This Gazette may contains Multiple Subjects

Tcleconimunicalions by his order directed all heads of SS A to lake back casual ma/doors whose break in service is more than one year and who were terminated .ind or not ndmilited for departmental work fluffing. Accordingly, the Divisional Engineer (Administration) in his orclen dated 19-9-92 condoned the break inservice to permit the mazdoors lo do departmental works. The Department of Telecommunication? in its letter No. 269/ 3/92 STN dated 21-10-92 had directed not to consider the cases for condonations of break in service, when the break is beyond one years. Accordingly, as per the direction of Department of Telecommunications, the Divisional Engineer (Admn.) had cancelled the original order condoning the break in service. As per the direction of Department of Telecommunications, the petitioner was not permitted to work as casual mazdoor. The casual mazdoors arc taken back for duty from March, 1993. The Petitioner's wages were paid by the A.E./SDEs. The Respondent informed the Petitioner that his services were terminated from 21-11-1992. The Respondent thereafter, rc-employcd the Petitioner under contract basis. The Petitioner's services were terminated, while the Respondent retained juniors in service. The Respondent violated the provisions of Industrial Disputes Acl and the act of respondent is against I he principles of natural justice. The Petitioner prays to pass an award holding the act of General Manager. Telecommunications. Thanjavur. terminating the Petitioner's service as illegal, arbitrary and against the principles of natural justice and reinstate the Petitioner with continuity of service, back wages and other attendant benefits.

3. The averments in the Counter Statement of the II Party/Mangcment are briefly as follows :—

The II Party/Management. The General Manager. Telecommunications Thanjavur (hereinafter referred to as respondent) submits that petitioner was engaged as casual ma/.door from 12-4-1982 He was working on casual basis. The Petitioner was not sincere and deserted from work without any intimation from May. 1982. He had not turned up for 10 years and 4 months. The work was not a permanent one The work was allotted to the Petitioner whenever necessary purely on casual basis and when the regular mazdoors were not available due to leave and absentism to execute the nature of work. The work was not of a permanent natu •' . As and when fault comes on the lines and when i'lure is demand for new connections, the work will be carried out by casual mazdoor on contract basis. Hie petitioner w,is given such type of work. Tho Pelitionci had worked only for 6 days from 12-04-82 lo 30-04- 1"X2. The work was not a permanent one He was not working continuously. He had not reporter! for duty regularly and not engoged for duly from May. !<)82 to 18-01.1992 for nearly 10 years. The work was not of a permanent nature. Also the Petitioner had not fulfilled fbe necessary conditions for getting promotion to temporary status ma/door. The necessary conditions arc—

1I) should be currently employed; '

(2) minimum continuous service of one year;

(3) should be engaged on work at least for 240/ 206 days in the year depending upon the type ci" office employed;

(4) He has been recruited prior to 30-03-J985 As per the direction of the Chief General Manager. Telecom. Chennai by his letter dated 18-8-92. the Divisional Engineer (Admn) Tanjorc condoned the break in service of the, petitioner and took him to contingency works. The Department of Telecommunications in its letter dated 21-10-92 has directed not to consider the cases for condonation of break in service when the break is more than one year Accordingly, the Respondent had cancelled the original order condoning the break in service. Hence the Petitioner has become ineligible to work as casual mazdoor. The petitioner was not permitted to work as casual mazdoor. The Petitioner was allowed to do work purely on contract basis after March. 1983. The Petitioner has not fulfilled the necessary conditions to become a temporary status mazdoor As the break in service for the Petitioner was more than one year, he was terminated from service. The action was as per departmental rules only. Since the Petitioner has not been absorbed in this department, he is not eligible lo be served with any notice or notice pay. The petitioner is not eligible for getting retrenchment compensation. The Petitioner is not eligible for permanent post. The work given to him was casual, seasonal and intermittent in nature. The Petitioner is not eligible for continuity of service, back wages and other benefits. Hence, this Hon'blc Tribunal may be pleased to dismiss the petition for devoid of merit.

4. Earlier when the matter was on the file of Tamil Nadu State Industrial Tribunal as l.D No. 80/98 an award was passed on 2-9-98 due to the absence of the petitioner dismissing the claim for default. To set aside the Award dated 02-09-98 passed by the Tamil Nadu State Industrial Tribunal, the Petitioner has filed a petition there itself to set aside the award with a petition to condone the delay of 570 days in filing that set aside petition. When that petition was pending enquiry as unnumbered petition in that Tamil Nadu Slate Industrial Tribunal, as per the orders of Central Govt, this case has been transferred to the file of this Tribunal for adjudication and disposal. When those two unnumbered petitions were taken up here for the enquiry, the counsel for the Respondent has made an endorsement on both the petitions thai he has no objection to allow these petitions.

Hence, the petition to condone the delay of 570 days in filing the set aside petition and the petition filed to set aside the award dated 2-9-98 in l.D. No. 80/19987515 by Ihe Tamil Nadu State Industrial Tribunal were allowed. The e\-partc order of Award passed on ,'.-9-98 in Iliis industrial dispute by the Tamil Nadu Slate Industrial Tribunal as l.D. No. KO/1V98 ii,\:, 1 ;•• u set tiside and the main industrial dispute h.r; !>-JCJI restored to file and renumbered as l.D No 57o/2001

-I Subsequent K when the T ' i r f i c : ; , !. .,;• <\:i enquiry, the '' Parly Vinnnp.cnif at 1'K! '\\ :i .]/ n i fn-ici Strucment ,'ir."f the m,!ucrwuspn-,;..t! Ivr -.^.quiry w; noi^ subsequenl dales. When the matter v\,'s u ' en up dually for enquiry on 31-7-7001, the 1 Parly and his counsel remained absent as usual and the counsel for the 11 Party alone was present and has advanced his arguments.

5. The Point for my consideiation is—

"WhcLher the termination of services of the workman Sri P.Ravichandran we.f. 21-11-1992 by the district Telecom Manager Thanjavur is justified? If not. to what relief he is entitled¹⁷"

Point :—

duty in 1992, The Divisional Engineer (Admn) had powers to condone the break in service only fbi six months. More than six ni>-• -\ break in service cannot be condoned by the ;."iviMonal Engineer (Admn). as lie has no powers to that extent Alk-r the Department of Telecommunications came lo know the illegal condonation of break in sen ice. rnw. a direction to the Divisional Engineer to cancel I.'.L original order condoning the break in service, ^ibsequcntlv. the Divisional Engineer (Admn). 'terminated the services of the Petitioner on 21-11-92. Taking advantage of illegal condonation of break in service, the Petitioner wauled lo have legalised the action of ihe Divisional finginccr (Admn) and prays foi reinstatcnien! in ,er\ice. From the materials ;v ;:i(ablc in Ih'^ ca"c\ il is seen thru the Divisional Engineer who kid condoned tlie break in sen ice oflhc Pdif ir>iu\ h,~jd no powers tj do so. because the illegal condonation oi break in service by an official has no .minority to do so was subsequently came to the knowledge of Department of Telecommunications and an instruction has been given by the Department of Telecommunications to cancel siuii illegal and irregular condonation ofbieak in r,crwcc In pursuance of thai diiechon of Dcp.nlMh-u! of Telecommunications. the Di\i>i'"ui;il Mutineer (Admn). has laucellcu the original order condoning the break in senice and thereby ihc General Manager. Dcparimcn! of Telecommunications. Thanjav ur had terminated the service of the Petitioner Sri P. Ra\ ichandran casual labour w.e.f. 21-11-92 So. it cannot be said that the said action of I he Respondent/Management is improper, illegal and unjustified As slated by the Respondent/Management in ihen Counter, as the

P e t i t i o n er h ad w o r k ed o n ly I \H <•, d a ys p r i or to

30-03-85. he i> nol eligible for permanent post. The work given to him was casual, seasonal and intermittent in nature. So. he is not eligible for continuity of sen ice. From this, it is seen that the reinstatement of the Petitioner itself, by condoning his break in service is irreguliir and he cannot consider lo be a workman in order lo attract Section 25F of the Industrial Disputes Act. 1947 and that provision will be applicable only lo legally appointed employee. As the Petitioner is nol employed so. as he had stayed away from duty tor nearly ten years, he is not entitled lo claim the relief praved foi hnlher no substantial evidence is available mi ihe side of the Petitioner to show that lie had minimum continuous service of 240 days in one scar and he was recruited prior lo 30-3-85 to gel a status of Temporary jvla/door He has nol shown to have requisite qualifications of the conditions mentioned in the scheme. From all these.

In this case, no one was examined as witness on either side. No document has been filed on either side as exhibit. The Claim Statement, Counter Statement and all other rele\ant records of this dispute v\crc perused. The arguments advanced by the learned counsel for the 11 Party/Management was also considered. In the Claim Statement of Die Petitioner it is simply stated that he had put in more than 240 days in a year of service, he was continuously doing permanent nature of work under the Respondent. It is not stated in the Claim Statement as to when the Petitioner was so engaged as casual mazdoor continuously by the Respondent/ Management. No oral and documentary evidence has let in. in support of the allegations mentioned in the Claim Statement b> thcPctioner On the other hand, in the Counter Statement the Respondent has clearly averred that the Petitioner was engaged as a casual mazdoor from 12-04-1982 and he was working on casual basis. Further it is stated in the Counter Statement that the Petitioner had deserted from work without any intimation from May. 1982 and he had noi tinned up for 10 \ears 4 months It is also contended in the Counter Statement oflhc Respondent thai the Petitioner had wrorked in the department only for 6 days from 12-04-1982 to 30-04-1982. The Petitioner had not reported for duty regularly and he had not engaged for duty from May. 1982 to 18-9-1982 for nearly ten years All these specific allegations have not been denied by way of any reply statement by the Petitioner/ Workman. The learned counsel for the 11 Party/ Management would argue thai in 1992 due to the pressure of the Trade union, the Divisional Engineer (Admn) had condoned the break in service of the Petitioner. The Petitioner was taken back to

3707 GI/2001 —17516 THE GAZETTE OF INDIA : DECEMBER 15, 2001/AORAHAYANA 24, 1923 [PART II—SEC. 3(ii)J

PRESENT

HONBLE SHRI Y N. KULKARNI, B. Com, LLB,

PRESIDING OFFICER

CGIT-CUM-LABOUR COURT,

it is se^n that ihc action of the General Manager in

icruimaiiug t)ie services of the Petitioner as a casual

labourer w.e.j. 21-11-92 is proper legal and

jdb'ifitAl. Hence, ihe concerned workman is not

entitled for any relief, thus, the point is answered

accordingly.

BANGALORE.

C. R. No. 18/98

1 PARTY II PARTY

(•. li< die result, an Award is passed holding that

the termination of the services of the workman Sri P.

Unvichandran w.e.f. 21-11-1992 by the District Telecom

Manager. Thanjavur, is justifed. Hence, he is not entitled

to any relief. No Cost.

(Dictated to the Stenographer. trtliscribcd and typed

by him. corrected and pronortneed by ire in tlie open court

on this day the 2 Ist September, 2001)

Shri Peer Mohammed Superintendent, R.M.S,

(Major). Carnal Labourer, HnMIDn

D. No. 64, Ward No. XXII, Hubli RO, Dharwar Dist.

Dalwala Masjid, Dhobi Karnataka-580029

Street, Ciwl Bazar,

Bellary, Karnataka State

K KATCTHIKEYAN, Presiding OlTiccr

AWARD

Witnesses Examined:

Qn either side. : None

DOCUMENTS MARKED:

On either side : Nil

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-4O012/81/96-IR(DU) dated

2nd March 1998 for adjudication on the following

schedule:

Schedule

"Whether the action of the management ofSupdt.

RMS, HB. Dn, Hubli in terminating the services of

Shri Peer Mohammed, w.e.f. 31-3-91 is legal and

justified ? If not, to what relief the workman is

entitled to T

2. First Party was working with the management

His services were terminated w.e.f. 31-3-1991 and

therefore, Industrial Dispute is raised.

3. Parties appeared and filed Claim Statement and

Counter respectively.

New Delhi, the 19th November, 2001

4. The case of the first parry in brief is as follow!:

S.O. 3400.—In pursuance of Section 17 of th

Industrial Dispute Act. 1947 (14 of 1947), the Centn

Government hereby publishes the award of the Centn

Government Industrial Trlbunal-cum-Labour Cou

Bangalore as shown in the Annexure in the Industrii

Dispute between the employers in relation to tli

management of Superintendent RMS and their workma

which was received by the Central Government o

19-11-2001.

[No. L-400l2/81/96-IR(DU

5. First party was apppointed as a Casual Labourer

in the establishment of Railway Mail Service. Sorting office

at Bellary, He served the department honestly and sincerely.

He was working at Belllary. First party was working during

the absence of regular Group D' or ED agents is not correct

The applicant was appointed as a casual labourer to convey

mail bags accumulated in the ground floor to the sorting

office in the 1st floor and vice versa. The first party was in

employment of the management and worked for more than

240 days in all the years.

KULDIP RAt VERMA, Desk Oflta

ANNEXURE

THE CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL CUM LABOUR COURT

6. It is true that the first party and 3 other

approached the Central Adminstrative Tribunal.

Bangalore and CAT, Bangalore directed respondent No.

1 to have a fresh look into the case.

"SHRAM SADAN",

fll MAIN. Ill CROSS. II PHASE. TUMKURROAD.

YESHWANTHPUR. BANGALORE.

7. The management has not considered the case

of the workman. The first party for these reasons and

for some other reasons has prayed to pass award in his

favour.

Dated 17th October. 2001

8. The case of the Second Party in brief is as

follows:

not working at relevant period and therefore, temporary

status was not confirmed on the first party.

21. Against this it was argued by the learned

counsel for the first party that there is no merit in this

contention because the circular at Annex. 3 is to be read

in two parts namely: First part is that:

9. The contention of the first party is that he was

appointed as a Casual Labourer is not correct. First party

was not engaged for maore than 240 days in any of the

year. It is true that the CAT, Bangalore directed the

management to examine the case of the first party along

with others. The first party has not fulfilled the required

conditions so his case was not considered. Statement of

working days of the first party is given in the Counter.

Temporary Status would be conferred on casual

labourers in employment as on 19-11-89. In other words

Workmen who were working as on 29-11-89 would be

given temporary status.

10. First party was not in employment on 29-11-

1989 and not worked for 240 days or 8 hours in a year

and therefore he was terminated.

22. It is clear from the evidence of MW1 itself and

also the evidence of workman that prior to 29-11-1989

first party was working with the management.

23. According to the evidence before me, first party

was working with the Second party since 1986,

11. The decision of the CAT is not binding. Second

party for these reasons and for some other reasons has

prayed to reject the reference.

24. The Second part of the Circular is that:

12. It is seen from therecordsthat the management

to prove his case examined MW1, Shri Suresh. His

evidence is that he was working as Superintendent, RMS

in Hubli Division, Hubli.

The workman who continues to be currently

employed and rendered continuous service of alteast

one year and he might have been engaged for a

period of 240 days in a year will be given temporary

status and for such workman continuously working

for 240 days is a must and not the workman who

was working with the management prior to

29-11-89.

13. His ftirthcr evidence is that the first party

worked from 1986 to 1991. Of course ho has said that the

first party never worked continuously for more than 240

days.

25. There is merit in the arguments advanced by

the learned counsel appearing for the first party.

14. MW1 says in his cross exminatkm that Ex. Us

prepared on the basis of Attendance Register. He further

says in his cross examination that he has not produced

attendance register. The management without any proper

explanation has failed to produce attendance register.

2G. (i \vas submitted by the learned counsel for

the first party workman that it is an admitted fact

by the management witness that similar workmen

were given temporary status and therefore the same

treatment has to be given to the firsi party

workman.

15. We have the evidence of workman and he say

that he was working in the department since 1983 and he

worked upto 1991. He further says that he worked upto

1991.

27. He further submitted that he is satisfied if

temporary status is given to ilie first party

workman.

16 He further says that Shri Chowdappa, Noor

Pasha and Umesh were working with him and they are

taken on duty.

28. Considering the material before me and the

circulars relied by the parties and admission oi'MW 1

I am of the opinion that when 3 persons of similar

work are conferred and given temporary status, the

first parly workman is also entitled for the same.

17. I have carefully read the evidence of the

management witness and the workman. I have also

perused the judgement of the CAT in CA No. 829/1993.

29. 1 have also said that the management cannot

discriminate the first party workman with 3 others

of similar nature of work.

18. It is in evidence that the first party has worked

from 1986 to 1991. The management has not produced

the attendance register. Non production of attendance

register is really fatal to the management.

30. Considering all this I am of the opinion that

the management can be directed to give temporary

status to first party workman and accordingly I

proceed to pass the following order :

ORDER

19. It is also in the evidence that three others who

were working with the first party are taken on duty. This

would go to show that there is unfair labour practice

against the present workman.

20. It was argued by the learned counsel appearing

for the management that as per Ex. 3 the first party was

Reference is partly allowed and the management is

directed to confer temporary status on the first party

workman. Accordingly reference is disposed off.

(i>ici.]i.-1 to PA transcribed by her corrected and Appearance ;

siBiv.ri by me un 17th October 2001)

For the Workman : Mr. R. Ramesh, V. N. KULKARNI, Presiding Officer

Advocate

For the Management ; Mr R Karunakaran, M t^wft, 19 -\^"^i, 2001

Addl. CGSC ^rr.-Mf, 3 4 0 1 . — 4 # R? f*raTC 3TfaPm, 1947 M7 F,I i.-, ; ^t VRT 17 % ^3*UUI "*f, *t>Hfl^ Wt*K TJT

The Govt, of India. Ministry of Labour in exercise of powers conferred by clause (d) of Sub-section (1) ar.H Sub-section 2 (A) of Section 10 of Industrial Dispute Act, 1947 (14 of 1947), have referred the concerned Industrial Dispute for adjudication vide Order No L-40012/209/95/IR(DU) dated 23-07-1997.

T;I ; - i - 1 1 - 2 0 01 ^t u r a^ S TT "JT 1

f J}. tn?T-40012/209/9?-3n£3:Trc. Ost^.)]

gffi^fa TTT *wf, "%^T STftpfirft

New Delhi, the 19th November, 2001

demand for new connections, the work will be carried out by casual mazdoor on contract basis The petitioner was given such type of work. The Petitioner had worked only for 50 days from 7-5-84 to 20-10-84. The work was not a permanent one He was not working continuously. He had not reported for duty regularly and not engaged tor duty from 21-10-84 to 7-09-1992 for nearly 8 years. The work was not of a permanent nature Also the Petitioner had not fulfilled the necessary conditions for getting promotion to temporary' status mazdoor. The necessary conditions are—

1I) should be currently employed.

(2) minimum continuous service of one year;

(3) should be engaged on work at least for 240/ 2(.)(> days in the year depending upon the type of office employed;

(4) He has been recruited prior to 30-03-1985 cmplovec-s like il'.c Petitioner the Respondent cannot do Ilic woik of cable lading, provision of land line panchayat public telephones, provision or STD public telephone, upgradation of local telephone lines etc. The Petitioner had put in IHOR than 240 days in a year of service and the payment of wages vouchers signed by the petitioner would reveal that he was continuously doing permanent natuic of work under the Respondent. After repeated requests from the Petitioner, the Chief General Manager, Telecommunications by his order directed all heads of SS A to take back casual mazdoors whose break in service is more than one year and who were terminated and or not admitted for departmental work pending. Accordingly, the Divisional Engineer (Administration) in his order dated 19-9-92 condoned the break in service to permit the mazdoors to do departmental works. The Department ofTclceonununicaiions in its letter No. 269/ 3/92 STN dated 21-10^2 had directed not to consider the cases for condonations of break in service, when the break is beyond one year. Accordingly, as per the direction of Department of Telecommunications, the Divisional Engineer (Admn.) had cancelled the original order condoning the break in service. As per the direction of Department of Telecommunications, the petitioner was not permitted to work as casual mazdoor. The casual mazdoors are taken back for duty from March, 1993. The petitioner's wages were paid by the A E /SDEs. The Respondent informed the Petitioner that his services were terminated from 21 -11 -1992. The Respondent thereafter, re-employed the petitioner under contract basis. The petitioner's service were terminated, while the Respondent retained juniors in service. The Respondent violated the provisions of Industrial Disputes Act and the act of respondent is against the principles of natural justice. The Petitioner prays to pass an award holding the act of General Manager, Telecommunications, Thanjavur, terminating the Petitioner's service as illegal, arbitrary and against the principles of natural justice and to reinstate the Petitioner with continuity ofservice, back wages and other attendant benefits.

3. The averments in the Counter Statement of the

II Party/Mangement are briefly as follows :—

As per the dirction of the Chief General Manager, Telecom, Chennai by his letter dated 18-8-92, the Divisional Engineer (Admn) Tanjore condoned the break in service of the petitioner and took him to contingency works. The Department of Telecommunications in its letter dated 21 -10-92 has directed not to consider the cases for condonation of break in service when the break is more than one year. Accordingly., the Respondent had cancelled the original order condoning the break in service. Hence the Petitioner has become ineligible to work as casual mazdoor. The petitioner was not permitted to work as casual mazdoor. The Petitioner was allowed to do work purely on contract basis after March. 1983. The Petitioner has noi fulfilled the necessary conditions to become a temporary status mazdoor. As the break in service for the Petitioner was more than one year, he was terminated from service. The action was as per departmental rules only. Since the Petitioner has not been absorbed in this department, he is not eligible to be served with any notice or notic pay The petitioner is not eligible for getting retrenchment compensation. The Petitioner is not eligible for permanent post. The work given to him was casual, seasonal and intermittent in nature. The Petitioner is not eligible for continuity of service, back wages and other benefits. Hence, this Hon"blc Tribunal may be pleased to dismiss the petition for devoid of merit.

The IT Party/Management, The General Manager, fVpirtniciU of Telecommunications Thanjavur District . i i '-ei'iaftcr referred to as respondent ) submits that r..t:iioner was engaged as casual mazdoor from 7-5-84. Ki. w, working on casual basis The Petitioner was not sincere and descried from work without any intimation from 21-lo-Xl. He had not turned up for 7 years and 11 months. The work was not a permanent one. The work was allotted to the Petitioner whenever necessary purely on casual basis and when the regular mazdoors were not available due to leave and abscnlism to execute the nature of work. The work was not of a permanent nature. As and when fault comes on the lines and when there is

4. Earlier when the matter was on the file ofTamil Nadu State Industrial Tribunal as ID.No. 51/97 an award was passed ex-parte against the II Parry/Management. To set aside the ex-partc Award dated 30-10-98 passed by the Tamil Nadu State Industrial Tribunal, the II Partv/ Management has filed a petition there itself as M PNo 38/2000. When that petition was pending emiiury there. as per the orders of Central Govt this case h-, : ,\-n transferred to the file of this Tribunal for adjuJi-.i H"H7520 THE GAZETTE OF INDIA : DECEMBER 15, 2001/AGRAHAYANA 24, 1923 [PART II—SEC. 3(ii)] and disposal. Though the case was taken up for several hearings, the counsel for the 1 Party/Workman and the I Party himself has not turned up to prosecute this case here. But the II Party/Management counsel alone was present and requested for allowing the petition to set aside the ex-partc order of Award passed by the Tamil Nadu State Industrial Tribunal on 30-10-1998. On 24-4-2001, when the matter was taken up for enquiry, the counsel for the I Party had made an endorsement on the petition stating that the I Party/Workman has no objection to allow that petition. So, that petition to set aside the ex-parte award passed by the Tribunal in this case was set aside and the enquiry in the main Industrial Dispute was adjourned to 4-6-2001. Subsequently, when the matter was taken up for enquiry on various hearings, the counsel for the II party/Management alone was present. Neither the 1 party nor his counsel was present to prosecute this case. So the matter was finally adjourned to 31-7-2001 for heraring the arguments of the counsel for the II Party/ Management. Accordingly, the counsel for the II party/ Management had advaned his argument.

5. The Point for my consideration is—

"Whether the action of the General Manger, Department of Telecommunications, Thanjavur in terminating the services of Shri A.Mathiyalagan, casual laboour w.c.f. 21-11-1992 is proper, legal and justified? If not to what relief the workman is entitled ?

Point :—

In this case, no one was examined as witness on either side No document has been filed on cither side as exhibit. The Claim Statement, Counter Statement and all other relevant records of this dispute were perused. The arguments advanced by the learned counsel for the II Party/Management was also considered. In the Claim Statement of the

Petitioner had worked in the department only for 50 days from 7-05-1984 to 20-10-1984. The Petitioner had not reported for duty regularly and he had not engaged for duty from 21-10-84 to 7-9-1992 for nearly eight years. All these specific allegations have not been denied by way of any reply statement by the Petitioner/Workman. The learned counsel for the II Party/ Management would argue that in 1992 due to the pressure of the Trade union, the Divisional Engineer (Admn) had condoned the break in service of the Petitioner. The Petitioner was taken back to duty in 1992. The Divisional Engineer (Admn) had powers to condone the break in service only for six months. More than six months break in service cannot be condoned by the Divisional Engineer (Admn), as he has no powers to that extent. After the Department of Telecommunications came to know the illegal condonation of break in service, gave a direction to the Divisional Engineer to cancel the original order condoning the break in service. Subsequently, the Divisional Engineer (Admn. ) terminated the service of the Petitioner on 21-11-92. Taking advantage of illegal condonation of break in service, the Petitioner wanted to have legalised the action of the Divisional Engineer (Admn) and prays for reinstatement in service. From the materials available in this case, it is seen that the Divisional Engineer, who had condoned the break in service of the petitioner had no powers to do so, because the illegal condonation of break in service by an official has no authoirty to do so was subsequently came to the knowledge of Department of Telecommunications and an instruction has been given by the Department of Telecommunications to cancel such illegal and irregular condonation of break in service. In pursuance of that direction of Department of Telecommunications, the Divisional Engineer (Admn), has cancelled the original order condoning the break in service and thereby the General Manager, Department of Telecommuni- cation, Thanjavur had terminated the service of the Petitioner Sri A. Mathiyalagan casual labour w.c.f. 21-11-92. So, it cannot be said that the said action of the Respondent/Management is improper, illegal and unjustified. As stated by the Respondent/ Management in their counter, as the Petitioner had worked only for 50 days prior to 30-3-85, he is not eligible for permanent post. The work given to him was casual, seasonal and intermittent in nature. So, he is not eligible for continuity of service. From this, it is seen that the reinstatement of the petitioner itself, by condoning his break in service is irregular and he cannot consider to be a workman in order to attract Section 25F of the Industrial Disputes Act. 1947 and that Petitioner it is simply stated that he had put in more than 240 days in a year of service. He was continuously doing permanent nature of work under the Respondent. It is not stated in the Claim Statement as to when the Petitioner was so engaged as casual mazdoor continuously by the Respondent/Management, No oral and documentary evidence has let in, in support of the allegations mentioned in the Claim Statement by the Petitioner. On the other hand, in the Counter Statement the Respondent has clearly averred that the Petitioner was engaged as a casual mazdoor from 7-05-1984 and he was working on casual basis. Further it is stated in the Counter Statement that the Petitioner had deserted from work without any intimation from 21-10-84 and he had not turned up for 7 years 11 months. It is also contended in the Counter Statement of the Respondent that the7521 provision will be applicable only to legally appointed employee. As the Petitioner is not employed so, as he had stayed away from duty for nearly 8 years, he is not entitled to claim the relief prayed for. Further no substantial evidence is available on the side of the Petitioner to show that he had minimum continuous service of 240 days in one year and he was recruited prior to 30-3-85 to get a status of Temporary Mazdoor. He has not shown to have requisite qualifications of the conditions mentioned in the scheme. From all these, it is seen that the action of the General Manager in terminating the services of the petitioner as a casual labourer w.e.f. 21-11-92 is proper legal and justified. Hence, the concerned workman is not entitled for any relief. Thus, the point is answered accordingly.

6. In the result an Award is passed holding that the action of the General Manager, Department of Telecommunications, Thanjavur, in terminating the services of Sri A. Mathiyalagan, casual labourer w.e.f. 21-11-92 is proper, legal and justified. Hence, he is not entitled to any relief. No Cost.

(Dictated to the Stenographer, transcribed and typed by him. corrected and pronounced by me in the open court on this day the 17th September, 2001.)

K. KARTHIKEYAN, Presiding Officer Witnesses Examined :

On either side : None

Documents marked:

On either side : Nil

New Delhi, the 19th November, 2001 S.O. 3402.— 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-cum-Labour Court Chennai as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of D/o Telecom and their workman, which was received by the Central Government 19-11-2001.

[No. L-40012/210/95-IR (DU)] KULDIP RAI VERMA, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVT. INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, CHENNAI Tuesday, the 18th September, 2001 Present: K. KARTHIKEYAN,

Presiding Officer

INDUSTRIAL DISPUTE NO. 438/2001 (Tamil Nadu State Industrial Tribunal 1. D. No. 52/97) [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), between the Workman Sri S. Sclvaraj and the Mangement of Department of Telecommunications, Thanjavur.]

BETWEEN

Sri S. Selvaraj : I Party/Workman.

AND

The General Manager, : II Party/Management. Department of Telecommu- nications, Thanjavur.

Appearance :

For the Workman ; Mr. R. Ramesh,

Advocate

For the Management : Mr. R. Karunakaran,

Addl. CGSC

The Govt, of India, Ministry of Labour in exercise of powers conferred by clause (d) of Sub-section (1) and Sub-section 2(A) of Section 10 of Industrial Disputes Act, 1947 (14 of 1947), have referred the concerned Industrial Dispute for adjudication vide Order No L-40012/210/95/IR(DU) dated 234)7-1997.

This reference has been made earlier to the Tamil Nadu State Industrial Tribunal, where it was taken on file as ID. No. 52/97. When the matter was pending enquiry in that Tribunal, the Govt, of India. Ministry of7522 THE GAZETTE OF INDIA: DECEMBER 15, 2001/AGRAHAYANA 24, 1923 [PARI II - -SH:. MnX\ Labour was pleased to order transfer of this case from (hat Tribunal to this Tribunal for adjudication. On receipt of records from that Tribunal, the case has been taken on file as ID. No. 438/2001 and notices were sen! to the 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 27-02-2001. On receipt of notice from this Tribunal, the counsel on cither side present with their respective parties and prosecuted this case further.

When the matter came up before me for final hearing on 31-07-2001, upon perusing the Claim Statement, Counter Statement, the other material papers on record and upon hearing the arguments advanced by the learned counsel on either side and this matter having stood over till 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 Govt, for adjudication by this Tribunal is as follows :—

"Whether the action of the General Manager, Department of Telecommunications, Thanjavur in terminating the services of Shri S. Selvaraj, casual labour w.e.f. 21-11-1992 is proper, legal and justified? If not, to what relief the workman is entitled?"¹

2. The averments in the Claim Statement of the I

party/workman are briefly as follows:—

The T Party/Workman Sri S. Selvaraj (hereinafter

Respondent. His everyday work was allotted and supervised by the Respondent/departmental authorities. The Petitioner has to report for duly regularly. Periodical representations were made to higher authorities to absorb the Petitioner as permanent employee of Respondent since the Petitioner was discharging permanent nature of work and continuous and essential work of the Respondent. After repeated request from him. the Chief Gencrnal Manager, by his order directed all heads of SSA to take back casual mazdoors whose break in service is more than one years and who were terminated and or not admitted for departmental work pending. Accordingly, the Divisional Engineer in his order dated 19-9-92 condoned the break in service to permit the mazdoors to do departmental work. To the shock and surprise of the petitioner the Department of Telecommunications in its letter dated 21 -10-92 has directed not to consider the cases for condonations of break in service, when the break is beyond one year. Accordingly, and as per the directions of Department of Telecommunications, the Divisional Engineer (Admn.) had cancelled the original order condoning the break in service. Therefore, the Petitioner has became ineligible to work as casual mazdoor. As per the direction of Department of the Telecommunications, the petitioner was not permitted to work as casual mazdoor. The casual mazdoors are taken back for duty from March, 1993. The petitioner's wages were paid by the A.E./SDEs. His juniors are absorbed against regular post of Group D or awarded temporary status, but the Petitioner was neither absorbed against regular post of Group D or awarded temporary status. The Petitioner requested for appointment against the regular Group D post in view of his continuous service under the Respondent. To his shock, the Respondent informed the Petitioner that his services were terminated from 21-11-92. The Respondent thereafter, rc-employcd the petitioner under contract basis. The Respondent violated the provisions of Industrial Disputes Act and the act of the Respondent is against the principles of natural justice. The petitioner had put in more than 240 days of service under the Respondent.The petitioner's service were terminated.without giving him notice or notice pay and the Respondent failed and neglected to pay retrenchment compensation. The Petitioner's services were terminated while the Respondent retained juniors in service which is in clear violation of Industrial Laws of the Land.The Petitioner rcised industrial dispute before the Regional Laboour Commissioner, Madras.The Respondent was adamant and refused to give permanent employment to the Petitioner.The matter was referred as an industrial dispute by the Government of India, Ministry of Labour to this Tribunal for adjudication. The Petitioner is ready and willing to work with the Respondent as permanent employee since he was already continuously employed by the Respondent and his nature of work under the Respondent is of permanent nature. Hence, this Tribunal referred to as Petitioner) was working in the II Party/ Management, Department of Telecommunication, Thanjavur District continuously for the past several years. He was doing the work of II Party Department of Telecommunication. Thanjavur (hereinafter referred to as Respondent and was receiving wages directly from the department. He was discharging his duties honestly to the utmost satisfaction of his superior, The nature of work done by him w as permanent and contionuous nature under Ihc Respondent. Without the employees like the Petitioner the Repondent cannot do the work of cable laying, provision of land line panchayat public Telephones, provision of STD public telephones, upgradation of local telephone lines, conversion of Manual exchange to auto exchange, provision of new telephone connection, introduction of STD in some exchanges and cable laying line wire crrection of for providing new phone connection, upgradation of local telephone lines, cable network. He had put in more than 240 days in a yearofscrvice and for the payment of wages, vouchers signed by Petitioner would reveal that he was continuously doing permanent nature of work under7523 may DO pieasea 10 pass an awara nouung mat ine an 01 General Manager, Telecommunication, Thanjavur, in terminating the Petitioner's service as illegal, arbitrary and against principles of natural justice and reinstate the Petitioner with continuity of service, back wages and other attendant benefits.

3. The averments in the Counter Statement of the II Party/Mangement are briefly as follows :—

The General Manager, Telecom, Thanjavur, II Party/Management (hereinafter referred to as Respondent) deny all the allegations made in the claim petition except those that are admitted in the Counter. The Petitioner was engaged as casual mazdoor from 6.3.76. He was working on casual basis. ThePetitioner was not sincere and deserted from work without any intimation from February, 1978. He had not turned up for fourteen years and seven months. The work was not a permanent one. The work was allotted to him whenever necessary purely on casual basis and when tho regular mazdoors were not available due to leave and absentism to excute the nature of work. The work was not of a permanent nature. As and when fault comes on the lines and when there is demand for new connections, the work will be carried out by casual mazdoor on contract basis. The Petitioner was given such type of work when regular mazdoors were not available and when sudden urgent works were to be excuted on priority basis. The Petitioner had worked only for 69 days from 6,3.76 to January, 1978. The work was not a permanent one. He was not working continuously, The Petitioner had not reported for duty regularly and not engaged for duty from Feb. 1978 to 19,9.92 for nearly 15 years. The work was not of a permanent nature. Also The Petitioner had not fulfilled the necessary conditions for getting promotion to temporary status mazdoor. The necessary conditions are —

(1) should be currently employed;

(2) minimum continuous" service of one year;

(3) should be engaged on work atlcast for 240/ 206 days in the year depending upon the type of office employed;

(4) he has been recruited prior to 30.03.1985, The Chief General Manager, Telecom, Chennai letter dated 18.8.92 the D.E. (Admn.) Thanjorc condoned the break in service and taken. The Petitioner to contingency works, The Department of Telecommunications in its letter dated 21.10.92 has directed not to consider the cases for condonation of break in service when the break is more than one year. Accordingly, and as per the directions of Department of Telecommunications the Divisional Engineer (Admn.) 3707GI/2001—12

naa cancenea me onginai oraer conaomng me DreaK in service and hence the Petitioner has become ineligible to work as casual mazdoor. As per the direction of Department of Telecommunications, the Petitioner was not permitted to work as casual mazdoor. The Petitioner was allowed to do work purely on contract basis after March, 1983 and gets the contracted amount from the competent authorities. As per the direction of the Department rules, the Petitioner has not fulfilled the necessary conditions to become a temporary status mazdoor. Since the Petitioner is not covered the above conditions, he is not eligible for TSM, As the break in service is more than one year he was terminated from service, The action was as per departmental rules only. The Petitioner had worked in the department only for 69 days from 6.3.76 to January, 1978. Since the Petitioner has not been absorbed in this department, he is not eligible to be served with any notice or notice pay and he is not eligible for getting retrenchment compensation. The Petitioner has not fulfilled the necessary conditions to become a temporary status mazdoor and as per the departmental rules the Petitioner is not eligible for permanent employment. The Petitioner had worked only for 69 days prior to 30.3,1985. He is not eligible for permanent post. The work given to him was casual, seasonal and intermittent in nature. He is not eligible for continuity of service, back wages and other benefits. Hence, this HonWc Tribunal may be pleased to dismiss the petition.

4. Earlier when the matter was pending before the Tamil Nadu State Industrial Tribunal as ID No. 22/97 an award was passed ex-part against the II Party/Management. Later a petition to set aside that ex-parte order as I, A.No, 20/2001 was filled. When the matter was taken up here, the counsel for the I party had made an endorsement as no objection for the petition to be allowed. Hence, that petition was allowed and the order passed ex~parte earlier in this case by the Tamil Nadu State Industrial Tribunal was set aside. Subsequently, when the matter was came up for enquiry for so many hearings, neither the 1 Party nor his counsel was present to prosecute this case. When the case was taken up finally for enquiry on 25-6-2001 then on 17-7-2001 and finally on 31-7-2001, neither the I parly nor his counsel was present and there was no representation on the side of the I Party/Claimant. The counsel for the 11 Party alone was present and hence, his arguments was heard, No one was examined on either side and no document has been marked on cither side.

5. The Point for my consideration is —

"Whether the action of the General Manager, Department of Telecommunications, Thanjavur in terminating the services of Sri S. Selvaraj, casual labour w.e.f. 21-11-92 is proper, legal and justified? If not, to what relief the workman is entitled?"7524 _ THI- GAZETTE OF INDIA : DECEMBER 15, 2001/AGRAHAYANA 24, 1923 [PART II—Snr. "ifii)] Point:—

It is admitted that the Petitioner was working as a casual labourer m the Respondent Department of Telecommunications for some lime. It is the contention of the Petitioner in his Claim Statement that he had put in move than 24" fl'iys in •> y>"ir of service. Rut no

has not been proved by him. It is admitted by ll.c Peti- tioner himself in his Claim Statement that the Depart- ment of Telecommunications in its letter dated 21-10-92 has directed not to consider the cases of condonation of break in service, when the break is more than one year and accordingly as per the directions of the Department of Telecommunications the Divisional Engineu had can- celled the ongin.ii ordci condoning the break in service. Therefore, the Petitioner has beconme ineligible to work as casual mazdoor. It is also the admission of ihc Petitioner in ihe Claim Statemcnl-that the Respondent informed him that his services were terminated fior.i 21-11-'>2. It has been slated in Counlet Statement also. From all these tilings it is seen that the Petitioner was not eligible to work as casual ma/door since he had a break in service for more than one year and he had nol fulfilled the conditions required for granting temporary status. It is stated in para 12 of Counter Statement that the Peti- tioner was not eligible for temporary status ma/door as the break in service is more than one year and he was terminated from service as per Ihc departmental mles only So from Ihe materials available in this case, it is seen lhal Department of Telecommunications in its letter dated 21-10-92 has directed not to consider the cases for con- donation of break in service, when the break is more than one year. In the case of the Petitioner admittedly he had a break in service for more than one year. So he was nol considered for conferment of Temporary Siatus Mazdoor. So under such circumstances, one month after Ihc order passed by Ihc Department of Telecommunications on 21-10-92 the services of Ihe Petitioner as casual labour was terminated by the General Managei, Department of Telecommunications. Th.'injavurvv.c.f 21-11-92. So from this it is seen that the said action of the Respondent/Man- agement is proper, legal and justified Hence. Ihc con- cerned workman is not entitled for an\ relief as prayed for Thus, the point is answered accordingly.

(Dict.iti il M t he Nicni'grsiptiei. tr,insLi iKil ;m-t UJK-II by lum, cor-

rected And j"pimnincc(t hv me m the npen ci'Uil nn t h^ d ay t he IKlh

fii.plcmher, 2001 I

Witnesses K\iiminril :

On either side NV.ne

DOC'l MENTS MARKK1) :•

On eillier side

\il7525 New Delhi, the 2Ist November. 2001

S.O. 3403.—In pursuance of Section 17 of the Industrial Dispute Act. 1947 (14 of 1947). the Central Government herebv publishes the award of the Central Government Industrui! Tnbuiial-cuiu-Labour Court Chennai as shown in the Annexure in the Industrial Dispute between the employers in relation so the management oflnstitutc of Forest CieueiK s> and I'i ee Bleeding Centre and their workman which was iccched b\ the Central Government on 21-11-2001

|No. I -4201?/7| A)4-IR(D\1}| KULDIP RAI VERMA. Desk Officci

ANNEXTKE

BEFORE THE CENTRAL GOVT. INDUSTRIAL TRIBUNAL CUM-LABOUR. COURT CHENNAI Monday, the 22nd October. 2001

PRESENT:

K. KARTH1KEYAN. Presiding Officer INDUSTRIAL DISnUTE No. 391/2001 (Tamil Nadu State Industrial Tribunal ID. No. 47/95) (In the matter of the dispute foradju' .ation uno.- tS.mse (d) of sub-section (1) uiid sub-section 2iA) of Sat it. n it' of the Industrial Dispute Act. 1947 (14 Of 19+7). r-eivuen the Workman Sri L. Ellaiya and the management oi Institute of Forest Genetics and Tree Breeding Centre. •".-•'i-.'V.f^V).

BETWEEN

Sri L. Ellaiya : 1 Party/Workman

AND

The Director, • II Party/Management, Institute of Forest Genetics and Tr*:¹. Breedings Centre. Coimbatore.

APPEARANCE:

Fur the workman • M/s. M. Gnanasekar &

G. Manjula. Advocates For the management : M/'s. M. Vclusamv, Advocate The Govt. of India. Ministry of Labour in exercise of powers conferred by clause (d) of sub-section (1) and sub-section 2(A) of Section 10 of Industrial Dispute Act. 1947 (14 of 1947). have referred the concerned Induatnal Dispute for adjudication vide Order No. L-42012/71/94- IRARU) dated 4-8-1995.

This reference has been made earlier to the Tamil Nadu State Industrial Tribunal, where it was taken on file as I.D. No. 47/95. 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 ID. No 391/2001 and notices were sent to the counsel on record on either side. Informing them about the transfer of this case to this Tribunal, w ith a direction to appear before this Tribunal on 20-02-2001. On receipt of notice from this Tribunal, the counsel on either side present with their respective parties and prosecuted this case further

When the matter came up before me for final hearing on i 2-09-2001. upon perusing the Claim Statement Counter Statement, the other material papers on record, upon penising the oral evidence let in on the side of the I Party /Workman, upon perusing the written agruments filed by the learned counsel on this either side and this matte: ha\ ing stood o\er till this date for consideration, this Tnhu i ii has passed the following :—

AWARD

The lndistnal Dispute referred to in the above order of iviVciHG by the Central Govt, for adi>:ds - i;i.")it bv this Tribunal ih as follows :—

" Whether ihe action o( the management of Institue of Forest Genetics and Tree Breeding Centre. Coimbatore, m denying the employment to Shu L. IZIlaiya w.e.f. 01- 12-88 is proper, legal and justified" If not. to what relief the workman is entitled?"

2. The averments in the Claim SuuuneiU of the 1 Pail)/Workman aie briefly as follows :—

The F P"rty/Workman Sri L.Ellaiya (hereinafter refers to as Petitioner) has worked as casual daily labour in forest soil-cum-vegetation survey, lndo- Danish Project on seed procurement and tree improvement as well as in the Institute of Forest Genetics and Tree Breeding Centre, from September. 1983 to November 1988 He was terminated from service orally on 1-12-1988 without any valid reasons but some of his juniors are still working in the same institute. The Indtitutc of Forest Genetics and Tree Breeding Centre, was formed in the month of August 1988 by transferring all the employees working in the7526 THE GAZETTE OF INDIA : DECEMBER 15, 2001/AGRAHAYANA 24, 1923 [PART II—SEC. 3(ii)] The 1st Respondent Institute has been constituted as a Society under the Societies Registration Act with ^ffect from 31-1-91. The Petitioner was not employed under the 1st Respondent at any point of time. Therefore.the present claim petition seeking reinstatement and consequential regularisation in the 1st Respondemt Institute is not maintainable. Further, the 1st Respondent is a Scientific and Research Oriented Institution and cannot be called an 'industry' as defined under the Industrial Disputes Act, 1947. Therefore, the claim petition is not maintainable. The Petitioner was employed as a casual daily labour in a particular project from September 1983 to November 1988. That particular project was not the control of the 1st Respondent and therefore, the 1st Respondent is not in a position to counter the said allegation. Even assuming that the petitioner has rendered any past service in the Indo-Danish Project, that will not give him a claim for regularisation under the 1st Respondent Institute. The allegation that he was terminated orally on 1-12-88 by the 1st Respondent is false. The 1st respondent was formed as an independent society w.e.f. 31-5-1991 and not from August 1988 as alleged. The petitioner has given details of some cases, where reinstatement followed by regularisation has been made in pursuant to the orders of Central Administrative Tribunal, Madras and the Petitioner cannot compare himself with those persons in those cases were ones relating to employees of other cadres, who were terminated and thereafter reinstated in pursuant to the orders of the Tribunal. Further, all those persons had rendered previous service and this fact was also admitted by the Respondent. However, in the present case, the petitioner has not rendered any service under the 1st Respondent. Therefore, he cannot compare himself with the earlier cases cited by him. He has also ^ produced any other document or record to show that he was continuously employed from September 1984. even the 1st Respondent docs not have any document or record to substantiate the said allegation. Therefore, the claim of the petitioner has to fail. Hence, the Hon'ble Tribunal may be pleased to dismiss the claim petition.

sub-centres of Ministry of Environmental and Forests, Govt, of India, New Delhi, namely Forest Siol cum Vegetation Survey, Forest research centre, Southern Forest rangers College, Disease Insect Survey, Indo- Danish Project on Seed procurement and Tree improvement located at Coimbatore, Eucalyptus Research Centre, Environmental Research Station, Ooty and Indo-Danish Project on Seed Procurement and Tree Improvement at Hyderabad. All the said 8 centres were merged were marged with Institute of Forest Genetics and Tree Breeding Centre, along with movable and immovable assets lab building and its accessories, field stations etc. Thus, the authorities of Institute of Forest Genetics and Tree Breedings Centre, has become the appropriate authority to maintain the service of the applicant. The workman Sri C. Sekaran and Sri. K. T. Moorthy who were in Environmental Research Station, Ooty were terminated by the Institute of Forest Genetics and Tree Breeding centre authorities and as per the direction of the Hon'ble Central Administrative Tribunal, they were reinstated in service. Mr. R. Soundararajan, casual worker Disease Insect Survey, Coimbatore was also reinstated and regularised according to the final order in O. A. No. 98/99 passed by the Central Administrative Tribunal, As per the orders of Central Administrative Tribunal in O.A. No. 454/86 and Review Application No. 8/91. the workman Sri M. Muthu. casual labour who was terminated from the services of Forest Research Centre and Sourthem Forest Rangaers College has been reinstated in service. That as per the orders of Central Administrative Tribunal, the workman Sri T. Dhiinabal ofForest Research Centre and Southern Forest Rangers College has also been reinstated in service. After the termination of the Petitioner from service, more than 60 workers have been posted in the Respondent Institute. The petitioner had put in a continuous service of one year in September 1984 itself. The Respondent ought to have taken steps to regularise the service of the concerned workman against a Group D' post in September, 1984 itself. Instead of regularising the Petitioner as a group 'D' employee, the Respondemt verbally terminated the service of the petitioner w.c.f. 30-11-1988. It is a violation of principles of natural justice and the pi cvj Mons undei -'ton 25F of the Indistrial Disputes Act. ll>47 and it is a gross violation of Articles 14, 16 and 21 of the Constitution. This Tribunal may be pica J to direct the Respondent/ Management of institute ofForest Genetics and Tree Breeding Centre, to reinstate the petitioner into service with all consequential benefits.

4. When the matter was taken up for enquiry, the petitioner alone was examined as witness on his side as WW1, On the management side, no one has been examined as a witness. On either side, on document has been filed as exhibit. The learned counsel on either side have filed their respective written arguments.

5. The Point for my consideration is—

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

"Whether the action of the managment of Insitute of Forest Genetics and Tree Breedings Centre.

Coimbatore, in denying the emloymcnt to Shri L Ellaiyaw.e.f. 01-12-88 is proper, legal and justified? If not to what relief the workman is entitled?' Point :—

has also not filed any documents to show that he ever worked as a casual labour in Forest Soil cum Vegetation Survey at Coimbatore and then Indo- Danish Project and INGT institute, Coimbatore. Document has been filed by the Petitioner to show that the Institute of Forest Genetics and Tree Breedings Centre, was formed in the month of August, 1988 and by that time all the employees working in various eight centres of Min- istry of Environmental and Forests, Govt, of India, New Delhi were transferred to the Institute of Forest Genetics and Tree Breedings Centre. It is the define contention of the Respondent that Institute of Forest Genetics and Tree Breedings Centre, was formed as an independence Society with effect from 31-5- 199] and not from August, 1988. To substantiate the claim of the Petitioner, he has not filed any document or record to show that he ever rendered any service under Institute of Forest Genetics and Tree Breedings Centre, Coimbatore, The Petitioner has filed a letter from the Institute of Forest Genetics and Tree Breedings Centre, as Annexure No. 4 and another copy of the list of casual labourers of that institute. In both these documents his name has not been mentioned as casual labour along with the names of the other persons. Thus, it is clearly seen that the Petitioner was in no way concerned with the Respondent Institute of Forest Genetics and Tree Breedings Centre, Coimbatore. The letter Written by the Secretary of the Union by itself cannot prove that the petitioner was employed in the Institute of Forest Genetics and Tree Breedings Centre. Coimbatore. The cases referred to by the Petitioner both in his Claim Statement and in his evidence are relating to employees of Respondent Institute who were terminated and thereafter reinstated pursuant to the orders of the Central Administrative Tribunal, However, those persons had rendered previous service in the Respondent Institute itself. The Petitioner cannot compare himself with those persons to ask for reinstatement in service of the Respondent/ Institute of Forest Genetics and Tree Breedings Centre, Coimbatore, as contended by the Respondent in their Counter Statement as well as by the learned counsel in the written arguments. Hence, the claim of the workman is frivolous and it has to be dismissed. Thus, the point is answered accordingly.

6. In the result, an Award is passed holding that the action of the Management of Institute of Forest Genetics and Tree Breedings Centre. Coimbatore, in denying employment to Shri L. Elaiya is proper legal and justified. Hence, the concerned workman is not entitled for any relief. No Cost.

(Dictated to the Stenographer, transcribed and typed by him, corrected and pronounced by me in the open court on this day the 22nd October, 2001.)

K. KARTHIKEYAN. Presiding Officer The Petitioner has stated in his claim petition that he was working as casual labour in Forest Soil cum Vegetation Survey, Indo-Danish Project and Seed Improvement and Tree Imporvcmcnt from September, 1983 to November, 1988 and he was terminated from service orally on 1-12-1988 But it is disputed by the 1st Respondent that the Petitioner has never been in service in that institute i.e. Institute of Forest Genetics and Tree Breedings Centre. It is also contended by the Respondent that the said project was not under the control of the 1st Respondent, Director, Institute of Forest Genetics and Tree Breeding Centre, Coimbatore. WW1, the Petitioner herein has deposed that he joined as a casual labour in Forest Soil cum Vegetation Survey at Coimbatore on 17-08-1983 and he worked in that department upto April, 1998 and subsquently he worked in the Indo-Danish Project for a period of four months till August, 1988. Then he worked in INGT institute at Coimbatore till December, 1988. In the end of November, 1988 and fromOl-12-1988, has was non-employed. It is his further evidence that all the employees of eight-sub-ccntres of Ministry of Environmental and Forests were merged with the Institute of Forest Genetics and Tree Breedings centre, and all the workmen are working in the Institute of Forest Genetics and Tree Breedings Centre, and he was nol given any written notice for terminating him from service and no compensation was also given to him, when orally terminated from service. On cross-examination, it is the evidence of WW1 that he was working as a Watchman in that department on daily wage basis and he has not filed any document in support of the same. It is his further admission in the cross examination that he has not filed any certificate showing that he ever worked in the Institute of Forest Genetics and Tree Breedings Centre, and that he was not given any appointment order in Institute of Forest Genetics and Tree Breedings centre. It is also his admission that he was working as a casual labourer and was doing his work on daily wage basis and he was not employed as a permanent labourer. Even for that lie has not filed any documents in Court. It is also his admission that he has not produced any document to show that the workman, who joins as casual labourer subsequent to him in those departments have been given cmployement. From this, it is seen that the allegation of the Petitioner that he ever worked in the Institute of forest Genetics and Tree Breedings Centre, as a casual labour has not been proved, The Petitioner7528 THE GAZETTE OF INDIA • DFCEMBER 15. 2001/AGRAHAYANA 24, 1923 |P.\RT II—-SRC 3(ii)| (Co-Axcial cable Project),

Sriramanagar. Rajahmundry-105 . Management WW1 Sri L. Ellaiya None

Witnesses Examined : for the Party/Workman : For the II Part>'/Management:

DOCUMENTS MARKED :

Nil

On >'i!hcr side :

This peiition coming on for final hearing bclorc me in the presence of Sri P. Rama Rao. advocate foi workman and Sri M. Rainakoti. advocate for management. Upon hearing the arguments of both sides and on perusing the entire material on record, the court passed the following :

AWARD

(!) This is an application filed under Sec. 2A(2) of the Industrial disputes Act, 1947 for reconsideration of the decision of the employers terminating the services of the petitioner and to restore the benefits to the workman with retrospective effect.

(2) The case of the petitioner is that he worked as New Delhi, the 21st No\ember. 2001

S.O. 3404.—-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-aim-1 abour Court Visakhapatnam as shown in the Annexure in the !;iil.is'n >! Dispute between the

e m p l o y e rs in r e l a t i on to ! ! '• > •• M I . - ' -I i i u r .n of D /o T e l e c om

a nd t h e ir w o r k m an w l u ui n . is U -A .. • • t he C c n l r al

Government on 21 -11 -200 i

§:... L i-to:5/14/2001-IR(DU)l

Kl il DIP KAI VERMA, Desk Officer

ANNEWRE

casual mazdoor under the control of the second respondent. The 1st respondent is the higher authority to the 2nd respondent. The petitioner worked at Rajahmundry since 1994 and worked for more than 258 days. He worked upto 16-2-85 at various places at Rajahmundry. Siikakulam. Turn and Anakapaih and his services were terminated unlawfully b\ the management. Thereafter the potitioner approached the management several times for absorption, but the management dragging the matter for years together and final h on 18-6-99 he issued a registered notice on the workman asking them to reconsider its decision of termination from service and to restore him into service. But no reply was given by the management. The workman used to draw a sum of Rs. 270/- per month towards his salary at the time of his termination.

IN THE COURT OF 1NPUSTRI '! TRIBTlNAL-CUM- LABOUR- CO! iRT VISAKHAPATNAM

PRESENT:

Sri K. Veerapu Naidn. B Sc. i*l. C"v.v,w.- :;;

Presiding Officer

Dated. 11th Ociobcr. 20(.-'

I. T 1 D.No (C)^./<)9

BETWEEN

M Venkaia Ramana,

S/o. Apparao.

C/o. Apparao.

D. No. 10-3-11. Chinarajupeta.

Oddu\cedhi.

(3) On the other hand, il ss (he case of Ihc management that the service certificate produced b\ Ihc v, orkni• • n is forged. The workman never w orked as casual l.ii-o.ir under control of the 2nd respondent. It is false to allege that he worked for 258 days The applicant never worked at Rajahmundry He applicant was not engaged by the second respondent ut am time and hence the question of terminlion does not aiisc. Since there is no record relating to the applicant in the office no reply is given to the registered notice. The applicant iv\ cr worked even as a r.".?unl in the respondent and ihc application is> bad for mis-joinder of the 1st respondent and he has nothing to do with the engagement of any casual laboin much less the applicant. This is a false v 'nun snide h\ the applicant misleading the court and flic s.:mc :s u> k rciected and the petition is liable in Iv •;* t K,r> Anakapalh. Visakhapatnam Dist . . Workman

(4) On behalf of Ihc work mr.n. WWt ••.;\,\ ' aic AND

1i) The Chief General Manager.

examined ;md ;JOI marked Exs Wl 10 W i. On behalf of the majuiyir.en! MV.'l is examined and k\ Ml work ciders file containing 181 pages are marked

Telecom. A. P.. Hyderabad.

(2) The Assistant Engineer,

(5) Heard both sides. (6) The point that arises for consideration in the

case is :

Telephone & Telegraphic Department, 7^2y (1) Whether the puitionu worked as casual labour

Cor about ?."8 days in the respondents ?

(.?) Win (lice ilit- kniitiKiiion * I \bc services of the

w o r k m an on

. 'v ' • * ' • "' is I I I L - J " . . :! a nd w h e t h er t he

the signatures, as submitted by the workman's mn^e. I see no similarities in the signatures of P Sundci Rao on Hx. Wl and his deposition Therefore rwlei I!K circumstances much credence cannot be given w, this I W'

sen ices ofllie petitioner nrc-tobc restored?

(11) further the case of the workman is that his son-ices arc terminated on 16-2-85 and he kept quite till ic otHi'ined the certificate Ex. Wl and after he got Ex. Wl certificate he issued lawyer's notice dated 29-6-88 i e. for about 9 years, he kept quite. His case thai he approached the management several times but he did not depose that fact even as WW1. Therefore, there is no acceptable evidence on the part of the workman to show that he worked as casual mazdoor under the second respondent. Hence 1 answer the point No. 1 in favour of the management and against (he petitioner.

(12) In view of my findings on point No. 1. (he question of restoration of the petitioner docs not arise. No doubt, both the parties have urged that telecom department is not an industry. Now it is a settled law that the telecom department is an industry' under Sec 2(j) of the l.D. Act as it is engaged in commercial activity and is not discharging any sovereign functions of the State as laid dow n by the Apex Court in a decision reported between General Manager. Telecom Vs. S. Snnivasa Rao and others AIR 1998 SC 656. Therefore, much labour or exercise is not needed in deciding the said point.

(7) Points V & 2 .- -The case of (he workman is that he worked as casual I :i/.door when coaxial cible lines wore bring laid in June, ll'S-l ui"dcr (he leluU'in depnrtincnl at Rajahmundry and he continued as such at \anous places foi more than 258 days. In support of the ease he filed service ccrlificatc Hx. Wl issued by one Sri P Sunder Rao who is later examined as MW1 on commission and who worked as Assistant Engineer in Coaxial cable project Rojahmundry from July, 1985 to September. 1987. Besides Ex. Wl the workman is also examined as WW1 and deposed that he joined in service on 9-6-MJ84 and his services were terminated in the year 1985. He was not given any notice before he is retrenched. Ofcourse, he issued a lawyer's notice and the office copy of which is Fv W2 and V\M is the postal acknowledgement and no replv was gi\cn. It is suggested to this witness that this E\ Wl is fabricated document and brought into existence for the purpose of this case and it is a forged one and that Sunder Rao did not issue the same. The workman also examined WW2. who used to maintain in lea stall near 4 roads junction and he witnessed the petitioner in laying the telephone wires. In the cross- examinaliou he admitted that he do not know under whom and in whose office the petitioner used to work.

(X) So the case of the management is that the petitioner never worked as casual labour nor the certificate was issued by P. Sunder rao the then Assistant Engineer and thai Ex W1 is a forged one Ex. Wl did not bear any date,

(H) Further the learned counsel appearing for the workman contends that the workman was retrenched without any notice as contemplated under Sec 25F of the l.D. Act. This contention has no force because ihc applicant in this case failed lo establish thai lie is a workman under the respondent. Therefore. i!:e application under Sec. 25F of the l.D. Act docs not arise.

(14) In view of my aforesaid discussion on points 1 and 2 1 answer both the points in favour of the management and against the petitioner

(15) In the result, the petition is dismissed and nil award is passed. However, there is no ordei as costs and each party is directed to bear the own costs.

(Dictated to steno transcribed by her given under my hand and seal of ihc court this the 11 th day of October, 200 ],)

K. VEERAPU NAIDU. Presiding Officer

Appendix of evidence :

Ex. W2 : 29-6-99 : Registered Lawyer's notice issued to the management by the workman's advocate. Ex. W3 : Postal acknowledgement and receipts.

For management;

Ex. Ml : Work orders file containing 181 pages.

New Delhi, the 20th November, 2001 S.O. 3405.—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-cum-Labour Court Chennai as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of Southern Railway, Chennai and their workman which was received by the Central Government on 19-11-2001.

[No. L-41012/271/95-IR(B.I.)]

AJAY KUMAR, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVT, INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, CHENNAI Friday, the 12th October, 2001

PRESENT:

K, KARTHIKEYAN, Presiding Officer INDUSTRIAL DISPUTE NO. 424/2001 (Tamil Nadu State Industrial Tribunal I.D. NO. 21/97) (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), between ihe Workman Sri K. S. Suryanarayana and the Management of General Manager, Southern Railway, Chennai.)

BETWEEN

Sri K, S, Suryanarayana : I Party/Workman AND

The General Manager, : II Party/Management Southern Railway, Chennai.

Appearance;

For the Workman : Mr. S. Bakthavatsalu,

Authorised Representative For the Management : Sri M. T. Arunan,

Advocate

The Govt, of India, Ministry of Labour in exercise of powers conferred by clause (d) of Sub-section (1) and Sub-section (2A) of Section 10 of Industrial Dispute Act, 1947 (14 of 1947), have referred the concerned Industrial Dispute for adjudication vide Order No .L-41012/2 71 /95 - IR(B-I) dated 05.03.1997.

This reference has been made earlier to the Tamil Nadu State Industrial Tribunal, where it was taken on file as I,D. No. 21/97, 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, 424/2001 and notices were sent to the authorised representative for the I Party/workman and the counsel for the II Party/Management on record, informing them about the transfer of this case to this Tribunal, with a direction to appear before this Tribunal on 26.02.2001. On receipt of notice from this Tribunal, the authorised representative for the I Party/workman and the counsel for the 11 Parly/Management present with their respective parties and prosecuted this case further, When the matter came up before me for final hearing on 12,09.2001, upon perusing the Claim Statement, Counter Statement, the other material papers on record, the oral and documentary evidence let in on either side, upon hearing the arguments advanced by the learned authorised representative for the I Party/Workman and the learned counsel for the II Party/Management and this matter having stood over till (his date for consideration, this Tribunal has passed the following: -

AWARD

The Industrial Dispute referred to in the above order of reference by the Central Govt, for adjudicating by this Tribunal is as follows:—

"Whether the action of retiring the disputant workman, Shri K.S.Suryanarayana, Group 'D¹ on superannuation at the age of 58 years by the General Manager, Southern Railway, Madras is justified? If not, to what relief is the workman entitled?"

2, The averments in the Claim Statement of the I Party/Workman arc briefly as follows:-

The I Party/Workman Sri K.S.Suryanarayana (herein after refers to as Petitioner) was recruited in Southern Railway as Lascar and absorbed in a permanent vacancy in the Grain-shop department on Rs.3 5/- P. Murugesan with effect from 15-5-46 and confirmed. On7531 and higher terminal benefits as claimed to a total sum of Rs.1,75,847.

3. The^ averments in the Counter Statement of the

II Party/Management are briefly as follows: -

The II Party/Respondent/Management, Southern Railway (hereinafter refers to as Respondent) submits that the Petitioner Sri K.S. Suryanarayana raised similar claims before the Central Govt, Labour Court, Chennai vide CCP No. 66 of 1989 which was dismissed by the Hon'ble Labour Court. He had also raised the issue twice before the Regional Labour Commissioner, who had recorded a failure of conciliation report. Therefore, the Respondent submits that the petition is barred by the principles of res judicata and the Hon'ble Tribunal to dismiss the same solely on this ground alone. Moreover, the Petitioner was retired from service as per extant rules due to superannuation on reaching the age of 58 years on 31-3-83 he had raised the industrial dispute and after a lapse of more than a decade which is obviously a belated claim. Hence, the petition is liable to dismissed on the ground of limitation. Hence, this Hon'ble Tribunal may be pleased to dismiss the petition as devoid of merit.

4 When the matter was taken up for enquiry, the authorised representative for the I Party/Petitioner and the counsel for the II Party/Management had consented for marking the documents on either side as Ex.Wl and Ml to M4. Neither party to the dispute has chosen to let in any oral evidence. The arguments advanced by the learned authorised representative for the I Party and the learned counsel for the II Party were heard.

4. The Point for my consideration is -

"Whether 'the action of retiring the disputant workman, Shri K.S. Suryanarayana, Group 'D' on superannuation at the age of 58 years by the General Manager, Southern Railway. Madras is justified? If not, to what relief is the workman entitled?"

Point:—

completion of eight years of continuous service, he was medical de-categorised from BB1 to CC1 group on 14-11-1954 and the Petitioner was reverted from Rs.40 to Rs. 3 5 on lesser rate of pay and posted as peon without protecting the emoluments nor protected with an alternative post in the same emoluments. Thus, the II Party/Management/Southern Railway has violated the Rule No. 2614 of Railway Establishment Manual. No enquiry was conducted or show cause notice was issued prior to the reversion, which is against the principles of natural justice. As per the award of Class IV promotion committee, the concerned workman was not granted the higher wages on completion of three years continuous service against the enhanced quota percentage of 33-1/3 of post reserved in higher grades, under Statutory Rule No. 189/IV of Railway Establishment Manual Vol.1. When the Second Pay Commission awarded the scale of Rs.80-220 for senior post of Peon with effect from 1-7-59 and the total service of 13 years from 1946 to 1959 was not taken into consideration for fixation of pay in revised scale of Rs. 115 on point to point formula prescribed by the Second Pay Commission, When the 3rd Pay Commission awarded Rs.260-400 for Senior Record Sorters according the channel of promotion, the junior most peon Mr. P. Rajagopal, who came on transfer on bottom seniority and ranking 106 in the seniority list was given accelerated promotion from 1-1-73 ignoring the Petitioner who is the senior in higher rank of 78 in seniority list. The Petitioner was not granted the stepping up of pay equivalent to that of his junior Sri P. Rajagopal under Rule 2017/R and 2018/R of Railways Establishment Code Vol.11. The Petitioner is a group D railway servant and his date of birth is 1-4-1925 and appointed to Railway Service on 15-4-46 prior to 1st December, 1962. He is entitled to serve up the age of 60 years under Rule 1801 (FR 56/B) of Railways Establishment Code Vol.11 and the Petitioner was prematurely retired on 31-3-83 erroneously against the Statutory law on lesser terminal benefits. No notice was issued under sections 25N and 33(2)(B) of the Industrial Disputes Act, 1947 nor permission taken from the competent authority prior to removal. The matter was raised before the Central Conciliation Officer at Madras on 6-7-94 and the Respondent failed to give any reply nor contradicted to the relief prayed for by the Petitioner. The action of the General Manager to deny the benefits and to retire the Petitioner prematurely from 31-3-83 is wholly unjustified and illegal and the Petitioner is entitled to get the consequential benefits mentioned above under sections 2A and 2K of the Industrial Disputes Act and eligible for the difference of higher terminal benefits of pension, gratuity, leave salary, laking the total service from 15-4-46 to 13-3-1985 into consideration. Hence, it is prayed that the Tribunal may be pleased to set aside the orders of premature retirement and to extend all the benefits under the awards of Central Pay Commission

The Petitioner Sri K.S. Suryanarayana joined the Railways as Group TJ' on 15-4-46 At that time, the Respondent Railways was functioning as a company. In 1951 Southern Railway was formed. It is the admission of the Petitioner himself as WW1 that time he was given Rs.35 per mensum as his remuneration and subsequently after 8 years of service he was sent for medical examination. In the medical test, he was found fit for CC1 group. So he was not given promotion to the post of Kalasi of BB1 group from the post of Lascar, he was holding which was categorised as CC 1 group. That was on 14.11.1954 So he was sent back to Grand-shop department to work in the same post of Lascar and his pay also was reduced from Rs. 40 to Rs.33. It is admitted that the Petitioner has already filed C C P. No. 96/86 before the Central Labour Court, Chennai. Ex Ml is the xerox copy of the order passed in that case 3707GI/2001—137532 THE GAZETTE OF INDIA : DECEMBER 15, 2001/AGRAHAYANA 24, 1923 [PART II—SEC. 3(ii)] was dismissed. So, this aspect of fixation of pay has already been considered by a competent Court under Ex.M2. As it is contended by the Respondent/ Management, it operates as res judicata for this case also. It cannot be denied.

5. The next contention of the Petitioner that he was retired from service as per the extant rules before he attains the age of 60 years. The action of the Management in retiring the Petitioner from service on superannuation at his age of 58 years is unjustified. Admittedly, he has not raised this plea in his previous cases filed before the Labour Court as well as before the Central Administrative Tribunal. In the year 1995, when he raised a dispute before the Regional Labour Commissioner (C) Chennai, as it is seen from Ex.M3, xerox copy of the failure report of Regional Labour Commission, Chennai, he has raised this dispute. At that time itself, the Respondent/ Management has contended before the Regional Labour Commissioner (Central), Chennai that it is a highly belated plea raised after a decade and the Petitioner has not filed any substantive evidence before the Regional Labour Commissioner, Chennai itself to show his actual date of birth and to prove that he attains his age of 60 years only two years later than the date on which he has been retired from service by the Respondent/Management. Here, in this case also he has not stated about his date of birth and his actual date on which he attains the age of 60 years of age. It is not disputed that the Petitioner has made this plea only after a lapse of a decade period and it is a stale claim. Admittedly, the past records are not available with the Respondent/Management due to destruction after the prescribed time to verify whether the claim made by the Petitioner about his date of superannuation is correct or incorrect. Under such circumstances, as it is contended by the Respondent counsel that the relief claimed by the Petitioner in respect of his age of superannuation cannot be decided now. So, the action of the Management in retiring the Petitioner from service on 31-3-1983 cannot be considered as a premature retirement of the Petitioner from service. Under such circumstances, it cannot be held that the action of the management of Southern Railway in retiring the Petitioner from service on 31-3-1983 is unjustified. Thus, the point is answered accordingly.

6. In the result, an Award is passed holding that the action of the General Manager, Southern Railway, Madras in retiring the petitioner/workman Sri K.S. Suryanarayana Group 'D' from service at his age of 58 years is justified, Hence, the concerned workman is not entitled for any relief. No Cost.

(Dictated to the Stenographer, transcribed and typed by him, corrected and pronounced by me in the open court on this day the 12th October. 2001.)

dated 28-3-1990. It is seen from the Ex.Ml that the Petitioner has raised a plea in that case that he was not given stagnation increment he was entitled on 1-3-1976 itself and from 1-3-76 to 31-3-83, the date on which he retired from service, he is entitled to get Rs. 3,000 towards stagnation increment. He is entitled to get higher retirement benefits of Rs. 1200 from 1-4-1993, as the Petitioner was retired from service on 31-3-1983. As per the contention of the Respondent, the Petitioner was given a promotion on 9-3-1983 itself and was given monthly salary of Rs.250 and his basic pay was under the grade of Rs. 200 to Rs, 25O.He retired from service on31-3-1983. It was contended by the Respondent that when the Petitioner was retired from service on 31-3-1983, there was no question of stagnation increment for the Petitioner. It is also seen from that order that the order was passed by the Respondent/Management to give effect for the stagnation increment only from 7/83, It is found by the Court, as per that order, that since the Petitioner had retired from service on 31-3-83 itself, he is not entitled to get stagnation increment as claimed. Thus, the petition was dismissed by the Central Govt. Labour Court, Madras . In that petition, the Petitioner has not raised the plea that his pay was not properly fixed as per the 2nd and 3rd Pay Commission and he was entitled to retire from service at his age of 60 years on superannuation. Subsequently, the Petitioner has filed a case as CCP No.69/89 before the Central Govt. Labour Court. Chennai and it was ordered on 18-05-1994. The xerox copy of the same is Ex.M2. In that case, the contention of the Petitioner is that his pay was not properly fixed as per the 2nd Pay Commission and 3rd Pay Commission. In that case also, he has not claimed that he is entitled to retire from service at the age of 60 years on superannuation. It is seen from the order Ex.M2, that the Court was pleased to hold that the Petitioner is not entitled for the benefitsclaimed as he has retired from service on 31 -3-83 itself. The order for giving stagnation increment to eligible persons came into force only on 1-7-1983. E.vM2 is the xerox copy of the order passed by the Central Govt. Labour Court, Chennai in C.C.P.No.69/89 on 18-5-1994, In that order itself, the Hon'ble Central Govt Labour Court, Chennai had held that the Peittioner not entitled for the relief claimed there in the petition. In the petition filed by the Petitioner under section 33C (2) of Industrial Disputes Act, 1947, claiming computation ofcertain monetary benefits due to him from the Respondent also, it is not his plea that he has prematurely retired at the age of 58 years and he was entitled to retire from service at the age of 60. He has stated in that petition that the fixation of pay as per 2nd and "3rd Pay Commission on the post he was holding at that relevant time was not proper and he is entitled to be fixed at much higher level. The contention was not accepted by the Court and the relief prayed for by the Petitioner in that petition was not granted and the petition

K. KARTHIKEYAN. Pesiding Officer7533

Witnemej Examined:

ANNEXURE

For the I Party/Workman : WW1 Sri K. Suryanarayana

for the II Party/Management :MW1 Shri H. Prithiviraj

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM-LABOUR COURT, Documents Marked

JABALPUR

For the I Party/Workman

Case No. CGIT/LC/R/82/89

Ex. No. Date Description

PRESIDING OFFICER: SHRI K. M. RAI

Wl 31.12.83 Xerox copy of the office order No. 311/83 of

Assistant Personnel Manager.

For the II Party/Management

Ex.No. Date Description Ml 28.03.90 Xerox copy of the order of CGIT Cum Labour Court Chennai In CCP No.96/86

M2 18.05.94 Xerox copy of the order of CGIT

Cum Labour Court,Chennai In

CCP NO.69/89.

M3 05.12.95 Xerox copy of the Conciliation failure report sent By the Regional Labour Commissioner (C) Chennai.

M4 18.06.87 Xerox copy of the order of Central Administrative Tribunal, Chennai In Transfer Application No.342/ 86.

New Delhi, the 20th November, 2001 S.O. 3406.— 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 Jabalpur as shown in the Annexure in the Industrial Dispute between the employers in relation to the management Malajkhand Copper Project and their workman, which was received by the Central Government on 19-11-2001.

[No. L-43011/9/85-D. 3 (B)]

B. M. DAVID, Under Secy, Sri Ishwar Dayal Shri Durga Prasad Bhisen Sirdu Singh Gyan Singh Pachloo Singh Nehru Lal through Copper Mines Workers Union (INTUC) PO Malajkhand, Distt, Balaghat (MP) Applicant versus

The General Manager, Malajkhand Copper Project, Hindustan Copper Ltd., Malajkhand Copper Project, P.O. Malajkhand

Distt, Balaghat Non-applicant

AWARD

Passed on this 5th day of November-2001 1. The Government of India, Ministry of Labour vide order No, L-430Il/9/85-D,III(B) dated 7-4-89 has reffered the following disputs for adjudication by this tribunals:

"Whether the action of the management of Malajkhand Copper Project of WEL PO Malajkhand Distt. Balaghat in dismissing the services of Shri Ishwardayal, Durga Prasad Bhiscm, Sirdu Singh, Gyan Singh, Pachloo Singh and Nchrulal Mazdoors w.e.f July 87 is justified. If not, what relief are the concerned workmen entitled to?'¹

2. The case for the Union is that during the year 1975 -1980 Hindustan Copper Limited (Malajkhand copper project) acquired the agricultural lands of his agriculturists for mining operations. The Bhoomi Swamy of the acquired lands were paid compensation by the management. At the time of acquiring the agricultural lands, the aagreement was arrived between the land owners and the Hindustan Copper Project that the employment will be provided to the dependents (family members) of the land owners whose lands were acquired for mineral exploration.

In the agreement, there was no such stipulation that only real sons of the land owners will be provided employment. The employment was to be given to the dependents of the land owners.

mutual agreement. At the time of acquisition of land agreement was made between the management and the land owners that the management shall give employment to one direct dependent of the displaced family. The workman in this case secured employment from the management by proescnting themselves as dependents of the displaced persons whose land was acquired. It was not in the knowledge of the management that the workmen were not the real dependents of the displaced persons After some time, the sons of the displaced persons made complaint against the workmen for securing employmnent by giving false declaration in respect to their being dependents of the displaced perosn whose lands were acquired. The vigilcnce enquiry was conducted by the management and it was found that the workmen had given false information in respect to their being dependent of the displaced persons. After this enquiry, the chargesheet was served on the workmen and their reply was obtained.

3. Tt has been further alleged by the Union that the Hindustan Copper Limited (Malajkhand Copper Project) acquired the agricultural lands of Shri Anantram, Dayaram, Bhuddu Ginge Singh, Charan Singh and Pouni. the workmen Ishwar Dayal, Durga Prasad, Sirdu singh, Gyan Singh, Pachloo Singh and Nehrulal are the depends of Anantram, Dayaram, Bhuddu, Ginge Singh, Charan Singh and Pouni respectively. As per agreement, the owners offered their dependents for giving employment by the Malajkhand Copper Project. As per terms and conditions of the agreement, the management employed Shri Ishwardayal, Durga Prasad, Sirdu Singh, Gyan Singh, Pachloo Singh and Nehrulal w.e.f. 18-9-79, 12- 11-79, 29-3-82, 22-12-79, 7-1-79 and 25-1-78 respectively. The workman were given employment after verification of their records by the management. The management was fully aware of the fact that the workmen were the dependents of the landowners and not their real sons.

6. The management further alleged that the reply of the workmen were not found to be satisfactory and therefore the DE was conducted against them. They were given ample opportunity to defend their case before the Enquiry Officer. They fully participated in the enquiry proceedings. The Enquiry Officer had given opportunity to the workmen to adduce the evidence in support of their defence. After cerefully examining the facts and circumstances of the record, the Enquiry Officer rightly held the charges proved against the workmen. The Disciplinary Authoriry accepted this report and dismissed the services of the workmen in a lawful manner. During the enquiry, it was found that the workmen had given forged documents to secure employment. The enquiry was conducted in a just and fair manner. The imposition of punishment of termination from service is proportionate to the circumstances of the case. The workmen had deliberately given wrong information regarding the displaced persons being their father. In this way the workmen had exercised fraud by the management in securing employment and therefore they are not entitled to reinstatement with back wages.

7. The following issues arise for decsion in this

case and my findings thereon are noted hereinafter:—

1. Whether the DE conducted against the

workmen is just and proper?

2. Whether the management is entitled to lead evidence to prove the alleged misconduct of the workmen.

3. Whether the management had illeqally 4. It has been further alleged by the Union that the management served the workman with chargesheet alleging that they had committed misconduct by giving raise information in respect to the name of their father. They submitted reply to the chgargesheet which was not found to be satisfactory by the management. The management conducted DE against the workmen for committing the alleged misconduct during to course of enquiry, ample opportunity iras not given to him by the Enquiry Officer to estahMsh iHieir defence. The Enquiry Officer conducted the enquiry in a biased manner. They were not allowed to adduce defence witnesses to substantiate their claim before the Enquiry Officer. The entire enquiry was conducted in violation of rules and principles of natural justice. The Enquiry Officer wrongly held the charges proved against the workman. The Disciplinary authority illegally accepted the report of Enquiry Officer and passed the order of dismissel against them. The management therefore reinstated the workmen and they were given fresh appointments to the post of mazdoor on 18-9-85. Giving fresh appointment to the workmen goes to show that the management had waived the punishment imposed on the workmen. The workmen continuously worked till 15th July, 1987. They were not given any retrenchment compensation according to the provisions of Sec 25 F of the I.D.Act, 1947 Before terminating the services w.e.f. 15-7-87, no departmental enquiry was conducted against them. The order of termination passed by the management is illegal and deserves to be queshed, The workmen arc entitled to reinstatement with back wages.

terminated the services of the workmen?

4. Whether the workmen are entitled to

reinstatement with back wages?

5. Relief and costs?

5. The case for the management is that the Malajkhand Copper Project of Hindustan Copper Limited has acquired some agricultural lands from various land owners for mining operations form year 1973 onwards. The compensation was paid to the land owners as per

8. Issues No, 11&22:

Getting employment by adopting unfair means shall not entitled them to be reinstated as claimed by them. They are also not entitled to get any monetary benefits in this case. Issues No. 3 & 4 are answered accordingly.

11. Issue No, 5:

On the reasons stated above, it is held that the workmen were rightly dismissed from service by the management. Initially they had no authority to get employment as dependents of the displaced persons whose were acquired by the management for mining operations. They arc also not entitled to get any monetary benefits claimed by them. The reference is accordingly answered in favour of the management and against the workmen.

12 Copy of the award be sent to the Government

of India, Ministry of Labour as per rules.

K.M..RAL Presiding Officer The workmen Sirdu Singh, Gyan Singh Pachloo Singh and Nehru Lal have examined themselves before this court to prove their claim Shri Sukhram and Ramlal Mahar have been examined as independent witnesses on behalf of the workmen. These two witnesses have no knowledge about the DE conducted by the mangement against the workmen, The said workmen had not stated specifically that the DE conducted against them by the management is improper. They never deposed in a specific term that the Enquiry Officer had not given them ample opportunity to defend this case properly before him. On the contrary, they have no grievance regarding the proceedure adopted by the Enquiry Officer conducting the DE. At the same time there is nothing on the report that the Enquiry was not conducted in a just and proper manner and the workmen had no opportunity to defend their case in an effective manner. From the record no prejudice appears to have been caused to the workmen by the procedure adopted in the Enquiry Officer. In view of all these facts it is not established that the enquiry has been conducted in an unfair manner. It is therefore held that the enquiry conducted against the workmen is just and proper and therefore the management is not required to lead any further evidence to prove the alledged misconduct of the workmen. Both these issues are answered accordingly.

9. Issues No. 3 & 4 :

New Delhi, the 20th November. 2001

S.O. 3407.— 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, Jabalpur as shown in the Annexure in the Industrial Dispute between the employers in relation to the management Malajkhand Copper Project and their workman, which was received. by the Central Government 19-11-2001.

[No, L-43011/10/88-D.III (B)l The workmen has clearly admitted that they are not the real sons of the displaced persons whose lands have been acquired by the management for mining operation. They claimed to be relatives of the land owners whose lands have been acquired. During the enquiry proceedings also the workmen never put forth that they were the near relatives of the displaced persons who had either adopted him or had authorise the management to give them employment in lieu of their land acquired for mining operations. For the first time, the workmen had introduced their defence before this court. As per agreement only dependents of the displaced persons were to be given employment and not the relatives. In this way the workmen secured employment by giving false information to the management claiming themselves to be the dependent of the displaced persons.

B. M. DAVID. Under Secy.

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

JABALPUR

Case No. CGIT/LC/R/60/89

PRESIDING OFFICER: SHRI K, M RAI 10, The aforesaid facts go to show that the workmen have secured employment by givfftg false information regarding their parentage to the management. They were not the real dependent of the land owners whose lands have been acquired by the management for the purposes of mining operations. Due to this fact subsequently the real sons of some displaced persons made complaint to the management and the Enquiry was initiated by the management. Ultimately it was dctacted that the workmen were not the real dependents of the displaced persons and therefore they are not entitled to get employment as per agreement.

Sri Bipat Singh Shri Kuman Singh7536 THE GAZETTE OF INDIA : DECEMBER 15, 2001/AGRAHAYANA 24, 1923 [PART II—SEC. 3(ii)] Shri Toofan Singh Shri Ram Singh through Copper Mines Workers Union (JNTUC) Distt^Balaghat Applicant

Versus

The General Manager, Malajkhand Copper Project, PO Malajkhand

Distt. Balaghat Non-applicant

AWARD

Passed on this 5th day of November, 2001

1. The Government of India, Ministry of Labour vide order No. L-43011/10/88-D.III(B) dated 8-3-89 referred the following dispute for adjudication by this tribunal:

employment to his adopted son Toofan Singh and Shri Charku offered employment to his adopted son Ramsingh in Malajkhand Copper Project, At the time of giving employment the management had the knowledge that the workmen were the close relatives and adopted sons of the persons whose lands were acquired by the management. The father's name of the workman were not entered in the appointment letter issued by the management. The father of workman Kuman Singh died after the birth of Ram Singh and he was adopted by his maternal uncle Charuk whose lands were acquired. After making verifications, the management was satisfied and gave the employment to the workman. The workman continued to serve till 1986 when their services were terminated. The real land owners had permitted the management to acquire their lands with a condition that the workmen would be given employment under displaced persons category. The management had accepted it. Thereafter the workman had been given employment according to the terms of agreement, No fraud was committed by them. At the time of giving employment, the management had obtained the signature of workmen on plain paper.

"Whether the action of the management of Malajkhand Copper Project of Hindustan Copper Ltd. PO Malajkhand Distt. Balaghat in dismissing Shri Bipat Singh, Kuman Singh, Toofan Singh Marwari and Ram Singh from service w.e.f. Jan./ Feb. 86 is justified. If not, what relief are the concerned workmen entitled to?"

2. The case for the Union is that during the year 1975—1980 Hindustan Copper Limited (Malajkhand Copper Project) acquired the agricultural lands of the agriculturists for mining operations. The Bhoomi Swamy of the acquired lands were paid compensation by the management. At the time of acquiring the agricultural lands, the agreement was arrived between the land owners and the Hindustan Copper Project that the employment will be provided to the dependents (family members) of the land owners whose lands were acquired for mineral exploration.

In the agreement, there was no such stipulation that only real sons of the land owners will be provided employment. The employment was to be given to the dependents of the land owners whose lands were acquired.

4. It has been further alleged by the Union that the management served the workman with chargesheet alleging that they had committed misconduct by giving false information in respect to the name of their father. They submitted reply to the chgargesheet which was not found to be satisfactory by the management. The management conducted DE against the workmen for committing the alleged misconduct during to course of enquiry. Ample opportunity was not given to them by the Enquiry Officer to establish their defence. The Enquiry Officer conducted the enquiry in a biased manner. They were not allowed to adduce defence witnesses to substantiate their claim before the Enquiry Officer. The entire enquiry was conducted in violation of rules and principles of natural justice. The Enquiry Officer wrongly held the charges proved against the workmen. The Disciplinary authority illegally accepted the report of Enquiry Officer and passed the order of dismissal against them. The management therefore reinstated the workmen and they were given fresh appointments to the post of mazdoor on 1985. Giving fresh $pointmcnt to the workmen goes to show that the management had waived the punishment imposed on the workmen. The workmen continuously worked till 15th July 1987. They were not given any retrenchment compensation according to the provisions of Sec 25 F of the I.D.Act, 1947. Before terminating the services w.c.f. 15-7-87. No departmental enquiry was conducted against them. The order of termination passed by the management is illegal and deserves to be quashed. The workmen are entitled to reinstatement with back wages.

3. It has been further alleged by the Union that as per terms and conditions of the agreement, for giving employment to the family members, the workman Bipat Singh, Kuman Singh. Toofan Singh and Ram Singh applied to the Malajkhand Copper Project for giving employment to them. At the time of acquisition of the land, the workman were cultivating the lands of their uncle or their maternal uncle or grand father. After the acquisition of the land, the workman become unemployed. .Accordingly Shri Bhansilal Maternal uncle of workman Bipat Singh, Shri Samharu Singh, maternal uncle of Shri Kuman Singh offered to give employment to them. Likewise Shri Bhagloo offered7537 5. The case for the management is that the Malajkhand Copper Project of Hindustan Copper Limited has acquired some agricultural lands form various land owners for mining operations from year 1973 onwards. The compensation was paid to the land owners as per mutual agreement. At the time of acquisition of land agreement was made between the management and the land owners that the management would give employment to the direct dependent of the displaced family. The workmen in this case secured employment from the management by presenting themselves as dependents of the displaced persons whose lands were acquired. It was not in the knowledge of the management that the workmen were not the real dependents of the displaced persons. After some time, the sons of the displaced persons made complaint against the workmen for securing employment by giving false declaration in respect to their being dependents of the displaced persons whose lands were acquired. The vigilence enquiry was conducted by the management and it was found that the workmen had given false information in respect to their being dependent of the displaced persons. After this enquiry, the chargesheet was served on the workmen and their reply was obtained,

6. The management further alleged that the reply of the workmen were not found to be satisfactory and therefore the DE was conducted against them. They were given ample opportunity to defend their case before the Enquiry Officer. They fully participated in the enquiry proceedings. The Enquiry Officer had given opportunity to the workmen to adduce the evidence in support of their defence. After carefully examining the facts and circumstances of the record, the Enquiry Officer rightly held the charges proved against the workmen. The Disciplinary Authoriry accepted this report and dismissed the services of the workmen in a lawful manner. During the enquiry, it was found that the workmen had given forged documents to secure employment. The enquiry was conducted in a just and fair manner. The imposition of punishment of termination from service is proportionate to the circumstances of the case. The workmen had deliberately given wrong information regarding the displaced persons being their father In this way the workmen had exercised fraud by the management in securing employment and therefore they are not entitled to reinstatement with back wages.

7. The following issues arise for decsion in this case and my findings thereon are noted hereinafter:—

1. Whether the DE conducted against the workmen is just and proper?

2. Whether the management is entitled to lead evidence to prove the alleged misconduct of the workmen?

3. Whether the management had illegally terminated the services of the workmen?

4. Whether the workmen are entitled to reinstatement with back wages?

5. Relief and costs?

8, Issues No. 1 and 2.

The workmen Shri Bipat Singh, Kuman Singh, Shri Toofan Singh and Shri Ram Singh have examined themselves before this court to prove their claim, shri Ramlal Mahar has been examined as independent witness on behalf of the workmen. He is not aware of any DE conducted against the workmen. He has also stated that none of the workmen had informed him that the enquiry was conducted against him in an improper manner. They never deposed in a specific term that the Enquiry Officer had not given them ample opportunity to defend their case properly before him. On the contrary, they have no grievance regarding the proceedurc adopted by the Enquiry Officer conducting the DE. At the same time there is nothing on the report to show that the Enquiry was not conducted in a just and proper manner and the workmen had no opportunity to defend their case in an effective manner. From the record no prejudice appears to have been caused to the workmen by the proceedure adopted by the Enquiry Officer. In view of all these facts it is not established that the enquiry has been conducted in an unfair manner. It is therefore held that the enquiry conducted against the workmen is just and proper and therefore the management is not required to lead any further evidence to prove the alleged misconduct of the workmen. Both these issues are answered accordingly. 9, Issues No. 3 and 4

The workmen has clearly admitted that they are not the real sons of the displaced persons whose lands have been acquired by the management for mining operation. They claimed to be relatives of the land owners whose lands have been acquired. During the enquiry proceedings also the workmen never put forth that they were the near relatives of the displaced persons who had either adopted him or had authorise the management to give them employment in lieu of their land acquired for mining operations. For the first time, the workmen had introduced their defence before this court. As per agreement only dependents of the displaced persons were to be given employment and not the relatives. In this way the workmen secured employment by giving false information to the management claiming themselves to be the dependent of the displaced persons

10, The aforesaid facts go to show that the workmen have secured employment by giving false7538 THE GAZETTE OF INDIA : DECEMBER 15, 2001/AGRAHAYANA 24, 1923 [PART II—SEC, 3(ii)]

ANNEXURE

BEFORE SMT. N. J. SHELAT, PRESIDING

OFFICER, INDUSTRIAL TRIBUNAL

CENTRAL, AHMEDABAD

Reference (TTC) No. I ll of 1999

ADJUDICATION

BETWEEN:

information regarding their parentage to the management. They were not the real dependent of the land owners whose lands had been acquired by the management for the purposes of mining operations. Due to this fact subsequently the real sons of some displaced persons made complaint to the management and the Enquiry was initiated by the management. Ultimately it was detactcd that the workmen were not the real dependents of the displaced persons and therefore they are not entitled to get employment as per agreement. Gatting employment by adopting unfair means shall not entitled them to be reinstated as claimed by them. They are also not entitled to get any monetary benefits in this case. Issues No. 3 and 4 are answered accordingly.

11. Issue No. 5

The group General Manager, ONGC Ltd.,

M/s. Parishram Labour Co-op, Society Ltd. . . First Party

AND

The workman employed under it. . . Second Party In the matter of demand for reinstatement of Shri Pravin Makwana, Electric helper w.e.f. 1-5-97 with full back wages and continuity of service, etc.

APPEARANCES :

On the reasons stated above, it is held that the workmen were rightly dismissed from service by the management. Initially they had no authority to get employment as dependents of the displaced persons whose lands were acquired by the management for mining operations. They are also not entitled togetarrymonetarybenefitsclaimedbythem. The reference is accordingly answered in favour of the management and against the workmen.

12 Copy of the award be sent to the Government None for the Second Party.

AWARD

of India, Ministry of Labour as per rules.

KM. RAI, Presiding Officer New Delhi, the 20th November, 2001 By an order No. L-30012/23/98/IR(M) dated 20th, April, 1999, the Desk Officer, Ministry of Labour, Government for India, Shram Shakti Bhawan, Rafi Marg. New Delhi has referred an industrial dispute for adjudication as stated in the Schedule of above order between the above parties in exercise of powers conferred u/s. 10(1) of the Industrial Disputes Act. initially, to the Industrial Tribunal of Shri B.I. Kazi and thereafter, finally, it was transferred to this Tribunal by an appropriate order of the Government.

Inspite of services of notice, the Second Party- concerned workman failed to remain present before this Tribunal and, therefore, the matter was adjourned from time to time in order to afford an opportunity to him to proceed with the matter. However, ultimately, the matter was fixed for hearing on 24-10-2001 and when the matter was called out, none remained present on behalf of the Second Party, from this, it is quite clear that the Second Party is not interested to proceed with this matter and. therefore, this Tribunal has been left with no other alternative but to dismiss the present reference. In the result, I pass following order :—

ORDER

S.O. 3408.— 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 Ahmedabad as shown in the Annexure in the Industrial Dispute between the employers in relation to the management 0. N. G. C. and their workman, which was received by the Central Government 19-11-2001.

[No. L-30012/23/98-IR (M)l

B. M. DAVID, Under Secy.

The reference is dismissed for want of prosecution and it is disposed of accordingly with no order as to costs.

N. J. SHELAT, Presiding Officer7539 New Delhi, the 20th November, 2001 S.O. 3409.—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, Chennai as shown in the Annexure in the Industrial Dispute between the employers in relation to the management Madras Port Trust and their workman, which was received by the Central Government on 19-11-2001.

[No. 33012/12/91-IR(M)] B.M. DAVID, Under Secy.

The Govt, of India, Ministry of Labour m exercise of powers conferred by clause (d) of sub-section (1) and sub-section (2A) of Section 10 of Industrial Dispute Act, 1947 (14 of 1947), have referred the concerned Industrial Dispute for adjudication vide Order No. L/33012/12/91- fR(Misc) dated 12-5-1992.

This Industrial dispute was originally referred to CGIT Cum Labour Court, Bangalore, for adjudication. Later as per the order of Govt, of India, Ministry of Labour this has been withdrawn from the file of CGIT-Cum- Labour Court, Bangalore and has been transferred to the file of Tamil Nadu State Industrial Tribunal and on receipt of records it was taken on file as I.D. No. 84/97. 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 the Tamil Nadu State Industrial Tribunal, the case has been taken on file as I.D. No. 446/2001 and notices were sent to the 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 27-2-2001. On receipt of notice from this Tribunal, the counsel on either side present with their respective parties and prosecuted this case further.

ANNEXURE

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

Wednesday, the 24th October, 2001 PRESENT : K. KARTHIKEYAN, Presiding Officer INDUSTRIAL DISPUTE No. 446/2001 (Tamil Nadu State Industrial Tribunal I.D, No. 84/97) When the matter came up before me for final hearing on 17-9-2001, upon perusing the Claim Statement. Counter Statement, the other material papers on record, upon perusing the oral and documentary evidence let in on either side, upon hearing the arguments advanced by the learned counsel on either side and this matter having stood over till this date for consideration, this Tribunal has passed the following :—

AWARD

(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), between the Workman Sri K, Thangaraj and the Management of Madras Port Trust, Chennai.)

The Industrial Dispute referred to in the above order or reference by the Central Govt, for adjudication by this Tribunal is as follows :—

BETWEEN

Sri K. Thangaraj : 1 Party/Workman

AND

The Chairman, : II Party/Management Madras Port Trust, Chennai

Appearance:

For the Workman : M/s. R. Ganesan,

Mr.R.Rengaramanujam,

Advocates

For the Management : Mr. R. Arumugam &

N. Krishnakumar, "Whether the Management of Madras Port Trust, is justified in discharging Shri K. Thangaraj. Mazdoor P. No. 3302 of G. No. : 45 from this services with effect from 13-9-1988 ? If not to what relief the workman is entitled ?"

2, The facts of this industrial dispute between the parties are briefly as follows :—

Advocate

3707GI/2001—14

The I Party/Workman Sri K. Thangaraj (hereinafter refers to as Petitioner) was engaged in the II Party/ Management/Madras Port Trust (hereinafter refers to as Respondent) as shore Labour in the Traffic Department from 10-6-80. Subsequently, he was appointed as shore labour mazdoor in the same department from 1-7-1982. Throughout a chronic absentee, he was continuously7540 THE GAZETTE OF INDIA ; DECEMBER 15, 2001/AGRAHAYANA 24, 1923 [PART II—SEC, 3(ii)] the Respondent that he had recovered from his mental illness and he is fit to join duty. All these representations were not considered at all. The Petitioner's representation to the Govt, was forwarded to the Chairman of the Madras Port Trust and he by his letter dated 28-12-1989 without applying his mind confirmed the punishment of discharge. The Respondent had not referred the Petitioner to the medical board to verify the veracity of the Petitioner's statement. He could not attend the enquiry because of mental ill health. Hence, the action of the Respondent/ Management is arbitrary, illegal and is liable to be set aside.

3. The Respondent/Management in the Counter Statement has alleged that there is nothing to show that the Petitioner had undergone Appendicities operation in the Trust Hospital. He had not produced any medical certificate from the Trust Hospital with regard to his hospitalisation. Communication by any means has been received with regard to the Petitioner's alleged mental instability and health condition ever since his unauthorised absence from duty with effect from .17-4-1987 onwards. The Respondent has not received any representation from the Petitioner's Mother about the Petitioner's ill health. The certificate dated 24-5-1991 submitted by the Petitioner, that too after four years of his discharge from Trust's service w.e.f, 17-4-1987 cannot be taken into consideration. The Petitioner himself had acknowledged the receipt of Registered Post. The Petitioner himself has put his signature on the postal acknowledgment card for the receipt of Tapal sent by the Respondent. He cannot said to be mentally instable. The medical certificate submitted by the Petitioner cannot be relied upon. The Doctor has been issued the certificate is not the one, the Petitioner has mentioned in the earlier correspondence. The Petitioner's certificate is only an afterthought exercise of the Petitioner. If this Tribunal comes to the conclusion that the domestic enquiry conducted against the Petitioner is not fair and proper or the finding is perverse, then this Hon'ble Tribunal may be pleased to give liberty to the Respondent to lead fresh oral and documentary evidence before this Tribunal to prove the charges against the concerned workman. The Respondent has followed all the procedures before passing the final order against the Petitioner. The action of the Respondent is proper and fair. The Petitioner has not put forth any grievance over the findings of the enquiry in his Claim Statement because he is at fault. This Tribunal may be pleased to dismiss this dispute.

4. When the matter was taken up for enquiry, the petitioner/workman Sri K. Thangaraj had examined himself as WW1. 13 documents were marked on the side of the Petitioner as Ex. Wl to W13. The II Party/ Management has examined one witness. He is working as an Administrative Officer in Madras Port Trust and 16 documents have been marked on the side of the absent from duty with effect from 17-4-1987 onwards. Therefore, the Respondent issued memo dated 15-6-1987, 10-8-87, 8-9-87, 23-9-87 and 9-12-87 calling upon the Petitioner to resume duty. Those memos were sent to his last known residential address by Registered Post with acknowledgment due. The Petitioner has acknowledged the receipt of memos dated 10-8-87, 23-9-87 on 14-8-87 and 26-9-87 respectively. Inspite of that the Petitioner has not sent any reply and he did not turn up for duty. Then a charge memo dated 29-1-88 was issued to the Petitioner on 2-2-1988, but he has failed to submit his explanation. Then the Respondent/Management has conducted a domestic enquiry by appointing the Deputy Traffic Manager as Enquiry Officer. Inspite of various memos sent to the Petitioner directing him to attend the domestic enquiry, he did not attend the domestic enquiry. The Enquiry Officer concluded the enquiry as ex-parte and submitted his findings holding that the charge framed against the Petitioner was proved beyond any doubt. Then Disciplinary Authority issued a show cause notice dated 14-6-1988. Even for that the Petitioner did not respond. For the personal hearing afforded by the Disciplinary Authority also, the Petitioner did not turn up. The Petitioner has neglected all the opportunities extended to him, hence the Respondent passed the final order dated 18-3-89 discharging the Petitioner from Trust's service with effect from 17-4-1987 from the date of the Petitioner stayed away from duty unauthorisedly without obtaining prior sanction of leave. The petitioner has raised this industrial dispute challenging the Respondent's action in discharging the Petitioner from the services of the Respondent as unjustified. It is the contention of the Petitioner in his Claim Statement that due to acute stomach ache he was admitted in the Madras Port Trust Hospital in 1986 and he was operated upon for appendicitis. Thereafter his health was not improved and he was continuously taking treatment in the Madras Port Trust Hospital. Because of his ailment he could not attend to his duties regularly. Because of his ailment and family problems his wife left him and was living with her parents. His ailment and the desertion of his wife caused him mental agony and he lost his balance of mind and his brothers took to a Psychiatric for treatment for his mental illness from April. 1987. His Mother and brothers intimated to the Port Trust about his condition of health during 1988 itself. But this was not taken into account and a charge memo was issued to the Petitioner for his unauthorised absence. An ex-partc enquiry into the above charge of unauthorised absence was conducted by the Respondent and held that the charge framed against him as proved. Based on the ex-parte enquiry report i.e. the findings, the Petitioner was discharged from the service by the Respondent by its order dated 18-3-1989, Immediately, the Petitioner's Mother wrote to the Respondent about the health condition of the Petitioner and prayed for mercy. The Petitioner also represented to7541 Management as Ex. Ml to M16. The learned counsel on either side have advanced their respective arguments.

5. The Point for my consideration is—

"Whether the Management of Madras Port Trust, is justified in discharging Shri K. Thangaraj, Mazdoor P. No. 3302 of G.No. 45 from his services with effect from 13-09-1988? If not to what relief the workman is entitled?"

Point:—

This is an industrial dispute raised by the Petitioner questioning the validity of the action taken by the Respondent/Management. Madras Post Trust in discharging him from service we. f. 17-4-1987 by an order dated 18-3-1989. It is admitted that the Petition was first engaged as a rank casual by the Respondent/Management in the Port Trust from 10-6-1980 and later he was appointed as Shore Labour Mazdoor from 1-7-1982, The Petitioner as WW1 has deposed that he was working as mazdoor in Traffic Department in Madras Port Trust from June. 1980 and that after four or five years he got severe stomach pain and underwent an appen^citis in the Harbour hospital. It is his further evideice after his marriage in 1983 due to his ill health an \ due to the worries in his married life, he was affected > mentally and it got aggravated and that he took medical Ueatment for his ailment and because of that he couldn't go for work Ex.Wl is the xerox copy of the discharge certificate of the Madras Port Trust hospital pertaining to the Petitioner, From this, it is seen that during October. 1985 he underwent an appendicitis operation and was found to fit for work on 30-4-1986. It is the further evidence of the Petitioner that his brother Mr. Balaraman infon ted the Traffic department at Madras Port Trust by a letter sent by Certificate of Posting that he (petitioner) was tiking treatment for his mental illness. He has also filed xerox copy of that.letter as Ex. W2 and the Certificate of Posting xerox copy as Ex.W3, It is seen from the postal seal that one such letter was sent by certificate of Posting on 2-9-88. Ex.W2 doesn't contain any date. He has also admitted that the Traffic Manager. Madras Port Trust issued him a show cause notice for his absence for duly and the xerox copy of that memo is Ex. W4. In that memo it is stated that the Petitioner was given a memo dated 6-5-87 to resume for duty forthwith, with a written explanation for his continuous-absence from duty from 17-4-87 and since he has not sent any reply till 19-1-1988 for his chronic unauthorised absence, the charge has been framed against him and he was directed to show cause as to why disciplinary action should not be taken against him as per the Standing Orders for his unauthorised absence from duty from 17-4-87. He has also admitted in,his evidence that he received another communication from the Traffic Manager dated 24-3-88 under Ex. W5about the appointment of Enquiry Officer

for conducting an enquiry and he was issued a charge memo dated 14-6-88 for his unauthorised absence from duty form 17-4-87. The xerox copy of the same is Ex. W6. On the side of the management. Administrative Officer working in Madras Port Trust has been examined as MW1. It is her evidence that for the continuous unauthorised absence for duty from 17-4-87 by the Petitioner, a memo dated 6-5-87 under Ex. Ml was issued to the Petitioner informing him to report for duty immediately, As the Petitioner has not responded for the same, the management has issued memos dated 11-6-87, and 10-08-87. The xerox copy of the same are Ex. M2 and M3 respectively. Ex.M4 is the xerox copy of the postal acknowledgement card for the memo received by the petitioner he received it on 14-8-87. An another memo was also sent on 8-9-87 and the xerox copy of the same is Ex,M5. Later the management has sent a letter on 23-9-87 under Ex. M6. It was received by the petitioner on 26-9-87 under Ex M7. Then another letter was sent on 9-12-87 under Ex. M8. Ex. Ml memo dated 6-5-87 and Ex.M8 show cause notice dated 9-12-87 have been referred in Ex, W4 show cause notice dated 19-1-1988. The charge memo under Ex.W4 was received by the petitioner under Ex.M9 on 2-2-88 but he did not submit any explanation. Then disciplinary action was initiated and a notice was sent to him under Ex W5. Tt is dated 24-3-88.He received that notice under Ex.MK) acknowledgement on 28-3-1988. Another notice was sent on 29-3-88. The xerox copy of the same is Ex.Ml 1. Then, as per the notice, the enquiry was conducted. Ex.M12 series of the proceedings of the departmental enquiry dated 6-4-88. 14-4-88 and 30-04-88. Inspile of all these things, the petitioner did not appear for the enquiry'. Then the Enquiry Officer has submitted his finding under Ex. M13 holding that in ex-parte enquiry conducted by him. the charges framed against the Petitioner had been proved. Then the Respondent issued a memo dated 14-6-88 for the petitioner's personal hearing. A xerox copy of the same is Ex.W6. Even for that the petitioner has not submitted any explanation. Then the final order has been passed by the Traffic Manager discharging the petitioner form service of the Respondent w.c.f. 17-4-87. The xerox copy of the order is Ex. M15. All these things have been spoken to by MW1 in her evidence Ex.WK) is the xerox copy of the communication sent to the petitioner by Respondent about the punishment imposed on him. Subsequently, the Petitioner s Mother Mrs. Kannammal had made a representation to the Chairman. Madras Port Trust for which the mother of the Petitioner was unformed through letter dated 3-5-89 under Ex,Wll stating that his son's happens to be chronic unauthorised absentee there was no other alternative than to remove the name of her son from the rolls and there is no case for reinstatement to her son in the Respondent/Madras Port Trust. The Respondent had also sent a letter dated 30-5-89 under Ex.M 16 to the Petitioner to call at the office to for settlement of his accounts.

reason to interfere with the decision taken by the Respondent/Management against the petitioner/workman by imposing punishment of discharging him from service for the act of misconduct of unauthorised absence from duty by the petitioner. Hence, the Management of Madras Port Trust is justified in discharging the petitioner/ workman Sri K.Thangaraj, Mazdoor from his services w.e.f. 17-4-87. Hence, the concerned workman is not entitled for any relief.

7, In the result an Award is passed holding that the action of the Management of Madras Port Trust is justified in discharging Shri K.Thangaraj, Mazdoor P. No. 3302 of G.No. : 45 from his services with effect from 17- 04-1987, Hence, the concerned workman is not entitled for any relief No. Cost.

(Dictated to the Stenographer, transcribed and typed by him, corrected and pronounced by me in the open court on this day the 24th October, 2001.)

K, KARTHTKEYAN, Presiding Officer

Witnesses Examined:

For the I Party/Workman : WW1 Sri K. Thangaraj.

For the II Party/Management: MW1 Sri C. Mahalakshmi

DOCUMENTS MARKED :

Ex.No.

Date

Description

30-04-86

Wl

Xerox copy of the medical certificate of the petitioner.

W2 Nil

Xerox copy of the letter from K. Balaraman to the Traffic Manager.

W3 Nil

Xerox copy of the postal cover.

W4 19-01-88 Xerox copy of the memo issued to the Petitioner by the Respondent/ Management.

W5 24-03-88 Xerox copy of the memo issued to the petitioner by the Respondent/ Management.

W6

Xerox copy of the Charge memo. #

14-06-88

W7 Nil

Xerox copy of the letter from K. Kannammal, M/o. K Thangaraj to the Respondent/Management.

W8 02-03-89 Xerox copy of the letter from the Management to petitioner.

W9 07-10-89 Xerox copy of the letter from K. Kannammal, M/o K. Thangaraj to the Respondent/Management.

6 It is the contention of the Petitioner from the evidence of WW1 that he was admitted in the mental hospital for treatment and at that time the Respondent had conducted an exparte enquiry and discharged him from service, If it is a fact, the Petitioner would not have received the various communications sent to him about his unauthorised absence by the Respondent/Management, the documents filed on the side of the Management as acknowledgement shows that he had received those communications sent by the Respondent/Management. Further he has not chosen to sent any reply to those communications he received stating about his ill health and taking treatment for the same. The non-production of the any document to that effect, even now and the non- examination of the Doctor, who said to have treated for this illness and issued a certificate under Ex.W3 enable us to come to the conclusion that it is only an afterthought of the Petitioner and he has procured one such certificate only for the purpose of this case to escape from the action taken by the Respondent/Management for his unauthorised absence. The Petitioner has taken a stand that the copy of the findings of the Enquiry Officer was not served on him. Ex. W6 filed by the Petitioner as a xerox copy of the memo issued to him by respondent dated 14-6-88. It is mentioned in that document that the copy of the Enquiry Officer's report is enclosed therein. If really the said copy of the findings is not enclosed with that communication, he would have immediately brought it to the notice of the managcjr.ep* i his has not been stated so in his Claim Statement. S•- fww" this, it is seen it is also a aferthought of the petitioner. He has also admitted in the cross examination that he has not mentioned the same in his Claim Statement. He has also not stated either in his evidence or in his Claim Statement as to how he is prejudiced for the non-furnishing of the copy of the enquiry report. From all these things, it is seen that the Petitioner Mr. K. Thangaraj was absented for duty in the Repondent/ Madras Port Trust unauthorisedly without prior permission of the Management and that he has not turned up for duty, inspite of various intimations sent by the Management which were duly received by him. Thereby it is seen that the Petitioner has committed a misconduct of unauthorised absence from ] 7-4-87 for which the Respondent/Management has taken proper disciplinary action against him and has passd an order after due enquiry and opportunity was afforded to him by discharging him from service for his commission of misconduct for unauthorised absence from duty from 17-4-87, Under such circumstances, it cannot be concluded that the action of the management by passing an order of discharge against the petitioner from service is invalid and illegal. The documents filed on cither side and on the basis of the oral c\ idence let in on either side, it is clearly seen that the management before ever passing the order of discharge agninst the petitioner had followed all the procedures properly. Hence, under such circumstances , there is no

W10

Xerox copy of the termination order.

18-03-897543 Wll 03-05-89 Xerox copy of the memo issued to the Petitioner by the Respondent/ Management 12 28-12-89 Xerox copy of the memo issued to the Petitioner by the Respondent/ Management W13 24-05-91 Xerox copy of the medical certificate of the Petitioner M16 30-05-89 Xerox copy of the memo issued to the Petitioner by the Repsondent/

For the 11 Party/Management :—

Description

Ex.No.

Date

06-05-87

Ml

Xerox copy of the memo issued to the Petitioner by the Respondent/ Management 11-06-87

M2

Xerox copy of the show cause notice issued to the petitioner M3 10-08-87 Xerox copy of the memo issued to the Petitioner by the Respondent/ Management M4 14-08-87 Xerox copy of the acknowledgement card.

08-09-87

M5

Xerox copy of the memo issued to the Petitioner by the Respondent/ Management 23-09-87

M6

New Delhi, the 20th November, 2001 S.O. 3410.—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, Bhubaneswar as shown in the Annexure in the Industrial Dispute between the employers in relation to the management Paradip Port Trust and their workman, which was received by the Central Government on 19-11-2001.

[No.L-38011/1/94-IR(M)]

B.M. DAVID. Under Secy.

ANNEXURE

Xerox copy of the show cause notice issued to the petitioner by the Respondent/Management M7 26-09-87 Xerox copy of the acknowledgement card

M8 09-12-87

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL- CUM-LABOUR COURT, BHUBANESWAR

PRESENT:

Xerox copy of the show cause notice issued to the Petitioner by the Respondent/Management M9 02-02-88 Xerox copy of the acknowledgement card

Shri S.K. Dhal, OSJS, (Sr. Branch) Presiding Officer C.GI.T.-cum-Labour Court Bhubnesher

TR. INDUSTRIAL DISPUTE CASE NO. 98/2001

M10 28-03-88

Date of concluding of the hearing 12th Oct. 2001

Xerox copy of the acknowledgement card

Date of Passing Award 31st Oct. 2001

Mil 29-03-88 Xerox copy of the enquiry notice to the Petitioner M12 06-04-88 14-04-88 Xerox copy of the enquiry proceedings

3) 30-04-88

(Series

Nil

M13

Xerox copy of the findings of Enquiry Officer

M14

Xerox copy of the leave particulars

1985 to 1987

Ml 3 13-09-88 Xerox copy of the order of punishment.

Between :

The Management of the Chairman, Paradip Port Trust, P.O. Paradip, Dist. Jagatsinghpur. ... I Party/Management.

AND

Their Workman, represented through the Vice President, Paradip Port & Dock Mazdoor Union, At ATBK Sub-Station, P. O. Paradip, Dist,7544 THE GAZETTE OF INDIA : DECEMBER 15, 2001/AGRAHAYANA 24, 1923 [PART II—SEC. 3(ii)] Jagatsinghpur. ... 2nd Party-Union Appearance:

Shri Uma Sankar Tripathy, Advocate

... For the 1st Party- Management None.

... For the 2nd party-

Union

AWARD

The Government of India in the Ministry of Labour, in exercise of Powers conferred by Clause (d) of Sub-section (1) and Sub-section 2(A) of Section 10 of the Industrial Disputes Act, 1947 (14 of 1947) have referred the following dispute for adjudication vide their Order No. L-38011/1/94-IR (Misc.) dated 21-2-1995:—

"Whether the action of the Management of Paradip Port Trust, in not extending the scale of skilled category i.e. Rs. 435-566/- to recorder cum recorder supplier is justified? If not, to what relief the workman is entitled to ?"

2. The case of the 2nd Party-Union may be stated in brief.

Since, 1963 the workman had worked in different capacities like phone attendants, Meter Reader. In the year 1977 they were promoted to work as Recorder-cum-Record Suppliers by the 1st Party-Management. They were allowed to draw wages in the scale of Rs. 400-565 with effect from 1-1-1974, as recommended by the Wage Revision Committee as skilled categories Grade-Ill. According to the 2nd party-Union electrician, Grade-Ill Mechanist, Grade-Ill and other post as prescribed in Para-7 of the Claim Statement comes under skilled categories. The wage Revision committee again modified the scale of Grade-in skilled category of Rs. 435-566 with effect from 1-8-1977. The case of the 2nd Party-Union is that the 1st Party-Management created some anomalies for which the workman raised the dispute along with other categories. The 1st Part-Management recommended the cases of all the categories of workers to the Ministry of Surface, Government of India, New Delhi, for fixation of their wages in the modified scale excepting the case of Recorder-cum-Record Supplier. So they raised the dispute and after failure of reconciliation, the present reference has been made. The 2nd Party-Union has prayed that the post of Recorder-cum-Record Supplier be treated as skilled categories.

3. The 1st Party-Management has filed their Written Statement. The case of the 1st Party-Management is that the present reference is not maintainable being raised after long gap of time. Their further case is that the Post of Recorder-cum-Record Supplier was intially in the same scale of Pay of Rs, 150/-190/-. The wage Revision Committee had recommended the scale of pay of Rs. 400-565/- to the Class-III employees including the Recorder-cum-Record Supplier with effect from 1 -1 -1974. But subsequently, the Central Government in accordance with an agreement with All India Labour Federations modified the said scale of pay to Rs. 425-566/- in respect of the skilled category of post excluding the post of Recorder-cum-Record Supplier with effect from 1-8-1977. The post of Recorder-cum-Record Supplier was not brought under the skilled categories of posts, so their prayer is that the present reference is not maintainable and the 2nd Party-Union is not entitled for any relief, 4. On the above pleadings of the parties, the following Issues have been settled,

1. Whether {he action of the Management of Paradip Port Trust in not extending the scale of skilled catergory, i.e. Rs. 435-566/- to Recorder-cum-Rccord Supplier is justified ?

2. To what relief, the workmen are entitled ?

FINDINGS

ISSUE NO. 1

5. It may be stated here that after the settlement of Issues the 2nd Party-Union was directed to lead evidence in support of their case. But inspite of adjournment the 2nd Party-Union has not adduced any oral evidence nor has produced any documents. They remained absent, so they have been set exparte on 19-9-2001.

On behalf of the 1st party-Management one witness has been examined. The Management has proved the letter of the Government, which has been exhibited in this case as Ext,-A, which speaks that the Recorder-cum-Record Supplier does not come under the skilled categories. There is no material to disbelieve the evidence adduced on behalf of the 1st party-Management. When the dispute has been raised on behalf of the 2nd Party-Union, the initial burden lies on the 2nd Party-Union to establish its case. In this case as I have already indicated that the 2nd Party-Union has not taken any step to produce any evidence either oral or documentary but on the other hand, the 1st Party-Management has proved his case by producing oral and documentary evidence, After perusal of the evidence and documents produced on behalf of the 1st Party-Management, this Tribunal is of the opinion that the post of Recorder-cum- of the 1st Party- Management, this Tribunal is of the opinion that the post, of Recorder-cum-Rccord Supplier does not come under the skilled categories. Hence, this Issue is answered in favour of the 1st Party-Management.

ISSUE ON. II

7. In view of my above findings in respect of Issue No. I, the workmen are not entitled for any relief.

8. Reference is answered accordingly.

S. K. DHAL, Presiding Officer New Delhi, the 22nd November, 2001 S.O. 3411.—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 cum Labour Court MUMBAI as shown in the Annexure in the Industrial Dispute between the employers in relation to the The Director, M/s. Power and Control and their workmen, received by the Central Government on 19-11-2001.

[No.L-31012/10/2000-IR(M)]

B.M. DAVID, Under Secy.

Mumbai 400 015.

AND

Their Workmen

Sh. Sharad Gharg, R/03/9, Thakur Wadi, Jayalashi Bo.-Op.Hsg.Soc., Dombivili (West), Thane 401 202.

Appearances;

For the Employer : Shri AS. Kazi

Advocate

For the workmen : No. Appearance.

Mumbai, Dated 31st October, 2001.

AWARD

The Government of India, Ministry of Labour by its Order No. L-31O12/1O/2OOO/IR(M), did. 24/08/2000, in exercise of the powers conferred by Clause (d) of Sub- section (1) and Sub-section 2 (A) of Section 10 of the Industrial Disputes Act, have referred the following Industrial Disputes to this Tribunal for adjudication.

"Whether the action of the management of M/s Power and Control is justified in terminating Shri Sharad Gharg from the services of the Compay? If not then what relief the workman is entitled to?"

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO. I, MUMBAI PRESENT:

S. N. SAUNDANKAR

Presiding Officer

(In Charge)

REFERENCE NO-CGIT-1/44 of 2000.

2. On receipt of the reference Tribunal issued notices to the workman Sh. Sharad Gharg and management M/s. Power & Control, which they received vide acknowledgment (Exhibits-3 &4). However, record show, workman though appeared did not put his Statement of Claim till 27-9-2001. Therefore again he was issued notice (Exhibit-5). However inspite of receipt of notice the workman remained absent, or put his Statement of Claim, till to date. Manager, working with the management, Mr. K.C. Negandhi vide affidavit (Exhibit- 6) a pointed out th?¹' the workman concerned accepted payment in terms of compensation/legal dues and ex-gratia in full and final settlement, and therefore he is not interested. Since the workman did not file his Statement of Claim which indicate he does not wish to prosecute, therefore, the reference deserves to be disposed of and hence the order:

EMPLOYERS IN RELATION TO THE

MANAGEMENT OF M/S. POWER & CONTROL

The Director, M/s. Power & Control, 11/12, Neelgiri Indl. Estate., 183, Tackerse Jivraj Marg, Cotton Green, Sewri (W),

ORDER

Reference stands disposed of for non-prosecution.

S. N. SAUNDANKAR, Presiding Officer7546 THE GAZETTE OF INDIA : DECEMBER 15, 2001/AGRAHAYANA 24, 1923 [PART II—SEC. 3(ii)] New Delhi, the 22nd November, 2001 S.O. 3412.—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 Chennai as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of Tuticorin Port Trust and their workman which was received by the Central Government on 19-11 -2001,

[No. L-44011/l/97-IR(M)J

B. M. DAVID; Under Secy, APPEARANCE :

For the Claimant : M/s P. K. Rajagopal &

K. Santhakumari, Advocates

For the Management : M/s. M. Sriram,

C.N.G. Niraimathi & T. Vijayakumari, Advocates

The Govt, of India, Ministry of Labour in exercise of powers conferred by clause (d) of Sub-section (1) and Sub-section 2 (A) of Section 10 of Industrial Dispute Act, 1947 (14 of 1947), have referred the concerned Industrial Dispute for adjudication vide Order No. L-44011/1/97- IR(Misc) dated 14-05-1997.

ANNEXURE

BEFORE THE CENTRAL GOVT. INDUSTRIAL TRIBUNAL CUM-LABOUR, COURT CHENNAI Wednesday, the 19th September, 2001

PRESENT:

K. KARTHIKEYAN, Presiding Officer INDUSTRIAL DISPUTE No. 426/2001 (Tamil Nadu State Industrial Tribunal ID. No. 30/97) This reference has been made earlier to the Tamil Nadu State Industrial Tribunal, where it was taken on file as I.D. No. 30/97. When the matter was pending enquiry in that Tribunal, the Govt, of India, Ministry of Labour was pleased to order transfer to 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. 426/2001 and notices were sent to the counsel on record on cither side, informing them about the trensfer of this case to this Tribunal, with a direction to appear before this Tribunal on 26-02-2001. On receipt of notice from this Tribunal, the counsel on either side present with their respective parties and prosecuted this case further.

When the matter camp up before me final hearing on 20-08-2001, a memo has been filed by the counsel for the II Party with the endorsement of the counsel for the I Party mentioning the names of the five workmen concerned with this dispute of reference. That memo is recorded. The arguments of the counsel on either side heard. Upon perusing the Claim Statement, Counter Statement, the other material papers on record, upon hearing the arguments advanced by the learned counsel on either side and this matter having stood over till this date for consideration, this Tribunal has passed the following :—

AWARD

(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 Dispute Act, 1947 (14 of 1947), between the Tuticorin Port Trust Employees Organisation and the Management of Tuticorin Port Trust, Tuticorin.)

BETWEEN

The General Secretary, : I Party/Claimant Tuticorin Port Trust Employees Organisation, Turicorin.

AND

The Chairman, : II Party/Management, Tuticorin Port Trust Tuticorin.

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

"Whereas the action of the Management of Tuticorin Port Trust in refusing to re-designate the five Telephone-cum-Watchroom Operators appointed in 1976 as Lower Division Clerks is justified? If not, to what relief they arc entitled?" 2. The averments in the Claim Statement of the I Parly/claimant are briefly as follows :—

During the year 1976 the Tuticorin Port Trust filled up five posts in the grade of Telephone-cutn-Watchroom Operators from among candidates sponsored by the District Employment Exchange and from among candidates who were already the employees of the Port. The five workmen M. Ravindran, S, Vergin Datrick, A. Silvestar Fernando, R. Janarthanam, andH. SiedMyfheen were empanelled for appointment to the post of Telephone- cum-Watchroom Operators by Service selection Committee Proceedings dated 9-3-1976. Among the five of them Mr. Ravindran was appointed to the post of Lower Division Clerk wi out any re-notification to the Employment Exchange to sponsor his name to the vacancy of Lower Division Clerk, The four others were issued with the order of appointment to the post of Lower Division Clerk on regular basis by order dated 25-3-1976 as against the three unreserved posts for Scheduled Castes and two other unreserved posts. As no Scheduled Tribe candidate was available, the said H. Sied Mytheen was appointed to the post of Tclephone-cum-Watchroom Operators on ad- hoc basis by an order dated 25-3-1976. Subsequently, one Sri N. Sundaravadivelu, a Scheduled Caste candidate was appointed to the post of TCWRO by an order dated 29-6- 1976 on regular basis as against the vacancy reserved for Scheduled Caste community. In order to regularise the ad-hoc appointment of the said Sri Sicd Mytheen a de- reservation proposal was sent to the Govt, on 23-12-78 and thereby the appointment was regularised. Thus, all these workmen were appointed in-the post of TCWRO in regular basis. While granting approval of the Ministry of Surface Transport to the draft recruitment rules framed for the post attached with four fire service including TCWRO the Ministry vide letter dated 8-9-77 had observed that the Pay Commission has recommended that there should be no separate cadre of TCWRO and that they should be merged with the cadre of Lower Division Clerk. Therefore, it is suggested that the post may be merged with the cadre of TOCC/Lower Division Clerk. By a letter dated 3-1-1978, the II Party/Management (hereinafter refers to as Respondent) replied that the Port has no objection to merge these posts with the cadre of Telephone Opcrators-cum Clerk. The existing incumbents of the post of TCWRO will be adjusted against future vacancies or the TOCC as and when vacancies in the grade TOCC arise and transferred out from Port fire service. As a result of the above developments, the post of TCWRO should have been merged with the post of Lower Division Clerk on TOCC. The five Telephone-cum-Watchroom Operators should have been redesignated as Lower Division Clerk with effect from the date of the respective recruitment as TCWRO. Instead by an order dated 15-6- 1979, the said five TCWROs were transferred to the post of Lower Division Clerk in contravention of recruitment rules and all norms in this regard. The recruitment rules for the post of Lower Division Clerk/TOCCs contained as Serial No. 36 of Schedule II the Tuticorin Port

Employees (Recruitment, Seniority and Promotion) Regulations, 1979, the Rule provided that the post concerned may be filled in only by direct recruitment or by promotion in the ratio of 90%; 10%. The post of Lower Division Clerk/TOCC cannot be filled up by transfer and no employee from any other cadre can be transferred to the post of Lower Division Clerk/TOCC. No provision has been made in the recruitment rules for what is called the method of recruitment by transfer. If that has to be done, provisions of the recruitment rules should be amended. In the absence of specific mention in the recruitment rules filling up of post by transfer is illegal. The scale of pay for Lower Division Clerk was fixed at the scale of Rs. 449/- as on 1-4-1980. In the revised WRC scale in respect of Sri S. Vergin Patrick and A. Silverstar Fernando in pursuance of provisions of F. R 22(a)(2) operative at that time. If the duties and responsibilities for the post of Lower Division Clerk higher than that of TCWRO, their pay ought to have been fixed under the provisions of F.R22(c). In view of the pay fixation made in the case of said two employees, it is clear that the scale of pay duties and responsibilities for the post of TCWRO and Lower Division Clerk were similar. It is only on these cases that the TCWROs were directed to perform the duties of Lower Division Clerks vide order dated 14-12-1997. Re-designation of certain categories of posts is nothing new in the Tuticorin Port Trust. After the merger of the erstwhile minor port with the Tuticorin Port Trust, the Chairman had ordered for re-designation of post of Driver Grade III and Engine Room Tindel as Greaser vide order dated 16-4-1980. These re-designations were made in the absence of provisions in the recruitment rules. The administration failed to adopt this consistent practice while appointing five TCWROs to the post of Lower Division Clerk. The illegalities committed in the matter by the administration has resulted in peat prejudice to the five employees concerned. It has affected the seniority negatively and had resulted in financial loss to them. Whereas seniority in the post of Lower Division Clerk ought to have been counted from the day they were appointed to the post of TCWRO in the year 1976 from the dates of their respective appointments. They should have been accordingly given position in the seniority list in respect of Lower Division Clerks counting their service from the date of original appointment as TCWRO as if, they were appointed as Lower Division Clerks. The action of the administration of Tuticorin Port Trust in dealing with them otherwise, and reckoning their seniority in the post of Lower Division Clerk only from 15-6-1979 is contrary to principles of natural justice, Service Regulations, norms governing employer-employee relationship and Articles 14,16 and 21 of the Constitution of India. Hence, this Hon'ble Tribunal may be pleased to direct the Respondent to consider and treat the said five TCWROs concerned, as if, they were re-designated as Lower Division Clerk w.e.f. the dates of their respective 3707GI/2001—157548 THE GAZETTE OF TNDIA : DECEMBER 15, 2001/AGRAHAYANA 24, 1923 [PART II—SEC. 3(ii)] original as TCWROs in the year 1976 and consequently count their seniority in the post of Lower Division Clerks w.e.f. the date of joining in the post of TCWROs and grant all the benefits on such re-designation and treatment.

3. The avernments in the Counter Statement of the II Party/ Management Tuticorin Port Trust are briefly as follows:—

Watchroom Operators were appointed on transfer to the post of Lower Division Clerk in its letter dated 19-6-1979 with effect from 15-6-79 as fresh entrance with the conditions that this appointment at the date of selection to the post of Lower Division Clerk for the purpose of determining seniority in the post of Lower Division Clerk will be with effect from the date of issue of this order. Thus, with reference to the suggestion the Central Govt, communicated in the Ministry's letter dated 8-9-1977 that incumbents for the post of Telephone-cum-Watchroom Operators were merged by transfer to the post of Lower Division Clerk as fresh entrants, considering the interest of such employees in an isolated category of post which had no promotional avenues. While some of the Unions and individuals represented that the service rendered in the grade of Telephone-cum-Watchroom Operators should be counted towards qualifying period of service for the purpose of eligibility for appearing in the departmental examination for appointment to the grade of Upper Division Clerk, the matter was taken up with the Ministry by a letter dated 8-1-80. However, the Ministry by its letter dated 25-7-80, communicated their decision stating that when the matter was referred to the Department of Personnel and Administrative Reforms, they have clarified that the post of Telephone Operators have been merged with the cadre of Lower Division Clerk, in order to open out the avenue of promotion to them. They will count the service as Lower Division Clerk only from the date and the past period would not count for the promotion to the post of Upper Division Clerk. When the matter was raised as an industrial dispute by the Tuticorin Port Trust Union during 1981-82, Ministry was addressed again, The Ministry was requested by their letter dated 31-7-82 to reconsider their view contained in their letter dated 25-7- 1980 and to agree to the proposal of the Port for counting of the services rendered in the grade of Tclephone-cum- Watchroom Operators for the purpose of promotion to the grade of Upper Division Clerk. In reply, the Ministry by its letter dated 23-3-1983 informed that the request could not be acceded to. The issue was taken up again by the same Tuticorin Port Trust Union during 1984 as a dispute before the Assistant Labour Commissioner (Central). The conciliation ended in a failure. The Ministry of Labour by their letter dated 7-10-1985 came to the conclusion that there was prima-facic no ground for adjudication of this matter by the Tribunal, Under the circumstances, the Union and the individuals had not made any representation in this regard thereafter. However, now the Tuticorin Port Trust Organisation has raised the dispute on the ground that the incumbents in the grade of Telcphone-cum-Watchroom Operators should have been redesignated as Lower Division Clerks. During 1979 instead of treating their appointment to the grade of Lower Division Clerk on transfer, the Union had contended that the post of Lower Division Clerk could not be filled in by transfer, since there are no provisions in the recruitment The Tuticorin Port Trust Employees Organisation had claimed that the post of Lower Division Clerk could not be filled in by transfer and hence the appointment of Tclcphone-cum-Watchroom Operators to the grade of Lower Division Clerks during the year 1979 by transfer is not in order. The Union has, therefore, requested that Ihc five employees appointed to grade of Tclephone-cum- Watchroom Operators be redesignated as Lower Division Clerk from the date of original appointment asTelephone- cum-Watchroom Operators instead of transferring them to the grade of Lower Division Clerk. Five persons were appointed at Tclcphone-cum-Watchroom Operators on adhoc basis in the Port's fire service station of the erstwhile Port of New Tuticorin which was functioning as a subordinate office of the erstwhile Ministry of Shipping and Transport. At the time of their appointment in 1976, there were no approved recruitment rules for the post of Telephone-cum-Watchroom Operators as a post of Telephonc-cum-Watchroom Operator was an isolated category of post exclusively meant for the port fire station. There was no promotional avenue for the incumbents. As the Port of New Tuticorin was functioning as a subordinate office of erstwhile Ministry of Shipping and Transport, the Central Government was the competent authority to notify the recruitment rules, While the recruitment rules for the post of Telephonc-cum-Watchroom Operators were formulated and sent to the Central Govt, during May, 1977 for approval, the Ministry of Shipping and Transport, after considering the proposal of the Port has communicated their decision by letter dated 8-9-77 stating that the Pay Commission has recommended that there should be no separate cadre of Telephonc-cum-Watchroom Operators and they should be merged with the cadre of Lower Division Clerk. Therefore, it is suggested that the post may be merged with the cadre of Lower Division Clerk and in such case, the question of framing recruitment rules for this post would not arise. Inasmuch as the Central Govt, is the authority competent to approve and notify the recruitment rules formulated by the subordinate office, there is no alternative but to comply with such decision of the Central Govt. Under these circumstances, it was decided that the post of Telephone-cum-Watchroom Operators should be merged with the cadre of Lower Division Clerk so as to avoid any administrative as well as the cadre management problem at a later date. Accordingly, a reference was made to the Govt, by its letter dated 3 -1 -78. For that proposal, these five employees who were working in the cadre of Telephone-cum-7549 Watchroom Operators were abolished and five posts of leading fireman were created only on 15-6-79. After abolition of Telephone-cum-Watchroom Operators, the incumbents of the grade of Telephone-cum-Watchroom- Operators were appointed to the grade of Lower Division Clerk on transfer with effect from 15-06-1979 against the existing vacancies as fresh entrants with a specific condition that regular appointment on the date of selection to the post of Lower Division Clerk for the purpose of reckoning their seniority would be with effect from 15- 06-1979 as applicable to fresh entrants,. The demand has been made after lapse of 18 years. It is a belated claim. Among the employees of the Port filed a Writ Petition No.640/1992 challenging the Board's resolution No.98/ 1979 regarding relaxation of qualifying period of service on promotion to higher post in respect of SC/ST employees. The said Writ Petition was dismissed by the Hon'ble High Court on the ground that the Petitioner cannot question the resolution nearly after 15 years. Since the transfer of employees in the grade of Telephone-cum- Watchroom Operators to the grade of Lower Division Clerk was made during the year 1979, particularly, when the recruitment rules for the post of Telephone-cum- Watchroom Operators were not approved by the Central Government and this belated claim to count their service in the grade of Telephone-cum-Watchroom Operators for the purpose of seniority in the grade of Lower Division Clerk has been raised now after 18 years for maintaining the seniority with retrospective effect including their ad- hoc service rendered in the grade of Telephone-cum- Watchrcom Operators is not sustainable, as per the orders of the Central Government communication in the Ministry's letter dated 9-10-1985. Therefore, this Hon'ble Tribunal may be pleased to dismiss the above industrial dispute,

4. When the matter was taken up for enquiry, no one was examined on either side as witness. No document has been filed on either side as exhibits. The learned counsel on either side have advanced their respective arguments.

5. The point for my consideration is—

"Whether the action of the Management of Tuticorin Port Trust in refusing to re-designate the five Telephone-cum-Watchroom Operators appointed in 1976 as Lower Division Clerks is justified? If not, to what relief they are entitled?"

Point:—

It is an admitted case that the concerned employees M/s. M.Ravindran S.Vergin Datrick. A. Silverstar Pernando. R. Janardhanan and H. Syed M>thecn were appointed in 1976 as Telephonc-cum-Watchroom Operators in the Tuticorin Port Trust. Tuticorin under the Management of the 11 Party/Respondent. It is also admitted that the said post of Telephone-cum-Watchroom Operator rules for that post of Lower Division Cleik for appointment on transfer, It is submitted that the qualification for the post of Telephone-cum-Watchroom Operators prescribed in the draft recruitment rules proposed then by the Post is, the applicant should have passed matriculation or its equivalent, should have one year experience as Telephone Operator, training in telephone operation. As far as the post of Lower Division Clerk, the qualification prescribed in the approved recruitment rules are, that the applicant is having atleast matriculation or its equivalent qualification and minimum speed of thirty words per minute in typewriting. There was no provision in the recruitment rules for the post of Lower Division Clerk for appointment either on transfer or on redesignation. Though there was no provision for appointment of Telephone-cum-Watchroom Operators to the grade of Lower Division Clerk either on transfer or by re- designation, the five individuals who were appointed as Telephone-cum-Watchroom Operators, with reference to the draft recruitment rules for the post of Telephone-cum- Watchroom Operators, were appointed as Lower Division Clerks w.e.f. 15-6-1979 as fresh entrants only, With reference to the suggestion made by the Central Govt, particularly with a view to provide promotional opportunities to them, since the post of Telephone-cum- Watchroom Operators was an isolated category of post and the incumbents were not appointed with reference to the approved recruitment rules. They were not in possession of the required qualification in typewriting and they were not eligible being considered for appointment to the grade of Lower Division Clerk with retrospective date as per the approved recruitment rules existing at that time. However, they were appointed as Lower Division Clerk on transfer with a specific condition that the appointment and the date of selection for the post of Lower Division Clerk for the purpose of determining the seniority in the post of Lower Division Clerk would take effect from the date of the order as fresh entrants. They have also joined as Lower Division Clerk after accepting the terms and conditions of appointment. Their services rendered in the grade of Telephone-cum-Watchroom Operators upto 14-06-1979 were only on ad-hoc basis and the Government had also clarified the same by its letter' dated 25-7-1980 stating that the past service rendered in the grade of Telephone-cum-Watchroom Operators on adhoc basis could not be counted for promotional purposes. The same demand has been again raised as an industrial dispute by the Tuticorin Port Trust Employees Organisation and that claim of the Petitioner is unsustainable. The Port had proposed to adjust those Tclcphone-cum-Watchroom Operators against future vacancies in the grade of Lower Division Clerk then known as TOCC as fresh entrants. It was also proposed to create equal number of posts of leading fireman by abolishing the post of Tclephone-cum-Watchroom Operators. Accordingly, the posts of Telephone-cum-7550 THE GAZETTE OF INDIA : DECEMBER 15, 2001/AGRAHAYANA 24, 1923 [PART II—SEC. 3(ii)l cadre of TOCCs arise and transferred out from the fire service. When such transfer takes place, it will be necessary to post persons to the fire service, to look after these duties.

was an isolated category of post operated in the fire station only, and it was an isolated cadre without any promotional opportunities operated in Port fire service. It is also admitted that the pay commission had recommended that there should be no separate cadre of Telephone-cum- Watchroom Operator and that they should be merged with the cadre of Lower Division Clerk. So. the Ministry of Surface Transport by its letter dated 8-9-1977 suggested that the post of TC WRO may be merged with the post of TOCC/Lower Division Clerk. While giving effect to the suggestion made by the Ministry by its letter dated 8-9- 1977 the Port Trust had chosen to maintain the then existing incumbents of the post of TCWRO to be adjusted against future vacancies of the TOCC as and when vacancies arise. It is objected to by the Petitioner Union stating that the suggestion was made by the Ministry was based on the Pay Commission recommendation as accepted by the Ministry and hence, the Ministry and the Respondent should have merged the post and should not have individually absorbed TCWROs against future vacancies and that the merger should be have been imminent. It is further contended by the learned counsel for the Petitioner that for all practical and legal purposes, the entire service rendered by the concerned five employees/workman as TCWROs as well as Lower Division Clerks should be counted in service for the purposes of all subsequent promotions. Otherwise the entire service rendered as TCWROs becomes meaningless. It is also contended th?* a& j -t service norms, it is the rule reckon the entire sen m,

6. The learned counsel for the Respondent/ Management contra to this contentions of the Petitioner Union would say that while the recruitment rules for the post of Telephone-cum-Watchroom Operator were formulated by the Port and sent to the Central Govt, for approval during May. 1977, the Central Govt, did not approve the proposal, but suggested that the post of Tclcphone-cum-Watchroom Operator could be merged with the cadre of Lower Division Clerk, since the Pay Commission had recommended that there should be no separate cadre of telephone operator and it should be merged with the cadre of Lower Division Clerk, then known as TOCC. In response to Ministry's letter dated 8- 9-1977, the Port had furnished its view by its letter dated 3-1-1978. In that letter, it was stated that the post of Tclcphone-cum-Watchroom Operator have been created Tor fire service of the Port on the pattern obtained in Madras Port Trust. The existing incumbents of the post will be adjusted against future vacancies of the TOCCs and redesignated as such as and when vacancies in the

For this purpose, it is proposed to create equal number of posts of leading firemen to perform the duties of Telephone-cum-Watchroom Operators as the incumbents of the posts have to work in close liaison with other staff of fire service. This arrangement will avoid frequent transfers to other departments and consequently there will not be any difficulty in maintaining standard of discipline expected by the fire service. Thus, the Port had prepared to adjust those Telephone-cum-Watchroom Operators against the future vacancies in the grade of Lower Division Clerk then known as TOCC as fresh entrant's-. As per the proposal, the post of Telephone- cum-Watchroom Operators were abolished and five posts of leading firemen were created only on 15-6-1979. After that the incumbents were appointed to the grade of Lower Division Clerk on transfer w.e.f. 15-6-1979 against the existing vacancies as fresh entrants which specifically said that their regular appointment and the date of selection to the post of Lower Division Clerk for the purpose of reckoning their seniority would be w.e.f. 15-6-1979 as applicable to fresh entrants. It is further submitted by the learned counsel for the Respondent/ Management that the claim of the Union that the said five workmen should have been re-designated as Lower Division Clerk w.e.f. the date of their appointment as Telephone-cum-Watchroom Operators on transferring them to the post of Lower Division Clerk was in contravention of recruitment rules. But there are no provisions in the recruitment rules for the post of Lower Division Clerk for appointment either by transfer or from other grades or by re-designation of employees from other grades. So, one such claim made by the union is not justifiable with reference to the provisions of recruitment rules for the post of Lower Division Clerk existing at that time. Further, the Central Govt, had clarified that they will count their service as Lower Division Clerk only from the date of appointment as Lower Division Clerk. The Central Govt, is the authority competent to make or approve the recruitment rules. The qualifications prescribed for the post of Telephonc-cum-Watchroom Operators and Lower Division Clerk and duties and responsibilities attached to those two posts are not identical. The post of Lower Division Clerk is a Ministerial post involving clerical duties and having sufficient promotional opportunities upto the level of Deputy Secretary, whereas, the post of Telephone-cum-Watchroom Operators was an isolated category of post operated in fire station only. Though there are no provisions for appointment of these five workmen to the grade of Lower Division Clerk either by transfer or by re- designation, they were appointed as Lower Division Clerk as fresh7551 argument by the learned counsel for the Respondent/ Management are tenable and acceptable on the facts and circumstances of this case.

entrant only with a view to bring them out of an isolated cadre, which had no promotional opportunity and with reference to the direction of the Central Govt., which is the authority competent to formulate and approve the recruitment rules. When the proposal was sent to the Central Govt, stating that the five incumbents will be adjusted against future vacancies the Central Govt, by its letter dated 25-7-80 clarified that they would count service as Lower Division Clerk from the date of appointment. That suggestion was made by the Respondent/Management to the Ministry was only in the interest of those employees. In such circumstances, fixation of pay under F. R. 22(c) which is applicable to in case of promotion on higher posts had not arisen.

7. A perusal of the connected records filed along with the Counter Statement clearly shows that the stand taken by the Respondent/Management in this dispute against the claim made by the union on behalf of the concerned five workmen is correct. When the Central Govt, by its letter dated 25-7-80 had clarified that these five workmen service would count as Lower Division Clerk from the date of appointment, no legal steps has been taken by the Union then itself to challenge the said decision of the Central Govt, as illegal and unjustifiable.

9. Further, as it is mentioned in the Counter Statement itself, the claim has been made after a lapse of 18 years and it is a belated claim. The Hon'blc High Court has passed an order in the Writ Petition No. 640/1992 stating that "the Petitioner in that Writ Petition cannot question the resolution of the Board passed in 1979 regarding relaxation of qualifying period of service for promotion to higher posts in respect of SC/ST employees cannot be questioned nearly after 15 years". The said decision of the Hon'ble High Court is squarely applicable to the present belated claim made by the Petitioner Union. It is also not disputed that the Central Govt, has rejected the claim of the Union for the seniority of these five workmen from the date of their initial appointment as Telephone- cum-Watchroom Operators by its letter dated 25-07- 1980. It is seen from the facts available in this case that these five workmen were transferred to the grade of Lower Division Clerk, on abolition of the post of Telephone-cum-Watchroom Operators held by them w.e.f. 15-6-1979 as fresh entrants and their appointment in the grade of Telephone-cum- Watchroom Operators was on ad-hoc basis pending approval of the recruitment rules by the Central Govt. So, the Petitioner Union's claim for maintaining seniority with retrospective effect including their ad- hoc service in the grade of Telephone-cum-Watchroom Operators is not sustainable, as per the orders of the Central Govt, communicated in the Ministry of Labour in the letter dated 9-10-1995. The Respondent/ Management's reliance on this order of the Central Govt, is perfectly justified. Under such circumstances, it can be easily held that the action of the Management of Tuticorin Port Trust in refusing to redesignate the five Telephone-cum-Watchroom Operators appointed in 1976 as Lower Division Clerks is justified. Hence, they are not entitled to any relief as prayed for by the Petitioner Union in the Claim Statement. Thus, the point is answered accordingly.

10. In the result, an Award is passed holding that an award is passed holding that the action of the management of Tuticorin Port Trust in refusing to redesignate the five Telephone-cum-Watchroom Operators appointed in 1976 as Lower Division Clerks is justified. Hence, those workmen are not entitled to the relief prayed for by the Petitioner Union. No Cost.

(Dictated to the Stenographer, transcribed and typed by-him, corrected and pronounced by me in the open court on this day the 19th September, 2001.) 8. Tt is also the contention of the Respondent/ Management that the five Telephonc-cum-Watchroom Operators were appointed only on adhoc basis with reference to the provisions contained in the draft recruitment rules. It is further contended by the Respondent/Management that only in compliance with the instructions of the Central Govt, it was decided that the staff in the cadre of Telephone-cum- Walchroom Operators should be merged with the cadre of Lower Division Clerk so as to avoid any administrative as well as cadre management problem at a later date and in compliance with the instructions of the Central Govt, all the incumbents in the grade of Telephonc-cum-Watchroom Operators were appointed to the post of Lower Division Clerk on transfer with effect from 15-06-1979 as fresh entrants with the specific condition that their regular appointment and the date of selection to the post of Lower Division Clerk for the purpose of reckoning their seniority in the grade of Lower Division Clerk would be w.e.f. 15-06-1979. The Govt, also had clarified that the past service in the grade of Telephonc-cum-Watchroom Operators a separate category of post could not be counted for the purpose of promotion to the grade of Upper Division Clerk . Upto 14-6-79, the incumbents performed their duty in fire station only. Hence, the claim to rcdesignate them as Lower Division Clerk with retrospective effect is not maintainable. All these contentions of the Respondent/Management as advanced by way of an

K. KARTHIKEYAN. Presiding Officer7552 THE GAZETTE OF INDIA : DECEMBER 15, 2001/AGRAHAYANA 24, 1923 [PART II—SEC, 3(ii)] Witnesses Examined : On either side : None Documents Marked : On either side ; Nil New Delhi, the 29th November, 2001 S.O. 3413.—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, Nagpur as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of WCL and their workman, which was received by the Central Government on 28-11-2001.

rNo. L-22012/76/96-IR (C-II)]

N.P. KESAVAN, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL, NAGPUR.

PRESENT SHRI B.G. SAXENA, PRESIDING OFFICER.

REFERENCE NO: CGIT ; 169/2000 THE SUB AREA MANAGER, W.C.L.

AND

Section 10 of the Industrial Disputes Act, 1947 has referred this dispute for adjudication vide order No. L-22012/76/96-IR(C-ID dated : 11/15-07-97 on the following schedule.

SCHEDULE

L' Whether the action of the management of Chanda Rayatwari Colliery of WCL, Distt. Chandrapur in dismissing Smt. Ratnamala Kistaya, Ex-General Mazdoor, Chanda Rayatwari Colliery, w.e.f, 12-12-92 is legal and justified? If not to what relief is the workman entitled and from which date?" The schedule sent with the reference order shows that Smt. Ratnamala. Kisjaya was dismissed from service on 12-12-92. She had submitted Statement of Claim on C.G.I.T. Court No-1 at Mumbai on 30-09-97 claiming that she has been wrongly dismissed and was harassed by the Sub Area Manager of Chanda Rayatwari Sub Area.

The management of WCL submitted Written Statement on 10-09-98 and contested the case. The management had mentioned in the Written Statement that the workman had been disobeying the orders of his superior officers. She had also abused her superior officer on 03-09-92 and 05-09-92.

The workman has submitted affidavit in this Court through her advocate D.C. Nauwarkar, advocate on 07-12-2000. After that 22-01-01, 09-02-01, 09-03- 01, 27-03-01, 01-05-01, 11-05-01, 04-06-01, 02-07-01, 01-08-01,24-09-01, 10-10-01, and 05-11-01 were fixed for cross examination of witness and arguments.

The workman did not turn up for cross examination. Her advocate is not also appearing since 11-05-01.

In view of the above facts the workman has not turned up to contest the case. Her counsel is also avoiding to appear in the Court. The advocate also did not prefer to argue the case for workman.

The reference is therefore disposed of for want of prosecution.

The counsel for the management is present,

ORDER

SMT. RATNAMALA KISTAYA

AWARD

The Central Government, Ministry of Labour, New Delhi, by exercising the powers conferred by Clause (d) of Sub-section (1) and Sub-section 2(A) of The reference is disposed of for want of prosecution.

B. G, SAXENA, Presiding Officer Dated 05-11-2001.

date? What other directions are necessary in the matter?¹¹

New Delhi, the 29th November, 2001

The workman Ratanpal Pralhad Lokhande had submitted his Statement of Claim in C.G.I.T Court No. II at Mumbai. The workman has claimed that he was working in WCL as E-Motor Mechani- cal since March, 1990. On 25-06-95 he fell ill so he went to his village Naivargaon which is three km. from Nainpur, Distt. Chandrapur. The management issued Chargesheet to him on 19-08-95. The en- quiry set up against him on 06-10-95. The Enquiry Officer J.S. Sayare fixed enquiry for 28-10-95. He concluded the enquiry and submitted report to com- petent authority. The service of the workman was terminated by CGM vide order dated 24-02-96. The workman has claimed reinstatement on the ground that the enquiry was conducted exparte and he had no knowledge about the above enquiry.

S. O. 3414.—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 Nagpur as shown in the Annexure in the Industrial Dispute be- tween the employers in relation to the management of WCL and their workman, which was received by the Central Government on 28-11-2001.

[No. L-22012/46/99-tR(C-Il)]

N.P. KESAVAN, Desk Officer

ANNEXURE

In the Written Statement filed by the man- agement of WCL through sub Area Manager, New Majri Open Cast Sub Area.WCLTD dated 29-10- 99 it is mentioned that the workman had been absenting from duty from 19-12-93 and Chargesheet was given to him on 23-04-94. Though the expla- nation given by the workman was not satisfactory, he was allowed to join duty pending enqiry vide letter dated 31-05-94.

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL, NAGPUR

Again the workman started remaining absent from 26-05-95 and he did not inform management about the reason of his absence.

PRESENT SHRI B.G. SAXENA, PRESIDING OFFICER.

Reference No, CGIT : 80/2000

THE SUB AREA MANAGER. W.C.L.

AND

The management waited for returning of the workman on duty for about three months. When he did not trim up another Chargesheet No..WCL/M- OCM/Manager/Personal/95/384 dated 19-08-95 was issued to the workman.

RATANPAL PRALHAD LOKHANDE

AWARD

The Central Government, Ministry of Labour, New Delhi by exercising the powers conferred by Clause (d) of Sub Section (1) and Sub Section (2 A) of Section 10 of ihe Industrial Disputes Act, 1947 has referred this dispute for adjudication vide order No. L-22012/46/99/ IR(CM-II) dated : 03-08-99 on the following schedule.

SCHEDULE

The workman had left his residence which was in premises of Coalliery on 26-05-95 and did not inform the management as to where he was going. Thus no address of the workman was avail- able except his home address mentioned by him in Form-B Register. The Chargeshcct was sent to the workman on this address. The information regard- ing the setting up of the enquiry and the fixation of the dates of enquiry was also sent to the workman on the home address given by him in Form-B Reg- ister.

When the workman did not turn up to at- tend enquiry and did not furnish any address to the management as to where he was living since 26-06-95, the enquiry was concluded and the dis- missal order was passed on 24-02-96 i.e. after nearly eight months.

"Whether the action of the management of namely Sub Area Manager. New Majri Open Cast Mine of WCL, PO : Shivjinagar. Distt. Chandrapur in terminating the services of Shri Ratanpal Pralhad Lokhande, Ex-Motor Mechanic, New Majri Open Cast Mine, is legal, proper and justified? If not, to what relief the workman is entitled and from which7554 THE GAZETTE OT INDIA: DECEMBER 15,2001/AGRAHAYANA24, 1923 [PART II—SEC. 3(ii)] The workman and the management have sub- mitted documentary evidence. The workman Ratanpal P. Lokhande was also examined in the Court and his cross examination was recorded on 26-03-01. The management examined J.S. Sayare, Personal Manager and he was cross examined on 14-05-01. Both the parties closed their evidence.

Both the parties have submitted their Written Arguments. S.R. Pendre the representative of the workman argued the case, From the side of man- agement of WCL Shri D.C. Gupta, personal Man- ager argued the case for the management.

I have considered the entire Oral and Docu- mentary evidence on record. The workman Ratanpal Pralhad Lokhande admitted in his cross examina- tion that he is educated upto Class-XI. He can read and write Hindi. He can also read English. The workman admitted that he had himself furnished the address which is noted in Form-B. He further says that he remained ill form 26-06-95 to 26-2-96 i.e. for eight months. He did not inform the man- agement of the Coalliery of WCL where he was posted, about his illness during the period of above eight months.

The workman also admitted that he did not send any Medical Certificate of his illness to the Sub Area Manager. He also admits that he has not filed any medical Certificate in this Court to show that he remained ill form 26-6-95 to 26-2-96. He has also not mentioned in his affidavit as to where he took the treatment for his illness. The workman also did not mention form which disease he was suffering for the eight months.

The workman further admits that he raised the dispute before ALC, Chandrapur in June, 98 i.e. after two years and four months from the date of his dismissal.

The statement of Shri J.S. Sayare, Enquiry Officer shows that he was appointed Enquiry Of- ficer vide order dated 6-10-95. He had sent notice lo the workman by Registered post on the address which was given by the workman in the Service Book on Form-B Register. On the envelope the Postal Department reported that the workman was not living on that address. The Postal Department also informed that he had gone out to an unknown address. It is further mentioned by J.S. Sayare in the affidavit that the where about of the workman were not known. He completed the enquiry on 28-10-95. In cross examination this witness has stated that the Chargesheet was sent to the work- man through Register letter on 19-8-95. The infor- mation regarding the appointment of Enquiry Officer was sent to the workman on 17-10-95. This witness further says that on 15-2-96 workman Ratanpal P. Lokhande came in his office at New Majri Sub Area and had received the copy of the documents of the enquiry proceedings and the find- ing of the enquiry report from his office.

From the above statement of the witness J.S. Sayare it is evident that the workman did not report for duty even on 15-2-96. the workman also did not submit any Medical Certificate of his illness to the sub Area Manager showing that he remained ill from 26-6-95 to 26-2-96 as mentioned by him in his statement in the Court on 26-3-01. He did not file any appeal against the enquiry proceedings.

From the above evidence it is therefore clear that the workman Ratanpal P. Lokhande absented himself from duty from 25-05-95 as mentioned by him in Statement of Claim. The workman has men- tioned in his Statement of Claim that on 25-05-95 he fell ill. As there was no other male member in his family, he went to his native village Nainpur, Tah: Sindewahi, Distt Chandrapur. The workman did not inform the office of Sub Area Manager that he had fallen ill on 25-5-95 and he is going to his home town. Thus it is evident that the workman is educated upto Class-XL He can very well read and write Hindi, He was therefore having sufficient knowledge of Hindi and he could write letter to the management of WCL Sub Area Man- ager about his illness.

The workman therefore himself absented from his duty and did not appear in the Enquiry Pro- ceedings.

The workman has not submitted any Medical Certificate to show in this Court as well that he re- mained ill from 26-6-95 to 26-2-96.

It is therefore clear that the workman has no evidence with him to show that he remained ill for eight months. There is no evidence lo show that he was suffering from any such illness that he was un- able to report for duty for eight months. He was not admitted in any hospital for taking treatment for his illness. In the above circumstances the order of termi- nation of his service was legal, proper and justified.

The enquiry was conducted according to rules and principle of natural justice. The Enquiry Of- ficer has recorded his finding on the basis of docu- mentary evidence which was produced before him during the enquiry.

If the workman himself did not furnish the address as to where he was living for about eight months, the management cannot be blamed for it.

In the above circumstances the workman is not entitled to any relief. Issue No. 1 to 4 are de- cided accordingly.

The action of the management of namely Sub-Area Manager, New Majri Open Cast Mine of WCL, PO : Shivjinagar, Distt. : Chandrapur in terminating the service of Shri Ratanpal Pralhad Lokhande, E-Motor Mechanic New Majri Open Cast Mine is legal, proper and justified.

The workman is not entitled to any relief claimed by him.

No other directions are necessary in this matter.

The reference is answered accordingly.

Dated :

B.G. SAXENA, Presiding Officer New Delhi, the 29th November, 2001 S. O. 3415.—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 Nagpur as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of SECL and their workman, which was received by the Central Government on 28-11-2001.

[No. L-22012/78/2000-IR (C-II)l

N,P. KESAVAN, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL, AT NAGPUR PRESENT : SHRI B.G. SAXENA, PRESIDING OFFICER.

Reference No. CGIT : 285/2000

THE GENERAL AREA MANAGER, S.E.C.L. 3707GI/2001—16

AND

SHRI RAM MANOHAR

AWARD

The Central Government, Ministry of Labour, New Delhi by exercising the powers conferred by Clause (d) of Sub Section (1) and Sub Section (2 A) of Section 10 of the Industrial Disputes Act, 1947 has referred this dispute for adjudication vide order No. L-22012/78/2000/IR(CM- II) dated: 18-09-2000 on the following schedule.

SCHEDULE

"Whether the action of the General Manager, Sohagpur Area of SECL, PO : Dhanpuri, Distt. Shahdol (MP) in terminating the services of Shri Ram Manohar, Timberman, Chachai U.G. Mine of SECL w.e.f 29-03-94 is legal and justified? If not, to what relief the workman is entitled?" This reference was received from Ministry of Labour, New Delhi in Sept., 2000. Notices were is- sued to both the parties and the case was adjourned to 06-11-2000 and 18-12-2000, The representative of the management appeared and submitted autho- rity letter on 18-12-2000.

Nobody appeared from the side of the workman Ram Manohar. Neither the workman nor any rep- resentative of his union appeared lo contest the case. On 01-02-01 Registered Notice was again sent to Ram Manohar. The case was adjourned to 23-03-01, 17-05-01, 11-07-01. 21-08-01. 20-09-01 and 01-11-01. On all these dates the workman remained absent and did not turn up though Registered Notice was sent to the work- man Ram Manohar again on 11-07-01. On the envelope, the Post Office has reported on 19-07-01 that the workman Ram Manohar is not living on the address given by the management on 11-07-01. The General Secretary of the Union. Koyla Mazdoor Sabha also did not appear to contest the case for the workman.

More than one year has passed but the workman has not submitted any Statement of Claim, Today the application was moved by the manage- ment that nine opportunities have been given to the workman Ram Manohar to file the Statement of Claim. Neither the workman has appeared nor any representative of the workman appeared to submit the Statement of Claim.

In view of the above facts that no Statement of Claim has not been filed by the workman in sup- port of his dispute, the reference is disposed of for want of prosecution,7556 THE GAZETTE OF TNDIA : DECEMBER 15, 2001/AGRAHAYANA 24, 1923 [PART II—SEC. 3(ii)l ORDER

Ram Manohar. workman did not submit any Statement of Claim either through any advocate or any representative of his union. The workman during the last one year did not appear personally to submit any State- ment of Claim, hence the reference is disposed of for want of prosecution.

B.G. SAXENA, Presiding Officer New Delhi, the 29th November, 2001 S. O. 3416.—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 Nagpur as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of FCI and their workman, which was received by the Central Government on 28-11-2001.

[No. L-22012/181/2000-IR (C-II)]

N.P. KESAVAN, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL, NAGPUR PRESENT : SHRI B.G. SAXENA, PRESIDING OFFICER

Reference No. CGIT : 14/2001

THE DISTRICT MANAGER, FOOD CORPORATION OF INDIA

AND

SHRI RAMDAYAL SINGH

AWARD

The Central Government, Ministry of Labour, New Delhi by exercising the powers conferred by Clause (d) of Sub Section (1) and Sub Section (2 A) of Section 10 of the Industrial Disputes Act, 1947 has referred this dispute for adjudication vide order No. L-22012/181/ 2000/IR (C-Il) dated : 05-03-2001 on the following schedule.

SCHEDULE

"Whether the action of the Management of FCI, in transferring Shri Ramdayal Singh, (not a member of FCI Workers Union) from Bihar to Gondia Re- gion in contravention of the bipartite settlement dated 24-05-84 is is legal and justified?"

AND

"Whether the action of the union in resorting to stoppage of work/strike from 21 -02-2000 to 24-02- 2000 (four days) without giving notice of strike is legal and justified? If not, to what relief the man- agement or the union are entitled to?"

This reference has been sent by Government of India, Ministry of Labour, New Delhi on the dispute raised by Secretary/President. Food Corporation of India Workers' Union, Ajni. Representative of the FCI Workers' Union moved application for adjournment on 04-05-01. The case was adjourned to 25-06-01. On 22-05-01 the application was moved by Shri Niranjan Das, President, FCI Worker's Union that this union is only concerned with the dispute over the is- sue of transfer of Ramdayal Singh, workman from Bihar to Gondia (Maharashtra). The union has no concern with the issue of non-payment of wages to Ramdayal Singh which is his individual dispute.

On 10-08-01 Raghuraj Singh, Secretary, FCI Workers' Union moved application that in the conciliation proceedings it was agreed by the FCI management not to press the issue of joining of Shri Ramdayal Singh, Sardar at FSD, Gondia and the representative of the workmen also agreed to maintain peace and resort to constitutional methods only for redressal of their grievances.

In view of the agreement between the parties the reference has become infractuous and may be dismissed. On 05.10.01 the workman, Ramdayal Singh appeared in the Court and represented that he does not want to get the case transfercd from CGIT, Nagpur to CGIT, Calcutta.

On 23.10.01 the counsel for workman A.P Raghute appeared in the Court and wrote on the Ordersheet that the workman is not interested in proceeding further with the case and the reference be disposed of The counsel also represented that the workman does not want to submit any Statement of Claim,

In view of the above facts the workman is not disputing the issue of his transfer from Bihar to Gondia. The workman Ramdayal Singh is not interested in submitting any Statement of Claim and to contest the case further.

In view of the above facts the reference should be disposed of for want of prosecution.

ORDER

The reference is disposed of for want of prosecution as the workman's Advocate has represented that the dispute has been settled between the workman and the management.

The workman Ram Dayal Singh is therefore not entitled to any relief.

B.G. SAXENA, Presiding Officer New Delhi the 29th November, 2001 S.O. 3417—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 Kolkata as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of FCI and their workman, which was received by the Central Government on 28-11-2001

[No. L-42011(4)/79-I. II(B)] N. P. KESAVAN, Desk Officer

ANNEXURE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL AT KOLKATA Reference No. 24 of 1980 Parties : Employers in relation to the management ofF.C.I. AND

Their workmen Present:

MR. Justice Bharat Prasad Sharma

Presiding Officer

Apperance : On belalf of Mr. P C. Roy, Deputy Manager Management (Personnel) On behalf of None Workmen. State : West Bsengal Industry : Food Coropn.

AWARD

By Order No.L-42011(4)/79-I.II(B) dated 11 April, 1980 the Central Government in exercise of its powers under saction 10(l)(d) of the Industrial Disputes Act, 1947 referred the following dispute to this Tribunal for adjudi- cation ;

"Whether the action of the Food Corporation of India, 16-20, Barakhamba Lane, New Delhi, in amend- ing the Staff Regulations, 1971 to provide for direct re- cruitment of Assistant Managers (General/Depots) is legal, proper and justified in the circumstances ? If not. to what relief are the employees entitled ?"

2, When the matter is taken-up today, representa- tive of the management stales that the present referenci has been quashed by the Hon'ble Calcutta High Court in CO. No. 6292(W) of 1983. He also files a copy of the order of the Hon'ble High Court as reported in 2000(2) C.H.N. 727 and prays for disposal of the reference ac- cordingly.

3. It has been held by the Hon'ble High Court that the reference to the Tribunal was incompetent and quashed the reference. In this view of the matter, the present refer- ence is disposed of in terms of the order of the Hon'ble High Court of Calcutta.

B.P. SHARMA, Presiding Officer Dated, Kolkata, The 7th November, 2001.

New Delhi, the 29th November. 2001 S.O. 3418.—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 Chennai as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of FCI and their workman, which was received by the Central Government on 28-11-2001

[No. L-22012/187/2()00-IR(C-II)]

N. P, KESAVAN. Desk Officer

ANNEXURE

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

Present: K. KARTHTKEYAN. Presiding Officer INDUSTRIAL DISPUTE NO. 579/2001 (In the matter of the dispute for adjudication under clause (d) of sub-section (1) and sub-section 2(A) of7558 THE GAZETTE OF INDIA : DECEMBER 15, 2001/AGRAHAYANA 24, 1923 [PART II—SEC. 3(ii)] Section 10 of the Industrial Disputes Act, 1947( 14 of 1947), between Sri M.Singaravelu and the Management of Food Corporation of India, Chennai.)

BETWEEN

The Regional Secretary,: I Party/Claimant Food Corporation of India Employees Union, Chennai.

AND

The Senior Regional Manager, : II Party/ Management Food Corporation of India, Chennai.

Appearance:

For the Claimant: Unrepresented.

For the Management: Sri M.Imthiyas.Advocate The Govt, of India, Ministry of Labour in exercise of powers conferred by clause (d) of sub-section (1) and sub-section 2(A) of Section 10 of Industrial Dispute Act, 1947 (14 of 1947), have referred the concerned Industrial Dispute for adjudication vide Order No.L-22012/187/ 200()-IR(C-II) dated 16.04.2001.

On receipt of records from the Ministry of Labour, Govt of India, the case has been taken on file as ID, No. ?79/2001 and notices were sent to the Regional Secretary for the I Party/Union and the Senior Regional Manager for the 11 Party/Management, with a direction to appear before this Tribunal on ! 5,05 3001 and to file the Claim Statement as well as the row -itsr Statement respectively.

The notices sent by this Tribunal by Registered Post with acknowledgement due directing both the parties to appear before this Tribunal on 15,05.2001 were duly served on them and the concerned postal acknowledgement has been received by this Tribunal. On 15 5.2001.

The matter was stood over for my consideration till this date, and on perusal of the relevant records. Ministry's order of reference as an industrial dispute between the parties and after considering the objections of the II Party/ Management mentioned in detail in the statement of objections and the two documents filed by them and after considering the arguments advanced by the learned counsel for the II Party/Management, this Tribunal has passed the following :—

AWARD

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

"Whether non-regularisation and termination of Sri M.Singaravelu by the management of Food Corporation of India, Chennai is legal and justified? If not, to what relief the workman is entitled?"

2. The I Party/Food Corporation of India Employees Union has raised this dispute through its Regional Secretary espousing the cause of the concerned workman Sri M. Singaravelu and thereby questioned the validity of action of the II Party/ Management/Food Corporation of India, Chennai in non-regularising the service of the concerned workman and also the termination of the concerned workman's service. As per the Schedule of Reference of this industrial dispute, the I Party/Union has stated that the said action of the II Party/ Management against the concerned workman Sri M. Singaravelu is illegal and unjustified But inspite of sufficient opportunities have been given by granting two and half months time by adjourning this case to various dates of hearing, the I Party/Union has not chosen to file their claim on behalf of the aggrieved workman Sri M. Singaravelu in respect of this referred industrial dispute.

3. The Respondent/Management has filed a statement of objections alleging that the action of the Management in terminating the services of the concerned workman Sri M. Singaravelu from the service of the Respondent/Management is valid and justified,7559

4. The point for my consideration is—

of scavenger in Food Corporation of India . In view of

this and in the absence of any statement has been filed by

way of claim by the I Party/Union on behalf of the

concerned workman, this industrial dispute has to be

dismissed as devoid of merits.

"Whether the action of the II Party/Management

of Food Corporation of India.Chennai in terminating

the services of Sri M-Singaravelu is legal and justified?

If not to what relief the concerned workman is

entitled?"

5. It is seen from the two documents filed by the

Point;—

II Party/Management as FCI Staff Regulation regarding post and general administration cadre, there is no sanctioned post for the IM'arty/Managemcnt in the category of Scavenger but there is a sanctioned post of Sweeper Labour/cleaning gang, godown watchman, stitcher, dusting operator, picker etc. No category of scavenger is mentioned in the list of staff in that document. The 2™¹ document is the xerox copy of the bye-laws of the Food Corporation of India Employees Union. It is clearly stated that any employee of the Food Corporation of India in any capacity below the level of Deputy Manager, who is eligible to become an ordinary member of the Union. To disprove the averment in the statement of objection by the II Party/ Management, no plea or evidence has been let in by the I Party/Union and no step has been taken by the Union to prosecute this dispute before this Tribunal pressing their claim on behalf of the concerned workman. Under such circumstances, it remains that the objection raised by the II Party/Management by way of statement of objection as unrebutted and the claim made by the Union on behalf of the concerned workman Sri M. Singaravelu as an industrial dispute as mentioned in the reference cited as unproved. In the absence of any plea as well as evidence in support of the claim made by the I Party/Union on behalf of the concerned workman Sri M.Singaravelu, when especially statement of objection has been filed by the Respondent/Management objecting to the relief claimed, this Tribunal had no other option but to hold that the relief claimed by the Petitioner/Union has not been proved and established to pass an award in their favour granting the relief as mentioned in the Schedule of Reference in the industrial dispute. Thus, the point is answered accordingly.

6. In the result, an Award is passed holding that the concerned workman Sri M.Singaravelu is not entitled to any relief No Cost.

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

K. KARTHIKEYAN, Presiding Officer

WITNESSES EXAMINED:

On either side : None

DOCUMENTS MARKED:

Inspitc of several opportunities were given to the I Party/Union, they have not chosen to file their Claim Statement in respect of the dispute they have raised against the II Party/Management as it is referred to in the Schedule of Reference by the Ministry of Labour by its order dated 16.4 2001. The II Party/Management alone has filed statement of objection for the relief claimed by the I Party/ Union on behalf of the concerned workman mentioned as an industrial dispute in the Schedule of Reference. As it is seen from the statement of objection filed by the II Party/ Management, the concerned workman Sri M. Singaravelu for whom this industrial dispute has been raised by the I Party/Union for regularisation of his service and also reinstatement of the concerned workman by the Respondent/Management since the concerned workman has been terminated from service. The concerned workman was working as a Scavenger in the II Party Organisation. As per the rules and regulations of the Union, the permanent employees of Food Corporation of India alone can become a member of the I Party/Union, The concerned employee Sri M. Singaravelu is not a permanent employee of the Food Corporation of India and no appointment order has been issued by the Respondent/ Management to the concerned workman Sri M. Singaravelu . In view of this fact, the i Party/Union has no loco standi to maintain the dispute of the workman Sri M. Singaravelu. the concerned workman was engaged as scavenger as and when required in Food storage Depot at Thanjavur. The above depot was running a higher godown and the same was de-hired on 20.8.99. Tn view of that there was no necessity for engaging part-time scavenger and hence the services of the concerned workman Sri M.Singaravelu was not utilised anymore by the II Party/ Management. Further there is no sanctioned post of Scavenger in Food Corporation of India and the concerned workman was engaged only as a part-time worker as scavenger as and when required and there was no order of appointment issued to him. Hence, there is no question of regularisation of his service as a scavenger in the Respondent/Management. As per circular issued by the Headquarters of the II Party/Management dated 2.5.86 no casual labour is to be engaged after the cut off date on 2.5.86. The recruitment of staff in Food Corporation of India is governed by rules and regulations. Since Sri M. Singaravelu was engaged as part-time w orkcr for the work scavenging as and when such service was required, he cannot claim any permanent post, since there is no post On either side : Nil7560 THE GAZETTE OF INDIA : DECEMBER 15, 2001/AGRAHAYANA 24, 1923 [PART II—SEC. 3(ii)] New Delhi, the 29th November, 2001 S.O. 3419.—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 Cour Nagpur as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of WCL and their workman, which was received by the Central Government on 28-11-2001

INo. L-22012/193/98-IR(C-n)]

N.P. KESAVAN, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL, NAGPUR.

PRESENT SHRI B.G. SAXENA, PRESIDING

OFFICER.

REFERENCE NO : CGIT : 109/2000 THE SUB AREA MANAGER, W.C.L.

AND

SHRI SATYANARAYAN NARSAIYA MANNALA

AWARD

The Central Government, Ministry of Labour, New Delhi, by exercising the powers conferred by Clause (d) of Sub Section (1) and Sub section 2(A) of Section 10 of the Industrial Dispute Act, 1947 has referred this dispute for adjudication vide order No: L-22012/193/98/IR (CM- II) dated : 18-11-98 on the following schedule.

Whether the action of the management namely Sub Area Manager, Sasti Sub Area of WCL. Distt. Chandrapur in terminating the services of Sh. Satyanarayan Narsaiya Mannala. Ex-Gr. I Clerk Sasti Sub Area w.e.f. 18-01-98 is legal, proper and justified? If not, to what relief the workman concerned is entitled? What other directions are necessary in the matter?"

Sh. Satyanarayan Narsaiya Mannala had submitted statement of claim on 22-03-99 at Central Government Industrial Tribunal No. : II at Mumbai. This referencj was transfcredby Government of India Ministry ofLabour vide order dated 02-03-2000.

The workman has claimed that he was appointed in WCL on 22-11-80. He was promoted as Clerk Gr. I. On 24-07-97 the chargesheet was issued against him, the workman was charged for not maintaining Account Ledger and other relevant records of despatches in respect of road releases of coal in Gouri Sub Area of WCL. In the month of April, 96, excess quantity of coal was released against the release order mentioned in the Chargesheet dated 24-07-97. This act amounts to misconduct under certified standing order No : 26.1 and 26.5 by which the services of the workman were governed.

26.1 theft, fraud or dishonesty in connection with the employers business or property.

26.5 will full neglect of work. The workman was allowed 72 hours time to reply the Charges mentioned in the Chargesheet.

The workman submitted reply to the Chargesheet on 28-7-97 and denied the charges. He mentioned that irregularities were comitted by other Clerks such as mistake of Weighbridge Clerk in releasing excess coal. The workman further stated that the enquiry was conducted in haste, It was concluded exparte, The enquiry continued from 26-8-97 to 11-12-97. About 18 sittings were held during the enquiry proceedings. He filed an appeal on 23-1-98 against his dismissal order. The workman says that his termination from service is illegal. He claimed reinstatement with full backwages. In Written Statement the management has mentioned that the enquiry was conducted fairly. The Enquiry Officer adjourned the hearing several times on the request of the workman. Some documents were in the custody of Vigilencc Department at Nagpur and the workman was allowed to inspect the original documents at Head Quarter at Nagpur on 11-12-97. On this date the workman and his defence representative did not turn up, so the enquiry was concluded. The Enquiry Officer submitted his report to the disciplinary authority on 24- 12-97. The management says that the enquiry was conducted fairly and the workman was provided opportunity to produce his defence. Co-worker S. Luxman Sadafwar and after that R.K. Singh was also allowed to help him in the enquiry proceedings. The charges framed against the workman. Satyanarayan N. Mannala were proved and his service was therefore terminated from 18-1-98.

S.N. Mannala submitted affidavit on 28-8-2000. He was cross examined on 19-12-2000 and 05-02-01 by the counsel of WCL.

From the side of management the affidavit of R.D. Parashar, Deputy Chief Personal Manager and M.N. Ali, Enquiry Officer were submitted. R.D. Parashar was cross examined by the counsel of the workman on 05-07-01. M.N. Ali was also cross examined on 05-07-01. The workman in this case is represented through counsel Shri R N. Sen. The management of WCL. is represented through advocate B.N. Prasad.

Both the parties have submitted documents.

The counsel for the workman and the counsel for the WCL submitted their Written Arguments. The counsel for the parties did not prefer to argue the case orally.

I have considered the entire Oral and documentary evidence on record and the Written Arguments filed by the advocates of both the parties.

Shri B.N. Prasad, advocate for the WCL has reported on 22-10-2001 that there is no stay order in the reference No: 109/2000 of this Court which is being disposed of by this order. He also stated that no writ has been filed in any High Court or any Superior Court by workman S.N. Mannala concerning the present reference,

In his Statement of Claim filed by the workman on 22-03-99, he has mentioned that he has denied the charges. He further says that he had also brought on record before the Enquiry Officer certain other difficulties with respect to the performance of his work i.e. maintaining Accounts Ledger and other relevant records connected with coal despatches. He had also reported about the irregularities committed by other Clerks such as : mistake of weigh bridge Clerk, He has therefore stated that the excess quantity of coal was released in the month of April, 96. He stated in Statement of Claim that excess quantity of coal was released due to the mistake of weigh bridge Clerk. Thus it is admitted to the workman that the excess quantity of coal was released from the colliery in the month of April, 96.

S.N. Mannala was chargesheeted by the Manager Open Cast Project vide Chargesheet No : WCL/BA/SSA/ SOCP/MGR/1034 dated : 24-07-97.

The Enquiry Officer has mentioned in his enquiry report dated 24-01-97 that on the basis of the documentary and oral evidence produced before him during the enquiry, he was of the opinion that S.N. Mannala has not 'discharged his responsibility properly in maintaining the records of the despatches in respect of road releases and failed in ensuring that the despatched quantity did not :xceed the quantity in the release order. Due to this negligence excess quantities were released against the following release orders.

Release Order

Excess Quantity Passed (MT)

70622

The Enquiry Officer has further mentioned that S.N. Mannala, workman miscalculated the excess quantity of the coal issued to the parties against Release Order No : 67951 & 70638 and had given benefit of 75 Metric¹, Ton coal to the party concerned and caused loss to the company. The charges of standing order Clause 26 1 and 26.5 have been clearly proved against the workman,

The Deputy General Manager vide his order No : WCL/BA/SSA/262 dated 18-01-98 confirmed the finding of the Enquiry Officer. The Deputy General Manager has mentioned that all the charges have been proved against S.N. Mannala, Assistant Loading Inspector. Considering gravity of the charges of fraud and dishonesty in connection with the company's business and property and willful neglect of the work, Saryanarayan N. Mannala should be dismissed from the service of the company.

In his statement in the Court Shri S.N. Mannala has admitted that he has submitted the reply of the Chargesheet dated 24-07-97. He also admitted in his letter that he was maintaining the record of checking of road release. He had to sit with the weigh bridge clerk but he was doing work in the office of Dadaji Shrirang, Loading Superintendent. Whenever he got to time he went to the weigh bridge for balance checking. Sometimes he was not going to weigh bridge for balance check. The weigh bridge clerk had prepared the Gate Pass but had not mentioned the entry in Account Ledger. The balance of coal released was not checked by him, In the above letter submitted by the workman in reply to the Chargesheet he admitted that he had committed irregularity and excess coal was released from the mine. When it came to his mind he submitted report to the management. Thus from this letter it is admitted to the workman that the excess quantity of the coal was released from the mine against the Release Orders mentioned in the Chargesheet. The workman has not disputed the excess release of the coal to various parties mentioned in the Chargesheet. He has also not disputed about the loss caused to the compamy by the excess release of the coal in the month of April, 96 on different dates.

0.360

70623

24.120

70613

18.720

70620

63.370

70969

26.260

67951

17.530

75.200

69412

69603

34.370

70638

61.170

The workman has in his Statement of Claim only challenged the enquiry proceedings on this ground that the enquiry was conducted cxpartc. The enquiry was completed by the Enquiry Officer on 11-12-97 when he was not present. The workman has taken the plea that his cousin brother had died and he had informed to Shri R.D. Parashar on 10-12-97 that he will not attend the enquiry on 11-12-97 even then the enquiry was completed.

The statement of R.D. Parashar, Deputy Chief Personnel Manager was recorded on 05-07-2001. Shri R.D. Parashar stated that S.N. Mannala had not given any information to him about the death of his cousin brother on 10-12-97. He had also not informed him that he was unable to attend the enquiry proceedings on 11-12-97 at WCL Head Quarter in Nagpur.

Shri M.N. AH, Enquiry Officer has stated that as many as eighteen dates were fixed for the enqiry proceedings. S.N. Mannala was very well aware that on 11-12-97 the sitting of the enquiry proceedings will be held at WCL Head Quarter at Nagpur. This date was fixed with the consent of the workman S.N, Mannala and his defence representative. The workman had himself requested that he wanted to see some Original Documents which were available in the Vigilcncc Department of WCL at the Head Quarter of WCL in Nagpur. The workman himself absented knowingly to prolong the proceedings of enquiry without any justification.

The workman has himself admitted in his Statement of Claim that the cigthteenth sitting of the enqiry was held on 06-12-97. The workman had no objection when the date was fixed for the next hearing on 11-12-97 at WCL Head Quarter at Nagpur.

In his statement the workman S.N. Mannala himself admitted that the sitting of the enquiry was fixed at Nagpur on 06-12-97 and he was aware that on 11-12-97 the enquiry will be conducted at WCL Head Quarter at Nagpur.

In the Statement of Claim the workman has not mentioned the name of his cousin brother who is alleged to have died before 11-12-97.

In his affidavit dated 26-07-2000 also the workman did not mention the name of his cousin brother who is alleged to have died before 11-12-97. On the date of 18th sitting of enquiry of 06-12-97 he did not move any application that his cousin brother has died and any other date after 11 -12-97 be fixed for holding enquiry at Nagpur. The workman has not mentioned anywhere in his statement in this Court as to when his cousin brother died. Neither the name of the cousin brother is disclosed nor the place where he died was mentioned in the Statement of Claim or in the affidavit filed in the Court by the workman.

The counsel for the WCL has argued that no cousin brother of the workman has died any time before 11-12-97. The workman knowingly absented on 11-12-97. So the enquiry was concluded by the Enquiry Officer.

In these circumstances discussed above the argument of the counsel for WCL has force.

provided opportunity to cross examine the witnesses of the management but he himself avoided to cross examine them, All the relevant documents were supplied to the workman to enable him to defend himself in the enquiry proceedings.

Tn the above circumstances and evidence on record the enquiry was conducted according to the principles of natural justice.

The finding of the Enquiry Officer are based on the documents and oral evidence produced before him by both the parties. The finding of the Enquiry Officer cannot be considered perverse.

So far as the question of awarding the punishment of dismissal from services of the workman is concerned, I have considered the arguments sumitted by both the parties.

The workman has mentioned in Statement of Claim that this past record was clean and this record has not been considered.

The workman has also sated in the Statement of Claim that the parties which had lifted the excess coal from mine, have already paid the amount of the excess coal supplied to them and the management has therefore not suffered any loss. I have considered the above fact. The workman was holding the responsible post and it was his duty to ensure that the records concerning the release of the coal to the parties were properly maintained. It was also the duty of the workman S.N. Mannala to ensure that the excess quantity of coal is not despatched than that was mentioned in the release orders. The workman was holding the post of Assistant Loading Superintendent. He did not check the quantity of coal supplied to the parties with the release orders in April. 96. As many as in 9 cases the excess quantity of coal was supplied to the parties as mentioned in the Chargesheet. The workman has tried to shift the responsibility on other clerks. He himself did not maintain the record concerning the supply of the coal properly and thereby caused loss to the WCL Coal Mine. He was therefore found guilty of the charges under Clause 26.1 and 26.5 of the Standing Orders.

In view of the above facts the action of the management in dismissing the workman from service was justified.

ORDER

The workman S.N. Mannala had been given sufficient time to submit his defence. Co-worker R.K. Singh was also helping him in the enquiry proceedings on his request. On 11-12-97 the co-worker also did not appear before the Enquiry Officer to inspect any record or to defend the workman during the enquiry proceedings.

In the above circumstances the enquiry conducted by the Enquiry Officer, M.N. Ali was not an exparte enquiry.

The statement of M.N. Ali also shows that he had given full opportunity to the workman to participate in the enquiry proceedings. The enquiry proceedings were adjurned several times either on the request or workman or his defence representative. The workman was also The action of the management namely Sub Area Manager, Sasti Sub Area of WCL, Distt: Chandrapur in terminating the services of Shri Satyanarayan Narsaiya Mannala, Ex-Gr. I Clerk. Sasti Sub Area w.e.f. 18-01-98 is legal, proper and justified.

The workman is not entitled lo any relief claimed by him.

The reference is answered accordintly. No other directions arc necessary in this matter.

Date : 07-11-2001 B.G. SAXENA. Presiding Officer7563 New Delhi, the 29th November, 2001 S.O.3420.—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, Lucknow as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of FCI and their workman, which was received by the Central Government on 28-11-2001

[No. L-22012/231/200-IR (C-II)]

N.P. Kcsavan, Desk Officer

ANNEXURE BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, LUCKNOW

PRESIDING OFFICER : RUDRESH KUMAR ADUJDICATION - I D. NO. 68/2001 Ref. No. L-22O12/2.T1/2O()O/IR(C-II) Dated 25-4-2001

BETWEEN : State Secretary. Bhartiya khadya Nigam Karamchari Sangh, 5-6. Habibullah Estate, Ha/ratganj. Lucknow (espousing cause of Ishrat Hussian) AND The Regional manager. Food Corporation oflndia, 5-6 Habibullah Estate. Ha/ratganj. Lucknow.

AWARD

By order No. L-22012/231/2OOO/1R(C-II) dated 25-4-2001, the Central Government in the Ministry of Labour, in exercise of powers conferred bu clause (d) of sub-section (1) and sub-section 2(A) ofl.D. Act, 1947 (14 of 1947) referred this industrial dispute between the State Secretary. Bhartiya Khadya Nigam karamchari Sangh. Lucknow and the Regional Manager, Food Corporation oflndia. Lucknow for adjudication. 3707GI/2001—17

The reference is produced as under: "Whether the action of the Management of FCI in imposing the penalty upon Shri Ishrat Hussain A.G.-II (Depot) vide order dated 30-11-1999 and 5-2-2000 is legal and justified? If not what relief the workman is entitled to?"

2. On receipt of this reference order, notices were sent to the parties fixing 20-6-2001, The workman was directed to file claim statement. There being no response from the side of the workman 25-7-2001 was fixed and fresh notice was given. On behalf of the workman one Mr. Gyan Prakash appeared and filed adjournment application. On 25-7-2001 another adjournment application was filed by Mr. T. B. Singh Authorised representative of the workman. On 28-7-2001 Mr. T.B. Singh appeared and requested for further time which was allowed and 15-10-2001 was fixed for filing claim statement. On 15-10-2001 Mr. T. B. Singh or any other Authorised representative of the workman did not put appearance. However, in interest of justice another date 2-11-2001 was fixed. On 2-11-2001 also the Authorised representative of the workman absented and 23 -11 -2001 was fixed making it clear in the order that in the event of non filing claim statement, appropriate action permissible under law would be taken. More than six months time elapsed but the claim statement on behalf of the workman was not filed. Accordingly, there is not option but to presume unwillingness of the workman to puruse this industrial dispute any further.

3. Accordingly, LNo Claim Award is given without entering into merit of the case.

RUDRESH KUMAR. Presiding Officer LUCKNOW 23-11-2001

•^ f ^ #, 29 Hq"U, 2001

"SPJ.3W. 3421.—3flw1Pl

[^T. T^T-22012/263/98-3T^3TK-("?ft-II)] New Delhi, the 29th November. 2001 S.O. 3412.—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 Cour Lucknow as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of FCI and their workman, which was received by the Central Government on 28-11-2001

[No. L-22012/263/98IR(C-II)l

N.P. KESAVAN. Desk Officer7564 THE GAZETTE OF INDIA [DECEMBER 15, 2001/AGRAHAYANA 24. 1923 [PAKI II—SEC. 3 (ii) I ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT.

LUCKNOW

PRESIDING OFFICER : RUDRESH KUMAR ADUJDICATION

1. D NO. 127/2000

(KANPUR NO. 110/99)

Rcf. No. L-22012/263/9-/IR(CM-II) Dated 11-6-1999

BETWEEN :

The Slalc Secretary.

Bhartiya Khadya Nigam Karamchan Sangh.

?-6. Habibullah Estate.

Lucknow (espousing cause of Aman Singh)

AND

Senior Regional manager.

Food Corporation oflndia.

Lucknow

1986-87, failed to maintain absolute integrity and devotion to duty and acted in a manner of unbecoming of a FCI employee in asmuch as detailed below:—

Shri Aman Singh AG-I (D) dispatched 33 wagons wheat mixed with damaged grains and below "D" category Ex. Jhansi to FSD. Darangapalli (Kerala Region) during the period 24-8-87 to 30-8-87 which caused losses to the lime of Rs. 2.53.25 V. 20.

Thus, said Shri Aman Singh. AG-I (D) has contravened Regulations. 31,32 and 32-A of FCI (Staff) Regulations. 1971.

3. Sri Chandan Gopal. IAS (Retd.) was appointed Enquiry Officer to investigate the charges. He submitted hisreporton 8-4-1994 to the management. Hisconclusion was that charges against the workman. Aman Singh, remained unproved.

AWARD

By order No. L-22012/263/98/IR(CM-II) dated 11-6-1999. the, Central Government in the Ministry of 1 abour. in exercise of the powers conferred by clause (d) of sub-section (1) and sub-section 2(A) of I.D. Act. 1947 (14 of 1947) referred this industrial dispute between the Stale Secretary. Bhartiya Khadya Nigam Karamchari Sangh. Lucknow and Senior Regional Manager. Food Corporation oflndia. Lucknow to the CGIT-cum-Labour Court. Kanpur for adjudication. Later, this dispute was transferred to this Tribunal for adjudication.

The reference is produced as under :

"Whether the Senior regional Manager.Food Corporation of India. Lucknow was legal and justified in Imposing the Penalty of Stoppage of one Increment for the year 1996(1995) with cunimulalhe effect upon shri Aman Singh A G.I.D.) vide order Dated 31-8-1994? If not to. what relief the workman entitled?"

2. Validity of penalty' in ihc shape of stoppage of one increment 1996( 1995) with cummulative effect, uopn Ihc workkman, Aman Singh is to be examined in this adjudication. Facts ofthis case arc not dispute that Aman Singh was AG-I(D) on 10-2-1993 when he was issued a charge sheet by the disciplinary authority vide memorandum No V&S/4(744)/R.O.L.ko/JHS/91/1046 dated 10-2-1993 Statement of imputation misconduct or misbeha\iour in suport of article of charges framed against Aman Singh w as annexed with the memorandum. Anncxturc I of the memorandum reads the article of charges as follows: ,

Shri Aman Singh. AG-I(D) while posted and working as Inchnrge Shed No. 4 at FSD, Jhansi during.

4. Thereafter, by memorandum No. V&S/4 (744)/ RO. LKO/JHS/91/453 dated 15-4-1994. the Dy. Manager (Vigilance) signing for the Senior Regional Manager directed the Aman Singh to make any representation or submission to the disciplinary authority within 15 days of receipt ofthis memorandum. Copy of the enquiry report was enclosed with this memorandum and its receipt by the workman is not disputed. Since the enquiry was in favour of workman and so, the workman did not file any representation to prove his innocence. Later, by order no. V&S/4(744)/RO. LKO/JHS/91/102 dated 31-8-1994. The Senior Regional Manager K.K. Sinha passed penalty order exercising his powers conferred by Regulation 56 of FCI (Staff) Regulations. 1971 and imposed penalty of stoppage of one increment for the year 1995 with cumulative effect. The order discussed the enquiry report and it is explicit that the disciplinary authority, the Senior Regional Manager, did not agree with the findings recorded by the Enquiry Officer and formulated his own views without hearing the workman.

5. The management submitted enquiry file for perusal of this tribunal A preliminary issue was framed "whether the domestic enquiry against the workman culminating in penalty dated 31 -8-1994 was fair and proper'¹ The parties adduced documentary evidence but none of the parties preferred oral evidence, as the facts arc not disputed and the parties relied on documentary evidence on record.

6. The only question, in this adjudication, is. whether the enquiry was fair and proper and. if in - affirmative, whether action of the management by way of penalising the workan suffers with vice of perversity None of the parties challenged propriety of the Enquiry Officer in conducting the enquiry'. The workman has not denied opportunity to him and likewise, the management also, did not dispute that the Enquiry Officer was biased. His findings were in favour of the workman. The real controversy needed to be assessed, is. whether the disciplinary authority acted in accordance with law in not detailing points of dis-agreemcnt in its notice to the7565 New Delhi, the 29th November. 2001 workman inviting representation by way of memorandum dated 15-4-1994? After the conclusion of the enquiry, a copy of report was sent to the workman requiring him to submit representation if any. But this letter does not mention as whether the dicipinary authority dis-agreed with the findings arrived at by the Enquiry Officer. Since the enquiry was in favour of the workan he was justified in not making any representation. The very notice without giving points of disagreement was not legal and proper, since it denied the workman to make any effective representation on the points of disagreement, which ultimately went against him.

S.O. 3422.—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 Jaipur as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of FCI and their workman, which was received by the Central on Government

28-11-2001

[No. L-220l2/476/98~IR(C-II)J

N.P. KESAVAN. Desk Officer 7. No doubt, the disciplinary authority is not bound by the findings arrived at by the Enquiry Officer but rule of natural justice required an opportunity to the workman to explain evidence on record or points of disagreements on which disciplinary authority ultimately relied. In the present case, the enquiry was in favour of the workman. No points of disagreement was ever conveyed to the workman. The penalty order was passed without giving any opportunity to the workman to explain points of disagreement. It was mandatory for the disciplinary authority to have given proper opportunity to the workman to explain points of disagreement and explain circumstances, which were against him in his estimation. Non-compliance of this legal requirement, definitely, effected fairness of the enquiry which culminated into punishment to the workman. In Ram Kishan Vs Union of India (Civil Appeal 8325 of 1995) decided on September 1.1995 the Supreme Court observed as follows"

"In the absence of any ground or reason in the show cause notice it amounts to an empty formality which would cause grave prejudice to the delinquent officer and would result in injustice to him. The mere fact that in the final order some reasons have been given to disagree with (he conclusions reached by the disciplinary authority cannot cure the defect."

8. The observation of the Hon 'blc Supreme Court supports submissions of the workman that he was denied opportunity of fair enquiry.

9. Thus, in the facts and circumstances of the case, it is held that the enquiry was not fair and proper and the action of the disciplinary authority was against the rule of natural justice by denying opportunity to the workman. Accordingly, the award is against the management. The punishemnt order is set aside.

RUDRESH KUMAR. Presiding Officer

LUCKNOW

21-11-20017566 THE GAZETTE OF TNDIA : DECEMBER 15, 2001/AGRAHAYANA 24. 1923 [PART II—SEC. 3(ii)] ANNEXURE BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL, CUM LABOUR COURT AT HYDERABAD Present Shri E. ISMAIL Presiding Officer Dated —25th October. 2001 Industrial Dispute L. C. I. D. No. 19/2001 "Whether the action of the Food Corporation of India managment in not regularizing the workman Sh. Kedar Meena was appropriate, whereas workers who has put less number of days service were given permanent appointment ? If not, to what relief is the workman entitled ?

. Petitioner

Between : Sri Kodi Murali Krishna S/o Durgaiah, H. No. DA/119, Nehru Basthi, P,O, Ramavaram. Mandal Kothagudem, Dist. Khammam. PIN-507 118, AND:

1. The General manager. M/s. S.C.Co.Ltd.. Kothagudem, Dist. Khammam, 2. The Colliery Manager, M/s. S.CCo, Ltd,, YR. 7 Incline, Kothagudem. Dist. Khammam. Respondents

Appearances: For the Petitioner ; Smt, Sathwath Rana For the Respondent; Sri J. Parthasarathy & Sri A. Chandra Sekhar

AWARD

This is a case taken Sec.2 A(2) of the ID. Act, 1947 in view of the judgment of the Hon'ble High Court of Andhra Pradesh reported in W.P. No. 8395 of 1989 dated 3-8-1995 between Sri U. Chinnappa and M/s. Cotton Corporation of India and two others.

2. It is submitted that the petitioner was appointed as badli worker w.e.f. 1-3-1985 and due to itis satisfactory performance he was appointed as general Mazdoor in category-I w.e.f. 1-3-1991 through office order No. GM(K)/Admn. 80/313 dated 28-2-1991.

New Delhi, the 29th November, 2001

S.O. J423.—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 Hyderabad as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of SCCL and their workman, which was received by the Central Government on 28-11-2001.

3. While the petitioner was working at V. K. No. 7 Incline he was removed from services through order Ref.No. GM(K)/P. and 7/623 dated 15-4-1991 on the pretex that the petitioner was charge sheeted on 3-2-1991 for alleged absenteeism from duty and that the charges levelled are true, The petitioner preferred an appeal and inspite of various representations through union and personally it was of no use. Hence a legal notice dated 14-11-2000 was issued with which a reply notice was issued dated 8-12-2000 that the principles of natural justice were followed as such the order of removal is valid, [No. L-22025/25/2001-IR (C-Il)]

N.P KESAVAN, Desk Officer

4. That the charge sheet dated 3.2.199] is not in accordance with law and as such not tenable. The7567 documents relied upon for leveling charge are not supplied, No fair and proper enquiry was conducted. Different yard sticks has been applied to him. The petitioner ever since his oral termination on 15-4-1991 is unemployed. Hence the petitioner may be directed to be reinstated with continuity of service, full back wages and all attendant benefits.

5. A counter was filed. It is correct that the Petitioner was appointed as badli filler w.e.f, 1-3-1985. The petitioner is put to strict proof that he was appointed as general mazdoor in category-I w.e.f. 1 -3 -1991. It is denied that vide office order mentioned the petitioner was appointed as general mazdoor in category-I. The said office order is not traceable in the office.

6. The petitioner was regularly absenting himself without permission and without leave to his credit. The brief muster days in various years is as follows:—

in 1987 - 29 days in 1988- 138 days

in 1989 - 50 days

in 1990 - 58 days in 1991 - 15 days upto February, 1991. It is pertinent to note that as per the agreement a badli worker or general mazdoor must have completed 240 musters in a calendar year. From the above it is clear that right from the year 1985 in no single year he has completed 240 days,

7. The petitioner attended the enquiry and fully participated in the enquiry proceedings. However the petitioner did issue a legal notice dated 14-11 -2000 to which the respondent has given a reply. The said notice was issued after lapse of nine years. The petitioner has received all the benefits and payments that have to be paid to him on the application of the petitioner dated 14-5-1998. The charge sheet was strictly according to law and the enquiry was conducted strictly in accordance with the law. There was no oral termination. As it was stated earlier for five regular years he never put in minimum muster days, maximum being only 129. Hence, petition may be dismissed as the petitioner is not entitled for any relief.

8. The arguments were heard on validity of domestic enquiry and this court by its order dated 3-9-2001 held that the domestic enquiry held is valid. So the only question that is left is the quantum of punishment whether it is appropriate or not.

9. It is argued by the Learned Counsel for the petitioner that the petitioner worked as badli mazdoor from 1.3.1985 and also due to his satisfactory performance he was appointed as general mazdoor on 1,3,1991 through office order datc.d 28.2,1991. However, he was dismissed on 15.4.1991 for alleged absenteeism. He was orally terminated on 15.4.1991 and since then he is unemployed. Therefore, orders may be passed for his reinstatement with back wages etc.

10. It is argued by the Learned Counsel for the respondent that right from 1987 till 1991 the maximum No, of days he has worked in a year is 138 days in 1988, in 1989 he worked for 50 days and in 1990 for 58 days and in 1991 for 15 days, So it may be seen that he is not interested in work and after a full-fledged enquiry only he was dismissed and this Hon'ble Court vide orders dated 3.9.2001 held that the domestic enquiry is valid. However, the petitioner has come after a gap of nine years and docs not deserve any sympathy of the Court.

11. It may be noted that to show any leniency the past performance has to be seen, which is dismal. The maximum No. of days he has worked is 138 days in 1988. However, it is really surprising if the petitioner was appointed as general mazdoor seeing his performance of 50 days and 58 days in 1989 and 1990. Be that may be so. he also approached this Court after a gap of 9 years and from past performance it is clear that he is not a sincere worker. Hence, I am of the opinion that he does not deserve any relief. However, if there is work and the petitioner is available at the spot he may be given preference over others for appointment as badli worker. Reference ordered accordingly, Transmit.

Dictated to Kum K. Phani Gowri. Personal Assistant, transcribed by her corrected by me on this the 25* day of October 2001.

E. TSMAIL. Presiding Officer Appendix of evidence

Witness examined for the Witness examined Petitioner: Respondent.

NIL NIL

Documents marked for the Petitioner/Union NIL

Documents marked for the Respondent EX.M 1: Charge Sheet No.VK/CS/50/720 dt.3.2.1991 Standing Orders,

Ex.M 2: Copy of Acknowledgement of Charge Sheet by the petitioner.

Ex.M 3: Reply of the petitioner for the charge sheet Ex.M 4: Notice for enquiry No.VK/51/1094 dt.20.2.1991.

Ex.M 5: Copy of Acknowledgement of notice received by the petitioner.

Ex.M 6: Notice for enquiry No.VK/50/1664 dt, 9.3.1991.

Ex.M 7: Copy of Acknowledgement of notice received by the petitioner of Ex.M6.

Ex.M 8: Domestic enquiry proceedings.

Ex.M 9: Enquiry Report.

Ex.M 10: Lr. of Supdt. of Mines on enquiry report to the G.M., SCCL., Kothagudem.

Ex.M 11: Dismissal order Lr. No.GM(K)/P 7/623 dt, 13.4.1991.

Ex.M 12: Legal notice by petitioner dt. 14.11.2000.

Ex.M 13: Reply to legal notice by SCC Ltd .

dt.8.12.2000.

New Delhi, the 29lh November, 2001 S.O. 3424 —In pursuance of Section 17 of the Industrial Dispute Act. 1947 (14 of 1947), the Central Government hereby publishes the award of the Industrial Tribunal/Labour Court, Hyderabad as shown in the Annexure in the Industrial Dispute between the employers in relation to the management SCCL and their and their workman, which was received by the Central Government on 28-11-2001.

[No. L-22025/25/200MR(C-II)]

N.P. KESAVAN, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAl TRIBUNAL CUM-LABOUR COURT AT HYDERABAD

PRESENT Shri E. ISMAIL Presiding Officer Dated:-25.10.2001

INDUSTRIAL DISPUTE No. L.C.I.D.No. 16 of 2001

Between.

Sri Abdul Hai.

S/o Abdul Baqui.

N. No. 1358. punjabgadda.

PO Ramavaram. Koihagudcm Petitioner AND

The General Manager (P).

M/s. S.C Co. Lt..

Manugur.DisLKhammam. Respondent Appearances •

For the Petitioner . M/s. Smt, Salwath Rana & Sri Mohd Salahuddin

For the Respondent : M/s. Sri J. Parthasarathy & Sri A Chandrasckhcr

AWARD

This is a case taken under Sec.2 A (2) of the I.D. Act, 1947 in view of the judgment of the Hon'ble High Court ofAndhra Pradesh reported in W.P. No.8395 of 1989 dated 3.8.1995 between Sri U. Chinnappa and M/s. Cotton Corporation of India and two others.

2, It is submitted that the petitioner was appointed as turner under the control of the respondent where he was attending his duties to the entire satisfaction of his superiors. The respondent issued charge sheet dated 29.11.1989 leveling charges of absenteeism from duty w.e.f. 26.6.1989 and from 23.12,1989. The petitioner was dismissed w.e.f 18.11.1990 violating the principles of natural justice with the result that the same is illegal, invalid and not sustainable in law. The appeal preferred has not been disposed off and the petition was constrained to issue legal notice dated 12.11.2000 which is acknowledged on 20.11.2000 with no response till this date That the petitioner was ill and he was treated in the hospital of S.C,Co. Ltd., and the intimation given from time to time. The Xerox copy of the prescription and the postal acknowledgement copies are enclosed along with the petition. The order of dismissal is passed without show cause notice which is violation of principles of natural justice. That the enquiry is vitiated and findings are not ustified. The order of removal is therefore bad in the eye jf the law and liable to be quashed. Inspite of best efforts the petitioner could not secure alternate gainful employment and thus he is put to financial strain and mental agony, That the other persons have been reinstated. Hence this petitioner may be reinstated with continuity of service with full back wages and all attendant benefits in the interest of justice.

3. A counter was filed stating that the petitioner absented himsclffrom 12.6.1989 to 12.12 1989 and again from 23.12.1989 to 23.5.1990 without prior sanction of leave or permission as per charge sheet dated 23.5.1990. The charge sheet was sent to his house, he refused to receive and it was returned back with postal department endorsement. Hence, the same was published in Telegu Daily newspaper Eenadu, He was directed to appear for enquiry on 18.6.1990. As the petitioner did not submit his explanation, the respondent ordered to conduct a detailed enquiry. The petitioner participated in the enquiry & a full and fair opportunity was given to the petitioner to defend his case and also for cross examination of management witnesses. As the charges were proved he was dismissed from service w.e.f 18.11.1990. Further the petitioner has raised the dispute after a gap of 11 years. Further the company consists of one main hospital which is fully equipped and three area hospitals, one of which is located in Manuguru itself apart from dispensaries at various local flaces. further there is a tie up with Osmania General Hospital and Nizam Institute of Medical Sciences7569 in case of a specialized treatment. So the allegations of the petitioner on the said ground are totally irrelevant apart from being incorrect. It is pertinent to note that the petitioner actually went to the hospital on 11.6.1989 as an out patient wim shift No. 14997 and did not turn up for treatment from 12.6.1989. The charge is with regard to absenteeism and the petitioner is trying to justify by raising various untenable pleas. Further he has raised the dispute after a gap of 11 years shows his attitude towards his employment. Hence he is not entitled for any relief.

Appendix of evidence

Witness examined for the Witness examined for the Petitioner: Respondent:

NIL NIL

Documents marked for the Petitioner/Union NIL Documents marked for the Respondent

EX.MI: Standing Orders

Ex.M2: Copy of Memorandum of Settlement dt. 3.3.1989

4. This Court by an order dated 16⁰¹ August,. 2001 held that the domestic enquiry held against the petitioner is valid. Now the only question is about the quantum of punishment as no witnesses arc examined on behalf of the petitioner nor any documents marked on behalf of the petitioner.

5. It is argued by the Learned Counsel for the petitioner that Petitioner was dismissed for absenteeism violating the principles of natural justice. He was ill and therefore he could not attend. His absence was with justifiable cause. That he has produced medical certificate from Dr. R.R. Sharma for the period of his absence in the enquiry. Further his wife was not traceable and he was in search of his wife during the period from 20.6.1983 to 21.12.1989 and he also fell ill. He resumed duty on 22.12.1989, after handing over his wife to his parents. Therefore he submits that the absence of the petitioner was not wanton or without any reason. Hence he may be reinstated into service.

6 It is argued by the Learned Counsel of the respondent that the very fact that petitioner has approached the Hon'ble Court after a gap of almost 11 years, shows how sincere he is and this Hon'ble Court has already held that the domestic enquiry is valid, And he was dismissed after full-fledged enquiry. Therefore he may not be reinstated in service.

7. It may be seen that as per Ex.M6 the petitioner has received the charge sheet he has participated in the enquiry and the enquiry was held valid by this Court vide order dated 16.8.2001. The removal order is Ex.M8 dated 18.11 1990. Therefore it may be seen that alls the formalities have been complied with and therefore ordering reinstatement after 11 years is not justified and the petitioner is not entitled to any relief. However, if there is any fresh recruitment or even temporary vacancies of turner arc there the respondents shall give preference to petitioner being the ex-cmployee and experienced as turner subject to age and medical fitness. Award passed accordingly. Transmit.

Dictated to Kum K. Phani Gowri, Personal Assistant, transcribed by her corrected by me on this the 25 day of October 200 L

E. ISMAIL. Presiding Officer Ex.M3: Domestic enquiry proceedings

Ex.M4: Notification in Eenadu

Ex.M5: Enquiry Report

Ex.M6: Copy of Acknowledgement of charge Shee by the petitioner

Ex.M7: Charge Sheet No.DE/MNG/E/1146 Exm8: Dismissal order Lr.No.pD/MGR/8/3023 New Delhi, the 29th November. 2001 S-O. 3425,—In pursuance of Section 17 of the Industrial Dispute Act. 1947 (14 of 1947). the Central Government hereby publishes the award of the Industrial Tribunal/Labour Court Hyderabad as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of SCCL and their workman, which was received by the Central Government on 28-11-2091.

' [No. L-22()25/25/20()l-IR(C-II)]

N.P. KESAVAN. Desk Officer.

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL- CUM-LABOUR COURT, AT HYDERABAD

PRESENT

Shri E. ISMAIL

Presiding Officer

Dated: 24-10-2001

INDUSTRIAL DISPUTE L.C.LD. No. 17 of 2001

Between:

Sri Noothi Ramakrishna, S/o Venkati,

H.No. 5-4-18, Coolie Line Basti,

Near S.B.H.,

Kothagudem-507 101 Petitioner And

1. The General Manager,

M/s. S.C. Co.. Ltd*.

Manguguru-507 117.

2. The Coliery Manager,

M/s. S.C. Co., Ltd.,

PK. 3 incline,

Manugnm.

Dist. Khammam. Respondents.

Appearances :

For the Petitioner M/s Smt. Salwath Rana & Sri Mohd. Salahuddin. For the Respondent: M/s Sri J. Parthasarathy. Sri V. Hariharan & Sri A. Chandrasckher

AWARD

This is a case taken under Sec.2 A (2) of the I.D. Act. 1947 in view of the judgment of the Hon'ble High Court of Andhra Pradesh reported in W.P. No. 8395 of 1989 dated 3.8.1995 between Sri U. Chinnappa and M/s. Cotton Corporation of India and two others.

2. The brief facts stated in the petition arc: that the petitioner was appointed as a badli worker w.e.f. '14-10-1985. He was attending to his duties regularly without any complaint. While working at Manuguru the petitioner was issued charge sheet dated 28.7.1987 leveling the following charges, he have absented from duty without leave, sick or without prior permission from the undersigned w.e.f 20-12-1986. That on 2-1-1990 the petitioner was prevented from joining duty on the pretext that his services were terminated orally which is illegal invalid and not sustainable in law. The appeal preferred is not disposed off inspite of repeated representations in person and through union. The petitioner therefore got issued legal notice dated 15-11-2000 to the first respondent which is acknowledged on 20-11 -2000 but was not replied. The charge sheet dated 28-7-1987 issued by the 2nd respondent is sent not in accordance with law and hence not tenable. The documents were not supplied to the petitioner, no fair and proper enquiry was conducted. Enquiry report was not submitted. That the petitioner is unemployed ever since his oral termination of 2-1-1990 and hence this Court may be pleased to set aside the oral termination of the petitioner on 2-1-1990 and direct the respondent to reinstate the petitioner with continuity of services, full back wages and all attendant benefits in the interest for justice.

3. A counter was filed stating that the petitioner was appointed in the company w.e.f. 22-10-1984 as badli coal filler. His attendance was very irregular, viz., as follows:

in 1985 - 91 days

in 1986 - 121 days

in 1987 - 22 days

4. Hence a charge sheet was issued which could-not be served. Hence, a publication was made and ex-parte enquiry was made. And he was dismissed from services w.e.f. 16-6-1988 vide office order dated 15-6-1988. One month's notice pay was also sent to the residential address of the petitioner by way of money order which was also returned due to non availability of the addressee. The respondent also filed a petition under Sec.33 (2) of the I.D. Act seeking approval of the Industrial Tribunal for the dismissal of the petitioner wherein also he did not appear.

5. Be that it may be so. inspite of all this there was a memorandum of settlement dated 3-3-1989 with the union under Sec, 12 (3) of the I.D. Act Under Para 3 of the said settlement it was specifically agreed that as a gesture of goodwill, as it was a centenary year of the company, the management would review the cases of certain employees who had been dismissed for absenteeism on condition that they will be on trial for a period of 12 months and if there is no improvement during that period i.e., if the attendance is not more that 190 mouster days in one calendar year, the order of dismissal on ground of abcenteeism would automatically stand. Basing on that the petitioner was given an opportunity and reappointed in October, 1989. That the petitioner barely managed to put 9 days of muster of during the whole year and absconded again. Accordingly as he failed to fulfil minimum condition of the reappointment he automatically ceased to be employed from 1990. Hence the petition may be dismissed and a Nil Award may be passed

6. It may be seen that there is some confusion which has to be set right now itself. The petitioner actually absented himself without leave of any kind or prior permission from 20-12-1986. Accordingly he was issued7571 a charge sheet dated 28-7-1987 and an enquiry was conducted and he was dismissed Again in view of memorandum of settlement as it was a centenary' year he was reappointed from October. 1989 as he has to put in only 9 days of attendance, the petitioner was not allowed to join duty from 2-1-1990. This Court by an order dated 21-8-2001 held that the domestic enquiry was validly conducted. So far as the original enquiry is concerned it was already held that the same is validly conducted. The petitioner has not let in any evidence to the contra of the assertion by the respondent that he was again reappointed due to settlement due to centenary year in October, 1989, In fact the respondent said that in one year he should put in at least 190 days or more of muster days. But, he has not. According to them he reported for more 9 days and actually there was no oral termination on 2-1-1990 and the petitioner has raised a dispute after a passage of 12 years and it was argued that he is trying to kick a dead horse. Hence, while the counsel for the petitioner submits that now respondent is speaking lies how can they terminate him orally from 2-1-1990 and the termination dated 2-1-1990 is bad in law. Once when they have taken him back as per the agreement which is marked as Ex.M 12 as per Para 3A. The trial should have been for 12 months. No doubt his attendance may be only 9 days during October, November and December, 1989, but, he might have worked for 190 days if he was given a chance for a period of 12 months. Hence, he submits that he may be taken back into service with continuity of service, back wages, and all other attendant benefits etc.

9. It may be seen that according to Ex M 10 he has also received one month's notice wages on 27-6-1988 During the centenary year. 1989 he was reappointed and during October to December. 1989 he worked for 9 days.

10. The settlement is Ex.M 12. Wherein Para .3 A of the said settlement states that the reemployment would be on trial basis for a period of 12 months and if they do not show satisfactory work in 190/240 days performance and their services would be terminated. It is an admitted case that during October. November and December. 1989 petitioner put in only 9 days, question of providing the concept of 12 months is not there because according to the respondent he absconded again and they did not dismiss him orally.

11. Seeing the past performance of the petitioner who hardly managed to work in 1985 for 91 days, in 1986 for 121 days and in 1987 for 22 days. And again when he was given a chance in October. November and December he worked for 9 days . Contention that whole year should have been given does not appear to be justified and in fact if a view of over all circumstances arc taken into consideration it can be safely presumed that he abandoned the service and further as he is late in everything he has come to Court after a gap of 11 years. Hence he does not deserve any relief. However, if there is any work of badii worker available, and if this petitioner is found at the spot he may be given preference to others in the matter of appointment. The reference is ordered accordingly. Transmit.

Dictated to Kum. K. Phani Govvri, Personal Assistant, transcribed by her corrected by me on this the 24th day of October, 2001.

E. ISMAIL. Presiding OITiccr Appendix of evidence

7. The arguments were heard on the validity of domestic enquiry and by an order dt, 16th August, 2001 this Court held that the domestic enquiry held is valid, Therefore, no witnesses were examined and arguments were the question of punishment. It is argued by the Learned Counsel for petitioner that the petitioner was terminated orally on 2-1-1990 and therefore he may be directed to be taken back with all attendant benefits.

8. The Learned Counsel for respondent submitted that he was appointed on 22-10-1984 as badii coal filler. His attendance was very irregular in 1985 he worked for 91 days, in 1986 for 121 days and in 1987 for 22 days. Enquiry was held and he was dismissed from services w.e.f. 16.6.1988. One months notice pay was also sent to him. There was a settlement on 3-3-1989 that the management should reconsider the cases of certain employees who have been dismissed for absenteeism on condition that they will be put on trial for a period of 12 months and if his attendance is not more that 190 muster days in one calendar year the order of dismissal on the ground of absenteeism would automatically stand. Hence he was again reappointed in October, 1989 and he worked only for 9 days. During the whole year and absconded again. Therefore, he deserves no sympathy and a NIL Award is passed.

3707GI/2001—18

Witness examined for the Witness examined for I he Petitioner: Respondent:

NIL NIL

Documents marked for the Petitioner/Union

NIL

Documents marked for the Respondent Ex.Ml: Application filed before Industrial Tribunal. Hyderabad

Ex.M2: Charge Sheet No.PK.3/8(b)/86

Ex.M3; Notification in Eenadu

Ex.M4: Domestic enquiry proceedings

Ex.M5; Enquiry Report

Ex.M6: Dismissal order Lr.No.FD/MGG/8/11567572 THE GAZETTE OF INDIA : DECEMBER 15, 2001/AGRAHAYANA 24, 1923 [PAKT II—SEC. 3(ii)J Ex.M7: Money Order receipts of one month's notice

AND

wages

Ex.M8: Registered Post receipt.

1. The General Manager, M/s S.C.Co. Ltd., Manuguru-507 117.

Ex.M9: Undelivered registered cover.

2, The Colliery Manager,

EX.M10: Copy of remittance Lr. No.PK. 3/73/

1477 dt. 27-6-1988

Ex.Mll: Copy of application filed by the petitioner

M/s. S.C. Co. Ltd., P.K. 1 incline, Manuguru, Dist. Khammam. Respondents dt. 15-7-89

APPEARANCES :

Ex.M12: Copy of Memorandum of Settlement

dt. 3-3-1989

For the Petitioner : M/s. Smt. Satwath Rana & Sri Mohd. Salahuddin Ex.M13: Standing Orders.

For the Respondent: M/s. Sri J. Parthasarathy,

Sri V. Hariharah & Sri A. Chandrasekher.

AWARD

This is a case taken under Sec.2 A (2) of the I.D. Act, 1947 in view of the judgment of the Hon'ble High Court of Andhra Pradesh reported in W.P. No. 83 95 of 1989 dated 3.8.1995 between Sri U. Chinnappa and M/s. Cotton Corporation of India and two others.

New Delhi, the 29th November, 2001

S.O. 3426.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Industrial Tribunal/Labour Court, Hyderabad as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of SCCL and thdr workman, which was received by the Central Government on 28-11-2001.

[No. L-22025/25/2001-IR(C-II)]

N.P. KESAVAN, Desk Officer.

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL CUM LABOUR COURT AT HYDERABAD

Present Shri E. ISMAIL Presiding Officer

Dated:-24.10.2001

INDUSTRIAL DISPUTE L.C.I.D.No. 18 of 2001

Between:

2. The brief facts stated in the petition are: that the petitioner was appointed as a badli coal filler w.e.f. 3-2-1984. He was attending to his duties regularly without any complaint. While working at P.K. 1 incline, the petitioner was issued charge sheet dated 2-1 -1990 leveling the following charges : he had absented from duty unauthorized by which constitutes serious misconduct under clause 16 (16) & 16 of Company's Standing Orders. That on 2-1-1990 the petitioner was prevented from joining duty on the pretext that his services were terminated orally which is illegal, invalid and not sustainable in law. The appeal preferred is not disposed off inspite of repeated representations in person and through union, The petitioner therefore got issued legal notice dated 14-11-2000 to the first respondent which is acknowleTv^.-d on 20-11 -2000 which was not replied. That the charge sheet dated 2-1-1990 issued by the 2nd respondent is not in accordance with law and hence not tenable. The documents were not supplied to the petitioner, no fair and proper enquiry was conducted Enquiry report was not submitted. That the petitioner is unemployed ever since his oral termination of 2-1-1990 and hence this Court may be pleased to put set aside the oral termination of the petitioner on 2-1-1990 and direct the respondent to reinstate the petitioner with continuity of services, full back wages and all attendant benefits in the interest for justice,

Sri T. Ramulis, S/o Mallaiah. HNo.DA/1004. Nehru Street, Ramavaram, Kothagudem-507 118. Petitioner

3. A counter was filed stating that the petitioner was appointed in the company w e.f. 28.1.1984 as badii coal filler. His attendance was very irregular, vi/... as follows:

in 1985 - 176 days

in 1986 - 77 days

in 1987 - 33 days

days. However, he has not. According to them he reported for more 9 days, actually there was no oral termination on 2-1-1990, the petitioner has raised a dispute after a passage of 12 years, and it was argued that he is trying to kick a dead horse. Hence, while the counsel for the petitioner submits that now respondent speaking lies how can they terminate him orally from 2-1-1990 and the termination dated 2-1-1990 is bad in law. Once when they have taken him back as per the agreement which is marked as Ex,M12 as per Para 3 A. The trial should have been for 12 months. No doubt his attendance may be only 9 days during October, November and December, 1989, but, he might have worked for 190 days if he was given a chance for a period of 12 months, Hence, he submits that he may be taken back into service with continuity of service, back wages, and all other attendant benefits etc.

4.-Hence a charge sheet vide letter No. PK3/8B/79, dated 10-1-1988 was issued which could not be served and returned undelivered. Hence, a publication was made in the Telgu daily Eenadu dt. 1-3-1988 directing the petitioner to attend the enquiry on 21-3-1988, but, he did not and ex-parte enquiry was made. And he was dismissed from services w.e.f. 16-6-1988 vide office order dated 15.6.1988. One month's notice pay was also sent to the residential address of the petitioner by way of money order, which was also returned due to non-availability of the addressee. The respondent also filed a petition under Sec.33 (2) of the I.D. Act seeking approval of the Industrial Tribunal for the dismissal of the petitioner wherein also he did not appear.

7. The arguments were heard on the validity of domestic enquiry and by an order dt. 21st August, 2001 this Court held that the domestic enquiry held is valid. Therefore, no witnesses were examined and arguments were heard on the question of punishment. It is argued by the Learned Counsel for the petitioner that the petitioner was terminated orally on 2.1.1990 and, therefore, he may be directed to be taken back with all attendant benefits.

5. Be that it may be so, inspite of all this there was a memorandum of settlement dated 3-3-1989 with the union under Sec. 12 (3) of the I.D. Act. Under Para 3 of the said settlement it was specifically agreed that as a gesture of goodwill, as it was a centenary year of the company, the management would review the cases of certain employees who had been dismissed for absenteeism on condition that they will be on trial for a period of 12 months and if there is no improvement during that period i.e.. if the attendance is not more that 190 muster days in one calendar year, the order of dismissal on ground of absenteeism would automatically stand. Basing on that the petitioner was given an opportunity and reappointed in October. 1989. That the petitioner barely managed to put 9 days of muster of during the whole year and nbsconded again. Accordingly as he failed to fulfil minimum condition of the reappointment he automatically ceased to be employed from 1990. Hence the petition may be dismissed and a Nil Award may be passed.

8. The Learned Counsel for respondent submitted that he was appointed on 28-1-1984 as badii coal filler. His attendance was very irregular in 1985 he worked for 176 days, in 1986 for 77 days and in 1987 for 33 days. Enquiry was held and he was dismissed from services w.e.f. 16.6.1988. One month notice pay was also sent to him again there was a settlement on 3.3.1989 that the management to review the cases of certain employees who have been dismissed for absenteeism on condition that they will be put on trial for a period of 12 months and if his attendance is not more that 190 muster days in one calendar year the order of dismissal on the ground of absenteeism would automatically stand. Hence he was again reappointed in October, 1989 and he worked only for 9 days. During the whole year and absconded again. Therefore, he deserves no sympathy and a NIL Award is passed.

9. It may be seen that according to Ex.MlO he has

also received one month's notice wages on 27-6-1988 During the centenary year, 1989 he was reappointed and during October to December. 1989 he worked for 9 days.

6. It may be seen that there is some confusion which has to be set right now itself. The petitioner actually absented himself without leave of any kind or prior permission from 3-1-1987. Accordingly he was issued a charge sheet dated 10-1-1988 and an enquiry was conducted and he was dismissed. Again in view of memorandum of settlement as it was a centenary year he uas reappointed from October. 1989 as he has to put in only ') days of attendance, the petitioner was not allowed to join duty from 2-1-1990. This Court by an order dated 21-8-2001 held that the domestic enquiry was validly conducted. So far as the original enquiry which is charging is concerned it was already held that the same is validly conducted. The petitioner has not lead any evidence to the contra of the assertion by the respondent that he was again reappointed due to settlement due to centenary year in October. 1989. In fact the respondent said that in one year he should put in at least 190 days or more of muster

10. The settlement is Ex.M12. Wherein Para 3 A of the said settlement states that the reemployment would be on trial basis for a period of 12 months and if they do not show satisfactory work in 190/240 days performance and their services would be terminated. It is an admitted case that during October, November and December, 1989 petitioner put in only 9 days, question of providing the concept of 12 months is not there because according to the respondent he absconded again and they did not dismiss him orally-7574 THE GAZETTE OF INDIA: DECEMBER 15, 2001/AGRAHAYANA 24, 1923 [PART H—SEC. 3(ii)] 11. Seeing the past performance ofthc petitioner who hardly managed to work in 1985 for 176 days, in 1986 for 77 days and in 1987 for 33 days. And again when be was given a chance in October, November and December he worked for 9 days. Contention that whole year should have been given does not appear to be justified and in feet an over all circumstances are taken into consideration it can be safely presumed that he abandoned the service and further as he is late in everything he has come to Court after a gap of 11 years. Hence he does not deserve any relief. However, if there is any work of badli worker available, and if this petitioner is found at the spot he may be given preference to others in the matter of appointment The reference is ordered accordingly. Transit.

Dictated to Kum. K. Phani Gowri, Personal Assistant, transcribed by her corrected by me on this the 24th day of October 2001.

E. ISMAIL, Presiding Officer Appendix of evidence

Witness examined for the Witness examined for the Petitioner: Respondent:

NIL NIL

Documents marked for the Petitioner/Union

NIL

Documents ma¹ \ou, far the Respondent Ex.Ml: Application filed before Industrial Tribunal, Hyderabad

Ex.M2: Charge Sheet No.PK.3/8(b)/79

Ex.M3: Notification in Eenadu

Ex.M4: Domestic enquiry proceedings

Ex.M5: Enquiry Report

Ex.M6: Dismissal order Lr.No. PD/NGR/8/1165 Ex.M7: Money receipts of one month's notice wages Ex.M8: Registered Post receipt

Ex.M9: Undelivered registered cover

EX.MIO: Copy of remittance Ir. No.PK. 3/731569 Ex.M. 11: Copy of application filed by the petitioner dt. 15.7.89

Ex.M 12: Copy of Memorandum of Settlement dt. 3.3.1989.

New Delhi, the 29th November, 2001 S.O. 3427.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Industrial Tribunal/Labour Court Hyderabad as shown in the Annexure in the Industrial Dispute between the employers in relation to the management SCCL and their workman, which was received by the Central Government on 28- 11-2001.

[No. L-22025/25/2001-IR(C-II)]

N.P. KESAVAN, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM LABOUR COURT AT HYDERABAD

Present Shri E. ISMAIL, Presiding Officer Dated : 29th October, 2001

INDUSTRIAL DISPUTE No. L.C.I.D.No. 1/2001 Between :

I. Ande Lingaiah,

S/o Ellaiah, aged about 46 years Occ-Ex-Badli Filler (Mazdoor), Godavarikhani, Karimnagar district

Petitioner

AND

1. The Singareni Collieries Co. Ltd . Rep. By it's The General Manager, Ramagundam Area-1, Godavarikhani. Respondents APPEARANCES :

For the Petitioner : Shri A. Ravi Babu. Advocate For the Respondent: Shri G. Praveen Kumar,

Advocate

AWARD

This is a case taken under Sec.2 A (2) of the I.D. Act, 1947 in view of the Judgment ofthc Hon'ble High7575 Court of Andhra Pradesh reported in W.P. hto.8395 of 1989 dated 3-8-1995 between Sir U. Chinnappa and M/s. Cotton Corporation of India and two others.

to have been rejected. The order passed by the management bearing No.PRG.I/32C/991, dated 13-5-1987 is bias, unreasonable, arbitrary and illegal. Therefore, he may be directed for reinstatement with all back wages and all attendant benefits.

3. A counter was filed stating the petitioner was appointed in the respondent company in the year 1973 subsequently he was posted to power house of the respondent company as General Mazdoor. The petitioner is a permanent worker and had put in 13 years of service. The petitioner was spotted red handed while he was taking companies property from the company's premises. The following articles were recovered: (1) One gunny bag full of Coal, (2) One M.S, Plate measuring approximately 450 mm * 2 mm and (3) One phosphor Bronze worn wheel of the SHK Pump from the water prc-lrcatnicnt plant. Since he committed theft on 10-11-1986 domestic enquiry was conducted, the petitioner has fully participated in the enquiry and he was given full opportunity to defend his case. The petitioner pleaded guilty and admitted the offence. The petitioner was dismissed on 13-5-1987. The allegation that before the petitioner could submit his explanation, the Security Officer of the Company called him to the office and detained him and the confessional statement taken forcefully is all false Further, the petitioner never complained that the confessional statement was taken under pressure. That there is ample evidence to show that theft was committed. Hence, the petitioner may be dismissed.

4. The petitioner's counsel conceded that the domestic enquiry is valid, on 8-8-2001. Therefore, once the domestic enquiry is held valid there is nothing left except to see whether the punishment awarded is commensurate with the alleged misconduct. 2, The brief averments in the petition are: that the petitioner was appointed as badli worker in the management in the year 1973. The services in the category of mazdoor were regularized and the worker was made a permanent employee on the rolls of the management. The workman has put in about 13 years of service. Suddenly on 10-11-1986 the charge sheet dated 10-11-1986 was served on the workman stating that on 7-11-1986 when he was working in the 2nd shift at about 11.15 PM watchman on duty at the power house saw the petitioner on a bicycle with some materials belonging to the company and same were recovered from the workman, The workman was asked to submit his explanation as to why disciplinary action should not be taken against him including dismissal from services. Before the workman could submit his explanation. Security Officer of the Company called him to the office on 18-11 -1986 at about 11 AM and asked him to confess the offence otherwise he will loose his job apart from that he will be handed over to the police on the charge of theft of the material of the company. The workman stated that he never committed any such theft of material of the company and much less on 7-11 -1986 as alleged in the charge sheet. The workman was retained for about 4 to 5 hours in the Security Officer's room in the Security Office. Finally, the Personnel Officers of the company came to the Security Office and asked him to give a confessional statement and on such statement he would be pardoned and he will be taken back on duty and no police case will be registered. That the pressure exerted by the management company and also on the assurance given by the officials, though the workman has not committed the offence had to confess the same under threat to avoid all troubles both from the employer and the police. That on 11-1-1986 itself some statement was prepared by the officials and the workman was asked to sign on it. The workman when resisted the officials promised that from the next time onwards he can continue his job as his services would not be terminated. In fact, after 11-11-1986 neither any enquiry was conducted nor any witnesses were examined nor any notice, of enquiry was furnished to the workman and he was continued in service till 15-5-1987 on which date the impugned termination order was served on the workman terminating his services w.c.f. 13-5-1987. The Enquiry Officer's findings, if any. recorded were not furnished to the workman along with termination order. That the workman preferred an appeal before the General Manager, Singareni Collieries. Godavarikhani on25-5-1987. He was pursuing the appeal preferred before the above authorities since then. Ultimately on 15-5-1987 he was informed that such appeals and representations are not entertained by the company and the appeals submitted by workman is deemed

5. It is argued by the Learned Counsel for the petitioner that the petitioner has put in 13 years of service and during his entire career there was no occasion for the respondent management to complain regarding his integrity while discharge of his duties. That it was alleged that he was found carrying some company articles on the bicycle the workman being an illiterate person at the direction of Security Officer signed a statement which is called as confessional statement as no significance can be attached to the enquiry which is make believe enquiry. The petitioner workman challenged the correctness ofthc order before the Hon'ble High Court through W.P.No. 11848/87 since there was an effective remedy under the Industrial Disputes Act. the workman sought permission for withdrawing the writ petition and he was allowed to withdraw the writ petition by an order dated 21-12-1989 He initiated the claim under Sec.2 A (2) by an order dated 12-11-1992 the same was dismissed as the Labour Court had no jurisdiction. He again challenged the same by filing writ petition No.6311/1996 and the Learned Single Judge7576 THE GAZETTE OF INDIA : DECEMBER 15, 2001/AGRAHAYANA 24, 1923 PART II—SEC, 3(ii)l interfere with the punishment of dismissal imposed on the petitioner. It may be seen that one Gunny bag of Coal, one MS. Plate and one phosphor bronze wheel were alleged to be recovered from the petitioner.

has remanded the matter for fresh decision with Labour Court. The respondent management was unsuccessful and ultimately the matter was carried before the Hon'ble Supreme Court which directed the petitioner to approach the Central Industrial Tribunal.

9, It is blearly mentioned that the charge sheeted workman admitted the offence and hence the charges are proved against him. No doubt theft is serious offence and therefore, he was dismissed. In the normal situation, I would not have interfered with the punishment imposed on him but seeing the chequered history which was set at rest by the Hon'ble Supreme Court held. That this Court should decide merits without considering res judicata or any other thing and by then only 12 years had elapsed in 1999 by now 14 years being elapsed and in view of the fact that the enquiry report also does not mention anything about his past conduct. Further in view of Gujarat Judgement cited above where it was a case of absence of duty for about 2 days without obtaining prior permission of less than Rs.50 and here also it was a momentary lapse, the Hon'ble Gujarat High Court has held, a penalty of removal from services is therefore not. called for. Here also there is no evidence to show the value of the property anyway it was momentary lapse for which the exile of 14 years of the petitioner is sufficient. So taking all this chequered history I think it is a fit case that sympathy can be shown and provisions of Sec. 11 A can be invoked and hence the order of dismissal dated 13-5-1987 is set aside and the petitioner is directed to be reinstated back into service as Mazdoor on the pay scale available now within 30 days from the publication of this award. However he shall not be entitled for any back wages, seniority etc,

Award passed accordingly transmit.

Dictated to Kum. K. Phani Gowri, Personal Assistant transcribed by her corrected by me on this the 29th Oct. 2001

E. ISMAIL, Presiding Officer .

Appendix of evidence

6. He furhcr argued that Hon'ble Supreme Court held that non furnishing of enquiry report would render the decision of the disciplinary authority invalid, vide AIR 1991 Supreme Court page 471 INREMohd. RamzanKhan Vs. Union of India. That there was no material to substantiate the charge as such imposition of penalty itself is erroneous. Further, it is not clear either from the charge sheet or from the report of the Enquiry Officer as to the actual value of the property alleged to have been found in possession of the petitioner workman. Further none of the witnesses ever spoke of the fact that petitioner workman was found to have committed on the theft of the material of the company. Therefore, it is a clear case of no evidence. Even so assuming that the charge is proved against the workman the punishment imposed is shockingly disproportionate to the gravity of the charge assuming that it has been established he relied on Judgement of the Hon'ble Supreme Court in AIR 1987 page 2387 wherein that Lordships held," it should not be so disproportionate to the offence as to shock the conscience." He also relied on a Judgement reported in 1982 LAB 1C 1031 wherein it was said, "penalty of removal from service is therefore not called for when a poor worker yields to a momentary temptation and commits an offence which often passes under the Honourable name of kleptomania when committed by the rich. He also relied on ARI1989 Supreme Court page 149 wherein the Lorships held, "It can not therefore be stated merely because the Labour Court had found the enquiry to be fair and lawful and the finding not to be vitiated in any manner. It ought not to have interfered with the order of termination of service passed against the respondent in exercise of its power under Section 6(2)(A)."

Witness examined for the Witness examined for the Petitioner Respondent

NIL NIL

Document marked for the Petitioner/Union

NIL

Document marked for the Petitioner/Union 7. It is argued by the Learned Counsel for the respondent that it is a clear case of theft and the Learned Counsel for the petitioner has conceded that the enquiry held is valid. Therefore, the petitioner need not be shown any mercy and the punishment of dismissal imposed need not be interfered.

NTL

8. This case has got a chequered history of the petitioner approaching various forums and ultimately the controvercy about the forum was set at rest by the Hon'ble Supreme Court in Civil Appeal No. 7799 of 1997 wherein its Lordships observed as follows," we make it clear that the Central Labour Court shall decide the dispute on merits without considering the question of res judicata or delay in filing the proceedings, meaning hereby, the dispute has to be decided on merits and not any technical ground." That being so the question of delay or res judicata etc. will not arise. The only point is whether this Court can7577 New Delhi, the 5th December, 2001

S.O. 3429.—In exercise of the powers conferred by sub-section (3) of Section 1 of the Employees' State Insurance Act 1948 (34 of 1948) the Central Government hereby appoints the 1st January, 2002 as the date on which the provisions of Chapter IV (except Sections 44 and 45 which have already been brought into force) and Chapter V and VI (except Sub-section (i) of Section 76 and Sections 77, 78, 79 and 81 which have already been brought into force) of the said Act shall come into force in the following areas in the State of Tamil Nadu namely:—

New Delhi, the 5th December, 2001

" Areas comprising the Revenue Villages of lankulam. A. Lakshimipuram and its Hamlet T. Karisalkulam of Sivakasi Taluk and Keelarajakularaman'and its hamlets Thombakulam and Reddipatti of Rajapalayam Taluk in Vmidhunagar District."

[No. S-38013/24/2001-S.S.l. J

K. C JAIN, Director S.O. 3428.—Whereas the Central Government having been satisfied that the public interest so required had, in pursuance of the provisions of sub-clause (vi) of the clause (n) of section 2 of the Industrial Dispute Act, 1947 (14 of 1947), declared by the Notification; of the Government of India in the Ministry of Labour S.O No. 1376 dated the 6-6-2001 services in the Food Corporation of India to be a public utility service for the purpose of the said Act, for a period of six months from the 7-6-2001.

And whereas, the Central Government is of opinion that public interest requires the extension of the said period by a further period of six months;

Now, therefore, in exercise of the powers conferred by the proviso to'sub-clause (vi) of clause (n) of section 2 of the Industrial Disputes Act, 1947, the Central Government hereby declares the said industry to be a public utility service for the purposes of the said Act for a period of six months from the 7-12-2001.

[No. S-11017/5/9MR(PL)]

H.C. GUPTA, Dy. Sect)

New Delhi, the 6th December. 2001

S.O. 3430.— In exercise of the powers conferred by sub-section (3) of Section 1 of the Employees' State Insurance Act, 1948 (34 of 1948) the Central Government hereby appoints the 1st January, 2002 as the date on which the provisions of Chapter IV (except Sections 44 and 45 which have already been brought into force ) and Chapter Vand VI (except sub-section (i) of Section 76 and Sections 77, 78, 79 and 81 which have already been brought into force) of the said Act shall come into force in the following areas in the Union Territory of Pondicherry namely:—

" Areas comprising the Revenue Villages of Madukkarai, Kariamanikkam, Eripakkam. Neltapakkam. Pandashozanur, Embajam, Korkadu and Karklambakkam of Ne-ttapakkam Commune."

lNo.S-38013/25/2001-S.S.l]

K. C. JAIN. DIRECTOR Printed by the Manager, Govt of Mdia Prow, Ring Road, Mayapuri, New Delhi-110064 and Published by the Controller of Publications, Dclhi-110054