total denial of petitioner's case by the BanV. The Bank has denied that petitiner was its employee and reltionship of master and servant ever existed between them. The Bank's case specifi- cally is that the petitioner was himself a contractor and had an independent status, He was not appointed on the rolls of the Bank by the Bank and had never undergone any selec- tionlrecruitment proceduie prevailing in the Bank. Further Bank had no authority to take any disciplinary action against him h-ing a canteen employee. I[ can not direct the Canteen Fmplovee for ttoinc n particular work. The Bank had uo eay or control regarding the allocation of the work or the way in which the work 'houid be carried out bv the canteen employees.

44. The Bank's case also is that no statutory or other obligation was cast upon the Bank for providing the canteen to its officers or stiff. No trade or business was ever carried out in the Canteen by the Bank. The Bank had no supervi- sion or control over the working of the Canteen on the supply of eatables. The Bank's case again it that the amenities provided by the Bank to the Canteen were only by way of Welfare Meaiuie.

45. These facts I find have well been supported by the evidence of Shri N. K. Jain MW1 then working at Manager in Bank's office al Okhla. He has filed the affidavit marked Fx. MW1|1. Every detail of the Bnnk's rase has been dealt within his affidavit.

4fi. In his cross-examination 1 find the petitioners have not been able to elicit anything in their favour. I do not find any reason to disbelieve Shri N, K. Jain, His evidence is held ti list worthy and reliable.

47. Tn view of the facts r find nt,d hold that workman has failed to establish that canteen was in any manner a part of the establishment of the Bank and he beinc canteen emp- loyee was actually the Bank's employee. It is again held that pioviding of Canteen facility to its employees by the Bank was neither statutory nor obligator/ and also not the service condition of the employees of the Bank, It is further held that workman was an independent canteen employee and the Bank has no concern with the cessatiinnltermination of the workman and the workman is not entitled to any relief against it,

48. The point fiamed for consideiation is decided against the workman,

49. The terms of reference is answered in the like manner and award in (he case is given accordingly.

K. S. SRIVASTAV, Presiding Officer New Delhi, tho 23rd May, fOOl S.O. 1414 .—Tn Pur->nanco of Swtion 17 of the Industrial Dispute Act, 1947 (14 of 1947). il;e Cen- tral Government hereby PUWMKA tho award oL' tho Central Govcrmii-nt industrial Tribunal H, Mumbai as shown in the anncx'jre in t'v* Industrial Dispute between the employers in relation to the martagemprtt of Dem Bank and their workman, which was received by the CVnnMl CioKi'nmont on 23-5-01.

[No. L-12U12/380/94-IR(B-II] AJAY KUMAR Desk Officer.

ANNEXURE

BEFORE J'.IT CENTRAL GOVERNMENT INDUS- TRIAL TRIBUNAL NO. II

MUMBAI

PRFSENT

S.N. Saundankar

Reference No. CGlT-2/i I of 1995

Employees in relation to the Management of A.G.M, Dena Bank. Pune Reg. Office, Madhav Chambers 'I' 398/A, Senapati Bapat Marg, Shivaji Nagar Punc-411 0! 6

And

Their Workman Shri Anil Mallappa Waghmarc, At & Post Belanki, Taluk : Miraj, Dist : Sungli (Maharashtra)

APPEARANCES :

For (he Employer ; Shri S.K. Talsania

Advocate.

For the Workman : In Person, Mumbai, dated 27th March, 2001.

AWARD

The Government of India, Ministry of Labour by its Order *No. L-12012/380/94-IR (B.-II), dtd. 30-5-1995 have referred the foiiowirg Industrial Dispute for adjudication :

"Whether the action of the management of Dena Bank, Pun°-, in terminating the services of Shri A.M. Waghmare, Sweeper/Sepoy w.e.f. 5-6-94 is legal and justified ? If not, what relief is the said' workman entitled to?"

2. Pursuant to the notices the workman fi'e-d Statement of Claim Exhibit-4. The employer Dena Bank resisted the claim of the workman by filling Writ+en Statement (Exhibit-6). Record '.hows that the management did not turn up. therefore my learned Predecessor vide Award dtd. 28-8-96, had adjudicated the reference. g* 3. Tt is seen from the record that on the Misc. App!n. of the management bearing No. 4 of 1996, my Ltr.rf-d Predecessor set aside the said Award by his order dtd. 15-7-97, consequently the matter proceeded further.

4. On the basis of the rival pleadings of the parties issues were settled (Fxhibit-16). Consequently work- man led his oral evidence by way of affidavit (Exhibit- 10) and was cross-examined fcy the management of 25-2-2000. The irrttor was fi\cd for evidence of the management at Pune on 12-1-2001. Parties i.e. Shri Anil MJlappn Waghmarc, the workman and Mr. E.3. Ramanjftneyulu, Senior Manager on behalf of Dena Bank, vide Exhibit-] 7 settled the dis- pute. Since the parties sell led the dispute the follow- ing order is passed :—

CKDER

The reference is disposed of as '.ettlec! \idc settlement deed (Exhibit-! 7).

S.N. SAUNDANKAR, Presiding Officer BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO. 2, MUMBAI Reference CGTT-2/I1 oi 1995 The Management of Dena Bt.nk Pune Regional OrTkc Pure —Fiist P*Tty Vs

Mr. Anil Mclappa Wrjr.mare At Post Bclunki, Dist : Sangli —Seiond Pany MEMORANDUM OF SETTLEMENT The woikman Shri Anil Malappa Waghmare shall be appointed in the service of the Bank as Part Time Cleaner on 1/3rd Pay Scale Wares with ether allowances/perquisites and benefit as per rules ard regulations as applicable to subordinate staff on scale wages cafgory of !he bank from 'ime 1o time on the following term" ar.d conHiiions:-- 1. The Workman wil' b? absorbed in the service of the Bank on I/3rd Scale Wages of the pay j.cale in subordinate cadie whh effect from the date cf (he award.

2. The workmai' will not be u.tit'ed to back- wages for the past service rert'.ered by ihc workman prior to the da

3. The past service rendered by the workman till the dale of the award will not count for increments, Provident Fund. Gratuity cr any oth~r fervice bene- fits.

4. The workman will not raise ary rfispu'e in future with regaid lo legularisatien in Bank's service. This is in Ml and fir,al settlement of all claims to regular isaticn m Bank's set vice in scale wages.

5. The workman fhaJJ be elit.ib'e for proportio- nate annual increment on completion cf 1 year from reguiarisuticn as per IUVS i.e., ficra furiher propor- tiocBie ij.cre irtrM oi e yo?r pf.er the dale of aw:>rd 2916 IHJi OALhllE Ob INDIA : JUNk 23. 2001/ASADHA 2, 1923 [FART II—SEC. 3(ii)J

New De'bi- tl-e ?9.h Mr;. TOO] 6. The Workman's rppoi, imiMt w;i' be subject to hi> parsing p^y^'tnl i"'}>o* o"n""'"?!;on by *ho Dcclor .pp'-ouV b> lie Bank ami o>i p odu< ion of cci ilk ate > cf t\ u'a i i< mil quHnV aiium JMKJ tas'o (^ificiitcs 'bowing thut fb"- woikman bel< rt"> 'o SC/ST calegoiy.

7. The workman wi'l bj on p '< bat ion for a psriod of 6 mot,!h:- wihcli is liable to b: e\k:H' 2917

his entitlement. In addition it is necessary that the workman should be a regular employee which is an clemerlary factor in promotion.

3. In Short : The wort man Sfudurrahinar. alle- gedly, was engaged in ike year 1980 and his services were terminated, abruptly; on 3-9-1981. He raided an Industial Dispute Mo. 56/86 before the CG1T- cum Labour Court, Kanpif. By order

4. During the penderjy of ihe writ peti< ion, the workman was put to duty by lotler dt. 18-4-88, on the p ^t of Substitute Cleaner subject to decision of the writ petition No. 17910/87. It should be ap- preciated that the staius c,f the workman, as substi- tute cleaner cannot be re-opended, having been finali- sed by award in I D, No. 56/86 and affirmed b> the High Couri in the writ petition.

2918 THE-GAZETTE OF WDIA : JUKE 23, 2001/ ASADHA 2, .1923 [PART 1 I ~ S E C. 3(ii)] New Ddhi, the 31 M-iy, 2001

S.O. 1416.--In pursuance of Section 17 of the tho Industiial Disputes Act. 1947 (14 of 1947), *hc Central Government hereby putiisbai th: aua/d of the Central Government indusuiaJ Tiibuanl Kolkata as shown in the Annexure in the Industrial Dispute b ; t w "n the employer', ia relation to the niana, gement of Hongkong & Shanghai Banking Corpora- tion and their workman, which was I'liwived by the Cenrtal C'.we-.iment on 30-5-2001.

[No. L^I20l2/228/96/-IR-(B-I)

AJAV KUMAR, D"k Officer

ANNEXURL

CENTRAL GOVERNMENT INDUTRJ \ 1, TRI- BUNAL AT KOLKATA

Reference No. 37 of 1997

Parties : Employers in relation to the management of fionkoiu & Shanghai Banking Cor- portion, Calcutta.

AND

Their workman. Present :

Mr. Justice Bharat Prasad Sharma

PreMdi'-i" Officer

Appearance :

On behalf of Mr. A.K. Sil Advocate with Management Ms. S. Dutta, Advocate On hchalf of Mr. Lallan Sinph the concerned Workman vyorkman in person. State: West Bengal. Industry Ranking.

AWARD

By Order No. L-12012/228/96 JR (B. I) dated 18-09-1997 the Central Govetnment in exercise of its powe-s under section 10(l)(u) and (2A) of the Industrial Disputes Act, 1947 rdWrcd the following dispute to this Tribunal for adjudication :

"Whether the action of the management of M/s. Honkong & Shanghai Banking Corpo- ration Calcutta in dismissi^ Miri Lallan J I I 'A vide management's letter dated 15-3-95 was justified 7 If not, what relief the workman is entitled '?"

2. When the matter is taken-up today on the prayer of the panics, a Joint Petition of Compro- mise is filed by them stating the matter has been settled between the parties and an Award is prayed for in terms of the settlement, which was also filed alongwith the petition. On being asked the con- cencd workman stated that he is satisfied vw'th the terms of the settlement and he signed the settle- ment after Killy understanding the same.

3. 1 havo gone through the terms oJ' the settle- ment, which appeals to be fair and in the interest oJ the parties. I accorJindy accept the prayer of the parties and pass an Award as per the terms of the settlement which will tnrm part of this Award as Anncxurc-A.

4. The reference is dispo-ed of accordingly .

B.P. SHARMA. Presiding Officer Dated Kolkata, The 18:h May, 2001.

AN N EX U RE-A

BEFORE THE LEARNED CENTRAL GOVERN- MENT INDUSTRIAL TRIBUNAL WEST BENGAL

In the Matter of : An Industrial Dispute of I.D. Ac!, 1947;

And

fa the mal'er of Ministry of Laboui, Order No. L-I2012/228/96-(B-l) dated 18-9-97;-

And

In the Matter of ; Case No. 37/97/1107;

Botween

Sri Lallan Singh, C/o Md. Mahamud Raja, 5, Jan Nagar, 2nd Lane, P.O. Sntally, Calcutia-700 014.

Vs.

The Manager (Eastern IndiaJ, M/s, Hongkong & Shanghai Banking Corporation Ltd. 8. Netaji Subhas Road, Calcutta 700 001.

TERMS OF SETTLEMENT 1. The parties to the above industrial dispute and negotiations in the matter wherein they agreed to settle the above dispute mutually on the terms and conditions mentioned below :

(a) The Workman i.e. Sri Lallan Singh is with- drawing the present industrial dispu which is the subject matter of Case No. 37/97/1107 pending before this Ld. Tribunal, unilaterally and with free consent without any pressure from the management.

(b) The Managmcnt i.e. The Hongkong & Shanghai Banking Corporation Ltd.will pay to Mr. Lallan Singh by way of ex- gratia lump-sum amount of Rs. 2,00,000/ in full and final settlement of all legal claims which may be due to him for and tiil date his dismissal of services i.e. 15th March, 1995. The said amount shall be paid to him by way of cheque within on v\cJc from the date of the order of settlement to be passed by the Ld. Tribuanal herein.

2. After the payment of Rs. 2,00,000/- to Mr. Lallan Singh the Workman shall have no claim whatsoever against the Bank i.e. Honkong & Shanghai Banking Corporation Ltd.

3. By filing this terms of settlement the Ld. Tribunal, be requested on behalf of the parties to pass an award in terms of this settlement. Such re- quest to the Ld. Tribunal may be made by filing a joint compromise petition by the parties.

Dated this 18th day of May, 2001. Mr. Lallan Singh Rahaul Ghatak

The Hongkong & Shanghai

Banking Corporation Ltd. The terms of settlement have been explained to shri Lallan Singh in a language understood by him.

New Delhi, the 31 May, 2001

S.O. 1417.—In pursuance Of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947) the Cent- ral Government hereby publishes the awaid of the Central Government Industrial Tribunal/Labour Court Kanpur as shown in the Amiexure in the Industrial Disput between the employers in relation to the management of Ballia Kshctriya Gramin Bank and their workman, which was received by the Central Government on 30-05-2001

[No. L-12O12/196/96I-R-(B-I)

AJAY KUMAR, De*k Olricer

291-9 ANNEXURE

Before Shri R.P. Pandey Presiding Officer Central Government Industrial Tribunal cum-Labour Court 117/9 Sarvodaya Nagart Kanpur Industrial Dispute No. 183 of 1997 Tn the matter of dispute between — Shri Virendra Ojha Village Ojha Kc Chayra P.O. Tikampur Disii. Ballia

And

The Chairman Ballia Kshetriaya Gramin Bank

Head Office Indira Market

Disrtrict Ballia U.P.

AWARD

1. Central Government Ministry of Labour,vidc its notification No. L-12012/196/96-IR (B) dt. 5-9-97. has referred the following dispute for adjudication to this Tribunal —

Whether Shri Virendra Ojha an ex-daily wage employee of Ballia Kshetriya Gramin Bank had put in 240 days of attendance during preced- ing 12 months of 29-5-89? Tf so whether the action of the management of Ballia Kshetriaya Gramin Bank in terminating the services of Sh. Virendra Ojha w.e.f. 29-5-89 is justified? If not win relief the workman is entitled?

2. Statements claim has been filed by the,appli- cant with the allegations that he was appointed as part time messenger in Subordinate cadre by the Chairman of Ballia K^heariya Gramin Bank (hrcin- after referred to as bank for the sake of brevity) and was posted at bank's Kotwari branch where he reported for duty on 8-11-79 By na'urc of employment the applicant falls in the cadre of workman as defined under section 2(s) of Industrial Disputes Act, 1947. He was transferred from Kotwari Branch to different other branches and worked in those branches for years. Although he was called part time messenger but he was working throughout the whole day. He was mad; permanent on the post of messcngw w.e.f. 1-4-86. His service were abruptly terminated on 29-5-89 by the manager of Ballia Kshetriya Gramin Bank who had no authority to do so. His termination from ths service was illegal as ii wr; 'iiiiib ir violation of provi sions of section 25F of the Act. The applicant had completed ?40 dayti of service before ihc date of ter- mination, hence he was entitled to get protection of Section 25F of the Act. On the basis of these alle- gations the applicant has prayed that his order of termination from services dated 29-5-89 may be de- clared illegal nndimjivMified and may be queried and he may be reinstated in service with full back wages.

2920 BWJQAZBTTfi Of lNUlA : JUNE 23, 2001/ ASADHA 2, 1923 [CART I K ^ S E C. 3-(il)] 3. The management has filed written statement with contention that the concerned applicant was engaged as a labour on daily wage basis by Wfia Kshetriya Oramin Bank. He was paid wages on daily wage basis for the number of days for which he worked . His working hours were not fixed by the Bank and the same were dependent on the sweet will of the applicant. He was never made permanent on any post nor he had been ever selected on any post in the Bank according to Rules of the Bank. He was paid sundry charges through the vouchers when ever he actually worked. The bank denied that he ever worked for more than 240 days in any calender years during 12 preceding months rom 29-5-89. He was irregular in attending the bank, hence bank dis- continued his service w.e.f. 29-5-89. He had worked on daily wage basis as part time worker for 73 days only during 12 preceding months before 29-5-89. It has been alleged that he was not entilted to get pro- tection of Section 25F of I.D. Act and he was not a workman as denned under Sec. 2(s) of the Act. It has been alleged that the workman had no right to hold any post and there is no illegality in the orde . whereby his serivces have been terminated and he is not entitled to get any relief in this case andhi claim is liable to be rejected.

4. The workman has filled rejoinder in whichh has reiterated the facts alleged by him in the stat- ment of claim.

5. The workman did not adduce any oral evi- dence and none appeared even to prove the docu- ment filed by him. On the other hand the management examined Shri R. R. Gupta M.W.I. Management filed 20 documents marked Ext, M-l to M-20 in support of its case.

6. 1 have heard tho authorised representative for the management and have gone through the reed of the case.

7. The authorised representative for tho manage- ment has argued that the concerned workman was a part time daily wager and was engagod according to tha need of the bank and when his work was not found satisfactory and he did not attend the duties regu- larly he was disengaged by the bank. It has come in the, evidence of M.W.I.that no appointmsnt letter was issued in favour of the workman. The workman has also not produced any documents to show that he was ever appointed against any post in the bank by the Chairman of the Bank who was Appoint- ing Authority of all the post in the Bank. The evi- dence filed by the management goes to show that the concerned workman was a part time daily wager and was paid wages for those days on which he worked as part time casual worker. The vouchers filed by the management go to show that he had not worked for more than 73 days before the date of termination of sq srvices. There is no evidence on record to show that he had worked for more than 240 days before Hie date of termination of his service. There is no evi- dence on record to show that the concerned workman hud completed 240 days in the service of the bank be- fore the alleged date of termination i.e. 29-5- 89. There is nothing on record to show that the concerned workman was selected against any post in the bank by the appointing authority /competent authority. I, therefore, agree with the contention of the managemen that the concerned workman being part time daily wager and casual worker could noi get status of an em- ployee of the bank and was not entitled to get protec- tion of Section 25 F of the Act.

8. The authorised representative tor the bank has drawn my attention towards law laid down by Honblc' Supreme Court of India in the case of Himanshu Kumar Versus State of Bihar, 1997 (76) FLR 237 which is as under :

Admittedly they were not appointed to the posts in accordance with the rales but were enga- ged on the basis- of need of the work. They are temporary employees working on daily wages. Un- der these circumstance^, their disengagement from service cannot be construed to be a retrenchment under the Industrial Disputes Act. The concept of 'retrenchment' therefore cannot be stretched to such an extent as to cover these employees. Since they arc only daily wage employee-, and have no right to the post, their disengagement is not arbitrary.

The law laid down in the case cited above fully applies to Lhe facts of the present case also. As the concerned workman was a part time daily wage casual worker he could not get status of an employee of the bank, as he was never appointed agiinst any post in the bank after selection according to the rules of the bank hence he was not entitled to get protection of the provisions of section 25F of I.D. Act, specially when there is no evidence on record to prove that he worked for 240 days before the date of termination.

9. In view of above consideration I hold that Shri Virendra Ojha an ex-daily wage employee of Ballia Kshetriya Gramin Bank had not put in 240 days of attendance during preceding 12 months from 29-5-89 and the action or the management in terminating the service w.e.f. 29-5-89 was fully justified because the concerned workman was not entitled to fitt protection of Section 25F of I* D. Act. I, therefore, hold that the concerned workman is not entitled to get any relief in pursuance of the reference made to this tribunal.

10. Reference is answered accordingly against the concerned workman.

R. P. PANDEY, Presiding Officer H-5-:ooi2921 New Delhi, the 31st May, 2001

S.O.I418.—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, Kanpur as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of Bhartiya Audyogik Vikas Bank and their workman, which was received by the Central Government on 30-5-2001.

[No. L-12012/40/97-IR-(B-l)]

AJAY KUMAR, Desk Officer

ANNEXURE

Before Sri R.P. Pandey Presiding Officer

Central Government Industrial Tribunal cum Labour

Court 117/9 Sarvodaya Nagar, Kanpur.

Industrial Dispute No. 67/98

2, On behalf of the workman If atrsram statement of claim has been filed with the allegations that Sri Hansram the concerned workman who was working in the opposite party bank as part time sweeper since 1980 in Kanpur Branch. A charge sheet dated 2-7-90 was issued to him with allegations that .he failed to discharge his duties on several date's as* sweeper. The concerned workman requested for the copies of the relevant rules and other documents on which the management relied in support of ^he charges. The management without giving any heed to his request appointed Shri J.N. Chindra as Enquiry Officer and Shri R.K. Bansal as Presiding Officer to hold enquiry against the concerned workman. The enquiry officer held the enquiry without giving full opportunity to the delinquent employee and submitted his report to the Disciplinary Authority. The disciplinary authority issued a show cause notice but a copy of the report of the enquiry officer was not furnished to him. The management without giving any fair and proper opportunity issued order of punishment dated 28-10-91 whereby substantive pay of the concerned workman was reduced by three stages for a period of three years with effect from the date of that order and accordingly his substantive pay was reduced from Rs. 1460/- per month to Rs. 1280/- per month in the pay scale of Rs. 980-2100 with immediate effect. It was also provided in the order of punishment that the deductions will have the effect of with holding of increments falling due during the intervening period and also have the effect of postponing of future increments for three years. Aggrieved by that order the concerned workman raised industrial dispute which has be;n finally re- ferred to this tribunal by the Gavernment of India for adjudication. The concerned workman has prayed that the impugned order punishment may be declared void ab initio illegal and may b: quashed.

In the matter of dispute between: Chief Secretary Reserve Bank "D' Class Employees Union C/o Reserve Bank of India

~MaHsRoad Kanpur

And

General Manager Bhartiya Audyogik Vikas Bank Virendra Smriti 15/54 Civil Lines Kanpur

Award

1. Central Government Ministry of Labour, New Delhi, vide its notification no. L-12012/40/97-IR (B-I) dated 2-4-98 has referred the following dispute for adjudication to this Tribunal—

3. The management of T.D.B.l. Kanpur has admitted in its written statement that the concerned workman Shri Hansram was a part time sweeper if Kanpur Branch of the bank. Wnsa hi failed to discharge his duties on several dates despite written instrocttons given to him he was charge sheeted for the same. The coacerned workman demanded copy of the evidence and relevant rules which were furnished to himTTliereafter he submitted a written reply to the chargesheet which was not found satisfactory hence enquiry officer was appointed to hold the enquiry against the ^delinquent employee. The enquiry officer recordeoT"statement of witnesses but the concer- ned workman and his defence representative did not participate in the proceedings... Uttimitsly the eiquiry officer hold the enquiry- cxparte anaTsubmitted his report fio the disciplinary*"authority. Tft"""^iscipli- nary authority issued a show cause notice toTRe^ concerned employee on 25-9-91 along yftHi^e copy of Kya Bhartiya Audyogik Viakas Bank Kanpur Ke prabandhan dwara Sri Hansratn Atmaj Swargiya Dbunni Ram ko dinank 28-10-91 dwara Dandit Kiya jana uchit aur vaidhanik hai? Yadi nahi to sambEedhit karmkar kis anuiosh ka haqdar hai?

2922 THE GAZETTE OF INDIA : JUNE 23, 2001/ASADHA 2, 1923 [PARI II—SEC^ the enquiry report. The concerned employee refused to take that show cause notice. Thereafter, discipli- naiy authority the impugned order of punishment on 28"-10-91. It has been alleged that neither the enquiry officer nor the disciplinary authority violated the principle of natural Justice during the course of enquiry. It has been alleged that the claim of the concerned workman is liable to be rejected and the reference may be decided in favour of the management.

4. On behalf of the workman 25 documents were filed whereas the management has filed 44 documents. During the pendency of the proceedings the concerned workman died but the case proceeded according to law in accordance with the provisions of the Industrial Disputes Act and the rules made thereunder as under the law a case was to be decided on merits even after death of the workman. In this case fol- lowing preliminary issue was framed—

Whether the domestic enquiry conducted by the management was fair and proper?

5. Documents filed by the managsment have been proved by the uncontroverted affidavit filed by Sri I.H. Biswas an officer of the IDBI Kanpur. On the date of arguments none appeared on behalf of the workman and I have heard the authorised represen- tative for the management.

The enquiry officer insisted that there is no t, rejecting the evidence of witness and the defence representative or the workman may cross examine that witness but the concerned workman and his defence representative refused to cross examine the witness and thereafter they did not participate in the proceedings of the domestic enquiry. The enquiry officer had no option but to proceed exparte against the employee and to record statement of witnesses during the course of enquiry and after considering oral and documentary evidence on record submitted his enquiry report dated 26-7-91 along with his letter dated 29-7-91. A show cause notice along with enquiry report was furnished to " the delinquent employee who refused to receive the same. A show cause notice along with enquiry report was sent to the last known address of the employee but the same was returned undelivered. In these circumstances the disciplinary authority passed the impugned order of punishment dated 28-10-91. This shows that the enquiry officer gave full opportunity of to the emp- loyee to participate in the domestic enquiry but the concerned workman deliberately failed to co- operate in the enquiry proceedings. When he re- fused to take show cause notice which was furnished to him along with copy of enquiry report it is not open for delinquent employee to say that the copy of enquiry report was not given to him. The record shows that full opportunity of hearing was given to the delinquent employee by the enquiry officer as well as disciplinary authority but the delinquent employee himself did not avail that opportunity. Now it was not open for him to say that reasonable opportunity of hearing was not given to him during the course of enquiry.

6. The authorised representative for the manage- ment has argued that the enquiry proceedings against the delinquent employee was conducted in a fair and proper manner and there is no illegality iv the impug- ned order of punishment passed against the concerned workman. After going through the record in this case I find force in this contention.

8. In view of findings recorded above, I hold that the domestic enquiry was fairly and properly held against the delinquent employee. I. therefore, do not find any illegality in the impugned order of, punishment passed against the delinquent employee.

9. IA :h.J resul" it s h.la that th: ac h ; of di- management of IDBI in awarding punishmint dated 28-10-91 against the concerned employes is legal and justified, coAssquently The cancsrnsd employes is not entitled to get any relief in pursuance of this reference.

10. Accordingly reference is answered against the

concerned employee.

R.P. PANDEY, Presiding Officer 7. The papers filed by the management go to show that the delinquent employee had failed to discharge his duties on several dates although he was instructed in writing to do his duties as a sweeper on the second floor of the bank. H? was chargesheeted for the same. The copies of the documents evidence and relevant tuks were furnished to him and the concer- ned workman submitted his reply denying charges levelled against him. The enquiry officer informed him about the date when enquiry HdlLkeTiield but the delinquent employee and his defence representative did not appear before him on the date of hearing at the time fixed by the enquiry officer. The enquiry officer waited for them for same time and thereafter proceeded to record'staj^went of first witness examined by-—tfie jftatjagem^nt. . The delinquent employee JJ-fong with his defence representative appeafedT and requpsttfd" that the evidence of witness recorded by ttaf'enquiry officer should be rejected hscanse the same was not rec0F*ded in thetf presence.

New Delhi, the 30th May, 2001

SO 1419—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (U of 1947), the Central Government hereby PUDli.h", the award of the Central Government Industrial TribunalILabour Court, Chennai as shown in The annexure in the Industrial Dispute between the employers in i elation to the management of Indian Bank and their woikman, which was leceived by the central Government on 29-5-2001.

[No. L-l20l2'l68j99-IRfB-H)]

C. GANGADHARAN, Under Sec*.

ANNEXURE

BFFORfi THF CENTRAL GOVT. INDUSTRIAL TRI- BUNAL CUM LABOUR COURT: CKENNAI Friday the 11th Miy 2001

PRESENT :

K. Karihike\an. Presiding Officer.

Industrial Dispute No. 28812001 (T?milnadu Industrial Dispute No. 295|99) BETWEEN

The General Secretary, Indian Bank Employees Union, Chennai. Claimant/I Parly AND

II Party ^he General Manager, Indian Bank, Chennai. APPEARANCF For the Claimant : Sh. R. Rengaramanujam, Advocate. For the Management : M|s. Aiyar & Delia, Advocates.

The Govt. of India in Ministry of Labour in exercicse of powers conferred by Clause(D) ,of Sub-Section (1) and Sub- Seclion (2A) of Section 10 of the Industrial Dispute Act, 1947, have referred the following dispute for adjudication vkle order No. L-12012|168|99jIR(S-II) dt. 11-11-1999: —

' Whether the demand of the Indian Bank Employees Union for empanelment of Sh. J. Susai Xavier ?s temporary sub-staff is justified ? If rot, what relief is he entitled t o ?"

2. This case was referred earlier to the Tamilnadu Indus- trial Tribunal for adjudication, where it was taken on file' as I.D. No. 295/99. On receipt of notice from that Tribu- n?J both the parties appeared through their respective coun- sel. Though the case was adjourned there granting time for the Claimant for filing claim statement even since their appearance on 10-03-2000 through counsel, they have not chose i to file it til] this case was transferred on 09-01-2001 to the fdsud!catior>. ThffiTeh the counsel on either' side appeared before this Tribunal nn receipt of notice from this Tribunal and the counsel for I Party/Claimant took time fc r flinp clPim statement, no statement is filed so far though

T923 it is posted today as last chance for filing claim statement. Today when the matter was taken up. the counsel for II Party/Management alone is present. Neither the [ Party/ Claimant nor his counsel is, present. There is no re- presentation for I Party/Claimant. The claim statement of I PaifyiClaimant is not filed. Under such circumstances, doe to the non representation and in action of the I Parry/ Claimant, tbere is no other option for this Tribunal but to conclude that no dispute exists now between the paities to (his dispute.

In the re'rlt this Industrial Dispute is dismissed for de- fault for non representation and non prosecution by the I PartylClaimnnt. Accoidingly 'No Dispute' award is r w ed (Dictated to the Stenographer and transcribed and tjped by him and corrected and pronounced by me in the orwn c^.nt on this day, ihe 11th May, 2001.

K. JKARTHIKEYAN, Presiding OSTcer New Delhi, the 30th Mav, 2001

S.O. 1420.—In pursuance of Section 17 of the Industrial Disputes Act. 1947 (14 of 1947), the Central Government hereby publishes the await! of lhe Central Government Industrial Tribunal ILabour Couit, Calcutta as shewn in the annexure in the Industrial Dispute between the employers in relation to the management of Bank of India and their workman, which was received bv the Central Government on 29-5-2001.

i"No. I--12C12|31|97-IR(B-H)] C. GANGADHARAN, Under Secy.

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL AT KOLKATA

Reference No. 09 of 1998

PARTIES :

Fmployers in relation to the management of Bank cf India.

AND

Their Workmen

PRESENT :

Mr. Justice Bhar.it Prasid S'oarmn, Presiding Officer.

APPEARANCE:

On behalf of Managempnt.—\fr. S. Kumar, Deputy Chief Officer (I.R.)

On behalf of Workman.—Mr. R. Chattopsdhyay, Mem- ber, Tgw Snb-rVimmittee. Bank Employees' Fede- ration (West B^na?)).

STATE : West Bengal. INDUSTRY : Banking.

29Z4 THE GAZETTE OF INDIA : JUNE 23, 2001/ ASADHA 2, 1923 [F.\Rr II—SEC. 3(ii)l AWARD

By Older N. L-12012|31,97-lR(B-II) dated 27-2-1998 the Central Government in exciose of its powers under section 10(1) (d) and (2A) of the Industrial Disputes Act, 1947 retcn cd the following dispute to this Tribunal for adjudica- tion :

' Whethei the demand of Shn Susanta Kumar Kayal for reinstatement with full back wages by the manage- ment of Bank of India is justified? If so, what relief the said woikman is catitled V"

2. ihe pit-sent icierenec aiises out of the removal of a woiimik.ii, ausaiua Kumar K.-">al from seivice of the Ueiiala i/tuiicn, oi the Bank oi inaia. it IDs been stated on behalf oi lav workman tnat lie was engaged in the Wank since its iiii.epnon, out in me year 1993 insie was a notice issued by tiie Head Ufnce ot the Bank to discontinue with the practice oi engagement ot casual, tempo.ary and badh sub-staft. It has luruier been stated that on the basis ol this notice, tne said woikman was removed from service without any icasoii being assigned all on a sudden. It has been claimed mat ha was woikmg since 1982 in diiferent positions on caily payment of Rs. 30 per day. It is stated that the pay- ment was being made to him after receiving his signjturj on the payment voucheis. He continued till 16th February, 1995. It is stated that two sub-stalls, namely, Babulal Naskar and Dabcn Ch. Naskar were transfjired from the Branch on promotion in the year 1994 and so two posts were lying vacant, but instead of absorbing the said workman mspite of his applications dated 23-5-1990 and 23-2-199J for his absor- ption and appointment on permanent basis, the Bank com- pelled him to work on daily payment. It is stated that the said woikman had woiked on 14th February, 1995 in the Bianch upto 10 P.M. under the older of the Branch Manager and he was paid fa) Rs. 50 for the day on 16th February, 1995. It was so because or I5tb February, 1995 he did not atterd office on ' ccount of his illness. However, he reported to the Branch on 16th February, 1995 inspite of the advice of the Doctor not to move as he was anxious to earn something to meet the family expenses. On that date he was called by the Manager to his chamber and he was compelled to write down that the payment vouchers relating to him were signed by him although by mistake. He wrote it under coercion and threat and thereafter he was verbally asked by the Manager not to attend the Bank. On 18th Februaiy, 1995 he sent an application through registered post for leave attaching xerox copy of the r-eruption of the Doctor and on 24th Febiuary, 1995 also he sent another aopliciticn through registered post for extension of leave, but he did not leceive any reply. According to the workman he had rendered service continuously :'nd uninterruptedly since 1982 and had acquired right to be absorbed in the post of sub- staff on regular basis against one o[ the two vacant posts as statfd eailier. It is stated that the Branch Manager termi- nated the service of the workman in illegal and unlawful manner and therefore according to him he was entitled to be teinstated. However, when he did not hear anything from the manasement, he laised an industrial dispute befoie the management, but th" manaieroent did not respond to his raising the disrate and thereafiei he appro.iched the Hon'ble Hieh Couit of Calcutta in p Writ Petition under Article 2?6 o" thr Const'MiHon of Tndia, which was registered as matter No ^40 nf 1995. On 23-11-1995 in order was parsed bv the Hon'ble Hi^h Court in which the Z^nal Manager of the Bank of Tndia Fastern Zone, \v>v ejected *o consider the renresen- •itirm of the "-orkmin "WtJvn two weeV" from 1he dr.te End to dispose of *h" " n" w'th''i s'v %>PP\? thereafter bv passinp i r*"mn1 nmept of Ind'a anl accordinplv the present reference Ins been vends

aa"5 removal cannot be treated a" a 'retrenchment' and the ques- tion of lus absorption or regulansation did not arise.

fcpm.Uw.Manager of,thoxentftcn and.for operating the gene- rator, .ho jjaed to receive bonus separately from ihe owner of the generator, whereas for working as a Peon he did not receive any bonus. He, however, testified to the signature on a statement purported to have been made by him m writ- ing, marked Ext. M-2. He has also stated that altogeher 22 to 30 persons were working In the Bank. He also stated that the Manager also signed toe said document, Ext. M-2, but, so far as the other persons are concerned, he could not say as to how they had signed. So far as Ext. M-J is concerned, u is a minutes oi the proceeding before the Zonal Manager in pursuant^ of the order of ine Hoirbte High Court and the witness admits that he had put his signature on this docu- ment which is in English, but the contents of the document were explained to him in Bengali, When he was shown a bunch of vouchers produced on behalf of the management, he said that while a set of vouchers bear his signatures, the other set of vouchers did not bear any signature. In this view of the matter, it has been pointed out on behalf of the management that it become* clear that there was no practice of signature of the payee being taken on the vouchers and it has been also pointed out that on the voucehrs Ext. M-4 series there is no signature of anyone excepting the officer of the Bank on the back of these vouchers on other vouchers starting from Ext. M-4/35 to Ext. M-4/65 and some other vouchers the signatures of the workman occur. It has also been pointed out that If it Is considered in the light of the statement this workman gave in writing vide Ext. M-2, which was signed by as many as 11 witnesses of the Bank, it becomes clear that it was a clear case of manipula- tion by this workman taking advantage of the facts that he had knowledge and access to the documenls which Is admitted. So far as Ext. M-3 is concerned, it contains several details disclosing the circumstances giving rise to this dispute. He has admitted In his statement before the Zonal Manager that the canteen was being run by a Caneen Committee and that he had received ai certificate from one Mr. Anm Bose rtBatdinij his working in the canteen for 8 years at a time when he was not present there. At one place he has also stated that he worked as a Clerk also, but he clearly admittedly that it was done in an unauthorised manner on the request of a female Clerk of the Bank and he was not asked to do so by the management.

5, In this back-ground, considering the evidence of MW-1, Paritosb Chakraborty it appears that he has stated that he was working in the Behala Branch of the Bank between June, 1994 to July, 1997 as Manager. He stated that canteen facility was available to the employees of the Behala" Branch which was managed by a canteen committee consti* tuted by the members of the staff and the management had nothing to do with the canteen. He also stated that a gene- rator was being provided on being hired on monthly basis and one Susanta Kumar Kayai was Operating the generator during that period. He stated that this workman was not paid for his work as; generator operator bv the management and he was engaged by tho owner of the generator. Similarly, the maangement wai also not making payments to him a? Canteen-boy and he was being paid by the canteen committee. However, he admits that the s*id workman was being en- gaged bv the Bank from time to time and he was being paid separately on daily wage basis for this purpose. He has slated that the system of payment to the casual coolie is "that the Manager or Deputy Manager withdraws the cash in ad- vance and then the payments are made to such collies. But the person to whom such payment is made is not required to put his signature and in this view of the matter he has pointed out that on some of the vouchers there are signature of the Manager only at the back side, but, on other set of vouchers, Shri Kaval had a1sn signed. He has also stated that he had,slened the statements riven In writing by this workman, Ext. M-2 nnd apart from him other members of the staff also signed it as witness. He has stated that Wore the document. Ext. M-2 came Into hcinir, he was informed bv some stuff that the workman Susantn Kumar Kaval was frmnd siniMnp OP the reverse of th- vouchers ftnd then he called him and etiauirpd from him in t>r"epco of some members of stnff and he adm'tfed his mistake and pnvn a statement in writfnu. Ohvimirfv this d*x"""nfnt Fxt, M-2 Is written bv the concerned workman in Bencali.

4. both the parties adduced oral as well as the documentary evidence. The concerned workmun has examined himself as WVV-l. The most lniore&ung icaiuie 01 his evidence is that he has staled many things in his examination in chief itself Which were not mentioned in the statement of claims lUud on his behalf. Whereas in the statement ot claims he stated that he was serving in the Bank on casual basis from the year 1982 itself, and he worked till Uth February, 1935, in his evidence he stated that he wus workma in the canteen of the Bchala Branch of the Bank of India as a canteen boy. He itated that he started working in the canteen in the year. 1982 on the basis of the verbal order of the Manager of the Branch. He also stated that the canteen was also situated Within the premises of the Bank and furniture etc. were also supplied by the Bank. He stated that he was initially paid Rs. 200 per month and subsequently his remuneration was enhanced to Rs. -300 per month. He also itated that in addi- tion to the payment of remuneration, he was getting bonus plso and no other benefit was available to him. He has stated that the Canteen Manager used to be appointed by the Bank Manager every year and the Caateen Manager used to roake^ payment to him. He has stated that the Canteen Manager" used to be a staff of the Bank, However, he admitted that he did not receive any appointment letter from anybody of the Bank. He further stated that apart from working in the canteen, he used to discharge duties in the absence of the Peons of the Bank and he also used to sweep the floor of the Bank in the absence of the Sweeper and for additional work be used to receive Rs. 25 to Rs. 40 per day on the basis of the work done. He has also stated that for this additional work, the Branch Manager used to issue voucher and he used to sign the vouchers for receiving payments. Thereafter he has stated that on 16-2-1995 he was called by the Bank Manager when he was operating generator and he was told that he should give something in writing, failing which he would be handedover to the Police and he was also detained there till 10 P.M. in the night. However, he gave a statement in writing and on the next date when he went to the Bank, he was told by the Canfeen Manager that he was not required to work in the Canteen. He has denied that he had signed the vouchers, other than those for which he had not received payment. Ho also denied that he had signed the vouchers stealthly and in tin unauthorised manner. He has stated that there was no written complaint or charge- sheet against him and there was no departmental enquiry. No written order was also passed regarding his retrenchment and he did not receive any retrenchment compensation. He has further stated that a person who was known to him and was working in the Main Office of the Bank was appointed on regular basis in the Bank and so he carried the impres- sion that if he worked in the canteen of the Bank his service could be regularised. He has disclosed the name of that person as Surendra Nath Biswas, In his cross-examination he has given very confusing answer as to why he did not mention this fact in his written statement that he was working in the canteen. In replv he stated tha he snted so because he had the impression that he will

6, So, reading the entire evidence, it becomes clear that actually thl§ workman was originally engaged as Operator of the generator by the owner of the generator and because he was required to operate the generator part-time only and in case of necessity, the canteen engaged hhn as Canteen- boy and only at times of necessity, the management of the 1788 GI/2001—16 7T6 THE GAZETTE OF INDIA ; JUNE 23, 2001/ASADHA 2, 1923 [ P AMI I _ 3 E C; 3(110] Bank engaged him for few days for doing some casual.duly, but, with the passage of time he developed ambition nnd started manipulating documents in order to make out a case for his absorption. When the management discovered it he was accosted and he admitted his guilt In presence of the other staffs. So, he lost confidence of the Bank and the Bank decided not to engage him in future. Therefore, so far as the Bank is concerned, it cannot be eaid that the Bank terminated his service or retrenched him, because he was not in regular service of the Bank and there is absolutely no material to show that he had worked in the Bank con- tinuously for 240 days In the vear preceding his termination. His employment in tiv Bank appears to be a case of purely casual and temporary nature ond such employee cannot be given right to absorb him on permanent basis. It is also significant to note here that here the workman has started challenging his termination treating it as retrenchment which is illegal, but it is not in terms of the reference. According to the terms of reference the only fact to be considered is wVHier his claim for regularisation is correct and legal or not. From the discussions made nbove, it becomes clear that the workman has failed to make out a case for regularisaticm.

7. Several decisions relating to illenal retrenchment and reinstatement of canteen workers and persons engaged through contractors have been cited by the representative of the workman. But these decisions are ot at all applicable in this c!*se in view of the facts and peculiar nature of (he case dis- cussed above. It is not a c>"ie In which he was retrenched bv fti? mnnaBcment. Rather, the management only decided to ltop faking work from h'm because he had lost confidence of th" Ro"V aid th" Bank though it un'sfe to eneaae such a pcrscn for any work. It appears that after the decision of the Bank not to engage him any further, the owner of the ffene- rator also decided to remove him from his service and auto- matically he was also removed by tha canteen committee which had a separate entity. There is no materials in this case to show that the canteen was being run by the manage- ment or that the canteen committee was actually part and parcel of the establishment of the Bank being a statutory canteen. Therefore, the relationship of. employer and emp- loyee does not appear to have existed between the manage- ment and the workman concerned. The workman, therefore, does not appear to be entitled to any relief in this case.

8. Accordingly, the reference is disposed of and the workman is held to be not entitled to any relief what-so-ever. Dated, Kolkata,

The 17th May, 2001.

B. P. SHAUMA. Presiding Officer New Delhi, the 25th May, 2001 S.O. 1421 —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 No. 2 Dhanbad as shown in the Annexuro in the Industrial Dispute between ihe employers in relation to the management of C.C.L.- and- their workman, whfoh was received by the Central Government on 23-5-2001.

[No. L-20012/359/96-lR(C-l)]

S.S. GUPTA, Under Secy.

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL (NO. 2) AT DHANBAD

PRESENT

Shri B. Biswas,

Presiding Officer

In the matter of an Industrial Dispute under Section lO(lXd) of the I.D. Act, 1947.

REFERENCE NO. 143 OF 1997 PARTIES : Employers in relation to the manage- mont of Central Coalfields Ltd. and their workman.

APPEARANCES:

On behalf of the Shri D. Mukherjeo, Advocate workman : and Shri K. Chakravarty,

Advocate.

On behalf of the Shri B. Joshi, Advocate, employers :

Stato : Jharkhand Industry : Coal.

Dated, Dhanbad, the 15th May, 2001

AWARD

The Govt. of India, Ministry of Labour, in exer- cise of the powers conferred on them under Section 10(l)(d) of the I.D. Act, 1947 has referred the fol- lowing dispute to this Tribunal for adjudication vide their Order No. L-20012/359/96-IR(Coal-I), dated, the 25th November, 1997.

SCHEDULE

"Whether the action of the management of Central Coalfields Ltd., in dismissing the services of the workman Sh. Bhubneshwar Mallick on the ground of unauthorised absence eta was proper and justified 7 If not, to what relief is the con- cerned workman entitled?"

2. The case of the concerned workman as per his W.S. is as follows:

It has been disclosed by the workman concerned in his W.S. that on the ground of his ailment he went on medical leave from 15-1-93 to 21-2-93 and again from 23-2-93 to 9-3-93 whioh was duly sanctioned. The concerned workman dislosed that as his ailment was relapsed, being advised by the doctor he had to remain on bed rest for a considerable period and for that reason from time to time he gave due intimation to the management and also submitted leave appli- cation supported by the photo copy of prescription/ Medical Certificate. It has beeu disclosed by the he submitted leave application for extension of leave s. pported by medioal papers but the management did not consider necessary to intimate if his prayer for extension of leave was considered or rejected. On the contrary, on the basis of enquiry report of the Enquiry Officer which was held arbitrarily and mala- fidely his service was terminated by the management taking the ground of misconduct. The Workman submitted that from 15-3-93 he remained under the treatment of Dr. L.B. Singh and Dr. B.B. Singh for his treatment upto 23-8-96. The management did not consider all the aspects relating to his ailment inspite of giving intimation to that effect. The fitness certificate issued by Dr. B.B. Singh dt. 23-8-96 was also forwarded to be the management on 24-8-96 but he was not allowed to resume his duties there. The workman also submitted that the management had no authority asking him to report to G.N. Hospital to CCL for his medical check up parti- cularly when he remained in bed rest under advice of his Physician. It has been alleged by the work- man that the management has dismissed him from service illegally, arbitrarily and without any basis and for which the said order of dismissal from service is void ab initio and he is entitled for reinstatement with continuity of service, back wages and conse- quential benefits.

workman that while he remained under medical treatment and bed rest the General Manager (P&A:C), CCL Ranchi issued a chargeshect against him on 27-1-94 by Regd. Post knowing fully well about his ailments. The concerned workman submitted his explanation dt. 21-3-94 challenging the legality, bonafide and competency of the chargeshcet issued by the management. It was also pointed out by the workman in his reply that sickness being an incidence of life would not in any way constitute misconduct and accordingly he prayed for dropping the charge- sheet and to allow him to join his duty accepting fitness certificate issued by the Doctor. The con- cerned workman further disclosed the bonafide *g his medical treatment and genuinness of the medical certificate submitted from time to time by him with application for extension of medical leave were never disputed by the management. The workman sub- mitted that no intimation also was given to him about the decision to constitute enquiry against him on the basis' of chargesheet issued against him. It has been alleged by the workman that the Enquiry Officer held enquiry exparte and found him guilty of conti- nuous absence since 15-3-93 and charge of not attending GNH for undergoing medical checkup. The workman further disclosed that without affording him any opportunity to make an effective represen- tation against the said enquiry report the General Manager (P&A) without any competence and autho- rity and without application of mind dismissed him from his service by his Order dt. 2-5-96. The work- men submitted that under the service condition and even under the Certified Standing Order inability to attend the duty on account of sickness do not constitute any misconduct. The so-called enquiry was malice in law and it was done deleberately by the Enquiry Officer. It was an one sided enquiry and the Enquiry Officer did not consider necessary to oxamine any independent witness to substantiate the charge against the concerned workman. The findings of the enquiry officer was based on surmise and conjectures as it did not support any legal credible evidence. Moreover, the Enquiry Officer also ignored the basic principles of natural justice. The General Manager (P&A) who usurped then powers ot disciplinary authority had no delegation of disciplinary powers. The workman further submitted that the order of dismissal from service on the allegation of unauthorised absence on account of sickness and prolonged treatment is discriminatory and arbitrary as it did not disclose the specifio service condition or rulos in terms of which sickness of con- sequent prolonged treatment necessitating absence from duty is enumerated as misconduct and the G.M. (P&A) was not duly empowered to dismiss him from service and for which the order of dismissal is liable to be set aside. It has beon submitted by the con- esrQsd workman further that on different o^cassions

3. The management on the contrary, after filing the W S.-cum-rejoinder denied all the claims and allegation which the workman agitated in his W.S. It has been disclosed by the management that the concerned workman remained himself absented from 15-3-93 on the ground of his sickness inspite of giving intimation to him to report for thorough medical check up at G.N. Hospital by the Dy. Chief Medical Officer on any working day but he did not turn up. It has been further disclosed that though there was ample facility to get proper treatment there the con- cerned workman did not consider necessary to g et his treatment there on the contrary he arranged for his treatment, outside. Accordingly the management had sufficient reason to believe that the concerned workman was willingly trying to avoid the instructions of the management to gel his medical check up through the hospital of the management. It has been alleged by the management that the concerned workman absented himself unauthorisedly from his duty since 15-3-93 without any justifl able cause and reason and thereby hampered the official work of the manage- ment to a great extent. Under the circumstances the management issued a charges heet dt. 27-1-94 to the concerned workman on the ground of absenting himself from duty for more than one year and he had violated the administrative instruction of the manage- ment by neither reporting to the Dy. Chief Medical Officer, G.N, Hospital, Ranchi for thorough check up nor reported back to his duty. He also did not ffiPWi 3WSSW OF "miAf V m& "j; flwi^-wii&ifk 2, 1923 LFA"T i^si", 3i

Opportunity to the management to lead evidence afresh to prove the misconduct of the concerned workman and also his having no right to continue in the management if the domestic enquiry was held to be vitiated.

5. Now the points for decision in this reference are (1) whether the action of the management of Central Coalfields Ltd., in dismissing the services of the workman Sh. Bhubneshwar Mallick on the ground of unauthorised absence etc. was proper and justified and (2) if not, to what relief is the concerned workman entitled?

FINDINGS WITH REASONS consider necfessary to give any reply to the charge- sheet. The said chargesheet was sent to his home address with direction to give reply as to why dis- ciplinary action should not be initiated against him under the provisions of Standing Order as applicable to him. However on 21-3-94 the concerned work- man submitted his explanation and in the said explanation he denied the applicability of Ihe Standing Order on him and also challenged the competency of the disciplinary authority for issuing chargesheet to him. As the reply given by the concernd workman was not found satisfactory, under order of the management an enquiry committee was formed and Shri S.K. Singh, ST. P.O. (NEE) was appointed as Enquiry Officer while Shri S. Bakshi, Sr. P.O. (NEE) as Presenting Officer. The management alleged that thereafter several notices of enquiry were sent to the concerned workman under Regd. Post with A/D but the concerned workman did not consider neces- sary to attend before the enquiry committee. Accor- dingly finding no other alternative way the enquiry officer proceeded with the enquiry exparte and sub- mitted his reply finding the concerned workman guilty of the charges levelled against him. The said report of the enquiry officer was considered by the management and the then G.M. (P&A), the discip- linary authority who was also the Head of the depart- ment concerned accepting the report sent show cau^e notice to the concerned workman as to why his ser- vices should not be terminated from the roll of the CCL management with effect from 15-3-93 as his misconduct according to the Standing Order of the Company was established as per report of the Enquiry Officer. Impite of submitting reply of the said show cause notices the workman concerned asked for some documents from the management which were un- warranted and undesirable. Therefore, the con- cerned workman was directed to attend the Office of the Dy, P.M. (A/SE) for further needful formalities but the concerned workman did not attend the office. Thereafter considering the gravity of the misconduct proved against the concerned workman and also on the facts of the case the G.M. (P&A), the disciplinary authority decided to terminate the person concerned from the service of the company and accordingly termination order was issued on 2-5-96. It has been submitted by the management that considering the foregoing facts and circumstances the order dt. 2-5-96 passed by the authority was fully justified and for which he is not entitled to any relief whatsoever. Accordingly the management has prayed for rejec- ting the prayer of the concerned workman.

4. In the W.S.-cum-rejoinder submitted by the management they prayed for hearing of the domestic enquiry with a view to produce relevant papers before this Court to justify their claim. The management also submitted prayer that to give an

6. On the basis of the prayer of the management in the W.S.-cum-rejoinder this Court took up hearing of the preliminary issue of the domestic enquiry held by the management against the concerned workman was legal, valid and if it was held in compliance to the principles of natural justice and equity. In course of hearing the management relied on some documental y evidence marked as Exrs. M-l to M-2I. The workman side also relied on certain documents in support of the claim which during the hearing were marked as Exts W-l to W-7. Considering all these documents and also after hearing both sides it was decided by Order dt. 16 dt 11-5-99 that tht domestic enquiry hold against the concerned w orkman was not fair and proper and for which pieliminary point was decided in favour of +he workman with liberty to the management to adduce evidence to bring home the charges mentioned in the chargesheet. Accordingly in view of the direction given by this Tribunal the management submitted its prayer to adduce evidence in order to substantiate the charges which was brought against the concerned workman, in course of heaiing on i.'erit of fhc reference, tbc management examined one witness as. MW-1. On the contrary the woikman concerned himself examined us WW-1. Both the witnesses on the part of the management and the concerned workman were examined, cross-examined and discharged. In course ot examination of the witness the management did not consider necessary to produce any document to substantiate the charge which was brought against the concerned workman particularly when during hearing of preliminary issue the domestic enquiry he!J against the concerned woikman was net fair and proper. It is an admitted fact that the concerned workman was an employoo under the management of CCL Headquarters. It is due to hi-, sickness he could not resume ditties and for which he intimated the management and sought for leave but the manage- ment did not consider necessary to intimate him as to whether the leave as prayed for was sanctioned or rejectod. It is the further contention of the concerned workman that wllifully he did not get himself absen- ted from duty as he fell sick it was not possible on 2 f"

wofkmfln by the management with, the allegations of serious misconduct within the meaning of S.O. I7(i) (c)(d)(f) and (n).

his part to resume his duties at the place of his work inspite of giving intimation to that effect. It has been disclosed by the concerned workman that illegally and arbitrarily the management issued a chargesheet against him on 27-1-1994 and he gave reply to the chargesheet on 21-3-94 but ignoring his submission the management started an enquiry and thereafter dismissed him from service as in the eye of Enquiry Office* he was found guilty of the misconduct. The concerned workman stated categorically that his absence due to sickness does not fall within the purview of misconduct and for which an order of dismissal passed by the management was absolutely illegal. The conceited workman also challenged the authority of the G.M. (P&A) to dismiss him from his service.

7. It is seen from the record that the concerned workman was chargesheeted on 27-1-94 on the follbwing grounds :

"That you have been absenting since 15-3-93 on ground of sickness and have failed to report either for duties or to GNH for check-up violating the administrative instruction in this regard.

That you were officitlly advised vide reference letter No. 2695/P/7473-76, dated 20-8-93 and 2695/P/2253-57, dated 23-10-93 to report to Dy. CMO for thorough Medical check-ip but neither you reported to him nor sent any reply thereof.

That you have developed the habit of rema- ining absent and availing frequent leave from duties without any valid reasons thereof, the following being a few of the instances of the leave availed by you during the year 1993.

28 days A.L. w.e.f. 15-1-93 to 21-2-93.

One day leave without pay on 22-2-93.

15 days sick leave w.c.f. 23-2-93 to 9-3-93

The above instances clearly depict that you have practically not attended your duties since last one year, have been absenting on ground of sickness since last 9 months and are 'intentionally avoiding to prevent yourself for thorough medical check-up in company hospital.

The above charge, if proved, would consti- tute a serious misconduct within the meaning |of S.O. No. 17(i)(c)(dXf) and (n) of Certified Stan- ding Orders of NCDC Ltd. (Now CCL) by which your conduct and discipline is governed or even otherwise considering what misconduct, is has to be reasonably construed."

Here the points for consideration are whether the concerned workman committed any misconduct as per the provision of clauses montioncd above and if so whether the management was competent to dis- miss him from his services and secondly if the G.M. (P & A) was legally competent to issue order of dismissal to the concerned workman from his service. Learned Advocate for the concerned workman refer- ring Standing Order of NCDC submitted that the G.M. (P & A) had no authority to pass any such dismissal order. Learned Advocate for the concerned workman also relied upon the evidence given by the MW-1 i.e. Dy. P.M. in this regard. MW-1 during his evidence admitted that there was no officer desig- nated as G.M. (P & A) prior to the merger of NCDC with CCL. The delegation of power to the G.M. (P & A) was subsequent to the merger. In course of hearing learned Advocate for both sides agreed that NCDC had its independent entity upxo 1974 and, thereafter NCDC was merged with CCL. It is the contention of the learned Advocate for the manage- ment that even after morger of NCDC with CCL Standing Order of NCDC was followed because of the fact that no independent standing order during the period when chargesheet was issued was not framed. Learned Advocate for the management referring Order No. PD/246/S.O. Amend/68 dt. 9-6-70 submitted that delegation of powers was given to all the General Manager along with others. Not only the chargesheet but also the order of dismissal was issued by the G.M. (P & A) and as such according to this order G.M. (P & A) shall be considered to be as competent authority in this regard as per provision laid down in Clause (e) of S.O. No. (1). Therefore, referring to the said order, learned Advocate for the management submitted that though there was no post of G.M¹ (P & A) under the NCDC at the time of merger that does not indicate that the G.M. (P & A) was not delegated with the power of the competent authority in view of the order mentioned above particularly when NCDC was merged with CCL and Standing Order of NCDC was followed at CCL. MW-I during his evidence categorically denied the fact that the G.M. (P & A) was not autho- rised ' under the Certified Standing Order to issue chargesheet. It has been disclosed by this witness that such power was delegated to him subsequently after amalgamation. After careful consideration of all facts and circumstances and after hearing both sides there is sufficient scope to show that even after merger of NCDC with CCL the standing order followed by NCDC was adopted by the new concern as the new concerned i.e. CCL by that time could not formulate the new Standing Order. It is dear that from the order mentioned above all the G.M's.

The reply given by the concerned workman in rela- tion to that charge sheet was marlccd as Ext. M-I4. Therefore considering the chargesheet and also considering reply of the concerned workman it is clear that the chargesheet was given to the concerned 2#o itffi GAZETTE OF INDIA : JUNE 23, 2OOI/ASAD#A % 1923 [PART 11—SBC $cm were delegated with the power of competent authority to exercise the power, approval of the punishment as referred to therein in respect of workmen working or posted to work for the time being in the units/section under their respective jurisdiction and control. As such I hold that the G.M. (P & A) was competent enough not only to issue chargesheet but also to take all other legal steps against the workman for mis- conduct.

9. Now the point for consideration is if the con- cerned workman was guilty of misconduct according to the provision as laid down in S.O. No. 17 (i) (c) (d)(f) and (n). Clause (c) speaks "Wilful insubordi- nation or disobedience, whether alone or in conjuc- tion with another others, or of any lawful or reason- able order of a superior". Clause (d) speaks "Habi- tual late attendance and habitual absence without leave or with sufficient cause." Clause (f) speaks "Habitual or serious neglect of work." While clause (n) speaks "Continuous absence without permission and without satisfactory cause for more than 10 days." I have carefully considered the evidence of MW-1 and I find no hesitation to say that the management has failed to prove the charge against the concerned workman which was drawn up as per provision laid down in Clause 17 (i) (c) (d) and (f). Therefore, there is sufficient scope to say that the management has failed to establish the misconduct against the concerned workman under the provisions as mentioned above.

the management along with medical certificate in support of his ailment. Therefore, this very admis- sion on the part of the management shows clearly that though the concerned workman did not obtain prior permission before enjoying sick leave informed the authority about his sickness supported by the medical certificate. Accordingly there is no scope to say that wilfully the concerned workman abstained himself from duty. It is the specific contention of the management that the concerned workman did not respond to their direction to attend the CCL hospital for his medical check up. It has been admitted by MW'l that as the concerned workman did not res- pond to their direction they started domestic enquiry. It is not the case of the management that the medical certificate issued by the doctor was false and fabri- cated. Therefore, unless and until any such allega- tion comes in there is little scope to ignore medical certificate which the concerned workman submitted in support of his sickness. From the Standing Order I do not find any wisper that the workman in case of their sickness are liable to receive their treatment from the hospital of the management. Unless and until there is any binding to that effect it will not be just and proper to draw any conclusion that for non- compliance of the management's direction to attend the hospital amounts to misconduct. It is a fact that the management maintains hospital for the benefit of the workman but there is no reason to believe that in absence of any specific provision in the Standing Order that a workman shall be debarred from enjo- ying the medical treatment out of his own choice elsewhere other than from the hospital of the manage- ment. There is ample scope on the part of the management to verify if the concerned workman was really sick during that period or not but the manage- ment did not follow any such procedure. It cannot be considered as a ground of misconduct as the con- cerned workman failed to attend the hospital of tho management for his medical check-up as per direction. The concerned workman categorically disclosed that as he was sick and bed ridden it was not possible on his part to attend the said hospital of the manage- ment. This evidence on the part of tlie management concerned workman was not contradicted in courtc of his cross-examination. Learned Advocate for the management in course of hearing submitted that onus was on the concerned workman to establish ihat he was really sick and for which he could not attend his duties for such long period. The submis- sion of tho learned Advocate for the management, I consider, stands on stable footing. Learned Advo- cate for the workman on the contrary referring the medical certificate marked as Ext. M-5 and W-l submitted that the concerned workman was really sick for which he could not resume his duties. I have considered both medical certificate referred to above. From the Medical certificate Ext. M-5 it 10. Now let us consider if the concerned workman committed misconduct for his continuous absence without permission and without satisfactory cause for more than 10 days as provided under S.O. 17(i)(n). It is the specific contention of the concerned workman that he went on sick leave due to his ailment from 15-1-93 to 9-3-93 and thereafter he could not resume to his duties due to his ailment and from time to time he informed the management in the matter of his ailment. MW-1 during his evidence disclosed that as the concerned workman started absenting from duties from 15-3-93 he was served with a chargesheet issued by the G.M. (P & A). This witness further dsclosed that he concerned workman did not inti- mate the management as to the cause of his absence but admitted subsequently that he submitted a medical certificate in respect of his sickness and ground of his absence from duty. MW-1 during his evidence further disclosed that on receipt of the said medical certificate the workman was directed to get himself treated in the hospial of the CCL but he did not avail of the opportunity of the said hospital. On the contrary intentionally he avoided it and as a result of which a chargesheet was issued and a domestic enquiry was started. Therefore, from the evidence of MW-1 it is clear that the concerned workman after enjoying sick leave again submitted application before2931 there is also htile scope to say that the concerned "workman kept the management \n the dark about the reason of his absence. Accordingly, after careful consideration of all the facts and circumstances dis- cussed above I hold that the concerned workman did not commits any such misconduct which comes within the purview of S-O. 17(i)(n) of the management. It is seen that the management started domestic enquiry without ascertaining cause of absence of the concerned workman properly. It is seen that the enquiry officer held the ex-parte though the concerned workman failed to appear before tho enquiry officer due to his sickness. It is seen that the Enquiry Officer found the concerned workman guilty of misconduct for violation of the above provision of Standing Order as mentioned above. It is further seen that ttie competent atithority i.e. G.M. (P & A) relying on the report of that enquiry dismissed the concerned work- man from his service before making any further enquiry. After careful consideration of all facts and circumstances discussed above I hold that the manage- ment passed the order of dismissal of the concerned, workman illegally and for which the same is liable to be set aside.

11. In the result, the following Award is rendered :

"The action of the management in dismissing the concerned workman is not justified. Conse- quently the concerned workman is entitled to get his reinstatement to his original service. His service shall be considered continuous, but, with- out the privilege of back wages."

The management is directed to reinstate the con- cerned workman to his original post within one month from the date of publication of the Award in ihe Gazette of India.

B. BISWAS, Presiding Officer

New Delhi, the 25th May, 2001 transpires that the concerned workman remained under Medical treatment of L. B. Singh since 15-3-93. The medical certificate was issued by the said doctor on 2-9-93. On the contrary from the medical certi- ficate issued by Dr. B. B. Singh dt. 23-8-96 it trans- pires that the concerned workman remained under his treatment from 6-10-93 to 23-8-96. It is seen that he was a patient of "Schizophrenia". This doctor issued fitness certificate on 23-8-96 of the concerned workman with a view to resume his duties. Therefore, from thc:c medical certificates it transpires clearly that the concerned workman remained under prolonged treatment for his ailment. There is scope on the part of the manefement to examine these two medical practitioners in order to ascertain the tiuth relating to the sickners of the concerned workman but ihe management did not consider necessary to do so. No evidence is forthcoming before this Tribunal on tho part of the management relying on which there is scope to say that the medical rcrtifkalo which the concerned workman relied on are false and fabricated. Until and unless t ie same is established there is little scope to raire any dispute about its fenuinety. Further, the learned Advocate for the management submitted that apart from these two medical certificates the concerned workman did not consider necessaiy to produce before the Court or before the Tribunal any other medical ptper relating 1O his treatment. It is a fact that the concerned workman during his evidence did not produce any other medical papers inspite of his medical treatment but for that reason there is no scope to draw any such conclusion that the certifi- catet submitted by the concerned workman arc false and manufactured. As such it is seen that due to sickness of the concerned workman he could not resume to his duties. It is further seen that prior to his going on leave he also submitted sirk leave appli- cation and that leave application for the period from 22-1-93 to 9-3-93 was duly sanctioned by the manage- ment. Therefore, his subsequent absence after the expiry of tho leave period was consequent to his ailment and in the natural course it was not possible on his part to resume his duties No evidence on the part of the management, in view of the facts and cir- cumstances discussed is forthcoming before the Court relying on which it can be said ihat the concerned workman negligently and wilfully avoided to join his duties after expiry of the period of leave. Clause 17(i)(n) of the S.O. clearly speaks that conti- nuous absence without permission and without satis- factory cause more than 10 days shall be amounted to misconduct on the part of the workman. My dis- cussions above will exprets clearly that the concemod workman did not abstain himself from duty willfully and intentionally as he remained sick it was not possible en his pan lo retr.mc rr.t. duties. It is further seen that he intimated the reasons about his absence by filing application to the management. Therefore'

S.O. 1422.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby published the award of the Cent- ral Government Industrial Tribunal, No. 2, Dhanbad 29*2 THE mZETTE OF INDIA tiTUWir^, mi/*m&8A % 1923 [PART H-*BC ^(flH as shown in the Annoxure in the Industrial Dispute between the employers in trelation to tne manage- ment of B.C.C.L. and their workman, which was received by the Central Government on 23/05/2001.

[No. L-20012/35/92-IR-(C-I)

S.S. GUPTA, Under Secy.

ANNEXURE

BEFORE THE CENTTAL GOVERNMENT INDUS TRIAL TRIBUNAL (No.2) AT DHANBAD

PRESENT

SHRI B. BISWAS

Presiding Officer.

In the matter of an Industrial Dispute under Section 10(1) (d) of the I.D. Act, 1947. REFERENCE No. 142 of 1993

Parties Employers in relation to the manage- ment of Bhalgora Colliery of M/s. BCCL and their workman.

Appearances :

On behalf of the employers : Shri B. Joshi, Advocate On behalf of the workman : None. State : Jharkhand Industry : Coal

Dated, Dhanbad, the 16th May, 2001.

AWARD

The Govt. of India Ministry of Labour, in exer- cise of the powers conferred on them under SuctionlO(l) (d) of the I.D. Act, 1947 has referred the following dispute to this Tribunal for adjudication vide their Order No. L-2OO12/35/92-IR (Coal-I), dated, the 2nd Sept., 1993.

SCHEDULE

"Whether the demand of the union from the management of Burragarh Colliery under Bhal- gora Area of M/s. B.C.C.L. P.O. Jharia, Dist. Dh- anbad that Sri Suloman Mian should be allowed to resume duties with full back wages w.c.f. 8.11.76 together with accompanying benefit, is justified ? If so, to what benefit the workman is entitled?

2. In this reference both the parties appeared and filed their respective W,S. documents etc. Subsequent- ly at the stage of oral evidence, the workman side abstained from taking any steps further. The refer- ence is pending since 1993 and it is of no use to drag the same any more.Under such circumstances, a ' No dispute' Award is rendered and the refernce is dis- posed of on the basic of 'No dispute' Award presum- ing non-existence of any Industrial dispute between the parties presently.

B. BISWAS, Presiding Officer New Delhi, the 25th May, 200] S.O. 1423.—In pursuance of Section 17 of the Industrial Dispute, Act, 1947 (14 of 1947), the Cen- tral Government hereby published the award of the Central Government Indistrial Tribunal, No. 2 Mumbai as shown in the Annexure in the Industrial Dispute brtween the employers in relation to the manage- ment of Indian Airlines Ltd. and their workman, which was received by the Central Government on 23-05-2001.

[No. L-11012/135/2000-1R (C-l)]

S.S. GUPTA, Under Secy ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUS TRIAL TRIBUNAL No. II. MUMBAI

PRESENT

S.N. SAUNDANKAR

Reference No. CGIT-2/117 of 2000.

Employers in relation to the Mamangement of The Regional Director, Indian Airlines, Western Region, New Engineering Complex, Mumbai-400099.

AND

Their Workman The Chairman, Air Corporations Employees Union, C/o Indian Airlines, New Engineering Complex. Sahar, Mumbai-400099. Apprearance :

For The Employer : Mr. K.B.Swamy Advocate, For the Workman : Mr. A.K. Menon Representative- Mumbai, Dated 3rd April, 2001.

AWARD

The Government of India, Ministry of Labour, by its Order No L-tlOI2/135/2OO(C-I) dated 29th Novem- ber, 2000 have referred the folloing Industrial Dispute }o thi-. Tribunal (or adjudication,

""Whether the action of M/s. iatiian Air Lines Ltd., in- Msnxinacin®; Shri D.V Unawune (iMitti the services of thcrltsdiun A" tine* is jusiSHad Jritcf proper 1 tt oot, to *rrat rttlicf ia-tlw workman entiftof? "

2 Pursuant to the notices Mr. A.K. Menem, Chairman Air Covporatipn Enrpovces Union, bv Uio application (JExhibit-5) dtd. 2/2/2C01 apprised that Re- ference No. CG1T-2M5 of 2000 also pertum to the pi*"Btr-cf"tonyo On- the same day management also vide letter (Exh>bit-6) contended that the "No Dispute tiwafd" be passed in view of the position, ami i.on'.e- iquantly the matter was reserved for passim Award, as thiv tribuaal had not received notification on uppoinl- montas required under Rule 5 of I.D. Rules, 1957, 3. By the CoiHgdudivm dawd 13-2-.001, thre Government informed lh"t the correct name nl tk" workman isShriS.D, Unttwaiw wn- not D.V, (Jn"wnftB 4. Tod"> the "inMtg0m*Bi vid" application (F.iiJiibii- l&) coateflddd tb"t the Referwice No. CGH-2/U5- (of 20(" be disp&sod 08 aad Ref. No. CGIT:/117 of 200& to pfiociod fmtVwr ifrvitiaj attention of this tri- bunal to the Order No. L-2OO12/135/2OOO(C-1) dawd. 29-l!-2€00 issued by the'Government of India, Mim- iitty of Labow ia R"t"4'i"cc No. CGIT/-2/117 ol 2U60, to wr*icft*he onio" opposed by filinftbay (Exhjbit-11), roentiowjugthat the w h e n ce No.CGlT-2/117 of 2000 being, tmbseqweat bo disposed of and Refetenec No. CG1T-2/115 o( 2000 to proceed further.

5. I h"vehe"rd Mr. K.B. Swamy, Learned COMW fefrthe m"ffl"g"mcttt mici Mr. A.K. Mooon, reprc^a- t"*iifc-ol the union. OH going through the lottet dtd. 294-2001 (Exhibit-6>in Rcferem;© No. CGlT-2/115 at 2000 and hearing the counsel and the Repre-tvitauve 1 find proper to proceed with cwUdr Rrtoroncc No. CGlt-2/115 of 2000 and cohrttJtJenfly tbis rS(crfln"" hdog substquem, vfitl haVfl tcr disposed of ttnd hence tlW order :

2!

New Deftoi the 29.lv May, 28*1

S.O. 14"4—1" pursuance cf Section 11 &i the Industrial Dispute, Act, 1947 (14 of 1947), theCtntpal Government hereby publishes the award of At Cen- tral Gowrament led. TribunKl No. 2'.Dh*nb"*a9 9i*e- wa in the Atinoxurc m thtrlnafaatriffl EHsputo-betwecB tke employer!) in rolatiotif to the uiaii"BeTB"Bt of C.C.L- and their worknacH, whiob w*s re"eiv"d by the

(No. L-20012/3IB/92-JR. (C-t)]

S. S. GiJPTA, UB*ST S"cy.

ANKEXURE

BEFORE THft CENTRAL GOVERNMENT INDUSTRIAL T"JBUNAL(NO. 2) A.T DIL*LN"A" FMtESENT

SHRl •• BISWAS,

PRESIDING OFFICBR

Its tfe* ssattcr of "n Industrial Dhpvt* imdw Srctioa iO

REFFRtfNCE NO. JK7 OF 1*93 PARTIES; Employers i* rektioa to tU

APPEARANCES-

Onbeb*tfofthc Sbri 8.N. Si"gk, A"WI. Gw"". workman Secretary & ExpSecmt"ry. On behalf of ib* Shri fl. Jo*hi, Advocate, cmtployers

ORDER

Reforciw;c .-jtanda disposed of m vievv of Oidei of Govctnrnent of India,* Ministry of Labour (Exhibit-6) dtd. 29-1-2001.

3-4-2001.

S.N. SAUNDANKAR, Presiding Officer 1783 GI/2001—17

State : Jharkhan4 Indus uy : &ya\ Dbanbad, the 17th May, 2001.

AWARD

The Govt. of India, Ministry of Labour, ia mer- cite of the po™"^ conferred on them undfer Section I0(IXd) of the I.D. Act, 1947 has referred the fol- lowing dispute to this Tribunal for adjudication vjds thoir Order No, L-200I2 (3lg)/92-lR. (Coal-I) cTted. t tr 9th Noveffibtr, 1993.

2934- fHE OAZETTE OF INDIA : JUNfe 23, 2W1/ASADHA 2, 1923 IFAKT II—SEC. 3(ii)] SCHEDULF

his date uf birth as 4-1-44 according to the Adwu Card issued by tbe Bihar School Examination Bottid ignoring the date of birth determined by the MedlcU Board

"Whether the action of the management of K,D Hewalong project ot M/s. Central CoalH"Ws Ltd ts justified in buperannuatinj the workman Sbri Ram Narayan Prasad, Pay Loader Driver wuk effect from 23-8-1992 on the basis of Medical Examination whieh determined his date of birth us on 23-8-1932 when in hii service sheet date of birth has been mentioned as on l-t-1939 and in Admit Card on 4-1-44 issued by Bihar School Examination Board? If not, to what rchof, th" workman c entitled t o⁷"

2. The cage of the workman is as follow*- —

The concerned workman was appointed on 11-6-73

tu> Pay Loader Operator by K.D. Hcsalong Project of M/s. CCL. N.K. Area. It has been disclosed by ths workman that on his service his date of birth was recorded as 1-1-3P at the time of his appointment instead of 4-1-44 which wa* clearly recorded in the Admit Card issued by Bihar School Examination Board. The concerned workman submitted that infcpite of the bringing tbe matter to the notice of the management the authority concerned did not pay any heed to his appeal. Ou the contrary surreptitiously without hib knowledge the management recorded his wrong date of birth in the service book. The con- cerned workman further sumivtcd that incite of nib claim he Mibmittcd not only the Admit Card in question but also the Transfer Certificate issued by the School Authority over 3-6-72 before the manage ment but the management did not consider tbos" relevant papers for rectification of his date of birth recorded in his service book. The workman sub- imtteit that the Admit Card was issued by the Bihar School Examination Board in the year 1962 i.e. before getting his employment in the said colliery. He also alleged that the management violated the provision vpf Implementation Instruction No. 76 of JBCCl vihich was brought in force to iscttle the dispute regarding Hge/date of birth of the workmen working in" the Coal Industries. He disclosed that he came to know ab6ut wrong entry relating to his date of birth in his survicc book only on 24-6-87 when a certified copy of the said lervicc book was given to him by the management. He submitted immediately thereafter in writing his objection and requested the management to reCofd his date of birth as 4-1-44 Recording to the Admit Card instead of I-1-39 but his appeal before the management did not yield any result. On the contrary he was directed to appear before, thv Medical Board without any prayer on his part iiud the Medical Board arbitrarily without making proper investigation assessed his date of birth as 23->1932.

4. The nmnjement on the contrary after ftUag Written Statoment-cum-rejoinder has denied all claims and allegation^ which the workman asserted in hi* Written Statement. It has been disclosed by the em- ployecr that at the time of appointment of the workman the concerned workman declared his date of birth as 1-1-1939 and accordingly the same was recroded in the service book. The managoment submitted that ser- vice except was distributed in the yeares 1987 and in the said service except the date of birth of the con- cerned workman was indicated as 1-1-1939. Thereafter the concerned workman raised objection relating to the correctness of his date of birth recorded in his. service record and submitted that his actual date of birth wan 4-1-1950 instead of 1-1-1939. But in support or his claim the concerned workman failed to produce any rele- vant papers. Accordingly the concerned workman wus referred to the Apex Medical Board of the company at Headquarters for assessment of his age in view of the dispute raised by him, The Apex Medical Board assessed his age on 23.8.89 as 57 years. Accordingly his date of birth was computed as 23-8-1932 and the matter was informed to the concerned workman by letter dt. 18-11-1989. The management further sub- mitted that the decision of the Apex Medical Board with regard to such dispute is final and conclusive and the superannuation of the concerned workman with effect from 23-5-1992 is legal, valid and justified. It has been alleged by the management that the concerned workman just on the verge of hia retirement made a complaint to the ALC(C), Ranchi through the spon-, coring union alleging that his date of birth was 4-1-44 on the basis of the purported admrt Card issued by the Bihar School Examination Board. It has been fur- ther submitted that the Roll No. appearing in the Mark sheet which the concerned workman relied differed distinctly when the Roll No. in the Admit Card was BIK 145 Roll No. appearing in the Mark sheet is 146. Accordingly the documents produeced by the spon- soring union at the time of conciliation could not be considered as genuines and the same were not filed before the mangement in the year 1987 when the con- cerned workman raised the demand for correction of his age and the management accepting his request sent him to the Apex Mc.dical Board for assessment of his age. Accordingly the management has prayed for answering the Reference holding that tbe superannua- tion of the concerned workman with effect from 23-8-92 is legal and justified and consequently the concerned workman is not entitled to any relief.

3. Accordingly the workman has prayed for rflinstatemen tot his service with back wages treating gtafc 5. The points for consideration in this reference

arc ;—

"Whether the action of the management of K.D. Hesalong Project of M/s. CCL in justified in superannuating the workman Shri Ram Narayan Prasad, Pay Loader Driver with effect from 23.8.1992 on the basis of medical examination which determined his date of birth as on 23.8,1932 when in his service sheet date of birth has been mentioned as on 1.1.1939 and in admit Card on 4.1.44 issued by Bihar School Examination Board? If not, to what relief the workman it entitled?"

6. DECISIONS AND REASONS

daw of birth "j oorded the admit card'eomesa to'a question. Learned Advocate for the concerned woikrnan during the course of hearing has failed to satisfy me to (his effect. Learned Advocate for the concerned workman during hearing relying submitted that after rcceivinj a copy of the service book the concerned workman submitted a petition marked as Ext M-2 wherein he disclosed that his date of birth was 4-1-1950. As it has U;en fuither submitted that as the dispute relating to the age of the concerned workman came into light m \tcw of the petition filed by thr coocerned workman he was referred to the Apex Medical Board Ranchi for verification of his age complying with the statutory provision ot law. It has b:en farther sab mitted that th A pax Medical Board after exam- ining the concerned workman came to the co nclusion that on 23-8-89 the concerned workman was ?7 years old and accordingly his date of bitth was computed as 23-8-1932. Learned Advocate for the management further submitted that at the relevant time the concerned workman did not submit any admit card in order to establish his date of birth and for which there was no scope to consider the saint. He submitted that the alleged Admit can! was filed at the fa- *nd of his service career and after his Medical cxu"Ji. 'ion by the Apex Medical Board and for which it could not be considered at all. Learned Advocate for the management mbmitted that the decision of the Apex Medical Board with regard to the age dispute was final snd conclusive and for which the concerned workman at this stasp is not entitled tu get any relief which he has pravrd for. Learned Advocate for the management in support ot his claim idled upon the decisions reported in 2000 (83) FLR 1931 and 1994 Lab I.C. 2498., In the decision reported in 1994, 2498. Their Lordships of the Apex Couit held tlint correction of date of birth for sought by an employee at the faa end of service is not permissible. In the decision reported in 2000 (85) FLR 931. Their Lordship of the Calcutta High Court held the san;e view ot the Hon'ble Ar>;ic Court. Their Lordships further observed that the right to pet the date .of birth corrected either on the basis of Matriculation certificate oi otherwise is not legal right far or Isss a constitutional right. Learned Advocate for the concerned workman in course of hearing submitted that the management in order to as certain the date of birth of the concerned workman did not considoi necessary to follow the provision of Implementation Instruction No. 76 of JBCC1 which provider the procedure for determination, \enfying the age of existing employers in its clause (B) (i) (a). I have consider the said provision of law. There is no dispute to Wold that it the tune of appointment the management is to relj on the Matriculation ixitifkatc or cqurvaltnt cTcammVumi to TCLO There is no dispute to hold that the concerned work- man was an employee of M/s,. CCL. Ranchi and he got his uppointnient on 11.6.73. It has been sub- mitted by the management that the ^ei^ice bock was opened in favour of the concerned workman accord- ing to the date of birth supplied by him. The manage- ment submitted that in the Service Book the date of birth of the concerned workman was recorded as 1.1.1939 according to the particular! supplied by the concerned workman ,Tt is admitted fact that a copy of the service book was handed over to the concerned workman in the year 1987. It is the specific conten- tion of the concerned workman that after receiving the copy of the service Book he came to know that his date of birth was wrongly recorded in the Service Book and immediately he submitted an application for rectification of hia date of birth relying on the admit card is°ucd by the Bihar School Examination Board. He disclosed that according to the said Admit Card his date of birth was 4-4*1944 and th; said adw'Card was issued by the Board long before getting hi•* ap- pointment with the management The concerned Admit card during evidence of the workman was marked a- Ext. W-l. The concerned wofkman alt>o relied on the Transfer certificate, character certificate issued by the Head Mahler, H.E. School Sikaria, Patna. The re- levant certificates during the evidence of the concerned workman were marked as Ext. W-2 and W-3- The con- cerned workman during his evidnece has failed to prove the authencity of these two certificates issued bv the Head Matter, H.E. School, Sikaria, Patna and for which it is very much difficult to give any im- portance to the same in the matter of proving the age claimed by the concerned workman. There was scope on the part of the concerned workman to produce the School Register in support of his claim relating to the age recorded in the cetificates I have consi- dered the Admit Card. From the admit card it transpires that the date of birth of the concerned workman was lecorded as 4.1 1944. The figures "4 1.1944" appears to be writte-.. in different ink and by different person which in no circu'TM-.ncc ullics with the writing it! ink the Admit Card. As such Qoiiuinit> of the 293" "TlWt"A"BTTK OF INDIA : JWfe 23, JO©!/A5AI>**A 2, 1^3 [PART ii~S*c. 3(ii)]

of birth has b"cn nientioacd as on 1-1-1939 and in Admit Card on 4-1-44 issued by Bihar School Examination Board. Consequently, the concerned workman is not entitled to any relief¹'.

B. BISWAS, Piesrtiing Officer.

New Delhi, th" 28th May, 2001

S.O. 1425._In pursuance of Section 17 of the Industrial

Dispute Act 1M7 (14 of 1*47), the Central Government

befbby puMinheg the nwttd of th* Indwttrittl Tribunal/

Labour Court, Roark"U, B" shown in the Aniwxere in the

Indrntria] Dispute between the employers in relation to the

iBMiageiftcm of M/s. Bisra Stone Lime Co. and th"4r wort-

•ttm, which tw r"crt\ed ky th" Centrtl Govern""TOt an

25-5-2001.

[No, 1^29011/26/94-IRfM)]

B. M, DAVID. Under Secy.

ANNEXLWE

IN THE COURT OF PRESIDING OFFICER, INDUSTRIAL

TRIBUNAL, ROURKELA

Industrial Di^"ut" Case No, 72/97(0

Dated, the 20th December, 2000

PR1SENT:

Sri AJak Kumar Dutta,

Presidkic Oflfew,

JnilQitrM Tribunal,

RourkeU.

BETWEEN

The Exeeutive Director,

M/ft. Blsra Stone Lime Co. Ltd.

P.O.: Birmitrapor,

SBH*nrf"rh.

lit Partr

date of birth of t ic concerned -woman its c o ma we. It is "*aa that a& evidcac" is forLhcojpiaf bciofe the Court that the concerned woikman at the time of totting his cnuy in the sftrvict produced tho relevant admit card to note down tlae date of birth i" the ftjrvicebook. On the c"n'rary it is seen that alter assessment of his age by the Apex McJic.il Board the concerned workman relied ou tliis AJmit card. Had that not been HO the concerned workman definitely would not in his application dihdoso his date of birlb as 4-1-1950. Learned Advocate for the eooccfaed workman submitted that tht date recorded in the petition was a mistake but no evidence is forthcoming before the Court that the eorjceraod worfnuan submiltud any freak petition before the management i\>r amondtnp th~ wrouj date s£ birth oacorded in the original petition which be submitted. The date of birth recorded in the Admit caid appear* to be written in different ink and by different person %hich docs not uUy with other writings in the Admit Card in ink. In natural eattcsr.^uestion rdttuaj to &o gofitiiuity of ti"e Admit card COSUM ia akseac* of any other cegant Uocuiutfiit. There %as scope on the part of the ^uBcerued waikRiAH to pr"dUe" his Mar£"iiC*t and rdfiistration csrti- fl&iite ar ho had tko scope to call for the origiual record ham .the Sck*<)l B"ard m s u p ^ rt t-t his ciaJm i nt ht aece*iary to do f o. No sat^rfactofy wplauition is also foj'thcoiBinj on tlw p"rt of th* eoucorned 5VwkHgan in thii regard. As suoh cm cartful consideration of all facts and oiretc"st(ineesf it is clear that the concerned work- warn, at a belated stage after his age tvas ascertained by the Apex Medical Board relbd only on disputed Ad"it card in the matter of Ir* date ot birth. [ hold tfeat the matrajjeintiit following the Impl-enicn- tatica InstrnctioB No. 7fi referred tho concerned workman to the Apex Medical Board for his medical •xareinatkm in the matter of aacertaiuing his age. The A p" Medical Board categorically observed that OH 23-8-89 tho concerned *\orkman was 37 ye*is old "nd therefore, his date c f birch was tfCittputed as 23-8-32. I have failed to find out any hTflgality in s"upor"anuatinf tho concerned "orkmj" with tfl"ot ft'OBi 23-8-92. As such coasidorinj all aspects oatofully and also considering the equity and aatttra] justice I hold that the marutgememt did not commit any illegality m iupe/unniMli'ig the ooneexacd workiuaa with aflcol from 23-S-92.

AND

TB tke result, tlie foHowimt A*ard is readt"rcd :

Their Warkmeu,

rMTCMBted by

The Secretary,

Gaagpur Labour Umioa,

P.O.: Birmitrapw,

Df^t.: Sundargttrh

. .. Ilirf Party

APPEARANCES .

For the 1st party.—Sri U. K. Miahra. Advocat*.

"Tkcactios of the management of K. D. Hcsalona Project of M/s. Central Coalfields Ltd. is justi- fied in superannuating the workman Sbri Rum i\araya" Prastd, Fay Loader Driver with effect .itfja 23-I-1P92 on the basis of Medical fKaaunatio* wbicl) derteniiincd bts dale "f biilk as on 23-S-193? when in his set vice sheet Jal;

For the JInd party—Sri G. Mohapatra, Advccate.

AWARD

Ike Government of India in the Ministry of Labow i>i exercise of powers confeirsd by clause (d) of sub-section (1) and Mib-section (2A) of section 10 of F.D. Act have referred the Hollowing disputes for adjudication \,

1 Whether the action of the management of M.\. Bisra Stone Lime Co. Ltd.. Rirmitrapur not giving opportunity to the workers to opt voluntary reliic- nient scheme as per tripartite settlement dt. 25-4-89 and bilateral discussion dt. 7-6-93 and give employ- ment to their dependants is justified ? If not. to what relief the workmen aie entitled to '

2. Whether the action of the management ot M/s>. Bisfa Stone Lime Co. Ltd., Birmrtrapur not giving employment to the dependants son, daughter. s>pou!se of the employees who dies in harness or is perma- nently declared medically incapacitated for further employment by the Company's Medical Board ai per the tripartite settlement dt. 25-4-89 and bilateral discussion dt. 7-6-93 is justified ? If not, to *hat relkf the dependant* arc entitled to?

2. The claim statement oi the 2nd partv workmen in

ferief is at follows:

The 1st pasty company came* on business in mining ">f limestone and dolomite from its quarries and supply the same to SAIL and other steel plants and Cement Plants. Theie are 3200 workmen employed by the 1st party in Its mines for their exposure to these minerals, they suffer from various types of ailments like tuberculosis, Asthema, Cancer, Paralysis etc. for the interest of workers their union negotiated a deal with the management and accordingly discussion wis held on 9/10-3-89 at Calcutta and for the benefit of worker* two schemes were adopted. One scheme is voluntary retire- ment scheme under which it was agreed that for tjverv employee opting for voluntary retirement under this scheme and aged above 52 years there shall be one employee opting for voluntary jetirement at the age of 52 years or below and in that way in all total 75 workers will be allowed to retire voluntarily in the following manner i.e. in 1989-90— 450 cases, in 1990-91—200 cases and in 1991 tip to ^ 1-12-91—100 cases. Under the scheme replacement on i-r.Rinr>vsiona'e -:'P"nci il wa> .igreed that one direct dependant "' i i- tmnloti,. (hinv in harness or declared modicallv swnr "filly unfit fr>r iurthci service will be employed in the same manner as applicable to replacement scheme.

schema shall be kept ia abeyance till the order for despatches (Limestone & Dolomite) reached 90000 tonnes per month on a bustumed basis and generates 'sufficient fund. The 1st party in its letter dt. 8-4-92 intimated that the cases of death in lumess and medically unfit persons were on scrutiny and action would be taken suitably in terms of settlement. On 28-4-92 a minute of discussion was drawn and signed bet- ween the management and the union between A.L.C(O to grant two weeks time to the management to take decision to implement the voluntary retirement scheme. The manage- ment failed to implement the scheme and the union raised sis point demands before the A.L.QC), Rourkela and during conciliation a minute of discussion dt. 6-3-93 was drawn and signed between the parties and it was agreed that the management would implement both the schemes. Again the tripartite settlement dt. 25-4-89 was reviewed and agreement was reached between the union and the management on 7-6-93 and modified renewal scheme was agreed. The management in its reference No. URP 3824 dt. 21-8-93 stattd that due to complete stoppage of despatches of minerals implementation of the scheme had been affected. As the m.iiiat'tnieni failed to implement ihe tripartite settlement dt. 25--4-M anJ i!>c modified replacement scheme ut. 7-6-93 the union raised the dispute before A.L.C(O. The 2nd partv contends that on 24-9-91 the company made an appeal to sustain the target of minimum 85000 tonnes despatch per month mentioning that order for one Lakh tonnes per month was teceived from various customers. In the minutes of discussion dt 12-5-92 it was agreed to raise ^production from 50000 tonnes to 80000 tonnes per month and workers were further requested to raise despatch of one lakh tonae per month from June 1992 onwards. The 2nd partv contends that despatch order of material* from different plant is always over one Lakh tonnes per month. The 1st party union claims that till September 1993 only 351 cases have been considered under different categories of the modified replacement scheme and thereafter 1st party totally stopped implementina the scheme. Tt claims that about 700 applications for retirement and 100 applications on comp.'wonalo grounds are pending before the management for consideration. But without any valid rfasons the management is not considering those cases, under the "cheme. The 2nd party contends triat the Tst n^rfv has taken a false plea that in the tripartite settlement dt. 25-4-89 and the modified replacement scheme dt. ^-6-91 it is motioned that implementation of the replacement 'chem& is based on consistency of despatch order of 90000 tonnes per month and generation of sufficient fund But there is no such clause in both the schemes. The 2nd party further contends that implementation of these schemes and appoint- ment of trainees will actually brine financial benefit to tt-e company and on the other hand will ameliorate the surf prints of the workers. The 2nd party contends that the Central Government it the first instance had lefuscd to refer this dispute for adjudication.

3. The 1st party failed to implement the above schem; and contemplated reduction of man power in the mines. The union r"-'ij industrial dispute vide letter dt. 17-4-89 before A.L.CVO, Rourkela. During conciliation proceeding tripartite settlement were signed by 1st partv. their workmen represented by Gancpur Labour Union and R.L.CXQ on 25-4 89. As per the settlement it was agieed that workers will be allowed to opt for voluntary retirement as decided in the previous settlement i.e. The management also acreed that one direct deperilant, son, daughter or spouse of the retiring employee under the scheme will be given employment who will be eligible for fringe benefits like Provident fund, bcnti", sick or accident v. ages, maternity benefits etc. It wa" further agreed that t>ne depsndant son/daughter 'spouse of the employes who dies in ha'.'iess or is permanently declared medically unfit will he piven employment in the same mannei .••s stated abuve.

5. In reply, the 1st party companv admits about the tripartite settlement under which the companv agreed to implement the two schemes i.e. replacement of labour and ierla.-em"*nt on compassionate ground. The company agreed tfi implemenl the-e ••chemes as a desperate measure to "f the companv from financial loss. The 1st party contend"! *bat on 18-10-90 the said settlement was reviewed and mother settlement was mfde and after the settlement rnit'e on 18-10-90, 376 number of cases were considered under the replacement Theme [n that settlement it was atireed that after June 199J. th"" replacement scheme shall be kent in abevnnce t>'!l such time, the order for despatches reaching 90000 tonnes per month on the sustained basis and cwnentps sufficient funds. The 1st party claims that from Juiv 1991 til! rifle the company never achieved the target of 90000 tonnes oei month on sustained basis Since both the schemes sre tux! with companv aenie\ing monthly despatch of 9f"ViO toines on sustained basis as per the agreement dt 18-10 00 ard as this target could not be reached on pnv m^ntb from Ii'ly 1991 onwards, the companv was unable to imnlcnvnt hnth the srnemes So the worker*- cannot -'nsisf for impV- mentaf'on of tbe*e schemes under the circumstances Tho'Th on 7-6-93 p modified scheme was introduced which re\ised c1aus" 4(d") of the tripartite settlement dt. 75- 4-S9 yet the stipulation in the awe-men* dt. 18-10-90 that the scheme shall rermm in operative till monthly despatch ;s pcni-i">d (o the run- of 90000 tonnes on the sustained basis and eenesatPs sufficient funds' h still in force. Therefme the scheme* cannot be implemented till the aforesaid te- ^e' i. teached A* f.ii ns the appointment in tin* comra MCM >te 4. Again theie was discussion between the management s>nd workers on 3-3-90 and the tripartite settlement df. 25 4-89 was further revised to the extent that the workers numberina mcie than 750 can op! for voluntary retirement. But the management failed to implement the above scheme relating to appointment of dependants and the union demanded for implementation of the scheme

$nft-. -A. t&^wT&^r3^ffi^i/*%#^:&%,i$ $M&yr^mMi$)

0xnad the Itt pArty claims that it reviewed all the cases up to 1992 aqd the tatter i* under otfusideration of the company and*)i"s not been presently Implemented due t& financial crisis. The company is facing heavy loss and rs not in a position to give fresh appointment.

6. On the aforesaid analysis, following Issues have been framed:

I. Whether the action of the management not BIVIBB opportunity to the worker* to opt voluntary retire- ment tcheme at per tripartite settlement dt. 25-4-89 and bilateral dtscauioe dt 7-6-93 and give employ- ment .to their dependants is justified 7

H. If not. to what relief tht workmen are entitled to t o?

III. Whether the action of the management not gjvmt employment to the dependants ">OD, daughter, spui^c of the employee who dies in harness or it perma- nently declared medically incapacitated for further employment by the Company's Medical Hoard as per the tripartite settlement dt. 25-4-89 and bilateral discusiion dt. 7-6-93 is justified ?

IV. If not, to what relief the dependants *re entitled Por the sake of convenience all the ISSUM ate taken up togttlttr.

7. W.W. 1 states that there was a aiinute of discussion between the representative of the 1st party management and the 2nd party union on 9-3-89 and 10-3-85 where it was rtipulated that if an employee over the age of 52 years and Mother employe* below 51 years applied to take voluntary retirement then it would be accepted by the 1st party fltaniee- mtmi and one dependants of e*ch of these employee would be pveo employment under the company. It was further settled tkat if an employee die* in harnes* before attaininc the ajv of 59 yeurs or n declared medically unBt then one o* his dependent, would be given employment under the 1st party if no other legal heir was working under the company then. He proves Ext. 1 as that minute of discussion He states that this scheme was not imptementated and on 17-4-R9 the union gave a charter of demands to the management with a copy to Government conciliation machinery. In couiie of conciliation there was a tripartite settlement on 25-4-89 vide Ext. 2 and it was stipulated that during the year 1989-90 the lit party would accept voluntary retirement application of 225 workmen below the age of 52 years fend 225 abo^e the age of 52 years and for the year 1990-91 the manage- ment was to accept the application of 100 workmen of each age group and from April 1991 to December 1991 applica- tions of 50 workmen of each age group. Again there was a bipartite settlement on 3-3-90- (Ext. 3) in which the limi- tation of accepting 750 applications (that i? 375 applicnfioti from each age group) was waived. He states that durine 1989-90, 600 workmen of both the age group applied for voluntary retirement and only 43 application were accepted and one of the dependants of each of them was absorbed During 1991, 67 voluntary retirement applications were accepted and one of the dependant of each of them was given employment. He states that on 18-10-90 again a bi- partite settlement was entered into between 2nd partv and 1st party vfde Ext. 4 where it has aprecd upon thnf the management would accept 20 applications per month for voluntary retirement for 9 months nnd thereafter thii voluntary retirement scheme would, be kept in abeyance till such time the order for despatches reached 90000 tonnes per month on a sustained ba5is and generates sufficient fund. He states that on 24-9-91 the Executive Director made an appeal (Ext. 5) to the 2nd party workmen to work hard f>" the management had received order for supply of one 1skh tonre* of Ores. Again there was n minute of discussion on 12-5-92 viAr Ext. 6 where the A G.M of the 1st party dis- closed that they had committed for supply of one lakh tonnes of ores each month to SATL. On 23-10-89 the Fxe- eutive Director of the 1st party wrote to 2nd party union (Ext. 7) that the estnhlishmfnt hnd to supply six lakh metric tonnw of Ores to Virus Sted Plant for the year 1992-93 In cross examination he adroit* that 176 cmfioyrc¹] worp replaced vjndrr voluntary retirement vhrrfie by their denen- d.ints within October 1991 to June 1991 Durine T<>92-91 20 employees and in the- year 1993-94, 12 emntovfes weie replaced under voluntary retirement scheme. W W. 1 supports the version of W.W, 1 as regards tripartite settlement lor utiremeut of employees and engagement of dependant of an employee dying in harness and declared medically unfit to work. He stales that as per agreement, Hit. 1 one dependant of each person going on retirement after 52 years of age and before attaining 52 years of age ww to be absorted as an employee of the company aij probationer or trainee [ur A period of two years 9 months and thereafter to be abscrbed as permanent staff. But till the reference was made no pro- bationer or trainee hat, been abserbed as permanent start. He states that from B9 to the date of reference the manage- ment hBi abserbed only 350 persons. He states that the management wrote vide Lit "*> that due to financial crisis they were unable to abserb probationer or trainee an perma- nent staff. He states that us per Ext. 1 and 2, 75U employed m total were to be retired by the end of 3lit December 1991. Bnt he cannot jay how many perwjui actually took thi" retirement benefit every year starting from j 989-90 to 1993-94. But some person got this benefit. He admiu that this scheme was adopted only with u view to ease the financial problem of the company. He also can not say how many person were abserbed by the management by way of replace- ment every year or in total, but some persons got this benefit.

8. M.W. 1 states that us per bipartite agreement, hit. 2 he issued appointment order in total to 376 persons i.e. 298 persons were given appointment under voluntary retiremcni scheme, 53 person were given appointment-as dependants of employees who died in harness or declared medically unfit and 25 persons as old death cases.

9. M.W. 2 is the Manager, Accounts of the 1st party company and his duty is to prepare the accounts of the company. He is well acquintcd with profit and loss account of the balancesheet of the company. He proves Ert. F series as balancesheet of the year from 1989-90 to 1996-97. These balancesheets clearly ra- dicate t h; cumulative loss sustained by the company every year. He states that in no year the company has earned profit and the net loss carried over to balance- sheet upto 31st March, 1999 is Rs. 1,^2,07,51,115. He states that during the years 1997 to 1999 the total production of ores annually was 5 to 6 Lakhs metric tonnes.

10. M.W. 3 stjtes that in 1988-89 there was drastic icduction in despatch of minerals to the buyers i.e. Steel Plant, So the company faced severe -shortage of funds to continue operation. Therefore the company proposed to introduce the voluntary retirement scheme for reduction of man power in order to match the salary impact with sales realisation. So there was bi- partite settlement, Ext. 1 which led to tripartite settlement Ext. 2 and the objective of both the settle ments arc to reduce the man power. He states that in all total 376 dependants have been employed under various clauses or the settlement from 1989-90 to 1993-94. As the despatch position of the company did not show- any improvement nor fiiuncial perform- ance ot the company improved the management reach- ed a bilateral agreement with the 2nd party vide Ext. 4 where ic was agreed to give employment to 20 heads per month upto June 1991 as pci the ratio of age provided in the tettlement and thereafter the scheme shall be kept in abeyance till such time the order for despatches reached 90,000 tonnes per month on A sustained basis and generates sufficient funds. But fhe despatch never i cached the target of 90,000 tonnes per month nor rufheient fund gerieralcd. Thcrcfeic the management started discussion vide Ext. G with the find party i elating to this point raised by the union on 30-12-92 which included implementation of ibe tripartite settlement nf 25-4-89, Apiin there was discussion vide Ext. H on 7-6-93 and H was dpred to modify clauses 2 and 5 of the settlement dated2939 25-4-89 and a* pti this agreement, Ext. H the man- agement gave employment to 26 dependant*. He states that in July 1998 thf Central Government gave a direction to the management to bun all th" future retirement against voluntary retirement scheme vide Ext. N. He stales that in Ext. 5 there h mention that in 1991 the management sustained off take of around one lakh tonnes per month. He state that after the conciliation failed the A.L.C,(C) referred the matter to C entral Government giving the failure report and the Central Government observed that it was not a fit case tor reference to Industrial Tribunal vide Ext. L, But subsequently the Central Govern- ment again icferred the matter without holding any conciliation in thf matter.

11. The lcirned repiescntutive of the management submits t'mt at the first instance receding the failure report from A.L.C.I.C), Rourkelu the Central Gov- ernment decided not to refer the matter for adjudi- cation holding ihui it wus not a fit case for reference. So without calling lor the conciliation between parties the Central Government cannot again refer it for ad- judication as it hus no power to do so. So this refer- ence is illegal. Iu support of his such contention, he invites DI' attention to the decision reported in L . I. J-1980(Vo!-0 at P'ige No- 215 [G. Muthukrishnan Vrs. Administrative Manager, New Horizon Sugar Mills (V) Ltd., Pondichery and others]. The learned representative of the 1st party objects stating that this decision i"> noi applicable to the present case. In that case on failure of conciliation between the rnanagc- rnent and the worker*, union the Government v"as asked to refer the matter lor adjudication und the Govern- ment regretted its inability. Two weeks thereafter the workers union made a representation to the Gov- ernment mitl the Government considered this repre- sentation and without notice> to the management or without hearing them referred the matter for adjudi- cation". Their Lordship held that once the Government declines to make the reference it cannot make a re- ference again on the representation of one party, with- out hearing tho other party. Tn such case the reference is invalid. But heic (he position is something different. No doubt at the first instance the Government turned down to refer the matter holding that it was not a fit case for adjudication. But again it referred the matter for adjudication. There is no evidence that the Government did so on the representation of any party in this case ol the 1st party. That means the Government sau molu made the reference, Tn Abdul Salam and Company Vrs. State of Tamilnadu (43- PJR-180), the Hon'bie Hiph Court observed that if the Government sau mo'u chnnped their mind without any one promnting them to do so and wanted to exercise their inherent power on the same mnterial which was considered by them in the first instance then the oosition v*ould be different. That means if the Government exercising its inherent power refer ihe matter for adjudication sau motu after declining it in the first instance then there is no necessity to hear :inv partv and this reference would not be invalid. Tn the present case T have already observed that there is no evidence that the Tst party made a representa- tion and lonsiderint: it the Government made the reference-

under V.R.S, jiving employment to their dependants and. alw sv>i°S employment to dependant ot an em- ployes dying in haieness or becoming medically unfit to work. ThciC schemes were floated not with the sole purposs of giving exclusive benefits to the employee or to the employer. These schemes were floated for giving benefit to boih sides. Admittedly the company is a sick industry having already sustained a loss of more than 160 Crores. So it was in a desperate posi- tion to reduce the man power, so as to ease the financial pressure on the company. The employees also accepted the schemes as many of them wanted to go on voluntary retirement for different reasons. Tn the first settlement there was agreement for retire- ment of fixed number of persons. But as 1 find the management could not implement it and subsequently thera were further settlements between the manage- ment and the union modifying the schemes. This subsequent settlement and modification of schemes go to show that the management was unable to imple- ment the scheme and the union could also realise the difficulties of the management in not implementing the schemes for which it agreed to such modification. It is not the case that management totally declined to implement the schemes because evidence has been led which ha3 been discussed earlier that hundred of person have been retired under V.R.S. and in their place their dependants have been appointed and some persons have been given appointment on compassion- ate ground. In Exf. N issued by the Government on 13-7-98 the Government asked the company to ban all further recruitments and to abolish the po^t falling vacant due to V.R.S. But here- the case is something different. As pei the settlement arrived at between the panics no post is going to fall vacant under V.R.S. because it is decided that in case of an employee going on retirement under this scheme one of his depen- dants would be ;'brorbed. By this scheme the com- pany will get only financial benefits due to difference in pay scales of the new entrant and the person going on retirement. By this scheme actually there w;ts no reduction in man power. The -management never entered into this settlement with the intrntion of re- ducing man power. In thut case, there should not have been any clause for giving appointment to a depen- dants of each retiring employee. Similarly appoint- ment on compassionate ground the dependant is qiven appointment: in place of a person dvint; in bareness or becoming declared medically unfit (o work. When an employee dies in harness or becomes medically unfit to work a post falls vacant and his dependant is i^ivcn appointment on compassionate grounds for such appointment no new post is created. Ths learned representative of the 1st party submits that companv is not bound to five appointment on compassionate ground. Tn sunport of his such contention he relies on a decision of the Apex Court reported in L L J.-91 CVol-1) at page 492 In that case the company rule provided for compassionate appointment depending on availability of vacancies. There w ban impose;! on fresh recruitment. The companv effered incentive for voluntarv letirement to reduce work force due to surplus, lahnur. There their Lordsins heM that there was no obligation for the comwny to make appoint- ment on compassionate fround. The cas<- r>f the anpli- cant will be considered if vicsncies will be available and the company deciding to fill such vacancv. Tn thr nresent case, there fc no such ban order. The com- pany entered into these settlement not to reduce the 12. Tf h an admitted fact of both parties that they entered into settlement for retirement of the employee 2940 THE GAZETTE OF INDIA : JUNE 23, 2001/ ASADHA 2, 1923 [PART U+tffc. 3(U)J work force but to ease the financial crisis. Moreover in the present settlement a person will be given ap- pointment due to vacancy created by death of an employee or an employee becoming medically unfit to work. No new post is created for such appointment. Thare is no ban order for not giving appointment to such person. The company once entering into such settlement with the union is estbpped from taking the plea that this lecruitment on compassionate ground is illegal. Further Exls. 6, 7 show that the company received order of despatch of more than one lakh tonnes each month from June 1992 oriWards.

13. The company is a sick industry and his already sustained loss of more than 180 crorcs. So I feel that I should not pas* any order which oan put additional buiden oo the company causing financial crisis which may ultimately force the management to close down the company causing hardships not only to these em- ployee who-are eager to go on retirement, but also to other employee who are not coming under thbSfc schemes. So keeping this in mind I pass the following order.

"The Tst party management and the 2nd party union should again discuss about the schemes and reach a settlement within 4 months from the date of order which will be beneficial to both the parties failing which the 1st party management is to allow the workers to opt for voluntary retirement scheme and the management is also to give employment to the dependants of The employee who died in harness or is declared medically incapacitated for further em- ploymcut by the Company's Medical Board as per tripartite settlement dated 5-4-89 and bilateral discus- sion dated 7-6-93."

Accordingly th'i reference is answered. Dictated and corrected by me.

A. K. DUTTA, Presiding Officer New Delhi, the 28th May, 2001 S.O. 1426—In pursuance of Section 17 of the In- dustrial Disputes Act, 1947 (14 of 1947), tte Cen- tral Government hereby publishes the. award of tbe Central Government Industrial Tribunal, Bhubnesh- war as shown in the Annexure in the Industrial Pis- pute .between the employers in relation to the manage- ment Paradip Port Trust -'nd their workman, which wns received by the Central Government on 25-5-2001.

[No. L-38011|3-f94-lR(M)] B. M. PAVI0, Under Sftcy.

ANNEXURE

SHRI S. K. mtAk, O.S.J.S. (Sr. BtaOcb), PRESI- DING OFFICER, CENTRAL GOVT. 1 NDUSTJttAL TRtBUNAL-COM-LABQUR COURT, BBSR I.D Cttse No. 44|95(C), refluutbffiretf as Tr. I D. 102| 2001

Dated, Bhubftueswar, the 17th May 2001

BETWEEN:

The Chairman, Puradip Port Trust, P.O. Paradip, Dist. Jagatslngftpur, Orissa.

.. .FirW Pwty- Management,

Vn.

The General Secretary, Utkal Port and Dbck Wdrltera Union, Brundaban Housing Complex, P.O. Par-todip, Dist, Jagfttsingpui', Orissa.

...Second Party-

Ufflori.

APPEARANClS :

Shri' Saroja Kumar Mi"fara^-For the 1st FMty- Management.

Shri Prasauta Kr. JCar.~-For the 2nd Patty- Union.

ORDER

The Government or' India in the Ministry of Labour in exercise of powers conferred irpoti them by GImtsc (d) of SmVsecftatt (1) and Sob-wetlon (2A) o* Sec- tion 10 of the Industrial Disputes Act 1947, (14 of 1P47) has referrtd tho foikJwirrg iSsptrte for adjndi- . cation vide their order No. L-38011 |3'94-IR (MiSc), dated 21-7-1995.

"Whether the action of the Managtmont of Paradip Pott Trust in shifting the work of bagging, stitching and othd ancillary work Which wns proviously done inside the Port prohibited area to outside the prohibited area and thereby causing disengagement ef the subsidiary [stand by workers of Paradip Port Trust is justified? If not, to what relief the workman are entitled"?

2. For answering the above reference the relevant facts runs thus:—Prior to the year 1989 the opera- tion of bagging, stitching and other anciliatry work were being done in the prohibite4 area of the Paradip Port. There are two types of workers. 1st One is main listed workers and the 2nd one is subsidiary I stand by workers. The 2nd Party before this Tribunal nlrc stand by workers of Paradip Port Trust. The general practice is that the oneratidr? of bagging, stitching and other ancillary works were being done by the main listed workers. If the wort load is more and all workers of tbe main list is exhausted then thtt services of the subsidiary I stand by workers is to be Utilised.

•2J4I.

(he Hon'blc Court and the report of the High Power Committee it has been submitted that the work of bagging, stitching and other ancilliary works was not sufficient to utilise the services of the main listed wor- kers. So the question

3. Under this back ground the grievances of the 2nd Party is that the Management without any reason- able cause shifted the operation of bagging stitching and other ancilliery works from the prohibited area to outside to give scope to the outside workers to do the work but not the stand¹ by workers. They raised dispute before the Labour Commissioner. Conciliation failed and the matter was referred to the Government of India (Ministry of Labour) for making reference to , this Tribunal. Initially the Government of India re- fused to make any reference and subsequently this reference has been made to answer the questions stated above.

4, After receipt of the notice parties have appeared. They have filed their statement. Both the parties have adduced Oral evidence and produced some documents Which have been marked as Exts, in this case. On pleadings of the parties the following issues halve been framed for consideration.

ISSUES

1. Whether the shifting of work site of bag- ging, stitching and other ancillary works done by the workmen inside the Port, which is a prohibitd area, is justified and has con- sequential effect to th; subsidiary/stand by workers ?

2. Tf so, what is the remedy ?

3: If the Subsidiary/standby workers are

'workmen' of Paradip Port Trust ?

7. After hearing the parties and on perusal of oral evidence as well as documentary evidence produced on behalf of the parties I find substantial force in the submission made on behalf of the Management. Oppo- site Parties (workmen) will succeed if they can estab- lish that wlhen the operation of bagging, stitching and other ancilliary works were done in the prohibited area they were getting scope to attend the work a/;d when it has been shifted they have been deprived of the said job. In that case the shifting would not be justified. But in my opinion the workmen (Opposite Parties) have failed to establish the above facts. In O.I.C. 2276|85which has been marked in this case as Ext.-2, the Opposite Parties have made a prayer to enlist their names in the main list but not the out- siders. The Hon'ble Court were pleased to observe that no outsiders could be enlisted until the standby list is wholly exhausted. Tt was also further observed that, the question of giving work to standby workers (Opp. Parties) could only arise after there is sufficient work beyond the capacity of the regular woikers of the main list and the Management is not in a position to give sufficient work to those workers of the main list, the grievance ofthc standby list workers is un- called for. The Hon'ble Court have workers from the subsidiary list have been opted for the same and they have been enlisted and presently working in. such operation. This fact has not been disproved by th'e Opposite Parties.

Issue No. I

5. The 2nd Party has tried to satisfy this Tribunal that the action of the Management by shifting the work of bagging, stitching and other ancilliary work from the prohibited area to outside is to give scope* W the outside labourers to attend the work at a lower rate. According to them without any reason the Man- agement shifted the place of bagging, stitching and other ancilliary work and thereby violated the cargo handling scheme with a view to reduce trade Union's strength and for the personal gain of the traffic de- partment of the authorities.

9. So in my opinion the grievances of the Opp. Parties is that they are getting sufficient work when the operation of bagging, stitching and other ancil- liary works being done in the prohibited area and they have lost the same opportunity in view of the shifting does not appears to have any foundation. The shifting operation of bagging, stitching and other an- cilliary works have been done by the Management for the larger interest. In my opinion the Opp. Parties are not competent enough to challenge the action of the Management in this regard. So the Tssue No. 1 is answered in favour of the Management. In other words shifting of operation of bagging, stitching and other ancilliary works made by the Management is not unjustified.

10. In view of my above findings it can not be said that the Opp. Parties have lost the opportunity to get the work due to shifting. So Issue No. 2 is also answered in favour of the Management.

11. Neither party have pressed for Issue No. 3.

ORDER

12. Hence, ordered that the action of the Manage- ment of Paradip Port Trust in shifting the work of bagging, stitching and other ancilliary which was also been pleased to observe that whenever any such occassion would arise, preference should be given for allocating the work to the workers of the standby list, No materials have been placed before this 6. On the other hand, it has been submitted on behalf of the Management that ihc operation of bag- ijing, stitching and other ancilliary work which was previously done in the Port prohibited area continued ill June, 1989. Thereafter due to large scale handl- ing of Thermal Coal and coking coal inside the Port prohibited, area the importers in the year 1989 de- cided to receive the bulk fertilizer from the ship direct- ly for despatch of their leased warehouses outside the Port prohibited area. This was objected to by the 2nd Party-Union which was then controlling the majo- rity of the main listed workers. A meeting was held with Utkal Port and Dock Workers' Union on 8-6-89 and 9-6-89. It was jointly agreed to shift the bagging, Istitching and other ancilliary work to outside the prohibited area. It is further submitted that ihc action Of the Management for shifting was only objected by "he main listed workers but not the Opposite parties, fnviting attention to this Tribunal to the decisions of

17$$GI/2001—18 :?4 Wfe GAZETTE OF INDIA :' JUNE^23, 2001/->A5AI&HA 2, 1923 [PART I I - ^ S E CV 3-tfl)]

N.nv Delhi, the 28th May, 2001 Tribunal by the Opp. Parties that when the opera- tion of b&gging, stiching end ancilliary work was being done in the proh bitcd aiea the standby workers were •getting chance to work Rather the Management hasL succeeded in proving that the work load was not sufficient to accommodate the main list workers. Jn the report of the Higfr" Power Committee which h;is been exhibited in this case as Etr. E. In pani \5 2\ of Pag.; 178 it has been observed that :

S.O. 1427.—In pursuance of Section 17 of the Indusfiiol Disputes Avt, 1947 (14 of 1947), the Ccntul Government hereby publishes the award of the Central Government Industrial Tribunal|Labour Court, Mumbai as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of Mormugao Port Trust and their workman, which Wiij received by the Central 'Governmenr on 25th May, 200T.

[No. L-3601l|3|95-lR(Misc.)] B M. DAVID, Under Secy.

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO. 2, MUMBAI

PRESENT :

S, N. Saundankar, Presiding Officer.

Misc. Application No. CGIT-2|4 of 1999.

IN

Reference No. CGLT-2143 of 1996.

"As has besn indicated earlier, there i-. a list of 504 Mazdoors belonging to the standby category. The High Coubrt of Orissa¹ has passed older that in case there are not enough workers in the main list to do the work specified in 197l> scheme, these wor- kers in the standby list would have a prior claim to be enp£ed for that wmk. As things, however, so transpires that the num- ber of woikers enlisted in the Main list was far in excess of the requirements of the work contemplated by 1979 scheme, the workers in the stand by list consequently never got any practical benefit from the order made by the High Court for secur- ing priciity for being engaged for work contemplated by 1079 schem,\"

PARTIES : The General Secretary, Mornugao Port Trust (MOHP) Workers' Union, C|o. Adv. Gayatri Singh, 4th floor, Engineer House, 8ft, Apollo' Street, N-ar Stock Exchange, Fort, Mumbdi-400 023.

..Applicant

Versus

Chairman, Mormugao Port Trust, Mormug^o Ujibour, Goa-India.

. . Opponent

APPEARANCES :

For the Arjplicant.—Mr. S. R. Fadte, Represen-

tative,

2*0 S R. Futto, Att, 'G.I and Shri- Sakharara Amerkar, Alt. G.I. who were also the Gene-ral Secretary and President respecti- vely of Mormugao Port Trust (MOHP) Union is justified ? If not, to what relief the workmun aie entitled ?"

that, without any sufficient cause, the applicant- Union remained absent on the dales on-which the reference was fixed und that the instant application came to be filed on 26-11-99 for setting aside the Award dated 31-.3-99 which was notified on 22-4-99; which Lhowi* they aie nut vigilant and therefore, the appli- cation -deserves- to be dismissed.

6. On hearing the Learned Counsel for the mana- gement and representative of Union and perusing the uncord, a short point arises for any consideration in this application.

(1) Whether lufficient cause shown by, the applicant Union for absence of appearance on the date of hearing and on which > the Award was made so as to restore the re- ference CG1T-2J43 of 1996, by setting aside the Older of disposal dt. 31-3-99?

My findings is in the n-ga^iw for the reasons record- ed below :

REASONS

(2) "Whether the action of the management of Mormugao Port Trust to issue order of appointment of Enquiry Officer on 30-10-95 and then the Enquiry Officer fix- ing Enquiry Proceedings on 15-11-95 in order to enquire into the alleged miscon- duct done by Shri S. R. Fatto, Shri Sakha- ram Amerkar and Shri Joaquim Gracias who were also the 'General Secretary, President and Vice President of Morrnu- gao Port Trust (MOHP) Workers' Union tor the misconduct of"the month of March, 1996, at a time when conciliation proceed- ings were pending and the Conciliation Officer had advised to the parties to main- tain "status quo" is justified ? If not, to what relief the concerned workman|Union aie entitled?"

7. At the threshold, it is relevant to note that the Union filed Claim Statement (Ex-6) on 10*3-97, though they were served with the notice of the Tri- bunal on .16-10-96 and (hat,-after framing tht issues on 22-7-97, the matter was fixed for filing of affidavit by the Union vn 22-8-97, 19-9-97, 23-10-97 and 12-5-98 at Mumbai and later on 25-2-99 at Goa. However, there also they remained absent. Conse- quently, no affidavit by way of Examination-in-Chief iii support of the claim is on record till 31L3-99. This .shows since beginning the Union was not at all vigilant.

3. In response to the notice, the concerned parties i.e. The General Secretary of the Union and the Management i.e. Mormugao Port Trust appeared. Union filed Statement of Claim (Ex-6) and Manage- ment filed Iheir Written Statement (Ex-8) and on rival pleadings of the parties, issues were framed at Fx-11 on 22-7-97. Thereafter, the matter was fix- ed for filing affidavit. However, the. Union did not file affidavit by way of Examination-in-Chicf, there- fore, the Tribunal disposed of the reference on 31-3-99, which was notified on 22-4-99 for want of prosecution.

8. While considering the instant restoration appli- cation, in the light of Rule 22 and 24 of Industrial Disputes (Central) Rules, 1957, which attract order 9, Rule 13 of Civil Procedure Code, it is necessary to sec whether, there was sufficient cause for the Union to remain absent on the date on which the Award was made and whether, the applicants are prompt in order to get the Award set aside.

4. It is the contention of applicant Union that, due to poor financial condition, they could not send their Representative to file the affidavit in Mumbai, and that the Advocate engaged by them Ms. Monisha Coalho had cone abroad and therefore, they were unaware on fixing of date of them and Award, Tt is f art lief their contention that, office bearers of the Union did not get leave, therefore, they could not proceed with the reference. The reference involves muterial hsues which need to be enquired on merit, therefore, it is contended, for proper adjudication, Ihe reference be restored, by setting aside the Order of disposal for non-prosecution.

5. The Management opposed the application by filing Say Ex-5. It is contended that the applicam Union had engaged advocale to represent their case The representative of the Union filed Claim State- ment and thereafter attended some dates, which shows their financial capacity. They contended that accoiding to Union, their advocate had gone abroad in 1998, however, the matter was fixed for filing affidavit by way of Examination-in:Chief in 1999. It is contended that the date for filing affidavit was fix- ed in Mumbai and Goa as per the conveniance of representative of Union, however, they did not bother ti> attend even in Goa on 25-2-99 and 26-2-99, nor filed affidavit of the concerned, by way of Examina- tion-in-Chief. Therefore, there was no alternative for the Tribunal except to dispose of the Award as the Union had lost interest. It is further contended

9. On perusal, the lecord of Ref. No. CG1T-2|43 of 1996, it is seen, as stated above, the matter was fixed for filing affidavit by way of Examination-in- Chief in Mumbai on 32-8-97, 19^9-97, 23-10-97 and 12-5-98 and at Goa on 25-2-99 and 26-2-99, there- after till award i.e. 31-3-99. However, Roznama shows none on behalf of the Union remained present. According to the applicant, due to poor financial position and as Iheir advocate had gone abroad and as tlit.' office bearers of the Associations did not get leave, they could not remain present, which is suffi- cient ground for them to restore the-reference. On rrrusal the iccord, it is ^een, Union had engaged two advocates Shri Colin Gonaskives and Ms. Mon-hsha Ooolrio. They must hi>vc been paid fefcs, therefore, hardly it can be said that union is financially poor. So far the contention th-st advocate • for union-had goiK abinad and the office bearers did not get leave and therjfore they did not know on the date of filing affidavit and I he Award, nothing of the sort on re- cord. Tt is significant to note that the Tribunal'for tb? conveniance of the office bearers of the Union, in response in their letter (Ex-2), had filed the malter at Go:i, wlit-rdram they hail, on 25-2-99, 2944 'THErGAZETTE OF INDIA : JUNE 23, 2001/ASADHA 2, 1923 [PART II—SEC. 3(ii)j 26-2-99, though they were not present on the earlier dates in Mumbai, discussed supra, however, Union did not avail opportunity.

10. Needless tc say while administration of justice equity plays a prominent role. The reference as held by the Learned Counsel for the Union involves material issues, however, one who seeks equity must do equity. In the case in hand, inspite of giving sufficient opportunity the concerned representative of the Union did not bother on the matter, and from this point of view also they cannot be favoured.

11. Apart from this, the roznama of this applica- tion shows that after filing the application Union representative remained absent thereby they do not bother even of this application and that when the liu'ttcr was fixed at 'Goa on 24-1-2001, the repre- sentative of Union. Mr. Fudte made submissions that the application be allowed, which infact, does not deserve to be allowed, as no sufficient reason for preventing them from appearing on the date fixed for hearing and award has been pointed out.

12. As stated above, the Award, which the appli- cant Union prayed to restore, was passed on 31-3-99 and notified on 22-4-99 and that, this application for restoration came to be filed on 26-11-99. Union representative nowhere pointed out as to why they seek relief after about seven months, which is vivi- dent to show that they are not prompt and bonafied. Their Lordships of Supreme Court in Satnam Vcrma V|s. Union of India, J985 LAB. TC 738 set aside the award passed by the Tribunal dated 26-2-82. However, in that case the parties therein were bona- fide and prompt. In the case in hand, it was how- ever, record clearly shows that applicants are neither bonafide not prompt, therefore they have can noi avail to the said ruling and under such circumstance, I find not proper to restore the reference by setting aside the award in Ref. CGIT-2/43 of 1996 dated 31-3-99. Consequently application deserves to be dismissed being devoid of substance. Point is ans- wered accordingly and hence the order :

ORDER

Applications stands dismissed.

' No order as to costs in view of peculiar circum- stances on record.

S. N. SAUNDANKAR, Presiding Officer New Delhi, the 28th May, 2001 S.O. 1428.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby pub- lishes the award of the Central Government Industrial Tribunal |Labour Court, Bangalore as shown in the Annexurc in the Industrial Dispute between the employers in relation to the management of Mysore Minerals Ltd., and their workman, which was received by the Central Government on 25th May, 2001.

|[No. L-290l2|105|94-IR(Misc] B. M. DAVID, Under Secy.

ANNEXURE

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

Dated the 14th May, 2001 PRESENT :

Hon'ble Shri V. N. Kulkarni BCom. LLB Presiding Officer

C. R. No. 38197

I PARTY :

The General Secretary, Mysore Minerals Emp., Association, No. 39. M. G. Road, Bangalore-1,

II PARTY :

The Vigilance & Chief, Administrative Officer, Mysore Minerals Ltd.. No. 39, M. G. Road. Bangalore-1.

AWARD

1. The Central Government by exercising Hie powers conferred by Clause (d) of sub- section (1) and sub-section 2A of the Section 10 of the Industrial Dispute Act, 1947 has referred this dispute vide order No. L-29012! 105|94-lR(Misc) dated 10-5-1995 for adjudi- cation on the following schedule.

SCHEDULE

"Whether the action of the management of Mysore Minerals Limited in deny- ing the designation of clerk and benefits accuring there to Shri T. K.

m Prakash is justified ? If not, to what relief he is entitled ?"

2. After issue of notices parties appeared and filed Claim Statement and Counter Res- pectively.

only stop gap arrangement at the request of the workman without the sanction from the competent authority worked but the workman has no locus standi to raise to dispute. The reference is not maintainable. The second party for these reasons has prayed to reject the reference.

8. The dispute referred is whether the management is justified in denying the desig- nation of clerks and benefits to the first party workman.

3. The first party was joined the services of the second party as helper. His grievance is that right from the date of his appointment as helper he had been discharging duties of Second Division Clerk but he is being paid only pay and allowances applicable to the helper. Therefore, he raised a dispute.

9. It is seen from the records that the first party produced some circulars but they are not helpful to the applicant. The first party was working for some time as a clerk but ac- cording to the management it was temporary and without any approval. I have considered the written arguments given by the first party. The documents relied by the first party arc not sufficient to prove that the applicant is entitled to designate as Clerk. The material before me is not sufficient to pass award in favour of the applicant. Considering all this 1 proceed to pass the following order :—

ORDER

4. The first party filed Claim Statement. The case of the first party is that while work- ing as Clerk he has not given the pay scale of Second Division Clerk. He submitted ap- plication for being designated as Second Division Clerk in the scale of Rs. 490-950 and second Division Assistant in the scale of Rs. 1040-1900 from 1-7-1993 having re- gard to actual work done by him but the same were not given. The action of the manage- ment is illegal and amounts to exploitation and wrongful exaction of work and discrimi- natory. The first party for these reasons has prayed to pass an award in bis favour.

The reference is rejected.

5. The second party filed counter

(Dictated to PA transcribed by her correct

cd and signed by me 14*5-2001).

6. The case of the Second Party in brief is

as under :—

(HON'BLE SHRI V. N. KULKARNI), Presiding Officer.

The first party workman was appointed as a Helper purely on casual basis, on daily wages in the company on 1-2-19S3 and his services were regularised ns Helper (Mechanical) in the applicable monthly r.+ted scale of pay w.e.f. 1-6-1985 and this scale of pay was revised from time to time consequent upon the revision of pay scales of the com- pany employees.

New Delhi, the 28th May, 2001

S.O. 1429—In pursuance of Section 17 of the

Industrial Disputes Act, 1947 (H of 1947), the Central Government hereby publishes the award of the 'Central Government Industrial Tribunal Jaipur as shown in the Annexvre in the Industrial Dispute bet- ween the employers in relation to the management of M|s. Jaipur Udyog Ltd., and their workman, which was received by the Central Government on 25-5-2001.

[No. L-290|12|79-D-TII-B.]

B M. DAVID, Under Secy.

7. All the allegations made by the first party are not correct. The first party was only a helper (Mechanical) and was drawing pay arid allowances applicable to that post. At no point of time the first party worked in the capacity of clerk in the office ~nd therefore, the reference has to be reiccl^d. There was no provision in the cadre and recruitment rules of the company to consider the promo- tion of the first partv. For the promotion to the post of Second Division Clerk, ihe mini- mum qualification is Graduation for dnyct recruitment and for promotion by selection nn the basis of seniority from the cadre of, Class TV employees who nre matriculates. The fii " pnrtv wii not entitled for promotion to the post of Second Division Clerk ft was 946 THE GAZETTE OF INDIA : JUNE 23, 2001/ASADHA 2, 1923 [FART II—SEC. 3(ii)] "Whether the action of

Udyog Ltd., Sawai Madhopur, in prematu- rely retiring Shri Hukum Chand Sharma, Foreman, is justified ? If not, to what relief the workman is entitled ?" :947 ;918 THE GAZETTE OF INDIA : JUNE 23. 2001/ASADHA 2, 1923 [PART II—SEC. 3(ii)]2949 New Delhi, the 28th May, 2001

S.O. 1430,—In pursuance of Section 17 of the In- dustrial Dispute Act, 1947 (14 of 1947), the Cen- tral Government hereby publishes the award of the Central Government Industrial Tribunal, Bangalore as shown in the Annexure in the Industrial Dispute between the employers in relation to the management Mysore Minerals Ltd. aQd their workmen, which was received by the Central Government on 25-5-2001,

[No. L-29012/54/94-IRCM)]

B. M. DAVID, Under Secy.

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR

COURT, BANGALORE

DATED :.22nd May 2001

FRESENT :

Hbn'btle Shri V. N. Kulkarni, B.Com, LL.B,

Presiding Officer.

C.R. No. 16/97

I PARTY II PARTY

The General Secretary The Managing Director Mysore Minerals Limited Mysore Minerals Limited Employees Union, M. G. Road, No. 79, M.G. Road, Bangaiore-560 001. Bangalore-560'001.

AWARD

1. The Central Government by exercising the powers conferred by clause (d) of sub-section (1) and sub-section 2A of the'Section 10 of the Industrial Dis- putes Act, 1947 has referred this dispute vide order No. L-29O12|54I94 IR(Misc) dated 12-1-95 for adjudication on the following schedule.

SCHEDULE

"Whether the action of the management of M|s. My3ore Minerals is justified in not considering Shri Amrutharadhya for appoint- ment as Mate Assistant? If not, to what relief the workman Is entitled ?"

2. The first party was discharging duties of a Mate Assistant amd was wwrkirig at Jambur Chromite. He was not considered for regular appointment as a Mate Assistant therefore dispute was raised.

3. First parry appeared and filled claim statement,

4. The case of the Srst party in brief is as under:—- The grievapec- of the first party is that he was not 1788 Gl|200l—19 2 9 ,J l i iE G A Z t l l i: OF I N D I A: JUNE 23. 2 0 0 1/ ASADHA 2, 1923 [PART I I —S E C. 3(ii)]

advocate and the first party even after giving adjourn- ments have not addressed arguments so also second party was not prebcot. Therefore the matter was posted for award. I have also said that I have read all the documents carefully and read the evidence.

considered for regular appointment as a Mate Assis- tant. The first party was appoi tiled as a Helper purely on tempoiary basis on a, consolidated l*age of Rs. 12.25 per day \ide appointment oidcr uuivd 8-2-84. it is the IUIUKT case of the fust party that the second paity management has exuaUed the work from him as Mate Assistant right from the date of his appointment, .'ad his services were continued with- out any interruption a? a Mate Assistant without regu- larising his servces as a Mate Assistant. He gave representation but his request was turned do>vn by the S;;o"d party.

5. Ii is the anther case that he is woik'iig as Clu¹* in the oflice. It is thj practice of the second party that, persons who were holding st designation of Mate Assistant, their services were continuously utilised by the second party in the office and they were dis- charging the duties of Clerk along with Mate Assistant in the office.

New Delhi, the 28th May, 2001

S.O. 1431.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government heieby publishes the award of the Central Government Industrial Tribunal, Banga- lore as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of K.I.O.C, and their workman, which was icceived by ihe Central 'Government on 25-5-2001

[No. L-26012/21/96-IR(Misc.)l B. M DAVID, Under Secy.

ANNEXURE

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

Dated : 18th May, 2001

PRESENT :

Hon'ble Shri V. N Kulkarni, B.Com. LLB., Presiding Officer.

C.R. No. 143/97

I PARTY :

Shri K. Raju Slo Late Enward George Co S. B. Mukkannappa, Advocate, No. 2, Maurya Mansion 4th Floor, I Cross, I Main Road. Gandhi Nagar, Bangalore-9.

II PARTY :

The General Manager-Pcrs K.I.O.C. Limited, Kudremukh-577142.

AWARD

1. The Central Government by exercising the powers conferred by Clause(d) of Sub-section (1) and sub-section 2A* oE the Section 10 of the Indus- trial Disputes Act. ]947 has referred this dispute vide order No. L-26012|21|96-IR(Misc.) dated 2-7-96 for adjudication on the following schedule.

THE SCHEDULE

"Whether the action of the management of Kudremsikh Iron Ore Company Ltd. in terminating the services of Shri K. Raju vv.c.f. 16-12-94 is justified? If not, to what relief he is entitled ?"

2. The First party woikman was working as driver in the Second Party management. There was an accident and charge sheet was issued and inquiry was held and on the'basis of the enquiry report given by the inquiry officer he was dismissed from service therefore, industrial dispute is raised.

:95i 3. Notices were issused to parties and parties ap- pcaied and filed claim statement and counter res- pectively.

4. TJiv. case ol the fLiu party in brief is as under : The case of the fir"t patty is that while he was man- ning, the vehicle No. MYG 7362 met with an acci- dent at about 11.00 a.m. after negotiating a curve resulting in death of (wo persons on the spot. Disci- plinary oct'ons were initiated, as stated in para 2 of livz claim statement. Enquiry was held. The en- quiry i- not proper and \alid. Before I proceed further I may ineridon here that my learned predeces- sor by order dated 5-3-99 has held DE fair and valid and answered in the affirmative. It is the fur'her case ol tt>c first party that he challenged the dismissal order before toe Hon'ble High Court in Writ petition No. 23631,91 and the same is dispos- ed oi on 1-9-94. The ordei of dismissal was quash- ed a* staled in para 3 of the Claim Statement. The Second Pyriy was directed to furnish a copy of the enquiry icport and the same was furnished by the fir-t party and gave representation. The dismissal order is not correcL The first party was acquitted from the criminal c

5. Second party filed counter statement and the case of the second party in brief is as under :

6. So li'T as enquiry ij concerned it is said the same is fair and proper and full opportunity was given. It h the further case of the management that the first party wfs involved in serious misconduct like assalt, fraud, theft, rash driving, negligent in work and minor punishments were awarded to him. The first parly being the dnver of passenger bus, was ex- pected to show greater sense of responsibility while driving the \chicle as any negligent act could en- danger life and safety of passengers travelling in the bus besides endangering the lift of pedestrains. The charge of rash and negligent driving on the part of r' i first party has been fully proved. He causr serious accident on 18-4-1089 resulting in the death of two company employee". The action of the management is correct. The final settlements were made to thi, first party a> per the conditions shown h para 8 of the counter. So the second party has prayed to reject the reference. The finding of the enquiry officer is correct and there is no perversity in it. The stand u"d of proof required in the crimi- n 1 case h dififfnt as s'licl proof beyond reasonable doubt is icnuired whereas in a departmental proceed- ing tlit standard of proof required is preponderance of'probibilitv. It is held in 1997(3) SCC page 636 that when the acquittal is for benefit of doubt, departmental proceedings can be held into the same ch'irsrs. It is held hv the full bench of the Karna- taka "H;°h Court reported in 1975. II LLJ Page 513 that acquittal is not bar to departmental proceedings/ enquiries Tbe imnagement for these reasons has prayed tn reject the reference

7 It is Ten from the records that one Mr. Somesha was examined as MW1. \giiinst this 2952 TPE OAZETTE OF INDIA : JtJNE-13, 2001/ ASAt>#X 2, 1023 [PART I I ^ S E C. 3(tt)J first paity workman apt himself examined as WWII. According to the finding given by my learned pre- decessor, the domestic enquiry is held as fair and proper and preliminary issue is answered in the affir- mative. In view of this we will have to sec whether there is any perversity in the finding given by the enquiry officer and the punishment is disproportionate land harsh. I have carefully perused all the enquiry proceedings and 1 have also gone through the- evi- dence recorded by the enquiry officer. The conclu- sions of the enquiry officer are based on evidence on record and the charges are proved. The first party has not pointed oui anything so as to say that the enquiry report is not fair and there is perversity. The conclusions of the enquiry officer are based on the evidence recorded. Two witnesses were examined and they were also cross examined by the first party workman. There is no perversity in the findings, 8< The second party filed written arguments and I have carefuly gone through the same. The learn- ed counsel rppearcd for the second party relied An and Bifiari and others v|s. Rajasthan State Road Transport Corporation, Jaipur (through M.D. and another etc. decision leported in CA. Nos. 1859-63 of 1991 LLR page 101. I have read the above decision carefully. In view of the past record of the first party I am of the opinion that there is no merit in the contention of the first party that even after acquittal in the criminal case his dismissal is not correct. It was argued by the learned counsel for the second party tliat the misconduct is proved the tribunal cannot interfere with the termination prder passed by the management. In support of this jaqglHnent a decision reported in 1975 LLR IC 194 is right. I read the above decisions carefully. In the irretant case misconduct is proved and it is held that there is no perversity in the findings held by the en- quiry officer. Looking to the past reoords of the first party and serious misconduct I am of the opinion that the management is justifiod in terminating the services of the' first party. It is categorically alleged by the Second Party that final settlement was made and pcymeots were made as stated in para 8 of the counter. Taking all this into consideration I am of the opinion that the action taken by the management is correct and this reference has- no merit. Accord- ingly I* proceed to pass Ihe following order,

ORDER

The reference is rejected.

(Dictated to PA transcribed by her corrected and signed by me on 18th May, 2001).

HON'BLE SHRI V. N. KULKARNI, Presiding Officer.

New Delhi, the 28th May, 2001 S.O. 1432.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of J947), the Central Government hereby pub- lishes the award of the Centra] Government Industrial Tribunal* Bangalore as shown in the Annexure in the Industrial Dispute bet- ween the employers in relation to the management KXO.C. and their workman, which was received by the Central Govern- ment on 25-5-2001.

i[No. L-26012|8|98-IR'(M-)j B. M. DAVID, Under Secy.

ANNEXURE

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

Dated : 22nd. May, 2001

PRESENT :

Hon'ble Shri V. N. Kulkarni, Bcom LLB, Presiding Officer

C.R. No. 95|98

I PARTY :

Shri David Mascarenhas. St. Antony's Colony. Ashok Nagar, MangalOre-575006.

II) PARTY :

The Manuger (Personnel), Kudremukh Iron Ore Co. Ltd... Panambur, Mangalore-575010.

AWARD

1. The Central' Government by exercising the powers conferred by Clause (d) of Sub- section, (1) and Subjection 2A of the Sec- tion 10 of the Industrial Disputes Act, 1947 has referred this dispute vide order No. K. 26C12|8i9S|TR(M) dated 6-11-199S on the following schedule.

SCHEDULE

"Whether the action of the management of Kudremukh Iron Ore Company Ltd., Panambur, Mangalore, in ter- minating Shri David Mascarcnhas w.e.f. 5-7-1995 is justified ? If not, to what relief the said workman is entitled ?"

2. First party was workng as Junior Train- nee under his appointment letter dated 22-10-92. He was to undergo 2 years train- ing and only on successful completion'of the training) he would be considered for ap- pointment to a post in the then scat of Rs> 1415-28-1611-32-1835. Due to his sick- ness and reasons beyond' his control, had to apply for leave on medical grounds from 29-4-94 'onwards as stated in para 3 of the Claim Statement. He was terminated so dis- pute is raised,

3. First party appeared and filed claim statement.

4. The case of the first party in brief is as under.—The case of the first party is that he was undergoing taining in-the-company and due to his sickness and reasons beyond his control he has applied for leave on medical grounds from 29-4-94. On 16-7-1994, the first party submitted a medical certificate issu- ed by Dr. T. M. A. Pai, Rotary Hospital Bajai, Mangalore, to the effect that he was suffering from emotional disorder for which he was under medical treatment.

5. After prolonged treatment, the first party reported for training on 14-9-1994 and his training period was extended upto 5 5-95; He was referred to KMC, Manipal. He was terminated. The action of the management is not correct.

Party Company. T>e?ac*fcii of the manage- ment is not correct. Therefore the first party has prayed to pass award in his favour.

7. Second party appeared and filed Counter.

8. The case of the Second party in brief is as under.—It is true that.the first party joined the company on 19-11-92 as Junior Trainee. He was to undergo a training for a period of 2 years. Only on successful completion of training, the trainees are selected for appoint- ment on regular basis. Till then they are covered as per the terms of training scheme and therefore they are not regular employees. As per clause 7(a) of offer of appointment letter issued to trainee during the training period, the trainee can be terminated at thc^dis- cretion of the company without any reason. The first party remained absent from training from 29-4-1994. He reported for training on 14*9-94 thereby remaining absent for 137 days. He was referred to KMC, Manipal for medi- cal examination on 25-5-95. There was no improvement in his health even after giving sufficient opportunities. He was asked' to^ap- pear for medical examination. First party has not recovered enough to resume full duties. Therefore the action of the management is correct, and the reference is rcjeclad.

9. It is seen from the records thai, the first party remained absent even after giving many adjournments. Thereafter management examined Shri G. H¹. Moulesh, Manager, Per- sonnel as MW1. Various documents are marked in his evidence. Accordingly the evidenct of MW1 the: first party was to com- plete 2 years successful training. Even after giving opportunity he could not do so, He was not a regular appointee. His evidence is not on medical ground and he was re- moved. He is not cross examined because first party remained absent. They are having the documentary evidence to show that the fust party was not keeping good health and the management has rightly removed him on the basis of medical certificate. According to medical opinion first party had no chance of recovering to do full duties.in the near fuintre. On this basis he is removed/ from the work.

39B* WSt* A^EttE 6£ fNltfA iJtlNE '4*. 2001/ ASA&HA -2y 1923 {FART U ^ E C ^ )}

ORDER

The reference is rejected.

Dictated to PA transcribed by her corrected and signed by me on 22nd May 2001.

HON'BLE SHRI V. N. KULKARN1,

Presiding Officer New Delhi, the 28th May, 2001 S.O. 1433.—In pursuance of Section 17 of the Industrial Dispute Act, I94⁷ (.14 of 1947). the Cen- tral Government hereby publishes the award' of the Industrial Tribunal|Labour Court, Rourkela. as shown in the Anncxure in the Industrial Dispute bet- ween the employers in relation to the management of TISCO, and their workman, which was received by the Centra) Government on 25th May, 2001.

[No. L-2601l/8/94-lR(M)]

B. M. DAVID, Under Secy.,

ANNEXURE

IN THE COURT OF PRESIDING OFFICER, INDUSTRIAL TRIBUNAL, ROURKELA Industrial Dispute Case No. 73/97(C) Dated, the 19th December, 2000 PRESENT:

Sri Alak Kumar Dutta, Presiding Officer, Indus- trial Tribunal, Rourkela.

BETWEEN

The Superintendent, Prospecting Division. Geological Department, T.I.S. Co. Ltd., P.O. Jamshedpur, Dist. Singhblium (Bihar). . . .1st Party

AND

Their Workman, Represented by General Secrctnrv, North Orissa Workers' Union, Rourkela-12,

Dist. Sundargarh.

. . .IJnd Party APPEARANCES:

For tiie 1st party—M, Z. M Ansr.ri, Personnel Officer.

For the Hud party—Sri B. S. Pati, Gen. Secy.

AWARD

The Government of India in the Ministry of Labour in exercise of powers conferred by clause (d) ol sub- section (1) and sub-section (2A) of section 10 of J.D. Act have (referred the following disputes for adjudication vide No. L-26011/8/94-JR(M) dated 4-5-95 :

"Whether the action of the management ol Pros- pecting Division Geological Department. Tata Iron & Steel Company Ltd., TO : Jamshedpur, District Smghbbum terminating the services of Sri Sdibfi Patra Biranchi Barik, Dambarudhar Patra, Ghasiram Naik, A mar Kumar Mohan'y, Biibal Tuti, Padma Kishore Patra, Ramakainu Giri. Subas Sarqai, Lahnohan Palai, Birabar Naik, Biram Hasdah, Damodar Majlii, Sunia Mnnda, Chati'a Munda, Rupa Patra and Paresh Ch. Giri w.e.f. 1-4-93 was justified? If not, what relief the workmen are entitled to ?" 2. The case of the 2nd party workmen in brief is as follows :

The 2nd party workmen joined their duty in different months and years as temporary workers under the 1st party management. Though they were work- ing continuously yet artificial breaks in service for few days were given to them and lastly they were denied work w.e.f. 1-4-93 without any written order. Being approached the officer in charge of the site intimated that their file had gone to headquarter at Jamshedpur and on receipt of the order from the headquarter, they would be taken back in service per- pianantly. They were advised to wait, No written •order was issued to them in this regard. After waiting for some time, when they did' not receive any order from the 1st party, they approached the union who raised the dispute before Ihe authority. They claim that they have completed about 20 years of service under the 1st party management. They further claim that they have not received any compensation on their termination of service. Hence thev pray for re- instatement with full back wages.

3. In reply, the contention of the 1st party in brief is that the outdoor section of the Geological Services Department of the 1st party undertakes prospecting drilling project job whenever necessary on requisition of the mines management al any location for mining operation. So the period of work for each project Is temporary in nature and is for a fixed period for work as labourers local person on casual/temporary basis were engaged in the project and they worked till the project work is completed. So they were given appointment for fixed period find at the end of the period, their work ceased. Whenever another work was taken up after some days or month in that area again another appointment order wrs given to them for a fixed •period. So this sngagemen* is lemoorary, contractual engagement depending on its requirement. "When their work ceased, no termination order was1955 again issued as not necessary. Sine; they were gncji appointment for fixed period and their wurk cir^cd at the end of the period, their case falls u/s 2(oo)(bb"> of iSie Act and as such section 25-V of the Act JS not attiacted anJ they are not •n'it'cd to any co>rperha- tion unclsr it. On expiry ot ;he last spell of engage- ment, operation stopped sj;s case .and as such the reference is not mamtaimble. H*nce prayer for dismissing the case.

4. On the aforesaid analysis, following i'sucs have

been framed :

I. Whether the action of the management in terminating the services of Shri Saiba Patra. Birandii Bank, Dambirndhar TMtra, Gha*-i- ram Naik, Amar Ku. Mohanty, Birbal Tuti, Padma Kishore Patm, Ramakfnta Gin, Subas Samal, Lalmohan Palai, Birabar Naik, Biram Hasdah, Daniodar Majhi. Sunia Munda, Chakra VT{c'a, P-fpa Patra f"n ! Parish Ch. Giri w.;f. 1-4-93

TJ. If not, what relief the wor! men are en'uled

to?

services oi the workmen came to an end as per ilic appointment order. The 2nd party workmen were given appointment as local pcison as per the agree- ment and they w oe given appointment on casual and temporary basis only after the agreement Ext. A was executed. The duration of the project depends upvm the requirement of the job. He states that no arti- ficial break in service i%>given to any workmen. The notice ot termination is not issued as period of ""ork has been mentioned in the appointment order. He; states that all the workmen might ha\e worked for 240 days in a year but continuous. They have work- ed with intermittent breaks. He claims" that a local person (working in the project) cannot be transferred to another place in that section. He denies the sug- gestion that the workmen have comoletcd in a year 240 days of work continuously. MW 2 states that 2nd party workmen might have worked during 1981 to 1983 and during 1992-93 they .<1,o working thi-re. He states that during each time of engagement, ap- pointment order has been Issued to them mentioning the maximum number of days or less that they would work depending upon the natm? of vvrA. Appoint- ment letter was being issued rirm |ii> camp and locul persons were given piefcrence. He denies that assur- ance were given to the workmen to make them per- manent. He admits that no termination letter was issued to any workmen as not required. He denies the suggestion thnt project work was continuous on; a"d that the workers were given appointment order for fixed periods with breaks and that those breaks are artificial breaks only given fo deprive the workmen from claiming regularNation for completing 240 days of work.

5. Issue No. I.—W.W.2 states that tiiey all workers joined the 1st party management in between 1972 to T973 and worked till 31-3-93. W.W.3 states that they 'were working continuously with a break of six to seven day^< each time after workinsforappointment period. WW4 also speaks in that line. In that way they continued and on 1-4-93 they weie totally stop- ped from doing work. No termination notice was given and ro compensation //as paid. They v/ere get-

• • " • •" b o n u" i " - " c rv y c r. HP r > r ) * e >. E xt 5 ar h is b o n us

2956 THE GAZETTE OF INDIA : JUNE 23. 2001/ASADHA 2, 1923 [FART II—SEC. 3(ii)]

jects are of different periods and accordingly local persons vcte given appointments for fixed periods. With the closure of the project work their work also ceases. Only when another project work was taken up in that area again appointment order was being. So it is not possible that different project work were taken up one after another without any gap of period between each project. After the closure of the project work the management must be taking some days or months to decide to lake up the next project. Therefore these workmen roust be sitting idle or doing work privately somewhere else during each break periods. When they were doing wotk in different pro- jects it cannot be said that the work was continuous in nature. The workmen W.W.3 examined in this case has admitted sitting idle for the period in between clo- sure of one project and starting of another project. No workman has claimed that on the clusure of one project the field work was going on in prospecting division and they were denied such work in order io deprive them of the benefit u/s. 25-F. So I am con- vinced that the nature of work of these workmen was not a continuous one and the}' were not being given artificial breaks and their work was contractual in nature. Each time the workmen have been given writ- ten appointment order with fixed period of work and terms & conditions of employment written in that order. There is no evidence that during these period of breaks they were actually working in the projects. If there was continuous project work, tl.en it can not be believed that the workers would be d'sengaged fon days together. So I hold that their work was con- tractual in nature. So they are not errfitlcd to the bene- fits u/s 25?F of the Act.

entire object of the Act is to secure a just and fair deal to them. Termination included in section 2(oo) (bb> are those which arc brought about either because yf non renewal of contract of employment or expiry of fee stiptrfated in agreement. The nature of em- ployment must be judged by nature of duties per- formed and not on the tetter issued hy the employer, If contractual employment Is ^.sorted to r-s, the mechanism to frustrate the claim ui the employee to become regular or permanent against a job which continues or the nature of datijs is such that colour of contractual agreement is given to take it out from sec- tion 2(oo>. Then such agreement can not be-regarded as fair or bonafide. Section 2(oo)(bb) cannot be ex- tended to such cases where the job continues and the employee's work is also a supervisory but periodical renewals arc made to avoid to regular status to em- ployees. That would be unfair practice. In a decision reported in I-LLJ-1990—at page 443 (Balbir Singh ,Vrs. 'Kurakshetra Central Coop. Bank Ltd. and an- other. Mis .Lordship af Paajab High Court has held that section 2(oo)(bb) has io be so interpreted as. to Htn.it k to cas;s where the work itself has been ac- complished and *he agreement of hiring for a specific period was genuine. If the work continuous, the non renewal cf the contract has to be dubbed as mala fide. In a decision reported in 72(91)-CL.T—at page 404 (Chakradhar Tripathy Vrs. State of Orissa & others) Their Lordship hare held that th? contractual em- ployment is to be scrutinised lo see if it is a colour- able- contract and is resorted tn as a mechanism to frustrate trie protection section 25-F of Hie Act or if the nature of the ad*hoc appointments are bonafide and the cnployees has been treated fairly in regard to his employment. From the pr'mcinles decided in the above decisions it is clear *hat if the ssivices of any workman is terminated for any reasons whatso- ever, then this is nflthmst but retrenchment whkh comes u /s 2(oo) and seetifm 25-F is attracted to it. But if this termination is dive to im-reaeval of con- tract on its expiry then. Tft^n this tnrrritiatiovi conies u/s. 2(oo)(bb) and then it is wot n re"re8cl"nem at- tracting the provision u/s 25-F Therefore the Tri- hunal must scrutinise wtethfr the- job Hken ow hv the 2nd party was a ccBtinwous one fait jrrtifi^-"1 breaks were given bv giving anwwntwnt for ftr?d pesiods only

11. The learned representative of the management submits that the North Orissa Workers Union which represents the workmen in thU case has no locu"- standie to represent them and as sitch the reference is not maintainable. The learned representative of the 2nd party objected to this. Tft-e law is well settled that a union can take up the case of a worker only when he became a member of the union on or before the date of dismissal when the cau?e of action arose. In the present case, the 2nd party wewkmen mast prove thai they were members of this vrmn on or before 1-4-93, the date of their disengagement. T have already discussed tbe evidence of the witness earlier ^ftere workman-have tried to prove-that they became members before the date of ttieir disengagement. But this they have not provsd by filing membership cards. Even W.W.I the Secretary of the union- does not say that they joined before disengagement. He has not proved the register of the un"w iff this regard. There is no evidence to hold that the 2nd party m>$k- nren were the members of ffeis union before 1-4-93. Therefore, the North Orissa Workers Union ha& no locus-standie to represent the workmen in (his case. As such the reference is not maintainable.

12. Issue No. n.—-In view of the discussion made uBider Issue No. I. it is held that they are not en- titled to nny relief.

9. The workers examined in this .case have ad- milted¹ that they were working in prxjspectin.i ^vision and tfcey were given appointBinu for li\sj pcriocN after which there was interruption for some days and again they were being given appointment order for ,anolhcr term of fixed period. Management witnesses ftave stated about the Mature of .project work and jibout its continuity. The managernsnT • witnesses have Stated tfiat local persons were recruited temporarily on contractual basis for a particular project. The man- of ,the project de-petnds unon the requirement of the job &nd BO artificial hst^ks in, service WPS the ,warkraan mentionirrar the dav

Dictated and corrected by me.

A. -K. DUT.TA, Presiding Officer mt-

AWARD

New Delhi, the 29th May, 2001 S.O. 1434.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby pub- lishes the award of the Industrial Tribunal, Rourkela as shown in the Annexure in the Industrial Dispute between the emplovcrs in relation to the management Krishna Cement Ltd. and their workman, which was received by the Central Government on 28-5-2001.

(No. L-29011|l(99JRfM)] B. M. DAVID, Under Secy.

ANNEXURE

IN THE COURT OF THE PRESIDING OFFICER, INDUSTRIAL TRIBUNAL. ROURKELA

Industrial Dispute Case No. 5|99(C) Dated, the 21st December, 2000 PRESENT :

Sri Alak Kumar Dutta, Presiding Officer, Industrial Tribunal, Rourkela.

BETWEEN :

The Managing Director. Mis. Krishna Cements Ltd., At : Mandiakudar, PO : Kansbahal, Dist : Sundargarh. Tst party.

AND

Their Workmen, represented by, General Secretary, Kansbahal, Industrial Labour Union. At : Kansbahal. Sundargarh .. Ilnd pnrty.

Appearances :

For the 1st party .. None. For the Ilnd party .. In person.

The Govt. of India in the Ministry of Labour in exercise of powers conferred by clause (d) of sub-section (1) and sub-section (2A) of section 10 of I.D. Act have referred the following disputes for adjudication vide No. L-29011|l|99|IR(M) dt. 14-5-99 :

"Whether the action of the management of Krishna Cement Ltd., Mandia- kudar, Dist : Sundargarh in termi-, nating the services of Sri Suru Behera, Bodo Majhi, Saharaj Xaxlo, Mandhar Nayak and Joseph Ekka w.e.f. 6-9-96 without observing the provisions of Industrial Dis- putes Act, 1947 is justified ? If not, to what relief the workmen are entitled ?"

2. The case of the ^nd party workmen is that the 1st party management is an industry and engaged in production and sale of cement for the purpose of making profit. That the above named workmen were employed under the 1st party for its production process under the fictitious contractor M|s. Rai & Co., Rajgangpur. The 1st party management in order to deprieve them from their legitimate dues, showed them to have been working under a contractor. That contractor had no valid license. Though the 2nd party work- men have worked continuously till 5-9-96, the Tst party management suddenly refused them employment from 6-9-96 without any reason or rhyme. Before terminating them, the management has neither served notice nor notice pay in lieu there of. So the action of the management is improper and uniu^tified. So they pray for rein statement with full back wages.

3. Notices under registered post were sent to the 1st party management through tribunal, but as it did not prefer to attend the office, it was sent exparte.

4. To prbve their fcase, tfie 2nd party workmen has filed affidavit evidence which corroborates the facts stated in the written statement Since the case of the 2nd pary workmen stands unchallenged, the sime is accepted. Accordingly the 1st party manage- ment is directed to reinstate the 2nd rwty workmen and pay full back wages.

Dictated &:. corrected by me.

A. K. DUTTA, Presiding Officer 1788 G1/2001—20 jm m ^ Mwm 6r mraA ^ mm?®, VW/AM&M. x tm IPAKT:•&&%^)i New Delhi, the 29th May, 2001

S.O. 1435.—In pursuance of Section 17 of the In- dustnal Dispute Aci, 1947 (14 of 1947), the Central Government hereby publishes the award of the In- dustrial Tribunal, Rourkela as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of TJ.S.CO. Ltd. and their workman, which was received by the Central Government on 28-5-2001.

[No. L-26011/7/94-IR(M)] B. M. DAVID, Under Secy.

ANNEXURE

IN THE COURT OF PRESIDING OFFICER, INDUSTRIAL TRIBUNAL, ROURKELA Industrial Dispute Case No. 51/97(C) Dated, the 19th December, 2000 PRESENT :

Sri Alak Kumar Dutta, Presiding Officer, Industrial Tribunal, Rourkela.

BETWEEN

The Superintendent, Prospecting Division, Geological Services Deptt., T.I.S.C.O. Ltd., PO: Jamshedpur, Singhbhum.

. .. 1st party.

AND

Their Workmen, represented by General Secretary, North Or' sa Workers Union, PO: Rourlu i, Distt. Sundargarh.

, . . Ilnd party.

APPEARANCES :

For the 1st party : M.2.M. Ansari, Dy. Manager.

For the Ilnd partv : Sri B. S. Pali, Gen. Secretary.

AWARD

The Government of India in the Ministry of Labour in exercise of -powers conferred by clause fd) of subjection (I) and sub-section (2A) of Section 10 of I.D. Act have referred the following disputes for adjudication vide No. L-26Qll/7/94-IR(M) dated 25-11-94 .

"Whether the action of the management of Geo- logical Services Tata Iron and Steel Co. Ltd., At/PO: Joda, in terminating the services of Sri Sukulal Sandil and 44 others w.e.f. ]-4-93 is justified ? If not, to what relief the workmen are entitled to ?"

2. Th'3 case of the 2nd party workmen in brief is as follows :

The 2nd party workmen joined their duty in differ- ent months and years as temporary workers under the 1st party management. Though they were work- ing continuously yet artificial breaks in service for few days were given to them and lastly they were denied work w.e.f. 1-4-93 without any written order. Being approached the officer in charge of the site informed that their file had gone to headquater at Jamshedpur and on receipt of the order from the headquarter they would be taken in service permanently. They were advised to wail. No written order was issued to them in this regard. After waiting for some time, when they did not receive any order from the 1st party, the workmen approached the union who, raised the dispute before the authority. They claim that they have completed 20 years of service under the 1st party management They further claim that they have not received any compensation on their termination of service. Hence they pray for reinstatement with full back wages.

3. In reply, the contention of the 1st party in brief is that the outdoor section of the Geological Services Department of the Tst party undertakes prospecting drilling project job wherever necessary on requisition of the mines management at any location for mining operation. So the period of work for each project is temporary in nature and is for a fixed period for work as labourers local persons on cnsual/temporary basis are engaged in the project and they work till the project work is completed. So they are given appointment for a fixed period and at the end of the period their work ceases. Whenever another work is taken up after some days or months in that area aga;n another aopointment order is given to them for a fixed period. So this engagement is temporary, con- tractual engagement "depending on its requirement. When their work ceases, no termination order is again issued as not necessary. Since they were given appointment for fixed period and their work ceased at the end of the period their case falls U /s 2Coo) (bb) of the I.D. Act and as such Section 25-F of the Act is not attracted; and they are not entitled to any comnensation under it. On the expiry of the last spell of engagement, the operation stopped and their work: ceased and there was no necessitv of giving further appointment to them w.e.f. 1-4-93. It is the further plea of the 1st partv that North Orissa Work- ers Union has got no locus-standi to represent the 2nd partv's case and as such the reference is not maintainable. Hence prayer for dismissing the case.

4. On the aforesaid analysis following issues have been framed :

I. Whether the reference is maintainable ? Tt. Whether- the action of the mgnawmfnt in ter- minatine the services of Sri Sukulal Sendil and 44 others w.e.f. 1-4-93 is justified?

III. If not, to what relief the workmen are entitled? to deprive the workmen from claiming regularisation tor cuiUjjieuiig 2.4V uays oi wont. 5- issue No. II.—W.W.2 states tnat they all work- ers joxncu me 1st paity management in i y /j Ma^ch anu woik.ee! till 3i-J-yj. iney were worKing conunu- ousiy witn a break oi six to seven days eacn time aitei worKing lor 3 to 4 mourns, in mat wuy tney continued ami on 1-4-93 tney were totally stopped trom dOitig work. Mo termination notice was given and no compilation wab paid, iney were getting bonus every year. He proves Ext. 4 as his bonus slip cpn- tauung rns totai ways ol worit m tuat year auu tne bonus amount. Otners were aiso getting bonus slips Ext. 5 to Ext. 18. In cross examination ne admits that all ot tncni are local person and given employ- ment as such, He denies that tney did not start work in 1973. He admits working in prospecting project to die same cllect, is the evidence ot otner witnesses of the workmen, incy admit that atter fixed period of engagement they were being disengaged tor a period ana again being given appointment, AS per the evi- dence of the witnesses when the project work was closed, their work hi that project was also coming to an end. They were receiving appointment orders Ext. 16 to Ext. 24 in which the period of appointment has been noted.

7. ihe learned representative oi the workmen sub- mits tnat tnougn tne project worjc was oi contmuuiLs nature yei me woi*.eii> weie not auoweu to worn, con- tinuously so as to deprive them from the benefits U|s. 2j-r* oi ine Act anu wey weie given eugagumem. ior hxed periods and at the end oi mat penou wey were disengaged lor some aays and again given appoint- ment ior oxed pen 00. jtie argues mat tiieae Di&aoj> are artmcial bieaxs not requireu ana mese breads were made so that the management wouid taxe tne piea that the work wa? ot contractual natme ror hxed period and as such then- case comes Uys 2(.OOKDD) ot the Act. On tne otner tiand, tno learned rejpiesen- tative ot the 1st party submits that each project work is taken up for a nxed period to investigate mineral and at the end oi the period project wont comes to an end and those local person engaged ceases to work. The very nature ot project work snows that it is not a continuous one and therefore atter the "nd of the project another project work*is taken up alter some tune and for this intermittent period the workmen ga without work. So it can not be said that these breatts are art, ial breaks. Both siaes have relied upon cer- tain decisions in support of then¹ argument.

8. The 2nd party has filed decisions "Salendranatli Shukla and otners Vrs. Vice Chancellor, Ailanabad University" reported in 87-Lab. 1. C. at page I6u7. It is a decision of Ahanabad High Court, i neir Lord- ship have held that Section 2(.oo)(bb) is in the nature of an exception to Section 2(oo) and has to be cons- trued strictly aid in favour of the workmen as the entire object of the Act is to secure a just and fair deal to them. Termination included in Section, 2 (oo) (bb) are those which are brought about either be- cause of non-renewal of contract of employment or expiry ot time stipulated hi agreement. The nature of employment must be judged by nature of duties per- formed and not on the letter issued by the employer. If contractual employment is resorted to as the mecha- nism to frustrate the claim of the employee to become regular or permanent against a job which continues of the nature of duties is such that colour of contrac- tual agreement is given to take it out from Section 2(oo), then such agreement cannot be regarded as fair or bona-flde. Section 2{oo_)(bb) cannot be ex- tended to such case* where the job continues and the employee's woik is also supervisory but periodical renewals are made to avoid to give regular status to employees, Irjat would be unfair practice. In a deci- sion reported in I-LLJ-1990 at page 443 (Balbir Singh Vrs. Kurukhetra Central Coop. .Bank Ltd. and another, his Lordship of Punjab High Court has held that Section 2(oo)(bb> has. to be so interpreted as to limit.it to cases where the work itself ,hai been accomplished and the .agreement of hiring for a spe- cific period was genuine. If the work continuous,- the non-renewal of the contract has- to be dubbed as mala- fide. In a decision reported in 72(91 )-C.L.T. at page 404 (Chakradhar Tripathy Vrs. State of Orissa and others), their Lordships have held that the contrac- tual employment is to be scrutinised to see if it is a colourable contract and is resorted to as a mechanism to frustrate the protection under Section 25-F of the Act or if the nature of the adhoc appointments aw bona fide and the employee has been treated fairly 6. M.W. 1 states that the objective of the project division is to investigate mineral and to hnd out its economic viability. Theie is permanent crew of the department which is mobile and moving all over India- The permanent crew are on the pay roll of Jamshedpur. He states, that locai persons are also re- cruited temporarily and on contractual basis ior a particular project as per the agreement with the T.I.S.C.O. Onion vide Ext. A. Those local persons were always issued with appointment orders contain- ing in detail, service conditions. The services of the Workmen came to an end as per the appointment orders. The 2nd party workmen were given appoint- ment as local person as per the agreement and they were given appointment on casual and temporary basis only after the agreement Ext. A was executed. The duration of the project depends upon the requirement of the job He states that no artificial break m service Was given to any workmen. The notice of termina- tion was not issued as period of work was mentioned in the appointment order. He states that all the work- men might have worked for 240 days in a year but hot continuously. They have worked with intermittent breaks. He claims that a local person (working in the project) cannot be transferred to another place in that Section. He denies the suggestion that the workmen have completed in a year 240 days of work conti- nuoubly. M.W. 2 states that 2nd party workmen might have worked during 1981 to 1983 and during 1992- 93 they were also working there. He states that during each time of engagement, appointment order has been issued to them mentioning the maximum number of days or less that they would work depend- ing upon fhe nature of work. Appointment letter was being issued from his camp and local persons were given preference. He denies that assurance were given to the workmen to make them permanent. He admits (hat no termination letter was issued to any workmen as not required. He denies the suggestion that project work was continuous one and that the workers were given appointment order for fixed periods with breaks and that those break? are artificial breaks only given 2960 THE" GAZETTE OF INDIA : JUNE 23. 2001/ASADHA 2, 1923 [PART II—SEC. 3(ii)] in regard to his employment. From the principles de- cided in the. above decisions it is clear that if the services of any workman is terminated for any reasons whatsoever, then this is nothing but retrenchment which comes U /s 2(.oo) and Section 25-F is attracted to it. But if this termination is due to non-renewal of contract on its expiry, then this termination comes Tj/s 2(oo)(bb) and then it is not a retrenchment at- tracting the provision U/s 25-F. Therefore the Tri- bunal must scrutinise whether the job tadtcn over by the 2nd party was a continuous one but artificial breaks were given by giving appointment lor fixed periods only to deprive them the benefit under Section 25-F of the Act.

9. The workers txamined in this case have admitted that they were working in prospecting division and they were given appointment for fixed periods after which there was interruption for some days and again they were being given appointment order for another term of fixed period. Workmen WW6 has admitted that when the project work was closed their work in that project also came to an end. Management wit- nesses have stated about the nature of project work and rbout its continuity. The management witnesses have stated that local persons were recruited tempo- rarily on contrnctual basis for a particular project. The management witnesses have also stated that duration of the project depends upon the requirement of the job and no artificial breaks in service was given to any workmen. The appointment order is issued to the workmen mentioning the days. He would work de- pending upon the jiature of work.

10. Thus it is clear that these workmen were given work in projects which was taken up for fixed periods to find out minerals for mining purpose. So the pro- jects are of different periods and accordingly local persons weie given appointments for fixed periods. With the closure of the project work their work also ceased. Only when another project work was taken up in that area again appointment order was being issued. So it is not possible that different project work were taken up one after another without any gap of period between each project. After the closure of one project work the management must be taking some days o#r months to decide to take up the next project. There- fore these workmen must be sitting idle or doing work privately somewhere else during each break periods. When they were doing work in different pro- jects it cannot be said that the work was continuous in nature. The workmen W.W. 5 examined in this case has admitted sitting idle for a period in between closure of one project and starting of another project. No workman has claimed that on the closure of one project the field work was going on in the prospecting division and they were dented such work in order to deprive them of the benefit U/s 25-F. So I am con- vinced that the nature of work of these workmen was not a continuous one and they were not being given artificial breaks and their work was contractual in nature. Even one witness W.W. 6 has stated that they were not given work for 5 years. Each time the workmen have been given written appointment order with fixed period of work and terms and conditions of employment written In that order. There is no evidence that during those period of breaks they were actually working in the projecK If thenr was conti- nuous project work, then it cannot be believed that workers would be disengaged for years together. So I hold that their work was contractual in nature. So they are not entitled to the benefits U/s 25-F of the Act.

11. Issue Nos. I and III.—Both issues are taken up together as both arc interlinked. The learned repre- sentative of the management submits that the North Orissa Workers Union which represents the workmen in this case has no locus-standi to represent them and as such the referenced not maintainable. The learned representative of the 2nd party objected to this the [aw is well settled that a Union can take up the case of a worker only when he becomes member of the union on or beforo the date of dismissal when the cause of action arises. In the present case, the 2nd party workmen must prove that they were members of this union on or before 1-4-93, the date of their disengagement. I have already discussed the evidence of the witnesses earlier where all the 2nd party work- men examined in this case have admitted that they because members of this union after they became out of employment. Some workmen have tried to prove that they became members before the date of their disengagement, but this they have not proved by filing membership cards. There is no evidence to hold that the 2nd party workmen were members of this union before 1-4-93. Therefore the North Orissa Workers Union has no locus-standi to represent the workmen in this case. As such the reference is not maintain- able and the workman are not entitled to the relief. Dictated and corrected by me.

A. K. DUTTA, Presiding Officer New Delhi, the 29th May, 2001 S.O. 1436.—In pursuance of Section 17 of the In- dutrial Disputes Act, 1947 (14 of 1947), the Cent- ral Government hereby publishes the Award of the Industrial Tribunal, Rourkela as shown in the Annex- ure in the Industrial Dispute between the employers in relation to the management O.M.C, Ltd. and their workman, which was received by the Central Govern- ment on 28-5-2001.

[No. L-26011j7|91-IRcM)|

B. M. DAVID, Under Secy.

3#6l

ANNEXURB

IN THE COURT OF PRESIDING OFFICER, INDUSTRIAL TRIBUNAL, ROURKELA Industriail Dispute Case No 15|97(C) Dated, the 14th December, 2000 PRESENT :

Sri Alak Kumar Dutta, Presiding Officer, Industrial Tribunal, Rourkela.

BETWEEN

Th© General Manager, Daitari Iron Ore Project, of O.M.C. Ltd., A t: Talapatfa, Dist : Kenojhar

. • 1st party do the manual work in the mines. Some of these maz- doors who have appeared hi the interview and quaU- fiecl themselves lor certain posts have been absorbed in the regular post when occasion has arisen. The management turtner contends tnut the doctrine of equal pay for equal work is not applicable in the case oi these mazd'oors since the naturt, duties and respon- sibilities of a regular Class IV employee of the O.M.C. Ltd. is different. Hence prayer for dismissing the refe- rence.

. 4. On the aforesaid analysis, following issue has been framed :

I : If the daily rated employees of Daitari Ore Project of O.M.C. Ltd. employed for more than a year are entitled to Class IV scale of pay of Orissa Mining Corporation and if so, from what date ?

AND

Then- workmen, represented by General Secretary, Daitari Khani Mazdoor Sangh, Talapajda, Dist : Keonjhar • • Hnd party APPEARANCES :

For the 1st party—Sri S. Biswal, Advocate, Sri G. Pujhari, Advocate.

For the Ilnd party—Sri Y. Mohana, President.

AWARD

The Govt. of India in the Ministry of Labour in exercise of powers conferred by clause (d) of sub- section (1) and sub-section (2A) of Section 10 of I.D. Act havo referred the following dispute for ad- judication vide No. L-26011/7/9 L-I.R.(M) dated 8-1-92:

"Whether the daily rated employees of Daitari Iron Ore Project of OMC Ltd. employed for rnoro than a year are entitled to Class IV scale of pay of Orissa Mining Corpora- tion? If so from what date?"

2. The 2nd party's claim in brief is that 156 per- sons are working continuously for a penotf ranging from 3 years to 17 years under the 1st party as daily rated workers and have not yet been regularised. Though their nature of work is same as regular Class IV employees of the 1st party, they have been depriv- ed of monetary benefits given to the Class IV reguja;r employees and are also paid less than them. So they prays for rcgularisation o.f their service.

3. In reply, the 1st party contends that these daily rated workers are recruited from nearby villages fo the mines as mazdoor on casual Vasis and they are paid nt the rates fixed by the Central Government and they a:>- -selected at the spot without reference to the recruitment rules of the corporation or preserva- tion order of the Government or the law regarding Compulsoy Notification of Vacancies to the Employ- ment Exchange. These recruitments are done to meet the urgent requirements of short durations and they

5. Issue No. 1: W.W.I states that he is working ai mechanical attendant since last 25 .years, He was en- gaged in repairing and maintenance in Ore Handling Plant ailongwith mechanic. He and other employees have not been regularised. He admits that he is getting wages as fixed by Govt. of India and in the wage slip his designation has been shown as mazdoor. W.W. 2 also states that he is working as mechanical attendant since 1979 and looking after maintenance and repair- ing in the plant. They work as per the direction ol the supervisor. He is working continuously from the date of joining. He admits that some of his collea- gues have been made regular while his case has been ignored unjustifiably. He knows Rajkishore Majhi who was working as mechanical attendant and he filed a writ before Orissai High Court and as per the Order of the Hon'ble Court his service was regularised. In his wage slip his designutiton has been shown as mazdoor. W.W.3 states that he joined as mechanical attendapt in 1987 and works with the mechanic. They worked regularly. In bis wage slip his designa- tion has been shown as mazdoor. W.W. 4 states that starting as mechanic in 1974 is now driving the trnctor for which he has got driving license, W.W, 5 works as mason since 1977. He also works as Car- penter. He is a daily rated worker.

6. M.W. 1 states that previously when there was vacancy i.e. jobs were available the persons approach- ing for work were getting it when there was no rule of getting appointment through employment exchange. No interview was conducted nor medical test was done. No reservation quota regarding appointment of S/C ard S/T persons was followed. They were ap- pointed on casual basis anj receiving wage daily since the beginning. These 2nd party workmen are working as labourers assisting the technician. M.W. 2 states that 25 persons of the 2nd parly are already dead, 24 persons already retired. 5 members resigned from service and service of 4^ workers have been regulari- sed. He states that the 2nd party members gets their remuneration on daily rate wauej basis as fixed by Govt. of India. He cannot name those 47 persons whese service has been regularised. He admits that daily rated employees havinc put ID service for 13 to 20 years have acquired basic knowledge in various sections like electrical mid mechanical.

7. The workers examined in this case have claimed workin? under the manacement for the last 15 to 20 years. The service period of the 2nd party workmen 2W& ffi&imZE'ITE OF INDIA-JtlNE'23, 2001/ ASftDflX 2, 1923 [PARMI^-Sfec. 3{HJ] as mentioned in tjw claim statement has not been dis- puted. Ahnqst all are in service- for more than 15 to 20 yeais. As per M.YV.2, the employees who are in service for 15 to 20 years have acquired basic knowledge in various sections like mechanical and electrical. So all are competent to work as Claps IV regular employees of the management. M.W.7 admits tlhat 47 workers have already becu regularised in service. One of the 2nd party workman Raj Kishore Majhi who was working as casual mazdoor in 1967 filed Writ O.J.C. No. 4192 by 89 in the Hon'ble High C u rt of Orissa for regularjsation of service. The Hon'ble High Court finding him in service as daily wage worker for last 18 years, ordered his ser- vice to be regularised within 3 months from the date of receipt of the order. If service of Rajkishore Majhi could be regularised¹ for his working as a daily wage worker for last 18 years then I find no reason why services of other daily wage workers (2nd party workmen) who have admittedly put in 10 to 20 yenrs of service should not be regularised.

8. The services of 2nd party workmen should be regularised and they should be placed at par with Class IV employees of the management. Had this been a case of single individual then I would have directed the management to regularise his service wihtin 3 months following the Hon'ble High Court order. But here nearly 100 persons are to be regularised in ser- vice, so it will create difficulty for the management to absorb so many persons at a time. So I do not fix any time limit for pbsorption. The management should regularise the services of 2nd party workmen whose service have not been reuularised and before their absorption no other outsiders should be recruit- ed. The 2nd party workmen who is to retire firrst is to be absorbed first. Observing this princiDlc all the 2nd party workmen who arc not vet rcmriarfse in service but still continue as dailv rated workers should be absorbed as Class IV employees.

Dictated and corrected by me.

A. K. DUTTA, Presiding Officer New Delhi, the 29th May, 2001 S.O. 1437.—In pursuance of Section 17 of the Industrial Dispute Act; 1947 (14 of 1947), the Cen- tral Government hereby publishes tlhe award of the Industrial Tribunal, Rourkela as shown in the Anne- xurc in the Industrial Dispute betwen the employers in relation to the management T.I.S. Co. Ltd. and their workman, which was received by the Central Government on 28-5-2001.

[No. L-26011/4/94-IR(M)] B. M. DAVID, Under Secy.

ANNEXURB

IN THE COURT OF PRESIDING OFFICER: INDUSTRIAL TRIBUNAL: ROURKELA industrial Dispute Case No. 52/97(C) Dated, the 19tih December, 2000 PRESENT:

Sri Alak Kumar Dutta, Presiding, Officer, Industrial Tribunal, Rourkqla.

BETWEEN :

Divisional Manager, Geological, Services, Prospecting Division, TISCO Ltd., P.O. : Jamshedpur, Dist. : Singhbhum (Bihar). . . 1st party

AND

Their Workmen, represented by General Secretary, North Orissa, Workers Union, P.O. : Rourkela-12, Dist. : Sundergarh.

' . . Ilnd party.

APPEARANCES:

For tllic 1st party : M. Z. M. Ansari, Personal Officer. For the Ilnd party: Sri B. S. Pati, Gen. Secy.

AWARD

The Government of India in tlie Ministry of Labour in exercise of powers conferred by clause (d) of sub-section (1) and sub-section (2A) of Section 10 of I.D. Act have referred the following disputes for adjudication vide No. L-260011/4/94 dt. 25-11-94:

"Whether the action of the management Geologi- cal Department, Prospecting Division, TISCO Ltd., Jamshedpur (Bihar) in not en- gaging the workers permanently and giving them employment on contractual basis and not giving further employment after 1-4-93 was justified ? If not, what relief the work- men are entitled to ?"

2. The case of the 2nd party workmen in brief is as follows:

Thia 2nd party workmen joined their duty in diffe- rent months and years as temporary workers under the 1st party management. Though they were work- ing continuously yet artificial breaks in service for few days were given to them and lastly they were de- nied work w.e.f. 1-4-93 without any written order. Being approached tlhe officer in charge of the site inti- mated that their file had gone to hiftidquarter at Jam- shedpur and on receipt of the order from the head- quarter, they would be token back in service 29W permanently. They were advised to. wait. No written order was issued to them in this regard. After wait- ing for some time when they did not receive any order from the 1st party, they approached the urion who raised the dispute before the authority. They claim that they have completed 20 years of service under the 1st party management. They further claim that they have not received any compensation on their termination of sendee. Hence they pray for reinstatement with full b?ck wages.

1-4-93 they Were totally Stopped from doing work. No tenninaiton notice was given and no compensation was paid. They were getting bonus every year. He proves Ext. 5 as bis bonus slips containing, his total days-of work in that year and the bonus amount. Others were also getting bonus slips. In cross examination he admits that all of them were given appointment order having terms and conditions. He denies that they did not start work in 1973. He admits working in prospecting project. To the same effect is the evi- dence of other witness W.W.4 of the workmen. They admits that after fixed period of engagement they were being disengaged for a period and again being given appointment. They admit receiving appoint- ment order Ext. 7 to Ext. 25 in which the period of appointment has been noted. W. Ws 2, 3, 4, 5 says that they became members of this union before dis- engagement. They have not proved membership cards. W.W.I, Secy, of the union docs not say when they became members & does not prove registers of the union in this regard. Except the bald statement of workmen, there is no other evidence to believe, them.

3. In reply, the contention of the 1st party in brief is that the outdoor section of the Geological Services Department of the 1st party undertakes prospecting drilling project job wherever necessary on • the requi- sition of tho mines management at any location for mining operation. So the period of work for each project is temporary in nature & is for a fixed period. For work as labourers local person on casnal|tempo- rary basis were engaged in the project and they work- ed till the project work was completed. So they were given appointment for fixed period and at the end of iflae period their work ceased. Whenever anothetr work as taken up after some days or month in that area again another appointment order was given to them for a fixed period. So this engagement is tem- porary, contractual engagement depending on its requirement. When their work ceased, no termina- tion order is again issued a<= not necessary. Since they were given appointment for fixed period and their work ceases at the end of the period their case falls u/s 2foo)(bW of I.D. Act and as such section 25-F of the Act is not attracted and they are not entitled to any compensation under it. On expiry of the last spell of engagement, operation stopped their work ceases and there was no necessity of giving further appointment to them w.e.f. 1-4-93. It is the further pilea of the 1st party that North Ori^sa workers union has pot no locus standie to represent the 2nd party in this case and as such the reference is not main- tainable. Hence prayer for d'smissin" the case.

4. On the aforesaid analysis, following issues have

been framed:

I: Whether the party raising the dispute has

locus-standie to do so ?

II • Whetlher the reference as laid is maintain-

able ?

I l l: Whether the action of the management Geological Department, prospecting Divi- sion, T.I.S.C.O! Ltd., Jnmshfidpur CBihnr) in not engaging the workers permnnTitlv and giving them employment on contractual basis and not giving further employment after 1-4-93 was justified ?

IV: If not, what relief the workmen are entitled

to?

6. M.W.I states that the- objective of the project division is to investigate mineral and to find out econo- mic viability. There is permanent crew of the de- partment which is mobile and moving all over India. The permanent crew are on pay roll of Jamshedpur. He states that local persons are also recruited tem- porarily on contractual basis for a particular project as per agreement with TISCO union vide Ext. A. Those local persons are always issued with appoint- order containing in detail service condition. The services of the workmen came to an end as per the appointment order. The 2nd party workmen were given appointment as local person as per the agree- ment and they were given appointment on casual and temporary basis only after the agreement Ext. A was executed. The duration of the project depends upon the requirement of the job. He states that no arti- ficial break in service is given to any workmen. The notice of termination is not issued as period of work has been mentioned in the appointment order. He states that all the workmen might have worked for 240 days in a year but not continuous. They have worked with intermittent breaks. He claims that a local person ("working in the project) cannot be trans- ferred to another pla cc in *at section. He denies the suggestion that the workmen have completed in a year 240 days of work continuously. M.W.2 states that 2nd party workmen might have worked during 1981 to 1983 and during. 1992-93 they also working there. He states that during each time of eneatrnnent appointment order has been issued to them mentioning the maximum! number of days or less that thev would work deriding w °n the nature of work. Appoint- ment letter was" being issued from his camp and local persons were given preference. He denies that ns<=u- rance were driven to the workmen to make them permanent, He admits that no termination letter WHS issued to any workmen as not reatiired. He denies the suggestion that proiect work was continuous one nnd that the workers were given nnnointment order for fixed periods' with breaks and that those br?iV nre artificial break oniv piven to deprive the workmen from riaitninK regularisation for completing ?^0 days of work.

5. Issue- no. Ill:—W.W.2- states tihat th'ev nil the workers ioined under the 1st partv management in between 1972 to 19T5. and worked till V-^^3. T^Cv were denied work from 1-4-Qi f" 19-7-92. W.W.3 states that thev worked continuously with a break of six to srven davs each time aft;r wirVini* for ^red rteriod WW4 states that thev were discngapH from t-4-91 to 19-8-92. In that way they continued and on 2964 THE TOAZETTE OF INDIA : JUNE .23. 2001/ ASADHA 2, 1923 IPART B—Sue. 3(ii)]

decisions it is clear that if the services of any work- men is terminated for any reasons whatsoever, then this is nothing but retrenchment which comes u|s 2(oo) and section 25-F is attracted to it. But if this termination is due to non-renewal of contract on its expiry, then this termination comes u /s 2(oo)(bb) and then it is not a retrenchment attracting the pro- vision u /s 25-F. Therefore the Tribunal must scruti- nise whether the job taken over by the 2nd party was a continuous one but artificial breaks were given by , giving appointment for fixed periods only to deprive

him the benefit u|s 25-F.

7. The learned representative of the workmen sub- mits that though the project work was of continuous nature yet the workers were not allowed to work continuously so as to deprive them from the benefits u/s 25-F of the Act and they were given engagement for fixed periods and at the end of that period they were disengaged for some days and again given ap- pointment for Uxed period. He argues that these breaks are artificial breaks not required and these breaks were made so that the management would take the plea that the work was of contractual nature for fixed period ;md as such their cases docs not come u/s 2(oo) (bb) of the Act. On the ether hand, the learned representative of the 1st party submits that each pro-_ jeet work is taken up for a fixed period to investigate mineral and at tin; end of the period project work comes to an end and those local person engaged ceased to work. The very nature of project work shows that it is not a coninuous one and therefore after the .end of one project another project work is taken up afer some time and for this intermittent period the workmen go without work. So it cannot be said that these breaks are artificial bearks. Both sides have relied upon certain decisions in support of their argument.

9. The workers examined in this case have admitted that they were working in prospecting division and they were given appointment for fixed periods after which there was interruption for some days and again they were being given appointment for fixed periods after which there was interruption for some days and again they were being given appointment order for another term of fixed period. Management witnesses have stated about the nature of project work and about its continuity. The management witnesses have sated that local persons were recruited tempora- rily on contractual basis for a particular project. The management witnesses have also stated that duration of the project depends upon the requirement of the job arid no artificial breaks in service was given any workmen. The appointment order is issiied to the workmen mentioning the days. H" would work depending upon the nature of work.

8. The 2nd party has filed decisions "Sailcndranath Shukla & others Vrs Vice Chancellor, Allahabad Uni- versity" reported in 87-Lab. I. Cat. page 1607. It is a decision of Allahabad High Court. Their Lord- ship have held that section 2(oo> (bb) is in the nature of an exception to Section 2(oo) and has to be cons- trued strictly and in favour of the workmen as the en- tire object oi the Act is to secure a just and fair deal to them. Termination included in section 2(oo)(bb) are those which are brought about either because of non-renewal of contract of employment or expiry of time stipulated in agreement. The nature of employ- ment must be judged by nature of duties performed and not on the letter issued by the employer. If con- tractual employment is resorted to as the mechanism to frustrate the claim of the employee to became regular of permanent against a job which continues or tihe nature of duties is such that colour of contrac- tual agreement is given to take it out from section 2(co). Then such agreement cannot bo regarded as fair or bonafide. Section 2(oo)(bb) cannot be exten- ded to such cases where the job continues and the employee's work is also a supervisory but priodical renewals are made to avoid to regular status to em- ployees. That would be unfair practice. In a deci- sion reported in I-L.L.T-1990-at page 443 (Balbir Singh Vrs Kurukhetra Central Coop. Bank l t d . . a nd another). His Lordship of Punjab High Court has held that section 2(oo)(bb) lias to be so interpreted as to limit it to cases where the work itself has been accomplished and the agreement of hiring for a specific period was genuine. If the work continuous, the non- renewl of the contract has tr> be dnbbed as malafiHe. In a decision reponed in 72(91 )-CL-T at page 404 (Chakradhar Trioathy Vrs St^te of Orissa & others). Their l-ordship have held that tlhe contractual cm- plovrrent i? to be scrutinised to sec if it is a cnlnnmMij contract and is resorted to as a mechanism to frustrate tihe orotection section 25-F of the Act or if the nature of the adhoc appointments arts bonafide and tlhe em- ployees has beer treated fnirly in reeard to his employ- ment. Frorp the principles deci^?d in the Pbove

10. Thus it is clear that these workmen were given work in projects which are taken up for fixed periods to find out minerals tor mining purpose. So the projects arc of different periods and accordingly local persons were given appointment for fixed periods. With the closure of the project work their work also ceases. Only when another project was taken up in that area again appointment order was being issued. So it is not possible that different project work were- taken up one after another without any gap of period between each project. After the closure of one pro- ject work the management must be taking some days or months to decide to take up the next project. . Therefore these workmen must be sitting idle or doing work privately somewhere else during each break periods. When they were doing work in different projects it cannot be said that the work was conti- nuous in nature. Workmen WW3 examined in this case has admitted sitting idle for the period in bet- ween closure of one project and starting of another project. No workmen has claimed that on the closure of one project the field work was going on in the prospecting division and they were denied such work in order to deprive them of the benefit u's 25- F. So I am convinced that the nature of work of these workmen was not a continuous one and they were not being given artificial breaks and their work was contractual in nature. Each time the workmen have been given written appointment order with fixed period of work and terms and conditions of employ- ment written in that order. There is no evidence that during those period of breaks they were actually work- ing in he projects. If there was coninuous project work, then it cannot be believed that worVsis would be d'fengaged four days together, So I hold that w

ANNEXURE their work was contractual in nature. So they are not entitled to^the benefits u/s 25-F of the Act.

IN THE COURT OF PRESIDING OFFICER. INDUSTRIAL TRIBUNAL, ROURKELA

Industrial Dispute Case No. 63|97(C)

Dated, the 19th December, 2000

PRESENT :

Sri Alak Kumar Dutta, Presiding Officer, Industrial Tribunal, Rourkela.

BETWEEN

The Divisional Manager, Geological Services, Prospecting Division, TISCO Ltd., Jamshedpnr, Distt. Singhbhum.

. . .1st party.

AND

Their workmen, represented by General Secretary, North Orissa Workers Union, PO : Rourkela,' Distt. Sundergarh.

. . .TTrtd party.

APPEARANCES :

For the 1st party : M.Z.M. Ansari, Dy. Manager. For the Ilnd party : Sri B. S. Pali, Gen. Secretary.

11. Issue nos. I, II & I V: All the issues Lire taken op together and all are interlinked. The lcarnrd re- presentative of the management submits that the North Orissa • Workers Union which represents the workmen in this case has got no locus-btandic to ro presen them and as such the reference is nor maintainable. The learned representative of the 2nd party objected to this. The law is well settled • that a union can take up the case of a worker only when he became a member of tlhe unkin on or before the date of dismissal when the cause of action arose. Tn the present case, the 2nd party workmen must prove that they were •members of this union on or before 1-4-93, the date of their rtis-engagenient. I have already discussed the evidence of the witness earlier where workmen have tried to piove that thev be- came members before the date of their disengage- ment. - But this they have not proved by filing mem- bership card?,. Fven W.W. 1, the Secretary of the union does not say that they ioincd before disengage- ment. He has not proved the register of the union in this regard. There is no evidence to hold that the 2nd, party workmen were the members of this union before-1-4-93. Therefore th? North Orissa Workers Union has no locus-standie to- represent the workmen in this case. As such the reference is not maintain- able.

AWARD

12. Issue no. IT:—Tn view of the discussion made under Issue no. 1, it is held tint they are not entitled •to any relief.

Dictated & corrected by me.

The Govt. of India in the Ministry of Labour in Exercise of powers conferred by clause (d) of sub- section (1) and sub-section (2A) of section 10 of l.D. Act have referred the following disputes for ad- judication vide no. L-26011 |3j94-TR(M) dt. 3-2^95:

A. K. DUTTA, Presiding Officer

"Whether tlhe action of the management of Geo- logical Department, Prospecting Division, TISCO Lid., Jamshedpur in not engaging workers permanently and giving them em- ployment on contractual basis nnd not giv- ing further employment after 1-4-93 was justified ? If not, to wlnt relief the workmen are entitled to ?

2. The case of the 2nd party workmen in brief is

as follows :

New Delhi, the 29th May, 2001

S.O. 1438.—In pursuance- of Section 17 of the Irkifstrial Dispute Act, 1947 (14 of 1947), the Cen- tral Government hereby publishes the award of the Industrial Tribunal, Roorkeila as shown in the Anne- xure in the' Industrial Dispute between the employers in relation to the management T.I.S.CO. Ltd. and their workman, which was received by the Cei-tral Government on 28-5-2001.

The 2nd party workmen joined their duty in diffe- rent months and years as temporary workers under the 1st party management. Though they were working continuously yet artificial breaks in service for few days were given to them and lastly they were denied work w.e.f. 1-4-93 without any written order. Being approached the officer-in-dhargc of the site informed that their file had gone to headquarter pt Jamshedpur and on receipt of the order from the headquarter they would be taken back in service permanently. They were advised to wait. No written order was issued to them in this regard. After waiting for some time, when they did not receive any order from the 1st party, the workmen approached the rmion who raised the dispute before the nirthoritv. Th^y claim that they have completed 20 years of service under the Tst party management. They further claim that thev have not received anv compensation on thoir termination of service. Hence they pray for reinstatement with full back wages.

[No. 1^26011/3/94-IR ( M il B. M. DAVID, Under Secy.

1788 Ol|2001—21 2966 THL GAZETTE OF INDIA : JUNE 23, 2001/ ASADHA 2, 1923 [FARr II—SEC. 3(ii^>]

engagement they were being disengaged for a period and again being given appointment. As pei the evidence of the witness VVW4 that when the project *Aoik was closed, their woik in that pioject was also came to an end They were receiving appointment oider Ext. 9 to Ext. 17 in which the period of appoint- ment has been noted. WW3 & WW4 have admitted becoming members oi the union after then disengage- ment

3. In reply, the contention " f the 1st pait^ n oriel is that the outdoor section of th- Ceo] <-n 1 sr.vccs department ot the 1st paity und'*'ial; > piospecs iig drilling project job wbfrcvcr nerc'biry on icquis't on ot tlu muiLi r.i i.Jd^muit nt du> location M aiming operation. So tne pcr'od of w i! iui c ivh juu'ect i-> temporary in nature aid is for a fKed period. Vei wf^ik as labourers local person on ca UJ! kmporan Iv is are engaged in the piojcct anJ iii y vcik till ihe pi'o- ject work is completed. So they ar2 givsn appoint- ment for a fixed period and it the eid of the periol their work ceases. Whenever another work s taken up after some days or month in that area 8 of tlic b s' srell of cnpa"e ment operation stocre1 woik c. a* d and there was no n ee ,slcty of givina; further appointment to them w.ef 1-4-91 Tt ^ *V f'H^cr "lea of the 1st paity that North Orissa Wotker<; Union has got no locus-standie (o "-m>ent the 2nd psrtv*"? ;n th's case and as such the re'Vten^ i* nnt mnin

4. On the aforesaid anal) ' follow"!" issi^s b?\<*