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3, The ex-servicemen are entitled for the weinhtafie of service as per Central Office letter F. No. 218178 SCT (B). dt. 28-1-83 para (4) for entitlement of wcightaee for out of cadre promotion. Bv a subseaucnt amendment the Government of India bv its Order dt. 28-1-83 has ordered we;ehf:i!>c for the prriod of service rrndeied ir the nrmnd forces in the rnlio of 5:1 subject to maximum 2 yeais nftpr they h av rendered atlfust 3 venrs of service in the bnnk after rc-cmplovment. Tcnorinit the above- Guidelines the wmlmjn was Hrnied with the onporlnnitv thoui-h he w-is elioibir for OJMGD-1 promotion test conducted in 1085 As nrr ru1"S the "enior innvi rmprovee h:id in offl- C'fitr fi tf-mnoraiv vflcancv of OTMGD-T and officiate )hr> snme whiV so he WTS "rrvp(1 with i Irlt^r with the hrinrh tmnniwi v'H" Wtrr No F 25 d< 1-^-95 that since thn work- rn^n rrn*,s^d 50 vpnrs of nnr will n^t b^ considered to wiitp O1MGD-I promotion post so also official in higher capacity. The workman thiough his representation dated 12-6-97 sub- mitted his grievances to the tiade union i e. Central Secretary S B T. Staff Union, Hyderabad with a view to get the .above nipttci 1 f. 1-8 85 in the form of deemed promotion waiving the moccdure of written test/interview fixing appro- priate seniority on par with the employees of 1-11-92 who were promoted as officers so also for the second stage of promotion Hence prnvt-d to adjudicate the dispute and grant the reliefs as prayed for.

4. Thr lespondent Banks Administration is being guided and controlled by the Central Government i.e. by the Srcietnrv, Ministry of Finance, New Delhi. The bank is obliged to follow ttV guidelines and directions meticulously. The Stnti- Rank i^f India Central Office Bombay was advised hv tin' Ministry v^dr- OMF No. 2/8/78 SET(B) dated 28-1-83 which , cads as under :

"If certain number of. years of services are prescribed as minimum eligibility criteria for promotion from one cadre to another. Rules in this regard may suitably be modified to give defence fo'cev" The first respondent who is the promoting authority had convened and conducted a promotion test fo⁷"4468 THE GAZETTE OF INDIA : AUGUST 25, 2001/BHADRA 3, 1923 [PARI II—SEC. 3(ii)] icached 50 vears of age are deemed to have exhausted of the chances foi piomotion to OJMGD-1 and so they should not be allowed to officiate in higher capacity which amounts to victimisation and harassment.

7. The workman represented his grievances before A.C.L. (Cential) Vijayawada, but the respondent had not co-operated in settling the dispute. The Central Government order have retrospective affecct fiom the date of origination i.e., 2R-1-83 Oi publication by the Bank vide its staff circular No. 88, dt. 8-6-M. I-vcn it 2 years wcightage is extended, the cut-off dale of (jeneial categoiy hcing 31-12-75, the eligibility to write the said lest stands as up to 31-12-77 in lespect of the workman. The bank could have extended 2 years weightage to him as a re-employed, ex-serviceman when such benefit being allowed to SC/ST category of employees at the time of conducting test in 1985 and if at all they had any clarifi- cation to make nr being inconvenienced to extend 1 I years of scivice benefit as per earlier Government orders they could have included the name for promotion test and results could have been kept in abeyance in a sealed cover till receipt oi clarification. No such efforts were made by the management. The Junior employees who are within 50 vears of age were promoted to the disadvantage of the workman over riding his seniority. Hence it is prayed to direct the respondents to promote the workman as an officer in Junior Management Grade-I, w.c f. 1-8-85 in the form of deemed piomotjon andfixhim in the subsequent stage of promotion, otherwise he will suffer loss and hardship.

O.IMGD-I vide circular No. 109 dated 7-8-85 with the criteria of out or service: scnioiity for eligibility for general categoiy of employee!, as on 31-12-75. The above test was conducted on 22-9-85 and about 650. employees wcie piomoled in the said posts w.c.f. l'Ji-S5. I-ven though the workman herein who had eligibility in all respect tor appearing for ihj CXI MOD-1 piomotion test conducled on 22-9-85 he was- denied with the said opportunity by not allow- ing him to wi ite for the said examination. He wa,i also n >t communicated the reasons as to why he was not permitted to wiite the said examination .is such it is violative of the principles of natuial justice. The Juniors were already promoted. Thereby the woikman was put to mental Irauma harassment and humiliation while working in the clei ical cadie only. The critetu of service seniority fixed by the Bank for the above test was that all those clerks and cashiers who have joined the service on or before 31-12-75 are eligible to write Ihe test. The workman herein had joined in the bank on 18-11-77 as re-employed ex-serviceman's post. As per the instructions of the Ministry of finance refened to above the workman should have been given weightaiv of service based on his length of service in the defence service. The Government orders were published thiough circular No. 88 dt. 8-6-84 giving its effect toi implementation as such the manue.j- ment ought to have extended the weightage of (11) years of service to the woi kman which was given a KO bye illegally, so as to deny oppoitunity to the workman to appear foe the test in 1985.

R. The iL'spondent filed the counter and hi iefly stated that the averments are as under. The dispute is untenable both 'if I acts nnd l under law, so it is liable lo be dismissed in J'mine which was raised after an abnormal and unexplained Hrl-iv Thou eh the workman joined as clerk-cum-cnshicr on 9-7-76 imdei ex-service quota, the promotion to the post oi OTMGD-T is nnt ,i matter of routine. Those having requisite numbei of vnrs of service and not crossing the asie of 5r yars nnd fulfilling all other requisite conditions are onh eiriibl'¹ ti, appear for the wiitten test. Those who come om succi'ssfuilv in the written test only r.llowed to anncar for tht interview b^ing on the over all performance of t^e cardidiitc ,ind dencm'in" unon the number of vacane'es in tW v*'u Piomotinn will be effeclced. Similarly for MMGS-FI also the ^ime nrorjdnre was followed The Ministry only issues guide I'nes which an- lecommendarv in nature bul the same an not ndminH--iti\e orders muchk-ss the same become scrvic ror-d'tions applicable (o the staff and officers of

" nd a l so I hr s e r v i ce r u l er HS • k p p l ' r n b i '¹ to t hf o l f l c e r s. On employee cannot be changed unilaterally and it cannot be done only aiier the following due piocedure, paiticulatly in view ot Section 9(A) ot the l.D. Acl. As regards the lint hold on 23-4-9J, eligibility cnLciia was that the persons who liKd joined on or bctore 31-12-73 and not crossed the ass of 5(J years weie only eligible, vide Circular Lettei (PbR) 2 J, ill. 26-3-19y3. As the peunonei was born on l-7-iy4(J Ihe.e- tore he was not eligible to write the suid lest. As regards ihc test conducted on 27-K-89 the cnut-otf dale lor seivice wat, 31-12-/5 and after extending service weightafie of 2 yeais as piovided tor, vide circulai letter (PER) 28 dated 1-4-87, the dainvwt was not eligible to write for the said test as he was appointed on y-1-1976 and the 2 years of weiKhtage can permit the date of his appointment lo be leckoned as 9-1-76 which is not within Ihe cunt-oil date. Circular lettei's tf'LR) 28 (1JER) 56 daled 1-4-87 and 1-8-89 respectively. The enclosed annexures may be read as part of the counter. Vide circular No. 88 dated 6-6-84 related to fixation of pay and other allowances to cx-seiviccmen which has nothing to do vvnh the piomotion of OJM. There was neither any discrimination nor victimisation as alleged by the workman. As the woikman had crossed 50 years of age he was not eligible to write tor piomotion test tor OJMGI3-I held on 11-2-96. (uither as per the banks extended inductions and guidelines employees over 50 years of age should be deemed to have exhausted of the chances of promotion to 'OJMG' and consequently should riftt be permitted to officiate in such position. Vide Circular No. L,H.q/CDO/PbR/22/96/97 dated 26-8-%. There are no merits in the dispute. Hence prayed to dismiss the claim.

9 The point for consideiation is whether the workman is enlilled to the reliefs as claimed for ?

10. In oidcr lo prove the claim, the woikmen examined himself as W.W. 1.

11. The gist of W.WTs evidence is as under : That he was appointed on 94-1976 as a clerk-cum-cashier. During 1985. a test for junior Management-I was conducted and for which post the cut off date of senio- rity was fixed as 31-12-1975 he had put in more than 11 years of defence service, he could have been given weightage allowing him to sit for the test, by following the cir- cular No. 88 dated 6-6-84" which is Ex. Wl. About the wcightage, the Government of India made certain modifications by issuing a circular dated 1-4-87 which is Ex. W2. By the time of conducting the said test in 1985 himself (Mr. P. Subramanya Sharma) was 50 years, and even then he was not allowed to write the test, so the management may be directed to treat him as an officer in Junior Management Grade-I w.e.f. 1-8-1985 in the form of deemed promotion with all attendent benefits. For the subsequent test he crossed 50 years of age and he was not called for the test. To his dis-advantage his juniors below 50 years of age were given promotion.

12. On the side of the management, the Manager personal HRD was examined whoso evidence is as under.—To have a promotion from one cadre to another cadre must have qualified services and as fixed by the Bank. Those who arc Qualified will be allowed to sit for the written test and after qualifying in it the candidate will be called for interview.

4460?

Basing on over and all performance in writ- ten and oral test the candidate will be selected subject to the availability of the vacancies. In promotion of MNGS-II the same procedure will be followed. In 1983 the Finance Ministry issued guidelines for fixation of pay and services weightage etc., of ex-service which circular is Ex. W6. In 1984 there was a settlement with regard to wcigh- tage for fixation of ex-servicemen employees and it was done after discussion with re- cognised unions and in pursuance of it Ex. W2 circular was issued. OJMG-I, test was conducted for the first time on 22-9-85 and in this regard the bank issued Ex. W5 circular fixed the criteria. The workman was not eligi- ble for the test as per Ex. W5 circular. Tho second test for the same post was conducted on 27-8-89 and for this* Ex. Ml circular wm<- issued on 1-8-89. As per the eligibility the employee should have been appointed on 31-12-73 and should not have crossed 50 years as on 1-8-88. As the workman was appointed on 9-1-1976 and after reckoning 2 years weightage basing on Ex. W2 circular he was not become. eligible for the qualify- ing test of O.M.J-I again third test was con- ducted on 25-4-93 for which Ex. M2 circular dated 26-3-93 was issued fixing the qualificaT tions and as per Ex. M2 the employees should have been appointed on or before 31-12-75 and should not have crossed 50 years of age as on 1-8-92 and since the workman has crossed the age he was not eligible for it. Again on 26-3-93 the bank had issued Ex. M3 circular disqualifying the employees who hud crossed 50 years of age to officiate the ;;id post temporarily.

13. The crux of the dispute is that the workman who is an ex-servicemen on re- ern ployed working as clerk-cum-Cashier though was eligible to appear for the test of Junior Management Gradc-I which was held and conducted as per circular letter No. 109 dated 22-9-85 he was deprived of the oppor- tunity without any reason what so ever which is violativc of the principles of natural justice. Consequent to denial of the oppor- tunity he lost the next promotional post of bank as officer middle management Grade-H w.c.f. 1-11-1992. According to the work- man since he has 11 years of defence service ho is entitled for the weightage of service and as ocr the amended circular Ex, W7 dt. 1-4-87 is entitled for 2 years of weighta?e. Had he been allowed for the lest by virturo of his academic qualification and experience4*70 THE GAZETTE OF tNDIA : AUGUST 25, 2001/BHADRA 3, 1923 IPART II—SEC. 3(ii)] he would have passed the test and since he was deprived of the opportunity of promo- tion, a direction to be given that the work- man is a deemed promotee to the post of Junior Grade-I w.c.f. 1-8-85 with all attended benefits and also for the subsequent promo- tional post w.ei. 1-11-92.

By the date of third test the workman had ciossed 50 years age and since Ex. M2 cir- cular stipulated that one should not cross 50 years as on 1-8-92 he was not eligible for all the three tests. Further as per Ex. M3 circular dated 16-8-96 the employees who have crossed 50 years of age by the date of the circular cannot also officiate the post of O.M. G IL

J5. To resolve the dispute with reference to the factual aspects, the evidence let in by the parties read with documents which are the guidelines issued by he Govern- ment of India, Ministry of Finance & Circular Viz., Ex. Wl to W8, Ml to M3 arc to be examined carefully analysing it by interpreting the guidelines and circulars.

16. Undisputedly the workman as an ex-serviceman on re-employment was appoint- ed as Clerk-cum-Cashier on 9-1-1976. Ex Wl is a guidelines dated 28th January, 1983 issued for fixation of pay of ex-service em- ployees working in Public Sector Banks Para 4 of it is relevant in this dispute whicl is to the effect that 'if certain number of year; of service are prescribed as a minimum cligi bility criteria for promotion from one cadn to another Rules in this regard may be sui tably modified to give weightage to ex-ser viccmen on the basis of their services ii defence force'.

14. Whereas the management has taken the stand for the promotional post of Clcrk- cum-Cashier in OJM Grade-1 and one must have a qualified service and age prescribed by the bank and having eligibility to sit for the qualifying examination i.e. (written test). After qualifying in the written test the candi- dates will be qualified for the interview and basing on the over all performance in the written and oral test, the candidate will be selected depending on the availability of vacancies. For the next promotion of MWGS-II the same procedure to be follow- ed. As per the 1983 guidelines issued by Ministry of Finance in respect of pay, ser- vice weightage etc., covered by Ex. W6 of the employees, the management after hold- ing discussion with the recognised All India State Bank of India Staff employees Federa- tion Settlement dt. 17-2^87 was entered into. Pursuant to the said settlement the bank had issued a circular which is Ex. W2 regarding the weightage of service to the Ex. Service employees making them eligible for the pro- motional post of OJM-1 A test was conduc- ted for the first time on 22-9-85 for which Ex. W5 circular was issued prescribed cer- tain qualifications under which a candidate should have been appointed in the service on or before 31-12-75 and his age should not exceed 50 years as on 1-8-85. Since the workman was appointed on 9-1-76 he had no eligibility as per Ex. W5 circular. Subsequently the 2nd test was held for the same post on 27-8-89 covered by Ex. Ml circular dt. 1-8-89 prescribing the qualifica- tions that the employees should have been appointed on or before 31-12-73 and should not have crossed 50 years of age as on 1-8-88 since the workman was appointed on 18-11-87 inspite of getting 2 years" of weigh- tage as per Ex. M2 circular he was not eligi- ble for the qualified test of MG-I. Again for thc third time, the test was conducted on 25-4-93 for which Ex. M2 circular dt. 26-9-93 was issued fixing the qualification under which an employee should have been appointed on or before 31-12-75 and his age should not exceed 50 years as on 1-9-92.

17. No doubt the workman had 11 years of defence service but he cannot claim entire services as weightage. The guidelines itself had made it clear that rules may be suitably modified. For making rules or modifying it, the management cannot inde- pendently act and it had to consult the re- cognised and registered employees union of State Bank Employees Federation and thereby the management had to discuss it with the employees union and ultimately en- tered into a settlement on 17-2-87 and followed bv it. Ex. W2 circular came into effect for giving weightage to ex-service em- ployees. Para (1) of the circular is relevant which is to the affect that 'weightage is to be given for the purpose of out of cadre pro- motions in the ratio of 1 year for every 5 years of service put in the Armed forces sub- icct to a maximum of 2 years in total service. No Pro-rata weightage should be ^iven to an ex-servicemen emplovee'. Therefore, it is elenr that after completion of 3 years of service in the post of clerk-cum-cashier as4471 per Ex. W2 circular an cx-scrvice employee is entitled for 2 years additional service weightage. As a result of which his service is to be counted from 9-1-78 onwards for the purpose of seniority and for further ;;.-o- motion.

18. The claim of the workman is that for OJMD-I post test was conducted on 22-9-1985 for which Ex. Ml circular was issued fixing qualification that the candidate should have been appointed on or before 31-12-1975 and his age not exceed 50 years on 1-8-85. In para 8 of the claim statement is stated that the workman was aged 44 years by the time the test was conducted hi 1985, while so he was not allowed and dis- creminatcd.

19. Ex. W5 circular is the basis to decide the question in issued. As per eligibility criteria of Ex. Ml (item II) that relates to service which is to the effect thai the em- ployee should have been appointed on or before 31-12-75. In case S.C. and S.T. em- by 31-12-77. Admitted]v v appointment of the workman itself was on 9-1-76 that he must put in a minimum of 3 years of service for getting 2 years of weightage. Even after getting weightage there was no possibility for the workman to have the eligibility as his appointment was not on or before 31-12-75. May be that on 1-8-85 the workman was 44 years of age but he was not eligible at all, as his appoint- ment was after 31-12-75.

20. The second test was held on 27-8-89 for which Ex. Ml circular dt. 1-8-89 was issued in which the qualification prescribed are that the employees should have been ap- pointed on or before 31-12-73 and should not have been crossed 50 years of age as on 1-8-88, obviously the workman was not eligible for second test as his appointment was on 9-1-76 and by additing 2 years of weightage of service after 3 years of regular service.

21. The third test was conducted on 25-4-93 for which Ex. M2 circular dt. 26-3-93 was issued prescribing qualifications under which the employees should have been appointed on or before 31-12-75 and his asre should not exceed 50 vears as in 1-8-92. As on 1-8-92, the workmnn had crossed the age of 50 years so he could not be eligible.

22. Subsequently another circular No. 22196-97 dated 26-8-96 was issued clarifying that those employees who have crossed 50 years of age should be deemed to have ex- hausted the chances of promotion to the post of O.J.M.D-I and consequently they should not be promoted to officiate in such positions.

23. The strong hold contention of the workman is that Ex. Wl guidelines issued by the Government of India the ex-service employees are giveh certain protection and the implementation of the orders were delay- ed for 4 years which has adversely effected the prospects of him and other ex-service em- ployees and taking into consideration that Ex. Wl has an over riding effect they are to be treated as promoted w.e.f. 1-8-85.

24. Whereas the contention of the res- pondent is (.hat Ex. Wl guidelines are re- commendary in nature and the management cannot arbitrarily frame rules and fix the cut off dates as eligibility criteria for pro- motion of the employees without entering into the Bipartite Settlement with All India Bank Employees Federation and any viola- tion of the Bipartite Settlement would lead to violations of conditions of service under Section 9A of the I.D. Act, and there will be unrest in the banking administration.

25. As pointed out, the management can- not itself take a decision without entering into a bipartite settlement. Rules are to be framed for the pay fixation and the weigh- tage of the employees in due consultation with unions. Whatever circular that have been issued from time to time were issued as per the bipartite settlement and its condi- tions. As the time of conducting the first and second test through the workman was within 50 years of age but on account of the cut off date of appointment he had no eligibility for the test. For the third test he had crossed the age of 50 years and became in- eligible. On a scrutiny of the guidelines and the circular referred to above it is clear that the workman had not reached eligibility to appear for the test held on 1-8-85 and for the 2nd and 3rd tests he had crossed the age of 50. The Rules made through circulars have 'binding effect on both sides. The work- man stated that two juniors were nromotcd on the basis of the circular dt. 7-5-86, whose details are not given. It is not clarified whether they were appointed cirlior or later to the workman. Those junior employees4472 THE GAZETTE OP INDIA : AUGUST 25, 2001/BHADRA 3, 1923 [PART II—SEC. 3(ii)] were not made as parties to the di.put\ The workman raised the dispute in 1999 while his alleged right was affect in 1985. There are latches on his part which he failed to explain. The promotion is not automatic. Unless the workman gets through written and oral tests he cannot claim for the promotion. When the management did not permit the workman for the test he could not question the action allowing him to sit/ for the examination: pending the dispute. An employee who is affected of Ms right had to take timely action. At a belated stage after retirement it is superdous to claim deemed promotion with consequential bene- fits of promotion. The learned counsel for the petitioner has placed reliance upon the following decisions which arc not relevant in the context of the case, and the facts arc not similar to the facts in the instant case viz., (1) State of Uttar Pradesh & Others, in the Supreme Court of India (Civil Appeal No. 1100 of 1985 dt. 13-8-1993, 1993-11 LLN Page 501. —U.P. Intermediate Education Act, 1 °21.—Appellant Possess- ing minimum qualification, namely, Teachers certificate in Home Sci- ence prescribed for the post of L.T. Grade teacher on the relevant date when vacancy occured—Heads, appellant was eligible for promo- tion* on relevant date as L.T. Grade Teacher Appellant granted deem- ed promotion to L.T. Grade Tei- chcr—High Court order in hold- ing to the contrary quashed.

(2) Rajapan Nair-Vs. State of Kerala and others.—In the High Court of Judicature Karala 1985 LL.L.N. Ratio held :—If for no fault of his promotion to Government servant is delayed and it is given to him later with retrospective effect from the date on which it was due, the Government servant is naturally en- titled to restoration of the benefit which, he has not on account of his conduct or latches. Tt is only pro- per that the Government should restore to him all that is lost bv way of Salary or other emoluments.

(3) Chinook: (H.S.) and other Vs, Superintending Hiviinucr ;i;id others. In the Wbih Conn of judi- cature, at Bombay 1988. II, L.L.N.—Promotion—Denied with- out sufficient reason—Effect Deem- ed date of promotion and actual date of promotion-employee is entitled to difference in salary for the period between the two dates.

(4) State of Bihar and Dr. Braj Kumar Mishra and others Ranchi Uni- versity Ranchi vs. Dr. Braj Kumar Mishra & others (2000) (1) LLN Page 66 (S.C.).—Held for the lapse of commission, respondent in- cumbent cannot be penalised— order of High Count ^declaring res- pondent, promoted from the date he became eligible is not illegal—How- ever, the Supreme Court clarified that the order should not be taken as as a precedent.

(5) Bir Singh Kadian and others, Pcti- tioners-vs. State of Haryana & Ano- ther, Respondents (1994 LAB. I.C. Page 2353).—Promotion—Order granting it with retrospective effect- employees not pe-rmitted to work on side higher posts—would still be en- titled to rcfixation of their pay, re- tiral benefits and grant of arrears of Salary—-principle of 'no work no Pay' would not apply since it was the employers who did not permit them to work on higher posts. Pro- motion-Grade of-with retrospective effect—Arrears of salary—cannot be refused merely because employee was unable to work on higher post.

26. In the result- an award is passed hold- ing that the action of the management State Bank of IndialTirupathi Region is justified in not allowing Sri P. Subrahmanya Sharma re- employed ex-serviceman to appear for the promotion test during 1985 as legal. The claim is dismissed and there is no order as to costs.

Dictated to the Shorthand writer, transcrib- ed by him corrected by me and given under my hand and the seal of this Tribunal on this the 18th day of June, 2001.

SYED ABDULLAH, Industrial TribunaH Appendix of Evidence

Witness Examined for

the Petitioner :

P.W1.—P. Subrahmanya Sharma.

Wilivss Examined for the Respondent :

M.W1.—K. Balakotaiah.

Documents marked for the Petitioner :

New Delhi, the 3Uih July, 2001 Ex. Wl.—Circular regarding giving

wcightage to the Ex-servicemen re- employed in public sectors workers fixation of pay dated 28-1-83.

Ex. W 2— Circular No. 88 issued by

the S.B.T. dt. 6-6-84.

S.O. 2159.—In pursuance of Section 17 of the Industrie! Disputes Act, 1947 (14 of 1947), the Cen- tral Government hereby publishes the award of the Industrial Tribunal, Hyderabad as shown in the An- nexure in the Industrial Dispute between the emplo- yers in relation to the management of State Bank of India and their workman, which was received by the Centra] Government on 27-7-200].

Ex. W3.—Promotion for office middle

manager Grade-II dt. 7-8-86.

[No. L-12()12/47/99-IR(B-I)l

AJAY KUMAR, Desk Officer Ex. W4.—Promotion orders to M.M.G.S.

II w.c.f. 1-11-92.

ANNEXURE Ex. W5.—Letter issued to W.W1 bv th:

Branch Manager dt. 1-7-95.

BEFORE THE CHAIRMAN, INDUSTRIAL TRI- BUNAL-t AT HYDERABAD

PRESENT:

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

bunal-I.

Ex W6.—Letter issued by the Chief Manager to all Branch Managers regarding eligibility to officiate in J.M.G. Position.

Dated: 18th day of June, 2001

Industrial Dispute No. 35 of 1999

BETWEEN

Ex. W7.—Circular letter No. (PER) 28 regarding ex-scrviccman re-cmploy- cd in public sector Banks etc., weightage for the purpose of promo- tion out of cadre.

Ex. W8.—Circular No. 2|90 issued bv the All Tndia Ex-Servicemen Bank Employees Fed^ratiin dated 2-11-1990.

The President, All India Ex-Servicemen Bank Employees" Federation (A-P, Unit), Regd. No. 10 of 1979, having its Head Office at B-30, Manak Vihar, P.O. Tilak Nagar, N e^ Dclhi-18 and Regional Office at D. No. 24-1-4A, Sambamurthy Road, Ramanagaram, Vijayawada-3.

. .Petitioner Documents marked for the Respondent! Management :

AND

Ex. Ml.—Circular No. 109 regarding Clerical and Cash Department dt. 7-8-1985.

The Regional Manager, State Bank of India, Region-Ill, Zonal Office, Renigunta Road, Tirupathi, Chittoor District.

. . . .Respondent.

Ex. M2.—Circular No. 56 regarding Clerical & Cash Department promo- tion officers grade in J.M.G. 1988 dated 1-8-1989.

APPEARANCES :

Sri N. Rushendra Rcddy, Advocate—for the

Petitioner.

Sri B. G. Ravindra Rsddy, Advocate—for the Ex. M3.—Circular No. 23 regarding clerical & Cash Department promo- tion to LM.G.T. dated 26-3-93.

Respondent.

AWARD

The Government of India, Ministry of Labour, New Delhi by its letter No. L-l2012/47/99/IR(B-I) in- voking Sub-section (1) and Sub-section (2) (A) of Section 10 of the Industrial Dispute Act, has refer- red the dispute for adjudication between management of Tirupathi Region and ifs Ex-Service employee in4474 THE GAZETTE OF INDIA : AUGUST 25, 2001/BHADRA 3, 1923 [PART II—SEC. 3(ii)] respect of the issues referred to in the schedule to the reference which is as under .

"Whether the action of the management of State Bank of Indi.i/Tirupathi Region in not stepping up of pay of Sri P. Suhrah- nianyam Sharma, Prc-1978 re-employed Ex- Serviceman w.e.f. 1-9-78 as per Ministry of Finance/Govcrnmen: of India Orders dated 28-1-1983 as protection of pay is justified ? If not, to what relief the work- man is entitled to '?"

2. After the appearance of th" parties they ba"t- filed their respective pleadings. The president of the Ex-servicemen Bank's Employees Federation filed the claim statement which is stated in brief.

3. The aggrieved workman herein had joined the service of the respondent-bank as clerk-cum-cashier on 19-1-76 against reserved vacancy of ex-serviceman on a minimum starting pay of Rs. 190 per month inclusive of 2 advanced increments of Rs. 10 (Total Rs. 20 for his degree qualification, with D.A. of Rs. 307-80, thus with a gross total of Rs. 496-80 per month. As per rule sanction of two additional incre- ments for the decree qualification to be ignored at the time of pay prefixation when ex-servicemen were re-employed and the same to be readded after pav refixation is made. On that basis starting pay to be worked out as follows :

(a) Rs. 190/- Minns 2 Rs. P. (Degree Increments)

D.A. at 165% — 275-40 D.A. at 165% — 275-40

445-40 Last pay drawn in Defence Service as per L.P.C

Rs. P. (b) Basic Pay — 291-00 Classification Pav — 37-50 Good Service Pav — 4-00 Dcarncss Allowance — 60-00

392-50 Since the workman had joined in the bank on 9-1-76 the old formula of protection of gross salary i.e., paid allowance was previously in the bank, and last drawn total pay and allowance was Rs. 392.50 were muchlcss than the initial starting pay and allowances in the bank was Rs. 445 he did not get any chance for refixation of Pav. Subsequently the earlier formula of pay protection was changed ns protection of pay w.e.f. 1-9-78 to all re-employed ex-servir.emcn a^ per the guidelines issued by the Ministry of Finance which was published vide circular No. 49-85 dated 7 7-10-85. The Pre-extracts i.e. 1-9-78 and re-emnioyed ex- serviceman working in the nationalised bank have represented to Government of Tndia that the later formula of 'Protection of pay' made aynilfble to the post on 1-9-98 entrants of ix-cmploycd ex-service- men is much advantageous to them, than that was available to prc entrants 1-9-98. The Government has considered the same and issued orders vide letter No. F-10149/84 (SET) dated 25-8-87. The work- man through a letter dated 5-9-87 requested the man- agement for refixalion of the pay but a reply was sent denying the said protection. So a representa- tion dated 6-2-86 was given to the bank/manage- ment which was also rejected. Therefore tvs per the circular 40/87 dated 25-8-87 his pay is to be refixed as followb :

Date Military Basic Pay Comparing pay i: Bank

1-9-78

Rs. 325.00 20.00 Rs. 332.00 Add 1 stage

345.00 Add increments of

9-1-77 9-1-78

Rs. 20.00 Rs. 20.00

385.00

Rs. 45.00

Add two increments of degree Rs. 20/- Rs. 25/-

430.00

4. The workman sought his pay to be steped up as on 1-9-78 by giving one additional increment by means of circular 40/87 and all his junior employees arc in advantageous position by getting one additio- nal increment. The bank did not co-operate in the conciliation moved before the conciliation officer. Hence prayed to adjudicate the dispute.

5. The respondent Bank filed the counter and the averments are as under:

The Petition is not maintainable either on law or on facts of the case.

6. Petitioner is put to strict proof of the allega- tions made in the claim. The petitioner federation is not a recognised union as such the dispute raised is not maintainable. Consequent to the review made by the Government of India in pursuance of the representations received with regard to fixation of pay to Ex-servicemen who are re-employed in pub- lic sector banks, the bank vide circular No. PR 40/87 dated 25-8-87 issued instructions in consonance with the guidelines given by the Government of India vide F. No. 10/49/84/SET(B), dated 10-6-86. The rationale in issuing the circular is to ensure that the last drawn pay of ex-service employee to be pro- tected and that the junior emplovees whose last drawn pay was same. Pa'ra (3) of the above referred circular gives an option to ex-serviceman who had joined in the bank, prior :o Seotember, 1978 to choose the new fixation formula, in which case, their pay will be rtefixed w.e.f. 1-9-7S as if they were fresh entrants in bank service. The workman opted for the above fixation formula hac drawn pay of Rs, 332.50 when he was in defence service which4475 12. To resolve the dispute and to appreciate the contentions it will be appropriate to set out Ex. W3 Guidelines issued by the Government of India, which are adopted in Ex. W4 circular No. 45|87. Ex. W3 guidelines reads as follows :

is equivalent to Rs. 345 P.M. in the new fixation formula. As lie was drawing pay of Rs. 365 P.M. as on 1-9-78 which was niorj: than the earlier pay, the same was not disturbed. Had it be^n icfixed as per the service formula¹, it would have been Rs. 345 P.M. only so workman cannot have any grievance at all and the said formula which is more beneficial to him. Hence the claim is liable to be dismissed on the principle of estoppel.

"Subject,—Ex-Servicemen re-cmpioycd in Public Sector Banks|financial institution;) fixation of pay.

Sir,

7. The point for consideration is whether the workman is entitled to the stepping up of pay as claimed for ?

8. During the enquiry the workman examined himself as WW1 and marked documents Ex. Wl to W3. He reiterated the factual aspects made in the claim statement, Ex. Wl is the appointment Idler, Ex. W2 last pay drawn salary certificate of Rs. 392.50 P.M. drawn by him in Army, Ex. W3 is the cir- cular issued by the Government of India' Ministry of Finance for refixation of pay by adding one incre- ment have been filed in supnort of his claim.

ldevant stage of the basic pay in the scale will be determined after deducting D.A. admissible in the banks troni the figure protected."

Ex. W-4 circular issued in pursuance of Ex. W3 reads as follows :

"The Ex-servfccmen who joined in the banks service on or after July, 1983 m Ihe ihird Bipartite Settlement, pay scale made on the basis of protection of pa_y drawn in the armed forces or at the stage where new bapic pay plus dcarncss allowance last drawn by them in the armed forces, whichever is higher. The servicemen who joined the Bank between July, 1983 and September 17, 1984 and were given the fitment under the 3rd Bipartite Settlement Jicir pay would bo refixed in the above manner, but if as a result of such relaxation, their salary (Pay + D.A ) was reduced, the recovery of such excess paymg"t for the period July 1, 1983 to September 17, 1984 would be waived.

The Revised instructions are as under :

(i) With effect from 1-7-1083, the pay fixation on re-employment of ex-servicemen in the Banks would be through protection of the basic pay plus Dearness Allowance drawn by them at the time of their re^ase from the armed forces The figure of pay plus Dearness Allowance admissible in 'he Bank will be fixed with reference tn this protec- tion and the relevant srai;e of the basic pay in the scale will be determined fitter deduc- ting Dcarncss Allowance admissible in the the Bank from the figure protected.

In other words, the paiy fixation of ex-service- men re-employed in the Bank's seivice on or after 1-7-1983 should be made on the basis of protection of basic pay and dearness allowance last drawn by them in the Armed forces and pay in the bank fixed at a stage where paiy plus dearness allowance in the army would correspondent to that in the Bank.

(ii) If the pay fixation of ex-servicemen re-em- ployed in the Bank between 1-7-1983 and¹ June 10, 1986 has been made on the basis of earlier formula and consequently excess paymenf has been mad • du? to retrospec- tive effect of 4th Bipartite Settlement, the recovery of the excess pavment made upto 17-9-1984 may be waived.

(iii) The Bank mav invi'e options from prc_ September 1. I97K (i.e. the date of effect of 3rd Bipartite Settlement, from which date the fitment formula for cvservicemen was revised to 'protection of Pav' from earlier formula of "protection of pay + D.A.) ex- servicemen entrants to the TVink's service to exercise fresh option tn conv over to the post 1-9-1978 piv fixation foimula m which case their nnv will U- re-fWrri with effect from 1-9-1978 as if thev WCT fresh entrants to the Bank's service. No arrears on account of re-fixalio/i of pay will, how- ever, be admissible to such optees. This will come into force from June 10, 1986." 12. Ex. W2 is the last pay drawn certificate of the woikman in Defence Service under which he was drawing Rs, 332.50 per month inclusive of D.A. and other allowances. Following the Guidelines of Ex. W3 and Ex. W4 the pay o' the workman was fixed at Rs. 345.00 per month. The workman when he joined as a Cashier on 9-1-1976 his basic pay was fixed at Rs. 345 00 per month. As per the guidelines of Exs. W3 and W4, his pay is to be protecled aj> on L-9-1978 as hi joined as a new en- trant in service of the Bank. The rationale in issuing Exs. W3 and Ex, W4 is to ensure that the last pay drawn of an Ex-Servicemen on rc-employmcnt had to be protected and that the junior employee who joined subsequent to such employees after 1-9-1978 if he drafws more than the pay of the ex-serviccmen, the same is to be equalised by refixin^ his pay as if he had joined as a new entrant w.e.f. 1-9-1978. Necessarily option is to be given by such an Ex- Scrviceman. Undisputedly the workman had exer- cised his option fdr re-fixation of paiy as a new en- trant on 1-9-1978. Tf refixation has to be taken in'o consideration as on 1-9-197S, his last pay drawn in Defence Service which vas Rs 332 50 hns to be taken into consideration.On account of his two vears service in the Bank, he was already diawinn Rs 365.00 per month as on 1-9-1978 The verv ournovf, and object of Ex W4 circular is to sec th;rt fhe Ex-Ser- vicement cannot draw lesser pav than what he was drawing in Defence Service and that of his iunior employee? who joined snbsecruent to him mnv no* draw higher pav than him Tn cn^ and if there is any annmolv c\ists in the baiic rjav nf Ihe Ex-Service- man wi'h *h - nalv of his iunior employes it is to b° re- fixed by strppjptr no with t]ic rny cc'xh of i'mior em- plovcf Th" (Wails of tV n?v s^nic'iu ^ of the work- man shown in the counter pt paw 4 reproduced herein unrirr p-ivp<. n clear ir)on of the pav' dv^wn bv the workman ns on 1-Q-I97R fur considering v ^ " ^ fr anv refixaton was required in his pav a-; on 1-9-197R.

ppr Mintarv

rtificatc

Bas'c nav fts discivric ce

Present Basic Pay

nt

Corres- ponding Basic oav fas if ho is fresh cntra as on 1-9-197R)

is on 1-9-1978 of Graduation

Rt. 332.50 E On account Increment Increment

9-1-1979 9-1-1980

Rs. 345.00 385.00 405 on 430 00

Rs. 165 00 405 00 4"<0 00 455.00 9-1-1981 9-1-198^ 9-1-1983 1-7-1983 1-1-1984 1-M985

485 00 515 00 545,00 990 00 1.055,00 1.125 00

455.00 485 00 515 00 930 00 990 00 1,05^.00

8-5-1985 1-1-1986 1-1-1987 1-1-1988

1.P5.00 1.195.00 1,780 00 1.375.00

1,195 00 1,280 00 1.375 00 1,470 0 0 Increment Increment Increment T?ev'scd Increment Increment TAUR Pari-T Increment Increment Increment the workman was drawing Rs. 405.00 inclusive of graduation increment while so as per Ex. W4 circular he has to get only Rs. 385.00 per month and¹ he fuUher started that as. on 1-9-1978 the workman was taken as a new entrant in the Banks service fixing his basic pay at Rs. 365.00 per month. He denied of wrong fixation in the pay by showing Rs. 7.00 less for each month and on account of it thcie is a finan- cial loss all the while right from his appointment. Further, he denied the suggestion that his basic pay scale is to be stepped up fiom Rs. 405.00 to Rs. 430.00 per month w.c.f. 1-9-1978 in terms of Ex. W3 letter. He also denied the suggestion that there is a deficit of Rs. 25.00 in the pa,y scale as pointed out.

13. In the entire pleadings and in the evidence, the workman has not pointed out any single instance as to who are the junior employees joined subsequent to him i.e. after 1-9-1978 are drawing pay exceeding Rs. 405.00 per month so tha,i this pay is to be stepped up at Rs. 430.00 per month w.e.f. 1-9-1978 much less that there is any anamoly in the pay scale that his last drawn pay is not protected by fixing his pay at Rs. 365.00 per month w.e.f. 1-9-1978. M.WJ in his cross examination categorically clarified the doubts that were raised by the workman as to the alleged financial loss caused to him as pCr the pay scale allowed to him.

14. It is a hy|ll mark rule under fundamental rules or under service rules that stepping up of pay would arise between the same employee of the same cadre if a junior is drawing higher pay than the senior which necessitates for refixation of th; pay on par with the pay of junior employee.

447 7 Appendix of Evidence

Witnesses Examined Witnesses Examined for the Petitioner : for the Respondent:

W.W.I P. Subrarnanayam Sharma

M.W. 1 K. Balakotayya.

Documents marked for the Petitioner:

Ex Wl 9-1-96—Appointment older issued to W.W. 1.

Ex. W2 —Last Pyy Drawn Certificate.

Ex. W3 10-6-86—Circular of the Ministry of Finance, New Delhi regarding fixation of pay of Ex-Serviceman re-employed in Public Sector, Banks and Financial Institutions.

Ex. W4 25-8-87—Circular of the Ministry of Finance, New Delhi regarding fixation of paly of Ex-servicemen re-employed in Public Sector Banks and Financial Institutions.

Ex. W5 9-9-87—Representation submitted by W.W1 to the Branch Manager, S.B.I. Madanapalli regarding fixation of pay.

Ex. W6 6-2-88 — d o-

Ex. W7 15-2-89 — d o-

Ex. W8 18-2-88—Reply given by the Branch Manager, Madanapalli enclosing the work sheet.

Ex. W9 3-2-88—Reply given by the Branch Manager, Madafnapalli to WW1.

Ex. W10 7-2-88—Reply given by the Branch Manager, Madanapalli to W.WL Ex. W ll 2-4-1988—Circular of the Bank re- garding Ex-Scrviccmcn re-employed in the Public Sector Banks fixation of pay and security.

New Delhi, the 30th July, 2U01

S.O. 2160.—In pursuance of Section 17 of the Industrial Disputes Aei, 1947 (14 of 1947), the Central Government hereby publishes the award of the Central Government hiduslrial Tribunal] Labour Court, Chcnnai as shown in the Annexurc in the Industrial Dispute between tin; employers in relation to the management of Karur Vysya Bank Ltd. and their workman, which was received by the Central Government on 27-7-2001.

[Nu. L-12012|3l0|2000-IR(B-I)]

AJAY KUMAR, Desk Officer

ANNEXURE

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

Monday, the 25th June, 2001

PRESENT :

K. Karthikeyan, Presiding Officer.

Industrial Dispute No. 7512000

(In the matter of the depute lor adjudication under clause (d) of subjection (1) and sub-section 2(A) of Section 10 of the In- dustrial Disputes Act, 1947 (14 of 1947), between Shri A. Dhilbasha and the Management of Karur Vy.sya Bank Ltd., Karur.)

BETWEEN

The General Secretary, Karur Vysya Bank Employees Union, Karur.

. .1 Party (Claimant

AND

The Chairman, Karur Vysya Bank Ltd,, Karur.

. .11 Party|Managcment APPEARANCES :

For the Claimant —St i D. Hariparanthaman V. Ajoy Khose and P. Viajendran, Advo- cates.

For the Management—M/s. T S. Gopalan and Co. Advocates.

The Government of India, Ministry of Labour in exercise of powers conferred by clause (d) of sub- section (1) and bub-section 2(A) of Section 10 of Industrial Dispute Act, 1947 (14 of 1947), have referred the concerned Industrial Dispute for adjudi- cation vide Order No. L-12012j310]2000-IR(B-T) dated 26-9-2000.

This matter came up before me for final hearing on 31-5-2001. upon pmisiiip the Claim Statement, Counter Statement and other material papers on record, and the documentary evidence let in on the side oi the 11 PartyJManagement only and upon hearing U)e argument of learned counsel on either siue and this matter having Mood over tilt this, date for consideration, this Tribunal has passed the following :•—•

AWARD

The Industrial Dispute referred to in the above order of reference by the Central Government for adjudication by this Inbunal is as follows :—

"Whether the punishment imposed to Shri A. Dhilbasha ot Puduehatram Branch by the Management of Karur Vysya Bank is legal and justified ? If not, to what relief is the workman entitled ?"

On receipt of this relerence, this industrial dis- pute has been taken on file or this Inbunal as In- dustrial Dispute No. 75|2()00. On receipt of the natice from this Tribunal, both the parties entered appearance through their respective counsel and filed their respective Claim Statement and Counter Statement.

2. The Industrial Dispute between the parties is briefly as follows :—

The I Party|Claimant Union (hereinafter referred to as the Petitioner) is espousing the cause of the workman Sri A. Dintbasha in the concerned dispute. The concerned workman was appointed by the II Party/Management (hereinafter referred to as Res- pondent as a clerk jn 1983 in its branch at Smal- patti. Shri Abdul Majid is the father of the con- cerned workman. Sri Anwar Basha, a lecturer in Alagappa Arts College, Kataikudi and Sri A. Akbar Basha are eldei and younger biofjher respectively of Sri A. Dhilbasha. His younger brother has been li-imnmg a cycle and spare parts shop in the name of Akbar Cycle Mait at Kaveripattinam. He had studied only upto Vill Standard and also a deaf person. Therefore, the concerned workman extend- ed his help to Akbar Basha. as a brother in making sonic correspondent on behalf of his brother Akbar Baisha during holidays and whenever he Mas free. Except making such help, the concerned workman had no connection or involvement whatsoever in the trade or business of his brother Akbar Basha in Akbar Cycle Mart. He extended his help upto 1991 till he was residing at Kaveripattinam. There- after the concerned workman shifted his residence from Kaveripattinam to Krishnagiri. So he could not even extend his help as before. Under such circumstances, the Respondent hnd issued a chalrge sheet dated 12-10-95 alleging that the concerned workman had placed orders with M|s. Royal Cycle Mart for the supply of cycle and cycle spares to M|s. Akbar Cycle Mart and that he had not made the payment for the supplies made by them inspite of his assurance to pay, that he was also actively in- volved and associated in the busmess of M|s, Akbar Cycle Maprf, that due to the non-payment of the dues by him to M(s. Royal Cycle Mart Sr{ Sampath ® Shanmutfasundaram had filed a complaint against him and his two brothers M|s. Akbar Rasha and Anwar Basha u|s. 409, 420 nnd 120(b) of IF'C, 44/9

rity were confirmed. Then the concerned workman requested the Petitioner Union by a leuer dated 3u-2-y" to do the needlul by raising a dispute. As ihi: Management wag not willing tor any amicable tantieme/.L, tne I'etmom I Union nas raised ihis indus- trial dispute. The punishment of reduction in basic pay ot the concerned workman by two stages tor ea>jh of the two charges imposed by the 11 Party | Management is illegal arbitrary and unjust and liable to be set aside.

3. The H t'arty|Managemcnt, the Respondent henein, in their Counter Statement had opposed the averments in the Claim Statement of ih$ Petitioner Union. It is briefly as follows : —

Hence, an award may be passed rejecting the claim of the Petitioner,

4. When the matter was taken up for enquiry, by the consent ol the counsel on either side, the xerox copies of the documents filed on Ihe side oJ' the Management were marked as Ex. Ml to M53. Nei- ther party examined any witness on their respective side. No documentary evidence also has been let in on the side of the 1 Party/Union. The learned counsel on either side have advanced their respective argu- ments.

5. The point lor my consideration is—

"Whether the punishment imposed to Shri A. Dhilbasha of Puduchatram Branch by the Management ol Karur Vysya Bank, Karur >s lagal and justified ? It not, to what rehel is the workman entitled ?"

Point :—

MvVl cannot said to be an interested testimony, since he is the person concerned wuh the Royal Cycle Mart. With regard to the business transaction by the Akbar Cycle Mart with me Royal Cycle Mart, tie only can speak about the transaction and the documents, tetteis written by the delinquent employee on behalf ol Akbar Cycle Mart, ft is admitted that the letters have been written by the delinquent employee as a bsusmess cor- respondence. It is the mgument of the learned coun- sel tor the Petitioner Union that those letters were written by the delinquent employee only to help his brother, who is doing the business and who is> not well educated and that the delinquent employee has not directly involved ui that business and that the Enquiry Officer presumes that the delinquent employee involved in the business diiectly when it docs not disclose the delinquent employee's direct involvement in the business and it can at best the case of suspicion. This argument of the learned counsel for the Petitioner Union cannot be accepted as correct because these admitted documentary evidence go to show that this, delinquent employee had something to do with the business of Akbar Cycle Mart which had business tiansaction with the Management witness's Cycle Matt at Salem. So it cannot be said that without any evi- dence at all the Enquiry Officer has come to the con- clusion about the delinquent employee's involvement in the business of the Akbar Cycle Mart with Royal Cycle Mart, which is a constituent ol Respondent Bank branch at Salem. So under such circumstances, il cannot be said that the Enquiry Officer has pre- sumed things without any basis and his findings are perverse and biased and his non-acceptance of evi- dence given by DW as close relative's evidence cannot be considered as incorrect. So under such circums- tances, it is clearly seen that the findings of the En- quiry Oilicer has been supported by evidence. There is a document to show that the Royal Cycle Mart has brought to the notice of the bank that the huge h/.lance of amount is due to them from the employee Sri Dhil- basha through his business connection with Akbar Cycle Mart of Kaveripattinam. So under such cir- cumstances, the findings given by the Enquiry Oilicer based upon acceptable legal evidence let in before him in the enquiry cannot be said to be perverse and without any evidence. So,' the findings given by the Enquiry Officer suppoitcd by evidence cannot at all be interfered by this Tribunal or disturbed. Further, this is not a case wherein this Tribunal can interfere with the punishment imposed by the Disciplinary Authority for the proved misconduct of the delinquent employee invoking jurisdiction under Section 11A of: the Industrial Disputes Act. So under such circums- tances, the imposing of punishment by the Discipli- nary Authority, after giving sufficient opportunity to the delinquent employee is also cannot be interfered with as an irregulai or improper one. Tn view of these it can be easily concluded that the punishment impos- ed to Sri A. Dhilbasha of Puduchatram Branch by the Management of Karur Vysya Bank cannot said to be illegal or unjustified. So, no lelief can be granted to the concerned workman. 1 hus, I answer the point accordingly.

Though it is aveired in the Claim Statement that the enquiry was not conducted in a fair and proper manner and in accordance with the principles of na- tural justice and in the enquiry, the workman was iiot given fair and reasonable opportunity to defend him effectively, while advancing argument the learned counsel for the I Party/Union has not pointed out as to how the principles of natural justice have been vio- lated by the Enquiry Officer in conducting the enquiry and how the enquiiy has not been conducted in a fair and proper manner and how the workman was not given fair and reasonable opportunity to defend him effectively. Ex. Ml to M53 of the documents marked as Exhibits on the side of the TI Party/ Management with the consent of the learned counsel for the I Party/Union. Ex. M36 to M41 have been h'lcd as proceedings of the enquiiy conducted by the Enquiry O/licer. Ex. M42 is the report of findings ol Enquiry Officer. A perusal of these records, clearly show that the concerned workman, who is the chargj sheeted employee, was given fair and proper oppor- tunity in the domestic enquiry conducted by the ap- pointed Enquiry Olhcer and the delinquent employee has taken part in the enquiry fully along with his defence counsel and has cross examined the Manage- ment witness in detail and has examined three wit- nesses inclusive of himself as DWl to 3 apart from marking 15 documents as Ex. UJ to D15. So, it can- not be said that the delinquent employee, the con- cerned workman Dhilbasha was not given fair and proper oppoitunity in the domestic enquiry and the Enquiry Ollicer has violated the principles of natural justice in conducting the domestic enquiry, Tt is argued by the learned counsel lor the Petitioner Union that the only witness examined on the side of the Manage- ment as MWI, the person belong to Royal Cycle Mart is only an interested witness and the reliance made by the Enquiiy Officer on his evidence is only a bias- ed and perverse OIT\ This argument of the learned counsel for the Petitioner union is incorrect because On the basis of cnncrelc documentary evidence and the unimpenched orrl evidence of the Managerial wit- ness, the Cnquiiv Officer has given his finding thai the charges levelled nsr;iiiT-t

6. In the result, an award is passed holding that the action of the Management of Kurnr Vysya Bank in imposing punishment on Sri A, Dhilbasha of Pudu- chatram branch is legal and jus\ified and hence the4481 concerned workman is not entitled to any relief. No cost.

(Dictated to the Stenographer, transcribed and lypcd by him. corrcctcr¹ ;>nd pronounced hy me in the open court on tbs day, Ihc 25th June, 2001).

K. KARTHIKEYAN, Presiding Officer Witnesses Examined:

On other side : None.

DOCUMENTS MARKED :

For I Party/Claimant : Nil.

For the TT Party|Management ;

Ex. No, Date Description

Ml 12-10-95—Xerox copy of charge sheet No, P A D | l l l 95 issued to the Petitioner.

M2 21-10-95—Xerox copy of reply of the Peti- tioner to the said char^esheet

M3 10-4-95—Xerox copy of the letter from Royal Cycle Mart Sjlem to the Manage- ment.

M4 29-12-88—Xerox copy of letter from Akbar Cvcle Mart, Kaveripattinam to Royal Cycle Malrt, Salem.

M5 27-7-89—Xerox copy of letter issued by the Petitioner for Akbar Cycle Mart, Kavcripa- *inam to Mr. Sampath of Royal Cycle Matt, Salem.

M6 7-7 90—Xerox rony of letter issued l>v the Petitioner for Akbar Cvcle Mart, Kaveri- patinaltn tt> Mr. Sampnrri of Royal Cycle Mart, Salem

M7 n-2-91—Xerox copv of letter fiom the Peti- tioner to Mr. Sam path

M8 5-3-91—Xerox copy of letter from the Peti- M l7 2-9-95—Xerox copy of FIR No, 1527|95 of Salem Town Police Station, Crime Branch filed by Royal Cycle Mart, Salem.

M18 Nil —Xerox copy of salary certificate of the Petitioner issued by the Management.

M19 7-2-88—'Xerox copy of Partnership deed of Akbar Cycle Mart, Kaveripatlinam.

M20 8-11-94—Xerox copy of letter of Royal Cycle Mart, Salem to The Principal, Alagappa Arts College.

M21 23-11-94—Xerox copy of letter of Royal Cycle Mart, Salem to Akbar Cycle Mart, Kaveripattinam.

M22 15-3-95—Xerox copy of letter of Royal Cycle Mart, Salem to the Petitioner.

M23 3-2-95—Xerox copy of letter of Royal Cycle Mart, Salem to Akbar Cycle Mart, Kavenpalttinam.

M24 16/17-11-88, 7'9-12-88, 20/25-1-89, 30-1-89 2-2-89—Xerox copy of letter of Royal Cycle Mart, Salem IO Akbar Cycle Mart, Kaveripattinam.

M25 1-11-94—Xerox copy of letter of Royal Cycle Mart, Salem to Akb.ir Cycle Mart, Kaverip^tdiiom,

M26 3-7-92—Xerox copy of letter from the Management to Smt. S. Koki'Jambal, Salem, M27 4-6-92—Xerox copy of letter from Smt, S. Kokilambal, Salem to the Management.

M28 27-6-92—Xerox copy of letter from Smt. S, Kokilambal, Salem to the Management.

M29 6-8-88, 7-10-88, 28-1-89, 8-2-89, 8-2-89, 14-9-92, 18-9-92, 15-10-92—Orders farm of Akbar Cycle Mart addressed to various industrial at various places.

M30 1-4-95—Xerox copy of letter of Mr, AbdulU32 THE GAZETTE OF INDIA : AUGUST 25, 2001/BHADRA 3, 1923 [PART II—SEC. 3tfi)] M41 4-11-96—-Copy of enquiry proceedings.

M42 9-1-97—Xerox copy of findings of the Enquiry Officer.

M43 17-1-97—Xerox copy of letter from Disci- plinary Authority in the Petitioner.

M44 14-2-97—Xerox copy of letter from de- fence representative to the Disciplinary Authority.

M45 25-3-97—-Xerox copy of show cause notice No. PAE>|4|97 Issued to the Petitioner by the Disciplinary Authority.

M46 2-4-97—Xerox copv of letterNo. PADI5¹ 97 from the Discciplinary Authority to the Petitioner.

M47 11-4-97—Xerox copy of letter No. PAD 7|97 from the Disciplinary Authority to the Petitioner.

M48 28-4-97—-Xerox copy of proceedings of the proposed Punishment hearing.

M49 30-8-97—Xerox copy of final order No, FAD|7|97 issued By the Disciplinary Authority.

M50 8-9-97—Xerox copy of corrigendum for final order No. PAD|7|9^ issued by Disci- plinary Authority.

ANNIiXURH

111 I ORE rill' INDUSTRIAL TRIUUNAL-I AT HYDERABAD

J'RI SI'NT:

S'i S\ed Abdulleh 13.Sc, B L, Industiial Tiibunal-f.

D.ited : 18th day or June, 2001

Indiihtiial Dispute No. 37 of 1999

BETWEEN

The Pies'dent, All India Ex-Servicemen Bank Employees' Fcdeintion (A.P. Unit), Regd. No. 10 of 1979, havinji its Head Office at B-30, Manak Vihar, P.O. Tilak Najiar, New Delhi-18 and Regional Office at D. No 24-1-4A, S •mbamiuthy Road, Ramanagaram, Vijayawadsi-3.

.. Petitioner.

AND

1. The Chief General Manager, State Bank of India, Local Head Office. Banks' Street, Hyderabad.

2 The Regional Manager, State Bank of India, Region III, Zonal Office, Labbipet, Vijayawada.

. . Respondents.

APPEARANCES:

Sri N. Rushendra Roddy, Advocate for the Petitioner. Sri B. O. Ravindera Reddy, Advocate for the Respon- dent,

AWARD

Bum.li Vijayawada till February 1996 until he readied tne age of 52 years while so 2nd lespondent abiuptly mtoimed not to officiate the said post by givu.g a circular LHOlt DO| (PER)I22J96I8-06 that the employees who have reached 50 yi-dis ol age are deuueu to have exhausted of the chances loi pi (.motion to OJMGD-f and so they should not be allowed to officiate in higher capacity which amounts to victimisation and haiassment.

7. The workman repiesented his giievanccs before ACL Cential Vijayawada, but the respondent had not coopeiated in ••etfling the dispute. The Central Government ord~i Uive mruspictivc eflect fiorn the date of origination i.e., 28-1-93 MI publication by the bank vide its staff circulai 88 dated 8-6-84 Even if 2 yeais weightage is extended, the cut-off date for general categoiy being 31-12-75, the eligibility to \M,te the said test stands as up to 31-12-77 in respect of the woi kman. I he bank could have extended 2 years weighlage to him as a re-employed cx-seiviceman when such benefit being allowed to SC/ST cjlcgoiy of employees at the time of conducting test m 1985 and if ut all they had any clari- fication to make or being in-convenienccd to extend IS yeui-, ol seivice bencht as per eailicr Government orders they could have included the name for promotion test and icsuhs could have been kept in abeyance in a sealed covci till icceipt of claiificution. No such efforts were made by the management. The junior employees who are within 50 yeais of age weic piomoted to Ihe disadvantage of the workman over riding h;s scnioiity. Hence it is prayed t'> diiect the icspondcn(s to promote the workman as an officei in Junioi Management Grade-1 w.e f. 1-8-85 in the form of deemed, promotion and fix him in the subsequent stage of pioinolion, otherwise he will suffer loss and hardship.

"If ceitain number of yi.ais service aie prescribed as minimum ehgibii'ty ciiluift lor piomotion from one cadie to anothci. Rules in this icgard may suitably be modified to give weighLige to ex-servicemen on the basis of their services in the defence forces". The Hist lespondent who is the piomoting authority had convened and conducted a pi<_mjlioii list for OIMGD-I vide cncular No. 109 dated 7-8-85 with the criteiia of cut off service seniority for eligibility for geneial categuiy of employees as on 31-12-75- The above test was conducted on 22-9-85, and about 650 employers vvtie promoted in the said posts w.e.f. 1-8-85. Even though ihe woikman hcicin who had eligibility In nil re'peeti £oi appearing lor the OIMGD-I piomotion test copduded on 22-9-85, he was denied with the said opportu- nity by not allowing him to write the said examination. He was also not communicated the reasons as to why he wa^ not peimittcd to write the said examination as such it is violatiie of the pnnciples of the Natural Justice. The juniois wcie already piomoted. Thereby the workni-in was put to menial 'ifium.i haiassment and humilia :->a while working the elei ical cadie only. The criteria of service seniority fixed by the Bank for the above test was that all those clerks and cashiers who have joined (he seivice on or before 31-12-75 me eligible to wi ile the test, The workman herein had joined in the bank on 18-11-77 as re-cmployed ex-serviceman's post. As pei the instructions of the Ministiy of Finance referred to above the workman should have been given weighlage of service based on his length of r<'i\ice in II,- Dettnce service. The Government older* wcic published thiough circular No. 8K dated 8-6-S4 yivinn; iK effect for implementation as such the management ought to have cvtcndecl the weightagc of 15 years of service to the voikman wK-Mi was given a go bve illegally, so as to d'nv oppoitunily to the woikman to appear for the letl in 1985.

5. Subsequently the Government of fndia had issued ano- ther 'OM' lctk-r dated 2&-1-83 on the same subject modifying the earlier ordeis to the affect that "weightage is to be given for the purpose of out of cadic promotion in the ratio of one year for every 5 years of service put in the armed forces subject to a maximum of 2 yeais in total service", Ex- Serviceman employees reciuited against the reseivcd vacancies will be entitled to the "benefit of weightagc of service for promotion only once duiini; Ihe entiie service in the Bank. The Bank hnd published a ci-- cular dated (PFR) 2K|l-4-87 and by means of it the woik- man herein got 2 years of weighfage And he was qualified to appear for the promotion test. By the time (i.e. 19K5) the above tert was conducted the workman w,>s only \A years of age Though he was eligible he was deliberately victimised and denied the opportunity by the management arbitraiilv. A large number of officer piomotecs of 1-8-85 ' batch wcie fuither nramolfd to the middle management grade also ic MM Grades Scale-Il w c f. 1-11-95 by hold inc oral interview's.

8. The respondent filed the counter and briefly slated the averments aie as under. The dispute is untenable both of facts and undct law, s" it is 1'able to be dismissed in limini which was raised afkr an abnormal and unexplained delay. n'nup''i the work in,tn joined a0 clerk-cum-cashier on 18-11-77 under Ex-Servicemen Quota, the promotion to the post of OJMGD-f is not a matter of routine. Those having requisite number of years of service and not crossing the age of 50 years and fulfilling nil other requisite conditions are only eligible to appear for the wiitten test. Those who come out successfully in (he written test only allowed to appear for (he interview basing on tho over all pei forma nee of the candidate and depending upon the number of vacan- cies, in that vear. promotion will be effected, Similarly for MMGS-U also the same procedure was followed. rl he Ministrv onlv issues guidelines which are rccommendarv in nature but the same are not administialive orders muchless the same become seryice conditions applicable to (he staff aiul officers of the bank, unless (he same are adopted by the bank after fulfilling the lequisite conditions and following the procedure as provided under provisions of T.D. Act.

A letter dnted 28-1-83 issued by the Ministry of Finance containing inteiulia guidelines of fixation to pay to the c-x- seivicemen re-cmployed in public sector banks, which guidelines aie not in consonance with the spirit of the ins- tructions as interpreted by the workman, It cannot be gain said that such guidelines do not perse becomes thf service condition" of the bank employees unless such guidelines arc adopted by (he bank after fulfilling all the requisite condi- tions and piocedure requiied in that regard as per the pro- visions of the ID. Act Awards and bypartriate settlement povcrninii the terms find conditions of service applicable to the work staff and also the service rules as applicable to the rtTrris On receipt of the guidelines from thrh government of India and after nh(nirinij necessary administrative clari- fications frnm th^ Ministiv the matter wi^s discussed with (be All Tndia State Bank of Tndia Staff Federation the reco"ni- sf-d union eompris'inq of substantial majority of ariout 98 per c nt of work forces as its members on several occas- ions and ultimately n settlement was reached onlv on 17-1 S7 -"ml hasinr on th" s^iid settlement, circular lettc No. (PER) 28 dated 1-4-87 was issued inter alia extended the services weightage to rx-servicemen for appeal ing for promotion te=t. The instructions under circular writ- given prospective effect VIZ 1-4-87 as the retrospective effect to such instructions will result in hardship to (he other work- men, staff and may unsetlle the promotion tests conducted eailie- >-oi 4484 THE GAZETTE OF INDIA : AUGUST 25, 2001/BHADRA 3, 1923 |PART II—SEC. 3fii)] conducted on 27-S-N7 and lor this Ex. Ml circular was issued on 1-8-89. As per lie el^'bility the employee should have been appointed on ? 1-12-7J and should not have crossed 50 years as on 1-S-SS. As the woikman was appointed on lK-11-77 and afli'i icckomng 2 years wciiihtage basing on 1.x VV2 cncular he w,i< not become ejiyiblc Lor the quahtyiivi Usl ol OM.IG-1. Auiin thiid test was conducted on 25-4-93 fui which I \'. M2 circular dt. 26-3-93 was issued fixing tho C|iiiilihtutions and as pei t.x. M2 the employee should have been appointed on oi befoie 31-12-75 and should not have ciossed 50 ytars of age as on 1-R-92 and since the woikman h.id ciossed tin aw he was not eligible for it. Again on 2f-8-96 ihe b.ink had issued ll\. M3 ciicular disqualifying Ihe employees who had crossed 50 yeais of age to officiate ihj said pint ti tnpoianly.

M The ciux of the dispute is that the workman who is mi uvservicem.in on ic-emoloymcnt woiking as Clerk-cum- C.)shi\"r though was eligible to appeal for the test of Junior Management Gradr-I which was held and conducted as per circular letter No. 109, dt. 22-9-85, he was deprived of the cppoitunity without any leason what so ever which is vio- lative of the principles of natural justice. Consequent to denial of the oppoitumty he lost the next promotional post of bank as officer middle management Grade-11 w.e.f. 1-11-95. Accoidin'i to the workman since he had 15 years of defence seivicc he i entitled for the weightage of seivice and as per ihc amended ciuuhir Ex. W2 dt 1-4-87 he is entitled for 2 /cais of u eight,'fc. Had he been allowed for the test, bv viriue of his high -iradam c qualification and experience he would h,ivc p.issed the test and since he was deprived of the oppoitunitv of piomotion. a dnection to be piven that the workman is a deemed promotee to the post of junior Gradc-I v L f 1-S-H5 with all attendant benefit and also for the subse- qmnt piumotioiu'l pokt w.c.f, l-U-95.

before 31-12-75 and iJio-e who aie nul ovei 50 years of age as on 1-8-85 were only eligible, loi those test as on that date there were no extant inductions requning the cxtcalion of services weightagc to c\-sei viceman. The pt-'titionei was ( HIIHI not eligible to wnte the test as he had joined in the bank on 18-11-77. The service conditions of employees cannot be changed unilateially ,ind it cannot be done only lifter the following due pictxdiiic, paiticulaily in view of Section 9(A) ot the I.D. Act. As rcgaids the test hold on 25-4-93, eligibility uiterin WHS that the person who had joined on or befoie 31-12-75 and not crossed the age of 50 years weie •only eligible. Vide Cncular letter (PER) 23 dated 26-3-93. As ihc petitioner was born on 1-5-42 he was not eligible to write the said test. As regards the test con- ducted on 27-8-89 the cut-off date seiyicc was 31-12-73 and even after extending of scivice weightage of 2 ycais a' provided for, vide cncula, letter (PER) 28 dated 1-4-87, the claimant was not eligible to write for the .said test as he w is appointed on 18-11-77 and (he 2 years of weightage can permit the date of his appointment to be reckoned t-* 18-11-75 which is not within ihe cut-off date. Ciicultir letters (PER) 28 (PER) 56 dntcd 1-4-87 and 1-8-89 respec- tively the enclosed annexures may read as part of the coun- ter. Vide circular No. 88 dated 6-6-84 related to fixation of pay and other allowances to ex-servicemen which has nothing to do with the piomotion of OJM. There was neither uny discrimination nor victimisation as alleged by the workman. As the woikman hid ciossed 50 years of age he was not eligible to write for promotion test for OJMGD-T held on ) 1-2-96. Fuithei as per the bank-, ex- tended instructions and guidelines employees over 50 years of use should be deemed to have exhausted 'Ot the chances for promotion to OJMG and consequently should not be permitted to officiate m such position, Vide Circular No. LHO1CDO|(PFR)|22|96-97 dated 26-8-%. 'Ihere are no meriti in the dispute. Hence piayed to dismiss ihe claim.

9. The point for adjudication is whether the worlma i JS

entitled to the reliefs as claimed for ?

10. In order to piove the claim, on behalf of the woikman the organising secreUiy of the Union was examined as WWt who is also an aggrieved woikman in another dispute ID 59|99 which was also espoused by tf'e union for iediessal of the greviances.

11. The gist of WWl's evidence is as under : Mr M. A. KITJII E\. serviceman was appointed on 17-11-77 as clcik- cum-cashier during Iyy5. A leU for junior mana.eement-l WJA conducted iind for which post the cut-off dale of scnionly via-, fixed as Jl-12-1 v>7> As M. A. Khan put in 15 yeais of defence service he coiild have been given weishlaije. ,ind allowing him to MI loi the test by following the cnculai No. 88~ dated 6-6-84 which is Ex, Wl. About the weightage, the Government of India made certain modifications by issuing n circular dated !-l 87 winch is I v W2. By the time of conducting the s;iid tost in 1985 Mr. M. A. Khan was -14 years, and even then he was not allowed to write the teat, so the management may be diiected to treat him as an officer in junior management Giadc-I w.e.f. 1-8-85 in the form < f deemed piomotion with all attendant benefits So also for the subsequent piomohon of middle management scale-ll w.c.f. 1-11-95 should be even to him. one Mr. Jink.i Chimmaya, M A Qhadei Mohammed were promoted as per circular .dated 7-5-N6. F\ W3 is the list of ihc concerned piomotees.

11. Wheiens the management has taken the stand for the incinol'onal post of CIcrk-cum-Cashier is OIM Giude-T anil "ne musl have a qualified service and age presetibed by the hank, fun! Having eligibility to sit for the qualifying examina- tion ic (Wntten Test). After qualifying in the Written Test tlic candidates will be qualified Tor the interview and basing on the ovei all performance in the written and oral test, the candidate will be selected depending on (he availability of vacancies. 1 or the next promotion of MWGS-II the same pioecdiiie to h" followed As per the 1983 guidelines issved by Ministry of Fintnte in respect of pay, seivice weightnee etc., coveit-d by 1 x. W6 of the employees, the management aflo¹ holdina discussion with the recognised All Jndia State H^nk of Ind'a StnfT employees federation a settlement dl 17-2-87 was cneteied into Pmsuant to the siid settlt-ment the bank had issued a circular which is Ex. W2 regarding the wcirhtace of servici' to the e\-seivice employees making them clmihle foi the promotional post of OJM-T A test was con- ducted for HIP first time oti 22-9-85 for which Fx. W5 circulai V'JS issued piescribing ceitain qualifications under which a candidate should have been appointed in the service on or before 31-12-75 and his ape should not exceed 50 yeais ns on !-8-Kt Smcf the woikmcn was appointed on 18-11-77 h^ hiul no dijib/lity us per F\. W5 circular. Subsequently the ''ml test win held lor the sume post on 27-8-89 covered hv I v. Ml circnl;u ilt 1 v-89 pic-cnbing the qualifications that tin- omnfovff! should li.tvc been appointed on or before 31-12-73 Hid shoul il not have crossed 50 years of aec as on 1-8-88 since the workman was appointed on 18-11-87 in spite of getting 1 v-ir of wcinhlauc ns per bx. M2 circular he was no' elieiblf lor the qunlified test of OMG-T. Acain for the third time, the test w->s conducted on 25-4-93 for which Ex. M2 circi'lai dt Id 9-93 w,is issued fixine qualification under which TI rninlovep shoLfid have been appointed on or befoie ^1-12-75 ;md his ;ii;e should not exceed 50 years r^ on 1-9-92 Hy the dnte of (Vrd test the workman had crossed 50 years aite find since M2 circuhr stipulated that one should not C l"" "if vctirs as on l-K-92 he was not elicihlc for all Ih- Ihn- tests T-uitlvv ns per Fx. M3 circular dt. 1^-8-96 the eninloyees who have crossed 50 vcars of nuc bv the dafe of Ihe ciicular cannot aK, officiate the post of OMG-I4485 I J. lo jcsoive me uispiue wiui luicien^e LU LUC laLmtw

ad\tisciy cftecied tiie prospects of him and other ex-service employees and taking miio consideration that Ex. W6 has a ovei nding cllect they are to be tieated as promoted w.e.f. 1-8 85.

dspecK, the eve.uence lei in by the parties read with docu- ments vviiiiJi jre ifie guidelines issued by the Government or India, iViimstiy ol finance and Circulars Viz., hx. Wl to Wo and Ml 10 JV13 are to be examined carefully analysing it by intci pieting trie guidelines and circulars.

16. Undisputedly the workman as an ex-serviceman on re-

24. VVhtieas the contention of the icspondent is that E \. VV6 guidelines are ucommendaiy in nature and the managc- mcuL cannot aibitrnnly fiamc rules and fix the cut-off dates as eligibility croteua for promotion of the employees without entemijj into the bipartite settlement with All India Bank Eimployees Federation and any violation of the bipartile settlement would lead lo violations of conditions of service under Section 9A of I.D. Act and there will be unrest in the Honking admin^tiation.

employment was appointed as Clerk-cum-Cashiei on 18-11-77. b,\, Wo is a guidelines dated 2Hth January 1983 issued foi tixution ol pay ol cx-seivice employee working in Public t>;ctoi Hanks. fV'ia 4 of it is relevant in this dispute which i, lo the ellect thai ' II ceilain number of years ot scivice are pi escribed as u minimum eligibility criteria for promotion n om one cadre to another Rules in this regard may be suitably niodiiitd to give wcightage to ex-servicemen on the basis of elicit¹ services in defence forces".

State of Bihar and Dr. Braj K.umar Mishra and othets Kanchi Univcisity, Ranchi V. Dr. Braj Kumar Mishra k Uheis L2OIH) (1) LLN/66(SC)].

Held, for the lapse of commission, respondent in- cumbent cannot be penalised—order of Higb Court declaring icspondcm, promoted fiom the date he became eligible is not illegal—Howevci, the Supreme Court claiified that (he order should not be taken as a picccdcnt.

Bur Singh Kadian and Others, Petitioners vs. State of Haryana it Another Respondents (1994 LAB 1. c. 2353).

1'iomotiqn —ordei granting it with retrospective effect--l.mployees .not permitted to woik on said highci posts—would still be entitled to relixation of their pay letiral benefits und grant of arrears of Salary—pnncipje of 'no work no pay' would not apply since it was the employers who did not permit them to work on higher posts.

Promotion—Grant, of—with letrospective effect— Arrears of salary—cannot be refused merely because employee was unable to woik on higher post.

26. In the lesult, an award is passed holding that the action of the management SBI/Vijayawada Region is justified in not allowing Sri M. A. Khan, re-employed ex-serviceman to appeal lor the promotion test during 1985 as legal. The claim is dismissed and there is no older as to costs.

Dictated to the Shorthand Writer, transcribed by him, corrected by me and given under my hand and seal of this Ttibunal on the 18lh day of June, 2001,

SYED ABDULLAH, Industrial Tnbunal-I Appendix of Evidence

Witness Examined Witness Examined for Respondent : toi Petitioner :

WW1 P. SubiHmanyam MWI V. Sai Babu Documents maikcd for the Petitioner/Workman Lx. Wl 6-6-^4 Circular regaiding weightage of Militaiy Scivicc.

kx. \V2 I-4-S7 Ciicular legarding ex-service ic-em- ploycd in Public Sector Bank wcightage of service put in the Armed fotces lor the purpose of promotion out of cadre,

Ex. W3 7-5-86 Cuculai along with page 13 and 14 of the list.

Ex. W4 28-1-97 Promotion list of Staff to MMGS-I1 w.e.f. 01-11-1995.

Ex. W5 7-8-85 Ciiculais to conduct the Test for 1'iomotiori OJM-J..

Lx. W6 28-1-83 (enclosure of Wl) guidelines issued as the Minisny of Finance Department of economic affairs regarding ex-service re-employed in public sectoi banks—fixation of pay.

Documents maiked for the Respondent/Management Lx. Ml l-K-8'J Circular regarding prescribing qualifi- cations for promotion.

Ex. M2 26-.1-<>3 CVculais legatdinm prescribing quahfi- cition In the piomotion to the post JMGS-1.

Fx. M3 2f)-R-'Jfj Xerox copy of Stall circulai regardinc eligibility to officiate in JMG positions, New Delhi, the 30th July, 2001

S.O. 2162.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1547), the Central Government hereby publishes the award of the Industrial Tribunal Alappuzha as shown in the ArmeMire in the Industrial Dispute between the emp- loyers in relation to the manrgcracnt of Nedungadi Bank Ltd. and their workman, which was received by the Central Government on 27-7-2001.

[No. L-12012]131|99-IR(B-T)J

AJAY KUMAR, Desk Officer.

ANNEXURE

IN THE COURT OF THE INDUSTRIAL TRIBUNAL : ALAPPUZHA

(Dated this the 16th day of June, 2001) PRESENT :

Shri M. N. Radhakiishna Menon, Industrial Tiibunal.

I, D. No. 39 1999(C)

BETWEEN

The Chairman, Nedungadi Bank Ltd,, K. P. Kesava Menon Road. Head Office, Kerala, Kozhikode.

AND

The wiukmcn of ihe above concern Sri. A. Ravetndran Nair, Rakesh Nivas East of Kalatickal Service Stn., Avafookkunnu, P.O. Alappuzha.

REPRESENTATIONS :

M s, C, K. Paiameswara Panicker, & C, V. Lumumba, Advocate, Alappuzha. —For Management Sri, R. Sankarankutly Nair, Advocate,

Alappuzha. —For Woikman

AWARD

J. The Cen'rul Government has as per order No, L-12012131 99|IR(B-1) dated 13-8-1999 referred this industrial dispute between the above parties for adjudication to this Tribunal in exercise of the powers conferred by tlnuse (d) of sub-section ( I) and sub-section 2(A) of sivlion 10 of the Induslrial Dispufe Aet, 1947 (14 el 1947). The issue refer- red for adjudication U the following :—

"Whether the action ol the management of the Ncdunpadi Bank Ltd., in relation to their Alnppiizha Branch in discharging Shri. A. Raveendian Nair, Clerk from his4487 service with effect from 30-4-1996 is justi- fied ? If not to what relief the workman is entitled to T'

Therefore the workman prayed for passing an award setting aside his dismissal and reinstating him in service with all back wages and other attendant benefits.

2. This ld'cicncc has aiisen as follows : SIM. A, Raveendrar Nair, the workman in thit dis- pute was working as a Clcik in the Alappuiha Branch oi the management Kank. While so, Jie was charge sheeted for certain misconducts as per die charge sheet dated 8-12-199-1. To this, he submitt- ed an explanation on 16-12-1994 denying the charge. -This was not satisfactory to the manage- ment. Therefore ihc management has appointed Shri. G. Radhakrishnan Nair, an Officer of the Bank as Lnquiry Officer to enquire into the charges and submit a report over the matter. Accordingly, the Enquiry Officer conducted an enquiry into the- matter and submitted a report with the findings that the workman is guilty of the charges levelled against him. Based on tins ieport, the management discharged him from the ;-cr\ices of the Bank with effect from 30-4-1996. Aggrieved thereby, the workman raised an industrial dispute, which has culminated in the present reference.

5. The case of the management is that their actions arc legal and proper and it does not call for any interference by this Tribunal, The enquiry conduct- ed into charges levelled against the workman is legal and proper. The workman was properly charge sheeted based on sufficient materials at their dis- posal. Since the explanation to the charges levelled against the workman was not satisfactory, a domes- tic enquiry was arranged. The enquiry officer was not biased in any mannci as alleged. He was act- ing independently and not under instructions from the disciplinary authority as alleged. The enquiry was conducted in full eonipliar.ee with the principles of natural justice. I he workman was defended by a senior lawyer and he was given all opportunities to defend his case properly. All aspects of the charges were made cut by adducing proper evidence from the management side. L\en though the customer concerned was not examined, ii will not vitiate the enquiry. The facts leading to the misconducts were admitted in a statement submitted before the mana- ger of the bank. This was not in response to any charge sheet. That is why he was charge sheeted and in view of his i enaction from his earlier stand, an enquiry was conducted into the charges. There is nothing irregular in this regard. The Enquiry Officer has properly considered the materials in the enquiry and arrived at a bonafide conclusion that the workman is guilty of the charges levelled against him. Thus the enquiry is legal and proper with re- gard to the procedure as well as findings. Therefore, the management prayed for passing an order uphold- ing the enquiry,

6, The management further submits that the pu- nishment is aho legal and proper. The post held by (he workman is a confidential post. In the light of the proved misconducts, he cannot be trusted further and his continuance in service with result in incpaiable loss and injuries to the employer as well as to the customer. The disciplinary authority has considered all the aspects of the matter and as a measure of sympathy, an order of discharge was passed instead of disrniss.,1. Thus the punishment is not excessive or unjust in any manner. Therefore, the management prayed for passing an award up- holding Ihc punishment of discharge and rejecting the claims of the workman.

3. The case of the woikman is that the manage- ment charge-sheeted him as per their charge sheet dated 8-12-1994 alleging certain misconducts. He submitted a reply denying the charges and setting out the true state of affairs. But the management did not accept this txplanalion. They arranged an enquiry into the cbaiges appointing an officer of the Bank as enquiry officer. The enquiry officer, after enquiry, submitted a ieport on 6-12-1996 with a finding that all the charges levelled against him arc proved. The enquiry officer has violated all princi- ples of natural justice and his findings arc not sup- ported by any legal evidence. The enquiry officer was biased and he was acting under instructions of the disciplinary authority. There was no evidence to make out the essential facts leading to the charges. Sri. John Thomas who wus the customer and com- plainant was not examined in the enquiry. The case of the management is based on admission of givlt set out in his statement made to the manager of the management Bank. Even the management has no case that it amounts to admission. This is evident from the charge sheeting and conducting of enquiry by the management iubsequently. The woikman had given a blank paper to the accountant of the Branch to prepare a reply to another charge memo, which was misused and foiged an admission. The enquiry officer has not properly applied his mind to the materials on record. The findings of the en- quiry officer are pa verse and unsustainable. Thus the enquiry is not legal and proper. Therefore, the workman has pra\cd lor passing an order invalidat- ing the enquiry.

7. The workman has seriously assailed the domes- tic enquiiy with regard to the procedure as well as the findings. Therefore I have tried the legality ol the enquiry as a preliminary issue. At that stage, iiie enquiry file was marked as Ext. Ml and the nutter was heard elaborately and a preliminary order was passed on 19-5-2001. As per the above order, 1 have held that the enquiry was proper with regard (o the procedure¹ as well as findings. In paragraphs 7 lo 20 of Ihc said oider, I have dealt with the matter, which are extracted below for convenient reference.

4. The workman limher submits that he has got 20 years of unblemished service in the Bank, Des- pite this, he was inflicted with the punishment of discharge from the scivices of the Bank. It amounts lo victimisation. The management has not suffered any los, of money on their goodwill so as to impose a major punishment of this nature. The manage- ment ha, shown leniency lo similarly placed Branch Manager and rtappointcd him in service. A different yardstick is adopted ui'h regard to the workman. The punishment is shockingly disproportionate,

"7. The point for determination is whether the enquiry conducted against the workman is le^al and proper or not, with regard to the procedural aspects and the findings ?"4488 THE GAZETTE OF INDIA : AUGUST 25, 2001/BHADRA 3, 1923 [PART II—SEC. 3(ii)J 8. The Point.—-At this stage, 1 have to examine as to wheJicr the pioccdurc toilowcd by the inquiry ofhcci and the findings arrived at by lnm are legal and proper ? T have scrutinised the Lxt. Ml enquiry file meti- culously. It is seen that the workman was properly charge sheeted and he was re- presented in the enquiry by Sri. T. D. Kuvirajan, Advocate., Alappuzha. Tlie workman has lully participated in the en- quiry. Two witnesses were examined on ihe side of the management and they were elaborately cross-examined by the work- man's counsel. The workman himself was examined as witness on his side. All re- quests made lrom the workman's side such a.-, to cause production of documents for making out the defence etc. are favourably disposed by the enquiry officer. The work- man was allordcd every opportunity to effectively defend his case and the same was availed by the workman. Thus, I find that the enquiry is conducted in full comp- liance with the principles of natural justice and there is no procedural irregularity in this regard as alleged by the workman.

9. Next aspect to be considered is whether the findings of Ihe enquiry officer are legal and proper lrom the materials on record.

10. Evidence in enquiry consists of oral evidence of MW1 and MW2 and WW1 and Exts. Ml to M9 and Exts. Wl to W5. Ext. M8 is the memo of charges levelled against the workman dated 8-12-1994, relevant portion of which runs as follows ; —

"It has been brought to notice that some one had taken loose cheque leaf bearing "514039" from Allcppey branch and made out a cheque tor Rs. 5,000 dated 28-9-94 to the Savings Bank A/c "5949" of Mr. John Thomas of the branch by forging his signature and got the cheque encashed on 28-9-1994. This was revealed on 14th November, 1994 when Mr. John Thomas visited the branch and verified the balance in his account. You were the Clerk who had accepted the cheque at the counter and, therefore, you were questioned in this regard. You then admitted that you had taken the loose cheque leal, made out the cheque lorging the signatuie of the account holder and with the help of a third party accomplice got the cheque encashed. You remitted the amount of the cheque on 15th November, 1994. Your actions are sciious misconduct and, therefore, the follow'ng charges are lamed against you.

1. You misusing your position ol a stall of the branch, with dishonest intention stealthily removed loose cheque leaf No. 514039 2. With the cheque leaf stealthily removed by you, you fraudulently made out a cheque dated 28-9-1994 for Rs. 5,000 to the S.B. account "5949" (if *?'- Mm Thomas, for;'- ing the signature ol the nccounl holder and with the dishonest intention to make unlawful gains to you and wilful loss to the account holder j^ot the cheque encash- ed through an accompliue ot yours and appropriated the amount.

3. Your above actions are violation ot the trust and confidence reposed in you.

4. By your above action, you exposed the Bank to the risk ol the customer loosing faith in the Bank which is highly detcrimental to the interest of the Bank..''

11. Ext. M9 is the explanation ot the workman dt. 16-12-1994, relevant portion of vvhich mns as follows :—

" 1. 1 have been serving our d e n i ed institu- lion for the last 18 years with utmost loyalty and without having any occasion ever in my life to be charged with a case c{ fuuduk-nce, cheating, defalcation of money or acting against the inteiest of the Bank.

2. I totally deny the charges alleged against me.

3. T have not made any admission of the charges alleged against me

4. I have not done any act so as to jeopardize the interest of the Bank nor to damage its fame,"

12. Since the charges were denied by the work- man an enquiry was conducted into the said charges. Shri Krishna Iyer (MW1) has testi- fied before the enquiry officer that Shri John Thomas, S.B, Vcouiit No. 5949 holder pre- sented a cheque for Rs 25,000 on 14-11-94 for encashment and it was found that suffi- cient funds were not available there and it was informed to him accordingly. He was furnished the details of entries in the ac- counts also and th:n he complained that the withdrawal of Rs, 5,000 on 28-9-1994 was not made by him. He was shown the cheque presented on 28-8-1994 and then it was re- vealed that the said cheque was not issued by him. On verification of his specimen sig- nature, il was found that there was differ- ence in the signaluu; between the specimen signature and on the cheque presented on 28th September, 1994 Sri Raveendran Nair was the Section Clerk who dealt with the cheque. Since he was absent on 14-11-1994, he was sent for and questioned about the; irregularities. Then he made a statement! before him. This was recorded by him and got signed by Sri Raveendran Nair, Said statement is Ext. M3 which runs as fol- lows :-—

Mailer iin other Lingua;.*" JJ. MW1 was elaborately cross-examined by the u insd lor tin- workman and none ol his stuleniLiiLs incriminating tlic woikman is con- tiovcrtcd in any manner.

11. Shri V. John Kuiian, the w\oantant (MV/2) ha, K'i!ifk'.l b< in a- (lie en f.ii'y olliccr tli.it wHen the MWi questioned I he workman on 14-11-1994, the woikman admitted that he has l-ikcn out loose cheque leaf and forged the signature of .k,hn Thomris and with- drawn Rs, 5,000 with the awsl'ince of a thiid person. Ext. M3 is the statement given by the workman before the MWI in his pre- sence. This statement is altered bv him also. The workman remitted Rs. 5,000 on 15th November, 1994 in the account of John Thomas and Ext. M2 is the relevant pay in slip. This slip is wriilen up by (he woikman hirrreif. He was elaborately cross-examined by the counsel for the workman, but above evidence is not controverted in any manner.

15. Sin I Rawcndran Nair the woikman involved in this case was examined as WW1 beioie the Enquiry Officer. In his testimony, all allegations made against him arc denied and lie is cross-examined by the presenting offi- cer. Hut his evidence and e\n!analions with regard to the allegation ar^ not believable in the light of other cogent materials on record. After elaborately considering the evi- dence on record, the enquiiy officer entered the finding of guilt, T have leapprised the evidence in ihe light of the materials on re- cord and T al'.o find that it doe-, not deserve any intervciMcn by me.

16. The main I rust of the charges as per Ext. M8 memo is that the workman has stealthily re- moved a loose cheque leaf with No. 514039 from the Rink and fraudulently made oul a cheque Tor Rs. 5.000 daled 28-9-1994 as that of Sn John Thomas, S.B. Account hold- er with No. 5949 and withdiawn the said amount with th" assistance of an outside and misappropriated the irou;eds ol it. In Ex) M3 statement of the workman extracted above, it can be seen thnt nil essential aspects of the allc"t;iions 'ire de:n1y -idrnifted by 1 to believe, Tt is not mide out tbnt 14-11-1^9^ w;is a 'hie dafe for fiirm'sh- inc any explanation to an" memo issued bv t he m a n a g e m e n t. Tt W TJ •I U'¹ mt ma H i- o n)

448 9 and the admission, he has not advanced any much explanation as (o hit, admission made on 14th Nov., 1994 and it is at a later stage in the enquiry that hie has come forward with such explanations. If he had a case that Ext. M3 was nunipulated b\ M'vVl and JV1W2, he could have complained about it before the higher authorities of the Bank. That is not done. It indicates that il is an explanation woven out for the purpose of his case without any bonafides.

17. It is the specific case of the management that pursuant to the undertaking of the woikman made on 14-11-1994 as per Ext. M3, he has remitted Rs. 5,000 on 15-11-1994. Ext. M7 is the related pay in slip dated 15-11-94. Admittedly, it is prepared and signed by the workman even though he was on leave on 15-11-1994. His explanation is that it is the amount entrusted with him at about 9.30 A.M. on 15-11-1994 to be remitted to the Bank by the customer himself. He prepared the pay in slip and entiusted the amount and slip to the cashier Santhamma and left the Bank urgently to take his hrother to hospi- tal. There is no evidence on record to corro- borate the above aspects of his evidence. Above explanations are manifestly worked upto wriggle out of the inconveniencing facls glaring at him. There is nothing unusual in employees of the Bank preparing pay in slips and remitting amounts in the name of account holder. But the conduct of the workman in the light of the totality of the incriminating circumstances on record, it has to be believ- ed that the remittance of Rs. 5,000 was made by the workman which he has misappropri- ated from the S.B. Accounts of the customer. Thus there is overwhelming evidence on re- cord which points to the guilt of the work- man.

18. The counsel for the workman has very vehe- mently argued that the non-examination of the customer concerned is fatal, The evidence on record indicate that in view of the bitter incident, the customer has closed his ac- count and left Tn vitw of other cogent evi- dence on record, his non-examination is not fatal to the validity of the enquiry, 19, The evidence on record makes out that the workman has manipulated a cheque No. 514039 and stealthilv withdrawn Rs. 5.000 from the S.B. Account No. 5949 of lohn Thomas and misappropriated the same. These are ihe essential elements of charges (\) and (2}. The charges d) and (4) arc naturii conscouences emerging from ihe c h a r ts ( I) and (2~\. Thus I conclude that ihe charges arc made out in the cnouirv and the findings of the ennnirv officer in this reeard are correct

20. Tn the result, a preliminary order is passed upholding the enquirv with regard to the procedure as well as findings."

b o r a t e iv " et n uf j n r i i ' H i nc I T 'S i ^ wi • >¹4490 THE GAZETTE OF INDIA : AUGUST 25, 2001/BHADRA 3, 1923 [PART II—SEC. 3(ii)] to interfere in punislimcnts of this nature if it is satis- fied from the materials on record that the punishment is not justified and substitute it with suitable other punishments or grant such other reliefs.

without back wages. The Bank filed a writ petition in the High Court of Kerala, im- pugning the Industrial Tribunal's award. The writ petition was dismissed. The appeal against that order was dismissed. The divi- sion bench of the High Court relied upon the judgment of this Court in Scooters India Ltd. Vs. Labour Court, Lucknow AIR 1989 SC 149 : 1989 SUPP (1) SCC-31 : 1989- I-LLJ-71 and held tha. the Tribunal was right in affording an opportunity to the first respondent to reform himself and prove to be a> disciplined and loyal em- ployee.

9. The counsel for the workman has vehemently argued that the punishment uf discharge is not justi- fied¹ in the facts and circumstances of this case. He relied on the Supreme Court rulipg in Scooters India Ltd. Vs. Labour Court Lucknow reported in 1989-1- LLJ-71 (Supreme Court) and argued that 'justice' shall be tempered with mercy and the errant work- man shall be given one more opportunity to mend his ways and to become a disciplined employee. He ha;s further relied on State Bank or" India Vs. Thomas Jose and another reported in 2000-IJ-LLJ 1599 and argued that maximum leniency may be shown to the workman.

misconducts, the complaint of victimisation is devoid of any substance. Thus the materials on record justify the punishment of discharge inflicted on the workman. When the punishment is found to be justified, no intervention under S.11A la called for^ Therefore I have to sustain the punishment and T do JO. In the result, an alward is passed holing that the action of the management in discharging Shri. A. Raveendran Nair, Clerk from the service of Nedun- gadi Bank is justified and that he is not entitled¹ to any reliefs.

(Dated this the 16th day of June 2001) M. N. RADHAKRISHNA MENON, Industrial Tribunal.

APPENDIX

I.D. No. 39|99(C)

Witness examined on the side of the Management;

NIL

Witness examined on the side of the workman :

NIL

Exhibits marked on the side of the Management:

Ml : Enquiry proceedings (46 sheets) relating to the workman.

Exhibits marked dn the side of the workman:

NIL

New Delhi, the 31rt July, 2001

S.O. 2163.—In pursuance of Section 17 of the Jndustrlnl dispute Act, 1947 (14 of 1947), the Central Government lereby publishes the Award of the Industrial Tribunal, Tamil Nadu, Chennaf as shown in the Annexure in the industrial Dispute between the employers in relation to the nanagement of Southern Railway and their workman, which was received by the Central Government on 30-7-2001.

fNo. L-410l2|37|92-IR(DU)|(B-T)]

AJAY KUMAR, Desk Officer

ANNEXURE

JHFORE THE INDUSTRIAL TRIBUNAL, TAMIL NADU 2ND FL., CITY CIVIL COURT BUILDINGS,

CHENNAI-I04

Wednesday, the 1st day of July. 1998 2497

PRESENT :

Thiru S. Ashok Kumar, M.Sc., B.L.,

Industrial Tribunal.

Industrial Dispute No. 5 of 1993 __ (In the matter of the dispute for adjudication under Section 10(1 )(d) of the I.D. Act, 1947 between the Workmen and the Management of Southern Railway, Trichirapalli).

BETWEEN

Shri M. Rajaram, No. 10-A, 1st Street, Kumurappa Nagar, Katpadi6320O7, N.A. Dist. Tamil Nadu.

AND

iThe Sr. Divisional Personnel Officer, Southern Railway, Tiruchirapalli 620 001,

REFERENCE:

Order No. L-41012|37192-IR(DU). Ministry of Labour, dated 3rd lanuary 1993. Govt. of India. New Delhi.

^ This dispute coming on for final hearing on Friday, the 5th day of December 1997, upon penning the reference, claim, counter statements and all other documents on record, upon hearing the arguments of Thiru D. Hariparanthaman, Advocate appearing for the workman and of Thiru G. Kalyanasundaram, Advocate appearing for the respondent-management and this dispute having stood ovei till this day for consideration, this Tribunal made the following

AWARD

This reference has been made for adjudication of the following issue :

"Whether the action of the management of Southern. Railway, Tiruchirapalli in not employing Shri M. Rajaram with effect from 21-12-1982 is legal and justified 7 If not, to what relief the workman in entitled to ?"

2. The main averments found In the claim jtatement filed by the petitioner-union are as follows :

The petitioner was working ai a Mazdoor from 24-6-70 to 21-10-72 and later 21-3-82 to 20-12-82. In the first spell, petitioner was working in the office of permanent way Ins- pector, Katpadi which comes under Madras Division of the Southern Railway. In the second spell, petitioner was work- ing in the office of the Permanent Way Inspector, Vellore cantonment which comes under Trichy division. Petitioner was abruptly denied employment on 20-12-82 without any reasons whatsoever. The action of the respondent'* in ter- minating the services of the petitioner amounts to retrenchment under Sec. 2(00) of the I.D. Act. Since the respondent failed to comply with the mandatory provision Sec. 25F of the I.D. Act, the termination is illegal end void. Personal representations were made by petitioner imme- diately after his termination. Representations did not bring any reply. Written representation dated 6-5-84, 2-5-83 and 22-9-86 were also given by petitioner. Petitioner also made a representation to Thiru Basudev Acharya, Member of Parliament who in turn represented the matter to the Gene- ral Manager, Southern Railway by his letter dated 10-12-86. Another representation dated 4-2-87 was also sent by the Hon'ble M.P. on behalf of the petitioner. It was informed by the General Manager's office in their letter dated 13-2-87 that they would inform the M.P. in due course. It was also informed by their letter dated 2-3-87 that the matter is un- der consideration of Southern Railway, The petitioner applied for employment through his application dated 21-3-87 to Trichy division with reference to their letter dated 11-3-87. The petitioner also applied for employment to Madras Divi- sion through his application dated 21-3-87. By application* dated 17-3-88 and 26-9-88 the petitioner sought employment from Trichy and Madras Divisions. The Deputy Minister of Labour & Parliamentary affairs in his letter dated 2-6-89 forwarded petitioner'* representation to the Deputy Minister for Railways for necessary action. The petitioner also applied for employment to both Madras a*d Trioby JMvl-449J THE GAZETTE OF INDIA : AUGUST. 25, 2001/BHADRA 3, 1923 [PART U—Sic. 3(ii)] sions with reference to their circular dated 19-7-90. Apart from this, representation was made by petitioner's mother to the department seeking employment to petitioner as peti- tioner's father was an ex-cmployee of Railway Administra- tion. It was informed by the department in their letter dated 13-8-86 that petitioner's appointment would be considered in accordance with priority and registration. Since all the petitioner's efforts did not bring any fruit, an Industrial dis- pute was raised by the petitioner. The termination of petitioner is illegal as it is opposed to Chapter VB of the I D. Act and in particular Sec. 25 (N) of the Act. The termination is illegal and in contravention of Sec. 25(G) of the I.D. Act, since petitioner's juniors are retained while he was terminated. New employees have been taken by the department but failed to provide employment to tho petitioner which is contrary to Sec. 25(H) of the I.D. Act. The petitioner prays to pass an award holding that the action of the management of Southern Railway, Trichirapalli division in not employing the petitioner w.e.f. 21-12-92 is illegal and not justified and direct the respondent to reinstate the petitioner with back wages, continuity of service and other attendant benefits.

3. The main averments found in the counter statement filed by the respondent are as follows :

The petitioner was originally a casual labourer of the Katpadi section of the Madras Division of Southern Railway. He had worked there as a casual labourer during the period from 24-6-70 to 20-11-72 with occasional breaks in service. The petitioner abruptly stopped coming for work thereafter. The Katpadi Permanent Way Section comes under the ad- ministrative jurisdiction of the Madras Division of the Southern Railway and as such, is outside the administrative control of the respondent. The petitioner was later engaged as a casual labourer in the Vellore Permanent Way Section of the Trichirapalli Division of the Southern Railway coming under the charge of the Permanent Way Inspector of Vellore during April 1982. The petitioner worked as a casual labourer in the Permanent Way Section of Vellore till the wage period ending 20-12-82 with occasional breaks. How- ever, the petitioner did not turn up for work thereafter. The petitioner could not therefore be engaged for sanctioned works. It was he petitioner who stopped coming for work abruptly. The question of termination of retrenchment of the petitioner does not ariio at all, when no termination has actually taken place, the provisions of Sec. 2(00) of Sec. 25F of the I.D. Act, do not come into play at all. There has been no representation whatsoever from the petitioner explaining his abrupt absence from work beyond wage period ending on 20-12-82 and seeking work. It is not clear from the petition as to the Railway division to which the petitioner had sought engagement. The respondent has not received any references from the General Manager, Southern Rail- way, in respect of the petitioner. On the one hand tht peti- tioner has stated that General Manager, Southern Railway pave a Teply and on the other, the matter is under considera- tion of South Central Railway, which has no jurisdiction over the matter sought to raised in this petition. The matter of engagement was first raised by the petitioner In a petition dated 13-3-91 filed by him before Regional Labour Com- missioner, Central, Madras u|s. 2A of the I.D. Act, 1947, the petitioner did not at any point of time during the pro- ceedings before the Regional Labour Commissioner said that he had represented about his engagement as casual labourer. Even according to the petitioner's claim, he had given a representation only on 6-5-84. The petitioner cannot apply for employment in the railways as and when he wishes to do so. He could apply only against specific employment notice if and when called for, provided hfc satisfied the eligi- bilitv conditions. There was no engagement of casual labour fresh faces in the year 1987. Railway Board evolved a scheme ft)r inclusion of casual labour discharged prior to 1-1-81 for wnnt of work or completion of work in the live register during March 1987, If the alleged application of the petitioner is with reference to the instructions issued in this regard, then he should have applied to the Madras divi- sion of the Southern Railway. The petitioner who had been initially enpaged in the PWT. Katpadi section of the Madras division can only apply to Madras division authorities with proper proof in sunport of his casual labour service in the concerned unit. Inclusion in live register is not automatic but subject to verification of the details produced by the cssuar- labourer concerned. The petitioner who had been Initially engaged a" a casual Jabour in the PWI KatpaJl unit of the Madras division, cannot apply to Trichirappali divi- sion. Even otherwise, the petitioner is not covered by these provisions as he was not discharged by the Railway Adminis- tration but abruptly stopped from coming to work on his pwn volition. As per the provisions of the. Indian Railway Establishment Manual Volume II. Para 2004, under the head "Notice of termination" the service of casual abour will be deemed to have been terminated When they absent themselves or on the close of the day. No reference from any Hon'ble Minister in respect of petitioner has been forwarded to the respondent. The claim of the petitioner that he was informed by the letter dated 13-8-86 as regards considering him for appointment is denied. When there i* no termina- tion, the question of legality or Sec. 25N, 25O of the I.D, Act, 1947 being attracted does not arise. The petitioner's claim that fresh labour were engaged is denied. It was the petitioner who did not turn up for work beyond 20-12-82 and remained unauthorised^ absent. He had turned up at the office of the PWI[Vellore on 8-5-83 only toget entries in the casual labour card and not to seek work. The petitioner has not produced any proof of alleged termination of his service w.e.f. 21-12-82, The petition M such is not correct or tenable and is not sustainable either in law or on facts. The respondent prays to dismiss the petition.

4. The petitioner has examined himself as WW1 and Ex. W.I to W-44 have been marked. No witness wa" examined on behalf of the respondent. Ex. M.I was marked.

5. The point for consideration i s: Whether the action of the respondent management of the Southern Railway, Trichirapalli in not employing Shri M. Rajaram w.e.f. 21-12-1982 is legal and justified ? If not. to what relief the workman is entitled to ?"

6 The Point : The petitioner Rajaram was employed as Mazdoor from 24-6-70 to 21-10-72 in the office of the Permanent Way Inspector, Katpadi which comes under Madras Division. From 21-3-82 to 20-12-82, the petitioner was employed in the office of the Permanent Way Inspector Vellore Cantonment which comes under Tricby division. On 20-12-82, the petitioner was not engaged for want of sanc- tion as seen from Ex. W-l service records of the petitioner. Thereafter the petitioner made several representations by himself, or through his mother or through certain members of Parliament. Ex. W-2 dated 6-5-84. W-3|21-3-87, W-15 30-3-87, W-16| 17-3-88 W-17| 17-3-88, W-19|26-9-8F, W-20 26-9-88, W-23122-5-89, W-26|27-6-89, E-28|19-7-90 are letters sent by the petitioner seeking reinstatement, Ex. W-4, dated 13-8-86 is fetter of the -petitioner's mother seeking reinstatement of the petitioner. Ex- W-l 4, W-21, W-22, W- 24, W-27. W-29, W-30 are postal acknowledgement cards signed by the respondent's official for the various representa- tions, by the petitioners. Ex. W-18 is certificate of posting of Ex. W-17. Ex. W-7 and W-10 are letters of Thiru Basudev Acharya Member of Parliament, regarding the reinstatement of the petitioner. Ex. W-25 is another letter sent by Thiru Radhakrishna Malaviya. Deputy Minister of Labour, and Parliamentary affairs to the Deputy Minister for Railways regarding tho reinstatement of the petitioner. Ex. W-8, W-ll and W-12 are letters of the General Mana- ger sent to Shri Basudev Acharya. Member of Parliament which were turn communicated to the petitioner regarding his employment. Inspite of the several representations made by the petitioner and also eltters sent by the Member of Parliament and Hon'ble Deputy Minister for Labour, the petitioner was not reinstated or absorbed in the services by the respondent. On 15-3-91, the petitioner filed a 2A petition before Asst. Labour Commissioner (Central). Madras and the respondent filed a counter statement Ex. W-32, Ex W- 34 is a circular regarding maintenance of live casual register and Ex. W-35 is the order dated 4-3-87 regarding tho mainte- nance of live casual register for casual labourers. Ex, W-36 is notification regarding application for appointment as open line casual labour in railways. Ex. W-37 Is application of the petitioner dated 7-9-91 to the Assistant Commissioner of Labour (Central), Madras regarding his employment. Ex. W-38 is the reply of the management tn the Regional Labour Commissioner (Central), Ex. W-39 is the rejoinder of thr petitioner to the reply "fatement of the management to the Regional Labour Commissionr (Central), Ex. W-39 is the rejoinder of the petitioner to the reply statement of th* Divisional Personnel Officer. Trichirapalli. W-40 h the rerlv given by the respondent to the rejoinder of the petitioner, Ex. W-41 h the conciliation failure repport. Ex. W-42 Is the order of Central Administrative Tribunal in O.A. 603|90, W-43 is the order of Ceqtral Administrative4493 ' Tribunal, Madras Bench in O.A. 1618|93. W-44 is the letter Of the Assistant Commissioner of Labour (Central), Madras regarding the conciliation proceedings. The conten- tion of the petitioner is that from 24-6-70 to 21-10-70 the petitioner was working in the office of the Permanent Way Inspectorl Katpadi and thereafter from 21-3-82 to 20-12-82, he worked under Permanent Way lnspector|Vellore Canton- ment and after 20-12-82 he was not engaged for want of sanction. In both the spells, the petitioner has worked continuously for 240 dayg and therefore termination of the services of the petitioner abruptly without complying the mandatory provisions of S ". 25t of the l.D. Act, amounts to retrenchment and his termination is illegal. The further contention of the petitioner is that after specific instructions from the Railway Board to include casual labourers who were retrenched before 1-1-81 and also after 1-1-81 in the live register and inspite oi petitioner's application to include his name, the petitioner's name was not included in the live register and the petitioner was not reinstated while several of his juniors have been reinstated in service. The contention of the respondent management is that in the first spell, when he worked under PWI|Katpadl after 21-10-72 he did not turn up for work, probably, for more fruitful employment elsewhere and did not apply for inclusion of his name in the live register and the petitioner should have applied at the Madras division which includes Katpadi where he was ini- tially engaged and therefore there is no question of retrench- ment ot the petitioner.

7, From the service card EX. W-l it could be seen that after 1-10-72 the petitioner did not turn up for work in thei first spell when he was working under PWT|Katpadi. There- fore the contention of the respondent that the petitioner him- self absented unauthorisedly and therefore, the question of retrenchment does not arise seems acceptable. But as regards the next spell, of the engagement of the petitioner from 21-3-82 upto 20-12-82 he has worked for 228 days and he was not engaged thereafter for want of sanction. Therefore, the non-engagement of the petitioner after 20-12-82 is not due to the fault of the petitioner because for want of sanc- tion. If Sundays and othei National holidays are also inclu- ded as held by the Hon'ble Apex Court in 1986 I LLJ P 34. THE MOT. OF STANDARD MOTOR PRODUCTS OF INDIA LTD., Vs. SHRI A. PARTHASARATHY & ORS. and 19S5 II LLJ P 539 THE WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION Vs. THE MGT. OF AMERICAN EXPRESS INTERNA- TIONAL BANKING CORPN., the total number of days the petitioner should have worked will come to 240 days, within the menning of Section 25B of the I.D. Act. But while ter- services of the petitioner either for want of sanction or any other reason, the respondent management has not followed tho provisions of Section 25F of the I.D. Act. In the railways the person who has worked continuously for 120 days should be granted temporary status. The contention of the respon- dent management regarding granting of temporary status ds seen from Ex. W38 is a reply to the rejoinder of the petitioner b e f o re R e g i o n al L a bo T C o m m i s s i o n er ( C e n t r a l) is as f o l l o ws • "The grant of temporary status is not done then and there but enly collectively much later duly grouping together all such eligible casual labourers. Further the petitioner was not engaged in open line works and the grant of temporary status after 4 months or 120 days continuous service applies only to open- line casual labourers. The petitioner was engaged in project work and the scheme for grant of tem- porary status to project casual labour waa introduced only from 01-01-84, on which date the petitioner was not in active engagement,"

The respondent has not produced any document to show that grant of temporary status for such of those workmen who huve continuously worked for 120 days is available only to those casual labourers engaged in open line and grant of temporary status to pioject casual labour was introduced only on and from 1-1-84, In the same letter, the respondent has mentioned that even if the petitioner was without work for certain period after his stoppage, such stoppage was due only for want of specific sanction for the work concerned and there was every possibility of the petitioner being provi- ded with work on receipt of necessary sanction. The above statement cf the respondent would show that the petitioner was denied employment for want of sanction for some work, during December 1982, The petitioner had been sending seveial representations either by himself or through Hon'blo Mtnioef os. Uic 1'ailiament tor reinstatement m service. But on one pretext or jnotner, he was not re-employed. Lastly uio rerioimui biancu oi liead Quarters Omce has issued instructions lor maintenance of casual labour register and open iinu casual labour loliowing Lhe judgement ot tne Hon bio Apox L.OUH in Inter iJal Vadav & Ois. Vs. Umun oi India. & Uii. (,iyM:> ii LLJ iJ 4t>o) by promoting a scheme for employ- nwm ol such ol Uiose employees who were dibciiaiged before 1-1-81 ana also alter 1-l-Bl, bx. W-34 is the instructions isiueu bi tiic Heuuquurters ofhc" ot the Personnel branch Madras lo tlie \auous unit officers to give wide publicity to tne noiiiicatiun exhibiting in all prominent places, offices and railway stations and to receive representations, to verify the genuineness oi tnc claim and send the applications and com- plete me piocwsing before JO-4-S7 and send a complete report to tne lieudquartcrs by 9-5-87. bx. W-35 is the circular letter dated 4-3-87 issued by thr Ministry of Railways regaiding opportunity to be given open line casual labour who were also dischuijjed betoie 1-1-Si for want ot work or completion ot work. In t\. W-32 letter dt. 14-S-91, sent by the respondent to Regional Labour Commissioner (Central) respondent has admitted that the railway board has issued instructions that such oi the casual labourers who were stopped from work atler 1-1-hl may be considered for mcluion in the live legtstei to be opened for that purpose". But the respondent nas contended that the petitioner's initial engagement was with Permanent Way Inspcctor/Katpadi which comes under Madras Division and as such he should have applied to the Madras Division if he wished to be included in the live register, i respondent has iurther contended tnat me question of in- clusion in the hve register at Trichirapalli division did not therefore arise in the case of the petitioner as his initial appointment was not falling within the jurisdiction of Tnchira- palli division. In bx. W-38 letter dt. 7-2-92, sent to the Kegional Labour Commissioner, the respondent has mentioned us follows :

"The petitioner should have applied as required at that time for inclusion in the live register, to the Divisional Personnel Officer, Southern Railway, Madras Division since lie was initially engaged in the Permanent Way inspector s office at Katpadi coming within the jursidiction of the Madras Division of the Southern Railway.

It is quite surprising to note that inspite of the wide publicity given to the Notice calling on casual labourer? who were stopped for want of sanction to apply for inclusion in the live casual register and the petitioner had not responded in time and insteed he has been repeatedly harping on re-engagement in the Permanent Way Inspector Unit, Vellore. Even if the petitioner was without work for a certain period after his stoppage, such stoppage was due only for want of specific sanction for the work concerned and there was every possibility of the petitioner being provided with work on receipt of necessary sanction."

In the letter dt. 26-3-92, sqnt to Regional Labour Commissioner, the respondent has tnenlioned as follows :

"The pct:tioner was not retrenched from engagement by the Railway Administration. He stopped from coming to work on his own volition and did not at any time turn up thereafter. He did not also respond to the call given for inclusion of casual labourers stopped for want of sanction or want of work as lhe case may be in the Live Register. By stating that "recruitment" of casual labour was banned, it was only meant that there was no engagement of new faces. The fact, however, remains that the petitioner did not ever turn up for further work after 20-12-82. The petitioner was not a retrenched casual labourer. He was only stopped for want of sanction as could be seen from the entry made in the casual labour card.

He did not also apply to the Divisional Personnel Officer, Southern Railway, Madras for inclusion in Live Register as he was intitially engaged as a casual labourer in the permanent Way Inspector's Office at Katpadi coming within the administrative control of the Madras Division of the Southern Railway. The petitioner is put to strict proof with regard to his claim of having applied to the Divisional Railway4494 THE GAZETTE OF INDIA : AUGUST 25, 2001/BHADRA 3, 1923 [PARt U—SEC. 3(ii)J Manager, S. Railway, Timchirapalli. In fact in his reply to this respondent's letter dt. 14-8-91 the peti- tioner has only mentioned that he had applied to the G. Munager, S. Railway, Madras for re-engage- ment. He had not stated that he applied to inc Divisional Manager, S. Riy., Trichirapalii. His claim of now having represented to the Divisional Railway Manager, S R\ly., Tirucnirapalli tor re-engagement is purely an afterthought and totally false," From the above contentions of the respondent in their various letters to Kcgional Labour Commissioner, tne follow- ing lacts emeige (i) fne uiitial engagement of trie petitioner wus with Luc fermanenjt Way Inspector/Katpadi within the jutsidiCtion of Mad^is Division and thereforo he should have applied to the Divisional office at Madras for inclusion of his name in the live Register, (li) The petitioner has not applied to the Divisional Railway Manager, Southern Railway, liiuchirapalh lor re-engagement as contended by him and the contention of the petitioner that he had applied to the Divisional Railway Manager, Tiruchirapalli as an afterthought.

The petitioner has sent Ex. W-13 application dt. 21-3-87 to the Divisional Railway Manager, Southern Railway, Tiructiirap^lii. Tne Divisional Railway Manager, Tiruchirapalli has received his application ou 28-3-87 as seen from Ex. W-14 postal i.cknowledgernent card. The petitioner has also pro- duced legislation receipt tor sending Ex. W-13 application. The petitioner has also sent a similar application dated 30-3-87 to the Divisional Railway Manager, Madras Division which has been received by the Divisional Railway Manager as seen from postal acknowledgement attached with Ex. W-15. The petitioner has also produced registration receipt for having sent Ex. W-15 application. Thus it could bo seen that the petitioner has sent 2 .applications one to the Divisional Railway Manager (Personnel), Sothern Railway, Tnchy and another to the Divisional Railway Manager (Personnel), Madras Division. The above two Ex. W-13 and Ex. W-15 applications have been sent continuing necessary particulars as required by the notification marked as Ex. W-36. Therefore the con- tention of the respondent management that the petitioner has not sent necessary applications to empanel himself in the casual labour live register (Open line) as required by the Railway Board in their directions mentioned earlier and as found in Ex. W-34 and W-35, are not correct. The petitioner hus complied with instructions of the Railway Board to in- clude his name in the live casual labour register—Open line casual labour. But the respondent has not included his name till date inspitc of the varios representations from 1984 to 1990 and also during the conciliation proceedings in 1991 and 1992- The petitioners initial engagement was at Katpadi within Madras Division, and subsequent engagement was at Vellore within territorial Jurisdiction of Trichlrapalli Division. It was only while workinjt at Vellpre Division, the petitioner Was not engaged for want of sanction of work. Therefore, it Would have been proper for the respondent to include his name in the live register of Tiruchirapalli Division. But the respondent has not Included his name in both the Division.

Hon'ble Central Administrative Bench, Madras in O.A. 603|90 and O.A. No. 1618|93 Ex. W-42 and W-43 has held that, such of those casual labourers who were not re-engaged or re-employed after their termination after 1-1-81 should be again empanelled on their application.

While terminating the services of the petitioner on 20-12-82. the respondent has not followed the mandatory provisions of Section 25F of the I.D. Act. Inspite of petitioner's various letters and also applications as mentioned above, the respon- dent has failed to re-engage him or reinstate him and also failed to empanel him in the live register for casual labourers, In the above circumstances, I hold that the action of the respondent management in not employing the petitioner w.e.f. 21-12-82 is illegal and unjustified. The petitioner is entitled to reinstatement with 50 per cent backwages and other atten- dant benefits. Awoid passed. No costs.

Dated, this the 1st day of July 1998.

S. ASHOK KUMAR, Industrial Tribunal WITNESSES EXAMINED

r ">r Petitioner-workman:

W.W. 1 : Thiru Rajaram M.

For Respondent-management: NiL

DOCUMENTS MARKED

For Petitioner-woikman :

Ex. W-l/ : Service Card of the petitioner/work- man (xerox copy).

W-2/6-5-84: Letter from petitioner seeking reinstatement (copy).

W-3/2-5-85: Letter from petitioner seeking reinstatement (copy).

W-4/13-9-8S: Letter from petitioner's mother seeking leinstatement of petitioner.

W-5/ : Reply by the Department to the letter dt. 13-8-86 (copy).

W-6/22-9-86: Letter from petitioner seeking reinstate- ment.

W-7/10-12-86; Letter from Member of Parliament (copy).

W-8/16-12-86; Lettei from Member of Parliament (Original).

W-9/9-1-87 : Letter from respondent to petitioner.

W-l0/4-2-87: Letter from Member of Parliament (copy).

W-ll/13-2-87 : Letter from Member of Parliament (copy).

W-12/2-3-R7: Letter from Member of Parliament (copy).

W-13/21-3-S7; Letter from petitioner seeking reinstate- ment.

W-14/ : Acknowledgement.

W-15/17-3-88 : Letter from petitioner seeking reimtate- ment.

W-16/17-3-88 : Letter from petitioner seeking reinstate- ment (copy).

W-l 7/17-3-88 : Letter from petitioner seeking reinstate- ment (copy).

W-l 8/ — : Certificate of posting proof.

W-19/26-9-88 : Letter from petitioner seeking reinstate- ment.

W-20/26-9-S8 : Letter from petitioner seeking reinstate- ment (copy).

W-21/26-9-88: Acknowledgement.

W-22/ — ; Acknowledgement,

W-23/22-5-89; Letter from petitioner seeking reinstate- ment.

W-24/ : Acknowledgement.

W-25/ : Letter from Member of Parliament.

W-2G/ : Letter from petitioner seeking reinstate- ment (copy).

W-27/ : Acknowledgement. W-28/19-7-90 : Letter from Petitioner seeking reinstate- ment (xerox).

W-29/ : Acknowledgement.

W-30/ : Acknowledgement.

W-31/15-3-91 : 2A petition filed by petitioner (xerox). W-32/

W-33 to W-36/14-8-91: Counter filed by the respondent.

W-37/7-9-91 : Rejoinder to the counter statement.

W-3 8/7-2-92 : Reply to the rejoinder filed by respondent.

W:39/l8-3-92 : Rejoinder to reply statement filed by petitioner.

W-4O/26-3-92 : Reply to the rejoinder by the respondent.

W-41/31-3-92: Failure report.

W-42/13-8-91 : Order passed by Central Administrative Tribunal in O.A. 603/90.

W-43/1-12-95: Order passed by Central Administrative Tribunal in O.A. 1618/93.

W-44/19-3-91 : Letter by Assistant Labour Commissioner (C) to Shri M. Rajaram and Permanent Way Inspector (xerox).

For Respondent-management:

M. 1 : Government of India/Ministry of Railway/ Railways to the General Managers, All Indian Railways rega. maintenance live casual labour register (original).

^ New Delhi, the 31st July, 2001

S.O. 2164.—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, Bangalore as shown in the Annexurc in the Industrial Dispute between the employers in relation to the management of Chitradurga Gramin Bank and their workman, which was received by the Central Government on 30-7-2001,

[No. L-12011/27/88-IR(B-l)] A MY KUMAR. Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT

BANGALORE

Dated, the 9th July, 2001

PRESENT:

Hon'ble Shri V. N. Kulkurni B.Com.,LLB

Presiding Officer CGIT-Cum-Labour Court, Bangalore.

C.R. No. 42/1989

I PARTY

Shri Rnmachandra Rao, C/o Anant, P. Savadi, Advocate, Room No. 8. II Block, IHrd Floor, Supermarket, Hubli-580020 (Advocate—.Shri Anant P. Savadi)

II PARTY

The Chairman, Chitradurga Gramin Bank Sri Kudll Srtngere,

Mahasamatanam Buildings, P.B. No. 70, Jogimutt Road, Chltradurga-577501 (Advocate—Shri P. Saukar)

AWARD

1. The Central Government by exercising the powers conferred by clause (d) of Sub-section 2A of the Section 10 of the Industrial Disputes Act, 1947 has referred this dispute vide order No. L-12011/27/88-IR(Bank. I) dated 17-7-1989 for adjudication on the following schedule:

SCHEDULE

"*Whether the action taken by the management of Chitra- durga Gramina Bank in dismissing Shri Ramchandra Rao, Junior Clerk from Services is justified ? If not, to what relief Slui Ramchandra Rao is entitled ?" 2. The First party workman was working with the Second Party management. He committed misconduct. Charge sheet was issued and enquiry was hold. On the basis of the enquiry report first party workman was dismissed and therefore Industrial Dispute is raised.

3. Parties appeared and filed Claim Statement and Counter respectively.

4. The case of the first party in brief is as follows :

5. The case of the firtt party is that the first party was workinc with the management as Clerk. An article of charges dated 15-7-1984 was given to the first party for certain irregularities. According to the first party the charges are not correct and there wai no misconduct at all. Misconduct was such that under the standing orders the management could not take any action,

6. The first party, so far as enquiry is concerned has stated so many things In his clam staltement and has contended that no opportunity was given, to engage a lawyer to defend hi* case was fatly refused by the enquiry officer. The enquiry officer acted as prosecutor and the entire enquiry is not correct nnd the finding given by him is perverse. The first party for these reasons has prayed to pass award in his favour.

7. The case of the second party in brief is as follows:

8. It is true that the first party was working as Junior Clerk and his services were terminated on account of serious mis- conduct committed by him. The punishment Is correct. Regarding enquiry, the contention of the management is that the allegations made by the first party are not correct and full opportunity was given to the first party and enquiry was properly conducted and the explanation given by the first party is not correct.

9. It is the further case of the management that on 11-4-84 the first party received a sum of Rs. 100 from the customer of the bank towards remittance to the loan account but failed to account for the same and thereby misappropriated a sum of Rs. 100,

10. It Is the further case of the management that the first party committed certain procedural irregularities ai stated in the Counter. It is said that initially one Mr. B. S. Shankra- narayan was appointed as Enquiry Officer, but the first party objected the said appointment as Enquiry Officer but the management said that he was the competent to hold enquiry.

11. So far as enquiry is concerned parawise reply is Riven in the Counter Statement. It is said that the Principles of natural justice were followed and the enquiry is perfect. It is said that the punishment is proper and the management has prayed to reject the reference.

12. It is seen from the records that since a long time this reference is pending and proper progress is not made, It appears ihat the matter was taken to High Court and the Writ Petition No. 14072/99 was disposed off.

13. It h seen from the records that on behalf of tha management, MW1 was examined and he has given detailed evidence about the enquiry held by him. He is cross examined. It appears that this court by Its order dated 1st April 1999. ha* held that the DE fa fair and proper and thereafter the matter was posted for arguments.

14. It is seen from the records that on 18r4-^001 workman "ot examined himself. Before 1 proceed further, I would like to addiess my self about the objections raised by the manage- ment for examining this workman on J. 8-4-2001. Petition was filed to strike of the said evidence, On 18p44y the management ' was rejected. It was made known to the parties that the workman can lead evidence only regarding victimisation and that will be the only relevant evidence which can be considered after the enquiry is held as fair and proper. The learned counsel for the second party agreed. I have read the decision of the Court. Keeping in mind the principles held in the above decision of High Court of Karnataka, it is clear that after the finding on the Domestic Enquiry holding it as fair and proper, this court cannot permit to lead evidence again on merits. The fact remains that, only regarding victimisation for limited purpose evidence can be allowed.

15. The first party wanted to lead the evidence and the management objected it and the management filed application. Second party wanted to file objection. This being the oldest cose, I rejected the application with an open understanding that the evidence if any adduced, it should be regarding victimisation and that must be taken as evidence because the domestic enquiry is held as fair and proper. In view of this the nuroose was served. Further Mr. PSS said he baa no objection if evidence is given on victimisation. His only sub- mission was no evidence can be taken on merits. I agree with him.

16. I have heard both sides in detail and I have perused the citations given by the parties.

17. I have considered the entire material and the evidence recorded by the Enquiry Officer carefully in order to find out whether the punishment of dismissal i% proportionate or harsh.

18. It was vehemently argued by the learned counsel for the first party that the report of the Enquiry Officer is perverse and the finding of the Enquiry Officer holding that the c h a r ts are proved is not sound and correct. Ho further arcticd that according to the witness who paid Rs. 100 to the first party for depositing the same in his own account has stated in his evidence that no amount was paid by him and therefore, the finding is perverse. The learned counsel for the management Mr. Pradeep Sankar submitted that this court has limited powers, after holding that the DE is fair Mid ,proper to consider all this. I agree with him. But fact remains that the misconduct is not proved as per the evidence before the enquiry officer.

19. In the instant case I have strictly scrutinised the evi- dence, in order to appreciate the arguments advanced by the leanied counsel for the first party. The learned counsel for the first party pointed out, from the enquiry proceedings and argued that the deposition of Shri H. O. Ramachandra Rao S'Q V. N. Veerappa, is considered, it i" clear that the finding of the enquiry officer is perverse. The said Shri B. S. Shankar* narayan has stated before the Enquiry Officer that he has not remitted Rs. 100 on 11-4-1984. It may be a fact thnt the first party has written the slip for depositing R". 100 in the running account, but Shri B. S. Shankarnarayan says th;¹* he has not remitted Rs. 100 on 11-4-84. I have considered all the material placed before the enquiry officer and I am of the opinion that the report i" perverse.

20. Having considered all this, now I am of the opinion that when there is no direct clear and cogent evidence to connect the first party with the alleged misconduct, the punishment of dismissal is top harsh and not proportionate.

21. This is a matter of 1989. The workman was dismissed long back. I fed ends of justice will meet if I direct the management to reinstate the first party without any back- wages. Accordingly I proceed to pass the following order .

ORDER

The reference is partly allowed. The management is direoted to reinstate the first party from the date of dismissal with continuity of service. In the given circumstances backwaRes are not allowed.

(Dictated tp PA transcribed by her corrected and signed by me on' 9th July 2001)

V. N, KULKARNI, Presiding Officer New Delhi, the 31st July, 2001 S.O.2165.—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, Chcnrmi as shown in the Annexurc in the Industrial Dispute between the employers in relation to the ["management of Lakshmi Vijas Bank Ltd. and their workman, which was received by the Central Government on 30-7-2001.

[No. L-12011/54/97-IR(B-I)]

AJAY KUMAR, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVT. INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, CHENNAI Thursday, the 21st June, 2001

Present . K. KARTHIKEYAN,

Presiding Officer

INDUSTRIAL DISPUTE NO. 525/2001 (Tamil Nadu State Industrial Tribunal I.D. No. 126/98)

(In the matter of the dispute for adjudication under clause (d) of sub-section (1) and sub-section 2(A) of Section 10 of the Industrial Disputes Act, 1947 (14 of 1947), be:w^M the Claimant, the General Sec-rotary, The Lakshmi Vilas Bank Employees Union, Chennai and the Management of Lakshmi Vilas Bank Ltd., Chennai).

BETWEEN

The General Secretary, I Party/Claimant Lakshmi Vilas Bank Employees

Union, Chennai.

AND

The Chairman and Chief

Executive Officer,

Lakshmi Vilas Bank Lid. II Party/Management 4497- APPEARANCE .

For the Claimant Sri D. Hariparanthaman

and V. Ajoy Khose, Advoactes.

For the Management M/s T.S. Gopalan & Co.

Advocates

The Govi. of India, Ministry of Labour in exercise of powers conferred by clause (d) of sub-section (I) and sub-section 2(A) of Section 10 of Industrial Dis- pute Act, 1947 (14 of 1947), have referred the concerned Industrial Dispute for adjudication vide Order No. L-12011/54/97-IR(B.I.) dated 23-09-98.

This refcrerce has ecu' rnrdc earlier to the Tfmil

Nadu Industrial Tribunal, wl < re it was taken on file as I.D. No. 126/98. When the matter was pending enquiry in that Tribunal, the Govt. of India, Ministry of Labour was pleased to order transfer of this case from that Tribunal to this Tribunal for adjudication. On receipt of records from that Tribunal, the case has been tak:n on file as I.D. No. 525/2001 and notices were sent to the counsel on JOCOR¹. on either side, informing them about the trans.fi.-r of this case to this Tribunal, with a directkn to appear tvfore this Tribunal on 9-3-2001. On receipt of notice from this Tribunal, counsel on either side present with their respective parties and prosecuted this case further.

moaning of section ?(s) of Industrial Disputes Act. The wages, allowances and other service conditions of the workmen for the Respondent bank are deter- mined by industry-wise awards and settlements. In the y^ar 1952 the National Tribunal gave an Award popularly known fts 'Sastri Award'. The said Tribunal observed that 'when an employee joins the service of Bank he is expected to w6rk of any place as per the instructions of the Management, governed by the interests of the institution determines.' As per that Award 'transfers arc normally incidence for the working of the bank and they must be left to the discretion of those who guide the policies of the bank and manage its affairs.' The National Tribunal had also directed in that Award that 'in general, the policy should be to limit the transfers to the minimum consistent with the banking needs and efficiency. As far as the subordinate cadie arc concerned the Tribunal held that there should be no transfers ordinarily and if thcTC are any transfers at all, they phould not be beyond ihe language area of the person so transferred.' Havirg legtrd to the precisions cf of the Srstii Award, the Management of the bank is empowered to transfer the" clerical staff ?o long as the transfer is within the state or the language area. The normal practice in the Respondent bank is that wherever vacancies in clerical staff in any place arise consequent to promotion from clerical cadre to officer ccdre or when vacancies take place conse- quently transfers effected on request, then to The extent of vacancies arising, the brink will have

AWARD

The Ikciustiial Dispute referred to in the above order of reference by the Central Govt. for adjudi- cation by this Tribunal is as follows:—

Whether the action of the Management of Lakshmi Vilas Bank Ltd. Kaiur in not framing fair transfer policy io Iheir employees is justified? If not to what relief the employees/Union is entitled?

2. The Industrial Di;putc between the paities is

briefly as follows:—

transfer policy/guidelines ard do made demand against vindictive, malalide and ccmparsioia'c transfers in order to put an end to arbitrary transfers and also to solve various grievance of ilv workmen. The Respondent bank/Maragumert declare 1 ? policy relating to transfers by their ir-cular dated 18-4-1988. It is contended by the PetiiioniT Ui ion that it was a policy decided unilaterally without corsuHing ihu- petitioner Union. Some of the turms of the i,aiel policy weic objectionable ard ?omc of the terms had to be included or modified. The Bank/Manegenvrt is cf the cpinion that it is not possible- to p-oscnb any minimum pc iod of service for the clerks in any particular branch/place. In fact, transfers are effected only becaurc cf requesis for postirg of clerical staff or because of vPcancic-s arising conse- quent to promotion. It is the contention of the Pctit:oncr Union that even the transfer policy unilaterally declared by the bank was pot strictly followed and the Respondent/bank started effecting transfers to the whims and fancies again and contrary to their own policy/guidelines. Therefore the Pet'- tionor Union sought some modification/inclusion in4498 THE GAZETTE OF INDIA : AUGUST 25,. 2001/BHADRA 3, 1923 [PAM II—Szt, 3(ii)] unfair. The policy cannot be said to bo unfair merely because no minimum period of service for transfer is prescribed. The transfer policy of each bank is based on its requirements and business needs. No employee can claim a right of choosing the place of work and there fore, the power to transfer cannot be restricted to suit the requirements of the employees. The Demand of the union that there should be minimum period of service before an employee could be considered for transfer and transfer should be made only to accommodate requests, is wholly unfair and unjustified. None of the grounds urged by the Petitioner Union calls for interference by this Court. The transfer policy adopted by the Respondent bank has worked out satisfactory and if at all objections were raised, they were made for personal reasons. There was no dispute on transfer between 1988 and 1995. The Transfer policy of the Respondent Bank is not an arbitrary one. Since there is a transfer policy, the submission of the petitioner does not merit consi- deration. The office bearership in the Union was never the consideration for effecting the transfer. The alterations demanded by the Petitioner Union cannot be accepted as it will put unreasonable fetters on the managerial functions of the bank.

3. When the matter was came up before the Tamil Nadu State Industrial Tribunal for enquiry, docu- ments were marked by consent of both the parties as Ex. Ml to M5 Subsequently, the case has been transferred to the file of this Tribunal. Here the documents were marked by consent as Ex. Wl to W3. No oral evidence has been let in on either side. The learned counsel on either side have advan- ced their arguments.

4. The point for my consideration is—

"Whether the action of the mangemant of Lakshmi Vilas Bank Ltd., Karur, in framing the transfer policy is unfair to their employees If the transfer policy adopted by the Respondent/ Bank is unjustified, to what relief the employees/ Union is entitled ?

Point :

It is admitted that the Respondent Bank/Manage- ment had formulated the policy relating to transfer and it was adopted as the guidelines to be followed by the bank and the same were codified in the form of circular No. 26/88 dated 18-4-1988. The zerox copy of the transfer policy is Ex. M l. The Petitioner Union has not pointed out how the transfer policy is unfair. In Ex. Ml Transfer Policy, under the heading Request Transfer, Clause No. 10 reads as follows

the said transfer policy but the Respondent bank did not come forward to negotiate any settlements. It is the contention of ,he Bank/Management that iho policy stipulates that no employees shall be allowed to continue in the same place/branch for more than seven years. It is only afier, such employees subjec- ted to transfer, the other employees with lesser service are considered for transfers. The said policy adopted by the bank/Management has been to meet the bank's needs and exigencies of administration and also to protect the interest of the employers, who have for special reasons may seek transfer for the particular place/town. The said policy provides adequate safeguards against abuse or misuse of the power to transfer. It is the further contention of Bank/Management that every year when a transfer list is released, invariably the petitioner union raised objection on behalf of certain employees who were transferred without any rhyme or reason little realizing that the transfers of the bank are done in conformity with the laid down policy. Any pres- cription of minimum qualifying period of service to K- considered nor transfer will only reduce the numbe of employees who could be considered for transfer and thereby it will only cause surious prejudice to the members of the clerical staff, who have for genuine reasons made a request for posting to a particular place. The Petitioner/Union had 'ought medificat'en and inclu ion in guideline No. 10 relating request transfer as to outer limit for iemaining in the particular piacc/'b.anch. Clause 10 in the Formulated Policy reads that 'no employee shall bo allowed to continue in ihe same place/town/branch for more than seven years'. The Petitioner Union wants to modify it as ".•in employee is liable to transfer on completion of tun years in a branch/centre, irrespective of sex, in order to accommodate long pending requests of the emlo^ee. Tne petitioner Union likes to have two more guidelines as to request transfer stating that the app'Jcation received shall be classified into thrco categories as (a) medical, (b) verge of retirement and fc) general and the same shall be registered according 11 the -date of receipt of Application at the branch love' and that as and when vacancies arise in a branch omej/cjuter, the ponding applications shall be consi- dered fro n each category in a ratio of 1:1:1. T he modification sought for is just and reasonable. As far as the other guidelines, there is no dispute or difference to adopt the guidelines formulated by the Respondent/Bank in the transfer policy. The Res- pondent/Bank had contended that the transfer policy has been invoked for the last ton years. As transfers are made within the framework of the transfer policy, there is no scope to allege any victimization or unfair labour practice. Such being the case, there is no warrant or justification to modify the policy. The Petitioner has not pointed out hpw the policy it

"No employee shall be allowed to continue in the same place/town/branch for more than seven years,"4499 The Petitioner Union lias took an objection to this clauso that it has got to be modified as an employee is liable to transfer on completion of ten y^ars of service in the branch/centre irrespective of sex in order to accommodate tho long pending request of the employees, l'licy have fuilhcr contended that Jiis modification in the transfer policy is just and reasonable and as far as the other guidelines, there cannot be any dispute or difference between the parties to adopt the same. In addition to that, they have contended that two more guidelines have to be included to the request transfers as (1) the applica- tion received shall be classified into three categories as :

(a) medical

fb) verge of retirement, and

(c) Genera).

of posting women employees, then the request trans- fers would be unduly delayed end thereby the emp- loyees with genuine reasons for posting to a parti- cular reason will be seriously affected. It cannot be denied that if employees are allowed to stay in the same branch for ten years, there will be no scope to subject them to exposure to dilfercnt envi-onments or develop their skills' and professional capabilif.es. Further, in adopting such a policy, an employee is not liable to be transferred on completion of ten years of service in a branch will frustra'e the growth of bank. As per the present transfer policy under Ex. Ml, the Respondent/Bank will definitely transfer a person, after seven years of service in a particular placc/town/brfnch. L is also admitted that an promt 1H n ir on request transfer, on employees can be disUirbcd from his place of service within tin. stipulated ptnod of servict. Though the Petitioner Union has suggested that period of retention of a workman in the same place as ten years instead of seven years, no reason has been given by the Peti- tioner/Union to substantiate their stand to hold that it is against the interest of the workman. Further, for request transfer on genuine reason, somebody must be disturbed. Under such circumstances, *hu Petitioner Union canm t make a demand that the persons sought to be disturbed on this ground is not liable to tran fer, since he has not completed ten yeais of service in that particular branch. The genuine reasons like an employee joining the spouse, parenl;' treatment, the place in whk'h they served is lacking good treatment for the employees ill health have got to be considered while effecting transfer of people to oblige the empH yecs who reque-t the Iramfei, That cannot be denied. When such being the case, fixing up of a term or period often ynars of serwu in a branch/centie, irrespective of sex, in order to accommodate long pending requests ot emplovees, a,s suggested by the Petitioner Union cpnnot be con sidered as a favourable one for thf employees them selves.

and that the received applications shall be registered according to the date of receipt of the applications at the branch level and that (2) as aud when vacancies arises in the branch/office/ccnirc the pending appli- es Lions shall be considered from each category in the ration of 1 : 1 : 1. It cannot be disputed that the Management has effected transfers only because of requests for posting of clerical staff or because of vacancies arising coniequent to promotion. As per the present policy of the Respondent/Management/ Bank no employee shall be allowed to continue in the same plac/branch for more than seven years. It is only after, such employees are subjected to transfer the other employees with lesser service arc considered for transfer. This contention of the Respondent/Bank in their Counter Statement has not been disputed by the Petitioner Union as incorrect. It is the contention of the Respondent/Bank that any prescription of a minimum qualfying period of service to be considered for transfer is only reduding tho number of employees, who could be considered for transfer and thereby it will only cause serious pre- judice to the members of the clerical staff, who have for genuine reasons made a request for posting on a particular place has not been disputed by the Peti- tioner Union as an incorrect one,

6. Further, as argued by the learned counsel for tho Respondent/Bank, bank is not for the employees alone and it is for the best interest of the organi- nization and its employees. The purpose of the policy adopted by the Respondent/Bank is to avoid arbitraryness and it cannot be for the convenience of the employees only. Ex. M5 is a statement of clerical stalT, who were working in the branches more than ten years as on 30-9-2000. It is argued by the learned counsel for the Management that out of the total number of employees of 1925, 67 persons shown under Ex. M5 are only employees who had put in more than ten. years of service in a particular place/ centre. It is not disputed. It can be accepted that the transfers on medical ground comes under compas- sionate grounds and that has to be considered first.

5. The next contention of the Respondent/Manage- ment that the bank employee women who consti- tute approximately 20% of the clerical staff and those women were invarhbly posted to urban and scml- urban areas and they are not posted to branches situated in distant villages If Clause 10 of the Transfer Policy is to be modified as suggested by the Petitioner Union that an employee is Lable to tiansfer on completion ot 10 years of service in a branch/ centre, irrespective of sex, it will not be beneficial or convenient to the women employees. If in filling up the vacancies caused by iequ^-st transfers from emp- loyees serving in distant villiges with no possibility 2497 O1/2001--114500 THE GAZETTE OF INDIA : AUGUST 25, 2001/BHADRA 3, 1923 [PART II—SEC. 3(ii)] such circumstances on the basis of the available materials in this case, this Tribunal can easily come to the conclusion that the alterations demanded by the Petitioner Union cannot be accepted, since it is wholly devoid of merits. So, it is found that the action of the Management of Lakshmi Vilas Bank Ltd., Karur in framing the transfer policy to their employees is fair and justified. Hence, the employees/ union is not entitled to the relief prayed for. Thus, 1 answer the point accordingly.

7. In the result, an award is passed holding that the demand of the I Party/Union is devoid of merits and hence the claim of the 1 Party/Union is rejected as the 1 Party/Union is not entitled to the relief, as prayed for. No cost.

(Dictated to the Stenographer, transcribed and typed by him, corrected and pronounced by me in the open court on this day the 21st June, 2001).

K. KARTHIKEYAN, Presiding Officer

Witnesses Examined :

On either side : NONE,

DOCUMENTS MARKED :

For I Party/Claimant :

Ex. Date Description No.

Wl 17-01-90 Xorox copy of the Settlement bet- ween the I Party/Union and the Management.

W2 14-05-95 Xerox copy of the strike notice issued by the J Party/Union to the Management alongwith Anne- xures regarding transfer of 18 workmen,

W3 Nil Copy of list of staff members (21 in numbers) Transferred on comple- tion of 10 years service.

For the If Party/Management :

Ml 18-04-88 Xerox copy of circular No. 26 of 88 (Transfer Policy for Award stall).

M2 NIL Xerox copy of statement showing number of Branches/Officers Division-wise as on 30-9-2000.

M3 NIL Xerox copy of the statement sho- wing number of Clerical staff Division-wise and sex-wise as on 30-09-2000.

\f4 NFL Xerox copy of statement showing recruitment of Clerical stall yeai- wise.

For the vacancies caused due to retirement fioni service, for posting employees in I hose places on request trai rfcr or on promotion, suflit lent provisions have been made in the polity now adopted by I he Respondent Bank/Management. It is represented on behalf of the Bank/Management that the applications received for transfers of the employees have beL.n registered according o the date of receipt and thay adopt the policy of 'first come first basis' and it is also stated that as and whin they receive the appli- cations for transfer they arc duly registered and the number given to the same is duly intimaied to the concerned employee. It is also not denied. So while adopting such methods, there cannot be any arbitraryness or unfairness or any victimization. Though it is alleged in the Claim Statcm- nt that the past history and the experience proved that the res- pondent had indulged in unfair labour practice by transferring the office beaivrs and members of the union to victimize¹ them for their legitimate trade union activities and that the workman wore subjected to transfers in the gui'e of administrative exigencies, no acceptable evidence has been placed before this Court to substantiate that stand. It is admit ed that this transfer policy, came into force f.om 18-4-1988 is in vogue for the last twelve years. It cannot be denied that no employee can claim the tight of choosing the place of work. Therefore, I he power to transfer cannot be restricted to suit the require- ments of the employees. Though it is alleged in the Claim Statement that the transfer policy adopted from the year 1988 by the Respondent/Bank has been violated by the Management, no particulars has been given by the Petitioner Union to substantiate that contention. No acceptable evidence has also been placed before this Tribunal to conclude that the Bank/Management has used its power arbitrarily in transferring the employees as a victimization, The demand made by the Petitioner Union that there should be minimum period of three years service before an employee could be eon'idcred for transfer and transfer should be made only to accommodate the requests is wholly unfair and unjustified, as it is contended by the Respondent in ihe Couiter State- ment. As par the transfer policy mentioned in Ex. Ml, it is seen that sufficient safeguards are provided. So no exception can be taken to the policy adop!cd by the Respondent bank. The altciations deman- ded by the Petitioner Union will only put unreasonable restrictions on the managerial functions of the bank. No materials by way of substantial evidence is placed before this Tribunal in support of Ihe allegation of the Petitioner Union in their Claim Statement that the Respondent Bank/Management did rot adhere to the said guidelines/policy and the present transfer policy adopted by the Respondent Bank/Managc- men is ;n unfair and unjustifiable one. So, under

M5 NIL Xerox copy of statement showing clerical staff working in branches year-wise for more than 10 years.

New Delhi, the 31st July, 2001

S. O. 2166.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Cen- tral Government Industrial Tribunal/Labour Court, Bangalore as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of Karnataka Bank Limited and their workman, which was received by the Central Go- vernment on 30-7-2001.

[No. L-12012/78/90-1 R(B-I)

AJAY KUMAR, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT

"Shram Sadan", G. G. Palya, Tumkur Road, Yeshwantpur, Bangalore-560022.

DATED : 5th JULY 2001

PRESENT : HON'BLE V. N. KULKARNI PRESIDING OFFICER

C.R.No. 29/90

1 Party 11 Party

Shri S.L. Rajanna, The Chairman, C/o General Secretary, Karnataka Bank

Limited,

Dharwad District Bank Head Office, Employees Association, Kodialbale, No. 9, Mangalore 575 003. Corporation Building, Broadway, Hubli.

APPERANCES :

I Party : M, Ram Rao,

General Secretry

II Party : V.H. Upadhyaya

Advocate

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 Disputes Act, 1947 has referred this dispute vide Order No. L-12012/78/90-IR.B.II dated 14-05-1990 for adjudication on the following schedule.

SCHEDULE

"Whether the action of the management of Karnataka Bank Limited, in dismissing Shri S. L. Rajanna, Attender of Chickmangalour brancti w.e.f. 17-4-89 is justified? If not, to what relief the said workman is entitled to?"

2. I party was working with the II Party I par y committed misconduct. Charge sheet was issued and enquiry was held. On the basis of the Enquiry report, the I party workman was dismissed and therefore this Industrial dispute is raised.

3. Parties appeared and filed claim statement and counter statement respectively.

4. The case of the I party in brief is as follows :

5. That the I party joined the services of the II party as temporary sub staff in December 1969 and he worked sincerely and honestly. His service were confirmed. The I party has been an action trade union worker and the management transferred him from Chickodi to hubli in order to harass him. He was suspended. Charge sheet was issued and enquiry was held.

6. So far as the enquiry is concerned, it is said that the same is against the provisions of Bipartite Settlement and principles of natural justice. I party has explained in detail as to how the enquiry is not fair. It is the further case of the I pary that the En- quiry report is not correct and the punishment is illegal, and therefore it is prayed to pass award in favour of I party.

7. The case of the TI party in brief is as fol- lows :

8. That the 1 party was working as attender in Chickodi and he was not sincere and honest in work- ing and he made false entries in the register, forging the initials. He was kept under suspension. En- quiry was held against him.

9. So far as the enquiry is concerned, the case of the management is that the enquiry is proper and legal. Full opportunity was given and he partici- pated in the enquiry. He was given full chance. Ft is the further case of the management that the action of the management is correct.

10. It is seen from the records that the Domestic Enquiry was held fair and proper because I party filed memo conceding Domestic Enquiry. T I I CT4502 THE GAZETTE OF INDIA : AUGUST 25, 2001/BHADRA 3, 1923 fPARr II—SEC. 3(ii)] after mater was posted for arguments and I have heard bclh sides in detail.

11. I have perused all the enquiry papers and documents. The 1 parly has filed written arguments and 1 have gone through the same. The main argu- ment of the 1 party workman is that, according to Bipartite settlement, the management was not justi- fied in transfering sub staff. So far as enquiry it is said that chance was not given to 1 party. It is a fact that the enquiry is concceded by the 1 party as fair and proper and, therefore, there is no merit in the said contention with arguments.

10. In my opinion, the management has proved the misconduct, and the enquiry papers and docu- ments of the management are sufficient to say that the misconduct is proved and there is no merit in this reference. Much was made and argued that the enquiry is not proper and report of the Enquiry Officer is perverse. I am of the opinion that there is no merit in this contention. The enquiry papers and the material discloses that the mangement has proved misconduct and having said that the Domestic Enquiry is fair and proper, this court has little dis- cretion to reconsider all about the enquiry. In view of these facts, I am of the opinion that there is no merit in this reference.

11. Accordingly, T proceed to pass the following order :

ORDER

Reference is rejected.

(Dictated to the L. D. C. transcribed by him, correc- ted and signed by me on 5th July 2001)

V. N. KULKARNT, Presiding Officer New Delhi, the 1st August, 2001 S.O.1167.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the awaid of the Cen- tral Government Industrial Tribunal/Labour Court, Chennai at shown in the Annexure in the Industrial Dispute between the employers in relation to the mangement of Southern Railway and their workman, which was received by the Centra] Government on 31-7-2001.

[No. L-410]2/138/95-lR(B-I)]

A JAY KUMAR, Desk Officer ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRTBUNAL-CUM-LABOUR COURT, CHENNAT

Friday, the 29th June, 2001

Present : K. KARTH1KEYAN,

Presiding Officer

INDUSTRIAL DISPUTE NO, 409/2001 (Tamil Nadu State Industrial Tribunal I.D.No.97/96) (In the matter of the dispute for/adjudication under clause (d) of sub-section (I) and sub-section 2(A) of Section 10 of the Industrial Disputes Act, 1947 (14 of 1947), between the Workman Shri C. Kuppusamy and the Management of The General Manner, Southern Railway.)

BETWEEN Sri C. Kuppusamy : 1 Party/Workman AND

The General Manager, : TI Party/Management Southern Railway, Appearance :

For the Workman : Sri A. Mani,

Advocate

For the Management : Sri P. Arulmudi,

Advocate

The Govt. of India, Ministry of Labour in exercise of powers conferred by clause (d))of sub-section (I) and sub-section 2(A) of Section 10 of Industrial Dispute Act, 1947 (14 of 1947), have rerlcrcd the concerned Industrial Dispute for adjudication vide Order No.L-41012/138/95-IR(B.I) dated 29-10-96.

This reference has been made earlier to the Tamil Nadu Industrial Tribunal, where it was taken on file as I.D. No. 97/96. When the matter was pending enquiry in that Tribunal, the Govt. of India, Ministry of Labour was pleased to order transfer of this case from that Tribunal to this Tribunal for adjudication. On receipt of records from that Tribunal, the case has been taken on file as I.D. No. 409/2001 and notices were sent to th; counsel on record on either side, informing them about the transfer of this case to this Tribunal, with a direction to appear before this Tribunal on 22-2-2001 with their respective parlies. On receipt of notice from this Tribunal, both the parties with iheir respective counsel on record appeared and requested lime to prosecute the case further.

Subsequent to the filing of vakalat by the advo- cate for the I Party/Workman in the place of the authorised representative on 12-3-2001, neither the I Party nor his counsel ever appeared before this Court, till the matter is posted final!) foi e rv iry on 21-6-2001.

Subsequently, he fell ill during the period from 4-5-88 to 4-8-88 and remained in sick list upto 15-3-1989. When he produced the medical certificate for regu- larizing the sick period of leave, he came to know that his name was removed from the rolls of Loco lroreman, Jolarpet. His removal from service is against the principles of natural justice, since no notice was given to him and no enquiry was conduct- ed for any alleged misconduct. The appeal he pre- ferred to the Appelhe Authority and the Review Authroity were also ended in failure. A co-worker Sri Antony of Mechanical Depait .icntt Thondiarpet, Marshalling Yard, who was removed from service was taken back to duty with all consequential benefits. As per the orders passed by the Central Administrative Tribunal, Madras Bench in O.A. No. 144/1989 and the denial of similar benefits to the Petitioner by the Respondent/Management amountslo unfair labour practice. The Respondent/Manage- ment has no. obtained prior permission from the competent authority before imposing major penalty. The action of the Respondent is not in good faith but in colourable exercise of power. Hence the action of the Management in removing him from ser- vice is illegal and justified and the same has to be set. aside, w'Lh a direc ion Lo ths Responden¹/ Management to reinstate the Petitioner/Workman in service with back wages and all other consequential benefits.

during 1982 to 1983. The- punishment avoided to the petitioner for his urauthoiisod absence have been entered in his scivicc book Ex. Ml in red ink. From the entries in the service book of iht petitioner, it is seen that dining the year 1985 he iemaired absent for 86 days and during 1985-86, he remained absent for 248 days and again he absented himself ficm du

4. The point for my consideration is—

"Whether the action of the Management in terminating the scivices of Sri C. Kuppusamy is legal and. justified? U* not, to what relief the workman is entitled ?"

Point :—

in Ihe or n c t i .t tn tl's cay the 7"th Jvi e. ?00l).

K, KARTIKEYAN, Vai ding Ofliar

Witnesses Examined : For the I Party/Workman ;

None :

For the II Party/Management : M. W. 1 Shri R. Muthusamy

DOCUMENTS MARKED :

For I Party/Workman : Ex, No. Date Description

WI 27-12-88 Xerox copy of letter of Senior Divisional Personnel Manager regarding unauthorised absence of CPC/CLs for more than 3 months.

W 2 21-06-95 Xerox copy of failure of conciliation report of the Regional Labour Commi- ssioner (C), Madras.

For the II Party/Management :

M I Nil Original service book of

Sri C. Kuppusamy.

New Delhi, the 1st August, 2001 an employees Sri AnLony mentioned as person under seial No. I in Ex. WI immediately appro- ached the Central Administi alive Tribunal and got an order for reinstatement, siiue he esiablished that he was nb ent due to ill health. He would farther say tluit ihe r> litioi < t l .s K \H d this indi-itrul dispute seven yean, later in 1995 and has also filed claim petition earlier in Labour Court claiming wages. That Claim Petition is still pending find hence the Petitioner/Workman is not entitled lor reinstatement of service and other relief prayed lor. This evidence of MWI remains unrcbuiied. It is seen from the records available in this case that the Petitioner is a frequent absentee for duty. He has also failed to follow the procedures m< ntioned und.( r 1 ules, while availing leave on mcdicrl grounds. As per Indian Railway Establishment Manual Rule 521 (1) an application for leave on medical certi- ficate made by the railway employee shall be accompanied by a medical certificate given by a Railway Met¹'';! Cffirr. o f i ' rg ;< r ' c i ly as possible the nature and duration of illress. If the railway seivant resides outride the jurisdiction, and requires leave on medical cerrifiea^e, he should' submit within 48 hours a sick c< rtificnte firm the Registered Medical Piactiliorer staging ihe nature of illness and the period for which the Railway Servant is likely to be unable to perform his duties. This procedure has not bsen adopted by the Pelitioner/Woikmnn, when he ab-ented from duty on the alleged, ill health, Further Ihe Petitioner/Workman had chosen to iai'>e this issue as an induitiiaj dispute before the Assistant Labour Commissioner (Central) at Chennai only on 30-11-1993 about five years after Ex. WI order passed by the II Pariy/Managcmtrt. The xerox copy of that petition filed by the I Party/ Petitioner has been fil'd as r. document on his side. All these things go to show lhat the petition filed by the 1 Party/Workman questioning the action of the Management in teiminating his services is devoid of any merits. The available materials on lecord in this case as oral and documentary evidence clearly pioves that the action of the Management in terminating Ihe services of Sri C. Kuppif-amy is legal and justified and he is not entitled to any relief. Thus, I answer the poirt aceojdingly.

5. In the result, an award is passed holding that the I Party/'Worknian/Petrionci is not entitled to any relief, since the action of the Management K justified in terminating the service of the Petitienn Sri C. Kuppust'my. No Cost.

S. O. 2168,—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/ Labour Court, Bangalore as shown in the Atitiexurc in the Industrial Dispute between the Employers in relation to the management of Karnataka Bank Ltd, and their workman, which was received by the Central Government on 31-7-2001.

[No. L-12OI2/32/84/D. IV (A)-1R-B,.-III/]R (B-I)] (Dictated 1o ihe Stenographer, transcribed and typed by him, corrected and pronounced b\ nit

AJAY KUMAR, Desk Officer4506 THE GAZETTE OF INDIA : AUGUST _25, 2001/BHADRA 3, 1923 [PART II—SEC. 3(ii)J ANNLXURL

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM LABOUR

COURT

'SHRAM SADAN', III MAIN, 111 CROSS, ]] PHASE, TUMKUR ROAD,

YESHWANTHPUR, BANGALORE Dated : 19th July, 2001

PRESENT

HON'BLE SHR1 V. R KULKARNI, B. Com LLB PRESIDING OFFICER

CGIT-CUM-LABOUR COURT,

BANGALORE

C. R. No. 62/92

AWARD

1 PARTY II PARTY Shri Ashok S. Hegde, The Chairman, Son of Shri Suryanarayana Karnataka Bank Ltd.. Hegde, H. O. Mangalore, Jayashree Nivas, Mangalore-575003 Yellapur Road, (Advocate-Shri Ramcsh Sirsi, Upadhya) Noth Kanaia Dist. (Advocate Shri N. G. Phadke)

1. The Centra] Government by exercising the powers conferred by clause (d) of sub-section 2A of the Section 1 of the Industrial Disputes Act, 1947 has referred this dispute vide order No. L-12012/32/84/D. IV (A)-JR B. Ill dated 20-7-1992 far adjudication on the following schedule.

•'Whether the action of the Management of Karnataka Bank 1 td, in dismissing Shri Ashok S. Hegde vale order No. PIR : 13364/78 dated 1-12-78 wn-. justified '? If nol, to what relief the woikman is entitled to" ?

2. The first party was working with the second Party. Charge Sheet was issued for misconduct and enquiry was held. On the basis of enquiry report first party was dismissed from service and therefore this industrial dispute is raised.

3. Parties appeared and filed Claim Statement and Counter respectively.

4. The case of the Second Party in brief is as follows :

5. The first party joined the services of the Second Party Bank as Clerk and was working as a Cashier in the month of August 197/ at Haveri Branch of the Second Party and he had rendered sincere and honest services in the Second Party and there is no adveise remark against him regarding his services.

6. It is the furl her case of the first party that on 5-8-1977 one Shri A.A. Khan presented a cheque for Rs. 5,000/- bearing No. 530295 drawn by one Shri L. D. Kamat, who was also a customer of the Second Party Bank. At the time when cheque was presented by Shri Khan, the acting manager had gone out and since Shri Khan represented that he wanted to encash the cheque urgently as Shri L. D. Kamat needed the money immediately, the first party disbursed the a noun of Rs. as per the cheque. When the said cheque was presented for encashment, there was heavy rush in the Bank. The first party did not suspect the guineness of the cheque as the entry regarding the presentation of the cheque was made by the ledger clerk and as the said Shri Khan used to present the cheque^ of Shri L. D, Kama' very often.

7. Tt is the further case of the first party that the acting manager on his return to the office has informed the first party that he has suspeckd I he genuine- ness of the signature of SVi L. D. Kamat on the cheque and that the signature must have been forged. Shri Khan returned the money which he had collected by presenting the said chequu and the same was credited to the account of Shri L. D. Kamat. The first party acted in a bona fide manner and ac.'ed to safeguard the interest of the Bank a.id collected the money from the said Shri Khan at the risk of his life. Shri Khan in a deceitful manner and by misrepresentation received the amount from the Bank by presenting the choque. First Party made sincere effort and got the money back.

8. In view of the above facts the punishment of dismissal is too harsh and the enquiry officer is not correct therefore, the first party has prayed to pass award in his favour.

9. Tin case of the Second Party in brief is as under

10. It is an admitted fact that the first party was working since August, 1977, He was not a sincere and honest worker. The allegations made by the first party are not correc . Enquiiy was conducted by complying wi h all the pro- visions oflhe Service Rules a n d ' he principles of natural justice. The enquiry officer submitted a report holding that the first party is guilty of the charge of fraudulent withdrawal of a sum of Rs. 5000/- from tlu. account of a customer of the bank by name Shri L. D, Kamat. He was rightly dismissed after giving salary.

11. The allegation of the firsL party that the said Khan represented that lie wanted to encash the cheque urgently and he did not suspect the genuineness of ,he cheque and that Khan used to present the cheque of L. D. Kamath are incorrect.

12. The management for these reaosns has prayed to reject the reference.

13. It is seen from the records that this court by its order dated 2nd March 1999 is held that the Domestic Enquiry is fair and proper. Thereafter the mutter wa-, posted for arguments on merits.

14. I have heard both sides in detail, f have perused tho evidence and citations given by the learned counsel for the first party.

15. MW 1 has given detailed evidence about the D.E. The first parly workman has given evidence saying that the enquiry is not correct and he wanted to produce letter from Shri Khan but that was not allowed,

16. Now this court has held that the enquiry is fair and proper.

17. It was vehemently argued by the ^ r n ed counsel for the first party that in the instant case there is no loss to the bank and by over sight the cheque was encashed by Khan and Subsequently the first party made all sincere efforts to secure Khan and deposited the amount in the account of Shri Kamat and therefore the punishment of dismissal is too harsh and this court can take any lenient view and punishment of dismissal can be set aside.

18. In support of this arguments he relied the following decisions :

(i) 1984 (2) LU-203

(ii) 1978(2) SC cases 42

(iii) 1982(3) Supreme Court Cases 346 (iv) 1984 (2) Supreme Court Cases 569 (v) 1988 (73) FJR 474

19. I have read the above decisions carefully. He also relied 1984 LAB 1C NOC 6 (GUJ.) decision. In order to appreciate this argument, I have carefully pursued all the enquiry procedures before the court. The management has not established that the sum of Rs. 5000/- was not credited immediately in the account of L. D. Kamat.

20. Tn my opinion on persuing the enquiry papers and materials placed before the enquiry officer, it is not established that the first party fraudhntly permitted to encash the C'I cque. 2497 Gl'2001 -12

2). Keeping in mind the principles held in the above decisions, ] am of the opinion that this is a fit case in which the management can be diiected to reinstate the first party in his original post from the date of dismissal. Accordingly I proceed to pass the following order :

ORDER

The reference is partly allowed and the order of dismissal is set aside, The management is directed to reinstate the first party with continuity of service from the da'e of disimissal and in the given circumstances no back wages are allowed.

(Dictated to PA transcribed by her corrected and signed by me on 19 h Julv, 2001)

V. N. KULKARNJ, Presiding Officer New Delhi, the 1st August, 2001 S.O. 2169.—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, Bangalore as shown in the Anncxure in the Industrial Disputo between the employers in relation to the management of State Bank of Mysore and their workman, which was received by the Central Government on 31-7-2001.

[ No. L-12012/33/98-IR (B-T)],

[No, L-12012/35/98-1R (B-I),]

[No. L-l2012/34/98-1R (B-I)]

AJAY KUMAR, Desk Office4508 THE GAZETTE OF INDIA : AUGUST 25, 2001/BHADRA 3, 1923 [PART II—She. 3(ii)] ANNEXURL

BEFORE THE CENTRAL GOVERNMLNT INDUSTRIAL TRIBUNAL-CUM-

LABOUR COURT

"SHRAM SADAN"

III, MAIN, III CROSS, II PHASE, TUMKUR ROAD, YESHWANTHpUR, BANGALORE Dated 19th J uly, 2001

Pfesont

HON'BLE SHRI V. N. KULKARNI, B.Com, LL.B.

Presiding Officer

CG1T-CUM-LABOUR COURT, BANGALORE

C.R. NO. 77/98

I PARTY II PARTY

Shri M. Y. Mftruti, The Regional Manager, C/o. The General Secre- State Bank of Mysoic, tary, Hubli 20

Dharwad District Bank (Advocate Shri R, Employees Association, Narayana).

9 Corporation Building

Broad Way,

Hiibli 20 (Advocate Shri M. Rama

Rao).

AWARD

1. The Central Government by exercising the powers conferred by clause (d) of sub-section 2A of tlw Section 10 of the Industrial Disputes Act, 1947 has referred this dispute vide order No. L-l2012/33/ 98-IR (B-I) dated 1-9-98 for adjudication on the following schedule :

SCHEDULE

"Whether- the action of the management of State Bank of Mysore in terminating the services of Shri M. Y. Maruti w.e.f. 30-12-95 is justified ; If not, what relief the concerned workman is entitled to ?"

C.R. No. 78/98

I PARTY II PARTY

Shri Girish Kulkami, The Regional Manager, C/O. Trio General Sccre- State Bank of Mysore, tary, Hubli 20

Dharwdd District Bank (Advocate Shri R. Employees Association, Narayana),

9 Corporation Building

Broad Way,

Hiibli 20 (Advocate Shri M. Rama

Rao).

AWARD

The Central Government by exercising the powers conferred by clause (d) of sub-section 2A of the Section 10 of the Industrial Disputes Act, 1947 has referred this dispute vi.de order No. L-12012/35/98- IR(B-I) dated 28-8-98 lor adjudication on the fol- lowing schedue :

SCHEDULE

•'Whether the action of the management of State Bank of Mysore in terminating the services of Shri Girish Kulkarnr w.e.f. 30-12-95 is justified ? If not, what relief the concerned workman is entitled to ?"

C.R. No. 79/98

J PARTY TI PARTY ..

Shri G. K. Laxman, The Regional Manager, C/o. The General Secre- State Bank of Mysore, . tary, Hubli 20

Dharwad District Bank (Advocate Shri R. Employees Association, Narayana).

9 Corporation Building

Bi'oad Way,

Hubli 20 (Advocate Shri M, Rama

Rao).

AWARD

The Central Government by exorcising the powers conferred by clause (d) of sub-section 2A of the section 10 of the industrial Disputes Act, 1947 has referred this dispute vide order No. (L-l2012/34/98 IR(B-I) dated 28-8-98 for adjudication on the fol lowing schedule :

SCHEDULE

"Whether the action of the management of State Bank of Mysore in terminating the services of Shri G. K. Laxman w.e.f. 30-12-95 is justified 7 Tf not, what relief the concerned workman is entitled to 7"

COMMON AWARD

2. It is seen from the records of these 3 references that a request was made to club these 3 cases and evidonce is also recordod as common evidence and common arguments were advanced by the parties and requested to dispose off these 3 references by clubbing them because the dispute is one and the same.

3. With this background the award is passed in CR 77/98 with a direction to keep a copy of this in CR No. 78/98 and CR No. 79/98.

4. In CR No. 77/98 the first party was working with tha second party as sub staff and he is termi- nated therefore dispute is raised and reference is made.

5. Parties appeared and filed Claim Statement and Counter respectively.

6. I have carefully perused the Claim Statement given by the 3 workmen. Similar allegations are made in all the paras of the Claim Statement. In order to dispose off these three disputes the case of the workmen in brief is as under :

7. In CR No. 77/98 the request is to set aside the termination order w.e.f. 30-12-95. The same is the prayer in two other cases.

8. Tn CR No. 77/98 the first party joined the services of the second party as sub staff in a clear vacancy from 28-2-1995 and he worked continuously upto 30-12-1995.

9. In CR No. 78/98 the first party joined Ihc services of the second party at its Davange/re Mandi- pct Main Branch as Sub Staff on 13-7-1993.

10. In CR No. 79/98 the first party joined the services of the second party at its Davangere Mandi- pct Main Branch as Sub Staff on 18-1-1993 in a clear vacancy of sub staff.

1). Case of !he first party workmen in all these cases that they worked from 8.30 AM to 7 PM with a break of half an hour rest on all the working days. They also worked on many Sundays and Public holidays without any payment.

12. In CR.No. 77/98 the first party was paid Rs.35/- per day for about first eight months of his service and then at Rs.45/- per day.

13. In CR.No. 78/9S the first party was paid Rs.25/- per day for about six months of his service and then at Rs.30/- per day so as also the same pay- ment was made in CR.No.79/98.

14. It is the (urthei case of the workmen that they wc.'e not paid any over time wages for extra hours of work done by 1 hem as per para 2 of the Claim Statement.

15. It is the fuithei grievance of the workmen that on 29-12-1995 the Branch Manager informed them that the Regional Manager directed him not to continue the services of them from 30-12-1995.

16. Jl is their common grievance that they were not given arty notice oi compensation or arrears before termination.

17. It is their further case that ihey made many representations but nothing was done. They have staled it in para 5 and 6 of the Claim Statement about conciliation proceedings. They have prayed to pass award in their favour by setting aside the termina- tion order.

18. I have carefully perused the counter filed by the management in all the 3 cases an cl ihi giound giyen are similar.

19. The main contention of the management is that all the allegations made by these 3 workmen are false except the fact that they were taken foi work dur- ing the year 1993,1994 and 1995. It is not correct that they have continuously worked. It is also not correct that they have worked from 8.30 AM to 7 PM. It is not correct to say that they have, worked on holidays.

20. Further contention of the management is that they were working as Casual employees on tom- porary basis and they were paid casual daily wages. The payment of bonus, leave with wages etc. does noi arise. The wages were accounted as Sundiy Ex- penses. The first party workmen might have signed the peons Delivciy Book on such days when he worked on casual basjs. It is false that the manager called them and directed to discontinue the work, They are not teiminated because they were not employees at all.

21. In Cr.No.77/98 the workman had worked only 235 days in a block of 12 months a.id in CR.No.- 78/98 the workman had worked only for 98,235 and 135 days during 1993,1994 and 1995 as stated in para 3 of the Counter as temporary casual worker.

22. In CR.No. 79/98 the workman had workeJ only for 94,16 and 193 days duting 1993,1964 a n' 1995 respectively.

23. Further contention of the management is that they have not worked continuously for 240 days and the question of Seniority etc. does not arise for temporary casual workmen. The lirst party workmen are not entitled tor any relief. The management in these 3 cases have prayed to reject the reference.

24. I have already slid that common evidence be recorded. On behalf of the management MW1 &. MW2 are examined. On behalf of the 3 workmen Shri G. K. Lakshmana was examined asW'Wl a:id gave a common evidence.

25. We have the cvidrnc; of MW1 & MW2 who have categorically stated that the workmen have not worked for more than 240 days in any givan year. MW2 has said that the work used to be given them during the bank hours. They were working between 10.30 A.M. to 5.30 P.M. and the occasions they have worked for extra hours is not correct. So also is the evidence of MVV1. In the evidence of MW1 certain doe am nts were marked. I have carefully perused all those records consisting of vouchers for having paid wages to the workmen.

26. Against this WWI has slated that he worked from 18.1-93 to 29-12-95, Girish- Kulkarni worked from 13-7-93 to 29-12*95 and M. Y. Maruthi from 28-2-95 to 29-12-95. lie has said that management has engaged him from 8.30 A.M. to 8.30 P.M.

27. Before I proceed further I may say here that there is no consistency in the evidence of WW1 and the stand taken by thorn in (he Claim Statement.

28. I have perused all the documents carefully Management has filed Written Argument. 1 have read them carefully. 1 have heard the union leader who appeared for these workmen in detail.

29. In these 3 references at the vory outset 1 am of the opinion that there is no clear and cogent evidence to establish that these workmen have worked for 240 days continuously as required.

30. WW1 has stated in his cross examination that he used to have the working hours from 10.30 A.M. to 6:30 P.M. This shows that the allegations made by these workmen that they have worked overtime is not correct.

31. He further stated that it is true that on the reverse portion of the vouchers the number of days worked by oach of them was indicated. Ex. M7 and Ex. M8 are the proof of days worked by each of them was indicated.

32. Absolutely there is no clear evidence that these workmen have worked for 240 days continue usly. The documents marked are not helpful to the alle- gations made by tho workmen. Tt is an admitted fact that they were taken as casual workers as kept staff and they have not joined bank as employees in accordance with the Recruitment Rules. There is no material before us to substantiate the claim of the workmen that they have worked continuously for more than 240 days. Ex. Wl will not help the work- men to prove anything. Il is a book and zerox copy which io meant for delivery of local Utters whicb are acknowledged by the addresses by signing books.

33. WW1 has stated in his t ross examination that the book is entrusted to the workmen for delivery of letters. The documents produced by the manage- ment are sufficient to say that none of the workmen worked even 240 days in a block year of 12 months and as such the question of issuing notice, compen- sation etc. does no*, arise at all.

34. I have considered the entire material and the evidonce carefully and I am of the opinion that there is no merit in this references and accordingly 1 proceed to pass the following order :

ORDFR

Reference Nos. 77/98, 78/98 and 79/98 are rejected. (Dictated to P.A. transcribed by her corrected and signed by me on 19th July, 2001).

V, N. KULKARN1, Presiding Officer New Delhi, the ISL August, 2001 S.O. 2170.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Industrial Tribunal, Aluppuzha as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of State Bank of India and the'r workman, which was receiv- ed by the Central Government on 31-7-2001.

'[No. L-120J2/188/99-1R (B-l)]

AJAY KUMAR, Desk Officer ANNEXURE

IN THE COURT OF THE INDUSTRIAL TRI- BUNAL, ALAPPUZHA

(Dated this the 21st day of July 2001) PRESENT :

M. N. RADHAKR1SHNA MENON

INDUSTRIAL TRIBUNAL

I. D. No. 72/99 (C)

BETWEEN

The Deputy General Manager, State Bank of India, Zonal Office, Trivandrum, Kerala SUHe

And

The workman of the above concern represented by Smt. Annamnia Mammcn, Ulavumkandatlu'l Veedu, Pyvally Bhagom, Omalloor village, Kozhencherry Taluk, Pathanamthitta Dist.

Representations :

Sri. V. K. Rammohan Das, ; For Management & C. Parameshwaran, Advocates, Alappuzha

Sri. P. K, Sacldnandfln. : For woikman Advoi atn, Alappuzha4511 A W A RD

1. The Government of India has referred tlijs Industrial Dispute between the above parties in res- pect of the following issues for adjudication to this Tribunal as per their order No. L I 2 JP 1 IV¹ - I.R. (B-I).

"Whether the action of the ma, a^.n nt of State Bank of India in lelanon to their pathan- amlhitta Branch in terminating the services of Smt. Annamma Mam men, Sweeper with effect from 6-11-1997 is justified ? If not, to what relief she is entitled to?"

2. The claim of the workci is that she has been working in pathanamthiVa Branch of the State Bank of India on permanent basis from 1987 on wards carrying out the woiks of a sweeper and such other works allotted to her from time to time. She was disbursed wages by obtaining her signa'ure in vou- chers. While so, she was denied employment from 6-11-1997 without assigning any reason. This amounts to termination of her services. H is arbi- trary, illegal and opposed to principles of natural justice. Therdbie, the worker prayed for passing an award setting aside her lermination and direc- ing the management to i\ instate IKI" in service with full back wages and other consequential benefits.

3. The contention of he management is ihiu Smt Annamma Mammen was a casual woikcr engagd for some odd jobs such as arranging the s afion- ery, purchase of cool drinks, .ea e!c, for cus- tomers. She was no1 rtCruikd t bst-i\ h,g any of the recrunmen. procedures of *he riank. She has not worked for 240 days in any year. She ha.s noi vested rigrU of employment. Her disengagement is not vitiated on any score. Therefore, the management prayed for passing an award aeccp.ing the conten- tions of the management and rejecting the claims of the worker.

4. Evidence in this case consists ol oral evidence of WWI & MW1 and Exts. Wl to W3 and Ext,. Ml series 1 to 128 and M2.

5. From the rival contentions of parties, the issue that arises for my consideration is whether the Jermi- nation of the worker from the services of the Bank is sustainable or not ? What can be reliefs that the worker be granted to in the facts and circumstances of the case,

6. The Point :

It is the case of the worker that she was appointed as a Sweeper in the Bank, But she has not produced any appointment order. She has clearly admitted in her evidence as WWI that she was not issued any appointment letter by the management. It is clearly admitted in het evidence as WWI that there is a permanent sweeper attached to the Bank Therefore, her claim that she was working as a permanciii sweeper cannot be accepted. The worker has not made out that she has worked for 240 days in any year. She has also not made out that her engage- ment was based on any recruitment norms. The management has produced Ext. Ml series vouchers 1 to 128 which evidence that the engagement of worker was casual and wages were paid to her on daiiy rate basis after obtaining her signature in the vouchers. Ext. M2 is the establishment register whe. e the name of the worker does not find a place. Thus the overwhelming materials on record make out the case of the management that she was only a casual worker in the Pathanamthitta Branch of the Bank. Her engagement was made intermittently and sparingly. Ext. W3 is a statement submitted by the management before the Assistant Labour Com- missioner (Central) on 13-5-1999 wherein it is set out that she was engaged for 511 days during the period from 1987 to 1997. As set out above, it is not made out that she has worked for 240 days in any year. Such an employee has no continued right of employ- ' merit as per Industrial Law. So her disengagement from 6-11-1997 is not vitiated by law in any manner. Therefoie, she cannot be awarded reinstatement or back wages or any such reliefs. She has been working in the Bank, though casually and intermittently, from 1987 to 1997. She has been prosecuting the claim all along on the bonafide belief that she has got some vested rights. Considering all these aspects and purely as a measure of compassion, I direct the management to give 15 days wages per year from 1987 to 1997 as ex-gratia. It is clearly set out in her claim statement that she was getting Rs. 45 - per day lastly which is not disputed by the manage- ment. Thus she shall be given 150 days wages- at the rale of Rs. 45'- per day, which will come to Rs. 6,750/-.

7. In the result, an award is passed holding that the termination of service of Smt, Annamma Mammen with effect from 6-11-1997 is not vitiated by law in any manner but directing the management to give Rs. 6,750/- as ex-gratia as a compassionate measure.

(Dated this the 21st day of July, 2001).

M. N. RADHAKRISHNA MENON Industrial

Tribunal

APPENDI X

l.D. No. 72/99 (C)

Witness examined on the side of the management :

MW1 V. V. Ktinju.

Witness examined on the side of the workman :

WWI Annamma Mammen.

Exhibits marked on the side of the management :

Ml Receipts & voucheis being cost (Series 128 Nos.) of laboui charges for the year 1993 &1995 paid by the management Bank.

M2 Copy of the establishment (Scries 9 Nos.) charges Rej-istcr lot the pciiod from 1993 to 1996 maintained by the management Bank.

Exhibits marked on the side of the workman ^ Wl Failure of conciliation Report

No. 7(J5)/98/ALC/TVM daled 18-5-99 of the Assis- tant Labour Commissioner (Central), Tiivandrum.

W2 Letter No. 02169/187 dated 8-12-98 sent by the manage- ment bank to the Assistant Laboui Commissioner (Cen- tral), Irivendrum.

W3 Letter No. 294/14 dated 13-5-99 sent by the management Bank to iho Assistant Labour Com- missioner (Central), Triven- drum.

New Delhi, the 3id August, 2001

S.O. 2171.—Jn 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/ Labour Court, Chennai as shown in the Annexure in tho Industrial Dispute between the employers in relation to the management of Southern Railway and their woikman, which was leceived by the Cen- tral Government on 2-8-2001.

[No. L-4IOI2/9O,94-IR(B-1)]

AJA.Y K.UMAR, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVT. INDUSTRIAL TR1BUNAL-CUM-LABOUR COURT, CHENNAI Monday, the 16th July, 2001

Present : K. KARTTTTKrY\N,

Presiding Officer

INDUSTRIAL DISPUTE NO. 416/2001 (Tamil Nadu State Industrial Tribunal I.D.No.l 12/96) (In the matter of the dispute for adjudication under clause (d) of sub-section (1) and sub-section 2(A) of Section 10 of the Industrial Disputes Act, 1947 (14 of 1947), butwten the Workman Shri P. Kulase- karan and the Management of tht General Manager, Southern Railway.)

BETWEEN

Sri P. Kulasekaran 1 Party/Workman

AND

The General Manager, : II Party/MuiLagtment Southern Railway,

Appearance :

For the Workman : M/s. T. Fenn Waif r,

D. Goctha and .1. Soundarichandra- sekar Advocates For the Management : Sri P. Arulmudi,

Advocate

The Govt. of India, Ministry of Labjur in exercise of powers confcTid by clause (d) of sub-section (1) and sub-section ?(A) of Section 10 of Industrial Disputs Act, 1947 (14 of 1947), have referred the concerned Industrial Dispute for adjudication vide Oreler No. L-41012/90/94-IR(B.l) dated 19-7-95.

This referenct, has t)^c"i made earlier *a the Tamil Nadu Industrial Tribunal, where il was taken on file AS I.D. No. 112/95. When the matter was pend- ing enquiry in that Tribunal, the Govt, of India, Ministry of Labour was pelased to order transfer of this case from that Tiibunal to this Tribunal for adjudication. On receipt of records from that Tri- bunal, the case ha;, be.:n taken on file as I.D. No. 416/2001 and notices w> re sent to the counsel on record on either side, ivferming them about the transfer of this case to this Tribunal, with a direction to appear before this Tribunal on 23-2-2001 with their respective parties. On receipt of notice from this Tribunal the counsel on record on either side were present along with their respective parties and prosecuted this case further.

This matter eame up before me lor final hearing on 15-06-2001, upon p..ru,mg the Claim Statement, Counter Statement, the other mateiial papers on record, upon ponding the oral and documentary evidence on the side of the I party/Workman and upon hearing the arguments advanced by the learned counsel on either side and this matter having stood over till this date for comidcraiiori, this Tribunal has passed the following :—

AWARD

The Industrial Dispute referred 1o in the above order of reference by the Central Govl. for adjudi- cation by this Tribunal is as follows : —

"Whether the action of the Management of Southern Railway, Madrns in terminating the services of Shri P. Kulasekaran from 21-12-1976 in violation of Section 25F of l.D. Act, 1947 is just, proper and legal? If not to what relief is the workman entitled?"

2. The Industrial Dispute as. slated in the Claim Statement of the 1 Paity/Workman is briefly as follows : —

or retrenchment compensation had been oHerod or paid. Hence, the retrenchment of the Petitioner from service is unjust, improper and illegal. Hence, the Petitioner is deemed lo be continued in service wilh all biTefits. There is no severanee of relation- ship of master and servant in eyes of law. His ju- niors like Ponnusamy, Mani, Arasappan and Elu- malai had been made permanent employees and drawing a salary of Rs. 4000 per month. The Petitioner was drawing a '•alary of R^. 234 per monlh, when he was retrncched from feivice. Hence, this Tribunal may be pleased to order the Respondent/ Management to reinstate the Petitioner in service with back wages, continuity of service and other attendant benefits.

3. The Respondent/Management, Southern Rail-

way, Chcnnai had filed a Counter disputing Lhe aver- ments in the Claim StaturiTt. They arc briefly as follows:—

The Petitioner Sri P. Kulaa-kuran was engaged as casual labour under the control of inspector of Works, Tambaram on 4-11-75 only and not on 21-10-75, The Petitioner was net continuously engaged. He has bevn stopped sjver&l times and was re-ungaged as a.i d when extra casual labouier was required by the administiaiion. As Jhe Petitioner's work was found *o be unsatisfactory by the Supervisor, the Inspector of Works, Tambaram, lhe Petitioner was stopped from service with effect from 21-12-1976. Stopping the Petitioner from service docs not attract section 25F of the Industrial Disputes Acl, 1947, since the Petitioner was engaged only as a daily ifted casual labourer, who had no+ put in 240 days of continuous se/vice. In fact, he had only rendered 267 days of total service, which was not continuous and which was besides rot in a particv.l?r calendar year. In the suit filed by the Petitioner jn the City Civil Court, the Hon'ble Court observed that the filing was illegal and bad in law and dismissed the suit and the appeal also. The Appellate Court gave a direction to raise an industrial dispute in the appro- piate foium. The Petitioner aggrieved by that decision, filed a second appeal before the High Court. The High Court was also pleased to dismiss the appeal duly diieeting the Petitioner to seek his remedy under Industrial Disputes Act, 1947. Tlv City Civil Court has not observed (hat the retrenchment is illegal. As the di1.. At The I Party/Workman Sri P. Kulasekaran (herein- after referred to as petitioner) wps engaged as castial labourer under the conirol of Inspector of Works, Tambaram, Madras dn 4-1I-I975. He was a daily rated casual labour and was engaged only on ra,d basis. Since his scivkc was found unsatisfactory he was stopped Dem savice from 21-12-1976. The petitioner has not been conferred temporary status. The Petitioner was not issued with the notice of retrenchment or paid notice pay. He was not paid retrenchment compensation under section 25F of the Industrial Dispute Acl. As it is ? contravention of section 25N of the Industrial Di;pute Act, the retrenchment itself is ab initio void. The Petitioner filed a suit O.S. No.86/1977 in the City. Civil Court, Madras challenging his retrer.chment as illegal r rd void. It was a suit for declaration that his retrench- ment from service was illegal, void ab initio and to reinstate him in service wilh all benefits. The in- dustrial Disputes Act has been made applicable lo the workers of Railway by virtue of 149(6) of the Indian Railway Establishment Code and the Railway Establirrir.cr.t Manual. Since (he seivice ivies were voilated, the Pdi'iorer fil< d a suit. The learned Sub-Judge pasted an order that though there was a violation of section 25F of l.D. Act and it was illegal, the Petitioner should have raised an industrial dis- pute. Against that judgement and decree, the Peti- tioner filed an appeal as AS 297/82. The 5th Addi- tional Judge, City Civil Court, Madras gave a finding in that appeal that it was a rase of illegal retrench- ment from service, which is in contrrvent'on of Section 25F of the l.D. Act, 1947. But however, dismissed that appeal with an observation that 'the Petitioner should seek remedy only by way of raising an industrial di-.pute'. Then the Petitioner raided an industrial dispute under sect'on 2A of the Industrial Disputes Act, 1947. The Central Govt. had referred the mattei for adjudication to Ihe Industrial Tiibunal, Bangalon. Tlu-n is, per 'he dtiers oi" the Gcvi. the case has been transfer:cd (o lVIadius industrial Tribunal. The Petitioner hud woiked for moie than 240 (lays. No notice of retrenchment, wages4514 THE GAZETTE OF TNDIA : AUGUST 25, 2001/BHADRA 3, 1923 LPART II—SEC. 3(ii)] r>o point of lime, the relationship of master and ser- vant in the eyes of law was exist between the Peti- tioner and the Respondent/Management. The Petitioner has no locus slandi to compare the ser- vices of erstwhile juniors, who attained Aiupoiary status and absoibjd pi rmuncntly for the reason they had put in the required number of days of continuous seivice. The Petitioner was stepptd from service due to his unsatisfactory performance, this

4. The point for my consideration is— "Whether the action of the Management of Southern Railway, Madras in terminating the services of Shii P, Kuia'ckaian fiom 21-12-1976 in violation of Section 25F of l.D. Act, 1947 is just, proper and legal? If not to what relief is the workman entitled?"

Point

not know for what reason he was removed 'Yom ser- vice. He has denied the suggestion that he has not worked continuously for the period of 240 days in a calendar year and he was employed only as labourer on daily wages. Though he has denied such sugges- tions pui by the learned counsel in the cross exami- nation, he has not filed any doeumentaiy evidence in support of this contention. It is specifically con- tended by the Respondent/Management that the Petitioner had not put in 240 days in a calendar year to grant a temporary status and hence the Petitioner is not right in claiming retrnechment compensation comparing with others who have worked for 240 days in a calendar year and obtained consequential benefits, The contention of the Respondent/Management that tho disengagement of the Petitioner from service is due to his unsatisfactory performance is not disputed as incorrect. Under such circumstances, on the basi of materials available in this case, and on the basis o admission of WWl in his evidence, it is seen that the Petitioner was employed by the Respondent Manage- ment on daily wage basis casual labourer and he was disengaged from service by the Respondent/Manage- ment due to his unsatisfactory performance in service. In view of this aspect, it can be held that thei\ was no violation of seen on 25F/25N of the Industrial Disputes Act, 1947 as alleged bj the Petitioner Since is not proved by the Petitioner that he had worked for a continuous period of 24^ days in a calendar year, he is not en titled to claim compensation for the Res- pondent d s;no;iging him from service. The contentio of Respondent/Management that the Jpctitionei was stopped from service on account of his unsatisfactory work even before ho had attained temporary status has not been disputed by substantial or acceptable evi- dence by the Petitioner. So, there is no question of termination of service of the Petitioner by the Res- pondent/Management and hence the claim of the Petitioner that he was terminated from service con- trary to the provisions of the Industrial Disputes Act is not sustainable. Further, it cannot be said that it is conttary to Rule 149(6) of Indian Railway Establishment Code. In view of the above, it can be concluded that the Petitioner's claim for reinstatement in service with back wages and continuity of wrvice with other attendant benefits cannoi be granted. So, under such circumstances, it can be concluded that the action of the Management of Southern Railway, Madras in stopping the Petitioner/Work- man from service from 21-12-1976 (which is not termination of service) is not in violation of section 25F ol the Industrial Disputes Act, 1947. Hence, such action of the Management against the I Party / Workman is just, propei and legal and the petitioner/ Workman is not entitled to any lelief, Thus, I answer the point accordingly.

It is admitted that the I Party Workman Sri P. Kulasckaran, the Petitioner herein was engaged as a casual labour under the Inspector of Works, Tambaram in. the year 1975 and he was non-employed on 21-12-1976. When the matter was taken up for enquiry, when it was pending before the Tamil Ntidu Industrial Tribunal, the Petitioner/Workman was examined himself as WW1. It is his evidence that he entered in service oi the Respondent/Management as a Mason on 21-10-1975. He was given monthly salary of Rs 250/- at the daily wage rate basis of Rs. 8/-. He has not filed any document in support of his stand. It is his furthei ev'dence that he was removed from service on 21-12-76, when he was last working in Tambaram 1OW. Ex.Wl is the xerox copy of a certified copy of the judgement in O,S. No. 8601/1977 from the file o? City Civil Court, Madras, It H d^;iJ:J by the Court in that Judgement that "Civil Court has no jurisdiction to try the same and from the (acts it is clear that the pjaintifif was stopped from service only on account of unsatisfac- tory work and the stoppage will not amount to retrenchment and the plaintiff is not entitled to the relief of declaration." Ex.W2 is the typed copy of the judgement passed by the 5th Additional Judge, in A.S.No. 297/1992. That appeal was dismissed confirming the judgement of the City Civil Court under Ex.W 1 Ex W3 is the typed copy of the judgement by the High Court in 2nd appeal No. 1358/1986. The High Court has confirmed the decisions of both the Courts below in holding that the Ci\il Court has no jurisdiction to try this case as an industrial dispute. Tn the cross examination WWl has stated that he does4515 STln.thc.rpsult, an. award ia passed holding that the action of the ManagsmpAt pfj Sputherji FtailWay, Madras in stopping the Petitioner Workman Sri P. Kulasekaran from service on 21rl2-!976. \ hjch i;> not a termination of service to attract the provision of Section 25F of the Industrial Disputes Act, is just, proper and le&al. The concerned workman is not cnt|tled to any relief. No. (^ost.

(Dictated to the Stenographer, transcribed and typed by him, detected and pronounced by me Th the open court off this day the f6tHF Juiyr 20CfJ^.

K. KAR,T'KIJ£EYAN, Presiding Officer Witnesses Examined,;

For the I Party/Workman

W^i-—%i P. Kylasekaran.

For- the II Party /Management: None.

PocujneMs Marked:

For I Party/Workman:

Ex. No. Description

Ex. Wl 15-3-80—Xerox copy of judgement in a& Na 8601 Ofi H>77.

Ex. W2 4-2-83~Xerox copy of order in A.S. No. 297 of 1982.

Ex. W3 23-8-90—Xerox eppv, of the order in S.A. No. l i sl of" \9ffl:

Few the II Farty/Jvfenagement: Nil.

Tf f^fl, 31 ^WT$, 2001

w. u*. 2172.—srtnij&if^ foqp: srfirft^, 194,7- (1,947 m. 14) ^t TOT 17 % S*J*OT Sr, %^fl$ ttwiv TO^ ^ &. hrf % s^g^ra: $ ^5 ni"n"*i"i>~i sfVr g^c *b.*J"trOt #r ^ffa, w^pr % fafW 3fWtfif*P fwi* ^ %*rfta *K<*IK 3rV"ftf*rfr <5?fV^r >"PT * H #K ^ 30-7-2.0.01 "Ct STT^T JJ3TT "rr I

[tf. q?r-4i,ai2/i5i/8"-wf.wre. (ft i)/(*V-I)i Now Delhi, the l i st July, 2001

SA 2172.—In, pursuance Of Section 17 o£ the Industrial Depute Art, 19V' (H 9* I"*7), the Q "^ Government hereby publisher the award of the Central Government Jntwstrial Ti-HSujial/Lahour'Court, Bangalore as shown in the /WtSJiP; "n thft In^uslritt^ Dispute between the employer-t in relation to tfio mknngement of South Central Railway and their workman, which was received by the Central Government on 30-7-2001

(No. L-41012/151/89-IR(DU)/(B-I)]

AJAY KUMAR, Desk Officer

ANNEXURE

BEFORR THIS CFVTRAL GOVERNMENT INDUSTRIAL 2497 GI/2001—13 " - -

PREShNT: "* ' "'"""

Hon'ble V. N. Kulkami, Presiding Officer

C.R. No. 43/90

I Parly

Shri V, H, Irak*!, Majagi OuruswwapP^ Chowl, Ghantikcri OnT, Hubli-560020.

II Party

The Divisional Railway Manager, Hubli.5800i0.' ' ^^

APPEARANCES:

I Party : M. Ram, R^o, Gepcfal Secretary

U Party: M. V, Sheelyant. Mvpcatp,

AWplDt

1 The Central Government by ewrcljting the powers conferred by clause (t|l of Sub-section (I) and Sqb-sectjon 2A of the Section 10 of the Industrial Dijputes Act, 1194T has referred this dispute vide Order No. L-41Q12/U1/R9-IR(DU) dated 25-07-90 for adjudication¹ on the folwwintf scKedfild.

SCHEDULE

"Wjtjether the action of management of Sojjth Central Railway, Hubh in terminfltlttt tne services of Shrl V; B,-Irajcsl, KhaiasI Is justified ? If not. what relief the workman concerned is entitled t o ?"

2 I party wa$ workjns \ylth the. II party. Enquiry was held and he w"ai termtilfltW, therefore* thW mdustrial dispute is raided.

1, The case of, the I. parjy in. brief, i" ai fqllows:

4. The I party was ex-Amplovee of the southern ra%ay and, hs serveil % hjan^Kfflr"ticeSlv;! W r f, Sleet %s ia-;ujjt|L Enfujla wa*> cidnflyctm tjut tfte'VRtnfc, wfts not jjrooor and it was i±4 violatirtn. OfTpHrtcioTes of l^attjtal; justice, Tne punishment of termination ifc not correct. 1 party for thew reasons hps prayedt to p^ss. award in his favour.

5 The case of the rnanagement in brief is as follows:

6. Tt is the case of tfifi management that the I party was removed from service ton "To-lff-v? for his unauthorised nbwn.ee On representation tyi was appointed, as fnjporarv ('lecfrc.ii KhBlasrfhim' l|"fl-'9O. He VemfttWiJd attain * absent for nbout 138 days lit 198(Tanff "lso'absented in 1981 without nrlor Denfiission Of Ptopcf njedic^L Qeftiftcate. There was no Improvement in his attendance.' Charge' sheet was Issued and enquiry was held.

7 So far as enquirv is concerned the_ ^ me Is cprre^et and the pnquiry is pronerlv held by pvfnB' fnW opp_Ortiinity to the 1, partv and the finding is correcf. Tne orifcr of the management Is proper and 1e"al. Management for thele reasons has prayed to reject the reference.

8. It is fic-n from the TC^ords that the T party bv flUne memo conceeded the vftlMW pf Dprne^fc Erjq\iW and there after thn case w^s poned for arBUWWs", I' have heard oral urijunrntjs of both sides. I party ha* fired written arcuments.

9 Tn this caie the I party has conceeded the fairness of •' *• nnmestic Enquirv Havinu conceeded the Domestic Fncuiiry there is no merit in the ar"im<""ts of the I cartv tTiat the ennuirv is not nrrmer and valid Once it i

10 It Is t-een from the records, that, accordlne to the manaRcmMit tfc chaiflb it thflt the workm"n"was absent for ry 1o^^ nerior) I have considered the submissions made bv btith "iides, ft is "efch fr6n\'ttte records'tW" th" alWiWion" ntfrfintt the t narrv are tHflT t paftv remained 'absent" frtr n lonr ffmt- In tnv cotisldered" vleWth4516 " THE GAZETTE OF INDIA : AUGUST 25, 2001/BHADRA 3, .1923 [FAKT U—SEC. 3tfQ] II. Accordingly, I pass the following order.

ORDER

Reference is partly allowed and the management is directed to take him as Khalitsi if he was a permanent khalasi from the date of his termination, with continuity of service as per rules, it" the vacancy was available them. In the given circumstances back wages arc not given.

(Dictated to the LDC, transcribed by him, corrected and vgned by me on 3th July 2001)

V. N. KULKARNI, Presiding Officer New Delhi, the 26th July, 2001

S.O. 2173.—Li pursuance of Section 17 of the Industrial Dispute Act. 1947 (14 of 1947), the Central Government heieby publishes the award of the Industrial Tribunal/ Nasik as shown in the annexure in the Industrial Dispute between the employers in relation to the management of Binfc of Baroda and their workman, which was received by V\2 Central Government on 26-7-2001.

[No. L-12012/102/96-IR(B-ID]

C. GANGADHARAN, Under Secy.

ANNEXURE

71FXORI: SHRI S. S. IIIRURKAR, INDUSTRIAL TRIBUNAL AT NASIK

Reference (IT) No. 4/1998

BETWEEN

Brink of Baroda, Dcolali Branch, Ncsik

the services of Shri P. V. Bhagwat w.c.f, 7-5-93 was lesal and justified, and if not to what relief the said workman is entitled to.

2. After receipt of the reference, notices were issued to both the parties. Accordingly the Second Party workman has filed his statement of cleim below Ex. U-l alongwith certain documents.

•*. Thereafter the First Party Management has filed its W.S Below hx. C-2 alongwith certain documents. Thereafter both the partiei were directed to lead oral evidence if any. The matter was adjourned from time to time for evidence of the Second paity, Since from long time nobody remained present for the Second Party Workman. Even the Second Party workman has not given a list of witnesses. No evidence was adduced for the Second Party workman.

4. Today when the matter was called repeatedly from 11.00 a.m. to 4.30 p.m. nobody remained present for the Second Party workman.

5. The Counsel for the First Party Management remained present and insisted that since nobody remaining present for the Seccnd Party workman from long time the reference be dismissed for want of prosecution.

Accordingly the reference stand dismissed for want of prosecution.

*•. Award accordingly.

SdA

S. S. HIRURKAR, Industrial Tribunal Place: Nashik

Dnte: 11-6-2001

New Delhi, the 26th July, 2001

. . 1st Party

AND

S'lri Purushollam Vasant Bhagwnt, C'o N'rmnl Noravfln Lovate, 715S Somwnr Peth, Nnsik-1.

.. Second Party CORAM :

Shri S. S. H'rurkflr Industrial Tribunal.

APP1ARANCFS :

Shri C. A. Ucolalkar Advocate for First Party.

*"Vi S. G. Dcihponde, Advocate for Second Party.

CAwaril Dicnted in the Open Court on 11-6-2001) Thidti regarding the terminating S.O. 2174.—In pursuance of Section 17 of the Industrial Dispute Act. 1947 (U of 1947). the Central Government hereby publishes the award of the Industrial Tribunnl/Labour Court, Udaiypur as shown in the annexure in the Industrial, Dispute between the employers in relation to the manage- ment of National Insurance Co. Ltd. and their workman, which was received by the Central Government on 26-7-2001.

[No. L-17012/36/96-IR(B-n)l

C. GANGADHARAN, Under Scy4517 4518 THE GAZETTE OF INDIA : AUGUST 25. 2601/BHADRA 3, 1923 [PART It—Sic. 3(ii)J 4H9

*)ew flJolhi, the 39th July, 0001

SiO 2175.—In pumuaac* *of 'Station 17 of ithe Industrial

5EM"BUle ftit, 4"47 >

hereby 'putittihes the award tof the G#tfteal -GQWowent

1iidu""Mrdtt)Uiia1Ht*a>oi]r Ooiwt, HCilJtHir 4fs "b"*[n In ithe

sinnWtlWe Jin

4"ltlKoti to cfhe 'mtfnagrtietit of iPunjab -National Bfffllc ."nd

'thiuir worfanan, 'Whteli ^wtt3 ^roceiw"d by the .Cwrtwl OoTOrn-

ment on 30-7-2001.

[No. L-12012/27/99-IR

C. O^tfTGADHARAN, Under Secy.

Industrial Dispute No. 140 of 1999

Punjab National Bank Employees' Union.

The President PNBEU,

13-A Keshav KunJ,

Pratap Nagar,

Agra.

Punjab Natisaal ~Bqnk,

Regional Manager,

Punjab National Bank,

Regional Office,

Vibhav Nagar,

Agra.

AW*RB

1. Central Government, MinbUiy of tabpur, New Delhi,

vide its Notification No. I^nOtt/pPl&im&'W dated

7/11-6-99 has referred the following dispute'ror Adjudication

to this tribunal—

"Whether the action of the Regional Manager Punjab

-Naufnal *anJc in ""ot Movjdiog -wnplgwwt ito Sri

Aflil Jiwaar OwRihan ^S/o ]"te ,6H-BaWr Sfagh

CJwHriMW, ax*enisjc>yee is l""alt"d >uiiified ? If>not

to what relief the Workman is entitled to'?" ,

2. In this case despite availing of several opportunities the

rUitton fepreHfenMng'the

YnanWd^hotvfife "t4tt"etot'of cUrjm Hhwjtfil Wie authorised

•fejlreiWAtatfve*frir"'tlte'1"j)ficn 1ai"e"red hi the ne"se on various

yites ftxed tn 'ttc 'case. 'UfhiltftMy When the case was taken

upl for Hearing' On t&7*4$QQ 4rt ^ewnp'BttMcn"w, instead of

filing statement of claim onMftMitt W'Hie 'union, the repre-

sentative for the workman made an endorsement on the

"OWer'""" "to 'the* 'Wect that'the claim on behalf-of the

^tin"eftietl wSWMttfn'is tot^presMty.nn view of'Above, the

ftWbOtJafMs'^Mft v1fth"no otter tfptlon but to tiotdthat the

'concerned WoJ-krtnm is'not'en^fded toTinyreHef in'ptnmiance

of the ?fesrtit'inference"'for want1 of pleading and T>ro6f.

3. Reference-is decided tftmattthe w"ritman accordingly

24-7.2001

R . P. PAHtWY,5Preiidtng^Offlcer

New Delhi, the 30th July, 2001

S.O. 2176.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 ot 1947), the Central Government hereby publishe" 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 Punjab National Bank and their workman, which was received by the Central Govern- ment on 30-7-20O1.

[No. L-12012/384/97-IR(B-lI)l C. GANGADHARAN, Under Secy.

ANNEXURE

BEFORE SRI R. P. PANDEY, PRESIDING OFFICER CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL- CUM-LABOUR COURT, SARVODAYA NAGAR, KANPUR

Industrial Dispute No. 175 of 199R In the matter of dispute :

BETWEEN

Punjab National Bank Employees Union, State Vice President PNBEU, Pram Dham Vishnu Dbam Colony, New Madav Nagar, Saharanpur.

AND

Punjab National Bank, The Regional Manager, PNB Regional Office. Arya Nagar Chowk, Hardwar.

AWARD

1. Central Government. Ministry of Labour, vide its Notification No. L120J2/'384/97JR(B-II) dated 20-10-98 has referred the following dispute for adjudication to this tribunal—

"Whether the action of the management of Punjab National Bank in not paying special allowance from 8-3-96 to 8-3-97 and halting allowance and T.A. & D.A. from 15-5-94 to 10-11-95 to Sh. V. K. Gupta is legal and justified ? If not, to what relief the said ' workman is entitled ?"

2. In the present case after exchange of pleadings between the parties after the filing of the documents by th" parties the case was taken up for evidence of the workman on several dates but on each dale the case was adjourned on one reason or the other on the request of the representative for the workman/union as the workman did not present himself for his evidence before the tribunal when the case was taken up for hearing. Ultimately the case was taken up for evidence of the workman at camp Lucknow on 16-7-2000 when the representative for both the sides were present. Again the concerned workman absented and did not turn up on 16-7-2000 when the case Was taken up for hearing. The authorized re- presentative for the workman made an endorsement on the order sheet dated 16-7-2000 that the claim is not pressed.

3. In view of it and having regard to the conduct of the concerned workman the tribunal is now left with no other option but to hold that the concerned workman is not interested in contesting the present dispute.

4. In view of above discussions, I have no hesitation in holding that the concerned workman is not entitled for any relief in pursuance of the present reference order for want of proof. Accordingly the reference is decided against the workman and in favour of the management,

R. P. PANDEY, Presiding Officer New Delhi, the 30th July, 2001

S.O. 2177.—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 1'ribunal/Labour Court-II, Dhanbad as shown in the annexure in the Industrial Dispute between the employers in relation to the management of UCO Bank and their work- man, which was received by the Central Government on 30-7-2001.

[No. L-12012f207[94-IR(B-II)J

C. GANGADHARXN, 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 10(1) (d) of the I.D. Act, 1947.

Reference No. 63 of 1995

PARTIES :

'

Employers in relation to the management of UCO Bank Patna and their workman. . • ,

APPEARANCES :

On behalf of the workman : Shri C. R. Mandal, Secy.,

All India UCO Bank

Staff Federation.

On behalf of the employers : Shri P. K. Sinha.

Law Officer.

STATE ; Jharidiand INDUSTRY : Banking Dated, Dhanbad, the 16th luly, 2001

AWARD

The Government of India, Ministry of Labour, in exer- cise of the powers conferred on them under Section 10(1) (d) of the I.D. Act, 1947 has referred the following dispute to this Tribunal for adjudication vide their Order No. L-120121 207|94 dated, the 26th December, 1994.

SCHEDULE

"Whether the action of the management of UCO Bank, Patna in not regularising the services of Shri Suresh Kumar Paswan, Sweeper-cum-Farash and not paying him the wages payable to regular sub-rtaff is justified 7 If not, to what relief is the said work- man entitled?"

2. The case of the concerned workman as per W.S. in brief is as follows :—

The concerned workman in U>e W.S. submitted that being selected he w working as Sweeper-cum-Farash in the branch of Raghunathpur linger UCO Bank 45-1 in the district of Begusarai, Bihar since the month of February, 1987. He submitted that inspite of performing full duties in the said Bank the manage- ment used to pay him wages (2> R". 2 per Lc. Rs. 60 per month and from the year 1989 he has been paid Rs. 5 only per day. In discharge of his duties in the same capacity the concerned workman submitted that not only he sweep* the premises and cleans also the furnitures and fixtures of the said branch but also brings out records, registers, flies, vouchers etc. from the Almirah and Desks and place them in the respective tables and again keep them in the Almirah after office hours. He disclosed that since February, 1987 till date he Is continuously working in the said branch and under the manage- ment although the management did not issue any formal letter of appintment. The concerned workman further submitted that inspite of his repeated request to confirm and put him in the post and pay him other benefits the management did not pay any heed to it. He submitted that according to the bi- partite settlement dt. 19-10-66 he is eligible to be confirmed as permanent staff of sub-cadre of the aaid branch and is entitled to get full wages as applicable to them with effect from the date of his appointment, As a result of which the concerned workman raised industrial dispute and for which the instant reference has been made before this Tribunal for adjudication. The concerned workman submitted his prayer to the effect that necessary award be passed conforming him in the service at UCO Bank as subordinate staff with effect from February, 1987 with full remuneration which he is entitled to get as per Bi-partitc settlement.

initially the management u"ed lo pay him daily wages (2> R". 2 and ultimately it enhanced to Rs. 8 per day. It Is the contention of the concerned workman that be was engaged by the management in the said branch to Sweeper-cum- Faraah and thereafter on request of the Bank official he used to help the Bank staff in all manners such as bringing out ledger from the Almirah and to supply the same to 'he staff and also after banking hours he used to keep them in the Almirah. Apart from that Job he also used to supply water to the staff and also used to pott letters to the local post office under instruction from the Bank officials. Even he used to close the Bank store and window after office hours. He also submitted his application for regularisation, of his services before the management which was duly for- warded but his prayer was ignored though prayers of other Sweepers were considered. During his evidence relevant application and connected papers are marked as Ext. W-l, W-2, W-3 and W-4 on admission. Considering his application, marked as Ext. W-l it transpires clearly that he submitted his application for his appointment as part-time sweeper. Therefore, the claim that he was engaged as Swecper-cum- Farash finds no basis. During evidence the concerned work- man has failed to produce a single scrap of papers to show that he was engaged by the management as Sweeper-cum- Farash. On the contrary it is the specific contention of the management that there was no scope to engage the concerned workman as Swceper-cum-Farash. The management sub- mitted that the carpet area of their branch at Raghunathpur is only 640 Sq. feet and for sweeping such a small area it is impracticable to engage a whole time swoeper. The management submitted further that they paid daily rated wages to the concerned workman according to the Circulur i^ued by the Bank Ext. M-3 and for which they did not commit any illegality in the same. I have considered the document marked as Ext. M-3 and M 4 along with sketch map of the concerned branch and it appears that the area of the said branch is less than 850 Sq. feet. According to Ext. M-3 a Sweeper is entitled to get wages (i/> Rs. 200 per month if the area of the branch is less than 850 Sq. feet. Relying on this circular the management submitted that they did not commit any illegality in paying daily wages (a> Rs. 8 per day after that circular was issued. It is seen that the application of the concerned workman was forwarded but the management by their letter marked as Ext, W-i admitted that the case of this workman was ignored though the ca^rs of other 23 branches were considered. The Divisional Manager in the said letter requested the management lo consider the absorption of the roncmed workman in order to avoid future complications on consolidated wages of Ri, 200 per month since the case appears to be genuine. It is seen that inspite of that request the management did not consider necessary to absorb the concerned workmnn as Sweeper of their branch. However, the concerned workman during his evidence admitted that nt present he is getting Rs. 15 per day. It is the contention of the concerned work- man that not only his application for regularisalion of his service was ignored by the management but also the inn na ce- ment denied to pav wages as per rate fmplte of his giving full days service in the Bank, It fs the specific contention of the concerned workman that from mornini? till closinir of the Bank he remains there and undertakes different work including supply of ledgers, vouchers etc, to the Bank staff. He also undeiinkes other different jobs under instruction of the Branch Manager. Inspitc of taking all these works the management has ignored hi" case.

3. The management on the contrary after filing W.S.-cum- rejoinder has denied all the claims and allegation which the concerned workman asserted in his W.S. The management in the W.S. has categorically denied the fact that the con- cerned workman is working as Sweeper-cum-Farash at branch of Raghunathpur of UCO Bank. The management submitted that actually he is working as Pnrt time Sweeper on daily wages basis of Rs. 8 per day at present calculated on the basis of 25 days in a month. The management further sub- mitted that Raghunathpur branch is consisting of only 640 Sq. ft. carpet area for which there was no reason on the part of the concerned workman to work full day there for the purpose of sweeping. The management also denied the fact that the concerned workman used to work as Farash and also apart from his job he used to bring out different registers including voucher in the office hours and also used to keep them in the Almirah after office hours every day. AdmUtfrig th" f,xt of Rs, 2 per day as daily wages the management submitted that the said amount was paid to him on the basis of the part time work done by him. How- ever, the said rate was changed from time to time and subsequently it came to Rs. 8 per dav. The management also submitted that for sweeping the Bank absolutely on part time basis there was no scope to issue any appointment lettei which has been claimed by the concerned workman. Actually he was engaged on daily rate and also on part time bash. The management further submitted that according to bi- partite settlement Shripaswan is not eligible to be appointed a

4. The points for decisions in this reference nre :